Duncan v. Commonwealth4/8/2003
s not challenge the sufficiency of the evidence to show that he committed certain improper acts and omissions in the care of his son and that such acts and omissions were willful. In addition, he concedes that such willful acts and omissions could be construed as being irresponsible, derelict, and negligent. He argues, however, that, even viewing the evidence in the light most favorable to the Commonwealth, his willful acts and omissions were not so gross, wanton, and culpable as to show a reckless disregard for human life.
The Commonwealth argues that Duncan's acts and omissions in the care of his son support his conviction. Specifically, the Commonwealth asserts that Duncan's leaving the child in the care of people he had known for just a day; failing to feed, or make sure someone else fed, the child for more than seven hours; returning to Dansby's home intoxicated and in possession of marijuana; "put[ting] the child on a futon and then lift the futon until he was caught" by Nemo; and, most significantly, causing Nemo, unbeknownst to her, to feed wine cooler to the baby was conduct so gross, wanton and culpable as to show a reckless disregard for the life of his six-month-old son. We disagree with the Commonwealth.
Plainly, Duncan was negligent in caring for his child. His conduct was inexcusable and cannot be condoned. A finding of negligence, however, is not enough, by itself, to sustain a conviction for criminal abuse and neglect of a child under Code § 18.2-371.1. See Ellis v. Commonwealth, 29 Va. App. 548, 555, 513 S.E.2d 453, 457 (1999) (holding that "something more than negligence must be proved beyond a reasonable doubt to support [defendant's] conviction" of criminal child neglect). To sustain Duncan's conviction in this case, the Commonwealth had to prove beyond a reasonable doubt that Duncan committed a willful act or omission in the care of his son that was "so gross, wanton, and culpable as to show a reckless disregard" for the child's life. Code § 18.2-371.1(B). In Snow v. Commonwealth, 33 Va. App. 766, 775, 537 S.E.2d 6, 11 (2000), we held that the defendant's act of driving a car with children in it in excess of one hundred miles per hour while trying to elude the police was not only illegal but "dangerous," and, thus, constituted conduct "so gross, wanton, and culpable as to show a reckless disregard for human life." The same cannot be said, however, of the willful acts and omissions before us in this case.
Here, although Duncan, as the Commonwealth notes, left his son with women he had known for only a day, no evidence showed that the women were irresponsible or that Duncan had reason to believe they were unable or unwilling to care for the baby, or that they would place the child's life at risk. Furthermore, the evidence supports the trial court's finding that the women found "the baby interesting and cute" and enjoyed "looking after" him. Indeed, they continued to play with and hold the child even after Duncan returned to the women's house. In addition, Duncan interacted with his son upon his return to the house and, despite his apparent intoxication and possession of illicit drugs, responded to him when the child became fussy and cried loudly.
Furthermore, although Nemo testified that she was concerned for the baby's safety when Duncan took the child to the back bedroom after announcing he would "take care of the problem," we find, on the evidence presented, that her assignment of ill will to Duncan was purely speculative, as was her perception that Duncan intended to harm the child when she saw him lift the futon. The trial court correctly gave little, if any, weight to such conjecture in reaching its decision.
Likewise, the evidenc
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