State v. Harper

WEBB, Judge.

The defendant first assigns error to the overruling of his motions to dismiss, to set aside the verdict, and for appropriate relief in all cases. All the motions were based on the insufficiency of the evidence to support the convictions. G.S. 14-318.4 provides in part:

*474 (a) Any parent of a child less than 16 years of age, or any other person providing care to or supervision of the child who intentionally inflicts any serious physical injury which results in

(3) substantial impairment of physical health

is guilty of child abuse and shall be punished as a class I felon.

The defendant argues that there is no credible evidence that he intentionally inflicted any serious physical injury on his oldest son. We believe the testimony of the defendant’s niece and his sister that they saw him beating the child with a board, and the testimony of Dr. Irons that in his opinion the child had a battered child syndrome with the bruises to his head and eye being caused by a blunt trauma is sufficient for the jury to find the defendant intentionally inflicted serious injury to the child. The defendant argues that Dr. Irons could not have formed an opinion as to a battered child syndrome on the basis of two bruises about the head. We believe it is within the expertise of Dr. Irons as to whether the bruises on the eye or head would have been inflicted by another person or were of a type which the child would have inflicted on himself in the normal course of events. See State v. Wilkerson, 295 N.C. 559 , 247 S.E. 2d 905 (1978).

The defendant, relying on State v. Byrd, 309 N.C. 132 , 305 S.E. 2d 724 (1983), also argues that there is no evidence that he struck the child in the head. He points out that neither of the witnesses testified that she saw the defendant hit Edward Earl Harper, Jr., in the head. We believe the testimony by two witnesses that they saw the defendant hit the child with a board, coupled with the evidence that the defendant was in charge of the child who had received blows to the head distinguishes this case from Byrd .

The defendant does not contend the child did not receive a serious injury.

The Court properly denied the defendant’s motions as to the charge of child abuse.

*475 As to the three charges of contributing to the neglect of a minor, G.S. 14-316.1 provides in part:

Any person over sixteen years of age who knowingly causes, encourages, or aids any juvenile within the jurisdiction of the court to be in a place or condition, or to commit an act whereby the juvenile could be adjudicated . . . neglected as defined by G.S. 7A-517 shall be guilty of a misdemeanor.

G.S. 7A-517(21) defines a neglected juvenile as:

A juvenile who does not receive proper care, supervision, or discipline from his parent, ... or who is not provided necessary medical care ... or lives in an environment injurious to his welfare.

As to Edward Earl Harper, Jr., Dr. Irons testified that he had instructed the defendant of the easily recognizable symptoms of a disease of the child which could be fatal. These symptoms appeared at least a week before 21 July 1983. The defendant did not take any action on these symptoms and even refused to give the child’s medicine to a social worker in order for her to administer it. We believe this is substantial evidence that the defendant did not provide necessary medical care for his son.

As to the other two children the evidence that they lived in a room that had a bad odor, that there was a bucket in the room which was filled with urine, feces, and worms, that the children were dirty and that they were poorly clothed is substantial evidence that they were not receiving proper care and supervision and their environment was injurious to their health. The defendant lived in poverty. He was receiving enough, however, to provide for his children better than he did. He could have kept the room clean and emptied the bucket which was used as a toilet without any cost. The defendant had an affirmative duty to care for his children.

We hold the defendant’s motions as to contributing to the neglect of minors were properly denied.

The defendant last argues that the sentences imposed were excessive. The Court found an aggravating factor which the defendant does not challenge and imposed the maximum sentence on the felonious child abuse charge. It then imposed the maximum *476 sentence on each of the misdemeanor charges with the sentences to run consecutively with the felony sentence. We can find no error in this. The defendant contends that such a sentence is cruel and unusual but advances no reason why this is so. This assignment of error is overruled.

No error.

Judges EAGLES and COZORT concur.