                    COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Willis and Bray
Argued by Teleconference


ANTWAN R. JENKINS
                                         MEMORANDUM OPINION *
v.        Record No. 1093-96-1        BY JUDGE JOSEPH E. BAKER
                                            JUNE 3, 1997
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                    Von L. Piersall, Jr., Judge
          John D. Levin (Levin & Levin, on brief), for
          appellant.

          Daniel J. Munroe, Assistant Attorney General
          (James S. Gilmore, III, Attorney General, on
          brief), for appellee.



     Antwan R. Jenkins (appellant) appeals his jury trial

convictions for first degree murder in violation of Code

§ 18.2-32 and for use of a firearm in the commission of a felony

in violation of Code § 18.2-53.1.   Appellant contends that the

evidence fails to show beyond a reasonable doubt that three

gunshot wounds he inflicted upon Kelly Jackson (Jackson) were the

cause of Jackson's death.   Therefore, he asserts that the

evidence is insufficient to sustain his convictions.

     Upon familiar principles, we view the evidence in the light

most favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.   Martin v. Commonwealth,


     *
      Pursuant to Code § 17-116.010 this opinion is not

designated for publication.
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).    Viewed

accordingly, the record reveals that on May 21, 1995 appellant

inflicted three gunshot wounds upon Jackson.    Jackson was

hospitalized and received treatment for the wounds, including

emergency surgery to repair damage to his large and small

intestines.    Jackson, however, died at the hospital on May 25,

1995.

        Dr. Faruk Presswalla (Dr. Presswalla), the Deputy Chief

Medical Examiner for the Commonwealth, performed the autopsy on

Jackson.    Dr. Presswalla testified that although two of the

bullet wounds did not penetrate the body cavity or injure any

vital structures, the third bullet wound perforated Jackson's

large and small intestines.    Dr. Presswalla added that the large

and small intestines were not vital organs in the sense that

"hitting them will kill you right away but it's a serious injury

because without treatment it will become a fatal injury,

especially the colon, because the colon is full of microorganisms

that could produce serious infection."
        When asked if he formed an opinion as to Jackson's cause of

death, Dr. Presswalla testified only that "[Jackson] died as a

result of this aspiration following the gunshot wound to the

abdomen."    In other words, "his vomit [went] up and down into the

airway, into his lungs."    The prosecutor presented no evidence

regarding the cause of the aspiration and made no further inquiry

regarding the cause of Jackson's death.




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     Dr. Jeff Carney (Dr. Carney), a surgical resident who

treated Jackson, wrote in Jackson's patient notes following the

date May 25, 1995 and time 11:20 a.m., "Please have Discharge

Planning and Home Health evaluate patient."   Although he could

not state with certainty, Dr. Carney opined that Jackson may have

had "some type of seizure activity" which produced relatively

common vomiting.   Dr. Carney based his statement on Jackson's

spastic movements in his extremities, his vomiting, and his eyes

rolling back into his head.
     "In every prosecution for the commission of a homicide the

Commonwealth must prove that the party alleged to have been

murdered is dead, and that death resulted from the criminal act

or agency of another."    Spain v. Commonwealth, 7 Va. App. 385,

393, 373 S.E.2d 728, 732 (1988).    "Because the victim of a

felonious act dies after infliction of an injury does not

necessarily impose criminal liability upon the perpetrator.    To

place such criminal liability on him, the injury must be a cause

of the victim's death."    Id.

     In appellant's case, the Commonwealth failed to present

evidence that Jackson's "death resulted from the criminal act or

agency of another."   When Dr. Presswalla was asked if he formed

an opinion as to Jackson's cause of death, he responded that

"[Jackson] died as a result of this aspiration following the

gunshot wound to the abdomen."    Clearly, the record is sufficient

to support a conclusion that Jackson died of the aspiration.




                                 - 3 -
However, the Commonwealth failed to show by Dr. Presswalla

whether the aspiration simply occurred after or was caused by the

gunshot wound.   Therefore, the fact finder had no way of

determining whether Dr. Presswalla meant that the aspiration was

simply an unrelated event which coincidentally occurred after the

gunshot wound, or a result of the gunshot wound with a causal

relationship thereto. 1   Accordingly, we hold that the record

before us fails to support a finding that Jackson's death was

caused by any of the gunshot wounds inflicted by appellant.
     For the reasons stated, the judgment of the trial court

approving appellant's convictions is reversed, and the

prosecution against appellant is dismissed.

                                            Reversed and dismissed.




     1
      We acknowledge that one of the exhibits, Jackson's

typewritten discharge summary which is signed by Dr. Carney,

contains an almost indecipherable handwritten note in the top

left corner:   "many Factors contributed to his death but all were

result of Gunshot wound."    There is no indication in the record

of the source or author of this handwritten note and neither

party acknowledged the note in its brief.    Consequently, we can

only speculate as to its origin, authenticity, and authorship,

and we are constrained by the record before us to disregard it.



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