Christian v. Com., 801265

• Decision Date: 24 April 1981
• Docket Number: No. 801265,801265
• Citation: 277 S.E.2d 205,221 Va. 1078
• Court: Virginia Supreme Court
• Parties: Iris Denise CHRISTIAN v. COMMONWEALTH of Virginia. Record

Page 205

277 S.E.2d 205

221 Va. 1078

Iris Denise CHRISTIAN v. COMMONWEALTH of Virginia.

Record No. 801265.

Supreme Court of Virginia.

April 24, 1981.

Timothy J. Dolan, Richmond, for appellant.

Robert H. Anderson, III, Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellee.

Before CARRICO, C. J., and HARRISON, COCHRAN, POFF, COMPTON and THOMPSON, JJ.

POFF, Justice.

Iris Denise Christian, 17 years of age, mother of a two-year-old son and a six-month-old daughter, was tried under an indictment charging that she "did feloniously and unlawfully and maliciously cause bodily injury to (her daughter) with intent to maim, disfigure, disable or kill her" in violation of Code § 18.2 51. Convicted by the trial court sitting without a jury, she was sentenced to a term of 10 years in the penitentiary with five years suspended on condition of good behavior for 20 years.

In August 1979, the defendant placed the infant in a licensed child day care facility. The driver of a "Tiny Angels" bus and "two or three aides" picked the child up at her home in the mornings and delivered her to the nursery where she remained until the late afternoon hours in the care of Barbara Vaughan and two assistants. On the morning of November 29, 1979, as Ms. Vaughan was changing the infant's diaper, the child "gave ... a terrible startled scream". Since she had "appeared all right" when she left the nursery the previous afternoon, Ms. Vaughan had her admitted to the emergency room at the Medical College of Virginia.

An examination performed by Dr. Leslie Ann Price, a pediatrics resident, revealed a "mild bruise above the left eye", a pale, "oval scar" beneath the left eye, an "old healing fracture of the left seventh rib", a "new fracture of the left femur", and a "new fracture of the lower bone of the right" leg. Dr. Price testified that the oval scar was "consistent with the shape of a cigarette burn or some other round oval break in the skin of more than a few weeks duration." She was not "absolutely sure that a cigarette burn caused that scar" and acknowledged that it "possibly" could have resulted from a fall. She said that "a substantial amount of force (was) required to break the (rib) and a two year old child would not be capable of exerting that much force." Dr. Price described the leg injuries as "buckle fracture(s)" and the causative trauma as a "compression and twisting force". She felt that it was "extremely unlikely" that the fractures resulted from a fall from bed.

Ms. Vaughan testified further that she had once observed a "little red dot" in one of the infant's eyes and "a healing burn or wound which is round like a cigarette" under the eye. She said that the defendant had never told her about any accident or injury suffered by the child.

Steve Dalton, the investigating officer, interviewed the defendant the day after her daughter was hospitalized and on several other occasions. Dalton testified that she told him in the first interview that "she was the only one that had custody of the child" the night of November 28, that "within the past two weeks the child had fallen off the bed at its grandmother's home", and that "the older child had sat on the baby" sometime before that. Later, when Dalton made the arrest, the defendant repeated what she had told him in the first interview.

Called as a defense witness, Dr. Joyce L. Whitaker, a pediatrician, testified that the defendant had brought her baby to her on five occasions, the last on November 12, 1979. Dr. Whitaker treated her for gastritis and respiratory and ear infections and hospitalized her for 12 days for "an upper GI study". Dr. Whitaker said that the defendant "was very good about keeping follow-up visits". During the time the child was her patient, she was never treated for a burn or fractures.

The defendant's father, who had lived with his daughter and grandchildren since November 1, 1979, left for work at 10:45 p. m. on November 28. He testified that the defendant "treats both of (her children) like a mother kind." He never saw her "get mad at either of them", "strike" them, or "act violently" toward them.

Testifying in her own behalf, the defendant denied that she had injured her daughter or that she had been aware she had suffered any injuries. She said that she did not smoke and that the scar beneath her daughter's eye was caused by a scratch. "Babies scratch themselves," she said, "and I assumed she scratched herself." She acknowledged that she and her children were alone in the house after her father left for work the night of November 28.

Challenging the sufficiency of the evidence to support her conviction, the defendant first contends that the Commonwealth failed to prove the "requisite criminal intent to maim, disfigure, disable, or kill" and, hence, failed to establish the corpus delicti. In effect, the defendant argues that the evidence is consistent with the possibility that her daughter's injuries were caused by accidental means.

Considering the mens rea contemplated by the mayhem statute, we have said:

"Malice inheres in the doing of a wrongful act intentionally, or without just cause or excuse, or as a result of ill will. It may be directly evidenced by words, or inferred from acts and conduct which necessarily result in injury."

Dawkins v. Commonwealth, 186 Va. 55, 61, 41 S.E.2d 500, 503 (1947). Quoting the comment in Roark v. Commonwealth, 182 Va. 244, 250, 28 S.E.2d 693, 695-96 (1944), that an unarmed assault "may be attended with such circumstances of violence and brutality that an intent to kill will be presumed", we found the inference...