Duncan v. Commonwealth4/8/2003
Argued at Richmond, Virginia
MEMORANDUM OPINION
UPON A REHEARING EN BANC
On August 27, 2002, a unanimous panel of this Court reversed and dismissed the conviction of appellant, Carlton Wendell Duncan, for felony child abuse and neglect, in violation of Code § 18.2-371.1(B). The panel determined that the Commonwealth's evidence did not establish beyond a reasonable doubt that Duncan's willful acts and omissions in the care of his six-month-old son was conduct so gross, wanton and culpable as to show a reckless disregard for the child's life. We granted the Commonwealth's petition for a rehearing en banc and stayed the mandate of the panel's decision. Upon rehearing en banc, we reverse the trial court and dismiss the conviction.
When the sufficiency of the evidence is challenged on appeal, we review the evidence "in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom." Bright v. Commonwealth, 4 Va. App. 248, 250, 356 S.E.2d 443, 444 (1997). "In so doing, we must discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences that may be drawn therefrom." Watkins v. Commonwealth, 26 Va. App. 335, 349, 494 S.E.2d 859, 866 (1998). We are further mindful that the "credibility of a witness, the weight accorded the testimony, and the inferences to be drawn from proven facts are matters solely for the fact finder's determination." Crawley v. Commonwealth, 29 Va. App. 372, 375, 512 S.E.2d 169, 170 (1999). We will not disturb the conviction unless it is plainly wrong or unsupported by the evidence. Sutphin v. Commonwealth, 1 Va. App. 241, 243, 337 S.E.2d 897, 898 (1985).
Here, viewed in the light most favorable to the Commonwealth, the evidence established that, on June 12, 2000, around 3:30 p.m., Jennifer Dansby returned home from work to find Michelle Cribbs, several friends, and Duncan's six-month-old son there. Duncan was not there. Dansby shared the home with Cribbs and Elizabeth Nemo. She had first met Duncan and his baby the day before when Dansby's ex-housemate had invited Duncan to Dansby's house. The baby was awake when Dansby got home but would doze off as Dansby and the others took turns holding him and playing with him. There was no baby food or formula in the house, so Dansby and her friends were unable to feed the child. According to Dansby, nobody fed the child from 3:30 p.m. until 11:00 p.m.
Nemo arrived home at 9:30 p.m. Later in the evening, an impromptu party began as other friends arrived and people started drinking beer and using illegal drugs. Dansby, her housemates, and her friends continued to take turns holding the baby, passing him around. Duncan arrived at the house around 10:30 p.m., bringing a bag of marijuana with him. Nemo noticed that his eyes were "glazed over" and the whites of his eyes were yellow. Duncan began drinking with the group. When the subject of babies came up, Duncan started talking about women he had impregnated and the abortions they had had. Later, Duncan took the baby from Nemo, put him on the couch, and, holding him by his hands, lifted him up off the couch. The baby started crying.
Around midnight, the baby became fussy and started crying loudly. Duncan, saying he would "take care of the problem," took the child from his carriage in the living room and carried him into the bathroom, and then into a back bedroom. Nemo, who was concerned about the baby, followed them. Looking into the bedroom, she saw the baby lying on a futon. Duncan was sitting next to the futon, lifting it "as if it was going towards the bab
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