Virginia Lawyers Weekly VA Lawyers Weekly
A defendant who hit and kicked his mother and struck her with a hammer before she died argued that the commonwealth failed to prove he injured her in a way that was “permanent and significant.” There is no injury “more significant and permanent as one which causes a victim’s death,” and evidence in this case shows the injuries satisfied the standard required by the statute.
Background
On Dec. 11, 2015, appellant resided in the basement of Elizabeth Ellis, appellant’s mother. At about 5:10 a.m., Sergeant Christian Mireles and Deputy Gregory Gabrielli responded to a report of a person screaming outside in the area of Fagan Drive and Butler Road. They found appellant crouched down, rocking back and forth and covered in blood. After the police had detained and handcuffed him, appellant made rambling statements that he had hit and kicked his mother and that she was dead upstairs.
Gabrielli entered the house and found Ellis’ dead body on the floor of the bedroom. The lower portion of Ellis’ face was missing, and a hammer was sticking out of her throat. Ellis’ nightgown had been pushed up over her waistline. During a police interview, appellant repeatedly admitted that he had killed Ellis.
Dr. William Gormley supervised the autopsy upon Ellis’ body. He was unable to determine the order in which Ellis’ injuries were inflicted. However, all of the bruising would have occurred while Ellis was still alive. Gormley opined that the most lethal injury was to the brain, but he did not identify one injury as the sole cause of Ellis’ death. Instead, Gormley identified several injuries Ellis suffered that would have caused “loss of useful consciousness.”
Analysis
Appellant argues that the commonwealth failed to prove that he injured Ellis in a way that was “permanent and significant.” Appellant maintains that, for an injury to be considered permanent and significant, the commonwealth must prove that the victim survived it, for at least some period of time. According to appellant, because Gormley was unable to determine the order in which appellant inflicted the injuries to Ellis or precisely when she died, and because appellant’s statement to the police was not reliable concerning the point at which Ellis died, the evidence was insufficient to sustain the conviction of aggravated malicious wounding.
However, to accept appellant’s argument would be to read into Virginia Code § 18.2-51.2(A) an element of proof – survival of the injury for some specific interval of time – that the statute does not contain.
This court has found that to prove a physical impairment is permanent under Code § 18.2-51.2, “the Commonwealth need not present definitive testimony that a victim’s injuries will never improve” and that the determination of permanency is left to the “common sense of the [finder of fact].” In addition, we have found “permanent and significant” impairments to include visible scars and scars connected to nerve damage.
We can conceive of no injury more significant and permanent as one which causes a victim’s death. A fatal injury necessarily ends the victim’s life and, with it, the opportunity for recovery. In this case, Gormley found that Ellis had suffered numerous injuries that would have been fatal if inflicted in isolation.
A victim must survive, if only briefly, for an injury to be considered “permanent” within the context of Code § 18.2-51.2, and the evidence proved that Ellis remained alive during intervals of the attack. In addition, Gormley’s testimony supports the conclusion that there was at least one interval in the incident when Ellis remained alive.
Affirmed.
Ellis v. Commonwealth of Virginia, Record No. 0256-18-4, May 28, 2019. CAV (Haley) from Stafford Cir. Ct. (Levy). Joshua M. Parrett for Appellant, Kelsey M. Bulger for Appellee. VLW No. 019-7-098, 8 pp. Unpublished.
