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Virger v. State

Supreme Court of Georgia

February 18, 2019



         Darius Virger and Alexis Cave were tried together for crimes related to the beating and death of Diarra Chappell, a 13-month-old child who lived with them. Virger was convicted of malice murder, Cave was convicted of felony murder, and both were convicted of other offenses. On appeal, both Virger and Cave challenge the legal sufficiency of the evidence supporting some of their convictions and contend that the trial court erred by not severing their cases for trial. Virger also contends that the trial court erred by failing to strike a juror for cause, by physically separating the co-defendants during their trial, and by overruling several of his evidentiary objections. Cave contends that the trial court erred by allowing the admission of impermissible character evidence, by excluding expert testimony about her mental condition, and by denying her motion for a continuance. Our review of the record, however, reveals no reversible error, so we affirm the convictions in both cases.[1]

         1. Viewed in the light most favorable to the verdicts, the evidence presented at trial showed the following. Virger and Cave began their tumultuous marriage in May 2011, when Cave was 16 years old and Virger was almost 26. Cave became pregnant shortly thereafter, but the couple separated in October. Virger and Cave's daughter A.V. was born in April 2012. A few months later, Virger began dating Tina Chappell, who had recently given birth to Diarra. Virger, Chappell, and Diarra began living together in a townhouse in Douglas County. In October 2012, Chappell was arrested, and Virger began taking care of Diarra by himself while Chappell was in jail.

         In November 2012, Virger and Cave began seeing each other again, but their renewed relationship was fraught with jealousy, arguments, and violence; Cave claimed that Virger was physically abusive toward her on a daily basis. Several text messages from Cave referenced Virger's physical abuse toward her, asking him to "stop putting [his] hands on [her] and saying that she was "not [his] personal punching bag." Virger sent a text threatening "to beat [Cave's] ass." Many texts from Cave's phone also indicated that she was resentful of Virger's relationship with Chappell and Diarra; several texts Cave sent in November and December 2012 accused Virger of not caring about her because he had a "new family with a new daughter" whom he loved "more than [his] real family." Cave also sent her father a text in November saying, "idgaf about [Diarra]."[2]

         In January 2013, Cave and A.V. moved into the townhouse with Virger and Diarra. Virger continued acting as the primary caretaker for Diarra, and Cave spent more time caring for A.V. On January 8, Cave sent a text to Virger saying that A.V. "gets less because you have to take care of Diar[r]a" and "I just can't stand the fact that she's taking away from our daughter." In early February, Cave sent Virger a text telling him, "You obviously think Diarra is really your daughter and you clearly care about her more than everyone else in the house." In addition, during January and February, Virger and Cave sent each other hundreds of text messages in which they argued, cursed, and accused each other of infidelity, although many of those messages were immediately followed by texts professing their love for each other.

         On several occasions after Virger began taking care of Diarra, witnesses noticed bruises on her, including bruises on her upper arms, forehead, and cheeks and around one of her eyes. During a visit with Virger and Diarra at the jail on December 22, 2012, Chappell observed that Diarra had a black eye. When Chappell asked Virger about it, he replied that Diarra had fallen while trying to pull herself up. In early February 2013, Virger's aunt noticed that Diarra had a black eye, and Virger claimed that Diarra was learning to walk and had fallen down.

         On February 14, Virger and Cave's texts to each other indicate that they argued throughout the day, that Cave left the townhouse sometime around 9:00 p.m. because she was angry with Virger, and that she returned a little before 10:00 p.m. Surveillance video from a convenience store near the townhouse shows that Virger bought two Honey Buns around 10:30 p.m. At 2:00 a.m. on February 15, Cave sent Virger a text saying, "F*ck you. I'm so tired of you. All you wanna do is hurt people and blame it on me. You are evil and you don't know how to love anybody." Around 6:45 a.m., a woman staying at another townhouse in the complex saw a man and a woman hurrying from Virger and Cave's front door toward their car in the parking lot and then driving off in a rush; they did not have any children with them.

         More than two-and-a-half hours later, at 9:24 a.m., Virger and Cave brought Diarra to a hospital. She had significant bruising across her head and ear, and she was unresponsive and in cardiac arrest. Virger told medical staff that Diarra had fallen from a highchair the day before; that he had given her a bottle that morning and then left the room to make a phone call; and that when he returned to check on her, her left arm was shaking and she was not breathing. While they were attempting to resuscitate Diarra, a doctor and nurse removed her diaper to take her temperature; they noticed that there was tearing to the outside of her rectum, which "was extremely dilated and open." Diarra was declared dead at 9:54 a.m.

         Later that day, Virger and Cave were interviewed separately by sheriff's officers; their video-recorded interviews were played for the jury at trial. Both appellants acknowledged that no one else had taken care of Diarra during the preceding couple of days. They both claimed that Diarra had fallen from a highchair the previous afternoon but had seemed fine; that she had gone to sleep around 1:30 a.m.; that Virger gave her a bottle in her crib around 8:30 a.m.; that when he checked on her about 30 minutes later, she was not breathing; and that they then got dressed, put both Diarra and A.V. in their car seats, and drove to the hospital. Both Virger and Cave denied any knowledge of Diarra's rectal injuries. When asked why Diarra was wearing a fresh diaper when she arrived at the hospital, Cave said that just before they left for the hospital, she had changed Diarra's diaper because it had been fastened together with tape and she did not want hospital staff to think they were "unfit parents." When Cave was left alone in the interview room, she said to herself, "I'm going to hell" and "I'm sorry, baby." During a search of the townhouse later that day, officers found a diaper on the floor of Diarra's room that tested positive for the presence of blood.

         A couple of days later, Cave and Chappell, who had been released from jail, were involved in a fight, during which Cave threatened to send Chappell "to be with [her] daughter." In mid-March, Cave moved out of the townhouse, and shortly after that, Chappell moved back in. After Cave discovered that Virger was seeing Chappell again, Cave sent a text threatening Virger that she was "telling" and that he was "about to be locked up."

         About ten weeks after Diarra died, on June 3, 2013, Virger gave a second statement to a detective, complaining that Cave had sent him threatening voicemails; the recorded interview and the voicemails were also played at trial. In one of the voicemails, Cave said, "you want to threaten me . . . talking about oh, well if you tell . . . this gonna happen . . . well guess what motherf*cker, I ain't covering for you no more. Me and my baby are not about to pay the price for your actions. So guess what? You're going down because I'm talking to my lawyer." Virger told the detective that he suspected Cave may have had something to do with Diarra's death, although he claimed that he had never witnessed Cave being violent toward Diarra.

         About a week later, Cave also provided a second statement to the detective, which was also recorded and played for the jury. Cave told the following story. In the early morning hours on the day Diarra died, Diarra was in the living room with Virger when she began to cry; Virger put his hand over Diarra's mouth and nose to stop her from crying, and when Cave tried to push his hand away, he grabbed Cave by the arm and ordered her to sit down; when Virger removed his hand from Diarra's face, she was struggling to breathe and barely moving; Cave said that they should take her to the hospital, but Virger refused and slammed Cave's head against a wall. Cave claimed that she believed Virger would beat her if she tried to intervene on Diarra's behalf. When the detective asked about Diarra's head injuries, Cave told him that Virger had taken Diarra by the ankle and swung her head and body repeatedly into the back of the couch to try to wake her up. Virger then put Diarra into her crib, and he and Cave went to sleep. Around 8:30 a.m., when Virger discovered that Diarra was not breathing, he agreed to take her to the hospital. On their way to the sheriff's office after Diarra died, Virger told Cave to tell the story about Diarra falling from a highchair.

         On August 26, 2013, Virger was interviewed by a detective for a third time; the recording was also played for the jury. Virger again denied that he had been involved in Diarra's death. He was arrested at the end of the interview. Cave was not arrested until almost two years later, after she was indicted along with Virger in June 2015.

         At the joint trial of Virger and Cave in late 2015, the State presented evidence that Diarra died from "abusive head trauma," which was caused by blunt impact injuries to her head. Her autopsy showed multiple bruises on her back, knee, forearm, back of the head, forehead, ears, cheeks, and chin; there was also a "patterned" bruise with linear, spaced marks on the right side of her face. Diarra had abrasions on her chest and abdomen and a red mark on her left ankle. The trauma to her head caused bleeding in her scalp tissues, spine, and cervical cord, under her brain, and on her retinas and around her optic nerves. Two of the State's medical experts testified that these injuries were caused by "vigorous acceleration" or "whiplash," that they did not correlate with a single fall from a highchair, and that Diarra would not have been able to move, much less grab a bottle, after her injuries were inflicted. The medical examiner testified that Diarra's injuries occurred between eight and 24 hours before her death, and a child abuse expert testified that, "had medical intervention been provided, it would have given [Diarra] the best chance of surviving" her injuries.

         Diarra's autopsy also showed that she had a "fresh" hemorrhage in her dilated rectum and tearing on its surface, which was consistent with forceful penetration. When asked by Cave's counsel if Diarra's rectal injuries could have been caused by constipation or a hard stool, the medical examiner said "that would be a remote possibility." The State's child abuse expert also testified that Diarra's rectal injuries could not have been caused by the normal insertion of a rectal thermometer, and Virger and Cave both had said that Diarra was not constipated and that they did not use rectal thermometers on Diarra.

         Virger did not testify at the joint trial; Cave elected to testify and recounted a story similar to the one she told during her second interview. She claimed for the first time, however, that after Virger held his hand over Diarra's mouth and nose, she sneaked upstairs and desperately searched for her phone so that she could call 911. According to Cave, her search was interrupted when she heard a thumping sound and went downstairs, where she saw Virger slamming Diarra's head and body against the couch.

         Sufficiency of the Evidence

         2. Virger contends that the trial court erred by denying his motion for a directed verdict of acquittal on the aggravated sexual battery count, although he does not otherwise challenge the sufficiency of the evidence supporting his convictions. In any event, it is this Court's practice in murder cases to review the record and determine whether the evidence was legally sufficient to support each of the appellant's convictions, and we apply the same test to a challenge to a denial of a motion for a directed verdict of acquittal: whether the evidence presented at trial, when viewed in the light most favorable to the verdicts, was sufficient to authorize a rational jury to find the appellant guilty beyond a reasonable doubt of the crimes of which he was convicted. See Thompson v. State, 304 Ga. 146, 149 (816 S.E.2d 646) (2018). See also Jackson v. Virginia, 443 U.S. 307, 319 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).[3]

         As summarized above, the evidence showed that multiple witnesses observed bruises on Diarra after Virger began acting as her primary caretaker; Virger and Cave were the only adults in the townhouse when Diarra was fatally injured; and Cave testified at trial that Virger inflicted Diarra's injuries, including the head trauma that ultimately killed the child. Virger told medical staff and investigators that Diarra had fallen from a highchair the previous afternoon and seemed fine afterwards, but two experts testified that the extremity of the child's injuries did not correlate with that kind of accident, that her death was instead the result of multiple blunt impact injuries to her head caused by vigorous acceleration, and that she would have been unable to move after being injured. This evidence was sufficient to authorize a rational jury to find Virger guilty beyond a reasonable doubt of the malice murder and freestanding first-degree child cruelty charges. See Jackson, 443 U.S. at 319. See also Vega v. State, 285 Ga. 32, 33 (673 S.E.2d 223) (2009) ("'It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.'" (citation omitted)).

         As for his aggravated sexual battery conviction, Virger contends that the trial court erred by denying his motion for a directed verdict of acquittal on that count because sexual assault kits did not reveal the presence of his DNA or semen in Diarra; because the State did not present any evidence as to what object caused Diarra's rectal injuries; and because alternative theories - like a hard stool or an incorrectly inserted thermometer - could have explained her rectal trauma.[4] A person commits the offense of aggravated sexual battery when he or she "intentionally penetrates with a foreign object the sexual organ or anus of another person without the consent of that person." OCGA § 16-6-22.2 (b).

         The State presented evidence that Diarra suffered an aggravated sexual battery near the time Virger inflicted her other injuries. The child came to the hospital with an "extremely dilated" rectum that had tearing on its outside, and her autopsy showed hemorrhaging in her rectum, which the medical examiner testified was recent and consistent with forceful penetration. The jury also heard evidence undermining the alternative theories Virger proposed, as experts testified that it was highly unlikely that the injuries could have been caused by constipation, a hard stool, or normal insertion of a thermometer, and both Virger and Cave said that Diarra did not have constipation and that they did not use rectal thermometers on her. See Kemp v. State, 303 Ga. 385, 389-390 (810 S.E.2d 515) (2018) (explaining that "'[q]uestions as to the reasonableness of hypotheses other than the guilt of the defendant are generally for the jury to decide, and this Court will not disturb a finding of guilt unless the evidence is insupportable as a matter of law'" (citation omitted)).

         Moreover, the State was not required to prove what specific foreign object caused the child's rectal trauma, only to present evidence from which the jury could reasonably infer that such an object was used. Cf. Lattimer v. State, 231 Ga.App. 594, 594 (499 S.E.2d 671) (1998) (explaining that to prove aggravated assault with a deadly weapon, "'[i]t is clear that even in the absence of the production or verbal description of the weapon used, evidence as to the nature, kind and location of the wounds inflicted by the assailant is sufficient to allow the jury to infer the character of the weapon'" (citation omitted)); Terry v. State, 224 Ga.App. 157, 159 (480 S.E.2d 193) (1996) (same principle for weapon used in armed robbery). Finally, the absence of Virger's DNA or semen was not exculpatory, because if Virger had sexually assaulted Diarra, he would have committed a different crime. The crime of aggravated sexual battery does not require proof of a sexual act involving the defendant's sex organ; to the contrary, OCGA § 16-6-22.2 defines the penetration at issue as being with a "foreign object" and specifically excludes sex organs from the definition of "foreign object." See OCGA § 16-6-22.2 (a) (defining "foreign object" as "any article or instrument other than the sexual organ of a person" (emphasis supplied)).

         Viewed as a whole, the evidence was legally sufficient for the jury to reject Virger's alternative hypotheses as to how Diarra's rectum was injured and to find him guilty beyond a reasonable doubt of aggravated sexual battery. See Jackson, 443 U.S. at 319. Accordingly, the trial court did not err in denying Virger's motion for a directed verdict of acquittal on this count. See Thompson, 304 Ga. at 149.

         3. Cave contends that the evidence presented at the joint trial was insufficient to support her conviction for felony murder based on second-degree child cruelty and her conviction for aggravated sexual battery. We disagree.

         A person commits the crime of second-degree child cruelty if she "with criminal negligence causes a child under the age of 18 cruel or excessive physical or mental pain." OCGA § 16-5-70 (c). A person commits felony murder if, in the commission of the predicate felony, she proximately causes the victim's death. See OCGA § 16-5-1 (c); State v. Jackson, 287 Ga. 646, 654 (697 S.E.2d 757) (2010) ("Proximate causation imposes liability for the reasonably foreseeable results of criminal . . . conduct if there is no sufficient, independent, and unforeseen intervening cause."). And a person may be found guilty of a crime if she "[d]irectly commits the crime . . . or [i]ntentionally aids or abets in the commission of the crime." OCGA § 16-2-20 (b) (1), (3). "'Whether a person is a party to a crime may be inferred from that person's presence, companionship, and conduct before, during, and after the crime, '" Cisneros v. State, 299 Ga. 841, 846-847 (792 S.E.2d 326) (2016) (citation omitted), and "'where the crimes involve relatives with close relationships, slight circumstances can support the inference that the parties colluded, '" see Solomon v. State, Case No. S18A1195, 2019 WL 272686, at *2 (decided Jan. 22, 2019) (brackets and citation omitted).

         When viewed in the light most favorable to the jury's verdicts, the evidence presented at trial showed that Cave and Virger were married and living together, that Diarra was in their sole care, and that Cave resented Diarra and begrudged the attention that Virger showed Diarra, which caused extreme conflict in the couple's already tumultuous relationship. Diarra had visible signs of abuse in the months before she was killed, and Cave testified that she watched Virger nearly suffocate Diarra and then slam the child's already weak body repeatedly into the back of a couch, that she knew Diarra was seriously injured and needed medical care, and that Virger put Diarra in her crib instead of taking her to a hospital; rather than seeking medical attention for Diarra, Cave went to sleep with Virger; and several hours later, when Virger and Cave were unable to revive Diarra, they changed the child's diaper, got dressed, and drove her to a hospital. In addition, at 2:00 a.m., which was likely shortly after the child was beaten, Cave sent a text to Virger cursing at him, accusing him of hurting people, and calling him "evil," and a neighbor saw a man and woman, presumably Virger and Cave, hurry out of their townhouse and drive away without the child around 6:45 a.m., more than two hours before they took Diarra to the hospital.

         After Diarra died, Cave told investigators Virger's invented story of Diarra's fall from a highchair - although she then was caught on video acknowledging some culpability for Diarra's death by telling herself that she was going to hell and was sorry about what happened to the baby. She then made statements to Virger indicating that she was covering for him; only months later, after Virger had renewed his relationship with Chappell and started pointing the investigators to Cave, did Cave acknowledge to investigators that Virger had beaten Diarra. Finally, although the emergency room physician who treated Diarra testified that there was "little chance of recovery" from the type of brain injury she suffered, the State's child abuse expert testified that specific cooling, medicinal, and surgical procedures would have provided Diarra with "the best chance of surviv[al]."

         Viewed as a whole, this evidence was sufficient to authorize the jury to find Cave guilty beyond a reasonable doubt at least as a party to felony murder based on second-degree child cruelty, and in particular to find that her and Virger's allowing Diarra to suffer rather than promptly seeking medical aid was a proximate cause of the child's death. See OCGA § 16-2-20; Jackson, 443 U.S. at 319; Grayer v. State, 282 Ga. 224, 226 (647 S.E.2d 264) (2007) (concluding that expert testimony that respiratory care would have been critical for a prematurely born infant victim, who "could have been viable and would thus have benefitted from supportive medical care," was sufficient to support the appellant's conviction for felony murder based on child cruelty).

         Turning to Cave's conviction for aggravated sexual battery, as discussed above in relation to Virger's similar conviction, the State presented sufficient evidence that this crime occurred while Diarra was in the care of Virger and Cave, so the only question is whether Cave committed the crime herself or as a party with Virger, or was merely present when Virger committed the crime. Recognizing again that "'where the crimes involve relatives with close relationships, slight circumstances can support the inference that the parties colluded, '" Solomon, 2019 WL 272686, at *2 (brackets and citation omitted), the evidence just recounted - and in particular Cave's admissions that she knew Virger seriously injured Diarra and that they changed Diarra's diaper before taking her to the hospital - was sufficient for the ...

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