Cecelia Leigh Burnette v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, Alston and Senior Judge Annunziata
Argued at Richmond, Virginia
CECELIA LEIGH BURNETTE
OPINION BY
v. Record No. 1158-11-3 JUDGE ROSSIE D. ALSTON, JR.
JULY 31, 2012
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF BEDFORD COUNTY
James W. Updike Jr., Judge
David A. Oblon (Hilary D. Griffith; Albo & Oblon L.L.P., on
briefs), for appellant.
Rosemary V. Bourne, Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
Cecelia Leigh Burnette (appellant) was convicted in a jury trial of child abuse in violation
of Code § 18.2-371.1. On appeal she contends: 1) the evidence was insufficient to sustain her
conviction where the Commonwealth failed to prove that appellant committed the offense, knew
that another committed the offense, or failed to provide the necessary care; 2) the trial court erred
in admitting evidence of prior bad acts; 3) the trial court erred in precluding appellant from
asking an expert witness on cross-examination whether he agreed or disagreed with specific
scientific literature on the profile of abusive head trauma perpetrators; and 4) the trial court erred
in admitting autopsy photos because the cause of death was not in dispute. We disagree and
affirm the judgment of the trial court.
I. BACKGROUND
On appeal, we view “the evidence in the light most favorable to the Commonwealth, the
party prevailing in the circuit court, and we accord the Commonwealth the benefit of all
reasonable inferences deducible from the evidence.” Britt v. Commonwealth, 276 Va. 569, 573,
667 S.E.2d 763, 765 (2008) (citing Jay v. Commonwealth, 275 Va. 510, 524, 659 S.E.2d 311,
319 (2008); Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008)).
A. Events of September 2, 2008
So viewed, the evidence indicated that on the morning of September 2, 2008, appellant
took her eight-month-old daughter, M.B., to Dr. Anastasia Ketany’s office, where Dr. Ketany
examined M.B. and diagnosed her with an upper respiratory infection and ear infection.
Dr. Ketany later testified at trial that the child appeared alert and appropriate during the
examination and was observed drinking from a cup. Dr. Ketany also testified that appellant
seemed rushed and angry at M.B.’s father, Adam Davis, during the examination.
Following the doctor’s appointment, appellant returned to the home she shared with
Joshua Cheek, her boyfriend, and left M.B. with Cheek while she went to the pharmacy to get a
prescription filled for M.B.’s ear infection. While appellant was out, Cheek gave M.B. a bath,
during which time he noticed she “did not look there at all,” like she was “in a daze.” While
M.B. was seated in her bath chair, Cheek saw her head fall forward and then back.
Cheek removed M.B. from the tub, dressed her, and placed her in her swing. While M.B.
was in the swing, Cheek noticed she appeared to have a seizure. Cheek stated that M.B. shook
for three to five seconds and her eyes rolled toward the back of her head. Cheek removed M.B.
from her swing, made multiple calls to appellant’s cell phone, and, upon reaching appellant,
described what happened. Appellant told Cheek “not to worry about it” and that she would be
home in a minute. Appellant returned home forty-five minutes later.
After giving M.B. her medication and attempting to feed her, appellant placed M.B. back
in her swing, where she remained most of the afternoon and appeared to be asleep. Around
3:30 p.m., appellant called the Child Protective Services employee previously assigned to a case
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involving M.B., asking if she planned to do a home visit that day. Appellant stated during the
phone call that she did not want the employee to visit because M.B. was sick. Around 5:30 p.m.,
appellant left with Cheek’s grandmother to pick up her car while Cheek played video games with
M.B. next to him in her swing. While appellant was gone, Cheek saw M.B. shake again, and her
eyes rolled back in her head, and she went “lifeless.” After being unable to reach appellant,
Cheek called his mother and then 911.
Paramedics arrived and rushed M.B. to the nearest hospital, where physicians examined
M.B. before transferring her to a hospital specializing in pediatric care. At the second hospital,
physicians discovered that M.B. had sustained severe head trauma. Dr. Donald Kees examined
M.B. and determined that she was brain dead. Doctors placed M.B. on life support, where she
remained until September 4, 2008, when life support was removed and she died.
B. The Police Investigation and Grand Jury
Doctors who treated M.B. alerted police, who came to the hospital and interviewed
appellant and Davis. During this time, appellant consistently informed doctors and police
officers that she was not aware of any head trauma suffered by M.B. During these various
conversations, appellant did not mention to any medical professionals that M.B. had previously
experienced seizures or exhibited seizure-like activity.
Kevin Young, an investigative officer, interviewed appellant the day after her daughter
was hospitalized. After being told that someone had shaken M.B. to death, appellant told Young
that the only thing she could think of was that something had happened when she left M.B. with
Cheek so she could get M.B.’s prescriptions. Appellant speculated that maybe when M.B. “went
over into the bathtub,” Cheek had “grabbed her, freaked out and started shaking her.” Appellant
also mentioned for the first time that Cheek stated over the phone when he called appellant that
he was scared and that M.B. did not “look right.” Young then asked appellant when did M.B.
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first have a seizure, and appellant stated that it was when Cheek was bathing M.B. the day she
died.
Tim Stanley, an investigative officer, also interviewed appellant the day after her
daughter was hospitalized and on several other occasions. Appellant initially informed Stanley
that M.B. lost consciousness at appellant’s grandmother’s house, but almost immediately
backtracked and said that it happened at her home, because Stanley “knew it happened [at her
home].” Appellant told Stanley that her grandmother watched M.B. while appellant went to get
the child’s prescription on September 2, 2008. Appellant also told Stanley that later in the
afternoon a “friend” came over who was going to take her to get her vehicle, and she left M.B.
with the “friend’s son,” Cheek. Appellant told Stanley that when she returned, Cheek was
standing in the driveway screaming that M.B. was not breathing and “they called 911.”
Stanley informed appellant that her story did not match what she told the first
investigating officer and that he knew she was lying. Appellant apologized for lying and said
she lied because she was in a messy custody battle with Davis. Appellant then admitted that
Cheek was watching M.B. when appellant was getting the prescription. Appellant also informed
Stanley that Cheek called her four or five times while she was getting the prescription, telling her
to hurry up and get home. When appellant returned home, she gave M.B. a dose of the new
medicine, attempted to feed her, and placed her in her swing.
Stanley interviewed appellant a second time shortly thereafter on September 9, 2008.
During the second interview, appellant first mentioned that M.B. had bumped her head on a table
the day she died.
In January 2009, appellant testified before a grand jury about the events leading up to
M.B.’s death. During her testimony, appellant stated that Cheek told her that M.B. had a
seizure-like episode on September 1, 2008, the day before M.B. was rushed to the hospital, while
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appellant was at work. Appellant stated she did not seek medical attention at that time because
she thought Cheek was overreacting. Stanley, who was present during appellant’s grand jury
testimony, later testified at trial that appellant’s grand jury testimony was the first time he heard
anything about the child having a seizure on the day before she died.
Appellant also claimed during her grand jury testimony that she told Dr. Ketany or her
nurse during M.B.’s September 2, 2008 appointment that M.B. “was having . . . these episodes of
going unconscious.” Dr. Ketany later testified at trial, asserting that appellant never mentioned
M.B. having any seizures or exhibiting seizure-like behavior. According to Dr. Ketany,
appellant also did not mention that M.B. hit or bumped her head before coming to the office.
Dr. Ketany’s nurse also testified that appellant never mentioned head traumas or seizures when
she was examining M.B. prior to Dr. Ketany entering the room.
Police arrested appellant on October 2, 2009, on indictments for murder in violation of
Code § 18.2-32 and felony child abuse in violation of Code § 18.2-371.1(A).
After appellant was arrested, Stanley interviewed appellant again. Appellant admitted to
lying during her grand jury testimony. Appellant also informed Stanley for the first time that
M.B. bumped her head on the sink and again “hard” on the changing station in Dr. Ketany’s
office bathroom on the morning of September 2, 2008.
C. Jury Trial
Appellant was tried by a jury beginning on March 15, 2011. Among other witnesses, the
Commonwealth presented the testimony of Cheek, Stanley, and Young, describing the events of
September 2, 2008, and the investigation into the child’s death, as described above. Cheek
specifically denied ever shaking or hurting the child.
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1. Medical Evidence
Dr. Kees, an expert in pediatrics, testified at appellant’s trial. He opined that M.B.’s
injuries were caused by rapid acceleration and deceleration of the head. Dr. Kees testified he
performed a CT scan on M.B., which revealed blood around M.B.’s brain and retinal
hemorrhages that were too numerous to count, indicating a lethal amount of force, consistent
with shaking, was applied to the child. Dr. Kees testified that M.B.’s injuries would have
produced immediate symptoms, such as a decreased level of responsiveness or change in mental
status that would progressively worsen over time. He also noted other common symptoms
included vomiting, sleepiness, irritability, abnormal crying, decreased feeding or no feeding at
all, and lethargy.
Dr. Robin Foster testified as an expert in pediatrics. He agreed with Dr. Kees’ conclusion
that M.B. died from “abusive head trauma.” He explained that abusive head trauma can only
result from violent shaking or throwing or the child being thrown from a car in an accident. He
emphasized that the lack of bruising and other evidence of external injuries indicated that M.B.’s
injury was not caused by bumping her head. Dr. Foster opined that on his review of the medical
records and history, M.B.’s fatal injuries occurred on the same day she presented to the hospital.
During cross-examination of both expert witnesses, appellant attempted to ask whether
each witness agreed or disagreed with scientific literature showing that the profile of a shaken
baby perpetrator is predominantly male, the first person to call 911, and the last person who is
with the victim. The Commonwealth objected to the proposed line of questioning. The trial
court sustained the Commonwealth’s objection, stating that the testimony was outside the scope
of the witness’ domain and would invade the province of the jury to determine the ultimate issue
of guilt or innocence of the appellant.
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Dr. Paul Benson, the medical examiner who performed M.B.’s autopsy, also provided
testimony concerning the cause of M.B.’s death. Benson opined that the injuries he observed
while performing the autopsy were inconsistent with accidental injuries. In describing the
severity of M.B.’s injuries, Benson referenced two photographs taken during the autopsy, one
showing M.B.’s face and another showing the inside of the skull.
The trial court admitted the autopsy photographs into evidence over appellant’s objection.
Appellant objected to the introduction of the photographs, arguing they were more prejudicial
than probative and that the cause of death was not in dispute. The Commonwealth responded
that it was required to prove each element of the charged offense and could not “stipulate away”
any element; therefore, the photographs were necessary to prove both that M.B. was the subject
of the autopsy and that M.B. died from the internal injuries depicted in the photograph of her
brain. The trial court overruled the objection, stating that the law allowed the Commonwealth to
introduce autopsy photographs even when the cause of death had been stipulated.
2. Evidence of Prior Bad Acts
At the beginning of trial, appellant made a motion in limine asking that any evidence of
prior bad acts by appellant be excluded, referring specifically to a prior Child Protective Services
complaint because of bruises on M.B. The trial court denied the motion.
At trial, the Commonwealth introduced testimony from Davis, Brenda Lacey, the child’s
daycare provider, and Tomi Turner, an employee for Child Protective Services, regarding
previous injuries to M.B..
Davis testified that he and appellant alternated custody of M.B., but both he and appellant
used the same babysitter, Lacey. Davis testified that Lacey called him approximately one month
before M.B. died, asking him to come to her house to look at bruises on M.B.’s face and arm
after appellant had dropped M.B. off one morning. Davis called social services in response to
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the bruises and discussed the matter with appellant. Appellant informed Davis that the bruises
on M.B.’s arm were from a food allergy and the bruises on her face were from fingernail
clippers.
Lacey also testified at trial, stating that on August 6, 2008, when appellant dropped off
M.B. at daycare, she noticed bruises on M.B.’s arm and cheek. When Lacey inquired about
these marks, appellant told her they were the result of a food allergy. Appellant never mentioned
that M.B. had injured her face with a pair of fingernail clippers. Turner also testified, indicating
that appellant told her that the mark on M.B.’s arm came from a Popsicle causing a hive and that
the bruise to M.B.’s face occurred when the child hurt herself with a pair of fingernail clippers.
Cheek also provided testimony concerning appellant’s past treatment of M.B. He
testified that on a prior occasion when he returned to the house he shared with appellant,
appellant threw M.B. at him from a few yards away as he walked through the door. After
throwing M.B., appellant said, “I can’t get her to stop crying, can you get her to stop crying?”
Cheek also testified that he recalled the bruise on M.B.’s face.
3. Motion to Strike
At the conclusion of the Commonwealth’s case-in-chief, appellant moved to strike the
evidence as insufficient, arguing that there was no direct evidence proving that appellant was the
one who inflicted M.B.’s fatal injuries or that she knew Cheek inflicted the injuries and did
nothing to prevent the abuse. After the Commonwealth’s argument in response, the trial court
denied the motion to strike.
At the conclusion of all of the evidence, appellant renewed her motion to strike. The trial
court denied the motion.
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4. Verdict and Sentencing
The jury acquitted appellant of murder but convicted her of felony child abuse and
recommended a sentence of eight years along with a $75,000 fine. The trial court sentenced
appellant in accordance with the jury’s recommendation. Following sentencing, appellant
moved to set aside the verdict, arguing that the evidence was insufficient to support her
conviction of felony child abuse because there was insufficient evidence to prove beyond a
reasonable doubt that appellant was the individual who committed the offense, knew that another
committed the offense before the fact, or failed to provide necessary care. The trial court denied
the motion. This appeal followed.
II. ANALYSIS
A. Sufficiency of the Evidence
Code § 18.2-371.1(A) states that a parent 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 [her] child shall be guilty of a Class 4 felony.” On appeal, appellant argues that the
evidence was insufficient to support her conviction for felony child abuse because the
Commonwealth failed to prove that appellant committed the offense, knew that another
committed the offense, or failed to provide necessary care. 1 We reject appellant’s argument and
find based upon the applicable standard of review that the evidence was sufficient to support
appellant’s conviction for felony child abuse.
1
Appellant concedes on brief that “[t]he evidence shows that [M.B.] was intentionally
killed and that the mortal injuries would certainly constitute child abuse,” Appellant’s Br. at 9,
and questions only whether sufficient evidence was presented to find appellant caused M.B.’s
injuries. Accordingly, we find the “willful act resulting in serious injury” element of the statute
satisfied and focus our review on whether the evidence was sufficient to find that appellant, as
opposed to someone else, committed the offense.
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When reviewing a challenge to the sufficiency of the evidence to support a conviction,
this Court views the evidence in the light most favorable to the Commonwealth as the prevailing
party below, granting to it all reasonable inferences drawn from that evidence. See Archer v.
Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v.
Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)). This Court will not disturb
a trial court’s judgment “unless it is ‘plainly wrong or without evidence to support it.’” Barlow
v. Commonwealth, 26 Va. App. 421, 429, 494 S.E.2d 901, 904 (1998) (quoting Beavers v.
Commonwealth, 245 Va. 268, 282, 427 S.E.2d 411, 421 (1993)).
Appellant argues that the evidence was insufficient to exclude a reasonable hypothesis of
innocence that someone other than appellant was the criminal agent. Specifically, appellant
argues that the evidence was insufficient to prove that appellant, rather than Cheek, inflicted the
injuries upon M.B. Appellant contends that in a case relying on circumstantial evidence, “‘[a]ll
necessary circumstances proved must be consistent with guilt and inconsistent with innocence,’”
which is accomplished only when the chain of circumstances is unbroken. Christian v.
Commonwealth, 221 Va. 1078, 1082, 277 S.E.2d 205, 208 (1981) (quoting Webb v.
Commonwealth, 204 Va. 24, 34, 129 S.E.2d 22, 29 (1963)). Citing Christian, appellant asserts
that the chain of circumstances is broken where there is another person present who had the
opportunity to commit the crime.
Appellant’s reliance on Christian is misplaced. In Christian, the defendant was convicted
of felony child neglect after a daycare worker discovered injuries to the defendant’s daughter.
Id. However, unlike the present case, at least five people had an opportunity to handle the child
during the period in which her injuries occurred, and the Commonwealth failed to present
evidence that these individuals did not cause the injuries. Id. The Supreme Court overturned the
defendant’s conviction for felony child neglect because the evidence raised only the suspicion
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that the defendant injured her child during the night, since numerous individuals had contact with
the child the next morning without discovering the child’s painful fractures. Id.In the present case, the evidence at trial indicated that M.B. died from rapid acceleration
and deceleration of her head, which was consistent with violent shaking or throwing and
inconsistent with accidental head bumps. The evidence also established that M.B.’s injuries
occurred on the same day that she was rushed to the hospital, September 2, 2008. After initially
lying about who was watching M.B. on September 2, 2008, appellant later admitted that she and
Cheek were the only individuals caring for the child that day until Lynette Cheek, Joshua
Cheek’s mother, administered CPR just before emergency personnel arrived. Accordingly,
appellant contends that the evidence shows merely that either appellant or Cheek (or both) fatally
injured the child. Appellant also argues that the evidence suggests that Cheek inflicted the
injuries upon M.B. because Cheek was alone with the child when both seizures occurred.
Appellant is correct that, as in Christian, the evidence showed that both appellant and
Cheek had the opportunity to inflict the injuries upon M.B., though both denied causing the
injuries. However, unlike in Christian, the Commonwealth in the instant case presented evidence
that Cheek did not cause the injuries through Cheek’s specific testimony that he had never
shaken or hurt M.B. “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)
(citing Schneider v. Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735, 736-37 (1985); Carter v.
Commonwealth, 223 Va. 528, 532, 290 S.E.2d 865, 867 (1982)). Because credibility
determinations are solely the province of the fact finder, Long v. Commonwealth, 8 Va. App.
194, 199, 379 S.E.2d 473, 476 (1989), the jury was entitled to accept Cheek’s denial and, having
done so, could reasonably infer that appellant fatally injured M.B. See Collado v.
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Commonwealth, 33 Va. App. 356, 365, 533 S.E.2d 625, 630 (2000) (finding evidence supporting
conviction sufficient where child was “criminally assaulted during the period appellant had sole
custody and control of the child”).
The jury was particularly entitled to accept Cheek’s testimony and reject appellant’s
explanations for M.B.’s injuries here, as the Commonwealth introduced numerous examples
where appellant lied to the police and doctors, 2 including appellant’s admission that she perjured
herself in front of the grand jury. See Covil v. Commonwealth, 268 Va. 692, 696, 604 S.E.2d
79, 82 (2004) (finding “[a] false or evasive account is a circumstance . . . the fact-finder may
properly consider as evidence of guilty knowledge”). Moreover, the jury was also free to credit
or discredit appellant’s explanation for asking Child Protective Services not to come to the house
on the day M.B. was injured. And, in discrediting appellant’s explanation, the jury was free to
perceive the call as an attempt by appellant to conceal her guilt. Id. (citing Emmett v.
2
Appellant contends the Commonwealth improperly relied on appellant’s false
explanations of the circumstances surrounding the child’s death. Appellant asserts that the
Commonwealth failed to prove “by the facts or the circumstances, or both, that beyond all
reasonable doubt that the defendant committed the crime charged against [her].” Hyde v.
Commonwealth, 217 Va. 950, 955, 234 S.E.2d 74, 78 (1977).
Appellant’s reliance on Hyde is misplaced. In Hyde, a rape victim in a mental hospital
claimed that a tall, white man who had offered her a cigarette had taken her into the woods and
raped her. Id. at 951, 234 S.E.2d at 76. The victim later died from a ruptured intestine she
sustained during the ordeal. Id. The evidence in Hyde demonstrated that two other men, in
addition to Hyde, were present with the victim shortly before the rape occurred. Id. at 951, 234
S.E.2d at 76. One of the two men later confessed to having sex with the victim and repeatedly
hitting her in the stomach on the day she died. Id. at 953, 234 S.E.2d at 77. On this basis, the
Court held appellant’s false statements, alone, were insufficient to support his conviction. Id. at
954, 234 S.E.2d at 77 (stating that “to assume that [the defendant] was the only tall, white man
who had given [the victim] a cigarette that day would be to assume too much”).
The present case is distinguishable. Here, the evidence at trial demonstrated that M.B.’s
injuries occurred on the day she was rushed to the hospital. On that day, appellant and Cheek
had exclusive custody of the child. Witnesses also testified that appellant seemed rushed and
angry the morning M.B. was injured. Cheek testified during trial that he never injured M.B.
Finding Cheek’s testimony credible, the jury was free to reasonably infer that appellant caused
M.B.’s injuries. In this light, appellant’s false explanations provided the jury an additional
reason to find appellant’s explanations for M.B.’s injuries less credible.
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Commonwealth, 264 Va. 364, 372, 569 S.E.2d 39, 45 (2002) (“[H]aving rejected a defendant’s
attempted explanation as untrue, [a fact finder] may draw the reasonable inference that his
explanation was made falsely in an effort to conceal his guilt.”).
Appellant’s argument that the evidence suggests that Cheek inflicted the injuries upon
M.B because Cheek was alone with the child when both seizures occurred is also unavailing. To
the contrary, this circumstance further distinguishes the present case from Christian. Unlike
Christian, where numerous individuals were in contact with the child before her painful fractures
were noticed, Cheek testified that both episodes occurred shortly after appellant left M.B. with
him and after appellant had custody of M.B. Accordingly, unlike Christian, this is not a case of
mere opportunity used to prove guilt. Rather, we are presented with opportunity “reinforced by
other incriminating circumstances” to establish guilt beyond a reasonable doubt. Christian, 221
Va. at 1082, 277 S.E.2d at 208 (finding opportunity reinforced by other incriminating evidence
may be sufficient to prove guilt beyond a reasonable doubt).
We cannot say this evidence was so deficient that only an unreasonable trier of fact could
have concluded that appellant caused M.B.’s injuries. Accordingly, we determine the evidence
is sufficient to support appellant’s conviction.
B. Evidence of Prior Bad Acts
Appellant next assigns error to the admission of evidence of prior bad acts at trial. The
prior bad acts evidence consists of earlier Child Protective Services involvement in M.B.’s care,
prior suspicious injuries to M.B., such as bruises and marks on her body, and an incident where
appellant tossed M.B to Cheek. 3 Appellant contends that these events are improper character
3
Appellant conceded during oral argument that evidence that appellant once threw M.B.
to Cheek because M.B. would not stop crying was appropriately admitted under an exception to
the rule generally prohibiting the admission of prior bad acts. Because appellant has conceded
the admissibility of this evidence, we do not consider whether the trial court erred in admitting it.
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evidence, and, even if they were proper, they were so remote and inflammatory that their
probative value was substantially outweighed by the danger of unfair prejudice. For the reasons
identified below, we reject appellant’s argument that the trial court erred in admitting evidence
of prior bad acts.
“As a general rule, evidence of other offenses is inadmissible to prove guilt of the crime
for which the accused is on trial. Exceptions to this general rule, however, are as well
established as the rule itself.” Moore v. Commonwealth, 222 Va. 72, 76, 278 S.E.2d 822, 824
(1981) (internal citations omitted). “Evidence of other offenses is admitted if it shows the
conduct and feeling of the accused toward his victim, if it establishes their prior relations, or if it
tends to prove any relevant element of the offense charged.” Kirkpatrick v. Commonwealth, 211
Va. 269, 272, 176 S.E.2d 802, 805 (1970).
Admission of evidence under these exceptions, however, is
subject to the further requirement that the legitimate probative
value of the evidence must exceed the incidental prejudice caused
the defendant. Lewis v. Commonwealth, 225 Va. 497, 502, 303
S.E.2d 890, 893 (1983). Further, the admission of such “other
crimes” evidence is prohibited when its only purpose is to show
that the defendant has a propensity to commit crimes or a
particular type of crime and, therefore, probably committed the
offense for which he is being tried. Kirkpatrick, 211 Va. at 272,
176 S.E.2d at 805.
Guill v. Commonwealth, 255 Va. 134, 139, 495 S.E.2d 489, 491-92 (1998).
Determinations about the admission of evidence are left to the sound discretion of the
trial court and will not be reversed on appeal unless the trial court abused that discretion. Bell v.
Commonwealth, 49 Va. App. 570, 576, 643 S.E.2d 497, 500 (2007) (citing Blain v.
Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988)).
The evidence shows M.B. suffered injuries to her face and arm while in appellant’s and
Cheek’s custody. Both appellant and Cheek denied injuring M.B., though in doing so appellant
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provided inconsistent explanations for the child’s injuries. The injuries were first discovered by
Lacey, M.B.’s babysitter, who immediately informed the child’s father, Davis. Davis questioned
appellant, who told him that the bruises were from a food allergy (arm) and fingernail clippers
(face). Lacey also questioned appellant, who stated that the injuries were the result of a food
allergy. Appellant never mentioned to Lacey that M.B. injured her face with fingernail clippers.
In response to the injuries, Davis called social services. Child Protective Services interviewed
appellant, and appellant stated that the mark on M.B.’s arm came from a popsicle causing a hive
and the bruise on M.B.’s face occurred when the child hurt herself with a pair of fingernail
clippers.
The evidence of the bruising and scratches and the resulting involvement of Child
Protective Services in M.B.’s care, considered together with appellant’s inconsistent
explanations as to how the injuries occurred, possessed significant probative value as it
demonstrated appellant’s prior relationship with and feelings toward M.B. See Evans v.
Commonwealth, 215 Va. 609, 614, 212 S.E.2d 268, 272 (1975) (finding evidence of prior
violence admissible when “motive, intent or knowledge of the accused is involved”); Ortiz v.
Commonwealth, 276 Va. 705, 715, 667 S.E.2d 751, 758 (2008) (finding evidence of prior bad
acts admissible to show the conduct or attitude of the defendant toward the child). Therefore,
evidence of these prior injuries to M.B. was admissible. Id.Appellant contends, however, that the trial court erred in admitting the evidence because
there was no proof that appellant caused those injuries. We reject this argument.
Long-accepted principles of Virginia law support the proposition
that, when a credibility determination must be made with respect to
the predicate for the admission of proffered conditionally relevant
evidence, that credibility determination must be made by the jury.
. . . In the context of evaluating the predicate of conditionally
relevant evidence, the trial court’s review of the credibility of a
witness is limited to determining whether his or her testimony is
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“unreasonable, as a matter of law, or inherently incredible,” or
such that reasonable people “could not differ as to its effect.”
Pavlick v. Commonwealth, 27 Va. App. 219, 228-29, 497 S.E.2d 920, 925 (1998) (internal
citations omitted).
In the present case, the relevance of the prior injuries was dependent upon a
determination of witness credibility. Whether the jury believed appellant’s explanation that
M.B. injured herself was a determination solely in their discretion. Myers v. Commonwealth, 11
Va. App. 634, 635, 400 S.E.2d 803, 804 (1991) (citing Barker v. Commonwealth, 230 Va. 370,
373, 337 S.E.2d 729, 732 (1985)). Similarly, the jury was free to find Cheek’s testimony that he
never hurt M.B. credible and, having done so, could reasonably infer that appellant caused
M.B.’s prior injuries. The record established that the child was in the custody of appellant and
Cheek when the prior injuries occurred, though both denied ever injuring the child. The jury was
entitled to consider and resolve this conflict in the evidence against appellant.
For the foregoing reasons, we find the trial court did not err in admitting the evidence of
prior injuries or Child Protective Services involvement. 4
C. Evidence on Profile of Abusive Head Trauma Perpetrators
Under her third assignment of error, appellant asserts the trial court erred in precluding
appellant from asking an expert witness on cross-examination whether he agreed or disagreed
4
Even if the trial court erred in admitting the evidence of prior bad acts, such error was
harmless. An error is harmless “[i]f, when all is said and done, the conviction is sure that the
error did not influence the jury, or had but slight effect . . . .” Clay v. Commonwealth, 262 Va.
253, 260, 546 S.E.2d 728, 731-32 (2001) (citing Kotteakos v. United States, 328 U.S. 750,
764-65 (1946)). Here, the evidence of prior bad acts would have had but a slight effect on the
jury. The evidence clearly established that M.B. was injured while in the custody of appellant
and Cheek. The evidence also demonstrated that appellant lied to investigators and to doctors
about the events on the day M.B. was injured. And, irrespective of the actions that led to Child
Protective Services involvement, appellant contacted Turner on the day M.B. was injured and
encouraged her not to visit the house. In light of these facts, evidence of prior injuries had slight
effect on the conviction.
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with specific scientific literature on the profile of abusive head trauma perpetrators. Appellant
contends this was a critical line of questioning that the trial court should have permitted, because
appellant’s defense was that Cheek had hurt M.B., and the scientific literature supported this
theory. Specifically, appellant wanted to question Dr. Kees and Dr. Foster about the
“overwhelming” scientific consensus that the profile of a shaken baby perpetrator is (1) a white
male, (2) the person who first calls the emergency number 911, and (3) the person who is last
with the victim.
In a criminal case, an expert may give an opinion based on his “‘own knowledge of facts
disclosed in his testimony or . . . upon facts in evidence assumed in a hypothetical question.’”
Simpson v. Commonwealth, 227 Va. 557, 565, 318 S.E.2d 386, 391 (1984) (quoting Walrod v.
Matthews, 210 Va. 382, 388, 171 S.E.2d 180, 185 (1969)).
“Whether a witness is qualified to render an expert opinion is a
question submitted to the sound discretion of the trial court.”
Nevertheless, “the record must show that the proffered expert
witness has sufficient knowledge, skill, or experience to render
him competent to testify as an expert on the subject matter of the
inquiry.”
Mohajer v. Commonwealth, 40 Va. App. 312, 320, 579 S.E.2d 359, 363 (2003) (quoting Combs
v. Norfolk and Western Ry. Co., 256 Va. 490, 496, 507 S.E.2d 355, 358 (1998)).
We find that the trial court did not err in precluding appellant’s line of questioning on
cross-examination on this basis, as neither Dr. Foster nor Dr. Kees was qualified as an expert in
the sociology of shaken baby/abusive head trauma perpetrators. 5 Here, both expert witnesses
qualified as experts in pediatrics, and nothing more.
5
In finding the trial court did not abuse its discretion by precluding appellant’s evidence,
we note that numerous jurisdictions have held that profile evidence is categorically inadmissible,
though the underlying rationales differ widely. Some courts have excluded profile evidence on
relevancy grounds. See Commonwealth v. Day, 569 N.E.2d 397, 399 (Mass. 1991) (finding
profile evidence “does not meet the relevancy test, because the mere fact that a defendant fits the
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Moreover, appellant misconstrues the record when she states that the Commonwealth
proffered Dr. Kees as an expert in “fatality review of child deaths and child abuse.” While
Dr. Kees testified that he has spoken locally and regionally on different topics of child abuse, the
Commonwealth requested the trial court certify Dr. Kees only as an expert in pediatrics.
Although the determination is left to the trial court’s discretion, an expert may not testify
on a subject matter until the proponent of the testimony has demonstrated that the expert has
“‘sufficient knowledge, skill, or experience to render him competent to testify as an expert on the
subject matter of the inquiry.’” Mohajer, 40 Va. App. at 320, 579 S.E.2d at 363 (quoting Combs,
256 Va. at 496, 507 S.E.2d at 358). Without more than Dr. Kees’ brief statement that he speaks
in public about child abuse, the trial court had no basis upon which to conclude that Dr. Kees had
expertise in the typical profile and activities of abusive head trauma perpetrators. Accordingly,
we affirm the trial court’s decision.
D. Admission of Autopsy Photographs
Finally, under her fourth assignment of error, appellant argues that the trial court erred in
admitting graphic autopsy photos where the cause of death was not in dispute. We reject
appellant’s argument and hold that the trial court did not err in admitting the two autopsy
photographs into evidence.
profile does not tend to prove that a particular defendant physically abused the victim” (citing
State v. Brown, 370 So.2d 547, 554 (La. 1979)); Duley v. State, 467 A.2d 776, 780 (Md. Ct.
Spec. App. 1983) (finding child battering profile “totally irrelevant because it does not tend to
prove that [the defendant] committed the acts of abuse attributed to him”); State v. Maule, 667
P.2d 96, 99 (Wash. Ct. App. 1983) (noting “relevancy of [such] evidence is not discernable”).
Other courts have considered profile evidence impermissible character evidence. See Gruwell v.
State, 254 P.3d 223 (Wyo. 2011) (finding profile evidence constitutes inadmissible character
evidence). Still others have noted that such evidence invades the province of the jury, see State
v. Jaco, 156 S.W.3d 775, 780 (Mo. 2005) (finding the proposed profile evidence invaded the jury
province by expressing an opinion on the guilt or innocence of the defendant), and that such
evidence is highly prejudicial, see Brunson v. State, 79 S.W.3d 304 (Ark. 2002).
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In addressing appellant’s assignment of error, we note that appellate courts will not
reverse a trial court’s decision to admit evidence, including autopsy photographs, unless the trial
court abused its discretion in that decision. See Teleguz v. Commonwealth, 273 Va. 458, 482,
643 S.E.2d 708, 723 (2007). Moreover,
[a]ccurate photographs of a crime scene are not rendered
inadmissible solely because they are gruesome, and autopsy
photographs of the victim are admissible to show the atrociousness
or vileness of a crime. Juniper [v. Commonwealth], 271 Va. [362,]
413, 626 S.E.2d [383,] 415-16 [(2006)], Walton v.
Commonwealth, 256 Va. 85, 92, 501 S.E.2d 134, 138, cert. denied,
525 U.S. 1046, 142 L. Ed. 2d 544, 119 S. Ct. 602 (1998). Such
photographs must nevertheless be excluded if their prejudicial
effect substantially outweighs their probative value. Walker v.
Commonwealth, 258 Va. 54, 69, 515 S.E.2d 565, 574 (1999), cert.
denied, 528 U.S. 1125, 145 L. Ed. 2d 829, 120 S. Ct. 955 (2000).
Such weighing is left to the discretion of the trial court and will not
be disturbed on appeal, absent an abuse of discretion. Id.Id.
We conclude that in the circumstances of this case, the trial court did not abuse its
discretion by admitting the autopsy photographs of the victim. A defendant’s stipulation with
regards to the cause of the victim’s death does not allow the appellant to sanitize the evidence
and thus preclude the Commonwealth from introducing photographs showing the dead victim,
even if the pictures may be considered gruesome. See Orbe v. Commonwealth, 258 Va. 390,
402, 519 S.E.2d 808, 815 (1999) (citing Chichester v. Commonwealth, 248 Va. 311, 326, 448
S.E.2d 638, 648 (1994)) (allowing photographs because they were probative of motive, intent,
malice, premeditation and the atrociousness of the crime).
Here, the admitted photographs possessed probative value beyond simply identifying the
cause of the victim’s death. At trial, the Commonwealth introduced the photographs through the
medical examiner, who used the photos to demonstrate the hemorrhages to the victim’s brain, too
numerous to count, which supported the Commonwealth’s inferences of malice and intent; proof
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of both requirements was necessary to support the charge of second-degree murder. Moreover,
the photos were probative to demonstrate M.B.’s injuries, which were mostly internal, to
corroborate each expert’s testimony about the cause of the M.B.’s death, and to indicate
appellant’s method in killing the child.
We find, therefore, the trial court did not err in admitting the two autopsy photographs
into evidence.
III. CONCLUSION
For these reasons, we find that the evidence was sufficient to support appellant’s
conviction for felony child neglect and that the trial court did not err in admitting evidence of
appellant’s prior bad acts, precluding appellant from asking Dr. Kees about scientific literature
on the profile of abusive head trauma perpetrators, and admitting autopsy photos of M.B.
Therefore, appellant’s conviction is affirmed.
Affirmed.
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