COMMONWEALTH OF VA v.
April 17, 1998
Record No. 971537
COMMONWEALTH OF VIRGINIA
ANTWAN R. JENKINS
OPINION BY JUSTICE BARBARA MILANO KEENAN
FROM THE COURT OF APPEALS OF VIRGINIA
Present: All the Justices
In this appeal of convictions of first degree murder and use
of a firearm in the commission of murder, we consider whether the
evidence was sufficient to prove that the victim died from
gunshot wounds inflicted by the defendant.
On May 21, 1995, in the City of Portsmouth, Antwan R. Jenkins
fired several gunshots at Kelly Jackson, inflicting three wounds.
Jackson was later taken to a hospital where he received medical
treatment for his injuries, including emergency surgery to repair
damage to his colon. Four days later, Jackson died while still in
Jenkins was indicted for unlawfully and feloniously killing
Jackson, in violation of Code ? 18.2-32, and for use of a
firearm in the commission of a felony, in violation of Code
? 18.2-53.1. During a jury trial, Dr. Faruk Presswalla,
Deputy Chief Medical Examiner for the Commonwealth, testified
that he performed an autopsy on Jackson and determined that
Jackson had sustained three gunshot wounds. One bullet entered
Jackson’s back and moved through the skin and muscles of the back
without penetrating any body cavity or vital organ. A second
bullet, which entered Jackson’s chest on the right side and
fractured a rib, did not injure any vital organ or structure. The
third bullet entered Jackson’s abdomen, ultimately perforating
Dr. Presswalla testified that Jackson had aspirated vomit, as
indicated by vomit found in Jackson’s "airway" and in
his lungs. Dr. Preswalla explained that the "vomit [went] up
and down into the airway, into his lungs." When asked
whether he had formed an opinion regarding the cause of Jackson’s
death, Dr. Presswalla stated that Jackson "died as a result
of this aspiration following the gunshot wound to the
Dr. Jeff Carney, a surgical resident who treated Jackson at
the hospital, testified that on May 25, 1995, he entered
Jackson’s room and noted that Jackson was markedly pale and was
sweating profusely. Dr. Carney then observed Jackson, who was
lying on his back, begin vomiting. After rolling Jackson onto his
side, Dr. Carney waited until the vomiting episode had ended. He
then placed Jackson on his back and observed that Jackson
"was in respiratory arrest or that he was not
breathing." Shortly thereafter, Jackson died.
Dr. Carney testified that Jackson appeared to have been
healthy before he sustained the gunshot wounds. Dr. Carney also
stated that, at the time of his death, Jackson might have had
"some type of seizure activity." Dr. Carney explained,
"I am not a neurologist, I simply base [the statement
regarding a possible seizure] on the opinion that [Jackson] had
some spastic movements in his extremities." Dr. Carney
stated that he could not offer an opinion whether Jackson
actually had suffered a seizure.
Jenkins introduced into evidence a typewritten discharge
summary, which was dictated and signed by Dr. Carney. On this
document, a handwritten notation entered in the top margin of the
first page stated:
Many Factors contributed to his death but all were result of
Gun Shot wound
Bowel injury and contamination
The record contains no testimony from any witness concerning
the origin of this handwritten notation. When Jenkins’ counsel
offered the document in evidence, he did not request that the
handwritten entry be excluded from the exhibit.
The jury found Jenkins guilty of first degree murder and fixed
his punishment at 23 years’ imprisonment. The jury also found
Jenkins guilty of use of a firearm in the commission of murder
and fixed his punishment for that offense at three years’
imprisonment. The trial court entered judgment in accordance with
the jury’s verdict. The Court of Appeals awarded Jenkins an
appeal from this judgment.
In the Court of Appeals, Jenkins argued that the evidence
failed to show beyond a reasonable doubt that any of the three
gunshot wounds he inflicted on Jackson was the cause of Jackson’s
death. The Court of Appeals agreed, holding that "the fact
finder had no way of determining whether Dr. Presswalla meant
that the aspiration was simply an unrelated event which
coincidentally occurred after the gunshot wound, or a result of
the gunshot wound with a causal relationship thereto." In an
unpublished opinion, the Court of Appeals acknowledged the
presence of the handwritten note on the discharge summary but
held that, because "[t]here is no indication in the record
of the source or author of this handwritten note
. . . . we can only speculate as to its origin,
authenticity, and authorship, and we are constrained by the
record before us to disregard it." The Court of Appeals
reversed Jenkins’ convictions and dismissed the indictments.
The Commonwealth filed a petition for appeal in this Court
pursuant to Code ?? 17-116.08 and 19.2-317(c). We
awarded the Commonwealth an appeal.
The Commonwealth argues that Dr. Presswalla’s testimony
provided sufficient evidence to prove that Jackson died from the
gunshot wounds inflicted by Jenkins. The Commonwealth also
contends that the handwritten notation on the discharge summary
constitutes further competent evidence to prove that Jackson died
as a result of the gunshot wounds. In addition, relying on Gallimore
v. Commonwealth, 246 Va. 441, 436 S.E.2d 421 (1993), the
Commonwealth argues that even if Jackson had a seizure prior to
his death, such an intervening event would not exonerate Jenkins
because any such seizure would have been "put into
operation" by Jenkins’ acts.
In response, Jenkins argues that the Commonwealth failed to
prove beyond a reasonable doubt that Jackson died from the
gunshot wounds. Jenkins asserts that Dr. Presswalla did not state
that the gunshot wounds caused Jackson to aspirate the vomit, and
that Dr. Carney’s testimony suggests that Jackson’s death may
have been caused by a seizure, rather than by the gunshot wounds.
Thus, Jenkins contends that the evidence was insufficient to
support his convictions. We disagree with Jenkins’ argument and
the conclusion reached by the Court of Appeals.
When a defendant challenges on appeal the sufficiency of the
evidence to sustain his convictions, it is the appellate court’s
duty to examine the evidence that tends to support the
convictions and to permit the convictions to stand unless they
are plainly wrong or without evidentiary support. Code
? 8.01-680; Tyler v. Commonwealth, 254 Va. 162,
165-66, 487 S.E.2d 221, 223 (1997); Goins v. Commonwealth,
251 Va. 442, 466, 470 S.E.2d 114, 130, cert. denied,
519 U.S. ___, 117 S.Ct. 222 (1996). If there is evidence to
support the convictions, the reviewing court is not permitted to
substitute its own judgment, even if its opinion might differ
from the conclusions reached by the finder of fact at the trial. Tyler,
254 Va. at 165-66, 487 S.E.2d at 223; Cable v. Commonwealth,
243 Va. 236, 239, 415 S.E.2d 218, 220 (1992); Avent v.
Commonwealth, 209 Va. 474, 477, 164 S.E.2d 655, 657 (1968).
Upon review, 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. Tyler, 254 Va. at 165-66, 487 S.E.2d at 223; Goins,
251 Va. at 466, 470 S.E.2d at 130; Sheppard v. Commonwealth,
250 Va. 379, 387, 464 S.E.2d 131, 136 (1995), cert. denied,
517 U.S. 1110 (1996). All evidence properly admitted at the trial
is subject to this review. See Tyler, 254 Va. at
165-66, 487 S.E.2d at 223; Carter v. Nelms, 204 Va. 338,
341, 131 S.E.2d 401, 403 (1963).
When a defendant has inflicted wounds upon a victim that
result in an affliction or a disease, the defendant is criminally
responsible for the victim’s death from that affliction or
disease if the wounds caused the death indirectly through a chain
of natural effects and causes. Spain v. Commonwealth, 7
Va. App. 385, 394-95, 373 S.E.2d 728, 733 (1988); see Gallimore,
246 Va. at 447, 436 S.E.2d at 425; Waller v. Commonwealth,
178 Va. 294, 307, 16 S.E.2d 808, 813 (1941). An intervening
event, even if a cause of the death, does not exempt the
defendant from liability if that event was put into operation by
the defendant’s initial criminal acts. Gallimore, 246 Va.
at 447, 436 S.E.2d at 425; see Coleman v. Blankenship
Oil Corp., 221 Va. 124, 131, 267 S.E.2d 143, 147 (1980); Baxley
v. Fischer, 204 Va. 792, 798, 134 S.E.2d 291, 295 (1964).
Here, the evidence showed that Jackson, the victim, was in
good health prior to being shot by Jenkins. Dr. Preswalla
testified that Jackson "died as a result of [the] aspiration
following the gunshot wound to the abdomen." Moreover, the
handwritten notation on the discharge summary, introduced into
evidence by Jenkins, stated that "[m]any factors contributed
to [Jackson's] death but all were [the] result of Gun Shot
wound." This evidence plainly supports the jury’s finding
that Jackson died as a result of the gunshot wounds inflicted by
Jenkins. Thus, the evidence was sufficient to prove the required
causal connection between Jenkins’ acts and the victim’s death. See
Gallimore, 246 Va. at 447, 436 S.E.2d at 425.
We find no merit in Jenkins’ argument that the handwritten
notation on the discharge summary was not competent evidence in
this case. When Jenkins’ counsel offered the document into
evidence, he did not request that the handwritten notation be
excluded from the proffered exhibit. Thus, as the proponent of
the discharge summary exhibit which was received in evidence,
Jenkins has waived any later objection to its consideration by
the trier of fact. See Rule 5:25; Frye v. Commonwealth,
231 Va. 370, 386, 345 S.E.2d 267, 279 (1986); Moore v.
Commonwealth, 211 Va. 569, 570, 179 S.E.2d 458, 460 (1971).
Since the handwritten notation on the discharge summary was
received without objection as evidence in the case, the Court of
Appeals erred in disregarding that portion of the exhibit in
reviewing the sufficiency of the evidence to support Jenkins’
convictions. A reviewing court must consider all evidence
properly admitted at trial in determining the sufficiency of the
evidence, not merely the evidence that the reviewing court
considers most trustworthy. See Tyler, 254 Va. at
165-66, 487 S.E.2d at 223; Avent, 209 Va. at 477, 164
S.E.2d at 657; Nelms, 204 Va. at 341, 131 S.E.2d at 403.
For these reasons, we will reverse the Court of Appeals’
judgment and reinstate Jenkins’ convictions in accordance with
the trial court’s judgment order.
Reversed and final judgment.
 These statutes allow the
Commonwealth to seek a writ of error if it is aggrieved by a
judgment of the Court of Appeals in any criminal case in which
the judgment is not made final under Code ?? 17-116.07 or