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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA11-350 NORTH CAROLINA COURT OF APPEALS Filed: 6 December 2011

STATE OF NORTH CAROLINA v. CARLOS ANTONIO KEELS Robeson County No. 06 CRS 54284-85

Appeal by Defendant from judgment entered 3 June 2010 by Judge Douglas B. Sasser in Robeson County Superior Court. in the Court of Appeals 27 September 2011. Attorney General Roy Cooper, by Special General Steven M. Arbogast, for the State. Deputy Attorney Heard

Attorney Sue Genrich Berry, for Defendant-appellant. HUNTER, JR., Robert N., Judge. I. Factual & Procedural Background

On 13 November 2006, a Robeson County grand jury indicted Defendant for first degree murder and felony child abuse

inflicting serious bodily injury.

Defendant was tried before a The

jury on 1 March 2010 and pleaded not guilty to all charges. State's evidence at trial tended to show the following. Thompson and Defendant were in an intimate

Sarina and

relationship

-2lived together along with Ms. Thompson's five children, who

ranged in age from two to twelve years old.

Defendant was not Ms. Thompson every

the biological father of any of the children. worked two jobs, weekend. and Defendant cared

for the children

Defendant implemented different methods to discipline the children. This included ordering them to run laps around a pool table or do push-ups, as well as physical punishment using a comb or belt. to The three-year-old, because she "Susan,1" was not was commonly trained. In

subjected

discipline

toilet

Velma Davis, Susan's aunt, suspected Susan was being abused.

April 2006, Ms. Thompson and Defendant traveled to Tennessee and the children were left with Ms. Davis. Ms. Davis noticed Susan

had bruises on her buttocks, back, and legs, as well as a black eye and cigarette burns on her chest. Ms. Davis called Patricia

McRae, Susan's grandmother, and told her Susan screamed when taking a bath and had marks on her body. to the hospital. On 15 July 2006, Ms. Thompson and Defendant both physically disciplined Susan because she called Defendant her biological father's name and referred to Ms. Thompson by her first name. Ms. McRae took Susan

1

A pseudonym conceals the minor victim's identity.

-3The next day, Ms. Thompson went to work and Defendant was left to care for the children. When Susan woke up, Defendant forced

her to stand in one spot and each time she moved she received physical punishment. fifteen times. Defendant hit Susan with a comb ten to

Afterward, he found Susan lying on the floor

with urine on her pants; he hit her again with a comb, thumped her in the chest with his fingers, and hit her with a belt. Defendant then called Ms. Thompson and asked her what to do with Susan; Ms. Thompson told him not to discipline Susan and said she would take care of it after work. Defendant stated in

his confession that when he called Ms. Thompson on what to do about Susan because she "peed in her underwear," Ms. Thompson told him to punish Susan. instructed table. Susan to do After calling Ms. Thompson, Defendant push-ups and to run around the pool

While running, she fell and hit her head; Defendant hit

her again with a belt because she stopped running. He took Susan into the master bedroom and closed the door. He placed Susan in the tub, but she was not washing herself, so he placed her on the shower floor while the water was running and left the house. Defendant returned and noticed Susan was

lying on the floor in the master bedroom. He put her back in the shower and held her there. He then took her out and sat her on

-4the toilet seat. She told him her head was hurting. He said He

that's "what happens to little girls when they be bad." asked if she would behave, and she said "yes." into Ms. Thompson's bed.

She then crawled

He noticed blood drops on her nose, Defendant left the enter the master

bottom lip, and a red mark on her forehead. house, and told the other children not to

bedroom. Defendant picked Ms. Thompson up from work and asked to be taken to his cousin's house; he then informed Ms. Thompson that Susan was in bed with a headache. home, she noticed a vacuum cleaner When Ms. Thompson arrived cord wrapped around the

doorknob of the master bedroom. She removed the cord in order to open the door and found Susan, who was not responding. Ms.

Thompson then drove Susan to Susan's grandmother's house where they unsuccessfully attempted to resuscitate Susan. called 911, and at emergency medical efforts. technicians Susan was They then were also

unsuccessful

resuscitation

pronounced Medical

dead four minutes after her arrival to the hospital.

personnel noticed multiple dark spots on Susan's arms and legs, a skin break on her left hip, and a hematoma on her forehead. The autopsy report indicated that Susan suffered from There

blunt-force injuries to the head, body, arms, and legs.

-5was significant bleeding under the skin, and many bruises She the The

overlapped. suffered a

Her left lung and pancreas were also bruised. broken adrenal gland and hemorrhaging in

mesentery of her intestines with blood in her belly area.

cause of death was hypovolemic shock, which resulted from blood loss due to bleeding from her injuries. At the close of the State's evidence, Defendant moved to dismiss all charges for lack of evidence. In the alternative,

he moved to dismiss the charge of first degree murder under the theory of felony murder on the basis that it was not a

legitimate theory. motions.

The trial court denied all of Defendant's

Defendant presented no evidence.

The trial court instructed the jury on the elements of felonious child abuse inflicting serious physical injury, first degree murder, and felony murder. The definitions for serious

bodily injury and serious physical injury were also provided by the court. on When the referring basis of to felony murder, abuse the court

instructed

felonious

child

inflicting

serious physical injury. Shortly after the jury began deliberations, it asked the court to explain the difference between serious bodily injury and serious physical injury. At that point, the jury returned

-6and the court reread the definitions of the terms. returned with a verdict contradictory to the The jury court's the trial

instructions on filling out the verdict form, and court rejected the verdict.2 mistrial, which was denied.

Defendant then made a motion for a The court reinstructed the jury on

the substantive offenses and the correct use of the verdict form and sent the jury back of to deliberate. degree child The jury ultimately the felony

convicted murder offense.

Defendant with

first

murder abuse

under the

rule

felonious

as

underlying

During the penalty phase of the trial, Defendant called James Hilkey as an expert witness in the area of was forensic mentally

psychology.

Mr.

Hilkey

testified

that

Defendant

competent and was not insane. imprisonment without parole. II.

Defendant was sentenced to life

Jurisdiction & Standards of Review

Defendant is entitled to appeal his conviction as a matter of right, and we have jurisdiction pursuant to N.C. Gen. Stat.

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