Barrett (Clark) v. Com.

COURT OF APPEALS OF VIRGINIA

Present: Judges Frank, Humphreys and Senior Judge Hodges
Argued at Chesapeake, Virginia

AMY JEAN BARRETT (CLARK), S/K/A
AMY JEAN BARRETT, A/K/A
AMY BARRETT CLARK
OPINION BY
v. Record No. 0581-02-1 JUDGE ROBERT J. HUMPHREYS
AUGUST 26, 2003
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF YORK COUNTY
Norman Olitsky, Judge Designate

W. Todd Watson (David B. Hargett; Hargett &
Watson, PLC, on brief), for appellant.
Eugene Murphy, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.

Amy Jean Barrett appeals her conviction, following a jury

trial, for two counts of felony child abuse, in violation of

Code § 18.2-371.1(A) and 18.2-371.1(B). 1 Barrett contends the

trial court erred in refusing to quash the indictment stating

the charge under Code § 18.2-371.1(B). Barrett further contends

the trial court erred in finding the evidence sufficient, as a

matter of law, to support her convictions and that the court

failed to properly instruct the jury with regard to the duty of

1
Barrett was also tried on a charge of involuntary
manslaughter, in violation of Code § 18.2-33. The jury
acquitted Barrett of that charge.
ordinary care. Finding no error, we affirm the judgment of the

trial court.

I. Background

In accordance with settled principles of appellate review,

we state the evidence presented at trial in the light most

favorable to the Commonwealth, the prevailing party below.

Burns v. Commonwealth, 261 Va. 307, 313, 541 S.E.2d 872, 877

(2001).

In April of 1998, Barrett lived in the Wythe Creek

Apartments with her boyfriend, Craig Griffith, and her two

children. Barrett's oldest child, P.B., was two years and ten

months of age at that time. Her youngest child, J.B., was ten

months of age at the time.

On the evening of Friday, April 17, 1998, Barrett, Griffith

and the children watched television until she put the children

to bed. Barrett then left the apartment and "went out."

Barrett had not returned home when Griffith went to bed that

evening.

Griffith woke up the next morning at approximately

5:00 a.m. Barrett had not yet returned home. Griffith took a

shower and got ready for work that day. Because of some

problems with the plumbing, approximately two inches of water

remained in the bathtub after Griffith finished his shower and

turned off the water.

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 Barrett arrived home at approximately 5:30 to 6:00 a.m.

that morning. Griffith "wasn't happy" with her and immediately

left for work.

Griffith returned to the apartment at approximately noon.

The weather that morning was "cold, nasty," so he returned to

get his coat before going to the Langley Auction. When Griffith

arrived, the apartment door was locked. After he unlocked the

door and stepped inside, he found the apartment to be a "wreck."

P.B. was "standing there with make-up on and no clothes.

[Barrett] was asleep on the couch. The house was just tore up."

The television was on, but "playing static."

Griffith asked P.B. where J.B. was. P.B. replied, "He's in

there," and pointed toward the hallway of the apartment.

Griffith looked in both bedrooms but could not find J.B.

Griffith then asked P.B., "Where in there?" P.B. said, "In

there." Griffith then realized that P.B. was telling him J.B.

was in the bathroom. Griffith pushed open the door to the

bathroom and saw a blanket lying over the bathtub. When he

removed the blanket, Griffith saw "a lot of junk, toys, food, a

laundry basket upside down," in the tub. He removed the laundry

basket and found J.B. lying underneath it. Cold water was

running from the tub waterspout. Griffith turned off the hot

water faucet, but was unable to turn off the cold faucet. The

cold faucet "just kept spinning around." Griffith saw that J.B.

was blue and that his mouth was stuffed with potato chips. He
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picked him up and "screamed" for Barrett, stating "she had

killed her kid." Barrett awoke and called 911. J.B. was

pronounced dead at 12:24 p.m. that day at Riverside Hospital in

Newport News.

Barrett was subsequently indicted for felony child neglect

of J.B., in violation of Code § 18.2-371.1(A) (a Class 4 felony)

and felony murder. Following a jury trial on February 2 and 3,

1999, Barrett was convicted of those charges. However, on June

27, 2000, a panel of this Court reversed and remanded both

convictions, finding that although the evidence was sufficient

to establish the requisite intent necessary for felony child

neglect, the jury should have been instructed as to the meaning

of the term "willful" and that the evidence was insufficient to

support Barrett's conviction for felony murder. See Barrett v.

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

On April 3, 2001, the Commonwealth and counsel for Barrett

executed an order amending the original indictment for felony

murder of J.B., to one of involuntary manslaughter. During plea

negotiations, the Commonwealth made it clear to Barrett that it

intended to proceed with a new trial on that charge, as well as

the charge of felony child neglect under Code § 18.2-371.1(A).

The Commonwealth further expressed to Barrett that if she

refused to plead guilty to those two charges, the Commonwealth

intended to seek an additional indictment for felony child

neglect of P.B., under Code § 18.2-371.1(B) (a Class 6 felony).
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On May 22, 2001, after plea negotiations had failed, the

Commonwealth sought and received the additional indictment

charging Barrett with felony child neglect under Code

§ 18.2-371.1(B).

Barrett filed a motion to quash the new indictment on May

24, 2001. During the hearing on the motion, on June 5 and 6,

2001, Barrett contended that the new indictment, for felony

neglect, should be quashed because the Commonwealth pursued the

new charge as "punishment to [Barrett] for having . . .

successfully appealed her initial charges." Barrett argued that

because the new charge was based upon the same factual

circumstances she was tried for during the first trial, but was

not pursued during the first trial, the timing and basis of the

new charge served to raise a presumption of prosecutorial

vindictiveness, resulting in a violation of Barrett's Fifth

Amendment right of due process.

Initially, an Assistant Commonwealth's Attorney responded

that the additional charge of neglect was not pursued during the

first trial because they "failed to . . . consider [it]." The

Assistant explained that after reading the opinion from this

Court, reversing Barrett's initial convictions, they realized

they should have focused on the fact that P.B. was not an

"intervening cause" or the "villain in this case," but was also

a victim. Thus, the thought "came into [their] minds," in April

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of 2001, that they should pursue the additional charge for

felony neglect of P.B.

The Commonwealth's Attorney for York County next addressed

the trial court and stated that she had been involved in the

first trial, as well as the "original preliminary hearing," but

the Assistant had not been involved in that preliminary hearing.

The Commonwealth's Attorney then informed the trial court that

they had indeed considered bringing the additional charge prior

to the first trial, but "[i]t was simply not done initially

because . . . the focus was on the felony murder charge. And

then when it was thought of, it was a very short time, two or

three weeks prior to the initial trial." The Commonwealth's

Attorney contended that because it was "too late" to pursue the

charge at that time, it chose to proceed only on the indictments

for felony murder and felony child neglect pertaining to J.B.

"And then, of course, clearly, once the Court of Appeals'

analysis came back, it became abundantly clear that the lack of

that charge, perhaps allowed for an analysis that we didn't feel

was appropriate."

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 After taking the matter under advisement, the trial court

denied the motion finding "no presumption of vindictiveness,"

nor evidence of "actual vindictiveness." 2

During Barrett's new trial, held on November 14, 15 and 16,

2001, Marilyn Jenkins testified that she was a volunteer with

the Poquoson Fire and Rescue Squad on April 18, 1998 and had

responded to the scene. Jenkins testified that when she

arrived, she found P.B. in the living room. She observed that

P.B. was dry, but completely naked, and appeared to have mascara

running down her face. She observed that J.B. was "gray" and

"already appeared to be dead." She testified that his diaper

was soaked with water and urine. When she went into the

bathroom, Jenkins observed that it was "a complete mess. The

tub was full of just about everything you could think of,

. . . . There was blankets, laundry basket, food. The tub was

absolutely full of toys." Jenkins stated that there was no

water in the bathtub at that time.

Elizabeth Kinnison, the forensic pathologist who

participated in J.B.'s autopsy, testified that J.B.'s cause of

death was drowning. She further stated that during the autopsy,

she observed 13 bruises present on the baby's forehead and "top

2
The trial court's finding was apparently relayed to the
parties during a telephone conference. We find no transcript of
the telephone conference in the appendix or record on appeal.
Instead, we rely solely on the trial court's restatement of its
ruling during the initial retrial, held on August 21, 2001 (the
initial retrial ended in a mistrial).
- 7 -
sides of his head." She stated that the bruises appeared to be

"fresh bruises with no significant evidence of healing."

Jane Steele, an emergency room nurse who accompanied the

doctor to inform Barrett that the baby had died, testified that

Barrett was "upset and crying, blamed a sibling, another child."

Barrett then "turned and just blamed herself." Sergeant William

Fordham, of the Poquoson Police Department, testified that he

arrived at the hospital just after J.B. was pronounced dead.

Fordham asked Barrett for a statement. He testified as follows

regarding her statement.

[Barrett] advised me that she was taking a
nap on the couch and that she had placed
[J.B.] on the floor next to the couch. He
was drinking a bottle. At the hospital she
said it was about 11:00 to 11:30 in the
morning and [P.B.] was in her room asleep
when she began the nap with [J.B.]. She
advised me during the course of that
interview that there was something wrong
with her daughter [P.B.], that she
constantly abuses her brother [J.B.]. She
made an example of her tying scarves around
his neck and pulling him around the
apartment, slamming her bedroom door into
his face when he attempted to crawl into the
room. She went on to advise me that four to
five days prior to this incident that [P.B.]
had pulled [J.B.] into the bathtub with her
and that it was just lucky that she was
there to save him on that occasion. She
told me several times that [P.B.]
intentionally killed [J.B.] and that she had
tried in the past but today she had been
successful.

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 I questioned her about the circumstances
that morning. She advised me that nap time
was around the same time every day depending
on when the children wake up in the morning
and [that day] was nothing unusual. She was
very angry and she didn't want to even look
at or be in the same room with [P.B.].

Sergeant Fordham testified that he also observed an

interview between Barrett and two employees of social services

that took place that same day. He testified that his notes

reflected several of Barrett's statements.

She said, quote, ["]My baby is f------ dead
and that's all I know.["] She repeated
earlier statements. She said, quote, ["]I
don't want [P.B.].["] She repeated this
three times. ["][P.B.] intentionally killed
my son. All I know is my son is f------
dead and she killed him. I don't want
her.["] She was upset. She said at this
point, ["]I can't even look at her I'm so
angry.["] She began to cry. She said,
["]It's my fault. I shouldn't have taken a
nap.["]

(Alterations added).

Fordham stated that he later returned to Barrett's

apartment to conduct further investigation. He measured the

apartment and found it to be approximately 850 square feet.

Griffith testified that the plumbing in the apartment was

old. He stated that, approximately three months prior to the

incident, he and Barrett had moved J.B's crib into their room

because P.B. had crawled into the crib and "was putting toys and

stuff on top" of J.B. Griffith testified that P.B. was

"jealous" of J.B. and that he had observed her cover J.B. with a

- 9 -
blanket on one occasion, and push him down on "two or three"

occasions. He further stated that Barrett was present during

these incidents and that he had warned her to closely supervise

the children. He testified that when he left for work on the

morning of J.B.'s death, J.B. was asleep in his crib and Barrett

was taking P.B., who was awake at the time, "back" into P.B.'s

bedroom.

The Commonwealth also introduced a videotape of an April

22, 1998 interview between Barrett and an employee of social

services. The tape was viewed by the jury. During the taped

interview, Barrett stated that P.B. was jealous of J.B. from the

"beginning." She acknowledged that P.B. had thrown toys into

J.B's crib and on one occasion, had hit him in the head with a

broom. Barrett stated that the bathtub was P.B.'s favorite

place to play and that she allowed her to sit in the tub with

her toys for up to 45 minutes at a time. She told the social

worker that P.B. could turn on the hot water faucet on her own,

and that she could lift J.B. She also stated that P.B. had

pulled J.B. into the bathtub a few days before the incident and

that J.B. was submerged completely under the water. She stated

this "terrified" her.

Barrett further acknowledged that she had gone out the

night before the incident and had consumed three to five beers.

She stated that she was not "completely intoxicated." However,

she conceded that she would have been arrested for driving under
- 10 -
the influence had she been stopped by police on her way home.

She stated she was "extremely tired" when she arrived home that

morning, and acknowledged that she "most definitely" had alcohol

remaining in her system that morning. Barrett added that she

took some non-drowsy sinus medication that morning and that it

was not "anywhere near nap time" for the children when she sent

P.B. to her room. Barrett agreed that she failed to supervise

the children that morning, and stated that she was sleeping

"pretty hard."

Following the Commonwealth's case-in-chief, Barrett moved

to strike the evidence arguing, in relevant part, that the

Commonwealth failed to produce evidence sufficient to prove

"foreseeability" and "callous disregard for human life and a

probable consequence of the act." 3 The trial court denied the

motion. At that time, Barrett rested and "renew[ed] all of

[her] motions, the ones [counsel] argued before the last

mistrial as well as the motions [counsel] argued just a few

moments ago." Finding the issue to be a question of fact for

the jury (on the motion to strike), the trial court denied the

motion.

Both parties then tendered their proposed jury instructions

to the trial court. Based upon the Supreme Court of Virginia's

3
In his argument, counsel for Barrett did not distinguish
between the neglect charges and the manslaughter charge, but
apparently intended his arguments to apply to each charge.
- 11 -
decision in Chapman v. City of Virginia Beach, 252 Va. 186, 475

S.E.2d 798 (1996), a civil case, Barrett proposed an instruction

stating "A parent has a legal duty to exercise ordinary care for

the child's safety, but this duty does not impose an absolute

requirement that a parent oversee and guide a child's activities

every moment." The Commonwealth objected to the instruction and

proposed its own instruction that omitted the portion of the

instruction referring to the "absolute requirement."

During argument on the issue, Barrett contended the

instruction implicated the degree of negligence necessary to be

proven. The Commonwealth replied, "Judge I think the ordinary

care comes in the manslaughter instruction." In discussing the

manslaughter instruction, which stated "the defendant owed

[J.B.] a legal duty," the Commonwealth stated, "I think that's

where it arises." Counsel for Barrett agreed, stating "Judge,

the question that could easily come from the jury is what's the

legal duty in this situation? I think that's why we provided

the care instruction." Counsel for Barrett further stated "Our

position would be that the instruction that defines the duty

goes directly to the duty in Instruction 10." 4 Finally, counsel

for Barrett argued, "Judge, I think the issue that we tried to

address earlier was it doesn't necessarily go to the neglect

4
Instruction 10 was not produced in the appendix on appeal.
However, our review of the record reveals that particular
instruction instructed the jury on the elements of involuntary
manslaughter.
- 12 -
charges as much as it goes to the manslaughter. The

manslaughter says legal duty. That's one of the elements the

Commonwealth has to prove. We're asking that that duty be

defined." The trial court then denied the instruction as

proposed by Barrett, and "put in the Commonwealth's"

instruction.

During closing argument, Barrett argued that the

Commonwealth failed to produce sufficient evidence to

demonstrate the requisite foreseeability or willfulness with

regard to both charges of neglect. The jury ultimately found

Barrett not guilty on the involuntary manslaughter charge, but

found her guilty of each count of felony child neglect. On

January 24, 2002, Barrett was sentenced to two years in prison

on the Class 4 felony. Barrett was also ordered to pay a fine

of $1,000 for the Class 4 felony, and a fine of $2,500 on the

Class 6 felony.

II. Analysis

On appeal, Barrett argues the trial court erred in refusing

to quash the indictment alleging felony neglect of P.B. Barrett

further contends the trial court erred in finding the evidence

sufficient, as a matter of law, to support her convictions and

that the court failed to properly instruct the jury with regard

to the duty of ordinary care. For the following reasons, we

disagree.

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 A.

Barrett first claims the trial court should have quashed

the new indictment, pertaining to the felony neglect of P.B., in

violation of Code § 18.2-371.1(B). Barrett argues that the new

indictment violated her right to due process because it was

"based on the same facts, transaction or occurrence, and

[Barrett] is being punished for exercising her right to appeal

the first set of convictions." Thus, Barrett claims the

indictment "should have been quashed based on prosecutorial

vindictiveness or the appearance of vindictiveness." 5

The specific question of whether a prosecutor's action in

seeking a new, additional indictment after a defendant has

prevailed in an appellate court, is one of first impression in

Virginia. 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 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). Nevertheless,

prosecutorial discretion "is not '"unfettered." Selectivity in

5
Barrett makes no double jeopardy claim on appeal but
relies solely on her claim of prosecutorial vindictiveness in
the context of the additional indictment.
- 14 -
the enforcement of criminal laws is . . . subject to

constitutional constraints.'" Wayte v. United States, 470 U.S.

598, 608 (1985) (quoting United States v. Batchelder, 442 U.S.

114, 125 (1979) (footnote omitted)). "In particular, the

decision to prosecute may not be '"deliberately based upon an

unjustifiable standard such as race, religion, or other

arbitrary classification,"' Bordenkircher v. Hayes, [434 U.S.

357,] 364 [(1978)], quoting Oyler v. Boles, 368 U.S. 448, 456

(1962), including the exercise of protected statutory and

constitutional rights, see United States v. Goodwin, [457 U.S.

368,] 372 [(1982)]." Wayte, 470 U.S. at 608. Thus, "if a

prosecutor responds to a defendant's successful exercise of his

right to appeal by bringing a more serious charge against him,

he acts unconstitutionally." United States v. Wilson, 262 F.3d

305, 314 (4th Cir. 2001) (citing Blackledge v. Perry, 417 U.S.

21, 28-29 (1974)). Such retaliatory conduct amounts to

vindictive prosecution and "violates a defendant's Fifth

Amendment right to due process." United States v. Lanoue, 137

F.3d 656, 664-65 (1st Cir. 1998) (citing Goodwin, 457 U.S. at

372).

We review a trial court's factual findings on prosecutorial

vindictiveness for plain error, but we review its legal analysis

de novo. See Timbers v. Commonwealth, 28 Va. App. 187, 193, 503

S.E.2d 233, 193 (1998); Quinn v. Commonwealth, 25 Va. App. 702,

- 15 -
712, 492 S.E.2d 470, 475-76 (1997); see also United States v.

Johnson, 91 F.3d 695, 698 (5th Cir. 1996).

In North Carolina v. Pearce, 395 U.S. 711 (1969), the

United States Supreme Court recognized an "institutional bias

inherent in the judicial system against the retrial of issues

that have already been decided." Goodwin, 457 U.S. at 376. In

Pearce, two criminal defendants successfully appealed their

convictions, causing a complete retrial. After retrial, the

defendants were again convicted, but were given more severe

sentences than they had received following their first trials.

The Court noted:

It can hardly be doubted that it would be a
flagrant violation of the Fourteenth
Amendment for a state trial court to follow
an announced practice of imposing a heavier
sentence upon every reconvicted defendant
for the explicit purpose of punishing the
defendant for his having succeeded in
getting his original conviction set aside.
Where, as in each of the cases before us,
the original conviction has been set aside
because of a constitutional error, the
imposition of such a punishment, "penalizing
those who choose to exercise" constitutional
rights, "would be patently
unconstitutional." United States v.
Jackson, 390 U.S. 570, 581 [(1968)]. And
the very threat inherent in the existence of
such a punitive policy would, with respect
to those still in prison, serve to "chill
the exercise of basic constitutional
rights." Id., at 582. See also Griffin v.
California, 380 U.S. 609 [(1965)]; cf.
Johnson v. Avery, 393 U.S. 483 [(1969)].
But even if the first conviction has been
set aside for non-constitutional error, the
imposition of a penalty upon the defendant
for having successfully pursued a statutory
- 16 -
 right of appeal or collateral remedy would
be no less a violation of due process of
law. "A new sentence, with enhanced
punishment, based upon such a reason, would
be a flagrant violation of the rights of the
defendant." Nichols v. United States, 106
F. 672, 679 [(1901)]. A court is "without
right to . . . put a price on an appeal. A
defendant's exercise of a right of appeal
must be free and unfettered. . . . [I]t is
unfair to use the great power given to the
court to determine sentence to place a
defendant in the dilemma of making an unfree
choice." Worcester v. Commissioner, 370
F.2d 713, 718 [(1966)]. See Short v. United
States, 120 U.S. App. D.C. 165, 167, 344
F.2d 550, 552 [(1965)].

Pearce, 395 U.S. at 723-24 (footnote omitted). Thus, the Court

held that:

In order to assure the absence of such a
[vindictive] motivation, we have concluded
that whenever a judge imposes a more severe
sentence upon a defendant after a new trial,
the reasons for his doing so must
affirmatively appear. Those reasons must be
based upon objective information concerning
identifiable conduct on the part of the
defendant occurring after the time of the
original sentencing proceeding. And the
factual data upon which the increased
sentence is based must be made part of the
record, so that the constitutional
legitimacy of the increased sentence may be
fully reviewed on appeal.

Id. at 726.

The United States Supreme Court later extended this

rationale to the actions of a prosecutor in Blackledge. In that

case, a criminal defendant was convicted of misdemeanor assault

in district court. 417 U.S. at 22. The defendant then

exercised his statutory right of appeal to the superior court

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seeking a trial de novo. Id. After the defendant filed his

notice of appeal, the prosecutor obtained an indictment against

the defendant for felony assault, based upon the same conduct

for which the defendant had been tried and convicted in district

court. Id. at 23. The defendant was convicted of the felony

charge and given a greater sentence than he had received in

district court. Id.

In Blackledge, the Supreme Court stated the lesson emerging

from Pearce was "that the Due Process Clause is not offended by

all possibilities of increased punishment upon retrial after

appeal, but only by those that pose a realistic likelihood of

'vindictiveness.'" Id. at 27.

A prosecutor clearly has a considerable
stake in discouraging convicted
misdemeanants from appealing and thus
obtaining a trial de novo in the Superior
Court, since such an appeal will clearly
require increased expenditures of
prosecutorial resources before the
defendant's conviction becomes final, and
may even result in a formerly convicted
defendant's going free. And, if the
prosecutor has the means readily at hand to
discourage such appeals - by "upping the
ante" through a felony indictment whenever a
convicted misdemeanant pursues his statutory
appellate remedy - the State can insure that
only the most hardy defendants will brave
the hazards of a de novo trial.

There is, of course, no evidence that the
prosecutor in this case acted in bad faith
or maliciously in seeking a felony
indictment against [the defendant]. The
rationale of our judgment in the Pearce
case, however, was not grounded upon the
proposition that actual retaliatory

- 18 -
 motivation must inevitably exist. Rather,
we emphasized that "since the fear of such
vindictiveness may unconstitutionally deter
a defendant's exercise of the right to
appeal or collaterally attack his first
conviction, due process also requires that a
defendant be freed of apprehension of such a
retaliatory motivation on the part of the
sentencing judge." 395 U.S., at 725. We
think it clear that the same considerations
apply here.

. . . We hold, therefore, that it was
not constitutionally permissible for the
State to respond to [the defendant's]
invocation of his statutory right to appeal
by bringing a more serious charge against
him prior to the trial de novo.

Blackledge, 417 U.S. at 27-28. In a footnote, however, the Court

added:

This would clearly be a different case if
the State had shown that it was impossible
to proceed on the more serious charge at the
outset, as in Diaz v. United States, 223
U.S. 442 [(1912)]. In that case the
defendant was originally tried and convicted
for assault and battery. Subsequent to the
original trial, the assault victim died, and
the defendant was then tried and convicted
for homicide. Obviously, it would not have
been possible for the authorities in Diaz to
have originally proceeded against the
defendant on the more serious charge, since
the crime of homicide was not complete until
after the victim's death.

Id. at 29 n.7.

Subsequently, in Goodwin, the United States Supreme Court

restated the rule announced in Bordenkircher. Goodwin, 457 U.S.

at 377-78. In Bordenkircher, the Court held that "no presumption
of vindictiveness arose where the prosecution sought and obtained

greater charges after plea negotiations failed and after the

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defendant moved for a jury trial. '[T]he timing of the

prosecutor's action in [such a] case,' . . . 'suggests that a

presumption of vindictiveness is not warranted.'" Battle v.

Commonwealth, 12 Va. App. 624, 629, 406 S.E.2d 195, 197 (1991)

(quoting Goodwin, 457 U.S. at 381); see also Bordenkircher, 434

U.S. at 358-59, 364. The Court in Goodwin expounded upon that

reasoning, noting that

[t]here is good reason to be cautious before
adopting an inflexible presumption of
prosecutorial vindictiveness in a pretrial
setting. In the course of preparing a case
for trial, the prosecutor may uncover
additional information that suggests a basis
for further prosecution or he simply may
come to realize that information possessed
by the State has a broader significance. At
this stage of the proceedings, the
prosecutor's assessment of the proper extent
of prosecution may not have crystallized.
In contrast, once a trial begins - and
certainly by the time a conviction has been
obtained - it is much more likely that the
State has discovered and assessed all of the
information against an accused and has made
a determination, on the basis of that
information, of the extent to which he
should be prosecuted. Thus, a change in the
charging decision made after an initial
trial is completed is much more likely to be
improperly motivated than is a pretrial
decision.

Goodwin, 457 U.S. at 381.

Based upon the above discussion, it is clear that Pearce and

its progeny stand for the proposition that we must

reverse a conviction that is the result of a
vindictive prosecution where the facts show
an actual vindictiveness or a sufficient
likelihood of vindictiveness to warrant such
a presumption. See [Goodwin, 457 U.S. at
373;] U.S. v. Marrapese, 826 F.2d 145, 147

- 20 -
 (1st Cir. 1987). If the defendant creates a
presumption of vindictiveness the burden
shifts to the government to show that
legitimate reasons exist for the
prosecution. [Goodwin, 457 U.S.] at 376
n.8.

Lanoue, 137 F.3d at 664.

A finding of actual vindictiveness occurs "only in a rare

case" as it would require a defendant to produce direct evidence,

such as evidence of a vindictive statement made by a prosecutor.

See Goodwin, 457 U.S. at 380-81; see also United States v.
Johnson, 171 F.3d 139, 140-41 (2d Cir. 1999). Barrett has

pointed to no such evidence in the record demonstrating actual

vindictiveness on the part of the Commonwealth's attorneys

involved in her case. Instead, Barrett argues that the

vindictiveness should be presumed based upon their conduct and

"contradictory" explanations supporting the new, additional

indictment for felony child neglect.

However, the United States Supreme Court has explicitly

limited the application of the Pearce presumption, "like that of

'other "judicially created means of effectuating the rights

secured by the [Constitution],"' to circumstances 'where its

"objectives are thought most efficaciously served,"' Texas v.

McCullough, [475 U.S. 134, 138 (1986)], quoting Stone v. Powell,

428 U.S. 465, 482, 487 (1976)." Alabama v. Smith, 490 U.S. 794,

799-800 (1989). "Such circumstances are those in which there is

a 'reasonable likelihood,'" that the conduct at issue "is the

product of actual vindictiveness on the part" of the acting

authority. Id. (quoting Goodwin, 457 U.S. at 373). Indeed,

"such a presumption is warranted only when circumstances warrant

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it for all cases of the type presented." Wilson, 262 F.3d at

315. Further, "[b]ecause of [the] necessary presumption of

prosecutorial regularity, a presumption of vindictive prosecution

or any other type of selective prosecution, must be supported by

a showing sufficiently strong to overcome the presumption of

prosecutorial regularity." Id.

This court examines the prosecutor's conduct
in light of the entire proceedings to
determine whether it gives rise to a
presumption of vindictiveness. In
determining if a presumption of
vindictiveness is warranted, "the
appropriate inquiry is whether . . . for
example, where, after the defendant's prior
exercise of a procedural or substantive
legal right, or his having succeeded in
reversing a conviction on appeal, the
prosecution acts arguably to punish the
exercise of such rights, by increasing the
measure of jeopardy by bringing additional
or more severe charges[.]" United States v.
Ward, 757 F.2d 616, 619-20 (5th Cir. 1985).

Johnson, 91 F.3d at 698 (alteration in original).

We need not decide whether the additional charge at issue

here increased the "measure of jeopardy" for Barrett, nor do we

find it necessary to determine whether the Pearce presumption
must apply on these facts - namely, a re-trial post-appeal where

the defendant is subjected to a new, additional charge. Indeed,

assuming, without deciding, that the presumption applies, the

record here clearly demonstrates the trial court found no actual

vindictiveness and that it determined the Commonwealth's

attorneys presented sufficient objective evidence supporting the

legitimacy of their conduct, overcoming any presumption of

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vindictive prosecution. We find no error in that determination. 6

Specifically, the Commonwealth's Attorney and her Assistant

stated that they failed to proceed with the additional felony

neglect charge in the first proceeding because they did not

"focus" on bringing the charge until the eve of the initial

trial. At that time, they determined that the cost of delaying

the trial to seek the additional indictment was outweighed by the

benefit of proceeding directly to trial on the felony murder

charge and the single count of neglect. The attorneys further

explained that they sought the additional charge for the second

prosecution based upon their interpretation of the opinion from

this Court, reversing Barrett's initial convictions. Moreover,

although probative, the timing of the additional indictment does

not squarely comport with Barrett's claim of vindictive

prosecution. The opinion issued by this Court, reversing

Barrett's initial convictions, was released on June 27, 2000.

The Commonwealth prepared for the new trial, entered into plea

negotiations with Barrett, and did not seek the new, additional

indictment until after those negotiations had failed, in May of
7
2001 – nearly 11 months after Barrett's successful appeal.
Accordingly, we do not find that the trial court erred in

6
We note that Barrett's counsel conceded during oral
argument that the trial court accepted the Commonwealth
attorney's explanation. Barrett further conceded that the issue
on appeal is thus, merely a question of law.

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refusing to quash the indictment on the basis of vindictive

prosecution. The record clearly reflects that the Commonwealth

presented objective evidence, satisfactory to the trial court, of

legitimate reasons for its actions, overcoming any presumption

and/or "reasonable likelihood" of vindictiveness. See Smith, 490

U.S. at 800.

B.

Barrett next argues the evidence was insufficient to

support her convictions for felony child neglect, in violation

of Code § 18.2-371.1(A) and (B). We find no merit in these

contentions.

Code § 18.2-371.1 provides as follows, in relevant part:

A. Any parent, guardian, or other person
responsible for the care of a child under
the age of eighteen 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. For purposes of this subsection,
"serious injury" shall include but not be
limited to (i) disfigurement, (ii) a
fracture, (iii) a severe burn or laceration,
(iv) mutilation, (v) maiming, (vi) forced
ingestion of dangerous substances, or (vii)
life-threatening internal injuries.

B. Any parent, guardian, or other person
responsible for the care of a child under
the age of eighteen whose willful act or
7
We note further that the trial court implicitly rejected
Barrett's assertion that the Commonwealth's explanations were
contradictory. We find no error in such a determination. In
fact, the Commonwealth's Attorney's explanation, although more
detailed, was consistent with the Assistant Commonwealth's
Attorney's assertions. Moreover, as the Commonwealth's Attorney
stated, she was involved in the preliminary hearing prior to the
first trial, whereas the Assistant was not.
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 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.

Barrett first claims that the trial court erred in finding

the evidence sufficient to prove that her conduct, with regard to

P.B., was so gross, wanton and culpable as to show a reckless

disregard for human life, as required by Code § 18.2-371.1(B).

However, in describing the meaning of this phrase in terms of the

involuntary manslaughter statute, the Supreme Court of Virginia

has held that:

the 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). We have defined the term "wilful" as

an act done with a bad purpose, without
justifiable excuse, or without ground for
believing it is lawful. The term denotes
"'an act which is intentional, or knowing,
or voluntary, as distinguished from
accidental.'" The terms "bad purpose" or
"without justifiable excuse," while facially
unspecific, necessarily imply knowledge that
particular conduct will likely result in
injury or illegality.

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Ellis v. Commonwealth, 29 Va. App. 548, 554, 513 S.E.2d 453, 456

(1999) (citations omitted).

Viewed in the light most favorable to the Commonwealth, we

find the evidence here sufficient to support Barrett's conviction

under Code § 18.2-371.1(B). Indeed, although "something more

than negligence must be proved," id. at 555, 513 S.E.2d at 457,

the evidence here plainly demonstrated that Barrett was aware of

the potential and likely dangers resulting from her conduct.

Namely, intentionally creating a situation where the two-year-old

child, with known aggressive tendencies toward her sibling, was

left completely unsupervised.
Barrett conceded that she knew P.B. enjoyed playing in the

bathtub, that she could turn on the "hot" water faucet to the tub

on her own, and that she possessed sufficient strength to pull

her ten-month-old sibling into the bathtub. Logic would

therefore dictate that P.B. possessed sufficient strength and

ability to climb into the bathtub herself, or to at least place

herself in a life-threatening situation, not understanding the

potential danger.

Nevertheless, Barrett intentionally spent the evening away

from home on the Friday prior to the incident. During her night

out, Barrett admittedly drank enough alcohol to render herself

legally intoxicated the following morning when she drove herself

home. Knowing that she was very tired, and intoxicated, Barrett

then took sinus medication. Furthermore, Barrett conceded that

she "should not have taken a nap" and that she sent P.B. to her

bedroom for her own nap well before P.B.'s usual nap time. From

this evidence, the jury could have reasonably concluded that

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Barrett intended to fall asleep on the couch and/or that she was

aware, due to her condition at the time, that she would fall

asleep. Barrett engaged in this course of conduct knowing that

she was solely responsible for the care of P.B. and her infant

brother that Saturday morning.

Given the combination of these circumstances, we find the

evidence amply supported the determination that Barrett

willfully, wantonly, and culpably created a situation in her home

that exposed P.B. to injury and/or risk of death. By doing so,

Barrett demonstrated a reckless and wanton disregard for P.B.'s

life and health. Proof of such conduct supports Barrett's
8
conviction. Thus, we find no error on the part of the trial

court in refusing to sustain Barrett's motion to strike.

Barrett next claims that the trial court erred in finding

the evidence sufficient to prove that she knew, or reasonably

should have foreseen the death of J.B., as required by Code

§ 18.2-371.1(A).

As stated above, Code § 18.2-371.1(A) requires that the

conduct "caus[ing] or permit[ing]" serious injury to the life or

health of the child at issue be wilful in nature. See Ellis, 29

8
Barrett's contention that because the jury acquitted her
of involuntary manslaughter, the jury's findings of neglect were
inconsistent, is also without merit. As the Supreme Court has
often held, inconsistent jury verdicts are not invalid per se.
See Sullivan v. Commonwealth, 214 Va. 679, 204 S.E.2d 264
(1974). Furthermore, to find the evidence sufficient to support
a charge of involuntary manslaughter, the jury must not only
find that the defendant's conduct was so gross, wanton, and
culpable as to show a reckless disregard of human life, but must
also find that the conduct was the proximate cause of the death.
Cable, 243 Va. at 240, 415 S.E.2d at 220. Thus, to presume
these verdicts were inconsistent would require an exercise in
pure speculation – an exercise in which we decline to engage.
- 27 -
Va. App. at 554, 513 S.E.2d at 456. In Ellis, we specifically

recognized that the terms "bad purpose" or "without justifiable

excuse," used to describe the term "wilful," "while facially

unspecific, necessarily imply knowledge that particular conduct

will likely result in injury or illegality." Id.

Unlike the facts in Ellis, the circumstances here clearly

support the conclusion that Barrett knew death, or serious injury

to J.B., was a likely result of her actions. Indeed, the

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evidence demonstrated that Barrett knew P.B. was aggressive

toward J.B., that she could carry J.B. or coax him into various

rooms of the apartment, and that P.B. had pulled J.B. into the

bathtub on a prior occasion, completely submerging him under the

water.

Thus, Barrett's condition, intentionally and knowingly

created by her, causing her to succumb to "hard" sleep, in

conjunction with her knowledge that there were no other adults in

the home supervising the children, provided the jury with ample

reason to find that her conduct amounted to more than mere

inadvertence or negligence. Indeed, her conduct warranted a

finding that she acted in a "conscious disregard" of the likely

present danger to the life or health of her children,

particularly the ten-month-old infant, J.B. See id. at 555, 513

S.E.2d at 457. Once again, such evidence supports her conviction

and we find no error in the trial court's judgment on her motion

to strike.

C.

Barrett finally argues that the trial court failed to

properly instruct the jury with regard to the duty of ordinary

care. However, at trial, Barrett argued that her proposed

ordinary care instruction should be given to properly explain the

Commonwealth's instruction pertaining to the involuntary

manslaughter charge. Barrett's counsel did not argue that the

instruction related to the neglect instructions, stating "it

doesn't necessarily go to the neglect charges as much as the

manslaughter. The manslaughter [instruction] says legal duty.

That's one of the elements the Commonwealth has to prove. We're

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asking that that duty be defined." As noted above, the jury

acquitted Barrett of involuntary manslaughter.

Accordingly, because Barrett failed to put this argument

before the trial court in relation to the instructions pertaining

to felony child neglect, we do not consider it for the first time

on appeal. See Rule 5A:18; see also West Alex. Prop. v. First

Va. Mort., 221 Va. 134, 138, 267 S.E.2d 149, 151 (1980) ("On

appeal, though taking the same general position as in the trial

court, an appellant may not rely on reasons which could have been

but were not raised for the benefit of the lower court."); Floyd
v. Commonwealth, 219 Va. 575, 584, 249 S.E.2d 171, 176 (1978)

(holding that appellate court will not consider an argument on

appeal that is different from the specific argument presented to

the trial court, even if it relates to the same general issue).

For the reasons stated above, we affirm the judgment of the

trial court.

Affirmed.

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