Antwan R. Jenkins v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Willis and Bray
Argued by Teleconference
ANTWAN R. JENKINS
MEMORANDUM OPINION *
v. Record No. 1093-96-1 BY JUDGE JOSEPH E. BAKER
JUNE 3, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Von L. Piersall, Jr., Judge
John D. Levin (Levin & Levin, on brief), for
appellant.
Daniel J. Munroe, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Antwan R. Jenkins (appellant) appeals his jury trial
convictions for first degree murder in violation of Code
§ 18.2-32 and for use of a firearm in the commission of a felony
in violation of Code § 18.2-53.1. Appellant contends that the
evidence fails to show beyond a reasonable doubt that three
gunshot wounds he inflicted upon Kelly Jackson (Jackson) were the
cause of Jackson's death. Therefore, he asserts that the
evidence is insufficient to sustain his convictions.
Upon familiar principles, we view the evidence in the light
most favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. Martin v. Commonwealth,
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). Viewed
accordingly, the record reveals that on May 21, 1995 appellant
inflicted three gunshot wounds upon Jackson. Jackson was
hospitalized and received treatment for the wounds, including
emergency surgery to repair damage to his large and small
intestines. Jackson, however, died at the hospital on May 25,
1995.
Dr. Faruk Presswalla (Dr. Presswalla), the Deputy Chief
Medical Examiner for the Commonwealth, performed the autopsy on
Jackson. Dr. Presswalla testified that although two of the
bullet wounds did not penetrate the body cavity or injure any
vital structures, the third bullet wound perforated Jackson's
large and small intestines. Dr. Presswalla added that the large
and small intestines were not vital organs in the sense that
"hitting them will kill you right away but it's a serious injury
because without treatment it will become a fatal injury,
especially the colon, because the colon is full of microorganisms
that could produce serious infection."
When asked if he formed an opinion as to Jackson's cause of
death, Dr. Presswalla testified only that "[Jackson] died as a
result of this aspiration following the gunshot wound to the
abdomen." In other words, "his vomit [went] up and down into the
airway, into his lungs." The prosecutor presented no evidence
regarding the cause of the aspiration and made no further inquiry
regarding the cause of Jackson's death.
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Dr. Jeff Carney (Dr. Carney), a surgical resident who
treated Jackson, wrote in Jackson's patient notes following the
date May 25, 1995 and time 11:20 a.m., "Please have Discharge
Planning and Home Health evaluate patient." Although he could
not state with certainty, Dr. Carney opined that Jackson may have
had "some type of seizure activity" which produced relatively
common vomiting. Dr. Carney based his statement on Jackson's
spastic movements in his extremities, his vomiting, and his eyes
rolling back into his head.
"In every prosecution for the commission of a homicide the
Commonwealth must prove that the party alleged to have been
murdered is dead, and that death resulted from the criminal act
or agency of another." Spain v. Commonwealth, 7 Va. App. 385,
393, 373 S.E.2d 728, 732 (1988). "Because the victim of a
felonious act dies after infliction of an injury does not
necessarily impose criminal liability upon the perpetrator. To
place such criminal liability on him, the injury must be a cause
of the victim's death." Id.
In appellant's case, the Commonwealth failed to present
evidence that Jackson's "death resulted from the criminal act or
agency of another." When Dr. Presswalla was asked if he formed
an opinion as to Jackson's cause of death, he responded that
"[Jackson] died as a result of this aspiration following the
gunshot wound to the abdomen." Clearly, the record is sufficient
to support a conclusion that Jackson died of the aspiration.
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However, the Commonwealth failed to show by Dr. Presswalla
whether the aspiration simply occurred after or was caused by the
gunshot wound. Therefore, the fact finder had no way of
determining whether Dr. Presswalla meant that the aspiration was
simply an unrelated event which coincidentally occurred after the
gunshot wound, or a result of the gunshot wound with a causal
relationship thereto. 1 Accordingly, we hold that the record
before us fails to support a finding that Jackson's death was
caused by any of the gunshot wounds inflicted by appellant.
For the reasons stated, the judgment of the trial court
approving appellant's convictions is reversed, and the
prosecution against appellant is dismissed.
Reversed and dismissed.
1
We acknowledge that one of the exhibits, Jackson's
typewritten discharge summary which is signed by Dr. Carney,
contains an almost indecipherable handwritten note in the top
left corner: "many Factors contributed to his death but all were
result of Gunshot wound." There is no indication in the record
of the source or author of this handwritten note and neither
party acknowledged the note in its brief. Consequently, we can
only speculate as to its origin, authenticity, and authorship,
and we are constrained by the record before us to disregard it.
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