COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Agee
Argued at Alexandria, Virginia
ANABELIS CORRALES, S/K/A
ANABLIS CORRALES
MEMORANDUM OPINION * BY
v. Record No. 2797-01-2 JUDGE G. STEVEN AGEE
NOVEMBER 19, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
John W. Scott, Jr., Judge
John Franklin for appellant.
Margaret W. Reed, Assistant Attorney General
(Jerry W. Kilgore, Attorney General; Marla
Graff Decker, Senior Assistant Attorney
General, on brief), for appellee.
Anabelis Corrales, s/k/a Anablis Corrales ("Corrales") was
convicted in a jury trial in the City of Fredericksburg Circuit
Court of the second degree murder of her newborn baby and
sentenced to five years in prison. On appeal, Corrales contends
the trial court erred in admitting the autopsy report into
evidence, allowing the Medical Examiner to testify as to the
ultimate facts in issue and granting the Commonwealth's jury
instruction as to the elements of first degree murder while
refusing her instruction. She also challenges the sufficiency of
the evidence to sustain her conviction. For the reasons that
follow, we affirm the trial court's decision.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
BACKGROUND
In the early morning hours of January 17, 2000, Corrales's
sister, Rosa, found her passed out on the floor of Corrales's
bedroom. Rosa noticed blood in the bed and on her sister's legs
and called 911. When Emergency Medical Technicians (EMTs)
arrived, they found Corrales awake but disoriented in her bed.
One of the EMTs asked Corrales several times if she was pregnant,
and she repeatedly responded that she was not.
The EMTs took Corrales to the hospital where she was met by
a registered nurse who spoke fluent Spanish. Corrales gave a
false name and again denied being, or having been, pregnant. An
obstetrician, Dr. Tomzak, was called to the hospital and
determined that Corrales had recently given birth to a "near
term" baby.
Later that day Detective Doug Perkins of the Fredericksburg
police met the local medical examiner at the Corraleses'
residence. A baby was found in a double-tied plastic trash bag
in the closet of Corrales's bedroom. After determining the baby
was dead, it was transported to the state medical examiner's
office for an autopsy.
Dr. Art Shores of the medical examiner's office performed
the autopsy. Dr. Marcella Fierro, the Chief Medical Examiner for
the Commonwealth of Virginia, testified at trial that she
reviewed and "signed off on" Dr. Shores's report. Dr. Fierro
testified at trial that the conclusion in the report and her
conclusion were the same; the baby died from asphyxiation due to
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smothering by plastic bag. Dr. Fierro testified that the baby
did not have an infection, acute traumatic injury, or blocked
airways. She also testified that the baby breathed and was alive
before death. 1
ANALYSIS
I. Admission of the Autopsy Report
Corrales does not dispute that Code § 19.2-188 requires that
autopsy reports by the Chief Medical Examiner's Office be
received as evidence in any court proceeding. Her claim on
appeal is that while the autopsy report per se was admissible, it
was error for the trial court to admit into evidence that portion
of the autopsy report containing the medical examiner's
conclusion regarding cause of death. In short, Corrales avers
the autopsy report should have been redacted to omit the cause of
death section. Corrales cites Ward v. Commonwealth, 216 Va. 177,
217 S.E.2d 810 (1975), to support her contention.
In Ward the Supreme Court of Virginia ruled that a statement
as to the cause of death in the medical examiner's report was
inadmissible because "[the] recorded statement was an expression
of opinion and, standing alone, was incompetent to show the cause
of [the decedent's] death." Id. at 178, 217 S.E.2d at 811
(emphasis added). In contrast to Ward, the conclusion as to the
cause of death in this case did not "stand[] alone."
1
As the parties are fully conversant with the record in
this case and because this memorandum opinion carries no
precedential value, only those facts necessary to a disposition
of this appeal are recited.
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The trial court properly admitted other evidence as to the
cause of death – asphyxiation by plastic bag – through the
testimony of Dr. Fierro as well as Detective Perkins, to which
Corrales did not raise an objection. The "opinion" evidence
contained in the autopsy report was cumulative of their
unchallenged testimony.
Accordingly, we find no error in the admission of the
autopsy report into evidence based on the facts in this case.
II. Medical Examiner's Testimony
"The Court of Appeals will not consider an argument on
appeal which was not presented to the trial court." Ohree v.
Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998);
see also Rule 5A:18. According to the record Corrales objected
to the introduction of the autopsy report, specifically
Dr. Shores's conclusion as to the cause of death, as hearsay and
improper opinion testimony. However, the record does not reflect
an objection to Dr. Fierro's testimony on the same issue. It has
been "repeatedly and consistently held that a litigant must
object to a ruling of the circuit court if that litigant desires
to challenge the ruling upon appeal." Commonwealth v.
Washington, 263 Va. 298, 304, 559 S.E.2d 636, 639 (2002); see
also Waters v. Commonwealth, 39 Va. App. 72, 82-83, 569 S.E.2d
763, 767-68 (2002). Accordingly, Rule 5A:18 bars our
consideration of this question on appeal. Corrales has given no
reason to invoke the "good cause" or "ends of justice" exception
to Rule 5A:18, and we find none.
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III. Jury Instructions
"'[Our] responsibility in reviewing jury instructions is "to
see that the law has been clearly stated and that the
instructions cover all issues which the evidence fairly
raises."'" Leal v. Commonwealth, 37 Va. App. 525, 532, 559
S.E.2d 874, 878 (2002) (quoting Darnell v. Commonwealth, 6 Va.
App. 485, 488, 370 S.E.2d 717, 719 (1988) (citation omitted)).
"On appeal, although the Commonwealth prevailed at trial, when we
consider the refusal of the trial court to give a proffered
instruction, '"the appropriate standard of review requires that
we view the evidence with respect to the refused instruction in
the light most favorable to the defendant."'" Leal, 37 Va. App.
at 532, 559 S.E.2d at 878 (quoting Seegars v. Commonwealth, 18
Va. App. 641, 643, 445 S.E.2d 720, 722 (1994) (citations
omitted)).
The trial court must inform the jury of the essential
elements of the offense because an accurate statement of the law
is essential to a fair trial. Dowdy v. Commonwealth, 220 Va.
114, 116, 255 S.E.2d 506, 508 (1979). "An instruction should not
be given which incorrectly states the applicable law or which
would be confusing or misleading to the jury." Bruce v.
Commonwealth, 9 Va. App. 298, 300, 387 S.E.2d 279, 280 (1990)
(citing Cooper v. Commonwealth, 2 Va. App. 497, 345 S.E.2d 775
(1986)). Furthermore, "[i]t is not desirable to multiply
instructions and is not error to refuse even a correct
instruction on a point upon which the jury has already been fully
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and correctly instructed." Ambrose v. Commonwealth, 129 Va. 763,
766, 106 S.E. 348, 349 (1921).
Corrales alleges the trial court erred by refusing to give
her proffered jury instruction while giving the Commonwealth's
instruction on first degree murder. The instruction given
follows the model jury instructions for first degree murder.
Corrales's rejected instruction included two additional elements:
that the child was born alive and that the child had an
independent and separate existence apart from its mother.
In Lane v. Commonwealth, 219 Va. 509, 248 S.E.2d 781 (1978),
the Supreme Court of Virginia adhered to the prevailing view of
other jurisdictions that in a prosecution for killing a newly
born baby "it is incumbent upon the State to prove that the child
was born alive and had an independent and separate existence
apart from its mother." 2 Id. at 514, 248 S.E.2d at 783. Finding
the evidence insufficient to prove "that the child ever achieved
an independent existence apart from its mother," the Supreme
Court reversed the conviction. Corrales argued to the trial
court that Lane accordingly required her proffered instruction be
given as it contained essential elements of the crime charged.
2
Other states have also followed this rule. See e.g. State
v. Collington, 192 S.E.2d 856 (S.C. 1972); State v. Dickinson,
275 N.E.2d 599 (Ohio 1971); Montgomery v. State, 44 S.E.2d 242
(Ga. 1947); Jackson v. Commonwealth, 96 S.W.2d 1014 (Ky. 1936);
Morgan v. State, 256 S.W. 433 (Tenn. 1923).
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The Commonwealth argues that whether the baby was alive and
had an independent existence is implied within the first element
of the given model instruction: "that the defendant killed Baby
Girl Corrales." Simply put, the Commonwealth's position is that
the items Corrales proposes are, of necessity, subsumed in the
model instruction and further delineation would only confuse the
jury. We agree with the Commonwealth's position and find no
error in the rejection of Corrales's proffered instruction.
Most of the evidence relevant to this point entered the
record via Dr. Fierro's testimony. Dr. Fierro testified that the
baby breathed after being born. She testified that she could
find no other cause of the baby's death either from illness or
complications during birth. On cross-examination she admitted
that she could not rule out that the baby was dead before
placement into the plastic bag.
Corrales made extensive argument on those points of evidence
to the jury. Corrales was given, and took full advantage of, the
opportunity during closing argument, to impress the
Commonwealth's burden upon the jury, including arguing there must
be a showing the child was born alive and had a separate and
independent existence. The issue of whether Corrales "killed"
the baby (and whether the baby was alive and had a separate and
independent existence) was squarely before the jury. The
additional items Corrales proferred were duplicative of the
essence of the model instruction and could have well confused the
jury.
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Moreover, Lane does not hold that such separate instruction
to the jury is required as Corrales requested. Lane dealt only
with the sufficiency of the evidence and raised no issue as to a
requirement for the particular jury instruction proffered.
Therefore, we do not find Lane as authority for a mandated
instruction beyond that of the model instruction which was what
the trial court gave in this case.
We therefore find no error in the trial court's refusal to
give Corrales's proffered jury instruction and in the giving of
the Commonwealth's instruction.
IV. Sufficiency of the Evidence
When considering the sufficiency of the evidence on appeal
in a criminal case, this Court views the evidence in the light
most favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. See Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). On
review, this Court does not substitute its own judgment for that
of the trier of fact. See Cable v. Commonwealth, 243 Va. 236,
239, 415 S.E.2d 218, 220 (1992). The trial court's judgment will
not be set aside unless it appears that the judgment is plainly
wrong or without supporting evidence. See Martin v.
Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
Corrales argues on appeal that the evidence was insufficient
to support the verdict. Specifically, Corrales argues that the
Commonwealth failed to prove that: (1) the baby was born alive,
(2) the baby had a separate and independent existence from the
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mother, (3) she was the criminal agent, and (4) she acted with
malice. We disagree.
On the issue of whether the baby was born alive the jury
heard Dr. Fierro's testimony that the baby's lungs were filled
with air and floated in water. This led her to conclude the baby
had breathed on its own for at least a few minutes. She also
told the jury that she could find no other causation such as
disease or injury that would have caused the baby's death. The
defendant's own expert admitted that the evidence was consistent
with Dr. Fierro's opinion. From this testimony, the jury could
conclude that the baby was born alive and had an existence
separate and independent from the mother.
Corrales also asserts that the Commonwealth failed to
present direct evidence that she was the criminal agent and that
the only evidence was circumstantial. Circumstantial evidence,
if sufficiently convincing, is as competent and entitled to the
same weight as direct testimony. Williams v. Commonwealth, 259
Va. 377, 387, 527 S.E.2d 131, 137 (2000); Chichester v.
Commonwealth, 248 Va. 311, 329, 448 S.E.2d 638, 650 (1994), cert.
denied, 513 U.S. 1166 (1995). "[C]ircumstantial evidence alone
is sufficient to sustain a conviction." Johnson v. Commonwealth,
2 Va. App. 598, 604-05, 347 S.E.2d 163, 167 (1986). However,
"'all necessary circumstances proved must be consistent with
guilt and inconsistent with innocence and exclude every
reasonable hypothesis of innocence.'" Tweed v. Commonwealth, 36
Va. App. 363, 370, 550 S.E.2d 345, 348-49 (2001) (quoting Moran
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v. Commonwealth, 4 Va. App. 310, 314, 357 S.E.2d 551, 553
(1987)).
Having determined that Baby Corrales was born alive with no
apparent medical problems, the jury could justifiably infer from
the evidence that Corrales was the criminal agent of her death.
The evidence showed that Corrales continuously denied having
given birth, yet she was the only one who apparently knew of the
baby's existence and its location in the bag in her bedroom
closet.
Although the medical testimony was not conclusive, it was
certainly sufficient to support a causal connection between
Corrales's actions and the baby's death. See Cook v.
Commonwealth, 219 Va. 769, 250 S.E.2d 361 (1979). There was
clearly evidentiary support in the record for the jury's decision
which cannot be said to be plainly wrong.
Corrales finally contends the Commonwealth failed to prove
she acted with the requisite malice. "The authorities are
replete with definitions of malice, but a common theme running
through them is a requirement that a wrongful act be done
'willfully or purposefully.'" Vaughan v. Commonwealth, 7
Va. App. 665, 674, 376 S.E.2d 801, 806 (1989) (quoting Williamson
v. Commonwealth, 180 Va. 277, 280, 23 S.E.2d 240, 241 (1942)).
"Killing with malice but without premeditation and deliberation
is murder in the second degree." Elliot v. Commonwealth, 30
Va. App. 430, 436, 517 S.E.2d 271, 274 (1999) (citing Perricllia
v. Commonwealth, 229 Va. 85, 91, 326 S.E.2d 679, 683 (1985)).
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Furthermore, the trier of fact is permitted to infer malice from
the evidence. Vaughan, 7 Va. App. at 674, 376 S.E.2d at 806.
The jury could infer malice through Corrales's actions after
giving birth. When determining whether her actions were done
willfully or purposefully the jury could have considered
Corrales's constant denials of being pregnant at the hospital,
testimony from her friend that she wanted to cremate the body,
and evidence that she faced eviction for having another baby.
Inference of malice from this evidence was not error.
For the foregoing reasons, we find the evidence sufficient
to support the jury's verdict.
CONCLUSION
Having found no error in the determinations of the trial
court, the conviction is affirmed.
Affirmed.
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