                   COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Barrow, * Benton, Koontz,
     Willis, Elder, Bray and Fitzpatrick
Argued at Richmond, Virginia

STACY MYERS
                                        MEMORANDUM OPINION** BY
v.   Record No. 1780-92-1               JUDGE RICHARD S. BRAY
                                            MAY 16, 1995
COMMONWEALTH OF VIRGINIA

                      UPON REHEARING EN BANC

           FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                       Walter J. Ford, Judge
           J. Ashton Wray, Jr., for appellant.

           Robert H. Anderson, III, Assistant Attorney
           General (James S. Gilmore, III, Attorney
           General, on brief), for appellee.


     On July 26, 1994, a panel of this Court, in an unpublished

memorandum opinion, reversed and remanded defendant's conviction

for second-degree murder.   We subsequently granted the

Commonwealth's petition for rehearing en banc and stayed the

mandate of the opinion.    Upon rehearing en banc, we affirm the

judgment of the trial court and vacate the mandate of the panel

opinion.

     The parties are fully conversant with the record, and a

recitation of the facts is unnecessary to this memorandum

opinion.

     The order of conviction recites that defendant was convicted

     *
      Judge Bernard G. Barrow participated in the hearing and
decision of this case and prepared the concurring opinion prior
to his death.
     **
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
of "murder - 2nd degree, as charged in the indictment. . . ."

The referenced indictment alleged that defendant "did unlawfully

and feloniously kill and murder . . ., in violation of Section

18.2-32. . . ."   However, in defendant's petition for appeal, she

framed the sole "[q]uestion [p]resented as '[w]hether the

evidence was sufficient as a matter of law to support a finding

of felony murder; to wit:   murder in the second degree,'" a

violation of Code § 18.2-33.    See Rule 5A:12(c).     Cf. Rule

5:17(c).
           A recital of proceedings in a judicial order

           is an "absolute verity . . . ."   Where a

           defendant does not object to the accuracy of

           an order within 21 days after its entry, an

           appellate court may "presume that the order,

           as the final pronouncement on the subject,

           . . . accurately reflects what transpired."

Kern v. Commonwealth, 2 Va. App. 84, 88, 341 S.E.2d 397, 400

(1986) (citations omitted).    The final order of the trial court

in this instance convicted defendant for a violation of

Code § 18.2-32, the offense at indictment.   With certain

statutory exceptions not applicable here, felony murder is a

violation of Code § 18.2-33 and, consistent with her petition for

appeal, appellant's brief and argument addresses only that

offense.   Although a violation of Code § 18.2-33 constitutes

murder in the second degree, it is a crime separate and distinct



                                  2
from that proscribed by Code § 18.2-32.   Therefore, no challenge

to appellant's conviction for a violation of Code § 18.2-32 was

appealed to this Court, and the issue may not be undertaken at

this juncture.   Rule 5A:12(c).   Cf. Hamilton Dev. Co. v. Broad

Rock Club, Inc., 248 Va. 40, 44, 445 S.E.2d 140, 143 (1994).

     Accordingly, for the reasons stated, we affirm the judgment

of the trial court.

                                                    Affirmed.




                                  3
Barrow, J., with whom Moon, C. J., and Elder, J., join,
   concurring.



     While I do not agree that we are barred from considering the

sufficiency of the evidence, in my opinion, the evidence

sufficiently supported the defendant's conviction, and I agree

that the conviction should be affirmed.




                                4
BENTON, J., dissenting.



     The record clearly establishes that at the conclusion of the

evidence the trial judge made an explicit finding that Myers was

"guilty of the charge of . . . felony murder . . . second

degree."   Without any explanation or indication that a finding of

malice was made, the final order recites "violation of Section

18.2-32 (Murder - 2nd degree)."   Myers' petition and brief on

appeal raised the issue "whether the evidence was sufficient

. . . to support a finding of felony murder; to wit: murder in

the second degree."   In view of the trial record, the dismissal

of this appeal on a procedural ground (that the appeal raises an

issue not decided at trial) is reminiscent of the consequences of

the dilemma encountered in the following fictional situation:
              There was only one catch and that was
          Catch-22, which specified that a concern for
          one's own safety in the face of dangers that
          were real and immediate was the process of a
          rational mind. Orr was crazy and could be
          grounded. All he had to do was ask; and as
          soon as he did, he would no longer be crazy
          and would have to fly more missions. . . .
          If he flew them he was crazy and didn't have
          to; but if he didn't want to he was sane and
          had to. . . . "That's some catch, that
          Catch-22," . . . [Yossarian] observed. "It's
          the best there is," Doc Daneeka agreed.


Joseph Heller, Catch-22 ch.5 (1955).

     The record establishes that Myers was indicted and tried on

the offenses of "murder . . . in violation of [Code §] 18.2-32"

and felony child abuse in violation of Code § 18.2-371.1.   In her




                                  5
opening statement, the prosecutor informed the trial judge that

"[t]his is murder in the first degree."   In response to the

motion to strike the evidence at the close of the Commonwealth's

case, the prosecutor argued that the evidence proved felony child

neglect, first degree murder, and, alternatively, "felony murder

by statute by definition on the facts of the case."   After the

trial judge denied defense counsel's motion to strike the

evidence, defense counsel offered no evidence and renewed the

motion to strike the evidence.   The prosecutor then argued that

"whether you look at it as a case of premeditated first degree

murder or whether you look at it as a felony murder as a result

of a felony neglect charge, . . . either theory is supported by

the evidence."
     The trial judge found that the evidence proved child neglect

and ruled as follows:
          I think she's guilty of the charge of the
          felony murder. Not -- not first degree. I
          don't think there's -- Commonwealth
          established first degree murder in the case,
          but I do think its second degree. And I find
          her guilty.


Although the trial judge found that the evidence proved the

felony of child neglect, the trial judge further found, however,

that the legislature had not expressed an intent to impose

multiple punishments for felony murder and the underlying felony.

Thus, he ruled that Blockburger v. United States, 284 U.S. 299

(1932), required dismissal of the felony child neglect charge.

     The record unambiguously establishes that the prosecutor's


                                 6
theory of prosecution was first degree murder or, alternatively,

felony murder.   The trial judge made findings consistent with the

prosecutor's alternative theory.       Despite the prosecutor's theory

of prosecution (i.e., felony murder as a result of death caused

by felonious neglect) and the trial judge's pronouncements of the

basis for the conviction (i.e., second degree felony murder), the

final order entered by the clerk of the circuit court states that

Myers was "convicted of a felony, to wit: violation of Section

18.2-32 (Murder - 2nd degree)."
     In Myers' petition for appeal the question presented is

"[w]hether the evidence was sufficient as a matter of law to

support a finding of felony murder; to-wit: murder in the second

degree."   The petition argues that the evidence did not prove

either that the child died as a result of Myers' criminal act or

malice; thus, it asserts that the evidence was insufficient to

support a murder conviction.   The Commonwealth responded to the

petition by arguing that the evidence was sufficient to prove

that Myers was "guilty of felony child neglect . . . and [the]

conviction for felony murder should stand."      Myers' petition was

granted by a judge of this Court.      Myers' brief on appeal stated

the same question and the same arguments in support of the

questions that were contained in the petition.      The Commonwealth

in its response again argued that the evidence was sufficient to

prove "that Myers was guilty of the felony murder of her

daughter."




                                   7
     In its request for a rehearing en banc, the Commonwealth

raised for the first time the issue that the majority opinion now

decides as a basis for dismissing the appeal.   Nothing in either

Rule 5A:12(c) or Hamilton Development Co. v. Broad Rock Club,

Inc., 248 Va. 40, 445 S.E.2d 140 (1994), bars our consideration

of the question presented by this appeal.   The record is clear

that the trial judge announced from the bench a finding of guilt

of second degree felony murder, which could only be a finding of

a violation of Code § 18.2-33.   Although the final order recited,

contrary to the judge's finding, a conviction under Code
§ 18.2-32, both the trial judge's oral statement of the basis for

the conviction and the written order's recitation of the basis

for the conviction are specified by statute to be second degree

murder.

     The issue that Myers raises challenges the sufficiency of

the evidence to support "murder in the second degree."    Whether

Myers' conviction was based on a violation of Code § 18.2-32, as

the final order recites, or Code § 18.2-33, as the trial judge's

findings recite, the conviction was for second degree murder and

in either instance "is punishable as a Class 3 felony."    Although

the prosecutor tried this case, in part, on a theory not

supported by the indictment and the trial judge made findings

consistent solely with that theory, the conviction was for murder

and the issue, simply put, is whether the evidence was sufficient

to prove murder.   Myers challenges the absence of proof beyond a



                                 8
reasonable doubt of willful conduct or malice.    Thus, the issues

squarely before this Court are whether Myers' criminal conduct

killed the child and whether malice was proved.   No purpose is

served by forcing this litigant to seek judicial redress through

the process of habeas corpus.

     The evidence in this case failed to prove that the baby died

as a result of a malicious act or of a willful act of commission

or omission by Myers.   The assistant medical examiner, Dr. Bush,

testified that she could not tell how long the baby lived after

delivery.   Although she concluded the baby was born alive, she

made that conclusion only because the autopsy revealed oxygen in

the baby's lungs and stomach.   She admitted that oxygen could

have entered the baby's lungs and stomach while it was still

attached to the umbilical cord and that the baby may have been

"gulping" for air while still attached to the mother by the

umbilical cord.
     Dr. Bush admitted that she could not state the "real

physiological cause" of the baby's death and, further, she did

not know whether the baby was physiologically alive when she was

placed in the plastic bag.   She could not state that the baby

died of hypothermia or asphyxiation.   She could only conclude

that the baby died as a result of abandonment, which she

described as follows:
          We use the term abandonment to indicate that
          had the baby received proper and usual care
          that would normally accompany a birth such
          as, you know, feeding, cleaning, being
          wrapped up, kept warm, etc., . . . the baby



                                 9
             would be alive today.


        Dr. Bush explained on cross-examination that her testimony

on direct examination (that the cause of death was related to the

baby being placed in the plastic bag) was based upon an

assumption that the baby was alive when placed in the bag and

that her assumption was not based on any physiological finding

she had made.    She was unable to say the baby was alive when

placed in the bag.    She added further that she was unable to tell

whether the umbilical cord had been cut when "the child took

air."
        In any prosecution for killing a newborn baby, the

Commonwealth is required to prove beyond a reasonable doubt (1)

that the child was born alive, (2) that the child had reached an

independent and separate existence apart from its mother, and (3)

that the accused was the criminal agent causing the infant's

death.     Lane v. Commonwealth, 219 Va. 509, 514, 248 S.E.2d 781,

783 (1978); Vaughan v. Commonwealth, 7 Va. App. 665, 671, 376

S.E.2d 801, 804 (1989).

        To prove that Myers was guilty of second degree murder, it

was incumbent upon the Commonwealth to prove that the child was

born alive.    No evidence proved that prior to its death the baby

had established an independent and separate existence from its

mother.    No evidence proved that the baby did not die during the

birthing process.    Moreover, neither Dr. Bush nor any other

witness testified as to the actual cause of the child's death.



                                     10
     Because the evidence failed to prove beyond a reasonable

doubt that the child had achieved an independent and separate

existence from its mother and did not prove the cause of its

death, I would hold consistent with the prior opinion by the

panel in this case, see Myers v. Commonwealth, Record No. 1780-

92-1 (Unpublished - July 26, 1994), that the corpus delicti was

not proved and the evidence was insufficient to prove beyond a

reasonable doubt that appellant was guilty of second degree

murder.   For these reasons, I dissent.




                                11
