Sonja Fizer Hickson v. Commonwealth of VA ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Agee
Argued at Salem, Virginia
SONJA FIZER HICKSON
MEMORANDUM OPINION * BY
v. Record Nos. 1205-01-3 and JUDGE G. STEVEN AGEE
1869-01-3 APRIL 23, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF BEDFORD COUNTY
James W. Updike, Jr., Judge
Melissa W. Friedman (Anthony F. Anderson; Law
Offices of Anthony F. Anderson, on briefs),
for appellant.
Kathleen B. Martin, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Sonja Fizer Hickson (Hickson) was convicted in a Bedford
County circuit court bench trial of involuntary manslaughter, in
violation of Code § 18.2-36, and felony child abuse, in
violation of Code § 18.2-371.1(A). The trial court sentenced
Hickson to a term of five years incarceration on each
conviction, to be served concurrently and suspended after twelve
months in jail. On appeal, Hickson contends the Commonwealth's
evidence was not sufficient to convict her of either charge.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
For the following reasons, we disagree and affirm the
convictions.
I. BACKGROUND
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, only those facts necessary to a disposition of this
appeal are recited.
A. THE INCIDENT
Hickson provided daycare services in her home for several
children, including thirteen-month-old Frances "Fran" Vermillion
("Fran" or "the child"). On February 12, 1998, Fran arrived at
Hickson's house just prior to 8:00 a.m. Fran had some
congestion but was otherwise in normal health. At approximately
8:05 a.m., Hickson telephoned the child's mother and said,
"something's wrong with Fran," and that the child had fallen and
was "acting funny." Hickson placed a telephone call to 9-1-1 at
8:09 a.m. She informed the dispatcher that the child had
tumbled "face first" from a chair.
The mother immediately returned to Hickson's house and
found her daughter lying limp on a child-size table in the
kitchen. She noticed her child had a small bump over her left
ear. When asked what had happened, Hickson said Fran had been
sitting in a chair at the child's table when she administered
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cough syrup to the child. 1 When Hickson turned around to place
the bottle of cough syrup on the counter she heard a "thump" and
found Fran lying on the kitchen floor. Hickson said she picked
up the child who cried and then went limp.
When paramedics arrived at Hickson's house at 8:23 a.m.,
they observed Fran to have a slow, irregular pulse, an increased
blood pressure and clinched teeth, an indication of a severe
head injury. Other than the bump over the child's left ear, the
paramedics observed no other body trauma, including no cuts or
bruises on the child's torso, arms or legs.
Fran was transported to the hospital where surgery was
performed to treat a medium-sized blood clot on the left side of
her brain. The child's prognosis post-surgery was poor, and her
condition deteriorated subsequently to "an unsurvivable injury."
The child's parents decided to remove Fran from the life support
system, and she died a short time later.
B. THE INVESTIGATORS' INTERVIEWS
Several investigators interviewed Hickson after Fran's
death. On February 13, 1998, Lieutenant Gardner of the Bedford
County Sheriff's Department interviewed Hickson who informed him
1
The medicine was an adult cough syrup, which was not
recommended, even in small doses, for children under the age of
12 years old. Hickson administered the cough syrup without the
authorization of the child's parents and contrary to the express
written agreement between the parents and herself.
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that the child had fallen from a chair. She did not offer any
further explanation.
Anne Shupe, a child protective services investigator,
interviewed Hickson on March 19, 1998. Hickson informed Shupe
that the child had arrived at her house on the morning of the
incident and "fussed a little bit." She gave Fran some cough
syrup and then heard the child fall as she put the medicine away
after having rinsed some dishes at the sink. She picked the
child up and then Fran "went limp" in her arms.
On February 17, 1999, Special Agent McDowel of the Virginia
State Police interviewed Hickson. Initially, Hickson reiterated
her claim that the child had fallen from a small chair in the
kitchen. Later, however, Hickson said Fran had hit her head on
the floor four times. First, when the child threw herself onto
the floor after being administered the cough syrup. Second, the
child threw herself backwards when her diaper was being changed.
Next, when Hickson picked the child up, she "didn't have a good
hold on her and . . . dropped her." Lastly, Hickson picked up
the child, carried her into the kitchen and "she [unexplainably]
fell in there, too."
C. PHYSICIAN OPINIONS
Dr. Hugh Craft, director of pediatric intensive care at
Carilion Community Hospital, treated Fran. He opined she
suffered a severe head injury caused by blunt force impact.
Further, he opined to a reasonable degree of medical certainty,
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that this injury could not have been caused by falling from a
height of twenty-seven inches to a wood floor covered by
linoleum, by falling backward onto the floor from a sitting
position, by falling to the floor from the arms of a standing
adult, or by the cumulative effect of such falls. A "serious
application of force, [and] not repetitive, relatively small
applications of force . . . would cause this kind of injury."
It was his testimony that a fall from a height in excess of ten
feet would cause the massive degree of injury indicated.
Assistant Chief Medical Examiner Dr. William Massello
performed Fran's autopsy. Dr. Massello's initial diagnosis was
that Fran died from a blunt impact to the head resulting in an
acute subdural hematoma, with the injuries being caused by one
or more impacts to the head. However, after reviewing the
paramedic's report, which detailed the bump observed on the left
side of the child's head, Dr. Massello determined there had been
a separate impact to the left side of the head. The presence of
two separate impact sites led Dr. Massello to opine that a
non-accidental injury was likely, arising from "pushing,
slamming, dropping, blows to the head, smacking the head, [or]
kicking."
Dr. Massello acknowledged the injuries could have resulted
from a fall of less than ten feet, but he qualified that opinion
by noting that (1) the severity of the injuries rarely happen
from falling backward from a seated position and (2) other
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visible injuries would have resulted as well. He reasoned the
fact that the impacts occurred within a "very brief period of
time" was "more consistent with some purposeful manipulation of
some type [to] the child, [such as] throwing, pushing or
kicking." While Dr. Massello testified that a fall from
forty-eight inches could be consistent with the injuries he
found at the autopsy, "things like that happen about one to two
percent of the time."
D. THE TRIAL COURT'S FINDINGS
The trial court did not find any evidence that Hickson
acted with malice. Instead, it found that the Commonwealth had
"proven beyond a reasonable doubt that the death of this child
resulted accidentally, but as a result of criminal negligence"
and convicted Hickson of involuntary manslaughter. In addition,
the trial court convicted Hickson of felony child abuse.
II. ANALYSIS
On appeal, Hickson contends the evidence was insufficient
to convict her of involuntary manslaughter and felony child
abuse. We disagree.
A. STANDARD OF REVIEW
On review of a challenge to the sufficiency of the
evidence, we view the evidence in the light most favorable to
the Commonwealth, the prevailing party, and grant to it all
reasonable inferences fairly deducible therefrom. See
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Commonwealth v. Jenkins, 255 Va. 516, 521, 499 S.E.2d 263, 265
(1998). The credibility of the witnesses and the weight
accorded their testimony are matters solely within the province
of the fact finder. See Lane v. Commonwealth, 184 Va. 603,
610-11, 35 S.E.2d 749, 752 (1945). "The judgment of a trial
court sitting without a jury is entitled to the same weight as a
jury verdict and will not be set aside unless it appears from
the evidence that the judgment is plainly wrong or without
evidence to support it." Martin v. Commonwealth, 4 Va. App.
438, 443, 358 S.E.2d 415, 418 (1987) (citations omitted).
B. INVOLUNTARY MANSLAUGHTER
Hickson contends the trial court erred in convicting her of
involuntary manslaughter when "there was no direct evidence of
gross, wanton, or culpable conduct by [her] that evidence a
reckless disregard for human life" and the circumstantial
evidence relied upon by the Commonwealth "simply [did] not
exclude [her] innocence." We disagree and affirm the
conviction.
"Involuntary manslaughter is defined as
the accidental killing of a person, contrary
to the intention of the parties, . . .
during the improper performance of some
lawful act. The 'improper' performance of
the lawful act, to constitute involuntary
manslaughter, must amount to an unlawful
commission of such lawful act, not merely a
negligent performance. The negligence must
be criminal negligence. The accidental
killing must be the proximate result of a
lawful act performed in a manner 'so gross,
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wanton, and culpable as to show a reckless
disregard of human life.'"
Cable v. Commonwealth, 243 Va. 236, 240, 415 S.E.2d 218, 220
(1992) (internal citations omitted).
The elements of involuntary manslaughter may be proven by
circumstantial evidence. See Dowden v. Commonwealth, 260 Va.
459, 536 S.E.2d 437 (2000).
"When the evidence is wholly circumstantial
. . . all necessary circumstances proved
must be consistent with guilt and
inconsistent with innocence and exclude
every reasonable hypothesis of innocence.
The chain of necessary circumstances must be
unbroken. Nevertheless, it is within the
province of the jury to determine what
inferences are to be drawn from proved
facts, provided the inferences are
reasonably related to those facts."
Id. at 468, 536 S.E.2d at 441 (quoting Inge v. Commonwealth, 217
Va. 360, 366, 228 S.E.2d 563, 567-68 (1976)). Circumstantial
evidence is just as competent and is entitled to as much weight
as direct evidence, provided the circumstantial evidence 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), cert. denied, 465 U.S. 1109 (1984).
The Commonwealth is only required to exclude the hypotheses of
innocence that flow from the evidence. Goins v. Commonwealth,
251 Va. 442, 467, 470 S.E.2d 114, 130, cert. denied, 519 U.S.
887 (1996).
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"The credibility of the witnesses and the weight accorded
the evidence are matters solely for the fact finder who has the
opportunity to see and hear that evidence as it is presented."
Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730,
732 (1995) (citations omitted). "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 the
accused is lying to conceal his guilt." Marable v.
Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235
(1998) (citation omitted). Furthermore, on appeal, Hickson's
varying accounts of how the child was injured must be viewed in
the light most favorable to the Commonwealth. When so viewed,
these claims may be interpreted as mere fabrications to conceal
guilt. See Rollston v. Commonwealth, 11 Va. App. 535, 547, 399
S.E.2d 823, 830 (1991).
To prevail on appeal, Hickson must show that the facts, as
established in the record and viewed in the light most favorable
to the Commonwealth, would not permit a reasonable fact finder
to reject her proposed hypothesis of innocence. We find that
Hickson has failed to meet this burden. The fact that the
child's injuries occurred in a short period of time while she
was in the sole care of Hickson, when considered with the
overwhelming medical evidence and physician testimony supports
the trial court's verdict and excludes every reasonable
hypothesis of innocence as presented by the evidence.
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Hickson seems to base her hypothesis of innocence upon
Dr. Massello's testimony that it was possible for a fall from a
height of less than four feet to have caused Fran's fatal
injury. However, the medical examiner limited that possibility
to a "one to two percent" chance. "The other ninety-eight to
ninety-nine percent of the time it's from kicks, slams, blows
. . . automobile accidents, falling off roofs, things like
that."
As the trial court found, based on Hickson's own rendition
of Fran's chain of injuries, only the last impact, a fall from a
child's table, could have caused the fatal subdural hematoma.
Dr. Craft opined that the injuries could not have been
caused by the child hitting her head on Hickson's kitchen floor
after falling backward onto the floor from a sitting position as
initially claimed by Hickson. Dr. Craft further opined that if
the injuries had been caused by a fall, the fall would have had
to occur from a height in excess of ten feet. Additionally,
while Dr. Massello's initial review of the child's body allowed
for the possibility that the injuries were caused by the child
falling from a chair, his opinion after reviewing all the
evidence was that the injuries were more likely caused by
another means, especially since the child suffered no other
injuries or bruises. Dr. Massello could not determine the exact
means that caused the injuries, but he opined that the injuries
were likely caused by "pushing, slamming, dropping, blows to the
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head, [or] kicking," "some purposeful manipulation . . . of the
child." The physicians' opinions that the injuries could not
have been caused by the child falling onto or throwing herself
backward onto the floor casts doubt upon all of Hickson's
multiple versions of the events that occurred. See Christian v.
Commonwealth, 221 Va. 1078, 1081, 277 S.E.2d 205, 208 (1981)
(trial court entitled to accept doctor's opinion that it was
"extremely unlikely" defendant's child had been injured as
defendant suggested).
We hold that the evidence of record, when considered as a
whole, is fully sufficient to support the trial court's finding
that Hickson was guilty of involuntary manslaughter. "'While no
single piece of evidence may be sufficient, the "combined force
of many concurrent and related circumstances, each insufficient
in itself, may lead a reasonable mind irresistibly to a
conclusion."'" Dowden, 260 Va. at 470, 536 S.E.2d at 443
(quoting Stamper v. Commonwealth, 220 Va. 260, 273, 257 S.E.2d
808, 818 (1979), cert. denied, 445 U.S. 972 (1980)). We,
therefore, affirm the conviction for involuntary manslaughter.
C. FELONY CHILD ABUSE
Hickson also challenges the sufficiency of the evidence to
convict her of felony child abuse. She contends the
Commonwealth failed to prove she acted willfully. We disagree.
Code § 18.2-371.1(A) provides, in pertinent part, that
"[a]ny . . . person responsible for the care of a child under
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the age of eighteen who by willful act or omission or refusal to
provide any necessary care for the child's health causes or
permits serious injury to the life or health of such child shall
be guilty of a Class 4 felony."
"Willful" generally means an act done with a
bad purpose, without justifiable excuse, or
without ground for believing it is lawful.
See Richardson v. Commonwealth, 21 Va. App.
93, 99, 462 S.E.2d 120, 123 (1995). The
term denotes "'an act which is intentional,
or knowing, or voluntary, as distinguished
from accidental.'" Snead v. Commonwealth,
11 Va. App. 643, 646, 400 S.E.2d 806, 807
(1991) (quoting United States v. Murdock,
290 U.S. 389, 394 (1933)). The terms "bad
purpose" or "without justifiable excuse,"
while facially unspecific, necessarily imply
knowledge that particular conduct will
likely result in injury or illegality. See
Murdock, 290 U.S. at 395-96.
Ellis v. Commonwealth, 29 Va. App. 548, 554, 513 S.E.2d 453, 456
(1999).
The factual evidence proved that the child sustained
injuries during a short time frame in which she was exclusively
within the care of Hickson. The principal issue at trial was
whether those injuries were the result of a willful act or
omission. Hickson argues that the Commonwealth's circumstantial
evidence on this element 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. As previously discussed, in order to prevail
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on appeal, Hickson must show that the facts, as established in
the record and viewed in the light most favorable to the
Commonwealth, would not permit a reasonable fact finder to
reject her proposed hypothesis.
Here, the evidence proved that the child sustained injuries
during the time she was in Hickson's sole care. The evidence
further established that the injuries were inconsistent with a
simple fall from a chair or the child throwing herself onto the
floor. Instead, to a reasonable degree of medical certainty,
the injuries were consistent with a fall from a height in excess
of ten feet or associated with abuse. Further, the evidence
proved that Hickson presented multiple accounts regarding how
the child sustained the injuries.
Considering the size and age of the child and amount of
force necessary to cause the child's injuries, the trial court
could reasonably reject the hypothesis that an accident caused
the child's injury. This is particularly true, as noted above,
in the way Hickson described Fran's injury to have occurred.
The trial court was entitled to determine that the medical
opinions excluded an accident as a reasonable explanation for
the injury. The trial court was further entitled to disbelieve
Hickson's account and assume she was lying to conceal her guilt.
The trial court could reasonably determine from all the
circumstances that Hickson intentionally inflicted the injury
upon the child to the exclusion of any other hypothesis. "The
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facts . . . admitted of inferences of guilt more probable and
natural than any reasonable hypothesis of innocence, and
warranted" the trial court to reject the hypothesis of
accidental injury. Toler v. Commonwealth, 188 Va. 774, 782, 51
S.E.2d 210, 214 (1949).
The Commonwealth presented sufficient evidence for the
trial court to exclude any hypothesis that the injury resulted
from an accident and that Hickson acted "willfully" within the
meaning of Code § 18.2-371.1(A). Accordingly, the conviction is
affirmed.
Affirmed.
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