Present: All the Justices
SHIRLEY P. CORRELL
OPINION BY CHIEF JUSTICE LEROY R. HASSELL, SR.
v. Record No. 040746 January 14, 2005
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
I.
Shirley P. Correll was indicted by a Bedford County grand
jury for the murder of her incapacitated mother, Nellie S.
Paxton, and felonious abuse or neglect of Paxton that resulted
in serious bodily injury or disease to her in violation of
Code §§ 18.2-33 and -369. At the conclusion of a bench trial,
the circuit court acquitted Correll of the murder charge, but
convicted her of felony neglect.1 The court fixed her
punishment at two years in the penitentiary, suspended upon
the service of 30 days in jail. The Court of Appeals affirmed
the judgment of the circuit court, Correll v. Commonwealth, 42
Va. App. 311, 591 S.E.2d 712 (2004), and Correll appeals.
Correll challenges the sufficiency of the evidence to sustain
the conviction.
II.
1
At the conclusion of the guilt phase of the trial,
Correll retained a different attorney to represent her during
the sentencing phase and on appeal. Her new attorney
requested that the circuit court consider additional evidence
not presented during the guilt phase of the trial. The
circuit court denied this request.
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. Zimmerman v.
Commonwealth, 266 Va. 384, 386, 585 S.E.2d 538, 539 (2003);
Phan v. Commonwealth, 258 Va. 506, 508, 521 S.E.2d 282, 282
(1999).
Nellie Paxton lived in Bedford County. In 1991, she
began to lose weight, and she refused to eat. Dr. Donald B.
Nolan, a neurologist, examined Paxton that year. Six months
before her visit with Nolan, Paxton had experienced episodes
of confusion, "had passed out, and a CAT scan had shown that
she had possibly had a right-sided, right hemisphere stroke."
When Dr. Nolan examined her, he "was alarmed at her general
appearance." He suggested that a physician who practices
internal medicine examine Paxton. She was examined and
admitted to a hospital for treatment for weight loss and
anemia. Paxton's condition improved, and she gained weight.
Paxton was able to conduct her affairs.
In 1992, Dr. Nolan noted that Paxton "began to show signs
of Parkinson's disease." She also began to experience
hallucinations, and she may have had a form of dementia "which
mimics Alzheimer's and has Parkinson's as part of it."
2
Dr. Nolan did not monitor Paxton's nutritional status.
However, he testified that: "She always looked terrible. She
just was emaciated. And her appearance, that's just her. It
was her normal body habitus, I suppose. [Her physicians]
really never found a good cause for why she had lost the
weight when I first saw her. She was just a very skinny, thin
lady."
In 1997, Shirley Correll was appointed by the circuit
court as the legal guardian for her mother. That same year,
Paxton fell and broke her hip. She was admitted to a hospital
for treatment. The medical personnel who treated Paxton
explained to Correll and her sister, Carol P. Gray, that
Paxton "would need to be up and moving and not lying in bed"
to prevent complications such as pneumonia and decubiti.
Between 1997 and February 2000, Paxton continued to lose
weight. In January 2000, Dr. Adel Salama, a physician who
practices internal medicine, examined and treated Paxton. He
diagnosed her condition as advanced Parkinsonism, multi-
infarct dementia, hypertension, atrial fibrillation,
osteoarthritis, along with early stage 2 decubiti. Dr. Salama
described decubiti, commonly referred to as bedsores, as
follows:
"Decubiti is a break in the layer of the skin. And
there are four stages. One stage, first stage is
just redness in the skin. . . . [w]hich when you
3
push on it, it does not blanch. Stage 2, early
Stage 2 is a breakdown in the skin layers. It can
involve the epidermis, which is a superficial layer
of the skin, or it can go down to the dermis, which
is a deeper layer of the skin. Or Stage 3 is
involving the subcutaneous tissue under the skin.
And Stage 4 is involving down to the bone."
Paxton had one stage 2 decubitus that was located on her lower
back.
Dr. Salama prescribed the use of a Duoderm patch to treat
the decubitus. The Duoderm patch is a hydrochloride material
that is placed on the decubitus and helps the regeneration of
the skin cells. Dr. Salama spoke with Correll regarding the
care and health needs of Paxton, who was predisposed to
decubiti.
In January 2000, Dr. Salama did not observe any physical
signs or symptoms that indicated to him that Paxton was
malnourished. Her albumin was checked on January 17, 2000.
Paxton's albumin level was in the normal range of 3.8 to 5.2.
According to Dr. Salama, Paxton's albumin level indicated that
she had a "good nutritional status."
Dr. Salama told Correll to bring Paxton to his office for
another examination "[i]n six months. Earlier, if there is
any problem." Dr. Salama testified that he would have
expected to examine Paxton sooner than six months if Paxton
"lost more weight, if the decubiti is not getting better, and
so on." Even though Dr. Salama's office made an appointment
4
for him to examine Paxton in July 2000, "[t]hey called and
cancelled it." Dr. Salama stated: "I don't know who called
because I'm not the one who cancelled the appointment."
Carol Gray, who was estranged from her sister, Correll,
saw her mother in February 2000. Gray stated that Paxton
"looked worse. She lost a lot more weight." When Gray saw
her mother on Mother's Day in May 2000, Paxton had "lost more
weight. . . . She was beginning to really look bad." Gray
saw her mother again in August 2000. "She just had really
lost down until she was – looked like a skeleton. You know,
she was just really small." Gray next saw Paxton at a wedding
in September 2000. Her mother's condition had worsened.
On September 18, 2000, Correll made a telephone call to
Dr. Salama's office. Correll was very concerned about
Paxton's condition, and Dr. Salama's employees scheduled an
appointment for 2:30 that afternoon. Ten minutes after
Correll made this appointment, she decided to contact
emergency medical personnel so that her mother could be
transported immediately to the emergency room of a hospital.
Sherry W. Weeks, a certified emergency medical technician
and a member of the rescue squad in Bedford County, responded
to the Paxton residence. Paxton was seated at a kitchen
table. Weeks assessed her condition as follows:
5
"Immediately upon our arrival, [Paxton] was
severely dehydrated. . . . She was unresponsive,
other than to painful stimuli, which means that we
would basically have to pinch [her] before we could
get any response out of her at all. She was
severely dehydrated. Her eyes were very sunken in.
Her cheek bones were sunken. Just severely
dehydrated. Her pulse was low. Her blood pressure
was low. She was pretty close to going into shock."
Correll informed Weeks that "her mother had not eaten for
the last day and had gotten dehydrated." Weeks testified,
without objection, that her physical assessment of Paxton was
not consistent with the history that Correll had provided.
Weeks stated that "the condition that Ms. Paxton was in was
not consistent with only being dehydrated for a day." Dixie
Daniel, Paxton's primary nurse in the emergency room of
Carilion Roanoke Memorial Hospital, testified that Paxton's
"appearance, her thinness, the dryness of her skin is
something that you would usually see taking longer than two
days to occur." Daniel observed a decubitus on Paxton's right
hip, and she stated: "It ranked up there with some of the
worst ones that I've seen."
Dr. Salama treated Paxton at the emergency room of the
hospital. He testified that she had "advanced Parkinsonism,
dementia, dehydration, [and] cachexia." He defined cachexia
as undernutrition. Dr. Salama described Paxton's
undernutrition as "[v]ery severe." He stated that it was
6
unlikely that this degree of undernutrition would have
developed during the course of a weekend.
Paxton suffered moderate to severe dehydration, and she
had stage 3 and early stage 4 decubiti. Dr. Salama testified
that stage 3 decubiti developed "over days, weeks – to weeks,
but not hours or not 24. I don't think that I have ever seen
Stage 4 or Stage 3 decubiti developing over 48 hours." Paxton
also suffered from bacteremia, a condition in which bacteria
is present in the blood. The source of the bacteria may have
been the presence of decubiti on Paxton's body. The presence
of the bacteremia indicated to Dr. Salama that the decubiti
had not been treated properly.
Dr. Salama stated that Paxton's albumin level upon
admission to the hospital was 2.6. This level was a
significant and drastic change from Paxton's albumin level
that existed when Dr. Salama treated her in January 2000.
Paxton's low albumin level indicated that "she [was]
undernourished." Dr. Salama testified that Paxton's decubiti,
severe dehydration, and undernourishment posed a significant
threat to her life or health. He also stated that had Paxton
merely refused to eat or drink water for only two days, this
limited deprivation would not have affected her albumin level.
He said that "albumin [has] a long life. To make a change, it
needs twenty-one days."
7
Various nurses who rendered care to Paxton when she was a
patient in the hospital testified at trial. Tracy A. Mann
stated that Paxton's "condition upon admission . . . was
shocking. . . . She was morbidly emaciated and covered with
decubitus or bedsores." Mann testified, without objection,
that two of the decubiti present on Paxton's body would have
taken a month or more to develop because they were black in
appearance and "had hardened." Mann also testified without
objection that Paxton's "oral mucous membranes were dry and
her tongue was cracked, which is consistent with dehydration."
Mann stated that "[b]ased on her physical appearance, [Paxton]
was severely malnourished."
Correll informed Martha Anderson, a geriatric clinical
nurse who performed an assessment of Paxton, that Correll was
aware that her mother had decubiti, but that she did not know
how to use the Duoderm patch correctly. Anderson stated,
without objection, "I've seen a fair amount of bedsores in my
many years of nursing. And most Stage 3 ulcers have taken
months to develop, but certainly weeks. Weeks to months."
Anderson also testified without objection that Paxton's poor
physical health could have been prevented with proper
treatment.
Doris P. Jones, a registered nurse and a certified wound
care nurse, testified that if a patient does not receive
8
adequate nutrition, wounds will not heal. Jones stated
without objection that a patient with Paxton's medical
condition would not always develop decubiti and that Paxton's
decubiti were preventable.
Dr. Salama stated that Paxton's decubiti began healing
while she was in the hospital. Tracey Mann testified that
Paxton's decubiti started to heal within four days, as
indicated by "pinking around the margins" of the decubiti.
Martha Anderson testified that Paxton's nutritional status
improved from September 22nd to October 30th, as indicated by
an increase in Paxton's fatty tissue and the healing of the
skin around Paxton's decubiti.
Paxton was discharged from the hospital to a nursing home
on October 3, 2000, and her condition improved. Mark L.
Pittman, a nurse who rendered care to Paxton at the nursing
home, testified that Paxton was not able to feed herself and
that she was dependent upon others to assist her. Pittman
explained that Paxton ate food while in the nursing home, and
she interacted with the staff and assisted in her daily living
activities.
Paxton was transported to the hospital again on October
25, 2000 because a nursing assistant heard a "rattle" in her
chest. She was admitted to the hospital where she died of
pneumonia three days later.
9
Dr. William Massello, a forensic pathologist who is the
assistant chief medical examiner for western Virginia,
performed an autopsy upon Paxton's body. He testified that
her body "was extremely emaciated. She had virtually no fat
beneath her skin. Her bones were visible externally. She had
virtually no muscle that – no muscle mass that could be
observed." Dr. Massello stated that his findings during the
autopsy indicated that Paxton had experienced "a state of
chronic starvation." Paxton's lack of nutrition and food had
caused her body to "cannibalize its own tissue as a food
source. And the fat has been utilized and then some of the
important proteins of the body which give the body structure
such as the muscle have been utilized by the body for food."
Dr. Massello testified that his findings during the
autopsy were consistent with Paxton's condition on admission
to the hospital on September 18, 2000. Dr. Massello stated
that in his opinion, when Paxton was admitted to the hospital
on that date, she was experiencing "a severe case of
malnourishment." He testified within a reasonable degree of
medical probability that Paxton had been malnourished for at
least a few months before her admission to the hospital in
September 2000. He further explained he found no indication
that Paxton was physically unable to eat. Dr. Massello stated
that Paxton's cause of death was pneumonia due to corporeal
10
emaciation and inanition due to chronic starvation.
Continuing, Dr. Massello stated: "Emaciation is loss of mass.
Being very skinny and without, as I say, any fat or muscle.
And inanition is the state of weakness and debilitation caused
by the lack of proper nutrition." Finally, Dr. Massello
testified Paxton's undernourishment was not normal for a
patient of 83 years, even a patient with Parkinson's disease,
dementia, or Alzheimer's.
III.
Code § 18.2-369 states in relevant part:2
"A. It shall be unlawful for any responsible
person to abuse or neglect any incapacitated adult
as defined in this section. Any responsible person
who abuses or neglects an incapacitated adult in
violation of this section and the abuse or neglect
does not result in serious bodily injury or disease
to the incapacitated adult shall be guilty of a
Class 1 misdemeanor. Any responsible person who is
convicted of a second or subsequent offense under
this subsection shall be guilty of a Class 6 felony.
"B. Any responsible person who abuses or
neglects an incapacitated adult in violation of this
section and the abuse or neglect results in serious
2
Code § 18.2-369 was amended in 2001 and 2004. The
standard of felony liability for abuse or neglect that
"results in serious bodily injury or disease to the
incapacitated adult" set out in paragraph (A) of the statute
as it existed during the events in the year 2000 that form the
basis of the present prosecution, is unchanged and is now set
out in a separately numbered paragraph (B) of this Code
provision, and the definitions formerly in paragraphs (A) and
(B) have been renumbered in subparagraph (C) without
substantive change. We will use the current numbering in this
opinion.
11
bodily injury or disease to the incapacitated adult
shall be guilty of a Class 4 felony.
"C. For purposes of this section:
. . . .
" 'Neglect' means the knowing and willful
failure by a responsible person to provide
treatment, care, goods or services which results in
injury to the health or endangers the safety of an
incapacitated adult."
The circuit court concluded that the defendant knowingly
and willfully neglected her mother and that such neglect
resulted in serious bodily injury to her mother. Correll
argued in the circuit court and Court of Appeals, and she also
argues in this Court, that the evidence was not sufficient to
find her guilty of felony neglect of an incapacitated adult
resulting in serious bodily injury because there is no
evidence that she knowingly or willfully caused any injuries
or failed to provide treatment or care to her mother. We
disagree.
When a defendant contests the sufficiency of the evidence
on appeal, this Court must give the judgment of the circuit
court sitting without a jury the same weight as a jury
verdict. Commonwealth v. Duncan, 267 Va. 377, 384, 593 S.E.2d
210, 214 (2004); McCain v. Commonwealth, 261 Va. 483, 492, 545
S.E.2d 541, 547 (2001); Tarpley v. Commonwealth, 261 Va. 251,
256, 542 S.E.2d 761, 763 (2001); Hickson v. Commonwealth, 258
12
Va. 383, 387, 520 S.E.2d 643, 645 (1999). Additionally, this
Court has the duty to review the evidence that tends to
support the conviction and affirm the circuit court's judgment
unless it appears from the evidence that the judgment is
plainly wrong or without evidence to support it. Code § 8.01-
680; Duncan, 267 Va. at 384, 593 S.E.2d at 214; Jackson v.
Commonwealth, 267 Va. 178, 204, 590 S.E.2d 520, 535 (2004);
McCain, 261 Va. at 492-93, 545 S.E.2d at 547; Tarpley, 261 Va.
at 256, 542 S.E.2d at 763; Phan, 258 Va. at 511, 521 S.E.2d at
284.
The record before this Court clearly establishes that the
evidence was sufficient beyond a reasonable doubt to support
the conviction. Pursuant to Code § 18.2-369: " 'Neglect'
means the knowing and willful failure by a responsible person
to provide treatment, care, goods or services which results in
injury to the health or endangers the safety of an
incapacitated adult." Even though this Court has not
previously discussed the meaning of the word "willful" as used
in this statute, this Court has interpreted the meaning of the
word "willful" as used in Code § 18.2-371.1(B)(1), which is a
child abuse and neglect criminal statute. We stated:
"The statutory requirement that such conduct be
'willful' means that the conduct must be knowing or
intentional, rather than accidental, and be done
without justifiable excuse, without ground for
believing the conduct is lawful, or with a bad
13
purpose. See Bryan v. United States, 524 U.S. 184,
191-92 (1998); United States v. Murdock, 290 U.S.
389, 394-95 (1933); Ellis [v. Commonwealth, 29 Va.
App. 548, 554, 513 S.E.2d 453, 456 (1999)]. Thus,
the term 'willful,' as used in Code § 18.2-
371.1(B)(1), contemplates an intentional, purposeful
act or omission in the care of a child by one
responsible for such child's care."
Duncan, 267 Va. at 384-85, 593 S.E.2d at 214-15. Accord
Barrett v. Commonwealth, 268 Va. 170, 183, 597 S.E.2d 104,
110-11 (2004). This definition is equally applicable to Code
§ 18.2-369(B) and (C).
We hold that in the context of Code § 18.2-369, the word
"willful" describes conduct that must be knowing or
intentional, rather than accidental, and undertaken without
justifiable excuse, without ground for believing the conduct
is lawful or with a bad purpose. Thus, "willful," as used in
Code § 18.2-369, contemplates an intentional, purposeful act
or omission in the care of an incapacitated adult by one
responsible for that adult's care.
The evidence in the record before this Court establishes,
beyond a reasonable doubt, that Correll knowingly and
willfully failed to provide medical treatment to her
incapacitated mother. Dr. Salama had discussed Paxton's
medical condition with Correll in January 2000 and told her to
return to his office with her mother in six months or sooner
if Paxton's condition deteriorated. Paxton's condition
14
deteriorated. Without question, Paxton was incapacitated and
totally dependent upon her daughter, Correll.
Paxton's severe dehydration and chronic starvation may
have been caused by several factors: Paxton may have refused
to eat, she may have been unable to eat, or no one provided
nutrition to her. As a result of one or more of the
aforementioned factors, Paxton experienced severe starvation.
Dr. Salama described the decedent's undernutrition as "[v]ery
severe," and he concluded that it was unlikely that this
condition developed during the course of two days. In spite
of Paxton's malnutrition, irrespective of its cause, Correll
failed to seek treatment for Paxton even though Dr. Salama had
instructed Correll to bring Paxton to his office for treatment
if she experienced any problems.
The necrotic decubiti that were present on Paxton's body
had been there for at least a month before Correll sought
medical assistance, and the decubiti would not heal because
Paxton had not received adequate nutrition. Correll admitted
to a nurse that Correll was unable to properly apply treatment
to the decubiti. Yet, Correll did not seek medical treatment
for Paxton, although she was her court-appointed legal
guardian and under a duty to do so. As we have already stated
in Part II of this opinion, Dr. Massello stated within a
reasonable degree of medical probability that Paxton had been
15
malnourished for at least a few months prior to her admission
to the hospital in September 2000 and that her chronic
starvation, dehydration, and infected decubiti constituted a
serious threat to her health and safety. These facts, as well
as the other facts described in Part II of this opinion, are
more than sufficient to permit the fact finder to conclude
beyond a reasonable doubt that the defendant's conduct was
knowing and willful within the intendment of Code § 18.2-369.
The defendant's contention that her conduct did not
result in "Paxton suffering 'serious bodily injury or
disease' " is without merit. Code § 18.2-369 defines "serious
bodily injury or disease" as, among other things, "life-
threatening internal injuries or conditions, whether or not
caused by trauma." As we have already stated, Dr. Salama
testified that Paxton's severe dehydration, undernourishment,
and infected decubiti were conditions that imposed a
significant threat to her life or health. Dr. Massello
testified that Paxton suffered from chronic starvation and
that this condition, along with her dehydration and infected
decubiti, was a serious threat to her health and safety. Dr.
Massello also opined that Paxton died of pneumonia and that
the pneumonia was a foreseeable and expected consequence of
chronic starvation.
IV.
16
For the foregoing reasons, we will affirm the judgment of
the Court of Appeals.
Affirmed.
17