                      COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Kelsey and Senior Judge Willis
Argued at Chesapeake, Virginia


CATHERINE PALMER
                                          MEMORANDUM OPINION * BY
v.   Record No. 3265-01-1              JUDGE JERE M. H. WILLIS, JR.
                                               APRIL 22, 2003
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                      Randolph T. West, Judge

           Willard M. Robinson, Jr. (Law Offices of
           Willard M. Robinson, Jr., on brief), for
           appellant.

           Leah A. Darron, Assistant Attorney General
           (Jerry W. Kilgore, Attorney General, on
           brief), for appellee.


     On appeal from her bench trial conviction of abuse and

neglect of a child in violation of Code § 18.2-371.1(A), 1

Catherine Palmer contends that the trial court erred in admitting

into evidence a copy of an order of the Newport News Circuit Court

convicting Lorenzo Brown of second-degree murder.     She argues that

admission of that order violated her Sixth Amendment right to

confront the witnesses against her and that the order was


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
       Code § 18.2-371.1(A) provides in pertinent part that
"[a]ny parent, guardian, or other person responsible for the
care of a child under the age of eighteen who by willful act or
omission . . . causes or permits serious injury to the life or
health of such child shall be guilty of a Class 4 felony."
irrelevant to the issues at her trial. 2   We affirm the judgment of

the trial court.

                               FACTS

     "On appeal, 'we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.'"     Archer v.

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)

(citation omitted).

     At about 8:00 p.m. on August 9, 1999, Palmer left her

four-month-old baby, Jamal Palmer (Jamal), alone with Brown while

she went out for drinks with a friend.     She knew Brown had

consumed several cans of beer and was intoxicated.    She also knew

that Brown had "messed with" Jamal in the past, touching him in

inappropriate, sexual ways.   Members of her family had expressed

to her concern about her leaving Jamal with Brown.    Palmer knew

that Brown had "holler[ed] at" Jamal earlier that day when Jamal

was crying.   Before leaving the house, she told Brown, "Don't let

nothing happen to my baby."   When she returned home at about

11:00 p.m., she learned that Jamal had been taken by ambulance to

the hospital.




     2
       Appellant also complains that she was "caught by surprise"
by the introduction of the conviction order. However, appellant
does not contend that the Commonwealth was obligated to provide
the order to her in pretrial discovery. Nor does she supply any
authority that the conviction order should have been excluded on
the basis of that "surprise."

                               - 2 -
     The paramedics who were called to Brown's house at 10:16 that

night found Brown holding Jamal, who was limp.   Jamal died the

following day.    The medical examiner who performed an autopsy

testified that Jamal had suffered numerous injuries and that the

cause of his death was acute blunt force trauma to the head.

     The medical examiner testified that Jamal's injuries were

characteristic of shaken baby impact syndrome.   This syndrome

reflects injuries caused by a violent shaking of the baby's head,

causing the head to whip back and forth.   During the shaking, the

child's head strikes a hard object, such as a wall or a piece of

furniture, causing skull fractures and head bruising.

     Jamal's injuries also reflected squeezing pressure applied to

his chest with sufficient force to bend and snap the ribs.    He

also suffered injuries to his genital and anal areas indicating

sexual abuse.    His injuries were consistent with several violent

acts committed upon him at or near the same time.

     Over Palmer's objection, the trial court received into

evidence a properly authenticated and certified copy of Brown's

March 1, 2001 order of conviction of second-degree murder.

Detective R.B. Sherrill testified without objection that he was

present in court on March 1, 2001, when Brown was convicted of

the second-degree murder of Jamal.




                                - 3 -
                               ANALYSIS

                 Hearsay and the Confrontation Clause

        As a threshold to Palmer's Sixth Amendment argument, we

first consider whether the conviction order was hearsay and if

so, whether it fell within a recognized exception to the hearsay

rule.

        Hearsay is defined as "an out-of-court statement offered to

prove the truth of the matter asserted."     Garcia v.

Commonwealth, 21 Va. App. 445, 450, 464 S.E.2d 563, 565 (1995)

(en banc).     In order for hearsay to be admissible, it must "come

within one of the many established exceptions to the general

prohibition against admitting hearsay."     Hanson v. Commonwealth,

14 Va. App. 173, 187, 416 S.E.2d 14, 22 (1992).    "'[T]he party

seeking to rely upon an exception to the hearsay rule has the

burden of establishing admissibility.'"     Braxton v.

Commonwealth, 26 Va. App. 176, 183-84, 493 S.E.2d 688, 691

(1997) (quoting Neal v. Commonwealth, 15 Va. App. 416, 420-21,

425 S.E.2d 521, 524 (1992)).

        Brown's conviction order was hearsay, as it was offered to

prove the truth of the information it contained.    However, it

fell within the scope of Code § 8.01-389(A), a statutory

exception to the hearsay rule, which provides:    "The records of

any judicial proceeding and any other official records of any

court of this Commonwealth shall be received as prima facie

evidence provided that such records are authenticated and

                                 - 4 -
certified by the clerk of the court where preserved to be a true

record."    This statute "'codifies as part of the official

records exception to the hearsay rule judicial "records" which

are properly authenticated.'"    Taylor v. Commonwealth, 28

Va. App. 1, 11, 502 S.E.2d 113, 117 (1998) (en banc) (citation

omitted).   Brown's conviction order qualified for admission

under Code § 8.01-389(A).    See Owens v. Commonwealth, 10

Va. App. 309, 311, 391 S.E.2d 605, 607 (1990).

     Hearsay admissible under Virginia law also must be

scrutinized to determine whether it infringes upon the criminal

defendant's constitutional right to confront the witnesses

against him.

            In all criminal prosecutions, state as well
            as federal, the accused has a right,
            guaranteed by the Sixth and Fourteenth
            Amendments to the United States
            Constitution, "to be confronted with the
            witnesses against him." U.S. Const., Amdt.
            6; Pointer v. Texas, 380 U.S. 400 (1965)
            (applying Sixth Amendment to the States).
            "The central concern of the Confrontation
            Clause is to ensure the reliability of the
            evidence against a criminal defendant by
            subjecting it to rigorous testing in the
            context of an adversary proceeding before
            the trier of fact." Maryland v. Craig, 497
            U.S. 836, 845 (1990). . . . [T]he veracity
            of hearsay statements is sufficiently
            dependable to allow the untested admission
            of such statements against an accused when
            (1) "the evidence falls within a firmly
            rooted hearsay exception" or (2) it contains
            "particularized guarantees of




                                - 5 -
           trustworthiness" such that adversarial
           testing would be expected to add little, if
           anything, to the statements' reliability.

Lilly v. Virginia, 527 U.S. 116, 123-25 (1999).

     The official records exception has been accepted as a

firmly rooted exception to the hearsay rule.    See Ohio v.

Roberts, 448 U.S. 56, 66 n.8 (1980); Chapman v. State, 628 A.2d

676, 681 n.3 (Md. 1993).   Moreover, as noted above, this Court

has recognized the inherent trustworthiness of official judicial

records.   See Ingram v. Commonwealth, 1 Va. App. 335, 338, 338

S.E.2d 657, 658-59 (1986).   Accordingly, admission of Brown's

conviction order did not violate Palmer's rights under the

Confrontation Clause.   See Lilly, 527 U.S. at 124-25.

                     Relevancy and Competency

     As with all evidence, to be admissible, Brown's conviction

order must also have been relevant and competent to address

issues pertaining to Palmer's trial.   "Evidence is generally

admissible if it 'is both material – tending to prove a matter

which is properly at issue in the case – and relevant – tending

to establish the proposition for which it is offered.'"       Taylor

v. Commonwealth, 17 Va. App. 271, 275, 437 S.E.2d 202, 204

(1993) (citation omitted).   "'[E]very fact, however remote or

insignificant, that tends to establish the probability or

improbability of a fact in issue, is admissible.'   In addition,

evidence that adds 'force and strength to other evidence bearing

upon' an issue presented is admissible."   Caccioppo v.

                               - 6 -
Commonwealth, 20 Va. App. 534, 538, 458 S.E.2d 592, 595 (1995)

(citation omitted).

      Palmer argues that this case is analogous to cases

involving charges against principals in the second degree.       In

such cases, the Commonwealth must prove the commission of the

crime by the principal in the first degree.     See Fleming v.

Commonwealth, 13 Va. App. 349, 352, 412 S.E.2d 180, 182 (1991).

To prove the charge against the principal in the second degree,

the Commonwealth must present evidence proving the guilty

conduct of the principal in the first degree.    A mere recital of

the first degree principal's conviction is insufficient.       See

id.   See also Sult v. Commonwealth, 221 Va. 915, 275 S.E.2d 608

(1981); Hall v. Commonwealth, 8 Va. App. 526, 383 S.E.2d 18

(1989).    Indeed, "conviction of a principal in the first degree

is not a condition precedent to conviction of an accessory

. . . ."    Dusenbery v. Commonwealth, 220 Va. 770, 771, 263

S.E.2d 392, 393 (1980).   The alleged principal in the second

degree has the right to challenge at trial and on appeal the

sufficiency of the evidence to prove the guilt of the principal

in the first degree.    See Sult, 221 Va. at 917, 275 S.E.2d at

608; Fleming, 13 Va. App. at 353-55, 412 S.E.2d at 181-82.

      Had Palmer been tried as a principal in the second degree

to an offense committed by Brown, she would have been entitled

to confront and to challenge the sufficiency of the evidence



                                - 7 -
proving that he committed the underlying offense.   Mere proof of

his conviction of the offense would have been insufficient.

     We find the analogy apt.   Palmer was charged, as a

principal in the first degree, with causing or permitting

serious injury to her child by her willful act or omission,

specifically by leaving Jamal in Brown's care with the result

that Jamal suffered severe and fatal injuries inflicted by

Brown.   Evidence that Brown inflicted those injuries upon Jamal

while the child was in his care was relevant to the charge.

However, Brown's conviction was not an element of the charge

against Palmer, and evidence proving that conviction was

irrelevant.

     Brown's conviction order proved only that on March 1, 2001,

he was convicted of second-degree murder.   The order did not

identify the victim or the circumstances of the murder.    It did

not identify any injury inflicted upon the victim by Brown.     It

provided no proof of any element of Palmer's trial.   Thus, the

order was irrelevant, and the trial court erred in admitting it

into evidence.

                          Harmless Error

     Non-constitutional error will be deemed harmless if:

           "it plainly appears from the record and the
           evidence given at trial that the error did
           not affect the verdict." "An error does not
           affect a verdict if a reviewing court can
           conclude, without usurping the [fact
           finder's] function, that had the error not


                                - 8 -
          occurred, the verdict would have been the
          same."

Scott v. Commonwealth, 18 Va. App. 692, 695, 446 S.E.2d 619, 620

(1994) (citations omitted).

     The evidence proved overwhelmingly that Palmer knew that

Brown had sexually molested Jamal before.    She had been warned

by family members not to leave Jamal with Brown.    On the evening

in question she knew that Brown had been drinking, yet she left

the child with him while she went drinking with a friend.     She

acknowledged the danger by admonishing Brown, "Don't let nothing

happen to my baby."   Under these circumstances, created by

Palmer's neglect, Brown generally and sexually abused Jamal,

inflicting serious and fatal injuries on him.   Based on those

injuries and on Jamal's resulting death, Brown was convicted of

second-degree murder.   Thus, independently of the erroneously

admitted order, the evidence overwhelmingly and compellingly

established Palmer's guilt.   We hold, therefore, that the

admission of the order was harmless error.

     The judgment of the trial court is affirmed.

                                                         Affirmed.




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