COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Clements
Argued at Alexandria, Virginia
DANIELLE LOUISE COTTON
OPINION BY
v. Record No. 1743-00-2 JUDGE RUDOLPH BUMGARDNER, III
MAY 22, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
William H. Ledbetter, Jr., Judge
Stacey T. Garcia, Assistant Public Defender
(Lori M. McPherson, Senior Assistant Public
Defender, on brief), for appellant.
Robert H. Anderson, III, Senior Assistant
Attorney General (Mark L. Earley, Attorney
General, on brief), for appellee.
A jury convicted Danielle L. Cotton of murder while in the
commission of felony child abuse and neglect in violation of
Code §§ 18.2-33 1 and -371.1. 2 The victim was the defendant's
1
[Code] § 18.2-33. Felony homicide defined;
punishment. -- The killing of one
accidentally, contrary to the intention of
the parties, while in the prosecution of
some felonious act other than those
specified in §§ 18.2-31 and 18.2-32, is
murder of the second degree and is
punishable by confinement in a state
correctional facility for not less than five
years nor more than forty years.
2
[Code] § 18.2-371.1. Abuse and neglect of
children; penalty. -- A. Any parent . . .
responsible for the care of a child under
the age of eighteen who by willful act . . .
causes or permits serious injury to the life
four-month-old son, Tyler, who died from shaken baby syndrome.
The defendant contends (1) the felony murder doctrine creates a
conclusive presumption of malice, (2) felony child abuse cannot
be a predicate offense for felony murder, (3) death was not a
"serious injury" as required by Code § 18.2-371.1, and (4) the
evidence was insufficient to prove criminal agency. For the
following reasons, we affirm.
Felony murder is the killing of another accidentally,
contrary to the party's intention, 3 while in prosecution of some
felonious act other than those listed in the first degree murder
statute. Heacock v. Commonwealth, 228 Va. 397, 403, 323 S.E.2d
90, 93 (1984). "[T]he commission of a felony of violence
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 . . . 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.
3
"To prove a felony homicide it is not necessary that the
Commonwealth prove accident/lack of intent. That language has
been part of the definition of involuntary manslaughter for at
least fifty years, but has never been treated as identifying
elements of the offense." Roger D. Groot, Criminal Offenses and
Defenses in Virginia 269 (4th ed. 1998) (footnote omitted).
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manifests a person-endangering frame of mind such that malice
may be imputed to the act of killing." John L. Costello,
Virginia Criminal Law and Procedure § 3.4-3, at 33 (2d ed. 1995)
(footnote omitted). "The felony-murder doctrine originated at
common law and, when supported by the evidence, operates to
elevate to second-degree murder a homicide committed during the
commission of a felony by imputing malice to the killing."
Commonwealth v. Montague, 260 Va. 697, 700, 536 S.E.2d 910, 912
(2000) (citing Heacock, 228 Va. at 403, 323 S.E.2d at 93; Wooden
v. Commonwealth, 222 Va. 758, 762, 284 S.E.2d 811, 814 (1981)).
The res gestae rule restricts felony-murder to homicides
"so closely related to the felony in time, place, and causal
connection as to make it a part of the same criminal
enterprise." Haskell v. Commonwealth, 218 Va. 1033, 1043-44,
243 S.E.2d 477, 483 (1978). "To convict, there must be a
connection between the felony and the death. The connection
must be found within the res gestae doctrine: the death must be
related by time, place and causal connection to the commission
of the felony." Roger D. Groot, Criminal Offenses and Defenses
in Virginia 269 (4th ed. 1998 & Supp. 2000) (footnote omitted).
The felony murder doctrine classifies a homicide as second
degree murder if the death is related by time, place, and causal
connection to the felony. The conduct proscribed by the felony
murder statute involves the substantial risk to human life
common to all other forms of malicious homicide: intent to
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kill, intent to inflict grievous bodily harm, or extreme
recklessness demonstrating total indifference to human life. It
does not create a presumption that shifts the burden of proof to
the defendant in violation of Sandstrom v. Montana, 442 U.S. 510
(1979). The Commonwealth must prove beyond a reasonable doubt a
felony that involved substantial risk to life.
Next, the defendant contends the trial court erred in
permitting the crime of felony child abuse, Code § 18.2-371.1,
to be the predicate felony in this felony murder prosecution.
She contends death resulted from a single act of abuse, and a
single act cannot form the basis for both the murder and the
predicate felony. She argues the doctrine of merger prevents an
assault that results in death from being the predicate felony in
a felony murder charge. The act of assault, which causes death,
merges into the act of murder. Permitting an assault to be a
predicate felony would allow every lower degree of homicide to
be elevated to murder; gradations of homicide would cease.
The merger doctrine was first enunciated in State v.
Shock, 68 Mo. 552 (1878). Justice Cardozo approved it in People
v. Moran, 158 N.E. 35, 36 (N.Y. 1927), as a limitation on the
felony murder statute necessary to maintain the distinction
between murder, which required malice, and manslaughter, which
did not. Deciding whether an assault merged became an analysis
of whether the assault was a lesser-included offense of murder.
See People v. La Marca, 144 N.E.2d 420, 428 (N.Y. 1957).
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This doctrine of merger was not widely accepted. Where
adopted, the courts used the doctrine to ensure continued
ranking of the various grades of homicide. The doctrine has
never been applied in Virginia, and it could never apply to this
case because felony child abuse is not a lesser-included offense
of murder.
To determine whether felony child abuse is a
lesser-included offense, we examine the two offenses and their
elements in the abstract, rather than by reference to the facts
of the case. Blythe v. Commonwealth, 222 Va. 722, 726, 284
S.E.2d 796, 798 (1981). "An offense is not a lesser-included
offense of a charged offense unless all its elements are
included in the offense charged. Stated differently, an offense
is not a lesser-included offense if it contains an element that
the charged offense does not contain." Commonwealth v. Dalton,
259 Va. 249, 253, 524 S.E.2d 860, 862 (2000) (citing Jones v.
Commonwealth, 218 Va. 757, 759, 240 S.E.2d 658, 660, cert.
denied, 435 U.S. 909 (1978)). Felony child abuse requires proof
that the assailant is a person responsible for the care of a
child. That requirement of a special relationship is not an
element of murder. Accordingly, felony child abuse is not a
lesser-included offense of murder.
The defendant also contends she cannot be convicted of
felony child abuse because death is not listed as a "serious
injury" in Code § 18.2-371.1. The argument ignores the fact
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that the victim suffered grievous injuries that caused death.
The violent shaking caused brain injury, which produced the
shock, which affected vital organs, and death resulted. The
injuries to the brain were serious injuries under the most
constrained reading of the statutory definition.
The argument fails for a more apparent reason: it assumes
the General Assembly intended to punish child abuse that caused
serious injury but did not intend to punish it if it caused the
most terrible consequence, death. Such a reading of any
enactment violates the rules of statutory interpretation. See
Smith v. Commonwealth, 26 Va. App. 620, 625, 496 S.E.2d 117, 119
(1998).
Finally, the defendant contends the evidence failed to
prove she was the criminal agent. Viewing the evidence in the
light most favorable to the Commonwealth, the defendant and her
son lived at her father's house. The fatal injuries occurred
between 11:30 p.m. and shortly after 7:30 the next morning when
the defendant's father entered their bedroom and found the
victim unresponsive. No one in the household saw or heard Tyler
that night, and the defendant admitted no one else was with
Tyler during that period. A recording of the father's call to
911 emergency services revealed the defendant saying in the
background, "I killed him daddy."
A diagnostic examination of the victim revealed
"multi-organ system failure." The heart and blood vessels had
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been compromised, the liver was not functioning properly, and
the victim was in respiratory failure. The tests confirmed the
preliminary diagnosis of severe brain injury causing the shock
that in turn involved injury to the other vital organs. The
victim would have lost consciousness at the time the shaking
occurred.
The evidence revealed shaken baby syndrome differs from
other external brain injuries because of the extent of the
damage. A blow to the head results in injury to the area
struck. The shaken baby receives injuries throughout the brain.
The injuries tend to be severe, without viable explanation, and
result in retinal hemorrhaging. Shaken baby syndrome requires
"sustained, violent, out of control force" that lasts at least
three to five seconds. It does not result accidentally.
The injuries to Tyler could only have been inflicted by
criminal agency. The defendant was the only person with him
during the period when he received the injuries. The defendant
stated, "I killed him daddy." The evidence permitted the jury
to find that the defendant willfully abused her son so violently
that death ensued. Accordingly, we affirm the conviction.
Affirmed.
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