COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziat a, Humphreys and McClanahan Argued at Richmond, Virginia

REIDA K. MORTON MEMORANDUM OPINION * BY v. Record No. 2677-02-2 JUDGEROBERT J. HUMPHREYS JANUARY 28, 2004 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HENRICO COUNTY George F. Tidey, Judge Sherry Netherland (Michael Mo rchower; Morchower, Luxton & Whaley, on brief), for appellant. Virginia B. Theisen, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Reida K. Morton appeals her convictions, afte r a jury trial, for fe lony child neglect (in violation of Code § 18.2-371.1 ) and misdemeanor a ssault and battery (i n violation of Code § 18.2-57). Morton contends th e evidence produced by the Commo nwealth was insufficient, as a matter of law, to prove beyond a reasonable do ubt that she comm itted the offens es. Finding no error, we affirm the judgment of the trial court. “We have held in many cases that, upon appell ate review, the evidence and all reasonable inferences flowing therefrom must be viewed in the light most favorable to the prevailing party in the trial court.” Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003) (citations omitted). Further, “[c]ircumstantial ev idence is as competent and is entitled to as much weight as direct evidence, pr ovided it is sufficiently convinci ng to exclude every reasonable

* Pursuant to Code § 17.1-413, this opi nion is not designated for publication. Furthermore, because this opinion has no precedential value, we recite only those facts essential to our holding.- 2 - hypothesis except that of guilt.” Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983). “The statement that circumstantial evidence must exclude every reasonable theory of innocence is simply another way of stating that the Commonwealth has the burden of proof beyond a reasonable doubt.” Hudson, 265 Va. at 513, 578 S.E.2d at 785 (citation omitted). In addition, “[c]ircumstantial evidence is not vi ewed in isolation. ‘While no single piece of evidence may be sufficient, the “combined force of many concurrent and related circumstances, each insufficient in itself, may lead a reasonable mind irresistibly to a conclusion.”’” Id. at 514, 578 S.E.2d at 786 (quoting Derr v. Commonwealth, 242 Va. 413, 425, 410 S.E.2d 662, 669 (1991) (citations omitted)). Thus, the issue upon ap pellate review is “whether a reasonable jury, upon consideration of all the evidence, could have rejected” Morton’s theories of defense and found her guilty of the offenses charged, be yond a reasonable doubt. Id. at 513, 578 S.E.2d at 785. “When a jury decides the case, Code § 8.01-680 requires that ‘we review the jury’s decision to see if reasonable juro rs could have made the choices that the jury did make. We let the decision stand unless we conclude no rationa l juror could have re ached that decision.’” Crowder v. Commonwealth, 41 Va. App. 658, 662, 588 S.E.2d 384, 386 (2003) (quoting Pease v. Commonwealth, 39 Va. App. 342, 355, 573 S.E.2d 272, 278 (2002) (en banc)). Moreover, “[c]onflicting expert op inions constitute a question of fact . . . .” McCaskey v. Patrick Henry Hospital, 225 Va. 413, 415, 304 S.E.2d 1, 2 (1983). It is within the province of the jury, as the finder of fact, “to assess the credibility of [s uch] witnesses and the probative value to be given their testimony.” Ri chardson v. Richardson, 242 Va. 242, 246, 409 S.E.2d 148, 151 (1991); see also Mercer v. Commonwealth , 259 Va. 235, 242, 523 S.E.2d 213, 217 (2000). Thus, the jury’s factual determinations in this regard “are binding on this Court, and we will reverse such findings ‘only if they are plai nly wrong or without evidence to support them.’”- 3 - Mercer, 259 Va. at 243, 523 S.E.2d at 217 (quoting Richardson , 242 Va. at 246, 409 S.E.2d at 151). So viewed, we find the evidence presented here was sufficient, as a matter of law, to prove beyond a reasonable doubt that Morton committed the offenses for which she was convicted. “Assault and battery, . . . require s proof of ‘an overt act or anattempt . . . with force and violence, to do physical injury to the person of another,’ ‘whether from malice or from wantonness,’ together with ‘the actual infliction of corporal hurt on another . . . wil[l]fully or in anger.’” Boone v. Commonwealth, 14 Va . App. 130, 132, 415 S.E.2d 250, 251 (1992) (citations omitted). It has long been the ru le in Virginia that “[a]ny touc hing by one of th e person . . . of another in rudeness or in anger is an assa ult and battery.” Lynch v. Commonwealth, 131 Va. 762, 765, 109 S.E. 427, 428 (1921). Nevertheless, “[o] ne cannot be convicted of assault and battery ‘without an intention to do bodily harm — either an actu al intention or an intention imputed by law . . . .’” Boone, 14 Va. App. at 133, 415 S.E.2d at 251. Code § 18.2-371.1(B)(1) provides that “[a] ny parent, guardian, or other person responsible for the care of a child under the age of 18 whose willfu l act or omission in the care of such child was so gross, wanton and culpable as to show a reckless disregard for human life shall be guilty of a Class 6 felony.” We discussed the application of this statute in Barrett v. Commonwealth, 41 Va. App. 377, 585 S.E.2d 355 (2003) , and described the statutory terms as follows: “[T]he term ‘gross, wanton, and culpable’ describes conduct. The word ‘gross’ means ‘aggravated or increased negligence’ while the word ‘culpable’ means ‘deserving of blame or censure.’ [Bell v. Commonwealth, 170 Va. 597, 611, 195 S.E. 675, 681 (1938)]. ‘“Gross negligence” is culpable or criminal when accompanied by- 4 - acts of commission or omission of a wanton or wilful nature, showing a reckless or indifferent di sregard of the rights of others, under circumstances reasonably ca lculated to produce injury, or which make it not improbable that injury will be occasioned, and the offender knows, or is charged with the knowledge of, the probable result of his acts.’ Id. at 611-12, 195 S.E. at 681.” 41 Va. App. at 400, 585 S.E.2d at 366-67 (quot ing Cable v. Commonwealth, 243 Va. 236, 240, 415 S.E.2d 218, 220 (1992)) (alterations in original). “We have defined the term ‘wilful’ as[:] an act done with a bad purpose, without justifiable excuse, or without ground for believing it is la wful. The term denotes ‘“an act which is intentional, or know ing, or voluntary, as distinguished from accidental.”’ The terms ‘bad purpose’ or ‘without justifiable excuse,’ while facially unspeci fic, necessarily imply knowledge that particular conduct will likely result in injury or illegality.” Id. (quoting Ellis v. Commonwealth , 29 Va. App. 548, 554, 513 S.E.2d 453, 456 (1999) (citations omitted)). When viewed in the light most favorab le to the Commonwealth, the evidence here established that Morton was a regular caregiver for the Blevin s’s four-and-a-half-month-old baby for several months prior to the incident. Onthe morning of July 20, 2001, Mr. Blevins, the baby’s father, dressed the baby and took the ba by to Morton’s home as usual. Mr. Blevins testified the baby was acting normally that morn ing and was “smiling” and “kicking.” By her own concession to Investigator Edward Kopacki, Morton established that the baby continued to act normal that morning, “was good all day” and “at e almost all of her fi rst couple of bottles” without incident. Later that afternoon, during the baby’s feed ing, Morton conceded that she “grabbed the baby by the ankles,” turned he r “upside down,” and “shook her,” because she thought the baby might be choking on milk. Although Morton contended that she shook the baby “lightly,” the jury was enti tled to evaluate Morton’s theoryof innocence upon consideration- 5 - of all the evidence and the reasonable inferences th at flowed therefrom. It is clear that, in doing this, the jury rejected Mo rton’s claim as unreasonable. Indeed, the medical evidence established that , when the baby arrived at the hospital that afternoon, she suffered from a chronic subdural hematoma, as well as a fractured tibia. Dr. Chris Woobilin, the pediatric emergency room physician who examined the baby, testified that a chronic subdural hematoma would appear on an x-ray within 24 to 48 hours after an injury. Dr. Robin Foster, the pediatric physician with MCV who examined the baby approximately three days later on July 23, 2001, testified that the baby’s chronic subdural hematoma would appear as a result of blood collections thatare “greater than approximatelytwo weeks of age.” However, Dr. Foster further testified that MCV physicia ns found the baby to suffer from not only the chronic subdural hematoma and the fractured ti bia, but also from an acute subdural hematoma and multilayered retinal hemorrhages. Dr. Foster opined that the acute hematoma would appear “within 72 hours” of the causal in jury, and explained that the am ount of force to cause such an injury “has to be severe and would be deemed violent even[] to a lay person.” Significantly, Dr. Foster testified that, in her opinion, “an acute event is what triggere d [the baby’s] clinical presentation of going limp and being less responsiv e than normal.” She stated that once the acute “injury occur[red] . . . [she] would not expect that [the baby] would eat normally . . . or that she would be alert and pl ayful and interactive.” Dr. Foster further testified that the baby’s fr actured tibia appeared to be an “acute” injury which would have likely occurred within 72 hour s prior to July 23, 2001. She stated that the force required to cause such a fracture “would be significant,” “it would not be a mild force.” Dr. John Wright, a pediatric ophthalmologist with MCV, test ified that the baby’s retinal hemorrhages were also “acute” and thus, would have occurred within a time frame of one week,- 6 - or up to nine days, prior to the baby’s examinati on. He stated that the force required to cause such hemorrhages would be “extreme.” Each of the three doctors te stifying for the Commonwealth opined that the combination of the baby’s injuries was consistent with “shaken baby syndrome.” In fact, Dr. Wright stated that “shaken baby syndrome [was] the onlylikely basis for [the baby’s] retinal hemorrhages.” (Emphasis added.) We recognize the validity of Morton’s cont ention on appeal that “mere opportunity to commit an offense raises only ‘the suspicion th at the defendant may have been the guilty agent; and suspicion is never enough to sustain a c onviction.’” Christian v. Commonwealth, 221 Va. 1078, 1082, 277 S.E.2d 205, 208 (1981) (quoting Simmons v. Commonwealth, 208 Va. 778, 783, 160 S.E.2d 569, 573 (1968)). However, we likewi se recognize that oppo rtunity is a relevant circumstance, “and, when reinforced by other incr iminating circumstances, may be sufficient to establish criminal agency beyond a reasonable doubt.” Id. “Moreover, where it appears that a criminal assault was made upon a child within a pa rticular period of time, evidence which shows that the accused was sole custodian of the child during that period may be sufficient, standing alone, to prove criminal agency.” Id. The evidence in the case at bar clearly establ ished that Morton was the only adult present with the baby when her symptoms of “lim pness” and unresponsiveness first appeared. Furthermore, Morton was the only adult present with the baby for several hours prior to the appearance of the symptoms. Additionally, evid ence established that the baby was fine and appeared to be acting and eating normally, up to the time that her symptoms first became apparent. In light of the testimony concerning the time frame within which the injury likely occurred, as well as Dr. Foster’s testimony that the baby’s symptoms would have been caused by an “acute” event and that the baby would not have behaved normally, eaten normally, or have- 7 - been playful and interactive after such an inju ry had occurred, we find that credible evidence supported the jury’s finding that Morton in flicted the baby’s acute head injury. Moreover, each of the doctors testifying for the Commonwealth explained that the force necessary to cause such an injury would be “s evere” and “violent,” ev en as interpreted by a layperson. In light of this fact, as well as the testimony concerning th e likely timing of the retinal hemorrhaging and the tibial fracture, we find the evidence was similarly sufficient to establish that Morton inflicted the baby’ s leg fracture and retinal hemorrhaging. Further, considering the testimony concerni ng the amount of force necessary to cause each of the injuries suffered by the baby, the evid ence also clearly established that the injuries were inflicted by Morton “in rudeness or in anger,” Lynch, 131 Va. at 765, 109 S.E. at 428, with force and violence, and with reckless disreg ard for the baby’s well-being. See Barrett , 41 Va. App. at 400, 585 S.E.2d at 366-67; Boone, 14 Va. App. at 133, 415 S.E.2d at 251; see also Hernandez v. Commonwealth, 12 Va. App. 669, 672, 406 S.E.2d 398, 400 (1991) (“A trier of fact may infer that a person intends the natural consequences of his or her acts.”); Campbell v. Commonwealth, 12 Va. App. 476, 485, 405 S.E.2d 1, 5 (1991) (en banc) (citations omitted) (“In determining the probable consequences of an aggre ssor’s actions and his or her intent to achieve those consequences, the comparative weakness of the victim and the strength of the aggressor may be considered. Where a victim is significan tly weaker than an aggressor, a physical attack is more likely to cause severe bodily injury.”). Morton’s contention that the baby suffered fr om BESSI (a benign enlargement of the subarachnoid space), and therefor e could sustain head trauma as a result of lesser force, does not persuade us differently. Indeed, although the de fense experts testified that the baby suffered from BESSI, the Commonwealth’s experts testified that th e baby’s medical and physical histories were not consistent with the conditi on. Moreover, at least one of the Commonwealth’s- 8 - experts testified that, even a ssuming the baby suffered from BESSI, the condition would not put a child at greater risk of suffering a head inju ry. None of the experts, including the defense experts, testified that BESSI w ould put a child at greater risk of suffering retinal hemorrhaging or a fractured tibia. Furthermore, even the defens e experts agreed that whether or not the baby suffered from BESSI, some force - “something more significant than a bump or, in the road or something of that nature” - would be requi red to have caused the baby’s head trauma. Finally, Morton’s claim that the baby suffered only from a “rebleed,” as a result of the chronic subdural hematoma, which could have been caused by lesser fo rce than would normally be required, likewise does not persuade us. Dr . Foster testified that the baby’s chronic subdural hematoma “did not appear to be rapidly cha nging.” Thus, she opined that “an acute event” “triggered” the baby’s symptoms. She stated th at a “second incident of some sort” would have been required to cause the acut e subdural hematoma. As Dr. Fost er opined that causing an acute subdural hematoma would require “severe,” “vio lent” force, the jury could have reasonably concluded that the force inflicted by Morton, even if less severe than th at normally required, was sufficient to establish intentional, willful conduc t in reckless disregard for the baby’s well-being.
See Feigley v. Commonwealth , 16 Va. App. 717, 724, 432 S.E.2d 520, 525 (1993) (noting that if the evidence is equally suscepti ble to two or more constructi ons, one of which would support guilt and another which would not, the fact finder is not free arbitrarily to select the theory of guilt, but that this analysis occurs only after the fact finder resolves all conflicts in the evidence );

see also Hudson , 265 Va. at 513, 578 S.E.2d at 785 (noting th at this Court must determine “not whether ‘there is some evidence to support’” a defendant’s hypothesis of innocence, but rather, “whether a reasonable jury, upon consideration of all the evidence, coul d have rejected [the defendant’s] theories in his defense and f ound him guilty . . . beyond a reasonable doubt”).- 9 - Given the totality of this evidence, we find th at the jury was entitled to reject Morton’s explanations of innocence and to conclude that the evidence wa s sufficient to establish she inflicted the baby’s injuries with the requisite state of mind. Accordingly, we affirm Morton’s convictions. Affirmed.