Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Levenson v. Commonwealth

Court of Appeals of Virginia

December 12, 2017

BARRY JUSTIN LEVENSON
v.
COMMONWEALTH OF VIRGINIA

         FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Brett A. Kassabian, Judge

          Alberto Salvado (Salvado, Salvado & Salvado, PC, on brief), for appellant.

          Donald E. Jeffrey, III, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Present: Judges Petty, Beales and Decker Argued at Alexandria, Virginia

          OPINION

          WILLIAM G. PETTY JUDGE

         Barry Justin Levenson challenges his conviction of aggravated involuntary manslaughter in violation of Code § 18.2-36.1.[1] He contends that the evidence was insufficient to convict him because the victim's medical treatment decision was a superseding act that caused his death. We disagree and affirm.

         Background

         In the early morning hours of May 9, 2015, Levenson crashed into the rear of a dump truck that was stopped in a construction zone. Levenson was intoxicated and was exceeding the speed limit. The impact from the crash caused extensive damage to the vehicles and injured both Levenson and his passenger, Devon Martin. Martin was transported to the hospital where he was diagnosed with an injury to the spleen and a blood clot forming on the right iliac artery. The blood flow to Martin's leg was restricted and, according to expert medical testimony, Martin risked irreversible damage and the loss of his leg within five hours. To preserve the leg, Martin's doctor recommended that the blood thinner heparin be administered and that a stent[2] be inserted into the artery. The doctor was aware that the use of heparin could cause life-threatening bleeding from Martin's injured spleen. However, a team of three doctors in consultation formed a plan to deal with the spleen bleed if the situation became life threatening. The use of heparin was recommended because insertion of a stent without it would be substantially riskier. Amputation of the leg was mentioned only as a last option. Martin was asked for consent to proceed with the treatment. At the time he gave consent, he was completely lucid, coherent, and logical. After the heparin was administered, Martin began bleeding in the brain from an injury undetected by an earlier CAT scan. He died as a result of that bleeding. The only issue before us on appeal is whether the

trial court erred in refusing to strike the evidence on the basis that the evidence was insufficient to prove manslaughter because Martin opted for a discretionary course of treatment, including the use of heparin, there being several alternate [sic] options for care of his injuries which would have insulated him from death, his passing being the product of an intervening and superseding act of embarking on an injurious course of action which caused his demise.

         Thus, we must resolve whether the crash caused by Levenson was a proximate cause of Martin's death or, as Levenson argues, Martin's consent to the administration of heparin was a superseding cause.

         Standard of Review

         Generally, negligence and proximate cause are factual findings and thus "are issues for a jury's resolution. They only become questions of law to be determined by a court, when reasonable minds could not differ." Hawkins v. Commonwealth, 64 Va.App. 650, 655, 770 S.E.2d 787, 789 (2015) (quoting Forbes v. Commonwealth, 27 Va.App. 304, 309, 498 S.E.2d 457, 459 (1998)). Further, "the factual findings of [a jury] are not to be disturbed unless they are plainly wrong or are without evidence to support them." Wilkins v. Commonwealth, 292 Va. 2, 7, 786 S.E.2d 156, 159 (2016).

         Analysis

         "Established principles of proximate causation are applicable in both civil and criminal cases." Brown v. Commonwealth, 278 Va. 523, 529, 685 S.E.2d 43, 46 (2009); Chapman v.Commonwealth, 68 Va.App. 131, 140, 804 S.E.2d 326, 331 (2017). A proximate cause is "an act or omission that, in natural and continuous sequence unbroken by a superseding cause, produces a particular event and without which that event would not have occurred." Brown, 278 Va. at 529, 685 S.E.2d at 46 (quoting Williams v. Joynes, 278 Va. 57, 62, 677 S.E.2d 261, 264 (2009)). "Because an event can have more than one proximate cause, criminal liability can attach to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.