COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Kelsey Argued at Alexandria, Virginia
RUSSELL DALE FUNK, SR. MEMORANDUM OPINION * BY v. Record No. 1821-02-4 JUDGE RUDOLPH BUMGARDNER, III JULY 8, 2003 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF WINCHESTER John E. Wetsel, Jr., Judge
S. Jane Chittom, Appellate Defender (Felipita Athanas, Appellate Counsel; Public Defender Commission, on briefs), for appellant.
Stephen R. McCullough, Assistant Attorney General (Jerry W. Kilgore, Attorney General; John H. McLees, Senior Assistant Attorney General, on brief), for appellee.
A jury convicted Russell Dale Funk, Sr. of the malicious
wounding of his six-week-old son. He maintains the trial court
erred in excluding expert testimony, in denying his motion for a
continuance, and in finding the evidence sufficient to prove
intent. Finding no error, we affirm.
The defendant was caring for the six-week-old victim for
two days while the mother was hospitalized. He took the child
to see the mother in the hospital, but the child's appearance so
alarmed a nurse on duty at the hospital that she took the child
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. to the emergency room. The child was in severe shock, had
bruises on his head, chest, arm and legs, and was bleeding in
his head. The emergency room doctor testified that "severe
shaking" caused the trauma because the victim had no fractured
bones. After transfer to the University of Virginia, the
attending specialist described the injuries as widespread brain
damage with significant bleeding and swelling in the brain. The
doctor determined the victim suffered from non-accidental
trauma, "shaken baby syndrome," caused by severe force. The
injuries were too widespread to have been caused by any single
blunt trauma and were inflicted during the two-day period that
the defendant cared for the child. They would leave the victim
severely retarded.
The defendant was mentally retarded with an IQ of 65. He
maintained the injury was an accident, but gave conflicting
statements to the police. He first denied shaking the victim
and claimed a three-year-old child hit the victim with a toy.
Later, the defendant admitted he shook the victim three times
while holding his shoulders and he might have been "too rough."
The defendant filed a motion that he intended to introduce
"evidence of an insanity defense and/or a defense of lack of
mens rea." The Commonwealth responded with a motion in limine
to exclude expert testimony offered to show the defendant's lack
of mens rea or diminished capacity. The trial court considered
the motion in limine immediately before the trial began. The - 2 - defendant proffered the report of Bernard J. Lewis, Ph.D., a
licensed clinical psychologist, who had performed a parental
capacity and psychological evaluation for the Department of
Social Services. His report concluded:
The results of this evaluation suggests any harm Mr. Funk may have inflicted upon his infant child, Jesse, was likely due to a lack of understanding of the fragility of infants, rather than to any intentional or grossly careless act. Mr. Funk simply does not understand how easily infants can be harmed, and it is quite conceivable that he would play with a one-month-old child in the same manner he would play with a one-year-old child.
The trial court ruled the opinion was not admissible under
Stamper v. Commonwealth, 228 Va. 707, 717, 324 S.E.2d 682, 688
(1985). The trial court also ruled the doctor would be
permitted to testify on the issue of the reliability of the
defendant's confession within the limits established in
Pritchett v. Commonwealth, 263 Va. 182, 187, 557 S.E.2d 205, 208
(2002).
The defendant argues Stamper did not apply because the
evidence was not evidence of diminished capacity. He maintains
the evidence showed he had limited mental capacity and a limited
understanding of the consequences of his conduct. The evidence
did not relate to sanity but to the defendant's ignorance due to
his limited mental capacity and limited understanding of how to
handle infants.
- 3 - "The admission of expert testimony is committed to the
sound discretion of the trial judge, and we will reverse a trial
court's decision only where that court has abused its
discretion." Brown v. Corbin, 244 Va. 528, 531, 423 S.E.2d 176,
178 (1992). In the absence of an insanity plea, "evidence of a
criminal defendant's mental state at the time of the offense is
. . . irrelevant to the issue of guilt." Stamper, 228 Va. at
717, 324 S.E.2d at 688.
In Peeples v. Commonwealth, 30 Va. App. 626, 519 S.E.2d 382
(1999) (en banc), the defendant was convicted of aggravated
malicious wounding. He argued the trial court erred in
excluding expert testimony that due to his mental retardation
"'he has extreme difficulty correctly interpreting social
situations . . . and reacts inappropriately.'" Id. at 629, 324
S.E.2d at 383 (citation omitted). He claimed the evidence was
"admissible to prove his mental condition and his perception of
the situation that he confronted." Id. at 630, 519 S.E.2d at
384. This Court held the evidence was inadmissible because the
testimony that the defendant misunderstood social situations was
intended to reduce his criminal responsibility and was not
relevant to prove a defense. Id. at 634, 519 S.E.2d at 385.
In this case, the defendant sought to introduce opinion
testimony for the same reasons attempted in Peeples. He sought
to establish that he did not fully comprehend the fragility of
the victim or the consequences of his conduct due to his mental - 4 - retardation. Absent an insanity defense, the trial court cannot
consider expert opinion of a defendant's mental state. "[T]here
is no sliding scale of insanity." Stamper, 228 Va. at 717, 324
S.E.2d at 688. The trial court did not err in excluding the
proffered opinion.
The defendant moved for a continuance after the trial court
granted the motion in limine limiting the expert's testimony.
The defendant explained that he needed a continuance to "make a
proper presentation in open Court that will enable the Defendant
to demonstrate his mental abilities." The trial court denied a
continuance.
"Whether to grant or deny a continuance of a trial is a
matter that lies within the sound discretion of the trial court,
and its ruling will not be reversed on appeal unless it is
plainly wrong." Cardwell v. Commonwealth, 248 Va. 501, 508, 450
S.E.2d 146, 151 (1994). "[A]bsent a showing of prejudice to a
defendant by the denial of a continuance, an appellate court
will not find that a trial court abused its discretion." Id. at
509, 450 S.E.2d at 151.
The defendant made the motion for a continuance in response
to a pretrial evidentiary ruling just as the jury trial was
scheduled to begin. The denial was typical of last minute
preliminaries that the defendant could anticipate.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Kelsey Argued at Alexandria, Virginia
RUSSELL DALE FUNK, SR. MEMORANDUM OPINION * BY v. Record No. 1821-02-4 JUDGE RUDOLPH BUMGARDNER, III JULY 8, 2003 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF WINCHESTER John E. Wetsel, Jr., Judge
S. Jane Chittom, Appellate Defender (Felipita Athanas, Appellate Counsel; Public Defender Commission, on briefs), for appellant.
Stephen R. McCullough, Assistant Attorney General (Jerry W. Kilgore, Attorney General; John H. McLees, Senior Assistant Attorney General, on brief), for appellee.
A jury convicted Russell Dale Funk, Sr. of the malicious
wounding of his six-week-old son. He maintains the trial court
erred in excluding expert testimony, in denying his motion for a
continuance, and in finding the evidence sufficient to prove
intent. Finding no error, we affirm.
The defendant was caring for the six-week-old victim for
two days while the mother was hospitalized. He took the child
to see the mother in the hospital, but the child's appearance so
alarmed a nurse on duty at the hospital that she took the child
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. to the emergency room. The child was in severe shock, had
bruises on his head, chest, arm and legs, and was bleeding in
his head. The emergency room doctor testified that "severe
shaking" caused the trauma because the victim had no fractured
bones. After transfer to the University of Virginia, the
attending specialist described the injuries as widespread brain
damage with significant bleeding and swelling in the brain. The
doctor determined the victim suffered from non-accidental
trauma, "shaken baby syndrome," caused by severe force. The
injuries were too widespread to have been caused by any single
blunt trauma and were inflicted during the two-day period that
the defendant cared for the child. They would leave the victim
severely retarded.
The defendant was mentally retarded with an IQ of 65. He
maintained the injury was an accident, but gave conflicting
statements to the police. He first denied shaking the victim
and claimed a three-year-old child hit the victim with a toy.
Later, the defendant admitted he shook the victim three times
while holding his shoulders and he might have been "too rough."
The defendant filed a motion that he intended to introduce
"evidence of an insanity defense and/or a defense of lack of
mens rea." The Commonwealth responded with a motion in limine
to exclude expert testimony offered to show the defendant's lack
of mens rea or diminished capacity. The trial court considered
the motion in limine immediately before the trial began. The - 2 - defendant proffered the report of Bernard J. Lewis, Ph.D., a
licensed clinical psychologist, who had performed a parental
capacity and psychological evaluation for the Department of
Social Services. His report concluded:
The results of this evaluation suggests any harm Mr. Funk may have inflicted upon his infant child, Jesse, was likely due to a lack of understanding of the fragility of infants, rather than to any intentional or grossly careless act. Mr. Funk simply does not understand how easily infants can be harmed, and it is quite conceivable that he would play with a one-month-old child in the same manner he would play with a one-year-old child.
The trial court ruled the opinion was not admissible under
Stamper v. Commonwealth, 228 Va. 707, 717, 324 S.E.2d 682, 688
(1985). The trial court also ruled the doctor would be
permitted to testify on the issue of the reliability of the
defendant's confession within the limits established in
Pritchett v. Commonwealth, 263 Va. 182, 187, 557 S.E.2d 205, 208
(2002).
The defendant argues Stamper did not apply because the
evidence was not evidence of diminished capacity. He maintains
the evidence showed he had limited mental capacity and a limited
understanding of the consequences of his conduct. The evidence
did not relate to sanity but to the defendant's ignorance due to
his limited mental capacity and limited understanding of how to
handle infants.
- 3 - "The admission of expert testimony is committed to the
sound discretion of the trial judge, and we will reverse a trial
court's decision only where that court has abused its
discretion." Brown v. Corbin, 244 Va. 528, 531, 423 S.E.2d 176,
178 (1992). In the absence of an insanity plea, "evidence of a
criminal defendant's mental state at the time of the offense is
. . . irrelevant to the issue of guilt." Stamper, 228 Va. at
717, 324 S.E.2d at 688.
In Peeples v. Commonwealth, 30 Va. App. 626, 519 S.E.2d 382
(1999) (en banc), the defendant was convicted of aggravated
malicious wounding. He argued the trial court erred in
excluding expert testimony that due to his mental retardation
"'he has extreme difficulty correctly interpreting social
situations . . . and reacts inappropriately.'" Id. at 629, 324
S.E.2d at 383 (citation omitted). He claimed the evidence was
"admissible to prove his mental condition and his perception of
the situation that he confronted." Id. at 630, 519 S.E.2d at
384. This Court held the evidence was inadmissible because the
testimony that the defendant misunderstood social situations was
intended to reduce his criminal responsibility and was not
relevant to prove a defense. Id. at 634, 519 S.E.2d at 385.
In this case, the defendant sought to introduce opinion
testimony for the same reasons attempted in Peeples. He sought
to establish that he did not fully comprehend the fragility of
the victim or the consequences of his conduct due to his mental - 4 - retardation. Absent an insanity defense, the trial court cannot
consider expert opinion of a defendant's mental state. "[T]here
is no sliding scale of insanity." Stamper, 228 Va. at 717, 324
S.E.2d at 688. The trial court did not err in excluding the
proffered opinion.
The defendant moved for a continuance after the trial court
granted the motion in limine limiting the expert's testimony.
The defendant explained that he needed a continuance to "make a
proper presentation in open Court that will enable the Defendant
to demonstrate his mental abilities." The trial court denied a
continuance.
"Whether to grant or deny a continuance of a trial is a
matter that lies within the sound discretion of the trial court,
and its ruling will not be reversed on appeal unless it is
plainly wrong." Cardwell v. Commonwealth, 248 Va. 501, 508, 450
S.E.2d 146, 151 (1994). "[A]bsent a showing of prejudice to a
defendant by the denial of a continuance, an appellate court
will not find that a trial court abused its discretion." Id. at
509, 450 S.E.2d at 151.
The defendant made the motion for a continuance in response
to a pretrial evidentiary ruling just as the jury trial was
scheduled to begin. The denial was typical of last minute
preliminaries that the defendant could anticipate. He was not
entitled to regroup after an adverse ruling disrupted his
preferred strategy. The defendant did call the expert as a - 5 - witness, and he testified about the defendant's IQ and his
intellectual functioning. The defendant offered no clear
explanation at trial or on appeal for needing the continuance or
for being harmed without it. The trial court was within the
limits of its discretion when it denied a continuance.
The defendant maintains the Commonwealth failed to prove he
intended to maim, disfigure, disable, or kill the victim. "The
specific intent to commit [a crime] may be inferred from the
conduct of the accused if such intent flows naturally from the
conduct proven." Wilson v. Commonwealth, 249 Va. 95, 101, 452
S.E.2d 669, 674 (1995). See also Tarpley v. Commonwealth, 261
Va. 251, 256, 542 S.E.2d 761, 764 (2001) (intent may be inferred
from defendant's conduct and statements).
The victim, a six-week-old child, suffered permanent brain
damage from non-accidental, severe force. He was under the sole
care of the defendant, who initially blamed the injury on a toy.
The defendant later admitted he shook the victim three times and
may have been too rough. The jury heard and saw the officer
recount the defendant's statement and demonstration of how he
shook the child. The jury was not required to accept the
defendant's contention that he did not intend to hurt the victim
or that the injury was an accident. Rollston v. Commonwealth,
11 Va. App. 535, 548, 399 S.E.2d 823, 831 (1991) (defendant's
false statements are evidence of guilt).
- 6 - The jury could reasonably infer from the violence necessary
to cause such severe and extensive injury that the defendant
intended that which he accomplished. The jury determines the
inferences to be drawn from proven facts, "provided the
inferences are reasonably related to those facts." Inge v.
Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 568 (1976).
"'In determining the probable consequences of an aggressor'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.'" Webber v. Commonwealth, 26
Va. App. 549, 565, 496 S.E.2d 83, 90 (1998) (grown man striking
29-day-old infant sufficient to prove malice for second-degree
murder) (quoting Campbell v. Commonwealth, 12 Va. App. 476, 485,
405 S.E.2d 1, 5 (1991) (en banc)).
"[T]he relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt." Jackson v. Virginia,
443 U.S. 307, 319 (1979). The evidence permitted a finding
beyond a reasonable doubt that the defendant intended to maim,
disfigure, disable, or kill the victim. Accordingly, we affirm
the conviction.
Affirmed.
- 7 -