Pavlick v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Baker, Benton, Coleman,
Willis, Elder, Bray, Annunziata, Overton and Bumgardner
Argued at Richmond, Virginia

THOMAS MATTHEW PAVLICK, JR.
OPINION BY
v. Record No. 2478-95-1 JUDGE ROSEMARIE ANNUNZIATA
APRIL 21, 1998
COMMONWEALTH OF VIRGINIA

UPON A REHEARING EN BANC
FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY
John M. Folkes, Judge

Oldric J. LaBell, Jr. (Martin R. Shelton, on
brief), for appellant.

Daniel J. Munroe, Assistant Attorney General
(Richard Cullen, Attorney General; Marla
Graff Decker, Assistant Attorney General, on
briefs), for appellee.

Thomas Matthew Pavlick, Jr. (appellant) appeals from a

judgment of the Circuit Court of Gloucester County (trial court)

that approved his conviction by a jury for second degree murder

of his infant son (the child). Appellant contends the trial

court erred (1) in admitting evidence of prior injuries sustained

by the child that were not proven to have been caused by

appellant, (2) in admitting evidence of the child's prior

injuries without a limiting instruction as to the purpose for

which that evidence could be considered, (3) in admitting

portions of the autopsy report into evidence, which allegedly

expressed opinion, (4) in excluding evidence of a statement

attributed to Shari Pavlick (Shari), the child's mother and a
witness for the Commonwealth, which he asserts would have shown

her bias and state of mind or proven that she had made a prior

inconsistent statement, and (5) in excluding videotapes showing

appellant interacting with the child and appellant's other son.

A panel of this Court reversed, holding that the record

contained no evidence from which it would have been reasonably

inferred that appellant caused the child's prior rib injuries.

Pavlick v. Commonwealth, 25 Va. App. 538, 543-44, 489 S.E.2d 720,

723 (1997). We hold that the record contains evidence from which

the jury could reasonably have inferred that appellant caused the

child's rib injuries, and we affirm appellant's conviction. Upon

familiar principles, we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom. Martin v. Commonwealth, 4

Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).

I. Facts

The child was born on June 24, 1994 and died on August 18,

1994, as a result of a head injury due to acceleration/

deceleration trauma. Shari had returned to work on August 9,

1994, and appellant took care of the child and his brother while

Shari was at work. On August 13, 1994, the child was having

respiratory difficulties when Shari returned home from work. She

attributed his symptoms to a cold and called a pediatrician.

During the first week after Shari returned to work, she also

noticed bruises on both sides of the child's jaw. Appellant

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admitted that he had made the marks with his thumbs.

On August 18, 1994, Shari went to work, leaving the two

boys in the sole care of appellant. Appellant called Shari at

2:00 p.m. and told her to come home right away because he had

dropped the child. Appellant called 911 and explained that he

had "half-way dropped the baby." Rescue squad personnel arrived

to find the child in full cardiac arrest. The child was not

breathing and had no pulse. The rescue squad personnel

administered CPR as they took the child to the hospital.
At the hospital, Dr. Barbara Allyson-Bryan, a pediatrician,

continued CPR for about twenty minutes before pronouncing the

child dead at 2:48 p.m. Dr. Allyson-Bryan looked into the

child's eyes with an ophthalmoscope and observed retinal

hemorrhages. Dr. Allyson-Bryan testified that retinal

hemorrhages occur only in cases where there has been severe

shaking trauma, and they indicate that an infant has been shaken

to death. The child had numerous retinal hemorrhages, which led

Dr. Allyson-Bryan to suspect child abuse. She called the police.

Captain Michael Nicely of the Gloucester Sheriff's

Department arrived at the hospital and confronted appellant with

the doctor's finding. Nicely asked appellant if he had shaken

the child. Appellant denied having shaken the child and told

Nicely that he had tripped on a toy and fallen with the child in

his arms. Later, at home, appellant told his wife he stepped on

toys and tripped and did not know whether he had dropped the

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child. Appellant was arrested on August 19, 1994. The following

day, he called his wife from the jail and admitted that he had

shaken the child because he was "fussing."

Both Dr. Allyson-Bryan and Dr. Deborah Kay, the Assistant

Chief Medical Examiner who performed an autopsy, testified that

the child's injuries resulting in his death were caused by

shaking and could not have been caused by any accidental means.

Dr. Kay also testified about a separate recent head injury which

she estimated could have occurred four to eight days prior to

death. Symptoms of this earlier brain injury would have included

respiratory problems of the kind Shari noted on August 13, 1994.
From the x-ray performed at the hospital, Dr. Allyson-Bryan

observed the presence of rib fractures, which she opined were not

caused by CPR or birth. The autopsy confirmed the x-ray

findings. Dr. Kay consulted with a radiologist and determined

that the rib fractures were between two and four weeks old.

Testifying for the Commonwealth, Shari stated that no one

other than she and appellant had ever been alone with the child,

and she denied ever having shaken the child. Testifying in his

defense, appellant stated that both of the child's grandmothers

had also been alone with the child. Appellant, however, did not

testify when the child's grandmothers had allegedly been alone

with the child. Other evidence in the case proved that only the

appellant's mother, Mildred Cramsey, had visited the child during

the time frame in which the rib fractures occurred, and she

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testified that although she had been alone with the child she had

never shaken the child.

II. Prior Injuries

The trial court permitted the Commonwealth to present

evidence of the child's prior injuries. Appellant asserts that

the evidence of prior injuries was irrelevant and prejudicial.

We disagree.

Evidence that shows or tends to show crimes or other bad

acts committed by the accused is incompetent and inadmissible for

the purpose of proving that the accused committed or likely

committed the particular crime charged. Guill v. Commonwealth,

__ Va. __, __, 495 S.E.2d 489, 491 (1998) (citing cases); Morse

v. Commonwealth, 17 Va. App. 627, 631, 440 S.E.2d 145, 148 (1994)

(citing Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d

802, 805 (1970)). "'[Similar crimes evidence] merely show[s]

that [an accused] has the propensity to commit the crime

[charged] and this inference has been held error because it

reverses his presumption of innocence.'" Id. (quoting Spence v.

Commonwealth, 12 Va. App. 1040, 1045, 407 S.E.2d 916, 918

(1991)). There are, however, several exceptions to this rule of

exclusion.
Evidence of other offenses is admitted if it
shows the conduct and feeling of the accused
toward his victim, if it establishes their
prior relations, or if it tends to prove any
relevant element of the offense charged.
Such evidence is permissive in cases where
the motive, intent, or knowledge of the
accused is involved, or where the evidence is
connected with or leads up to the offense for

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 which the accused is on trial.

Kirkpatrick, 211 Va. at 272, 176 S.E.2d at 805.

The admission of evidence is within the broad discretion of

the trial court. Blain v. Commonwealth, 7 Va. App. 10, 16, 371

S.E.2d 838, 842 (1988) (citing Coe v. Commonwealth, 231 Va. 83,

87, 340 S.E.2d 820, 823 (1986)). In addressing the admissibility

of other crimes evidence the court must balance the probative

value of the evidence of the other offenses and determine whether

it exceeds the prejudice to the accused. Guill, __ Va. at __,

495 S.E.2d at 491-92 (citing Lewis v. Commonwealth, 225 Va. 497,

502, 303 S.E.2d 890, 893 (1983)); Parker v. Commonwealth, 14 Va.

App. 592, 595, 421 S.E.2d 450, 452 (1992) (citing Sutphin v.

Commonwealth, 1 Va. App. 241, 245, 337 S.E.2d 897, 899 (1985)).

The court's weighing of these factors is reviewable only for

clear abuse of discretion. Wilkins v. Commonwealth, 18 Va. App.

293, 298, 443 S.E.2d 440, 443 (1994) (en banc) (citing Ferrell v.

Commonwealth, 11 Va. App. 380, 390, 399 S.E.2d 614, 620 (1990)).

We address, first, the admission of the evidence of the

child's prior head injury. The evidence, viewed in the light

most favorable to the Commonwealth, the party prevailing on this

issue below, shows that the head injury suffered by the child

occurred approximately one week prior to his death. The

physician who performed the autopsy on the child concluded that

the head subdural hematoma did not occur accidentally. The child

was in appellant's sole care at the time the injury was

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sustained, and he admitted that he had applied force to the

child's head. His wife, Shari, observed marks on the child's

face. We cannot say the admission of the week-old injury

evidence was an abuse of the trial court's exercise of

discretion.

Next, we consider the trial court's admission of evidence of

the child's rib fractures. We again view the evidence in the

light most favorable to the Commonwealth. The record shows that

appellant as well as his wife and mother had the opportunity to

cause the rib fractures. The evidence of the rib fractures, when

considered together with the evidence that appellant caused the

fractures, was probative on the issue of malice. Evidence that

appellant maliciously caused the rib fractures tended to prove

that the child's shaking death at the hand of appellant was not

an isolated incident, but, rather, was one of a series of

forceful shakings, supporting a finding that the shaking death

was committed with malice. Cf. Smarr v. Commonwealth, 219 Va.

168, 170, 246 S.E.2d 892, 893 (1978) (holding that where the

Commonwealth presented no evidence linking appellant to injuries,

such evidence had no probative value to the Commonwealth's theory

of the case). In Smarr, the Commonwealth "merely showed that the
[prior] injuries had occurred, and nothing more." 219 Va. at

170, 246 S.E.2d at 893 (emphasis added).

Appellant contends, however, that the evidence was

erroneously admitted because the Commonwealth failed to show by

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clear and convincing evidence that he caused the fractures or was

the only person with access to the child when the fractures were

sustained. There is no question that the relevance of the rib

fractures to the Commonwealth's case was dependent on proof that

appellant inflicted the rib fractures.

In the federal courts,
similar act evidence is relevant only if the
jury can reasonably conclude that . . . the
defendant was the actor. . . . [T]he trial
court neither weighs credibility nor makes a
finding that the Government has proved [that]
conditional fact by a preponderance of the
evidence. The court simply examines all the
evidence in the case and decides whether the
jury could reasonably find the conditional
fact . . . by a preponderance of the
evidence.

Huddleston v. United States, 485 U.S. 681, 689-90 (1988). 1

No Virginia court has directly addressed the issue of the

standard of proof that must be applied by a judge in determining

whether to admit evidence of prior bad acts. 2 The Supreme
1
Several states have adopted the Huddleston rule. See, e.g.,
State v. Stager, 406 S.E.2d 876, 890 (N.C. 1991); State v.
Loftus, 566 N.W.2d 825, 831 n.8 (S.D. 1997); State v. Wheel, 587
A.2d 933, 943 (Vt. 1990); State v. Schindler, 429 N.W.2d 110, 113
(Wis. App. 1988). But see, e.g., State v. McGinnis, 455 S.E.2d
516, 527 (W. Va. 1994) (rejecting Huddleston's holding that a
court need not find that the defendant committed the prior bad
acts by a preponderance of the evidence).
2
Other jurisdictions are split on the issue of the standard
of proof applied by a judge in determining whether to admit
evidence of prior bad acts. See, e.g., Harris v. State, 597 A.2d
956, 960 (Md. 1991) ("When evidence of other bad acts is relevant
for reasons other than general criminal propensity, the trial
judge must determine 'whether the accused's involvement in the
other crimes is established by clear and convincing evidence.'"
(quoting State v. Faulkner, 552 A.2d 896, 898 (Md. 1989));
Stager, 406 S.E.2d at 890 ("[E]vidence is admissible under Rule

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Court's explanation in Huddleston, id. at 690, however, that, in

determining whether to admit evidence of prior bad acts, the

court cannot resolve questions of credibility, is consistent with

Virginia law.

Long-accepted principles of Virginia law support the

proposition that, when a credibility determination must be made

with respect to the predicate for the admission of proffered

conditionally relevant evidence, that credibility determination

must be made by the jury. 3 In Virginia, the members of "[t]he

jury are the sole judges of the credibility and weight of

testimony." Limbaugh v. Commonwealth, 149 Va. 383, 393, 140 S.E.

133, 134 (1927). It is established beyond question that

"[d]etermining the credibility of witnesses who give conflicting

accounts is within the exclusive province of the jury." Lea v.

Commonwealth, 16 Va. App. 300, 304, 429 S.E.2d 477, 479 (1993)

(citing, inter alia, Schneider v. Commonwealth, 230 Va. 379, 383,

337 S.E.2d 735, 736-37 (1985)). In the context of evaluating the

404(b) of the North Carolina Rules of Evidence if it is
substantial evidence tending to support a reasonable finding by
the jury that the defendant committed a similar act or
crime . . . ."); McGinnis, 455 S.E.2d at 527 ("We hold that the
admissibility of Rule 404(b) evidence must be determined as a
preliminary matter under Rule 104(a) . . . . [We] require the
trial court to be satisfied by a preponderance of the evidence of
the conditionally relevant facts before permitting the jury to
hear them.").
3
In Morse, 17 Va. App. at 632, 440 S.E.2d at 148, this Court
noted in dicta that the Commonwealth must introduce evidence of
prior bad acts which would establish the relationship between the
defendant and complaining witness "[i]f believed by the jury."
(Emphasis added).

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predicate of conditionally relevant evidence, the trial court's

review of the credibility of a witness is limited to determining

whether his or her testimony "is unreasonable, as a matter of

law, or inherently incredible," or such that reasonable people

"could not differ as to its effect." Riley v. Harris, 211 Va.

359, 362, 177 S.E.2d 630, 633 (1970). 4

In the present case, the relevance of the evidence of the

prior rib injuries was conditioned upon a determination of

witness credibility. This determination was "'exclusively within

the province of the jury.'" Myers v. Commonwealth, 11 Va. App.

634, 635, 400 S.E.2d 803, 804 (1991) (quoting Barker v.

Commonwealth, 230 Va. 370, 373, 337 S.E.2d 729, 732 (1985)).

When evidence presents a jury question, it is improper for the

trial court to assume the jury's function as the trier of fact.

See Whittington v. Commonwealth, 5 Va. App. 212, 216-17, 361

S.E.2d 449, 452 (1987). It would have been improper for the

trial court to have excluded relevant testimony on the ground

that the trial court did not believe a particular witness, unless

the witness' testimony was inherently incredible. See Montgomery

v. State, 810 S.W.2d 372, 382 (Tex. Cr. App. 1990).

We find that the evidence that appellant was the cause of

4
Indeed, in the jurisdictions which require the trial court
to make an antecedent determination that the prior bad act
occurred, we have found no authority, and appellant cites none,
which supports appellant's position that the court should resolve
conflicts in the credibility of witnesses in assessing the
admissibility of evidence.

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the child's prior injuries was not inherently incredible. The

record established that the child had received rib injuries prior

to the fatal shaking. While the child's mother and the child's

paternal grandmother were the only individuals, other than

appellant, who had been alone with the child during the time

frame in which the rib fractures were inflicted, both testified

that they had never shaken the child. Appellant maintained that

he had not caused the prior injuries. The jury was entitled to

consider and resolve this conflict in the evidence against

appellant.
For these reasons, we find the trial court did not abuse its

discretion in admitting the evidence of both the head and rib

injuries.

III. The Limiting Instruction

Appellant's failure to proffer a limiting instruction

prevents this Court from determining whether the trial court

erred by "failing" to grant such instruction. We also find no

reason to apply the ends of justice exception. Therefore, that

issue will not be considered in this appeal. See Rule 5A:18.

IV. Admission of the Autopsy Report

Appellant contends that portions of the autopsy report that

disclosed opinions of "other medical personnel" were erroneously

shown to the jury. That issue is raised for the first time on

appeal. To be considered on appeal, an objection must be timely

made to the trial court and the claimed error must be stated with

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specificity. See Marlowe v. Commonwealth, 2 Va. App. 619, 621,

347 S.E.2d 167, 168 (1986). Appellant failed to state an

appropriate objection to the autopsy report. Moreover, the

record clearly discloses that the autopsy report merely confirmed

the testimony of the medical authorities. We also find no reason

to apply the ends of justice exception. Accordingly, we will not

consider that issue.

V. Hearsay Evidence
Appellant further asserts that the trial court erred by

refusing to permit him to prove by Cramsey's testimony that Shari

had made out-of-court statements which would have shown her bias,

state of mind, and prior inconsistent testimony when testifying

on behalf of the Commonwealth. On cross-examination, Shari was

asked whether she had in effect stated to Cramsey that she had to

"pretty much go along with the authorities now because they could

take Matthew." Shari denied having made any statement to that

effect.

Appellant asked Cramsey to "tell the Court and jury whether

you had any conversation [with Shari] regarding Matthew and

Matthew staying with her and so on[.]" Cramsey responded, "I

really don't know." Counsel for appellant further attempted to

draw information from Cramsey by asking, "Did you and [Shari]

have any conversation about what [Shari] had to do for the

authorities or anything like that?" The Commonwealth objected

that the question called for hearsay evidence. The trial court

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advised defense counsel that he did not understand the question.

Counsel responded that the question was designed to show Shari's

state of mind. Counsel said, "I think -- we're trying to

introduce it more, not to persuade the trier of fact that the

statement is true, but that [Shari's] state of mind was such that

[Shari] might then make a statement that [Shari] might not

otherwise make, and [Shari] has testified in this matter." The

trial court sustained the Commonwealth's objection. The record

fails to show how Cramsey would have responded to the question.
If shown to be relevant to the case, out-of-court utterances

are admissible to show the state of mind of the declarant.

United Constr. Workers v. Laburnum Constr. Corp., 194 Va. 872,

876, 75 S.E.2d 694, 709 (1953), aff'd, 347 U.S. 656 (1954).

However, appellant has not shown by this record that Cramsey was

prepared to offer testimony relevant to an issue presented by the

trial. Moreover, he failed to avail himself of the opportunity

offered by the trial judge to permit Cramsey to testify to "what

she observed about [Shari]." The admissibility of evidence is a

matter to be determined by the trial judge. Evans-Smith v.

Commonwealth, 5 Va. App. 188, 196, 361 S.E.2d 436, 441 (1987);

see also Gottlieb v. Commonwealth, 126 Va. 807, 812, 101 S.E.

872, 874 (1920). On this record, we cannot say the trial court

was plainly wrong or abused its discretion in its ruling on this

issue.

VI. The Videotapes

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 The admissibility of evidence is within the broad discretion

of the trial court, and a ruling will not be disturbed on appeal

in the absence of an abuse of discretion. James v. Commonwealth,

18 Va. App. 746, 753, 446 S.E.2d 900, 904 (1994). The trial

court viewed the videotapes during a pretrial motion and found

them inadmissible in this case. We find no abuse of discretion

in the trial court's ruling based upon the purpose for which

appellant offered the videotapes.
In accordance with the principles outlined above, we affirm

appellant's conviction.

Affirmed.

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Baker, J., with whom Benton and Overton, J.J., join, dissenting.

For the reasons stated in the panel majority opinion,

Pavlick v. Commonwealth, 25 Va. App. 538, 489 S.E.2d 720 (1997),

I would reverse and remand this case to the trial court for such

further proceedings as the Commonwealth may be advised.

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