State v. Mosher , 235 N.C. App. 513 ( 2014 )

NO. COA13-1101
NORTH CAROLINA COURT OF APPEALS
Filed: 5 August 2014
STATE OF NORTH CAROLINA
v. Onslow County
No. 10 CRS 53914
GREGGORY GEORGE MOSHER, JR.
Defendant
Appeal by defendant from judgment entered 23 April 2013 by
Judge Charles H. Henry in Onslow County Superior Court. Heard
in the Court of Appeals 6 February 2014.
Roy Cooper, Attorney General, by Teresa M. Postell,
Assistant Attorney General, for the State.
Cheshire Parker Schneider & Bryan, PLLC, by John Keating
Wiles, for defendant-appellant.
DAVIS, Judge.
Greggory George Mosher, Jr. (“Defendant”) appeals from his
convictions for one count of felony child abuse resulting in
serious bodily injury in violation of N.C. Gen. Stat. § 14-
318.4(a3) and one count of felony child abuse resulting in
serious bodily injury in violation of N.C. Gen. Stat. § 14-
318.4(a4). Defendant’s sole argument on appeal is that the
trial court erred in entering judgment on both of his
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convictions because the two offenses are mutually exclusive.
After careful review, we affirm the trial court’s judgment.
Factual Background
The evidence presented at trial tended to establish the
following facts: In September of 2009, Defendant married
Rebecca Mosher (“Ms. Mosher”) and became a stepfather to her two
young children, “Amy” and “Noah.”1 Defendant was deployed to
Iraq in December of 2009, and when he returned from his
deployment, he lived with Ms. Mosher and the children at a home
in Richlands, North Carolina. Their next-door neighbors, Jack
Underwood (“Mr. Underwood”) and Justus Underwood (“Mrs.
Underwood”), had observed bruising on the children before the
subject incidents.
On 14 May 2010, Ms. Mosher, accompanied by Defendant,
visited the Underwoods’ home and requested that Mr. Underwood
examine Noah’s arm, which was swollen. Mr. Underwood
recommended that Noah be taken to the hospital because he might
have a broken arm or wrist. Mrs. Underwood testified that
during this encounter, Ms. Mosher was standing behind Defendant
and trying to catch her attention in a way that Mrs. Underwood
interpreted as meaning: “This is suspicious; you need to pay
1
Pseudonyms are used throughout this opinion to protect the
privacy of the minor children.
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attention.” Later that day, Ms. Mosher showed Mrs. Underwood
marks on the children’s bodies, including bruising on Noah’s
arm, legs, and side and bruising on Amy’s back. Mrs. Underwood
further explained that “[t]he children did not have marks on
them prior to [Defendant] coming home. They would mysteriously
appear when [Ms. Mosher] would be out.”
On the evening of 23 May 2010, Defendant was at home alone
with Amy and Noah. At the time, Amy was two years old and Noah
was three years old. Neither Amy nor Noah testified at trial;
therefore, the evidence regarding the specific events giving
rise to Defendant’s convictions consisted entirely of
Defendant’s own testimony and testimony concerning the accounts
he had provided to physicians and a social worker.
At approximately 7:00 p.m., Defendant began preparing a
bath for Amy and Noah. Defendant turned on the water and placed
the children into the bathtub. As the water was running and
filling up the tub, Defendant heard his dog fighting outside and
making a sound that Defendant described as “a vicious growl.”
Defendant testified that he left the children in the tub with
the water running and went to check on the dog. He kicked
another dog off of his dog, placed his dog’s collar and chain
back on, and returned to the bathroom. Defendant estimated that
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he had left the children in the tub for what “felt like a
minute.” Immediately upon returning to the bathroom, Defendant
saw Noah standing outside the tub. Amy was still in the tub,
screaming and “splashing to get out.” Defendant grabbed Amy out
of the tub and saw that her legs were peeling. He reached to
turn off the water and noticed that the cold water faucet was
off. When he pulled out the drain plug, he discovered the bath
water was “hot.”
Amy was taken to the hospital and remained hospitalized
until 12 July 2010. She sustained burns to approximately 44
percent of her body and underwent two surgeries to remove the
burned skin and replace it with healthy tissue. Dr. Kenya
McNeal-Trice (“Dr. McNeal-Trice”), a board-certified
pediatrician and a member of Amy’s treatment team at the North
Carolina Children’s Hospital, was tendered and accepted as an
expert witness in the field of pediatrics and child abuse and
neglect. She testified to a reasonable degree of medical
certainty that Amy’s injuries were consistent with an
intentional — rather than accidental — burn and explained that
the pattern of Amy’s burn injuries was not consistent with the
information Defendant had conveyed to her about how the injuries
had occurred. Specifically, Dr. McNeal-Trice testified that
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Amy’s burns were “more consistent with being exposed for a
period of time in a still position in hot water and not
splashing to get out.” She explained that if Amy had been
standing and splashing to get out, the backs of her legs would
not have remained unburned and instead Amy would have sustained
a circumferential burn “all the way around her leg.”
In addition, Dr. McNeal-Trice opined that the fact that Amy
did not burn her hands, stomach, or torso was inconsistent with
a child splashing to get out of scalding hot water. Dr. McNeal-
Trice noted that there were “sharp water demarcation lines” on
Amy’s thighs, a potential indication that the burn was
intentionally inflicted, and that Amy had petechial bruising on
her sternum, which was likely caused by “some type of either
pressure or force” being applied to her chest.
Defendant’s expert witness, Dr. Allen Dimick (“Dr.
Dimick”), was tendered and accepted as an expert in the fields
of burn trauma care, burn surgery, and pre-hospital emergency
care. He examined Amy’s medical records, records from the
investigation conducted by the Onslow County Sheriff’s Office,
and photographs of her burns and testified to a reasonable
degree of medical certainty that Amy’s burns “were completely
accidental and not intentional.” Dr. Dimick testified that in
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his opinion, Amy likely suffered the second-degree “scald burns”
on her back and buttocks from lying or falling back into the hot
water and reacted to those burns by changing position to kneel
on her knees, which resulted in the more severe burns to her
thighs, legs, and the tops of her feet.
Dr. Dimick conceded, however, that he had “difficulty
understanding” how Amy had sustained her particular burn injury
pattern and that it was “hard to envision how that could occur”
unless she had fallen backwards on her back into the water and
then changed position to kneel on her knees. Dr. Dimick
testified that he did not believe that Amy’s injuries were
consistent with someone “pushing her backward and holding her
down,” noting that the burns to her back were less severe,
indicating a briefer exposure to the hot water. However, he did
agree that Amy “certainly” could have sustained the burns to her
back if she was pushed down into the water for a brief period of
time.
On 18 January 2011, Defendant was indicted on two felony
child abuse charges. The first charge alleged that Defendant
had intentionally inflicted a serious bodily injury to Amy in
violation of N.C. Gen. Stat. § 14-318.4(a3), and the second
charge alleged that Defendant, by a willful act or grossly
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negligent omission, showed a reckless disregard for human life
which resulted in serious bodily injury to Amy in violation of
N.C. Gen. Stat. § 14-318.4(a4).
A jury trial was held on 15 April 2013, and on 23 April
2013, the jury returned a verdict finding Defendant guilty of
both offenses. The trial court consolidated the offenses and
entered a judgment sentencing Defendant to a presumptive-range
term of 58 to 79 months imprisonment. Defendant gave notice of
appeal in open court.
Analysis
Defendant contends that the trial court erred in entering
judgment on both counts of felony child abuse — the intentional
infliction of a serious bodily injury to a child in violation of
N.C. Gen. Stat. § 14-318.4(a3) and the willful act or grossly
negligent omission showing a reckless disregard for human life
and resulting in a serious bodily injury to a child in violation
of N.C. Gen. Stat. § 318.4(a4) — because the two offenses are
mutually exclusive. We disagree. As explained below, we
conclude that the evidence at trial permitted the jury to find
both that (1) Defendant acted in reckless disregard for human
life by initially leaving Amy and Noah unattended in a tub of
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scalding hot water; and (2) after a period of time, Defendant
returned to the tub and intentionally held Amy in that water.
Criminal offenses are mutually exclusive if “guilt of one
necessarily excludes guilt of the other.” State v. Mumford, 364
N.C. 394, 400, 699 S.E.2d 911, 915 (2010) (citation and
quotation marks omitted). For example, our Supreme Court has
held that a defendant may not be convicted of both embezzlement
and obtaining property by false pretenses when the charges arise
out of the same act or transaction, explaining that
to constitute embezzlement, the property in
question initially must be acquired
lawfully, pursuant to a trust relationship,
and then wrongfully converted. On the other
hand, to constitute false pretenses the
property must be acquired unlawfully at the
outset, pursuant to a false representation.
This Court has previously held that, since
property cannot be obtained simultaneously
pursuant to both lawful and unlawful means,
guilt of either embezzlement or false
pretenses necessarily excludes guilt of the
other.
State v. Speckman, 326 N.C. 576, 578, 391 S.E.2d 165, 166-67
(1990) (internal citations omitted).
Here, Defendant was convicted of two counts of felony child
abuse under two separate subsections of N.C. Gen. Stat. § 14-
318.4. The first count, child abuse inflicting serious bodily
injury in violation of § 14-318.4(a3), required the State to
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prove that Defendant (1) is a parent or any other person
providing care to or supervision of a child less than 16 years
of age; and (2) intentionally inflicted any serious bodily
injury to the child. See N.C. Gen. Stat. § 14-318.4(a3) (2013).2
Defendant’s second count, child abuse by willful act or
negligent omission showing a reckless disregard for human life
resulting in serious bodily injury, required the State to
establish that (1) Defendant is a parent or any other person
providing care to or supervision of a child less than 16 years
of age; (2) Defendant’s willful act or negligent omission in the
care of the child showed a reckless disregard for human life;
and (3) the act or omission resulted in serious bodily injury to
the child. See N.C. Gen. Stat. § 14-318.4(a4).
Defendant argues that the mens rea component of each
offense makes the two crimes mutually exclusive because “[i]f
one’s conduct is intentional, as required to establish the
offense defined in subsection (a3) of the statute, it is not any
sort of negligence” and that “if one’s conduct is any sort of
2
The statute defines serious bodily injury as “[b]odily injury
that creates a substantial risk of death or that causes serious
permanent disfigurement, coma, a permanent or protracted
condition that causes extreme pain, or permanent or protracted
loss or impairment of the function of any bodily member or
organ, or that results in prolonged hospitalization.” N.C. Gen.
Stat. § 14-318.4(d)(1).
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negligence showing reckless disregard for human life, as
required to establish the offense defined in subsection (a4) of
the statute, it is not intentional.” We conclude, however, that
there was substantial evidence presented at trial permitting the
jury to find that two separate offenses occurred in succession
such that the two charges were not mutually exclusive.
We are guided by our decision in State v. Johnson, 208 N.C.
App. 443, 702 S.E.2d 547 (2010), disc. review denied, ___ N.C.
___, 706 S.E.2d 247 (2011), which — although arising in a wholly
different factual context than the present case — sheds light on
the legal issue presented here. In Johnson, the defendant
argued that the trial court erred by entering judgment on both
his conviction for felony entering and his conviction for
discharging a firearm into an occupied dwelling inflicting
serious bodily injury because the two offenses were mutually
exclusive. Id. at 448, 702 S.E.2d at 551. Specifically, he
argued that the trial court should not have entered judgment
against him for discharging a firearm into the victim’s
residence because his entry into the residence had already been
accomplished at the time the shots were fired. Id.We rejected this argument, holding that the facts of the
case were sufficient to support a conclusion that the two crimes
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were committed in succession and, as a result, the defendant’s
guilt of one offense did not exclude his guilt of the other.
Id. at 449, 702 S.E.2d at 551. We explained that the evidence
tended to show that the defendant and his coperpetrator, acting
in concert, committed the entry when the coperpetrator inserted
his hand into the partially-opened front door. He then removed
his hand (and the firearm he was holding) from the interior of
the residence and subsequently fired into the home through the
door as evidenced by a bullet hole found in the door panel above
the lock. Id. We concluded that these facts established that
the two offenses occurred in succession and, therefore, were not
mutually exclusive, finding merit in the State’s contention that
“[t]he mere fact that the shooter entered [the victim’s] house
at one point does not mean that the shooter was at all times
thereafter inside [the victim’s] house.” Id.Here, evidence was presented from which a reasonable juror
could conclude that Defendant both (1) committed a willful act
or negligent omission showing a reckless disregard for human
life resulting in a serious bodily injury to Amy by leaving her
unattended in a bathtub with the water on; and (2) intentionally
inflicted a serious bodily injury to Amy thereafter by
deliberately immersing her in scalding water.
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Defendant, by his own admission, left Amy and Noah, who
were two and three years old respectively, unattended in the
bathtub while the water was running for what “felt like a
minute.” Defendant testified that he thought he turned on both
the hot and cold water but that he could not be certain.
Evidence was presented at trial that when the hot water is
turned on in that bathtub, the water reaches 100 degrees
Fahrenheit in 10 seconds, 115 degrees in 20 seconds, 119 degrees
in 30 seconds, and 184 degrees in one minute. There was also
testimony that an individual would sustain a third-degree burn
from one second of exposure to 155-degree water, five seconds
of exposure to 140-degree water, and 60 seconds of exposure to
127-degree water. We believe that from this evidence the jury
could reasonably conclude that Defendant, by leaving the
children alone in the tub, acted in a manner that showed a
reckless disregard for human life, thereby constituting a
violation of N.C. Gen. Stat. § 14-318.4(a4).
We also conclude that substantial evidence was presented
supporting a finding of a separate act of intentional infliction
of a serious bodily injury. The State put forth circumstantial
evidence that Amy was intentionally immersed in scalding hot
water by Defendant. Specifically, the State offered evidence
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that (1) Amy had bruising on her chest, suggesting the
application of pressure or force to that area of her body; and
(2) the burns on her legs had sharp demarcation lines,
indicating that she was forcibly held still while in the tub.
This evidence was sufficient to support a conviction for
intentionally inflicting serious bodily injury to Amy in
violation of N.C. Gen. Stat. § 14-318.4(a3).
As such, the jury could have reasonably concluded that two
separate, successive acts of felonious child abuse occurred —
one causing a serious bodily injury through a reckless disregard
for human life and one intentionally causing such an injury. A
finding by the jury that Defendant acted in reckless disregard
for human life by initially leaving Amy and Noah unattended in
the tub did not preclude a separate finding that Defendant’s
conduct upon returning to the tub was intentional.
Consequently, Defendant’s argument is overruled, and the trial
court’s judgment is affirmed.
Conclusion
For the reasons stated above, we affirm the trial court’s
entry of judgment on Defendant’s felony child abuse convictions.
AFFIRMED.
Judges CALABRIA and STROUD concur.