COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Lemons ∗ and Frank
Argued at Chesapeake, Virginia
AMY JEAN BARRETT
OPINION BY
v. Record No. 0833-99-1 JUDGE JERE M. H. WILLIS, JR.
JUNE 27, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF YORK COUNTY
Prentis Smiley, Jr., Judge
David B. Hargett (Joseph D. Morrissey;
Morrissey & Hershner, PLC., on brief), for
appellant.
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
On appeal from her convictions of child abuse or neglect,
in violation of Code § 18.2-371.1(A), and felony murder, in
violation of Code § 18.2-33, Amy Jean Barrett contends (1) that
the evidence was insufficient to support her conviction for
felony child neglect, (2) that the trial court erred in refusing
to instruct the jury on the definition of "willful," and
(3) that the trial court erred in refusing to vacate the murder
conviction. We affirm the trial court's judgment on the first
issue but reverse on the second and third issues. We remand the
∗
Justice Lemons participated in the hearing and decision of
this case prior to his investiture as a Justice of the Supreme
Court of Virginia.
case for retrial on proper instruction as to child abuse or
neglect, if the Commonwealth be so advised.
I. Background
Under well-settled principles, we view the evidence in the
light most favorable to the Commonwealth, the prevailing party
below.
Barrett and her two children, Patricia, aged two years ten
months, and Joshua, aged ten months, lived with Barrett's
boyfriend, Craig Griffith. On the evening of April 17, 1998,
Barrett put her children to bed and went out. She stayed out
all night, drinking beer. She returned home about 5:30 a.m. and
went to bed. When Griffith left at approximately 7:00 a.m.,
Barrett awoke and tended to the children. She left Patricia
playing in her room and gave Joshua a bottle in the living room.
Soon thereafter, she fell asleep on the couch, with Joshua on
the floor in front of her.
Shortly before noon, Griffith returned to find Barrett
asleep on the couch and Patricia watching television. Griffith
found Joshua in the bathtub, which was full of water. A laundry
basket full of toys and blankets had been thrown over him.
While Barrett slept, Patricia had run water in the tub, placed
Joshua in the tub, and then covered him with the laundry basket.
Griffith attempted to resuscitate Joshua, but the infant had
drowned.
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Prior to the fatal incident, Patricia had demonstrated
jealousy and extremely dangerous aggressiveness toward Joshua.
She had hit him, pushed him, choked him, and attempted to
smother him. Several days earlier, Patricia had pulled Joshua
into the bathtub with her. On that occasion, Barrett
acknowledged that it was fortunate that she was there to save
Joshua.
Barrett had acknowledged before the fatal incident that
there was something wrong with Patricia's attitude and behavior
toward Joshua. She had been warned by others that the children
required close supervision. She knew that Patricia could put
Joshua in the tub and that she could run the water. The serious
and likely hazard of leaving the children unsupervised was
plainly foreseeable. Yet, Barrett did not place Joshua in his
crib, but left him, without supervision, where he was accessible
to Patricia.
The jury found Barrett guilty of child abuse or neglect, in
violation of Code § 18.2-371.1(A), and felony murder, in
violation of Code § 18.2-33. She was sentenced to five years
imprisonment for the murder and two years for the child abuse.
II. Sufficiency of the Evidence to
Prove Child Abuse or Neglect
Code § 18.2-371.1(a) provides:
[a]ny parent . . . 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
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of such child shall be guilty of a Class 4
felony.
Id.
Barrett contends that the evidence was insufficient to
support her conviction of child abuse or neglect, because it
failed to prove that she acted with the requisite criminal
intent. She argues that the evidence did not prove that she
acted willfully to create a dangerous situation. She argues
that she tended to the children, that they were playing
peacefully, and that she did not intentionally fall asleep or
otherwise willfully place either child in danger. We disagree.
When considering the sufficiency of the
evidence on appeal of a criminal conviction,
we must view all the evidence in the light
most favorable to the Commonwealth and
accord to the evidence all reasonable
inferences fairly deducible therefrom.
Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 718,
721 (1988).
So viewed, the evidence established that, by staying out
all night drinking beer, Barrett rendered herself unable to give
proper attention to her children; that having slept only one and
one-half hours, she made no effort to obtain assistance or to
keep herself awake; that she sat on the couch where she
succumbed to sleep; that knowing of Patricia's previous,
potentially lethal, conduct toward Joshua, she nonetheless left
the children unattended with no provision to protect Joshua from
Patricia's known aggressiveness; and that she did all these
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things knowingly and intentionally. These proven facts support
the finding that Barrett, by willful act or omission and by her
refusal to provide necessary care for Joshua's safety, permitted
him to suffer death. Accordingly, the evidence was sufficient
to support Barrett's conviction for felony child abuse or
neglect, in violation of Code § 18.2-371.1.
III. Jury Instruction
Barrett contends that the trial court erred in refusing to
instruct the jury on the meaning of the word "willful," as used
in Code § 18.2-371.1. The Commonwealth argues that "willful" is
a commonly used term, requiring no further elaboration. We
disagree.
"Willful" [as used in Code § 18.2-371.1]
generally means 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.
Ellis v. Commonwealth, 29 Va. App. 548, 554, 513 S.E.2d 453, 456
(1999) (citations omitted).
An understanding of the meaning of the term "willful," as
used in Code § 18.2-371.1, was central to a proper assessment of
the felony child abuse and neglect charge in the context of the
evidence. An instruction explaining that term should have been
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given on request. We find that the trial court erred in
refusing to do so and, for this reason, reverse the conviction.
IV. Murder Conviction
Barrett next contends that the trial court erred in
refusing to set aside her felony murder conviction. She argues
that Joshua's death was not caused by any act committed in
furtherance of the underlying felony, child abuse or neglect.
We agree.
Code § 18.2-33 provides:
The killing of one accidentally, contrary to
the intention of the parties, while in the
prosecution of some felonious act . . . is
murder in the second degree and is
punishable as a Class 3 felony.
Id.
Unquestionably, a direct stream of causation connected
Barrett's dereliction to Patricia's conduct and Joshua's death.
However, causal connection is not the criterion by which
culpability for felony murder is determined. For felony murder
to exist, the killer must act with malice, which is imputed to
him by his commission of the underlying felony. See Wooden v.
Commonwealth, 222 Va. 758, 763-65, 284 S.E.2d 811, 814-16.
The second degree felony-murder statute
in Virginia contemplates a killing with
malice. Indeed, "the commission of any
felonious act . . . supplies the malice
which raises the incidental homicide to the
level of second-degree murder." It does not
follow, however, that any death of any
person which occurs during the period in
which a felony is being committed will
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subject the felon to criminal liability
under the felony-murder rule. . . . In order
for the incidental . . . killing to be
murder, the homicide must be criminal in
nature and must contain the elements or
attributes of criminal homicide cognizable
at common law.
King v. Commonwealth, 6 Va. App. 351, 355, 368 S.E.2d 704, 706
(1988).
The implications of this [rule] are three
fold. First, only acts causing death which
are committed by those involved in the
felony may be the basis for a conviction.
Second, the act causing death must result
from some effort to further the felony
before malice can be imputed to that act.
Third, there must be some act attributable
to the felons which causes death.
Id. at 357, 368 S.E.2d at 707.
Unquestionably, Patricia's conduct fit none of the three
prongs of the felony murder rule. She was not involved in the
underlying felony of Barrett's child abuse or neglect. Her
conduct involved no effort on her part to further that felony.
She acted independently and her conduct cannot be attributed to
Barrett. Therefore, although Barrett's commission of the
underlying felony would impute malice to her in the commission
of any act in furtherance of that felony, Patricia's conduct did
not constitute a killing attributable to Barrett, which, clothed
with the imputation of malice, constituted felony murder.
The Commonwealth argues that Patricia acted as Barrett's
agent. None of the elements of agency existed. We will not
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accept such a forced construction of the facts. See Scott v.
Commonwealth, 14 Va. App. 294, 296, 416 S.E.2d 47, 48 (1992).
The evidence fails to support Barrett's conviction for
felony murder. Therefore, we reverse Barrett's conviction for
felony murder and remand the case to the trial court for further
proceedings, if the Commonwealth be so advised.
V. Conclusion
We reverse Barrett's conviction for felony child abuse and
neglect and remand it to the trial court for retrial on proper
instruction, if the Commonwealth be so advised. We reverse
Barrett's conviction for felony murder and remand that
indictment to the trial court for further proceedings, if the
Commonwealth be so advised.
Reversed and remanded.
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