Wagoner v. Commonwealth
| Decision Date | 16 April 2015 |
| Docket Number | Record No. 140890. |
| Citation | 289 Va. 476,770 S.E.2d 479 |
| Parties | Richard C. WAGONER, Jr. v. COMMONWEALTH of Virginia. |
| Court | Virginia Supreme Court |
David O. Williamson (James W. Haskins ; James R. McGarry ; Young, Haskins, Mann, Gregory, McGarry & Wall, Stuart; Brumberg, Mackey and Wall, on briefs), for appellant.
Alice T. Armstrong, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Present: LEMONS, C.J., GOODWYN, MILLETTE, MIMS, McCLANAHAN and POWELL, JJ., and RUSSELL, S.J.
Richard C. Wagoner, Jr. (“Wagoner”) appeals the decision of the Court of Appeals of Virginia affirming his conviction of felony abuse or neglect of an incapacitated adult in violation of Code § 18.2–369(B). Wagoner contends that the Court of Appeals erred in applying the wrong decisional standard in its review of the trial court's ruling on a motion to set aside the verdict, expanding the definition of proximate cause, and finding that the evidence was sufficient to support his conviction.
Joseph Tuggle (“Tuggle”), a 57 year old man with Parkinson's Disease
and dementia, lived in a residential group home for men with intellectual disabilities. The group home was owned by the Claye Corporation, which in turn was owned by Wagoner. Wagoner also served as president of the Claye Corporation.
At approximately 7:00 p.m. on the evening of February 8, 2011, Jerome Baker (“Baker”), Tuggle's caregiver, discovered that Tuggle had soiled himself. Baker assisted Tuggle to the restroom and sat him on the toilet. Baker then left to retrieve cleaning supplies and began helping another staff member clean up. After cleaning for five or six minutes, Baker went to check on Tuggle. Baker found Tuggle crying for help while lying on his back in the bathtub with hot water running from the shower. Baker turned off the water and got Tuggle out of the bathtub. Baker and another staff member dried Tuggle off and noticed that his skin was very red. Baker and the other staff member then took Tuggle into the living room, where they again noticed his skin was very red and had begun to peel.
At this point, the staff supervisor, Kenny A. Brown (“Brown”), was contacted. Brown arrived at the group home around 8:30 p.m. After inspecting Tuggle, he determined that Tuggle did not need medical attention. Brown also contacted Tameki Tarpley (“Tarpley”), his co-supervisor, and informed her about the situation. Without seeing Tuggle, Tarpley called the emergency room and inquired about treating a burn that “appeared to be like a sunburn.” Tarpley was told to apply cold compresses
and that she should go to a pharmacy and ask the pharmacist for further treatment advice. Brown stayed with Tuggle until 11:00 p.m. and assisted in the treatment of Tuggle's burns by placing cold compresses over the affected areas of skin.
Brown returned to the group home at 6:30 a.m. on the following morning to examine Tuggle's injuries. Brown found that the burns appeared “redder.” Brown then contacted Tarpley and informed her of the nature of Tuggle's developing injuries and informed her that Tuggle needed to go the emergency room to be checked out. Tarpley contacted another staff member to bring a company van to the group home to transport Tuggle to the hospital.
Cynthia Epley (“Epley”), a director of Claye Corporation, called Tarpley for her regular “check-in” and was informed of Tuggle's accident. Tarpley told Epley that a company van was en route to take Tuggle to the hospital. Epley then called Wagoner to inform him about the incident and that Tuggle was being taken to the hospital.
At around 7:15 a.m., Tuggle was placed in the company van to be taken to the hospital. While Tuggle was en route to the hospital, Wagoner informed Epley that he wanted to see Tuggle before he was taken to the hospital. Epley relayed the request to Tarpley who, in turn, relayed the request to the staff member driving the company van. About three minutes later, Tuggle was returned to the group home.
After the van returned, Tarpley went to a pharmacy. Tarpley asked the pharmacist for instructions in treating a sunburn. According to Tarpley, the pharmacist instructed her to use drainage strips and cold compresses
and to apply Neosporin, an antibiotic cream.
Epley arrived at the group home at around the same time that Tarpley returned. Shortly thereafter, Wagoner arrived. At the time, Tuggle was sitting in a wheel chair in the living room. After the staff explained what had happened, Wagoner asked Tuggle how he was doing. Baker then removed a sheet that was covering Tuggle and lifted Tuggle's t-shirt so Wagoner could see the burns. According to Baker, Tuggle's skin appeared to be really red and had begun to peel away. Wagoner inspected Tuggle's injuries without comment.
Wagoner told Epley that Tuggle should be treated “one on one” at the group home. Wagoner then left the facility. Epley informed Tarpley of Wagoner's decision and advised the staff to begin treatment, which consisted of cold compresses
, Neosporin, Tylenol, and Gatorade.
Over the next nine days, the staff noticed the color of Tuggle's injuries changed from dark red to yellow. The staff also noted oozing blood and pus emanating from the wounds
. On the morning of February 18, 2011, Tuggle was found dead in his bed.
Wagoner was subsequently charged with abuse or neglect of an incapacitated adult resulting in death in violation of Code § 18.2–369(B).
At trial, Dr. Gayle Suzuki (“Dr. Suzuki”), a pathologist and the medical examiner who performed the autopsy on Tuggle's body testified that Tuggle had suffered second and third degree burns
over 30% of his body. She explained that Tuggle's death was caused by “sepsis and pneumonia from the thermal injuries from immersion in scalding water.” She noted that the bacteria that caused the sepsis was consistent with bacteria normally found on the skin.
Dr. Kevin Whaley (“Dr. Whaley”), an Assistant Chief Medical Examiner for the Commonwealth, testified as an expert on the classification, diagnosis, and treatment of burns. Dr. Whaley testified that second and third degree burns
over 30% of the body would require automatic admission to a burn unit. He went on to explain that someone in Tuggle's condition would initially require fluid resuscitation followed by treatment to avoid infection. The treatment to avoid infection would involve debriding the skin,1 application of silver sulfadiazine “to control bacterial growth,” and changing the bandages regularly. Dr. Whaley explained that debriding the skin was necessary because bacteria live underneath the dead skin and then get into the blood stream and causes sepsis. Dr. Whaley further noted that Neosporin is an ineffective treatment for this condition and can actually make the injury worse.
After viewing photographs of Tuggle's burns, Dr. Whaley opined that Tuggle actually had second and third degree burns
over approximately 18% of his body. According to Dr. Whaley, given Tuggle's age and the amount of burns he suffered, Tuggle's injuries were 100% fatal if he did not receive the proper treatment. However, Dr. Whaley further testified that, if he received the proper treatment, Tuggle only had a 75% chance of death, meaning a 25% chance of survival.
Dr. Thomas Berry (“Dr. Berry”) testified on behalf of Wagoner. Like Dr. Whaley, Dr. Berry was received as an expert on the classification, diagnosis, and treatment of burns. In Dr. Berry's opinion, Tuggle suffered burns over 20% of his body. Dr. Berry testified he would have recommended in home/outpatient treatment of Tuggle's burns. Dr. Berry further opined that Tuggle's pneumonia
was likely rapid onset and “not necessarily connected with his burns.”
The jury subsequently found Wagoner guilty of felony abuse or neglect of an incapacitated adult. Wagoner made a motion to set aside the verdict, arguing, among other things, that the Commonwealth failed to prove his actions were a proximate cause of Tuggle's death because the Commonwealth did not present any evidence that Tuggle would probably have survived his injuries absent Wagoner's abuse or neglect. The trial court denied his motion, finding that the Commonwealth had presented sufficient evidence of proximate cause, because “a twenty-five percent chance of survival represents a substantial possibility of survival, and the jury was entitled to find that [Wagoner's] abuse or neglect of Tuggle was a proximate cause of his death.” Wagoner was sentenced to five years' incarceration with five years suspended for a period of 10 years.
Wagoner appealed his conviction to the Court of Appeals. In the Court of Appeals, Wagoner argued that the trial court applied the wrong decisional standard in ruling on his motion to set aside the verdict. According to Wagoner, the “substantial possibility of survival” standard used by the trial court only applies to motions to strike, not to motions to set aside the verdict. He further argued that the proper standard required the Commonwealth to prove that Tuggle probably would have survived his injuries but for Wagoner's actions.
In a published decision, a divided panel of the Court of Appeals affirmed Wagoner's conviction. Wagoner v. Commonwealth, 63 Va.App. 229, 756 S.E.2d 165 (2014). The majority held that the “substantial possibility of survival” decisional standard used by the trial court applies to both motions to strike and motions to set aside the verdict. Id. at 247, 756 S.E.2d at 174. The majority further determined that the “substantial possibility of survival” standard does not equate “to a ‘probability’ of survival and common sense suggests that a ‘substantial possibility’ is somewhat less of a quantification than a ‘probability.’ ” Id. at 253, 756 S.E.2d at 177.
The dissent, however, opined that the “substantial possibility of survival” standard only applies to motions to strike and, therefore, the trial court erred. The dissent went on to agree with Wagoner, stating that to...
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