Christopher Michael Towns v. Commonwealth of VA ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Bumgardner and Lemons
Argued at Salem, Virginia
CHRISTOPHER MICHAEL TOWNS
MEMORANDUM OPINION* BY
v. Record No. 0346-98-3 JUDGE SAM W. COLEMAN III
MARCH 30, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
Ray W. Grubbs, Judge
Joseph Graham Painter, Jr. (Painter,
Kratman, Swindell, Crenshaw & DeMuth;
Painter & DeMuth, on briefs), for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on
brief), for appellee.
Christopher Michael Towns was convicted in a bench trial of
felony child abuse in violation of Code § 18.2-371.1. The
issues on appeal are (1) whether the trial court erred by
prohibiting the expert witness from giving his opinion whether
the injury was necessarily intentionally inflicted and (2)
whether the evidence was sufficient to convict Towns for
violating Code § 18.2-371.1. The expert's opinion as to whether
an intentional act necessarily caused the injury infringed upon
the fact finder’s responsibility to determine the ultimate issue
of fact, and therefore, was not admissible. Accordingly, we
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
affirm the trial court's ruling. Additionally, because the
evidence, viewed in the light most favorable to the
Commonwealth, Higginbotham v. Commonwealth, 216 Va. 349, 352,
218 S.E.2d 534, 537 (1975), was sufficient to prove the charge
beyond a reasonable doubt, we affirm the conviction.
BACKGROUND
Christopher Towns's and Laurie Miller's baby, at the age of
four weeks, sustained a long oblique or "spiral" fracture of the
shaft of the femur.
Laurie Miller testified that on the date of the injury, at
3:15 p.m., she left Towns alone with the baby at which time the
child's leg was normal. From 3:15 to 4:00, Miller showered
while Towns slept on a couch. Towns testified that he was
wearing boots. The baby was sleeping in her car seat facing
Towns at his feet. In his first statement to the investigating
officer, at the hospital, Towns said that he was awakened by the
child's screaming and that, becoming frantic, he called for
Miller to come out of the shower. His later written statement,
his testimony at trial, Miller's written statement and Miller's
testimony at trial all differed from Towns's initial statement
in one respect. In the later versions, Miller returned from the
shower at 4:00 p.m. and woke Towns, rather than his calling for
her to come from the shower, and the two talked for 15 to 20
minutes after which the baby awoke "extremely grumpy." Towns
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tried unsuccessfully to comfort the screaming child. After the
baby rejected a bottle and her pacifier, Towns carried the baby
to the dining room table to check her diaper. While checking
the diaper, Towns noticed that she became more upset and that
her leg, which had been normal an hour earlier, was motionless
or limp. Towns and Miller took the child to the emergency room
where Doctor Sinclair Ross Mackay diagnosed the fracture.
Dr. Mackay testified as an expert witness. He stated that
the injury, "a long oblique fracture down the shaft of the
[femur]" was very rare for a child of that age and was "commonly
associated with abuse." According to Dr. Mackay, the injury
"requires a twisting motion, its usually a combination of
angulation and twisting type motion to produce that type of
fracture in the shaft of the femur." Dr. Mackay further
testified that the injury resulted from something in excess of a
"slight twist of the leg."
Towns asked Dr. Mackay if he could "tell by the injury
whether this was an intentional act." Dr. Mackay answered
"No." The trial judge sustained the Commonwealth's objection
for the reason that the question called for an opinion as to an
ultimate issue of fact. The defendant was permitted to inquire
of Dr. Mackay whether spiral fractures can be caused by
accidental means.
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ANALYSIS
The trial court did not err in prohibiting Towns from
asking whether Dr. Mackay could "tell from the injury whether
this was an intentional act." "'[W]hile an expert witness may
be permitted to express his opinion relative to the existence or
nonexistence of facts not within common knowledge, he cannot
give his opinion upon the precise or ultimate fact in issue,
which must be left to the [fact finder] for determination.'"
See Llamera v. Commonwealth, 243 Va. 262, 264, 414 S.E.2d 597,
598 (1992) (quoting Webb v. Commonwealth, 204 Va. 24, 33, 129
S.E.2d 22, 29 (1963)).
The factual evidence proved that the child sustained an
injury during a time frame in which she was exclusively within
the care of Towns. The principle issue was whether that injury
was the result of an intentional or willful act by Towns in
violation of Code § 18.2-371.1. The expert could, and did,
testify as to the mechanics of how such an injury occurs, but it
was the province of the fact finder to determine whether an
intentional act necessarily caused the injury. See, e.g., Knick
v. Commonwealth, 15 Va. App. 103, 108, 421 S.E.2d 479, 482
(1992) (allowing forensic pathology expert to testify as to the
mechanics of a shooting but prohibiting his opinion as to
whether it was an accident). The question as to whether an
intentional act necessarily caused the injury asked the expert
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witness to give an opinion as to whether this specific injury
was intentionally inflicted. That is the ultimate factual issue
that the fact finder must determine. The trial court did not
err in excluding the expert witness' opinion whether the injury
was caused by an intentional act.
Towns also contends that the evidence was insufficient to
prove intent as required by Code § 18.2-371.1. Towns argues
that the Commonwealth's circumstantial evidence supports a
reasonable hypothesis of innocence and, therefore, the evidence
does not rise to the level of proof beyond a reasonable doubt.
The suggested reasonable hypothesis of innocence is that the
injury resulted from an accident.
When an appeal challenges the sufficiency of the evidence
"we must view the evidence and all reasonable inferences fairly
deducible therefrom in the light most favorable to the
Commonwealth." Stockton v. Commonwealth, 227 Va. 124, 145, 314
S.E.2d 371, 385 (1984). "When, from the circumstantial evidence
it is just as likely, if not more likely, that a reasonable
hypothesis of innocence explains the accused's conduct, the
evidence cannot be said to rise to the level of proof beyond a
reasonable doubt." Betancourt v. Commonwealth, 26 Va. App. 363,
373, 494 S.E.2d 873, 878 (1998) (internal quotations omitted).
Thus, when the Commonwealth relies upon circumstantial evidence
to prove guilt, the Commonwealth "must exclude all reasonable
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conclusions inconsistent with guilt." See Higginbotham, 216 Va.
at 353, 218 S.E.2d at 537.
However, the Commonwealth need not exclude every possible
theory of innocence, rather it must exclude only those which
flow reasonably from the facts and raise a reasonable doubt of
guilt. See Payne v. Commonwealth, 216 Va. 265, 272, 217 S.E.2d
870, 875 (1975). Whether a particular hypothesis is reasonable,
is a question of fact binding on appeal unless plainly wrong.
See Lovelace v. Commonwealth, 27 Va. App. 575, 586, 500 S.E.2d
267, 273 (1998).
Moreover, the Commonwealth is not required to actively
negate every reasonable theory of innocence, instead it is
sufficient if the evidence as presented has the effect of
excluding those theories. See Orange v. Commonwealth, 191 Va.
423, 443, 61 S.E.2d 267, 276 (1950). If, based on the
Commonwealth’s evidence, the fact finder justifiably could have
excluded all reasonable hypotheses of innocence, or determined
that any possible hypothesis of innocence was less than
reasonable, then we must affirm. We defer to the fact finder
because the inferences to be drawn from proven facts are the
province of the fact finder so long as they are reasonable and
justified. See Higginbotham, 216 Va. at 353, 218 S.E.2d at 537.
If, as here, the appellant presents an hypothesis of
innocence on appeal, the burden is on the appellant to show that
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no reasonable finder of fact, based on the evidence presented,
could have excluded that hypothesis. See generally Johnson v.
Commonwealth, 12 Va. App. 391, 396, 404 S.E.2d 384, 387 (1991)
("The burden is on the party who alleges reversible error to
show by the record that reversal is the remedy to which he is
entitled."). It is in this context that the Virginia Supreme
Court has said that the hypotheses which the Commonwealth must
exclude are those that actually flow from the evidence rather
than those that may arise from the imagination of counsel. See,
e.g., Black v. Commonwealth, 222 Va. 838, 841, 284 S.E.2d 608,
609 (1981). Thus, to prevail, appellant must show that the
facts as established in the record, viewed in the light most
favorable to the Commonwealth, would not permit a reasonable
fact finder to reject appellant's proposed hypothesis.
Here, the evidence proved that the baby's leg was normal at
3:15 p.m.; that between 3:15 and 4:00 p.m., the baby was alone
with Towns; that between 4:00 and 4:20 p.m., the baby slept next
to Miller and Towns; and that shortly after the baby awoke at
4:20, while changing the baby's diaper, Towns reported to Miller
that the baby's leg was limp and motionless. The evidence
further established that the fracture injury was one that is
extremely rare, usually associated with abuse, and requires a
twisting of the limb with considerable force. Further, the
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evidence proved that Towns presented conflicting accounts
regarding his discovery of the child's injury.
Considering the size and age of the child and amount of
force necessary to cause the child's spiral fracture, the fact
finder could reasonably reject the hypothesis that an accident
caused the child's injury. Moreover, no evidence was presented
that an accident had occurred. The fact finder was entitled to
determine that Dr. Mackay's evidence excluded an accident as a
reasonable explanation for the injury. The evidence proved that
the spiral injury, which could only have been caused by the
application of considerable force in twisting the leg, occurred
when the child was in the exclusive custody of the defendant.
The fact finder could reasonably determine from these
circumstances that Towns intentionally inflicted the injury upon
the child. "The facts . . . admitted of inferences of guilt
more probable and natural than any reasonable hypothesis of
innocence, and warranted" the trial judge in rejecting an
hypothesis of accidental injury. See Toler v. Commonwealth, 188
Va. 774, 782, 51 S.E.2d 210, 214 (1949).
The Commonwealth presented sufficient evidence for the fact
finder to exclude any hypothesis that the injury resulted from
an accident. Accordingly the conviction is affirmed.
Affirmed.
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