RICHARD C. WAGONER, JR.
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA.
David O. Williamson (James W. Haskins; James R. McGarry; Young, Haskins, Mann, Gregory, McGarry & Wall; Brumberg, Mackey and Wall, on briefs), for appellant.
Alice T. Armstrong, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
OPINION BY JUSTICE CLEO
E. POWELL. JUSTICE McCLANAHAN, concurring.
PRESENT: Lemons, C.J., Goodwyn, Millette, Mims, McClanahan and Powell, JJ., and Russell, S.J.
CLEO E. POWELL, JUSTICE
Richard C. Wagoner, Jr. (" Wagoner" ) appeals the decision of the Court of Appeals of Virginia affirming his conviction of felony abuse or neglect of an incapacitated adult in violation of Code § 18.2-369(B). Wagoner contends that the Court of Appeals erred in applying the wrong decisional standard in its review of the trial court's ruling on a motion to set aside the verdict, expanding the definition of proximate cause, and finding that the evidence was sufficient to support his conviction.
Joseph Tuggle (" Tuggle" ), a 57 year old man with Parkinson's Disease and dementia, lived in a residential group home for men with intellectual disabilities. The group home was owned by the Claye Corporation, which in turn was owned by Wagoner. Wagoner also served as president of the Claye Corporation.
At approximately 7:00 p.m. on the evening of February 8, 2011, Jerome Baker (" Baker" ), Tuggle's caregiver, discovered that Tuggle had soiled himself. Baker assisted Tuggle to the restroom and sat him on the toilet. Baker then left to retrieve cleaning supplies and began helping another staff member clean up. After cleaning for five or six minutes, Baker went to check on Tuggle. Baker found Tuggle crying for help while lying on his back in the bathtub with hot water running from the shower. Baker turned off the water and got Tuggle out of the bathtub. Baker and another staff member dried Tuggle off and noticed that his skin was very red. Baker and the other staff member then took Tuggle into the living room, where they again noticed his skin was very red and had begun to peel.
At this point, the staff supervisor, Kenny A. Brown (" Brown" ), was contacted. Brown arrived at the group home around 8:30 p.m. After inspecting Tuggle, he determined that Tuggle did not need medical attention. Brown also contacted Tameki Tarpley (" Tarpley" ), his co-supervisor, and informed her about the situation. Without seeing Tuggle, Tarpley called the emergency room and inquired about treating a burn that " appeared to be like a sunburn." Tarpley was told to apply cold compresses and that she should go to a pharmacy and ask the pharmacist for further treatment advice. Brown stayed with Tuggle until 11:00 p.m. and assisted in the treatment of Tuggle's burns by placing cold compresses over the affected areas of skin.
Brown returned to the group home at 6:30 a.m. on the following morning to examine Tuggle's injuries. Brown found that the burns appeared " redder." Brown then contacted Tarpley and informed her of the nature of Tuggle's developing injuries and informed her that Tuggle needed to go the emergency room to be checked out. Tarpley contacted another staff member to bring a company van to the group home to transport Tuggle to the hospital.
Cynthia Epley (" Epley" ), a director of Claye Corporation, called Tarpley for her
regular " check-in" and was informed of Tuggle's accident. Tarpley told Epley that a company van was en route to take Tuggle to the hospital. Epley then called Wagoner to inform him about the incident and that Tuggle was being taken to the hospital.
At around 7:15 a.m., Tuggle was placed in the company van to be taken to the hospital. While Tuggle was en route to the hospital, Wagoner informed Epley that he wanted to see Tuggle before he was taken to the hospital. Epley relayed the request to Tarpley who, in turn, relayed the request to the staff member driving the company van. About three minutes later, Tuggle was returned to the group home.
After the van returned, Tarpley went to a pharmacy. Tarpley asked the pharmacist for instructions in treating a sunburn. According to Tarpley, the pharmacist instructed her to use drainage strips and cold compresses and to apply Neosporin, an antibiotic cream.
Epley arrived at the group home at around the same time that Tarpley returned. Shortly thereafter, Wagoner arrived. At the time, Tuggle was sitting in a wheel chair in the living room. After the staff explained what had happened, Wagoner asked Tuggle how he was doing. Baker then removed a sheet that was covering Tuggle and lifted Tuggle's t-shirt so Wagoner could see the burns. According to Baker, Tuggle's skin ...