COURT OF APPEALS OF VIRGINIA

Present: Judges Frank, McCullough and Senior Judge Willis

Argued by teleconference

LISA MICHELLE HYLTON

OPINION BY

v. Record No. 0055-11-3 JUDGE JERE M. H. WILLIS, JR.

APRIL 10, 2012

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PULASKI COUNTY

Colin R. Gibb, Judge

Wade M. McNichols for appellant.

Erin M. Kulpa, Assistant Attorney General (Kenneth T. 

Cuccinelli, II, Attorney General, on brief), for appellee.

In a jury trial, Lisa Michelle Hylton (appellant) was convicted of second-degree felony 

murder, pursuant to Code § 18.2-33, and felonious child abuse and neglect, pursuant to Code 

§ 18.2-371.1(A). On appeal, she contends the evidence was insufficient to sustain her murder 

conviction.1

 We find the evidence sufficient and affirm the conviction.

Code § 18.2-33 prohibits “[t]he killing of one accidentally, contrary to the intention of the 

parties, while in the prosecution of some felonious act other than those specified in §§ 18.2-31 

and 18.2-32 . . . .” “[T]he commission of any felonious act (other than those expressly excepted 

[in Code § 18.2-33]) during the prosecution of which a death occurs supplies the malice which 

raises the incidental homicide to the level of second-degree murder.” Heacock v. 

 1 We denied the portions of appellant’s petition for appeal claiming that the evidence was 

insufficient to sustain her conviction of felony child abuse and neglect, in violation of Code

§ 18.2-371.1, and that the trial court erred in denying her motion to suppress her statement to the 

police.
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Commonwealth, 228 Va. 397, 403, 323 S.E.2d 90, 93 (1984). The statute “encompasses all 

felonious acts” not expressly excluded and is not limited to those felonies from which death is a 

foreseeable consequence. Id. at 404, 323 S.E.2d at 94.

“The res gestae rule restricts felony-murder to homicides ‘so closely related to the felony 

in time, place, and causal connection as to make it a part of the same criminal enterprise.’” 

Cotton v. Commonwealth, 35 Va. App. 511, 515, 546 S.E.2d 241, 243-44 (2001) (quoting 

Haskell v. Commonwealth, 218 Va. 1033, 1043-44, 243 S.E.2d 477, 483 (1978)). However, “a 

death which results not from actions of the felons nor from acts directly calculated to further the 

felony or necessitated by the felony, but from circumstances coincident to the felony, is not a 

death for which a felony-murder conviction will obtain.” King v. Commonwealth, 6 Va. App. 

351, 359, 368 S.E.2d 704, 708 (1988).

Under familiar principles of appellate review, we review the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible 

therefrom. See Haskins v. Commonwealth, 31 Va. App. 145, 149-50, 521 S.E.2d 777, 779 

(1999).

When considering on appeal the sufficiency of the evidence 

presented below, we “presume the judgment of the trial court to be 

correct” and reverse only if the trial court’s decision is “plainly 

wrong or without evidence to support it.” Davis v. 

Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77 

(2002) . . . . Thus, we do not “substitute our judgment for that of 

the trier of fact.” Wactor v. Commonwealth, 38 Va. App. 375, 

380, 564 S.E.2d 160, 162 (2002). “Instead, the relevant question is 

whether, after viewing the evidence in the light most favorable to 

the prosecution, any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt.” 

Jackson v. Virginia, 443 U.S. 307, 319 (1979). “This familiar 

standard gives full play to the responsibility of the trier of fact 

fairly to resolve conflicts in the testimony, to weigh the evidence, 
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and to draw reasonable inferences from basic facts to ultimate 

facts.” Id.

Kelly v. Commonwealth, 41 Va. App. 250, 257-58, 584 S.E.2d 444, 447 (2003) (en banc).

So viewed, the evidence proved that appellant illegally and feloniously purchased and 

took possession of methadone, brought it into her home, poured it into a medicine cup, and left 

the cup unattended on the kitchen counter. Her three-year-old son Trevor, who had used the

medicine cup to take cold medicine, drank the methadone. Trevor died from the overdose of 

methadone, which the autopsy revealed could have been lethal to an adult.

On the morning of September 29, 2009, while running some errands with her father, 

James Hylton (Hylton), and Trevor, appellant purchased the methadone. When they returned to 

appellant’s house, Hylton and Trevor went inside. Appellant took the methadone into the 

kitchen. Suspecting that the drug dealer had given her less methadone than she had purchased, 

appellant removed the measuring/drinking cup from a bottle of Robitussin cough syrup that

Trevor had been taking for a cold. She poured the methadone into the measuring cup,

confirming her suspicion. She went to the bedroom to discuss the shortage with her boyfriend, 

Mark Goodman. She left Trevor’s medicine cup, containing the methadone, on the kitchen 

counter.

Hylton testified that while appellant was in the bedroom, Trevor came into the living 

room holding his medicine cup. He asked whether he should take his medicine. Hylton said the 

liquid in the cup was “cherry looking,” and he tasted it with his finger. He said Trevor could 

take it because it was his cough syrup. Trevor said he thought he should ask his mother. Hylton 

agreed.

Trevor entered the bedroom, where appellant and Goodman were discussing what to do 

about the methadone shortage. Appellant testified she saw nothing in Trevor’s hand, and he 

asked her no questions.
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Trevor returned to the living room. He told Hylton that his mother said it was okay for 

him to take the medicine. Hylton asked, “Now did Momma tell you it would be all right, 

buddy?” Trevor replied, “I asked her, she said it would be fine.” Trevor drank the contents of 

the medicine cup, and put the empty cup on the kitchen counter.

A few minutes later, appellant and Goodman went to the kitchen. Appellant asked 

Hylton about the empty cup, and said it was “my methadone.” Hylton said Trevor had drunk it 

and that they needed to take him to the hospital immediately. Appellant said she could not do 

that because she was already being investigated for child abuse and neglect. She took Trevor to 

the bathroom and made him vomit.

Appellant’s neighbor and friend, Candice Branscome, went to appellant’s home about

midday, after appellant called and told her that Trevor had accidentally consumed methadone. 

Trevor appeared dazed and was having trouble staying awake. He was scratching at his arms, 

head, and back. Appellant said she had made him vomit. Branscome said appellant needed to 

take Trevor to the hospital. Appellant said she could not because it would “be [her] ass.” At that

time, a protective order was in force against appellant requiring that she use only medications 

that were prescribed for her and that she refrain from conduct tending to endanger her child’s 

life, health, or normal development.

Inquiring on the internet regarding accidental methadone ingestion by children,

Branscome found “information that they could give them some type of medication at the hospital 

to try to reverse the effects, survival rates, things that could be done.” Appellant gave Trevor 

milk and bread, as the website suggested. Branscome also advised appellant that methadone is 

absorbed into the pores of the mouth very quickly, so even if vomiting was induced the drug 

would remain in a person’s body. Branscome again suggested appellant take Trevor to the 

hospital, and offered to drive them there. Appellant again declined. Trevor continued to appear 
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drowsy and was scratching. Branscome saw Trevor vomit twice. His condition had not 

improved when she left the house in the early afternoon.

Hylton left appellant’s home to visit his wife in the hospital, but returned at about 

2:30 p.m. Trevor was sleeping. Hylton told appellant they needed to take Trevor to the 

emergency room. She refused. When Hylton argued with appellant about this, she said she 

could not go to the emergency room because they would take her children away from her. 

Trevor remained asleep until Hylton left at 9:00 p.m.

Appellant called Branscome at 6:00 p.m., asking whether Branscome had a tube for a 

nebulizer to assist Trevor’s breathing. When Branscome asked about Trevor’s condition, 

appellant said he was breathing heavily, he had gotten worse, and his chest was congested. 

Appellant said she thought it would help if she gave him a breathing treatment. Branscome 

again told appellant she should take Trevor to the hospital.

Branscome spoke to appellant by telephone around 9:30 p.m. Appellant said she was 

keeping a close watch on Trevor. Branscome said appellant should take the child to the hospital, 

and offered to transport them at any time that night.

Sergeant R.D. Rucker went to appellant’s home in response to a 911 call that was made at 

4:38 a.m. on September 30, 2009. When he arrived, Rucker saw Trevor on the floor. The child 

was motionless, and Rucker could detect no breathing or pulse. Appellant told him Trevor had 

taken her prescription dose of methadone. Rather than wait several minutes for an ambulance to 

arrive, Rucker transported Trevor to the hospital in his police cruiser. Medical personnel were 

unable to revive Trevor despite administering Narcan, a reversal agent for several medications 

and drugs. Trevor was pronounced dead at 5:38 a.m.

Detective J.W. Gregory spoke with appellant at the hospital at about 7:30 a.m. She said 

Trevor had accidentally ingested methadone around noon the day before. She said she had 
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induced vomiting, but that Trevor became lethargic, was scratching himself, and his breathing 

was labored. Initially, appellant was reluctant to tell Gregory where she had obtained the 

methadone. Finally, she admitted that she abused drugs. She said she was trying to get help for 

her abuse. Appellant said that after Trevor drank the methadone, she took some Klonopin pills 

she had gotten from a person named “Smoke” to calm her down. She said that if Smoke had had 

any Xanax pills, she would have taken them as well. She had what appeared to be fresh needle 

marks on her arms. She said she had known that her drug abuse would cause her family harm 

someday. In a telephone call, she admitted that she had failed Trevor and that a good mother 

would have taken him to the hospital.

Dr. James Kuhlman, a forensic toxicologist, testified that methadone acts as a respiration 

depressant. With a lethal dose, a person gradually stops breathing. Dr. Kuhlman testified that 

methadone has a long half-life, meaning the human body eliminates it slowly.

Appellant testified that she thought Trevor would be all right because he had vomited 

several times after he drank the methadone. However, during that day, even appellant’s 

thirteen-year-old son questioned whether Trevor would recover. Appellant said that when she 

went to bed with Trevor at about 9:00 p.m., Goodman agreed to wake up and check on Trevor 

during the night. She said her next recollection was Goodman waking her and saying that Trevor 

was not breathing. She then called 911.

The trial court submitted the issue of felony murder to the jury on two theories: (1) that 

Trevor’s death arose out of appellant’s felonious possession of methadone, or (2) that Trevor’s 

death arose out of appellant’s felonious abuse and neglect of Trevor. The verdict of guilt did not 

specify which theory the jury found proven, or whether it found both proven. No issue is 

presented on appeal as to the form of the verdict or its acceptance by the trial court. Appellant 
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asserts only that the evidence is insufficient to support the finding that Trevor’s death was 

causally connected to her commission of either felonious act.

The Virginia Supreme Court has previously held that “where . . . death results from 

ingestion of a controlled substance, classified in law as dangerous to human life, the homicide 

constitutes murder of the second degree within the intendment of Code § 18.2-33 if that 

substance had been distributed to the decedent in violation of the felony statutes of this 

Commonwealth.” Heacock, 228 Va. at 405, 323 S.E.2d at 95. See also Hickman v. 

Commonwealth, 11 Va. App. 369, 372, 398 S.E.2d 698, 700 (1990) (the felony-murder doctrine 

applies when an individual “participate[s] as a principal in the first degree, jointly with [the 

victim], in the felonious act of knowingly and intentionally possessing [the drug] and 

participate[s] as a principal in the second degree in [the victim’s] possessory act of ingestion of

[the drug],” resulting in the victim’s death).

Code § 18.2-248 makes it a felony to possess methadone, a Schedule II controlled 

substance, except as authorized by the Drug Control Act. See Code §§ 18.2-248 and 54.1-3448. 

“‘Possession is by nature a continuing offense.’” Morris v. Commonwealth, 51 Va. App. 459, 

467, 658 S.E.2d 708, 712 (2008) (quoting Jordan v. Virginia, 653 F.2d 870, 875 (4th Cir. 1980)).

Appellant admittedly purchased the methadone illegally and possessed it feloniously on 

September 29, 2009. She brought it into the home, and poured it into Trevor’s medicine cup. 

While she left the drug unattended in the kitchen and went to the bedroom to consult with 

Goodman, the methadone remained in her constructive possession. See Powers v. 

Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1989) (constructive possession is 

proven by “evidence of acts, statements, or conduct of the accused or other facts or 

circumstances which tend to show that the defendant was aware of both the presence and the 
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character of the substance and that it was subject to h[er] dominion and control”). Upon her 

return to the kitchen, appellant remarked that Trevor had drunk “my methadone.”

Appellant argues that her possession of the methadone was complete when she acquired 

it and brought it home and that Trevor’s death was not tied to this. This argument confuses the 

purchase of a drug with its possession. Although appellant’s purchase of the drug was complete, 

her felonious possession of the methadone continued at the time Trevor drank it. Her actions

preceding his ingestion of the methadone were in furtherance of her felonious acquisition and 

possession of it. She poured the drug into the cup to test the accuracy of her purchase. She left 

the cup containing the drug on the counter while she went to discuss with Goodman the 

circumstances of their acquisition and ongoing possession. The situation she thus created gave 

Trevor access to the methadone and the incentive to drink it. This led directly, if not inevitably, 

to his drinking the methadone and his resulting death. Furthermore, the fact that her possession 

was terminated when Trevor consumed the drug does not alter the conclusion that the felony 

murder was within the res gestae of the crime. Trevor’s drinking of the methadone plainly was 

“closely related . . . in time, place, and causal connection” to appellant’s possession of the drug. 

Cotton, 35 Va. App. at 515, 546 S.E.2d at 243. Thus, the evidence sufficiently proved beyond a 

reasonable doubt that Trevor’s death, caused by ingestion of the methadone, was within the res 

gestae of appellant’s felonious possession of the drug and that appellant was guilty of felony 

murder.

Appellant also contends the evidence did not prove Trevor’s death was within the res 

gestae of appellant’s commission of felonious child abuse and neglect. However, because we 

find the child’s death resulted from appellant’s felonious possession of methadone, we need not 

address this alternative argument. “[A]ny discussion on that point would conflict with two 

principles of judicial self-restraint: our reluctance to issue what amounts to an ‘advisory 
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opinion’ on an inessential subject, and our corresponding desire to decide the case ‘on the best 

and narrowest ground available.’” Cooper v. Commonwealth, 54 Va. App. 558, 566, 680 S.E.2d 

361, 365 (2009) (quoting Johnson v. Commonwealth, 45 Va. App. 113, 117 n.3, 609 S.E.2d 58, 

60 n.3 (2005) (other citations omitted).

For the foregoing reasons, we affirm the judgment of the trial court.

Affirmed.