                                                                    COURT OF APPEALS OF VIRGINIA


            Present: Judges Petty, Beales and Decker
PUBLISHED


            Argued at Alexandria, Virginia


            BARRY JUSTIN LEVENSON
                                                                                                OPINION BY
            v.            Record No. 1884-16-4                                             JUDGE WILLIAM G. PETTY
                                                                                              DECEMBER 12, 2017
            COMMONWEALTH OF VIRGINIA


                                                   FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                                              Brett A. Kassabian, Judge

                                         Alberto Salvado (Salvado, Salvado & Salvado, PC, on brief), for
                                         appellant.

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


                          Barry Justin Levenson challenges his conviction of aggravated involuntary manslaughter

            in violation of Code § 18.2-36.1.1 He contends that the evidence was insufficient to convict him

            because the victim’s medical treatment decision was a superseding act that caused his death. We

            disagree and affirm.




                                                                        
                          1
                              Code § 18.2-36.1 states in relevant part,

                                         A. Any person who, as a result of driving under the influence in
                                         violation of clause (ii), (iii), or (iv) of § 18.2-266 or any local
                                         ordinance substantially similar thereto unintentionally causes the
                                         death of another person, shall be guilty of involuntary
                                         manslaughter.

                                         B. If, in addition, the conduct of the defendant was so gross,
                                         wanton and culpable as to show a reckless disregard for human
                                         life, he shall be guilty of aggravated involuntary manslaughter . . . .
                                                               BACKGROUND

              In the early morning hours of May 9, 2015, Levenson crashed into the rear of a dump

truck that was stopped in a construction zone. Levenson was intoxicated and was exceeding the

speed limit. The impact from the crash caused extensive damage to the vehicles and injured both

Levenson and his passenger, Devon Martin. Martin was transported to the hospital where he was

diagnosed with an injury to the spleen and a blood clot forming on the right iliac artery. The

blood flow to Martin’s leg was restricted and, according to expert medical testimony, Martin

risked irreversible damage and the loss of his leg within five hours. To preserve the leg,

Martin’s doctor recommended that the blood thinner heparin be administered and that a stent2 be

inserted into the artery. The doctor was aware that the use of heparin could cause

life-threatening bleeding from Martin’s injured spleen. However, a team of three doctors in

consultation formed a plan to deal with the spleen bleed if the situation became life threatening.

The use of heparin was recommended because insertion of a stent without it would be

substantially riskier. Amputation of the leg was mentioned only as a last option. Martin was

asked for consent to proceed with the treatment. At the time he gave consent, he was completely

lucid, coherent, and logical. After the heparin was administered, Martin began bleeding in the

brain from an injury undetected by an earlier CAT scan. He died as a result of that bleeding.

The only issue before us on appeal is whether the

                             trial court erred in refusing to strike the evidence on the basis that
                             the evidence was insufficient to prove manslaughter because
                             Martin opted for a discretionary course of treatment, including the
                             use of heparin, there being several alternate [sic] options for care
                             of his injuries which would have insulated him from death, his
                             passing being the product of an intervening and superseding act of
                             embarking on an injurious course of action which caused his
                             demise.

                                                            
              2
         A stent is a tube inserted into a blood vessel to keep a blocked passageway open. See
Stent, Tabor’s Cyclopedic Medical Dictionary (23rd ed. 2017).
                                                 ‐ 2 -
Thus, we must resolve whether the crash caused by Levenson was a proximate cause of Martin’s

death or, as Levenson argues, Martin’s consent to the administration of heparin was a

superseding cause.

                                      STANDARD OF REVIEW

       Generally, negligence and proximate cause are factual findings and thus “are issues for a

jury’s resolution. They only become questions of law to be determined by a court, when

reasonable minds could not differ.” Hawkins v. Commonwealth, 64 Va. App. 650, 655, 770

S.E.2d 787, 789 (2015) (quoting Forbes v. Commonwealth, 27 Va. App. 304, 309, 498 S.E.2d

457, 459 (1998)). Further, “the factual findings of [a jury] are not to be disturbed unless they are

plainly wrong or are without evidence to support them.” Wilkins v. Commonwealth, 292 Va. 2,

7, 786 S.E.2d 156, 159 (2016).

                                             ANALYSIS

       “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); Chapman v.

Commonwealth, 68 Va. App. 131, 140, 804 S.E.2d 326, 331 (2017). A proximate cause is “an

act or omission that, in natural and continuous sequence unbroken by a superseding cause,

produces a particular event and without which that event would not have occurred.” Brown, 278

Va. at 529, 685 S.E.2d at 46 (quoting Williams v. Joynes, 278 Va. 57, 62, 677 S.E.2d 261, 264

(2009)). “Because an event can have more than one proximate cause, criminal liability can

attach to each actor whose conduct is a proximate cause unless the causal chain is broken by a

superseding act that becomes the sole cause of the death.” Id.

               When a defendant’s criminally negligent conduct “put[s] into
               operation” an intervening cause of a death, the defendant remains
               criminally responsible for that death. Thus, an intervening cause
               of such death that is a probable consequence of the defendant’s
               own conduct will not constitute a superseding cause breaking the
               chain of proximate causation.
                                                ‐ 3 -
Id. (alteration in original) (citations omitted); see also Dorman v. State Indus., 292 Va. 111, 123,

787 S.E.2d 132, 139 (2016) (“In order to relieve a defendant of liability for his negligent act, the

negligence intervening between the defendant’s negligent act and the injury must so entirely

supersede the operation of the defendant’s negligence that it alone, without any contributing

negligence by the defendant in the slightest degree, causes the injury.”). Furthermore, “an

intervening cause is not a superseding cause if it was put into operation by the defendant’s

wrongful act or omission.” Dorman, 292 Va. at 123, 787 S.E.2d at 139; see Gallimore v.

Commonwealth, 246 Va. 441, 448, 436 S.E.2d 421, 426 (1993) (affirming appellant’s

involuntary manslaughter conviction where appellant’s fabrication of a kidnapping story put into

operation a series of events that led to the shooting of the victim by a third party).

       Appellate courts in Virginia have reasoned that medical treatment received by a victim is

part of the causal chain put into operation by the defendant’s wrongful act or omission. In

Commonwealth v. Jenkins, 255 Va. 516, 521, 499 S.E.2d 263, 265-66 (1998), the Supreme

Court affirmed a murder conviction where the victim died from aspiration of his vomit four days

after he was shot. The Court reasoned,

               When a defendant has inflicted wounds upon a victim that result in
               an affliction or a disease, the defendant is criminally responsible
               for the victim’s death from that affliction or disease if the wounds
               caused the death indirectly through a chain of natural effects and
               causes. An intervening event, even if a cause of the death, does
               not exempt the defendant from liability if that event was put into
               operation by the defendant’s initial criminal acts.

Id. (internal citations omitted). In Hawkins v. Commonwealth, 64 Va. App. 650, 656, 770

S.E.2d 787, 789 (2015), this Court affirmed appellant’s conviction of aggravated malicious

wounding where abdominal surgery for the bullet wound resulted in a large, permanent scar.

This Court reasoned that “the surgery did not relieve appellant from liability or break the chain

of the causal connection between the shooting and the scar because the surgery was a reasonably

                                                 ‐ 4 -
foreseeable consequence of the shooting.” Id.; see also Smith v. Kim, 277 Va. 486, 491-92, 675

S.E.2d 193, 196 (2009) (“The general rule is that if an injured person uses ordinary care in

selecting a physician for treatment of his injury, the law regards the aggravation of the injury

resulting from the negligent act of the physician as a part of the immediate and direct damages

which naturally flow from the original injury.” (quoting Corbett v. Clarke, 187 Va. 222, 224-25,

46 S.E.2d 327, 328 (1948))). Simply put, medical treatment is not a superseding cause if the

need for the treatment was put into operation by the defendant’s wrongful act or omission.3

              Applying these principles to Levenson’s case, we cannot say the trial court erred by

denying Levenson’s motion to strike the aggravated involuntary manslaughter charge. But for

Levenson driving at a high rate of speed through a construction zone while intoxicated, Martin

would not have been receiving the heparin and stent treatment to save his leg.4 Medical

treatment was a reasonably foreseeable consequence of the car crash and was put into operation

by Levenson’s criminal conduct. Levenson is “criminally responsible for [Martin’s] death”

                                                            
              3
          See also State v. Fox, 810 N.W.2d 888, 894 (Iowa 2011) (holding victim’s own decision
to remove life support not a superseding cause of death); State v. Murray, 512 N.W.2d 547, 550
(Iowa 1994) (concluding medical decision to remove life support not a superseding cause of
death because “the medical decisions that preceded the victim’s death were the product of the
physical condition in which the victim had been placed as a result of [defendant’s act].
Consequently, those medical decisions were part of a chain of events set in motion by the
[defendant’s] act and leading directly to the victim’s death.”); State v. Kirby, 39 P.3d 1, 17
(Kan. 2002) (holding physician’s negligent medical treatment not a superseding cause); People v.
Bailey, 549 N.W.2d 325, 335 (Mich. 1996) (“Defendant cannot exonerate himself from criminal
liability by showing that under a different or more skillful treatment the doctor might have saved
the life of the deceased and thereby have avoided the natural consequences flowing from the
wounds.”); Commonwealth v. Green, 383 A.2d 877, 879 (Penn. 1978) (“[E]ven if the wound
inflicted by the accused is not in itself mortal and a subsequent event is found to be the
immediate cause of death, the accused does not escape legal liability if his act started an
unbroken chain of causation leading to the death.”).
              4
         We note that here there is no suggestion of medical negligence in the prescription of
heparin by the doctors or in Martin’s consent to the treatment. The medical expert testified that
the other treatments, such as amputation of the leg or insertion of a stent without heparin, were
not medically advisable. Thus, the fact that Martin consented to the medically recommended
treatment, as opposed to other options, is not relevant to our analysis.
                                                ‐ 5 -
because the wounds received from the crash “caused death indirectly through a chain of natural

effects and causes.” Jenkins, 255 Va. at 521, 499 S.E.2d at 265. Martin’s treatment at the

hospital was “put into operation” by Levenson’s criminally negligent act. The fact that Martin

consented to the treatment recommended to him by the team of trauma doctors does not relieve

Levenson of liability.

                                          CONCLUSION

       Because there was sufficient evidence from which the jury could conclude that Martin’s

death was proximately caused by Levenson’s intoxicated driving, the trial court did not err in

denying Levenson’s motion to strike. Accordingly, we affirm Levenson’s conviction for

aggravated involuntary manslaughter.

                                                                                        Affirmed.




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