                               COURT OF APPEALS OF VIRGINIA


Present: Judges Bumgardner, Felton and Senior Judge Hodges
Argued at Chesapeake, Virginia


LAMONT ANTONE WYCHE
                                                             MEMORANDUM OPINION* BY
v.     Record No. 3113-02-1                                  JUDGE WALTER S. FELTON, JR.
                                                                    APRIL 6, 2004
COMMONWEALTH OF VIRGINIA


                   FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                                 Marc Jacobson, Judge

                 S. Clark Daugherty, Public Defender (Office of the Public Defender,
                 on brief), for appellant.

                 Deana A. Malek, Assistant Attorney General (Jerry W. Kilgore,
                 Attorney General, on brief), for appellee.


       Lamont Antone Wyche appeals his conviction for involuntary manslaughter of fellow

inmate Terry Taitano1 in the Norfolk City Jail. He contends that the evidence was insufficient to

support his conviction. We disagree and affirm the conviction.

                                         I. BACKGROUND

       On January 3, 2002, Wyche and Taitano, both inmates of the Norfolk City Jail, argued

during a card game. Wyche testified that he was mad and upset with Taitano for calling him a

“punk.” He told Taitano to “strap up,” meaning to put on his shoes to fight. Wyche was first to pull

on his leather cowboy boots. While Taitano sat on his bunk lacing up his shoes, Wyche began


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       1
         For the purposes of this opinion, we use the spelling of the victim’s surname name as
“Taitano,” as it was spelled in the autopsy report and the indictment. The transcript and
appellant’s brief spell the victim’s name as “Tiantano.” The identity of the victim was not an
issue before the trial court nor before this Court on appeal.
assaulting him in the face and chest with his fists. Instead of hitting back, Taitano stood up and

attempted to restrain Wyche. When he tried to “break loose” from Wyche, Wyche hit him once in

the head and once in the chest, knocking him backwards. As Taitano fell, he struck his head on the

steel frame of a bunk bed. He immediately collapsed and appeared unconscious as he fell.

Witnesses described him as lying on his back, shaking and foaming at the mouth. While Taitano

was lying on the floor Wyche kicked him several times in the chest and at least once in his face.

The sharp edge of Wyche’s cowboy boots caused abrasions to Taitano’s left forehead and mid-chest

area. One witness described the kicks like “kicking a football,” while another testified that Wyche

kicked Taitano with enough force to cause him to roll from his side to his back. Taitano never

moved or attempted to get up after he collapsed on the floor. The other inmates called the guards

for assistance. Taitano was pronounced dead at the scene.

        Assistant Chief Medical Examiner Dr. Leah Bush performed the autopsy of Taitano. She

reported that the cause of death was an “acute brain injury and acute coronary insufficiency due to

severe organic heart disease subsequent to an acute stress reaction due to an altercation and fight

with another person.” Dr. Bush testified that Taitano suffered from an enlarged heart, a pre-existing

organic heart disease, and had an abnormality of the main coronary artery. She explained that the

type of abnormality found in the victim has been associated with sudden death. She also testified

that the victim suffered acute brain injury. She testified that the injury to Taitano’s forehead

resulted in trauma to his brain, that the brain injury was caused by “an acute thrash” occurring on or

about the time of death, and was significant enough to cause the brain tissue to be disrupted and

torn. Dr. Bush explained that the fight caused an “acute stress reaction,” resulting in the heart attack

that was the immediate cause of Taitano’s death. She testified that the brain injury was also a

contributing factor in his death.




                                                  -2-
        Wyche was charged with second-degree murder in violation of Code § 18.2-32. On August

29, 2002, the trial court convicted him of the lesser-included offense of involuntary manslaughter,

and sentenced him to ten years in prison, with eight years and six months suspended for a period of

ten years.

                                          II. ANALYSIS

                                    STANDARD OF REVIEW

        Under familiar principles of appellate review, we examine the evidence in the light most

favorable to the Commonwealth, the prevailing party below, granting to that evidence all

reasonable inferences fairly deducible therefrom. Commonwealth v. Jenkins, 255 Va. 516, 521,

499 S.E.2d 263, 265 (1998); see Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d

534, 537 (1975). “The judgment of a trial court sitting without a jury is entitled to the same

weight as a jury verdict and will not be set aside unless it appears from the evidence that the

judgment is plainly wrong or without evidence to support it.” Martin v. Commonwealth, 4

Va. App. 438, 443, 358 S.E.2d 415, 418 (1987) (citations omitted). “We will not substitute our

judgment for that of the trier of fact, even were our opinion to differ.” Wactor v.

Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002).

               Instead, the relevant question is whether, after viewing the
               evidence in the light most favorable to the prosecution, any
               rational trier of fact could have found the essential elements of the
               crime beyond a reasonable doubt. This familiar standard gives full
               play to the responsibility of the trier of fact fairly to resolve
               conflicts in the testimony, to weigh the evidence, and to draw
               reasonable inferences from basic facts to ultimate facts.

Kelly v. Commonwealth, 41 Va. App. 250, 257-58, 584 S.E.2d 444, 447 (2003) (quoting Jackson

v. Virginia, 443 U.S. 307, 319 (1979)).




                                                -3-
                                        PROXIMATE CAUSE

        Involuntary manslaughter is defined “as the accidental killing of a person, contrary to the

intention of the parties, during the prosecution of an unlawful, but not felonious, act, or during

the improper performance of some lawful act.” Gooden v. Commonwealth, 226 Va. 565, 571,

311 S.E.2d 780, 784 (1984); Mundy v. Commonwealth, 144 Va. 609, 615, 131 S.E. 242, 244

(1926); Banks v. Commonwealth, 41 Va. App. 539, 546, 586 S.E.2d 876, 879 (2003); Darnell v.

Commonwealth, 6 Va. App. 485, 489, 370 S.E.2d 717, 719 (1988). To convict Wyche of

involuntary manslaughter, the Commonwealth had to prove beyond a reasonable doubt that his

unlawful or “criminally negligent acts were a proximate cause of the victim’s death.” See

Gallimore v. Commonwealth, 246 Va. 441, 446, 436 S.E.2d 421, 424 (1993); Banks, 41 Va. App.

at 546, 586 S.E.2d at 879.

        Wyche contends that the trial court erred when it failed to find that his argument with

Taitano was the proximate cause of Taitano’s heart attack, and not the fight. He argues that,

“[w]here a fact is equally susceptible of two interpretations one of which is consistent with the

innocence of the accused, [the trier of fact] cannot arbitrarily adopt that interpretation which

incriminates [the accused].” Littlejohn v. Commonwealth, 24 Va. App. 401, 411, 482 S.E.2d 853,

858 (1997) (citation omitted). He asserts that the Commonwealth’s medical expert presented two

alternating theories as to the cause of death, one of which was that the argument was sufficient to

bring on the heart attack. Thus, he reasons, the trial court erred when it failed to find that the

argument and not the fight was the proximate cause of Taitano’s death. We disagree.

        In Spain v. Commonwealth, 7 Va. App. 385, 373 S.E.2d 728 (1988), this Court approved

the following jury instruction:

                It is not necessary for a conviction of murder that the wounds,
                injuries or trauma be the direct cause of death; it is sufficient if the
                initial wound, injury or trauma causes death indirectly through a
                chain of natural causes.
                                                  -4-
Id. at 394, 373 S.E.2d at 733. In Spain, an elderly woman died as the direct result of a heart

attack suffered when she was assaulted during the course of a robbery. There, the medical

examiner testified that the victim “died from a heart attack induced by the stress of the traumatic

event,” specifically the defendant’s assault. Id. at 395, 373 S.E.2d at 733. This Court held that

the evidence was sufficient to convict the defendant of felony murder because “the initial

wounds or trauma cause[ed] death indirectly through a chain of natural causes.” Id.

       Here, Wyche aggressively assaulted Taitano, striking him in the chest and chin with his

fists, causing Taitano to fall and to strike his head on a metal bed rail. He continued to kick

Taitano in the chest and head after he collapsed defenseless to the floor. Wyche could

reasonably foresee that his aggressive assault would likely cause serious injury or even death to

Taitano. Moreover, Wyche’s physical blows created the “acute stress reaction” that Dr. Bush

stated was the cause of his fatal heart attack. The fact that Taitano’s serious pre-existing heart

condition contributed to cause his death does not negate the chain of causal connection between

the assault and his death. Id.

       Wyche’s contention that Taitano could have died from the argument ignores the

testimony of Dr. Bush as to the cause of his death. Moreover, eyewitnesses testified that Wyche

first struck Taitano while he was sitting on his bed defenseless tying his shoelaces. He also hit

Taitano with his fists at least twice before the victim collapsed on the floor. Further, the

evidence showed that Taitano did not collapse until after Wyche repeatedly struck him. While

he denied hitting the victim, Wyche admitted that he kicked him twice in the chest. The brain

injury, resulting in brain tissue being torn and disrupted, was consistent with a blow to the left

side forehead, where Taitano suffered abrasions caused by a hard linear surface such as the sole

of Wyche’s cowboy boots. Dr. Bush testified that the trauma to Taitano’s brain occurred either

immediately before or after the heart attack. Based on the evidence before it, the trial court

                                                -5-
reasonably concluded that, while the victim’s heart condition was a contributing cause of his

death, Wyche’s aggressive assault that left Taitano lying on the floor, suffering from a heart

attack and trauma to his brain, was also a proximate cause of Taitano’s death.

                                            MENS REA

       Involuntary manslaughter is “the accidental killing which, though unintended, is the

proximate result of negligence so gross, wanton, and culpable as to show a reckless disregard of

human life.” King v. Commonwealth, 217 Va. 601, 607, 231 S.E.2d 718, 721 (1977). Wyche

contends that the trial court erred in convicting him of involuntary manslaughter because “he

could not be charged with knowledge that death or serious injury would be the probable result of

his actions.” In other words, Wyche contends that because he could not foresee that his conduct

would cause the death of Taitano, he lacked the criminal culpability required to convict him of

involuntary manslaughter. Here, there is no question that Wyche assaulted Taitano who was

sitting defenseless while tying his shoes preparing to fight Wyche. Wyche had challenged

Taitano to fight after Taitano called him a “punk.” Stated simply, Wyche was the aggressor who

physically assaulted Taitano, an unlawful act.

       The Supreme Court has held:

               To convict [a defendant] of involuntary manslaughter, the
               Commonwealth [must] . . . prove that [the defendant] committed
               “acts of commission or omission of a wanton or wilful nature,
               showing 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 his acts.”

Gallimore, 246 Va. at 445-46, 436 S.E.2d at 424 (quoting Bell v. Commonwealth, 170 Va. 597,

611-12, 195 S.E. 675, 681 (1938)). Our Courts have held that the conduct, which results in the

crime of involuntary manslaughter, “‘must be something more than mere inadvertence or



                                                 -6-
misadventure. It is a recklessness or indifference incompatible with a proper regard for human

life.’” Banks, 41 Va. App. at 546, 586 S.E.2d at 879 (quoting Bell, 170 Va. at 611, 195 S.E. at

681). Judged by an objective standard, “‘the offender either knew or should have known the

probable results of his acts.’” Id. (quoting Conrad v. Commonwealth, 31 Va. App. 113, 121-22,

521 S.E.2d 321, 325-26 (1999) (en banc)).

        While Wyche may not have known of Taitano’s heart condition, he knew or should have

known, that his aggressive assault would likely result in serious injury or death. By his own

testimony, Wyche was angry and upset at Taitano for calling him a “punk.” Wyche hit Taitano

in the face and head while he was still seated tying his shoelaces. His subsequent blows caused

the victim to strike his head against the metal bed frame. He continued to aggressively kick

Taitano in the face and chest with his cowboy boots after he collapsed unconscious and

defenseless on the floor.

        While the trial court found the evidence unclear as to whether Taitano died when he

collapsed or after Wyche kicked him on the floor, it found that Wyche’s conduct demonstrated a

careless, reckless and indifferent disregard for the life of the victim. We conclude that the trial court

did not err in finding that Wyche’s aggressive assault on Taitano, including his kicking him in the

head and chest after he collapsed defenseless on the floor, was a proximate cause of Taitano’s

death and that Wyche’s conduct was so wanton and willful that it showed utter disregard for the

safety and value of human life.

        It was not necessary that Wyche foresee the specific manner in which Taitano’s death

occurred. It is sufficient that he reasonably should have foreseen that death or serious injury

could result from his assault and kicks to Taitano. See Blondel v. Hays, 241 Va. 467, 475, 403




                                                  -7-
S.E.2d 340, 345 (1991). Accordingly, the trial court did not err in finding that Taitano’s death

was caused by Wyche’s unlawful and criminally negligent conduct.

       We affirm Wyche’s conviction of involuntary manslaughter.

                                                                                        Affirmed.




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