Virginia Lawyers Weekly VA Lawyers Weekly
Assuming a trial court erred in admitting a three-year-old child’s statements to his father that defendant, his mother’s boyfriend, had hit him, the statement was nearly identical to a statement the child made to a nurse, which was not excluded, and the error was harmless; the Court of Appeals affirms defendant’s conviction under Va. Code § 40.1-103.
Child’s statement
We assume without deciding that admitting the child’s statement to his father that defendant “hit me in the eye” was error. We further conclude it was nonconstitutional error under Va. Code § 8.01-678.
We find the alleged error was harmless because the challenged testimony was cumulative of other evidence at trial. It is clear that defendant objected to the admission of the statement the child made and thus preserved the question of whether such evidence should have been admitted for appellate review.
However, the nurse also testified that the child told her that defendant “hit me.” While defendant did object to that testimony as well, there is no clear record evidence that the trial court actually excluded the nurse’s testimony. The trial judge did not state a clear ruling on that objection on the record or in any written order. We find the trial court never actually ruled to exclude the nurse’s testimony. While it is clear the trial court found that the child’s statement to the nurse was not an excited utterance, it does not appear the trial court actually ruled that the statement was not made for the purposes of medical diagnosis or treatment. Defendant never informed the trial court that it had not fully ruled on his hearsay objection or asked the trial court for a more complete ruling.
Because the testimony of the nurse was not excluded, we hold that the challenged statement of the child to his father was simply cumulative of other evidence presented at trial.
Even if we assume without deciding that admission of the child’s statement to his father that defendant had hit him was error, we conclude the challenged testimony was merely cumulative of other, nearly identical testimony made and not excluded at trial. The evidence challenged on appeal was clearly not an essential element of the prosecution’s case when the trial court also did not exclude a nearly identical statement that the child had made to the nurse about who had struck him. We find that any error in admitting the father’s testimony was harmless.
Injury to face
Defendant also contends the child’s injuries were minor, he was not taken to the hospital immediately, and the injuries were not even observed immediately.
A physician testified that the injuries to the child’s face were caused by “nonaccidental trauma.” The nurse testified that she observed injuries on the child’s arm that looked like the child had been grabbed with force. She also testified that she found blood in the child’s mouth. Evidence established that the child was hit on both sides of his face with enough force to draw blood. Father also testified the child was very upset hours after leaving defendant’s custody.
A rational fact finder could have conclude that criminal negligence had been proven beyond a reasonable doubt.
Russell v. Commonwealth (Beales) No. 1361-16-1, Aug. 22, 2017; Newport News Cir.Ct. (Sugg) Barbara E. Rosenblatt, Sr. APD, for appellant; Aaron J. Campbell, AAG. VLW 017-7-204(UP), 11 pp.
