TORRE A. RUSSELL, S/K/A TORRE ANTWAN RUSSELL v. COMMONWEALTH OF VIRGINIA
Record No. 1361-16-1
COURT OF APPEALS OF VIRGINIA
AUGUST 22, 2017
JUDGE RANDOLPH A. BEALES
Present: Judges Beales, Chafin and Malveaux
Argued at Norfolk, Virginia
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS, Bryаnt L. Sugg, Judge
UNPUBLISHED
Aaron J. Campbell, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
MEMORANDUM OPINION* BY JUDGE RANDOLPH A. BEALES
At the conclusion of a bench trial, the trial court convicted Torre A. Russell (“appellant”) of felony cruelty and injuries to a child in violation of
We consider the evidence on appeal “in the light most favorable to the Commonwealth, as we must since it was the prevailing party” in the trial court. Beasley v. Commonwealth, 60 Va. App. 381, 391, 728 S.E.2d 499, 504 (2012) (quoting Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004)). Steve Richardson (“father”) and Shamiah Bolden (“mother”) shared custody of the victim in this matter, their three-year-old child (“the child”).1 Appellant was mother’s boyfriend, and the two of them shared a residence in Newport News in June 2015.
From June 28, 2015 through June 30, 2015, the child was in the custody of mother and appellant. On June 30, mother went to her job at Taco Bell, leaving the child at home with appellant as his babysitter. Later that day, appellant’s mother, Chereta Braddock, drove appellant and the child to Taсo Bell. Appellant’s mother testified that she did not observe any bruises, scratches, or markings on the child on that day. The child sat with mother at Taco Bell while waiting for Rhonda Richardson, the child’s paternal grandmother, to pick him up. Mother testified that she did not observe any injuries to her son at that time, other than that “he had red cheeks.”
The paternal grandmother arrived at Taco Bell on the aftеrnoon of June 30. When she arrived, the child was inside of another vehicle with appellant’s mother. Appellant’s mother then took the child out of her car and placed him in his car seat in the paternal grandmother’s car. The grandmother’s daughter and granddaughter were also present in the car. While the grandmother was driving, she overheard her granddaughter asking the child “about the injuries on his face.” Whеn the grandmother asked the child about his injuries, the child did not respond. Because she was driving, the grandmother stopped the car to investigate. She observed that the right side of the child’s face was bruised. When she asked the child what happened, the child did
Father arrived to pick up the child approximately one hour after he received the call from his mother. When father saw his son, he observed that the child had a bruise on his eye, scratches on each ear, and a bruise on his arm as though someone grabbed him. Before father could ask the child about his injuries, the child began to cry. Father testified that he tried to calm the child down by telling him that “everything was okay and he wasn’t in trouble.” Father testified that his son “did not want to tell [him] what happened,” that the child was scared, and that such behavior was unusual for his son. Only after assuring the child that he was not in trouble and asking the child, “what happened?” did the child tell his father, “Torre hit me in the eye.” Father testified that his son was looking down and that he did not want to make eye contact with his father. Father asked why appellant hit him, and the child replied, “I’m not going to peе on myself never [sic] again, I’m not going to pee on myself, I promise.” Appellant’s counsel objected to father’s testimony about statements that the child had made to him on the ground that such statements were inadmissible hearsay. The trial court ultimately overruled appellant’s objection, saying, “With respect to statements made by the young man to his father, the [c]ourt is going to allow those statements in as excited utterance.”
At the hospital, the child was examined by Dr. Kevin Knoop, an emergency room physician. Dr. Knoop, testifying at trial as an expert in emergency medicine, concluded that the
Katrina Parks was an emergency room nurse who also treated the child. She testified at trial, “I asked [the child] what happened. He told me that he had been grabbed. To me the pattern on the arm did look like he could have been grabbed in my opinion. And then I took a look inside his mouth because he told me his mouth was hurt and I observed some blood inside his cheek.” Nursе Parks also testified that the child told her that “Torre [appellant] hit me.” Appellant objected and asserted that the statement concerning who had struck the child constituted inadmissible hearsay. The Commonwealth then argued that the statement was admissible either as an excited utterance or as a statement for the purposes of medical diagnosis or treatment.
Detective Damе of the Newport News Police Department interviewed appellant regarding allegations that the child had been abused. While appellant denied hitting the child, the detective noted that appellant often avoided answering certain questions. The detective also noted that appellant did not seem concerned about the child’s welfare. Appellant admitted that hе had been the child’s babysitter on the morning of June 30, 2015, but claimed that the child had no marks on him when the paternal grandmother picked him up at Taco Bell.
II. ANALYSIS
A. The Child’s Statement to Father
Appellant argues that the trial court erred by admitting the child’s statement to his father because the statement was hearsay and did not qualify as an exception to the hearsay rule. Specifically, he argues that the child’s statement (“Torre hit me in the eye”) was not admissible
B. Non-Constitutional Harmless Error
As this case involves an alleged evidentiary error, we apply the provisions of
When it plainly appears from the record and the evidence given at the trial that the parties have had a fair trial on the merits and substantial justice has been reached, no judgment shall be arrested or reversed . . . [f]or any . . . defect, imperfection, or omission in the record, or for any other error committed on the trial.
Virginia courts “have applied
Upon review of the record, we find that the alleged error was harmless because the challenged testimony was cumulative of other evidence at trial. It is clear from the record that appellant objected to the admission of the statement the child made to his father that “Torre hit me in the eye” and thus preserved the question of whether such evidence should have been admitted for appellate review. However, Nurse Parks also testified that the child told her that “Torre hit me.” While appellant did object to that testimony as well, there is no clear evidencе in the record that the trial court actually excluded Nurse Parks’s testimony. The trial judge did not state a clear ruling on that objection on the record or in any written order of the trial court.3 In
In this matter, our review of the transcript shows that the challenged statement of the child to his father was nearly identical to the child’s statement to the nurse. Accordingly, even if we assume without deciding that the admission of the child’s statement to his father that appellant had hit him was error, we conclude the challenged testimony was merely cumulative of other, nearly identical testimony made and not excluded at trial. In other words, the evidence challenged on appeal was cleаrly not an essential element of the prosecution’s case when the trial court also did not exclude a nearly identical statement that the child had made to the nurse about who had struck him. Consequently, we find that any error in admitting the father’s testimony was harmless.4 See King v. Cooley, 274 Va. 374, 380, 650 S.E.2d 523, 527 (2007) (holding the exclusion of cumulative testimony could not have affected the jury’s verdict and, thus, was harmless).
C. Sufficiency of the Evidence
When considering the sufficiency of the evidence presented below, “a reviewing court does not ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’” Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384, 387
Appellant was convicted of a violation of
It shall be unlawful for any person employing or having the custody of any child willfully or negligently to cause or permit the life of such child to be endangered or the health of such child to be injured, or willfully or negligently to cause or permit such child to be placed in a situation that its life, health or morals may be endangered, or to cause or permit such child to be overworked, tortured, tormented, mutilated, beaten or cruelly treated. Any person violating this section is guilty of a Class 6 felony.
On appeal, appellant simply argues that the Commonwealth failеd to prove that the conduct alleged rose to the level of criminal negligence. In support of that argument, appellant contends that the child’s injuries were minor, that the child was not taken to the hospital immediately, and that the child’s injuries were not even observed immediately.
The Supreme Court interpreted the criminal negligence element of
Criminal negligence is established by showing thаt the defendant’s acts or omissions were “of a wanton or willful character . . . show[ing] a reckless or indifferent disregard of the rights of others, under circumstances reasonably calculated to 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 [her] acts.”
At trial, the evidence established that appellant was the criminal actor who struck the child. Dr. Knoop testified that the injuries to the child’s face were caused by “nonaccidental trauma.” Nurse Parks testified that she observed injuries on the child’s arm that lоoked like the child had been grabbed with force. She also testified that she found blood in the child’s mouth. The child was hit on his head – a delicate place to be injured, especially for a three-year-old child. Moreover, evidence established that the child was hit on both sides of his face with enough force to draw blood. Father also testified that the child was very upset hours after leaving the сustody of appellant.
Under these circumstances, a rational factfinder could have concluded that criminal negligence had been proven beyond a reasonable doubt. Viewed in the light most favorable to the Commonwealth, the evidence established that appellant’s actions of striking the three-year-old victim multiple times constituted willful and reckless behavior that was reasonably calculated to produce injury. Therefore, we find that the essential elements of criminal negligence were proven beyond a reasonable doubt, and we affirm the judgment of the trial court.
III. CONCLUSION
In summary, our review of the record leads us to the conclusion that the child’s statement to his father was simply cumulative of Nurse Parks’s testimony regarding a nearly identical statement the child made to the nurse. Thus, even if we assume without deciding that the statement to the child’s father was erroneously admitted into evidence, we find that the challenged testimony was merely cumulative of the nurse’s testimony that the trial court did not
Affirmed.
Notes
However, this Court’s analysis must hinge on whether the trial judge actually ruled on appellant’s objection and affirmatively excluded the evidence from the record – not on whether the parties below thought that the evidence had been excluded. The parties’ subjective beliefs about what took place cannot influence our legal conclusion that the record reflects that the nurse’s testimony was not excluded from the record because it was not ever specifically excluded by action of the trial court. It is axiomatic that testimony becomes a part of the record during a trial when a witness testifies under oath, regardless of whether such evidence should have been admitted, unless and until a trial court explicitly excludes such evidence. Taylor v. Commonwealth, 208 Va. 316, 324, 157 S.E.2d 185, 191 (1967) (noting the obligation of objecting counsel to obtain a ruling from the trial court); Fisher v. Commonwealth, 16 Va. App. 447, 454, 431 S.E.2d 886, 890 (1993) (finding that failure to obtain a ruling precludes appellate review of an issue on appeal); cf. M.G. v. Albemarle County Dep’t of Soc. Servs., 41 Va. App. 170, 189 n.10, 761, 770 n.10 (2003).