PRESENT: Lemons, C.J., Goodwyn, Millette, Mims, McClanahan and 

Powell, JJ., and Russell, S.J. 

RICHARD C. WAGONER, JR. 

 OPINION BY 

v. Record No. 140890 JUSTICE CLEO E. POWELL 

 APRIL 16, 2015 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

 Richard C. Wagoner, Jr. (“Wagoner”) appeals the decision of 

the Court of Appeals of Virginia affirming his conviction of 

felony abuse or neglect of an incapacitated adult in violation 

of Code § 18.2–369(B). Wagoner contends that the Court of 

Appeals erred in applying the wrong decisional standard in its 

review of the trial court’s ruling on a motion to set aside the 

verdict, expanding the definition of proximate cause, and 

finding that the evidence was sufficient to support his 

conviction. 

I. BACKGROUND 

 Joseph Tuggle (“Tuggle”), a 57 year old man with 

Parkinson’s Disease and dementia, lived in a residential group 

home for men with intellectual disabilities. The group home was 

owned by the Claye Corporation, which in turn was owned by 

Wagoner. Wagoner also served as president of the Claye 

Corporation. 

 At approximately 7:00 p.m. on the evening of February 8, 

2011, Jerome Baker (“Baker”), Tuggle’s caregiver, discovered 
2

that Tuggle had soiled himself. Baker assisted Tuggle to the 

restroom and sat him on the toilet. Baker then left to retrieve 

cleaning supplies and began helping another staff member clean 

up. After cleaning for five or six minutes, Baker went to check 

on Tuggle. Baker found Tuggle crying for help while lying on 

his back in the bathtub with hot water running from the shower. 

Baker turned off the water and got Tuggle out of the bathtub. 

Baker and another staff member dried Tuggle off and noticed that 

his skin was very red. Baker and the other staff member then 

took Tuggle into the living room, where they again noticed his 

skin was very red and had begun to peel. 

 At this point, the staff supervisor, Kenny A. Brown 

(“Brown”), was contacted. Brown arrived at the group home 

around 8:30 p.m. After inspecting Tuggle, he determined that 

Tuggle did not need medical attention. Brown also contacted 

Tameki Tarpley (“Tarpley”), his co-supervisor, and informed her 

about the situation. Without seeing Tuggle, Tarpley called the 

emergency room and inquired about treating a burn that “appeared 

to be like a sunburn.” Tarpley was told to apply cold 

compresses and that she should go to a pharmacy and ask the 

pharmacist for further treatment advice. Brown stayed with 

Tuggle until 11:00 p.m. and assisted in the treatment of 

Tuggle’s burns by placing cold compresses over the affected 

areas of skin. 
3

 Brown returned to the group home at 6:30 a.m. on the 

following morning to examine Tuggle’s injuries. Brown found 

that the burns appeared “redder.” Brown then contacted Tarpley 

and informed her of the nature of Tuggle’s developing injuries 

and informed her that Tuggle needed to go the emergency room to 

be checked out. Tarpley contacted another staff member to bring 

a company van to the group home to transport Tuggle to the 

hospital. 

 Cynthia Epley (“Epley”), a director of Claye Corporation, 

called Tarpley for her regular “check-in” and was informed of 

Tuggle’s accident. Tarpley told Epley that a company van was en 

route to take Tuggle to the hospital. Epley then called Wagoner 

to inform him about the incident and that Tuggle was being taken 

to the hospital. 

 At around 7:15 a.m., Tuggle was placed in the company van 

to be taken to the hospital. While Tuggle was en route to the 

hospital, Wagoner informed Epley that he wanted to see Tuggle 

before he was taken to the hospital. Epley relayed the request 

to Tarpley who, in turn, relayed the request to the staff member 

driving the company van. About three minutes later, Tuggle was 

returned to the group home. 

 After the van returned, Tarpley went to a pharmacy. 

Tarpley asked the pharmacist for instructions in treating a 

sunburn. According to Tarpley, the pharmacist instructed her to 
4

use drainage strips and cold compresses and to apply Neosporin, 

an antibiotic cream. 

 Epley arrived at the group home at around the same time 

that Tarpley returned. Shortly thereafter, Wagoner arrived. At 

the time, Tuggle was sitting in a wheel chair in the living 

room. After the staff explained what had happened, Wagoner 

asked Tuggle how he was doing. Baker then removed a sheet that 

was covering Tuggle and lifted Tuggle’s t-shirt so Wagoner could 

see the burns. According to Baker, Tuggle’s skin appeared to be 

really red and had begun to peel away. Wagoner inspected 

Tuggle’s injuries without comment. 

 Wagoner told Epley that Tuggle should be treated “one on 

one” at the group home. Wagoner then left the facility. Epley 

informed Tarpley of Wagoner’s decision and advised the staff to 

begin treatment, which consisted of cold compresses, Neosporin, 

Tylenol, and Gatorade. 

 Over the next nine days, the staff noticed the color of 

Tuggle’s injuries changed from dark red to yellow. The staff 

also noted oozing blood and pus emanating from the wounds. On 

the morning of February 18, 2011, Tuggle was found dead in his 

bed. 

 Wagoner was subsequently charged with abuse or neglect of 

an incapacitated adult resulting in death in violation of Code 

§ 18.2-369(B). 
5

 At trial, Dr. Gayle Suzuki (“Dr. Suzuki”), a pathologist 

and the medical examiner who performed the autopsy on Tuggle’s 

body testified that Tuggle had suffered second and third degree 

burns over 30% of his body. She explained that Tuggle’s death 

was caused by “sepsis and pneumonia from the thermal injuries 

from immersion in scalding water.” She noted that the bacteria 

that caused the sepsis was consistent with bacteria normally 

found on the skin. 

 Dr. Kevin Whaley (“Dr. Whaley”), an Assistant Chief Medical 

Examiner for the Commonwealth, testified as an expert on the 

classification, diagnosis, and treatment of burns. Dr. Whaley 

testified that second and third degree burns over 30% of the 

body would require automatic admission to a burn unit. He went 

on to explain that someone in Tuggle's condition would initially 

require fluid resuscitation followed by treatment to avoid 

infection. The treatment to avoid infection would involve 

debriding the skin,1

 application of silver sulfadiazine “to 

control bacterial growth,” and changing the bandages regularly. 

Dr. Whaley explained that debriding the skin was necessary 

because bacteria live underneath the dead skin and then get into 

the blood stream and causes sepsis. Dr. Whaley further noted 

 1

 Debriding the skin involves surgical removal of the burned 

and dead skin. 
6

that Neosporin is an ineffective treatment for this condition 

and can actually make the injury worse. 

 After viewing photographs of Tuggle’s burns, Dr. Whaley 

opined that Tuggle actually had second and third degree burns 

over approximately 18% of his body. According to Dr. Whaley, 

given Tuggle’s age and the amount of burns he suffered, Tuggle’s 

injuries were 100% fatal if he did not receive the proper 

treatment. However, Dr. Whaley further testified that, if he 

received the proper treatment, Tuggle only had a 75% chance of 

death, meaning a 25% chance of survival. 

 Dr. Thomas Berry (“Dr. Berry”) testified on behalf of 

Wagoner. Like Dr. Whaley, Dr. Berry was received as an expert 

on the classification, diagnosis, and treatment of burns. In 

Dr. Berry’s opinion, Tuggle suffered burns over 20% of his body. 

Dr. Berry testified he would have recommended in home/outpatient 

treatment of Tuggle’s burns. Dr. Berry further opined that 

Tuggle’s pneumonia was likely rapid onset and “not necessarily 

connected with his burns.” 

 The jury subsequently found Wagoner guilty of felony abuse 

or neglect of an incapacitated adult. Wagoner made a motion to 

set aside the verdict, arguing, among other things, that the 

Commonwealth failed to prove his actions were a proximate cause 

of Tuggle’s death because the Commonwealth did not present any 

evidence that Tuggle would probably have survived his injuries 
7

absent Wagoner’s abuse or neglect. The trial court denied his 

motion, finding that the Commonwealth had presented sufficient 

evidence of proximate cause, because “a twenty-five percent 

chance of survival represents a substantial possibility of 

survival, and the jury was entitled to find that [Wagoner’s] 

abuse or neglect of Tuggle was a proximate cause of his death.” 

Wagoner was sentenced to five years’ incarceration with five 

years suspended for a period of 10 years. 

 Wagoner appealed his conviction to the Court of Appeals. 

In the Court of Appeals, Wagoner argued that the trial court 

applied the wrong decisional standard in ruling on his motion to 

set aside the verdict. According to Wagoner, the “substantial 

possibility of survival” standard used by the trial court only 

applies to motions to strike, not to motions to set aside the 

verdict. He further argued that the proper standard required 

the Commonwealth to prove that Tuggle probably would have 

survived his injuries but for Wagoner’s actions. 

 In a published decision, a divided panel of the Court of 

Appeals affirmed Wagoner’s conviction. Wagoner v. Commonwealth, 

63 Va. App. 229, 756 S.E.2d 165 (2014). The majority held that 

the “substantial possibility of survival” decisional standard 

used by the trial court applies to both motions to strike and 

motions to set aside the verdict. Id. at 247, 756 S.E.2d at 

174. The majority further determined that the “substantial 
8

possibility of survival” standard does not equate “to a 

‘probability’ of survival and common sense suggests that a 

‘substantial possibility’ is somewhat less of a quantification 

than a ‘probability.’” Id. at 253, 756 S.E.2d at 177. 

 The dissent, however, opined that the “substantial 

possibility of survival” standard only applies to motions to 

strike and, therefore, the trial court erred. The dissent went 

on to agree with Wagoner, stating that to survive a motion to 

set aside the verdict, the Commonwealth’s evidence of proximate 

cause must demonstrate that Tuggle probably would have survived 

his injuries but for Wagoner’s actions. Id. at 265, 756 S.E.2d 

at 183. 

 This appeal follows. 

II. ANALYSIS 

 On appeal, Wagoner argues that the Court of Appeals erred 

by approving the trial court’s use of the wrong decisional 

standard to address his motion to set aside the verdict, 

improperly expanding the definition of proximate cause, and 

finding that the evidence was sufficient to support his 

conviction. We agree with Wagoner that the trial court and the 

Court of Appeals erred in ruling on the motion to set aside the 

verdict. 

 In his motion to set aside the verdict, Wagoner asserted 

that the loss of a substantial possibility of survival was not 
9

the proper standard. He further argued that, under the proper 

standard of causation, “the Commonwealth failed to present any 

evidence that Mr. Tuggle would probably have lived but for the 

Defendant’s alleged abuse or neglect.” In denying his motion, 

the trial court relied on our rulings in Blondel v. Hays, 241 

Va. 467, 472, 403 S.E.2d 340, 343 (1991), Brown v. Koulizakis, 

229 Va. 524, 532, 331 S.E.2d 440, 446 (1985), and Whitfield v. 

Whittaker Memorial Hospital, 210 Va. 176, 169 S.E.2d 563 (1969), 

to reach the conclusion that “a twenty-five percent chance of 

survival represents a substantial possibility of survival, and 

the jury was entitled to find that the Defendant’s abuse or 

neglect of Tuggle was a proximate cause of his death.” The 

Court of Appeals subsequently affirmed the decision of the trial 

court on these grounds. In so doing, the trial court and the 

Court of Appeals equated the loss of a substantial possibility 

of survival with proximate cause. 

 As both the Court of Appeals and the trial court correctly 

observed, the proper standard for deciding a motion to set aside 

the verdict is found in Code § 8.01-680. 

When a case, civil or criminal, is tried by 

a jury and a party objects to the judgment 

or action of the court in granting or 

refusing to grant a new trial on a motion to 

set aside the verdict of a jury on the 

ground that it is contrary to the 

evidence . . . the judgment of the trial 

court shall not be set aside unless it 

appears from the evidence that such judgment 
10

is plainly wrong or without evidence to 

support it. 

Id. 

 Thus, in deciding a motion to set aside the verdict, a 

court only looks to whether the jury’s verdict is “plainly wrong 

or without evidence to support it.” Wagoner’s motion to set 

aside the verdict only challenged the sufficiency of the 

evidence regarding the proximate cause of Tuggle’s death. 

Therefore, the sole question before the trial court, the Court 

of Appeals and this Court is whether there was sufficient 

evidence of proximate causation to support the jury’s verdict. 

 In determining whether the evidence of proximate causation 

was sufficient, we look first to the statute at issue in the 

present case. Code § 18.2-369(B) states, in relevant part, 

Any responsible person who abuses or 

neglects an incapacitated adult in violation 

of this section and the abuse or neglect 

results in the death of the incapacitated 

adult is guilty of a Class 3 felony. 

 As the Court of Appeals recognized, neither the Code nor 

our jurisprudence addresses the meaning of the phrase “results 

in” as used in Code § 18.2-369(B). In analyzing this issue, the 

Court of Appeals looked to the United States Supreme Court’s 

recent analysis of similar language in Burrage v. United States, 

134 S.Ct. 881 (2014). We agree with the Court of Appeals’ 

analysis on this issue, and adopt its holding that the ordinary 
11

meaning of the phrase “results in,” as used in Code § 18.2-

369(B), “imports ‘but for’ causation.” Wagoner, 63 Va. App. at 

250, 756 S.E.2d at 176. In other words, the Commonwealth must 

prove that the abuse or neglect was a proximate cause of the 

death. 

 “The proximate cause of an event is that act or omission

which, in natural and continuous sequence, unbroken by an 

efficient intervening cause, produces that event, and without 

which that event would not have occurred.” See Wells v. 

Whitaker, 207 Va. 616, 622, 151 S.E.2d 422, 428 (1966) (emphasis 

added). “Generally a person is not liable to another unless but 

for his negligent act the harm would not have occurred.” Id.2

 The logic employed by the trial court and the Court of 

Appeals is based on Blondel, where we stated “if a plaintiff’s 

evidence has shown that the defendant’s negligence has destroyed 

any substantial possibility of the patient's survival, then 

there is sufficient evidence of proximate cause to go to the 

jury.” 241 Va. at 473-74, 403 S.E.2d at 344. Although Blondel

 2

 We further note that the jury in this case was instructed 

that “[a] proximate cause of a death is a cause that, in natural 

and continuous sequence, results in death. It is a cause 

without which the death would not have occurred.” Neither 

party objected to this jury instruction. Accordingly, this 

definition of proximate cause is the law of the case, binding on 

the parties as well as this Court. See Owens-Illinois, Inc. v. 

Thomas Baker Real Estate, Ltd., 237 Va. 649, 652, 379 S.E.2d 

344, 346 (1989). 
12

was a medical malpractice case, the trial court and the Court of 

Appeals determined that its logic applied to the present case 

because “[e]stablished principles of proximate causation are 

applicable in both civil and criminal cases.” Brown v. 

Commonwealth, 278 Va. 523, 529, 685 S.E.2d 43, 46 (2009). 

 It is important to recognize, however, that although the 

loss of a substantial possibility of survival may be evidence of 

proximate cause in a medical malpractice case,3 it is not itself 

a principle of proximate cause. A proximate cause is an act or 

omission. See Wells, 207 Va. at 622, 151 S.E.2d at 428. The 

loss of a substantial possibility of survival, on the other 

hand, is neither an act nor an omission; it is the result of an 

act or omission. In other words, the loss of a substantial 

possibility of survival is evidence that could support a finding 

of causation for the “event.” 

 Although this Court has used proximate cause in conjunction 

with the loss of a substantial possibility of survival in 

medical malpractice cases, see, e.g., Poliquin v. Daniels, 254 

Va. 51, 57, 486 S.E.2d 530, 534 (1997); Blondel, 241 Va. at 472, 

403 S.E.2d at 343; Koulizakis, 229 Va. at 532, 331 S.E.2d at 

 3

 Notably, we have never used the concept of the loss of a 

substantial possibility of survival as evidence of proximate 

cause outside the context of medical malpractice cases. Indeed, 

nothing in this opinion should be read to expand or restrict the 

use of the loss of a substantial possibility of survival as 

evidence of proximate cause in such cases. 
13

446, the fact remains that they are two distinctly separate 

concepts.4 Indeed, we have clearly recognized this distinction, 

as it is evident that we treat the concepts entirely 

differently. For example, we have recognized that “the issue of 

proximate cause is a question of fact for resolution by a jury,” 

Karim v. Grover, 235 Va. 550, 552-53, 369 S.E.2d 185, 186 

(1988), whereas the loss of a substantial possibility of 

survival is a “decisional standard for the guidance of trial 

courts in deciding a motion to strike the evidence.” Blondel, 

241 Va. at 473-74, 403 S.E.2d at 344. Additionally, while we 

allow juries to be instructed on proximate cause, we expressly 

prohibit jury instructions addressing the loss of a substantial 

possibility of survival. Id. at 475, 403 S.E.2d at 344. 

 In the present case, the trial court correctly instructed 

the jury as to the definition of proximate cause; in doing so, 

it properly made no mention of the loss of a substantial 

possibility of survival. Thus, it would be improper for the 

trial court to utilize the loss of a substantial possibility of 

 4

 We recognize that, in Blondel, we stated that “a defendant 

physician’s destruction of any substantial possibility of the 

patient’s survival is a proximate cause of the patient’s death.” 

241 Va. at 472, 403 S.E.2d at 343 (internal quotation marks and 

emphasis omitted). Although this language would appear to 

contradict our holding that proximate cause and the loss of a 

substantial possibility of survival are distinctly separate 

concepts, when parsed correctly, it is apparent we were 

referring to the defendant physician’s actions or omissions that 

resulted in the destruction of the possibility of survival as 

the proximate cause, not the loss itself. 
14

survival as its sole basis for deciding whether, as a matter of 

law, the evidence was sufficient to support the verdict. Such 

an approach would necessarily result in the trial court 

employing a different standard from that properly employed by 

the jury. See Jordan v. Commonwealth, 286 Va. 153, 156-57, 747 

S.E.2d 799, 800 (2013) (“[T]he reviewing court is not permitted 

to substitute its own judgment for that of the trier of fact.”). 

Accordingly, the trial court and the Court of Appeals erred in 

considering the loss of a substantial possibility of survival as 

the basis for deciding the motion set aside the verdict. 

 Our analysis does not end here, however, because “[w]e do 

not hesitate, in a proper case, where the correct conclusion has 

been reached but the wrong reason given, to sustain the result 

and assign the right ground.” Eason v. Eason, 204 Va. 347, 352, 

131 S.E.2d 280, 283 (1963) (collecting cases). Review of a 

trial court’s ruling on a motion to set aside the verdict is 

particularly ripe for application of the “right result for the 

wrong reason” doctrine, as our focus in reviewing a motion to 

set aside the verdict is necessarily limited to the facts in the 

record and no additional factual presentation is necessary. See

Perry v. Commonwealth, 280 Va. 572, 580, 280 Va. 572, 701 S.E.2d 

431, 436 (2010) (“Consideration of the facts in the record and 

whether additional factual presentation is necessary to resolve 
15

the newly-advanced reason is the proper focus of the application 

of the doctrine.”). 

 As previously noted, in deciding a motion to set aside the 

verdict, a court only looks to whether the jury’s verdict is 

“plainly wrong or without evidence to support it.” Code § 8.01-

680. In the present case, Wagoner’s motion to set aside the 

verdict challenged the sufficiency of the evidence regarding the 

proximate cause of Tuggle’s death. Thus, the sole question 

before us is whether there was sufficient evidence of proximate 

cause to support the jury’s verdict. We find that there was. 

 In the present case, Dr. Whaley testified at length 

regarding the proper treatment of Tuggle’s burns. According to 

Dr. Whaley, the proper treatment involved Tuggle’s admission to 

a burn unit, fluid resuscitation and debriding the skin. 

Notably, Tuggle received none of those forms of treatment. 

Instead, Wagoner ordered that Tuggle be treated at the group 

home. Despite the deterioration of Tuggle’s condition over nine 

days, Wagoner’s direction that Tuggle not be taken to the 

hospital never changed. 

 Dr. Whaley went on to explain that debridement is necessary 

because “bacteria love[ dead skin] and live underneath it, and 

then get off into [the] blood stream and cause sepsis.” Dr. 

Suzuki testified that Tuggle’s death was caused by “sepsis and 

pneumonia from the thermal injuries from immersion in scalding 
16

water,” because the type of bacteria that caused the sepsis and 

pneumonia was “consistent with skin kind of bacteria.” Thus, 

there was evidence from which a jury could infer that, had the 

dead skin been debrided, Tuggle would not have died of sepsis. 

Similarly, as there is evidence that the same bacteria that 

caused the sepsis also caused the pneumonia, the jury could have 

concluded that proper treatment would have prevented pneumonia 

as well. 

 It is worth noting that the Commonwealth also presented 

evidence that the actions taken by Wagoner’s staff made Tuggle’s 

injuries worse. Dr. Whaley specifically testified that applying 

Neosporin to the burns actually made them worse. Taken 

together, there was sufficient evidence from which the jury 

could reasonably find that Wagoner’s actions were a proximate 

cause of Tuggle’s death. 

III. CONCLUSION 

 For the foregoing reasons, we will affirm the judgment of 

the Court of Appeals upholding the conviction rendered by the 

trial court. 

Affirmed. 

JUSTICE McCLANAHAN, concurring. 

 I concur in the Court’s judgment because, as the majority 

ultimately concludes, there was sufficient evidence of proximate 
17

causation to support the jury’s verdict. I disagree with the 

majority’s holding that the trial court and the Court of Appeals 

erred in ruling on the motion to set aside the verdict.1

 In the Court of Appeals, Wagoner argued that the trial 

court erred in applying a “decisional standard” that applies 

only to motions to strike in ruling on the motion to set aside 

the verdict. Rule 3A:15(a) states that “[a]fter the 

Commonwealth has rested its case or at the conclusion of all the 

evidence, the court on motion of the accused may strike the 

Commonwealth’s evidence if the evidence is insufficient as a 

matter of law to sustain a conviction.” Rule 3A:15(b) states 

that “[i]f the jury returns a verdict of guilty, the court may, 

on motion of the accused . . . set aside the verdict . . . if 

the evidence is insufficient as a matter of law to sustain a 

conviction.” Because the standards are the same, the Court of 

Appeals did not err in rejecting Wagoner’s argument that there 

is one “decisional standard” that applies to motions to strike 

and a different “decisional standard” that applies to motions to 

set aside a jury verdict. 

 

1

 The majority holds that the trial court and the Court of 

Appeals reached the right result for the wrong reason. Yet, the 

trial court denied the motion to set aside the verdict on the 

ground that there was sufficient evidence of proximate causation 

to support the jury’s verdict, and the Court of Appeals affirmed 

the trial court's judgment denying the motion to set aside on 

the same ground. 
18

I also do not believe, as Wagoner contends, that the Court 

of Appeals erroneously expanded the law of proximate causation 

in ruling on the sufficiency of the evidence. Properly 

construing Code § 18.2-369(B) to require proof of “but for” 

causation, the Court of Appeals reviewed the evidence and 

concluded it was sufficient for the jury to find that Tuggle’s 

death would not have occurred but for Wagoner’s failure to seek 

professional medical treatment for him. Furthermore, the Court 

of Appeals rightly rejected Wagoner’s argument that the 

Commonwealth was required to prove that it was more likely than 

not Tuggle would have lived with treatment since it would defeat 

the purpose of Code § 18.2-369(B) to relieve a defendant of 

criminal liability based on evidence that a victim had a less 

than fifty-one percent chance of survival.2

 

2

 I disagree with the majority’s conclusion that the Court 

of Appeals adopted the concept of a loss of substantial 

possibility of survival as the standard for reviewing the 

sufficiency of the evidence of proximate causation. The Court 

of Appeals discussed the concept of a loss of substantial 

possibility of survival in response to Wagoner’s argument that a 

probability of survival was required after reaching its 

conclusion that the evidence was sufficient to support a finding 

of proximate causation. Citing this Court’s decision in Blondel 

v. Hays, 241 Va. 467, 472, 403 S.E.2d 340, 343 (1991), the Court 

of Appeals reasoned that Wagoner’s position that the 

Commonwealth must prove a probability of survival was not 

founded in Virginia law.