Morris v. Com.

PRESENT: Hassell, C.J., Lacy, Keenan, Kinser, Lemons, and Agee,
JJ., and Stephenson, S.J.

SAMANTHA LYNN MORRIS
OPINION BY
v. Record No. 052654 SENIOR JUSTICE ROSCOE B. STEPHENSON, JR.
November 3, 2006
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

The sole issue in this appeal is whether the evidence is

sufficient to support a mother's conviction of felonious child

neglect in violation of Code § 18.2-371.1(B). The accused

mother, Samantha Lynn Morris, contends that the evidence is

insufficient, as a matter of law, because it did not prove that

she willfully failed to provide care for her two children in a

manner so gross, wanton, and culpable as to show a reckless

disregard for their lives.

I

In a bench trial, Morris was found guilty of two charges of

felony child neglect. The court sentenced Morris to two years'

imprisonment, with one year and nine months suspended, on each

offense and directed that the sentences run concurrently.

In an unpublished opinion, a three-judge panel of the Court

of Appeals reversed the convictions and dismissed the charges.

Thereafter, the Court of Appeals granted the Commonwealth's

petition for a rehearing en banc and affirmed the convictions.
Morris v. Commonwealth, 47 Va. App. 34, 37, 622 S.E.2d 243, 244

(2005). We awarded Morris this appeal.

II

In considering whether evidence is sufficient to sustain a

criminal conviction, we view the evidence in the light most

favorable to the prevailing party at trial and grant to it all

reasonable inferences fairly deducible from that evidence.

Jackson v. Commonwealth, 267 Va. 178, 204, 590 S.E.2d 520, 535

(2004). When thus viewed in the light most favorable to the

Commonwealth, the evidence established that, as of September 29,

2003, Morris had two children, both boys, L.J., age five-and-a-

half years, and S., age two-and-a-half years. L.J. had hearing

and speech impairments and wore hearing aids.

On the morning of September 29, 2003, Richard Goodin, a

family support worker at L.J.'s elementary school, learned that

L.J. was not in school. When Goodin was unable to contact

Morris by telephone, he went to the trailer court where Morris

lived. Goodin arrived about 9:30 a.m. and knocked on Morris'

door. Despite knocking "for a significant amount of time,"

Goodin raised no response, except for a dog's barking, and left

Morris' trailer.

About 11:15 a.m. that day, Goodin returned to Morris'

residence and again raised no response to his knocking. Goodin

looked around the neighborhood and saw two children playing in

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the nearby woods. One child appeared to be between four and six

years old, and the other child, who was naked, appeared to be

between two and three years old. ∗ The children were "interacting

and laughing" and seemed to be "having a good time." The

younger child was "fairly dirty" and had a runny nose and dried

fecal matter on his leg.

Goodin knocked on several doors in the neighborhood, hoping

to ascertain where the children lived. When he got no response

from any residences, Goodin called Child Protective Services and

911. While waiting for the police to arrive, Goodin decided to

take custody of the younger child because the child had started

to climb on an automobile that appeared to be awaiting repair.

Goodin thought the area was "dangerous" due to the presence of

the car as well as engine blocks and a weight lifting bench with

weights on it, all of which were "closer to the road."

Two police officers arrived within five to 15 minutes after

Goodin's call. Officer Raleigh Anderson knocked on the doors of

several residences, including Morris' trailer, but received no

response. When he knocked on the door to Morris' trailer,

however, the door came open. Anderson yelled, "[C]ounty

police," several times, and, when no one responded, he "pulled

the door closed" and continued his search for the children's

home.

∗
TP The temperature was approximately 70 degrees Fahrenheit.

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 In the meantime, Corporal James Larkin approached L.J. Due

to L.J.'s hearing and speech difficulties, however, Larkin was

unable to learn L.J.'s address. When Larkin asked L.J. if the

younger child was his brother, L.J. "kept saying no," so he and

L.J. walked away to look for L.J.'s home.

As Larkin and L.J. walked away, the younger child became

"pretty visibly upset," "started calling mommy," and ran toward

a particular trailer. Anderson followed the child to the

trailer. The child pushed the door open and ran into the

trailer and toward one of the rear bedrooms, still "calling

mommy." Anderson followed and, in the darkness, saw a man and a

woman lying on the bedroom floor. Upon seeing them, Anderson

stopped and "announced county police a couple of times." When

he received no response, Anderson backed out of the trailer.

Anderson then began "pounding on the door" with his fist

while "announcing county police." Ultimately, the man came to

the door. When Anderson asked about the children, the man went

to get the woman. The woman came into the living room,

identified herself as the children's aunt, and said that she was

just watching the children for her sister, Samantha Morris. The

younger child, however, kept calling the woman, "Mommy." When

the woman asked Anderson where the five-year-old child was,

Anderson radioed Larkin that he had found the children's

residence, and Larkin brought L.J. to the residence.

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 The woman continued to maintain that the children were her

nephews until the children's grandmother arrived on the scene.

After the two women had some private conversation, the woman

admitted that she was the children's mother and that her name

was Samantha Morris. Morris said she had given the false

information because she was afraid that there were outstanding

warrants for her arrest. When Morris was asked to explain why

the children were outside unattended, she said that she had been

sleeping. She also said that the children had gotten out of the

trailer on another occasion "a few days prior" and that

"somebody in the [neighborhood] had to return them home."

Thereupon, Larkin arrested Morris for the instant offenses.

At trial, Morris testified that L.J. had "great hearing

loss . . . in his left ear" and a lesser hearing loss in his

right ear and that he had lost one of his hearing aids. She

explained that L.J. also had chronic asthma and a painful

condition in his left leg. She said that, because of these

conditions, L.J. "had been up the couple nights before"

September 29, which caused him to "be tired in the mornings."

When L.J. awoke on September 29, he told Morris that he did not

feel well, so Morris decided to let him stay home from school.

According to Morris, she and her two children were sitting

on the couch watching television when the younger child appeared

to be getting sleepy. She asked L.J. if he wanted to take a

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nap, and he said, "[S]ure." Morris closed the curtains, turned

on a fan, and "locked the chain lock on the door and the door

knob lock" of the trailer. She and the children "went in and

all laid down in the bed." Morris then fell asleep. She later

was awakened when she heard someone yelling, "Albemarle County

Police."

Morris admitted that, at the time of trial on February 3,

2004, she had a "significant substance abuse problem." However,

she denied being under the influence of drugs or alcohol on

September 29, 2003. She further stated that she had last used

drugs "[a]bout three days prior" to that date.

III

Code § 18.2-371.1(B)(1) provides as follows:

Any parent, guardian, or other person responsible
for the care of a child under the age of 18 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.

In explaining his reasons for finding Morris guilty of felonious

child neglect under the statute, the trial judge stated the

following:

[T]he [question] the Court's confronted with is . . .
did she omit proper care of her children and [was]
this omission, this negligence, . . . so great that it
was wanton and likely to cause injury or which would
make it not improbable that injury would be
occasioned[.] [T]he facts that I've got are that
somehow, she was so sound asleep, she was so deep in
sleep that nothing would arouse her to alert her that

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 her children were getting up and going outside and
were outside for forty-five (45) minutes and that
there were knocks at the door by Mr. Goodin . . . .
There were knocks at the door by the police. There
was shouting and whatever sleep she was in, it was so
sound, it almost would require an earthquake to wake
her up, and going to sleep in that fashion, and
whatever caused that, with a five-year-old who I've
heard is speech impaired, hearing impaired, had leg
pain and a limp with chronic asthma and a two-year-old
who can't communicate. So we've got kids that are
wandering outside who cannot communicate, cannot tell
anybody who they are, there are no other responsible
adults around, the two-year[-]old's unclothed, Mr.
Goodin says he finds them in a dangerous area and he
searches for the parents, and she's so asleep that she
can't be awakened to check on her children or know
where her children are, and I think that meets the
definition, coupled with what—that the neighbors
[previously] brought the children back, that it was
seventy (70) degrees, that she had awakened that
morning, but couldn't remain alert enough to omit
being negligent in caring for her children or . . . to
be negligent in the omission of the care of her
children, so I find her guilty . . . . [A]nd I add to
that her credibility about not even being their
mother. I think that factors in, too, in her omission
in the care of her kids.

As previously stated, we must view the evidence and all

reasonable inferences fairly deducible therefrom in the light

most favorable to the Commonwealth, the prevailing party at

trial. Jackson, 267 Va. at 204, 590 S.E.2d at 535.

Additionally, the trial court's judgment is presumed to be

correct and will be reversed only if it is plainly wrong or

without evidence to support it. Id.; Code § 8.01-680. Thus, we

do not substitute our judgment for that of the fact finder even

7
if our opinion were to differ. Phan v. Commonwealth, 258 Va.

506, 511, 521 S.E.2d 282, 284 (1999).

In order for a person to be convicted of felony child

neglect, the Commonwealth must prove beyond a reasonable doubt

that the accused committed a "willful act or omission in the

care" of a child. The Commonwealth also must prove that the act

or omission is "so gross, wanton and culpable as to show a

reckless disregard for human life." Code § 18.2-371.1(B)(1).

We have said that "[t]he term 'willful act' imports

knowledge and consciousness that injury will result from the act

done. The act done must be intended or it must involve a

reckless disregard for the rights of another and will probably

result in an injury." Barrett v. Commonwealth, 268 Va. 170,

183, 597 S.E.2d 104, 111 (2004). We have also said that the

term "willful," as used in the statute, refers to conduct that

"must be knowing or intentional, rather than accidental, and

[undertaken] without justifiable excuse, without ground for

believing the conduct is lawful, or with a bad purpose. . . .

Thus, the term 'willful' . . . contemplates an intentional,

purposeful act or omission." Commonwealth v. Duncan, 267 Va.

377, 384-85, 593 S.E.2d 210, 214-15 (2004) (citations omitted).

Accord Barrett, 268 Va. at 183, 597 S.E.2d at 111.

Additionally, we have stated that the term "gross, wanton

and culpable" describes conduct, whether by action or omission.

8
 The word "gross" means "aggravated or increased
negligence" while the word "culpable" means "deserving
of blame or censure." Bell [v. Commonwealth, 170 Va.
597, 611, 195 S.E. 675, 681 (1938)]. " 'Gross
negligence' is culpable or criminal when accompanied
by acts of commission or omission of a wanton or
willful nature, showing 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 his acts." Id. at 611-12,
195 S.E. at 681.

Barrett, 268 Va. at 183, 597 S.E.2d at 111 (quoting Cable v.

Commonwealth, 243 Va. 236, 240, 415 S.E.2d 218, 220 (1992)).

In Barrett, a ten-month-old infant was drowned when he was

placed in a bathtub by his two-year-old sister. Barrett, the

children's mother, was charged with felony neglect of her

daughter under Code § 18.2-371.1(B). 268 Va. at 173-74, 597

S.E.2d at 105. The evidence established that Barrett knew that

her daughter was jealous of her infant brother and had a

"propensity for attempting to injure [him]." Id. at 184, 597

S.E.2d at 111. Barrett also knew that her daughter liked to

play in the bathtub and was able to operate the tub's faucets by

herself. In addition, Barrett knew that, shortly before the

infant's death, when she had left her daughter unattended in the

bathtub, her daughter had pulled the infant "head first" into

the bathtub. Id. at 185, 597 S.E.2d at 111-12.

The evening before the tragic incident, Barrett was out all

night drinking beer. She admitted that, when she drove her car

9
home at 6:00 a.m., she was still intoxicated enough to have been

arrested for driving under the influence. Later that morning,

while Barrett was tired and still intoxicated, she fell asleep

at a time when she "[knew] she was the only one left in the

apartment to supervise the children." Id. at 185, 597 S.E.2d at

112.

We affirmed Barrett's conviction of felony child neglect

under Code § 18.2-371.1(B)(1). Id. at 186, 597 S.E.2d at 112.

We concluded that the evidence revealed "the story of a disaster

just waiting to happen, a disaster any reasonable person would

consider likely to result in injury to [Barrett's children]."

Id. at 185, 597 S.E.2d at 112. Yet, Barrett, with abundant

knowledge of the substantial risk of serious injury to her

children, failed in her duty to protect them. Id. at 185-86,

597 S.E.2d at 112.

IV

The Commonwealth contends and the Court of Appeals'

majority held that the present case is governed by our decision

in Barrett. We disagree.

In Barrett, the mother had knowledge of many facts that

should have forewarned her that an injury was likely to occur.

She also was tired and intoxicated from a night of drinking beer

and totally unable to protect her children from a tragedy. In

the present case, Morris had no reason to believe her children

10
would be in any danger while she was asleep with them,

particularly after she had double-locked the trailer door.

Contrary to the Commonwealth's assertion, there was no evidence

that Morris was under the influence of drugs or alcohol at the

time she and the children went to sleep. While Morris admitted

that she had a substance abuse problem at the time of trial and

had used drugs three days prior to September 29, there was no

evidence presented to indicate that Morris was under the

influence of alcohol or drugs on that day. She was also in the

presence of two police officers for a lengthy interview that

same day, and the officers did not note that Morris was under

the influence. It is mere speculation, therefore, to say that

Morris' deep sleep was likely drug or alcohol induced.

V

When the evidence is viewed in the light most favorable to

the Commonwealth and considered in light of all the

circumstances preceding and surrounding the events of September

29, 2003, we conclude, as a matter of law, that Morris' conduct

was not a willful act or omission in the care of her children

that was so gross, wanton, and culpable as to show a reckless

disregard for their lives. Therefore, we hold that the evidence

is insufficient to sustain Morris' convictions. Accordingly, we

will reverse the judgment of the Court of Appeals and dismiss

the charges against Morris.

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 Reversed and final judgment.

JUSTICE KINSER, with whom JUSTICE KEENAN and JUSTICE LEMONS
join, dissenting.

I respectfully disagree with the majority’s conclusion that

the evidence was insufficient to sustain Morris’ two convictions

for felonious child neglect in violation of Code § 18.2-371.1(B)

and accordingly would affirm the judgment of the Court of

Appeals.

When the sufficiency of the evidence is challenged on

appeal, this Court is required to view the evidence in the light

most favorable to the prevailing party at trial, in this case

the Commonwealth, and accord to that party the benefit of all

reasonable inferences fairly deducible from the evidence. Viney

v. Commonwealth, 269 Va. 296, 299, 609 S.E.2d 26, 28 (2005);

Jackson v. Commonwealth, 267 Va. 178, 204, 590 S.E.2d 520, 535

(2004); Zimmerman v. Commonwealth, 266 Va. 384, 386, 585 S.E.2d

538, 539 (2003). “Additionally, this Court has the duty to

review the evidence that tends to support the conviction . . .

.” Correll v. Commonwealth, 269 Va. 3, 12, 607 S.E.2d 119, 124

(2005). “The judgment of the trial court is presumed to be

correct and will be reversed only upon a showing that it is

‘plainly wrong or without evidence to support it.’” Viney, 269

Va. at 299, 609 S.E.2d at 28 (quoting Code § 8.01-680).

Although the majority cites these well-established principles of

12
appellate review and acknowledges that this Court cannot

substitute its judgment for that of the fact finder, I believe

that the majority fails to consider the evidence that supports

the convictions in the light most favorable to the Commonwealth

but, instead, makes its own credibility determinations and

substitutes its view of the facts for the judgment of the trial

court.

The majority contrasts the facts in the case at bar with

those in Barrett v. Commonwealth, 268 Va. 170, 597 S.E.2d 104

(2004), by focusing on Barrett’s knowledge of her two children’s

prior behavior that should have forewarned Barrett about the

likelihood of injury to one or both of her children and her

state of fatigue resulting from intoxication on the evening

before the incident at issue in that case. The majority asserts

that, unlike Barrett, “Morris had no reason to believe her

children would be in any danger while she was asleep.” Viewing

the evidence in the light most favorable to the Commonwealth, I

disagree.

Morris was indeed on notice about her children’s propensity

to wander from the trailer without her knowledge or any adult

supervision. Morris admitted to one of the police officers that

a similar episode had occurred “a few days prior to [the

incident at issue], [and] that somebody in the trailer park had

to return [the children] home.” Despite this notice, Morris

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fell into such a coma-like sleep during the daytime that she

could not be aroused for a period of more than two hours by

repeated banging on her door and a barking dog. She was

sleeping so soundly that she did not realize her children had

gotten out of the bed, unlocked the chain lock on the door and

the doorknob lock, both of which Morris allegedly had locked,

and left the trailer. She did not hear the police officer’s

entry into the trailer or respond to his calls announcing he was

a police officer. Even more disturbing is the fact Morris was

in such a deep sleep that she did not hear her younger child

calling for “mommy” when he ran back into the trailer.

Despite the overwhelming evidence about Morris’ coma-like

sleep on the day in question, the majority concludes there was

no evidence presented to show that Morris was under the

influence of drugs or alcohol when her children wandered out of

the trailer. At trial, Morris acknowledged, however, that she

had used cocaine about three days prior to the incident, and

when asked if she has a significant substance abuse problem,

Morris answered, “I do.” Furthermore, when questioned about the

nature of her substance abuse problem, she replied, “I was using

cocaine.” Yet, the majority concludes that “[i]t is mere

speculation . . . to say that Morris’ sleep was likely drug or

alcohol induced.”

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 The majority apparently chooses to believe Morris’

testimony denying that she was under the influence of drugs on

the day in question despite the fact Morris lied about being the

children’s mother. When the police officers questioned Morris

at her trailer, she initially identified herself as Billie Jean

Lloyd and stated that the children were her nephews. After

Morris’ mother arrived at the trailer, Morris told the police

that the children were hers but still used the name, Billie Jean

Lloyd. Only after further conversations with her mother did

Morris admit her true identity. Morris testified at trial that

she gave false information to the police officers because she

thought there was an outstanding warrant for her arrest.

Given Morris’ greater concern about an arrest warrant than

the condition of her children or their whereabouts, and her

lying to conceal her identity, the fact finder was entitled to

give little weight to Morris’ testimony. In fact, the trial

court noted her lack of credibility, evidenced by her denying

that she was the children’s mother. “The factfinder need not

believe an accused’s explanation and, if that explanation is not

believed, may infer that the accused is lying to conceal [her]

guilt.” Phan v. Commonwealth, 258 Va. 506, 511, 521 S.E.2d 282,

284 (1999). Moreover, this Court is not free to re-weigh the

evidence. See Virginian Ry. Co. v. Bell, 118 Va. 492, 495, 87

S.E. 570, 572 (1916)(appellate court “cannot consider the weight

15
of the evidence or the credibility of the witnesses”). “We must

review the evidence in this case not with respect to what action

we might have taken, but as to whether the evidence justified

the trial judge, as a trier of the facts, in finding defendant

guilty.” Avent v. Commonwealth, 209 Va. 474, 477, 164 S.E.2d

655, 657 (1968).

The saga does not end here. The older child had certain

disabilities that caused him to be unable to respond to the

police officer’s inquiries about where he lived. The child was

not even able to give his name to the officer. Furthermore, the

condition of the younger child, in particular his state of

nakedness with dried fecal matter on his legs and chafing on his

posterior, demonstrates that the child had been left unattended

for a significant period of time. In fact, because of the

child’s condition and the dangerous automobile parts around

which the children were playing, the family support worker from

the elementary school was so concerned that he called child

protective services and then “9-1-1.”

As this Court stated in Barrett, we must view “all the

circumstances preceding and surrounding” the incident on the day

in question. 268 at 184, 597 S.E.2d at 111. In light of the

older child’s disabilities, the young age of the other child,

Morris’ knowledge of the prior incident when her children

wandered from the trailer, and her coma-like sleep on the day in

16
question, I conclude that Morris “created a situation

‘reasonably calculated to produce injury, or which [made] it not

improbable that injury [would] be occasioned, and [she knew], or

[was] charged with the knowledge of, the probable results of

[her] acts.” Id. at 184, 597 S.E.2d at 111 (quoting Cable v.

Commonwealth, 243 Va. 236, 240, 415 S.E.2d 218, 220 (1992)).

Thus, I reach the same conclusion as this Court did in Barrett.

The fact finder could have reasonably concluded that Morris’

“conduct was willful and accompanied by acts of omission of a

wanton nature showing a reckless or indifferent disregard of the

life and health of both children.” Id. at 185, 597 S.E.2d at

112.

For these reasons, I respectfully dissent and would affirm

the judgment of the Court of Appeals.

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