COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Coleman and Elder
Argued at Richmond, Virginia
DIANE L. HUGHES
MEMORANDUM OPINION * BY
v. Record No. 0258-95-2 JUDGE LARRY G. ELDER
MARCH 5, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HALIFAX COUNTY
Charles L. McCormick, III, Judge
Buddy A. Ward, Public Defender, for appellant.
Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Diane Hughes (appellant) appeals her three convictions for
misdemeanor child neglect in violation of Code § 18.2-371.
Appellant raises five arguments on appeal: (1) the trial court
improperly allowed a police officer to testify about out-of-court
statements made by third-party Macie Faulkner; (2) the trial
court improperly admitted Child Protective Services (CPS) reports
concerning appellant's children, as an exception to the hearsay
rule; (3) the trial court improperly admitted CPS reports
concerning third-party Macie Faulkner, as an exception to the
hearsay rule; (4) the trial court improperly admitted hearsay
statements made by one of appellant's children concerning drug
paraphernalia; and (5) the evidence failed to prove misdemeanor
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
child neglect. For the following reasons, we affirm appellant's
convictions.
First, assuming without deciding that the trial court erred
in reaching the conclusion that Macie Faulkner was unavailable,
we hold that such error was harmless, as other credible evidence
corroborated the most relevant portions of Faulkner's statements.
See Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d
910, 911 (1991)(en banc)(holding non-constitutional error is
harmless where it plainly appears from the facts and
circumstances that the error did not affect the verdict). For
example, Officer Pulliam testified that he himself discovered the
three children in the street in the custody of the two stangers
to whom Faulkner had given them. Furthermore, appellant admitted
to CPS that she paid Faulkner to care for her children on
February 14, 1994.
Next, appellant contends that the trial court erred in
permitting Sylvia Bailey to testify about CPS reports concerning
Macie Faulkner. Over appellant's objection on the grounds of
relevancy, the trial court allowed Bailey to testify that there
were three founded cases of abuse and three "reason to suspect
cases" of abuse lodged against Faulkner. We hold that the trial
court erred in allowing such testimony because it was irrelevant.
The Commonwealth failed to introduce any evidence showing that
appellant knew of the child abuse allegations concerning
Faulkner. Therefore, the information contained in the reports
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pertaining to Faulkner had no bearing upon whether appellant
attempted to provide appropriate care for her children.
Nevertheless, we hold that the trial court's error was harmless
because the remaining credible evidence in the case clearly
proved appellant neglected her children. See Lavinder, supra.
Third, we hold that the trial court did not err in allowing
the CPS reports concerning appellant and her children to be
admitted under the business records exception to the hearsay
rule. See Frye v. Commonwealth, 231 Va. 370, 387, 345 S.E.2d
267, 279 (1986). This Court has previously explained the
business records exception. See, e.g., Tickel v. Commonwealth,
11 Va. App. 558, 565, 400 S.E.2d 534, 538 (1991).
"Admission of [business record] evidence is
conditioned . . . on proof that the document
comes from the proper custodian and that it
is a record kept in the ordinary course of
business made contemporaneously with the
event by persons having the duty to keep a
true record."
Kettler & Scott, Inc. v. Earth Technology Cos., Inc., 248 Va.
450, 457, 449 S.E.2d 782, 786 (1994)(citation omitted). "This
approach 'necessarily requires that a determination as to
admissibility be made on the facts of each case.'" Id. (citation
omitted).
The trial court did not err in allowing Bailey to testify
about information contained in the CPS reports. Bailey testified
that she was the custodian of the CPS reports. The evidence
proved that the CPS records were kept in the regular course of
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business. The trial court necessarily found that Bailey, as
custodian, was permitted to read the reports entered by Vaughan
and Medly, who no longer worked for CPS as child protective
service workers, because they had concurrently prepared the
reports pursuant to their duty to do so. See Ford Motor Co. v.
Phelps, 239 Va. 272, 275-76, 389 S.E.2d 454, 457 (1990).
Fourth, appellant argues that the trial court erred in
allowing Gerard Lawson to testify as to certain statements made
by appellant's five year old son regarding a drug display, as
such testimony was hearsay. See Patty v. Commonwealth, 218 Va.
150, 235 S.E.2d 437 (1977), cert. denied, 434 U.S. 1010 (1978);
Clark v. Commonwealth, 14 Va. App. 1068, 1070, 421 S.E.2d 28, 30
(1992). Assuming without deciding that testimony about the
child's reactions to the drug display constituted inadmissible
hearsay, we hold that the testimony was harmless in light of the
remaining evidence which proved the charges beyond a reasonable
doubt. See Lavinder, supra.
Lastly, "[w]hen sufficiency of the evidence is at issue on
appeal, the evidence must be viewed in the light most favorable
to the Commonwealth, and the evidence must be accorded all
reasonable inferences deducible therefrom." Pugliese v.
Commonwealth, 16 Va. App. 82, 92, 428 S.E.2d 16, 24 (1993). The
trial court's judgment will not be reversed unless it is plainly
wrong or without evidence to support it. Code § 8.01-680;
Feigley v. Commonwealth, 16 Va. App. 717, 722, 432 S.E.2d 520,
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524 (1993).
We hold that the evidence proved beyond a reasonable doubt
three counts of misdemeanor child abuse or neglect in violation
of Code § 18.2-371. In order to prove the charges, the
Commonwealth had to demonstrate abuse or neglect as described in
Code § 16.1-228. This section provides in part that abuse or
neglect occurs when a parent "creates or inflicts . . . or allows
to be created or inflicted upon such child a physical or mental
injury by other than accidental means, or creates a substantial
risk of death, disfigurement or impairment of bodily or mental
functions." Code § 16.1-228. A parent also abuses or neglects a
child when that parent neglects or refuses to provide care
necessary for the child's health; abandons the child; is
unreasonably absent from the child; or lacks the mental or
physical capacity to provide care for the child. Code
§ 16.1-228.
The evidence viewed in the light most favorable to the
Commonwealth established that appellant's three children, ages
three, four, and five, were found outside at 11:30 p.m. on
February 14, 1994, in twenty-seven degree weather by Officer
Pulliam. The children were placed in foster care and described
by the foster parent as wearing dirty clothing and having a "very
bad odor." The foster parent testified that it took three days
to stabilize the children's diets. There was testimony that on
more than ten occasions, appellant did not pick up her children
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from school as scheduled or failed to be home when the children
were scheduled to be returned to her. There was further evidence
that one child had a broken leg when he was one month old; that
appellant sold her food stamps; that there was inadequate food in
the home; and that appellant used cocaine.
For the foregoing reasons, we affirm appellant's
convictions.
Affirmed.
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