State v. Mosher

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.