                     COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Annunziata and Agee
Argued at Alexandria, Virginia


ANABELIS CORRALES, S/K/A
 ANABLIS CORRALES
                                          MEMORANDUM OPINION * BY
v.   Record No. 2797-01-2                  JUDGE G. STEVEN AGEE
                                             NOVEMBER 19, 2002
COMMONWEALTH OF VIRGINIA


      FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
                    John W. Scott, Jr., Judge

          John Franklin for appellant.

          Margaret W. Reed, Assistant Attorney General
          (Jerry W. Kilgore, Attorney General; Marla
          Graff Decker, Senior Assistant Attorney
          General, on brief), for appellee.


     Anabelis Corrales, s/k/a Anablis Corrales ("Corrales") was

convicted in a jury trial in the City of Fredericksburg Circuit

Court of the second degree murder of her newborn baby and

sentenced to five years in prison.   On appeal, Corrales contends

the trial court erred in admitting the autopsy report into

evidence, allowing the Medical Examiner to testify as to the

ultimate facts in issue and granting the Commonwealth's jury

instruction as to the elements of first degree murder while

refusing her instruction.   She also challenges the sufficiency of

the evidence to sustain her conviction.   For the reasons that

follow, we affirm the trial court's decision.


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                             BACKGROUND

     In the early morning hours of January 17, 2000, Corrales's

sister, Rosa, found her passed out on the floor of Corrales's

bedroom.   Rosa noticed blood in the bed and on her sister's legs

and called 911.   When Emergency Medical Technicians (EMTs)

arrived, they found Corrales awake but disoriented in her bed.

One of the EMTs asked Corrales several times if she was pregnant,

and she repeatedly responded that she was not.

     The EMTs took Corrales to the hospital where she was met by

a registered nurse who spoke fluent Spanish.     Corrales gave a

false name and again denied being, or having been, pregnant.       An

obstetrician, Dr. Tomzak, was called to the hospital and

determined that Corrales had recently given birth to a "near

term" baby.

     Later that day Detective Doug Perkins of the Fredericksburg

police met the local medical examiner at the Corraleses'

residence.    A baby was found in a double-tied plastic trash bag

in the closet of Corrales's bedroom.      After determining the baby

was dead, it was transported to the state medical examiner's

office for an autopsy.

     Dr. Art Shores of the medical examiner's office performed

the autopsy.   Dr. Marcella Fierro, the Chief Medical Examiner for

the Commonwealth of Virginia, testified at trial that she

reviewed and "signed off on" Dr. Shores's report.     Dr. Fierro

testified at trial that the conclusion in the report and her

conclusion were the same; the baby died from asphyxiation due to

                              - 2 -
smothering by plastic bag.     Dr. Fierro testified that the baby

did not have an infection, acute traumatic injury, or blocked

airways.   She also testified that the baby breathed and was alive

before death. 1

                                ANALYSIS

                  I.   Admission of the Autopsy Report

     Corrales does not dispute that Code § 19.2-188 requires that

autopsy reports by the Chief Medical Examiner's Office be

received as evidence in any court proceeding.      Her claim on

appeal is that while the autopsy report per se was admissible, it

was error for the trial court to admit into evidence that portion

of the autopsy report containing the medical examiner's

conclusion regarding cause of death.       In short, Corrales avers

the autopsy report should have been redacted to omit the cause of

death section.    Corrales cites Ward v. Commonwealth, 216 Va. 177,

217 S.E.2d 810 (1975), to support her contention.

     In Ward the Supreme Court of Virginia ruled that a statement

as to the cause of death in the medical examiner's report was

inadmissible because "[the] recorded statement was an expression

of opinion and, standing alone, was incompetent to show the cause

of [the decedent's] death."      Id. at 178, 217 S.E.2d at 811

(emphasis added).      In contrast to Ward, the conclusion as to the

cause of death in this case did not "stand[] alone."


     1
       As the parties are fully conversant with the record in
this case and because this memorandum opinion carries no
precedential value, only those facts necessary to a disposition
of this appeal are recited.
                             - 3 -
     The trial court properly admitted other evidence as to the

cause of death – asphyxiation by plastic bag – through the

testimony of Dr. Fierro as well as Detective Perkins, to which

Corrales did not raise an objection.    The "opinion" evidence

contained in the autopsy report was cumulative of their

unchallenged testimony.

     Accordingly, we find no error in the admission of the

autopsy report into evidence based on the facts in this case.

                II.    Medical Examiner's Testimony

     "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);

see also Rule 5A:18.    According to the record Corrales objected

to the introduction of the autopsy report, specifically

Dr. Shores's conclusion as to the cause of death, as hearsay and

improper opinion testimony.   However, the record does not reflect

an objection to Dr. Fierro's testimony on the same issue.      It has

been "repeatedly and consistently held that a litigant must

object to a ruling of the circuit court if that litigant desires

to challenge the ruling upon appeal."    Commonwealth v.

Washington, 263 Va. 298, 304, 559 S.E.2d 636, 639 (2002); see

also Waters v. Commonwealth, 39 Va. App. 72, 82-83, 569 S.E.2d

763, 767-68 (2002).    Accordingly, Rule 5A:18 bars our

consideration of this question on appeal.   Corrales has given no

reason to invoke the "good cause" or "ends of justice" exception

to Rule 5A:18, and we find none.

                              - 4 -
                      III.   Jury Instructions

     "'[Our] responsibility in reviewing jury instructions is "to

see that the law has been clearly stated and that the

instructions cover all issues which the evidence fairly

raises."'"   Leal v. Commonwealth, 37 Va. App. 525, 532, 559

S.E.2d 874, 878 (2002) (quoting Darnell v. Commonwealth, 6 Va.

App. 485, 488, 370 S.E.2d 717, 719 (1988) (citation omitted)).

"On appeal, although the Commonwealth prevailed at trial, when we

consider the refusal of the trial court to give a proffered

instruction, '"the appropriate standard of review requires that

we view the evidence with respect to the refused instruction in

the light most favorable to the defendant."'"    Leal, 37 Va. App.

at 532, 559 S.E.2d at 878 (quoting Seegars v. Commonwealth, 18

Va. App. 641, 643, 445 S.E.2d 720, 722 (1994) (citations

omitted)).

     The trial court must inform the jury of the essential

elements of the offense because an accurate statement of the law

is essential to a fair trial.    Dowdy v. Commonwealth, 220 Va.

114, 116, 255 S.E.2d 506, 508 (1979).   "An instruction should not

be given which incorrectly states the applicable law or which

would be confusing or misleading to the jury."    Bruce v.

Commonwealth, 9 Va. App. 298, 300, 387 S.E.2d 279, 280 (1990)

(citing Cooper v. Commonwealth, 2 Va. App. 497, 345 S.E.2d 775

(1986)).   Furthermore, "[i]t is not desirable to multiply

instructions and is not error to refuse even a correct

instruction on a point upon which the jury has already been fully

                              - 5 -
and correctly instructed."    Ambrose v. Commonwealth, 129 Va. 763,

766, 106 S.E. 348, 349 (1921).

     Corrales alleges the trial court erred by refusing to give

her proffered jury instruction while giving the Commonwealth's

instruction on first degree murder.    The instruction given

follows the model jury instructions for first degree murder.

Corrales's rejected instruction included two additional elements:

that the child was born alive and that the child had an

independent and separate existence apart from its mother.

     In Lane v. Commonwealth, 219 Va. 509, 248 S.E.2d 781 (1978),

the Supreme Court of Virginia adhered to the prevailing view of

other jurisdictions that in a prosecution for killing a newly

born baby "it is incumbent upon the State to prove that the child

was born alive and had an independent and separate existence

apart from its mother." 2   Id. at 514, 248 S.E.2d at 783.   Finding

the evidence insufficient to prove "that the child ever achieved

an independent existence apart from its mother," the Supreme

Court reversed the conviction.    Corrales argued to the trial

court that Lane accordingly required her proffered instruction be

given as it contained essential elements of the crime charged.




     2
       Other states have also followed this rule. See e.g. State
v. Collington, 192 S.E.2d 856 (S.C. 1972); State v. Dickinson,
275 N.E.2d 599 (Ohio 1971); Montgomery v. State, 44 S.E.2d 242
(Ga. 1947); Jackson v. Commonwealth, 96 S.W.2d 1014 (Ky. 1936);
Morgan v. State, 256 S.W. 433 (Tenn. 1923).
                             - 6 -
        The Commonwealth argues that whether the baby was alive and

had an independent existence is implied within the first element

of the given model instruction:    "that the defendant killed Baby

Girl Corrales."    Simply put, the Commonwealth's position is that

the items Corrales proposes are, of necessity, subsumed in the

model instruction and further delineation would only confuse the

jury.    We agree with the Commonwealth's position and find no

error in the rejection of Corrales's proffered instruction.

        Most of the evidence relevant to this point entered the

record via Dr. Fierro's testimony.     Dr. Fierro testified that the

baby breathed after being born.    She testified that she could

find no other cause of the baby's death either from illness or

complications during birth.    On cross-examination she admitted

that she could not rule out that the baby was dead before

placement into the plastic bag.

        Corrales made extensive argument on those points of evidence

to the jury.    Corrales was given, and took full advantage of, the

opportunity during closing argument, to impress the

Commonwealth's burden upon the jury, including arguing there must

be a showing the child was born alive and had a separate and

independent existence.    The issue of whether Corrales "killed"

the baby (and whether the baby was alive and had a separate and

independent existence) was squarely before the jury.    The

additional items Corrales proferred were duplicative of the

essence of the model instruction and could have well confused the

jury.

                               - 7 -
     Moreover, Lane does not hold that such separate instruction

to the jury is required as Corrales requested.       Lane dealt only

with the sufficiency of the evidence and raised no issue as to a

requirement for the particular jury instruction proffered.

Therefore, we do not find Lane as authority for a mandated

instruction beyond that of the model instruction which was what

the trial court gave in this case.

     We therefore find no error in the trial court's refusal to

give Corrales's proffered jury instruction and in the giving of

the Commonwealth's instruction.

                IV.     Sufficiency of the Evidence

     When considering the sufficiency of the evidence on appeal

in a criminal case, this Court views the evidence in the light

most favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.       See Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).        On

review, this Court does not substitute its own judgment for that

of the trier of fact.     See Cable v. Commonwealth, 243 Va. 236,

239, 415 S.E.2d 218, 220 (1992).       The trial court's judgment will

not be set aside unless it appears that the judgment is plainly

wrong or without supporting evidence.       See Martin v.

Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).

     Corrales argues on appeal that the evidence was insufficient

to support the verdict.    Specifically, Corrales argues that the

Commonwealth failed to prove that:      (1) the baby was born alive,

(2) the baby had a separate and independent existence from the

                               - 8 -
mother, (3) she was the criminal agent, and (4) she acted with

malice.   We disagree.

     On the issue of whether the baby was born alive the jury

heard Dr. Fierro's testimony that the baby's lungs were filled

with air and floated in water.   This led her to conclude the baby

had breathed on its own for at least a few minutes.    She also

told the jury that she could find no other causation such as

disease or injury that would have caused the baby's death.    The

defendant's own expert admitted that the evidence was consistent

with Dr. Fierro's opinion.   From this testimony, the jury could

conclude that the baby was born alive and had an existence

separate and independent from the mother.

     Corrales also asserts that the Commonwealth failed to

present direct evidence that she was the criminal agent and that

the only evidence was circumstantial.    Circumstantial evidence,

if sufficiently convincing, is as competent and entitled to the

same weight as direct testimony.     Williams v. Commonwealth, 259

Va. 377, 387, 527 S.E.2d 131, 137 (2000); Chichester v.

Commonwealth, 248 Va. 311, 329, 448 S.E.2d 638, 650 (1994), cert.

denied, 513 U.S. 1166 (1995).    "[C]ircumstantial evidence alone

is sufficient to sustain a conviction."     Johnson v. Commonwealth,

2 Va. App. 598, 604-05, 347 S.E.2d 163, 167 (1986).    However,

"'all necessary circumstances proved must be consistent with

guilt and inconsistent with innocence and exclude every

reasonable hypothesis of innocence.'"     Tweed v. Commonwealth, 36

Va. App. 363, 370, 550 S.E.2d 345, 348-49 (2001) (quoting Moran

                             - 9 -
v. Commonwealth, 4 Va. App. 310, 314, 357 S.E.2d 551, 553

(1987)).

     Having determined that Baby Corrales was born alive with no

apparent medical problems, the jury could justifiably infer from

the evidence that Corrales was the criminal agent of her death.

The evidence showed that Corrales continuously denied having

given birth, yet she was the only one who apparently knew of the

baby's existence and its location in the bag in her bedroom

closet.

     Although the medical testimony was not conclusive, it was

certainly sufficient to support a causal connection between

Corrales's actions and the baby's death.    See Cook v.

Commonwealth, 219 Va. 769, 250 S.E.2d 361 (1979).   There was

clearly evidentiary support in the record for the jury's decision

which cannot be said to be plainly wrong.

     Corrales finally contends the Commonwealth failed to prove

she acted with the requisite malice.   "The authorities are

replete with definitions of malice, but a common theme running

through them is a requirement that a wrongful act be done

'willfully or purposefully.'"   Vaughan v. Commonwealth, 7

Va. App. 665, 674, 376 S.E.2d 801, 806 (1989) (quoting Williamson

v. Commonwealth, 180 Va. 277, 280, 23 S.E.2d 240, 241 (1942)).

"Killing with malice but without premeditation and deliberation

is murder in the second degree."   Elliot v. Commonwealth, 30

Va. App. 430, 436, 517 S.E.2d 271, 274 (1999) (citing Perricllia

v. Commonwealth, 229 Va. 85, 91, 326 S.E.2d 679, 683 (1985)).

                            - 10 -
Furthermore, the trier of fact is permitted to infer malice from

the evidence.   Vaughan, 7 Va. App. at 674, 376 S.E.2d at 806.

     The jury could infer malice through Corrales's actions after

giving birth.   When determining whether her actions were done

willfully or purposefully the jury could have considered

Corrales's constant denials of being pregnant at the hospital,

testimony from her friend that she wanted to cremate the body,

and evidence that she faced eviction for having another baby.

Inference of malice from this evidence was not error.

     For the foregoing reasons, we find the evidence sufficient

to support the jury's verdict.

                            CONCLUSION

     Having found no error in the determinations of the trial

court, the conviction is affirmed.

                                                           Affirmed.




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