                                         COURT OF APPEALS OF VIRGINIA


            Present: Judges Beales, Chafin and O’Brien
PUBLISHED


            Argued at Norfolk, Virginia


            JERRELL CORTEZ EDWARDS
                                                                                OPINION BY
            v.     Record No. 0954-14-1                                  JUDGE MARY GRACE O’BRIEN
                                                                             DECEMBER 22, 2015
            COMMONWEALTH OF VIRGINIA


                         FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                                        H. Thomas Padrick, Jr., Judge

                           Richard Clark, Senior Assistant Public Defender, for appellant.

                           Donald E. Jeffrey, III, Senior Assistant Attorney General (Mark R.
                           Herring, Attorney General, on brief), for appellee.


                   A jury convicted Jerrell Cortez Edwards (“appellant”) of second-degree felony murder, in

            violation of Code § 18.2-33, and felony child abuse or neglect, in violation of Code

            § 18.2-371.1(B). The victim was the two-year-old son of appellant’s girlfriend. Appellant was

            sentenced to twenty-five years in the state penitentiary on the murder charge and five years in the

            penitentiary on the child abuse charge. On appeal, appellant alleges the following error: “The

            trial court erred in not granting either jury instructionn [sic] 1A or 1B which contained lesser

            included offenses because there was credible evidence to support such an instruction beyond a

            scintilla of evidence.” We disagree and affirm the trial court’s ruling.

                                                   I. BACKGROUND

                   “When reviewing a trial court’s refusal to give a proffered jury instruction, we view the

            evidence in the light most favorable to the proponent of the instruction.” Commonwealth v.

            Vaughn, 263 Va. 31, 33, 557 S.E.2d 220, 221 (2002). So viewed, the evidence established that

            Laquita Lewis, the mother of the two-year-old victim, J.L., and another five-week-old son, was
living with appellant on April 5, 2012. Approximately 7:20 p.m. that evening, she left the

children in appellant’s care while she attended a class. According to Lewis, J.L. appeared

healthy and uninjured at the time she left the residence.

       Appellant texted Lewis during her class. He told her that J.L. was out of diapers and that

the child had cut his lip while appellant was changing his diaper. Lewis stopped to buy diapers

after class and returned home just before 10:00 p.m. Upon her arrival, she found appellant in the

child’s room, attempting to perform CPR. J.L. was unresponsive. Lewis saw appellant slap

J.L.’s face “a couple of times trying to get him to wake up” and saw him attempting chest

compressions. He told Lewis “I don’t know [what happened]. I just found him like this.”

       Lewis called 911, and emergency personnel responded approximately seven minutes

later. The EMTs who responded noted that the victim’s abdomen was distended. They had

difficulty establishing an airway for the child, who was not breathing and had no heartbeat. J.L.

was taken to the hospital, where he was pronounced dead.

       A police officer initially questioned appellant while emergency personnel were

attempting to treat the child at the residence. Appellant told the officer that J.L. had been “fussy”

that evening, so around 7:30 p.m. he gave the child some juice and laid him down in bed “to put

him to sleep to help calm him down.” He told the officer that about two hours later, when he

went to check on J.L., he noticed that the child had vomit on the side of his mouth and was not

breathing. According to appellant, at that point he “started trying to perform CPR” on the child.

       When Lewis returned from the hospital after her child’s death, she noticed that the

bathtub was about one-quarter filled with water. A detective arrived at the apartment and

questioned appellant further. Appellant told the detective that he had three shots of vodka at

about 6:00 p.m. that evening. He said that J.L. had a temper tantrum when Lewis left for school.

He needed to change J.L.’s diaper and had to physically hold the child down, with his hand on
                                                -2-
the child’s chest. While he was doing so, the child flailed about, and hit his mouth on appellant’s

watch. Appellant said that he took the child to the bathroom to clean the blood from his mouth

and then left J.L. in his room with a bottle of water. Appellant went into another room where he

had a forty-five-minute video chat with an ex-girlfriend. He ended the conversation just before

Lewis was due to come home and checked on the victim. At that time he noticed that the victim

was unresponsive and had vomit on his shirt.

       At trial, Dr. Jeffrey Gofton, a medical examiner in the Office of the Chief Medical

Examiner in Norfolk, testified that he performed an autopsy on J.L. on April 6, 2012. His

examination revealed that the child had multiple external injuries to the head that showed signs

of healing. The doctor also identified abrasions to the victim’s lips and mouth and fresh bruising

behind the child’s left ear. There were a series of bruises on both sides of the victim’s chest, and

other internal organs, including the heart, were bruised. Both the liver and stomach had been

ruptured internally. J.L.’s autopsy also showed bruising to the large bowel and a fracture line to

the liver approximately two inches long and two inches deep. The doctor stated that the injuries

to the liver and stomach could not have been caused by misapplied CPR. He explained that

typical injuries from CPR are “along the middle [of the body] just overlying the sternum or the

breastplate,” and J.L.’s injuries were not in that area. The doctor opined that the cause of the

child’s death was blunt force trauma to the chest and the abdomen.

       Dr. Michelle Clayton, a pediatrician, who was qualified as an expert in the field of child

abuse, testified that she attended the autopsy and reviewed the victim’s medical records. She

opined that the abrasions inside J.L.’s mouth could not have been caused by contact with

appellant’s watch because they were too extensive. She also agreed with the medical examiner

that the injuries to the victim’s chest were not sustained during CPR. She noted that a significant

portion of the child’s circulating blood was found in his abdominal cavity and opined that the
                                                -3-
victim had been subjected to “severe blunt force trauma of multiple body areas including

multiple blows to his face, . . . multiple blows to his chest[,] and . . . severe blunt force trauma to

his abdomen.” She described a “large purple bruise on [J.L.’s] lower intestine and appendix”

and a bruise to the large intestine and surrounding tissue. Dr. Clayton opined that none of the

injuries appeared accidental, based on their severity, location, and the “absence of any reasonable

accidental explanation.”

        Appellant testified in his defense. He told the jury that before Lewis left for class, J.L.

begged her not to leave. Lewis and J.L. were in another room when appellant “heard her slap

him. Then [he] heard boom, boom, and then [he] heard some hollow punches to[o] like it was

the chest area.” Appellant reiterated his claim that his watch hit the child’s mouth while

appellant was changing him. Then, to “rinse the blood out of [J.L.’s] mouth,” appellant put

J.L.’s head under the bathtub faucet “four to five, possibly six” times. He testified that he put the

child in bed with a small bottle of water and left the room to video-chat. When he returned to the

room, he found J.L. lying face up with vomit on his mouth and shirt. Appellant said that he was

trained in adult CPR and that he began performing CPR on J.L. When J.L. did not respond,

appellant “panicked” and “started hitting [the child] on his legs, on his chest[,] [] started tapping

his sides[,] [] started pinching him trying to get him to react.” Appellant further stated that “[he]

was tapping his—hitting his face, . . . just trying to get a response out of [the child].” He claimed

that he did not intend to hurt the victim.

        At the conclusion of the evidence, the court instructed the jury on the elements of each of

the charges. The court denied appellant’s proffered Instructions 1A and 1B. Appellant asserts

that the instructions, which defined involuntary manslaughter and assault and battery, were

proper statements of law, and were warranted by the facts of the case.



                                                 -4-
                                          II. ANALYSIS

                                      A. Standard of Review

       Granting or denying jury instructions “rest[s] in the sound discretion of the trial court.”

King v. Commonwealth, 64 Va. App. 580, 586, 770 S.E.2d 214, 217 (2015) (alteration in

original) (quoting Cooper v. Commonwealth, 277 Va. App. 377, 381, 673 S.E.2d 185, 187

(2009)). On appeal, we consider the trial court’s ruling with an abuse of discretion standard of

review. Gaines v. Commonwealth, 39 Va. App. 562, 567, 574 S.E.2d 775, 778 (2003) (en banc).

“A reviewing court’s 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.’” Rhodes

v. Commonwealth, 41 Va. App. 195, 200, 583 S.E.2d 773, 775 (2003) (quoting Darnell v.

Commonwealth, 6 Va. App. 485, 488, 370 S.E.2d 717, 719 (1988)).

       “A trial court should instruct the jury . . . ‘on all principles of law applicable to the

pleadings and the evidence.’” Mouberry v. Commonwealth, 39 Va. App. 576, 582, 575 S.E.2d

567, 569 (2003) (quoting Dowdy v. Commonwealth, 220 Va. 114, 116, 255 S.E.2d 506, 508

(1979)). However, while a defendant is entitled to have the jury instructed on his theory of the

case, “such an instruction [must be] supported by some appreciable evidence.” Harris v.

Commonwealth, 134 Va. 688, 695, 114 S.E. 597, 600 (1922). In other words, the defendant’s

theory must be supported by “more than a scintilla of evidence.” Eaton v. Commonwealth, 240

Va. 236, 255, 397 S.E.2d 385, 397 (1990). We have declined to define the term “scintilla,” but

instead held that it should be “‘resolved on a case-by-case basis’ by assessing the evidence in

support of a proposition against the ‘other credible evidence that negates’ it.” Woolridge v.

Commonwealth, 29 Va. App. 339, 348, 512 S.E.2d 153, 157 (1999) (quoting Brandau v.

Commonwealth, 16 Va. App. 408, 411-12, 430 S.E.2d 563, 565 (1993)).



                                                 -5-
              Further, if an instruction is offered for a lesser-included offense, the evidence must

“provide the necessary quantum of independent evidence” to support the instruction.

Commonwealth v. Leal, 265 Va. 142, 146-47, 574 S.E.2d 285, 288 (2003). A defendant is not

entitled to a lesser-included offense instruction unless a jury could “rationally find the defendant

guilty of the lesser offense, yet acquit him of the greater.” Carter v. United States, 530 U.S. 255,

261 n.3 (2000) (quoting Schmuck v. United States, 489 U.S. 705, 716 n.8 (1989)).

                                          B. Proffered Jury Instructions were Properly Rejected

              The court instructed the jury that to find appellant guilty of felony murder, it must

conclude that appellant killed the victim, that the killing was accidental and contrary to

appellant’s intention, and that the child’s death occurred while appellant was committing the

felony of child abuse. Another instruction defined the elements of the second felony charge,

child abuse or neglect: that appellant was responsible for the care of a child under the age of

eighteen and that appellant’s willful acts or omissions in the care of the child were so gross,

wanton, and culpable as to demonstrate a reckless disregard for human life.

              Appellant contends that the court erred in denying his proposed instructions. One

proposed instruction allowed the jury to find appellant guilty of involuntary manslaughter instead

of felony murder. Another proposed instruction permitted the jury to find him guilty of assault

and battery if the Commonwealth did not prove all of the elements of either felony murder or

involuntary manslaughter.1 The evidence in this case did not warrant granting either of the

instructions on lesser-included offenses.



                                                            
              1
                  Appellant’s proposed Instruction 1A stated, in pertinent part:

                                     If you find from the evidence that the Commonwealth has
                             proved the first two elements of the felony homicide but not the
                             third that the defendant was then committing the felony of child
                                                              -6-
                                                                         1. Assault and Battery

              A battery is the least touching of another, willfully or in anger, including touching done

in the spirit of rudeness or insult. Hinkel v. Commonwealth, 137 Va. 791, 794, 119 S.E. 53, 54

(1923). Here, the uncontradicted medical evidence established that J.L. died as a result of


                                                                                                                                                                                                
                             neglect but do find the Commonwealth proved beyond a
                             reasonable doubt each of the following elements of that crime:
                                     (1) That the defendant killed J. L.; and
                                     (2) That the killing, although unintended, was the direct
                             result of the unlawful performance of a lawful act, accompanied by
                             carelessness; the performance of an unlawful, but not felonious,
                             act, accompanied by carelessness so gross, wanton and culpable as
                             to show a callous disregard of human life[,] . . . then you shall find
                             the defendant guilty of involuntary manslaughter . . . .

                                     If you find that the Commonwealth has failed to prove
                             beyond a reasonable doubt either felony murder or involuntary
                             manslaughter but you do find beyond a reasonable doubt:
                                     (1) That the defendant willfully touched [J.L.] without legal
                             excuse or justification; and
                                     (2) That the touching was done in an angry, rude, insulting
                             or vengeful manner; then you shall find the defendant guilty of
                             assault and battery . . . .

              Appellant’s proposed Instruction 1B stated, in pertinent part:

                                     If you find from the evidence that the Commonwealth has
                             proved the first two elements of the felony homicide but not the
                             third that the defendant was then committing the felony of child
                             neglect but do find the Commonwealth proved beyond a
                             reasonable doubt each of the following elements of that crime:
                                     (1) That the defendant killed J. L.; and
                                     (2) That the killing, although unintended, was the direct
                             result of the unlawful performance of a lawful act, accompanied by
                             carelessness; the performance of an unlawful, but not felonious,
                             act, accompanied by carelessness so gross, wanton and culpable as
                             to show a callous disregard of human life[,] . . . then you shall find
                             the defendant guilty of involuntary manslaughter . . . .

                                    If you find that the Commonwealth has failed to prove
                             beyond a reasonable doubt any one or more of the elements of the
                             offense of involuntary manslaughter, then you shall find the
                             defendant not guilty.
                                                            -7-
multiple blunt force traumas that ruptured his internal organs and caused significant internal

bleeding. These injuries occurred while the child was in the sole care of appellant and could not

have been the result of an “unlawful but nonfelonious act” such as assault and battery.

          Appellant asserts that his instruction should have been accepted because a jury is entitled

to accept or discard any part of the testimony. Therefore, if the jury disregarded the medical

testimony, the evidence would support his proffered instruction. However, the Supreme Court of

Virginia has held that “although the jury’s ability to reject evidence will support an acquittal, the

ability to reject evidence does not supply the affirmative evidence necessary to support a jury

instruction.” Vaughn, 263 Va. at 37, 557 S.E.2d at 223.

          In Vaughn, the defendant was indicted for malicious wounding and convicted of

unlawful wounding. He asserted that the trial court erred in refusing to instruct the jury on the

lesser-included offense of assault and battery. The evidence at trial established that the

defendant

                 shot a gun aimed in [the victim’s] direction[,] [] continued firing
                 the gun until all shells were spent and continued pulling the trigger
                 after the gun was empty; and [the victim] was wounded by bullets
                 from the gun, once in the foot or ankle and, in the course of turning
                 and running from [the defendant], again in the back.

Id. at 35, 557 S.E.2d at 222. Under these facts, the Supreme Court of Virginia found that it was

not error for the trial court to refuse the instruction for assault and battery. The Court held that

“where the evidence of unlawful or malicious wounding warrants a conviction, more than a

scintilla of evidence must show that Vaughn did not intend to maim, disfigure, disable, or kill

[the victim] to support the lesser-included offense of assault and battery.” Id. at 36, 557 S.E.2d

at 223.

          We reached a similar result in Helmick v. Commonwealth, 38 Va. App. 558, 567 S.E.2d

551 (2002). In Helmick, the defendant was convicted of first-degree murder of his
                                                  -8-
nine-week-old child, who died while in his care. Id. at 561-62, 567 S.E.2d at 553. The

defendant gave varying accounts of how the child sustained the injuries, but eventually admitted

to shaking her and dropping her while he was enraged. Id. at 563, 567 S.E.2d at 554. We

rejected the defendant’s claim that he was entitled to an instruction on assault and battery. Id. at

561, 567 S.E.2d at 553. He argued that his theory was supported by his statement that he “only

intended a slight bodily harm” when he shook the child. Id. at 567, 567 S.E.2d at 556. We held

that “[w]hen the child died as the result of [defendant’s] ‘assault and battery,’ the death elevated

the crime to at least involuntary manslaughter. Thus, the trial court did not err in failing to give

an assault and battery instruction.” Id.

       Similarly, in the present case, there was no evidence to warrant granting an instruction on

assault and battery. Appellant stated that he never assaulted or battered the child; according to

him, the child’s injuries were accidental (when J.L. cut his lip on appellant’s watch) or occurred

as a result of appellant improperly administering CPR. As in Helmick, however, the injuries

appellant inflicted on the child were so severe that they do not support granting an instruction for

assault and battery. Nothing in the evidence warranted an instruction on assault and battery. See

Vaughn, 263 Va. at 36, 557 S.E.2d at 222 (“If this evidence alone was sufficient to support the

lesser-included assault and battery instruction, such instruction would be required in every

malicious or unlawful wounding case because every such case must include these underlying

elements.”).

                                   2. Involuntary Manslaughter

       Appellant’s other proffered instruction, if accepted, would have permitted the jury to find

him guilty of involuntary manslaughter if it found that the Commonwealth did not prove all the

elements for felony murder, but rather established that the killing was a result of an “unlawful

performance of a lawful act, accompanied by carelessness or the performance of an unlawful, but
                                                -9-
not felonious, act, accompanied by carelessness so gross, wanton and culpable as to show a

callous disregard for human life.” As with the assault and battery instruction, the evidence in

this case did not warrant granting this instruction.

       Involuntary manslaughter is defined as the accidental killing of another in the

commission of an unlawful, but nonfelonious act. Albert v. Commonwealth, 181 Va. 894, 899,

27 S.E.2d 177, 179 (1943). Furthermore, while a lesser-included offense instruction should be

given if there is credible evidence to support the instruction, Martin v. Commonwealth, 13

Va. App. 524, 529, 414 S.E.2d 401, 403 (1992), granting the instruction is not automatic; there

must be facts in evidence that support it. See Leal, 265 Va. at 145-46, 574 S.E.2d at 287.

       In the case before us, there was not a scintilla of evidence to warrant granting an

involuntary manslaughter instruction. Appellant argues that the jury could have found that the

child’s death was an accidental killing, committed during the unlawful but nonfelonious act of

assault and battery. Nothing in the evidence supports this theory. Both medical experts were

unequivocal in their opinion that the injuries that caused the child’s death were not accidental.

Further, the evidence established that appellant pinched J.L., slapped him in the face, punched

him, held his head and mouth under the bathtub faucet “five or six times,” and left him

unattended and bleeding internally for an extended period of time. These actions constituted far

more than an assault and battery.

       Indeed, the unrebutted medical testimony was that the child died as a result of blunt force

trauma to the chest and abdomen. These injuries could not be the result of the “unlawful

performance of a lawful act, accompanied by carelessness” or the “performance of an unlawful,

but not felonious act accompanied by carelessness so gross, wanton and culpable as to show a

callous disregard for human life.” The abuse that the child underwent at the hands of appellant

was felonious; it was not a mere assault and battery. Therefore, while the jury was free to reject
                                                - 10 -
the evidence and acquit appellant of both charges, he was not entitled to have the jury instructed

on the lesser-included offenses.

                                    3. Craig v. Commonwealth

       Appellant relies on Craig v. Commonwealth, 34 Va. App. 155, 538 S.E.2d 355 (2000), to

support his position that the trial court erred in denying his proposed jury instructions. His

reliance on Craig is misplaced. The issue in Craig was whether the Commonwealth could

request a lesser-included instruction, or whether, as the defendant contended, instructing the jury

on a lesser-included offense was solely a defense prerogative. We held that if the evidence

warranted granting an instruction on a lesser-included offense, either side could request it.

       In Craig, the defendant was charged with second-degree murder for the death of his

five-month-old daughter. At trial, the Commonwealth presented evidence that the child died as a

result of “shaken baby syndrome.” Id. at 160, 538 S.E.2d at 357-58. However, both Craig, who

had been caring for the child, and the child’s mother testified that they had not shaken the baby.

Craig stated that he had taken the child for a car ride on the day of her death and “had to stop

suddenly, which first threw [the child] forward in her front-seat car seat and then jolted her

back.” Id. at 158, 538 S.E.2d at 356. Craig testified that the child was “sleepy” when they

returned home, so he put her to bed, where she lay for several hours until the child’s mother

realized she was unresponsive. Id. at 158, 538 S.E.2d at 357.

       At the conclusion of the evidence, the Commonwealth requested an involuntary

manslaughter instruction as a lesser-included offense of second-degree murder. Id. at 160, 538

S.E.2d at 358. The trial court granted the instruction over the defendant’s objection, and we

affirmed the trial court’s ruling. Id. In so ruling, we found that under the facts of the case, “the

jury could have concluded that appellant did not willfully or purposely kill his child but rather



                                                - 11 -
negligently shook the baby, knowing his conduct probably would cause injury.” Id. at 166, 538

S.E.2d at 360.

         The present case is factually distinct from Craig. Here, appellant does not admit to any

negligent conduct that he knew “probably would cause injury.” He blames the injuries to the

child’s mouth on an accident, and he offers no explanation for the other, serious bodily injuries

documented in the autopsy. The uncontroverted medical evidence, on the other hand, established

that J.L. died as a result of sustaining multiple, significant traumas to the head and abdomen

while he was in appellant’s care. Under these facts, an instruction for involuntary manslaughter

would not be appropriate.

                                        III. CONCLUSION

         For the foregoing reasons, we therefore affirm the decision of the trial court denying the

proffered jury instructions and affirm appellant’s convictions of felony murder and felony child

abuse.

                                                                                          Affirmed.




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