COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Elder and Annunziata
Argued at Richmond, Virginia
MILTON NORMAN WOODSON
MEMORANDUM OPINION * BY
v. Record No. 0140-98-2 JUDGE LARRY G. ELDER
MARCH 2, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Robert W. Duling, Judge
I. Scott Pickus (Jackson, Pickus & Associates,
P.C., on briefs), for appellant.
Jeffrey S. Shapiro, Assistant Attorney General
(Mark L. Earley, Attorney General; Lisa R.
McKeel, Assistant Attorney General, on brief),
for appellee.
Milton Norman Woodson (appellant) appeals from his bench
trial conviction for felony child neglect under Code
§ 18.2-371.1(B). On appeal, he contends the evidence was
insufficient to support his conviction because it failed to prove
(1) that he was a "parent, guardian or other person responsible
for the care of [the] child" he was convicted of neglecting and
(2) that his acts were so gross, wanton and culpable as to show a
reckless disregard for human life. For the reasons that follow,
we disagree and affirm the conviction.
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
therefrom. See Martin v. Commonwealth, 4 Va. App. 438, 443, 358
S.E.2d 415, 418 (1987). The judgment of a trial court, sitting
without a jury, is entitled to the same weight as a jury verdict
and will be disturbed only if plainly wrong or without evidence
to support it. See id. The credibility of a witness, the weight
accorded the testimony, and the inferences to be drawn from
proven facts are matters solely for the fact finder's
determination. See Long v. Commonwealth, 8 Va. App. 194, 199,
379 S.E.2d 473, 476 (1989).
Code § 18.2-371.1(B) provides as follows:
Any parent, guardian, or other person
responsible for the care of a child under the
age of eighteen 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.
A.
APPELLANT'S STATUS AS PERSON RESPONSIBLE FOR VICTIM'S CARE
Appellant contends on appeal that the evidence was
insufficient to prove he was a "person responsible," within the
meaning of Code § 18.2-371.1(B), for the care of Alan, the child
he was convicted of neglecting. Appellant contends on brief that
he adequately preserved this issue for appeal when he twice moved
to strike the Commonwealth's evidence and contends that, even if
he did not, the ends of justice mandate this Court's
consideration of that issue on appeal.
Rule 5A:18 provides that "[n]o ruling of the trial court
. . . will be considered as a basis for reversal unless the
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objection was stated with the grounds therefor at the time of the
ruling, except for good cause shown or to enable the Court of
Appeals to attain the ends of justice." Under this Rule, a
motion to strike the evidence offered to prove one element of an
offense is insufficient to preserve for appeal a challenge to
another element of that same offense. See Redman v.
Commonwealth, 25 Va. App. 215, 220, 487 S.E.2d 269, 272 (1997).
Here, appellant's motion to strike and brief closing argument
covered only the credibility of the witnesses and the sufficiency
of the evidence to prove that appellant's acts or omissions
showed a reckless disregard for human life. Appellant never
challenged the sufficiency of the evidence to prove his status as
a "person responsible" within the meaning of the statute.
Nor does the ends of justice exception require us to
consider this issue on appeal. To invoke the ends of justice
exception, an appellant must show "more than that the
Commonwealth failed to prove an element of the offense. . . .
[T]he appellant must demonstrate that he or she was convicted for
conduct that was not a criminal offense[,] or the record must
affirmatively prove that an element of the offense did not
occur." Id. at 221-22, 487 S.E.2d at 272-73.
Here, the evidence does not disprove the challenged element
of the offense--appellant's status as a parent, guardian or
person responsible for Alan's care; in fact, it tends to prove
that appellant may have been a person responsible for Alan's care
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within the meaning of the statute. 1 Appellant was married to
Alan's adult sister, Mia Woodson (Woodson), and allowed Alan and
Ivy, Alan's and Woodson's sister, to live in their home.
Appellant admitted that he and Woodson jointly provided food,
shelter and medical treatment for Alan, Ivy and appellant's and
Woodson's son, Marvin. Appellant also testified that he (1) went
to Alan's school when Alan exhibited some behavior problems,
(2) "spank[ed]" Alan on November 8, 1996, (3) often told Woodson
how to discipline Alan, (4) restricted Alan's activities in
Woodson's absence, and (5) made sure that Alan completed his
chores. Finally, Woodson testified that both Ivy and Alan
disliked appellant because he "establishe[d] authority" and set
rules for the children. Because the evidence, viewed in the
light most favorable to the Commonwealth, failed to establish
that appellant was not a responsible person within the meaning of
1
We assume without deciding that one may become a person
responsible for the care of a minor, as described in the statute,
voluntarily through a course of conduct and without court order
or other legal documentation. See Krampen v. Commonwealth, ___
Va. App. ___, ___ S.E.2d ___ (Feb. 9, 1999) (holding that legal
custody of child is not required for conviction under Code
§ 18.2-370.1, which refers to "[a]ny person eighteen years of age
or older who maintains a custodial or supervisory relationship
over a child under the age of eighteen" and that statute applies
to any person in a "temporary, custodial relationship with the
child," including person whom parent gave permission to drive
child home from church).
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the statute, the ends of justice exception to Rule 5A:18 does not
require us to consider the merits of this issue on appeal. 2
B.
PROOF OF APPELLANT'S ACTS
Appellant contends the evidence was insufficient as a matter
of law to prove that his acts were so gross, wanton and culpable
as to show a reckless disregard for human life. He contends that
the photographs of Alan's injuries, even coupled with Alan's
testimony, were insufficient to meet the statutory standard
because no medical or other evidence permitted the court to
ascertain whether the injuries were "life-threatening in
severity." Therefore, he contends, the trial court must
improperly have taken judicial notice, from the photographs, of
the severity of the injuries. We reject appellant's contentions.
First, nothing in Code § 18.2-371.1(B) requires that the
Commonwealth prove any injuries inflicted by appellant were
life-threatening. In fact subsection (B) of the statute contains
no requirement that the child suffer any injury at all.
Subsection (A), by contrast, provides for the heightened
punishment of an offender who "causes or permits serious injury
. . . [which] 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
2
Therefore, we do not decide whether the evidence was
sufficient to prove appellant was a responsible person under the
statute.
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of dangerous substances, or (vii) life-threatening internal
injuries." Code § 18.2-371.1(A) (emphasis added). Comparison of
subsection (B) to subsection (A) makes clear that subsection (B)
does not contain the requirement appellant seeks to impose.
Rather, as the trial judge correctly observed, it requires proof
only that appellant acted with reckless disregard for human life,
not that his acts or omissions actually threatened that life.
Second, the evidence, including the photographs, viewed in
the light most favorable to the Commonwealth, supported the trial
court's finding that appellant's acts and omissions were "so
gross, wanton and culpable as to show a reckless disregard for
human life," which is all that is required under Code
§ 18.2-371.1(B). Although Alan's testimony alone would have been
sufficient to support appellant's conviction, the additional
testimony of Ivy and the photographs of the injuries, whether
temporary or permanent, that appellant inflicted on Alan provided
ample evidence to support appellant's conviction. The
photographs, introduced without objection from appellant,
corroborated Alan's testimony that appellant frequently beat him.
The evidence also established that appellant routinely confined
Alan to the basement, without regard for Alan's health, physical
comfort or nutrition. Alan spent long periods of time in the
basement, even overnight. Appellant's responses to Alan's
requests for food were cruel and malicious. Appellant eventually
ordered Alan, a twelve-year-old child, to leave the house
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permanently without making any alternative arrangements for
Alan's care.
Viewing all the facts and circumstances in the light most
favorable to the Commonwealth, the evidence was sufficient to
prove beyond a reasonable doubt that appellant's actions toward
Alan exhibited a reckless disregard for the child's life.
Therefore, the trial judge did not err in finding appellant
guilty of the charged offense.
For these reasons, we affirm appellant's conviction.
Affirmed.
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