COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Senior Judge Hodges
Argued at Richmond, Virginia
MARSHA KING ASCENCIO
MEMORANDUM OPINION* BY
v. Record No. 3357-02-2 JUDGE WILLIAM H. HODGES
FEBRUARY 3, 2004
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Michael C. Allen, Judge
John A. Rockecharlie (Bowen, Champlin, Carr & Rockecharlie, on
brief), for appellant.
Virginia B. Theisen, Assistant Attorney General (Jerry W. Kilgore,
Attorney General, on brief), for appellee.
Marsha King Ascencio, appellant, was convicted of two counts of felony child neglect.
Appellant contends the evidence was insufficient to support her convictions, arguing that her
conduct did not constitute a “willful act” or rise to the level of criminal negligence required under
Code § 18.2-371.1(B) and that the evidence failed to prove the length of time she was absent from
the residence and whether she is the parent, guardian or custodian of the older of the two children.
Finding no error, we affirm the convictions. However, because appellant’s sentences exceeded the
maximum allowed by law, we remand for the trial court to modify the sentences.
Facts
“On appeal, ‘we review the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth,
26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted). So viewed, the evidence
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
proved that appellant left her two children, ages eight and eleven, in their home alone for several
days in March of 2002 while she was out-of-state. Appellant left notes around their home
instructing the children on different issues. One note instructed the children to watch the weather
channel in the morning so they could decide how to dress appropriately for school. The note told
them to put their key around their neck and go to the bus stop at 8:03 a.m., and told them what to
do when they got home from school. The note told them what to eat for breakfast, snack, and
dinner on Monday, Tuesday, Wednesday and Thursday, the days appellant would be away before
returning on Friday, the day the note read “Mom’s home.” However, there was not enough food
in the refrigerator for the children to eat the meals specified in the note and, apparently, the
children had no way to restock the refrigerator. In addition, several of the specified meals, such
as grilled cheese, hot dogs, chicken nuggets, rice, and macaroni and cheese presumably required
the children to cook using a stove or microwave. The children were instructed to check Caller
ID before answering the telephone and to answer only calls made from specific telephone
numbers that “Mommie’s [sic] calls will be [from]” “no matter what.” Another note instructed
the children that they could call appellant at night after she called them and told her “which
house” she was staying in that night. The note also instructed the children to “behave in school
while I am away” and to “sit still.” The eight-year-old child testified that she was “scared” every
night when she went to bed while her mother was not home and that she slept in her mother’s
bed because she did not have an alarm clock near her bed. The child also said her mother had
the key to the mailbox, so that unless her mother was there to open the mailbox, it would be
“stuffed” with mail.
On March 26, 2002, Ken Landry from Child Protective Services responded to appellant’s
home and saw a child looking out the window as he knocked on the door. The principal and
assistant principal from the children’s school arrived and knocked on the door. The children
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would not respond. Thereafter, the police and two people listed as “emergency contacts” on the
children’s school forms arrived at the home. The children would not respond. Finally, a
neighbor who had a key to the children’s home arrived and unlocked the door, and was able to
convince the children to unchain the door. When the adults entered the home, the children were
visibly upset and the adults comforted them. Landry telephoned appellant at several numbers,
including the new number listed on the note left with the children, but was unable to contact her.
Therefore, the children were placed into the custody of the Department of Social Services.
Discussion
Code § 18.2-371.1(B) states that any parent responsible for a child under the age of
eighteen “whose willful act or omission of care of such child was so gross, wanton and culpable
as to show a reckless disregard for human life” is guilty of felony child neglect.
“Willful” 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).
The requirement that an act be willful does not mean that the Commonwealth must prove the
parent or caregiver intended to injure the child. Collado v. Commonwealth, 33 Va. App. 356,
366, 533 S.E.2d 625, 630 (2000). The term “gross, wanton and culpable as to show a reckless
disregard for human life” describes conduct. Cable v. Commonwealth, 243 Va. 236, 240, 415
S.E.2d 218, 220 (1992) (describing the meaning of the phrase in the context of the involuntary
manslaughter statute). The word “gross” means “aggravated or increased negligence” and
“culpable” means “deserving of blame.” Id. A defendant’s negligence is criminal negligence
when “accompanied by acts of commission or omission of a wanton or willful nature, showing a
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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
that the offender knows, or is charged with the knowledge of, the probable results of his acts.”
Id. (citation omitted).
In Barrett v. Commonwealth, 41 Va. App. 377, 400-01, 585 S.E.2d 355, 367 (2003), we
affirmed a conviction where the defendant left her children unattended. While Barrett napped
following a night of drinking, she left her two-year-old daughter and ten-month-old son
unsupervised. During Barrett’s nap, the two year old drowned the ten month old in the bathtub.
The evidence proved that Barrett was aware of the potential and likely dangers resulting from her
conduct. Barrett knew her two year old enjoyed playing in the bathtub, and had sufficient
strength to turn on the hot water and to lift her younger brother into the bathtub, and had
previously behaved aggressively towards her brother. The Court found that “the evidence amply
supported the determination that Barrett willfully, wantonly, and culpably created a situation in
her home that exposed [her child] to injury and/or risk of death. By doing so, Barrett
demonstrated a reckless and wanton disregard for [the child’s] life and health.” Id.
The evidence proved that appellant showed utter disregard for the safety and well-being
of her children by leaving them unsupervised for several days and nights, thereby exposing them
to injury and risk of harm or death. The notes she wrote her children indicate that she
understood the risks associated with leaving children unsupervised for such a long period of
time. She warned them to come home from school together and to lock the door. She warned
them not to answer the telephone until confirming with Caller ID that it was a call from an
acceptable number. Appellant showed reckless and wanton disregard for her children’s health
and safety by leaving them to prepare foods requiring them to use the stove or microwave
without supervision, and by leaving an inadequate amount of food to comply with the menu and
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no way to restock the refrigerator while she was away. Appellant’s eight-year-old child said she
was scared every night that her mother was away. The notes indicated that the children could
only call their mother, appellant, with their concerns after appellant called them each night and
told them where she was staying. Consequently, the children had no way to contact their mother
if an emergency arose such as a fire, power outage, or if an intruder entered their home having
noticed the mailbox was “stuffed” and no one was picking up the mail. The children had no way
to contact their mother to ask what to do if they missed the school bus, or what to do if one or
both of them got injured, or what medicine to take if one or both of them got sick, or if they had
a medical emergency during the many days appellant was out-of-state. This inability to contact
their mother was underscored when Landry called every phone number appellant left with her
children and was unable to reach appellant.
The fact finder believed the Commonwealth’s evidence. “The credibility of the witnesses
and the weight accorded the evidence are matters solely for the fact finder who has the
opportunity to see and hear that evidence as it is presented.” Sandoval v. Commonwealth, 20
Va. App. 133, 138, 455 S.E.2d 730, 732 (1995). The trial judge, acting as fact finder, said, “The
underlying act of leaving the kids for four days or a week or however long it was with no adult is
so egregious that it’s just not safe.” The trial judge continued,
[I]t is a fact that Ms. Ascencio removed herself from the
Commonwealth of Virginia for a period of a minimum of four
days, left the children on their own, and the Court finds the
conduct is a reckless and willful disregard for the lives of her
children and that it’s not cured by the fact that she left the notes.
The Commonwealth’s evidence proved that appellant was the mother of her two young children,1
that she left her young children alone for several days and nights unsupervised and without
1
The eight-year-old child’s testimony coupled with circumstantial evidence contained in
certain Commonwealth’s exhibits, was sufficient to prove beyond a reasonable doubt that
appellant was the mother of the eleven-year-old child.
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adequate food, and that she left them to care for themselves and get themselves to school, all of
which constituted a “willful act or omission in the care” of the children and constituted criminal
negligence. The Commonwealth’s evidence was competent, was not inherently incredible, and
was sufficient to prove beyond a reasonable doubt that appellant committed two counts of felony
child neglect.
For these reasons, appellant’s convictions are affirmed. However, a conviction under
Code § 18.2-371.1(B) is a Class 6 felony. Pursuant to Code § 18.2-10(f), a Class 6 felony is
punishable with a maximum prison term of up to 5 years. Consequently, we remand this matter
for the trial court to modify the sentences.
Affirmed and remanded.
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Benton, J., dissenting.
To sustain a conviction for violating Code § 18.2-371.1(B), the Commonwealth must
prove beyond a reasonable doubt “willful” conduct.
“Willful” 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).
“As a general matter, when used in the criminal context, a ‘willful’ act is one undertaken with a
‘bad purpose.’” Bryan v. United States, 524 U.S. 184, 191 (1998). In other words, the evidence
must prove “the defendant acted with an evil-meaning mind.” Id. at 193.
The evidence proved Marsha King Ascencio demonstrated grossly bad judgment in
leaving the children alone. She was a single parent who left the children alone while she was
working. She relied upon the maturity of children ages eleven and eight to follow her
instructions, care for themselves, and telephone her or a neighbor if they needed assistance.
It is not enough, however, to conclude that Ascencio’s conduct was marked by a knowing
or understanding quality. “Most obviously [willful] differentiates between deliberate and
unwitting conduct, but in the criminal law it also typically refers to a culpable state of mind.” Id.
at 191. On the other hand, conduct that is knowing “does not necessarily have any reference to a
culpable state of mind or to knowledge of the law.” Id. at 192. Indeed, as we have noted,
“willful maltreatment of a child requires ‘something worse than good intentions coupled with
bad judgment.’” Ellis, 29 Va. App. at 556, 513 S.E.2d at 457 (citations omitted).
I would hold that the evidence failed to prove Ascencio’s conduct was willful. Therefore,
I would reverse the felony convictions.
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