Wagoner v. Commonwealth

PRESENT: Lemons, C.J., Goodwyn, Millette, Mims, McClanahan and
Powell, JJ., and Russell, S.J.

RICHARD C. WAGONER, JR.
OPINION BY
v. Record No. 140890 JUSTICE CLEO E. POWELL
APRIL 16, 2015
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

Richard C. Wagoner, Jr. (“Wagoner”) appeals the decision of

the Court of Appeals of Virginia affirming his conviction of

felony abuse or neglect of an incapacitated adult in violation

of Code § 18.2–369(B). Wagoner contends that the Court of

Appeals erred in applying the wrong decisional standard in its

review of the trial court’s ruling on a motion to set aside the

verdict, expanding the definition of proximate cause, and

finding that the evidence was sufficient to support his

conviction.

I. BACKGROUND

Joseph Tuggle (“Tuggle”), a 57 year old man with

Parkinson’s Disease and dementia, lived in a residential group

home for men with intellectual disabilities. The group home was

owned by the Claye Corporation, which in turn was owned by

Wagoner. Wagoner also served as president of the Claye

Corporation.

At approximately 7:00 p.m. on the evening of February 8,

2011, Jerome Baker (“Baker”), Tuggle’s caregiver, discovered
that Tuggle had soiled himself. Baker assisted Tuggle to the

restroom and sat him on the toilet. Baker then left to retrieve

cleaning supplies and began helping another staff member clean

up. After cleaning for five or six minutes, Baker went to check

on Tuggle. Baker found Tuggle crying for help while lying on

his back in the bathtub with hot water running from the shower.

Baker turned off the water and got Tuggle out of the bathtub.

Baker and another staff member dried Tuggle off and noticed that

his skin was very red. Baker and the other staff member then

took Tuggle into the living room, where they again noticed his

skin was very red and had begun to peel.

At this point, the staff supervisor, Kenny A. Brown

(“Brown”), was contacted. Brown arrived at the group home

around 8:30 p.m. After inspecting Tuggle, he determined that

Tuggle did not need medical attention. Brown also contacted

Tameki Tarpley (“Tarpley”), his co-supervisor, and informed her

about the situation. Without seeing Tuggle, Tarpley called the

emergency room and inquired about treating a burn that “appeared

to be like a sunburn.” Tarpley was told to apply cold

compresses and that she should go to a pharmacy and ask the

pharmacist for further treatment advice. Brown stayed with

Tuggle until 11:00 p.m. and assisted in the treatment of

Tuggle’s burns by placing cold compresses over the affected

areas of skin.

2
 Brown returned to the group home at 6:30 a.m. on the

following morning to examine Tuggle’s injuries. Brown found

that the burns appeared “redder.” Brown then contacted Tarpley

and informed her of the nature of Tuggle’s developing injuries

and informed her that Tuggle needed to go the emergency room to

be checked out. Tarpley contacted another staff member to bring

a company van to the group home to transport Tuggle to the

hospital.

Cynthia Epley (“Epley”), a director of Claye Corporation,

called Tarpley for her regular “check-in” and was informed of

Tuggle’s accident. Tarpley told Epley that a company van was en

route to take Tuggle to the hospital. Epley then called Wagoner

to inform him about the incident and that Tuggle was being taken

to the hospital.

At around 7:15 a.m., Tuggle was placed in the company van

to be taken to the hospital. While Tuggle was en route to the

hospital, Wagoner informed Epley that he wanted to see Tuggle

before he was taken to the hospital. Epley relayed the request

to Tarpley who, in turn, relayed the request to the staff member

driving the company van. About three minutes later, Tuggle was

returned to the group home.

After the van returned, Tarpley went to a pharmacy.

Tarpley asked the pharmacist for instructions in treating a

sunburn. According to Tarpley, the pharmacist instructed her to

3
use drainage strips and cold compresses and to apply Neosporin,

an antibiotic cream.

Epley arrived at the group home at around the same time

that Tarpley returned. Shortly thereafter, Wagoner arrived. At

the time, Tuggle was sitting in a wheel chair in the living

room. After the staff explained what had happened, Wagoner

asked Tuggle how he was doing. Baker then removed a sheet that

was covering Tuggle and lifted Tuggle’s t-shirt so Wagoner could

see the burns. According to Baker, Tuggle’s skin appeared to be

really red and had begun to peel away. Wagoner inspected

Tuggle’s injuries without comment.

Wagoner told Epley that Tuggle should be treated “one on

one” at the group home. Wagoner then left the facility. Epley

informed Tarpley of Wagoner’s decision and advised the staff to

begin treatment, which consisted of cold compresses, Neosporin,

Tylenol, and Gatorade.

Over the next nine days, the staff noticed the color of

Tuggle’s injuries changed from dark red to yellow. The staff

also noted oozing blood and pus emanating from the wounds. On

the morning of February 18, 2011, Tuggle was found dead in his

bed.

Wagoner was subsequently charged with abuse or neglect of

an incapacitated adult resulting in death in violation of Code

§ 18.2-369(B).

4
 At trial, Dr. Gayle Suzuki (“Dr. Suzuki”), a pathologist

and the medical examiner who performed the autopsy on Tuggle’s

body testified that Tuggle had suffered second and third degree

burns over 30% of his body. She explained that Tuggle’s death

was caused by “sepsis and pneumonia from the thermal injuries

from immersion in scalding water.” She noted that the bacteria

that caused the sepsis was consistent with bacteria normally

found on the skin.

Dr. Kevin Whaley (“Dr. Whaley”), an Assistant Chief Medical

Examiner for the Commonwealth, testified as an expert on the

classification, diagnosis, and treatment of burns. Dr. Whaley

testified that second and third degree burns over 30% of the

body would require automatic admission to a burn unit. He went

on to explain that someone in Tuggle's condition would initially

require fluid resuscitation followed by treatment to avoid

infection. The treatment to avoid infection would involve

debriding the skin, 1 application of silver sulfadiazine “to

control bacterial growth,” and changing the bandages regularly.

Dr. Whaley explained that debriding the skin was necessary

because bacteria live underneath the dead skin and then get into

the blood stream and causes sepsis. Dr. Whaley further noted

1
Debriding the skin involves surgical removal of the burned
and dead skin.

5
that Neosporin is an ineffective treatment for this condition

and can actually make the injury worse.

After viewing photographs of Tuggle’s burns, Dr. Whaley

opined that Tuggle actually had second and third degree burns

over approximately 18% of his body. According to Dr. Whaley,

given Tuggle’s age and the amount of burns he suffered, Tuggle’s

injuries were 100% fatal if he did not receive the proper

treatment. However, Dr. Whaley further testified that, if he

received the proper treatment, Tuggle only had a 75% chance of

death, meaning a 25% chance of survival.

Dr. Thomas Berry (“Dr. Berry”) testified on behalf of

Wagoner. Like Dr. Whaley, Dr. Berry was received as an expert

on the classification, diagnosis, and treatment of burns. In

Dr. Berry’s opinion, Tuggle suffered burns over 20% of his body.

Dr. Berry testified he would have recommended in home/outpatient

treatment of Tuggle’s burns. Dr. Berry further opined that

Tuggle’s pneumonia was likely rapid onset and “not necessarily

connected with his burns.”

The jury subsequently found Wagoner guilty of felony abuse

or neglect of an incapacitated adult. Wagoner made a motion to

set aside the verdict, arguing, among other things, that the

Commonwealth failed to prove his actions were a proximate cause

of Tuggle’s death because the Commonwealth did not present any

evidence that Tuggle would probably have survived his injuries

6
absent Wagoner’s abuse or neglect. The trial court denied his

motion, finding that the Commonwealth had presented sufficient

evidence of proximate cause, because “a twenty-five percent

chance of survival represents a substantial possibility of

survival, and the jury was entitled to find that [Wagoner’s]

abuse or neglect of Tuggle was a proximate cause of his death.”

Wagoner was sentenced to five years’ incarceration with five

years suspended for a period of 10 years.

Wagoner appealed his conviction to the Court of Appeals.

In the Court of Appeals, Wagoner argued that the trial court

applied the wrong decisional standard in ruling on his motion to

set aside the verdict. According to Wagoner, the “substantial

possibility of survival” standard used by the trial court only

applies to motions to strike, not to motions to set aside the

verdict. He further argued that the proper standard required

the Commonwealth to prove that Tuggle probably would have

survived his injuries but for Wagoner’s actions.

In a published decision, a divided panel of the Court of

Appeals affirmed Wagoner’s conviction. Wagoner v. Commonwealth,

63 Va. App. 229, 756 S.E.2d 165 (2014). The majority held that

the “substantial possibility of survival” decisional standard

used by the trial court applies to both motions to strike and

motions to set aside the verdict. Id. at 247, 756 S.E.2d at

174. The majority further determined that the “substantial

7
possibility of survival” standard does not equate “to a

‘probability’ of survival and common sense suggests that a

‘substantial possibility’ is somewhat less of a quantification

than a ‘probability.’” Id. at 253, 756 S.E.2d at 177.

The dissent, however, opined that the “substantial

possibility of survival” standard only applies to motions to

strike and, therefore, the trial court erred. The dissent went

on to agree with Wagoner, stating that to survive a motion to

set aside the verdict, the Commonwealth’s evidence of proximate

cause must demonstrate that Tuggle probably would have survived

his injuries but for Wagoner’s actions. Id. at 265, 756 S.E.2d

at 183.

This appeal follows.

II. ANALYSIS

On appeal, Wagoner argues that the Court of Appeals erred

by approving the trial court’s use of the wrong decisional

standard to address his motion to set aside the verdict,

improperly expanding the definition of proximate cause, and

finding that the evidence was sufficient to support his

conviction. We agree with Wagoner that the trial court and the

Court of Appeals erred in ruling on the motion to set aside the

verdict.

In his motion to set aside the verdict, Wagoner asserted

that the loss of a substantial possibility of survival was not

8
the proper standard. He further argued that, under the proper

standard of causation, “the Commonwealth failed to present any

evidence that Mr. Tuggle would probably have lived but for the

Defendant’s alleged abuse or neglect.” In denying his motion,

the trial court relied on our rulings in Blondel v. Hays, 241

Va. 467, 472, 403 S.E.2d 340, 343 (1991), Brown v. Koulizakis,

229 Va. 524, 532, 331 S.E.2d 440, 446 (1985), and Whitfield v.

Whittaker Memorial Hospital, 210 Va. 176, 169 S.E.2d 563 (1969),

to reach the conclusion that “a twenty-five percent chance of

survival represents a substantial possibility of survival, and

the jury was entitled to find that the Defendant’s abuse or

neglect of Tuggle was a proximate cause of his death.” The

Court of Appeals subsequently affirmed the decision of the trial

court on these grounds. In so doing, the trial court and the

Court of Appeals equated the loss of a substantial possibility

of survival with proximate cause.

As both the Court of Appeals and the trial court correctly

observed, the proper standard for deciding a motion to set aside

the verdict is found in Code § 8.01-680.

When a case, civil or criminal, is tried by
a jury and a party objects to the judgment
or action of the court in granting or
refusing to grant a new trial on a motion to
set aside the verdict of a jury on the
ground that it is contrary to the
evidence . . . the judgment of the trial
court shall not be set aside unless it
appears from the evidence that such judgment

9
 is plainly wrong or without evidence to
support it.

Id.

Thus, in deciding a motion to set aside the verdict, a

court only looks to whether the jury’s verdict is “plainly wrong

or without evidence to support it.” Wagoner’s motion to set

aside the verdict only challenged the sufficiency of the

evidence regarding the proximate cause of Tuggle’s death.

Therefore, the sole question before the trial court, the Court

of Appeals and this Court is whether there was sufficient

evidence of proximate causation to support the jury’s verdict.

In determining whether the evidence of proximate causation

was sufficient, we look first to the statute at issue in the

present case. Code § 18.2-369(B) states, in relevant part,

Any responsible person who abuses or
neglects an incapacitated adult in violation
of this section and the abuse or neglect
results in the death of the incapacitated
adult is guilty of a Class 3 felony.

As the Court of Appeals recognized, neither the Code nor

our jurisprudence addresses the meaning of the phrase “results

in” as used in Code § 18.2-369(B). In analyzing this issue, the

Court of Appeals looked to the United States Supreme Court’s

recent analysis of similar language in Burrage v. United States,

134 S.Ct. 881 (2014). We agree with the Court of Appeals’

analysis on this issue, and adopt its holding that the ordinary

10
meaning of the phrase “results in,” as used in Code § 18.2-

369(B), “imports ‘but for’ causation.” Wagoner, 63 Va. App. at

250, 756 S.E.2d at 176. In other words, the Commonwealth must

prove that the abuse or neglect was a proximate cause of the

death.

“The proximate cause of an event is that act or omission

which, in natural and continuous sequence, unbroken by an

efficient intervening cause, produces that event, and without

which that event would not have occurred.” See Wells v.

Whitaker, 207 Va. 616, 622, 151 S.E.2d 422, 428 (1966) (emphasis

added). “Generally a person is not liable to another unless but

for his negligent act the harm would not have occurred.” Id. 2

The logic employed by the trial court and the Court of

Appeals is based on Blondel, where we stated “if a plaintiff’s

evidence has shown that the defendant’s negligence has destroyed

any substantial possibility of the patient's survival, then

there is sufficient evidence of proximate cause to go to the

jury.” 241 Va. at 473-74, 403 S.E.2d at 344. Although Blondel

2
We further note that the jury in this case was instructed
that “[a] proximate cause of a death is a cause that, in natural
and continuous sequence, results in death. It is a cause
without which the death would not have occurred.” Neither
party objected to this jury instruction. Accordingly, this
definition of proximate cause is the law of the case, binding on
the parties as well as this Court. See Owens-Illinois, Inc. v.
Thomas Baker Real Estate, Ltd., 237 Va. 649, 652, 379 S.E.2d
344, 346 (1989).

11
was a medical malpractice case, the trial court and the Court of

Appeals determined that its logic applied to the present case

because “[e]stablished principles of proximate causation are

applicable in both civil and criminal cases.” Brown v.

Commonwealth, 278 Va. 523, 529, 685 S.E.2d 43, 46 (2009).

It is important to recognize, however, that although the

loss of a substantial possibility of survival may be evidence of

proximate cause in a medical malpractice case, 3 it is not itself

a principle of proximate cause. A proximate cause is an act or

omission. See Wells, 207 Va. at 622, 151 S.E.2d at 428. The

loss of a substantial possibility of survival, on the other

hand, is neither an act nor an omission; it is the result of an

act or omission. In other words, the loss of a substantial

possibility of survival is evidence that could support a finding

of causation for the “event.”

Although this Court has used proximate cause in conjunction

with the loss of a substantial possibility of survival in

medical malpractice cases, see, e.g., Poliquin v. Daniels, 254

Va. 51, 57, 486 S.E.2d 530, 534 (1997); Blondel, 241 Va. at 472,

403 S.E.2d at 343; Koulizakis, 229 Va. at 532, 331 S.E.2d at

3
Notably, we have never used the concept of the loss of a
substantial possibility of survival as evidence of proximate
cause outside the context of medical malpractice cases. Indeed,
nothing in this opinion should be read to expand or restrict the
use of the loss of a substantial possibility of survival as
evidence of proximate cause in such cases.

12
446, the fact remains that they are two distinctly separate

concepts. 4 Indeed, we have clearly recognized this distinction,

as it is evident that we treat the concepts entirely

differently. For example, we have recognized that “the issue of

proximate cause is a question of fact for resolution by a jury,”

Karim v. Grover, 235 Va. 550, 552-53, 369 S.E.2d 185, 186

(1988), whereas the loss of a substantial possibility of

survival is a “decisional standard for the guidance of trial

courts in deciding a motion to strike the evidence.” Blondel,

241 Va. at 473-74, 403 S.E.2d at 344. Additionally, while we

allow juries to be instructed on proximate cause, we expressly

prohibit jury instructions addressing the loss of a substantial

possibility of survival. Id. at 475, 403 S.E.2d at 344.

In the present case, the trial court correctly instructed

the jury as to the definition of proximate cause; in doing so,

it properly made no mention of the loss of a substantial

possibility of survival. Thus, it would be improper for the

trial court to utilize the loss of a substantial possibility of

4
We recognize that, in Blondel, we stated that “a defendant
physician’s destruction of any substantial possibility of the
patient’s survival is a proximate cause of the patient’s death.”
241 Va. at 472, 403 S.E.2d at 343 (internal quotation marks and
emphasis omitted). Although this language would appear to
contradict our holding that proximate cause and the loss of a
substantial possibility of survival are distinctly separate
concepts, when parsed correctly, it is apparent we were
referring to the defendant physician’s actions or omissions that
resulted in the destruction of the possibility of survival as
the proximate cause, not the loss itself.

13
survival as its sole basis for deciding whether, as a matter of

law, the evidence was sufficient to support the verdict. Such

an approach would necessarily result in the trial court

employing a different standard from that properly employed by

the jury. See Jordan v. Commonwealth, 286 Va. 153, 156-57, 747

S.E.2d 799, 800 (2013) (“[T]he reviewing court is not permitted

to substitute its own judgment for that of the trier of fact.”).

Accordingly, the trial court and the Court of Appeals erred in

considering the loss of a substantial possibility of survival as

the basis for deciding the motion set aside the verdict.

Our analysis does not end here, however, because “[w]e do

not hesitate, in a proper case, where the correct conclusion has

been reached but the wrong reason given, to sustain the result

and assign the right ground.” Eason v. Eason, 204 Va. 347, 352,

131 S.E.2d 280, 283 (1963) (collecting cases). Review of a

trial court’s ruling on a motion to set aside the verdict is

particularly ripe for application of the “right result for the

wrong reason” doctrine, as our focus in reviewing a motion to

set aside the verdict is necessarily limited to the facts in the

record and no additional factual presentation is necessary. See

Perry v. Commonwealth, 280 Va. 572, 580, 280 Va. 572, 701 S.E.2d

431, 436 (2010) (“Consideration of the facts in the record and

whether additional factual presentation is necessary to resolve

14
the newly-advanced reason is the proper focus of the application

of the doctrine.”).

As previously noted, in deciding a motion to set aside the

verdict, a court only looks to whether the jury’s verdict is

“plainly wrong or without evidence to support it.” Code § 8.01-

680. In the present case, Wagoner’s motion to set aside the

verdict challenged the sufficiency of the evidence regarding the

proximate cause of Tuggle’s death. Thus, the sole question

before us is whether there was sufficient evidence of proximate

cause to support the jury’s verdict. We find that there was.

In the present case, Dr. Whaley testified at length

regarding the proper treatment of Tuggle’s burns. According to

Dr. Whaley, the proper treatment involved Tuggle’s admission to

a burn unit, fluid resuscitation and debriding the skin.

Notably, Tuggle received none of those forms of treatment.

Instead, Wagoner ordered that Tuggle be treated at the group

home. Despite the deterioration of Tuggle’s condition over nine

days, Wagoner’s direction that Tuggle not be taken to the

hospital never changed.

Dr. Whaley went on to explain that debridement is necessary

because “bacteria love[ dead skin] and live underneath it, and

then get off into [the] blood stream and cause sepsis.” Dr.

Suzuki testified that Tuggle’s death was caused by “sepsis and

pneumonia from the thermal injuries from immersion in scalding

15
water,” because the type of bacteria that caused the sepsis and

pneumonia was “consistent with skin kind of bacteria.” Thus,

there was evidence from which a jury could infer that, had the

dead skin been debrided, Tuggle would not have died of sepsis.

Similarly, as there is evidence that the same bacteria that

caused the sepsis also caused the pneumonia, the jury could have

concluded that proper treatment would have prevented pneumonia

as well.

It is worth noting that the Commonwealth also presented

evidence that the actions taken by Wagoner’s staff made Tuggle’s

injuries worse. Dr. Whaley specifically testified that applying

Neosporin to the burns actually made them worse. Taken

together, there was sufficient evidence from which the jury

could reasonably find that Wagoner’s actions were a proximate

cause of Tuggle’s death.

III. CONCLUSION

For the foregoing reasons, we will affirm the judgment of

the Court of Appeals upholding the conviction rendered by the

trial court.

Affirmed.

JUSTICE McCLANAHAN, concurring.

I concur in the Court’s judgment because, as the majority

ultimately concludes, there was sufficient evidence of proximate

16
causation to support the jury’s verdict. I disagree with the

majority’s holding that the trial court and the Court of Appeals

erred in ruling on the motion to set aside the verdict. 1

In the Court of Appeals, Wagoner argued that the trial

court erred in applying a “decisional standard” that applies

only to motions to strike in ruling on the motion to set aside

the verdict. Rule 3A:15(a) states that “[a]fter the

Commonwealth has rested its case or at the conclusion of all the

evidence, the court on motion of the accused may strike the

Commonwealth’s evidence if the evidence is insufficient as a

matter of law to sustain a conviction.” Rule 3A:15(b) states

that “[i]f the jury returns a verdict of guilty, the court may,

on motion of the accused . . . set aside the verdict . . . if

the evidence is insufficient as a matter of law to sustain a

conviction.” Because the standards are the same, the Court of

Appeals did not err in rejecting Wagoner’s argument that there

is one “decisional standard” that applies to motions to strike

and a different “decisional standard” that applies to motions to

set aside a jury verdict.

1
The majority holds that the trial court and the Court of
Appeals reached the right result for the wrong reason. Yet, the
trial court denied the motion to set aside the verdict on the
ground that there was sufficient evidence of proximate causation
to support the jury’s verdict, and the Court of Appeals affirmed
the trial court's judgment denying the motion to set aside on
the same ground.

17
 I also do not believe, as Wagoner contends, that the Court

of Appeals erroneously expanded the law of proximate causation

in ruling on the sufficiency of the evidence. Properly

construing Code § 18.2-369(B) to require proof of “but for”

causation, the Court of Appeals reviewed the evidence and

concluded it was sufficient for the jury to find that Tuggle’s

death would not have occurred but for Wagoner’s failure to seek

professional medical treatment for him. Furthermore, the Court

of Appeals rightly rejected Wagoner’s argument that the

Commonwealth was required to prove that it was more likely than

not Tuggle would have lived with treatment since it would defeat

the purpose of Code § 18.2-369(B) to relieve a defendant of

criminal liability based on evidence that a victim had a less

than fifty-one percent chance of survival. 2

2
I disagree with the majority’s conclusion that the Court
of Appeals adopted the concept of a loss of substantial
possibility of survival as the standard for reviewing the
sufficiency of the evidence of proximate causation. The Court
of Appeals discussed the concept of a loss of substantial
possibility of survival in response to Wagoner’s argument that a
probability of survival was required after reaching its
conclusion that the evidence was sufficient to support a finding
of proximate causation. Citing this Court’s decision in Blondel
v. Hays, 241 Va. 467, 472, 403 S.E.2d 340, 343 (1991), the Court
of Appeals reasoned that Wagoner’s position that the
Commonwealth must prove a probability of survival was not
founded in Virginia law.

18