                     COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Annunziata and Bumgardner
Argued at Alexandria, Virginia


WILLIAM ALAN PRESLEY
                                         MEMORANDUM OPINION * BY
v.          Record No. 2265-96-4       JUDGE JERE M. H. WILLIS, JR.
                                            JANUARY 20, 1998
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
                        Thomas D. Horne, Judge
            Charles A. Anderson for appellant.

            Kathleen B. Martin, Assistant Attorney
            General (Richard Cullen, Attorney General, on
            brief), for appellee.



     On appeal from his conviction for voluntary manslaughter,

William Alan Presley contends that the evidence was insufficient

to support his conviction.    We agree and reverse and dismiss the

conviction.

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

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.    The jury's verdict will

not be disturbed on appeal unless it is plainly wrong or without

evidence to support it."     Maynard v. Commonwealth, 11 Va. App.

437, 439, 399 S.E.2d 635, 637 (1990) (en banc) (citations

omitted).     See Horsley v. Commonwealth, 2 Va. App. 335, 339, 343

S.E.2d 389, 391 (1986) ("The credibility of the expert witness

and the weight to be accorded the evidence were matters within
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
the province of the jury.").    When the sufficiency of the

evidence is challenged on appeal, "it is our duty to look to that

evidence which tends to support the verdict and to permit the

verdict to stand unless plainly wrong."     Snyder v. Commonwealth,

202 Va. 1009, 1016, 121 S.E.2d 452, 457 (1961).

     Presley lived with Sandra Laing and William Rossbach in a

Loudoun County residence owned by Presley's father.    Although

involved in an intimate relationship, Laing and Presley

maintained separate bedrooms.   In the early morning of August 1,

1995, Presley called the Virginia State Police and requested that

they "kick" Laing out of the house.     Trooper Alvin Blankenship

advised Presley "to go to bed, get some sleep, and go to the

magistrate's office the next day."
     Rossbach testified that during that night, he heard banging

noises and an argument between Laing and Presley.    At one point,

he entered the room where Laing and Presley were arguing and saw

Presley's hand around Laing's throat.    Presley removed his hands

and said:   "Sorry, God.   I really messed up."   Presley then

telephoned for an ambulance.    Laing was taken to Loudoun Hospital

Center, where she died at 4:14 a.m.

     The autopsy of Laing's body revealed a subdural hemorrhage

on the left side and top of her head.    Dr. Frances Fields,

Assistant Chief Medical Examiner, testified that Laing's death

resulted from this hematoma, which had been caused by blunt force

trauma occurring within twenty-four hours prior to death.      No



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external bruise was found over the hematoma.   However, a bruise

was noted on Laing's right eyelid and a "small reddish abrasion"

was seen on her left forehead.

     Presley told Sergeant Eric Noble that he "beat the hell out

of [Laing]" and that he had hit her with a chair.    A broken chair

was found near Laing.   Presley admitted to Deputy Clete Kresge

that he had hit Laing and that "[s]he had pissed me off tonight."

     Four defense witnesses testified to Laing's poor motor

coordination, which caused her to suffer frequent falls and

bruises.   Rossbach testified that Laing had stumbled and hit her

face on a doorknob on the morning before she died.
     Dr. Nicholas Lappes, a toxicologist, testified that the

cumulative effect of the drugs in Laing's system was consistent

with death by a drug overdose.    Dr. John Adams, a forensic

pathologist, testified that Laing's death was related to a

congenital deformity of her spine and skull and to chronic liver

disease.   The spinal deformity caused her frequent falls and

caused chronic pain in her neck and arms.   The liver condition

prevented proper blood clotting, causing abnormal bruising.     Dr.

Adams testified that Laing's subdural hematoma was at least

twelve-hours old and that parts of it may have been seventy-two

hours old.   While noting that the subdural hematoma resulted from

a combination of blunt force trauma and drugs and alcohol, he

opined that it could have developed spontaneously due to improper

blood clotting.




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     Dr. John H. Lossing, a neurologist, testified that Laing

died of suffocation because emergency room personnel were unable

to intubate her successfully due to the deformity of her cervical

spine.   He opined that Laing's breathing difficulty resulted from

excessive ingested medications.    He opined that the hematoma

caused a headache, which in turn led Laing to increase the dosage

of her prescribed pain medicine, which may have produced an

overdose.
     Viewed in the light most favorable to the Commonwealth, the

evidence failed to prove beyond a reasonable doubt that Presley

intentionally killed Laing in the sudden heat of passion upon

reasonable provocation.     See Barrett v. Commonwealth, 231 Va.

102, 105-06, 341 S.E.2d 190, 192 (1986).    Although he beat her,

the evidence failed to prove that he inflicted the mortal injury.

The medical examiner was unable to attribute Laing's subdural

hematoma to Presley.   She was unable to identify its cause.     She

acknowledged it could have occurred prior to the altercation

between Laing and Presley.    It could have resulted from Laing's

prior accidental fall.     See Hughes v. Commonwealth, 18 Va. App.

510, 518-19, 446 S.E.2d 451, 457 (1994) (en banc) (citation

omitted).

     Accordingly, the judgment of the trial court is reversed and

the charge is dismissed.

                                           Reversed and dismissed.




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