Torre A. Russell, s/k/a Torre Antwan Russell v. Commonwealth of Virginia, 1361161

Appellant Torre A. Russell was tried and convicted after a bench trial for felony cruelty and injuries to a child under Va. Code § 40.1-103; sentence five years, with 4 years 8 months suspended.
The three-year-old victim spent time in appellant’s custody on June 28–30, 2015; later that day family members observed bruising and other injuries to the child’s face and arm.
The child told his father, “Torre hit me in the eye,” and later told an ER nurse that “Torre hit me” and that he had been grabbed; the trial court admitted the father’s testimony as an excited utterance. The child was declared incompetent to testify at trial.
Medical personnel (an ER physician and nurse) testified injuries were nonaccidental and consistent with being grabbed/struck; the physician observed facial bruising and bleeding in the mouth.
Russell objected to admission of the child’s out-of-court statements as hearsay and later argued on appeal that admitting the father’s testimony was erroneous and that the evidence was insufficient to prove criminal negligence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of child’s out-of-court statements (excited utterance/hearsay)	Commonwealth relied on excited utterance/medical exceptions to admit child’s statements identifying Russell	Russell argued the child’s statement to his father was inadmissible hearsay and not an excited utterance	Court assumed, without deciding, admission of father’s testimony was error but deemed the error harmless because the nurse’s nearly identical statement was in the record and cumulative; conviction stands
Sufficiency of evidence to prove criminal negligence under Va. Code § 40.1-103	Commonwealth: medical and witness testimony showed nonaccidental trauma, multiple strikes/grab pattern, and injuries reasonably calculated to produce harm	Russell: injuries were minor, delay in hospital visit and lack of immediate observation undermined criminal negligence	Viewing evidence in light most favorable to Commonwealth, a rational factfinder could find willful/reckless conduct (criminal negligence) beyond a reasonable doubt; conviction affirmed

Jackson v. Virginia, 443 U.S. 307 (1979) (standard for sufficiency review: whether any rational trier of fact could find guilt beyond a reasonable doubt)
Carosi v. Commonwealth, 280 Va. 545 (2010) (definition/standard for criminal negligence in child-abuse statute)
Anderson v. Commonwealth, 282 Va. 457 (2011) (harmless-error analysis for nonconstitutional errors)
Clay v. Commonwealth, 262 Va. 253 (2001) (application of Va. Code § 8.01-678 to harmless-error review)
Crowder v. Commonwealth, 41 Va. App. 658 (2003) (discussion of sufficiency review standard)
Riner v. Commonwealth, 268 Va. 296 (2004) (appellate review standard; viewing evidence in Commonwealth’s favor)
King v. Cooley, 274 Va. 374 (2007) (cumulative testimony exclusion harmless when it could not affect the verdict)
Wilkins v. Commonwealth, 64 Va. App. 711 (2015) (treating record in light most favorable to prevailing party on appeal)