ELIZABETH POLLARD NOAKES v. COMMONWEALTH OF VIRGINIA
Record No. 091911
SUPREME COURT OF VIRGINIA
September 16, 2010
JUSTICE CYNTHIA D. KINSER
Prеsent: Hassell, C.J., Koontz, Kinser, Goodwyn, and Millette, JJ., and Carrico and Russell, S.JJ.
In this appeal, a defendant challenges the sufficiency of the evidence to support her conviction for involuntary manslaughter, specifically contesting the findings that she was criminally negligent and that her acts were a proximate cause of a toddler‘s death. Because thеre is sufficient evidence to support both findings, we will affirm the judgment of conviction.
MATERIAL FACTS AND PROCEEDINGS
The relevant facts are undisputed. The defendant, Elizabeth Pollard Noakes, provided child care services in her home, and on the day in question, October 18, 2006, had in her care Noah Alexander Colassaco, a fifteen-month-old child, and two other children.1 Noakes had been caring for Noah for approximately three weeks and, throughout that time, had
Around noon on the day in question, Nоakes put Noah and another toddler she was caring for in their cribs for an afternoon nap.2 The cribs were located in an upstairs, “loft” bedroom that was partially visible from Noakes’ bedroom. Only a half wall divided the two rooms, which were connected by a stairway. The cribs, however, were not visible from Noakes’ bedroom. Noah‘s crib, as viewed from the loft‘s entrance, was positioned lengthwise against the back wall of the room, in the far right corner. The rectangular crib was abutted on the right by one wall, on the rear with another, and on the left by another crib, with only the front, lengthwise portion unobstructed. A third crib, in which Noakes placed the other toddler that day, was positioned a few feet from Noah‘s crib, nеarer the entrance of the loft and also on the right wall.
At approximately 12:30 p.m., Noakes returned to the loft to “check on” Noah, who was still standing in the crib and crying. Knowing that when Noah stood in his crib, his chin was above the crib‘s sides, and also that Noah would fall asleep if he were lying or sitting in the crib instead of standing, Noakes decided to place a make-shift covering over the crib to prevent Noah from standing. After removing Noah from his crib, Noakes placed a thirty-three and one-quarter pound, collapsed “dog crate,” which ran the length of the crib but was substantially narrower, on top of the crib. Noakes reasoned that the сrate‘s weight would prevent Noah from standing up in the crib.
Noakes tested the stability of her contraption by shaking the crib with the crate on top to determine if the crate could fall into the crib and injure Noah. Satisfied that the crate could not fall into the crib, Noakes removed the crate, put Noah back into the crib, and placed a fabric-сovered piece of approximately one-inch thick cardboard on top of the crib. The cardboard was added, in part, to cushion the force of any impact between Noah‘s head and the crate if Noah attempted to stand. Although the cardboard would cover the entirety of the crib‘s top, Noakes positioned it so thе cardboard extended out over the front of the crib, where Noah often stood, thus leaving a small
With Noah in his now-covered crib, Noakes remained in the loft for a short while to determine if the enclosure was causing any distress to Noah and if he was attempting to stand up in the crib despite the covering. Observing no problems, Noakes left the loft. Sometimе before 1:00 p.m., Noakes, however, heard a noise from the loft and returned to find Noah sitting in his crib but not sleeping, with his face pressed against crib‘s front, mesh side. Concluding that Noah would not fall asleep if he were able to look for her, Noakes placed a toy in front of the crib to obstruct Noah‘s view “so that he would not be looking for [Noakes] but . . . would just get bored and go . . . to sleep.”
Noakes again left the loft at about 1:00 p.m. and did not return until 3:15 p.m., when she came to wake the other toddler from his nap. Noakes testified, however, that she monitored the toddlers audibly from her bedroom during that time and heard no noise from either of them. Noakes testified that when she returned to wake the other child, she did not look at Nоah‘s
Shortly after 4:00 p.m., Noakes returned to the loft to wake Noah and found him unconscious. He was standing with his chin resting on the side of the сrib, one or both of his hands gripping the crib‘s side, and his head and neck wedged between the cardboard and the crib. His lips were blue and his skin was cold to Noakes’ touch. Noakes surmised that Noah had attempted to stand, had pushed up against the cardboard causing the dog crate to slide a few inches thereby creating a space between the covering on top of the crib and the crib‘s wall. Noah then had moved his head toward the crib‘s center, where he normally stood, trapping himself in a space between the side of the crib and the cardboard, which was held in place by the weight of the dog crate. Despite Noakes’ efforts to revive Noah and the intervention of emergency mediсal personnel, Noah was pronounced dead at Noakes’ home.
An autopsy of Noah‘s body revealed that the cause of death was “[a]sphyxia due to mechanical compression of neck.” The medical examiner who performed the autopsy found “a pressure mark at the neck [and] little broken blood vessels on the faсe,” with “reddish coloring above and below the pressure mark.”
Noakes was subsequently convicted in a bench trial in the Circuit Court of the County of Chesterfield of involuntary manslaughter, in violation of
On appeal to the Court of Appeals of Virginia, a divided panel affirmed the trial court‘s judgment. Noakes v. Commonwealth, Record No. 0295-08-2 (Jan. 13, 2009) (unpublished). Upon rehearing en banc, the Court of Appeals
Noakes now appeals to this Court. In a single assignment of error, she asserts the evidence was insufficient as a matter of law to sustain her conviction, claiming that “her acts did not rise to the level of criminal negligence nor could she have anticipated the unforeseeable acts that would be performed by the child while inside the crib.”
ANALYSIS
When the sufficiency of the evidence is challenged on appeal, we review “the evidence in the light most favorable to the Commonwealth, the prevailing party in the [trial] court” and “accord the Commonwealth the benefit of all reasonable
We have defined the common law crime of involuntary manslaughter as “the killing of one accidentally, contrary to the intention of the parties, in the prosecution of some unlawful, but not felonious, act; or in the improper performance of a lawful act.” Mundy v. Commonwealth, 144 Va. 609, 615, 131 S.E. 242, 244 (1926); accord Brown, 278 Va. at 528, 685 S.E.2d at 45-46; Dowden, 260 Va. at 470, 536 S.E.2d at 443. To convict a person for involuntаry manslaughter caused by the improper performance of a lawful act, the Commonwealth must show that the improper performance of the lawful act “amount[ed] to an unlawful performance of such lawful act, not merely a negligent performance; that is, the lawful act must have been done in a way so grossly negligent and culpable аs to indicate an indifference to consequences or an absence of decent regard for
“In this context, the term[s] ‘gross, wanton, and culpable’ describe[] conduct. The word ‘gross’ means ‘aggravated or increased negligence’ while the word ‘culpable’ means ‘deserving of blame or censure.‘” Cable, 243 Va. at 240, 415 S.E.2d at 220 (quoting Bell v. Commonwealth, 170 Va. 597, 611, 195 S.E. 675, 681 (1938)). Gross negligence amounts to criminal negligence “when acts of a wanton or willful character, committed or omitted, show ‘a reckless or indifferent disregard of the rights of others, under circumstances reasonably calculated tо produce injury, or which make it not improbable that injury will be occasioned, and the offender knows, or is charged with the knowledge of, the probable result of his [or her] acts.‘”
In determining whether conduct rises to the level of criminal negligence, an “objective standard” applies, and criminal negligence may be found to exist when the defendant “еither knew or should have known the probable results of his[/her] acts.” Riley, 277 Va. at 483-84, 675 S.E.2d at 177 (internal quotation marks omitted); Brown, 278 Va. at 528, 685 S.E.2d at 46; Jones v. Commonwealth, 272 Va. 692, 701, 636 S.E.2d 403, 408 (2006). Thus, the Commonwealth did not need to prove that Noakes actually knew or intended that her conduct
Citing Gallimore v. Commonwealth, 15 Va. App. 288, 296, 422 S.E.2d 613, 618 (1992), aff‘d, 246 Va. 441, 448, 436 S.E.2d 421, 426 (1993), Noakes concedes on brief “that it is not necessary for a defendant to foresee the specific ma[nn]er in which injury occurred.” Noakes, nevertheless, argues that in evaluating the foreseeability of death or serious injury to Noah, attention must be given to the measures she “took to insure that death or serious injury would not occur.” Noakes points to her purpose for covering the crib — “to assist the child in sleeping” — and the “painstaking lengths [taken by her] to anticipate possible dangers and prevent them,” as well her “regular[]” returns “to the adjoining bedroom so that she could monitor the child as she did housework.” Noakes claims, “[e]ach оf these measures
Upon review of the evidеnce, we conclude that Noakes’ conduct in placing cardboard and a thirty-three and one-quarter pound, collapsed dog crate atop Noah‘s crib and failing to visually check on him for about three hours was wanton and willful, “showing a reckless or indifferent disregard of [Noah‘s rights], under circumstances [that made] it not improbable that injury [would] be oсcasioned, and [Noakes] is charged with the knowledge of[] the probable result of [her] acts.” Cable, 243 Va. at 240, 415 S.E.2d at 220. Noakes knew that Noah would attempt to stand in his crib and also that when doing so, Noah‘s head and chin rose above the height of the crib‘s sides. While she obviously took steps to prevent the crate‘s falling upon Noah and his reaching into the crate, Noakes should have known that a toddler, used to standing but constrained against his will, might attempt to free himself, thereby dislodging the makeshift covering and sustaining serious injury. The measures that Noakes undertook to prevent the crate from falling upon Noah demonstrate her actual knowledge of the inherent danger of
In sum, we agree with the Court of Appeals’ conclusion:
[T]he act of attempting to limit Noah‘s ability to stand in his crib was not inherently unlawful; however, a rational factfinder could indeed determine that the placing of a thirty-three-pound dog crate on Noah‘s crib, combined with [Noakes‘] inattentiveness in the face of this experimental and dangerous set-up and with Noah‘s conceded determination to stand up in his crib, constituted reckless and unlawful conduct in utter disregard of Noah‘s safety.
Noakes, 54 Va. App. at 593, 681 S.E.2d at 56.
Noakes, however, further contends that Noah‘s lifting “an object that weighed 30% greater than his own body weight and, without displacing [the object,] maneuver[ing] his head underneath it and asphyxiat[ing] himself” was not foreseeable and, thus, any knowledge of that danger cannot be “fairly imputed to her.” Noakes maintains that if Noah had “not performed this improbable feat,” her actions would not have caused injury to Noah. According to Noakes, Noah‘s actions were
“A proximate cause is ‘an act or omission that, in natural and continuous sequence unbroken by a superseding cause, produces a particular event and without which that event would not have occurred.‘” Brown, 278 Va. at 529, 685 S.E.2d at 46 (quoting Williams v. Joynes, 278 Va. 57, 62, 677 S.E.2d 261, 264 (2009)). An intervening act, to “‘break[] the chain of causal connection between an original act of negligence and subsequent injury,‘” cannot have been “‘reasonably foreseeable.‘” Gallimore, 246 Va. at 447, 436 S.E.2d at 425 (quoting Delawder v. Commonwealth, 214 Va. 55, 58, 196 S.E.2d 913, 915 (1973)); accord Brown, 278 Va. at 529, 685 S.E.2d at 46. “Furthermore, an intervening event, even if a cause of the harm, does not operate to exempt a defendant from liability if the intervening event was put into operation by the defendant‘s negligent acts.” Gallimore, 246 Va. at 447, 436 S.E.2d at 425 (citing Baxley v. Fischer, 204 Va. 792, 798, 134 S.E.2d 291, 295 (1964)).
Like the Court of Appeals, we conclude that whatever Noah did to maneuver his head and neck between the cardboard and the side of the crib was “put into operation” by Noakes’ placing the covering atop the crib. Gallimore, 246 Va. at 447, 436 S.E.2d at 425. There is no evidence in this record to show an
CONCLUSION
For these reasons, we will affirm the judgment of the Court of Appeals.
Affirmed.