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November 3, 2000
Record No. 992562
Present: All the Justices
DOUGLAS E. DOWDEN
COMMONWEALTH OF VIRGINIA
OPINION BY JUSTICE LEROY R. HASSELL, SR.
FROM THE COURT OF APPEALS OF VIRGINIA
Douglas E. Dowden was tried before a jury in
the Circuit Court of Loudoun County and convicted of the
involuntary manslaughter of his son, Dyvon Dowden. He was
sentenced in accordance with the jury’s verdict to serve 10
years’ imprisonment, and the circuit court suspended execution of
seven years of that sentence. The Court of Appeals affirmed the
circuit court’s judgment and, here, Dowden challenges the
sufficiency of the evidence to sustain his conviction.
Applying well-established principles of
appellate review, we will consider the evidence and all
reasonable inferences fairly deducible therefrom in the light
most favorable to the Commonwealth, the prevailing party below. Phan
v. Commonwealth, 258 Va. 506, 508, 521 S.E.2d 282, 282
(1999); Derr v. Commonwealth, 242 Va. 413, 424, 410
S.E.2d 662, 668 (1991).
The defendant and Tammy Lato were the unmarried
parents of Dyvon Dowden, a seven-month-old male baby who weighed
about 17 pounds. The baby and his parents lived in a house in
Loudoun County with several other occupants, including James
Reeder and his wife, Kim Reeder.
On July 6, 1997, Lato "put Dyvon to
bed" at approximately 8:00 p.m. in a portable playpen
located in a room that she shared with the defendant. Lato
testified that Dyvon was a "[p]erfectly healthy" baby
who could crawl, "stand up on things," walk on the
couch, and hold his own bottle. Dyvon was "perfectly
normal." Lato described Dyvon’s general physical condition
when she put him in the playpen as "[p]erfectly fine."
When she placed him in the playpen at 8:00 p.m., she gave him a
bottle of Pedialyte, which is a purple-colored liquid that her
pediatrician had recommended she give to the baby. The playpen
where she placed Dyvon was "an inch to two inches" away
from a bed where the defendant was sleeping.
Lato went to sleep in the bed with the
defendant about 1:30 a.m. on July 7, 1997. She awoke at
approximately 3:00 or 3:30 a.m. When she got out of the bed, she
could hear Dyvon moving in the playpen and making noise. As she
left the bedroom to go to a kitchen and prepare a bottle of baby
formula for Dyvon, there was nothing about his health that gave
her any concerns.
After Lato had prepared the baby’s bottle, she
returned to the bedroom and tried to give the bottle to Dyvon,
but he refused to take it. Dyvon, who was lying on his back, used
both hands to "push [the bottle] away three times."
Lato testified that after she tried to give Dyvon the bottle,
"he started to make a gasping sound. . . .
[j]ust like the air had been knocked out of him."
Lato "pulled Dyvon" out of the crib
and immediately noticed that "[h]is arms were limp" and
his skin "was cool." She placed the baby on the edge of
her bed, and she "checked him over." The baby continued
to "gasp" for air. She checked him because she was
afraid that he may have been "bitten by a spider." The
defendant, who Lato purportedly had awakened, also
"checked" the baby and "looked in [the baby's] mouth."
Lato told the defendant that she was going to
take Dyvon to a hospital. She left the bedroom and went to a
living room to get the baby’s car seat. The defendant picked up
the car seat and placed the car seat and the baby in the car.
Lato drove away in her car. The defendant did not accompany her,
and he returned to the house, but he did not inform any of the
other occupants of the house of the baby’s condition.
After Lato drove her car away from the house,
she realized that she did not know the location of a hospital.
She drove her car into the parking lot of a convenience store,
got out of her car, entered the store, and asked an attendant for
the location of a hospital. The attendant told her to "go
across the street to the rescue center."
Lato returned to her car and drove across the
street to the Sterling Volunteer Fire Department. She knocked on
the door, and Stacy Dawson, a volunteer with the Sterling
Volunteer Fire Department, responded. Dawson, who had been
trained and certified to perform cardiopulmonary resuscitation
(CPR), but had let her certification lapse because she had been
out of the United States, placed the baby on the floor and began
to perform CPR.
Dawson testified that the baby "was
absolutely just the whitest" baby she had ever seen, and the
baby "looked like a doll." The baby "was very,
very pale, almost yellowish but [had] no color in it. And the
[baby's] eyes were closed . . . ." Dawson
also noticed that the baby "was very cold." Dawson
lifted the baby out of the car seat, and he was "totally
limp, just like a doll." She saw no movement in the baby,
and he made no sounds. The baby did not have a discernable
heartbeat, chest movement, or pulse.
While the emergency response personnel were
trying to resuscitate the baby, Lato made a telephone call to the
house where she lived and spoke with Kim Reeder, the defendant’s
sister-in-law. Kim Reeder informed the defendant’s half-brother,
James Reeder, that Lato had taken the baby to a fire station.
James Reeder directed his wife to inform the defendant so that
they could go to the station and be with Lato and the baby.
Richard Laughlin, a cardiac technician with the
Sterling Rescue Squad, also described the condition of the baby
that morning. He stated that the baby was "very white or
ashen, or what I term ‘china doll’ appearance . . .
[t]here was no eye movement, and it was a very limp infant, no
movement at all." Laughlin examined the baby and concluded
"that the [baby] was dead and [that Laughlin] needed to
start trying to revive him."
Laughlin tried to intubate the baby, but the
baby’s airway was blocked. The baby was given a mask which was
used to push oxygen through the mouth into the baby’s lungs. Mike
DePine, another emergency technician, administered "five
blows" to Dyvon’s back in an effort to clear his airway.
When DePine administered "the blows," fluid emitted
from the baby’s mouth. A second set of five "blows" was
administered to the baby’s back, and additional fluid was
emitted. Dyvon was taken to a hospital, and further efforts were
made to resuscitate him. Eventually, Dyvon was declared dead.
James Reeder testified that when he returned
from the hospital, he "was searching for a reason why a
perfectly healthy baby could go to sleep at night and wake up and
all of a sudden be dead." Two days after the baby’s death,
he spoke with the defendant about what might have happened.
Reeder testified as follows:
"Q: On the second day after Dyvon’s death,
did you have occasion to ask or do you recall whether or not you
asked [the defendant] what happened?
"A: Yes, I did.
"Q: What answer did you get?
"A: I got — he says he wasn’t sure,
he didn’t know, that he might have, you know, he says — he
wanted to know if he kicked the crib or something that —
what would that be. And I said, well, you know, that would be
some form of manslaughter because we come back from his lawyer’s
office when we discussed about that. And he said — I said it
would be some type of manslaughter. And then he says, well, no
matter what it is, I’m not going to let Tamm[y] take the fall,
and that was all he said.
"Q: Did he ever explain what he meant by
that by not going to let Tamm[y] take the fall?
"A: No. I asked him. He’s a very quiet
individual and he wouldn’t say.
"Q: Did there come a point in time when he
indicated to you that if he kicked the [baby], he didn’t know it?
"A: No, I don’t think he did. I think he
might have stated that he could have kicked it, but I don’t think
he said he did kick it. He said he was just — I don’t know
what he was asking and why he was making a statement like that
when he said it. It just baffled me.
"Q: The statement that baffled you was?
"A: Why he would ask, you know, if [he] kicked the baby —
"Q: What is the charge?
"A: Yes, what would that be. And, you
know, I don’t understand that, and then I really didn’t
understand why he said he would cover for her.
. . . .
"Q: My question is did there come a point
in time on the second or third day when you had a conversation
with [the defendant] that he used the word ‘hypothetical’?
"Q: Would you please, as best you recall,
what did he say?
"A: He said, hypothetically, if I kicked
the crib, what would that be, and that was his statement.
"Q: James, you indicated, I believe, in
your testimony that you were mad or upset with [the defendant]?
"A: I was upset with both of them, very. I
. . . .
"Q: Did you ever accuse [the defendant] of
doing anything to the [baby]?
"A: Being involved with what happened in
"Q: What if any response did you get?
The Reverend Charles E. Grant, an emergency
medical technician chaplain, had a conversation with the
defendant at the hospital on the morning of July 7, 1997. Grant
and the defendant were in a room while the hospital’s emergency
room personnel were trying to revive the baby. During the
conversation, the defendant told Grant that the defendant was
holding Dyvon and that the baby was alive when Lato prepared the
baby’s bottle of formula earlier that morning. Grant testified
that the defendant’s statement was unusual "because
everything the mother had said up to then led us to believe that
she was the only one awake when she ran out of the house with the
baby, and I thought that was unusual." During defense
counsel’s cross-examination of Grant, the following exchange
"Q: Now, the statement that [the
defendant] made to you, do you recall the exact words that he
said, not the impression that you had, not the time frame you
thought, the words that came out of his mouth?
"A: I’m positive that he said something to
the effect that he held the baby while [the mother] was getting
the bottle, and that I know for sure because it stood out in my
mind . . . ."
Dr. Frances Patricia Field, assistant chief
medical examiner for the Northern Virginia District of the
Medical Examiner’s Office, performed an autopsy on Dyvon’s body.
She qualified at trial as an expert witness on the subject of
forensic pathology. She stated that the baby’s brain was swollen
and that "[t]here was a one-quarter inch flap, long
laceration or tearing of the spleen on the upper half of the
inner surface of the spleen. That tear went into the tissue of
the spleen to about one-eighth inch deep." The rupture of
the spleen was sufficient to cause the baby’s death.
Dr. Field also testified that the baby suffered
three bruises to his thymus, bruises to the heart and lungs, and
an injury to the front wall of the urinary bladder. Dr. Field
stated that upon her examination of the baby’s liver,
"[t]here was a one-half inch full thickness laceration or
tearing of the tissue of the liver. Full thickness means all the
way through from front to back. The left lobe of the liver —
it also tore in that same region a branch of the portal
Dr. Field testified that all the baby’s
injuries were caused by blunt force trauma, and the injuries
occurred "at essentially the same time." Dr. Field
opined that the baby’s injuries could not have been caused by
Dr. Robin Foster, a professor of pediatrics at
the Medical College of Virginia and director of the Pediatric
Emergency Services and director of the Child Protective Team at
the Medical College of Virginia, qualified as an expert witness
in pediatric emergency care and pediatrics. She testified that
the cause of the baby’s death was consistent with severe blunt
force trauma and that the baby’s death was not related to the
CPR. She gave the following testimony:
"Q: Is there anything in the documents or
photographs that you reviewed that would lead you to believe that
these injuries could have been caused by CPR?
"A: No, sir.
"Q: No, sir, what?
"A: No, sir, the pattern of injury is not
consistent with the injuries being caused by CPR."
Dr. Jack Daniel, who qualified as an expert
witness on the subject of forensic pathology, testified that he
had never seen a lacerated liver caused by CPR. He stated,
"I have seen a CPR related injury using a
thumper, which is what that external device is, that was as bad
as that in an adult, an elderly person, but I have never seen
— number one, I’ve never seen a laceration in a liver that
was due to CPR. Number two, I have never heard of it, and I
haven’t found looking at the literature, and I have searched
extensively in trying to find such lacerations, and I have also
spoken to the author of an article specifically on this subject,
that is CPR related injuries in children, and neither he nor his
colleagues have heard of such an injury occurring in a child. And
all of that put together makes me very, very confident in saying
that I just can’t attribute this injury to CPR."
Dr. Daniel also testified that the bruise to
the baby’s urinary bladder could not have been caused by the
administration of CPR.
The defendant denied that he killed his son. He
also testified that he did not strike his son. The defendant
claimed that he was asleep when Lato prepared the bottle of baby
formula for the baby, and that the Reverend Grant was incorrect
when he testified that the defendant said that he was holding the
baby when Lato prepared the baby’s formula. The defendant also
adduced expert testimony that the baby’s injuries were caused by
the administration of CPR.
The defendant asserts that the evidence is
insufficient to support his conviction for involuntary
manslaughter. The defendant argues that the Commonwealth failed
to exclude every reasonable hypothesis of innocence and that his
conviction is based upon a suspicion or probability of guilt. We
disagree with the defendant’s contentions.
We will apply the following principles of
appellate review to our resolution of this appeal:
"Where the sufficiency of the evidence is
challenged after conviction, it is our duty to consider it in the
light most favorable to the Commonwealth and give it all
reasonable inferences fairly deducible therefrom. We should
affirm the judgment unless it appears from the evidence that the
judgment is plainly wrong or without evidence to support it
. . . [Code ? 8.01-680]."
Black v. Commonwealth, 222 Va.
838, 841, 284 S.E.2d 608, 610 (1981) (quoting Higginbotham
v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537
(1975)); accord Phan, 258 Va. at 511, 521 S.E.2d at
284. Additionally, when a defendant challenges the sufficiency of
the evidence, " ’[i]f there is evidence to sustain the
verdict, this Court should not overrule it and substitute its own
judgment, even if its opinion might differ from that of the
jury.’ " George v. Commonwealth, 242 Va.
264, 278, 411 S.E.2d 12, 20 (1991) (quoting Snyder v. Commonwealth,
202 Va. 1009, 1016, 121 S.E.2d 452, 457 (1961)), cert. denied,
503 U.S. 973 (1992).
We have also stated that:
"When the evidence is wholly
circumstantial . . . all necessary circumstances proved
must be consistent with guilt and inconsistent with innocence and
exclude every reasonable hypothesis of innocence. The chain of
necessary circumstances must be unbroken. Nevertheless, it is
within the province of the jury to determine what inferences are
to be drawn from proved facts, provided the inferences are
reasonably related to those facts."
Inge v. Commonwealth, 217 Va.
360, 366, 228 S.E.2d 563, 567-68 (1976). And, circumstantial
evidence is competent and is entitled to as much weight as direct
evidence provided that the circumstantial evidence is
sufficiently convincing to exclude every reasonable hypothesis
except that of guilt. Coleman v. Commonwealth, 226
Va. 31, 53, 307 S.E.2d 864, 876 (1983), cert. denied, 465
U.S. 1109 (1984). The Commonwealth, however, is not required to
exclude every possibility that others may have committed the
crime for which a defendant is charged, but is only required to
exclude hypotheses of innocence that flow from the evidence. Goins
v. Commonwealth, 251 Va. 442, 467, 470 S.E.2d 114, 130, cert.
denied, 519 U.S. 887 (1996); Spencer v. Commonwealth,
238 Va. 275, 283-84, 384 S.E.2d 775, 779 (1989), cert. denied,
493 U.S. 1036 (1990); Fordham v. Commonwealth, 13
Va. App. 235, 239, 409 S.E.2d 829, 831 (1991).
Applying the aforementioned principles, we hold
that the evidence, though circumstantial, establishes the
defendant’s guilt beyond a reasonable doubt and excludes
hypotheses of innocence that flow from the evidence. The jury
could have inferred from the evidence that the defendant was
awake when Lato left the bedroom to prepare the baby’s bottle and
that the defendant kicked or hit the baby, thereby injuring him.
When the mother left the bedroom to prepare the bottle of baby
formula, the baby was "fine." When the mother returned
with the bottle of formula, the baby was gasping "[j]ust
like the air had been knocked out of him." No one was with
the baby during that interval except for the defendant, who was
As we have already stated, the defendant asked
his half-brother, James Reeder, what crime the defendant might be
charged with if the defendant kicked the crib where the baby was
located. The defendant also told Reeder that the defendant
"could have kicked it." And, when Reeder accused the
defendant of "doing something" to the baby, the
defendant refused to respond. In our jurisprudence, the
defendant’s failure to respond constitutes an implied admission.
We have held:
"[W]hen a statement tending to incriminate
one accused of committing a crime is made in his presence and
hearing and such statement is not denied, contradicted, or
objected to by him, both the statement and the fact of his
failure to deny are admissible in a criminal prosecution against
him, as evidence of his acquiescence in its truth. The basis of
such rule is that the natural reaction of one accused of the
commission of a crime or of implication therein is to deny the
accusation if it is unjust or unfounded."
Owens v. Commonwealth, 186 Va.
689, 698, 43 S.E.2d 895, 899 (1947); accord Tillman
v. Commonwealth, 185 Va. 46, 56, 37 S.E.2d 768, 773
The medical testimony adduced by the
Commonwealth, when considered with other evidence, establishes
that the defendant perpetrated the criminal acts. Dr. Field
testified that the baby’s injuries were caused by blunt force
trauma and that the injuries occurred essentially at the same
time. The injuries were caused before the baby’s death and were
not caused by the administration of the CPR. The defendant’s own
expert witness, Dr. John E. Adams, a forensic pathologist,
testified that the baby’s injuries were "consistent with a
severe beating." Dr. Daniel testified that he had neither
seen nor read about a laceration to a baby’s liver caused by the
administration of CPR. As we have already noted, Dr. Daniel
testified that he was "very, very confident in saying that
[he] just can’t attribute this injury to CPR."
The only hypothesis of innocence based upon the
evidence in this record is that the baby’s injuries may have been
caused when the emergency response personnel administered the
CPR. However, the Commonwealth presented evidence, beyond a
reasonable doubt, that the baby’s injuries were caused by the
defendant, not by the administration of CPR. And, the evidence of
record indicates beyond a reasonable doubt that the baby
exhibited symptoms of injuries before anyone administered CPR to
Moreover, the jury was not required to believe
the defendant’s explanation, and if that explanation is not
believed, the jury may infer that the accused is lying to conceal
his guilt. Phan, 258 Va. at 511, 521 S.E.2d at 284; Black
v. Commonwealth, 222 Va. at 842, 284 S.E.2d at 610; Toler
v. Commonwealth, 188 Va. 774, 782, 51 S.E.2d 210, 214
(1949); Speight v. Commonwealth, 4 Va. App. 83, 88,
354 S.E.2d 95, 98 (1987) (en banc).
We hold that the evidence of record, when
considered as a whole, is sufficient to support the jury’s
finding that the defendant was guilty of involuntary
manslaughter. "While no single piece of 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.’ " Stamper v.
Commonwealth, 220 Va. 260, 273, 257 S.E.2d 808, 818 (1979)
(quoting Karnes v. Commonwealth, 125 Va. 758, 764,
99 S.E. 562, 564 (1919)), cert. denied, 445 U.S.
972 (1980); accord Derr, 242 Va. at 425, 410 S.E.2d
The defendant argues that the evidence failed
to establish that he acted with gross negligence. The defendant
says that the "only evidence introduced regarding the
possibility that [he] kicked Dyvon came from an exchange between
[the defendant] and his brother." We disagree with the
We have defined involuntary manslaughter
"as the accidental killing of a person, contrary to the
intention of the parties, during the prosecution of an unlawful,
but not felonious, act, or during the improper performance of
some lawful act." Gooden v. Commonwealth, 226
Va. 565, 571, 311 S.E.2d 780, 784 (1984); accord Beck
v. Commonwealth, 216 Va. 1, 4, 216 S.E.2d 8, 9-10 (1975); Mundy
v. Commonwealth, 144 Va. 609, 615, 131 S.E. 242, 244
The jury was instructed that if it found that
the Commonwealth proved beyond a reasonable doubt that the
defendant killed Dyvon Dowden and "[t]hat the killing,
although unintended, was the direct result of negligence
accompanied by carelessness so gross, wanton and culpable as to
show a callous disregard of human life," then the jury could
find that the defendant was guilty of involuntary manslaughter.
The extensive medical evidence, which we have already summarized,
established that the baby’s injuries were caused by blunt force
trauma unrelated to the administration of CPR. The evidence of
record established, beyond a reasonable doubt, that the defendant
killed Dyvon Dowden by either kicking him or delivering a severe
blow to his body, and the jury was entitled to infer from those
acts that the killing, although unintended, was the direct result
of negligence accompanied by carelessness so gross, wanton, and
culpable that it showed a callous disregard for the baby’s life.
Finding no merit in the defendant’s
contentions, we will affirm the judgment of the Court of Appeals.