                      COURT OF APPEALS OF VIRGINIA


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


TEWANDA J. SMITH, S/K/A
 TEWANDA JOVEN SMITH
                                         MEMORANDUM OPINION * BY
v.   Record No. 2284-01-1              JUDGE WALTER S. FELTON, JR.
                                            NOVEMBER 5, 2002
COMMONWEAL TH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                        Jerome James, Judge

          J. T. Stanton (J.T. Stanton, P.C. on brief),
          for appellant.

          Margaret W. Reed, Assistant Attorney General
          (Jerry W. Kilgore, Attorney General, on
          brief), for appellee.


     Tewanda Smith was convicted in a jury trial of (1)

second-degree murder, a lesser-included felony, in violation of

Code § 18.2-32, and (2) child neglect, in violation of Code

§ 18.2-371.1.   On appeal she contends that the evidence was

insufficient for a jury to find her guilty beyond a reasonable

doubt of second-degree murder.   For the following reasons, we

affirm the judgment of the trial court.




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

                            A.   OFFENSES

     On the morning of July 8, 2000, Tewanda Smith walked into

the Sentara Norfolk General Hospital emergency room, complaining

of vaginal bleeding.   The triage nurse, Lynn Pantelides, asked

Smith if she had a miscarriage and if she thought she was

pregnant.   She answered no, explaining she had a fibroid tumor

that ruptured.   Smith also informed Pantelides, upon

questioning, that her last menstrual period was on June 20.

Thereafter, Pantelides pulled Dr. Raeann Hamilton aside and

informed her about Smith.

     Dr. Hamilton examined Smith and asked her what happened.

She responded that she had just given birth to a baby.

Dr. Hamilton then inquired about the tumor.   Smith told her that

she was initially diagnosed as having a fibroid tumor, but a few

days prior she was informed she was pregnant. 1   After determining

Smith had given birth, Dr. Hamilton began questioning her about

such things as the baby's condition and location.

     Smith expressed concern that her mother not find out she

had given birth.   She then told Dr. Hamilton that she wrapped

the baby up in some clothes and placed it in the backyard, near

a low fence with chairs around it, to hide it from her mother.


     1
       Kim Atkins, an x-ray technician at Healthsouth, testified
that on July 5, 2000, she performed an ultrasound on Smith.
Observing the baby and detecting its heartbeat, Ms. Atkins
informed Smith that she was pregnant.

                                 - 2 -
Smith again expressed her concern that if rescue workers were

going to get the child, that they go through the backyard and

not knock on the door and wake her mother.     Dr. Hamilton left

the examining room and called 911.

     Rescue technicians arrived at Smith's house approximately

thirty minutes after she arrived in the emergency room.    Upon

entering the backyard, they found Smith's child, Joshua, on a

walkway near the trashcans.    He was covered by a leather jacket

and wrapped chest-high in a pair of sweatpants.    The rescue

technicians cleaned Joshua up, separated him from the placenta,

and transported him to the hospital.     On July 12, 2000, he died

after being removed from life-support.    Joshua's death was a

result of blunt force head injuries and abandonment.

                          B.   INVESTIGATION

     On July 8, 2000, Detective T.R. Thompson interviewed Smith

in the emergency room.    In response to Detective Thompson's

questions, Smith admitted that two days prior, during an

examination at Healthsouth, she found out she was pregnant.      She

stated she was previously informed she had a fibroid tumor.

Smith confirmed that she had given birth to Joshua in her

bedroom.   She stated she had him in her sweatpants then wrapped

him in her coat.

     Smith informed Detective Thompson that she left Joshua in

the backyard because she wanted to get to the hospital in order

for someone to get him.   She wanted to give him up for adoption.

                                 - 3 -
When Detective Thompson asked her why she had not taken the baby

with her to the hospital, Smith replied that she could not let

her mother see her get into the car with the baby.   She feared

being thrown out of her house if her mother found out she was

pregnant.

     That same morning, Smith was interviewed by a social worker

from Child Protective Services, Priscilla Johnson-Boggs.   Smith

gave Ms. Johnson-Boggs an account similar to that given to

Detective Thompson.   She stated that she found out she was

pregnant a few days prior, she delivered Joshua, and that she

did not want to tell her mother because her mother would put her

out of the house.

     Ms. Johnson-Boggs interviewed Smith again on July 9, 2000.

During that interview Smith stated she did not know it was a

baby that she had wrapped in her jogging pants, but that she was

"going to throw the pants in the garbage can which would have

been easier, much easier."

     The Office of the Chief Medical Examiner performed an

autopsy and determined that the cause of death was

"[c]omplications of blunt force head injuries and abandonment."

                               C.     TRIAL

     On November 1, 2000, Smith was indicted for murder, in

violation of Code § 18.2-32.    At her jury trial, Smith recanted

the statements she made to investigating authorities and medical



                                    - 4 -
personnel.    She testified that when she arrived at the emergency

room she told Dr. Hamilton everything that happened.

             Q [Mr. Sceviour, Smith's attorney]: Dr.
             Hamilton comes through the door. What
             transpires? What occurs?

             A [Smith]: I told her, I said, "Ma'am, I
             had a tumor, you know. I was coming down
             [the] steps, [when] this happened." And she
             was like, "Where is it? What did you do
             with it?" I said, "I just threw the pants
             out the back door." She was, like, "Well,
             why didn't you bring it, you know, with you
             to the hospital?" I was like, "I didn't
             want to, you know, touch it." It was just a
             tumor. I told her, you know, what happened.

                   *      *    *    *    *    *    *

             Q: At this point did you know you had had a
             baby?

             A:   No, sir.

             Q: When was the first time you knew you
             actually had a baby?

             A: Dr. Hamilton came back in there roughly
             fifteen minutes later, and she looked me
             dead in my face and said, "By the way, that
             was not a tumor, that was a baby." And that
             was the first time that I had ever heard
             anything about a child.

     On June 13, 2001, the jury found Smith guilty of

second-degree murder, a lesser-included felony, in violation of

Code § 18.2-32.        She was also found guilty of child neglect, in

violation of Code § 18.2-371.1.




                                    - 5 -
                              II.    ANALYSIS

     On appeal, Smith contends that the evidence was

insufficient for the jury to convict her of second-degree

murder.   We disagree.

           When the sufficiency of the evidence is
           challenged on appeal, it is well established
           that we must view the evidence in the light
           most favorable to the Commonwealth, granting
           to it all reasonable inferences fairly
           deducible therefrom. The conviction will be
           disturbed only if plainly wrong or without
           evidence to support it.

Jones v. Commonwealth, 13 Va. App. 566, 572, 414 S.E.2d 193, 196

(1992).   The credibility of the witnesses and the weight

accorded their testimony are matters solely within the province

of the fact finder.      Long v. Commonwealth, 8 Va. App. 194, 199,

379 S.E.2d 473, 476 (1989).

     Smith argues that the evidence did not prove beyond a

reasonable doubt that she killed her newly born infant, Joshua,

and that it was done with malice.       In order for the Commonwealth

to convict Smith of second-degree murder, it must prove malice

aforethought.   She must be shown to have "willfully or

purposefully, rather than negligently, embarked upon a course of

wrongful conduct likely to cause death or great bodily harm."

Essex v. Commonwealth, 228 Va. 273, 280-81, 322 S.E.2d 216, 220

(1984).

           Malice may be either express or
           implied . . . . "Express malice is evidenced
           when 'one person kills another with a
           sedate, deliberate mind, and formed

                                    - 6 -
             design.' . . . Implied malice exists when
             any purposeful, cruel act is committed by
             one individual against another without any,
             or without great provocation; . . . ."

Id. at 280, 322 S.E.2d at 220 (quoting Pugh v. Commonwealth, 223

Va. 663, 668, 292 S.E.2d 339, 341 (1982)).      "In making the

determination whether malice exists, the fact-finder must be

guided by the quality of the defendant's conduct, its likelihood

of causing death or great bodily harm, and whether it was

volitional or inadvertent . . . ."       Id. at 282, 322 S.E.2d at

221.

       In the case before us, we find that the evidence was

sufficient for a jury to find beyond a reasonable doubt that

Smith acted with malice.    Smith's conduct was volitional and of

a nature that presented a high likelihood of causing death or

great bodily harm to her newly born infant.      She discovered she

was pregnant two days prior to giving birth, following an

ultrasound examination at Healthsouth.

       When Smith finally gave birth to Joshua, she deliberately

wrapped him in her sweatpants and a jacket, went into the

backyard, and left him helpless on the walkway near the

trashcans.    While Smith sought medical attention for herself,

the newly born infant was left without medical care, still

attached to the placenta and with multiple skull fractures.

       Dr. Suzanne Starling, the Medical Director of the Child

Abuse Program at the Children's Hospital of the King's


                                 - 7 -
Daughters, and an expert in the field of child abuse, testified

that the infant had a total of "at least eight fractures."    She

also testified that the type of multiple skull fractures found

on Baby Joshua were consistent with blunt trauma, and would be

similar in severity to head injuries one would expect to see

where an infant went through a windshield in a head-on motor

vehicle crash, or similar to cases where an automobile ran over

a child's head, or where a person would stomp on a child's head.

     Dr. Elizabeth Kinnison, Assistant Chief Medical Examiner,

testified, consistent with the Report of Autopsy, that Baby

Joshua suffered blunt force head injuries, including a

comminuted skull fracture of the parietal bone, depressed skull

fracture of the left parietal bone, and multiple linear

fractures of the left parietal bone, right parietal bone, and

right frontal bone.   She opined that blunt force head injury and

abandonment caused Baby Joshua's death.

     When questioned by Dr. Hamilton, Detective Thompson, and

Ms. Johnson-Boggs about what happened, Smith expressed no

concern for Joshua, merely concern that her mother would throw

her out of the house if she found out she was pregnant again.

Her actions in abandoning the helpless infant were

unquestionably deliberate and conscious.   That Smith claimed at

trial she believed she passed a tumor, contrary to the

statements made to Dr. Hamilton, Detective Thompson, and Ms.

Johnson-Boggs, is a matter of credibility to be determined by

                               - 8 -
the jury.   Long, 8 Va. App. at 199, 379 S.E.2d at 476.   The

evidence was sufficient to sustain the conviction of

second-degree murder.

     The judgment of the trial court is affirmed.

                                                          Affirmed.




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