Commonwealth v. Duncan

PRESENT: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ., and Compton, S.J.

COMMONWEALTH OF VIRGINIA

v. Record No. 031036 OPINION BY JUSTICE BARBARA MILANO KEENAN
March 5, 2004
CARLTON WENDELL DUNCAN

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we consider whether the Court of Appeals

erred in reversing a circuit court's holding that a defendant's

acts and omissions in the care of his six-month-old son were "so

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

human life" under former Code § 18.2-371.1.*

Carlton W. Duncan was indicted for the criminal abuse and

neglect of his son, Carlton W. Duncan, II (Carlton), in

violation of what is now Code § 18.2-371.1(B)(1), which states:

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.

Duncan was convicted of the offense after a bench trial in the

Circuit Court of the City of Williamsburg and James City County.

The circuit court sentenced Duncan to a term of five years'

imprisonment, with four years suspended.

*
Code § 18.2-371.1 was amended in 2003. Paragraph B of the
former statute, under which Duncan was indicted, is now set
 Duncan appealed from his conviction to the Court of

Appeals. A panel of that Court reversed the circuit court's

judgment and dismissed the indictment in an opinion that was

withdrawn when the Court granted the Commonwealth's petition for

a rehearing en banc.

On rehearing en banc, the Court reversed Duncan's

conviction and dismissed the indictment in an unpublished

memorandum opinion, Duncan v. Commonwealth, Record No. 1060-01-1

(April 8, 2003). The Court held that the "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." The Commonwealth appeals from the

Court of Appeals' judgment.

We will state the evidence in the light most favorable to

the Commonwealth, the prevailing party in the circuit court, and

will accord the Commonwealth the benefit of all reasonable

inferences fairly deducible from that evidence. Zimmerman v.

Commonwealth, 266 Va. 384, 386, 585 S.E.2d 538, 539 (2003);

Murphy v. Commonwealth, 264 Va. 568, 570, 570 S.E.2d 836, 837

(2002); Commonwealth v. Hill, 264 Va. 541, 543, 570 S.E.2d 805,

806 (2002). The evidence showed that Jennifer Dansby, Eliza L.

forth in identical language as paragraph (B)(1) in the amended
statute. We will use the current numbering in this opinion.

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Nemo, and Michelle Cribbs shared a residence in James City

County. On June 11, 2000, the three housemates were introduced

to Duncan and his six-month-old son, Carlton, through a mutual

acquaintance.

The next day, about 3:30 p.m., Dansby returned home from

work to find Cribbs and some other friends at the house.

Although Carlton also was there, Duncan was not present. Dansby

and the other adults took turns holding Carlton, but they did

not feed him because there was no baby food or formula in the

house.

Nemo arrived at the house later that night and joined the

other adults in caring for Carlton. An "impromptu party" soon

started as several more friends arrived and began drinking beer

and using illegal drugs.

About 10:30 p.m., Duncan arrived at the house with a small

bag of marijuana. Duncan's eyes appeared to be "glazed over,"

and the whites of his eyes were "yellowed" in appearance. After

his arrival, Duncan did not feed Carlton or "care for the baby

in any way," but began drinking beer.

Around midnight, Carlton became "fussy" and began to cry

loudly. Duncan announced that he would "take care of the

problem," and he took Carlton into a bedroom.

Nemo was concerned about Carlton's welfare because she

perceived a negative tone in Duncan's voice when he said that he

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would "take care of the problem." After she entered the bedroom

where Duncan and Carlton were located, Duncan went to the

kitchen.

Dansby, who was seated in the living room, saw Duncan enter

the kitchen. Dansby heard the refrigerator door being opened

and closed, which she thought was "odd" because the refrigerator

only contained beer and "wine coolers." About five minutes

later, Dansby saw Duncan leaving the kitchen carrying a baby

bottle.

Duncan returned to the bedroom and handed the baby bottle

to Nemo. Duncan then left the room and joined some people on

the porch.

Nemo began feeding the contents of the baby bottle to

Carlton and returned with him to the living room. As Nemo, who

was still holding Carlton, sat down on a couch, she noticed an

unusual odor coming from the bottle. Both Nemo and Dansby, who

were sitting together on the couch, thought that the odor

"smelled like alcohol." They also observed that the liquid in

the bottle was a "milky pinkish color." A friend tasted the

liquid inside the bottle and concluded that the liquid contained

alcohol.

Dansby went into the kitchen and opened the refrigerator

door. She saw that a bottle of "wine cooler" was missing from

the refrigerator, and that an open bottle of "wine cooler" had

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been placed behind some "bags of trash" on the kitchen counter

next to the refrigerator. The liquid inside the "wine cooler"

bottle was pink in color and "about three inches" of liquid had

been removed from the bottle. Dansby became more concerned,

telephoned the police, and placed the baby bottle in a safe

location until the police arrived.

Lieutenant Stout and Officer P.A. Nacastro of the James

City County Police Department arrived at the house in response

to Dansby's telephone call. Lieutenant Stout opened the baby

bottle and observed that the liquid inside the bottle was a

"milky color" and "smelled like an alcoholic beverage of some

type." Officer Nacastro observed that the baby bottle contained

a "liquid substance" that was of a "whitish, . . . pinkish

color," and that the "wine cooler" bottle contained a liquid

that was "pinkish" in color.

According to Officer Nacastro, Duncan's eyes were "very

bloodshot," his speech was "slightly mumbled," and "[t]here was

an odor of intoxicant about his person." The police officers

placed Duncan under arrest and seized both the baby bottle and

the bottle of "wine cooler."

A certificate of analysis admitted into evidence indicated

that the baby bottle contained a "[c]loudy, pink-ish colored

liquid" that had an alcohol content of 2.8% ethyl alcohol by

volume. The certificate also reflected test results from an

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examination of the contents of a 12-ounce bottle labeled

"Seagram's Wild Berries Flavored Cooler." These test results

showed that the bottle of "wine cooler" contained a "[c]lear,

pink liquid" that had an alcohol content of 3.2% ethyl alcohol

by volume.

Duncan also testified at the trial. He maintained that

Carlton was with him during the entire day of June 12th, 2000,

and that earlier in the day, he had fed Carlton some cereal.

Duncan testified that about 7:30 p.m., he took Carlton to a

friend's house, which was located next to Dansby's residence.

Duncan stated that Carlton ate part of a banana and drank some

baby formula there. Duncan further testified that he and

Carlton left the friend's house about 9:30 p.m., and went next

door to Dansby's residence.

Duncan admitted giving Nemo the baby bottle, but denied

placing any "wine cooler" into the bottle, and said that he did

not know that there was any substance other than milk in the

bottle. Duncan conceded that he had drunk "three or four beers"

on the night in question.

At the conclusion of the evidence, the circuit court found

Duncan guilty of criminal abuse and neglect of his child, as

charged in the indictment. In explaining its decision, the

circuit court stated:

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 I find that Mr. Duncan 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 defendant took the baby back to the
back bedroom . . . , 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 Ms. Nemo, 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
defendant guilty beyond a reasonable doubt of the
felony charge.

Duncan appealed to the Court of Appeals, which held that

the evidence was insufficient to support his conviction. The

Court stated that although "Duncan was negligent in caring for

his child" and that "[h]is conduct was inexcusable and cannot be

condoned," a finding of negligence was not sufficient to convict

Duncan of the felony of child abuse and neglect for which he was

indicted. The Court noted that although Duncan had just met the

women at Dansby's residence the day before leaving his baby with

them, there was no evidence to show that the women were

irresponsible, incapable, or unwilling to care for Carlton. The

Court further stated that there was no evidence that Carlton was

hungry or otherwise in distress during the time that the women

cared for him in Duncan's absence.

The Court also observed that "when the baby [later] became

fussy and started to cry loudly," Duncan, in spite of his

"apparent" intoxicated state, "responded to him" and "took steps

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to feed him, albeit with a bottle containing a liquid mixture,

part of which was wine cooler." In further explaining its

holding, the Court stated:

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 . . . 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.

On appeal to this Court, the Commonwealth argues that the

totality of Duncan's acts and omissions were so gross, wanton,

and culpable as to show a reckless disregard for his son's life.

The Commonwealth contends that while Duncan's most culpable act

was placing an alcoholic beverage into Carlton's bottle, he also

committed other "reckless" acts, such as failing to feed his son

for several hours, which demonstrated Duncan's "disregard for

his infant son's life."

In response, Duncan argues that the Commonwealth failed to

establish that his acts or omissions were "so gross, wanton and

culpable as to show a reckless disregard for human life," within

the meaning of Code § 18.2-371.1(B)(1). He asserts that

although his actions were "irresponsible and less than what one

expects of a parent," he did not endanger Carlton. Duncan also

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contends that the evidence was insufficient because there was no

expert testimony concerning the amount of "wine cooler"

necessary to endanger a child's life or health. Duncan asserts

that without such evidence, any claim that Carlton's life was

endangered rests on mere conjecture and suspicion.

We consider these arguments under an established standard

of review. When a defendant contests the sufficiency of the

evidence on appeal, the reviewing court must give the judgment

of the circuit court sitting without a jury the same weight as a

jury verdict. McCain v. Commonwealth, 261 Va. 483, 492, 545

S.E.2d 541, 547 (2001); Tarpley v. Commonwealth, 261 Va. 251,

256, 542 S.E.2d 761, 763 (2001); Hickson v. Commonwealth, 258

Va. 383, 387, 520 S.E.2d 643, 645 (1999). The appellate court

has the duty to review the evidence that tends to support the

conviction and to uphold the circuit court's judgment unless it

is plainly wrong or without evidence to support it. Code

§ 8.01-680; Jackson v. Commonwealth, 267 Va. 178, 204, 590

S.E.2d 520, 535 (2004); McCain, 261 Va. at 492-93, 545 S.E.2d at

547; Tarpley, 261 Va. at 256, 542 S.E.2d at 763.

We have not previously had occasion to address the elements

of the crime of child abuse and neglect set forth in the

language of what is now Code § 18.2-371.1(B)(1). Initially, we

agree with the Court of Appeals' observation that the statutory

language does not apply to acts of simple negligence. We base

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our conclusion on the express language of the statute

prohibiting "willful act[s] or omission[s] . . . so gross,

wanton and culpable as to show a reckless disregard for human

life." Id.; see also Cable v. Commonwealth, 243 Va. 236, 240,

415 S.E.2d 218, 220 (1992); Davis v. Commonwealth, 230 Va. 201,

206, 335 S.E.2d 375, 378 (1985); Bell v. Commonwealth, 170 Va.

597, 611-12, 195 S.E. 675, 681 (1938); Ellis v. Commonwealth, 29

Va. App. 548, 555, 513 S.E.2d 453, 457 (1999).

The statutory requirement that such conduct be "willful"

means that the conduct must be knowing or intentional, rather

than accidental, and be done without justifiable excuse, without

ground for believing the conduct is lawful, or with a bad

purpose. See Bryan v. United States, 524 U.S. 184, 191-92

(1998); United States v. Murdock, 290 U.S. 389, 394-95 (1933);

Ellis, 29 Va. App. at 554, 513 S.E.2d at 456. Thus, the term

"willful," as used in Code § 18.2-371.1(B)(1), contemplates an

intentional, purposeful act or omission in the care of a child

by one responsible for such child's care.

Unlike Code § 18.2-371.1(A), the plain language of Code

§ 18.2-371.1(B)(1) does not require that a child actually suffer

serious injury as a result of a defendant's acts or omissions.

The absence of an injury requirement in subsection (B)(1)

reflects the lesser nature of the offense, a Class 6 felony, and

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demonstrates a legislative intent to prohibit conduct that also

has the potential of endangering a child's life.

Notably, subsection (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. Id. Therefore, we hold that 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.

Applying these principles, we disagree with the Court of

Appeals' conclusion that the evidence was insufficient to

support Duncan's conviction. We examine the totality of the

evidence, and do not limit our review of the record to Duncan's

act of placing "wine cooler" in the baby bottle for Carlton's

consumption. Viewed in the light most favorable to the

Commonwealth, this evidence showed that Duncan left his infant

son for several hours with people he barely knew, and that he

did not give them any food or formula to ensure that the baby

would be fed. As a result, Carlton did not receive any food or

liquids for more than seven hours.

After returning to the house, Duncan did not attend to

Carlton but joined a group of people who were drinking alcohol

11
and using illegal drugs. Duncan appeared impaired and his eyes

were "glazed over." When Carlton started crying, Duncan poured

an alcoholic beverage into Carlton's bottle and handed the

bottle to an acquaintance for her to feed to Carlton.

In addition, the circuit court found that Duncan was not a

"believable witness," and directly rejected his explanation of

the events in question. As finder of fact, the circuit court

was entitled to infer that Duncan was lying to conceal his

guilt. See Shackleford v. Commonwealth, 262 Va. 196, 209, 547

S.E.2d 899, 907 (2001); Dowden v. Commonwealth, 260 Va. 459,

469, 536 S.E.2d 437, 442 (2000); Phan v. Commonwealth, 258 Va.

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

The above record demonstrates a pattern of neglect over an

extended period that ended in Duncan's knowing and reckless

decision to feed an alcoholic beverage to his baby who had been

deprived of food and hydration for several hours. Thus, we

conclude that the record contains sufficient evidence to support

the circuit court's determination that Duncan's acts and

omissions were willful and, considered as a whole, were so

gross, wanton, and culpable as to demonstrate a reckless

disregard for Carlton's life.

Contrary to Duncan's contention, the Commonwealth was not

required to produce expert testimony showing that consumption of

alcohol by a six-month-old baby who had not had any food or

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liquids for at least seven hours presented a substantial risk of

serious injury or risk of death to the baby. Based on the

evidence presented, the dangers inherent in such a situation

could be inferred by the fact finder as a matter of common

knowledge. Therefore, we hold that the Court of Appeals erred

in concluding that the evidence was insufficient to support

Duncan's conviction.

For these reasons, we will reverse the judgment of the

Court of Appeals and reinstate Duncan's conviction in accordance

with the circuit court's judgment order.

Reversed and final judgment.

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