COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
JAMES MATTHEW MARSHALL
OPINION BY
v. Record No. 0394-97-1 JUDGE JOSEPH E. BAKER
FEBRUARY 24, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Verbena M. Askew, Judge
David G. Wittan (David G. Wittan, P.C., on
brief), for appellant.
Kathleen B. Martin, Assistant Attorney
General (Richard Cullen, Attorney General, on
brief), for appellee.
James Matthew Marshall (appellant) appeals from his bench
trial conviction by the Circuit Court of Newport News (trial
court) for attempted object sexual penetration in violation of
Code §§ 18.2-26 and 18.2-67.2 and first degree (felony) murder in
violation of Code § 18.2-32 in the death of his infant son, Tyler
Marshall. On appeal, he challenges the sufficiency of the
evidence to support both convictions. For the reasons that
follow, we find the evidence sufficient to support the object
sexual penetration conviction and hold that Rule 5A:18 bars our
review of the felony murder conviction.
On April 30, 1996, between 2:30 p.m. and 3:00 p.m., Laurie
Hunter went to her sister's house, leaving her sleeping
eight-month-old son, Tyler, with appellant, Tyler's father, in
the home the three shared. Neither Hunter nor appellant had
noticed anything unusual about Tyler's behavior or body while
caring for him that day, and Hunter also had not observed
anything unusual the previous night.
At about 5:00 p.m., appellant called Hunter because Tyler
was "breathing funny" and was "sick." When Hunter arrived home
several minutes later, Tyler was "pale" and "unresponsive," his
breathing was "shallow and his eyes were . . . rolled back."
Hunter observed no injuries other than some "little bruises on
[Tyler's] stomach." Hunter called 911, and Tyler was taken by
ambulance to Riverside Hospital. He was later transported to
Children's Hospital of the King's Daughters in Norfolk, where he
died at 9:15 a.m. on May 1, 1996.
Tyler was examined by a Dr. Michaels, who contacted
Dr. Beck, Tyler's pediatrician. Dr. Beck testified that when she
saw Tyler in the emergency room around 6:30 p.m. to 7:00 p.m. on
April 30, 1996, she was unable to determine why he was ill. He
had been "very healthy and well" when Beck had seen him for a
routine check-up on April 3, 1996. Appellant told Dr. Beck that
Tyler had vomited when he awoke from his nap around 3:45 p.m.,
was "very listless and restless," and had rolled off the couch.
Dr. Beck observed scattered bruises on Tyler's abdomen and in his
groin area, but did not examine his rectum. No medical
procedures were performed on Tyler's anal area in the emergency
room. Dr. Beck said that Tyler would have been cleaned if he had
defecated, but that he had not done so while she was present.
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Dr. Nakagawa, a pediatric intensive care specialist, began
treating Tyler at about 11:00 p.m. after Tyler had been
transported to CHKD in Norfolk. Tyler was in "profound shock,"
and Nakagawa thought he might have a "hollow organ rupture,"
permitting organisms from his bowels to infiltrate his
bloodstream. Nakagawa noted that Tyler "had a lot of abdominal
. . . tension" and some small bruises on his abdomen. Nakagawa
did not examine Tyler's back because he was "too unstable," and
he performed no medical procedures on Tyler's anal area. He
concluded that Tyler "sustained blunt abdominal trauma, secondary
to a punch injury, and . . . [the] circular marks [on Tyler's
abdomen] [were] the results of either the fingertips . . . or the
knuckles being struck against the abdominal wall."
After Tyler's death on the morning of May 1, 1996, Dr. Bush
autopsied the infant's body at 2:00 p.m. that same day,
concluding that Tyler died from a "severe blunt force trauma to
the abdomen." She did not believe that Tyler's injuries could
have resulted from falling off a couch onto pillows, but
testified that Tyler's abdominal injuries could have been caused
by an adult falling on the child, hitting his abdomen with an arm
or a leg. Dr. Bush also observed "relatively fresh" contusions
and abrasions around Tyler's anus and anal ring. She testified
that the injuries on the anal ring could not have been caused by
the trauma to Tyler's abdomen, nor could they have been caused by
a rectal thermometer. She further testified that they could have
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been caused by a human finger "[i]f the anus was digitalized or
the finger was used in a rough manner." On cross-examination,
she said that a rough towel in conjunction with a finger, "very
roughly pushed up or battered against the anus," possibly could
have caused the abrasions. She acknowledged that the bruising
could have resulted from a prolapsed rectum, but said she saw no
evidence of that condition on autopsy. She also detected no
lacerations of the anus to indicate that penetration had
occurred. All injuries appeared to be of the same age.
Hunter testified that appellant first told her over the
telephone that Tyler had become ill and had thrown up on himself.
When she arrived home, appellant said Tyler had rolled off the
couch onto some pillows on the floor. On May 5, 1996, the day of
Tyler's funeral, appellant called Hunter from jail and said he
had fallen on Tyler accidentally while playing a game called
"Pounce," in which he lunged toward the infant in order to make
him laugh.
Appellant testified at trial that he hit Tyler in the
stomach with his lower arm when he accidentally fell on Tyler
while playing "Pounce." Initially, Tyler did not appear hurt,
but twenty to thirty minutes later, he began to whine, became
pale and had trouble breathing. While appellant was phoning
Hunter, Tyler rolled off the couch onto some pillows. Appellant
gave no explanation for his not having told Tyler's doctors that
he fell on the child. He denied doing anything to Tyler that
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would have injured his anus and denied knowing how those injuries
occurred. He admitted to having five prior felony convictions.
Appellant's counsel moved to strike at the close of the
Commonwealth's evidence and again at the close of all the
evidence. The Commonwealth argued that Tyler's injuries were
consistent with an attempt "to sodomize this child and stick [a]
finger in [his anus]," and also argued that, under Code
§ 18.2-32, a murder during "the commission of attempted inanimate
or animate object sexual penetration" is first degree murder. At
no time in the trial court did appellant's counsel contend that
proof of animate rather than inanimate object sexual penetration
was insufficient to support a first degree murder conviction.
In convicting appellant of murder and attempted inanimate or
animate object sexual penetration, the trial judge said she "did
not find [appellant] very credible at all" and that "the evidence
[was] consistent with guilt" as "everything points to [appellant]
in this case, and the Court doesn't have any reasonable doubt at
all."
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
therefrom. See Martin v. Commonwealth, 4 Va. App. 438, 443, 358
S.E.2d 415, 418 (1987). The judgment of a trial court will be
disturbed only if plainly wrong or without evidence to support
it. See id. The credibility of a witness and the inferences to
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be drawn from proven facts are matters solely for the fact
finder's determination. See Long v. Commonwealth, 8 Va. App.
194, 199, 379 S.E.2d 473, 476 (1989). In its role of judging
witness credibility, the fact finder is entitled to disbelieve
the self-serving testimony of the accused and to conclude that he
or she is lying to conceal his or her guilt. See Speight v.
Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95, 98 (1997)
(en banc).
"Circumstantial 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." Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864,
876 (1983). However, "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). Whether a hypothesis of innocence is reasonable is a
question of fact. See Cantrell v. Commonwealth, 7 Va. App. 269,
290, 373 S.E.2d 328, 339 (1988).
I.
Appellant contends first that the circumstantial evidence
was insufficient to support his conviction for attempted
inanimate or animate object sexual penetration in violation of
Code § 18.2-67.2 1 because it failed to exclude the possibility
1
That code section provides, in relevant part:
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that the injuries to Tyler's anus occurred during medical
treatment. 2 We disagree. By convicting appellant of attempted
object sexual penetration, the trial court implicitly found that
the only reasonable hypotheses flowing from the evidence were (1)
that the injuries to Tyler's anus occurred while he was in
appellant's care rather than while undergoing medical treatment
and (2) that appellant was the criminal agent. On this record,
we conclude that finding is not plainly wrong.
The evidence showed that both Hunter and appellant had cared
for Tyler, including changing his diapers, during the twenty-four
hours preceding his medical treatment and that neither had
noticed anything unusual. While Tyler was alone in appellant's
care that afternoon, appellant delivered a severe blow to Tyler's
abdomen. Thereafter, Tyler was transported by ambulance and
treated at Riverside Hospital and Children's Hospital of the
King's Daughters before dying at 9:15 a.m. the next morning.
Treating physicians Beck and Nakagawa testified that no
An accused shall be guilty of inanimate or
animate object sexual penetration if he or
she penetrates the . . . anus of a
complaining witness who is not his or her
spouse with any object, other than for a bona
fide medical purpose . . . , and . . . [t]he
complaining witness is less than thirteen
years of age . . . .
Code § 18.2-67.2(A) (emphasis added).
2
Appellant also challenges his first degree murder
conviction on this basis. Because we affirm the conviction for
object sexual penetration on this issue, we also affirm the
conviction for first degree murder on this issue.
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medical procedures were performed on Tyler's anal area in either
hospital. Although Dr. Beck testified that Tyler's anal area
would have been cleaned if he had defecated while under medical
care, he did not defecate while Dr. Beck was present. Autopsy
physician Bush testified that Tyler's "relatively fresh" anal
injuries were of the same age as his abdominal injuries and could
not have been caused by the abdominal trauma or by a rectal
thermometer. Although Dr. Bush believed they could have been
caused by a finger, used with or without a towel, if "very
roughly pushed up or battered against the anus," or by a
prolapsed rectum, no evidence supported a hypothesis that the
injury occurred in either of those ways. No evidence indicated
that Tyler defecated at any time while under medical care or that
any of the trained medical personnel rubbed Tyler's anus harshly
enough to have caused the injuries described by Dr. Bush.
Furthermore, the trial judge was not required to believe
appellant's testimony that he did not know how Tyler sustained
those anal injuries. After giving conflicting accounts regarding
Tyler's abdominal injuries, appellant, a convicted felon,
admitted hitting Tyler in the stomach while Tyler was in his sole
care, and the evidence proved that the anal injuries were of the
same age.
Therefore, the only reasonable hypothesis flowing from the
evidence, viewed in the light most favorable to the Commonwealth,
is that appellant inflicted Tyler's anal injuries, that he did so
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with the intent to penetrate Tyler's anus with some object,
animate or inanimate, and that he performed a direct, but
ineffectual, act to consummate the offense. See Code §§ 18.2-26,
18.2-67.2.
II.
Appellant next contends that his conviction for first degree
murder must be set aside on the ground that the evidence failed
to prove the object with which he attempted penetration was
inanimate, rather than animate, as required for a first degree
3
murder conviction under Code § 18.2-32. We hold that appellant
failed properly to preserve the issue and that Rule 5A:18 bars
our review.
Pursuant to Rule 5A:18, this Court will not consider trial
court error as a basis for reversal where no timely objection was
made, except to attain the ends of justice. Where an appellant
makes a general objection to the sufficiency of the evidence that
3
In contrast to Code § 18.2-67.2, which prohibits object
sexual penetration with an inanimate or animate object, a
conviction for first degree felony murder under Code § 18.2-32
requires proof of "[m]urder . . . in the commission of, or
attempt to commit . . . forcible sodomy [or] inanimate object
sexual penetration." Id. (emphasis added). Forcible sodomy,
defined in Code § 18.2-67.1 to include "anallingus [sic], or anal
intercourse" of a victim less than thirteen years of age, would,
therefore, include some, but not all, acts of animate object
penetration.
The Commonwealth argued at trial that Tyler's injuries were
consistent with an attempt "to sodomize this child and stick [a]
finger in [his anus]." The former act amounts to forcible
sodomy, which would constitute a valid predicate offense; the
latter act amounts to neither forcible sodomy nor inanimate
object penetration and, therefore, would not constitute a valid
predicate offense.
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"[does] not specify in what respects [appellant] considered the
evidence to be insufficient to prove [the charged offense,] . . .
the issue of whether the evidence was insufficient to prove a
particular [unmentioned] element of the offense was not properly
preserved." Redman v. Commonwealth, 25 Va. App. 215, 220, 487
S.E.2d 269, 272 (1997).
To invoke the ends of justice exception to Rule 5A:18, the
record must "affirmatively show[] that a miscarriage of justice
has occurred, not . . . merely . . . that a miscarriage might
have occurred." Mounce v. Commonwealth, 4 Va. App. 433, 436, 357
S.E.2d 742, 744 (1987). To satisfy this burden, an appellant
must show "more than that the Commonwealth failed to prove an
element of the offense. . . . [T]he appellant must demonstrate
that he or she was convicted for conduct that was not a criminal
offense[,] or the record must affirmatively prove that an element
of the offense did not occur." Redman, 25 Va. App. at 221-22,
487 S.E.2d at 272-73.
In this case, although appellant moved to strike, he failed
to specifically assert that the evidence was insufficient to
prove sexual penetration with an inanimate rather than animate
object, as required to preserve the issue for appeal.
Furthermore, the ends of justice exception does not permit us to
excuse this failure, for the record does not show that appellant
"was convicted for conduct that was not a criminal offense or
. . . that an element of the offense did not occur." Id. at 222,
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487 S.E.2d at 273.
Had the trial court convicted appellant for felony murder
under the mistaken belief that proof of attempted penetration
with any animate object 4 would support such a conviction, we
would be permitted to invoke the ends of justice exception to
reverse the conviction because this would constitute a conviction
for a non-existent offense. In this case, the record indicates
the Commonwealth's attorney mistakenly believed that a killing is
felony murder under Code § 18.2-32 if it occurs during "the
commission of attempted inanimate or animate object penetration."
(Emphasis added). However, the record contains no affirmative
indication that the trial court also operated under this mistaken
belief, and we are bound by the presumption that the trial court
knew and properly applied the law, see, e.g., Wilson v.
Commonwealth, 23 Va. App. 318, 326, 477 S.E.2d 7, 10 (1996),
convicting appellant for felony murder based on the predicate
offense of attempted inanimate object penetration. 5
Finally, the evidence did not affirmatively prove that the
attempted penetration occurred with an animate rather than
inanimate object. Therefore, we may not invoke the ends of
justice exception to review appellant's challenge to the
4
"[A]nallingus [sic], or anal intercourse," acts of animate
object penetration that also constitute forcible sodomy as
defined in Code § 18.2-67.1, provide valid predicate offenses
under Code § 18.2-32. See the discussion, supra, at note 3.
5
As set forth above, forcible sodomy is also a valid
predicate offense.
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sufficiency of the evidence on this element. See Redman, 25 Va.
App. at 222, 487 S.E.2d at 273.
For the reasons set forth above, we hold that the evidence
was sufficient to support appellant's conviction for object
sexual penetration and that Rule 5A:18 bars our review of
appellant's assignment of error regarding the sufficiency of the
evidence to support his first degree murder conviction.
Therefore, we affirm both convictions.
Affirmed.
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