Lavonnia Nicole Tate v. Commonwealth of Virginia

Tuesday 20th

March, 2001.

Lavonnia Nicole Tate, Appellant,

against Record No. 0042-99-2
Circuit Court No. 98-1398-F

Commonwealth of Virginia, Appellee.

Upon a Rehearing En Banc

Before Chief Judge Fitzpatrick, Judges Benton, Willis, Elder,
Bray Annunziata, Bumgardner, Frank, Humphreys, Clements and Agee

Gregory W. Franklin, Assistant Public
Defender, for appellant.

Shelly R. James, Assistant Attorney
General (Mark L. Earley, Attorney
General, on brief), for appellee.

By unpublished opinion dated July 18, 2000, a divided

panel of this Court affirmed the judgment of the trial court.

We stayed the mandate of that decision and granted rehearing en

banc.

Upon rehearing en banc, it is ordered that the stay of

this Court's July 18, 2000 mandate is lifted, and the judgment

of the trial court is affirmed for the reasons set forth in that

portion of the majority opinion under "B. Intent."

Judges Benton and Elder dissent for the reasons set

forth in the panel opinion's dissent.
 Appellant further contended the injuries inflicted

upon the child did not constitute "serious injury" under Code §

18.2-371.1(A). Because appellant failed to preserve this

argument, this issue is barred on appeal. See Rule 5A:18.

While appellant, in her motion to strike at the

conclusion of the Commonwealth's evidence, challenged the

sufficiency of the evidence by arguing the Commonwealth had not

proven "serious injury," she did not renew that argument in her

motion to strike at the conclusion of all the evidence.

Under Rule 5A:18, in order to preserve the question of

the sufficiency of the evidence, the appellant must, at a

minimum, make a timely motion to strike the evidence at the

conclusion of the appellant's evidence, or, in a bench trial,

present an appropriate argument in summation, or make a motion

to set aside the verdict. See Parnell v. Commonwealth, 15 Va.

App. 342, 349, 423, S.E.2d 834, 838-39 (1992); Fortune v.

Commonwealth, 14 Va. App. 225, 228, 416 S.E.2d 25, 27 (1992);

Campbell v. Commonwealth, 12 Va. App. 476, 479-81, 405 S.E.2d 1,

1-3 (1991) (en banc).

Moreover, the record reflects no reason to invoke the

good cause or ends of justice exceptions to Rule 5A:18.

Judge Benton would hold that at the conclusion of all

the evidence appellant's trial counsel adopted the arguments he

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made in the motion to strike the Commonwealth's evidence and,

thus, preserved this issue.

The Commonwealth shall recover of the appellant the

costs in this Court, which costs shall include an additional fee

of $200 for services rendered by the Public Defender on the

rehearing portion of this appeal, in addition to counsel's

necessary direct out-of-pocket expenses, and the costs in the

trial court. This amount shall be added to the costs due the

Commonwealth in the July 18, 2000 mandate.

This order shall be certified to the trial court.

A Copy,

Teste:

Cynthia L. McCoy, Clerk

By:

Deputy Clerk

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 COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Lemons ∗
Argued at Richmond, Virginia

LAVONNIA NICOLE TATE
MEMORANDUM OPINION ∗∗ BY
v. Record No. 0042-99-2 JUDGE SAM W. COLEMAN III
JULY 18, 2000
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge

Gregory W. Franklin, Assistant Public
Defender (David J. Johnson, Public Defender,
on brief), for appellant.

Shelly R. James, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.

Lavonnia Nicole Tate was convicted in a bench trial of child

neglect, a Class 4 felony, in violation of Code § 18.2-371.1(A). 1

∗
Justice Lemons participated in the hearing and decision of
this case prior to his investiture as a Justice of the Supreme
Court of Virginia.
∗∗
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
1
Code § 18.2-371.1 provides:

A. Any parent, guardian, or other
person responsible for the care of
a child under the age of eighteen
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

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On appeal she argues that the injuries her child sustained were

not serious injuries as defined by Code § 18.2-371.1(A) and that

the evidence is insufficient to prove that a willful act,

omission, or refusal to provide necessary care by her caused or

permitted serious injury to the child. We disagree and affirm the

conviction.

I. BACKGROUND

life or health of such child shall
be guilty of a Class 4 felony.
For purposes of this subsection,
"serious injury" shall include but
not be limited to (i)
disfigurement, (ii) a fracture,
(iii) a severe burn or laceration,
(iv) mutilation, (v) maiming, (vi)
forced ingestion of dangerous
substances, or (vii) life-
threatening internal injuries.
B. Any parent, guardian, or other
person responsible for the care of
a child under the age of eighteen
whose willful act or omission in
the care of such child was so
gross, wanton and culpable as to
show a reckless disregard for
human life shall be guilty of a
Class 6 felony.
C. Any parent, guardian or other
person having care, custody, or
control of a minor child who in
good faith is under treatment
solely by spiritual means through
prayer in accordance with the
tenets and practices of a
recognized church or religious
denomination shall not, for that
reason alone, be considered in
violation of this section.

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 Viewed in the light most favorable to the Commonwealth, the

evidence established that on August 15, 1997, Lavonnia Tate left

her eighteen-month-old daughter in the care of her boyfriend,

Jawan Brown, while she was at work. Tate testified that she

instructed Brown to take the child to the babysitter. Later that

day, when Brown returned with the child to pick Tate up from work,

she discovered that he had not taken the child to the babysitter.

Tate also observed several scratches on the child's face and a

"mark" on the child's lip. Brown told Tate that the child was

injured "when she fell running down the sidewalk."

On the following Monday, August 18, 1997, Tate again

entrusted her child to Brown while she worked, with the

understanding that Brown would take the child to the babysitter.

Later that day when Brown returned the child, Tate observed a

large bruise on the child's forehead and several bruises and

scratches on the child's body. When Tate asked Brown what had

happened, he responded that he was not going to be responsible for

someone else's child.

Tate testified that she felt that she should have sought

emergency medical treatment for the child's injuries and she felt

she could not provide the necessary care and treatment for the

child's injuries. She stated, however, that she did not seek

treatment because she was frightened that others would think she

had inflicted the injuries on the child. Tate also testified that

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she would not permit the child's father, James Brown, to see the

child on August 18 because she was fearful that he would think she

injured the child.

On August 18, James Brown went to Tate's residence to visit

his daughter. After Tate refused to permit James Brown to see the

child, he became suspicious that the child might be hurt and

called the police. A Richmond police officer arrived at Tate's

residence, and, after seeing the child, took the child to the

hospital for examination and treatment. The child appeared to be

lethargic and in need of medical care.

Dr. Thomas Young examined the child on August 19, 1997. He

testified that the child had numerous bruises of various ages to

her body. The child also had numerous "small lacerations on her

face and numerous bruises on her legs." She had a scab on her

left shoulder, which Dr. Young testified was "interesting in shape

in that it was two linear lines," and she had a bruise on her

right thigh in the shape of a thumbprint. The child also had

"reddish bruises on her forehead" and a "large flat dark brown

bruise on her forehead." Dr. Young testified that based on the

color of the bruises, he could determine the age of the bruise.

He stated that when a bruise first occurs, it is "a scarlet red,

purple color," and after a couple of days, "the bruise darkens

into a darker brown color and then with time over a couple of days

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it kind of lightens up into a yellowish/green color, and finally

to a tan color."

Dr. Robin Foster testified that a review of a CT scan of the

child's brain performed on August 19 indicated "areas of petechial

hemorrhages, which basically means tiny little spots of bleeding

throughout the brain tissue, and an area of bruising on the right

occiput of the head, which is the back of the brain on the

right-hand side." Dr. Foster further testified that a MRI

performed on August 21 indicated that the bleeding in the brain

had occurred within three or four days of the MRI test. The

injuries were indicative of brain trauma, but they were not life

threatening. The other tests that were conducted showed no

evidence of any bone fractures and the retinal examination showed

no hemorrhages, which is a common injury with acceleration and

deceleration trauma.

In finding Tate guilty of the Class 4 felony by violating

Code § 18.2-371.1(A), the trial judge made two separate findings

as the basis for the conviction. The trial judge found that Tate

violated the statute by "willful . . . omission or refusal to

provide . . . necessary care for the child's health" and by

negligently entrusting the child to Jawan Brown on the second

occasion after knowing that the child had received extensive

injuries when in Brown's care three days earlier, "permit[ing]

serious injury to the life or health of [the] child."

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 II. ANALYSIS

On review of a challenge to the sufficiency of the evidence,

we view the evidence in the light most favorable to the

Commonwealth, the prevailing party, and grant to it all reasonable

inferences fairly deducible therefrom. See Commonwealth v.

Jenkins, 255 Va. 516, 521, 499 S.E.2d 263, 265 (1998). The

credibility of the witnesses and the weight accorded their

testimony are matters solely within the province of the fact

finder. See Lane v. Commonwealth, 184 Va. 603, 610-11, 35 S.E.2d

749, 752 (1945). "The judgment of a trial court sitting without a

jury is entitled to the same weight as a jury verdict and will not

be set aside unless it appears from the evidence that the judgment

is plainly wrong or without evidence to support it." Martin v.

Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)

(citations omitted).

A. Serious Injury

Tate argues that the injuries to the child did not constitute

"serious injury" as contemplated by the statute. We disagree.

Code § 18.2-371.1(A) provides, that "'serious injury' shall

include but not be limited to (i) disfigurement, (ii) a

fracture, (iii) a severe burn or laceration, (iv) mutilation,

(v) maiming, (vi) forced ingestion of dangerous substances, or

(vii) life-threatening internal injuries."

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 In determining whether the child's injuries fall within the

definition of "serious injury" proscribed by Code § 18.2-371.1(A),

we apply the statutory construction principles of noscitur a

sociis and ejusdem generis. The principle of noscitur a sociis

instructs that "the meaning of a word takes color and expression

from the purport of the entire phrase of which it is a part, and

it must be read in harmony with its context." Turner v.

Commonwealth, 226 Va. 456, 460, 309 S.E.2d 337, 339 (1983).

Similarly, the rule of ejusdem generis instructs that "when a

particular class of persons or things is enumerated in a statute

and general words follow, the general words are to be restricted

in their meaning to a sense analogous to the less general,

particular words." Martin v. Commonwealth, 224 Va. 298, 301-02,

295 S.E.2d 890, 892-93 (1982) (citations omitted).

"It is a basic rule of statutory construction that a word in

a statute is to be given its everyday, ordinary meaning unless the

word is a word of art." Stein v. Commonwealth, 12 Va. App. 65,

69, 402 S.E.2d 238, 241 (1991) (citations omitted). Serious is

defined as "grave in . . . appearance," "requiring considerable

care." Webster's Third New International Dictionary 2073 (1981);

see generally Brewster v. Commonwealth, 23 Va. App. 354, 357, 477

S.E.2d 288, 289 (1996) (holding that the term "serious bodily

injury" is not unconstitutionally vague); Commonwealth v. Hill,

196 Va. 18, 23, 82 S.E.2d 473, 476 (1954) (finding that in

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defining "serious" under former Code § 46-420, the word should be

given its ordinary meaning). Code § 18.2-371.1(A) provides a

non-exhaustive list of examples of serious injuries. Although the

injuries sustained by the child in this case are not specifically

listed among the enumerated examples, from the evidence presented,

the trial court did not err in concluding that the child's

injuries were serious.

Here, the evidence proved that the eighteen-month-old child

suffered from numerous bruises of various ages on her entire body.

The child had a large bruise on her forehead that was several days

old and numerous small bruises and lacerations on her face. She

had a scab on her shoulder in the shape of two linear lines and a

bruise in the shape of a thumbprint on her thigh. Dr. Young

testified that he examined the child on August 19, 1997 and that

the child's bruises varied in age from one or two days to five

days old. A MRI showed scattered petechial hemorrhages throughout

the child's brain that were approximately three to four days old.

The child also had an area of bruising on the right occiput of the

head. When the child was taken to the hospital, she appeared to

be lethargic. The child's injuries, although not life

threatening, were indicative of multiple and repetitive trauma.

Code § 18.2-371.1(A) does not limit "serious injury" to those

injuries that are permanent or life threatening. An injury may be

serious because of the nature and extent of the injury, the effect

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the injury has upon the victim, or the extent to which the injury

may require medical treatment. We conclude that the extent of the

lacerations and bruises on the child's body and the sub-cranial

bruising inflicted on this eighteen-month-old child over the

course of several days, which apparently caused the child to be

lethargic, supports the trial court's finding that the child

sustained "serious injury." The injuries were extensive, in that

there were numerous bruises and lacerations over a large part of

her body; they were clearly visible; and they markedly affected

the child's behavior, leaving her lethargic. The evidence is

sufficient to support the trial court's finding that the child was

seriously injured.

B. Intent

Tate argues that the evidence is insufficient to prove that

she, "by willful act or omission or refusal to provide any

necessary care for the child's health," caused or permitted the

serious injury to the child. Tate argues that the evidence failed

to prove that she was aware that Jawan Brown would intentionally

injure the child when she entrusted him with the child on the

second occasion on August 18. Tate also argues that her decision

not to seek medical care for the child's injuries on August 18 did

not contribute, in any way, to the nature or seriousness of the

child's injuries and that the failure to seek medical care did not

cause or allow the injuries to worsen. She points out that other

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than to examine the child and to determine the nature and extent

of the injuries, no treatment for the injuries was prescribed or

provided.

A person's intent may, and generally must, be shown by the

circumstances, including a person's conduct and statements. See

Nobles v. Commonwealth, 218 Va. 548, 551, 238 S.E.2d 808, 810

(1977); Hancock v. Commonwealth, 12 Va. App. 774, 782, 407

S.E.2d 301, 306 (1991). "[T]he reasonable inferences to be

drawn from proven facts are within the province of the trier of

fact." Fleming v. Commonwealth, 13 Va. App. 349, 353, 412

S.E.2d 180, 183 (1991) (citation omitted).

Although Tate conceded at trial she felt the child's injuries

required or merited medical attention and she knew she could not

provide adequate care for the child's injuries, she argues the

lack of medical attention did not contribute to the seriousness of

the child's injuries. The Commonwealth conceded at oral argument

that the child's injuries did not become worse from the lack of

medical care. Accordingly, we do not address that aspect of the

defendant's argument that she violated the statute by failing to

obtain necessary medical care. We address only whether Tate "by

willful act or omission" caused or permitted serious injury to the

child by entrusting care of the child to Jawan Brown on August 18.

We find the evidence to be sufficient to support the trial

court's finding that Tate knew her child was at risk but, by

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"omission or refusal" to act, allowed the abuse to continue by

entrusting her child to Brown on August 18. On August 15, Tate

observed extensive cuts and bruises on the child's face and body

after she had been in Brown's care. The trial court was not

plainly wrong in drawing the inference that Tate knew that the

injuries were more than a child would receive in a minor fall.

She made little or no inquiry from Brown and required little or no

explanation from him concerning the injuries or why he had not

taken the child to day care. Instead, she permitted Brown to care

for her child on August 18, when the child sustained more injury

to her entire body, including sub-cranial bruising to her head.

See Ellis v. Commonwealth, 29 Va. App. 548, 554, 513 S.E.2d 453,

456 (1999) (noting that "willful" denotes an act that is

intentional, knowing, or voluntary).

When Dr. Young questioned Tate about the numerous bruises,

Tate stated she "did not know how that happened." Tate also

denied "noticing any other bruises and would not offer an

explanation for them" even though the bruises were readily visible

and were several days old. Although Tate testified that she

instructed Brown to take the child to day care on August 18, she

was aware that he had failed to do so on August 15 as instructed,

and she was aware that the child had suffered extensive injuries

on that day while in his care. Inaction, when action was

necessary to protect the health and well-being of her child, was

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culpable. The fact finder reasonably could have inferred from the

child's extensive visible injuries on August 15, that Tate

willfully permitted her child to be in danger of serious injury by

allowing Brown to care for the child on August 18. Accordingly,

the evidence is sufficient to support the trial court's finding

that, by allowing Jawan Brown to care for the child on the second

occasion, Tate willfully permitted serious injury to the child's

health.

Accordingly, we affirm the conviction.

Affirmed.

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Benton, J., dissenting.

Code § 18.2-371.1(A) provides as follows:

Any parent, guardian, or other
person responsible for the care of
a child under the age of eighteen
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 such child shall
be guilty of a Class 4 felony.
For purposes of this subsection,
"serious injury" shall include but
not be limited to (i)
disfigurement, (ii) a fracture,
(iii) a severe burn or laceration,
(iv) mutilation, (v) maiming, (vi)
forced ingestion of dangerous
substances, or (vii) life-
threatening internal injuries.
To sustain a conviction under Code § 18.2-371.1, the evidence must

prove beyond a reasonable doubt that Lavonnia Nicole Tate, "by

willful act or omission or refusal to provide any necessary care

for the child's health," caused or permitted serious injury to the

child. Id.

"[E]vidence is not sufficient
to support a conviction if it
engenders only a suspicion or even
a probability of guilt.
Conviction cannot rest upon
conjecture. The evidence must be
such that it excludes every
reasonable hypothesis of
innocence. The giving by the
accused of an unclear or
unreasonable or false explanation
of his conduct or account of his
doings are matters for the jury to
consider, but they do not shift
from the Commonwealth the ultimate
burden of proving by the facts or

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 the circumstances, or both, that
beyond all reasonable doubt the
defendant committed the crime
charged against him."
Hyde v. Commonwealth, 217 Va. 950, 955, 234 S.E.2d 74, 78 (1977)

(citation omitted).

The Commonwealth prosecuted Tate on the theory that she

omitted to seek treatment for the child's initial injuries and

then permitted the child to be injured again. Tate contends that

her failure to promptly seek medical attention did not contribute

to the seriousness of the child's injuries. Indeed, the evidence

proved, and the Commonwealth concedes, that the child's injuries

did not become worse from the lack of medical care. Moreover, no

evidence in the record tended to prove that the child's injuries

became more serious because Tate failed to seek medical attention

for the child on August 18. The record contains no evidence that

any treatment was needed or provided. When the doctors examined

the child and determined the nature and extent of the injuries,

the doctors prescribed no treatment for the injuries. Thus, the

issue is whether the evidence supports the trial judge's ruling

that Tate "permit[ted] serious injury" to the child in violation

of Code § 18.2-371.1(A) by entrusting her to Brown on August 18,

after knowing that he had inflicted serious injury on the child

three days earlier.

The evidence fails to prove that Tate knew her child was at

risk for serious injury and, by "omission or refusal" to act,

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allowed the child to be injured further by entrusting her child to

Brown on August 18. On August 15, Tate had observed several

"scratch marks on [the child's] forehead and her cheek and the

mark on her lip." When Tate questioned Brown about the child's

injuries, Brown, who had cared for the child that day, informed

Tate that the child "fell running down the sidewalk." Tate

accepted this explanation as a plausible accounting for the

child's injuries. Tate testified that when she bathed the child,

she had no marks or bruises on her body.

Tate spent an uneventful weekend with Brown and the child.

During the weekend while she cared for the child, Tate did not

observe any other marks, bruises, or injuries. No evidence

negated the hypothesis that the child's injuries on August 15 were

consistent with injuries she might have received while she ran

down the sidewalk. See Commonwealth v. Smith, 259 Va. 780, 783,

___ S.E.2d ___, ___ (2000) (holding that where proof relied upon

is wholly circumstantial, "'to establish guilt beyond a reasonable

doubt all necessary circumstances proved must be consistent with

guilt and inconsistent with innocence'"). Accordingly, no

evidence proved that Tate was aware or should have been aware that

Brown had injured the child.

No evidence proved the child had "extensive cuts and bruises"

on her body prior to August 18. On cross-examination, the social

worker corrected her testimony when confronted with her notes.

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Although the child's injuries may have been suspicious, it was

just as likely that Tate, believing Brown's explanation that the

child injured herself while playing, unknowingly and

unintentionally entrusted the child to Brown's care on August 18.

Tate testified that when she saw the additional bruises on August

18, she was scared and did not know what to do. She told the

social worker that medical care was expensive and that she

intended to take the child to her regularly scheduled pediatric

appointment on August 20.

Dr. Foster, who examined the CT scan and MRI, testified that

the internal hemorrhages likely did not produce any observable

symptoms except possibly "a slight increase in sleepiness or the

baby might not be as active as usual." He further testified that

"they are the kind of symptoms that are hard sometimes to realize

what they are."

In short, no evidence proved that Tate acted willfully or

willfully omitted to do anything that endangered her child.

"[I]nattention and inadvertence have not been heretofore equated

with actions taken willfully, thus, making them subject to

criminal penalty." Ellis v. Commonwealth, 29 Va. App. 548, 556,

513 S.E.2d 453, 457 (1999). To prove the element of "willful,"

the evidence must establish more than bad judgment. "'Willful'

generally means an act done with a bad purpose, without

justifiable excuse, or without grounds for believing it was

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lawful." Id. at 554, 513 S.E.2d at 456. It connotes a perverse

state of mind. See Snead v. Commonwealth, 11 Va. App. 643, 647,

400 S.E.2d 806, 807 (1991).

Therefore, I would hold that the evidence is insufficient to

support the trial judge's finding that Tate, by willful act or

omission, permitted serious injury to the child.

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