Barrett v. Com.

Present: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ., and Carrico, S.J.

AMY JEAN BARRETT, A/K/A
AMY JEAN CLARK
OPINION BY
v. Record No. 032252 SENIOR JUSTICE HARRY L. CARRICO

June 10, 2004
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In a jury trial held in the Circuit Court of York County,

Amy Jean Barrett (Barrett)1 was convicted pursuant to Code

§ 18.2-371.1(A) of a Class 4 felony for the criminal neglect

of her ten-month-old son, Joshua, resulting in his death. She

was sentenced to serve two years in the penitentiary and

ordered to pay a fine of $1,000.00. Barrett was also

convicted pursuant to former Code § 18.2-371.1(B)2 of a Class 6

felony for the criminal neglect of her daughter, Patricia,

aged two years and ten months. Barrett was assessed a fine of

$2,500.00 for this conviction.3

1
Apparently, Barrett married and became Amy Jean Clark at
some time during these proceedings, but she was indicted under
the name of Barrett and we will refer to her by that name.
2
Code § 18.2-371.1(B) was amended in 2003. Paragraph B of
the former statute, under which Barrett was indicted, is now
set forth in identical language as paragraph (B)(1) in the
amended statute. We will use the current numbering in this
opinion.
3
Barrett was also charged with involuntary manslaughter
in the death of Joshua, but the jury found her not guilty of
that charge.
 In a published opinion, the Court of Appeals affirmed

both convictions. Barrett (Clark) v. Commonwealth, 41 Va.

App. 377, 585 S.E.2d 355 (2003). We awarded Barrett this

appeal to consider the two questions presented by her

assignments of error, (1) whether the trial court erred in

refusing to quash the indictment for Barrett’s neglect of

Patricia on the ground the indictment was the result of

prosecutorial vindictiveness, and (2) whether the trial court

erred in finding the evidence sufficient to support Barrett’s

convictions.

MOTION TO QUASH

Background

With respect to the death of Joshua, Barrett was indicted

on September 15, 1998, for felony child neglect under Code

§ 18.2-371.1(A) and for felony murder under Code § 18.2-33.

In a jury trial held in February 1999, Barrett was convicted

of both offenses. However, on June 27, 2000, the Court of

Appeals of Virginia reversed the convictions. Barrett v.

Commonwealth, 32 Va. App. 693, 530 S.E.2d 437 (2000). The

court held that, although the evidence was sufficient to

support the conviction for felony child neglect under Code

§ 18.2-371.1(A), the trial court erred in refusing to instruct

the jury on the meaning of the term “willful,” as used in that

Code section. 32 Va. App. at 699, 530 S.E.2d at 440. The

court also held that the evidence was insufficient to sustain
2
the felony murder conviction. The case was remanded for

further proceedings, “if the Commonwealth be so advised.” Id.

at 701, 530 S.E.2d at 441.

When the case returned to the trial court, the

Commonwealth moved to amend the charge for the felony murder

of Joshua to a charge of involuntary manslaughter. On April

3, 2001, without objection from Barrett, the trial court

entered an order directing the amendment.

During plea negotiations that followed, the Commonwealth

informed Barrett that it intended to proceed with a trial on

both charges involving Joshua, i.e., manslaughter and felony

child neglect under Code § 18.2-371.1(A). The Commonwealth

also told Barrett that, if she refused to plead guilty to

those charges, it would seek an indictment for felony child

neglect of Patricia under Code § 18.2-371.1(B)(1). The plea

negotiations failed, Barrett did not plead guilty, and, on May

22, 2001, the Commonwealth sought and received an indictment

charging Barrett with felony child neglect of Patricia.

Barrett then filed a motion to quash the new indictment.

In a hearing on the motion, Barrett asserted that the

Commonwealth was pursuing the new charge as “punishment to

[her] for having . . . successfully appealed her initial

charges.” She argued that the Commonwealth had the

opportunity to bring the charge involving Patricia prior to

trial on the initial charges yet waited for almost eleven
3
months after the Court of Appeals had remanded the case, that

the new indictment was based upon the same “facts and

incidents” presented at the first trial, and that the new

charge “carries a potential additional sentence to which

[Barrett was] being subjected.” All this, Barrett maintained,

raised a presumption of prosecutorial vindictiveness or

created “the appearance of vindictiveness,” resulting in a

violation of her Fifth Amendment right of due process. Thus,

Barrett concluded, the trial court should quash the new

indictment “based on prosecutorial vindictiveness or the

appearance of vindictiveness.” Finding “no presumption of

vindictiveness, nor . . . any actual vindictiveness,” the

trial court denied Barrett’s motion to quash.

Discussion

On appeal, Barrett repeats her argument that her due

process rights “were violated because the Commonwealth was

permitted to bring a new indictment based on the same facts,

transaction, or occurrence” and, hence, that she “is being

punished for exercising her right to appeal the first set of

convictions.”4 She states that the issue in this case “seems

to be a matter of first impression for this Court as no

appellate decision has opined whether the Commonwealth can

4
Barrett does not claim that her prosecution for the
neglect of Patricia constituted double jeopardy but relies
solely on her assertion that the prosecution was vindictive
and thus violative of her right of due process.
4
indict a defendant on a wholly new charge following a

successful appeal.”

Barrett cites three decisions of the Supreme Court of the

United States on the subject at hand: North Carolina v.

Pearce, 395 U.S. 711 (1969); Blackledge v. Perry, 417 U.S. 21

(1974); and United States v. Goodwin, 457 U.S. 368 (1982).

In Pearce, a defendant was originally convicted of

assault with intent to commit rape and sentenced to serve

eight to ten years. His conviction was reversed on appeal,

and, upon retrial of the rape charge, the defendant was

convicted and sentenced to a term of twelve to fifteen years,

which, when added to the time he had already spent in prison,

amounted to a longer sentence than originally imposed.

In a federal habeas corpus proceeding, the district court

held that the longer sentence imposed upon retrial was

unconstitutional and void. The United States Court of Appeals

for the Fourth Circuit affirmed the district court’s holding.

The Supreme Court affirmed the Fourth Circuit, stating that

the “imposition of a penalty upon the defendant for having

successfully pursued a statutory right of appeal or collateral

remedy would be . . . a violation of due process of law.” 395

U.S. at 724.

In Perry, the defendant was charged in a state district

court with the misdemeanor of assault with a deadly weapon.

Upon conviction, for which he received a six-month sentence,
5
he appealed to the superior court, where he had the right to a

trial de novo. While the appeal was pending, the prosecutor

obtained an indictment charging a felony for the same conduct,

to which the defendant plead guilty and for which he was

sentenced to a term of five to seven years.

In a federal habeas corpus proceeding, the district court

granted the defendant a writ, and the United States Court of

Appeals for the Fourth Circuit affirmed. In affirming the

Fourth Circuit, the Supreme Court stated that “[a] person

convicted of an offense is entitled to pursue his statutory

right to a trial de novo, without apprehension that the State

will retaliate by substituting a more serious charge for the

original one, thus subjecting him to a significantly increased

potential period of incarceration.” 417 U.S. at 28.

In Goodwin, the defendant was originally charged in

federal district court with several misdemeanors, including

assault of a police officer. He expressed an interest in plea

bargaining but decided not to plead guilty and requested a

trial by jury. Then, while those charges were still pending,

he was indicted and thereafter convicted by the district court

on a felony charge of forcibly assaulting a police officer

arising out of the same incident. The court denied the

defendant’s motion to set the verdict aside on the ground of

prosecutorial vindictiveness. The United States Court of

6
Appeals for the Fourth Circuit reversed, finding a legal

presumption of prosecutorial vindictiveness.

Although Barrett cites Goodwin as though it supports her

argument, she does not tell us that the Supreme Court, while

saluting the rule that “[t]o punish a person because he has

done what the law plainly allows him to do is a due process

violation,” 457 U.S. at 372, actually reversed the Fourth

Circuit. The Supreme Court held that a presumption of

prosecutorial vindictiveness was not warranted, id. at 382,

and that “[a]bsent a presumption of vindictiveness, no due

process violation has been established,” id. at 384. The

Supreme Court also stated that

the mere fact that a defendant refuses to plead guilty
and forces the government to prove its case is
insufficient to warrant a presumption that subsequent
changes in the charging decision are unjustified.

457 U.S. at 382-83. Goodwin, therefore, actually supports the

Commonwealth’s position; it certainly does not require the

finding of a presumption of vindictiveness in Barrett’s favor.

Barrett also cites three decisions by Circuit Courts of

Appeals: United States v. Fiel, 35 F.3d 997 (4th Cir. 1994)

cert. denied, 513 U.S. 1177 (1995); United States v. Williams,

47 F.3d 658 (4th Cir. 1995); and United States v. Whaley, 830

F.2d 1469 (7th Cir. 1987), cert. denied, 486 U.S. 1009 (1988).

Again, Barrett cites these cases as though they support her

argument and, again, she does not tell us the outcome of the

7
cases. However, while all three of the cases involved

prosecutions for offenses more serious than originally

charged, in not one did the court apply a presumption of

vindictiveness.5 So the cases do not support the finding of a

presumption of vindictiveness in Barrett’s favor. To the

contrary, the cases support the Commonwealth’s position.

Hence, in only two of the cases cited above, Pearce and

Perry, was a presumption of vindictiveness applied, and they

are clearly distinguishable from the present case. In Pearce

and Perry, the enhanced charge or punishment was directly

related to the reversal on appeal of the initial charge.

Here, there is no such relationship. The harsher punishment

imposed in this case resulted not from the reversal on appeal

of the offense involving Joshua, but from a trial for a

separate offense, separate because it involved a different

victim in the person of Patricia. It is merely coincidental,

therefore, that the facts other than the identity of the

victim might provide proof of Barrett’s neglect of both Joshua

and Patricia. And it is immaterial that the offense against

Patricia could have been initiated at an earlier time. As the

Court of Appeals stated in its written opinion in this case:

We note at the outset that “[i]t is well established that
the choice of offenses for which a criminal defendant
will be charged is within the discretion of the
Commonwealth’s Attorney.” Kauffmann v. Commonwealth, 8

5
Nor did any of the courts make a finding of actual
vindictiveness.
8
 Va. App. 400, 410, 382 S.E.2d 279, 284 (1989). Indeed,
“the institution of criminal charges, as well as their
order and timing, are matters of prosecutorial
discretion.” Bradshaw v. Commonwealth, 228 Va. 484, 492,
323 S.E.2d 567, 572 (1984).

41 Va. App. at 391, 585 S.E.2d at 362.

Here, Barrett, as did the defendant in Goodwin, declined

to plead guilty to the original charges after plea

negotiations failed and put the Commonwealth to proof of its

case. What was said in Goodwin bears repeating here:

[T]he mere fact that a defendant refuses to plead guilty
and forces the government to prove its case is
insufficient to warrant a presumption that subsequent
changes in the charging decision are unjustified.

457 U.S. at 382-83.

Under the circumstances of this case, we are of opinion

that a presumption of vindictiveness is not warranted. And,

as in Goodwin, “[a]bsent a presumption of vindictiveness, no

due process violation has been established.” 457 U.S. at 384.

In such absence, the burden was upon Barrett to establish

actual vindictiveness, and we conclude that she failed to

carry her burden. All Barrett offered in her attempt to show

actual vindictiveness were allegedly contradictory statements

made by the Commonwealth during argument on Barrett’s motion

to dismiss.

In responding to Barrett’s argument that the charge

involving the neglect of Patricia should have been pursued

during the first trial, Leslie A. Siman-Tov, an Assistant

9
Commonwealth’s Attorney, said the prosecution was “focusing so

much on the felony homicide and neglect of Joshua” that it

failed to consider “there should have been another charge for

neglect of Patricia.” Ms. Siman-Tov also said it was not

until the prosecution reviewed the Court of Appeals’ opinion

reversing Barrett’s initial convictions that it was realized

Barrett should also have been charged with the neglect of

Patricia.

Then, when the Commonwealth’s Attorney, Eileen M.

Addison, joined the argument, she stated that two or three

weeks prior to the initial trial “there was some discussion

with defense counsel at that time about the possibility of

this other charge of neglect of Patricia” but that Ms. Siman-

Tov was not “involved in that conversation.” Ms. Addison also

said that the neglect of Patricia “was not charged at that

time because there was no time to add an additional charge

between the time that we thought of it and the time that [the

initial charge] was set for trial.”

Barrett says she “pointed out [in her argument below]

that the prosecutors contradicted themselves by first claiming

they did not think about the charge [involving Patricia] and

then claiming that they ran out of time to get the

indictment.” However, if this indeed constitutes a

contradiction, it is of such trifling importance that it does

not deserve further comment beyond stating that it does not
10
support a finding of actual vindictiveness or an abuse of

discretion on the part of the prosecutor.

Accordingly, we conclude that the trial court did not err

in denying Barrett’s motion to quash the indictment charging

the neglect of Patricia.

SUFFICIENCY OF THE EVIDENCE

Background

In accordance with familiar principles, we will state the

evidence and all reasonable inferences fairly deducible

therefrom in the light most favorable to the Commonwealth, the

prevailing party at trial. Jackson v. Commonwealth, 267 Va.

178, 204, 590 S.E.2d 520, 535 (2004). And we will affirm the

judgment of the trial court unless plainly wrong or without

evidence to support it. Id.

The evidence shows that on April 17, 1998, Barrett and

her two children were living with her boyfriend, Craig

Griffith, in his apartment in York County. After Barrett put

the children to bed that evening, she “went out,” leaving the

children in Griffith’s care, which she did three or four times

each month. She arrived at a local bar at 8:00 or 8:30 p.m.

and had three beers during the course of the evening. She

stayed at the bar until about 3:30 a.m. and then went to the

home of the bartender, where she had one or two more beers.

The next morning, Griffith woke up about 5:00 a.m. and

found that Barrett had not yet returned home. Griffith took a
11
shower preparatory to going to work. He turned off the water

when he finished his shower, but, because of an ongoing

problem with the plumbing, approximately two to three inches

of water remained in the tub. Usually, the water drained out

in five to ten minutes but “[s]ometimes it could be worse than

others.”

Barrett returned home about 6:00 a.m. Griffith “wasn’t

happy” with her, and he left immediately for work. He

returned home about noon and, upon entering the apartment,

found “[i]t was a wreck . . . [it] was just tore up.”

Patricia was “standing there with make-up on and no clothes.”

The TV was on but “playing static.” Barrett was asleep on the

couch and did not wake up when Griffith came in.

Griffith asked Patricia where Joshua was. She said

“[h]e’s in there,” pointing to the entryway leading to the

bedrooms and the bathroom. Joshua was not in either bedroom,

so Griffith went into the bathroom and saw “a blanket over the

top of the bathtub.” When he removed the blanket, he saw in

the tub a “lot of junk, toys, food, [and] a laundry basket

upside down.” He picked up the laundry basket and found

Joshua underneath it. He picked Joshua up and saw that he was

blue and cold. He found that cold water was running into the

bathtub, and “potato chips were clogging the drain.” Griffith

tried to turn the water off but was unsuccessful, the faucet

“just kept on spinning around.”
12
 Griffith picked Joshua up and “screamed for [Barrett],”

saying “she had killed her kid.” She awoke and called "911."

An ambulance arrived and transported Joshua to a hospital,

where he was pronounced dead. An autopsy disclosed that

drowning was the cause of death. The autopsy also revealed

there were thirteen fresh bruises on Joshua’s forehead and the

“top sides of his head.”

The blanket Griffith found in the bathtub came from his

bed and the laundry basket came from the bedroom occupied by

Barrett and Griffith. The toys that were found in the bathtub

were usually kept in Patricia’s room.

Griffith testified that, approximately three months

before the tragic events of April 17-18, 1998, Joshua’s crib

was moved into the bedroom occupied by Griffith and Barrett

because Patricia had put “toys and stuff” on top of Joshua.

Griffith testified further that Patricia was jealous of Joshua

and that he, Griffith, had observed her covering Joshua with a

blanket on one occasion and pushing him down in several other

instances, that Barrett was present when this occurred, and

that he had warned her more than once she “needed to keep her

eye on them.”

Jane M. Steele, an emergency room nurse who was present

when a doctor told Barrett Joshua had died, testified that

Barrett was “upset and crying [and] blamed a sibling, another

child,” meaning Patricia, for Joshua’s death but then “turned
13
and just blamed herself.” Nurse Steele said that Patricia was

present at the time, that Barrett was “very harsh toward the

child,” and that Barrett told Patricia, “you killed him.”

Sergeant William Fordham of the Poquoson Police

Department testified that he arrived at the hospital after

Joshua was pronounced dead and asked Barrett for a statement.

Barrett told him she was taking a nap on the couch about ll:00

or 11:30 on the morning in question and had placed Joshua on

the floor next to the couch and given him a bottle. Patricia

was asleep in her room. Barrett said there was something

wrong with Patricia, that she constantly abused Joshua, tying

scarves around his neck, pulling him around the apartment, and

slamming her bedroom door in his face when he tried to crawl

into the room. Barrett stated that Patricia had “tried in the

past” to kill Joshua “but today she had been successful.”

Barrett told Fordham “she didn’t want to even look at or be in

the same room with Patricia.”

Fordham was also present when Barrett was interviewed by

two social service workers on the day Joshua died. Barrett

said her son was “f----- dead and [Patricia] killed him.”

Then Barrett said: “It’s my fault. I shouldn’t have taken a

nap.”

The Commonwealth also introduced into evidence a

videotape that was made of an interview of Barrett by a social

service worker about five days after Joshua’s death. Barrett
14
said Patricia was jealous of Joshua from the beginning; on the

day she brought Joshua home from the hospital after his birth,

Patricia, out of jealousy, threw toys on top of him in his

crib. Barrett attributed much of the bruising found on

Joshua’s head in the autopsy to Patricia, including an

occasion when she hit him in the head with a broom for no

reason.

Barrett said the bathtub was Patricia’s favorite place to

play and she allowed her to sit in the tub with her toys as

long as 45 minutes at a time; Patricia knew how to turn on the

water and would turn it on to indicate she wanted to take a

bath. Barrett agreed she could hear water running from the

other parts of the apartment.

Barrett admitted that, shortly before Joshua’s death, she

had left Patricia unattended in the bathtub and that Patricia

had pulled Joshua into the tub head first. This terrified

Barrett. When asked whether Patricia could lift Joshua,

Barrett said she definitely could, she had seen Patricia lift

Joshua.

Barrett acknowledged to the social service worker that

she had gone out the night before Joshua’s death and had drunk

about a six-pack of beer. She said she was not completely

intoxicated but conceded that she could have been arrested for

driving under the influence had she been stopped by the police

on the way home. She said that she was extremely tired when
15
she got home, that she still had alcohol in her system that

morning, and that she had taken some sinus medication,

although it was the non-drowsy kind.

After Barrett returned home, she gave Joshua a bottle and

sat him on the floor next to the couch. She sent Patricia to

her room, although it was well before Patricia’s nap time.

Barrett then went to sleep on the couch. She did not hear

water running in the bathroom and did not wake up until she

heard Griffith’s screams. She conceded that she had failed to

supervise the children that morning. She said that she had to

be sleeping quite soundly and that, had she not fallen asleep,

Joshua would still be alive.

At the conclusion of the Commonwealth’s case in chief,

Barrett made a motion to strike the evidence. In argument on

the motion, Barrett stated that foreseeability was “really the

crux of this case” and that the Commonwealth had “not put on

evidence that is sufficient to indicate that Mrs. Barrett

could have or should have anticipated the probable result of

Joshua drowning in a tub.” Barrett also argued that the level

of negligence the Commonwealth must prove was “not simple

negligence” or “even what’s called gross negligence,” but,

rather, “a merciless or inhumane disregard or an arrogant

recklessness toward the rights or feelings of others.”

The trial court denied the motion to strike. Barrett

then rested her case and renewed the motion. The trial court
16
denied the renewed motion, stating that “[i]t’s a question of

fact for the jury.”

Discussion

Code § 18.2-371.1(A),6 under which Barrett was indicted

for the neglect of Joshua, proscribes a “willful act or

omission or refusal to provide any necessary care for [a]

child’s health.” Code § 18.2-371.1(B)(1),7 under which Barrett

was prosecuted for the neglect of Patricia, proscribes a

“willful act or omission in the care” of a child that is “so

gross, wanton and culpable as to show a reckless disregard for

human life.”

The word [willful] often denotes an act which is
intentional, or knowing, or voluntary, as distinguished
from accidental. But when used in a criminal statute it
generally means an act done with a bad purpose; without
justifiable excuse; stubbornly, obstinately,
perversely[.] The word is also employed to characterize
a thing done without ground for believing it is lawful.

United States v. Murdock, 290 U.S. 389, 394 (1933) (citations

omitted). The term “willful act” imports knowledge and

6
Code § 18.2-371.1(A) provides in pertinent part as follows:
A. Any parent, guardian, or other person responsible for
the care of a child under the age of 18 who by willful
act or omission or refusal to provide any necessary care
for the child’s health causes or permits serious injury
to the life or health of such child shall be guilty of a
Class 4 felony.
7
Code § 18.2-371.1(B)(1) provides as follows:
B. 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.
17
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.

[T]he term “gross, wanton, and culpable” describes
conduct. 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 wilful 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.

Cable v. Commonwealth, 243 Va. 236, 240, 415 S.E.2d 218, 220

(1992).

Barrett argues that the evidence, viewed in the light

most favorable to the Commonwealth, “only shows ordinary

negligence, at best, and does not show a reckless disregard

for Patricia’s life.” Barrett says that when she fell asleep,

“the atmosphere was peaceful and serene, Patricia was in her

room playing, and Joshua was drinking a bottle while sitting

on the floor next to [Barrett].” Under these circumstances,

Barrett asserts, her “act of falling asleep cannot support, as

a matter of law, a conviction for felony neglect because there

was no evidence of intent with a bad purpose.”

Barrett also argues that “[t]he evidence failed to prove,

beyond a reasonable doubt, that [Barrett] could reasonably
18
foresee that her daughter would somehow cause the death of her

son in a tub which was holding about two inches of water.”

Barrett concludes that “[w]hile [her] falling asleep was not

without remorse and blame, it does not rise to the level of a

willful act or omission committed with a bad intent, a bad

purpose, or a conscious disregard for human life.”

We disagree with Barrett. She would have us focus on her

“act of falling asleep” in a vacuum when it must be viewed in

light of all the circumstances preceding and surrounding the

tragic events of April 17-18, 1998. When so viewed, the

circumstances show beyond all reasonable doubt that Barrett

was guilty of more than the “ordinary negligence” she concedes

she was guilty of. She was fully aware of Patricia’s

propensity for attempting to injure Joshua but recklessly

disregarded those warning symptoms in neglect of her duty to

protect both children. Coupling this with the evidence of her

conduct on her “night out” and her resulting condition the

next morning, she 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.”

Cable, 243 Va. at 240, 415 S.E.2d at 220.

Barrett knew from “the beginning” that Patricia was

jealous of Joshua and that Patricia constantly abused him,

covering him with a blanket, pushing him down, throwing toys
19
on top of him in his crib, tying scarves around his neck,

pulling him around the apartment, slamming Barrett’s bedroom

door in his face when he tried to crawl into the room, and

hitting him in the head with a broom. Barrett said that

Patricia had tried in the past to kill Joshua, and, upon

learning Joshua was dead, Barrett immediately said Patricia

intentionally killed him.

Barrett also knew that the bathtub was Patricia’s

favorite place to play, and she allowed Patricia to sit in the

tub with her toys for extended periods of time. Barrett knew

that Patricia could turn on the water, and Barrett

acknowledged that she could hear water running in the bathroom

from other parts of the home.

Furthermore, and of the utmost significance, Barrett

admitted that, shortly before Joshua’s death, she had left

Patricia unattended in the bathtub and Patricia had pulled

Joshua into the tub head first. Barrett had seen Patricia

lift Joshua before, and this should have forewarned Barrett

that Patricia could get into the tub by herself and pull

Joshua in after her.

Yet, Barrett “went out” drinking beer the evening before

the tragic incident and spent the entire night away from home,

even remaining away and drinking beer after the beer parlor

had closed. She drank enough by her own admission to justify

20
her arrest for driving under the influence had she been

stopped by the police on her way home the next morning.

Barrett sent Patricia to her room even though it was well

before nap time, gave Joshua a bottle and placed him on the

floor beside the couch, and then, still intoxicated as well as

tired, proceeded to go to sleep on the couch, knowing she was

the only one left in the apartment to supervise the children.

From this, the jury could have concluded that Barrett’s

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.

Barrett argues, however, that “Patricia was never in

danger; there was no foreseeable risk of harm to Patricia [and

no] evidence demonstrated any known or suspected danger based

on any previous events or any other evidence which would even

suggest that injury to Patricia was a likely result of

[Barrett’s] action or inaction. In fact, Patricia was not

injured, nor was she in jeopardy of being injured.” Barrett

also argues that “the evidence failed to prove, beyond a

reasonable doubt, that [she] could reasonably foresee that her

daughter would somehow cause the death of Joshua in a tub

which was holding about two inches of water.”

This represents a very narrow view of the evidence. What

we have here is the story of a disaster just waiting to

happen, a disaster any reasonable person would consider likely
21
to result in injury to Patricia herself or to Joshua, or both.

Barrett owed a duty to Joshua to protect him from injury by

Patricia and a duty to Patricia to prevent her from injuring

Joshua or being injured herself. Yet, Barrett failed

miserably in her duty. Indeed, Barrett admitted “a lack of

supervision” over the children on the occasion in question.

Barrett is correct in saying Patricia was not injured but

incorrect in saying she was not in jeopardy of being injured.

Code § 18.2-371.1(B)(1) does not require a showing of actual

injury or death. “[S]ubsection (B)(1) does not limit the

prohibited conduct to acts and omissions that subject a child

to an actual risk of death, but proscribes conduct that is so

‘gross, wanton and culpable’ as to demonstrate a ‘reckless

disregard’ for the child’s life.” Commonwealth v. Duncan, 267

Va. 377, 385, 593 S.E.2d 210, 215 (2004). And “such ‘reckless

disregard’ can be shown by conduct that subjects a child to a

substantial risk of serious injury, as well as to a risk of

death, because exposure to either type of risk can endanger

the child’s life.” Id.

The evidence clearly showed conduct by Barrett that

subjected Patricia to a substantial risk of serious injury or

death. It might well have been Patricia’s rather than

Joshua’s cold and blue body Griffith found under the laundry

basket on that fateful morning.

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 Accordingly, we find the evidence sufficient to support

Barrett’s conviction for the criminal neglect of both Patricia

and Joshua, and we will affirm the judgment of the Court of

Appeals.8

Affirmed.

8
Barrett maintains that the present case is “strikingly
similar” to Ellis v. Commonwealth, 29 Va. App. 548, 513 S.E.2d
453 (1999), where the Court of Appeals reversed the conviction
of a mother who failed to turn off the gas burner in her
apartment and then left her two children alone to walk some 30
to 75 yards away to visit a friend. A fire ensued, and the
two children were injured. However, Ellis is distinguishable.
Ms. Ellis’s neglect was inadvertent, id. at 557, 513 S.E.2d at
458, Barrett’s was willful.
23