COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Kelsey and Senior Judge Overton
Argued at Chesapeake, Virginia
CHERYL KASHAWN JONES
OPINION BY
v. Record No. 2200-04-1 JUDGE ROBERT J. HUMPHREYS
NOVEMBER 8, 2005
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Charles D. Griffith, Jr., Judge
B. Thomas Reed for appellant.
Virginia B. Theisen, Assistant Attorney General (Judith Williams
Jagdmann, Attorney General, on brief), for appellee.
Cheryl Kashawn Jones (appellant) appeals her conviction, following a bench trial, of
felonious child neglect, in violation of Code § 18.2-371.1(B)(1). On appeal, she contends the
evidence was insufficient to prove she willfully failed to provide care for her child in a manner
so gross, wanton, and culpable as to show a reckless disregard for his life. We disagree and
affirm.
BACKGROUND
When considering the sufficiency of the evidence on appeal of a criminal conviction, we
view the evidence “in the light most favorable to the Commonwealth and grant all reasonable
inferences fairly deducible therefrom.” Ellis v. Commonwealth, 29 Va. App. 548, 551, 513
S.E.2d 453, 454 (1999).
So viewed, the evidence established that, as of October 23, 2003, appellant had one
eight-year-old child. On October 23, 2003, fifteen City of Norfolk police officers, dressed in
body armor and ballistic helmets, executed a search warrant1 at appellant’s apartment.2 During
the week prior to execution of this warrant, officers conducted surveillance on appellant’s
apartment, and they noticed heavy foot traffic going to and from the residence. The officers
consummated an undercover purchase of narcotics at the apartment, and informants indicated
that lookouts were stationed both day and night inside the hallways leading to the apartment.
The informants also told the officers the occupants might be armed.
As the officers made their way to the apartment to execute the warrant, appellant’s
brother exited the apartment and then attempted to reenter it. Officer Currot, the lead detective,
pushed appellant’s brother to the ground and entered the apartment. The officers were equipped
with a steel ram to open the door, and they entered the apartment with weapons drawn. The
weapons included submachine guns, .45 caliber handguns, and 9-millimeter handguns.
Upon entry, the officers observed appellant, her sister, and her sister’s boyfriend in the
living room. Currot entered the first bedroom on the left and saw appellant’s son on the bed
doing his homework. The child’s head was at the foot of the bed, and his feet were by a
nightstand at the head of the bed. On the nightstand, Currot found a medicine bottle containing
fourteen capsules of heroin. Under the mattress below the child’s head, Currot found a dinner
plate dusted with cocaine residue. There were also packaging materials with the plate. In the
next room, Currot found seven other unattended children ranging in age from infancy to seven or
eight years old.
1
The record refers to the warrant as a “no-knock, level three search warrant.” The record
does not reflect what is meant by such a description of the search warrant; however, it is evident
that the decision was made to effectuate a “no-knock” entry to execute the warrant. In any event,
the propriety of the warrant and the manner of its execution are not at issue in this case.
2
As indicated by Officer Currot, the officers executed a no-knock entry because they
perceived a higher threat of harm as they expected the occupants to be armed.
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On July 27, 2004, appellant was convicted of one count of felony child neglect. In
convicting appellant of the charged offense, the trial court noted the following:
Given the evidence of what the behavior was and the actions that
were going on inside of the residence just moments prior to and at
the time of the execution of the warrant, that is always part and
parcel of the drug trade. There’s evidence that there were guards
outside . . . [t]here was foot traffic . . . for the week prior . . . . The
child was in proximity to a container of 14 capsules of heroin in
excess of a gram, 1.015 grams . . . . And although you make a
point about a childproof container, this is an eight-year old child.
This is not a baby whose motor skills have not developed yet . . . .
And the mother’s statement admits she’s selling some 20 capsules
a day for the last three months out of the apartment. The fact that
this was there . . . is further evidence of an ongoing activity on her
part. So she’s placed him in a position where he has direct,
personal access to a drug that can cause death if overdosed . . . .
[S]he’s placed her child in a position where he’s likely or
reasonably likely to perhaps take the drug by accident and
unwittingly and seriously injure himself or kill himself. Then on
top of that, she’s engaged in an activity that creates a high risk of
violence . . . . [W]hen a large team of narcotics investigators
armed with a no-knock search warrant goes into an apartment in
heavy body armor and armed with their weapons drawn, anything
can happen . . . . [T]hose are the things that the mother fails to
account for by engaging in this high risk, dangerous activity with
her son right there in the middle of it all.
This appeal followed.
ANALYSIS
On appeal, appellant contends that her conviction for felony child neglect should be
reversed because her conduct was insufficient to demonstrate a gross, wanton, and willful
disregard for human life. For the reasons that follow, we disagree and, therefore, affirm.
When the sufficiency of the evidence is challenged on appeal, the judgment of the trial
court will not be set aside unless it appears from the evidence that the judgment is “plainly
wrong or without evidence to support it.” Martin v. Commonwealth, 4 Va. App. 438, 443, 358
S.E.2d 415, 418 (1987). Also, “[g]reat deference must be given to the fact finder who, having
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seen and heard the witnesses, assesses their credibility and weighs their testimony.” Walton v.
Commonwealth, 255 Va. 422, 426, 497 S.E.2d 869, 871 (1998).
Appellant was convicted of violating Code § 18.2-371.1(B)(1), which provides in
relevant part 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.
Thus, to support a conviction for felony child neglect, the Commonwealth must establish that the
defendant, through her willful act or omission, created a situation placing the child at risk of
actual physical harm. Barrett v. Commonwealth, 268 Va. 170, 183, 597 S.E.2d 104, 110 (2004).
Unlike Code § 18.2-371.1(A) which prohibits “any parent, guardian, or other person
responsible for the care of a child” from willfully permitting “any injury to the life or health of
such child,” subsection (B)(1) of the statute “does not require that a child actually suffer serious
injury as a result of the defendant’s acts or omission.” Commonwealth v. Duncan, 267 Va. 377,
385, 593 S.E.2d 210, 214 (2004). The structure of subsection (B)(1), in particular, the absence
of any injury requirement and the authorization of a less severe punishment, “demonstrates a
legislative intent to prohibit conduct that also has the potential for endangering a child’s life.”
Id. (emphasis added). Thus, as Duncan instructs, the statutory element of “‘reckless disregard
[for human life]’ can be shown by conduct that subjects a child to a substantial risk of serious
injury, as well as to the risk of death, because exposure to either type of risk can endanger the
child’s life.” Id.
The sole issue on appeal in this case is whether the mother’s conduct created a
probability of serious bodily injury or death sufficient to bring that conduct within the scope of
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Code § 18.2-371.1(B)(1). We hold appellant’s conduct did subject her child to a substantial risk
of serious bodily injury or death, and we affirm her conviction.
A.
Initially, to be convicted under Code § 18.2-371.1(B)(1), an individual must engage in 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.” In the present case, the record reflects appellant willfully
engaged in selling heroin from her apartment. Appellant stated that, for three months prior to the
execution of the search warrant, she had been selling approximately 20 capsules of heroin a day.
Upon execution of the warrant, police found a medicine bottle containing fourteen capsules of
heroin on a nightstand near appellant’s child.
It is this drug activity, both the sale of drugs from the apartment and the presence of a
controlled substance in close proximity to the child, that constitutes the willful act required by
the statute. Appellant does not contest she engaged in such conduct, but rather argues that such
conduct was insufficient to pose a substantial or probable likelihood of serious bodily injury or
death to the child.
B.
First, appellant contends armed entry by police officers merely could have resulted in
injury and, therefore, did not create the requisite “probability” of harm contemplated by Code
§ 18.2-371.1(B)(1). We disagree.
As we observed in Williams v. Commonwealth, 4 Va. App. 53, 354 S.E.2d 79 (1987),
Although suspicion of narcotics possession and distribution is not
universally recognized as a circumstance which, standing alone,
gives rise to an inference of dangerousness, we believe that the
better view is that it does. The Supreme Court implied as much in
Summers when it stated: “[T]he execution of a warrant to search
for narcotics is the kind of transaction that may give rise to sudden
violence or frantic efforts to conceal or destroy evidence.”
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Id. at 67, 354 S.E.2d at 87 (quoting Michigan v. Summers, 452 U.S. 692, 702 (1981)) (citation
omitted).
In Williams, police officers obtained a search warrant for a home believed to contain
cocaine. Id. at 59, 354 S.E.2d at 82. However, before the officers could execute the warrant,
Williams, the individual suspected of dealing cocaine, left the home in his vehicle. Id. An
officer conducting surveillance of the residence notified the officer who was en route to execute
the warrant that Williams had left the home. The officers decided to follow Williams and pull
him over. When Williams exited the vehicle, the officers conducted a pat-down search for
weapons. Id. Williams contested the validity of the pat-down search.3 Id. at 66, 354 S.E.2d at
86. In deciding the pat-down search was not in violation of Williams’s Fourth Amendment
rights, this Court recognized that, because the officers knew Williams was presently engaged in
narcotics distribution, they were entitled to conduct a protective pat-down search. Id. at 66, 354
S.E.2d at 87. This Court stated “[t]o hold otherwise would be an invitation to violence in what is
always a potentially explosive situation.” Id.
The facts and circumstances of the present case clearly illustrate the recognized
connection between violence and drugs. Further, this case presents a situation in which the
ongoing potential for violence stemming from the illegal sale of drugs continually put a child in
harm’s way.
The record indicates that, based on the prior week’s surveillance that suggested
substantial drug trafficking, police officers entered appellant’s home pursuant to a search
warrant, wearing body armor with their weapons drawn. Although no weapons were actually
found in the apartment, the officers, believing the occupants to be armed, executed a no-knock
3
This was not the only issue on appeal; however, it is the only relevant issue with regard
to the relationship between drugs and violence.
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entry and conducted themselves in a precautionary manner. Based on the information received
from the informants, and the nature of the drug trade, the potential for violence was present and
caused by the appellant’s own actions.
Appellant argues that, because the officers did not observe any firearm activity in the
week before the raid and did not find any firearms in the apartment, the type of violent resistance
contemplated in Williams and Summers was far from probable. We disagree.
Appellant engaged in the illegal sale of narcotics from her home. Based on their ongoing
investigation, the officers executing the warrant believed the occupants might be armed. This
caused the officers to enter with protective armor and weapons drawn. As indicated by Currot’s
testimony, this type of situation inherently poses a risk of substantial bodily harm or death, even
to children and other innocent bystanders.4 Officer training aside, the appellant’s willful conduct
led the officers to believe that violence may have resulted upon execution of the warrant. The
mere presence of armed officers created a situation fraught with the potential for violence. Thus,
a reasonable fact finder could infer that, when armed officers entered appellant’s apartment, the
potential for harm to her child escalated. A reasonable fact finder could also conclude this
particular harm posed a substantial or probable likelihood of serious bodily harm or death as
required by Code § 18.2-371.1(B)(1).
4
Currot testified to the type of potential danger to innocent children bystanders that could
arise in situations such as the one before this Court. When asked by defense counsel if he felt
threatened by the child on the bed, Currot responded “No, sir.” However, he qualified this
response by stating he once almost shot a child in the dark after mistaking the child for an
animal. In that situation, Currot had also entered the residence with his weapon drawn.
Although it was not dark at the time Currot executed the warrant, he acknowledged the potential
for serious bodily harm or death to innocent children during a police raid.
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C.
Appellant also contends that merely placing a child in a position where he is reasonably
likely to ingest illegal drugs does not give rise to a probability of harm contemplated by Code
§ 18.2-371.1(B)(1). Again, we disagree.
Although this Court has never addressed whether a child’s mere proximity to illegal
narcotics creates a substantial risk of bodily harm, we hold that, under the circumstances of this
case, a reasonable fact finder could have concluded that the child was at risk of ingesting the
illegal narcotics and incurring substantial bodily harm as a result. Other states, which have
addressed this question in the context of similar statutes, have reached the same conclusion. For
example, in State v. Padua, 869 A.2d 192 (Conn. 2004), the Supreme Court of Connecticut
affirmed the convictions of three defendants who kept marijuana in close proximity to two
children, ages seven and three.5 These convictions stemmed from evidence found when police
officers executed a search warrant on the defendants’ home. Id. at 199. Upon entry, the officers
found marijuana on the kitchen table being packaged for sale. Id. They also found large
amounts of marijuana in different locations throughout the house. Id.
The appellants in that case argued the mere presence of marijuana was not sufficient to
justify a conviction under the statute. The Connecticut Supreme Court disagreed. In affirming
the convictions, the Padua court noted that “[t]he ability to draw inferences about the impairing
effects of marijuana, like alcohol, . . . is based upon common knowledge, experience and
common sense.” Id. at 203. The court further stated that, although the precise physiological
effects of marijuana and their severity may not be within common knowledge, the only question
the jury must answer is whether the ingestion, oral or otherwise, of marijuana would be likely to
5
The three defendants were the children’s parents and their grandmother. All were
charged with two counts of risk of injury to a child.
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injure the child. Id. at 207. Under the circumstances of that case, the Padua court concluded that
the mere presence of marijuana was sufficient to create a likelihood of injury to the child. See id.
In this present case, appellant stated she had been selling 20 capsules of heroin a day
from her apartment since July 2003. When the officers executed the search warrant, appellant’s
child was within an arm’s reach of fourteen capsules of heroin. Also, a plate containing cocaine
residue and plastic bags for packaging were located under the mattress where he lay.
As in Padua, the illegal substance was within arm’s reach of appellant’s child. There is
no evidence to suggest appellant took any precautions to eliminate the possibility of her child
opening the container and ingesting the heroin.6 As stated in Duncan, “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.” Duncan, 267 Va. at 386, 593 S.E.2d at 215. Thus, we find that a
reasonable fact finder could infer, based on common knowledge, that there are inherent dangers
in placing any amount of an illegal substance such as heroin within reach of a child.
CONCLUSION
By engaging in the sale of drugs from her home, appellant willfully placed her child in
harm’s way. She exposed her child to the risk of an accidental overdose. Her child and other
children were also placed in the midst of a potentially violent situation when police officers
entered appellant’s apartment while executing the search warrant. This type of inherently
dangerous situation clearly poses a substantial risk of serious bodily injury or harm to the child
6
At oral argument, appellant’s counsel suggested that the childproof container would
have prevented appellant’s son from opening the bottle and ingesting the drugs. He commented
further that there was no evidence in the record to suggest her son could have opened the
childproof medicine bottle containing the heroin. However, as noted by the trial court, although
the heroin was in a childproof container, the child was not a baby whose motor skills had not
developed. And, as the Commonwealth asserts, there is no evidence that appellant’s son, who
was eight years old at the time and able to read and write, would be unable to follow the
instructions, “push down and turn to open,” that were printed on the bottle cap.
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and is within the parameters the legislature contemplated when drafting Code
§ 18.2-371.1(B)(1). We hold, therefore, that the evidence was sufficient to prove beyond a
reasonable doubt that the trial court did not err in concluding that appellant’s conduct “was so
gross, wanton and culpable as to show a reckless disregard for human life.” Code
§ 18.2-371.1(B)(1).
For these reasons, we affirm appellant’s conviction.
Affirmed.
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