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. 
- 2 - 

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. 
- 4 - 

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.

 

 1We 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.