COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, McClanahan and Senior Judge Coleman Argued at Richmond, Virginia
ORLANDO LAWRENCE COVINGTON, SR. MEMORANDUM OPINION* BY v. Record No. 2450-02-2 JUDGE SAM W. COLEMAN III NOVEMBER 25, 2003 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY George F. Tidey, Judge
Christopher L. Anderson (Michael N. Herring; The McEachin Law Firm, P.C.; Bricker & Herring, on brief), for appellant.
Steven A. Witmer, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Orlando Lawrence Covington, Sr. appeals his bench trial conviction for second-degree
murder. He argues the evidence is insufficient to support his conviction because it fails to prove
malice or an intent to harm. For the reasons that follow, we disagree and affirm the trial court’s
decision.
BACKGROUND
“On appeal, ‘we review the evidence in the light most favorable 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) (citation omitted).
So viewed, the evidence proved that on Friday afternoon, November 30, 2001,
three-year-old Jordan Nelson left his babysitter’s house to spend the weekend with Covington, a
friend of the family. As previously arranged by Tracie Nelson, Jordan’s mother, Covington was
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. going to babysit over the weekend and assist in toilet training the toddler. Tracie Nelson testified
Jordan was in good health Thursday night and that she noticed no bruises or injuries on Jordan’s
body when she dressed him Friday morning. Brenda Whitaker, Jordan’s babysitter, testified
Jordan did not display any signs of injury or illness on November 30 before Covington picked
him up at her house. Nahir Perez, Jordan’s pre-school teacher, also testified she did not observe
any injuries on Jordan that day.
According to Covington, after he picked up Jordan from Whitaker’s house they went to
church. Covington testified that while there Jordan fell and sustained a rug burn to his face.
Lieutenant Chris Jones testified that in response to an emergency call from Covington, he
arrived at Covington’s house during the early morning hours of December 2, 2001. Covington
was downstairs when Jones arrived, and Jordan was upstairs having a seizure on the floor. Chris
Wiggins, an EMS provider, testified Covington indicated Jordan had had two to three seizures
during the previous two hours. As Wiggins removed Jordan’s clothing to examine the child, he
noticed multiple contusions to the right side of Jordan’s skull, his chin, left shoulder, sternum,
chest, clavicle, and both legs. Wiggins later encountered Covington in the hospital waiting
room. Wiggins heard Covington state that Jordan’s mother, Tracie, was out of town and
unavailable. Officer Floyd Boswell, who was working in an off-duty capacity at the hospital
when Covington arrived with Jordan, also heard Covington tell the nurses he could not contact
Jordan’s mother.
Forensic nurse examiner Kim Wieczorek testified Jordan’s injuries were consistent with
blunt force trauma from an external force. She noted Jordan also had sustained abrasions on his
ankle and genital injuries. She opined it was unlikely Jordan could have sustained the brain
injuries on Friday night at the church, as suggested by Covington.
-2- Dr. William Shafer examined Jordan in the emergency room. Shafer testified that based
upon Jordan’s cluster of injuries he suspected the boy had been abused and suffered, in part,
from Shaken Baby Syndrome. Shafer opined all of Jordan’s injuries, with the exception of the
facial abrasion, occurred contemporaneously.
Social worker Gretchen Icard interviewed Covington at the hospital. Covington initially
told Icard only that Jordan sustained a rug burn to his face on Friday night, that he spent all day
Saturday with the child, and stopped at a store on the way home that evening. After the extent of
Jordan’s injuries were ascertained and reported to Covington, Covington contacted Icard and
stated that Jordan had also fallen while skateboarding at the store, that he hit his head on the
floor, but appeared fine the rest of the night.
Dr. Marcella Fierro testified Jordan died from blunt force trauma to his head. Fierro
explained Jordan suffered from severe subarachnoid and subdural hemorrhaging from the
injuries to his head. He had bruises on his face, ear and eye and a large bruise on his cheek. She
identified seven points of impact on the victim’s head and explained loss of consciousness and
seizures were among the symptoms typically caused by such injuries. She described numerous
pattern injuries over Jordan’s body and opined they were consistent with being hit with a
hairbrush. Fierro also identified significant traumatic injuries to Jordan’s scrotum and penis.
There were several linear abrasions consistent with scratch marks on the bottom of the scrotum.
Fierro stated these injuries were caused by blunt force trauma, probably squeezing. The injuries
to the scrotum and penis were fresh and had been inflicted within hours to one day from the time
of Jordan’s death. Jordan also suffered extensive internal injuries, likely caused by blunt force
trauma to Jordan’s abdominal area. She further testified the severity and extent of Jordan’s head
and other injuries could not have been caused by falling at the church or at the store, as described
by Covington.
-3- Dr. Robin Foster testified children are often abused during the course of “potty training,”
and the injuries to Jordan’s genital area did not appear accidental but instead were consistent
with inflicted injuries.
ANALYSIS
Covington asserts the Commonwealth failed to establish he acted with malice or an intent
to harm the child.
“Second degree murder is defined as a ‘malicious killing’ of another person.” Lynn v.
Commonwealth, 27 Va. App. 336, 351, 499 S.E.2d 1, 8 (1998) (citation omitted), aff’d,
257 Va. 239, 514 S.E.2d 147 (1999). Second-degree murder does not require a specific intent to
kill. See Rhodes v. Commonwealth, 238 Va. 480, 486, 384 S.E.2d 95, 98 (1989). The
Commonwealth must merely prove “‘a malicious purpose to do the deceased a serious personal
injury or hurt.’” Id. (quoting Dock’s Case, 62 Va. (21 Gratt.) 909, 913 (1872)). Two factors
which the trier of fact may consider, among others, in determining the existence of malice
include the disparity in size between the assailant and his victim and the brutality of the assault.
See Epperly v. Commonwealth, 224 Va. 214, 231, 294 S.E.2d 882, 892 (1982).
The evidence established Jordan was in good health and without physical injuries up until
the time Covington called for him at the babysitter’s house. However, after spending the
weekend with Covington, Jordan had suffered numerous severe injuries which resulted in his
death after his arrival at the hospital. Furthermore, Covington provided inconsistent statements
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COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, McClanahan and Senior Judge Coleman Argued at Richmond, Virginia
ORLANDO LAWRENCE COVINGTON, SR. MEMORANDUM OPINION* BY v. Record No. 2450-02-2 JUDGE SAM W. COLEMAN III NOVEMBER 25, 2003 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY George F. Tidey, Judge
Christopher L. Anderson (Michael N. Herring; The McEachin Law Firm, P.C.; Bricker & Herring, on brief), for appellant.
Steven A. Witmer, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Orlando Lawrence Covington, Sr. appeals his bench trial conviction for second-degree
murder. He argues the evidence is insufficient to support his conviction because it fails to prove
malice or an intent to harm. For the reasons that follow, we disagree and affirm the trial court’s
decision.
BACKGROUND
“On appeal, ‘we review the evidence in the light most favorable 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) (citation omitted).
So viewed, the evidence proved that on Friday afternoon, November 30, 2001,
three-year-old Jordan Nelson left his babysitter’s house to spend the weekend with Covington, a
friend of the family. As previously arranged by Tracie Nelson, Jordan’s mother, Covington was
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. going to babysit over the weekend and assist in toilet training the toddler. Tracie Nelson testified
Jordan was in good health Thursday night and that she noticed no bruises or injuries on Jordan’s
body when she dressed him Friday morning. Brenda Whitaker, Jordan’s babysitter, testified
Jordan did not display any signs of injury or illness on November 30 before Covington picked
him up at her house. Nahir Perez, Jordan’s pre-school teacher, also testified she did not observe
any injuries on Jordan that day.
According to Covington, after he picked up Jordan from Whitaker’s house they went to
church. Covington testified that while there Jordan fell and sustained a rug burn to his face.
Lieutenant Chris Jones testified that in response to an emergency call from Covington, he
arrived at Covington’s house during the early morning hours of December 2, 2001. Covington
was downstairs when Jones arrived, and Jordan was upstairs having a seizure on the floor. Chris
Wiggins, an EMS provider, testified Covington indicated Jordan had had two to three seizures
during the previous two hours. As Wiggins removed Jordan’s clothing to examine the child, he
noticed multiple contusions to the right side of Jordan’s skull, his chin, left shoulder, sternum,
chest, clavicle, and both legs. Wiggins later encountered Covington in the hospital waiting
room. Wiggins heard Covington state that Jordan’s mother, Tracie, was out of town and
unavailable. Officer Floyd Boswell, who was working in an off-duty capacity at the hospital
when Covington arrived with Jordan, also heard Covington tell the nurses he could not contact
Jordan’s mother.
Forensic nurse examiner Kim Wieczorek testified Jordan’s injuries were consistent with
blunt force trauma from an external force. She noted Jordan also had sustained abrasions on his
ankle and genital injuries. She opined it was unlikely Jordan could have sustained the brain
injuries on Friday night at the church, as suggested by Covington.
-2- Dr. William Shafer examined Jordan in the emergency room. Shafer testified that based
upon Jordan’s cluster of injuries he suspected the boy had been abused and suffered, in part,
from Shaken Baby Syndrome. Shafer opined all of Jordan’s injuries, with the exception of the
facial abrasion, occurred contemporaneously.
Social worker Gretchen Icard interviewed Covington at the hospital. Covington initially
told Icard only that Jordan sustained a rug burn to his face on Friday night, that he spent all day
Saturday with the child, and stopped at a store on the way home that evening. After the extent of
Jordan’s injuries were ascertained and reported to Covington, Covington contacted Icard and
stated that Jordan had also fallen while skateboarding at the store, that he hit his head on the
floor, but appeared fine the rest of the night.
Dr. Marcella Fierro testified Jordan died from blunt force trauma to his head. Fierro
explained Jordan suffered from severe subarachnoid and subdural hemorrhaging from the
injuries to his head. He had bruises on his face, ear and eye and a large bruise on his cheek. She
identified seven points of impact on the victim’s head and explained loss of consciousness and
seizures were among the symptoms typically caused by such injuries. She described numerous
pattern injuries over Jordan’s body and opined they were consistent with being hit with a
hairbrush. Fierro also identified significant traumatic injuries to Jordan’s scrotum and penis.
There were several linear abrasions consistent with scratch marks on the bottom of the scrotum.
Fierro stated these injuries were caused by blunt force trauma, probably squeezing. The injuries
to the scrotum and penis were fresh and had been inflicted within hours to one day from the time
of Jordan’s death. Jordan also suffered extensive internal injuries, likely caused by blunt force
trauma to Jordan’s abdominal area. She further testified the severity and extent of Jordan’s head
and other injuries could not have been caused by falling at the church or at the store, as described
by Covington.
-3- Dr. Robin Foster testified children are often abused during the course of “potty training,”
and the injuries to Jordan’s genital area did not appear accidental but instead were consistent
with inflicted injuries.
ANALYSIS
Covington asserts the Commonwealth failed to establish he acted with malice or an intent
to harm the child.
“Second degree murder is defined as a ‘malicious killing’ of another person.” Lynn v.
Commonwealth, 27 Va. App. 336, 351, 499 S.E.2d 1, 8 (1998) (citation omitted), aff’d,
257 Va. 239, 514 S.E.2d 147 (1999). Second-degree murder does not require a specific intent to
kill. See Rhodes v. Commonwealth, 238 Va. 480, 486, 384 S.E.2d 95, 98 (1989). The
Commonwealth must merely prove “‘a malicious purpose to do the deceased a serious personal
injury or hurt.’” Id. (quoting Dock’s Case, 62 Va. (21 Gratt.) 909, 913 (1872)). Two factors
which the trier of fact may consider, among others, in determining the existence of malice
include the disparity in size between the assailant and his victim and the brutality of the assault.
See Epperly v. Commonwealth, 224 Va. 214, 231, 294 S.E.2d 882, 892 (1982).
The evidence established Jordan was in good health and without physical injuries up until
the time Covington called for him at the babysitter’s house. However, after spending the
weekend with Covington, Jordan had suffered numerous severe injuries which resulted in his
death after his arrival at the hospital. Furthermore, Covington provided inconsistent statements
and reported he had no way of contacting Jordan’s mother because she was out of town when, in
fact, she was at home and could have been contacted by telephone. Covington provided
implausible accounts of how Jordan could have received such severe and extensive injuries.
Based upon the medical evidence, the fact finder could infer that the injuries had been
intentionally inflicted. The evidence indicated the injuries were inflicted when Jordan was in the
-4- sole and exclusive custody of Covington. “When a conviction is based upon circumstantial
evidence, such evidence ‘is as competent and is entitled to as much weight as direct evidence,
provided it is sufficiently convincing to exclude every reasonable hypothesis except that of guilt.’”
Hollins v. Commonwealth, 19 Va. App. 223, 229, 450 S.E.2d 397, 400 (1994) (citation omitted).
“The Commonwealth need only exclude reasonable hypotheses of innocence that flow from the
evidence, not those that spring from the imagination of the defendant.” Hamilton v.
Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993).
Covington was responsible for Jordan while the child was in his care and confirmed that he
had exclusive custody of and was with the child the entire time that he picked him up from his
mother until when he took the child to the hospital. Covington testified Jordan received his injuries
from a fall at church and from falling off a skateboard in a store on the evening of November 30.
He explained that the following day he attended a parade with Jordan and claimed Jordan began
having seizures during the early morning hours on December 2, at which time he contacted the
police. However, Foster testified that had a child sustained the injuries Jordan exhibited on Friday
night as claimed by Covington, the child would not have been able to go to a parade, eat out, or go
shopping the following day. Additionally, Foster explained Jordan’s extensive injuries were
“consistent with inflicted, intentional non-accidental injuries.”
“Intent in fact is the purpose formed in a person’s mind, which may be shown by the
circumstances surrounding the offense, including the person’s conduct and his statements. And a
person is presumed to intend the immediate, direct, and necessary consequences of his voluntary
act.” Nobles v. Commonwealth, 218 Va. 548, 551, 238 S.E.2d 808, 810 (1977) (citation omitted).
The extent and severity of Jordan’s injuries, combined with the vast disparity in size between
Covington and his victim, were sufficient for the court, sitting as fact finder, to conclude that
Covington maliciously inflicted the injuries to Jordan with the intent to cause the boy serious
-5- physical harm. The Commonwealth’s evidence was competent, was not inherently incredible, and
was sufficient to prove beyond a reasonable doubt that Covington was guilty of second-degree
murder.
Accordingly, we affirm the decision of the trial court.
Affirmed.
-6-