                                          COURT OF APPEALS OF VIRGINIA


            Present: Judges Humphreys, Beales and Huff
PUBLISHED


            Argued at Salem, Virginia


            RICHARD C. WAGONER, JR.
                                                                                OPINION BY
            v.     Record No. 2233-12-3                                  JUDGE ROBERT J. HUMPHREYS
                                                                                APRIL 8, 2014
            COMMONWEALTH OF VIRGINIA


                          FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE
                                           G. Carter Greer, Judge

                           James R. McGarry (James W. Haskins; David O. Williamson;
                           Young, Haskins, Mann, Gregory, McGarry & Wall, P.C.; Brumberg,
                           Mackey and Wall, P.L.C., on briefs), for appellant.

                           Alice T. Armstrong, Senior Assistant Attorney General (Kenneth T.
                           Cuccinelli, II, Attorney General, on brief), for appellee.


                   Richard C. Wagoner, Jr. (“Wagoner”) was convicted by a jury in the Circuit Court of the

            City of Martinsville (“trial court”) of abuse or neglect of an incapacitated adult resulting in death,

            in violation of Code § 18.2-369(B). On appeal, Wagoner argues (1) that the trial court applied

            the wrong decisional standard in denying his motion to set aside the jury verdict; (2) that the

            evidence was insufficient to support a finding that his conduct was a proximate cause of the

            victim’s death; and (3) that the evidence was insufficient to establish that he committed a willful

            act with knowledge and consciousness that injury or death would result to the victim. For the

            following reasons, we affirm the trial court.

                                                    I. BACKGROUND

                   On appeal, we “consider the evidence and all reasonable inferences fairly deducible

            therefrom in the light most favorable to the Commonwealth, the prevailing party at trial.” Bass

            v. Commonwealth, 259 Va. 470, 475, 525 S.E.2d 921, 924 (2000).
       In February 2011, Joe Tuggle (“Tuggle”), the victim, was living in a group home for men

with intellectual disabilities run by the Claye Corporation. Wagoner, who holds a PhD in

applied developmental psychology, owns the Claye Corporation and serves as the president of

the Corporation. The Claye Corporation has a provider agreement with the Department of

Developmental Health to provide services to intellectually disabled adults. The Claye

Corporation operates several homes where clients reside. Three clients, including Tuggle, lived

in the Minor Street home (“Minor Street”).

       In February 2011, Tuggle was fifty-seven years old and had severe Parkinson’s disease

and Lewy bodies in his brain causing dementia. It is unclear what caused Tuggle’s intellectual

disabilities, but whatever the cause, he was unable to communicate effectively, he could not

carry on a real conversation, and he mostly moaned and gestured. Tuggle also needed help with

eating and with personal care. Tuggle could walk, but he was shaky from the Parkinson’s

disease and had trouble with walking and standing on his own.

       Around seven in the evening on February 8, 2011, Tuggle was sitting on a couch in the

Minor Street living room when he had a diarrhea accident. Jerome Baker (“Baker”), who was

working on staff, assisted Tuggle to the restroom and sat Tuggle on the toilet. After waiting with

Tuggle two to three minutes, Baker left to retrieve a mop bucket and cleaning supplies from the

kitchen and began helping another staff member, Kenny L. Brown (“Kenny L.”), clean up the

diarrhea that was on the couch and floor in the living room. After cleaning for five or six

minutes, Baker returned to the restroom and found Tuggle lying down in the bathtub on his back

with only hot water running out of the shower. Tuggle was saying “Help me! Help me!” Baker

turned off the hot water and yelled for Kenny L. to come help. Baker and Kenny L. grabbed

Tuggle and raised him up and sat him on the toilet. They dried Tuggle off and noticed his skin

was very red. Then they took Tuggle to the living room and noted again that his skin was really

                                               -2-
red and it started to peel about ten minutes later. Baker testified that he grabbed the phone, ready

to call 911, but Kenny L. told him “No,” and to call their supervisor first because that was the

policy.

          Kenny L. called Kenny A. Brown (“Kenny A.”), the staff supervisor that night. Kenny

A. left his home and went to Minor Street around 8:30 p.m. Kenny A. inspected Tuggle and

determined that Tuggle did not need medical attention. Kenny A. called Tameki Tarpley

(“Tarpley”), his co-supervisor,1 to inform her of Tuggle’s accident. Without seeing Tuggle,

Tarpley called the emergency room (“E.R.”) on February 8 and asked how to treat a burn that

“appeared to be like a sunburn.” Tarpley testified, “All they could tell me was we could apply

cold compressions and go to the pharmacy, [and] ask the pharmacist how to treat it.”2 Tarpley

called Kenny A. back and said to apply cold rags to Tuggle’s burns. Kenny L. and Baker stayed

with Tuggle until 11:00 p.m. applying cold rags, and Baker testified that Tuggle made noises

indicating he was in pain.

          The next morning, February 9, Kenny A. arrived back at Minor Street around 6:30 a.m.

He got there earlier than usual in order to check on Tuggle. He observed that Tuggle looked

different that morning and that his burns were “a little bit redder than they were pink” and this

concerned him. Kenny A. called Tarpley and told her that they needed to take Tuggle to the

hospital to be checked out. Tarpley was on her way to work, a little before 7:00 a.m., when she

called staff member Lacoma Hairston (“Hairston”) to bring one of the company vans over to


          1
          Tarpley and Kenny A. supervised the Minor Street staff members, who provided most
of the direct care to the residents.
          2
          Tarpley’s phone records indicate that she called Martinsville Memorial Hospital at
9:29 p.m. on the night that Tuggle was burned, and her call lasted 54 seconds. The charge nurse
working in the E.R. on the night of February 8 testified that the E.R. does take calls from the
general public but the policy is that the employees are not allowed to give any medical advice
over the telephone. The nurse did not recall any calls regarding burn injuries on February 8, and
testified that doctors do not answer the phones.
                                                -3-
Minor Street to transport Tuggle to the hospital. Tarpley then arrived at Minor Street and saw

Tuggle’s arm and neck and confirmed that it was red. Cynthia Epley (“Epley”), a director at the

Claye Corporation,3 called Tarpley prior to arriving at Minor Street and Tarpley told her about

Tuggle’s accident the night before and that he was burned. Tarpley also told Epley that a van

was coming to transport Tuggle to the E.R.

       Hairston arrived at Minor Street with the van about 7:15 a.m. Some staff members put

Tuggle in the van, and the van left. Epley testified that she called Wagoner after speaking with

Tarpley and that Wagoner said, “Well, I’d like to see him before he goes.” Epley then called

Tarpley to tell her that “Mr. Wagoner would like to see [Tuggle] before he goes.” Tarpley then

called Hairston and told her to bring the van back. The van arrived back at Minor Street within a

short time, about three minutes after Tarpley called Hairston.

       After the van returned, Tarpley went to CVS “because that’s what the hospital [told her to

do]” and she asked the pharmacist how to treat a sunburn. The pharmacist told her to use

drainage strips, “cold compresses to keep it clean and to dry the heat,” and Neosporin.

According to her CVS receipt, Tarpley purchased the recommended supplies at 8:01 a.m., and

then she returned to Minor Street.

       Epley arrived at Minor Street around the same time that Tarpley returned from CVS.

When Epley entered the house, Tuggle was sitting in the living room in a wheelchair. Tuggle

had something over him so she could only see the top of his hand. Wagoner arrived shortly after

Epley, and the staff started explaining to them what had happened. Epley described the scene as

chaotic and overwhelming, and everyone was talking at once. She stayed inside the Minor Street

house less than ten minutes and then went to sit in her car. Wagoner asked Tuggle how he was


       3
         Wagoner was Epley’s boss, and Epley oversaw the supervisors at Minor Street and
other Claye Corporation homes. Epley was indicted by the Commonwealth but the charge was
nolle prosequied.
                                           -4-
doing. Then Baker took the sheet off of Tuggle and pulled up Tuggle’s T-shirt for Wagoner to

see his injuries. Baker testified that Tuggle’s skin was really red and skin had peeled away.

Staff member Lawrence Collins (“Collins”) testified that Tuggle did not have any clothes on and

that he and staff member Artis Williams stood Tuggle up and dropped the sheet from him so

Wagoner could have a look. “[Wagoner] looked at him. He looked him up and down. Then he

just looked. We sat [Tuggle] back in the chair. [Wagoner] looked at everybody. He didn’t say

one word to us. He just looked, this look he had. He walked out.” Epley testified that on

February 9, the staff made the treatment decision to send Tuggle to the hospital and that

Wagoner made the treatment decision with regard to not sending Tuggle to the hospital.

       Collins described that he was “in shock” when he walked in the home that morning and

saw Tuggle because Tuggle “had suffered a very bad burn.” Collins elaborated on Tuggle’s

condition that morning: Tuggle looked like he was hurting; he was just staring; he was not

smiling or talking. “Tuggle didn’t have no flesh on him from the back of his head, like all of his

hair was melted and stuff to him, all down his shoulders. His butt was gone. All the way down,

you know, he had burns all the way down to his feet.” Collins continued,

               He couldn’t have nothing on him. You know, not even underwear.
               He was just that much in the raw. His whole body was like just
               real pink. It looked like it had just happened. I mean it was just
               like somebody just took all the skin off the back of him. He didn’t
               have none. I mean like Tuggle was real hairy. He didn’t have no
               hair on his back no more, or on his butt, nowhere.

       After looking at Tuggle for two or three minutes, Wagoner went outside and sat with

Epley in her car. According to Wagoner, Epley was upset and nervous and had to take her blood

pressure medication while they talked in the car. While Collins smoked a cigarette outside, he

watched Epley and Wagoner in the car. Wagoner looked upset and agitated, and based on his

hand-gestures, Collins could tell Wagoner was not happy. Epley testified that when Wagoner

got in the car he said his nerves were “just shot,” and “Well, I guess Social Services will
                                                -5-
investigate us.” He also told Epley that “after talking to Tuggle and talking to Ms. Tarpley and

hearing what the hospital had to say, he decided that we would treat Tuggle at home one on one,

with one on one care, that he felt he’d get better care.” Wagoner left Minor Street after talking

with Epley for about ten minutes.

       After Wagoner left, Epley telephoned Tarpley to come out to her car. They went to

Family Pharmacy together and Epley picked up her own medication and Tarpley bought more

Neosporin and Tylenol. Epley told Tarpley that if Tuggle gets worse they should take him to the

E.R. After Epley dropped Tarpley off at Minor Street, Epley left and went to a friend’s house for

the afternoon. From there she made two phone calls to Wagoner during which they discussed

reporting the burn incident to “licensure,” meaning the Department of Behavioral Health and

Developmental Services, Office of Licensing.4 Epley stressed to Wagoner that he did need to

report Tuggle’s injuries to licensure. Wagoner told Epley he did not know if Tuggle’s injury met

the criteria for reporting and he would have to check into it. Wagoner indicated that he did not

think Tuggle’s injuries needed to be reported because there was no blood present.

       Tarpley and Kenny A. supervised the staff’s care of Tuggle over the next nine days. The

staff applied Neosporin and cold rags to Tuggle’s burns. The staff changed Tuggle’s sheets and

T-shirts often because the burns were oozing and they were wet and smelled bad. Sometimes

there was blood on the sheets, too. Tuggle’s burn wounds turned yellow, pus came out of them,

and they started to stink. Collins, who refused to care for Tuggle because he did not feel

qualified to care for burn injuries, reported that the odor in Tuggle’s room was so bad after three

or four days that it made him want to vomit. Other staff members mentioned the odor, too.



       4
         Epley testified that Wagoner’s job is purely administrative and business and that she
oversees client care. The practice was for Epley to report injuries to Wagoner and he was
responsible for reporting injuries to the regulatory agencies, including the licensing agency
within 24 hours.
                                                 -6-
Tuggle had to be turned each hour to be on his right side or left side. Collins said, “It was bad,”

and he was “just in awe of the whole thing.” Baker, who took care of Tuggle most days between

his accident and his death, testified that Tuggle slowed down in movement and would not eat as

much. The staff wiped Tuggle very carefully during sponge baths because they could not put

any pressure on him.

       Baker made routine notes during his shifts that Tuggle “laughed and smiled” as staff put

ointment on him; he also wrote, “no problems to report,” and “Tuggle ate all of his dinner.”

Other notes indicated that Tuggle “relaxed” and watched television. Collins testified that all the

notes said “nothing to report” because management would not allow reports otherwise. He

added that Tarpley and Kenny A. would tell the staff how to write the notes and the staff did not

report anything because the management already knew Tuggle’s condition. Defense counsel

also pointed out that neither Baker nor Collins called 911 and they did not call Wagoner to say

that Tuggle needed more care. Baker understood that the supervisor should be consulted instead

of 911 and that the decision about Tuggle’s care had already been made—it was understood that

“he’s not going anywhere.”

       Adrian Jones took care of Tuggle only one day after Tuggle’s burns. When Jones saw

Tuggle on February 13 he was shocked to see Tuggle’s injuries. Jones observed that Tuggle

looked like he was in a lot of pain, and was “burnt real bad, purple, red all over, down from his

ankles up to his head. His hair was melted to his head.” Tuggle had blisters on his side, his

back, and his buttocks, and pus was running off his body. Tuggle’s room smelled like death.

Jones added, “I was sitting beside him and I was the only one to see that tears shed[] from his

face.” Tuggle was wrapped in sheets without clothes underneath. Tuggle’s sheets had to be

changed every 30 minutes, and “[w]hen we’d pull them off, the skin would be pulling with it so




                                                -7-
you’d be pulling skin with the sheets every time we’d change them.” Jones wrote “no incidents

to report” for his shift because Tuggle’s injury did not occur on his shift.

       In the days following Tuggle’s accident, Wagoner did not visit Minor Street and

apparently only relied on the supervisors to report on Tuggle. Wagoner had no burn training,

and he knew that the supervisors did not have any burn training. The staff members were only

trained in first aid and CPR. Wagoner later told a case investigator that the decision to take care

of Tuggle at Minor Street “was a group decision” and that he trusted Tarpley’s advice based on

her call to the hospital and her conversation with a pharmacist after she asked how to treat a

sunburn. He indicated that he did not think the burn was serious enough to report to licensing;

he referred to Tuggle’s injuries as a sunburn.

       On February 15, Martinsville Police Officer Michael Clark responded to a call from the

home of Curtis Williams. Curtis Williams is the father of Artis Williams, who helped care for

Tuggle the next shift after Tuggle sustained his injuries, and again on February 10. Officer Clark

spoke with Curtis and then spoke with Artis about a gentleman at Minor Street “who had

suffered some burns.” Officer Clark then visited Minor Street on a “wellness check” and was

escorted to Tuggle’s room where Tuggle was asleep in his bed. Tuggle’s sheets were pulled

back and he was not wearing any clothes; he was lying on his left side. Officer Clark observed

that Tuggle had burns on his “butt area, upper thigh area. There was a burn [ ] where his right

shoulder blade would have been. There was one on his right arm. I also observed one I believe

on . . . the right area of his neck.” Tarpley told Officer Clark that she had been “in constant

contact with the emergency room” and explained how they were treating Tuggle’s wounds.

Officer Clark did not take any action or call emergency medical services because he believed

that Tuggle was not in any imminent danger given that he appeared to be resting comfortably and

was being cared for by others.

                                                 -8-
       On February 16, Wagoner called Deborah Tankersley (“Tankersley”), of the Department

of Behavioral Health and Developmental Services, Office of Licensing, to tell her that the police

had come to Minor Street the day before to do a wellness check on Tuggle. The Office of

Licensing licenses the Claye Corporation to provide services, and it monitors the services. As a

provider of services, the Claye Corporation is required to report an injury that requires evaluation

by a medical professional outside of the provider’s location within 24 hours. Tankersley testified

that Wagoner was the individual required to report injuries for the Claye Corporation, as he was

listed on the license as the “person responsible for the overall management and [oversight] of the

programs or the facilities that are going to be licensed.” Tankersley had no prior notice of

Tuggle’s injury and never received an “injury report” from the Claye Corporation on the scalding

incident. Wagoner told her the events of Tuggle’s injury over the phone and said that “[Tuggle]

got a little red where the water touched him like a sunburn.” Tankersley told Wagoner that he

needed to take the client to the doctor. She so advised him because Tuggle had not seen a

doctor, and she took note of the fact that someone felt Tuggle’s injuries were bad enough to call

the police to check on him. While Wagoner told her that the E.R. said not to bring Tuggle in, she

said “he needs to be seen to let somebody else make that determination.”

       During the week following Tuggle’s burns, Tuggle’s cousin, Dwayne Tuggle, called

Minor Street telling of his plans to pick up Tuggle to take him to his elderly mother’s house for a

visit. He was told it was not a good time to get Tuggle because he had some minor burns, “like a

light sunburn,” and diarrhea. Dwayne and Tuggle’s mother decided they would not pick up

Tuggle as planned. Dwayne was not alarmed when they said Tuggle had “a light sunburn.” The

next time the family heard from Minor Street about Tuggle was at the time of Tuggle’s death.

       Around 1:30 to 2:00 a.m. on February 18, Tuggle was alive at the bed check and was

assisted to the restroom. He was found unresponsive around 6:00 a.m. that morning. The staff

                                               -9-
notified the house manager and then called 911. Wagoner notified the Office of Licensing of

Tuggle’s death on February 18 via facsimile.

       Dr. Gayle Suzuki, the medical examiner for the case and a pathologist, performed the

autopsy and determined that about thirty percent of Tuggle’s body was burned and his burns

were consistent with second and third degree burns. She testified that the cause of Tuggle’s

death was sepsis (bacteria growing in the blood) and pneumonia resulting from the thermal

injuries from immersion in scalding water. She described that the sepsis bacteria was consistent

with the type of bacteria found on the skin. Dr. Suzuki testified that Tuggle’s pneumonia was

severe. He had yellow-green pus on his lungs, and with this severe lung condition Tuggle could

not have been as well off as the notes and the staff reported—it would have been nearly

impossible for him to breathe.

       Dr. Kevin Whaley, Assistant Chief Medical Examiner, was qualified as an expert in the

field of thermal injury, including classification, diagnosis, and treatment of burns. He reviewed

Dr. Suzuki’s autopsy report. He testified that second and third degree burns to thirty percent of

the total body surface requires automatic admission to a burn unit. A second degree burn causes

the skin to wipe off and it is very painful. A third degree burn “cooks” the skin and it gets hard;

it is not painful because the nerve endings are dead. The treatment for someone in Tuggle’s

condition would include fluid resuscitation first, then fighting the risk of infection because

bacteria thrive in and under dead skin. A very strong pain medication, Fentanyl, is used to treat

pain for burn patients in Tuggle’s condition. Neosporin and first aid cream are definitely not

recommended treatments for second and third degree burns.

       After viewing photographs of Tuggle, Dr. Whaley’s opinion was that Tuggle had third

degree burns to his knee and buttocks, and second degree burns to his neck and cheeks, right

arm, and back. He also said that Tuggle’s third degree burns to his knees would have looked

                                               - 10 -
yellowish-white as soon as it dried out, and it would have dried out within twelve hours after the

burn, assuming no more water was applied to it. Dr. Whaley testified that Tuggle’s risk of death

without treatment was 100%. Initially he testified that Tuggle’s risk of death with treatment was

eighty-seven percent, based on the thirty percent burned body surface. On cross-examination

defense counsel suggested a recalculation of Tuggle’s burned surface area. Dr. Whaley said,

“You could [ ] say 18[%].” Dr. Whaley testified that eighteen percent of the body surface

burned is still going to mean 100% morality without treatment, and with treatment, Tuggle

would have had a seventy-five percent chance of death and a twenty-five percent chance of

survival.

       Dr. Thomas Berry was received by the trial court as an expert in the diagnosis,

classification, and treatment of burns, and testified for the defense. Based on his review of the

autopsy, he testified that only twenty percent of Tuggle’s body was burned. He also testified that

Tuggle did not present symptoms of sepsis. He opined that the pneumonia onset rapidly and

may or may not have been related to the burns.5 He testified that he probably would have

recommended in home/out-patient care for Tuggle.

       Wagoner’s counsel made a motion to strike at the close of the Commonwealth’s

evidence, and at the close of all the evidence. After the jury found Wagoner guilty, his counsel

made a motion to set aside the jury verdict, and then a motion to reconsider the trial court’s

refusal to set aside the jury verdict. The trial court denied all of these motions, and entered a



       5
         While Dr. Berry was not qualified to express an opinion as to the cause of Tuggle’s
death, the cited testimony is not an opinion as to cause of death and furthermore was not objected
to and thus was fairly before the jury. See Wright v. Commonwealth, 23 Va. App. 1, 9, 473
S.E.2d 707, 711 (1996) (“The proper method to preclude another party from entering . . . any
form of inadmissible evidence is to make a contemporaneous objection.”); see also Brame v.
Nolen, 139 Va. 413, 420, 124 S.E. 299, 302 (1924) (“improper evidence introduced by a party, if
unobjected to by his opponent, will be considered by the appellate court as if it were proper
evidence” (quoting Wessel v. Bargamin, 137 Va. 701, 712, 120 S.E. 287, 291 (1923))).
                                               - 11 -
sentencing order on November 6, 2012, sentencing Wagoner to five years’ incarceration with all

five years suspended for a period of ten years.

                                           II. ANAYLSIS

                              A. Motion to Set Aside the Jury Verdict

        Wagoner’s first assignment of error is that,

                The trial court erred in denying [his] Motion to Set Aside the Jury
                Verdict by applying the wrong decisional standard. Although the
                trial court was reviewing [Wagoner]’s [m]otion after the jury had
                returned its verdict, the trial court erroneously applied the
                decisional standard intended only for guidance in deciding a
                motion to strike the evidence made at the conclusion of the
                Commonwealth’s case. In deciding [Wagoner]’s post-trial motion
                to set aside the jury verdict, the trial court should have reviewed
                the evidence under the traditional standards and jury instructions
                necessary to support a jury verdict.

        “Today, as a century ago, ‘nothing is better settled than that everything is to be presumed

in favor of the correctness of the rulings of a court of competent jurisdiction, when brought under

review in an appellate tribunal, until the contrary is shown.’” Caprino v. Commonwealth, 53

Va. App. 181, 184, 670 S.E.2d 36, 38 (2008) (quoting Early v. Commonwealth, 86 Va. 921, 925,

11 S.E. 795, 797 (1890)). “A trial court’s judgment approving a jury’s verdict is entitled to great

weight on appeal and will not be disturbed unless it is contrary to law or plainly wrong.” Gray v.

Commonwealth, 233 Va. 313, 344, 356 S.E.2d 157, 174 (1987).

        In Wagoner’s motion to set aside the jury verdict he argued that there was insufficient

evidence for the jury to find that his acts or omissions constituted a proximate cause of Tuggle’s

death. In its letter opinion, the trial court pointed to case law that supported its ruling that the

Commonwealth’s evidence as to proximate cause was sufficient to create a jury question:

                The language “substantial possibility of survival” should be
                “employed as a decisional standard for the guidance of trial courts
                in deciding a motion to strike the evidence,” and “[i]t teaches, in
                short, that if a plaintiff’s evidence has shown that the defendant’s
                negligence has destroyed any substantial possibility of the patient’s
                                                 - 12 -
               survival, then there is sufficient evidence of proximate cause to go
               to the jury, and a motion to strike the evidence on that ground
               should be overruled.” Blondel v. Hays, 241 Va. 467, 473-74, 403
               S.E.2d 340 (1991).

       Wagoner takes this excerpt from Blondel out of context and argues that the trial court

erroneously decided the motion to set aside the jury verdict using a “decisional standard” that

should only be applied to motions to strike. He asserts that the “substantial possibility of

survival” standard “only applies to a trial court’s analysis of a motion to strike made before a

defendant presents evidence, and not to a motion to set aside a jury verdict.” The dissent agrees

with this argument.

       The question in Blondel, however, was whether the trial court should have instructed the

jury on the “substantial possibility of survival,” and the excerpt Wagoner quotes from Blondel

relates to whether the jury was properly instructed. The Supreme Court found, “The ‘substantial

possibility of survival’ standard, while furnishing the criterion for deciding a motion to strike,

was never designed for the guidance of a jury. . . . The well-settled law on the subject of

proximate cause was correctly expressed by [the jury instructions] which the court granted.”

Blondel, 241 Va. at 474, 403 S.E.2d at 344. In other words, the Supreme Court approved the use

of the standard as good law for a trial court to use in deciding whether there is a proper question

for the jury regarding a proximate cause of death of a patient. Id. at 473-74, 403 S.E.2d at 344.

At the same time, the Court warned against indiscriminate use of language from appellate court

opinions in jury instructions. Id. at 474, 403 S.E.2d at 344 (citing Oak Knolls Realty v. Thomas,

212 Va. 396, 397-98, 184 S.E.2d 809, 810 (1971) (“We have often said that statements appearing

in opinions of this court, while authority for the propositions set forth, are not necessarily proper

language for jury instructions.”)). Our Supreme Court did not make a distinction between a trial

court’s “decisional standard” for a motion to strike versus a motion to set aside the jury verdict,

as the dissent suggests.
                                                - 13 -
       In this case, the trial court did not instruct the jury on the “substantial possibility of

survival” standard. As in Blondel, the trial court here used the substantial possibility of survival

standard solely to determine whether proximate cause of death was a proper question to submit

to the jury. The law regarding that question is the same whether the trial court is considering a

motion to strike the evidence before a jury receives the case or a motion to set aside a jury

verdict. As for the trial court’s standard of review when asked to set aside a jury verdict based

on insufficiency of the evidence, Code § 8.01-680 provides that standard,

               When a case, civil or criminal, is tried by a jury and a party objects
               to the judgment or action of the court in granting or refusing to
               grant a new trial on a motion to set aside the verdict of a jury on
               the ground that it is contrary to the evidence, . . . the judgment of
               the trial court shall not be set aside unless it appears from the
               evidence that such judgment is plainly wrong or without evidence
               to support it.

       The trial judge’s power to set aside a jury verdict

               “can only be exercised where the verdict is plainly wrong or
               without credible evidence to support it. If there is a conflict in the
               testimony on a material point, or if reasonable [persons] may differ
               in their conclusions of fact to be drawn from the evidence, or if the
               conclusion is dependent on the weight to be given the testimony,
               the trial judge cannot substitute his conclusion for that of the jury
               merely because he would have voted for a different verdict if he
               had been on the jury.”

Doherty v. Aleck, 273 Va. 421, 424, 641 S.E.2d 93, 94 (2007) (quoting Lane v. Scott, 220 Va.

578, 581, 260 S.E.2d 238, 240 (1979)). Where the evidence is sufficient to make a jury issue of

proximate causation, a trial court errs in setting aside the jury’s verdict. Id. at 429-30, 641

S.E.2d at 97-98.

       Thus, and contrary to the position taken by the dissent, when deciding how to rule on a

motion to set aside the jury verdict, a trial court applies the same principles that apply to a

motion to strike the evidence. “A motion to strike challenges whether the evidence is sufficient

to submit the case to the jury.” Lawlor v. Commonwealth, 285 Va. 187, 223, 738 S.E.2d 847,
                                                - 14 -
868 (2013). Where reasonable minds could differ on a factual issue, the trial court does not err

in submitting the issue to the jury. Ravenwood Towers, Inc. v. Woodyard, 244 Va. 51, 59, 419

S.E.2d 627, 632 (1992). “It . . . is the function of a jury to determine the credibility of witnesses

and the weight of the evidence and to resolve all conflicts in the evidence.” Id. at 57, 419 S.E.2d

at 630-31.

        Indeed in Hadeed v. Medic-24, Ltd., 237 Va. 277, 377 S.E.2d 589 (1989), our Supreme

Court expressly stated,

                “On review of a case in which the trial court has sustained a
                motion to strike after the introduction of all the evidence, we apply
                the principles governing consideration of evidence upon a motion
                to set aside a verdict as contrary to the evidence. ‘[W]e examine
                the evidence to determine whether or not a verdict in behalf of the
                losing party can be sustained. That is, upon a careful consideration
                of all the evidence, if we are of opinion that reasonable men may
                differ on the conclusion to be reached, then it is our duty to hold
                that the trial court committed error in striking the evidence.’ In
                viewing the evidence we give the plaintiffs ‘the benefit of all
                substantial conflict in the evidence, and all fair inferences that may
                be drawn therefrom.’”

Id. at 280-81, 377 S.E.2d at 590 (quoting Matney v. Cedar Land Farms, 216 Va. 932, 933-34,

224 S.E.2d 162, 163 (1976)). The Court followed this quote by stating that “[t]he standard

enunciated in Matney for appellate review also is the appropriate standard to be applied at the

trial level.” Id. at 281, 377 S.E.2d at 590.

        Therefore, we are not convinced by Wagoner’s argument adopted by the dissent that

there is one “decisional standard” that applies to motions to strike and a different “decisional

standard” that applies to motions to set aside a jury verdict. Accordingly, we hold that the trial

court did not apply an incorrect “decisional standard” in ruling on Wagoner’s motion to set aside

the jury verdict.




                                                - 15 -
                                        B. Proximate Cause

       Wagoner’s second assignment of error is that,

               The trial court erred in denying [his] Motion to Set Aside the
               [J]ury [V]erdict and in finding that [his] conduct was a proximate
               cause of Tuggle’s death when the evidence showed that Tuggle
               had a 75% probability of dying from his burns, which were not
               caused by [Wagoner]. The trial court erred in allowing the jury
               verdict to stand when the evidence did not establish that Tuggle’s
               death would not have occurred but for [Wagoner’s] conduct, or
               even that Tuggle’s death was made more probable than not
               because of [Wagoner’s] conduct.

       “[A] party who comes before [an appellate court] with a jury verdict approved by the trial

court ‘occupies the most favored position known to the law.’” Ravenwood Towers, 244 Va. at

57, 419 S.E.2d at 630 (quoting Pugsley v. Privette, 220 Va. 892, 901, 263 S.E.2d 69, 76 (1980)).

“On appeal, therefore, we must view the evidence and all reasonable inferences deducible

therefrom in the light most favorable to the prevailing party at trial.” Id. However, we review

the trial court’s application of the law to the facts de novo. Tuttle v. Webb, 284 Va. 319, 324,

731 S.E.2d 909, 911 (2012).

       The jury convicted Wagoner of violating Code § 18.2-369(B), which reads in part,

“Any responsible person who abuses or neglects an incapacitated adult in violation of this

section and the abuse or neglect results in the death of the incapacitated adult is guilty of a Class

3 felony.”

       It is uncontested that Wagoner is a “responsible person,” thus, the Commonwealth was

required to prove that Wagoner’s abuse or neglect of Tuggle “resulted in” the death of Tuggle. It

is uncontested that Wagoner did not cause Tuggle’s burn injuries. Wagoner stressed that the

evidence established that Tuggle’s chance of survival even with treatment was, at best,

twenty-five percent, and there was no evidence that Tuggle probably would have lived with

different treatment.

                                                - 16 -
        “[T]he phrase ‘proximate cause’ is shorthand for the policy-based judgment that not all

factual causes contributing to an injury should be legally cognizable causes.” CSX Transp., Inc.

v. McBride, 131 S. Ct. 2630, 2642 (2011). “[T]he lack of consensus on any one definition of

‘proximate cause’ is manifest.” Id. However, the concept of proximate cause “excludes from

the scope of liability injuries that are ‘too remote,’ ‘purely contingent,’ or ‘indirect[ ].’” Id. at

2645 (Roberts, C.J., dissenting) (quoting Holmes v. Securities Investor Protection Corp., 503

U.S. 258, 268 (1992)).

        In this case the trial court, without objection, instructed the jury on proximate cause:

“A proximate cause of a death is a cause that, in natural and continuous sequence, results in

death. It is a cause without which the death would not have occurred.” This jury instruction was

uncontested and thus, at a minimum, is the law of the case. Owens-Illinois, Inc. v. Thomas

Baker Real Estate, Ltd., 237 Va. 649, 652, 379 S.E.2d 344, 346 (1989) (“instructions given

without objection become the law of the case and thereby bind the parties in the trial court and

this Court on review”). Therefore, the question is whether the evidence supported a finding that

Wagoner’s neglect of Tuggle resulted in Tuggle’s death—or in other words, whether without

Wagoner’s neglect, Tuggle would have lived. The import of the language “results in the death”

as found in Code § 18.2-369(B) is not addressed in the Code or in Virginia case law.

        The United States Supreme Court has recently interpreted similar language in the federal

Controlled Substances Act that “imposes a 20-year mandatory minimum sentence on a defendant

who unlawfully distributes a Schedule I or II drug, when ‘death or serious bodily injury results

from the use of such substance.’” Burrage v. United States, 134 S. Ct. 881, 885 (2014)

(emphasis added) (quoting 21 U.S.C. § 841(a)(1), (b)(1)(A)-(C)). Burrage sold heroin to a

long-time user who injected the heroin soon thereafter and died. Id. The toxicologist determined

that multiple drugs, including heroin, were present in the decedent’s system at the time of his

                                                 - 17 -
death. Id. The toxicologist concluded that the heroin was a “contributing factor” in the

decedent’s death because it contributed to an overall effect that caused him to stop breathing. Id.

at 885-86. Another doctor described the cause of death as “mixed drug intoxication” in which all

drugs played a contributing role in the death. Id. at 886. Neither doctor could say that the

decedent would have lived had he not taken the heroin. Id. at 885-86.

       The question before the Supreme Court was whether the defendant may be convicted

under the “when death results” statutory provision when the use of the controlled substance was

a “contributing cause” of the death. Id. at 886. The government was required to prove beyond a

reasonable doubt that death resulted from the use of the drug. Id. at 887. Because the Controlled

Substances Act does not define the phrase “results from,” the Court looked to its ordinary

meaning and found that this language imports “but for” causality. Id. at 887-88, 890-91. “A

thing ‘results’ when it ‘[a]rise[s] as an effect, issue, or outcome from some action, process or

design.” Id. at 887 (quoting 2 New Shorter Oxford English Dictionary 2570 (1993)). “Results

from” imposes “a requirement of actual causality.” Id. “‘In the usual course,’ this requires proof

‘that the harm would not have occurred in the absence of–that is, but for–the defendant’s

conduct.’” Id. at 887-88 (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2525

(2013)). “This but[]for requirement is part of the common understanding of cause.” Id. at 888.

An event is the outcome or consequence of another event “when the former would not have

occurred but for the latter.” Id. “By contrast, it makes little sense to say that an event resulted

from . . . some earlier action if the action merely played a nonessential contributing role in

producing the event.” Id. One instructive example of but for causation provided by the Court is

as follows: “if poison is administered to a man debilitated by multiple diseases, it is a but[]for

cause of his death even if those diseases played a part in his demise, so long as, without the

incremental effect of the poison, he would have lived.” Id.

                                                - 18 -
       We are persuaded by Burrage that, where the legislature has not clarified otherwise, this

Court should give the phrase “results in” its ordinary meaning, which imports “but for”

causation.

       We note the significant role of the jury in determining whether a victim would have lived

but for the abuse or neglect of the responsible person. On one extreme, we can conceive of

situations in which an incapacitated adult becomes ill or injured through no fault of the

responsible party and even prompt heroic measures could not have saved the victim from death.

Death was certain regardless of the actions or inaction of the responsible party. Clearly, in this

scenario, a responsible party’s failure to act would not qualify as a cause of the victim’s death. It

could not be said that the ill or injured party would have or even might have lived but for the

responsible party’s failure to act. There is no question of fact for the jury on causation in this

scenario.

       At the other extreme, we can equally imagine an incapacitated adult who suffers from

diabetes and receives a minor injury—a small abrasion on the foot, for example. The abrasion, if

properly treated, would not be a life-threatening injury. However, the abrasion becomes infected

when it is left untreated. The patient develops gangrene, which is also left untreated, and

ultimately dies from medical consequences traceable initially to the small abrasion. In this

scenario, the actions or inactions of any responsible person was a theoretical “but for” cause of

the victim’s death: the injured adult almost certainly would have lived but for the responsible

party’s failure to act appropriately. In this scenario, even though the legal culpability would

seem to be clear, it remains a question of fact for the jury on causation.

       The facts of this case fall between the two extremes posited above, and create a

quintessential jury question. Dr. Suzuki testified that thirty percent of Tuggle’s body was burned

with second and third degree burns and that his cause of death was sepsis and pneumonia

                                                - 19 -
resulting from these thermal injuries. Dr. Whaley testified that without treatment, Tuggle’s risk

of death was 100%. With treatment, Tuggle had a thirteen to twenty-five percent chance of

survival. Dr. Berry testified that Tuggle did not appear to have sepsis, and his pneumonia onset

rapidly and may or may not have been related to the burn injuries. Dr. Berry also testified that

he probably would have recommended out-patient care for Tuggle.

       This conflicting evidence creates a question of fact as to whether Tuggle would have

lived but for Wagoner’s calling Tuggle back to Minor Street from his trip to the hospital and his

ongoing failure to seek professional medical treatment for him. It is the province of the jury “to

weigh the facts and to judge the credibility of the various lay and expert witnesses.”

Commonwealth v. Presley, 256 Va. 465, 470, 507 S.E.2d 72, 75 (1998). A jury may reject a

witness’ testimony in part and accept it in part. Hopkins v. Commonwealth, 230 Va. 280, 293,

337 S.E.2d 264, 273 (1985). Here, the jury was entitled to believe Dr. Whaley’s testimony that

Tuggle had a twenty-five percent chance of survival and to conclude that Tuggle would have

lived had Wagoner sought professional medical treatment for him. We find that a twenty-five

percent chance of survival is sufficient to take the question of whether Tuggle would have

survived absent Wagoner’s neglect “out of the realm of mere conjecture, or speculation, and into

the realm of legitimate inference,” thus making the question ripe for submission to the jury.

Beale v. Jones, 210 Va. 519, 522, 171 S.E.2d 851, 853 (1970) (quoting Hawkins v. Beecham,

168 Va. 553, 561, 191 S.E. 640, 643 (1937)).

       Alternatively, the jury was entitled to believe Dr. Berry’s testimony that Tuggle’s wounds

only required some outpatient care. From this testimony the jury could infer that Tuggle’s

wounds were not life-threatening in themselves. Taken with Dr. Suzuki’s testimony, the jury

could infer that these non-life-threatening injuries left untreated by a medical professional

resulted in pneumonia and led to his death. Thus, the jury could have found that Tuggle’s death

                                               - 20 -
would not have occurred but for Wagoner’s actions, namely his directions to the staff to bring

Tuggle back to Minor Street while en route to the hospital, and his decision to keep Tuggle at the

home even though there is evidence that he saw for himself the seriousness of Tuggle’s burns.

       “Great respect is accorded a jury verdict.” Hall v. Hall, 240 Va. 360, 363, 397 S.E.2d

829, 831 (1990). The “time-honored standard” that a court must apply in deciding whether to

approve a verdict is:

               “If there is conflict of testimony on a material point, or if
               reasonably [fair minded] men may differ as to the conclusions of
               fact to be drawn from the evidence, or if the conclusion is
               dependent upon the weight to be given the testimony, in all such
               cases the verdict of the jury is final and conclusive and cannot be
               disturbed either by the trial court or by this court, or if improperly
               set aside by the trial court, it will be reinstated by this court.”

Id. (quoting Forbes & Co. v. S. Cotton Oil Co., 130 Va. 245, 259, 108 S.E. 15, 19 (1921)).

Based on the evidence in this case, we find that fair minded men and women could differ as to

whether Wagoner’s actions and/or inactions constituted neglect that resulted in Tuggle’s death,

thus the trial court properly submitted the question to the jury.

       Wagoner argues that the Commonwealth must have proved a probability that Tuggle

would have survived with different treatment, or in other words, a greater than fifty percent

chance of survival. We do not agree. If the only evidence in this case was Dr. Whaley’s

testimony that Tuggle only had a twenty-five percent chance of survival, a jury could find that

Wagoner’s act of calling Tuggle back while en route to the hospital and failure to correct his

action by seeking professional medical treatment hastened Tuggle’s death and destroyed his

twenty-five percent chance of survival. It would defeat the purpose of Code § 18.2-369(B) to

relieve Wagoner of criminal liability only because Tuggle did not have a fifty-one percent

chance of survival.




                                                - 21 -
       Further, Wagoner’s position is not founded in Virginia law. Virginia case law6 does not

hold that the Commonwealth must prove a probability of greater than fifty percent chance of the

victim’s survival absent the defendant’s neglect in order to create a jury question on proximate

cause of death. While the Supreme Court in Blondel advised against including the substantial

possibility of survival in jury instructions, it affirmed that the law of Virginia is that where there

is at least a substantial possibility of survival, proximate causation of death is a question for the

jury. Blondel, 241 Va. at 472-73, 403 S.E.2d at 343.

       The Virginia Supreme Court has clearly not equated a “substantial possibility of survival”

to a “probability” of survival and common sense suggests that a “substantial possibility” is

somewhat less of a quantification than a “probability.” “[O]ur decisions have stated

emphatically, in medical malpractice-wrongful death cases, that a defendant physician’s

destruction of ‘any substantial possibility of the patient’s survival’ is ‘a proximate cause of the

patient’s death.’” Id. at 472, 403 S.E.2d at 343.

               “When a physician’s or surgeon’s negligent action or inaction has
               effectively terminated a person’s chance of survival, he will not be
               permitted to raise conjectures as to possible chances for survival
               that he has put beyond realization. If there was any substantial
               possibility of survival and the defendant has destroyed it, he is
               answerable. Rarely is it possible to demonstrate to an absolute
               certainty what would have happened if certain actions had been
               taken. The law does not in all circumstances require a plaintiff to
               show a certainty that a patient would have lived had he been
               operated on promptly.”

Id. at 473, 403 S.E.2d at 343 (quoting Whitfield v. Whittaker Mem. Hosp., 210 Va. 176, 184,

169 S.E.2d 563, 568-69 (1969)). The Supreme Court also held in Brown v. Koulizakis, 229 Va.

524, 532, 331 S.E.2d 440, 446 (1985), “in a death case, if a defendant physician, by action or




       6
        “Established principles of proximate causation are applicable in both civil and criminal
cases.” Brown v. Commonwealth, 278 Va. 523, 529, 685 S.E.2d 43, 46 (2009).
                                             - 22 -
inaction, has destroyed any substantial possibility of the patient’s survival, such conduct

becomes a proximate cause of the patient’s death.”

       In Murray v. United States, 215 F.3d 460 (4th Cir. 2000), the Fourth Circuit found in its

review of Virginia case law that Virginia adheres to “the traditional standard of proximate cause

and that requiring a plaintiff to prove destruction of a ‘substantial possibility of survival’ is

equivalent to requiring the plaintiff to prove that it is ‘more likely than not’ that the decedent

would have survived in the absence of the defendant’s negligence.” Id. at 463. The Fourth

Circuit states that in traditional negligence cases, “the plaintiff must prove that the ‘defendant’s

breach of duty was more likely than not (i.e., probably) the cause of injury.’” Id. (quoting

Hurley v. United States, 923 F.2d 1091, 1094 (4th Cir. 1991)). The Fourth Circuit reached the

conclusion that Virginia courts interpret “substantial possibility of survival” as equivalent to

“probability of survival” after a review of the Virginia Supreme Court opinions, none of which

explicitly reach this conclusion. See Whitfield, 210 Va. at 184, 169 S.E.2d at 568-69 (“When a

physician’s or surgeon’s negligent action or inaction has effectively terminated a person’s chance

of survival, he will not be permitted to raise conjectures as to possible chances for survival that

he has put beyond realization.”);7 Brown, 229 Va. at 533, 331 S.E.2d at 446 (There was evidence


       7
          Our sister state courts have not interpreted Whitfield as following a traditional
“probability” test. See Hastings v. Baton Rouge General Hospital, 498 So. 2d 713, 720 (La.
1986) (citing Whitfield for the proposition that “It is not necessary to prove that a patient would
have survived if proper treatment had been given, but only that there would have been a chance
of survival.”); Fennell v. Southern Maryland Hosp. Center, Inc., 580 A.2d 206, 208-09 (Md.
1990) (citing Brown and Whitfield, and noting that Virginia is one of many jurisdictions
recognizing the “loss of chance doctrine,” meaning the “net loss of chance of survival directly
attributable to the negligence” where the likelihood of recovery from the pre-existing injury,
prior to any alleged negligent treatment, was improbable, i.e. 50% or less); Kramer v. Lewisville
Memorial Hosp., 858 S.W.2d 397, 407-09 n.1 (Tex. 1993) (stating that at least sixteen states
have abandoned its “all or nothing” approach in favor of some version of the loss of chance
doctrine, and citing Whitfield as a case showing a trend towards the application of the “loss of
chance doctrine” to medical malpractice cases); Thornton v. CAMC, 305 S.E.2d 316 (W. Va.
1983) (including Virginia as a jurisdiction that has adopted the “value of a chance” theory, citing
Whitfield).
                                                 - 23 -
to support a finding that the doctor’s negligence was the proximate cause of death because a

prompt diagnosis would have enabled proper treatment with medication “which would have

substantially increased the patient’s chances of living, according to the testimony.”); Hadeed,

237 Va. at 287, 377 S.E.2d at 594 (The evidence indicated that if Hadeed had received the proper

treatment at the time the doctor examined him, “he would have had a substantial possibility of

surviving.” (emphasis added)); Griffett v. Ryan, 247 Va. 465, 471, 443 S.E.2d 149, 152 (1994)

(The “high likelihood” that an operation would have resulted in the patient being saved was

sufficient evidence that the treating doctor’s negligence destroyed “any substantial possibility” of

the patient’s survival and thus was sufficient evidence that the treating doctor’s negligence was

the proximate cause of the plaintiff’s death.); Poliquin v. Daniels, 254 Va. 51, 57, 486 S.E.2d

530, 534 (1997) (“A defendant physician’s action or inaction which ‘has destroyed any

substantial possibility of the patient’s survival’ is a proximate cause of the patient’s death.”).

       While in the above cited Virginia cases there was evidence of a greater than fifty percent

chance of survival absent the defendant’s negligence, the Supreme Court has not said that a

greater than fifty percent chance of survival is required to find a “substantial possibility of

survival.” The Supreme Court did not enter into any discussion about the “substantial possibility

of survival” equating to a “probability of survival” in any of these cases. Virginia cases

repeatedly cite the “substantial possibility of survival” without qualifying the “possibility.”

       For these reasons, we reject this assignment of error as well.

                                         C. Willful Neglect

       Wagoner’s final assignment of error is,

               The trial court erred in denying [Wagoner’s] Motion to Set Aside
               the Jury Verdict when the evidence failed to establish that
               [Wagoner] committed a willful act with knowledge and
               consciousness that injury or death would result to Tuggle, as
               required by [Code] § 18.2-369(B). The evidence clearly
               established that [Wagoner] and all other administrative staff were
                                                - 24 -
               consistently told by his caregivers that Tuggle was receiving the
               care recommended by the hospital and pharmacy and that his
               condition was improving.

       This Court must review the jury’s factual conclusions with the highest degree of appellate

deference, deferring to the jury’s responsibility to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts. Ervin v.

Commonwealth, 57 Va. App. 495, 502-03, 704 S.E.2d 135, 138-39 (2011).

       The jury was instructed as to the meaning of “neglect” and “willful.” Instruction 15 read:

“‘Neglect’ means the knowing and willful failure by a responsible person to provide treatment,

care, goods or services which results in injury to the health or endangers the safety of an

incapacitated adult.” Instruction 17 read:

               “Willful” describes conduct that must be knowing or intentional,
               rather than accidental, and undertaken without justifiable excuse,
               without ground for believing the conduct is lawful, or with a bad
               purpose. “Willful” contemplates an intentional, purposeful act or
               omission in the care of an incapacitated adult by one responsible
               for that adult’s care.

These jury instructions state the definition for “neglect” exactly as it is found in Code

§ 18.2-369. The jury instruction for “willful” is taken verbatim from Correll v. Commonwealth,

269 Va. 3, 12-13, 607 S.E.2d 119, 124 (2005), where the Supreme Court affirmed this Court and

the trial court’s conclusions that the defendant knowingly and willfully neglected her

incapacitated mother and thus affirmed her conviction under Code § 18.2-369.

       Wagoner cites Shanklin v. Commonwealth, 53 Va. App. 683, 674 S.E.2d 577 (2009), a

child neglect case where the appellant’s conviction was reversed because this Court found the

evidence did not show that she recognized the severity of the child’s injuries and willfully

disregarded the importance of obtaining medical assistance. Id. at 689, 674 S.E.2d at 580. The

child had been burned prior to arriving at the appellant’s home. The child’s second degree burns

had been treated by his parents with ointment and then wrapped with gauze and secured with
                                               - 25 -
duct tape. Appellant was told the child had some burns from playing in hot water. However, the

wounds were completely bound so that appellant could not see the extent of his injuries and the

child did not show any signs of discomfort. Id. at 690, 674 S.E.2d at 580.

       This case is more akin to Flowers v. Commonwealth, 49 Va. App. 241, 248-50, 639

S.E.2d 313, 317 (2007), where this Court affirmed appellant’s conviction for felony child

neglect, finding that the evidence supported that Flowers acted willfully in neglecting to seek

medical care for the child. “[E]ven though Flowers believed that the children had taken

something and that they needed immediate medical attention, she failed to call 911 or to take any

other prompt action to secure medical attention for the child.” Id. at 248, 639 S.E.2d at 317. She

waited three hours to call the child’s father who lived some distance away, and requested that he

refrain from calling the police or the child’s mother to avoid “any hoopla.” Id. Under the

totality of the circumstances, a reasonable fact finder could find that the appellant’s “actions and

deliberate inaction” “‘created a situation placing the child at risk of actual physical harm.’” Id. at

249, 639 S.E.2d at 317 (quoting Barrett v. Commonwealth, 268 Va. 170, 183, 597 S.E.2d 104,

110 (2004)). Thus, the Court affirmed the trial court’s classification of the appellant’s conduct

as a “willful omission” for purposes of Code § 18.2-371.1(B)(1). Id.

       Unlike in Shanklin, in the present case Wagoner was able to view Tuggle’s burns about

twelve hours after Tuggle sustained the injuries. Like in Flowers, the jury was entitled to believe

that Wagoner knew that Tuggle was severely burned, but did not seek proper treatment for

Tuggle in order to avoid undesirable personal consequences. Collins testified that on the

morning of February 9, staff members stood Tuggle up in front of Wagoner and Tuggle was not

wearing clothes, indicating that Wagoner could see all of Tuggle’s burns. Collins was “in

shock” when he saw Tuggle’s “very bad” burns. He described that there was no flesh on the




                                                - 26 -
back of Tuggle’s head, his hair was melted to him, and there were burns down to his feet. He

also noted that Tuggle looked like he was hurting.

       Baker testified that Tuggle’s t-shirt was lifted up to his shoulders so Wagoner could

inspect Tuggle’s wounds and Tuggle’s skin was really red and the skin had peeled away. Kenny

A. decided Tuggle’s burns were bad enough that he should send Tuggle to the hospital that

morning. The jury was entitled to believe the testimony of these witnesses and to infer that

Wagoner also saw that Tuggle had very severe burns, and not a minor “sunburn” type injury.

Epley also testified that the situation at Minor Street on February 9 was chaotic and

overwhelming and everybody was talking at once. The jury could infer from her testimony that

the employees present thought a significant injury had occurred and their concern fueled a

chaotic environment.

       Then there is the evidence that Wagoner recalled the van as it was transporting Tuggle to

the hospital on February 9 so he could take a look at Tuggle. Wagoner looked at Tuggle and

then sat in the privacy of Epley’s car and expressed concern that Social Services was going to

investigate them. Collins saw from a distance that Wagoner acted upset and agitated in the car.

Later the same day, Epley twice encouraged Wagoner to report the incident but he did not report

Tuggle’s injuries to the Office of Licensing until seven days later and only because the police

made a wellness check on Tuggle. The jury was entitled to consider all of these circumstances

and could infer that Wagoner decided not to seek professional medical care for Tuggle in order

to avoid investigation and to protect his own self interests. The jury was entitled to disregard

Wagoner’s story that he thought Tuggle only had a minor injury and that he relied on the advice

Tarpley relayed from a pharmacist and someone at the hospital who had never observed Tuggle’s

wounds. The jury was also entitled to consider that Wagoner knew his employees, upon whom

he relied to educate him on Tuggle’s condition, did not have any advanced burn training. Given

                                               - 27 -
the totality of the circumstances, a reasonable fact finder could conclude that Wagoner acted

purposefully and willfully in failing to seek professional medical care for Tuggle.

                                        III. CONCLUSION

       For the foregoing reasons, we hold that the trial court did not err in denying Wagoner’s

motion to set aside the jury verdict.

                                                                                        Affirmed.




                                              - 28 -
Huff, J., dissenting, in part.

        I respectfully dissent because 1) the standard articulated by the trial court when denying

appellant’s motion to set aside the jury verdict was the very standard that was rejected by the

Supreme Court in Blondel v. Hays, 241 Va. 467, 473-74, 403 S.E.2d 340, 344 (1991), as an

incorrect statement of the law of proximate cause in the Commonwealth, and 2) the jury’s

determination that appellant’s abuse and neglect of Tuggle resulted in Tuggle’s death was

“‘plainly wrong [and] without credible evidence to support it,’” Doherty v. Aleck, 273 Va. 421,

424, 641 S.E.2d 93, 94 (2007) (quoting Lane v. Scott, 220 Va. 578, 581, 260 S.E.2d 238, 240

(1979)). Consequently, I would hold that the trial court erred in applying an incorrect standard

to, and in subsequently denying, appellant’s motion to set aside the jury’s verdict.

        Code § 18.2-369(B) provides that “[a]ny responsible person who abuses or neglects an

incapacitated adult in violation of this section and the abuse or neglect results in the death of the

incapacitated adult is guilty of a Class 3 felony.” It is uncontested that appellant is a

“responsible person” under the statute. Thus, the issue on appeal is whether the jury’s

determination that appellant’s abuse or neglect “result[ed] in” Tuggle’s death is supported by

credible evidence. Code § 18.2-369(B).

        I agree with the majority’s observation, based on the United States Supreme Court’s

opinion in Burrage v. United States, 134 S. Ct. 881 (2014), that the phrase, “results in the death,”

as it is used in Code § 18.2-269(B), is the functional equivalent of “proximately causes the

death.”8 “A frequently quoted definition of proximate cause is that it is a cause ‘which, in


        8
         While the United States Supreme Court in Burrage distinguished between “actual
cause” and “legal cause [often called proximate cause]” and then went on to address the “results
from” language only in the context of actual cause, 134 S. Ct. at 887-88, “there are
inconsistencies in the national legal nomenclature as to whether [actual cause] is considered to be
a subset of proximate cause or whether [actual cause], in addition to proximate cause, . . .
together create legal cause.” Ford Motor Co. v. Boomer, 285 Va. 141, 151 n.2, 736 S.E.2d 724,
728 n.2 (2013). Our Supreme Court has indicated, however, that “the former nomenclature . . . is
                                              - 29 -
natural and continuous sequence . . . produces the injury, and without which the result would not

have occurred.’” Scott v. Simms, 188 Va. 808, 816-17, 51 S.E.2d 250, 253 (1949). “[T]he first

element of proximate cause, causation in fact, is often described as the ‘but for’ rule.” Ford

Motor Co. v. Boomer, 285 Va. 141, 150, 736 S.E.2d 724, 728 (2013). A “but-for cause,” which

is “[a]lso termed actual cause; cause in fact; [and] factual cause,” is a “cause without which the

event could not have occurred.” Black’s Law Dictionary 250 (9th ed. 2009). In the present case,

the above, well-settled principles of proximate cause in Virginia were accurately reflected in Jury

Instruction No. 17, which provided that “[a] proximate cause of death is a cause that, in natural

and continuous sequence, results in death. It is a cause without which the death would not have

occurred.” (Emphasis added).9

       Rule 3A:15 establishes the standards to be applied by a trial court when considering a

motion to strike and a motion to set aside a jury verdict. In pertinent part, the standard is the

same for both motions – whether “the evidence is sufficient as a matter of law to sustain a

conviction.” Rule 3A:15(a), (b). Indeed, as the majority points out, under this standard and

Code § 8.01-680 the trial court “shall not set aside [a jury verdict] unless it appears from the

evidence that such judgment is plainly wrong or without evidence to support it.”

               “If there is a conflict in the testimony on a material point, or if
               reasonable [persons] may differ in their conclusions of fact to be
               drawn from the evidence, or if the conclusion is dependent on the
               weight to be given the testimony, the trial judge cannot substitute




the more widely used terminology in Virginia . . . .” Id. Consequently, the United States
Supreme Court’s analysis of actual cause in Burrage is applicable to our analysis of proximate
causation in the present case.
       9
         As the majority notes, this instruction was uncontested and thus, at a minimum, is the
law of the case. Owens-Illinois, Inc. v. Thomas Baker Real Estate, Ltd., 237 Va. 649, 652, 379
S.E.2d 344, 346 (1989) (“instructions given without objection become the law of the case and
thereby bind the parties in the trial court and this Court on review”).

                                                - 30 -
               his conclusion for that of the jury merely because he would have
               voted for a different verdict if he had been on the jury.”

Doherty, 273 Va. at 424, 641 S.E.2d at 94 (quoting Lane, 220 Va. at 581, 260 S.E.2d at 240).

       When considering a motion to strike the evidence as insufficient to establish proximate

cause in a wrongful death case, however, the Supreme Court has provided additional “guidance”

to trial courts beyond the standard established in Rule 3A:15(a). Blondel, 241 Va. at 473-74, 403

S.E.2d at 344. Specifically, the Supreme Court stated that when

               deciding a motion to strike the evidence . . ., if a plaintiff’s
               evidence has shown that the defendant’s negligence has destroyed
               any substantial possibility of the patient’s survival, then there is
               sufficient evidence of proximate cause to go to the jury, and a
               motion to strike the evidence on that ground should be overruled.

Id. at 474, 403 S.E.2d at 344 (emphasis added). Considering this additional guidance in the

present case, at the motion to strike stage, the evidence established that without treatment,

Tuggle had a 100% chance of dying from his burns. With treatment, however, he would have

had a thirteen to twenty-five percent chance of survival. Consequently, when appellant decided

not to send Tuggle to the hospital, he destroyed a substantial possibility of Tuggle’s survival.

Thus, the trial court denied appellant’s motion to strike the evidence as insufficient to establish

proximate cause and sent the issue to the jury.

       The Supreme Court went on in Blondel, however, to explain that “‘[t]he substantial

possibility of survival’ standard, while furnishing the criterion for deciding a motion to strike,

was never designed for the guidance of a jury.” 241 Va. at 474, 403 S.E.2d at 344. This is

because the “substantial possibility of survival” standard is not the law of proximate cause in the

Commonwealth. Id. at 474-75, 403 S.E.2d at 344 (“Courts in a number of other jurisdictions

have adopted the ‘substantial possibility of survival’ standard for jury instructions . . ., [but] we

are not persuaded of the wisdom of that policy.”); see also Cooper v. Commonwealth, 2

Va. App. 497, 500, 345 S.E.2d 775, 777 (1986) (jury instructions must accurately reflect “the
                                                  - 31 -
law of the case applicable to the facts” (emphasis added)). Rather, it is to be “employed as a

decisional standard for the guidance of trial courts in deciding a motion to strike the evidence” as

insufficient to establish proximate cause in wrongful death cases. Blondel, 241 Va. at 473-74,

403 S.E.2d at 344 (emphasis added). In other words, once a case makes it past the motion to

strike stage, the jury’s function is to decide the issue of “proximate cause” according to the

Commonwealth’s “well-settled law,” not according to whether a substantial possibility of

survival was destroyed. Id. at 474, 403 S.E.2d at 344. Our Supreme Court did not intend for the

“substantial possibility of survival” standard to be applied when considering a motion to set aside

a jury verdict for lack of proximate cause, as the majority suggests.

       Consequently, when considering a motion to set aside a jury verdict for lack of proximate

cause of death, a trial court should not seek to determine whether the evidence established that a

substantial possibility of a victim’s survival was destroyed, but rather, it should seek only to

determine whether “the evidence is insufficient as a matter of law to sustain a conviction.” Rule

3A:15(b) (emphasis added). Accordingly, when considering appellant’s motion to set aside the

jury verdict in the present case, the trial court should have considered the well-settled law of

proximate cause in the Commonwealth, and then asked whether the jury’s determination that

appellant’s abuse or neglect proximately caused Tuggle’s death was “‘plainly wrong or without

credible evidence to support it.’” Doherty, 273 Va. at 424, 641 S.E.2d at 94 (quoting Lane, 220

Va. at 581, 260 S.E.2d at 240).

       In its letter opinion denying appellant’s motion to set aside the jury verdict, however, the

trial court inappropriately applied the “substantial possibility of survival” standard as the law of

proximate cause in the Commonwealth, stating that “[i]n the court’s view, a twenty-five percent

chance of survival represents a substantial possibility of survival, and the jury was entitled to




                                                - 32 -
find that [appellant’s] abuse or neglect of Tuggle was a proximate cause of his death.”10 In so

holding, the trial court specifically relied upon Brown v. Koulizakis, 229 Va. 524, 331 S.E.2d

440 (1985), and Whitfield v. Whittaker Mem. Hosp., 210 Va. 176, 169 S.E.2d 563 (1969), in

which the trial courts were reversed for incorrectly striking plaintiff’s evidence. Blondel, 241

Va. at 473, 403 S.E.2d at 344. The “substantial possibility of survival” standard, however, was

rejected by the Supreme Court as an incorrect statement of the law of proximate cause. Id. at

474-75, 403 S.E.2d at 344 (“Courts in a number of other jurisdictions have adopted the

‘substantial possibility of survival’ standard for jury instructions . . ., [but] we are not persuaded

of the wisdom of that policy.”).

       In deciding a motion to set aside a jury verdict, the appropriate inquiry is whether “the

evidence is insufficient as a matter of law to sustain a conviction.” Rule 3A:15(b) (emphasis

added). Deciding whether the evidence was sufficient to support the jury’s verdict, as a matter of

law, requires the trial court to apply the correct law – in this case, on the issue of proximate

causation.11 That appears not to have been done. Accordingly, I would hold that when

considering appellant’s motion to set aside the jury verdict, the trial court erred by applying a

decisional standard intended only as “guidance” when deciding a motion to strike the evidence.



       10
          The majority’s suggestion that “a jury could find that Wagoner’s act of calling Tuggle
back while en route to the hospital and failure to correct his action by seeking professional
medical treatment hastened Tuggle’s death and destroyed his twenty-five percent chance of
survival” also has the effect of applying the “substantial possibility of survival” standard as the
law of proximate cause in Virginia.
       11
          Although the same language is used in Rule 3A:15 for deciding a motion to strike the
evidence and a motion to set aside a verdict, the Supreme Court, in Blondel, has provided
additional guidance for a trial court to apply in considering a motion to strike the evidence on the
issue of proximate cause in death actions, 241 Va. at 473-74, 403 S.E.2d at 344, favoring
submission of such cases to the jury. This additional guidance does not change the
Commonwealth’s law of proximate causation and therefore does not lessen the standard for
considering a motion to set aside a jury verdict.

                                                - 33 -
       I would further hold that the trial court erred in denying the motion to set aside the jury

verdict because the jury’s determination that appellant’s abuse or neglect of Tuggle was a

proximate cause of Tuggle’s death was “‘plainly wrong [and] without credible evidence to

support it.’” Doherty, 273 Va. at 424, 641 S.E.2d at 94 (quoting Lane, 220 Va. at 581, 260

S.E.2d at 240).

       Suzuki testified that thirty percent of Tuggle’s body was burned and that his cause of

death was sepsis and pneumonia resulting from these thermal injuries. Whaley testified that

without treatment, Tuggle’s risk of death was 100%, and with treatment, he had a thirteen to

twenty-five percent chance of survival. This evidence establishes that, in all probability, Tuggle

would have died regardless of appellant’s abuse or neglect. No evidence was presented, and no

inference could arise, suggesting a likelihood of survival “but for” appellant’s abuse and neglect.

As such, no reasonable trier of fact could have found, beyond a reasonable doubt, that “but for”

appellant’s abuse or neglect, Tuggle would have survived. Or, in other words, no reasonable

trier of fact could have found, beyond a reasonable doubt, that without appellant’s abuse or

neglect Tuggle’s death would not have occurred.12

       The facts of the present case are similar to the majority’s hypothetical example of an

incapacitated adult who becomes ill or injured through no fault of the responsible party, and the

“prompt or heroic measures” of the responsible party would not save the victim from death. As

the majority notes, in this scenario, the responsible party’s inaction would not qualify as a

proximate cause of the victim’s death. Similarly, in the present case, no evidence was presented

upon which a jury could base its verdict that appellant’s abuse or neglect was a proximate cause


       12
          I respectfully suggest that the extent to which the majority relies on Dr. Berry’s
testimony, regarding Tuggle’s cause of death, as evidence to support the jury’s determination is
misplaced because the trial court declined to qualify Berry as an expert in forensic pathology,
holding that “Dr. Berry cannot express an opinion as to cause of death because that is outside his
area of expertise.”
                                                - 34 -
of death. I, therefore, would hold that the jury’s determination that appellant’s abuse or neglect

of Tuggle was a proximate cause of Tuggle’s death was unsupported, as a matter of law. For the

foregoing reasons, I respectfully dissent.13




       13
         I do not differ with the majority as to appellant’s third assignment of error, although I
would reverse without reaching that issue.
                                               - 35 -
