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Brown v. Commonwealth

Court of Appeals of Virginia

August 1, 2017



          Craig S. Cooley for appellant.

          Christopher P. Schandevel, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Present: Chief Judge Huff, Judges Petty and Beales Argued at Richmond, Virginia.



         In a bench trial, the trial court convicted George Ellis Brown, Jr. ("appellant") of one count of common law involuntary manslaughter related to the death of Philip Whitaker. The court sentenced appellant to ten years in prison, with eight years suspended. In his first assignment of error, appellant argues that the trial court erred "by applying a less demanding legal definition of 'criminal negligence' than required by Virginia case law." In his second assignment of error, appellant contends that the "evidence was insufficient as a matter of law to establish the element of criminal negligence in the offense of involuntary manslaughter." For the following reasons, we affirm the trial court.

         I. Background

         We consider the evidence on appeal "in the light most favorable to the Commonwealth, as we must since it was the prevailing party" in the trial court. Beasley v. Commonwealth, 60 Va.App. 381, 391, 728 S.E.2d 499, 504 (2012) (quoting Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004)). So viewed, the evidence established that appellant worked as a security guard at the VCU Health System Ambulatory Care Center Pharmacy ("the pharmacy"). Whitaker, the victim in this matter, was a 64-year-old man suffering from heart disease. At the time of his death, Whitaker was taking blood thinner medication. On August 7, 2015, Whitaker arrived at the pharmacy to pick up a prescription that he had been told would be available for pickup at 2:00 p.m. When Whitaker arrived, his medication was not yet ready. Whitaker became agitated and asked to speak with a supervisor.

         Ronald LeFever, a pharmacist, responded to Whitaker's complaint. LeFever had known Whitaker for "a number of years" and described him as "one of my friendlier patients." Whitaker told LeFever that he was waiting for a prescription and that he was in a hurry because his ride was waiting for him outside. LeFever agreed to investigate why Whitaker's medication was not yet ready so that it could be taken care of quickly. LeFever informed Whitaker that he could wait at the front window or he could have a seat and return when his name was called. Once LeFever verified the order, he called Whitaker's name on the pharmacy's intercom, directing him to join the back of the pickup line.

         Appellant was working as a security guard at the pharmacy on the afternoon of August 7, 2015. When Whitaker's name was called, appellant was standing between the front of the pickup line and the front window. Appellant's job responsibilities included keeping the peace in the line area of the pharmacy by making sure that people did not cut in line. Appellant's job training and instructions required him to resolve disturbances verbally and precluded him from placing his hands on anyone inside the pharmacy.

         Appellant had observed Whitaker's interactions with the cashier and LeFever. When Whitaker's name was called on the intercom, Whitaker began to walk back to the cashier window to pick up his medication. On his way to the front window, Whitaker walked in front of appellant. Witnesses testified that appellant ordered Whitaker to go to the back of the pickup line. One witness testified that appellant "clutched his fist" when he issued the directive. Whitaker informed appellant that he would not wait in line because he had already spent a long time waiting for his medication.

         Whitaker then took a couple of steps away from appellant toward the front window to pick up his medication. Appellant followed Whitaker from a position behind and to the right of Whitaker. Appellant then suddenly reached out and grabbed Whitaker from behind with both arms. Appellant used his right hand to grab Whitaker's chest right below the neck - pinning Whitaker's right arm against his body. At the same time, appellant used his left arm to grab and hold on to Whitaker's left arm. One witness described appellant's hold as a "bear hug." Another witness stated that it appeared that appellant's teeth were clenched at the time. Appellant then violently threw Whitaker backwards and down to the floor. Vicki Fields, a witness in the prescription pickup line, testified, "At that point, I saw Mr. Whitaker coming up into the air. His head kind of hit first. I was stunned. I looked over at Mr. Brown like what have you done." Ms. Fields added, "He flew in front of me. I kind of backed up, but he fell in front of me. He was directly at my feet." The trial court found, "[Appellant's] hurling of the decedent was, in fact, so forceful that [appellant's] arms were cast out up and away from his body after he let go of the decedent from the very momentum and force by which he threw him or hurled him."

         Because appellant had pinned both of Whitaker's arms, Whitaker was unable to break his fall when he was hurled to the ground. When Whitaker hit the ground, his head struck either the hard linoleum floor or the circular metal base of one of the posts that formed the pickup line. Witnesses testified that Whitaker's impact with the floor or the metal base caused a very loud clap or thump sound. Onlookers collectively gasped and moved away from the area where appellant had thrown Whitaker. Appellant then walked over to the area near Whitaker's head. After kneeling down to look at Whitaker, appellant looked around and threw his hands up in the air. After checking Whitaker's pulse, appellant told one of the pharmacists to call 911.

         First responders transported Whitaker to the emergency room and then to an operating room to be treated for a severe head injury caused by blunt force trauma. Dr. William Broaddus, a neurosurgeon at Virginia Commonwealth University's Medical College of Virginia, treated Whitaker's injuries. He testified that Whitaker's most serious injury was a large acute subdural hemorrhage, which ...

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