Noakes v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Felton, Judges Elder, Frank, Humphreys, Kelsey, McClanahan, Haley, Petty,
Beales, Powell and Alston
Argued at Richmond, Virginia

ELIZABETH POLLARD NOAKES
OPINION BY
v. Record No. 0295-08-2 JUDGE RANDOLPH A. BEALES
AUGUST 18, 2009
COMMONWEALTH OF VIRGINIA

UPON REHEARING EN BANC

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Herbert C. Gill, Jr., Judge

James T. Maloney (Maloney & David, P.L.C., on brief), for
appellant.

Joshua M. Didlake, Assistant Attorney General (William C. Mims,
Attorney General, on brief), for appellee.

Elizabeth Noakes (appellant) was convicted after a bench trial of involuntary

manslaughter in the death of fifteen-month-old Noah Colassco (Noah). On appeal, appellant

argues that the Commonwealth presented insufficient evidence that she acted with criminal

negligence, an essential element of involuntary manslaughter. A divided panel of this Court

disagreed with appellant’s argument, holding that the evidence was sufficient to prove criminal

negligence. See Noakes v. Commonwealth, No. 0295-08-2, 2009 Va. App. LEXIS 12 (Va. Ct.

App. Jan. 13, 2009). We granted appellant’s petition for rehearing en banc and stayed the

mandate of the panel’s decision. On rehearing en banc, we now lift the stay and affirm

appellant’s involuntary manslaughter conviction for the reasons stated below.
 I. BACKGROUND

On October 18, 2006, Noah was placed in the care of appellant, who ran a daycare

business out of her home. Appellant placed Noah and at least one other child in cribs located in

a spare bedroom. 1 The surface of the crib was raised from the floor by four legs, which

continued upward until they met hard plastic supports at the top of each corner. The four “walls”

of the crib were made of a mesh material. The rectangular crib was placed in a corner of a loft

bedroom, at the intersection of the bedroom’s back wall and the right side wall; therefore, one

long side of the crib and one short side of the crib abutted those walls. The other short side of

Noah’s crib was situated within inches of another crib, leaving the remaining long side (“the

front side”) as the only side of the crib exposed to the remainder of the bedroom.

Appellant put Noah down for a nap at around noon, but Noah refused to sleep. Noah’s

refusal to sleep was a common occurrence while he was in appellant’s care. Appellant had tried

several “traditional” methods to get Noah to sleep, but those were unsuccessful. Appellant

determined that the source of the problem was Noah’s ability and desire to stand in his crib.

In an attempt to prevent Noah from standing up, appellant devised a plan to cover the top

of the crib with cardboard and fabric and to place a thirty-three-pound, folded-up dog crate on

top of the cardboard. In implementing her plan, the cardboard and fabric covered the entire top

of the crib, and the dog crate covered half of the width of the crib. Appellant placed the dog

crate so that it covered the front side of the crib, where Noah usually stood.

Before leaving the dog crate there with Noah inside the crib, appellant removed Noah

from the crib, placed the crate on top of the crib, and then shook the crib to determine if the crate

would easily fall down into the crib. Satisfied that the dog crate would not fall into the crib,

1
A review of the videotape recorded hours after Noah’s death reveals his crib was more
analogous to a portable, “pack and play” variety than to a traditional wooden crib.

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appellant removed the crate momentarily and placed Noah back in his crib. Appellant then

placed the cardboard and fabric on top of the crib in such a way as to create an “overhang” to

prevent Noah from sticking his fingers between the crib and the dog crate, thereby potentially

injuring his fingers by getting them stuck in the dog crate. Appellant also considered the

cardboard covering (padded with the fabric) to be a buffer should Noah hit his head while

attempting to stand. Appellant then placed the dog crate on the crib, inspected the arrangement

with Noah inside, and went back and forth periodically between her bedroom and the loft

bedroom to monitor the situation and see if Noah had fallen asleep.

Despite these efforts, Noah still refused to sleep. Instead, he began pressing his face

against the front side of the crib’s mesh wall. To stop this behavior, appellant placed a large

nylon toy against the front side of the crib, so that Noah could not look out of the crib. Doing

this also essentially prevented appellant from being able to see into the crib to observe Noah.

Appellant then assumed Noah went to sleep. She left the room at approximately 1:00 p.m.

Appellant did not return to the bedroom until approximately 3:30 p.m., when she attended

to another child. She later told the police that she then left the room without checking on Noah.

A few minutes after 4:00 p.m., appellant returned to wake Noah from his nap. She saw

Noah standing in the crib with his head, neck, and hands over the side of the crib. His neck was

wedged between the cardboard covering and the wall of the front side of the crib. The dog crate,

still on top of the covering, held Noah in this position. As appellant demonstrated in the

videotape recorded following Noah’s death, Noah apparently lifted the cardboard covering

enough to cause the dog crate to slide backwards. Noah apparently then stuck his head over the

front-left corner and progressively slid along the front side’s rail until he was wedged under the

thirty-three-pound dog crate near the center of the front side. Noah became trapped as a result.

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 Noah was unconscious, and his face was blue. Appellant unsuccessfully attempted CPR

while she was on the phone with the emergency operator. The responding paramedics

pronounced Noah dead at appellant’s home.

The medical examiner determined that Noah died from asphyxiation; specifically, the

suppression of the blood vessels in his neck had constricted the flow of oxygen to his brain. The

medical examiner could not determine a time of death, but indicated that this type of

asphyxiation typically would have taken “minutes and not hours.”

At the conclusion of appellant’s trial, the trial court found that the Commonwealth had

sufficiently proven appellant’s criminal negligence, commenting that appellant’s “conduct was

arrogantly reckless, merciless and inhumane, recklessly disregarding Noah’s safety or [the]

consequences of her actions, being indifferent as to whether the harm would result.” The court

found appellant guilty of involuntary manslaughter, and this appeal followed.

II. ANALYSIS

When considering the sufficiency of the evidence on appeal, “a reviewing court does not

‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable

doubt.’” Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384, 387 (2003)

(quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). “Viewing the evidence in the light

most favorable to the Commonwealth, as we must since it was the prevailing party in the trial

court,” Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004), “[w]e must

instead ask whether ‘any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt,’” Crowder, 41 Va. App. at 663, 588 S.E.2d at 387 (quoting

Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc)). See

also Maxwell v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008). “This familiar

standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the

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testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate

facts.” Jackson, 443 U.S. at 319. Consequently, our review of the sufficiency of the evidence on

appeal here involves an assessment of ‘“whether the evidence adduced at trial could support any

rational determination of guilt beyond a reasonable doubt.’” Coleman v. Commonwealth, 52

Va. App. 19, 23, 660 S.E.2d 687, 689 (2008) (quoting United States v. Powell, 469 U.S. 57, 67

(1984)) (emphasis added).

While involuntary manslaughter is a Class 5 felony, it is not statutorily defined. See

Code § 18.2-36. In a recent opinion, our Supreme Court explained the elements of involuntary

manslaughter accordingly:

[T]he crime of common law involuntary manslaughter has two
elements: 1) the accidental killing of a person, contrary to the
intention of the parties; and 2) the death occurs in the defendant’s
prosecution of an unlawful but not felonious act, or in the
defendant’s improper performance of a lawful act. Cable v.
Commonwealth, 243 Va. 236, 240, 415 S.E.2d 218, 220 (1992);
Dowden v. Commonwealth, 260 Va. 459, 470, 536 S.E.2d 437,
443 (2000); Gooden v. Commonwealth, 226 Va. 565, 571, 311
S.E.2d 780, 784 (1984). To constitute involuntary manslaughter,
the “improper” performance of a lawful act must amount to an
unlawful commission of that lawful act, manifesting criminal
negligence. Cable, 243 Va. at 240, 415 S.E.2d at 220; Kirk v.
Commonwealth, 186 Va. 839, 847, 44 S.E.2d 409, 413 (1947).

West v. Director, Dep’t of Corr., 273 Va. 56, 63-64, 639 S.E.2d 190, 195 (2007).

Here, the trial court found appellant acted with criminal negligence and was guilty of

involuntary manslaughter. The trial court’s findings are examined on appeal by reviewing the

totality of the evidence. See Commonwealth v. Duncan, 267 Va. 377, 385, 593 S.E.2d 210, 215

(2004). In reviewing the sufficiency of the evidence supporting the verdict in this case, our

analysis is guided particularly by two principles.

First, although “‘the application of the distinctions between the[] degrees of negligence is

frequently difficult to apply,’” Tubman v. Commonwealth, 3 Va. App. 267, 273, 348 S.E.2d 871,

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874 (1986) (quoting Town of Big Stone Gap v. Johnson, 184 Va. 375, 379, 35 S.E.2d 71, 73

(1945)), such determinations ‘“only become questions of law to be determined by [an appellate]

court [rather than by the factfinder], when reasonable minds could not differ,’” Forbes v.

Commonwealth, 27 Va. App. 304, 309, 498 S.E.2d 457, 459 (1998) (quoting Tubman, 3

Va. App. at 273-74, 348 S.E.2d at 875). This principle is based on the long established standard

of review that the factfinding of a lower court receives “the highest degree of appellate

deference.” Thomas v. Commonwealth, 48 Va. App. 605, 608, 633 S.E.2d 229, 231 (2006).

Under this standard of review, the possibility that another rational factfinder could have found

differently does not mean that no rational factfinder would have found appellant was criminally

negligent here. Only in the event that reasonable minds would be compelled to agree that

appellant’s actions were not criminally culpable could we, as an appellate court, find the

evidence of appellant’s criminal negligence insufficient.

Second, in determining whether reckless conduct amounts to unlawful conduct sustaining

a conviction for involuntary manslaughter, it is immaterial whether the unlawful act was

unlawful in its inception – that is, an inherently unlawful act – or was a lawful act that then

actually became unlawful by the way it was performed after it was begun. See Gooden, 226 Va.

at 571, 311 S.E.2d at 784. As in Gooden, “[t]he present case is of the second category; conduct

not inherently unlawful, but done without requisite caution, in an unlawful manner.” Id. To

prove a defendant’s criminal negligence in relation to an otherwise lawful act, the

Commonwealth must show that the performance was so improper as to constitute negligence so

gross and culpable as to indicate a callous disregard of human life. Beck v. Commonwealth, 216

Va. 1, 4, 216 S.E.2d 8, 10 (1975) (citing Goodman v. Commonwealth, 153 Va. 943, 946, 151

S.E. 168, 169 (1930)).

“The word ‘gross’ means ‘aggravated or increased
negligence’ while the word ‘culpable’ means ‘deserving of blame
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 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, 2 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.”

Morris v. Commonwealth, 272 Va. 732, 739, 636 S.E.2d 436, 439-40 (2006) (quoting Barrett v.

Commonwealth, 268 Va. 170, 183, 597 S.E.2d 104, 111 (2004)) (footnote added).

Appellant recognizes that there is support for a finding that she was grossly negligent,

insofar as her act of placing the dog crate on Noah’s crib constituted a “disregard of prudence”

and would “shock [the] fair minded.” See Ferguson v. Ferguson, 212 Va. 86, 92, 181 S.E.2d

648, 653 (1971) (stating gross negligence is “that degree of negligence which shows indifference

to others as constitutes an utter disregard of prudence amounting to a complete neglect of the

safety” of another and “must be such a degree of negligence as would shock fair minded men

although something less than willful recklessness”). However, she contends that she went to

sufficient lengths to anticipate potential risks resulting from her “unconventional method” and to

prevent those risks from becoming harmful. For instance, appellant noted that she shook the

crate (after initially placing it on the crib while it was empty), to test the crate’s tendency to fall

from its perch over Noah; she padded the bottom of the crate with cardboard and fabric to

safeguard Noah against injury to his head if he tried to stand; and she created an “overhang” with

the cardboard to safeguard against Noah injuring his fingers in the holes of the crate. Appellant

2
“Willful” 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.” Duncan, 267 Va. at 384, 593 S.E.2d at 214. “Wanton” conduct is “[m]arked by or
manifesting arrogant recklessness of justice, of the rights or feelings of others” such as to be
“merciless” and “inhumane.” Forbes, 27 Va. App. at 310, 498 S.E.2d at 459; see Town of Big
Stone Gap, 184 Va. at 379, 35 S.E.2d at 745.

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claims that such precautionary measures demonstrate that she did not act with a callous disregard

for the risks of death or serious injury that were likely to materialize. Therefore, appellant

argues, while she may have been grossly negligent in her care of Noah, she was not criminally

negligent. We disagree with appellant’s contention that her recognition of some risks inherent in

placing a thirty-three-pound dog crate on a crib militates against a finding of criminal

negligence.

Appellant attempts to analogize the precautionary measures she took with the

precautionary measures taken by the defendant in Forbes, whose involuntary manslaughter

conviction was reversed on appeal. In Forbes, the defendant drove his vehicle into the rear end

of a car stopped at the end of an interstate exit ramp, killing the victim. When the police arrived,

the defendant indicated that he did not know where he was or how he had gotten there, that he

was a diabetic, that he had occasionally “blacked-out” before due to this condition, and that it

was possible the accident occurred due to a diabetic black-out while he was driving. Forbes, 27

Va. App. at 307, 498 S.E.2d at 458. In Forbes, this Court agreed with the defendant on appeal

that, because he took precautionary measures recommended for diabetics and felt fine prior to

driving, the evidence did not prove that he acted in a criminally negligent manner. Id. at 311,

498 S.E.2d at 460.

Appellant’s case is readily distinguishable from Forbes. In Forbes, the precautionary

measures taken by the defendant prior to driving – eating mints, drinking a glass of orange juice,

waiting for fifteen minutes, and eating some more mints – were made pursuant to medical

recommendations for diabetics experiencing a low blood sugar episode. Id. at 307-09, 498

S.E.2d at 458-59. As the defendant in Forbes substantially complied with these medical

recommendations, the defendant neither “knew [n]or should have known that his conduct created

a great risk reasonably calculated to produce injury.” Id. at 313, 408 S.E.2d at 461. Here, in

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contrast, the precautions taken by appellant were entirely of her own design – and were her own

attempts to safeguard a heavy object, the thirty-three-pound dog crate, that was certainly not

manufactured with the intention that it would be placed on a crib such as Noah’s. Thus, the

danger here was entirely of appellant’s own creation: Noah would have never been endangered

but for appellant’s decision to place the thirty-three-pound dog crate on top of his crib. In short,

appellant voluntarily created the danger for which she was held criminally culpable. See Cable,

243 Va. at 242, 415 S.E.2d at 221.

“Willful or wanton negligence involves a greater degree of negligence than gross

negligence, particularly in the sense that in the former an actual or constructive consciousness of

the danger involved is an essential ingredient of the act or omission.” Griffin v. Shively, 227 Va.

317, 322, 315 S.E.2d 210, 213 (1984) (citations omitted). Here, the danger was that Noah would

be harmed by appellant’s placement of the dog crate atop his crib. This danger came in

numerous forms, and appellant was aware of, or should have been aware of, far less dangerous

alternatives to putting a thirty-three-pound collapsed dog crate over a young and active child in

order to convince him to lie down and take a nap. Cf. Conrad v. Commonwealth, 31 Va. App.

113, 121-22, 521 S.E.2d 321, 325-26 (1999) (en banc) (holding that criminal negligence is

judged under an objective standard). Notably, appellant testified at trial that she considered

using only the cardboard or a net-like dome instead of the dog crate, but rejected those options

because they would not have prevented Noah from standing up. So, appellant instead placed the

dog crate on Noah’s crib, despite her recognition – implicit in the precautions that she took – that

this act could be dangerous. The trial court could reasonably have concluded that appellant

recklessly disregarded Noah’s safety by proceeding with her plan to prevent Noah from standing

up by placing the dog crate on his crib.

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 Appellant contends that, because Noah’s death resulted from a different risk of harm than

she had foreseen, Noah’s death was improbable; therefore, she claims that she was not criminally

liable for his death. This contention is meritless. “It is not necessary that [appellant] foresaw the

specific manner in which injury and death occurred.” Gallimore v. Commonwealth, 15 Va. App.

288, 296, 422 S.E.2d 613, 618 (1992), aff’d, 246 Va. 441, 436 S.E.2d 421 (1993). Instead, “[i]t

is sufficient that she reasonably could have foreseen that risk of death or serious harm might

result from her actions.” Id. (citing Blondel v. Hays, 241 Va. 467, 475, 403 S.E.2d 340, 345

(1991)). Here, given that appellant saw the need to protect this infant from some risks, appellant

could have foreseen the harm that could and did befall Noah from putting a thirty-three-pound

collapsed dog crate on top of his crib.

This is not a case where the defendant’s mere inadvertence or inattentiveness created

harm or the potential for harm. See, e.g., Ellis v. Commonwealth, 29 Va. App. 548, 555-56, 513

S.E.2d 453, 457 (1999) (finding that defendant was not criminally negligent because she was

unaware she had left a kitchen burner on and, accordingly, did not consciously disregard the

likely ignition of a grease fire that would ultimately endanger the lives of her children).

Appellant affirmatively and knowingly created this danger to Noah, and then, despite her initial

concerns, failed to check on him for several hours. Furthermore, the nature of Noah’s death

could not be considered improbable, given appellant was aware that Noah was tall enough to

stand with his head above the crib side. 3 See Conrad, 31 Va. App. at 121-22, 521 S.E.2d at

3
We reject appellant’s related argument that Noah’s ability to lift a dog crate thirty
percent heavier than his own weight was an improbable feat constituting an intervening cause for
his death, thus rendering appellant’s placement of the dog crate on top of his crib something
other than the probable cause of his death. However, Noah’s lifting the dog crate, if this is how
he became wedged between the crate and the crib, “was put into operation by [appellant’s]
negligent act[]” of placing the dog crate on top of Noah’s crib. See O’Connell v.
Commonwealth, 48 Va. App. 719, 728, 634 S.E.2d 379, 383 (2006). Therefore, Noah’s actions
were not an intervening cause.

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325-26 (holding that criminal negligence “may be found to exist where the offender either knew

or should have known the probable results of his acts”); Tubman, 3 Va. App. at 274, 348 S.E.2d

at 875 (requiring the Commonwealth to prove that “a homicide was not improbable under all of

the facts existing at the time, and that the knowledge of such facts should have had an influence

on the conduct of the offender”).

In addition, appellant knew that Noah wanted to stand in the crib. Consequently, she

should have been especially concerned about how the child would attempt to move the items

over his crib when he attempted – as young children do – to get around the constraints placed on

him. “The same discernment and foresight that older people and experienced persons habitually

employ in discovering dangers cannot be reasonably expected of children of tender years, and

therefore the greater precaution should be taken where children are exposed to such dangers.”

Lynchburg Cotton Mills v. Stanley, 102 Va. 590, 594, 46 S.E. 908, 909 (1904). While

appellant’s “test” of the dog crate on the empty crib suggested to her that the crate would stay in

place sufficiently enough not to fall in the crib, appellant was very aware that Noah was

determined to stand in his crib. It was not at all improbable that a determined child of tender

years would be able to get under the sides of this make-shift contraption, move the dog crate over

a bit, and, in the process, as here, get his neck trapped so that he was asphyxiated. See id. (“That

course of conduct which would be ordinary care when applied to persons of mature judgment

and discretion might be gross, and even criminal, negligence toward children of tender years.”).

Appellant’s inattentiveness to the danger in which she placed Noah reinforces our

holding that a rational factfinder could find appellant guilty of involuntary manslaughter. By

appellant’s own admission, she did not go in the bedroom where Noah was to check on him for

approximately two and a half hours, from 1:00 p.m. until 3:30 p.m. When she checked on the

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other child in the bedroom at 3:30 p.m., she did not even look in Noah’s direction. 4 Appellant

said she simply assumed Noah was asleep. Appellant then left Noah unattended from 3:30 p.m.

until she found him unconscious and trapped between the crib and the cardboard/dog crate

covering shortly after 4:00 p.m. The medical examiner indicated that Noah’s death from

asphyxiation typically would have taken “minutes and not hours.” Leaving Noah unattended for

even a half-hour, given the danger in which appellant placed Noah by setting a

thirty-three-pound dog crate on top of his crib, was an unjustifiable risk. 5

Faced with a challenge to the sufficiency of the evidence, “we
must give trial courts and juries the wide discretion to which a
living record, as distinguished from a printed record, logically
entitles them. The living record contains many guideposts to the
truth which are not in the printed record; not having seen them
ourselves, we should give great weight to the conclusions of those
who have seen and heard them.” Bradley v. Commonwealth, 196
Va. 1126, 1136, 86 S.E.2d 828, 834 (1955). In bench trials, the
“trial judge’s major role is the determination of fact, and with
experience in fulfilling that role comes expertise.” Haskins v.
Commonwealth, 44 Va. App. 1, 11, 602 S.E.2d 402, 407 (2004)
(citation omitted).

James v. Commonwealth, 53 Va. App. 671, 677, 674 S.E.2d 571, 574 (2009).

4
She argued at trial and contends on appeal that, because she turned off an air
conditioner situated close to the crib when she entered the room at 3:30, Noah was within her
peripheral vision and she would have noticed anything amiss. However, even if appellant could
see Noah’s crib in her peripheral vision, it does not necessarily follow that she would have
noticed anything amiss. The back side of Noah’s crib was against a wall, and a large toy that
appellant herself placed there covered the front side of the crib. The short sides of the crib were
obscured by a wall and another crib in close proximity to Noah’s crib. Furthermore, cardboard
and the dog crate covered the top of the crib. Accordingly, even if appellant could see Noah’s
crib peripherally, numerous impediments – many of her own making – blocked appellant’s view
of Noah and any efforts that he might have made to circumvent the dog crate that hindered his
ability to stand up in the crib.
5
Of course, appellant was a child care provider, providing child care in her home, so she
especially should have known that the risk in which she placed this child in her charge was far
too dangerous a risk to place him in and then leave him unattended.
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 The trial court, the factfinder in this tragic case, made its finding of guilt based on the

totality of the evidence before it. The court was well aware that, as the parties stipulated at trial,

there was no evidence that appellant was not a good child care provider prior to the incident

resulting in Noah’s death. The court knew of the precautions appellant took on the day of

Noah’s death. The trial court was also aware of the parties’ stipulation that appellant was

cooperative and noticeably distraught in describing the incident to the police. It was within the

trial court’s purview to assign an appropriate weight to such facts in light of all the evidence

presented at trial, including the evidence in the record supporting a finding of guilt. “If there is

evidence to sustain the verdict, the reviewing court ‘should not overrule it and substitute its own

judgment, even if its opinion might differ from that of the [factfinder].’” Cable, 243 Va. at 239,

415 S.E.2d at 220 (quoting Snyder v. Commonwealth, 202 Va. 1009, 1016, 121 S.E.2d 452, 457

(1961)). Because there was sufficient credible evidence to support a rational factfinder’s

decision that appellant was criminally negligent and, therefore, was guilty of involuntary

manslaughter beyond a reasonable doubt, we will not overrule its judgment.

In summary, the act of attempting to limit Noah’s ability to stand in his crib was not

inherently unlawful; however, a rational factfinder could indeed determine that the placing of a

thirty-three-pound dog crate on Noah’s crib, combined with appellant’s inattentiveness in the

face of this experimental and dangerous set-up and with Noah’s conceded determination to stand

up in his crib, constituted reckless and unlawful conduct in utter disregard of Noah’s safety. See

Gooden, 226 Va. at 573, 311 S.E.2d at 785 (differentiating inherently unlawful acts and the

improper performance of lawful acts). Because reasonable minds could make a determination

here that appellant was criminally negligent, cf. Tubman, 3 Va. App. at 273-74, 348 S.E.2d at

875, we conclude the trial court did not err in finding her guilty of involuntary manslaughter.

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 III. CONCLUSION

For the foregoing reasons, we affirm appellant’s conviction.

Affirmed.

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Elder, J., dissenting.

I would dissent for the reasons set forth in the January 13, 2009 dissenting opinion of the

panel. See Noakes v. Commonwealth, No. 0295-08-2, 2009 VA. App. LEXIS 12, at *19-25

(Clements, J., dissenting) (Va. Ct. App. Jan. 13, 2009).

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