Wagoner v. Commonwealth

• Decision Date: 08 April 2014
• Docket Number: Record No. 2233–12–3.
• Citation: 756 S.E.2d 165,63 Va.App. 229
• Court: Virginia Court of Appeals
• Parties: Richard C. WAGONER, Jr. v. COMMONWEALTH of Virginia.

63 Va.App. 229

756 S.E.2d 165

Richard C. WAGONER, Jr.

v.COMMONWEALTH of Virginia.

Record No. 2233–12–3.

Court of Appeals of Virginia, Salem.

April 8, 2014.

James R. McGarry (James W. Haskins; David O. Williamson; Young, Haskins, Mann, Gregory, McGarry & Wall, P.C.; Brumberg, Mackey and Wall, P.L.C., on briefs), for appellant.

Alice T. Armstrong, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: HUMPHREYS, BEALES and HUFF, JJ.

HUMPHREYS, Judge.

Richard C. Wagoner, Jr. (“Wagoner”) was convicted by a jury in the Circuit Court of the City of Martinsville (“trial court”) of abuse or neglect of an incapacitated adult resulting in death, in violation of Code § 18.2–369(B). On appeal, Wagoner argues (1) that the trial court applied the wrong decisional standard in denying his motion to set aside the jury verdict; (2) that the evidence was insufficient to support a finding that his conduct was a proximate cause of the victim's death; and (3) that the evidence was insufficient to establish that he committed a willful act with knowledge and consciousness that injury or death would result to the victim. For the following reasons, we affirm the trial court.

I. BACKGROUND

On appeal, we “consider the evidence and all reasonable inferences fairly deducible therefrom in the light most favorable to the Commonwealth, the prevailing party at trial.” Bass v. Commonwealth, 259 Va. 470, 475, 525 S.E.2d 921, 924 (2000).

In February 2011, Joe Tuggle (“Tuggle”), the victim, was living in a group home for men with intellectual disabilities run by the Claye Corporation. Wagoner, who holds a PhD in applied developmental psychology, owns the Claye Corporation and serves as the president of the Corporation. The Claye Corporation has a provider agreement with the Department of Developmental Health to provide services to intellectually disabled adults. The Claye Corporation operates several homes where clients reside. Three clients, including Tuggle, lived in the Minor Street home (“Minor Street”).

In February 2011, Tuggle was fifty-seven years old and had severe Parkinson's disease and Lewy bodies in his brain causing dementia. It is unclear what caused Tuggle's intellectual disabilities, but whatever the cause, he was unable to communicate effectively, he could not carry on a real conversation, and he mostly moaned and gestured. Tuggle also needed help with eating and with personal care. Tuggle could walk, but he was shaky from the Parkinson's disease and had trouble with walking and standing on his own.

Around seven in the evening on February 8, 2011, Tuggle was sitting on a couch in the Minor Street living room when he had a diarrhea accident. Jerome Baker (“Baker”), who was working on staff, assisted Tuggle to the restroom and sat Tuggle on the toilet. After waiting with Tuggle two to three minutes, Baker left to retrieve a mop bucket and cleaning supplies from the kitchen and began helping another staff member, Kenny L. Brown (“Kenny L.”), clean up the diarrhea that was on the couch and floor in the living room. After cleaning for five or six minutes, Baker returned to the restroom and found Tuggle lying down in the bathtub on his back with only hot water running out of the shower. Tuggle was saying “Help me! Help me!” Baker turned off the hot water and yelled for Kenny L. to come help. Baker and Kenny L. grabbed Tuggle and raised him up and sat him on the toilet. They dried Tuggle off and noticed his skin was very red. Then they took Tuggle to the living room and noted again that his skin was really red and it started to peel about ten minutes later. Baker testified that he grabbed the phone, ready to call 911, but Kenny L. told him “No,” and to call their supervisor first because that was the policy.

Kenny L. called Kenny A. Brown (“Kenny A.”), the staff supervisor that night. Kenny A. left his home and went to Minor Street around 8:30 p.m. Kenny A. inspected Tuggle and determined that Tuggle did not need medical attention. Kenny A. called Tameki Tarpley (“Tarpley”), his co-supervisor,¹ to inform her of Tuggle's accident. Without seeing Tuggle, Tarpley called the emergency room (“E.R.”) on February 8 and asked how to treat a burn that “appeared to be like a sunburn.” Tarpley testified, “All they could tell me was we could apply cold compressions and go to the pharmacy, [and] ask the pharmacist how to treat it.” ² Tarpley called Kenny A. back and said to apply cold rags to Tuggle's burns. Kenny L. and Baker stayed with Tuggle until 11:00 p.m. applying cold rags, and Baker testified that Tuggle made noises indicating he was in pain.

The next morning, February 9, Kenny A. arrived back at Minor Street around 6:30 a.m. He got there earlier than usual in order to check on Tuggle. He observed that Tuggle looked different that morning and that his burns were “a little bit redder than they were pink” and this concerned him. Kenny A. called Tarpley and told her that they needed to take Tuggle to the hospital to be checked out. Tarpley was on her way to work, a little before 7:00 a.m., when she called staff member Lacoma Hairston (“Hairston”) to bring one of the company vans over to Minor Street to transport Tuggle to the hospital. Tarpley then arrived at Minor Street and saw Tuggle's arm and neck and confirmed that it was red. Cynthia Epley (“Epley”), a director at the Claye Corporation, ³ called Tarpley prior to arriving at Minor Street and Tarpley told her about Tuggle's accident the night before and that he was burned. Tarpley also told Epley that a van was coming to transport Tuggle to the E.R.

Hairston arrived at Minor Street with the van about 7:15 a.m. Some staff members put Tuggle in the van, and the van left. Epley testified that she called Wagoner after speaking with Tarpley and that Wagoner said, “Well, I'd like to see him before he goes.” Epley then called Tarpley to tell her that “Mr. Wagoner would like to see [Tuggle] before he goes.” Tarpley then called Hairston and told her to bring the van back. The van arrived back at Minor Street within a short time, about three minutes after Tarpley called Hairston.

After the van returned, Tarpley went to CVS “because that's what the hospital [told her to do]” and she asked the pharmacist how to treat a sunburn. The pharmacist told her to use drainage strips, “cold compresses to keep it clean and to dry the heat,” and Neosporin. According to her CVS receipt, Tarpley purchased the recommended supplies at 8:01 a.m., and then she returned to Minor Street.

Epley arrived at Minor Street around the same time that Tarpley returned from CVS. When Epley entered the house, Tuggle was sitting in the living room in a wheelchair. Tuggle had something over him so she could only see the top of his hand. Wagoner arrived shortly after Epley, and the staff started explaining to them what had happened. Epley described the scene as chaotic and overwhelming, and everyone was talking at once. She stayed inside the Minor Street house less than ten minutes and then went to sit in her car. Wagoner asked Tuggle how he was doing. Then Baker took the sheet off of Tuggle and pulled up Tuggle's T-shirt for Wagoner to see his injuries. Baker testified that Tuggle's skin was really red and skin had peeled away. Staff member Lawrence Collins (“Collins”) testified that Tuggle did not have any clothes on and that he and staff member Artis Williams stood Tuggle up and dropped the sheet from him so Wagoner could have a look. “[Wagoner] looked at him. He looked him up and down. Then he just looked. We sat [Tuggle] back in the chair. [Wagoner] looked at everybody. He didn't say one word to us. He just looked, this look he had. He walked out.” Epley testified that on February 9, the staff made the treatment decision to send Tuggle to the hospital and that Wagoner made the treatment decision with regard to not sending Tuggle to the hospital.

Collins described that he was “in shock” when he walked in the home that morning and saw Tuggle because Tuggle “had suffered a very bad burn.” Collins elaborated on Tuggle's condition that morning: Tuggle looked like he was hurting; he was just staring; he was not smiling or talking. “Tuggle didn't have no flesh on him from the back of his head, like all of his hair was melted and stuff to him, all down his shoulders. His butt was gone. All the way down, you know, he had burns all the way down to his feet.” Collins continued,

He couldn't have nothing on him. You know, not even underwear. He was just that much in the raw. His whole body was like just real pink. It looked like it had just happened. I mean it was just like somebody just took all the skin off the back of him. He didn't have none. I mean like Tuggle was real hairy. He didn't have no hair on his back no more, or on his butt, nowhere.

After looking at Tuggle for two or three minutes, Wagoner went outside and sat with Epley in her car. According to Wagoner, Epley was upset and nervous and had to take her blood pressure medication while they talked in the car. While Collins smoked a cigarette outside, he watched Epley and Wagoner in the car. Wagoner looked upset and agitated, and based on his hand-gestures, Collins could tell Wagoner was not happy. Epley testified that when Wagoner got in the car he said his nerves were “just shot,” and “Well, I guess Social Services will investigate us.” He also told Epley that “after talking to Tuggle and talking to Ms. Tarpley and hearing what the hospital had to say, he decided that we would treat Tuggle at home one on one, with one on one care, that he felt he'd get better care.” Wagoner left Minor Street after talking with Epley for about ten minutes.

After Wagoner left, Epley telephoned Tarpley to come out to her car. They went to Family Pharmacy together and Epley picked up her own medication and Tarpley bought more Neosporin and Tylenol. Epley told Tarpley that if Tuggle gets worse they should take him to the...