COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Bumgardner and Lemons 

Argued at Salem, Virginia 

CHRISTOPHER MICHAEL TOWNS 

 MEMORANDUM OPINION* BY 

v. Record No. 0346-98-3 JUDGE SAM W. COLEMAN III 

 MARCH 30, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY 

Ray W. Grubbs, Judge 

 Joseph Graham Painter, Jr. (Painter, 

Kratman, Swindell, Crenshaw & DeMuth; 

Painter & DeMuth, on briefs), for appellant. 

 Eugene Murphy, Assistant Attorney General 

(Mark L. Earley, Attorney General, on 

brief), for appellee. 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication. 

 Christopher Michael Towns was convicted in a bench trial of 

felony child abuse in violation of Code § 18.2-371.1. The 

issues on appeal are (1) whether the trial court erred by 

prohibiting the expert witness from giving his opinion whether 

the injury was necessarily intentionally inflicted and (2) 

whether the evidence was sufficient to convict Towns for 

violating Code § 18.2-371.1. The expert's opinion as to whether 

an intentional act necessarily caused the injury infringed upon 

the fact finder’s responsibility to determine the ultimate issue 

of fact, and therefore, was not admissible. Accordingly, we 
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affirm the trial court's ruling. Additionally, because the 

evidence, viewed in the light most favorable to the 

Commonwealth, Higginbotham v. Commonwealth, 216 Va. 349, 352, 

218 S.E.2d 534, 537 (1975), was sufficient to prove the charge 

beyond a reasonable doubt, we affirm the conviction. 

BACKGROUND

 Christopher Towns's and Laurie Miller's baby, at the age of 

four weeks, sustained a long oblique or "spiral" fracture of the 

shaft of the femur. 

 Laurie Miller testified that on the date of the injury, at 

3:15 p.m., she left Towns alone with the baby at which time the 

child's leg was normal. From 3:15 to 4:00, Miller showered 

while Towns slept on a couch. Towns testified that he was 

wearing boots. The baby was sleeping in her car seat facing 

Towns at his feet. In his first statement to the investigating 

officer, at the hospital, Towns said that he was awakened by the 

child's screaming and that, becoming frantic, he called for 

Miller to come out of the shower. His later written statement, 

his testimony at trial, Miller's written statement and Miller's 

testimony at trial all differed from Towns's initial statement 

in one respect. In the later versions, Miller returned from the 

shower at 4:00 p.m. and woke Towns, rather than his calling for 

her to come from the shower, and the two talked for 15 to 20 

minutes after which the baby awoke "extremely grumpy." Towns 
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tried unsuccessfully to comfort the screaming child. After the 

baby rejected a bottle and her pacifier, Towns carried the baby 

to the dining room table to check her diaper. While checking 

the diaper, Towns noticed that she became more upset and that 

her leg, which had been normal an hour earlier, was motionless 

or limp. Towns and Miller took the child to the emergency room 

where Doctor Sinclair Ross Mackay diagnosed the fracture. 

 Dr. Mackay testified as an expert witness. He stated that 

the injury, "a long oblique fracture down the shaft of the 

[femur]" was very rare for a child of that age and was "commonly 

associated with abuse." According to Dr. Mackay, the injury 

"requires a twisting motion, its usually a combination of 

angulation and twisting type motion to produce that type of 

fracture in the shaft of the femur." Dr. Mackay further 

testified that the injury resulted from something in excess of a 

"slight twist of the leg." 

 Towns asked Dr. Mackay if he could "tell by the injury 

whether this was an intentional act." Dr. Mackay answered 

"No." The trial judge sustained the Commonwealth's objection 

for the reason that the question called for an opinion as to an 

ultimate issue of fact. The defendant was permitted to inquire 

of Dr. Mackay whether spiral fractures can be caused by 

accidental means. 
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ANALYSIS

 The trial court did not err in prohibiting Towns from 

asking whether Dr. Mackay could "tell from the injury whether 

this was an intentional act." "'[W]hile an expert witness may 

be permitted to express his opinion relative to the existence or 

nonexistence of facts not within common knowledge, he cannot 

give his opinion upon the precise or ultimate fact in issue, 

which must be left to the [fact finder] for determination.'" 

See Llamera v. Commonwealth, 243 Va. 262, 264, 414 S.E.2d 597, 

598 (1992) (quoting Webb v. Commonwealth, 204 Va. 24, 33, 129 

S.E.2d 22, 29 (1963)). 

 The factual evidence proved that the child sustained an 

injury during a time frame in which she was exclusively within 

the care of Towns. The principle issue was whether that injury 

was the result of an intentional or willful act by Towns in 

violation of Code § 18.2-371.1. The expert could, and did, 

testify as to the mechanics of how such an injury occurs, but it 

was the province of the fact finder to determine whether an 

intentional act necessarily caused the injury. See, e.g., Knick 

v. Commonwealth, 15 Va. App. 103, 108, 421 S.E.2d 479, 482 

(1992) (allowing forensic pathology expert to testify as to the 

mechanics of a shooting but prohibiting his opinion as to 

whether it was an accident). The question as to whether an 

intentional act necessarily caused the injury asked the expert 
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witness to give an opinion as to whether this specific injury 

was intentionally inflicted. That is the ultimate factual issue 

that the fact finder must determine. The trial court did not 

err in excluding the expert witness' opinion whether the injury 

was caused by an intentional act. 

 Towns also contends that the evidence was insufficient to 

prove intent as required by Code § 18.2-371.1. Towns argues 

that the Commonwealth's circumstantial evidence supports a 

reasonable hypothesis of innocence and, therefore, the evidence 

does not rise to the level of proof beyond a reasonable doubt. 

The suggested reasonable hypothesis of innocence is that the 

injury resulted from an accident. 

 When an appeal challenges the sufficiency of the evidence 

"we must view the evidence and all reasonable inferences fairly 

deducible therefrom in the light most favorable to the 

Commonwealth." Stockton v. Commonwealth, 227 Va. 124, 145, 314 

S.E.2d 371, 385 (1984). "When, from the circumstantial evidence 

it is just as likely, if not more likely, that a reasonable 

hypothesis of innocence explains the accused's conduct, the 

evidence cannot be said to rise to the level of proof beyond a 

reasonable doubt." Betancourt v. Commonwealth, 26 Va. App. 363, 

373, 494 S.E.2d 873, 878 (1998) (internal quotations omitted). 

Thus, when the Commonwealth relies upon circumstantial evidence 

to prove guilt, the Commonwealth "must exclude all reasonable 
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conclusions inconsistent with guilt." See Higginbotham, 216 Va. 

at 353, 218 S.E.2d at 537. 

 However, the Commonwealth need not exclude every possible 

theory of innocence, rather it must exclude only those which 

flow reasonably from the facts and raise a reasonable doubt of 

guilt. See Payne v. Commonwealth, 216 Va. 265, 272, 217 S.E.2d 

870, 875 (1975). Whether a particular hypothesis is reasonable, 

is a question of fact binding on appeal unless plainly wrong. 

See Lovelace v. Commonwealth, 27 Va. App. 575, 586, 500 S.E.2d 

267, 273 (1998). 

 Moreover, the Commonwealth is not required to actively 

negate every reasonable theory of innocence, instead it is 

sufficient if the evidence as presented has the effect of 

excluding those theories. See Orange v. Commonwealth, 191 Va. 

423, 443, 61 S.E.2d 267, 276 (1950). If, based on the 

Commonwealth’s evidence, the fact finder justifiably could have 

excluded all reasonable hypotheses of innocence, or determined 

that any possible hypothesis of innocence was less than 

reasonable, then we must affirm. We defer to the fact finder 

because the inferences to be drawn from proven facts are the 

province of the fact finder so long as they are reasonable and 

justified. See Higginbotham, 216 Va. at 353, 218 S.E.2d at 537. 

 If, as here, the appellant presents an hypothesis of 

innocence on appeal, the burden is on the appellant to show that 
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no reasonable finder of fact, based on the evidence presented, 

could have excluded that hypothesis. See generally Johnson v. 

Commonwealth, 12 Va. App. 391, 396, 404 S.E.2d 384, 387 (1991) 

("The burden is on the party who alleges reversible error to 

show by the record that reversal is the remedy to which he is 

entitled."). It is in this context that the Virginia Supreme 

Court has said that the hypotheses which the Commonwealth must 

exclude are those that actually flow from the evidence rather 

than those that may arise from the imagination of counsel. See, 

e.g., Black v. Commonwealth, 222 Va. 838, 841, 284 S.E.2d 608, 

609 (1981). Thus, to prevail, appellant must show that the 

facts as established in the record, viewed in the light most 

favorable to the Commonwealth, would not permit a reasonable 

fact finder to reject appellant's proposed hypothesis. 

 Here, the evidence proved that the baby's leg was normal at 

3:15 p.m.; that between 3:15 and 4:00 p.m., the baby was alone 

with Towns; that between 4:00 and 4:20 p.m., the baby slept next 

to Miller and Towns; and that shortly after the baby awoke at 

4:20, while changing the baby's diaper, Towns reported to Miller 

that the baby's leg was limp and motionless. The evidence 

further established that the fracture injury was one that is 

extremely rare, usually associated with abuse, and requires a 

twisting of the limb with considerable force. Further, the 
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evidence proved that Towns presented conflicting accounts 

regarding his discovery of the child's injury. 

 Considering the size and age of the child and amount of 

force necessary to cause the child's spiral fracture, the fact 

finder could reasonably reject the hypothesis that an accident 

caused the child's injury. Moreover, no evidence was presented 

that an accident had occurred. The fact finder was entitled to 

determine that Dr. Mackay's evidence excluded an accident as a 

reasonable explanation for the injury. The evidence proved that 

the spiral injury, which could only have been caused by the 

application of considerable force in twisting the leg, occurred 

when the child was in the exclusive custody of the defendant. 

The fact finder could reasonably determine from these 

circumstances that Towns intentionally inflicted the injury upon 

the child. "The facts . . . admitted of inferences of guilt 

more probable and natural than any reasonable hypothesis of 

innocence, and warranted" the trial judge in rejecting an 

hypothesis of accidental injury. See Toler v. Commonwealth, 188 

Va. 774, 782, 51 S.E.2d 210, 214 (1949). 

 The Commonwealth presented sufficient evidence for the fact 

finder to exclude any hypothesis that the injury resulted from 

an accident. Accordingly the conviction is affirmed. 

 Affirmed.