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White v. Commonwealth

Court of Appeals of Virginia

September 19, 2017



          Kelsey M. Bulger, Assistant Public Defender (Cynthia Dodge, Public Defender, on briefs), for appellant.

          Victoria Johnson, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Present: Judges Petty, Alston and Russell Argued at Lexington, Virginia.



         Ashley Jennifer White was convicted of two counts of child abuse and neglect in violation of Code § 18.2-371.1(B) and one count of child abuse and neglect in violation of Code § 18.2-371.1(A).[1] On appeal, White challenges only the conviction under Code § 18.2-371.1(A). White argues that the evidence was insufficient to prove she committed a willful act or willful omission that caused or permitted the tragic death of her five-year-old son.


         When considering whether evidence is sufficient to sustain a criminal conviction, we view the evidence in the light most favorable to the prevailing party at trial and grant to it all reasonable inferences fairly deducible from that evidence. Barrett v. Commonwealth, 268 Va.170, 179, 597 S.E.2d 104, 108 (2004). It is "within the province of the [fact finder] to determine what inferences are to be drawn from proved facts, provided the inferences are reasonably related to those facts." Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003).

         On Sunday, March 22, 2015, White began her morning by leaving her infant daughter and five-year-old son at home alone while she took her husband to work. When she returned, she took prescription Suboxone and laid down on her bed to watch television with her son while waiting for her daughter to wake up. At about 8:45 a.m., White let her son go to the living room to watch cartoons, and she fell asleep. White awoke at about 10:30 a.m. to the sound of her daughter's crying. After tending to her daughter, White found the television in the living room blaring, the front door open, and her son missing. White searched inside and outside for her son, but to no avail. She called the landlord, who lived on adjoining property, and a neighbor to see if her son was there. She walked to the wood line and fence line borders of her yard, calling for her son, but received no response. She then called 911.

         The law enforcement officers responding to the scene searched both inside and outside the home. One officer saw the septic tank lid while he was using a search dog but did not investigate the lid at that time. Later, he approached the septic tank lid and lightly kicked it, causing the lid to pop off the opening of the septic tank. He picked up a four-foot metal rod laying nearby and handed it to another officer, who placed it into the brown murky water in the septic tank and moved it around, finding no resistance. In the ensuing four days, the septic tank lid was lifted and replaced by several searchers, including an FBI agent, who had come to assist in finding the missing child. After looking in the septic tank, neither the officer nor the FBI agent secured the lid on the opening.

         During the four-day search for the child, White was interviewed multiple times. She initially told the officers that she had taken the children with her when she took her husband to work that morning, but later admitted that she had left them alone.[2] She said that if her son had gone outside, he would not have left the yard except to play with the nearby neighbors. On Thursday, March 26, the FBI agent ordered the septic tank to be drained, and at that time noticed that only one screw was in the lid's hole. A subsequent search of the surrounding area with a metal detector did not locate any other screws, bolts, or fasteners.[3] White's son's body was found in the bottom of the septic tank.

         The septic tank had been installed by a contractor in approximately 2002. The septic system was inspected to ensure it conformed to all safety standards, including the requirement that it include a tamper proof, child resistant lid. Witnesses described the lid as a black plastic disc approximately two feet in diameter and weighing two to three pounds. White began renting the home in 2010, when her son was an infant. In 2014, the landlord, with the help of a retired plumber, ran a pipe from an adjacent rental property to the septic tank in White's yard. The connection required digging beside the tank and removing a plastic ring approximately a foot down from the top of the septic tank. While connecting the new line, the landlord removed toys from the septic tank.[4] The landlord mowed the yard often, including behind the home where the septic tank lid was. The landlord testified he "could mow up to it on top of it with a riding lawn mower [and would] run up to the edge of it, back off of it." The access lid for the septic tank was located about twelve feet from the back door of the residence, in the fenced backyard play area.

         In an interview after her son's body was found, White admitted her son loved the outdoors and played by himself most of the time. She admitted that it would not be unusual for her son to go outside and to get something from the car while she was asleep. Her son played in the backyard so nobody else could see him. Toys were scattered in various places in the backyard. White recounted that a month or two before her son's death she saw her son stand on the septic tank lid. She "yelled" at him and told him he was not allowed on the lid; she made him promise never to stand on it again. When asked if the incident was a "red flag" to her, she responded, "I just thought he shouldn't be standing on it. . . . I didn't know it was that deep. I didn't know that it was like such a dangerous like (pause). I should've been-it should've been bolted. I didn't even know that. I mean, looking back at all the things that I should've done but I didn't."

         After a two-day bench trial, the trial court found White guilty of child abuse and neglect in violation of Code § 18.2-371.1(A). The trial court noted that after hearing White's testimony and seeing her demeanor, it found some of her statements to be "self-serving testimony designed to help conceal her guilt." It found that White had lived in the home five years and was aware of the septic tank and its opening. Further, it found she was present in the past at a time when the septic tank was open and toys had been found in it and knew the backyard was a favorite place for her son to play. The court concluded that White "was aware of the danger posed to [her son] by the septic tank" because she had made her son promise not to stand on the lid again and had told the police that in hindsight she should have taken additional precautions. White appeals the trial court's decision.


         White attacks in two ways the sufficiency of the evidence to convict her. She argues that the evidence was insufficient to prove a willful act or willful omission, and she argues that the Commonwealth failed to prove that her conduct caused or permitted the death of her child.

         "When considering on appeal the sufficiency of the evidence presented below, we 'presume the judgment of the trial court to be correct' and reverse only if the trial court's decision is 'plainly wrong or without evidence to support it.'" Kelly v. Commonwealth, 41 Va.App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc) (quoting Davis v. Commonwealth, 39 Va.App. 96, 99, 570 S.E.2d 875, 876-77 (2002)). "[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Although the trier of fact may "draw reasonable inferences from basic facts to ultimate facts, " id., it must not adopt a conclusion reached by the "process of assuming a first position, and then piling inference upon inference, " Payne v. Graves, 32 Va. (5 Leigh) 561, 572 (1834) (quoted with approval in Carter v. Commonwealth, No. 161102, 2017 Va. Unpub. LEXIS 21 (Va. Aug. 17, 2017)).

         Code § 18.2-371.1(A) provides, in part, "Any parent, guardian, or other person responsible for the care of a child under the age of 18 who by willful act or willful omission . . . causes or permits serious injury to the life or health of such child is guilty of a Class 4 felony."

The word [willful] often denotes an act which is intentional, or knowing, or voluntary, as distinguished from accidental. But when used in a criminal statute it generally means an act done with a bad purpose; without justifiable excuse; stubbornly, obstinately, perversely[.] The word is also employed to characterize a thing done without ground for believing it is lawful.

Barrett, 268 Va. at 183, 597 S.E.2d at 111 (alterations in original) (quoting United States v. Murdock, 290 U.S. 389, 394 (1993)); Willful, Black's Law Dictionary (10th ed. 2014) ("The term willful is stronger than voluntary or intentional; it is traditionally the equivalent of malicious, evil or corrupt."). "The term 'willful act' imports knowledge and consciousness that injury will result from the act done. The act done must be intended or it must involve a reckless disregard for the rights of another and will probably result in an injury." Barrett, 268 Va. at 183, 597 S.E.2d at 111. The terms "bad purpose" or "without justifiable excuse" necessarily imply knowledge that particular conduct will likely result in injury or illegality. Id.; Flowers v. Commonwealth, 49 Va.App. 241, 248, 639 S.E.2d 313, 316 (2007) ("In other words, the defendant must have been aware that [the] [omission] was likely to result in serious injury." (quoting Mangano v. Commonwealth, 44 Va.App. 210, 214, 604 S.E.2d 118, 120 (2004) (first alteration in original))). "[S]omething more than negligence must be proved beyond a reasonable doubt to support [a] conviction [under Code § 18.2-371.1(A)]." Ellis v. Commonwealth, 29 Va.App. 548, 555, 513 S.E.2d 453, 457 (1999).

         When evaluating whether lack of supervision was a willful omission that caused or permitted a substantial injury to a child, this Court often considers the analysis in Ellis and Barrett. In Ellis, this Court reversed convictions of felony child neglect under Code § 18.2-371.1(A). The defendant in Ellis left her children, ages two years and four years, unsupervised and asleep in her home while she visited in another building with a neighbor. Id. at 552, 513 S.E.2d at 455. The defendant had negligently left the gas stove on, resulting in a fire that injured the children; the smoke detector was inoperable. Id. at 553, 513 S.E.2d at 455. This Court recognized that the analysis "which is relevant to our determination of 'bad purpose' does not relate ...

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