COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, O’Brien and Raphael UNPUBLISHED
Argued at Lexington, Virginia
RAYMOND TRAVIS SWINSON, SR. MEMORANDUM OPINION * BY v. Record No. 0637-21-3 JUDGE MARY GRACE O’BRIEN MARCH 29, 2022 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF AUGUSTA COUNTY Paul A. Dryer, Judge
Eric M. Anderson, Senior Assistant Public Defender (Kieran Bartley, Assistant Public Defender, on brief), for appellant.
Craig W. Stallard, Senior Assistant Attorney General (Mark R. Herring, 1 Attorney General, on brief), for appellee.
The trial court convicted Raymond Travis Swinson, Sr. (“appellant”) of misdemeanor abuse
and neglect of an incapacitated adult in violation of Code § 18.2-369. Appellant contends the court
erred in finding sufficient evidence of a “knowing and willful failure to provide necessary care.”
For the following reasons, we affirm his conviction.
Background
“When reviewing the sufficiency of the evidence, ‘[t]he judgment of the trial court is
presumed correct and will not be disturbed unless it is plainly wrong or without evidence to
support it.’” Smith v. Commonwealth, 296 Va. 450, 460 (2018) (alteration in original) (quoting
Commonwealth v. Perkins, 295 Va. 323, 327 (2018)). “In such cases, ‘[t]he Court does not ask
itself whether it believes that the evidence at the trial established guilt beyond a reasonable
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 Jason S. Miyares succeeded Mark R. Herring as Attorney General on January 15, 2022. doubt.’” Secret v. Commonwealth, 296 Va. 204, 228 (2018) (alteration in original) (quoting
Pijor v. Commonwealth, 294 Va. 502, 512 (2017)). Instead, we ask “whether any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.” Id.
(quoting Pijor, 294 Va. at 512). “If there is evidentiary support for the conviction, ‘the
reviewing court is not permitted to substitute its own judgment, even if its opinion might differ
from the conclusions reached by the finder of fact at the trial.’” Chavez v. Commonwealth, 69
Va. App. 149, 161 (2018) (quoting Banks v. Commonwealth, 67 Va. App. 273, 288 (2017)).
On appeal, we review the facts in the light most favorable to the Commonwealth, the
prevailing party at trial. Gerald v. Commonwealth, 295 Va. 469, 472 (2018). In doing so, we
discard appellant’s conflicting evidence, and we regard as true all credible evidence favorable to
the Commonwealth and all inferences that may reasonably be drawn from that evidence. Id. at
473.
Appellant’s adult son, Raymond Swinson, Jr. (“Raymond”) suffered a traumatic brain
injury in 2016 that left him mentally incapacitated and prone to seizures. Raymond required
daily medications to prevent seizures, and appellant, as Raymond’s primary caretaker, was
responsible for administering them. Appellant suffered from a seizure disorder himself and
therefore understood that timely administration of the medications was critical to preventing his
son’s seizures. Appellant testified that he gave Raymond his medications at 8:00 a.m. and at
8:00 p.m. each day.
According to nurse practitioner Karen Hill, Raymond’s healthcare provider, three
prescription medications were used to control Raymond’s seizures. Two medications were
administered daily, and the third was used on an emergency basis. In Hill’s opinion, Raymond
was at risk of a seizure if he missed even a single dose of his medications. If he missed two or
more doses, he required bloodwork and a medical evaluation to adjust his medications. Hill
-2- noted that Raymond’s seizure medications included a warning to consult a medical professional
if he missed more than one dose. She emphasized that the reduced blood flow associated with
seizures could exacerbate Raymond’s brain injury and, in the event of a prolonged seizure, he
could suffer cardiac arrest.
In August 2020, Raymond lived with appellant and appellant’s fiancée, Jessica Small, in
Chatham. Raymond’s mother, Annie Smith, lived in Staunton. On Friday, August 14, 2020,
appellant, Raymond, and Small drove to Harrisonburg on an errand. They planned to drop
Raymond off with his mother, but she cancelled the visit. Appellant and Small decided to leave
Raymond in Fishersville with Emerald Rigger, a woman Raymond had stayed with overnight a
few times in the past and had communicated with on Facebook. When appellant and Small
returned to Chatham late Friday, they left Raymond at Rigger’s house with no wallet, phone, or
medications.
Raymond had a history of “wandering off,” including an incident during a prior visit with
Rigger. On Saturday, appellant called Rigger, but she did not answer. Although appellant
testified that he was “concerned,” he remained in Chatham through Sunday without confirming
Raymond’s whereabouts or notifying the authorities.
On Saturday evening, a convenience store clerk in Fishersville encountered Raymond
alone in the store, eating condiments and asking for food. The clerk noticed that Raymond was
wearing a Project Lifesaver wristband and called the Augusta County police, who escorted
Raymond to the local station and contacted the Pittsylvania County Sheriff’s Office. After
unsuccessful attempts to locate family members, the police notified Adult Protective Services
(“APS”) and took Raymond to the hospital for assessment and medications. On Sunday, August
16, 2020, the police were able to contact Raymond’s sister, who took her brother home from the
hospital.
-3- APS supervisor Lindsay Combs sought an emergency order for protective services for
Raymond on Monday, August 17, and later that day, appellant contacted her for the first time. In
a series of interviews, appellant told Combs that, when he left Raymond with Rigger on Friday
August 14, he understood that Rigger would return Raymond to Chatham the next day. He
admitted, however, that he never checked on Raymond’s whereabouts until Monday August 17.
Appellant also told Combs that he did not leave any medications with Raymond but
acknowledged having a supply at his home in Chatham.
In an interview with Investigator Ryan Martin, appellant stated that he left Raymond with
Rigger on Friday and planned to return for him “some time later in the weekend.” Appellant
acknowledged during the interview that he was responsible for ensuring that Raymond took his
seizure medications and that, without them, Raymond was “susceptible” to seizures. Appellant
admitted that he left Raymond with Rigger for the weekend without his medications. He told
Martin that “it wouldn’t be a big deal if [Raymond] missed medication for a couple days.”
Appellant testified on his own behalf and admitted that he had two felony convictions.
He denied telling Martin that Raymond could miss taking his medications “for a few days,” but
he did admit stating that Raymond would “end up taking [sic] a seizure” if he missed his
medications “on the second day.” Appellant conceded that he remained in Chatham when he
could not reach Rigger on Saturday and, despite having no information concerning Raymond’s
whereabouts, he did not leave home until learning on Sunday evening that Raymond had
“wandered off.” Rather than notify the authorities, appellant and Small drove to Smith’s home
in Staunton to investigate whether Raymond was with his mother. Upon their arrival, appellant
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COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, O’Brien and Raphael UNPUBLISHED
Argued at Lexington, Virginia
RAYMOND TRAVIS SWINSON, SR. MEMORANDUM OPINION * BY v. Record No. 0637-21-3 JUDGE MARY GRACE O’BRIEN MARCH 29, 2022 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF AUGUSTA COUNTY Paul A. Dryer, Judge
Eric M. Anderson, Senior Assistant Public Defender (Kieran Bartley, Assistant Public Defender, on brief), for appellant.
Craig W. Stallard, Senior Assistant Attorney General (Mark R. Herring, 1 Attorney General, on brief), for appellee.
The trial court convicted Raymond Travis Swinson, Sr. (“appellant”) of misdemeanor abuse
and neglect of an incapacitated adult in violation of Code § 18.2-369. Appellant contends the court
erred in finding sufficient evidence of a “knowing and willful failure to provide necessary care.”
For the following reasons, we affirm his conviction.
Background
“When reviewing the sufficiency of the evidence, ‘[t]he judgment of the trial court is
presumed correct and will not be disturbed unless it is plainly wrong or without evidence to
support it.’” Smith v. Commonwealth, 296 Va. 450, 460 (2018) (alteration in original) (quoting
Commonwealth v. Perkins, 295 Va. 323, 327 (2018)). “In such cases, ‘[t]he Court does not ask
itself whether it believes that the evidence at the trial established guilt beyond a reasonable
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 Jason S. Miyares succeeded Mark R. Herring as Attorney General on January 15, 2022. doubt.’” Secret v. Commonwealth, 296 Va. 204, 228 (2018) (alteration in original) (quoting
Pijor v. Commonwealth, 294 Va. 502, 512 (2017)). Instead, we ask “whether any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.” Id.
(quoting Pijor, 294 Va. at 512). “If there is evidentiary support for the conviction, ‘the
reviewing court is not permitted to substitute its own judgment, even if its opinion might differ
from the conclusions reached by the finder of fact at the trial.’” Chavez v. Commonwealth, 69
Va. App. 149, 161 (2018) (quoting Banks v. Commonwealth, 67 Va. App. 273, 288 (2017)).
On appeal, we review the facts in the light most favorable to the Commonwealth, the
prevailing party at trial. Gerald v. Commonwealth, 295 Va. 469, 472 (2018). In doing so, we
discard appellant’s conflicting evidence, and we regard as true all credible evidence favorable to
the Commonwealth and all inferences that may reasonably be drawn from that evidence. Id. at
473.
Appellant’s adult son, Raymond Swinson, Jr. (“Raymond”) suffered a traumatic brain
injury in 2016 that left him mentally incapacitated and prone to seizures. Raymond required
daily medications to prevent seizures, and appellant, as Raymond’s primary caretaker, was
responsible for administering them. Appellant suffered from a seizure disorder himself and
therefore understood that timely administration of the medications was critical to preventing his
son’s seizures. Appellant testified that he gave Raymond his medications at 8:00 a.m. and at
8:00 p.m. each day.
According to nurse practitioner Karen Hill, Raymond’s healthcare provider, three
prescription medications were used to control Raymond’s seizures. Two medications were
administered daily, and the third was used on an emergency basis. In Hill’s opinion, Raymond
was at risk of a seizure if he missed even a single dose of his medications. If he missed two or
more doses, he required bloodwork and a medical evaluation to adjust his medications. Hill
-2- noted that Raymond’s seizure medications included a warning to consult a medical professional
if he missed more than one dose. She emphasized that the reduced blood flow associated with
seizures could exacerbate Raymond’s brain injury and, in the event of a prolonged seizure, he
could suffer cardiac arrest.
In August 2020, Raymond lived with appellant and appellant’s fiancée, Jessica Small, in
Chatham. Raymond’s mother, Annie Smith, lived in Staunton. On Friday, August 14, 2020,
appellant, Raymond, and Small drove to Harrisonburg on an errand. They planned to drop
Raymond off with his mother, but she cancelled the visit. Appellant and Small decided to leave
Raymond in Fishersville with Emerald Rigger, a woman Raymond had stayed with overnight a
few times in the past and had communicated with on Facebook. When appellant and Small
returned to Chatham late Friday, they left Raymond at Rigger’s house with no wallet, phone, or
medications.
Raymond had a history of “wandering off,” including an incident during a prior visit with
Rigger. On Saturday, appellant called Rigger, but she did not answer. Although appellant
testified that he was “concerned,” he remained in Chatham through Sunday without confirming
Raymond’s whereabouts or notifying the authorities.
On Saturday evening, a convenience store clerk in Fishersville encountered Raymond
alone in the store, eating condiments and asking for food. The clerk noticed that Raymond was
wearing a Project Lifesaver wristband and called the Augusta County police, who escorted
Raymond to the local station and contacted the Pittsylvania County Sheriff’s Office. After
unsuccessful attempts to locate family members, the police notified Adult Protective Services
(“APS”) and took Raymond to the hospital for assessment and medications. On Sunday, August
16, 2020, the police were able to contact Raymond’s sister, who took her brother home from the
hospital.
-3- APS supervisor Lindsay Combs sought an emergency order for protective services for
Raymond on Monday, August 17, and later that day, appellant contacted her for the first time. In
a series of interviews, appellant told Combs that, when he left Raymond with Rigger on Friday
August 14, he understood that Rigger would return Raymond to Chatham the next day. He
admitted, however, that he never checked on Raymond’s whereabouts until Monday August 17.
Appellant also told Combs that he did not leave any medications with Raymond but
acknowledged having a supply at his home in Chatham.
In an interview with Investigator Ryan Martin, appellant stated that he left Raymond with
Rigger on Friday and planned to return for him “some time later in the weekend.” Appellant
acknowledged during the interview that he was responsible for ensuring that Raymond took his
seizure medications and that, without them, Raymond was “susceptible” to seizures. Appellant
admitted that he left Raymond with Rigger for the weekend without his medications. He told
Martin that “it wouldn’t be a big deal if [Raymond] missed medication for a couple days.”
Appellant testified on his own behalf and admitted that he had two felony convictions.
He denied telling Martin that Raymond could miss taking his medications “for a few days,” but
he did admit stating that Raymond would “end up taking [sic] a seizure” if he missed his
medications “on the second day.” Appellant conceded that he remained in Chatham when he
could not reach Rigger on Saturday and, despite having no information concerning Raymond’s
whereabouts, he did not leave home until learning on Sunday evening that Raymond had
“wandered off.” Rather than notify the authorities, appellant and Small drove to Smith’s home
in Staunton to investigate whether Raymond was with his mother. Upon their arrival, appellant
called 911 because, in his words, “trespass papers” were outstanding against him and he needed
to “have evidence” that he was not trespassing. The police informed appellant and Small that
-4- Raymond was “safe” and had his medications. In September 2020, Raymond’s sister was
appointed as Raymond’s legal guardian.
In finding the evidence sufficient to convict, the court noted that appellant had “no
concrete plan” for Raymond’s return when dropping him off with Rigger. Further, the court
stressed that “it’s the number of days that lapsed before there was any location of [Raymond]
that evinces a willfulness.” It observed that “[t]his would be an entirely different case . . . if on
Saturday morning, they reached out to [Rigger] and made inquiries and then, when they didn’t
get a response, . . . [they had] driven . . . from Chatham to Augusta County and started
searching.”
Analysis
Code § 18.2-369(A) provides in pertinent part that “[a]ny responsible person who abuses
or neglects an incapacitated adult in violation of this section and the abuse or neglect does not
result in serious bodily injury or disease to the incapacitated adult is guilty of a Class 1
misdemeanor.” Code § 18.2-369(C) defines “neglect” as “the knowing and willful failure by a
responsible person to provide . . . care . . . which . . . endangers the safety of an incapacitated
adult.” Our Supreme Court has held that, “in the context of Code § 18.2-369, the word ‘willful’
describes conduct that [is] knowing or intentional, rather than accidental, and undertaken without
justifiable excuse, without ground for believing the conduct is lawful or with a bad purpose.”
Correll v. Commonwealth, 269 Va. 3, 13 (2005). It “contemplates an intentional, purposeful act
or omission in the care of an incapacitated adult by one responsible for that adult’s care.” Id.
Appellant contends that the evidence was insufficient to support his conviction because it
failed to prove the requisite intent. Specifically, he argues that the Commonwealth’s own
evidence showed that he believed Rigger had Raymond’s medication and that Rigger was an
appropriate temporary caregiver. The only evidence he cites in support of his contention is
-5- Small’s statement on cross-examination that she believed Raymond would be “safe” with Rigger
for “just [one] night” because Rigger had Raymond’s medications.
“In the absence of direct evidence of intent, willfulness must be established through
circumstances.” Lambert v. Commonwealth, 6 Va. App. 360, 363 (1988). See also Correll, 269
Va. at 13-14 (finding circumstances of an elderly victim’s demise sufficient to prove willful
neglect under Code § 18.2-369). “Circumstantial evidence is as acceptable to prove guilt as
direct evidence, and in some cases, such as proof of intent or knowledge, it is practically the only
method of proof.” Abdo v. Commonwealth, 64 Va. App. 468, 475-76 (2015) (quoting Parks v.
Commonwealth, 221 Va. 492, 498 (1980)). “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 [of guilt].’” Rams v.
Commonwealth, 70 Va. App. 12, 37 (2019) (alteration in original) (quoting Stamper v.
Commonwealth, 220 Va. 260, 273 (1979)).
The court made credibility determinations and rejected Small’s testimony and any
inference concerning appellant’s perceptions about Rigger. “Determining the credibility of
witnesses . . . is within the exclusive province of the [fact finder], which has the unique
opportunity to observe the demeanor of the witnesses as they testify.” Dalton v. Commonwealth,
64 Va. App. 512, 525 (2015) (first alteration in original) (quoting Lea v. Commonwealth, 16
Va. App. 300, 304 (1993)). “When ‘credibility issues have been resolved by the [fact finder] in
favor of the Commonwealth, those findings will not be disturbed on appeal unless plainly
wrong.’” Towler v. Commonwealth, 59 Va. App. 284, 291 (2011) (quoting Corvin v.
Commonwealth, 13 Va. App. 296, 299 (1991)). Based on our review of the record, we conclude
that the court’s credibility determinations are not plainly wrong.
-6- Furthermore, viewed as a whole, the evidence was sufficient to support the court’s
finding that appellant knowingly and willfully, and without justifiable excuse, endangered
Raymond’s health and safety by leaving him without critical seizure medication for over two
days. As the court noted, appellant left his son without developing any “concrete plan” for his
return. Appellant knew that Raymond had a history of “wandering off” and had strayed from
Rigger’s custody in the past. Appellant also agreed that Raymond was likely to have a seizure if
he missed two doses of his medications. Despite this knowledge, appellant did not leave
Chatham to search for Raymond until he received a message on Sunday evening that his son was
missing. Even then, appellant did not notify the police or social services; instead, he drove to
Smith’s house and only called 911 to “have evidence” that he was not trespassing. Appellant
waited until Monday to contact APS, the day that the agency sought an emergency order for
Raymond’s care. Based on Raymond’s history of wandering and the serious risks posed by his
seizure disorder, the court could reasonably conclude that appellant willfully neglected him when
he took no affirmative action for three days to locate his son or to confirm he had received the
medications required to prevent life-threatening seizures. See Wagoner v. Commonwealth, 63
Va. App. 229, 258-59 (2014) (holding that a defendant’s failure to provide necessary medical
care to a victim, despite awareness of the victim’s burns, constituted “willfulness” under Code
§ 18.2-369), aff’d on other grounds, 289 Va. 476 (2015).
Accordingly, the evidence was competent, credible, and sufficient to prove beyond a
reasonable doubt that appellant was guilty of misdemeanor abuse and neglect of an incapacitated
adult. The judgment of the trial court is affirmed.
Affirmed.
-7-