RICHARD C. WAGONER, JR.
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE. G. Carter Greer, Judge.
James R. McGarry (James W. Haskins; David O. Williamson; Young, Haskins, Mann, Gregory, McGarry & Wall, P.C.; Brumberg, Mackey and Wall, P.L.C., on briefs), for appellant.
Alice T. Armstrong, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
Present: Humphreys, Beales and Huff
[63 Va.App. 232] ROBERT J. HUMPHREYS,
Richard C. Wagoner, Jr. (" Wagoner" ) was convicted by a jury in the Circuit Court of the City of Martinsville (" trial court" ) of abuse or neglect of an incapacitated adult resulting in death, in violation of Code § 18.2-369(B). On appeal, [63 Va.App. 233] Wagoner argues (1) that the trial court applied the wrong decisional standard in denying his motion to set aside the jury verdict; (2) that the evidence was insufficient to support a finding that his conduct was a proximate cause of the victim's death; and (3) that the evidence was insufficient to establish that he committed a willful act with knowledge and consciousness that injury or death would result to the victim. For the following reasons, we affirm the trial court.
On appeal, we " consider the evidence and all reasonable inferences fairly deducible therefrom in the light most favorable to the Commonwealth, the prevailing party at trial." Bass v. Commonwealth, 259 Va. 470, 475, 525 S.E.2d 921, 924 (2000).
In February 2011, Joe Tuggle (" Tuggle" ), the victim, was living in a group home for men with intellectual disabilities run by the Claye Corporation. Wagoner, who holds a PhD in applied developmental psychology, owns the Claye Corporation and serves as the president of the Corporation. The Claye Corporation has a provider agreement with the Department of Developmental Health to provide services to intellectually disabled adults. The Claye Corporation operates several homes where clients reside. Three clients, including Tuggle, lived in the Minor Street home (" Minor Street" ).
In February 2011, Tuggle was fifty-seven years old and had severe Parkinson's disease and Lewy bodies in his brain causing dementia. It is unclear what caused Tuggle's intellectual disabilities, but whatever the cause, he was unable to communicate effectively, he could not carry on a real conversation, and he mostly moaned and gestured. Tuggle also needed help with eating and with personal care. Tuggle could walk, but he was shaky from the Parkinson's disease and had trouble with walking and standing on his own.
Around seven in the evening on February 8, 2011, Tuggle was sitting on a couch in the Minor Street living room when he had a diarrhea accident. Jerome Baker (" Baker" ), who [63 Va.App. 234] was working on staff, assisted Tuggle to the restroom and sat Tuggle on the toilet. After waiting with Tuggle two to three minutes, Baker left to retrieve a mop bucket and cleaning supplies from the kitchen and began helping another staff member, Kenny L. Brown (" Kenny L." ), clean up the diarrhea
that was on the couch and floor in the living room. After cleaning for five or six minutes, Baker returned to the restroom and found Tuggle lying down in the bathtub on his back with only hot water running out of the shower. Tuggle was saying " Help me! Help me!" Baker turned off the hot water and yelled for Kenny L. to come help. Baker and Kenny L. grabbed Tuggle and raised him up and sat him on the toilet. They dried Tuggle off and noticed his skin was very red. Then they took Tuggle to the living room and noted again that his skin was really red and it started to peel about ten minutes later. Baker testified that he grabbed the phone, ready to call 911, but Kenny L. told him " No," and to call their supervisor first because that was the policy.
Kenny L. called Kenny A. Brown (" Kenny A." ), the staff supervisor that night. Kenny A. left his home and went to Minor Street around 8:30 p.m. Kenny A. inspected Tuggle and determined that Tuggle did not need medical attention. Kenny A. called Tameki Tarpley (" Tarpley" ), his co-supervisor, to inform her of Tuggle's accident. Without seeing Tuggle, Tarpley called the emergency room (" E.R." ) on February 8 and asked how to treat a burn that " appeared to be like a sunburn." Tarpley testified, " All they could tell me was we could apply cold compressions and go to the pharmacy, [and] ask the pharmacist how to treat it."  Tarpley called Kenny [63 Va.App. 235] A. back and said to apply cold rags to Tuggle's burns. Kenny L. and Baker stayed with Tuggle until 11:00 p.m. applying cold rags, and Baker testified that Tuggle made noises indicating he was in pain.
The next morning, February 9, Kenny A. arrived back at Minor Street around 6:30 a.m. He got there earlier than usual in order to check on Tuggle. He observed that Tuggle looked different that morning and that his burns were " a little bit redder than they were pink" and this concerned him. Kenny A. called Tarpley and told her that they needed to take Tuggle to the hospital to be checked out. Tarpley was on her way to work, a little before 7:00 a.m., when she called staff member Lacoma Hairston (" Hairston" ) to bring one of the company vans over to Minor Street to transport Tuggle to the hospital. Tarpley then arrived at Minor Street and saw Tuggle's arm and neck and confirmed that it was red. Cynthia Epley (" Epley" ), a director at the Claye Corporation, called Tarpley prior to arriving at Minor Street and Tarpley told her about Tuggle's accident the night before and that he was burned. Tarpley also told Epley that a van was coming to transport Tuggle to the E.R.
Hairston arrived at Minor Street with the van about 7:15 a.m. Some staff members put Tuggle in the van, and the van left. Epley testified that she called Wagoner after speaking with Tarpley and that Wagoner said, " Well, I'd like to see him before he goes." Epley then called Tarpley to tell her that " Mr. Wagoner would like to see [Tuggle] before he goes." Tarpley then called Hairston and told her to bring the van back. The van arrived back at Minor Street within a short time, about three minutes after Tarpley called Hairston.
After the van returned, Tarpley went to CVS " because that's what the hospital [told her to do]" and she asked the [63 Va.App. 236] pharmacist how to treat a sunburn. The pharmacist told her to use drainage strips, " cold compresses to keep it clean and to dry the heat," and Neosporin. According to her CVS receipt, Tarpley purchased the recommended supplies at 8:01 a.m., and then she returned to Minor Street.
Epley arrived at Minor Street around the same time that Tarpley returned from CVS. When Epley entered the house, Tuggle was sitting in the living room in a wheelchair. Tuggle had something over him so she could only see the top of his hand. Wagoner arrived shortly after Epley, and the staff started explaining to them what had happened. Epley described the scene as chaotic and overwhelming, and everyone was talking at once. She stayed inside the Minor Street house less than ten minutes and then went to sit in her car. Wagoner asked Tuggle how he was doing. Then Baker took the sheet off of Tuggle and pulled up Tuggle's T-shirt for Wagoner to see his injuries. Baker testified that Tuggle's skin was really red and skin had peeled away. Staff member Lawrence Collins (" Collins" ) testified that Tuggle did not have any clothes on and that he and staff member Artis Williams stood Tuggle up and dropped the sheet from him so Wagoner could have a look. " [Wagoner] looked at him. He looked him up and down. Then he just looked. We sat [Tuggle] back in the chair. [Wagoner] looked at everybody. He didn't say one word to us. He just looked, this look he had. He walked out." Epley testified that on February 9, the staff made the treatment decision to send Tuggle to the hospital and that Wagoner made the treatment decision with regard to not sending Tuggle to the hospital.
Collins described that he was " in shock" when he walked in the home that morning and saw Tuggle because Tuggle " had suffered a very bad burn." Collins elaborated on Tuggle's condition that morning: Tuggle looked like he was hurting; he was just staring; he was not smiling or talking. " Tuggle didn't have no flesh on him from the back of his head, like all of his hair was melted and stuff to him, all down his shoulders. His butt was gone. All the way down, you know, he had burns all the way down to his feet." Collins continued,
[63 Va.App. 237] He couldn't have nothing on him. You know, not even underwear. He was just that much in the raw. His whole body was like just real pink. It looked like it had just happened. I mean it was just like somebody just took all the skin off the back of him. He didn't have none. I mean like Tuggle was real hairy. He didn't have no hair on his back no more, or on his butt, nowhere.
After looking at Tuggle for two or three minutes, Wagoner went outside and sat with Epley in her car. According to Wagoner, Epley was upset and nervous and had to take her blood pressure medication while they talked in the car. While Collins smoked a cigarette outside, he watched Epley and Wagoner in the car. Wagoner looked upset and agitated, and based on his hand-gestures, Collins could tell Wagoner was not happy. Epley testified that when Wagoner got in the car he said his nerves were " just shot," and " Well, I guess Social Services will investigate us." He also told Epley that " after talking to Tuggle and talking to Ms. Tarpley and hearing what the hospital had to say, he decided that we would treat Tuggle at home one on one, with one on one care, that he felt he'd get better care." Wagoner left Minor Street after talking with Epley for about ten minutes.
After Wagoner left, Epley telephoned Tarpley to come out to her car. They went to Family Pharmacy together and Epley picked up her own medication and Tarpley bought more Neosporin and Tylenol. Epley told Tarpley that if Tuggle gets worse they should take him to the E.R. After Epley dropped Tarpley off at Minor Street, Epley left and went to a friend's house for the afternoon. From there she made two phone calls to Wagoner during which they discussed reporting the burn incident to " licensure," meaning the Department of Behavioral Health and Developmental Services, Office of Licensing. Epley stressed to Wagoner that he did need to [63 Va.App. 238] report Tuggle's injuries to licensure. Wagoner told Epley he did not know if Tuggle's injury met the criteria for reporting and he would have to check into it. Wagoner indicated that he did not think Tuggle's
injuries needed to be reported because there was no blood present.
Tarpley and Kenny A. supervised the staff's care of Tuggle over the next nine days. The staff applied Neosporin and cold rags to Tuggle's burns. The staff changed Tuggle's sheets and T-shirts often because the burns were oozing and they were wet and smelled bad. Sometimes there was blood on the sheets, too. Tuggle's burn wounds turned yellow, pus came out of them, and they started to stink. Collins, who refused to care for Tuggle because he did not feel qualified to care for burn injuries, reported that the odor in Tuggle's room was so bad after three or four days that it made him want to vomit. Other staff members mentioned the odor, too. Tuggle had to be turned each hour to be on his right side or left side. Collins said, " It was bad," and he was " just in awe of the whole thing." Baker, who took care of Tuggle most days between his accident and his death, testified that Tuggle slowed down in movement and would not eat as much. The staff wiped Tuggle very carefully during sponge baths because they could not put any pressure on him.
Baker made routine notes during his shifts that Tuggle " laughed and smiled" as staff put ointment on him; he also wrote, " no problems to report," and " Tuggle ate all of his dinner." Other notes indicated that Tuggle " relaxed" and watched television. Collins testified that all the notes said " nothing to report" because management would not allow reports otherwise. He added that Tarpley and Kenny A. would tell the staff how to write the notes and the staff did not report anything because the management already knew Tuggle's condition. Defense counsel also pointed out that neither Baker nor Collins called 911 and they did not call Wagoner to say that Tuggle needed more care. Baker understood that [63 Va.App. 239] the supervisor should be consulted instead of 911 and that the decision about Tuggle's care had already been made--it was understood that " he's not going anywhere."
Adrian Jones took care of Tuggle only one day after Tuggle's burns. When Jones saw Tuggle on February 13 he was shocked to see Tuggle's injuries. Jones observed that Tuggle looked like he was in a lot of pain, and was " burnt real bad, purple, red all over, down from his ankles up to his head. His hair was melted to his head." Tuggle had blisters on his side, his back, and his buttocks, and pus was running off his body. Tuggle's room smelled like death. Jones added, " I was sitting beside him and I was the only one to see that tears shed from his face." Tuggle was wrapped in sheets without clothes underneath. Tuggle's sheets had to be changed every 30 minutes, and " [w]hen we'd pull them off, the skin would be pulling with it so you'd be pulling skin with the sheets every time we'd change them." Jones wrote " no incidents to report" for his shift because Tuggle's injury did not occur on his shift.
In the days following Tuggle's accident, Wagoner did not visit Minor Street and apparently only relied on the supervisors to report on Tuggle. Wagoner had no burn training, and he knew that the supervisors did not have any burn training. The staff members were only trained in first aid and CPR. Wagoner later told a case investigator that the decision to take care of Tuggle at Minor Street " was a group decision" and that he trusted Tarpley's advice based on her call to the hospital and her conversation with a pharmacist after she asked how to treat a sunburn. He indicated that he did not think the burn was serious enough to report to licensing; he referred to Tuggle's injuries as a sunburn.
On February 15, Martinsville Police Officer Michael Clark responded to a call from the home of Curtis Williams. Curtis Williams is the father of Artis Williams, who helped care for Tuggle the next shift after Tuggle sustained his injuries, and again on February 10. Officer Clark spoke with Curtis and then spoke with Artis about a gentleman at Minor Street " who had suffered some burns." Officer Clark then visited Minor [63 Va.App. 240] Street on a " wellness check" and was escorted to Tuggle's room where Tuggle was asleep in his bed. Tuggle's sheets were pulled back and he was not wearing any clothes; he was lying on his left side. Officer Clark observed that Tuggle had burns on his " butt area, upper thigh area. There was
a burn [ ] where his right shoulder blade would have been. There was one on his right arm. I also observed one I believe on . . . the right area of his neck." Tarpley told Officer Clark that she had been " in constant contact with the emergency room" and explained how they were treating Tuggle's wounds. Officer Clark did not take any action or call emergency medical services because he believed that Tuggle was not in any imminent danger given that he appeared to be resting comfortably and was being cared for by others.
On February 16, Wagoner called Deborah Tankersley (" Tankersley" ), of the Department of Behavioral Health and Developmental Services, Office of Licensing, to tell her that the police had come to Minor Street the day before to do a wellness check on Tuggle. The Office of Licensing licenses the Claye Corporation to provide services, and it monitors the services. As a provider of services, the Claye Corporation is required to report an injury that requires evaluation by a medical professional outside of the provider's location within 24 hours. Tankersley testified that Wagoner was the individual required to report injuries for the Claye Corporation, as he was listed on the license as the " person responsible for the overall management and [oversight] of the programs or the facilities that are going to be licensed." Tankersley had no prior notice of Tuggle's injury and never received an " injury report" from the Claye Corporation on the scalding incident. Wagoner told her the events of Tuggle's injury over the phone and said that " [Tuggle] got a little red where the water touched him like a sunburn." Tankersley told Wagoner that he needed to take the client to the doctor. She so advised him because Tuggle had not seen a doctor, and she took note of the fact that someone felt Tuggle's injuries were bad enough to call the police to check on him. While Wagoner told her [63 Va.App. 241] that the E.R. said not to bring Tuggle in, she said " he needs to be seen to let somebody else make that determination."
During the week following Tuggle's burns, Tuggle's cousin, Dwayne Tuggle, called Minor Street telling of his plans to pick up Tuggle to take him to his elderly mother's house for a visit. He was told it was not a good time to get Tuggle because he had some minor burns, " like a light sunburn," and diarrhea. Dwayne and Tuggle's mother decided they would not pick up Tuggle as planned. Dwayne was not alarmed when they said Tuggle had " a light sunburn." The next time the family heard from Minor Street about Tuggle was at the time of Tuggle's death.
Around 1:30 to 2:00 a.m. on February 18, Tuggle was alive at the bed check and was assisted to the restroom. He was found unresponsive around 6:00 a.m. that morning. The staff notified the house manager and then called 911. Wagoner notified the Office of Licensing of Tuggle's death on February 18 via facsimile.
Dr. Gayle Suzuki, the medical examiner for the case and a pathologist, performed the autopsy and determined that about thirty percent of Tuggle's body was burned and his burns were consistent with second and third degree burns. She testified that the cause of Tuggle's death was sepsis (bacteria growing in the blood) and pneumonia resulting from the thermal injuries from immersion in scalding water. She described that the sepsis bacteria was consistent with the type of bacteria found on the skin. Dr. Suzuki testified that Tuggle's pneumonia was severe. He had yellow-green pus on his lungs, and with this severe lung condition Tuggle could not have been as well off as the notes and the staff reported--it would have been nearly impossible for him to breathe.
Dr. Kevin Whaley, Assistant Chief Medical Examiner, was qualified as an expert in the field of thermal injury, including classification, diagnosis, and treatment of burns. He reviewed Dr. Suzuki's autopsy report. He testified that second and third degree burns to thirty percent of the total body surface requires automatic admission to a burn unit. A second degree [63 Va.App. 242] burn causes the skin to wipe off and it is very painful. A third degree burn " cooks" the skin and it gets hard; it is not painful because the nerve endings are dead. The treatment for someone in Tuggle's condition would include fluid resuscitation first, then fighting the risk of infection because bacteria thrive in and under dead skin. A very strong pain medication,
Fentanyl, is used to treat pain for burn patients in Tuggle's condition. Neosporin and first aid cream are definitely not recommended treatments for second and third degree burns.
After viewing photographs of Tuggle, Dr. Whaley's opinion was that Tuggle had third degree burns to his knee and buttocks, and second degree burns to his neck and cheeks, right arm, and back. He also said that Tuggle's third degree burns to his knees would have looked yellowish-white as soon as it dried out, and it would have dried out within twelve hours after the burn, assuming no more water was applied to it. Dr. Whaley testified that Tuggle's risk of death without treatment was 100%. Initially he testified that Tuggle's risk of death with treatment was eighty-seven percent, based on the thirty percent burned body surface. On cross-examination defense counsel suggested a recalculation of Tuggle's burned surface area. Dr. Whaley said, " You could [ ] say 18[%]." Dr. Whaley testified that eighteen percent of the body surface burned is still going to mean 100% morality without treatment, and with treatment, Tuggle would have had a seventy-five percent chance of death and a twenty-five percent chance of survival.
Dr. Thomas Berry was received by the trial court as an expert in the diagnosis, classification, and treatment of burns, and testified for the defense. Based on his review of the autopsy, he testified that only twenty percent of Tuggle's body was burned. He also testified that Tuggle did not present symptoms of sepsis. He opined that the pneumonia onset rapidly and may or may not have been related to the burns. ...