Marshall v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia

JAMES MATTHEW MARSHALL
OPINION BY
v. Record No. 0394-97-1 JUDGE JOSEPH E. BAKER
FEBRUARY 24, 1998
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Verbena M. Askew, Judge
David G. Wittan (David G. Wittan, P.C., on
brief), for appellant.

Kathleen B. Martin, Assistant Attorney
General (Richard Cullen, Attorney General, on
brief), for appellee.

James Matthew Marshall (appellant) appeals from his bench

trial conviction by the Circuit Court of Newport News (trial

court) for attempted object sexual penetration in violation of

Code §§ 18.2-26 and 18.2-67.2 and first degree (felony) murder in

violation of Code § 18.2-32 in the death of his infant son, Tyler

Marshall. On appeal, he challenges the sufficiency of the

evidence to support both convictions. For the reasons that

follow, we find the evidence sufficient to support the object

sexual penetration conviction and hold that Rule 5A:18 bars our

review of the felony murder conviction.

On April 30, 1996, between 2:30 p.m. and 3:00 p.m., Laurie

Hunter went to her sister's house, leaving her sleeping

eight-month-old son, Tyler, with appellant, Tyler's father, in

the home the three shared. Neither Hunter nor appellant had
noticed anything unusual about Tyler's behavior or body while

caring for him that day, and Hunter also had not observed

anything unusual the previous night.

At about 5:00 p.m., appellant called Hunter because Tyler

was "breathing funny" and was "sick." When Hunter arrived home

several minutes later, Tyler was "pale" and "unresponsive," his

breathing was "shallow and his eyes were . . . rolled back."

Hunter observed no injuries other than some "little bruises on

[Tyler's] stomach." Hunter called 911, and Tyler was taken by

ambulance to Riverside Hospital. He was later transported to

Children's Hospital of the King's Daughters in Norfolk, where he

died at 9:15 a.m. on May 1, 1996.
Tyler was examined by a Dr. Michaels, who contacted

Dr. Beck, Tyler's pediatrician. Dr. Beck testified that when she

saw Tyler in the emergency room around 6:30 p.m. to 7:00 p.m. on

April 30, 1996, she was unable to determine why he was ill. He

had been "very healthy and well" when Beck had seen him for a

routine check-up on April 3, 1996. Appellant told Dr. Beck that

Tyler had vomited when he awoke from his nap around 3:45 p.m.,

was "very listless and restless," and had rolled off the couch.

Dr. Beck observed scattered bruises on Tyler's abdomen and in his

groin area, but did not examine his rectum. No medical

procedures were performed on Tyler's anal area in the emergency

room. Dr. Beck said that Tyler would have been cleaned if he had

defecated, but that he had not done so while she was present.

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 Dr. Nakagawa, a pediatric intensive care specialist, began

treating Tyler at about 11:00 p.m. after Tyler had been

transported to CHKD in Norfolk. Tyler was in "profound shock,"

and Nakagawa thought he might have a "hollow organ rupture,"

permitting organisms from his bowels to infiltrate his

bloodstream. Nakagawa noted that Tyler "had a lot of abdominal

. . . tension" and some small bruises on his abdomen. Nakagawa

did not examine Tyler's back because he was "too unstable," and

he performed no medical procedures on Tyler's anal area. He

concluded that Tyler "sustained blunt abdominal trauma, secondary

to a punch injury, and . . . [the] circular marks [on Tyler's

abdomen] [were] the results of either the fingertips . . . or the

knuckles being struck against the abdominal wall."
After Tyler's death on the morning of May 1, 1996, Dr. Bush

autopsied the infant's body at 2:00 p.m. that same day,

concluding that Tyler died from a "severe blunt force trauma to

the abdomen." She did not believe that Tyler's injuries could

have resulted from falling off a couch onto pillows, but

testified that Tyler's abdominal injuries could have been caused

by an adult falling on the child, hitting his abdomen with an arm

or a leg. Dr. Bush also observed "relatively fresh" contusions

and abrasions around Tyler's anus and anal ring. She testified

that the injuries on the anal ring could not have been caused by

the trauma to Tyler's abdomen, nor could they have been caused by

a rectal thermometer. She further testified that they could have

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been caused by a human finger "[i]f the anus was digitalized or

the finger was used in a rough manner." On cross-examination,

she said that a rough towel in conjunction with a finger, "very

roughly pushed up or battered against the anus," possibly could

have caused the abrasions. She acknowledged that the bruising

could have resulted from a prolapsed rectum, but said she saw no

evidence of that condition on autopsy. She also detected no

lacerations of the anus to indicate that penetration had

occurred. All injuries appeared to be of the same age.
Hunter testified that appellant first told her over the

telephone that Tyler had become ill and had thrown up on himself.

When she arrived home, appellant said Tyler had rolled off the

couch onto some pillows on the floor. On May 5, 1996, the day of

Tyler's funeral, appellant called Hunter from jail and said he

had fallen on Tyler accidentally while playing a game called

"Pounce," in which he lunged toward the infant in order to make

him laugh.

Appellant testified at trial that he hit Tyler in the

stomach with his lower arm when he accidentally fell on Tyler

while playing "Pounce." Initially, Tyler did not appear hurt,

but twenty to thirty minutes later, he began to whine, became

pale and had trouble breathing. While appellant was phoning

Hunter, Tyler rolled off the couch onto some pillows. Appellant

gave no explanation for his not having told Tyler's doctors that

he fell on the child. He denied doing anything to Tyler that

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would have injured his anus and denied knowing how those injuries

occurred. He admitted to having five prior felony convictions.

Appellant's counsel moved to strike at the close of the

Commonwealth's evidence and again at the close of all the

evidence. The Commonwealth argued that Tyler's injuries were

consistent with an attempt "to sodomize this child and stick [a]

finger in [his anus]," and also argued that, under Code

§ 18.2-32, a murder during "the commission of attempted inanimate

or animate object sexual penetration" is first degree murder. At

no time in the trial court did appellant's counsel contend that

proof of animate rather than inanimate object sexual penetration

was insufficient to support a first degree murder conviction.

In convicting appellant of murder and attempted inanimate or

animate object sexual penetration, the trial judge said she "did

not find [appellant] very credible at all" and that "the evidence

[was] consistent with guilt" as "everything points to [appellant]

in this case, and the Court doesn't have any reasonable doubt at

all."

Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible

therefrom. See Martin v. Commonwealth, 4 Va. App. 438, 443, 358

S.E.2d 415, 418 (1987). The judgment of a trial court will be

disturbed only if plainly wrong or without evidence to support

it. See id. The credibility of a witness and the inferences to

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be drawn from proven facts are matters solely for the fact

finder's determination. See Long v. Commonwealth, 8 Va. App.

194, 199, 379 S.E.2d 473, 476 (1989). In its role of judging

witness credibility, the fact finder is entitled to disbelieve

the self-serving testimony of the accused and to conclude that he

or she is lying to conceal his or her guilt. See Speight v.

Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95, 98 (1997)

(en banc).
"Circumstantial evidence is as competent and is entitled to

as much weight as direct evidence, provided it is sufficiently

convincing to exclude every reasonable hypothesis except that of

guilt." Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864,

876 (1983). However, "the Commonwealth need only exclude

reasonable hypotheses of innocence that flow from the evidence,

not those that spring from the imagination of the defendant."

Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29

(1993). Whether a hypothesis of innocence is reasonable is a

question of fact. See Cantrell v. Commonwealth, 7 Va. App. 269,

290, 373 S.E.2d 328, 339 (1988).

I.

Appellant contends first that the circumstantial evidence

was insufficient to support his conviction for attempted

inanimate or animate object sexual penetration in violation of

Code § 18.2-67.2 1 because it failed to exclude the possibility
1
That code section provides, in relevant part:

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that the injuries to Tyler's anus occurred during medical

treatment. 2 We disagree. By convicting appellant of attempted

object sexual penetration, the trial court implicitly found that

the only reasonable hypotheses flowing from the evidence were (1)

that the injuries to Tyler's anus occurred while he was in

appellant's care rather than while undergoing medical treatment

and (2) that appellant was the criminal agent. On this record,

we conclude that finding is not plainly wrong.
The evidence showed that both Hunter and appellant had cared

for Tyler, including changing his diapers, during the twenty-four

hours preceding his medical treatment and that neither had

noticed anything unusual. While Tyler was alone in appellant's

care that afternoon, appellant delivered a severe blow to Tyler's

abdomen. Thereafter, Tyler was transported by ambulance and

treated at Riverside Hospital and Children's Hospital of the

King's Daughters before dying at 9:15 a.m. the next morning.

Treating physicians Beck and Nakagawa testified that no

An accused shall be guilty of inanimate or
animate object sexual penetration if he or
she penetrates the . . . anus of a
complaining witness who is not his or her
spouse with any object, other than for a bona
fide medical purpose . . . , and . . . [t]he
complaining witness is less than thirteen
years of age . . . .

Code § 18.2-67.2(A) (emphasis added).
2
Appellant also challenges his first degree murder
conviction on this basis. Because we affirm the conviction for
object sexual penetration on this issue, we also affirm the
conviction for first degree murder on this issue.

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medical procedures were performed on Tyler's anal area in either

hospital. Although Dr. Beck testified that Tyler's anal area

would have been cleaned if he had defecated while under medical

care, he did not defecate while Dr. Beck was present. Autopsy

physician Bush testified that Tyler's "relatively fresh" anal

injuries were of the same age as his abdominal injuries and could

not have been caused by the abdominal trauma or by a rectal

thermometer. Although Dr. Bush believed they could have been

caused by a finger, used with or without a towel, if "very

roughly pushed up or battered against the anus," or by a

prolapsed rectum, no evidence supported a hypothesis that the

injury occurred in either of those ways. No evidence indicated

that Tyler defecated at any time while under medical care or that

any of the trained medical personnel rubbed Tyler's anus harshly

enough to have caused the injuries described by Dr. Bush.
Furthermore, the trial judge was not required to believe

appellant's testimony that he did not know how Tyler sustained

those anal injuries. After giving conflicting accounts regarding

Tyler's abdominal injuries, appellant, a convicted felon,

admitted hitting Tyler in the stomach while Tyler was in his sole

care, and the evidence proved that the anal injuries were of the

same age.

Therefore, the only reasonable hypothesis flowing from the

evidence, viewed in the light most favorable to the Commonwealth,

is that appellant inflicted Tyler's anal injuries, that he did so

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with the intent to penetrate Tyler's anus with some object,

animate or inanimate, and that he performed a direct, but

ineffectual, act to consummate the offense. See Code §§ 18.2-26,

18.2-67.2.

II.

Appellant next contends that his conviction for first degree

murder must be set aside on the ground that the evidence failed

to prove the object with which he attempted penetration was

inanimate, rather than animate, as required for a first degree
3
murder conviction under Code § 18.2-32. We hold that appellant

failed properly to preserve the issue and that Rule 5A:18 bars

our review.

Pursuant to Rule 5A:18, this Court will not consider trial

court error as a basis for reversal where no timely objection was

made, except to attain the ends of justice. Where an appellant

makes a general objection to the sufficiency of the evidence that
3
In contrast to Code § 18.2-67.2, which prohibits object
sexual penetration with an inanimate or animate object, a
conviction for first degree felony murder under Code § 18.2-32
requires proof of "[m]urder . . . in the commission of, or
attempt to commit . . . forcible sodomy [or] inanimate object
sexual penetration." Id. (emphasis added). Forcible sodomy,
defined in Code § 18.2-67.1 to include "anallingus [sic], or anal
intercourse" of a victim less than thirteen years of age, would,
therefore, include some, but not all, acts of animate object
penetration.
The Commonwealth argued at trial that Tyler's injuries were
consistent with an attempt "to sodomize this child and stick [a]
finger in [his anus]." The former act amounts to forcible
sodomy, which would constitute a valid predicate offense; the
latter act amounts to neither forcible sodomy nor inanimate
object penetration and, therefore, would not constitute a valid
predicate offense.

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"[does] not specify in what respects [appellant] considered the

evidence to be insufficient to prove [the charged offense,] . . .

the issue of whether the evidence was insufficient to prove a

particular [unmentioned] element of the offense was not properly

preserved." Redman v. Commonwealth, 25 Va. App. 215, 220, 487

S.E.2d 269, 272 (1997).

To invoke the ends of justice exception to Rule 5A:18, the

record must "affirmatively show[] that a miscarriage of justice

has occurred, not . . . merely . . . that a miscarriage might
have occurred." Mounce v. Commonwealth, 4 Va. App. 433, 436, 357

S.E.2d 742, 744 (1987). To satisfy this burden, an appellant

must show "more than that the Commonwealth failed to prove an

element of the offense. . . . [T]he appellant must demonstrate

that he or she was convicted for conduct that was not a criminal

offense[,] or the record must affirmatively prove that an element

of the offense did not occur." Redman, 25 Va. App. at 221-22,

487 S.E.2d at 272-73.

In this case, although appellant moved to strike, he failed

to specifically assert that the evidence was insufficient to

prove sexual penetration with an inanimate rather than animate

object, as required to preserve the issue for appeal.

Furthermore, the ends of justice exception does not permit us to

excuse this failure, for the record does not show that appellant

"was convicted for conduct that was not a criminal offense or

. . . that an element of the offense did not occur." Id. at 222,

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487 S.E.2d at 273.

Had the trial court convicted appellant for felony murder

under the mistaken belief that proof of attempted penetration

with any animate object 4 would support such a conviction, we

would be permitted to invoke the ends of justice exception to

reverse the conviction because this would constitute a conviction

for a non-existent offense. In this case, the record indicates

the Commonwealth's attorney mistakenly believed that a killing is

felony murder under Code § 18.2-32 if it occurs during "the

commission of attempted inanimate or animate object penetration."
(Emphasis added). However, the record contains no affirmative

indication that the trial court also operated under this mistaken

belief, and we are bound by the presumption that the trial court

knew and properly applied the law, see, e.g., Wilson v.

Commonwealth, 23 Va. App. 318, 326, 477 S.E.2d 7, 10 (1996),

convicting appellant for felony murder based on the predicate

offense of attempted inanimate object penetration. 5
Finally, the evidence did not affirmatively prove that the

attempted penetration occurred with an animate rather than

inanimate object. Therefore, we may not invoke the ends of

justice exception to review appellant's challenge to the
4
"[A]nallingus [sic], or anal intercourse," acts of animate
object penetration that also constitute forcible sodomy as
defined in Code § 18.2-67.1, provide valid predicate offenses
under Code § 18.2-32. See the discussion, supra, at note 3.
5
As set forth above, forcible sodomy is also a valid
predicate offense.

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sufficiency of the evidence on this element. See Redman, 25 Va.

App. at 222, 487 S.E.2d at 273.

For the reasons set forth above, we hold that the evidence

was sufficient to support appellant's conviction for object

sexual penetration and that Rule 5A:18 bars our review of

appellant's assignment of error regarding the sufficiency of the

evidence to support his first degree murder conviction.

Therefore, we affirm both convictions.
Affirmed.

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