Margo Collado v Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Willis, Bumgardner and Frank
Argued at Alexandria, Virginia
MARGO COLLADO
OPINION BY
v. 	Record No. 0438-99-4 	JUDGE ROBERT P. FRANK
SEPTEMBER 5, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Stanley P. Klein, Judge
J. Ronald Lynch (J. Ronald Lynch, P.C., on
briefs), for appellant.
Steven A. Witmer, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Margo Collado (appellant) was convicted in a jury trial of
child abuse in violation of Code § 18.2-371.1. 	On appeal she
contends: 	1) the evidence was insufficient to prove she was the
criminal agent and that she intended to inflict serious injury,
2) the trial court erred in not granting a jury instruction that
stated she was required to have had an intent to cause the
injuries inflicted upon the victim, and 3) the trial court erred
in admitting, at sentencing, a letter setting forth other
incidents of child abuse. 	We disagree and affirm the judgment
of the trial court.

I. 	BACKGROUND
Andrew and Andrea Adelman hired appellant, a professional
daycare provider, to provide daycare services in her home for
their daughter, Olivia, born November 27, 1997. 	At 7:00 a.m. on
April 27, 1998, Andrea Adelman delivered her five-month-old
daughter, Olivia, to appellant's home. 	Olivia's godmother,
Sandra Wilger, was to pick Olivia up at noon. 	Appellant spoke
to Mrs. Adelman on the telephone at 11:00 a.m. and stated that
Olivia had been crying and seemed to be having a "tough time."
When Mrs. Wilger arrived to pick Olivia up, Olivia was in her
car seat taking a bottle, rather than in the basement with the
other children. 	Appellant explained to Mrs. Wilger that Olivia
had been crying and that she did not want Olivia to wake the
other children. 	Appellant elaborated on Olivia's crying by
saying she had shown her "true colors" that morning and had
"quite a set of lungs on her." 	Olivia seemed fine once in Mrs.
Wilger's care and later for Mrs. Adelman.
Mrs. Adelman again delivered Olivia to appellant's home at
approximately 7:00 a.m. the next day. 	Once again, at
approximately 11:00 a.m., appellant and Mrs. Adelman spoke on
the telephone. 	Appellant told Mrs. Adelman that Olivia had been
crying. 	Appellant complained that she had to rock Olivia to
sleep. 	Olivia was fine when Mrs. Wilger picked her up at
4:00 p.m., although appellant complained that she had been
crying all day and needed to be held or rocked to sleep.
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Mrs. Adelman delivered Olivia to appellant on the morning
of Wednesday, April 29, 1998. 	When Mrs. Wilger picked Olivia up
in the afternoon, appellant told Mrs. Wilger that Olivia ate
less and slept more that day. 	Appellant told Mrs. Wilger that
she intended to get Olivia on a schedule and that Olivia would
have no choice in the matter.
On Thursday, April 30, 1998, Mrs. Adelman delivered Olivia
to appellant at approximately 1:00 p.m. 	Olivia was well at that
time. 	When Mrs. Adelman returned at 5:00 p.m., Olivia was in
her car seat in the kitchen. 	Olivia appeared to be sleeping,
but as Mrs. Adelman spoke with appellant, she noticed Olivia's
left arm and left leg began to simultaneously make jerking
motions. 	The unusual movements lasted approximately one minute.
When Mrs. Adelman commented that she had never seen Olivia do
that before, appellant responded that Olivia was dreaming.
Appellant was on the telephone and seemed angry at the time.
Mrs. Adelman left with Olivia and returned home.
Olivia never regained consciousness from the time Mrs.
Adelman retrieved her from appellant's care until she rushed her
to the hospital approximately three hours later. 	During the
majority of this time, Mrs. Adelman assumed Olivia was asleep.
She began to get concerned, however, when she was unable to
awaken the child and because the unusual jerking motion of
Olivia's limbs continued periodically. 	She decided to call the
doctor, but first called appellant to ask if anything had
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happened at the house that day. 	Appellant said nothing had
happened and suggested Mrs. Adelman call a doctor. 	When Mrs.
Adelman did so, Dr. Baugh instructed Mrs. Adelman to take Olivia
to the hospital.
Dr. Baugh met Mrs. Adelman at Fairfax Hospital and examined
Olivia. 	He discovered retinal hemorrhages in Olivia's left eye
and requested a CAT scan, which revealed a large subdural
hematoma on the left side of the brain. 	Dr. Baugh observed a
bruise on Olivia's ear lobe that was less than twenty-four hours
old. 	Olivia was admitted to the intensive care unit of the
hospital and later that night underwent brain surgery to relieve
the pressure on her brain. 	Dr. Baugh testified that this injury
was "life threatening."
Dr. Baugh, an expert in shaken baby syndrome, expressed his
opinion that Olivia would have been "knocked out" immediately
after the trauma. 	He also testified that Olivia's one-sided
seizures were indicative of brain injury. 	Dr. Baugh testified
that Olivia is not likely to recover full vision in her left
eye. 	Cognitive impairment is an unknown, but Olivia is at risk
for such impairment. 	She is at risk for speech delay and for
mental retardation. 	Her greatest risks are in the visual and
cognitive domain.
Dr. David Sideman testified that Olivia suffered retinal
hemorrhages and that her condition was consistent with a child
suffering from shaken baby syndrome, a term used to describe
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traumatic injury to a small child who is shaken so hard that the
head flops back and forth, causing severe acceleration and
deceleration to the head and eye. 	He also testified that
causing such an injury usually requires a very forceful kind of
shaking, inconsistent with accidental injury.
Dr. Craig Futterman testified as an expert in both
pediatric intensive care and shaken baby syndrome. 	He stated
that when Olivia first arrived at the hospital, she was in
"severe distress." 	Olivia suffered a severe neurological injury
and was doing very poorly both neurologically and from a
cardiovascular and respiratory standpoint. 	He described
Olivia's injury as a subdural hematoma, which caused pressure on
the brain by compressing brain tissue and shifting the location
of brain tissue and structures in the brain. 	He opined that
Olivia was the victim of shaken baby syndrome. 	Dr. Futterman,
like Dr. Sideman, testified that this injury was caused by
violent shaking that resulted in severe acceleration and
deceleration injuries to the brain. 	Dr. Futterman explained
that the force necessary to cause these head injuries was
significant.
Dr. Futterman explained that the force of gravity
experienced by a fighter pilot in a tight turn might be six and
one half Gs, which could cause the pilot to black out, but that
the force applied to a child's brain resulting in shaken baby
syndrome is between nine and one half and 350 Gs. 	Dr. Futterman
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also testified that Olivia would have had an immediate and
obvious reaction to the forces that caused her injuries. 	She
would have been unconscious and may have developed seizures.
Dr. Futterman further testified that the one-sided seizures
Olivia experienced were consistent with focal seizures, which
are symptoms often caused by pressure being applied to the brain
by a subdural hematoma.
In the CAT scans, Dr. Futterman detected the presence of an
additional collection of fluid in the brain. 	This other fluid
could have been produced by trauma, a congenital abnormality in
the structure of the brain, an infection, or a cystic hygroma.
Dr. Futterman testified that the likelihood of this older fluid
contributing to the brain injury of April 30, 1998, was "zero."
A full body x-ray taken of Olivia when she was admitted to the
hospital revealed no injuries to her bones.
Fairfax Police Detective Irene Boyle interviewed appellant,
who told her that when Olivia arrived at her home on April 30,
she was "wide awake and perky." 	Appellant claimed she fed
Olivia bottles of breast milk and that Olivia took a nap.
Appellant also told Boyle that Olivia awoke later, had another
bottle, and played until about 4:00 p.m., when she fell asleep.
Appellant claimed Olivia remained asleep from that time forward.
Appellant also claimed Olivia behaved normally throughout the
day.
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Initially, appellant told Detective Boyle that Olivia was
sleeping normally in her car seat when Mrs. Adelman arrived and
that nothing appeared to be wrong. 	When questioned further,
however, she stated she noticed Olivia twitching and moaning
when Mrs. Adelman arrived, and later admitted she saw the
twitching prior to Mrs. Adelman's arrival. 	Appellant insisted
that no one else was near Olivia while in her care that day and
that Olivia was never out of her sight. 	Appellant denied
hurting Olivia.
II. 	ANALYSIS
In reviewing the sufficiency of evidence on appeal, "the
appellate court must examine the evidence and all inferences
reasonably deducible therefrom in the light most favorable to
the Commonwealth, the prevailing party in the trial court."
Commonwealth v. Jenkins, 255 Va. 516, 521, 499 S.E.2d 263, 265
(1998) (citations omitted). 	"We may not disturb the trial
court's judgment unless it is 'plainly wrong or without evidence
to support it.'" 	Barlow v. Commonwealth, 26 Va. App. 421, 429,
494 S.E.2d 901, 904 (1998) (quoting Beavers v. Commonwealth, 245
Va. 268, 282, 427 S.E.2d 411, 421 (1993)).
Furthermore, "[t]he credibility of the witnesses and the
weight accorded the evidence are matters solely for the fact
finder who has the opportunity to see and hear that evidence as
it is presented." 	Sandoval v. Commonwealth, 20 Va. App. 133,
138, 455 S.E.2d 730, 732 (1995) (citations omitted). 	"In its
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role of judging witness credibility, the fact finder is entitled
to disbelieve the self-serving testimony of the accused and to
conclude that the accused is lying to conceal his guilt."
Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d
233, 235 (1998) (citation omitted).
"When weighing the evidence, the fact finder is not
required to accept entirely either the Commonwealth's or the
defendant's account of the facts," but "may reject that which it
finds implausible, [and] accept other parts which it finds to be
believable." 	Pugliese v. Commonwealth, 16 Va. App. 82, 92, 428
S.E.2d 16, 24 (1993) (citations omitted).
Appellant contends she was not the criminal agent who
inflicted the injury upon Olivia because no evidence proved the
time when Olivia's symptoms first appeared or that Olivia was
with appellant immediately before the symptoms appeared.
Appellant contends the Commonwealth did not prove the injury was
inflicted between 1:00 p.m. and 5:00 p.m. on April 30, 1998,
because the symptoms of brain injury only occurred after Olivia
was returned to her mother's custody. 	Appellant asserts that
the left hand and leg movement seen at appellant's home were not
seizure activity. 	Appellant further argues that the older
hematoma in the brain was caused at a time when appellant had no
access to Olivia.
The evidence belies appellant's position. 	Ms. Adelman
testified that on the day of the injury, Olivia was in good
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health when appellant assumed her care. 	Appellant acknowledged
Olivia was "awake and perky" at that time. 	Appellant
acknowledged no one else was near Olivia while in her care on
the day of the injury. 	According to appellant, Olivia was never
out of her sight that day.
Dr. Baugh testified Olivia would have been "knocked out"
immediately after sustaining the injury to her brain. 	Dr.
Futterman testified Olivia was the victim of shaken baby
syndrome, an injury caused by violent shaking that results in
severe acceleration and deceleration injuries to the brain. 	The
intensity of such shaking would preclude an accidental shaking.
He stated that Olivia would have had an immediate and obvious
reaction to her injuries. 	She would have been unconscious and
may have developed seizures.
When Ms. Adelman arrived at 5:00 p.m. to pick up Olivia,
the baby appeared to be sleeping but her left arm and left leg
were jerking. 	Appellant admitted the twitching began before Ms.
Adelman arrived. 	Dr. Baugh testified that Olivia's one-sided
seizures indicated brain injury.
Dr. Futterman also addressed the old hematoma. 	He opined
it could have been caused by trauma, congenital abnormalities in
the structure of the brain, or infection. 	None of the
physicians attributed the present brain injury to the old
hematoma.
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Further evidence indicated appellant was upset with
Olivia's crying and constant need for attention. 	Appellant was
concerned that Olivia's crying woke up other infants in her
care.
Appellant cites Christian v. Commonwealth, 221 Va. 1078,
277 S.E.2d 205 (1981), to support her sufficiency argument.
Christian, however, underscores the Commonwealth's position. 	In
Christian, the appellant had sole custody of her daughter until
she sent the child to daycare on the morning of November 29,
1979. 	See id. at 1082, 277 S.E.2d at 208. 	A daycare worker
discovered the child's injuries. 	See id. 	However, at least
five people had an opportunity to handle the child before the
child's injuries were discovered. 	See id. 	The Court wrote,
"[W]here it appears that a criminal assault was made upon a
child within a particular period of time, evidence which shows
that the accused was sole custodian of the child during that
period may be sufficient, standing alone, to prove criminal
agency." 	Id. 	The Court concluded the evidence was insufficient
to exclude a reasonable hypothesis that someone other than the
appellant was the criminal agent because at least five people
had the opportunity to handle the child from the time she left
her mother until her injuries were discovered. 	See id. at 1083,
277 S.E.2d at 208.
In the present case, the fact finder could properly
conclude the child was injured after 1:00 p.m., when the child
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was delivered to appellant, and prior to 5:00 p.m., when Ms.
Adelman picked up the child. 	Appellant concedes the child was
in good health when she arrived and testified Olivia was in
distress prior to Ms. Adelman's arriving at 5:00 p.m. 	Based on
the medical testimony, the jury could conclude that the injury
immediately rendered the child unconscious and caused the
child's left arm and left leg to shake. 	Appellant further
testified that Olivia was in her presence for the entire
four-hour period and no one else was near Olivia during that
time.
Under the Christian analysis, Olivia was criminally
assaulted during the period appellant had sole custody and
control of the child. 	Therefore, we find the evidence
sufficient to support the jury's finding that appellant was the
criminal agent who inflicted the life threatening injuries to
Olivia.
Appellant next contends the Commonwealth was required to
prove appellant intended to inflict the specific injury suffered
by Olivia.1 Appellant further maintains the trial court erred in
not granting an instruction dealing with this element of proof.
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1 At trial, in objecting to Commonwealth's Instruction No.
I, appellant argued the Commonwealth must prove appellant
intended to cause serious injury. 	This issue was set forth in
appellant's Questions Presented B and C. 	Yet, in her brief,
appellant contends the Commonwealth was required to prove
appellant intended to inflict the specific injuries sustained by
Olivia.

Pursuant to Code § 18.2-371.1, the Commonwealth was
required to prove beyond a reasonable doubt that appellant, a
person responsible for Olivia's care, did by a "willful act"
cause a "serious injury to the life or health of such child."
Therefore, the Commonwealth had to establish that appellant
willfully shook Olivia and that the shaking caused a serious
injury to Olivia.
The requirement that the act be "willful" does not mean, as
appellant suggests, that the Commonwealth was required to prove
appellant intended to injure Olivia or specifically intended to
injure Olivia's brain or to blind her left eye. 	Rather, as this
Court has held:
"Willful" generally means an act done with a
bad purpose, without justifiable excuse, or
without ground for believing it is lawful.
The term denotes "'an act which is
intentional, or knowing, or voluntary, as
distinguished from accidental.'" 	The terms
"bad purpose" or "without justifiable
excuse," while facially unspecific,
necessarily imply knowledge that particular
conduct will likely result in injury or
illegality.
Appellant's motion to strike, made after the conclusion of
the Commonwealth's evidence, challenged whether the Commonwealth
proved an intent to cause the child injury. 	Appellant's motion
to set aside the verdict was based, in part, on the
Commonwealth's failure to prove appellant intended the results of
her actions. 	In appellant's amended motion, she contended the
trial court should have struck the evidence because she did not
intend the results of her actions, did not intend to injure the
child's eyes and brain.
It is not clear whether appellant has abandoned her claim of
intent to cause serious injury and has substituted, on appeal, an
intent to inflict the specific injury to Olivia's brain and eyes.
Because appellant's position is not supported by law on either
point, we will not distinguish between them.
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Ellis v. Commonwealth, 29 Va. App. 548, 554, 513 S.E.2d 453, 456
(1999) (citations omitted).
Therefore, the Commonwealth was required to prove only that
appellant knew her conduct would likely result in serious
injury.
The evidence satisfies the Commonwealth's burden of proving
willfulness. 	Appellant, a professional daycare provider, shook
a five-month-old infant so violently as to cause brain injury.
Appellant's spoken intent to force Olivia to conform to her idea
of an appropriate schedule would not justify shaking her, nor
would the crying of a five-month-old infant justify such
treatment. 	The jury was entitled to conclude from the evidence
that five-month-old Olivia did not conform to appellant's
expectations for behavior and appellant responded by brutally
shaking her into submission. 	This finding is amply supported by
the evidence and is not "plainly wrong."
Finding that an intent to cause a serious injury or any
specific injury is not an element of the offense, we further
find that the trial court did not err in refusing to grant an
instruction on that issue.
Appellant's final contention is that the trial court erred
in admitting into evidence during sentencing a letter from Mr.
and Mrs. Ladwig, which related that their child suffered a
"shaken baby syndrome" injury while in appellant's care.
Assuming without deciding that the trial court erred in
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admitting the Ladwigs' letter into evidence, we find that any
error committed by the trial court was harmless. 	The trial
court received a number of positive letters regarding
appellant's abilities as a child care provider, and, in
admitting the Ladwigs' letter into evidence, stated, "I'm going
to consider it as a negative reference, the same way that I'm
considering all the positive references, but I am not going to
sentence your client for what she allegedly did to the Ladwigs'
child."
We find, therefore, the trial court only viewed the
Ladwigs' letter as a negative reference and did not consider it
for the fact that appellant previously committed a similar
offense.
Appellant further contends the trial court is bound by
another judge's ruling that the Ladwigs' letter was
inadmissible. 	This argument was not raised at trial. 	"The
Court of Appeals will not consider an argument on appeal which
was not presented to the trial court." 	Ohree v. Commonwealth,
26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998) (citation
omitted). 	Rule 5A:18 requires that objections to a trial
court's action or ruling be made with specificity in order to
preserve an issue for appeal. 	See Campbell v. Commonwealth, 12
Va. App. 476, 480, 405 S.E.2d 1, 2 (1991) (en banc).
Accordingly, Rule 5A:18 bars our consideration of this question
on appeal. 	Moreover, the record does not reflect any reason to
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invoke the "good cause" or "ends of justice exceptions" to Rule
5A:18.
For these reasons, we affirm the judgment of the trial
court.
Affirmed.
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