Correll v. Com., Record No. 040746.

• Decision Date: 14 January 2005
• Docket Number: Record No. 040746.
• Citation: 269 Va. 3,607 S.E.2d 119
• Parties: Shirley P. CORRELL v. COMMONWEALTH OF VIRGINIA
• Court: Virginia Supreme Court

607 S.E.2d 119

269 Va. 3

Shirley P. CORRELL v. COMMONWEALTH OF VIRGINIA

Record No. 040746.

Supreme Court of Virginia.

January 14, 2005.

John S. Edwards (Michelle C.F. Derrico, on briefs), Roanoke, for appellant.

Amy L. Marshall, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: All the Justices.

OPINION BY Chief Justice LEROY R. HASSELL, SR.

I.

Shirley P. Correll was indicted by a Bedford County grand jury for the murder of her incapacitated mother, Nellie S. Paxton, and felonious abuse or neglect of Paxton that resulted in serious bodily injury or disease to her in violation of Code §§ 18.2-33 and -369. At the conclusion of a bench trial, the circuit court acquitted Correll of the murder charge, but convicted her of felony neglect.¹ The court fixed her punishment at two years in the penitentiary, suspended upon the service of 30 days in jail. The Court of Appeals affirmed the judgment of the circuit court, Correll v. Commonwealth, 42 Va.App. 311, 591 S.E.2d 712 (2004), and Correll appeals. Correll challenges the sufficiency of the evidence to sustain the conviction.

II.

Applying well-established principles of appellate review, we will consider the evidence and all reasonable inferences fairly deducible therefrom in the light most favorable to the Commonwealth, the prevailing party below. Zimmerman v. Commonwealth, 266 Va. 384, 386, 585 S.E.2d 538, 539 (2003); Phan v. Commonwealth, 258 Va. 506, 508, 521 S.E.2d 282, 282 (1999).

Nellie Paxton lived in Bedford County. In 1991, she began to lose weight, and she refused to eat. Dr. Donald B. Nolan, a neurologist, examined Paxton that year. Six months before her visit with Nolan, Paxton had experienced episodes of confusion, "had passed out, and a CAT scan had shown that she had possibly had a right-sided, right hemisphere stroke." When Dr. Nolan examined her, he "was alarmed at her general appearance." He suggested that a physician who practices internal medicine examine Paxton. She was examined and admitted to a hospital for treatment for weight loss and anemia. Paxton's condition improved, and she gained weight. Paxton was able to conduct her affairs.

In 1992, Dr. Nolan noted that Paxton "began to show signs of Parkinson's disease." She also began to experience hallucinations, and she may have had a form of dementia "which mimics Alzheimer's and has Parkinson's as part of it."

Dr. Nolan did not monitor Paxton's nutritional status. However, he testified that: "She always looked terrible. She just was emaciated. And her appearance, that's just her. It was her normal body habitus, I suppose. [Her physicians] really never found a good cause for why she had lost the weight when I first saw her. She was just a very skinny, thin lady."

In 1997, Shirley Correll was appointed by the circuit court as the legal guardian for her mother. That same year, Paxton fell and broke her hip. She was admitted to a hospital for treatment. The medical personnel who treated Paxton explained to Correll and her sister, Carol P. Gray, that Paxton "would need to be up and moving and not lying in bed" to prevent complications such as pneumonia and decubiti.

Between 1997 and February 2000, Paxton continued to lose weight. In January 2000, Dr. Adel Salama, a physician who practices internal medicine, examined and treated Paxton. He diagnosed her condition as advanced Parkinsonism, multi-infarct dementia, hypertension, atrial fibrillation, osteoarthritis, along with early stage 2 decubiti. Dr. Salama described decubiti, commonly referred to as bedsores, as follows:

"Decubiti is a break in the layer of the skin. And there are four stages. One stage, first stage is just redness in the skin.... [w]hich when you push on it, it does not blanch. Stage 2, early Stage 2 is a breakdown in the skin layers. It can involve the epidermis, which is a superficial layer of the skin, or it can go down to the dermis, which is a deeper layer of the skin. Or Stage 3 is involving the subcutaneous tissue under the skin. And Stage 4 is involving down to the bone."

Paxton had one stage 2 decubitus that was located on her lower back.

Dr. Salama prescribed the use of a Duoderm patch to treat the decubitus. The Duoderm patch is a hydrochloride material that is placed on the decubitus and helps the regeneration of the skin cells. Dr. Salama spoke with Correll regarding the care and health needs of Paxton, who was predisposed to decubiti.

In January 2000, Dr. Salama did not observe any physical signs or symptoms that indicated to him that Paxton was malnourished. Her albumin was checked on January 17, 2000. Paxton's albumin level was in the normal range of 3.8 to 5.2. According to Dr. Salama, Paxton's albumin level indicated that she had a "good nutritional status."

Dr. Salama told Correll to bring Paxton to his office for another examination "[i]n six months. Earlier, if there is any problem." Dr. Salama testified that he would have expected to examine Paxton sooner than six months if Paxton "lost more weight, if the decubiti is not getting better, and so on." Even though Dr. Salama's office made an appointment for him to examine Paxton in July 2000, "[t]hey called and cancelled it." Dr. Salama stated: "I don't know who called because I'm not the one who cancelled the appointment."

Carol Gray, who was estranged from her sister, Correll, saw her mother in February 2000. Gray stated that Paxton "looked worse. She lost a lot more weight." When Gray saw her mother on Mother's Day in May 2000, Paxton had "lost more weight.... She was beginning to really look bad." Gray saw her mother again in August 2000. "She just had really lost down until she was — looked like a skeleton. You know, she was just really small." Gray next saw Paxton at a wedding in September 2000. Her mother's condition had worsened.

On September 18, 2000, Correll made a telephone call to Dr. Salama's office. Correll was very concerned about Paxton's condition, and Dr. Salama's employees scheduled an appointment for 2:30 that afternoon. Ten minutes after Correll made this appointment, she decided to contact emergency medical personnel so that her mother could be transported immediately to the emergency room of a hospital.

Sherry W. Weeks, a certified emergency medical technician and a member of the rescue squad in Bedford County, responded to the Paxton residence. Paxton was seated at a kitchen table. Weeks assessed her condition as follows:

"Immediately upon our arrival, [Paxton] was severely dehydrated.... She was unresponsive, other than to painful stimuli, which means that we would basically have to pinch [her] before we could get any response out of her at all. She was severely dehydrated. Her eyes were very sunken in. Her cheek bones were sunken. Just severely dehydrated. Her pulse was low. Her blood pressure was low. She was pretty close to going into shock."

Correll informed Weeks that "her mother had not eaten for the last day and had gotten dehydrated." Weeks testified, without objection, that her physical assessment of Paxton was not consistent with the history that Correll had provided. Weeks stated that "the condition that Ms. Paxton was in was not consistent with only being dehydrated for a day." Dixie Daniel, Paxton's primary nurse in the emergency room of Carilion Roanoke Memorial Hospital, testified that Paxton's "appearance, her thinness, the dryness of her skin is something that you would usually see taking longer than two days to occur." Daniel observed a decubitus on Paxton's right hip, and she stated: "It ranked up there with some of the worst ones that I've seen."

Dr. Salama treated Paxton at the emergency room of the hospital. He testified that she had "advanced Parkinsonism, dementia, dehydration, [and] cachexia." He defined cachexia as undernutrition. Dr. Salama described Paxton's undernutrition as "[v]ery severe." He stated that it was unlikely that this degree of undernutrition would have developed during the course of a weekend.

Paxton suffered moderate to severe dehydration, and she had stage 3 and early stage 4 decubiti. Dr. Salama testified that stage 3 decubiti developed "over days, weeks — to weeks, but not hours or not 24. I don't think that I have ever seen Stage 4 or Stage 3 decubiti developing over 48 hours." Paxton also suffered from bacteremia, a condition in which bacteria is present in the blood. The source of the bacteria may have been the presence of decubiti on Paxton's body. The presence of the bacteremia indicated to Dr. Salama that the decubiti had not been treated properly.

Dr. Salama stated that Paxton's albumin level upon admission to the hospital was 2.6. This level was a significant and drastic change from Paxton's albumin level that existed when Dr. Salama treated her in January 2000. Paxton's low albumin level indicated that "she [was] undernourished." Dr. Salama testified that Paxton's decubiti, severe dehydration, and undernourishment posed a significant threat to her life or health. He also stated that had Paxton merely refused to eat or drink water for only two days, this limited deprivation would not have affected her albumin level. He said that "albumin [has] a long life. To make a change, it needs twenty-one days."

Various nurses who rendered care to Paxton when she was a patient in the hospital testified at trial. Tracy A. Mann stated that Paxton's "condition upon admission ... was shocking.... She was morbidly emaciated and covered with decubitus or bedsores." Mann testified, without objection, that two of the decubiti present on Paxton's body would have taken a month or more to develop because they were black in appearance and "had hardened." Mann also testified without objection that Paxton's "oral mucous membranes were dry and her tongue was cracked, which is consistent with dehydration." Mann stated that "[b]ased on her physical appearance, [Paxton] was severely malnourished."

Correll informed Martha Anderson, a...