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Duncan v. Commonwealth4/8/2003
y's body." When Duncan saw Nemo, he put the futon down and told her he was looking for a pacifier. Duncan left the room, and Nemo picked up the baby, who was still crying.
Duncan went into the kitchen. Dansby heard him open the refrigerator door, which was "odd," she thought, because there was only beer and wine coolers in the refrigerator. Approximately five minutes later, Duncan came out of the kitchen with a baby bottle, which he took to the back room and gave to Nemo. Nemo started feeding the child, and Duncan left the room and then went outside.
While feeding the baby, Nemo went into the living room and sat down with her friends. Nemo then noticed that the liquid in the baby bottle had a "pinkish color" and smelled like wine cooler. After a friend tasted the liquid in the bottle and confirmed that it tasted of alcohol, Dansby, who described the liquid as having a "milky pinkish color," called the hospital and the police. She then took the baby bottle, which was a little more than half full, and hid it in the microwave oven until the police arrived. While in the kitchen, Dansby noticed that a bottle of wine cooler was missing from the refrigerator. She found an open bottle of wine cooler that had not been there before on the kitchen counter behind some fast-food bags of trash. It had approximately three inches of liquid missing from the top. The contents of the bottle were "pink."
Approximately fifteen minutes later, Duncan, who was unaware the police had been called, came back inside to check on his child. He sat on the couch next to Nemo, who continued to hold the baby until the police came.
When the police arrived, Officer Nacastro noticed that Duncan had "bloodshot eyes," his speech was "slightly mumbled," and he smelled "of intoxicant ." The police took the baby bottle and the opened bottle of wine cooler for analysis. Laboratory tests revealed that the liquid in the twelve-ounce bottle of wine cooler was 3.2% ethyl alcohol by volume. The liquid in the eight-ounce baby bottle, which the police noted was "whitish [with a] little pinkish color in that," was 2.8% ethyl alcohol by volume.
At trial, Duncan denied putting any alcohol in his son's baby bottle. He said he picked up the baby bottle from the kitchen table and gave it to Nemo, but did not know it contained wine cooler. He also testified that he had fed the baby apple raisin cereal earlier in the evening. He also claimed he put his son on the futon in the back bedroom and rubbed his back so he could go to sleep.
Code § 18.2-371.1(B) provides that " ny parent, guardian, or other person responsible for the care of a child under the age of eighteen whose willful act or omission in the care of such child was so gross, wanton and culpable as to show a reckless disregard for human life shall be guilty of a Class 6 felony."
After hearing the evidence and argument of counsel, the trial judge stated:
I find that Mr. Duncan is not a believable witness. I reject his testimony as to the explanation. I find the Commonwealth's witnesses, again Ms. Nemo and Ms. Dansby together with Officer Nacastro, to clearly show and prove beyond a reasonable doubt that the defendant took the baby back to the back bedroom and whatever happened on the [futon], he then is the one who goes to the kitchen area, he comes back with a bottle that has this clear pinkish substance in it, he gives the bottle to Ms. Nemo, then he walks out.
Feeding alcohol to a six-month baby is clear neglect. Coupled with all the other acts, omissions and commissions that he did, I find the defendant guilty beyond a reasonable doubt of the felony charge.
On appeal, Duncan doe
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