Carosi v. Com.

Present: All the Justices

ANGELA MARIE CAROSI
OPINION BY
v. Record No. 100143 JUSTICE LAWRENCE L. KOONTZ, JR.
November 4, 2010
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we consider whether the Court of Appeals

erred in finding that three convictions for child endangerment

in violation of Code § 40.1-103(A) were supported by

sufficient evidence that the defendant endangered the lives of

her three children by permitting illegal drugs to be kept in

her home in a place accessible to the children.

BACKGROUND

When the sufficiency of the evidence is challenged on

appeal of a criminal conviction, we review “the evidence in

the light most favorable to the Commonwealth, the prevailing

party in the circuit court, and we accord the Commonwealth the

benefit of all reasonable inferences deducible from the

evidence.” Brown v. Commonwealth, 278 Va. 523, 527, 685

S.E.2d 43, 45 (2009). When so viewed, the evidence adduced at

trial showed that shortly after 10 P.M. on February 28, 2008,

Virginia State Police Special Agent Richard Boyd, Jr. executed

a search warrant at 214 Oak Grove Lane in Stafford County.

This residence is where Angela Marie Carosi lived with her

three children, ages 10, 5 and 3, all of whom were present in
the home at the time of the search. Cavell Thomas, the father

of two of the children, also frequently stayed in the

residence. However, Thomas was not present at the time of the

search, as he was being held in custody on drug charges in

another jurisdiction.

In the master bedroom of the home, which Carosi shared

with Thomas, Boyd found a glass jar containing marijuana, two

“bongs” or smoking devices, a digital scale with a powdery

residue, and plastic bags in an upper cabinet of an unlocked

wardrobe. In an unlocked safe inside the wardrobe, Boyd also

found prescription bottles containing oxycodone and

methylenedioxymethamphetamine, commonly known as MDMA or

ecstasy. 1 On top of the safe was a plate with two razor blades

and powdered cocaine. Boyd further observed that there was no

lock on the master bedroom door and that all the drugs in the

wardrobe would be within the reach of a small child.

Boyd subsequently testified at trial that Carosi told him

the smoking devices were in the wardrobe, that she kept

clothing in the drawers of the wardrobe, and that the safe

1
There is conflicting testimony in the record as to the
precise location of the safe and whether the locking mechanism
of the safe was functional or not; however, it is undisputed
that the safe was not locked and in a place accessible to the
children when Boyd conducted the search.
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belonged jointly to her and Thomas. She denied any knowledge

of the drugs that Boyd had found inside the safe.

On August 4, 2008, the Stafford County Grand Jury

indicted Carosi for three counts of child abuse in violation

of Code § 18.2-371.1(B)(1) and three counts of child

endangerment in violation of Code § 40.1-103(A), both offenses

being Class 6 felonies. 2 Carosi was also indicted for

possession of marijuana with intent to distribute in violation

of Code § 18.2-248.1 and three counts of possession of

cocaine, oxycodone, and MDMA in violation of Code § 18.2-250.

The Commonwealth subsequently dismissed the felony child abuse

charges by nolle prosequi.

On March 4, 2009, a two-day jury trial on the child

endangerment and drug possession charges commenced in the

Circuit Court of Stafford County. Boyd testified concerning

2
In its sentencing order, the circuit court used the term
“Child Neglect” to describe the offense defined by Code
§ 18.2-371.1(B)(1) and “Child Cruelty” to describe the offense
defined by Code § 40.1-103(A). Although these terms track in
part the titles of the respective code sections, they do not
fully convey the nature or elements of the two offenses and
the distinction between them. For use in this opinion, we
have adopted the terms used by the Court of Appeals in its
order refusing Carosi’s appeal and in King v. Commonwealth, 56
Va. App. 133, 692 S.E.2d 249 (2010), in which the Court of
Appeals determined that child abuse and child endangerment are
not the same offense, nor is one a lesser-included offense of
the other and, thus, convictions under both statutes in a
single trial does not violate double jeopardy principles. Id.
at 138-39, 692 S.E.2d at 252.
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the February 28, 2008 search of Carosi’s home as described

above. After presenting evidence from a forensic expert, who

identified the marijuana, cocaine, oxycodone, and MDMA, the

Commonwealth rested its case.

Carosi moved to strike the child endangerment charges,

contending that “[t]here is no evidence whatsoever that the

children knew that there were drugs in the house. There is no

evidence whatsoever that there was drug use going on in front

of these children. There [is] no evidence whatsoever that

[the children] actually had access to the bedroom and they

could go in there.” Thus, Carosi contended that the jury

would have to speculate as to whether the children had

actually been placed in a situation endangering their lives

through her alleged willful or negligent conduct.

The Commonwealth responded that the children had “access

to dangerous drugs” because there were no “locks or any

prohibitions on the door to prohibit the [children] from

coming into their mother’s room.” Thus, the Commonwealth

asserted that the elements of Code § 40.1-103(A) could be

satisfied “solely on the children’s access to the Schedule I

or Schedule II drugs and marijuana.”

Carosi responded that children merely having potential

access to drugs was different from a case where “there is drug

dealing going on in front of the children.” She contended

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that the possibility of access to drugs is “no different than

having a cabinet under the sink where you keep dangerous . . .

cleaning supplies.” She reiterated that the evidence did not

show that “there was anything going on in front of the

children or that the children even knew [the drugs were] there

and had free access into the bedroom.” The circuit court

denied the motion to strike the child endangerment charges.

Thereafter, Thomas was called as a witness for the

defense. Thomas took full responsibility for the drugs found

in the home, stating that the wardrobe was his “and I wanted

to hide [the drugs] there.” He denied that Carosi kept any

belongings in the wardrobe and maintained that he did not use

drugs in the home. On cross-examination, Thomas gave

equivocal answers to a series of questions concerning whether

any of Carosi’s clothing was kept in the wardrobe.

Nevertheless, he insisted that “all the drugs were mine” and

that, other than the marijuana, he had placed the drugs in the

wardrobe the day before the search was conducted.

Concerning ownership of the safe, Thomas testified that

while he purchased the safe, Carosi might have told Boyd that

she and Thomas owned the safe jointly because “everything like

mines [(sic)], is basically hers . . . . if she wanted to

claim the safe, she could.” He further testified that

although there were two bongs in the wardrobe, both belonged

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to him. Asked why he would keep two bongs in the home if

Carosi did not smoke marijuana, as he maintained, Thomas

replied that the two were “total different instruments if you

look at them clearly” and that they were of “[d]ifferent

styles.”

The Commonwealth concluded its cross-examination of

Thomas by impeaching him through prior inconsistent statements

he had made to a probation officer for a pre-sentence report

following his conviction on drug trafficking charges.

Specifically, the Commonwealth established that Thomas had

denied using marijuana, cocaine, or other drugs recently.

Thomas responded either that he could not recall what

statements he had made or that he did not know what had been

stated in the pre-sentence report.

Carosi testified on her own behalf. She maintained that

Thomas brought the wardrobe to the home. Carosi denied that

she kept any clothing or other property in the wardrobe,

though she conceded that she sometimes would borrow a pair of

Thomas’ socks that were kept in the wardrobe. She further

testified that while her children “[s]ometimes” would go into

her bedroom, she had never seen them playing in the wardrobe.

Carosi specifically denied having any knowledge of the

drugs or the bongs, and denied that she smoked marijuana or

used any type of illegal drugs. She further maintained that

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Thomas did not use drugs in the home, though she had “seen him

take pills” for pain after he had two teeth pulled.

On cross-examination, Carosi denied that she had told

Boyd that she kept clothes in the wardrobe. She also denied

having told Boyd that the bongs were located in the wardrobe.

Asked whether she could offer a reason that Boyd would

fabricate this testimony, Carosi replied that she had been

“overcritical” of him during the search of her home and had

“told him how to do his job better.” Carosi also testified

that she had purchased the safe for Thomas as a gift and did

not “know why he said he purchased it.”

After the Commonwealth called the probation officer who

had prepared Thomas’ pre-sentence report as a rebuttal

witness, Carosi renewed her motion to strike the child

endangerment charges, asserting that there was no evidence

that the children “were actually effected in any way and that

they even knew about” the drugs. The circuit court again

denied the motion to strike.

The case was submitted to the jury, which returned

verdicts acquitting Carosi of the four drug possession

offenses, but convicted her of the three child endangerment

charges. The jury fixed her punishment at a fine of $500 for

each offense. Carosi waived the preparation of a pre-sentence

report. After receiving testimony from Carosi and her sister,

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the circuit court confirmed the jury’s verdict and imposed

$1500 in fines on Carosi.

Carosi filed a petition for appeal to the Court of

Appeals. The sole issue asserted in her petition was that the

evidence was insufficient to support the three convictions for

felony child endangerment. In a per curiam order, the Court

of Appeals refused Carosi’s petition. Citing Barnes v.

Commonwealth, 47 Va. App. 105, 110-11, 622 S.E.2d 278, 281

(2005), the Court noted that proof of child endangerment

“requires only a threshold mens rea showing of ‘criminal

negligence.’” Carosi v. Commonwealth, Record No. 0738-09-4,

slip op. at 2 (October 7, 2009). Relying upon Jones v.

Commonwealth, 272 Va. 692, 700, 636 S.E.2d 403, 407 (2006),

the Court held that the jury could have reasonably found that

the “act of leaving illegal narcotics in a place accessible to

her children was grossly negligent” and was sufficient to

prove the mens rea necessary to establish Carosi’s criminal

negligence “based on common knowledge[] that there are

inherent dangers in placing [illegal drugs] within reach of an

unattended child.” Carosi, slip op. at 3 (internal quotation

marks omitted). Carosi requested a review of this judgment

by a three-judge panel, which refused the petition for the

reasons stated in the per curiam order. This appeal followed.

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 DISCUSSION

In relevant part, Code § 40.1-103(A) provides, “It shall

be unlawful for any person . . . having the custody of any

child willfully or negligently to cause or permit the life of

such child to be endangered.” 3 Although the Court of Appeals

has reviewed many convictions under Code § 40.1-103(A), we

last considered the application of the child endangerment

statute in Lovisi v. Commonwealth, 212 Va. 848, 188 S.E.2d 206

(1972). Since that time, we have considered a number of cases

involving the felony child abuse statute, Code § 18.2-

371.1(B)(1), including most recently Jones and Morris v.

Commonwealth, 272 Va. 732, 636 S.E.2d 436 (2006). Although

the two statutes define separate offenses, it is clear that

the mens rea for each offense can be satisfied by a showing of

3
In Commonwealth v. Carter, 21 Va. App. 150, 155, 462
S.E.2d 582, 585 (1995), the Court of Appeals held that a
further provision of the statute providing that the offense
would also apply to a circumstance where the “life, health or
morals [of the child] may be endangered” was
unconstitutionally vague, but found that the offending
language was severable from the statute. (Emphasis added.)
The statute also makes it an offense “to cause or permit such
child to be overworked, tortured, tormented, mutilated, beaten
or cruelly treated.” There is no dispute, however, that the
Commonwealth’s contention in this case was that Carosi
actually endangered the children through her criminal
negligence.

9
criminal negligence on the part of the defendant. 4 Cf. Ellis

v. Commonwealth, 29 Va. App. 548, 556-57, 513 S.E.2d 453, 457

(1999) (child endangerment); Jones, 272 Va. at 701, 636 S.E.2d

at 408 (child abuse).

Carosi contends that the Commonwealth’s evidence was

insufficient as a matter of law because it failed to show that

she actually endangered the life of her children as proscribed

by Code § 40.1-103(A). Carosi advances two separate

challenges to the sufficiency of the evidence, contending that

the Commonwealth failed to prove both the necessary scienter,

in that the evidence did not show that she had actual

knowledge of the presence and character of the illegal drugs

in her home, and the requisite mens rea, in that the evidence

did not show that her acts or omissions rose to a level of

criminal negligence. We will address Carosi’s contentions in

that order.

With respect to the issue of scienter, Carosi asserts

that “the only facts before the [jury] are that there were

drugs and drug paraphernalia in a closed cabinet belonging to

4
The two statutes are sufficiently similar that the
legislature has included identical provisions for an
affirmative defense to each offense where the prosecution is
“based solely on the accused parent having left the child at a
hospital or rescue squad . . . within the first 14 days of the
child’s life.” Code § 18.2-371.1(B)(2); Code § 40.1-103(B).

10
[Carosi’s] boyfriend.” Because the jury acquitted Carosi of

all the drug possession charges, she contends that there was

no evidence that she was actually aware that the drugs were

present in the wardrobe. Absent that knowledge, she asserts

the evidence that she permitted the children to occasionally

enter and play in the master bedroom would be insufficient to

prove that she knowingly permitted the children’s lives to be

endangered. We disagree.

When a defendant challenges the sufficiency of the

evidence on appeal “[i]t is the appellate court’s duty to

examine the evidence that tends to support the conviction and

to uphold the conviction unless it is plainly wrong or without

evidentiary support.” Carter v. Commonwealth, 280 Va. 100,

104, 694 S.E.2d 590, 593 (2010) (citing Code § 8.01-680).

Moreover, when, as in this case, “a defendant elects to

introduce evidence in [her] own behalf after the denial of a

motion to strike the Commonwealth’s evidence, any further

challenge to the sufficiency of the evidence at trial or on

appeal is to be determined from the entire record” including

the defendant’s own testimony. Murillo-Rodriguez v.

Commonwealth, 279 Va. 64, 74, 688 S.E.2d 199, 204-05 (2010).

Applying this standard of review, we hold that Carosi’s

contention that by failing to establish her guilt for the drug

possession charges, the Commonwealth necessarily also failed

11
to prove she had knowledge that drugs were present in the

wardrobe is not supported by the record when viewed in its

entirety.

“To support a conviction based upon constructive

possession [of illegal drugs], ‘the Commonwealth must point to

evidence of acts, statements, or conduct of the accused or

other facts or circumstances which tend to show that the

defendant was aware of both the presence and character of the

substance and that it was subject to [her] dominion and

control.’ ” Drew v. Commonwealth, 230 Va. 471, 473, 338

S.E.2d 844, 845 (1986) (quoting Powers v. Commonwealth, 227

Va. 474, 476, 316 S.E.2d 739, 740 (1984)); accord McMillan v.

Commonwealth, 277 Va. 11, 19, 671 S.E.2d 396, 399 (2009).

Boyd’s testimony that Carosi told him that the two bongs were

in the wardrobe, that she kept clothing in it, and that the

safe belonged jointly to her and Thomas would give rise to a

reasonable inference by the trier of fact that Carosi was also

aware of the presence and character of the marijuana and other

drugs in the wardrobe and safe and that she jointly exercised

dominion and control over them with Thomas. This evidence was

sufficient for the Commonwealth to establish a prima facie

case for constructive possession of the drugs and overcome

Carosi’s motion to strike those charges at the conclusion of

the Commonwealth’s case in chief. The evidence presented by

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the defense, specifically Carosi’s adamant denial that she

used the wardrobe or was aware of what Thomas stored in it and

that she had not made the statements during the search that

Boyd attributed to her, as well as Thomas’ assertion that all

of the drugs and drug paraphernalia were his alone, thus

created a question of fact to be resolved by the jury based

upon its assessment of the credibility of the witnesses.

A jury is not required to accept the self-serving

testimony of the defendant or of witnesses with a potential

bias in favor of the defendant, but may rely on such testimony

in whole, in part, or reject it completely. See Durham v.

Commonwealth, 214 Va. 166, 169, 198 S.E.2d 603, 606 (1973);

Upshur v. Commonwealth, 170 Va. 649, 655, 197 S.E. 435, 437

(1938). Thus, the jury reasonably could have accepted Thomas’

assertion that the drugs were his, while rejecting Carosi’s

assertion that she was ignorant of the fact that the drugs

were being stored in the wardrobe. Accordingly, while the

jury may have found that the Commonwealth had not proven

beyond a reasonable doubt that Carosi exercised dominion and

control over the drugs, it could also have found the evidence

was sufficient to prove that she was nonetheless aware of the

presence and character of the drugs for purposes of

determining whether she was guilty of the child endangerment

charges.

13
 We now turn to the central question of this appeal, which

is embodied in Carosi’s contention that the mens rea element

of Code § 40.1-103(A) cannot be established solely upon the

fact that a parent or other custodian knowingly permitted a

child to be present in a home where illegal drugs were kept

unsecured in an area accessible to the child. Carosi contends

that unlike in Jones, where the mens rea of criminal

negligence was supported by evidence that the child had actual

access to heroin as well as by the “substantial risk of

serious injury from the dangers inherent in the illicit drug

trade” that was ongoing in the home, 272 Va. at 701-02, 636

S.E.2d at 408, here the evidence showed only that the illegal

drugs were kept in a place where the children could have

obtained access to them. Thus, even if the jury could have

found that Carosi was aware that drugs were being stored in

the wardrobe, she contends that “knowledge of a dangerous

substance closed away in a cabinet by itself should not rise

to the level of criminal negligence.” As she did in the

circuit court, Carosi asserts that keeping illegal drugs in

this manner was no more likely to endanger her children than

would “the possession of sharp knives in the kitchen,

chemicals under the sink, prescription drugs in the medicine

cabinet, and a lawfully possessed unloaded gun in the closet.”

We disagree.

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 Carosi is correct that in Jones we held that “[b]y

engaging in the routine sale of drugs from her home and

permitting her unattended young child access to those drugs,

Jones committed willful acts and omissions” sufficient to

prove her criminally negligent for purposes of establishing

the mens rea element of Code § 18.2-371.1(B)(1). Id. at 702,

636 S.E.2d at 408 (emphasis added). Moreover, we further

stated that our decision in that case did not establish “a per

se rule” that a violation of the statute would occur whenever

the evidence showed that a “child is living in the environment

of the drug trade.” Id. Contrary to Carosi’s contention,

however, neither does our decision in Jones stand for the

proposition that the mens rea for criminal negligence could

not be established based upon permitting a child to have

access to illegal drugs in the absence of any evidence of drug

trafficking.

Criminal negligence is established by showing that the

defendant’s acts or omissions were “of a wanton or willful

character . . . show[ing] a reckless or indifferent disregard

of the rights of others, under circumstances reasonably

calculated to produce injury, or which make it not improbable

that injury will be occasioned, and the offender knows, or is

charged with the knowledge of, the probable result of [her]

acts.” Brown, 278 Va. at 528-29, 685 S.E.2d at 46 (internal

15
quotation marks omitted). Such a determination necessarily

will be specific to the circumstances of each case and, thus,

whether a defendant’s conduct is criminally negligent is

usually a question for the trier of fact, unless reasonable

minds could not differ. See, e.g. Noakes v. Commonwealth, 54

Va. App. 577, 586, 681 S.E.2d 48, 52 (2009), aff’d, 280 Va.

338, 669 S.E.2d 284 (2010); cf. Griffin v. Shively, 227 Va.

317, 320, 315 S.E.2d 210, 212 (1984).

Initially, we reject Carosi’s broad contention that a

parent or other person having custody of a child cannot be

held criminally liable for negligently permitting the child to

be in an environment where illegal drugs are readily

accessible because this circumstance is no different than

permitting the child to be in an environment where there are

“sharp knives in the kitchen, chemicals under the sink,

prescription drugs in the medicine cabinet, and a lawfully

possessed unloaded gun in the closet.” It is self-evident

from Carosi’s own characterization of the two circumstances

that they differ in the important respect that the latter

items, though unquestionably dangerous if left accessible to

unsupervised children, are possessed by the parent or

16
custodian for lawful purposes, whereas drugs that are

illegally present in the home are not. 5

Finally, in order to accept Carosi’s argument that the

evidence was insufficient to establish the mens rea of

criminal negligence in this case, we would have to conclude

that reasonable minds could not differ on whether rearing

children in a home where illegal drugs are readily accessible

may constitute endangering the children for purposes of Code

§ 40.1-103(A). The myriad factors to be considered in such

cases – such as the ages of the children, the length of the

exposure, the level of supervision or lack thereof, and the

quantity and variety of the drugs – suggest that as with most

cases where criminal negligence is at issue, this

determination is necessarily fact-specific. Such

determination is best left to the jury, which is in the best

position to assess the weight and credibility of the evidence.

In that respect, and considering the totality of the evidence,

we cannot say that the jury’s finding of criminal negligence

5
Moreover, Carosi provides no support for the implicit
inference in her argument that a charge of child endangerment
could never be supported by evidence that a parent or other
custodian negligently permitted a child to have access to a
legally-possessed dangerous substance. The facts of this case
do not require us to decide that issue.

17
in this case was plainly wrong or without support in the

record.

CONCLUSION

For these reasons, we hold that the Court of Appeals did

not err in refusing Carosi’s petition for appeal.

Accordingly, the judgment of the Court of Appeals will be

affirmed.

Affirmed.

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