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Duncan v. Commonwealth4/8/2003
e did not show that Duncan's failure to feed his son for seven and a half hours constituted conduct so gross, wanton, and culpable as to show a reckless disregard for the child's life, particularly as there was no evidence that the baby was hungry or otherwise in distress during that period of time. In fact, the evidence showed that, when the baby became fussy and started to cry loudly, Duncan took steps to feed him, albeit with a bottle containing a liquid mixture, part of which was wine cooler-which brings us to the crux of this appeal.
In finding Duncan guilty of violating Code § 18.2-371.1(B), the trial court attached the greatest significance to Duncan's act of putting the mixture containing wine cooler in the baby's bottle and causing it to be fed to his son. Clearly, that was the most serious allegation against Duncan. Duncan argues that, given the low alcohol content of the mixture fed to his son, his child's life would not have been endangered even if he had consumed the entire contents of the bottle.
The question before us, then, is whether feeding a six-month-old infant approximately eight ounces of liquid containing 2.8% ethyl alcohol by volume is an act so gross, wanton, and culpable as to show a reckless disregard for human life. The Commonwealth asserts that " t is beyond dispute that feeding alcohol to an infant is dangerous." Plainly, at some quantitative level, based on the alcoholic content and volume of the liquid ingested, feeding a six-month-old child liquid that contains alcohol would, like driving an automobile in excess of one hundred miles an hour while being pursued by the police, constitute a danger to the child's life. In this case, however, there was no evidence presented to show that feeding a six-month-old child up to eight ounces of a liquid that is 2.8% ethyl alcohol by volume endangers the child's life. Such a conclusion would, therefore, have to be based on pure conjecture and speculation, rather than on the evidence or inferences reasonably drawn therefrom. Hence, we conclude the evidence did not support such a finding beyond a reasonable doubt by the trial court. See Thomas v. Commonwealth, 187 Va. 265, 272, 46 S.E.2d 388, 391 (1948) ("A conclusion of guilt must be supported by credible evidence and cannot rest upon conjecture or suspicion.").
We hold, therefore, that the Commonwealth's evidence was insufficient, as a matter of law, to prove beyond a reasonable doubt that Duncan's willful acts and omissions in caring for his child were so gross, wanton, and culpable as to show a reckless disregard for human life. Accordingly, we reverse Duncan's conviction of felony child abuse and neglect under Code § 18.2-371.1(B) and dismiss the indictment.
Reversed and dismissed.
Fitzpatrick, C.J., with whom Elder, Humphreys and Felton, JJ., join, dissenting.
I respectfully dissent from the majority opinion, which holds the evidence in this case insufficient to establish that appellant's willful acts or omissions while caring for his son showed a "reckless disregard for human life."
Code § 18.2-371.1(B) provides in pertinent part that " ny parent . . . responsible for the care of a child . . . 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."
The evidence, viewed in the light most favorable to the Commonwealth, proved appellant left his six-month-old baby with people he had just met. He provided no food or formula, and the baby was not fed for more than seven hours. The baby remained at the home while appellant and others drank alcohol and used illegal drugs. Witnes
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