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Duncan v. Commonwealth4/8/2003
ses described appellant's appearance as impaired with his eyes "glazed over." Around midnight, the baby started crying and appellant took the baby into a back bedroom saying "I'm going to take care of the problem." He placed the baby on a futon, and a witness saw him lift the futon "as if it was going towards the baby's body." When he saw the witness, he left the baby on the futon and went to the kitchen. He returned from the kitchen with a bottle and handed it to one of the girls who lived at the house. She started to feed it to the baby, but noticed the liquid in the bottle was a "pinkish color" and smelled like wine cooler. Later testing revealed the liquid in the bottle was alcohol.
The trial court rejected appellant's testimony and found:
[Appellant] is not a believable witness. I reject his testimony as to the explanation. I find the Commonwealth's witnesses . . . to clearly show and prove beyond a reasonable doubt that the [appellant] took the baby back to the back bedroom and whatever happened on the sofa, 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 [a witness], then he walks out.
Feeding alcohol to a six-month old baby is clear neglect. Coupled with all the other acts, omissions and commissions that he did, I find the [appellant] guilty beyond a reasonable doubt of the felony charge.
This evidence established a day long series of actions that culminated in appellant's preparation of a bottle laced with alcohol to be fed to his six-month-old baby who had eaten nothing for the entire day. This behavior shows more than mere indifference or negligence. Appellant's acts of leaving the baby with people he barely knew, failing to provide food for more than seven hours, having the baby in a home where the people were using illegal drugs, and causing the baby to ingest alcohol were willful, wanton and showed a reckless disregard for human life. Had the baby died as a result of ingesting the alcohol laced drink, a manslaughter indictment would have been the outcome. Therefore, I would affirm appellant's conviction. Kelsey, J., dissenting.
Crime is a "compound concept," generally requiring the "concurrence of an evil-meaning mind with an evil-doing hand." Morissette v. United States, 342 U.S. 246, 251-52 (1952). Every criminal statute, unless it imposes strict liability, must have two components: mens rea and actus reus. The former describes the criminal actor's state of mind, while the latter identifies the specific behavior deemed unlawful.
Underlying the disagreement between the majority and the dissent in this case, I believe, is an unstated -- but altogether real -- difference in opinion on how to deal with the apparent lack of an actus reus component in Code § 18.2-371.1(B). Subsection (B) of the statute reads:
Any 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. Code § 18.2-371.1(B).
Subsection (B) criminalizes undefined acts or omissions that "show a reckless disregard for human life."
The majority interpolates an actus reus component from the "reckless disregard for human life" phrase. Focusing on this phrase alone, the majority assumes the "act or omission" condemned by the statute must be one that puts the victim at a probable risk of death. Under this interpretation, only lethal risks (not non-fatal risks of harm) fall within the scope of the statute. In other words, if a
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