COURT OF APPEALS OF VIRGINIA
Present: Judges McClanahan, Haley and Petty
Argued at Chesapeake, Virginia
KRYSTALLYNN MAGNO
MEMORANDUM OPINION * BY
v. Record No. 1873-07-1 JUDGE WILLIAM G. PETTY
DECEMBER 9, 2008
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Edward W. Hanson, Jr., Judge
Steven P. Letourneau (John D. Hooker, Jr., and Associates, P.C.,
on brief), for appellant.
(Robert F. McDonnell, Attorney General; Rosemary V. Bourne,
Assistant Attorney General, on brief), for appellee.
The trial court convicted Krystallynn Magno of abuse and neglect of a child in violation of
Code § 18.2-371.1(A). The court sentenced Magno to five years incarceration, with all but six
months suspended. Magno appeals this conviction, contending that there was not sufficient
evidence to support her conviction. Because we determine that the evidence was sufficient to
establish Magno’s guilt, we affirm her conviction.
I.
On appeal, we review the evidence in the “light most favorable” to the Commonwealth.
Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). This principle requires
us to “discard the evidence of the accused in conflict with that of the Commonwealth and regard as
true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
therefrom.” Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis and
citation omitted).
When Magno left for work the morning of December 13, 2006, she left her seven-month-old
son in the care of her boyfriend, Brandon Carter. 1 Around 9:30 in the morning, the baby vomited
on himself and Carter took him to the kitchen sink to rinse the vomit off of the baby with hot water
from the sink sprayer. The water –which was later estimated to be 150 degrees Fahrenheit – scalded
the baby.
The baby began to scream, and his face immediately appeared red and “slimy” from the
burn. Within minutes, he realized that he had also burned the baby’s chest so badly that the skin
was peeling off. Carter called Magno and told her that he had burned the baby’s upper lip with a
hot rag, but that it was not a severe injury and he was going to apply some ointment to the burn. 2
Magno called home several times during the day and could hear the baby “whining” over the phone.
Carter told her nothing was wrong although he acknowledged that the baby was “whimpering” at
the time.
Carter picked Magno up from work around 3:30 that afternoon, bringing the baby with him
in the car. When Magno saw the baby, she fell to the ground and began crying, saying “Oh my
God. What happened? What did you do? I thought you said it wasn’t that bad.” Magno testified
that the baby looked “scary” when she saw him: his face was red and slimy, his chest was losing
the top layer of skin, and his left eye was almost swollen shut.
1
After a joint trial with Magno, Carter was also convicted of the abuse and neglect of a
child in violation of Code § 18.2-371.1(A), and a panel of this Court recently affirmed his
conviction. See Carter v. Commonwealth, No. 2235-07-1 (Va. Ct. App. Oct. 7, 2008).
2
Carter testified he initially applied an antibiotic ointment after speaking with his mother
and Magno later applied Vaseline.
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Despite the baby’s apparent injuries, Magno chose to take the baby home rather than the
hospital. Although she expressed to Carter her desire to take her baby to the hospital immediately,
Carter did not want “social services to get involved” and was concerned about “getting in trouble
with the Navy.” When asked why she did not take the baby to the hospital, despite her desire to do
so and her own belief that she would not be in trouble with the authorities, Magno testified she did
not do so because she cared about Carter. That evening, instead of taking the baby to the hospital,
Magno applied Vaseline to the baby’s face and took the sheets off of the baby’s bed so his burns
would not stick to them. Magno then sewed a patch on her naval uniform and fell asleep on a couch
downstairs while Carter cared for the baby upstairs overnight. Carter testified the baby whimpered
through the night.
The next morning, the burns looked worse and were scabbing over. Although Magno had
formulated a plan to take the baby to the hospital whether Carter “like[d] it or not,” instead of taking
the baby to the hospital, Magno went to work and left the baby with Carter. She did not take the
baby to his regular babysitter because she was afraid that her babysitter would contact the
authorities due to the severity of the burns on the baby’s face and chest. Magno apparently changed
her mind at some point during the day and asked her work supervisor for time off to take her son to
the hospital. Although Magno was advised at work to instruct Carter to take the baby to the hospital
immediately and meet them there, Carter convinced her to come home instead. Eventually, she and
Carter took the baby to the hospital shortly after noon that day. Hospital personnel contacted the
police when they saw the baby’s condition. Carter and Magno both told police that they had
decided to treat the baby at home because they were afraid that police and social services would
become involved.
A pediatric child abuse expert examined the baby at the hospital and testified at trial. The
doctor stated that the baby had second-degree burns on his face and third-degree burns on his chest.
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She testified that the injuries were consistent with the water being 150 degrees. She also explained
that, at that temperature, the burn would have been “[n]early instantaneous,” that the baby’s skin
would have blistered almost immediately, and that the baby would have been screaming. It would
have been immediately obvious that the baby had been severely burned and needed medical
treatment.
Delaying that treatment, the doctor explained, created “a very high risk of infection, of
scarring, and also of pain.” The doctor also stated that, “[i]n any child who has this severe burn, the
risk could be morbidity and mortality, severe illness and/or death.” The doctor pointed out that the
application of Vaseline is not recommended because it holds heat in and worsens a burn. And, the
doctor emphasized that the baby “would have been in pain throughout the day” and that anyone
caring for the child would have known that.
Based on this evidence, the trial court convicted Magno, finding that upon seeing the baby’s
injuries she was obligated to provide care. The trial court also explicitly resolved any conflict of
evidence relating to Magno’s willful omission of providing medical care because of the fear of
involving the police and child protective services in favor of the Commonwealth.
II.
Code § 18.2-371.1(A) states that a parent who “by willful act or omission or refusal to
provide any necessary care for the child’s health causes or permits serious injury to the life or
health of [her] child shall be guilty of a Class 4 felony.” On appeal, Magno argues that the
evidence was not sufficient to prove that she “willfully refused to provide necessary medical care
for her child.” 3
3
Magno also argues that there was no evidence that the delay in seeking medical care
“exacerbated the child’s injuries or caused or permitted any greater or futher injury.” However, this
argument was not part of her motion to strike and thus not preserved below. Therefore, we decline
to address it on appeal. See Rule 5A:18.
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In reviewing the sufficiency of the evidence, an appellate court examines “whether the
evidence adduced at trial could support any rational determination of guilt beyond a reasonable
doubt.” United States v. Powell, 469 U.S. 57, 67 (1984). A reviewing court does not “ask itself
whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (emphasis in original and citation omitted).
Instead, the proper inquiry is ‘“whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.’” Maxwell v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499,
502 (2008) (quoting Jackson, 443 U.S. at 319) (emphasis in original). These principles
recognize that an appellate court is “not permitted to reweigh the evidence,” Nusbaum v. Berlin,
273 Va. 385, 408, 641 S.E.2d 494, 507 (2007), because appellate courts have no authority “to
preside de novo over a second trial,” Haskins v. Commonwealth, 44 Va. App. 1, 11, 602 S.E.2d
402, 407 (2004). 4
The willfulness requirement of Code § 18.2-371.1(A) does not mandate that the
Commonwealth prove Magno intended to injure her baby by refusing to take him to the hospital.
Collado v. Commonwealth, 33 Va. App. 356, 366, 533 S.E.2d 625, 631 (2000). Instead, the term
‘“[w]illful denotes an act which is intentional, or knowing, or voluntary, as distinguished from
accidental.’” Mangano v. Commonwealth, 44 Va. App. 210, 214, 604 S.E.2d 118, 120 (2004)
(quoting Ellis v. Commonwealth, 29 Va. App. 548, 554, 513 S.E.2d 453, 456 (1999) (internal
4
This deferential standard of review “applies not only to the historical facts themselves,
but the inferences from those facts as well.” Crowder v. Commonwealth, 41 Va. App. 658, 663
n.2, 588 S.E.2d 384, 387 n.2 (2003). Thus, a fact finder may “draw reasonable inferences from
basic facts to ultimate facts,” Haskins, 44 Va. App. at 10, 602 S.E.2d at 406 (citations omitted),
unless doing so would push “into the realm of non sequitur,” Thomas v. Commonwealth, 48
Va. App. 605, 608, 633 S.E.2d 229, 231 (2006) (citation omitted).
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quotation marks and citations omitted)). A “willful” act also implies “knowledge that particular
conduct will likely result in injury or illegality.” Ellis, 29 Va. App. at 554, 513 S.E.2d at 456.
Here, there was an abundance of evidence from which the trial court could conclude that
Magno willfully refused to provide necessary medical care for her child. Magno testified that the
baby looked “scary” when she first saw him after the injury. His condition was such that she sat
on the ground and started crying. Despite her desire to take the baby to the hospital, Magno did
not seek medical care due to Carter’s concerns about getting in trouble. Her baby’s condition
worsened overnight and into the next day. Again, although her plan had been to take the baby to
the hospital in the morning, she chose to leave the baby at home with Carter who had not only
inflicted the burns but also lied to her about the severity of the burns. In sum, although Magno
clearly appreciated the severity of her baby’s injuries, she did not take the baby to the hospital or
otherwise seek medical care, did not care for her baby all night, and repeatedly put her baby in
the care of an irresponsible caretaker. Instead of taking necessary action to protect the well
being of her child, she failed to act out of her concern for and misguided loyalty to Carter. As
we stated in Carter v. Commonwealth, No. 2235-07-1 (Va. Ct. App. Oct. 7, 2008), Magno’s
“failure to care for the child” like that of her boyfriend, “put the child in grave danger and
displayed a willful disregard for the ever worsening condition of the child.” Id. at 6.
We cannot say that this evidence was so deficient that only an unreasonable fact finder
could have concluded that Magno’s conduct amounted to a willful refusal to provide medical
care necessary to the health of her child.
III.
Accordingly, we determine that the evidence is sufficient to support Magno’s conviction.
Affirmed.
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