Wilson v. Com., Record No. 2781-98-1.

• Decision Date: 15 February 2000
• Docket Number: Record No. 2781-98-1.
• Citation: 525 S.E.2d 1,31 Va. App. 495
• Parties: Yolanda Ramos WILSON v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

525 S.E.2d 1

31 Va. App. 495

Yolanda Ramos WILSON v. COMMONWEALTH of Virginia.

Record No. 2781-98-1.

Court of Appeals of Virginia, Chesapeake.

February 15, 2000.

Matthew G. Krumtum (Stone & Associates, P.C., Williamsburg, on brief), for appellant.

Steven A. Witmer, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., and ELDER and LEMONS, JJ.

ELDER, Judge.

Yolanda Ramos Wilson (appellant) appeals from her bench trial conviction for the neglect or abuse of her child, "J.", pursuant to Code § 40.1-103. On appeal, she contends (1) the trial court abused its discretion and violated her constitutional rights by permitting the Commonwealth to amend the indictment and (2) the evidence was insufficient to support her conviction where the trial court said no single event justified a guilty verdict. We hold that the amendment to the indictment did not constitute reversible error and that the evidence was sufficient to prove appellant willfully caused J. to be injured and cruelly treated. Therefore, we affirm her conviction.

I. BACKGROUND

A. MOTION TO DISMISS THE INDICTMENT

By indictment returned May 4, 1998, the Gloucester County grand jury charged that, on or about February 11 to 13, 1998, appellant

did unlawfully and feloniously, while having custody, willfully and negligently, cause or permit the health of [J.], a minor child, to be injured, or willfully or negligently, cause him to be placed in a situation that his life or health was endangered, or cause or permit him to be tortured, or cruelly treated.

This indictment roughly paralleled the language of a portion of Code § 40.1-103 but alleged the child's "life or health was endangered," whereas the statute used the language "may be endangered."¹ (Emphasis added).

Appellant moved to dismiss the indictment on the ground that it contained an invalid attempt to rewrite a portion of the statute which this Court declared unconstitutional in Commonwealth v. Carter, 21 Va.App. 150, 462 S.E.2d 582 (1995). She asserted that Carter declared unconstitutionally vague the portion of the statute which read "or willfully to cause or permit such child to be placed in a situation that his life, health or morals may be endangered." (Emphasis added).

The trial court denied appellant's motion to dismiss the indictment and amended it to remove the portion declared unconstitutional in Carter. Following this amendment, the indictment charged that appellant "did unlawfully and feloniously, while having custody, willfully and negligently, cause or permit the health of [J.], a minor child, to be injured, or cause or permit him to be tortured, or cruelly treated."

Appellant continued to object, maintaining that the language removed required only appellant's passive involvement, whereas the remaining portions required more active involvement, and that the court could not be certain the grand jury would have issued the indictment if the indictment had included only the amended language. Appellant declined a continuance, arguing instead that the indictment should be dismissed.

The trial court held that the amendment of the indictment was permissible because it did not change the nature of the offense. It then arraigned appellant on the amended indictment, still drafted in the disjunctive but omitting the language tracking the portion of the statute previously declared unconstitutional. Appellant entered a plea of not guilty.

B. THE OFFENSE

The evidence admitted at trial established the following: On the morning of February 13, 1998, Kelly Wilson, father of the three-year-old victim, "J.", a learning disabled child, dropped J. off at "handicap preschool," putting him directly into the arms of Cynthia Finley, J.'s teacher's assistant. A few minutes later, when Finley rolled up J.'s sleeves prior to breakfast as she did every school morning, she saw two roughly two-inch-long parallel bruises running lengthwise on J.'s left forearm. Finley had not noticed any injuries on J.'s arms when she rolled up his sleeves the previous day. Subsequent examination of J. in the school nurse's office indicated that, in addition to the bruises on J.'s left forearm, J.'s right elbow was swollen, was tender to the touch and had scratches on it and he had scratches on his back. Nurse Becky McDaniel described the bruises on J.'s left forearm as red and opined, based on their color, that they had been incurred within the previous twenty-four hours.

The guidance counselor called social services, and social worker Joe Wayland responded to J.'s school to begin an investigation. In addition to the bruises on J.'s left forearm and his swollen right elbow, Wayland observed a purple mark on one of J.'s upper arms, which was about two to three inches long, a large purple mark on J.'s upper back, and scratches across J.'s back. The scratches were in various stages of healing, and three were "very fresh." Wayland observed "some marks on J.'s forehead and on his face" and described several marks on J.'s leg which also were in various stages of healing. Wayland took photographs of J.'s injuries.

When Wayland questioned appellant about J.'s injuries, appellant "was very certain" J. had sustained the injuries in a fall from the jungle gym at school. When Wayland told her that J. could not have injured himself on the jungle gym at school because it had been removed from his classroom, appellant said J. could have fallen between the slats of a bunk bed at home. When Wayland asked appellant if she had noticed any injuries on the child, she said the child had no injuries when she bathed him the night before. Mr. Wilson told Wayland he had helped appellant bathe J. the night before and that he cleaned J. up and dressed him for school on the morning of February 13. Mr. Wilson said there were no marks on J. at either of those times.

Other evidence established that appellant may previously have abused J. and had been investigated by social services on several occasions. In October 1996, one-year-old J. was treated for a broken left femur, which required a cast. When Wayland questioned them, appellant and Mr. Wilson reported that J. broke his femur stepping off a four-to-six-inch step.

Deann Dixon testified that she visited the Wilson home sometime in 1996. The Wilsons had just learned that J. had a learning disability, and Dixon heard appellant tell J. that he was stupid and was going to ride the "stupid bus." Dixon also observed appellant repeatedly pick J. up by his feet and swing him around in circles as J., screaming and crying, asked her to stop. While spinning him, appellant "came very close a lot of times to hitting his head on the coffee table." Dixon made an anonymous report to social services.

In February 1997, Mr. Wilson's cousin, Darryl Tyler, and his family were living with Mr. Wilson and appellant. Mr. Tyler, his wife Robin, and their ten-year-old son Christopher Brown all observed appellant "pluck" J.'s penis, which made him cry, and "smack him in the head." Mrs. Tyler testified that, on one occasion, appellant beat J. with a wooden spoon for about twenty minutes as he lay crying on the kitchen floor in a fetal position. Mr. Tyler also observed appellant use her foot to pick J. up by his shirt and "slam[] him down on his butt," which appellant said J. did not like. Deann Dixon confirmed the "smacking" incident and said appellant told her that she hated J.

On July 5, 1997, Mr. Wilson's cousin, Felissa Leisure, changed J.'s diaper at a family reunion. While she was doing so, J. "seemed to wince and say, `ow, ow, ow,'" which prompted Leisure, the daughter of a former social services worker, to examine J. more carefully. Leisure saw marks "all over" J.'s arms, legs, back and face. Some were dark marks two to three inches long, some were "fresh wounds with scabs," and some were healed. She also observed, on J.'s upper left back, a bite mark which appeared to have been caused by an adult. When Leisure asked appellant about the bite marks, appellant laughed and said her younger daughter, Edy, who was about two years old, had done it. Leisure reported her observations to social services.

When social worker Wayland investigated Leisure's report on July 7, 1997, he observed and photographed two sets of bite marks on J.'s back. When Wayland questioned appellant, she said J.'s cousin, Asia, had bitten him a year earlier.

Dr. Robin Foster, the director of the pediatrics emergency room and child protective team at the Medical College of Virginia, examined the photos of J.'s injuries from February 13, 1998, and photos of earlier injuries also investigated by social services. She also examined J. on April 16, 1998. Foster testified extensively about the marks she observed in the photographs, stating that they were "purplish in color" and were "consistent with bruises." She explained that bruises usually are "blue and purple through anywhere from 48 to 72 hours out to two weeks in the healing process." She testified that the location of the bruises and their shape and number caused her to be "concern[ed] that they were not accidental injur[ies]." Marks on J.'s back, right leg and thigh were linear, and on the leg, there were "some looped marks visible," which were "consistent with whip marks." Foster testified that J.'s left and right arm bruises were consistent with a non-accidental injury caused when a child's arm is "grabbed hard and the person's hand actually" causes the injury.

Regarding J.'s 1996 broken femur, Foster testified that the femur is a very large bone in the body and not easily fractured in children because a child's bones are less brittle than an adult's.

Foster also examined the July 7, 1997 photos taken of the bite marks on J.'s back. She testified that the nature of the bite on J.'s left shoulder was consistent with the dental pattern of an adult and inconsistent with the dental pattern of a child.

The Commonwealth also...