COURT OF APPEALS OF VIRGINIA
Present: Judges Alston, McCull ough and Senior Judge Clements Argued at Richmond, Virginia

CHRISTOPHER ALLEN BRANTLEY MEMORANDUM OPINION * BY v. Record No. 0883-14-2 JUDGE JEAN HARRISON CLEMENTS SEPTEMBER 22, 2015 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT C OURT OF AMELIA COUNTY Paul W. Cella, Judge T.L. Marsh for appellant. Elizabeth C. Kiernan, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication. In a bench trial, Christopher Allen Bran tley (appellant) was convi cted of abuse and neglect of a child in violati on of Code § 18.2-371.1. Appellant argues on appeal the evidence was insufficient to prove beyond a reasonable do ubt that he caused the physical condition exhibited by V.B. on April 15, 2012 or that V.B.’s condition resulted from child abuse. We find the evidence was sufficient to support the conviction and affirm.
BACKGROUND “On appeal, ‘we review the ev idence in the light most fa vorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quo ting Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)).UNPUBLISHED- 2 - On April 15, 2012, three-month-old V.B. lived with her mother, Heat her Powell, and her father, appellant. In the preceding two days, V.B. had been in the care of only Powell, appellant, and Powell’s elderly grandmother. According to Powell, V.B. had “bad acid reflux,” but on April 13 and 14, V.B. took her bottles “like she norm ally did.” Powell said that when V.B. was taking formula from a bottle, sometimes the li quid came out of the left side of her mouth. Before 7:00 a.m. on April 15, Powell left the house for work. Appellant and V.B. remained at home, and appellant was the infant ’s caregiver. At about 2:00 p.m. on April 15, paramedics were called to the home where a ppellant and Powell lived. The paramedics transported V.B. to Chippenham Hospital. La ter that day V.B. was transferred to VCU Children’s Hospital because medical findings had raised suspicions of child abuse. A CT scan of V.B.’s brain performed at Chippenham Hospital on April 15 revealed “an acute on chronic subdural hematoma in the righ t frontal region of the brain.” A subdural hematoma is a collection of blood beneath the lining of the skull but above th e brain tissue. The acute subdural hematoma was incurred at some point during the seventy-two hours before its discovery. There was no evidence of other bruising or skeletal damage to V.B.’s body. Dr. Jennifer Fuchs, a pediatri c resident physician at VCU hos pital, spoke with appellant and Powell on April 16. Appellant said that he tried to feed V.B. at around noon on April 15. V.B. had become fussy, and she would take only about one-half ounce. She also would not take her pacifier. After he put the baby down for a nap, appellant said he heard her make an “ah” sound, and went to check on her. Appellant said he then found V.B. stiff on one side. After paramedics took V.B. to Chippenham Hospital, the baby vomited. Appellant and Powell told Dr. Fuchs there had been about f our prior incidents where V.B. ha d arched or become stiff and vomited, but V.B.’s doctor told them this was li kely due to her reflux condition. Appellant and Powell denied that V.B. had sustained a fall or any trauma.- 3 - An ophthalmology consultation at VCU revealed that V.B. had intraret inal and preretinal hemorrhages in the right eye. Retinal hemorrhages of that nature were consistent with traumatic injury from a high speed accelera tion-deceleration motion, or shaki ng, but not from a short fall. Dr. Robin Foster, the director of the child protective team at VCU Hospital, examined V.B. on April 17. Fuchs also was involved in the examination. At that time, the baby repeatedly pushed the pacifier out of her m outh with her tongue, and there was redness around her left eye. An MRI of V.B.’s head on April 16 had reveal ed a “subacute hematom a” on a “chronic right frontal subdural hematoma.” Dr . Foster stated that V.B.’s sy mptoms of seizure-like activity, poor feeding, and vomiting were consistent with an acute subdural hematoma, and the symptoms would have manifested immediately after th e mechanism of injury. The chronic blood collections on V.B.’s skull were less dense and were more than ten to fourteen days in age. Dr. Foster’s expert opini on was that V.B. had sustained abusive head trauma. Dr. Foster stated that nothing in V.B.’s birt h records explained the presence of an acute subdural blood collection or the retinal hemorrh ages. In Dr. Foster’s opinion, the hematomas and hemorrhages found on V.B. were unrelated to in juries that could have occurred during birth. Dr. Foster opined that most s ubdural hematomas occurring during birth are to the back of the child’s head, unlike the hematomas to the front of V.B.’s head, and resolve by the time the child is one month old. Dr. Foster further stated that in thirty percent of cas es involving abusive head trauma to a child, retinal hemorrhage was found unilaterally in only one eye. Dr. Foster stated that “adult strength” would have been requir ed to inflict V.B.’s injury. She explained that the type of force involved typically could not be sustained for more than twenty seconds because it would be physically exhausting to the person performing it. Dr. Foster explained that V.B.’s injury was “indi cative of significant trauma to th[e] infant.”- 4 - At VCU Hospital on April 18, Deputy Ian McDonald questioned appellant about the sequence of events that occurred on April 15 prior to the arrival of the pa ramedics. Appellant said that he and V.B. awakened at about 7:30 a.m. Powell had al ready left for work. Appellant fed the baby a bottle, which she drank completel y. Appellant and V.B. went back to sleep, and awakened again at 8:30 a.m. V.B. appeared to be behaving normally. Appellant put V.B. in a stroller and took her outside, where he worked on a swing set for severa l hours. At around noon, V.B. became fussy, so appellant took her inside to feed her again. Appellant gave the baby a bottle, but she did not feed well. Appellant put V.B. in her crib so that she could nap. Appellant said that while in the kitchen about five to ten minutes later, he heard V.B. make a sound. Appellant went to check on V.B. Appellant told McDonald he found V.B. with a “death stare,” pale, and rigid on one side. Appellant picked up V. B., stretched her out, and shook her gently on the chest. Appe llant said he became very concer ned about V.B.’s condition. He tried to call Powell, as well as a friend, but ultimately called 911. 1
Powell testified that V.B. was born with sw elling and bruising on her head. V.B. also had difficulty feeding, and milk would come out of the left side of her mouth. Powell said that on five or six occasions V.B. had regurgitated and choked while feeding. During these episodes, appellant, using his mouth, would suction V.B.’s mouth and nose so that her breathing could

resume. Dr. Jack Daniel, an expert in the field of forensic pat hology, reviewed medical records from V.B.’s birth. Dr. Daniel st ated that following her birth V. B.’s head had both a caput, which was a hematoma under the scalp, and a cephalohe matoma, a deeper area of bleeding involving the superficial surface of the bone. Before the April 15 incident, V.B. had been diagnosed with

1 On April 20, appellant gave a written statem ent to the police that was consistent with his oral statement to McDonald.- 5 - gastroesophageal reflux disease (G ERD) and was being treated with Zantac. Dr. Daniel opined that increased intracrania l pressure associated with a choki ng episode could cause rebleeding in an existing subdural hematoma. Dr. Daniel also stated that abnormal coagulation factors, which were noted from testing V.B. on April 15 and 17, could have caused a subdural hematoma to rebleed. Thus, Dr. Daniel stat ed, he did not think a rapid sh aking event would have been required to cause V.B.’s chronic subdural hema toma to bleed again and present as an acute hematoma. However, Dr. Daniel was unable to exclude abusive head trauma as a cause of V.B.’s acute subdural hematoma and retinal hemorrhage. Dr. Juan Orellana, an expert in the fiel d of ophthalmology, examined V.B. on June 25. At that time, only one small retinal hemorrhage remained present. Dr. Orellana opined that V.B.’s retinal hemorrhage on April 15 could have been caused by shaking, but that cause was less likely since it was in only one eye. Dr. Orellana also stated that a spasm of choking, and the resulting increased intracranial pressu re, could cause a retinal hemorrhage. In finding appellant guilty, the trial court cr edited Dr. Foster’s testimony regarding the acute hematoma discovered on V.B.’s head on April 15 and that it was not a birth-related injury. Considering the conjunction of the hematoma wi th the retinal hemorrhage and other symptoms, the trial court found appellant had injured V.B. through child abuse.
ANALYSIS Code § 18.2-371.1(A) states that a parent who “by willful act or omission or refusal to provide any necessary care for th e child’s health causes or permits serious injury to the life or health of such child shall be guilty of a Class 4 felony.” Appellant argues that evidence proved V.B.’s symptoms resulted from factors that did no t involve criminal conduct. He also claims the evidence was insufficient to excl ude a reasonable hypothesis of i nnocence that he was not the criminal agent of V.B.’s injury.- 6 - Whether the hypothesis of innocen ce is reasonable is itself a “question of fact,” Emers on v. Commonwealth, 43 Va. App. 263, 277, 597 S.E.2d 242, 249 (2004) (citation omitted), subject to deferential appellate review, Kelly [v. Commonwealth], 41 Va. App. [250,] 259, 584 S.E .2d [444,] 448 [(2003) ( en banc )]. “Merely because defendant’s theory of the case differs from that taken by the Commonwealth does not mean that every reasonable hypothesis consistent with his i nnocence has not been excluded. What weight should be given evidence is a matter for the [factfinder] to decide.” Miles v. Commonwealth, 205 Va. 462, 467, 138 S.E.2d 22, 27 (1964)[.] Haskins v. Commonwealth, 44 Va. App. 1, 9, 602 S.E.2d 402, 406 (2004). The evidence proved that on April 15, 2012, after V.B.’s admittance to Chippenham Hospital, a CT scan revealed th at V.B. had sustained an acute subdural hematoma that was on a chronic subdural hematoma. Dr. Foster opined that the acute hematoma had been sustained within seventy-two hours of the CT scan, and the onset of symptoms would have been immediate. Nausea and poor feeding were among those symptoms. V.B. appeared normal when Powell left for work at 7:00 a.m. on April 15, but the child exhibite d both symptoms after spending several hours in the sole care of appe llant. Thus, the evidence supported the trial court’s conclusion that it was appellant who caused V.B.’s acute subdural hematoma. In addition, the Commonwealth’s expert te stimony, which the trial court credited, supported the conclusion that V.B.’s acute s ubdural hematoma and retinal hemorrhaging were caused by abusive head trauma, not by circumstances relating to V.B.’s birth or a subsequently diagnosed medical condition. As Dr. Foster testif ied, the injuries V.B. manifested could have resulted from a violent incident of shaking, not from a short fall. “‘[C]onflicting expert opinions constitute a question of fact’” and it is “within the province of the finder of fact . . . ‘to assess the credibility of the witnesses and the probative va lue to be given their testimony.’” Grattan v. Commonwealth, 278 Va. 602, 617, 685 S.E .2d 634, 642 (2009) (quoting Riner v. Commonwealth, 268 Va. 296, 329-30, 601 S.E.2d 555, 574 (2004)). See also Cavazos v. Smith,- 7 - 132 S. Ct. 2 (2011) (where there was conflicting e xpert opinion testimony re garding the cause of the child’s death, appellate cour t erred in reversing defendant’s conviction and finding the child was not a victim of shaken baby syndrome). We find no basis to disturb th e trial court’s decision to credit the Commonwealth’s e xpert opinion testimony that V.B.’s condition resulted from abusive head trauma, and to conclude that appellant was guilty beyond a reasonable doubt of child abuse.
CONCLUSION For the foregoing reasons, we affirm appellant’s conviction. Affirmed.