Diane L. Hughes v. Commonweath

• Court: Court of Appeals of Virginia
• Decided: March 5, 1996
• Docket: 0258952
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Coleman and Elder Argued at Richmond, Virginia

DIANE L. HUGHES MEMORANDUM OPINION * BY v. Record No. 0258-95-2 JUDGE LARRY G. ELDER MARCH 5, 1996 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HALIFAX COUNTY Charles L. McCormick, III, Judge

Buddy A. Ward, Public Defender, for appellant.

Eugene Murphy, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Diane Hughes (appellant) appeals her three convictions for

misdemeanor child neglect in violation of Code § 18.2-371.

Appellant raises five arguments on appeal: (1) the trial court

improperly allowed a police officer to testify about out-of-court

statements made by third-party Macie Faulkner; (2) the trial

court improperly admitted Child Protective Services (CPS) reports

concerning appellant's children, as an exception to the hearsay

rule; (3) the trial court improperly admitted CPS reports

concerning third-party Macie Faulkner, as an exception to the

hearsay rule; (4) the trial court improperly admitted hearsay

statements made by one of appellant's children concerning drug

paraphernalia; and (5) the evidence failed to prove misdemeanor * Pursuant to Code § 17-116.010 this opinion is not designated for publication. child neglect. For the following reasons, we affirm appellant's

convictions.

First, assuming without deciding that the trial court erred

in reaching the conclusion that Macie Faulkner was unavailable,

we hold that such error was harmless, as other credible evidence

corroborated the most relevant portions of Faulkner's statements.

See Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d

910, 911 (1991)(en banc)(holding non-constitutional error is

harmless where it plainly appears from the facts and

circumstances that the error did not affect the verdict). For

example, Officer Pulliam testified that he himself discovered the

three children in the street in the custody of the two stangers

to whom Faulkner had given them. Furthermore, appellant admitted

to CPS that she paid Faulkner to care for her children on

February 14, 1994. Next, appellant contends that the trial court erred in

permitting Sylvia Bailey to testify about CPS reports concerning

Macie Faulkner. Over appellant's objection on the grounds of

relevancy, the trial court allowed Bailey to testify that there

were three founded cases of abuse and three "reason to suspect

cases" of abuse lodged against Faulkner. We hold that the trial

court erred in allowing such testimony because it was irrelevant.

The Commonwealth failed to introduce any evidence showing that

appellant knew of the child abuse allegations concerning

Faulkner. Therefore, the information contained in the reports

2 pertaining to Faulkner had no bearing upon whether appellant

attempted to provide appropriate care for her children.

Nevertheless, we hold that the trial court's error was harmless

because the remaining credible evidence in the case clearly

proved appellant neglected her children. See Lavinder, supra.

Third, we hold that the trial court did not err in allowing

the CPS reports concerning appellant and her children to be

admitted under the business records exception to the hearsay

rule. See Frye v. Commonwealth, 231 Va. 370, 387, 345 S.E.2d

267, 279 (1986). This Court has previously explained the

business records exception. See, e.g., Tickel v. Commonwealth,

11 Va. App. 558, 565, 400 S.E.2d 534, 538 (1991).

"Admission of [business record] evidence is conditioned . . . on proof that the document comes from the proper custodian and that it is a record kept in the ordinary course of business made contemporaneously with the event by persons having the duty to keep a true record."

Kettler & Scott, Inc. v. Earth Technology Cos., Inc., 248 Va.

450, 457, 449 S.E.2d 782, 786 (1994)(citation omitted). "This

approach 'necessarily requires that a determination as to

admissibility be made on the facts of each case.'" Id. (citation

omitted).

The trial court did not err in allowing Bailey to testify

about information contained in the CPS reports. Bailey testified

that she was the custodian of the CPS reports. The evidence

proved that the CPS records were kept in the regular course of

3 business. The trial court necessarily found that Bailey, as

custodian, was permitted to read the reports entered by Vaughan

and Medly, who no longer worked for CPS as child protective

service workers, because they had concurrently prepared the

reports pursuant to their duty to do so. See Ford Motor Co. v.

Phelps, 239 Va. 272, 275-76, 389 S.E.2d 454, 457 (1990).

Fourth, appellant argues that the trial court erred in

allowing Gerard Lawson to testify as to certain statements made

by appellant's five year old son regarding a drug display, as

such testimony was hearsay. See Patty v. Commonwealth, 218 Va.

150, 235 S.E.2d 437 (1977), cert. denied, 434 U.S. 1010 (1978);

Clark v. Commonwealth, 14 Va. App. 1068, 1070, 421 S.E.2d 28, 30

(1992). Assuming without deciding that testimony about the

child's reactions to the drug display constituted inadmissible

hearsay, we hold that the testimony was harmless in light of the

remaining evidence which proved the charges beyond a reasonable

doubt. See Lavinder, supra.

Lastly, "[w]hen sufficiency of the evidence is at issue on

appeal, the evidence must be viewed in the light most favorable

to the Commonwealth, and the evidence must be accorded all

reasonable inferences deducible therefrom." Pugliese v.

Commonwealth, 16 Va. App. 82, 92, 428 S.E.2d 16, 24 (1993). The

trial court's judgment will not be reversed unless it is plainly

wrong or without evidence to support it. Code § 8.01-680;

Feigley v. Commonwealth, 16 Va. App. 717, 722, 432 S.E.2d 520,

4 524 (1993).

We hold that the evidence proved beyond a reasonable doubt

three counts of misdemeanor child abuse or neglect in violation

of Code § 18.2-371. In order to prove the charges, the

Commonwealth had to demonstrate abuse or neglect as described in

Code § 16.1-228. This section provides in part that abuse or

neglect occurs when a parent "creates or inflicts . . . or allows

to be created or inflicted upon such child a physical or mental

injury by other than accidental means, or creates a substantial

risk of death, disfigurement or impairment of bodily or mental

functions." Code § 16.1-228. A parent also abuses or neglects a

child when that parent neglects or refuses to provide care

necessary for the child's health; abandons the child; is

unreasonably absent from the child; or lacks the mental or

physical capacity to provide care for the child. Code § 16.1-228.

The evidence viewed in the light most favorable to the

Commonwealth established that appellant's three children, ages

three, four, and five, were found outside at 11:30 p.m. on

February 14, 1994, in twenty-seven degree weather by Officer

Pulliam. The children were placed in foster care and described

by the foster parent as wearing dirty clothing and having a "very

bad odor." The foster parent testified that it took three days

to stabilize the children's diets. There was testimony that on

more than ten occasions, appellant did not pick up her children

5 from school as scheduled or failed to be home when the children

were scheduled to be returned to her. There was further evidence

that one child had a broken leg when he was one month old; that

appellant sold her food stamps; that there was inadequate food in

the home; and that appellant used cocaine.

For the foregoing reasons, we affirm appellant's

Affirmed.