                      COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Bumgardner and Kelsey
Argued at Alexandria, Virginia


RUSSELL DALE FUNK, SR.
                                          MEMORANDUM OPINION * BY
v.   Record No. 1821-02-4             JUDGE RUDOLPH BUMGARDNER, III
                                               JULY 8, 2003
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF WINCHESTER
                     John E. Wetsel, Jr., Judge

           S. Jane Chittom, Appellate Defender (Felipita
           Athanas, Appellate Counsel; Public Defender
           Commission, on briefs), for appellant.

           Stephen R. McCullough, Assistant Attorney
           General (Jerry W. Kilgore, Attorney General;
           John H. McLees, Senior Assistant Attorney
           General, on brief), for appellee.


     A jury convicted Russell Dale Funk, Sr. of the malicious

wounding of his six-week-old son.   He maintains the trial court

erred in excluding expert testimony, in denying his motion for a

continuance, and in finding the evidence sufficient to prove

intent.   Finding no error, we affirm.

     The defendant was caring for the six-week-old victim for

two days while the mother was hospitalized.    He took the child

to see the mother in the hospital, but the child's appearance so

alarmed a nurse on duty at the hospital that she took the child


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
to the emergency room.   The child was in severe shock, had

bruises on his head, chest, arm and legs, and was bleeding in

his head.    The emergency room doctor testified that "severe

shaking" caused the trauma because the victim had no fractured

bones.   After transfer to the University of Virginia, the

attending specialist described the injuries as widespread brain

damage with significant bleeding and swelling in the brain.      The

doctor determined the victim suffered from non-accidental

trauma, "shaken baby syndrome," caused by severe force.    The

injuries were too widespread to have been caused by any single

blunt trauma and were inflicted during the two-day period that

the defendant cared for the child.    They would leave the victim

severely retarded.

     The defendant was mentally retarded with an IQ of 65.       He

maintained the injury was an accident, but gave conflicting

statements to the police.   He first denied shaking the victim

and claimed a three-year-old child hit the victim with a toy.

Later, the defendant admitted he shook the victim three times

while holding his shoulders and he might have been "too rough."

     The defendant filed a motion that he intended to introduce

"evidence of an insanity defense and/or a defense of lack of

mens rea."    The Commonwealth responded with a motion in limine

to exclude expert testimony offered to show the defendant's lack

of mens rea or diminished capacity.    The trial court considered

the motion in limine immediately before the trial began.      The
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defendant proffered the report of Bernard J. Lewis, Ph.D., a

licensed clinical psychologist, who had performed a parental

capacity and psychological evaluation for the Department of

Social Services.   His report concluded:

           The results of this evaluation suggests any
           harm Mr. Funk may have inflicted upon his
           infant child, Jesse, was likely due to a
           lack of understanding of the fragility of
           infants, rather than to any intentional or
           grossly careless act. Mr. Funk simply does
           not understand how easily infants can be
           harmed, and it is quite conceivable that he
           would play with a one-month-old child in the
           same manner he would play with a
           one-year-old child.

The trial court ruled the opinion was not admissible under

Stamper v. Commonwealth, 228 Va. 707, 717, 324 S.E.2d 682, 688

(1985).   The trial court also ruled the doctor would be

permitted to testify on the issue of the reliability of the

defendant's confession within the limits established in

Pritchett v. Commonwealth, 263 Va. 182, 187, 557 S.E.2d 205, 208

(2002).

     The defendant argues Stamper did not apply because the

evidence was not evidence of diminished capacity.   He maintains

the evidence showed he had limited mental capacity and a limited

understanding of the consequences of his conduct.   The evidence

did not relate to sanity but to the defendant's ignorance due to

his limited mental capacity and limited understanding of how to

handle infants.


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       "The admission of expert testimony is committed to the

sound discretion of the trial judge, and we will reverse a trial

court's decision only where that court has abused its

discretion."    Brown v. Corbin, 244 Va. 528, 531, 423 S.E.2d 176,

178 (1992).    In the absence of an insanity plea, "evidence of a

criminal defendant's mental state at the time of the offense is

. . . irrelevant to the issue of guilt."    Stamper, 228 Va. at

717, 324 S.E.2d at 688.

       In Peeples v. Commonwealth, 30 Va. App. 626, 519 S.E.2d 382

(1999) (en banc), the defendant was convicted of aggravated

malicious wounding.   He argued the trial court erred in

excluding expert testimony that due to his mental retardation

"'he has extreme difficulty correctly interpreting social

situations . . . and reacts inappropriately.'"    Id. at 629, 324

S.E.2d at 383 (citation omitted).    He claimed the evidence was

"admissible to prove his mental condition and his perception of

the situation that he confronted."    Id. at 630, 519 S.E.2d at

384.   This Court held the evidence was inadmissible because the

testimony that the defendant misunderstood social situations was

intended to reduce his criminal responsibility and was not

relevant to prove a defense.    Id. at 634, 519 S.E.2d at 385.

       In this case, the defendant sought to introduce opinion

testimony for the same reasons attempted in Peeples.    He sought

to establish that he did not fully comprehend the fragility of

the victim or the consequences of his conduct due to his mental
                              - 4 -
retardation.   Absent an insanity defense, the trial court cannot

consider expert opinion of a defendant's mental state.   "[T]here

is no sliding scale of insanity."    Stamper, 228 Va. at 717, 324

S.E.2d at 688.    The trial court did not err in excluding the

proffered opinion.

     The defendant moved for a continuance after the trial court

granted the motion in limine limiting the expert's testimony.

The defendant explained that he needed a continuance to "make a

proper presentation in open Court that will enable the Defendant

to demonstrate his mental abilities."   The trial court denied a

continuance.

     "Whether to grant or deny a continuance of a trial is a

matter that lies within the sound discretion of the trial court,

and its ruling will not be reversed on appeal unless it is

plainly wrong."    Cardwell v. Commonwealth, 248 Va. 501, 508, 450

S.E.2d 146, 151 (1994).   "[A]bsent a showing of prejudice to a

defendant by the denial of a continuance, an appellate court

will not find that a trial court abused its discretion."      Id. at

509, 450 S.E.2d at 151.

     The defendant made the motion for a continuance in response

to a pretrial evidentiary ruling just as the jury trial was

scheduled to begin.   The denial was typical of last minute

preliminaries that the defendant could anticipate.   He was not

entitled to regroup after an adverse ruling disrupted his

preferred strategy.   The defendant did call the expert as a
                               - 5 -
witness, and he testified about the defendant's IQ and his

intellectual functioning.    The defendant offered no clear

explanation at trial or on appeal for needing the continuance or

for being harmed without it.    The trial court was within the

limits of its discretion when it denied a continuance.

     The defendant maintains the Commonwealth failed to prove he

intended to maim, disfigure, disable, or kill the victim.     "The

specific intent to commit [a crime] may be inferred from the

conduct of the accused if such intent flows naturally from the

conduct proven."   Wilson v. Commonwealth, 249 Va. 95, 101, 452

S.E.2d 669, 674 (1995).     See also Tarpley v. Commonwealth, 261

Va. 251, 256, 542 S.E.2d 761, 764 (2001) (intent may be inferred

from defendant's conduct and statements).

     The victim, a six-week-old child, suffered permanent brain

damage from non-accidental, severe force.     He was under the sole

care of the defendant, who initially blamed the injury on a toy.

The defendant later admitted he shook the victim three times and

may have been too rough.    The jury heard and saw the officer

recount the defendant's statement and demonstration of how he

shook the child.   The jury was not required to accept the

defendant's contention that he did not intend to hurt the victim

or that the injury was an accident.      Rollston v. Commonwealth,

11 Va. App. 535, 548, 399 S.E.2d 823, 831 (1991) (defendant's

false statements are evidence of guilt).


                                 - 6 -
     The jury could reasonably infer from the violence necessary

to cause such severe and extensive injury that the defendant

intended that which he accomplished.     The jury determines the

inferences to be drawn from proven facts, "provided the

inferences are reasonably related to those facts."     Inge v.

Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 568 (1976).

"'In determining the probable consequences of an aggressor's

actions and his or her intent to achieve those consequences, the

comparative weakness of the victim and the strength of the

aggressor may be considered.'"    Webber v. Commonwealth, 26

Va. App. 549, 565, 496 S.E.2d 83, 90 (1998) (grown man striking

29-day-old infant sufficient to prove malice for second-degree

murder) (quoting Campbell v. Commonwealth, 12 Va. App. 476, 485,

405 S.E.2d 1, 5 (1991) (en banc)).

     "[T]he relevant question is whether, after viewing the

evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt."     Jackson v. Virginia,

443 U.S. 307, 319 (1979).   The evidence permitted a finding

beyond a reasonable doubt that the defendant intended to maim,

disfigure, disable, or kill the victim.    Accordingly, we affirm

the conviction.

                                                     Affirmed.




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