Snow v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Bumgardner, Frank and Humphreys
Argued at Richmond, Virginia

EMMANUEL SNOW
OPINION BY
v. Record No. 0168-00-2 JUDGE ROBERT J. HUMPHREYS
NOVEMBER 21, 2000
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PRINCE GEORGE COUNTY
James A. Luke, Judge

Brad P. Butterworth (Butterworth & Waymack
on brief), for appellant.

Stephen R. McCullough, Assistant Attorney
General (Mark L. Earley, Attorney General,
on brief), for appellee.

Emmanuel Snow appeals his convictions, in a bench trial, for

child cruelty and receiving stolen goods. The appellant contends

that the trial court erred in finding: 1) that driving a motor

vehicle at a high rate of speed constituted a willful act by a

person responsible for the care of a child so gross, wanton and

culpable as to show a reckless disregard for human life, 2) that

the evidence was sufficient to prove he was responsible for the

care of the juveniles involved, and 3) that he had knowledge that

the vehicle was stolen.
 I. Background

On August 3, 1999, Sergeant Daniel Moegling of the Prince

George County Police Department, observed a burgundy Dodge Spirit

traveling fast on Interstate 295. Using a stationary radar,

Officer Moegling estimated the rate of speed at 105 miles per

hour. Accordingly, Officer Moegling stopped the vehicle and

observed a "tremendous amount of movement [in] the interior of the

vehicle." Because of the movement in the vehicle and "not knowing

what [he] had," he did not approach the vehicle but, rather, used

his patrol car speaker system to order the driver to get out of

the vehicle and present identification. The driver got out of the

vehicle, approached Officer Moegling, and presented him with a

Maryland driver's license and a repair receipt for the vehicle

registration. The driver's license listed the name of the driver

as "Emmanuel Snow." However, the driver was not Emmanuel Snow,

but was in fact Dion Snow, Emmanuel Snow's brother.

Officer Moegling arrested Dion for reckless driving, placed

him in handcuffs and began to put him into the rear seat of his

patrol car. At that point, appellant, who was a passenger in the

right front seat, got out of the Dodge Spirit and began "groping"

on the floorboard of the car. Officer Moegling drew his weapon

and ordered appellant back into the car. Appellant complied after

some hesitation.

Officer Moegling then turned his attention back to Dion.

After a brief struggle, he was able to get Dion into the patrol
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car. Just as he accomplished this, he looked up and saw appellant

in the Dodge's front seat "go across the console and get into the

driver's seat." Appellant then sped away with the car and its

occupants.

Officer Castle, who was patrolling an area of highway about

two and one-half miles north of the scene, received a radio

dispatch about the speeding car. He soon observed the car pass

him at a speed of 112 miles per hour. Officer Castle followed the

vehicle, turning on his emergency lights. However, the driver did

not stop but maintained his speed, weaving in and out of the

slower traffic. Officer Castle then observed the Dodge spraying

coolant and oil and concluded that the car's engine had blown.

Despite this, the driver still did not stop, but only slowed to a

speed of about forty-five to fifty miles per hour. 1 At this time

a state police officer and a Henrico County police officer joined

in the chase and were able to assist Officer Castle in bringing

the Dodge Spirit to a stop.

1
In arguing on brief that the trial court erred in finding
appellant's action of driving the car at a high rate of speed to
be "willful," counsel for appellant stated "Trooper Maxwell[,
one of the officers who joined Officer Castle in the chase,]
testified the defendant's vehicle was only going forty-five to
fifty-five mph. 'And it wasn't at a very fast pace . . . .'"
This statement misrepresented the facts. Trooper Maxwell, in
making this statement, was testifying to the rate of speed that
appellant was driving after the engine on the car had blown. We
note with disfavor that counsel omitted this important
distinction from his brief.

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 When Officer Castle approached the driver's side window, he

observed that the ignition lock appeared to have been tampered

with. The ignition switch was "popped," and the "chrome fixture

that goes around the edge [of the ignition switch] was on the

floorboard." Officer Castle then observed that four other

individuals were in the car in addition to appellant.

After a brief investigation, Officer Castle determined that

appellant, age thirty-two, was the driver of the car. The other

passengers were Demonte Snow, age eighteen, David Snow, age

seventeen, Brendan Snow, age ten, and Diontrae Snow, age eight.

Appellant and Demonte were sitting in the front seat. David,

Brendan, and Diontrae were sitting in the rear seat. Appellant

denied being the father or legal custodian of any of the children

in the car.

Appellant was arrested and transported to the police station.

The next day, after processing the vehicle, Officer Moegling

determined that the car had been stolen a few days earlier from a

residence in Baltimore, Maryland. Appellant was subsequently

indicted for three counts of child abuse or neglect in violation

of Code § 18.2-371.1, as well as one count of receiving stolen

property in violation of Code § 18.2-108.

At trial, the evidence established that appellant was the

uncle of Demonte, David and Diontrae and that Demonte, David and

appellant had driven the stolen car to South Carolina to visit

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relatives. They then picked up Dion, Diontrae and Brendan and

were returning to Baltimore in the car when they were stopped.

At the scene, appellant stated that he thought Demonte may

have stolen the vehicle. However, at trial appellant testified

that he had no knowledge that the vehicle was stolen and denied

making a contrary statement to the police. Appellant also

testified that he had been asleep in the back of the vehicle when

it was initially pulled over. After Dion had been taken to the

patrol car, appellant claimed that Demonte had awakened him and

told him to drive. Appellant claims he complied, but never

noticed any evidence of tampering with the ignition switch.

Appellant also reiterated that he was not the father of the

children in the vehicle and testified that Dion was the custodian

of the children at the time they were stopped.

II. Analysis

A. Child Abuse or Neglect

Code § 18.2-371.1 provides the following in relevant part:

B. 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.

(Emphasis added).

Appellant first argues that the trial court erred in

convicting him of violating this statute because he was not the

guardian for the juveniles in the car, nor was he responsible

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for their care at the time he was stopped. We disagree. In

Krampen v. Commonwealth, 29 Va. App. 163, 510 S.E.2d 276 (1999),

we addressed a similar statute, Code § 18.2-370.1. That statute

punishes persons who take indecent liberties with a child, under

the age of eighteen, over which they have a "custodial or

supervisory relationship." There, we held that:

Code § 18.2-370.1 is clear and unambiguous
in requiring proof of a "custodial" or
"supervisory" relationship over the
victim. . . .

"Where a statute is unambiguous, the plain
meaning is to be accepted without resort to
the rules of statutory interpretation."
Last v. Virginia State Bd. Of Med., 14 Va.
App. 906, 910, 421 S.E.2d 201, 205
(1992). . . . Accordingly, we must "'take
the words as written'" in Code § 18.2-370.1
and give them their plain meaning. Adkins
v. Commonwealth, 27 Va. App. 166, 169, 497
S.E.2d 896, 897 (1998) (quoting Birdsong
Peanut Co. v. Cowling, 8 Va. App. 274, 277,
381 S.E.2d 24, 26 (1989)).

[T]he Supreme Court has rejected limiting
the definition of "custody" to legal
custody. See Lovisi v. Commonwealth, 212
Va. 848, 850, 188 S.E.2d 206, 208
(construing Code § 40.1-103, formerly Code
§ 40-112), cert. denied, 407 U.S. 922
(1972).

"[Moreover,] [i]n its language [Code
§ 18.2-370.1] is unambiguous, justifying no
limitation of the meaning of 'custody' to
legal custody. [In fact,] [t]o give it such
a restrictive definition would eliminate,
among others, teachers, athletic instructors
and baby-sitters, all of whom might have
temporary custody of children, from the
purview of the statute." Id. (emphasis
added).

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 Accordingly, we hold that the "custodial or
supervisory relationship" required under
Code § 18.2-370.1 is not limited to those
situations where legal custody exists. The
statute specifically provides that such a
relationship "include[s] but [is] not
limited to the parent, step-parent,
grandparent, [or] step-grandparent." Code
§ 18.2-370.1 (emphasis added). The term
also includes those individuals eighteen
years or older who have a temporary,
custodial relationship with a child, such
as, "teachers, athletic instructors and
baby-sitters." Lovisi, 212 Va. at 850, 188
S.E.2d at 208. The child in each instance
has been entrusted to the care and control
of the supervising adult.

Krampen, 29 Va. App. at 167-68, 510 S.E.2d at 278.

In Krampen, the evidence established that, with the

permission of the victim's mother, Krampen willingly drove the

victim home from church. We found that "[a]s the only adult

present during [those] trips, [Krampen] had the responsibility

for and control of the victim's safety and well-being while she

was in his care. His contact with the victim was in the nature

of a baby-sitter, i.e. one entrusted with the care of the child

for a limited period of time." Id. at 168, 510 S.E.2d at

278-79.

As stated above, Krampen concerned Code § 18.2-370.1, which

requires proof of a "custodial or supervisory" relationship.

Code § 18.2-371.1 does not go that far. Instead, it requires

proof only that a person is "responsible for the care of a

child."

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 We have not previously considered whether circumstances

such as those presented here may constitute the unilateral

assumption of responsibility for the care of a child as required

under the less stringent wording of Code § 18.2-371.1. However,

as a logical extension of our holding in Krampen, we find that

one may become a person "responsible for the care of a child" by

a voluntary course of conduct and without explicit parental

delegation of supervisory responsibility or court order.

Here, appellant was an uncle of Diontrae and David Snow and

traveling with Diontrae's custodial father, his brother, from

South Carolina to Maryland. He knew that the father was

detained in police custody when he voluntarily took control of

the vehicle and drove away knowing that the juveniles were in

the vehicle. We hold that on these facts, appellant was a

"person responsible for the care" of the juvenile occupants of

the motor vehicle.

Appellant next argues the trial court erred when it found

that the evidence presented concerning the manner in which he

drove the car was sufficient to show "a willful act or omission

in the care of the children." Again, we disagree.

Where the sufficiency of the evidence
is challenged after conviction, it is our
duty to consider it in the light most
favorable to the Commonwealth and give it
all reasonable inferences fairly deducible
therefrom. We should affirm the judgment
unless it appears from the evidence that the
judgment is plainly wrong or without
evidence to support it.
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Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,

537 (1975). Moreover, "[i]f there is evidence to support the

conviction, an appellate court is not permitted to substitute

its own judgment for that of the finder of fact, even if the

appellate court might have reached a different conclusion."

Commonwealth v. Presley, 256 Va. 465, 466, 507 S.E.2d 72, 72

(1998).

Furthermore, "[t]he credibility of a witness and the

inferences to be drawn from proven facts are matters solely for

the fact finder's determination. In its role of judging witness

credibility, the fact finder is entitled to disbelieve the

self-serving testimony of the accused and to conclude that the

accused is lying to conceal his guilt." Marable v.

Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235

(1998) (citations omitted).

The statute at issue requires proof that appellant's

"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." Code § 18.2-371.1.

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

(1999) (citations omitted).

"Intent may, and most often must, be proven by

circumstantial evidence and the reasonable inferences to be

drawn from facts that are within the province of the trier of

fact." Id. at 555, 513 S.E.2d at 456. Based upon the facts

before us, we cannot hold that the trial court erred in finding

that appellant acted willfully in driving in the manner in which

he did. This conclusion is particularly compelling in light of

the fact that during most of the trip, appellant was being

followed by a police cruiser with its emergency lights on, yet

he did not pull over until the engine of the car was "blown" and

two additional police cruisers were forced to join the chase.

Furthermore, we find it reasonable for the fact finder to have

rejected the conclusion that appellant would have had any reason

to believe that driving at a speed of over 100 miles per hour in

an attempt to evade police was not dangerous or unlawful

activity. Accordingly, we find that under the circumstances of

this case, the trial court did not err in finding appellant's

actions to have been "willful" and "so gross, wanton and

culpable as to show a reckless disregard for human life."

B. Receiving Stolen Property

"To convict a defendant under Code § 18.2-108, the

Commonwealth must prove that property 'was (1) previously stolen

by another, and (2) received by defendant, (3) with knowledge of
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the theft, and (4) a dishonest intent.' Guilty knowledge 'is

sufficiently shown if the circumstances proven are such as must

have made or caused the recipient of stolen goods to believe

they were stolen.'" Shaver v. Commonwealth, 30 Va. App. 789,

800-01, 520 S.E.2d 393, 399 (1999). "Guilty knowledge . . .

[a]bsent proof of an admission against interest, . . .

necessarily must be shown by circumstantial evidence." Lewis v.

Commonwealth, 225 Va. 497, 503, 303 S.E.2d 890, 893 (1983).

Officer Moegling's and Officer Castle's testimony

describing appellant's frantic efforts to evade the police, as

well as Officer Castle's testimony concerning the "popped"

ignition and appellant's statement that he believed Demonte had

stolen the vehicle, if believed by the fact finder in this case,

were sufficient to prove receipt of the stolen vehicle with the

requisite knowledge required by Code § 18.2-108.

Affirmed.

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