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Present: Judges Frank, McClanahan and Senior Judge Coleman

Argued at Richmond, Virginia

Record No. 2450-02-2






NOVEMBER 25, 2003


George F. Tidey, Judge

Christopher L. Anderson (Michael N. Herring; The McEachin Law

Firm, P.C.; Bricker & Herring, on brief), for appellant.

Steven A. Witmer, Assistant Attorney General (Jerry W. Kilgore,

Attorney General, on brief), for appellee.

Orlando Lawrence Covington, Sr. appeals his bench trial
conviction for second-degree

murder. He argues the evidence is insufficient to support his
conviction because it fails to prove

malice or an intent to harm. For the reasons that follow, we
disagree and affirm the trial court’s



"On appeal, ‘we review the evidence in the light most
favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible
therefrom.’" Archer v. Commonwealth,

26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation

So viewed, the evidence proved that on Friday afternoon,
November 30, 2001,

three-year-old Jordan Nelson left his babysitter’s house to
spend the weekend with Covington, a

friend of the family. As previously arranged by Tracie Nelson,
Jordan’s mother, Covington was

going to babysit over the weekend and assist in toilet training
the toddler. Tracie Nelson testified

Jordan was in good health Thursday night and that she noticed no
bruises or injuries on Jordan’s

body when she dressed him Friday morning. Brenda Whitaker,
Jordan’s babysitter, testified

Jordan did not display any signs of injury or illness on
November 30 before Covington picked

him up at her house. Nahir Perez, Jordan’s pre-school teacher,
also testified she did not observe

any injuries on Jordan that day.

According to Covington, after he picked up Jordan from Whitaker’s
house they went to

church. Covington testified that while there Jordan fell and
sustained a rug burn to his face.

Lieutenant Chris Jones testified that in response to an
emergency call from Covington, he

arrived at Covington’s house during the early morning hours of
December 2, 2001. Covington

was downstairs when Jones arrived, and Jordan was upstairs
having a seizure on the floor. Chris

Wiggins, an EMS provider, testified Covington indicated Jordan
had had two to three seizures

during the previous two hours. As Wiggins removed Jordan’s
clothing to examine the child, he

noticed multiple contusions to the right side of Jordan’s
skull, his chin, left shoulder, sternum,

chest, clavicle, and both legs. Wiggins later encountered
Covington in the hospital waiting

room. Wiggins heard Covington state that Jordan’s mother,
Tracie, was out of town and

unavailable. Officer Floyd Boswell, who was working in an
off-duty capacity at the hospital

when Covington arrived with Jordan, also heard Covington tell
the nurses he could not contact

Jordan’s mother.

Forensic nurse examiner Kim Wieczorek testified Jordan’s
injuries were consistent with

blunt force trauma from an external force. She noted Jordan also
had sustained abrasions on his

ankle and genital injuries. She opined it was unlikely Jordan
could have sustained the brain

injuries on Friday night at the church, as suggested by

Dr. William Shafer examined Jordan in the emergency room. Shafer
testified that based

upon Jordan’s cluster of injuries he suspected the boy had
been abused and suffered, in part,

from Shaken Baby Syndrome. Shafer opined all of Jordan’s
injuries, with the exception of the

facial abrasion, occurred contemporaneously.

Social worker Gretchen Icard interviewed Covington at the
hospital. Covington initially

told Icard only that Jordan sustained a rug burn to his face on
Friday night, that he spent all day

Saturday with the child, and stopped at a store on the way home
that evening. After the extent of

Jordan’s injuries were ascertained and reported to Covington,
Covington contacted Icard and

stated that Jordan had also fallen while skateboarding at the
store, that he hit his head on the

floor, but appeared fine the rest of the night.

Dr. Marcella Fierro testified Jordan died from blunt force
trauma to his head. Fierro

explained Jordan suffered from severe subarachnoid and subdural
hemorrhaging from the

injuries to his head. He had bruises on his face, ear and eye
and a large bruise on his cheek. She

identified seven points of impact on the victim’s head and
explained loss of consciousness and

seizures were among the symptoms typically caused by such
injuries. She described numerous

pattern injuries over Jordan’s body and opined they were
consistent with being hit with a

hairbrush. Fierro also identified significant traumatic injuries
to Jordan’s scrotum and penis.

There were several linear abrasions consistent with scratch
marks on the bottom of the scrotum.

Fierro stated these injuries were caused by blunt force trauma,
probably squeezing. The injuries

to the scrotum and penis were fresh and had been inflicted
within hours to one day from the time

of Jordan’s death. Jordan also suffered extensive internal
injuries, likely caused by blunt force

trauma to Jordan’s abdominal area. She further testified the
severity and extent of Jordan’s head

and other injuries could not have been caused by falling at the
church or at the store, as described

by Covington.

Dr. Robin Foster testified children are often abused during the
course of "potty training,"

and the injuries to Jordan’s genital area did not appear
accidental but instead were consistent

with inflicted injuries.


Covington asserts the Commonwealth failed to establish he acted
with malice or an intent

to harm the child.

"Second degree murder is defined as a ‘malicious killing’
of another person." Lynn v.

Commonwealth, 27 Va. App. 336, 351, 499 S.E.2d 1, 8 (1998)
(citation omitted), aff’d,

257 Va. 239, 514 S.E.2d 147 (1999). Second-degree murder does
not require a specific intent to

kill. See Rhodes v. Commonwealth, 238 Va. 480, 486, 384 S.E.2d
95, 98 (1989). The

Commonwealth must merely prove "‘a malicious purpose to
do the deceased a serious personal

injury or hurt.’" Id. (quoting Dock’s Case, 62 Va. (21
Gratt.) 909, 913 (1872)). Two factors

which the trier of fact may consider, among others, in
determining the existence of malice

include the disparity in size between the assailant and his
victim and the brutality of the assault.

See Epperly v. Commonwealth, 224 Va. 214, 231, 294 S.E.2d 882,
892 (1982).

The evidence established Jordan was in good health and without
physical injuries up until

the time Covington called for him at the babysitter’s house.
However, after spending the

weekend with Covington, Jordan had suffered numerous severe
injuries which resulted in his

death after his arrival at the hospital. Furthermore, Covington
provided inconsistent statements

and reported he had no way of contacting Jordan’s mother
because she was out of town when, in

fact, she was at home and could have been contacted by
telephone. Covington provided

implausible accounts of how Jordan could have received such
severe and extensive injuries.

Based upon the medical evidence, the fact finder could infer
that the injuries had been

intentionally inflicted. The evidence indicated the injuries
were inflicted when Jordan was in the

sole and exclusive custody of Covington. "When a conviction
is based upon circumstantial

evidence, such evidence ‘is as competent and is entitled to as
much weight as direct evidence,

provided it is sufficiently convincing to exclude every
reasonable hypothesis except that of guilt.’"

Hollins v. Commonwealth, 19 Va. App. 223, 229, 450 S.E.2d 397,
400 (1994) (citation omitted).

"The Commonwealth need only exclude reasonable hypotheses
of innocence that flow from the

evidence, not those that spring from the imagination of the
defendant." Hamilton v.

Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993).

Covington was responsible for Jordan while the child was in his
care and confirmed that he

had exclusive custody of and was with the child the entire time
that he picked him up from his

mother until when he took the child to the hospital. Covington
testified Jordan received his injuries

from a fall at church and from falling off a skateboard in a
store on the evening of November 30.

He explained that the following day he attended a parade with
Jordan and claimed Jordan began

having seizures during the early morning hours on December 2, at
which time he contacted the

police. However, Foster testified that had a child sustained the
injuries Jordan exhibited on Friday

night as claimed by Covington, the child would not have been
able to go to a parade, eat out, or go

shopping the following day. Additionally, Foster explained
Jordan’s extensive injuries were

"consistent with inflicted, intentional non-accidental

"Intent in fact is the purpose formed in a person’s mind,
which may be shown by the

circumstances surrounding the offense, including the person’s
conduct and his statements. And a

person is presumed to intend the immediate, direct, and
necessary consequences of his voluntary

act." Nobles v. Commonwealth, 218 Va. 548, 551, 238 S.E.2d
808, 810 (1977) (citation omitted).

The extent and severity of Jordan’s injuries, combined with
the vast disparity in size between

Covington and his victim, were sufficient for the court, sitting
as fact finder, to conclude that

Covington maliciously inflicted the injuries to Jordan with the
intent to cause the boy serious

physical harm. The Commonwealth’s evidence was competent, was
not inherently incredible, and

was sufficient to prove beyond a reasonable doubt that Covington
was guilty of second-degree


Accordingly, we affirm the decision of the trial court.




[1]Pursuant to
Code ? 17.1-413, this opinion is not designated for publication.