Craig v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Frank and Humphreys
Argued at Salem, Virginia

WILLIAM JOSEPH CRAIG
OPINION BY
v. Record No. 3058-99-3 JUDGE ROBERT P. FRANK
DECEMBER 19, 2000
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF WAYNESBORO
Thomas H. Wood, Judge

Francis Chester for appellant.

John H. McLees, Jr., Senior Assistant
Attorney General (Mark L. Earley, Attorney
General, on brief), for appellee.

William Joseph Craig (appellant) appeals his conviction of

involuntary manslaughter on an indictment charging second degree

murder. On appeal, he contends the trial court erred in granting

an instruction offered by the Commonwealth on the lesser-included

offense of involuntary manslaughter. Finding no error, we affirm

the judgment of the trial court.

I. BACKGROUND

Appellant lived with his wife, Susan, and their three

daughters, Joanne, McKayla, and Grayson. In October 1997,

McKayla and Grayson, who were twins, were five and one-half

months old. On October 3, 1997, Grayson had been in the local

hospital for three days with double pneumonia. While she was

hospitalized, Susan and Susan's mother took turns attending her,

while appellant stayed home and cared for McKayla and Joanne.
 On October 3, 1997, Susan learned that Grayson was to be

discharged that day. She called appellant at work and asked him

to come home to watch McKayla while she brought Grayson home from

the hospital. Appellant arrived home between 1:30 p.m. and 2:00

p.m.

McKayla did not feel well and was "fussy" that day. Because

taking her for rides in the car often soothed her, and because he

needed cigarettes, appellant took her for a ride in the car. He

would later testify that during the ride, he had to stop

suddenly, which first threw McKayla forward in her front-seat car

seat and then jolted her back. He said this occurred around 2:45

p.m. According to appellant, this incident again made McKayla

fussy, but she soon calmed down. When he arrived home with

McKayla around 3:00 p.m., he described her as awake, clinging,

and "lovey dovey" with him. Susan, who had not yet left for the

hospital, described McKayla as "sleepy."
Susan left for the hospital shortly after appellant and

McKayla returned, leaving appellant as the sole caretaker of
McKayla. She said McKayla was "fine" when she left. According

to appellant, McKayla got fussy again. He tried to feed her and

she ate some baby food carrots, but she then spit the rest out.

He rocked her and put her to bed around 3:30 p.m. He checked on

her several times thereafter. He said she moved from her

original position.

McKayla stayed in her crib, on her stomach, and was in that

position when Susan came home at approximately 5:30 p.m.

Appellant left for work when Susan's mother arrived with the

other twin, Grayson. He waited so he could see Grayson before he

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left for work. Appellant left around 6:35 p.m. and arrived at

work ten minutes later. He remained at work until 9:30 p.m. and

then returned home.

Susan's mother arrived at the home around 6:00 p.m. and

remained for approximately two hours. She checked on McKayla

from time to time during this period but did not remember seeing

her move and did not hear her cry.

During the time Susan was home between 5:30 p.m. and

9:15 p.m., she looked in on McKayla periodically. Between

8:00 p.m. and 9:15 p.m., she checked on her at least three times

and stated that "as far as [she] knew, [McKayla] was fine."

Susan did not testify as to whether or not McKayla moved at any

time during this period. According to appellant, she moved once

around 5:20 p.m. Neither Susan nor her mother noticed anything

amiss until about 9:15 p.m., when Susan realized that McKayla had

not moved at all and was unresponsive. Susan picked McKayla up,

but the baby was "lifeless." She took McKayla out of the crib

but nothing could rouse the baby. When appellant came home from

working late, he found Susan distraught, with the baby

unconscious on the bed.
An ambulance took McKayla to the Augusta Medical Center.

There, the emergency room physician found her "in grave

distress," and "near death." She was unconscious, limp, barely

breathing, and undergoing seizures. A CAT-scan of her head was,

at first, misread by the radiologist as being normal, but the

physician soon caught the error and saw that it showed a head

injury, which involved internal swelling and pressure on the

brain. There were no external bruises or similar signs of

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injury. The doctor asked appellant and Susan if the baby had

been injured, and Susan replied that she had not.

The doctor concluded that the baby had a head injury.

McKayla was put on a respirator to assist her breathing and was

taken by helicopter to the University of Virginia Medical Center

for more sophisticated treatment.

Upon McKayla's arrival at the University of Virginia Medical

Center, the pediatric intensive care specialist found her totally

without muscle tone, unresponsive, and "very deeply comatose."

Repetition of the tests for infection and other causes were

negative, and the doctor concluded that her severe brain swelling

had been caused by child abuse. Susan told him the child had not

been abused but mentioned an incident the day before when another

child had accidentally hit her with a toy truck. The doctor told

appellant and Susan there was nothing they could do to keep

McKayla alive.
In addition to the emergency room doctor from Augusta

Medical Center and the pediatric intensive care specialist from

the University of Virginia Medical Center, two other doctors, a

forensic pathologist, who performed the autopsy, and one of the

leading pediatric neuropathologists in the country, who had

reviewed the autopsy findings and materials, testified about the

cause of McKayla's death. Both opined that she died of "shaken

baby syndrome." The other possible causes for her symptoms had

been repeatedly ruled out by testing.

Shaken baby syndrome involves internal ruptures of blood

vessels around the brain, causing fatal internal pressure on the

brain and injury to the spinal column, which causes impaired

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blood supply to the brain. The doctors explained the cause of

this constellation of injuries as "a child is held by an adult

and shaken very violently," "repeated strong shakings of the

individual," and "the child has been shaken repeatedly, so that

the baby's head goes back and forth, back and forth." They

testified that, because of the strong repetitive force required

for this injury, the car seat incident described by appellant

could not possibly have caused it. Moreover, they agreed that

the sort of injuries suffered by McKayla would have rendered her

unconscious "within seconds to minutes" if the car seat incident

had caused her injuries. Therefore, she would not have been able

to remain awake and clinging, as both appellant and Susan

described her upon the return from the car ride, and would not

have been able to eat, then refuse food, remain awake, and then

fall asleep, as appellant described her doing before he put her

in the crib.
Susan testified she had not shaken the baby and did not see

anyone else do so. Appellant also denied doing anything to harm

McKayla and said he did not know how McKayla had been injured.

Appellant was indicted for second degree murder and was

tried before a jury on July 13-14, 1999. The Commonwealth

offered an instruction for murder and the lesser-included offense

of involuntary manslaughter. Over appellant's objection, the

trial court instructed the jury on second degree murder and

involuntary manslaughter. The jury returned with a verdict of

guilty of involuntary manslaughter.

II. ANALYSIS

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 Appellant contends the trial court erred in granting the

Commonwealth's instruction on involuntary manslaughter. Appellant

argues that while the accused may ask for an instruction on a

lesser-included offense, the Commonwealth may not. Appellant

cites a law review article for the proposition that the accused

has the right to bar a lesser-included offense instruction and

"go for broke," has a right to insist on a verdict of guilt on

the charged offense or acquittal of that offense. Alternatively,

appellant contends the evidence did not support an instruction on

involuntary manslaughter.
We reject appellant's contention that the accused has a

right to control the Commonwealth's submission of an instruction

on the lesser-included offense. Appellant cites no authority,

nor can we find any, to support his position. Appellant cites a

number of federal and state decisions, including decisions from

Virginia, holding that an accused is entitled to an instruction

on the lesser-included offense if evidence supports such an

instruction. However, that is not the issue raised by appellant.

Appellant cites State v. Wallace, 337 S.E.2d 321 (W. Va.
1985), which refutes his position. The Supreme Court of Appeals

of West Virginia rejected the argument that the state, by

choosing to indict the accused for the greater offense, is

foreclosed from seeking a lesser verdict from the jury, stating,
[t]his argument ignores the generally
recognized origin of the concept of lesser
included offenses which is that it was
originally developed to aid the prosecution
as summarized in Beck v. Alabama, 447 U.S.
625, 633, 100 S. Ct. 2382, 2387-88, 65
L.Ed.2d 392, 400 (1980).

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Id. at 324.

Hagans v. State, 559 A.2d 792 (Md. 1989), also cited by

appellant, further belies his position. In Hagans, the Court of

Appeals of Maryland, referring to lesser-included offenses,

stated:

"The doctrine is a valuable tool for
defendant, prosecutor, and society. From a
defendant's point of view, it provides the
jury with an alternative to a guilty verdict
on the greater offense. From the
prosecutor's viewpoint, a defendant may not
go free if the evidence fails to prove an
element essential to a finding of guilt on
the greater offense. Society may receive a
benefit because, in the latter situation,
courts may release fewer defendants acquitted
of the greater offense. In addition, the
punishment society inflicts on a criminal may
conform more accurately to the crime actually
committed if a verdict on a lesser included
offense is permissible."
Id. at 801 (citation omitted).

Further, Code § 19.2-266.1 requires the rejection of

appellant's first argument. It states:

In any trial upon an indictment charging
homicide, the jury or the court may find the
accused not guilty of the specific offense
charged in the indictment, but guilty of any
degree of homicide supported by the evidence
for which a lesser punishment is provided by
1
law.

Code § 19.2-266.1 does not limit the offering of

lesser-included instructions to the accused. Further, the

1
Involuntary manslaughter is a lesser-included offense of
murder. Puckett v. Commonwealth, 182 Va. 237, 240, 28 S.E.2d
619, 620 (1944) ("In an indictment for murder, the elements of
crime embraced therein are murder, voluntary manslaughter,
involuntary manslaughter and simple assault.").

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language of Code § 19.2-266.1 is clear and needs no

interpretation.

"The province of [statutory]
construction lies wholly within the domain of
ambiguity, and that which is plain needs no
interpretation." Winston v. City of
Richmond, 196 Va. 403, 408, 83 S.E.2d 728,
731 (1954). See Harrison & Bates, Inc. v.
Featherstone Assocs. Ltd. Partnership, 253
Va. 364, 368, 484 S.E.2d 883, 885 (1997).
"Words are ambiguous if they admit to 'being
understood in more than one way[,]'
. . . refer to 'two or more things
simultaneously[,]' . . . are 'difficult to
comprehend,' 'of doubtful import,' or lack
'clearness and definiteness.'" Diggs v.
Commonwealth, 6 Va. App. 300, 301-02, 369
S.E.2d 199, 200 (1988) (en banc) (citation
omitted).

Coleman v. Commonwealth, 27 Va. App. 768, 773, 501 S.E.2d 461,

463 (1998).

"'The plain, obvious, and rational meaning of a statute is

always preferred to any curious, narrow or strained

construction.'" Gilliam v. Commonwealth, 21 Va. App. 519,

522-23, 465 S.E.2d 592, 594 (1996) (quoting Branch v.

Commonwealth, 14 Va. App. 836, 839, 419 S.E.2d 422, 424 (1992)).

Here, Code § 19.2-266.1 is unambiguous and its plain meaning

requires granting an instruction on the lesser-included offense

at the request of either party, assuming the evidence supports

the granting of the instruction.

In a due process context, the Virginia Supreme Court has

ruled that an indictment, to be sufficient, must give the accused

notice of the nature and character of the charged offense.
Commonwealth v. Dalton, 259 Va. 249, 253, 524 S.E.2d 860, 862

(2000). The Court concluded:

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 It is firmly established, therefore,
that an accused cannot be convicted of a
crime that has not been charged, unless the
crime is a lesser-included offense of the
crime charged. Thus, neither the
Commonwealth nor an accused is entitled to a
jury instruction on an offense not charged,
unless the offense is a lesser-included
offense of the charged offense.
Id.

We, therefore, reject appellant's argument and find that the

Commonwealth may request an instruction on a lesser-included

offense and that the trial court may grant such instruction, over

the objection of the defense, as long as the evidence supports

such an instruction.

Appellant next contends the evidence was insufficient to

support the involuntary manslaughter instruction.

"If there is any evidence that would support a conviction

for the lesser included offense, the trial court must, upon

request of counsel, instruct the jury as to the lesser included

offense. An instruction, however, must be based on more than a

scintilla of evidence." Miller v. Commonwealth, 5 Va. App. 22,
24, 359 S.E.2d 841, 842 (1987) (citations omitted). "An

instruction is properly refused when it is unsupported by the

evidence." Bennett v. Commonwealth, 8 Va. App. 228, 234, 380

S.E.2d 17, 21 (1989) (citations omitted).

The determination of whether "the weight of the credible

evidence . . . will amount to more than a mere scintilla of

evidence is a matter to be resolved on a case-by-case basis."

Brandau v. Commonwealth, 16 Va. App. 408, 412, 430 S.E.2d 563,

565 (1993). "On appeal, when the issue is a refused jury

instruction, we view the evidence in the light most favorable to

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the proponent of the instruction." Lynn v. Commonwealth, 27 Va.

App. 336, 344, 499 S.E.2d 1, 4-5 (1998) (citation omitted),

aff'd, 257 Va. 239, 514 S.E.2d 147 (1999).

"Malice, a requisite element for murder of any kind, is

unnecessary in manslaughter cases and is the touchstone by

which murder and manslaughter cases are distinguished." Essex v.

Commonwealth, 228 Va. 273, 280, 322 S.E.2d 216, 219-20 (1984)

(citation omitted). "Malice may be either express or implied by
conduct." Id. (citation omitted). "[W]hether a defendant acted

with malice is generally a question to be decided by the trier of

fact." Pugh v. Commonwealth, 223 Va. 663, 667, 292 S.E.2d 339,

341 (1982) (citing Bryan v. Commonwealth, 131 Va. 709, 714, 109

S.E. 477, 478 (1921)). "Express malice is evidenced when 'one

person kills another with a sedate, deliberate mind, and formed

design.' Implied malice exists when any purposeful, cruel act is

committed by one individual against another without any, or

without great provocation . . . ." Id. at 668, 292 S.E.2d at 341

(citations omitted).
The authorities are replete with
definitions of malice, but a common theme
running through them is a requirement that a
wrongful act be done "wilfully or
purposefully." This requirement of
volitional action is inconsistent with
inadvertence. Thus, if a killing results
from negligence, however gross or culpable,
and the killing is contrary to the
defendant's intention, malice cannot be
implied. In order to elevate the crime to
second-degree murder, the defendant must be
shown to have wilfully or purposefully,
rather than negligently, embarked upon a
course of wrongful conduct likely to cause
death or great bodily harm.

Essex, 228 Va. at 280-81, 322 S.E.2d at 220 (citation omitted).

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 To support an involuntary manslaughter conviction, the

Commonwealth must prove "'a homicide was not improbable under all

of the facts existing at the time, and that the knowledge of such

facts should have had an influence on the conduct of the

offender.'" Hargrove v. Commonwealth, 10 Va. App. 618, 620, 394

S.E.2d 729, 731 (1990) (quoting Tubman v. Commonwealth, 3 Va.

App. 267, 274, 348 S.E.2d 871, 875 (1986)).

Criminal negligence as the basis for
involuntary manslaughter is judged under an
objective standard and, therefore, may be
found to exist where the offender either knew
or should have known the probable results of
his acts. See Keech [v. Commonwealth], 9 Va.
App. [272,] 279, 386 S.E.2d [813,] 817
[(1989)] (citing Bell v. Commonwealth, 170
Va. 597, 611-12, 195 S.E. 675, 681 (1938)).
Thus, criminal negligence "'is acting
consciously in disregard of another person's
rights or acting with reckless indifference
to the consequences, with the defendant
aware, from his knowledge of existing
circumstances and conditions, that his
conduct probably would cause injury to
another.'" Tubman, 3 Va. App. at 271, 348
S.E.2d at 873 (emphasis added) (quoting
Griffin [v. Shively], 227 Va. [317,] 321, 315
S.E.2d [210,] 213 [(1984)]; Friedman v.
Jordan, 166 Va. 65, 68, 184 S.E. 186, 187
(1936)).

Conrad v. Commonwealth, 31 Va. App. 113, 121-22, 521 S.E.2d 321,

325-26 (1999) (en banc).

In this case, it was the jury's task, based on the evidence,

to determine whether or not appellant acted with malice. From

the evidence, the jury could have concluded that appellant did

not willfully or purposely kill his child but rather negligently

shook the baby, knowing his conduct probably would cause injury.

Thus, the evidence supports the instruction on involuntary

manslaughter.

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 For these reasons, we affirm the judgment of the trial

court.

Affirmed.

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