Sonja Fizer Hickson v. Commonwealth of VA

• Court: Court of Appeals of Virginia
• Decided: April 23, 2002
• Docket: 1869013
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Elder and Agee Argued at Salem, Virginia

SONJA FIZER HICKSON MEMORANDUM OPINION * BY v. Record Nos. 1205-01-3 and JUDGE G. STEVEN AGEE 1869-01-3 APRIL 23, 2002

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF BEDFORD COUNTY James W. Updike, Jr., Judge

Melissa W. Friedman (Anthony F. Anderson; Law Offices of Anthony F. Anderson, on briefs), for appellant.

Kathleen B. Martin, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Sonja Fizer Hickson (Hickson) was convicted in a Bedford

County circuit court bench trial of involuntary manslaughter, in

violation of Code § 18.2-36, and felony child abuse, in

violation of Code § 18.2-371.1(A). The trial court sentenced

Hickson to a term of five years incarceration on each

conviction, to be served concurrently and suspended after twelve

months in jail. On appeal, Hickson contends the Commonwealth's

evidence was not sufficient to convict her of either charge.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. For the following reasons, we disagree and affirm the

convictions.

I. BACKGROUND

As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

value, only those facts necessary to a disposition of this

appeal are recited.

A. THE INCIDENT

Hickson provided daycare services in her home for several

children, including thirteen-month-old Frances "Fran" Vermillion

("Fran" or "the child"). On February 12, 1998, Fran arrived at

Hickson's house just prior to 8:00 a.m. Fran had some

congestion but was otherwise in normal health. At approximately

8:05 a.m., Hickson telephoned the child's mother and said,

"something's wrong with Fran," and that the child had fallen and

was "acting funny." Hickson placed a telephone call to 9-1-1 at

8:09 a.m. She informed the dispatcher that the child had

tumbled "face first" from a chair.

The mother immediately returned to Hickson's house and

found her daughter lying limp on a child-size table in the

kitchen. She noticed her child had a small bump over her left

ear. When asked what had happened, Hickson said Fran had been

sitting in a chair at the child's table when she administered

- 2 - cough syrup to the child. 1 When Hickson turned around to place

the bottle of cough syrup on the counter she heard a "thump" and

found Fran lying on the kitchen floor. Hickson said she picked

up the child who cried and then went limp.

When paramedics arrived at Hickson's house at 8:23 a.m.,

they observed Fran to have a slow, irregular pulse, an increased

blood pressure and clinched teeth, an indication of a severe

head injury. Other than the bump over the child's left ear, the

paramedics observed no other body trauma, including no cuts or

bruises on the child's torso, arms or legs.

Fran was transported to the hospital where surgery was

performed to treat a medium-sized blood clot on the left side of

her brain. The child's prognosis post-surgery was poor, and her

condition deteriorated subsequently to "an unsurvivable injury."

The child's parents decided to remove Fran from the life support

system, and she died a short time later.

B. THE INVESTIGATORS' INTERVIEWS

Several investigators interviewed Hickson after Fran's

death. On February 13, 1998, Lieutenant Gardner of the Bedford

County Sheriff's Department interviewed Hickson who informed him

1 The medicine was an adult cough syrup, which was not recommended, even in small doses, for children under the age of 12 years old. Hickson administered the cough syrup without the authorization of the child's parents and contrary to the express written agreement between the parents and herself.

- 3 - that the child had fallen from a chair. She did not offer any

further explanation.

Anne Shupe, a child protective services investigator,

interviewed Hickson on March 19, 1998. Hickson informed Shupe

that the child had arrived at her house on the morning of the

incident and "fussed a little bit." She gave Fran some cough

syrup and then heard the child fall as she put the medicine away

after having rinsed some dishes at the sink. She picked the

child up and then Fran "went limp" in her arms.

On February 17, 1999, Special Agent McDowel of the Virginia

State Police interviewed Hickson. Initially, Hickson reiterated

her claim that the child had fallen from a small chair in the

kitchen. Later, however, Hickson said Fran had hit her head on

the floor four times. First, when the child threw herself onto

the floor after being administered the cough syrup. Second, the

child threw herself backwards when her diaper was being changed.

Next, when Hickson picked the child up, she "didn't have a good

hold on her and . . . dropped her." Lastly, Hickson picked up

the child, carried her into the kitchen and "she [unexplainably]

fell in there, too."

C. PHYSICIAN OPINIONS

Dr. Hugh Craft, director of pediatric intensive care at

Carilion Community Hospital, treated Fran. He opined she

suffered a severe head injury caused by blunt force impact.

Further, he opined to a reasonable degree of medical certainty,

- 4 - that this injury could not have been caused by falling from a

height of twenty-seven inches to a wood floor covered by

linoleum, by falling backward onto the floor from a sitting

position, by falling to the floor from the arms of a standing

adult, or by the cumulative effect of such falls. A "serious

application of force, [and] not repetitive, relatively small

applications of force . . . would cause this kind of injury."

It was his testimony that a fall from a height in excess of ten

feet would cause the massive degree of injury indicated.

Assistant Chief Medical Examiner Dr. William Massello

performed Fran's autopsy. Dr. Massello's initial diagnosis was

that Fran died from a blunt impact to the head resulting in an

acute subdural hematoma, with the injuries being caused by one

or more impacts to the head. However, after reviewing the

paramedic's report, which detailed the bump observed on the left

side of the child's head, Dr. Massello determined there had been

a separate impact to the left side of the head. The presence of

two separate impact sites led Dr. Massello to opine that a

non-accidental injury was likely, arising from "pushing,

slamming, dropping, blows to the head, smacking the head, [or]

kicking."

Dr. Massello acknowledged the injuries could have resulted

from a fall of less than ten feet, but he qualified that opinion

by noting that (1) the severity of the injuries rarely happen

from falling backward from a seated position and (2) other

- 5 - visible injuries would have resulted as well. He reasoned the

fact that the impacts occurred within a "very brief period of

time" was "more consistent with some purposeful manipulation of

some type [to] the child, [such as] throwing, pushing or

kicking." While Dr. Massello testified that a fall from

forty-eight inches could be consistent with the injuries he

found at the autopsy, "things like that happen about one to two

percent of the time."

D. THE TRIAL COURT'S FINDINGS

The trial court did not find any evidence that Hickson

acted with malice. Instead, it found that the Commonwealth had

"proven beyond a reasonable doubt that the death of this child

resulted accidentally, but as a result of criminal negligence"

and convicted Hickson of involuntary manslaughter. In addition,

the trial court convicted Hickson of felony child abuse.

II. ANALYSIS

On appeal, Hickson contends the evidence was insufficient

to convict her of involuntary manslaughter and felony child

abuse. We disagree.

A. STANDARD OF REVIEW

On review of a challenge to the sufficiency of the

evidence, we view the evidence in the light most favorable to

the Commonwealth, the prevailing party, and grant to it all

reasonable inferences fairly deducible therefrom. See

- 6 - Commonwealth v. Jenkins, 255 Va. 516, 521, 499 S.E.2d 263, 265

(1998). The credibility of the witnesses and the weight

accorded their testimony are matters solely within the province

of the fact finder. See Lane v. Commonwealth, 184 Va. 603,

610-11, 35 S.E.2d 749, 752 (1945). "The judgment of a trial

court sitting without a jury is entitled to the same weight as a

jury verdict and will not be set aside unless it appears from

the evidence that the judgment is plainly wrong or without

evidence to support it." Martin v. Commonwealth, 4 Va. App.

438, 443, 358 S.E.2d 415, 418 (1987) (citations omitted).

B. INVOLUNTARY MANSLAUGHTER

Hickson contends the trial court erred in convicting her of

involuntary manslaughter when "there was no direct evidence of

gross, wanton, or culpable conduct by [her] that evidence a

reckless disregard for human life" and the circumstantial

evidence relied upon by the Commonwealth "simply [did] not

exclude [her] innocence." We disagree and affirm the

conviction.

"Involuntary manslaughter is defined as the accidental killing of a person, contrary to the intention of the parties, . . . during the improper performance of some lawful act. The 'improper' performance of the lawful act, to constitute involuntary manslaughter, must amount to an unlawful commission of such lawful act, not merely a negligent performance. The negligence must be criminal negligence. The accidental killing must be the proximate result of a lawful act performed in a manner 'so gross,

- 7 - wanton, and culpable as to show a reckless disregard of human life.'"

Cable v. Commonwealth, 243 Va. 236, 240, 415 S.E.2d 218, 220

(1992) (internal citations omitted).

The elements of involuntary manslaughter may be proven by

circumstantial evidence. See Dowden v. Commonwealth, 260 Va.

459, 536 S.E.2d 437 (2000).

"When the evidence is wholly circumstantial . . . all necessary circumstances proved must be consistent with guilt and inconsistent with innocence and exclude every reasonable hypothesis of innocence. The chain of necessary circumstances must be unbroken. Nevertheless, it is within the province of the jury to determine what inferences are to be drawn from proved facts, provided the inferences are reasonably related to those facts."

Id. at 468, 536 S.E.2d at 441 (quoting Inge v. Commonwealth, 217

Va. 360, 366, 228 S.E.2d 563, 567-68 (1976)). Circumstantial

evidence is just as competent and is entitled to as much weight

as direct evidence, provided the circumstantial evidence is

sufficiently convincing to exclude every reasonable hypothesis

except that of guilt. Coleman v. Commonwealth, 226 Va. 31, 53,

307 S.E.2d 864, 876 (1983), cert. denied, 465 U.S. 1109 (1984).

The Commonwealth is only required to exclude the hypotheses of

innocence that flow from the evidence. Goins v. Commonwealth,

251 Va. 442, 467, 470 S.E.2d 114, 130, cert. denied, 519 U.S.

887 (1996).

- 8 - "The credibility of the witnesses and the weight accorded

the evidence are matters solely for the fact finder who has the

opportunity to see and hear that evidence as it is presented."

Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730,

732 (1995) (citations omitted). "In its role of judging witness

credibility, the fact finder is entitled to disbelieve the

self-serving testimony of the accused and to conclude that the

accused is lying to conceal his guilt." Marable v.

Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235

(1998) (citation omitted). Furthermore, on appeal, Hickson's

varying accounts of how the child was injured must be viewed in

the light most favorable to the Commonwealth. When so viewed,

these claims may be interpreted as mere fabrications to conceal

guilt. See Rollston v. Commonwealth, 11 Va. App. 535, 547, 399

S.E.2d 823, 830 (1991).

To prevail on appeal, Hickson must show that the facts, as

established in the record and viewed in the light most favorable

to the Commonwealth, would not permit a reasonable fact finder

to reject her proposed hypothesis of innocence. We find that

Hickson has failed to meet this burden. The fact that the

child's injuries occurred in a short period of time while she

was in the sole care of Hickson, when considered with the

overwhelming medical evidence and physician testimony supports

the trial court's verdict and excludes every reasonable

hypothesis of innocence as presented by the evidence.

- 9 - Hickson seems to base her hypothesis of innocence upon

Dr. Massello's testimony that it was possible for a fall from a

height of less than four feet to have caused Fran's fatal

injury. However, the medical examiner limited that possibility

to a "one to two percent" chance. "The other ninety-eight to

ninety-nine percent of the time it's from kicks, slams, blows

. . . automobile accidents, falling off roofs, things like

that."

As the trial court found, based on Hickson's own rendition

of Fran's chain of injuries, only the last impact, a fall from a

child's table, could have caused the fatal subdural hematoma.

Dr. Craft opined that the injuries could not have been

caused by the child hitting her head on Hickson's kitchen floor

after falling backward onto the floor from a sitting position as

initially claimed by Hickson. Dr. Craft further opined that if

the injuries had been caused by a fall, the fall would have had

to occur from a height in excess of ten feet. Additionally,

while Dr. Massello's initial review of the child's body allowed

for the possibility that the injuries were caused by the child

falling from a chair, his opinion after reviewing all the

evidence was that the injuries were more likely caused by

another means, especially since the child suffered no other

injuries or bruises. Dr. Massello could not determine the exact

means that caused the injuries, but he opined that the injuries

were likely caused by "pushing, slamming, dropping, blows to the

- 10 - head, [or] kicking," "some purposeful manipulation . . . of the

child." The physicians' opinions that the injuries could not

have been caused by the child falling onto or throwing herself

backward onto the floor casts doubt upon all of Hickson's

multiple versions of the events that occurred. See Christian v.

Commonwealth, 221 Va. 1078, 1081, 277 S.E.2d 205, 208 (1981)

(trial court entitled to accept doctor's opinion that it was

"extremely unlikely" defendant's child had been injured as

defendant suggested).

We hold that the evidence of record, when considered as a

whole, is fully sufficient to support the trial court's finding

that Hickson was guilty of involuntary manslaughter. "'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."'" Dowden, 260 Va. at 470, 536 S.E.2d at 443

(quoting Stamper v. Commonwealth, 220 Va. 260, 273, 257 S.E.2d

808, 818 (1979), cert. denied, 445 U.S. 972 (1980)). We,

therefore, affirm the conviction for involuntary manslaughter.

C. FELONY CHILD ABUSE

Hickson also challenges the sufficiency of the evidence to

convict her of felony child abuse. She contends the

Commonwealth failed to prove she acted willfully. We disagree.

Code § 18.2-371.1(A) provides, in pertinent part, that

"[a]ny . . . person responsible for the care of a child under

- 11 - the age of eighteen who by willful act or omission or refusal to

provide any necessary care for the child's health causes or

permits serious injury to the life or health of such child shall

be guilty of a Class 4 felony."

"Willful" generally means an act done with a bad purpose, without justifiable excuse, or without ground for believing it is lawful. See Richardson v. Commonwealth, 21 Va. App. 93, 99, 462 S.E.2d 120, 123 (1995). The term denotes "'an act which is intentional, or knowing, or voluntary, as distinguished from accidental.'" Snead v. Commonwealth, 11 Va. App. 643, 646, 400 S.E.2d 806, 807 (1991) (quoting United States v. Murdock, 290 U.S. 389, 394 (1933)). The terms "bad purpose" or "without justifiable excuse," while facially unspecific, necessarily imply knowledge that particular conduct will likely result in injury or illegality. See Murdock, 290 U.S. at 395-96.

Ellis v. Commonwealth, 29 Va. App. 548, 554, 513 S.E.2d 453, 456

(1999).

The factual evidence proved that the child sustained

injuries during a short time frame in which she was exclusively

within the care of Hickson. The principal issue at trial was

whether those injuries were the result of a willful act or

omission. Hickson argues that the Commonwealth's circumstantial

evidence on this element supports a reasonable hypothesis of

innocence and, therefore, the evidence does not rise to the

level of proof beyond a reasonable doubt. The suggested

reasonable hypothesis of innocence is that the injury resulted

from an accident. As previously discussed, in order to prevail

- 12 - on appeal, Hickson must show that the facts, as established in

the record and viewed in the light most favorable to the

Commonwealth, would not permit a reasonable fact finder to

reject her proposed hypothesis.

Here, the evidence proved that the child sustained injuries

during the time she was in Hickson's sole care. The evidence

further established that the injuries were inconsistent with a

simple fall from a chair or the child throwing herself onto the

floor. Instead, to a reasonable degree of medical certainty,

the injuries were consistent with a fall from a height in excess

of ten feet or associated with abuse. Further, the evidence

proved that Hickson presented multiple accounts regarding how

the child sustained the injuries.

Considering the size and age of the child and amount of

force necessary to cause the child's injuries, the trial court

could reasonably reject the hypothesis that an accident caused

the child's injury. This is particularly true, as noted above,

in the way Hickson described Fran's injury to have occurred.

The trial court was entitled to determine that the medical

opinions excluded an accident as a reasonable explanation for

the injury. The trial court was further entitled to disbelieve

Hickson's account and assume she was lying to conceal her guilt.

The trial court could reasonably determine from all the

circumstances that Hickson intentionally inflicted the injury

upon the child to the exclusion of any other hypothesis. "The

- 13 - facts . . . admitted of inferences of guilt more probable and

natural than any reasonable hypothesis of innocence, and

warranted" the trial court to reject the hypothesis of

accidental injury. Toler v. Commonwealth, 188 Va. 774, 782, 51

S.E.2d 210, 214 (1949).

The Commonwealth presented sufficient evidence for the

trial court to exclude any hypothesis that the injury resulted

from an accident and that Hickson acted "willfully" within the

meaning of Code § 18.2-371.1(A). Accordingly, the conviction is

affirmed.

- 14 -