COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Elder and Annunziata 

Argued at Richmond, Virginia 

BRENDA ANN ELLIS 

 OPINION BY 

v. Record No. 0148-98-2 JUDGE ROSEMARIE ANNUNZIATA 

 APRIL 20, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

Timothy J. Hauler, Judge 

 Amy M. Curtis (Bowen, Bryant, Champlin & 

Carr, on brief), for appellant. 

 John H. McLees, Jr., Assistant Attorney 

General (Mark L. Earley, Attorney General, 

on brief), for appellee. 

 Brenda Ann Ellis ("appellant") was convicted by bench trial 

of child neglect in violation of Code § 18.2-371.1(A) and of 

cruelty to children in violation of Code § 40.1-103. Appellant 

appeals both convictions, contending the evidence was 

insufficient to find that she acted with the criminal intent or 

state of mind required to support the convictions. For the 

reasons set forth below, we reverse. 

 I. 

 FACTUAL BACKGROUND 

 When considering the sufficiency of the evidence on appeal 

of a criminal conviction, we consider the evidence in the light 

most favorable to the Commonwealth and grant all reasonable 
- 2 -

inferences fairly deducible therefrom. See Brooks v. Brooks, 15 

Va. App. 407, 414, 424 S.E.2d 566, 571 (1992). "An appellate 

court must discard all evidence of the accused that conflicts 

with that of the Commonwealth and regard as true all credible 

evidence favorable to the Commonwealth and all fair inferences 

reasonably deducible therefrom." Lea v. Commonwealth, 16 Va. 

App. 300, 303, 429 S.E.2d 477, 479 (1993). 

 Framed in this light, appellant's trial established the 

following relevant facts. Appellant is the mother of two girls, 

C.E. and L.M., who were four and two years of age, respectively, 

at the time of the following incident. Appellant lived with her 

daughters in a first-floor apartment at 2820 Tower Road, a 

two-story, wooden apartment building. 

 On the afternoon of April 12, 1997, appellant was at home 

with C.E. and L.M. At some point that day, appellant turned on 

a burner of the apartment's gas stove in order to light a 

cigarette. Appellant then removed a soft drink from the 

refrigerator and left her daughters in the apartment unattended, 

walking to La'Shawn Berkley's apartment in another building 

thirty to seventy-five yards from her building. The evidence 

demonstrated that appellant left her daughters in a bedroom with 

the door closed. The trial court inferred from the evidence 

that the children were napping at the time appellant left her 

apartment. Appellant and Berkley prepared food in a microwave 
- 3 -

oven and talked on the front porch of Berkley's apartment 

building; appellant’s apartment was not visible from Berkley's 

porch. 

 A fire began in appellant's apartment shortly after 

appellant left. The tenant residing above appellant's apartment 

reported the fire at 2:11 p.m., when the smoke detector in his 

apartment went off. Appellant was unaware of the fire in her 

apartment until she heard the sirens of the fire department 

while on Berkley's porch. The fire department arrived at 

appellant's apartment at 2:17 p.m. Police Sergeant William 

Pannell arrived on the scene immediately thereafter and saw 

smoke and flames coming from the doorway of appellant's 

apartment. When Pannell arrived, he saw several people holding 

appellant in front of her apartment. Firemen entered the 

apartment, found C.E. and L.M. in a bedroom, and brought the 

children to safety. 

 As a result of the fire, C.E. suffered smoke inhalation and 

was admitted to a pediatric intensive care unit, where she 

received oxygen. L.M.'s injuries required a surgical procedure 

to remove soot from her lungs. The parties stipulated that L.M. 

suffered a "serious injury" as defined by Code § 18.2-371.1. 

 Assistant Fire Marshall Ronald Stokes examined the scene of 

the fire and testified as an expert witness regarding the causes 

and origins of fire, including the time required for a fire to 
- 4 -

develop under given conditions. At trial, Stokes testified the 

fire in appellant's apartment began at the stove. Stokes 

estimated the fire burned for at least thirty minutes before 

setting off the smoke detector in the apartment above 

appellant's residence. Stokes acknowledged his estimation of 

the fire's timing depended on a number of variables. During his 

investigation, Stokes also discovered that appellant's smoke 

detector was inoperable at the time of the fire. The 

Commonwealth presented no evidence that appellant intentionally 

left the gas jet burning before leaving her apartment. 

 Appellant admitted to Detective Harry Owens that she left 

her daughters unattended in order to visit Berkley's apartment. 

Appellant also said that she believed "she may have left [the 

gas stove] on." Appellant estimated that she had been out of 

the apartment for fifteen minutes before she became aware of the 

fire. Appellant told Francis Fitzpatrick, a child protective 

services worker who subsequently interviewed appellant, that the 

fire started because she "had turned on the burner of the stove 

to light a cigarette and had forgotten to cut the burner off and 

went outside." Appellant also stated to Fitzpatrick that "she 

didn't see anything wrong with what she had done by going 

outside and leaving the children alone in the apartment [and] 

that everyone at Park Lee does that." 
- 5 -

 Appellant was charged with child neglect in violation of 

Code § 18.2-371.1 and with cruelty to children in violation of 

Code § 40.1-103. With respect to two-year-old L.M., the trial 

court found appellant guilty of child neglect. With respect to 

four-year-old C.E., the trial court found appellant guilty of 

cruelty to children. 

 In support of its holding, the court made the following 

findings of fact: "that the acts of the Defendant were leaving 

two children aged 27 months and four years nine months asleep in 

a closed apartment for a period of 15 to 30 minutes with a 

purpose of socializing with friends or neighbors some 30 to 50 

yards away." The court further stated: 

 Taking the evidence in a light most 

favorable to the Defendant, demonstrates 

both recklessness and a callous 

indi[fference] as well as a willful and 

wanton disregard for the well-being, health, 

safety, and welfare of those children. The 

Court does find that in [the case of L.M.], 

serious injury had been sustained. 

 II. 

 SUFFICIENCY OF THE EVIDENCE AS TO CHILD NEGLECT 

 Appellant challenges her conviction under Code 

§ 18.2-371.1, contending the evidence was insufficient to prove 
- 6 -

her actions constituted a "willful" act or omission, as that 

term has been construed under Virginia law.1 We agree. 

 The meaning of "willful," as it is used in Code 

§ 18.2-371.1, appears to be an issue of first impression but the 

meaning of the word in other contexts applies here. "Willful" 

generally means an act done with a bad purpose, without 

justifiable excuse, or without ground for believing it is 

lawful. See Richardson v. Commonwealth, 21 Va. App. 93, 99, 462 

S.E.2d 120, 123 (1995). The term denotes "'an act which is 

intentional, or knowing, or voluntary, as distinguished from 

accidental.'" Snead v. Commonwealth, 11 Va. App. 643, 646, 400 

S.E.2d 806, 807 (1991) (quoting United States v. Murdock, 290 

U.S. 389, 394 (1933)). The terms "bad purpose" or "without 

justifiable excuse," while facially unspecific, necessarily 

imply knowledge that particular conduct will likely result in 

injury or illegality. See Murdock, 290 U.S. at 395-96.2

 

 1Code § 18.2-371.1 provides that "[a]ny parent . . . 

responsible for the care of a child under the age of eighteen 

who by willful act or omission or by refusal to provide any 

necessary care for the child's health causes or permits serious 

injury to the life or health of such child shall be guilty of a 

Class 4 felony." 

 

 2In Murdock, the United States Supreme Court determined that 

conduct premised on a good faith misunderstanding of liability 

under the tax code, i.e. with justifiable excuse, did not 

constitute conduct undertaken with "a bad purpose." 290 U.S. at 

395-96. 
- 7 -

 When ruling upon the sufficiency of the evidence, we grant 

the judgment of a trial court sitting without a jury the same 

weight as a jury verdict and will not disturb that judgment on 

appeal unless it is plainly wrong or without evidence to support 

it. See Myrick v. Commonwealth, 13 Va. App. 333, 339, 412 

S.E.2d 176, 179 (1991). "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." Fleming v. Commonwealth, 13 Va. App. 349, 353, 412 

S.E.2d 180, 183 (1991). 

 Applying these standards of review, we find that under the 

circumstances of this case the evidence does not establish 

beyond a reasonable doubt that appellant acted with the 

requisite intent when she left her two children unattended. 

While appellant, without question, purposefully and 

intentionally left her apartment to visit a friend in another 

residential building, the intent which is relevant to our 

determination of "bad purpose" does not relate simply to why she 

left the apartment. Rather, it relates to the degree to which 

she was aware of the danger when leaving her children 

unattended. Here, no evidence establishes that she left the 

apartment with the intent to injure her children; nor does the 

evidence support the conclusion that she acted with knowledge or 

consciousness that her children would be injured as a likely 
- 8 -

result of her departure to visit a neighbor for a short period 

of time in another residential building. 

 While evidence in this case supports the conclusion that 

the fire in the apartment was the likely result of appellant's 

inadvertent failure to turn off a gas burner, it fails to show 

that appellant left the apartment knowing the burner was on and 

in conscious disregard of the likely ignition of a grease fire 

that would ultimately endanger the lives of her children. 

Unquestionably, the evidence supports the conclusion that 

appellant was negligent in forgetting to turn off the gas jet 

and in failing to check the operability of the apartment's smoke 

detectors; however, something more than negligence must be 

proved beyond a reasonable doubt to support her conviction. See

Mosby v. Commonwealth, 23 Va. App. 53, 59, 473 S.E.2d 732, 735 

(1996) (affirming that the imposition of criminal penalty must 

rest upon something more than a finding of simple negligence). 

 We acknowledge, as the Commonwealth argues, that appellant 

could not satisfactorily monitor her children while they 

remained unattended inside an apartment and she visited with a 

neighbor in another building thirty to seventy-five yards away. 

However, inattention and inadvertence have not been heretofore 

equated with actions taken willfully, thus making them subject 

to criminal penalty. See Snead, 11 Va. App. at 647, 400 S.E.2d 

at 807 ("'In a criminal statute, “willfully” ordinarily means 
- 9 -

designedly, intentionally or perversely.'" (quoting Lambert v. 

Commonwealth, 6 Va. App. 360, 363, 367 S.E.2d 745, 746 (1988))); 

Lynch v. Commonwealth, 131 Va. 762, 766, 109 S.E. 427, 428 

(1921). See also Murdock, 290 U.S. at 395 (stating that 

"willfully" denotes "conduct marked by careless disregard 

whether or not one has the right so to act . . . ."); Mullen v. 

United States, 263 F.2d 275, 276 (D.C. Cir. 1958) (finding that 

willful maltreatment of a child requires "something worse than 

good intentions coupled with bad judgment"). Similarly, 

appellant's inability to "see anything wrong with what she had 

done by going outside and leaving the children alone in the 

apartment," while clearly misguided, is reflective of simple 

negligence, not criminal conduct. 

 Based on the foregoing, we reverse appellant's conviction 

for violation of Code § 18.2-371.1. 

 III. 

 SUFFICIENCY OF THE EVIDENCE AS TO CRUELTY TO CHILDREN 

 The negligence required to sustain a conviction under Code 

§ 40.1-1033 is "criminal negligence." See Mosby, 23 Va. App. at 

59, 473 S.E.2d at 735. Criminal negligence must entail 

something more than "'the lack of ordinary care and 

 

 3Code § 40.1-103 provides "[i]t shall be unlawful for any 

person . . . having the custody of any child willfully or 

negligently to cause or permit the life of such child to be 

endangered or the health of such child to be injured . . . ." 
- 10 -

precaution[,] . . . something more than mere inadvertence or 

misadventure.'" Id. (quoting Bell v. Commonwealth, 170 Va. 597, 

611, 195 S.E. 675, 681 (1938)). "The negligence must be 'so 

gross and culpable as to indicate a callous disregard of human 

life and of the probable consequences of [the] act.'" Id.

(quoting Keech v. Commonwealth, 9 Va. App. 272, 277, 386 S.E.2d 

813, 815 (1989)). In Bell, the Virginia Supreme Court defined 

criminal negligence in terms of "gross negligence," stating that 

conduct "is culpable or criminal when accompanied by acts of 

commission or omission of a wanton or wil[l]ful nature, showing 

a 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 

the offender knows, or is charged with the knowledge of, the 

probable result of his acts." 170 Va. at 611-12, 195 S.E. at 

681. 

 While willful misconduct requires an intentional or 

purposeful act or failure to act, gross or criminal negligence 

involves a failure to act under circumstances that indicate a 

passive and indifferent attitude toward the welfare of others. 

See id. Moreover, the defendant must be proved indifferent in 

the face of knowledge that injury or illegality will be the 

probable result or, in the alternative, that circumstances exist 
- 11 -

under which the defendant may be chargeable with such knowledge. 

See id.

 Here, the evidence establishes that appellant inadvertently 

failed to turn off a gas jet on her stove just before stepping 

out of her apartment to visit a friend while her daughters slept 

in a closed bedroom. Notwithstanding the fire that resulted 

from her inadvertence, the evidence fails to show that appellant 

acted with the requisite knowledge or callous indifference to 

the fact that her children were at risk of injury while she left 

them unattended. As such, the evidence is insufficient to 

support her conviction under Code § 40.1-103. See Mosby, 23 Va. 

App. at 59, 473 S.E.2d at 735. 

 For the reasons stated, we reverse appellant's convictions 

and dismiss. 

 Reversed and dismissed.