Present: All the Justices
DOUGLAS E. DOWDEN
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 992562 November 3, 2000
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
Douglas E. Dowden was tried before a jury in the Circuit
Court of Loudoun County and convicted of the involuntary
manslaughter of his son, Dyvon Dowden. He was sentenced in
accordance with the jury's verdict to serve 10 years'
imprisonment, and the circuit court suspended execution of
seven years of that sentence. The Court of Appeals affirmed
the circuit court's judgment and, here, Dowden challenges the
sufficiency of the evidence to sustain his conviction.
I.
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. Phan v.
Commonwealth, 258 Va. 506, 508, 521 S.E.2d 282, 282 (1999);
Derr v. Commonwealth, 242 Va. 413, 424, 410 S.E.2d 662, 668
(1991).
The defendant and Tammy Lato were the unmarried parents
of Dyvon Dowden, a seven-month-old male baby who weighed about
17 pounds. The baby and his parents lived in a house in
Loudoun County with several other occupants, including James
Reeder and his wife, Kim Reeder.
On July 6, 1997, Lato "put Dyvon to bed" at approximately
8:00 p.m. in a portable playpen located in a room that she
shared with the defendant. Lato testified that Dyvon was a
"[p]erfectly healthy" baby who could crawl, "stand up on
things," walk on the couch, and hold his own bottle. Dyvon
was "perfectly normal." Lato described Dyvon's general
physical condition when she put him in the playpen as
"[p]erfectly fine." When she placed him in the playpen at
8:00 p.m., she gave him a bottle of Pedialyte, which is a
purple-colored liquid that her pediatrician had recommended
she give to the baby. The playpen where she placed Dyvon was
"an inch to two inches" away from a bed where the defendant
was sleeping.
Lato went to sleep in the bed with the defendant about
1:30 a.m. on July 7, 1997. She awoke at approximately 3:00 or
3:30 a.m. When she got out of the bed, she could hear Dyvon
moving in the playpen and making noise. As she left the
bedroom to go to a kitchen and prepare a bottle of baby
formula for Dyvon, there was nothing about his health that
gave her any concerns.
After Lato had prepared the baby's bottle, she returned
to the bedroom and tried to give the bottle to Dyvon, but he
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refused to take it. Dyvon, who was lying on his back, used
both hands to "push [the bottle] away three times." Lato
testified that after she tried to give Dyvon the bottle, "he
started to make a gasping sound. . . . [j]ust like the air had
been knocked out of him."
Lato "pulled Dyvon" out of the crib and immediately
noticed that "[h]is arms were limp" and his skin "was cool."
She placed the baby on the edge of her bed, and she "checked
him over." The baby continued to "gasp" for air. She checked
him because she was afraid that he may have been "bitten by a
spider." The defendant, who Lato purportedly had awakened,
also "checked" the baby and "looked in [the baby's] mouth."
Lato told the defendant that she was going to take Dyvon
to a hospital. She left the bedroom and went to a living room
to get the baby's car seat. The defendant picked up the car
seat and placed the car seat and the baby in the car. Lato
drove away in her car. The defendant did not accompany her,
and he returned to the house, but he did not inform any of the
other occupants of the house of the baby's condition.
After Lato drove her car away from the house, she
realized that she did not know the location of a hospital.
She drove her car into the parking lot of a convenience store,
got out of her car, entered the store, and asked an attendant
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for the location of a hospital. The attendant told her to "go
across the street to the rescue center."
Lato returned to her car and drove across the street to
the Sterling Volunteer Fire Department. She knocked on the
door, and Stacy Dawson, a volunteer with the Sterling
Volunteer Fire Department, responded. Dawson, who had been
trained and certified to perform cardiopulmonary resuscitation
(CPR), but had let her certification lapse because she had
been out of the United States, placed the baby on the floor
and began to perform CPR.
Dawson testified that the baby "was absolutely just the
whitest" baby she had ever seen, and the baby "looked like a
doll." The baby "was very, very pale, almost yellowish but
[had] no color in it. And the [baby's] eyes were closed
. . . ." Dawson also noticed that the baby "was very cold."
Dawson lifted the baby out of the car seat, and he was
"totally limp, just like a doll." She saw no movement in the
baby, and he made no sounds. The baby did not have a
discernable heartbeat, chest movement, or pulse.
While the emergency response personnel were trying to
resuscitate the baby, Lato made a telephone call to the house
where she lived and spoke with Kim Reeder, the defendant's
sister-in-law. Kim Reeder informed the defendant's half-
brother, James Reeder, that Lato had taken the baby to a fire
4
station. James Reeder directed his wife to inform the
defendant so that they could go to the station and be with
Lato and the baby.
Richard Laughlin, a cardiac technician with the Sterling
Rescue Squad, also described the condition of the baby that
morning. He stated that the baby was "very white or ashen, or
what I term 'china doll' appearance . . . [t]here was no eye
movement, and it was a very limp infant, no movement at all."
Laughlin examined the baby and concluded "that the [baby] was
dead and [that Laughlin] needed to start trying to revive
him."
Laughlin tried to intubate the baby, but the baby's
airway was blocked. The baby was given a mask which was used
to push oxygen through the mouth into the baby's lungs. Mike
DePine, another emergency technician, administered "five
blows" to Dyvon's back in an effort to clear his airway. When
DePine administered "the blows," fluid emitted from the baby's
mouth. A second set of five "blows" was administered to the
baby's back, and additional fluid was emitted. Dyvon was
taken to a hospital, and further efforts were made to
resuscitate him. Eventually, Dyvon was declared dead.
James Reeder testified that when he returned from the
hospital, he "was searching for a reason why a perfectly
healthy baby could go to sleep at night and wake up and all of
5
a sudden be dead." Two days after the baby's death, he spoke
with the defendant about what might have happened. Reeder
testified as follows:
"Q: On the second day after Dyvon's death, did
you have occasion to ask or do you recall whether or
not you asked [the defendant] what happened?
"A: Yes, I did.
"Q: What answer did you get?
"A: I got — he says he wasn't sure, he didn't
know, that he might have, you know, he says — he
wanted to know if he kicked the crib or something
that — what would that be. And I said, well, you
know, that would be some form of manslaughter
because we come back from his lawyer's office when
we discussed about that. And he said — I said it
would be some type of manslaughter. And then he
says, well, no matter what it is, I'm not going to
let Tamm[y] take the fall, and that was all he said.
"Q: Did he ever explain what he meant by that
by not going to let Tamm[y] take the fall?
"A: No. I asked him. He's a very quiet
individual and he wouldn't say.
"Q: Did there come a point in time when he
indicated to you that if he kicked the [baby], he
didn't know it?
"A: No, I don't think he did. I think he
might have stated that he could have kicked it, but
I don't think he said he did kick it. He said he
was just — I don't know what he was asking and why
he was making a statement like that when he said it.
It just baffled me.
"Q: The statement that baffled you was?
"A: Why he would ask, you know, if [he] kicked
the baby —
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"Q: What is the charge?
"A: Yes, what would that be. And, you know, I
don't understand that, and then I really didn't
understand why he said he would cover for her.
. . . .
"Q: My question is did there come a point in
time on the second or third day when you had a
conversation with [the defendant] that he used the
word 'hypothetical'?
"A: Yes.
"Q: Would you please, as best you recall, what
did he say?
"A: He said, hypothetically, if I kicked the
crib, what would that be, and that was his
statement.
"Q: James, you indicated, I believe, in your
testimony that you were mad or upset with [the
defendant]?
"A: I was upset with both of them, very. I
mean —
. . . .
"Q: Did you ever accuse [the defendant] of
doing anything to the [baby]?
"A: Being involved with what happened in
there, yes.
"Q: What if any response did you get?
"A: None."
The Reverend Charles E. Grant, an emergency medical
technician chaplain, had a conversation with the defendant at
the hospital on the morning of July 7, 1997. Grant and the
7
defendant were in a room while the hospital's emergency room
personnel were trying to revive the baby. During the
conversation, the defendant told Grant that the defendant was
holding Dyvon and that the baby was alive when Lato prepared
the baby's bottle of formula earlier that morning. Grant
testified that the defendant's statement was unusual "because
everything the mother had said up to then led us to believe
that she was the only one awake when she ran out of the house
with the baby, and I thought that was unusual." During
defense counsel's cross-examination of Grant, the following
exchange occurred:
"Q: Now, the statement that [the defendant]
made to you, do you recall the exact words that he
said, not the impression that you had, not the time
frame you thought, the words that came out of his
mouth?
"A: I'm positive that he said something to the
effect that he held the baby while [the mother] was
getting the bottle, and that I know for sure because
it stood out in my mind . . . ."
Dr. Frances Patricia Field, assistant chief medical
examiner for the Northern Virginia District of the Medical
Examiner's Office, performed an autopsy on Dyvon's body. She
qualified at trial as an expert witness on the subject of
forensic pathology. She stated that the baby's brain was
swollen and that "[t]here was a one-quarter inch flap, long
laceration or tearing of the spleen on the upper half of the
8
inner surface of the spleen. That tear went into the tissue
of the spleen to about one-eighth inch deep." The rupture of
the spleen was sufficient to cause the baby's death.
Dr. Field also testified that the baby suffered three
bruises to his thymus, bruises to the heart and lungs, and an
injury to the front wall of the urinary bladder. Dr. Field
stated that upon her examination of the baby's liver, "[t]here
was a one-half inch full thickness laceration or tearing of
the tissue of the liver. Full thickness means all the way
through from front to back. The left lobe of the liver — it
also tore in that same region a branch of the portal vein."
Dr. Field testified that all the baby's injuries were
caused by blunt force trauma, and the injuries occurred "at
essentially the same time." Dr. Field opined that the baby's
injuries could not have been caused by CPR.
Dr. Robin Foster, a professor of pediatrics at the
Medical College of Virginia and director of the Pediatric
Emergency Services and director of the Child Protective Team
at the Medical College of Virginia, qualified as an expert
witness in pediatric emergency care and pediatrics. She
testified that the cause of the baby's death was consistent
with severe blunt force trauma and that the baby's death was
not related to the CPR. She gave the following testimony:
9
"Q: Is there anything in the documents or
photographs that you reviewed that would lead you to
believe that these injuries could have been caused
by CPR?
"A: No, sir.
"Q: No, sir, what?
"A: No, sir, the pattern of injury is not
consistent with the injuries being caused by CPR."
Dr. Jack Daniel, who qualified as an expert witness on
the subject of forensic pathology, testified that he had never
seen a lacerated liver caused by CPR. He stated, without
objection,
"I have seen a CPR related injury using a
thumper, which is what that external device is, that
was as bad as that in an adult, an elderly person,
but I have never seen — number one, I've never seen
a laceration in a liver that was due to CPR. Number
two, I have never heard of it, and I haven't found
looking at the literature, and I have searched
extensively in trying to find such lacerations, and
I have also spoken to the author of an article
specifically on this subject, that is CPR related
injuries in children, and neither he nor his
colleagues have heard of such an injury occurring in
a child. And all of that put together makes me
very, very confident in saying that I just can't
attribute this injury to CPR."
Dr. Daniel also testified that the bruise to the baby's
urinary bladder could not have been caused by the
administration of CPR.
The defendant denied that he killed his son. He also
testified that he did not strike his son. The defendant
claimed that he was asleep when Lato prepared the bottle of
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baby formula for the baby, and that the Reverend Grant was
incorrect when he testified that the defendant said that he
was holding the baby when Lato prepared the baby's formula.
The defendant also adduced expert testimony that the baby's
injuries were caused by the administration of CPR.
II.
A.
The defendant asserts that the evidence is insufficient
to support his conviction for involuntary manslaughter. The
defendant argues that the Commonwealth failed to exclude every
reasonable hypothesis of innocence and that his conviction is
based upon a suspicion or probability of guilt. We disagree
with the defendant's contentions.
We will apply the following principles of appellate
review to our resolution of this appeal:
"Where the sufficiency of the evidence is
challenged after conviction, it is our duty to
consider it in the light most favorable to the
Commonwealth and give it all reasonable inferences
fairly deducible therefrom. We should affirm the
judgment unless it appears from the evidence that
the judgment is plainly wrong or without evidence to
support it . . . [Code § 8.01-680]."
Black v. Commonwealth, 222 Va. 838, 841, 284 S.E.2d 608, 610
(1981) (quoting Higginbotham v. Commonwealth, 216 Va. 349,
352, 218 S.E.2d 534, 537 (1975)); accord Phan, 258 Va. at 511,
521 S.E.2d at 284. Additionally, when a defendant challenges
11
the sufficiency of the evidence, " '[i]f there is evidence to
sustain the verdict, this Court should not overrule it and
substitute its own judgment, even if its opinion might differ
from that of the jury.' " George v. Commonwealth, 242 Va.
264, 278, 411 S.E.2d 12, 20 (1991) (quoting Snyder v.
Commonwealth, 202 Va. 1009, 1016, 121 S.E.2d 452, 457 (1961)),
cert. denied, 503 U.S. 973 (1992).
We have also stated that:
"When the evidence is wholly circumstantial . . .
all necessary circumstances proved must be
consistent with guilt and inconsistent with
innocence and exclude every reasonable hypothesis of
innocence. The chain of necessary circumstances
must be unbroken. Nevertheless, it is within the
province of the jury to determine what inferences
are to be drawn from proved facts, provided the
inferences are reasonably related to those facts."
Inge v. Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 567-68
(1976). And, circumstantial evidence is competent and is
entitled to as much weight as direct evidence provided that
the circumstantial evidence is sufficiently convincing to
exclude every reasonable hypothesis except that of guilt.
Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876
(1983), cert. denied, 465 U.S. 1109 (1984). The Commonwealth,
however, is not required to exclude every possibility that
others may have committed the crime for which a defendant is
charged, but is only required to exclude hypotheses of
innocence that flow from the evidence. Goins v. Commonwealth,
12
251 Va. 442, 467, 470 S.E.2d 114, 130, cert. denied, 519 U.S.
887 (1996); Spencer v. Commonwealth, 238 Va. 275, 283-84, 384
S.E.2d 775, 779 (1989), cert. denied, 493 U.S. 1036 (1990);
Fordham v. Commonwealth, 13 Va. App. 235, 239, 409 S.E.2d 829,
831 (1991).
Applying the aforementioned principles, we hold that the
evidence, though circumstantial, establishes the defendant's
guilt beyond a reasonable doubt and excludes hypotheses of
innocence that flow from the evidence. The jury could have
inferred from the evidence that the defendant was awake when
Lato left the bedroom to prepare the baby's bottle and that
the defendant kicked or hit the baby, thereby injuring him.
When the mother left the bedroom to prepare the bottle of baby
formula, the baby was "fine." When the mother returned with
the bottle of formula, the baby was gasping "[j]ust like the
air had been knocked out of him." No one was with the baby
during that interval except for the defendant, who was awake.
As we have already stated, the defendant asked his half-
brother, James Reeder, what crime the defendant might be
charged with if the defendant kicked the crib where the baby
was located. The defendant also told Reeder that the
defendant "could have kicked it." And, when Reeder accused
the defendant of "doing something" to the baby, the defendant
refused to respond. In our jurisprudence, the defendant's
13
failure to respond constitutes an implied admission. We have
held:
"[W]hen a statement tending to incriminate one
accused of committing a crime is made in his
presence and hearing and such statement is not
denied, contradicted, or objected to by him, both
the statement and the fact of his failure to deny
are admissible in a criminal prosecution against
him, as evidence of his acquiescence in its truth.
The basis of such rule is that the natural reaction
of one accused of the commission of a crime or of
implication therein is to deny the accusation if it
is unjust or unfounded."
Owens v. Commonwealth, 186 Va. 689, 698, 43 S.E.2d 895, 899
(1947); accord Tillman v. Commonwealth, 185 Va. 46, 56, 37
S.E.2d 768, 773 (1946).
The medical testimony adduced by the Commonwealth, when
considered with other evidence, establishes that the defendant
perpetrated the criminal acts. Dr. Field testified that the
baby's injuries were caused by blunt force trauma and that the
injuries occurred essentially at the same time. The injuries
were caused before the baby's death and were not caused by the
administration of the CPR. The defendant's own expert
witness, Dr. John E. Adams, a forensic pathologist, testified
that the baby's injuries were "consistent with a severe
beating." Dr. Daniel testified that he had neither seen nor
read about a laceration to a baby's liver caused by the
administration of CPR. As we have already noted, Dr. Daniel
14
testified that he was "very, very confident in saying that
[he] just can't attribute this injury to CPR."
The only hypothesis of innocence based upon the evidence
in this record is that the baby's injuries may have been
caused when the emergency response personnel administered the
CPR. However, the Commonwealth presented evidence, beyond a
reasonable doubt, that the baby's injuries were caused by the
defendant, not by the administration of CPR. And, the
evidence of record indicates beyond a reasonable doubt that
the baby exhibited symptoms of injuries before anyone
administered CPR to him.
Moreover, the jury was not required to believe the
defendant's explanation, and if that explanation is not
believed, the jury may infer that the accused is lying to
conceal his guilt. Phan, 258 Va. at 511, 521 S.E.2d at 284;
Black v. Commonwealth, 222 Va. at 842, 284 S.E.2d at 610;
Toler v. Commonwealth, 188 Va. 774, 782, 51 S.E.2d 210, 214
(1949); Speight v. Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d
95, 98 (1987) (en banc).
We hold that the evidence of record, when considered as a
whole, is sufficient to support the jury's finding that the
defendant was guilty of involuntary manslaughter. "While no
single piece of evidence may be sufficient, the 'combined
force of many concurrent and related circumstances, each
15
insufficient in itself, may lead a reasonable mind
irresistibly to a conclusion.' " Stamper v. Commonwealth, 220
Va. 260, 273, 257 S.E.2d 808, 818 (1979) (quoting Karnes v.
Commonwealth, 125 Va. 758, 764, 99 S.E. 562, 564 (1919)),
cert. denied, 445 U.S. 972 (1980); accord Derr, 242 Va. at
425, 410 S.E.2d at 669.
B.
The defendant argues that the evidence failed to
establish that he acted with gross negligence. The defendant
says that the "only evidence introduced regarding the
possibility that [he] kicked Dyvon came from an exchange
between [the defendant] and his brother." We disagree with
the defendant.
We have defined involuntary manslaughter "as the
accidental killing of a person, contrary to the intention of
the parties, during the prosecution of an unlawful, but not
felonious, act, or during the improper performance of some
lawful act." Gooden v. Commonwealth, 226 Va. 565, 571, 311
S.E.2d 780, 784 (1984); accord Beck v. Commonwealth, 216 Va.
1, 4, 216 S.E.2d 8, 9-10 (1975); Mundy v. Commonwealth, 144
Va. 609, 615, 131 S.E. 242, 244 (1926).
The jury was instructed that if it found that the
Commonwealth proved beyond a reasonable doubt that the
defendant killed Dyvon Dowden and "[t]hat the killing,
16
although unintended, was the direct result of negligence
accompanied by carelessness so gross, wanton and culpable as
to show a callous disregard of human life," then the jury
could find that the defendant was guilty of involuntary
manslaughter. The extensive medical evidence, which we have
already summarized, established that the baby's injuries were
caused by blunt force trauma unrelated to the administration
of CPR. The evidence of record established, beyond a
reasonable doubt, that the defendant killed Dyvon Dowden by
either kicking him or delivering a severe blow to his body,
and the jury was entitled to infer from those acts that the
killing, although unintended, was the direct result of
negligence accompanied by carelessness so gross, wanton, and
culpable that it showed a callous disregard for the baby's
life.
III.
Finding no merit in the defendant's contentions, we will
affirm the judgment of the Court of Appeals.
Affirmed.
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