THE CIRCUIT COURT OF PULASKI COUNTY Bradley W. Finch, Judge.
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
WILLIAM G. PETTY JUDGE.
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). 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.
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).
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.
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
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. 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. White's son's body was found in
the bottom of the septic tank.
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. 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.
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."
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.
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.
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)).
§ 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).
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