Opinion
Docket No.: CR17-2910 Docket No.: CR18-1434
01-10-2019
COMMONWEALTH OF VIRIGNIA v. ROBERT GRIFFIS
ORDER SUSTAINING IN PART AND OVERRULING IN PART DEFENDANT'S MOTION TO SET ASIDE VERDICT
Defendant moves to set aside a jury verdict entered against him on August 17, 2018, finding him guilty of child neglect, child abuse or neglect causing serious injury, and two counts of malicious wounding. Defendant raises a number of grounds in support of this motion, which the Court addresses in turn.
I. No Malice
Defendant argues that the evidence in support of the two convictions for malicious wounding was insufficient because the Commonwealth presented no evidence on the required specific intent element of malice. The two-year old victim in this case presented with multiple unexplained bruises on various parts of her body. Defendant argues that malice may be inferred from a particular act by the accused only when the Commonwealth has proven that the accused committed the particular act. In this case, he argues, the Commonwealth put on no evidence of any action that could support such an inference:
While it is true that malice may be inferred from an act, such as the pointing of a gun and pulling of its trigger ..., no such act is proved in the case at bar - only speculation as to how the child's injuries arose. The jury was required to infer the act itself. And from there, for the jury to infer the malice from the speculative act would be to depart from the Commonwealth's burden of proof entirely and enter the realm of pure conjecture.(Memorandum in Support of Motion to Set Aside Verdict, filed 10/18/18, at 4).
Counsel have not cited, and the Court has not located, any case authority that approves Defendant's argument and permits inferences of malice to arise only when particular actions by Defendant have been proven. Rather, the Court of Appeals has held, "[w]hether or not an accused acted with malice is generally a question of fact and may be proved by circumstantial evidence." Canipe v. Comm., 25 Va. App. 629, 642 (1997). The Virginia Supreme Court has held, "[c]ircumstantial evidence is as competent and is entitled to as much weight as direct evidence, provided it is sufficiently convincing to exclude every reasonable hypothesis except that of guilt." Coleman v. Comm, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983).
It is true that no evidence in this case shed any light as to how precisely the child acquired her injuries; but the testimony of pediatrician Dr. Michelle Clayton confirmed that they were non-accidental, not self-inflicted, and caused by blunt force trauma. "This is not consistent with a self-inflicted injury. The injuries are too severe and extensive. The abrasions are abrasions that would not come from self-inflicted trauma." (Tr., 8/15/18, Testimony of Michelle Clayton, at 455) Dr. Clayton wrote in her report,
At autopsy, Evalynn was found to have at least eight areas of bruising located on the frontal and parietal regions of her scalp. Evalynn also had a bruise of her lumbosacral region, and on her posterior right shoulder. The number, severity, and location of these injuries is not what is expected with minor accidental injuries. In the absence of a plausible history of accidental trauma, these injuries are diagnostic of multiple episodes of inflicted blunt force trauma to her head.(Commonwealth Exhibit 50 at 8 - 9)
The testimony from Dr. Clayton that Evalynn's injuries were inflicted sufficiently supported an inference that the person who inflicted them did so with malice. The Commonwealth's evidence was circumstantial, and the jury had to "infer the act itself," to quote Defendant's Memorandum; but any act by a defendant that would result in these injuries to a two- year old would support an inference of malice. (Memorandum in Support of Motion to Set Aside Verdict, filed 10/18/18, at 4)
That the Commonwealth had no proof of the specific action does not eliminate the inference of malice because the injuries resulted from a deliberate and cruel act rather than an accident. Most often, "child abuse is practiced by a parent in the privacy of the home with no one present but the victim and frequently...the victim is an infant too young to testify." Christian v. Comm., 221 Va. 1078, 1082 (1981). Virginia courts nonetheless are permitted to find malice even absent direct proof of the specific action that caused injury to the child. See Price v. Comm., 18 Va. App. 760, 767-68 (1994) (injuries resulting from some deliberate cruel act to an infant supports a finding of malice). As a result, the Court concludes that the evidence was sufficient to infer malice.
II. No Criminal Agency
Defendant argues again that the Commonwealth failed to prove any overt criminal act by Defendant that caused the injuries to the child and that it failed to eliminate other reasonable hypotheses of innocence. The testimony of Dr. Clayton sufficiently supported the conclusion that the injuries were caused by inflicted trauma - - a criminal act. The reasonable hypotheses of innocence cited by Defendant are the prior instances of self-inflicted injuries to which other witnesses testified and the possibility that another adult entered the room and committed these crimes.
Again, Dr. Clayton's testimony refuted the possibility that the extensive bruising and other injuries could have been self-inflicted. The statements that Defendant gave to the first responding paramedics and later to detectives describe that he was in the bedroom with the child during the morning that these events occurred. He did not mention leaving her alone other than when he had to use the bathroom; nor did he mention the intrusion into his bedroom of another adult who could have inflicted the injuries. Therefore, the possibility of another occupant in the boarding house entering the bedroom during the very early morning hours and harming the two-year old is not a reasonable hypothesis of innocence that the Commonwealth was required to disprove. As the Christian court wrote:
A single circumstance seldom justifies a finding of criminal agency. Opportunity is always a relevant circumstance, of course, and, when reinforced by other incriminating circumstances, may be sufficient to establish criminal agency beyond a reasonable doubt. Moreover, where it appears that a criminal assault was made upon a child within a particular period of time, evidence which shows that the accused was sole custodian of the child during that period may be sufficient, standing alone, to prove criminal agency.Christian v. Comm., 221 Va. 1078, 1082 (1981).
In Christian, the Court found that evidence was not sufficient to exclude "the reasonable hypothesis that someone other than the appellant was the criminal agent because at least five other people handled or supervised the child from the time she left her mother until her injuries were discovered." Id. at 1083. In contrast, Collado v. Commonwealth involved a child who was criminally assaulted during the period of time in which the appellant had sole custody and control of the child. 33 Va. App. 356, 364-65 (2000). As a result, the Court found the evidence "sufficient to support the jury's finding that appellant was the criminal agent who inflicted the life threatening injuries." Id. at 365. See also Wilson v. Comm., 31 Va. App. 495, 509-10 (2000)(despite school teachers' access to child abuse victim, "the only reasonable hypothesis flowing from this evidence is that the appellant inflicted [the child's] injuries").
In this case, as in Christian, Defendant was the sole custodian of the child. Although Defendant claims that there were six other people in the house and one of them could have inflicted the injuries on the child, he did not provide this explanation to investigators; and there is no evidence, in contrast to Collado, that any of these other people actually injured or even came into contact with" the child. As a result, the evidence is sufficient to establish criminal agency.
III. No Serious Injury
Defendant argues that the evidence did not show any serious injury required for the child abuse or neglect with serious injury charge. Virginia Code § 18.2-371.1(A) defines "serious injury" within the meaning of the statute:
For purposes of this subsection, "serious injury" includes but is not limited to (i) disfigurement, (ii) a fracture, (iii) a severe bum or laceration, (iv) mutilation, (v) maiming, (vi) forced ingestion of dangerous substances, and (vii) life-threatening internal injuries.
Evalynn's injuries included extensive bruising on multiple parts of her body, a forehead laceration, a mouth injury, abrasions, and the hypoxia in the brain that caused her death. The parties stipulated that the bruising and laceration did not cause her death. The Commonwealth did not prove that Defendant caused the hypoxia to the brain. The Court agrees that non-life-threatening bruises and a small laceration on the forehead - even one that would scar - does not satisfy the statutory definition of "serious injury." The conviction for child abuse or neglect causing serious injury will be set aside.
IV. No Bodily Injury
The jury found Defendant guilty of two counts of malicious wounding. Virginia Code § 18.2-51 defines this offense:
If any person maliciously shoot, stab, cut, or wound any person or by any means cause him bodily injury, with the intent to maim, disfigure, disable, or kill, he shall, except where it is otherwise provided, be guilty of a Class 3 felony. If such act be done unlawfully but not maliciously, with the intent aforesaid, the offender shall be guilty of a Class 6 felony.
As already noted, the testimony of Dr. Clayton sufficiently supported the conclusion that the injuries were caused by inflicted trauma, a criminal act, and refuted the possibility that the extensive bruising and other injuries could have been self-inflicted. Additionally, as noted previously, the possibility that another occupant in the boarding house harmed the two-year old is not a reasonable hypothesis of innocence that the Commonwealth was required to disprove. Because Defendant was the sole custodian of the child at the time with no evidence that anyone else handled her, there is sufficient evidence to prove criminal agency of the Defendant and bodily injury to the child.
V. Insufficient Circumstantial Evidence
Defendant argues that the circumstantial evidence presented in this case was insufficient for a finding of guilt. (Memorandum in Support of Motion to Set Aside Verdict, filed 10/18/18, at 16-17) It is well established that "[c]ircumstantial evidence is as competent and is entitled to as much weight as direct evidence, provided it is sufficiently convincing to exclude every reasonable hypothesis except that of guilt." Coleman v. Comm., 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983). Further, "[w]hile no single piece of [circumstantial] evidence may be sufficient, the 'combined force of many concurrent and related circumstances, each insufficient in itself, may lead a reasonable mind irresistibly to a conclusion.'" Ervin v. Comm., 57 Va. App. 495, 505, 704 S.E.2d 135, 140 (2011) (quoting Stamper v. Comm., 220 Va. 260, 273, 257 S.E.2d 808, 818 (1979)).
As Defendant notes, "[w]here the Commonwealth's case rests entirely upon circumstantial evidence...the evidence not only must be consistent with guilt, but it also must exclude every reasonable hypothesis of innocence." Staton v. Comm., 36 Va. App. 282, 287 (2001). "The fact finder, however, is entitled to draw inferences from proved facts, so long as the inferences are reasonable and justified." Powers v. Comm., 211 Va. 386, 388, 177 S.E.2d 628, 630 (1970) (citing Webb v. Comm., 204 Va. 24, 34, 129 S.E.2d 22, 29 (1963)). Additionally, "[w]hen facts are equally susceptible to more than one interpretation, one of which is consistent with the innocence of the accused, the trier of fact cannot arbitrarily adopt an inculpatory interpretation." Moody v. Comm., 28 Va. App. 702, 706, 508 S.E.2d 354, 356 (1998) (citing Corbett v. Comm., 210 Va. 304, 307, 171 S.E.2d 251, 253 (1969)). However, "the Commonwealth need only exclude reasonable hypotheses of innocence that flow from the evidence, not those that spring from the imagination of the defendant." Hamilton v. Comm., 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993).
The reasonable hypotheses of innocence cited by Defendant are the instances of self-inflicted injuries to which other witnesses testified, and the possibility that another adult entered the room and committed these crimes. The Court has already addressed these contentions. The Commonwealth sufficiently eliminated all reasonable hypotheses of innocence and the circumstantial evidence is sufficient to support the finding of guilt.
VI. No Evidence of Gross, Wanton or Culpable Action
Defendant argues that "[n]o evidence has been shown that the defendant committed the crime of child abuse or neglect with no serious injury." (Memorandum in Support of Motion to Set Aside Verdict, filed 10/18/18, at 14) Virginia Code § 18.2-371.1(B)(1) states:
Any parent, guardian, or other person responsible for the care of a child under the age of 18 whose willful act or omission in the care of such child was so gross, wanton, and culpable as to show a reckless disregard for human life is guilty of a Class 6 felony.
The Court has already addressed Defendant's arguments regarding circumstantial evidence and criminal agency. Infliction of Evalynn's injuries constituted a willful act that was so gross, wanton, and culpable as to show a reckless disregard for human life. The evidence thereby satisfies Virginia Code § 18.2-371.1(B)(1).
VII. No Multiple Punishments for the Same Act
Defendant argues that the Court should "vacate one, if not both, of the malicious wounding charges" as "being punishment for the same act twice which is unconstitutional." (Memorandum in Support of Motion to Set Aside Verdict, filed 10/18/18, at 17)
In the prosecution for two crimes in the same trial, the double jeopardy defense does not apply unless (a) the defendant is twice punished for one criminal act, and (b) the two punishments are either for the same crime or one punishment is for a crime which is a lesser included offense of the other.Coleman v. Comm., 261 Va. 196, 200 (2001). The Supreme Court has held that "the test is whether the individual acts are prohibited, or the course of action which they constitute. If the former, then each act is punished separately." Blockburger v. United States, 284 U.S. 299, 302 (1932)(holding that separate instances of drug sales each constituted its own violation, regardless that they were to the same person or within a short period of time). The test remains the same no matter how close in time the two offenses occur. Id. at 301.
Here, the child had distinct injuries to her head, arm, back and mouth, each of which constituted an instance of malicious wounding that may be charged separately under § 18.2-51. Defendant, however, claims that "[b]oth of the malicious wounding charges would be a continuation of the same act of injuries during the time between May 23rd to May 25th." (Memorandum in Support of Motion to Set Aside Verdict, filed 10/18/18, at 18) Even if it were plausible for an act to be continuous over the course of three days, double jeopardy would not be implicated here because the individual acts are prohibited as oppose to the course of action which they constitute.
Further, Virginia case law distinguishes between repeat criminal acts performed against the same victim at different times. In Nelson v. Commonwealth, 41 Va. App. 716 (2003) the Court of Appeals held that multiple acts of sodomy performed on the same child across a single afternoon were not a single transaction; and thus his several convictions did not constitute double jeopardy. As a result, the two convictions against Defendant for inflicting two different injuries do not violate double jeopardy.
CONCLUSION
Defendant's motion to set aside the conviction under Virginia Code § 18.2-371(A) for child abuse, causing serious injury, is SUSTAINED.
Defendant's motion to set aside the remaining convictions is OVERRULED.
Counsel are DIRECTED to file any objections within 14 days. Further endorsements by counsel are waived.
The Clerk is directed to mail a copy of this Order to counsel of record.
It is so ORDERED.
ENTERED: 10 January 2019
/s/_________
Mary Jane Hall, Judge