COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Baker, Benton, Coleman, 

 Willis, Elder, Bray, Annunziata, Overton and Bumgardner 

Argued at Richmond, Virginia 

THOMAS MATTHEW PAVLICK, JR. 

 OPINION BY 

v. Record No. 2478-95-1 JUDGE ROSEMARIE ANNUNZIATA 

 APRIL 21, 1998 

COMMONWEALTH OF VIRGINIA 

UPON A REHEARING EN BANC 

FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY 

John M. Folkes, Judge 

 Oldric J. LaBell, Jr. (Martin R. Shelton, on 

brief), for appellant. 

 Daniel J. Munroe, Assistant Attorney General 

(Richard Cullen, Attorney General; Marla 

Graff Decker, Assistant Attorney General, on 

briefs), for appellee. 

 Thomas Matthew Pavlick, Jr. (appellant) appeals from a 

judgment of the Circuit Court of Gloucester County (trial court) 

that approved his conviction by a jury for second degree murder 

of his infant son (the child). Appellant contends the trial 

court erred (1) in admitting evidence of prior injuries sustained 

by the child that were not proven to have been caused by 

appellant, (2) in admitting evidence of the child's prior 

injuries without a limiting instruction as to the purpose for 

which that evidence could be considered, (3) in admitting 

portions of the autopsy report into evidence, which allegedly 

expressed opinion, (4) in excluding evidence of a statement 

attributed to Shari Pavlick (Shari), the child's mother and a 
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witness for the Commonwealth, which he asserts would have shown 

her bias and state of mind or proven that she had made a prior 

inconsistent statement, and (5) in excluding videotapes showing 

appellant interacting with the child and appellant's other son. 

 A panel of this Court reversed, holding that the record 

contained no evidence from which it would have been reasonably 

inferred that appellant caused the child's prior rib injuries. 

Pavlick v. Commonwealth, 25 Va. App. 538, 543-44, 489 S.E.2d 720, 

723 (1997). We hold that the record contains evidence from which 

the jury could reasonably have inferred that appellant caused the 

child's rib injuries, and we affirm appellant's conviction. Upon 

familiar principles, we review the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom. Martin v. Commonwealth, 4 

Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). 

I. Facts 

 The child was born on June 24, 1994 and died on August 18, 

1994, as a result of a head injury due to acceleration/ 

deceleration trauma. Shari had returned to work on August 9, 

1994, and appellant took care of the child and his brother while 

Shari was at work. On August 13, 1994, the child was having 

respiratory difficulties when Shari returned home from work. She 

attributed his symptoms to a cold and called a pediatrician. 

During the first week after Shari returned to work, she also 

noticed bruises on both sides of the child's jaw. Appellant 
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admitted that he had made the marks with his thumbs. 

 On August 18, 1994, Shari went to work, leaving the two 

boys in the sole care of appellant. Appellant called Shari at 

2:00 p.m. and told her to come home right away because he had 

dropped the child. Appellant called 911 and explained that he 

had "half-way dropped the baby." Rescue squad personnel arrived 

to find the child in full cardiac arrest. The child was not 

breathing and had no pulse. The rescue squad personnel 

administered CPR as they took the child to the hospital. 

 At the hospital, Dr. Barbara Allyson-Bryan, a pediatrician, 

continued CPR for about twenty minutes before pronouncing the 

child dead at 2:48 p.m. Dr. Allyson-Bryan looked into the 

child's eyes with an ophthalmoscope and observed retinal 

hemorrhages. Dr. Allyson-Bryan testified that retinal 

hemorrhages occur only in cases where there has been severe 

shaking trauma, and they indicate that an infant has been shaken 

to death. The child had numerous retinal hemorrhages, which led 

Dr. Allyson-Bryan to suspect child abuse. She called the police. 

 Captain Michael Nicely of the Gloucester Sheriff's 

Department arrived at the hospital and confronted appellant with 

the doctor's finding. Nicely asked appellant if he had shaken 

the child. Appellant denied having shaken the child and told 

Nicely that he had tripped on a toy and fallen with the child in 

his arms. Later, at home, appellant told his wife he stepped on 

toys and tripped and did not know whether he had dropped the 
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child. Appellant was arrested on August 19, 1994. The following 

day, he called his wife from the jail and admitted that he had 

shaken the child because he was "fussing." 

 Both Dr. Allyson-Bryan and Dr. Deborah Kay, the Assistant 

Chief Medical Examiner who performed an autopsy, testified that 

the child's injuries resulting in his death were caused by 

shaking and could not have been caused by any accidental means. 

Dr. Kay also testified about a separate recent head injury which 

she estimated could have occurred four to eight days prior to 

death. Symptoms of this earlier brain injury would have included 

respiratory problems of the kind Shari noted on August 13, 1994. 

 From the x-ray performed at the hospital, Dr. Allyson-Bryan 

observed the presence of rib fractures, which she opined were not 

caused by CPR or birth. The autopsy confirmed the x-ray 

findings. Dr. Kay consulted with a radiologist and determined 

that the rib fractures were between two and four weeks old. 

 Testifying for the Commonwealth, Shari stated that no one 

other than she and appellant had ever been alone with the child, 

and she denied ever having shaken the child. Testifying in his 

defense, appellant stated that both of the child's grandmothers 

had also been alone with the child. Appellant, however, did not 

testify when the child's grandmothers had allegedly been alone 

with the child. Other evidence in the case proved that only the 

appellant's mother, Mildred Cramsey, had visited the child during 

the time frame in which the rib fractures occurred, and she 
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testified that although she had been alone with the child she had 

never shaken the child. 

II. Prior Injuries 

 The trial court permitted the Commonwealth to present 

evidence of the child's prior injuries. Appellant asserts that 

the evidence of prior injuries was irrelevant and prejudicial. 

We disagree. 

 Evidence that shows or tends to show crimes or other bad 

acts committed by the accused is incompetent and inadmissible for 

the purpose of proving that the accused committed or likely 

committed the particular crime charged. Guill v. Commonwealth, 

__ Va. __, __, 495 S.E.2d 489, 491 (1998) (citing cases); Morse 

v. Commonwealth, 17 Va. App. 627, 631, 440 S.E.2d 145, 148 (1994) 

(citing Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 

802, 805 (1970)). "'[Similar crimes evidence] merely show[s] 

that [an accused] has the propensity to commit the crime 

[charged] and this inference has been held error because it 

reverses his presumption of innocence.'" Id. (quoting Spence v. 

Commonwealth, 12 Va. App. 1040, 1045, 407 S.E.2d 916, 918 

(1991)). There are, however, several exceptions to this rule of 

exclusion. 

 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. 

Such evidence is permissive in cases where 

the motive, intent, or knowledge of the 

accused is involved, or where the evidence is 

connected with or leads up to the offense for 
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which the accused is on trial. 

Kirkpatrick, 211 Va. at 272, 176 S.E.2d at 805. 

 The admission of evidence is within the broad discretion of 

the trial court. Blain v. Commonwealth, 7 Va. App. 10, 16, 371 

S.E.2d 838, 842 (1988) (citing Coe v. Commonwealth, 231 Va. 83, 

87, 340 S.E.2d 820, 823 (1986)). In addressing the admissibility 

of other crimes evidence the court must balance the probative 

value of the evidence of the other offenses and determine whether 

it exceeds the prejudice to the accused. Guill, __ Va. at __, 

495 S.E.2d at 491-92 (citing Lewis v. Commonwealth, 225 Va. 497, 

502, 303 S.E.2d 890, 893 (1983)); Parker v. Commonwealth, 14 Va. 

App. 592, 595, 421 S.E.2d 450, 452 (1992) (citing Sutphin v. 

Commonwealth, 1 Va. App. 241, 245, 337 S.E.2d 897, 899 (1985)). 

The court's weighing of these factors is reviewable only for 

clear abuse of discretion. Wilkins v. Commonwealth, 18 Va. App. 

293, 298, 443 S.E.2d 440, 443 (1994) (en banc) (citing Ferrell v. 

Commonwealth, 11 Va. App. 380, 390, 399 S.E.2d 614, 620 (1990)). 

 We address, first, the admission of the evidence of the 

child's prior head injury. The evidence, viewed in the light 

most favorable to the Commonwealth, the party prevailing on this 

issue below, shows that the head injury suffered by the child 

occurred approximately one week prior to his death. The 

physician who performed the autopsy on the child concluded that 

the head subdural hematoma did not occur accidentally. The child 

was in appellant's sole care at the time the injury was 
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sustained, and he admitted that he had applied force to the 

child's head. His wife, Shari, observed marks on the child's 

face. We cannot say the admission of the week-old injury 

evidence was an abuse of the trial court's exercise of 

discretion. 

 Next, we consider the trial court's admission of evidence of 

the child's rib fractures. We again view the evidence in the 

light most favorable to the Commonwealth. The record shows that 

appellant as well as his wife and mother had the opportunity to 

cause the rib fractures. The evidence of the rib fractures, when 

considered together with the evidence that appellant caused the 

fractures, was probative on the issue of malice. Evidence that 

appellant maliciously caused the rib fractures tended to prove 

that the child's shaking death at the hand of appellant was not 

an isolated incident, but, rather, was one of a series of 

forceful shakings, supporting a finding that the shaking death 

was committed with malice. Cf. Smarr v. Commonwealth, 219 Va. 

168, 170, 246 S.E.2d 892, 893 (1978) (holding that where the 

Commonwealth presented no evidence linking appellant to injuries, 

such evidence had no probative value to the Commonwealth's theory 

of the case). In Smarr, the Commonwealth "merely showed that the 

[prior] injuries had occurred, and nothing more." 219 Va. at 

170, 246 S.E.2d at 893 (emphasis added). 

 Appellant contends, however, that the evidence was 

erroneously admitted because the Commonwealth failed to show by 
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clear and convincing evidence that he caused the fractures or was 

the only person with access to the child when the fractures were 

sustained. There is no question that the relevance of the rib 

fractures to the Commonwealth's case was dependent on proof that 

appellant inflicted the rib fractures. 

 In the federal courts, 

 similar act evidence is relevant only if the 

jury can reasonably conclude that . . . the 

defendant was the actor. . . . [T]he trial 

court neither weighs credibility nor makes a 

finding that the Government has proved [that] 

conditional fact by a preponderance of the 

evidence. The court simply examines all the 

evidence in the case and decides whether the 

jury could reasonably find the conditional 

fact . . . by a preponderance of the 

evidence. 

Huddleston v. United States, 485 U.S. 681, 689-90 (1988).1 

 No Virginia court has directly addressed the issue of the 

standard of proof that must be applied by a judge in determining 

whether to admit evidence of prior bad acts.2 The Supreme 

 

 1Several states have adopted the Huddleston rule. See, e.g., 

State v. Stager, 406 S.E.2d 876, 890 (N.C. 1991); State v. 

Loftus, 566 N.W.2d 825, 831 n.8 (S.D. 1997); State v. Wheel, 587 

A.2d 933, 943 (Vt. 1990); State v. Schindler, 429 N.W.2d 110, 113 

(Wis. App. 1988). But see, e.g., State v. McGinnis, 455 S.E.2d 

516, 527 (W. Va. 1994) (rejecting Huddleston's holding that a 

court need not find that the defendant committed the prior bad 

acts by a preponderance of the evidence). 

 2Other jurisdictions are split on the issue of the standard 

of proof applied by a judge in determining whether to admit 

evidence of prior bad acts. See, e.g., Harris v. State, 597 A.2d 

956, 960 (Md. 1991) ("When evidence of other bad acts is relevant 

for reasons other than general criminal propensity, the trial 

judge must determine 'whether the accused's involvement in the 

other crimes is established by clear and convincing evidence.'" 

(quoting State v. Faulkner, 552 A.2d 896, 898 (Md. 1989)); 

Stager, 406 S.E.2d at 890 ("[E]vidence is admissible under Rule 
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Court's explanation in Huddleston, id. at 690, however, that, in 

determining whether to admit evidence of prior bad acts, the 

court cannot resolve questions of credibility, is consistent with 

Virginia law. 

 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.3

 In Virginia, the members of "[t]he 

jury are the sole judges of the credibility and weight of 

testimony." Limbaugh v. Commonwealth, 149 Va. 383, 393, 140 S.E. 

133, 134 (1927). It is established beyond question that 

"[d]etermining the credibility of witnesses who give conflicting 

accounts is within the exclusive province of the jury." Lea v. 

Commonwealth, 16 Va. App. 300, 304, 429 S.E.2d 477, 479 (1993) 

(citing, inter alia, Schneider v. Commonwealth, 230 Va. 379, 383, 

337 S.E.2d 735, 736-37 (1985)). In the context of evaluating the 

 

404(b) of the North Carolina Rules of Evidence if it is 

substantial evidence tending to support a reasonable finding by 

the jury that the defendant committed a similar act or 

crime . . . ."); McGinnis, 455 S.E.2d at 527 ("We hold that the 

admissibility of Rule 404(b) evidence must be determined as a 

preliminary matter under Rule 104(a) . . . . [We] require the 

trial court to be satisfied by a preponderance of the evidence of 

the conditionally relevant facts before permitting the jury to 

hear them."). 

 3In Morse, 17 Va. App. at 632, 440 S.E.2d at 148, this Court 

noted in dicta that the Commonwealth must introduce evidence of 

prior bad acts which would establish the relationship between the 

defendant and complaining witness "[i]f believed by the jury." 

(Emphasis added). 
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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 unreasonable, as a matter of 

law, or inherently incredible," or such that reasonable people 

"could not differ as to its effect." Riley v. Harris, 211 Va. 

359, 362, 177 S.E.2d 630, 633 (1970).4

 In the present case, the relevance of the evidence of the 

prior rib injuries was conditioned upon a determination of 

witness credibility. This determination was "'exclusively within 

the province of the jury.'" Myers v. Commonwealth, 11 Va. App. 

634, 635, 400 S.E.2d 803, 804 (1991) (quoting Barker v. 

Commonwealth, 230 Va. 370, 373, 337 S.E.2d 729, 732 (1985)). 

When evidence presents a jury question, it is improper for the 

trial court to assume the jury's function as the trier of fact. 

See Whittington v. Commonwealth, 5 Va. App. 212, 216-17, 361 

S.E.2d 449, 452 (1987). It would have been improper for the 

trial court to have excluded relevant testimony on the ground 

that the trial court did not believe a particular witness, unless 

the witness' testimony was inherently incredible. See Montgomery 

v. State, 810 S.W.2d 372, 382 (Tex. Cr. App. 1990). 

 We find that the evidence that appellant was the cause of 

 

 4Indeed, in the jurisdictions which require the trial court 

to make an antecedent determination that the prior bad act 

occurred, we have found no authority, and appellant cites none, 

which supports appellant's position that the court should resolve 

conflicts in the credibility of witnesses in assessing the 

admissibility of evidence. 
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the child's prior injuries was not inherently incredible. The 

record established that the child had received rib injuries prior 

to the fatal shaking. While the child's mother and the child's 

paternal grandmother were the only individuals, other than 

appellant, who had been alone with the child during the time 

frame in which the rib fractures were inflicted, both testified 

that they had never shaken the child. Appellant maintained that 

he had not caused the prior injuries. The jury was entitled to 

consider and resolve this conflict in the evidence against 

appellant. 

 For these reasons, we find the trial court did not abuse its 

discretion in admitting the evidence of both the head and rib 

injuries. 

III. The Limiting Instruction 

 Appellant's failure to proffer a limiting instruction 

prevents this Court from determining whether the trial court 

erred by "failing" to grant such instruction. We also find no 

reason to apply the ends of justice exception. Therefore, that 

issue will not be considered in this appeal. See Rule 5A:18. 

IV. Admission of the Autopsy Report 

 Appellant contends that portions of the autopsy report that 

disclosed opinions of "other medical personnel" were erroneously 

shown to the jury. That issue is raised for the first time on 

appeal. To be considered on appeal, an objection must be timely 

made to the trial court and the claimed error must be stated with 
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specificity. See Marlowe v. Commonwealth, 2 Va. App. 619, 621, 

347 S.E.2d 167, 168 (1986). Appellant failed to state an 

appropriate objection to the autopsy report. Moreover, the 

record clearly discloses that the autopsy report merely confirmed 

the testimony of the medical authorities. We also find no reason 

to apply the ends of justice exception. Accordingly, we will not 

consider that issue. 

V. Hearsay Evidence 

 Appellant further asserts that the trial court erred by 

refusing to permit him to prove by Cramsey's testimony that Shari 

had made out-of-court statements which would have shown her bias, 

state of mind, and prior inconsistent testimony when testifying 

on behalf of the Commonwealth. On cross-examination, Shari was 

asked whether she had in effect stated to Cramsey that she had to 

"pretty much go along with the authorities now because they could 

take Matthew." Shari denied having made any statement to that 

effect. 

 Appellant asked Cramsey to "tell the Court and jury whether 

you had any conversation [with Shari] regarding Matthew and 

Matthew staying with her and so on[.]" Cramsey responded, "I 

really don't know." Counsel for appellant further attempted to 

draw information from Cramsey by asking, "Did you and [Shari] 

have any conversation about what [Shari] had to do for the 

authorities or anything like that?" The Commonwealth objected 

that the question called for hearsay evidence. The trial court 
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advised defense counsel that he did not understand the question. 

 Counsel responded that the question was designed to show Shari's 

state of mind. Counsel said, "I think -- we're trying to 

introduce it more, not to persuade the trier of fact that the 

statement is true, but that [Shari's] state of mind was such that 

[Shari] might then make a statement that [Shari] might not 

otherwise make, and [Shari] has testified in this matter." The 

trial court sustained the Commonwealth's objection. The record 

fails to show how Cramsey would have responded to the question. 

 If shown to be relevant to the case, out-of-court utterances 

are admissible to show the state of mind of the declarant. 

United Constr. Workers v. Laburnum Constr. Corp., 194 Va. 872, 

876, 75 S.E.2d 694, 709 (1953), aff'd, 347 U.S. 656 (1954). 

However, appellant has not shown by this record that Cramsey was 

prepared to offer testimony relevant to an issue presented by the 

trial. Moreover, he failed to avail himself of the opportunity 

offered by the trial judge to permit Cramsey to testify to "what 

she observed about [Shari]." The admissibility of evidence is a 

matter to be determined by the trial judge. Evans-Smith v. 

Commonwealth, 5 Va. App. 188, 196, 361 S.E.2d 436, 441 (1987); 

see also Gottlieb v. Commonwealth, 126 Va. 807, 812, 101 S.E. 

872, 874 (1920). On this record, we cannot say the trial court 

was plainly wrong or abused its discretion in its ruling on this 

issue. 

VI. The Videotapes 
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 The admissibility of evidence is within the broad discretion 

of the trial court, and a ruling will not be disturbed on appeal 

in the absence of an abuse of discretion. James v. Commonwealth, 

18 Va. App. 746, 753, 446 S.E.2d 900, 904 (1994). The trial 

court viewed the videotapes during a pretrial motion and found 

them inadmissible in this case. We find no abuse of discretion 

in the trial court's ruling based upon the purpose for which 

appellant offered the videotapes. 

 In accordance with the principles outlined above, we affirm 

appellant's conviction. 

 Affirmed.
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Baker, J., with whom Benton and Overton, J.J., join, dissenting. 

 For the reasons stated in the panel majority opinion, 

Pavlick v. Commonwealth, 25 Va. App. 538, 489 S.E.2d 720 (1997), 

I would reverse and remand this case to the trial court for such 

further proceedings as the Commonwealth may be advised.