Noakes v. Com.

• Decision Date: 18 August 2009
• Docket Number: No. 0295-08-2.,02 August 0295
• Citation: 681 S.E.2d 48,54 Va. App. 577
• Parties: Elizabeth Pollard NOAKES v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

681 S.E.2d 48

54 Va. App. 577

Elizabeth Pollard NOAKES v. COMMONWEALTH of Virginia.

Record No. 0295-08-2.

Court of Appeals of Virginia, Richmond.

August 18, 2009.

James T. Maloney (Maloney & David, P.L.C., on brief), Falls Church, for appellant.

Joshua M. Didlake, Assistant Attorney General (William C. Mims, Attorney General, on brief), for appellee.

Present: FELTON, C.J., ELDER, FRANK, HUMPHREYS, KELSEY, McCLANAHAN, HALEY, PETTY, BEALES, POWELL and ALSTON, JJ.

UPON REHEARING EN BANC

BEALES, J.

Elizabeth Noakes (appellant) was convicted after a bench trial of involuntary manslaughter in the death of fifteen-month-old Noah Colassco (Noah). On appeal, appellant argues that the Commonwealth presented insufficient evidence that she acted with criminal negligence, an essential element of involuntary manslaughter. A divided panel of this Court disagreed with appellant's argument, holding that the evidence was sufficient to prove criminal negligence. See Noakes v. Commonwealth, No. 0295-08-2, 2009 WL 62852, 2009 Va.App. LEXIS 12 (Va.Ct.App. Jan. 13, 2009). We granted appellant's petition for rehearing en banc and stayed the mandate of the panel's decision. On rehearing en banc, we now lift the stay and affirm appellant's involuntary manslaughter conviction for the reasons stated below.

I. BACKGROUND

On October 18, 2006, Noah was placed in the care of appellant, who ran a daycare business out of her home. Appellant placed Noah and at least one other child in cribs located in a spare bedroom.¹ The surface of the crib was raised from the floor by four legs, which continued upward until they met hard plastic supports at the top of each corner. The four "walls" of the crib were made of a mesh material. The rectangular crib was placed in a corner of a loft bedroom, at the intersection of the bedroom's back wall and the right side wall; therefore, one long side of the crib and one short side of the crib abutted those walls. The other short side of Noah's crib was situated within inches of another crib, leaving the remaining long side ("the front side") as the only side of the crib exposed to the remainder of the bedroom.

Appellant put Noah down for a nap at around noon, but Noah refused to sleep. Noah's refusal to sleep was a common occurrence while he was in appellant's care. Appellant had tried several "traditional" methods to get Noah to sleep, but those were unsuccessful. Appellant determined that the source of the problem was Noah's ability and desire to stand in his crib.

In an attempt to prevent Noah from standing up, appellant devised a plan to cover the top of the crib with cardboard and fabric and to place a thirty-three-pound, folded-up dog crate on top of the cardboard. In implementing her plan, the cardboard and fabric covered the entire top of the crib, and the dog crate covered half of the width of the crib. Appellant placed the dog crate so that it covered the front side of the crib, where Noah usually stood.

Before leaving the dog crate there with Noah inside the crib, appellant removed Noah from the crib, placed the crate on top of the crib, and then shook the crib to determine if the crate would easily fall down into the crib. Satisfied that the dog crate would not fall into the crib, appellant removed the crate momentarily and placed Noah back in his crib. Appellant then placed the cardboard and fabric on top of the crib in such a way as to create an "overhang" to prevent Noah from sticking his fingers between the crib and the dog crate, thereby potentially injuring his fingers by getting them stuck in the dog crate. Appellant also considered the cardboard covering (padded with the fabric) to be a buffer should Noah hit his head while attempting to stand. Appellant then placed the dog crate on the crib, inspected the arrangement with Noah inside, and went back and forth periodically between her bedroom and the loft bedroom to monitor the situation and see if Noah had fallen asleep.

Despite these efforts, Noah still refused to sleep. Instead, he began pressing his face against the front side of the crib's mesh wall. To stop this behavior, appellant placed a large nylon toy against the front side of the crib, so that Noah could not look out of the crib. Doing this also essentially prevented appellant from being able to see into the crib to observe Noah. Appellant then assumed Noah went to sleep. She left the room at approximately 1:00 p.m.

Appellant did not return to the bedroom until approximately 3:30 p.m., when she attended to another child. She later told the police that she then left the room without checking on Noah.

A few minutes after 4:00 p.m., appellant returned to wake Noah from his nap. She saw Noah standing in the crib with his head, neck, and hands over the side of the crib. His neck was wedged between the cardboard covering and the wall of the front side of the crib. The dog crate, still on top of the covering, held Noah in this position. As appellant demonstrated in the videotape recorded following Noah's death, Noah apparently lifted the cardboard covering enough to cause the dog crate to slide backwards. Noah apparently then stuck his head over the front-left corner and progressively slid along the front side's rail until he was wedged under the thirty-three-pound dog crate near the center of the front side. Noah became trapped as a result.

Noah was unconscious, and his face was blue. Appellant unsuccessfully attempted CPR while she was on the phone with the emergency operator. The responding paramedics pronounced Noah dead at appellant's home.

The medical examiner determined that Noah died from asphyxiation; specifically, the suppression of the blood vessels in his neck had constricted the flow of oxygen to his brain. The medical examiner could not determine a time of death, but indicated that this type of asphyxiation typically would have taken "minutes and not hours."

At the conclusion of appellant's trial, the trial court found that the Commonwealth had sufficiently proven appellant's criminal negligence, commenting that appellant's "conduct was arrogantly reckless, merciless and inhumane, recklessly disregarding Noah's safety or [the] consequences of her actions, being indifferent as to whether the harm would result." The court found appellant guilty of involuntary manslaughter, and this appeal followed.

II. ANALYSIS

When considering the sufficiency of the evidence on appeal, "a reviewing court does not `ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.'" Crowder v. Commonwealth, 41 Va.App. 658, 663, 588 S.E.2d 384, 387 (2003) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). "Viewing the evidence in the light most favorable to the Commonwealth, as we must since it was the prevailing party in the trial court," Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004), "[w]e must instead ask whether `any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt,'" Crowder, 41 Va.App. at 663, 588 S.E.2d at 387 (quoting Kelly v. Commonwealth, 41 Va.App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc)). See also Maxwell v. Commonwealth, 275 Va. 437 442, 657 S.E.2d 499, 502 (2008). "This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. Consequently, our review of the sufficiency of the evidence on appeal here involves an assessment of "`whether the evidence adduced at trial could support any rational determination of guilt beyond a reasonable doubt.'" Coleman v. Commonwealth, 52 Va.App. 19, 23, 660 S.E.2d 687, 689 (2008) (quoting United States v. Powell, 469 U.S. 57, 67, 105 S.Ct. 471, 478, 83 L.Ed.2d 461 (1984)) (emphasis added).

While involuntary manslaughter is a Class 5 felony, it is not statutorily defined. See Code § 18.2-36. In a recent opinion, our Supreme Court explained the elements of involuntary manslaughter accordingly:

[T]he crime of common law involuntary manslaughter has two elements: 1) the accidental killing of a person, contrary to the intention of the parties; and 2) the death occurs in the defendant's prosecution of an unlawful but not felonious act, or in the defendant's improper performance of a lawful act. Cable v. Commonwealth, 243 Va. 236, 240, 415 S.E.2d 218, 220 (1992); Dowden v. Commonwealth, 260 Va. 459, 470, 536 S.E.2d 437, 443 (2000); Gooden v. Commonwealth, 226 Va. 565, 571, 311 S.E.2d 780, 784 (1984). To constitute involuntary manslaughter, the "improper" performance of a lawful act must amount to an unlawful commission of that lawful act, manifesting criminal negligence. Cable, 243 Va. at 240, 415 S.E.2d at 220; Kirk v. Commonwealth, 186 Va. 839, 847, 44 S.E.2d 409, 413 (1947).

West v. Director, Dep't of Corr., 273 Va. 56, 63-64, 639 S.E.2d 190, 195 (2007).

Here, the trial court found appellant acted with criminal negligence and was guilty of involuntary manslaughter. The trial court's findings are examined on appeal by reviewing the totality of the evidence. See Commonwealth v. Duncan, 267 Va. 377, 385, 593 S.E.2d 210, 215 (2004). In reviewing the sufficiency of the evidence supporting the verdict in this case, our analysis is guided particularly by two principles.

First, although "`the application of the distinctions between the[] degrees of negligence is frequently difficult to apply,'" Tubman v. Commonwealth, 3 Va.App. 267, 273, 348 S.E.2d 871, 874 (1986) (quoting Town of Big Stone Gap v. Johnson, 184 Va. 375, 379, 35 S.E.2d 71, 73 (1945)), such determinations "`only become questions of law to be determined by [an appellate] court [rather than by the factfinder], when reasonable minds could not differ,'" Forbes v. Commonwealth, 27 Va.App. 304, 309, 498...