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COLLADO v. COMMONWEALTH



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COLLADO

v.

COMMONWEALTH


SEPTEMBER 5, 2000

Record No. 0438-99-4

Present: Judges Willis, Bumgardner and Frank

Argued at Alexandria, Virginia

MARGO COLLADO

v.

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

Stanley P. Klein, Judge


OPINION BY Judge Robert P. Frank

J. Ronald Lynch (J. Ronald Lynch, P.C., on
briefs), for appellant.

Steven A. Witmer, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief), for appellee.

Margo Collado (appellant) was convicted in a
jury trial of child abuse in violation of Code
? 18.2-371.1. On appeal she contends: 1) the evidence was
insufficient to prove she was the criminal agent and that she
intended to inflict serious injury, 2) the trial court erred in
not granting a jury instruction that stated she was required to
have had an intent to cause the injuries inflicted upon the
victim, and 3) the trial court erred in admitting, at sentencing,
a letter setting forth other incidents of child abuse. We
disagree and affirm the judgment of the trial court.

I. BACKGROUND

Andrew and Andrea Adelman hired appellant, a
professional daycare provider, to provide daycare services in her
home for their daughter, Olivia, born November 27, 1997. At 7:00
a.m. on April 27, 1998, Andrea Adelman delivered her
five-month-old daughter, Olivia, to appellant’s home. Olivia’s
godmother, Sandra Wilger, was to pick Olivia up at noon.
Appellant spoke to Mrs. Adelman on the telephone at 11:00 a.m.
and stated that Olivia had been crying and seemed to be having a
"tough time." When Mrs. Wilger arrived to pick Olivia
up, Olivia was in her car seat taking a bottle, rather than in
the basement with the other children. Appellant explained to Mrs.
Wilger that Olivia had been crying and that she did not want
Olivia to wake the other children. Appellant elaborated on
Olivia’s crying by saying she had shown her "true
colors" that morning and had "quite a set of lungs on
her." Olivia seemed fine once in Mrs. Wilger’s care and
later for Mrs. Adelman.

Mrs. Adelman again delivered Olivia to
appellant’s home at approximately 7:00 a.m. the next day. Once
again, at approximately 11:00 a.m., appellant and Mrs. Adelman
spoke on the telephone. Appellant told Mrs. Adelman that Olivia
had been crying. Appellant complained that she had to rock Olivia
to sleep. Olivia was fine when Mrs. Wilger picked her up at
4:00 p.m., although appellant complained that she had been
crying all day and needed to be held or rocked to sleep.

Mrs. Adelman delivered Olivia to appellant on
the morning of Wednesday, April 29, 1998. When Mrs. Wilger picked
Olivia up in the afternoon, appellant told Mrs. Wilger that
Olivia ate less and slept more that day. Appellant told Mrs.
Wilger that she intended to get Olivia on a schedule and that
Olivia would have no choice in the matter.

On Thursday, April 30, 1998, Mrs. Adelman
delivered Olivia to appellant at approximately 1:00 p.m. Olivia
was well at that time. When Mrs. Adelman returned at 5:00 p.m.,
Olivia was in her car seat in the kitchen. Olivia appeared to be
sleeping, but as Mrs. Adelman spoke with appellant, she noticed
Olivia’s left arm and left leg began to simultaneously make
jerking motions. The unusual movements lasted approximately one
minute. When Mrs. Adelman commented that she had never seen
Olivia do that before, appellant responded that Olivia was
dreaming. Appellant was on the telephone and seemed angry at the
time. Mrs. Adelman left with Olivia and returned home.

Olivia never regained consciousness from the
time Mrs. Adelman retrieved her from appellant’s care until she
rushed her to the hospital approximately three hours later.
During the majority of this time, Mrs. Adelman assumed Olivia was
asleep. She began to get concerned, however, when she was unable
to awaken the child and because the unusual jerking motion of
Olivia’s limbs continued periodically. She decided to call the
doctor, but first called appellant to ask if anything had
happened at the house that day. Appellant said nothing had
happened and suggested Mrs. Adelman call a doctor. When Mrs.
Adelman did so, Dr. Baugh instructed Mrs. Adelman to take Olivia
to the hospital.

Dr. Baugh met Mrs. Adelman at Fairfax Hospital
and examined Olivia. He discovered retinal hemorrhages in
Olivia’s left eye and requested a CAT scan, which revealed a
large subdural hematoma on the left side of the brain. Dr. Baugh
observed a bruise on Olivia’s ear lobe that was less than
twenty-four hours old. Olivia was admitted to the intensive care
unit of the hospital and later that night underwent brain surgery
to relieve the pressure on her brain. Dr. Baugh testified that
this injury was "life threatening."

Dr. Baugh, an expert in shaken baby syndrome,
expressed his opinion that Olivia would have been "knocked
out" immediately after the trauma. He also testified that
Olivia’s one-sided seizures were indicative of brain injury. Dr.
Baugh testified that Olivia is not likely to recover full vision
in her left eye. Cognitive impairment is an unknown, but Olivia
is at risk for such impairment. She is at risk for speech delay
and for mental retardation. Her greatest risks are in the visual
and cognitive domain.

Dr. David Sideman testified that Olivia
suffered retinal hemorrhages and that her condition was
consistent with a child suffering from shaken baby syndrome, a
term used to describe traumatic injury to a small child who is
shaken so hard that the head flops back and forth, causing severe
acceleration and deceleration to the head and eye. He also
testified that causing such an injury usually requires a very
forceful kind of shaking, inconsistent with accidental injury.

Dr. Craig Futterman testified as an expert in
both pediatric intensive care and shaken baby syndrome. He stated
that when Olivia first arrived at the hospital, she was in
"severe distress." Olivia suffered a severe
neurological injury and was doing very poorly both neurologically
and from a cardiovascular and respiratory standpoint. He
described Olivia’s injury as a subdural hematoma, which caused
pressure on the brain by compressing brain tissue and shifting
the location of brain tissue and structures in the brain. He
opined that Olivia was the victim of shaken baby syndrome. Dr.
Futterman, like Dr. Sideman, testified that this injury was
caused by violent shaking that resulted in severe acceleration
and deceleration injuries to the brain. Dr. Futterman explained
that the force necessary to cause these head injuries was
significant.

Dr. Futterman explained that the force of
gravity experienced by a fighter pilot in a tight turn might be
six and one half Gs, which could cause the pilot to black out,
but that the force applied to a child’s brain resulting in shaken
baby syndrome is between nine and one half and 350 Gs. Dr.
Futterman also testified that Olivia would have had an immediate
and obvious reaction to the forces that caused her injuries. She
would have been unconscious and may have developed seizures. Dr.
Futterman further testified that the one-sided seizures Olivia
experienced were consistent with focal seizures, which are
symptoms often caused by pressure being applied to the brain by a
subdural hematoma.

In the CAT scans, Dr. Futterman detected the
presence of an additional collection of fluid in the brain. This
other fluid could have been produced by trauma, a congenital
abnormality in the structure of the brain, an infection, or a
cystic hygroma. Dr. Futterman testified that the likelihood of
this older fluid contributing to the brain injury of April 30,
1998, was "zero." A full body x-ray taken of Olivia
when she was admitted to the hospital revealed no injuries to her
bones.

Fairfax Police Detective Irene Boyle
interviewed appellant, who told her that when Olivia arrived at
her home on April 30, she was "wide awake and perky."
Appellant claimed she fed Olivia bottles of breast milk and that
Olivia took a nap. Appellant also told Boyle that Olivia awoke
later, had another bottle, and played until about 4:00 p.m., when
she fell asleep. Appellant claimed Olivia remained asleep from
that time forward. Appellant also claimed Olivia behaved normally
throughout the day.

Initially, appellant told Detective Boyle that
Olivia was sleeping normally in her car seat when Mrs. Adelman
arrived and that nothing appeared to be wrong. When questioned
further, however, she stated she noticed Olivia twitching and
moaning when Mrs. Adelman arrived, and later admitted she saw the
twitching prior to Mrs. Adelman’s arrival. Appellant insisted
that no one else was near Olivia while in her care that day and
that Olivia was never out of her sight. Appellant denied hurting
Olivia.

II. ANALYSIS

In reviewing the sufficiency of evidence on
appeal, "the appellate court must examine the evidence and
all inferences reasonably deducible therefrom in the light most
favorable to the Commonwealth, the prevailing party in the trial
court." Commonwealth v. Jenkins, 255 Va. 516, 521,
499 S.E.2d 263, 265 (1998) (citations omitted). "We may not
disturb the trial court’s judgment unless it is ‘plainly wrong or
without evidence to support it.’" Barlow v. Commonwealth,
26 Va. App. 421, 429, 494 S.E.2d 901, 904 (1998) (quoting Beavers
v. Commonwealth
, 245 Va. 268, 282, 427 S.E.2d 411, 421
(1993)).

Furthermore, "[t]he credibility of the
witnesses and the weight accorded the evidence are matters solely
for the fact finder who has the opportunity to see and hear that
evidence as it is presented." Sandoval v. Commonwealth,
20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995) (citations
omitted). "In its role of judging witness credibility, the
fact finder is entitled to disbelieve the self-serving testimony
of the accused and to conclude that the accused is lying to
conceal his guilt." Marable v. Commonwealth, 27 Va.
App. 505, 509-10, 500 S.E.2d 233, 235 (1998) (citation omitted).

"When weighing the evidence, the fact
finder is not required to accept entirely either the
Commonwealth’s or the defendant’s account of the facts," but
"may reject that which it finds implausible, [and] accept
other parts which it finds to be believable." Pugliese v.
Commonwealth
, 16 Va. App. 82, 92, 428 S.E.2d 16, 24 (1993)
(citations omitted).

Appellant contends she was not the criminal
agent who inflicted the injury upon Olivia because no evidence
proved the time when Olivia’s symptoms first appeared or that
Olivia was with appellant immediately before the symptoms
appeared. Appellant contends the Commonwealth did not prove the
injury was inflicted between 1:00 p.m. and 5:00 p.m. on April 30,
1998, because the symptoms of brain injury only occurred after
Olivia was returned to her mother’s custody. Appellant asserts
that the left hand and leg movement seen at appellant’s home were
not seizure activity. Appellant further argues that the older
hematoma in the brain was caused at a time when appellant had no
access to Olivia.

The evidence belies appellant’s position. Ms.
Adelman testified that on the day of the injury, Olivia was in
good health when appellant assumed her care. Appellant
acknowledged Olivia was "awake and perky" at that time.
Appellant acknowledged no one else was near Olivia while in her
care on the day of the injury. According to appellant, Olivia was
never out of her sight that day.

Dr. Baugh testified Olivia would have been
"knocked out" immediately after sustaining the injury
to her brain. Dr. Futterman testified Olivia was the victim of
shaken baby syndrome, an injury caused by violent shaking that
results in severe acceleration and deceleration injuries to the
brain. The intensity of such shaking would preclude an accidental
shaking. He stated that Olivia would have had an immediate and
obvious reaction to her injuries. She would have been unconscious
and may have developed seizures.

When Ms. Adelman arrived at 5:00 p.m. to pick
up Olivia, the baby appeared to be sleeping but her left arm and
left leg were jerking. Appellant admitted the twitching began
before Ms. Adelman arrived. Dr. Baugh testified that Olivia’s
one-sided seizures indicated brain injury.

Dr. Futterman also addressed the old hematoma.
He opined it could have been caused by trauma, congenital
abnormalities in the structure of the brain, or infection. None
of the physicians attributed the present brain injury to the old
hematoma.

Further evidence indicated appellant was upset
with Olivia’s crying and constant need for attention. Appellant
was concerned that Olivia’s crying woke up other infants in her
care.

Appellant cites Christian v. Commonwealth,
221 Va. 1078, 277 S.E.2d 205 (1981), to support her sufficiency
argument. Christian, however, underscores the
Commonwealth’s position. In Christian, the appellant had
sole custody of her daughter until she sent the child to daycare
on the morning of November 29, 1979. See id. at
1082, 277 S.E.2d at 208. A daycare worker discovered the child’s
injuries. See id. However, at least five people had
an opportunity to handle the child before the child’s injuries
were discovered. See id. The Court wrote,
"[W]here 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." Id. The Court concluded the evidence was
insufficient to exclude a reasonable hypothesis that someone
other than the appellant was the criminal agent because at least
five people had the opportunity to handle the child from the time
she left her mother until her injuries were discovered. See
id. at 1083, 277 S.E.2d at 208.

In the present case, the fact finder could
properly conclude the child was injured after 1:00 p.m., when the
child was delivered to appellant, and prior to 5:00 p.m., when
Ms. Adelman picked up the child. Appellant concedes the child was
in good health when she arrived and testified Olivia was in
distress prior to Ms. Adelman’s arriving at 5:00 p.m. Based on
the medical testimony, the jury could conclude that the injury
immediately rendered the child unconscious and caused the child’s
left arm and left leg to shake. Appellant further testified that
Olivia was in her presence for the entire four-hour period and no
one else was near Olivia during that time.

Under the Christian analysis, Olivia was
criminally assaulted during the period appellant had sole custody
and control of the child. Therefore, we find the evidence
sufficient to support the jury’s finding that appellant was the
criminal agent who inflicted the life threatening injuries to
Olivia.

Appellant next contends the Commonwealth was
required to prove appellant intended to inflict the specific
injury suffered by Olivia.
[1] Appellant
further maintains the trial court erred in not granting an
instruction dealing with this element of proof.

Pursuant to Code ? 18.2-371.1, the
Commonwealth was required to prove beyond a reasonable doubt that
appellant, a person responsible for Olivia’s care, did by a
"willful act" cause a "serious injury to the life
or health of such child." Therefore, the Commonwealth had to
establish that appellant willfully shook Olivia and that the
shaking caused a serious injury to Olivia.

The requirement that the act be
"willful" does not mean, as appellant suggests, that
the Commonwealth was required to prove appellant intended to
injure Olivia or specifically intended to injure Olivia’s brain
or to blind her left eye. Rather, as this Court has held:

"Willful" generally means an act done
with a bad purpose, without justifiable excuse, or without ground
for believing it is lawful. The term denotes "’an act which
is intentional, or knowing, or voluntary, as distinguished from
accidental.’" The terms "bad purpose" or
"without justifiable excuse," while facially
unspecific, necessarily imply knowledge that particular conduct
will likely result in injury or illegality.

Ellis v. Commonwealth, 29 Va. App. 548,
554, 513 S.E.2d 453, 456 (1999) (citations omitted).

Therefore, the Commonwealth was required to
prove only that appellant knew her conduct would likely result in
serious injury.

The evidence satisfies the Commonwealth’s
burden of proving willfulness. Appellant, a professional daycare
provider, shook a five-month-old infant so violently as to cause
brain injury. Appellant’s spoken intent to force Olivia to
conform to her idea of an appropriate schedule would not justify
shaking her, nor would the crying of a five-month-old infant
justify such treatment. The jury was entitled to conclude from
the evidence that five-month-old Olivia did not conform to
appellant’s expectations for behavior and appellant responded by
brutally shaking her into submission. This finding is amply
supported by the evidence and is not "plainly wrong."

Finding that an intent to cause a serious
injury or any specific injury is not an element of the offense,
we further find that the trial court did not err in refusing to
grant an instruction on that issue.

Appellant’s final contention is that the trial
court erred in admitting into evidence during sentencing a letter
from Mr. and Mrs. Ladwig, which related that their child suffered
a "shaken baby syndrome" injury while in appellant’s
care. Assuming without deciding that the trial court erred in
admitting the Ladwigs’ letter into evidence, we find that any
error committed by the trial court was harmless. The trial court
received a number of positive letters regarding appellant’s
abilities as a child care provider, and, in admitting the
Ladwigs’ letter into evidence, stated, "I’m going to
consider it as a negative reference, the same way that I’m
considering all the positive references, but I am not going to
sentence your client for what she allegedly did to the Ladwigs’
child."

We find, therefore, the trial court only viewed
the Ladwigs’ letter as a negative reference and did not consider
it for the fact that appellant previously committed a similar
offense.

Appellant further contends the trial court is
bound by another judge’s ruling that the Ladwigs’ letter was
inadmissible. This argument was not raised at trial. "The
Court of Appeals will not consider an argument on appeal which
was not presented to the trial court." Ohree v.
Commonwealth
, 26 Va. App. 299, 308, 494 S.E.2d 484, 488
(1998) (citation omitted). Rule 5A:18 requires that objections to
a trial court’s action or ruling be made with specificity in
order to preserve an issue for appeal. See Campbell v.
Commonwealth
, 12 Va. App. 476, 480, 405 S.E.2d 1, 2 (1991) (en
banc). Accordingly, Rule 5A:18 bars our consideration of
this question on appeal. Moreover, the record does not reflect
any reason to invoke the "good cause" or "ends of
justice exceptions" to Rule 5A:18.

For these reasons, we affirm the judgment of
the trial court.

Affirmed.

FOOTNOTES:

[1] At trial, in objecting to
Commonwealth’s Instruction No. I, appellant argued the
Commonwealth must prove appellant intended to cause serious
injury. This issue was set forth in appellant’s Questions
Presented B and C. Yet, in her brief, appellant contends the
Commonwealth was required to prove appellant intended to inflict
the specific injuries sustained by Olivia.

Appellant’s motion to strike, made after the
conclusion of the Commonwealth’s evidence, challenged whether the
Commonwealth proved an intent to cause the child injury.
Appellant’s motion to set aside the verdict was based, in part,
on the Commonwealth’s failure to prove appellant intended the
results of her actions. In appellant’s amended motion, she
contended the trial court should have struck the evidence because
she did not intend the results of her actions, did not intend to
injure the child’s eyes and brain.

It is not clear whether appellant has abandoned
her claim of intent to cause serious injury and has substituted,
on appeal, an intent to inflict the specific injury to Olivia’s
brain and eyes. Because appellant’s position is not supported by
law on either point, we will not distinguish between them.

 

 

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