COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Ke lsey and Senior Judge Overton Argued at Chesapeake, Virginia

CHERYL KASHAWN JONES OPINION BY v. Record No. 2200-04-1 J UDGE ROBERT J. HUMPHREYS NOVEMBER 8, 2005 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Charles D. Griffith, Jr., Judge B. Thomas Reed for appellant. Virginia B. Theisen, Assistan t Attorney Genera l (Judith Williams Jagdmann, Attorney General, on brief), for appellee.

Cheryl Kashawn Jones (appellant) appeals her conviction, following a bench trial, of felonious child neglect, in viol ation of Code § 18.2-371.1(B)(1). On appeal, she contends the evidence was insufficient to prove she willfully fa iled to provide care for her child in a manner so gross, wanton, and culpable as to show a r eckless disregard for his life. We disagree and

affirm.

BACKGROUND When considering the sufficiency of the evid ence on appeal of a crim inal conviction, we view the evidence “in the light most favorable to the Commonwealth and grant all reasonable inferences fairly deducible therefrom.” Ellis v. Commonwealth , 29 Va. App. 548, 551, 513 S.E.2d 453, 454 (1999). So viewed, the evidence established that , as of October 23, 2003, appellant had one eight-year-old child. On October 23, 2003, fifteen City of Norfolk police officers, dressed in- 2 - body armor and ballistic helmets, executed a search warrant 1 at appellant’s apartment. 2 During the week prior to execution of this warrant , officers conducted surveillance on appellant’s apartment, and they noticed heavy foot traffic going to and from the residence. The officers consummated an undercover purchase of narcotics at the apartment, and informants indicated

that lookouts were stationed both da y and night inside the hallways leading to the apartment. The informants also told the officers the occupants might be armed. As the officers made their way to the apartment to execute the warrant, appellant’s brother exited the apartment and th en attempted to reenter it. Offi cer Currot, the lead detective, pushed appellant’s brother to the ground and ente red the apartment. Th e officers were equipped with a steel ram to open the door, and they en tered the apartment with weapons drawn. The weapons included submachine guns, .45 caliber handguns, and 9-millimeter handguns. Upon entry, the officers observed appellant, her sister, and her sister’s boyfriend in the living room. Currot entered the first bedroom on the left and saw appellant’s son on the bed doing his homework. The child’s head was at th e foot of the bed, and his feet were by a nightstand at the head of the bed. On the ni ghtstand, Currot found a medi cine bottle containing fourteen capsules of heroin. Under the mattress below the ch ild’s head, Currot found a dinner plate dusted with cocaine residue. There were al so packaging materials with the plate. In the next room, Currot found seven other unattended child ren ranging in age from infancy to seven or eight years old.

1 The record refers to the warrant as a “no- knock, level three search warrant.” The record does not reflect what is meant by such a descripti on of the search warrant; however, it is evident that the decision was made to effectuate a “no-knoc k” entry to execute the warrant. In any event, the propriety of the warrant a nd the manner of its execution are not at issue in this case.

2 As indicated by Officer Currot, the officer s executed a no-knock entry because they perceived a higher threat of harm as they expected the occupants to be armed.- 3 - On July 27, 2004, appellant was convicted of one count of felony child neglect. In convicting appellant of the charged offens e, the trial court noted the following:

Given the evidence of what the be havior was and the actions that were going on inside of the residenc e just moments prior to and at the time of the execution of the warrant, that is always part and parcel of the drug trade. There’ s evidence that there were guards outside . . . [t]here was foot traffic . . . for the week prior . . . . The child was in proximity to a contai ner of 14 capsules of heroin in excess of a gram, 1.015 grams . . . . And although you make a point about a childproof container, th is is an eight-year old child. This is not a baby whose motor skil ls have not developed yet . . . . And the mother’s statement admits she’s selling some 20 capsules a day for the last three months out of the apartment. The fact that this was there . . . is further ev idence of an ongoing activity on her part. So she’s placed him in a position where he has direct, personal access to a drug that can cause death if overdosed . . . . [S]he’s placed her child in a position where he’s likely or reasonably likely to perhaps take the drug by accident and unwittingly and seriously injure himself or kill himself. Then on top of that, she’s engaged in an ac tivity that creates a high risk of violence . . . . [W]hen a large team of narcotics investigators armed with a no-knock search warr ant goes into an apartment in heavy body armor and armed with their weapons drawn, anything can happen . . . . [T]hose are the things that the mother fails to account for by engaging in this hi gh risk, dangerous activity with her son right there in the middle of it all. This appeal followed.

ANALYSIS On appeal, appellant contends that her c onviction for felony child neglect should be

reversed because her conduct was insufficient to demonstrate a gross, wanton, and willful disregard for human life. For the reasons that follow, we disagree a nd, therefore, affirm. When the sufficiency of the evidence is ch allenged on appeal, the judgment of the trial

court will not be set aside unless it appears from the evidence that the judgment is “plainly wrong or without evidence to suppor t it.” Martin v. Commonwealth , 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). Also, “[g]r eat deference must be given to the fact finder who, having- 4 - seen and heard the witnesses, assesses their cr edibility and weighs their testimony.” Walton v.

Commonwealth , 255 Va. 422, 426, 497 S.E.2d 869, 871 (1998). Appellant was convicted of violating C ode § 18.2-371.1(B)(1), which provides in relevant part as follows: Any parent, guardian or other pers on responsible fo r the care of a child under the age of 18 whose willf ul act or omission in the care of such child was so gross, wa nton and culpable as to show a reckless disregard for human life shall be guilty of a Class 6 felony. Thus, to support a conviction for felony child ne glect, the Commonwealth mu st establish that the defendant, through her willful act or omission, crea ted a situation placing the child at risk of actual physical harm. Barrett v. Commonwealth , 268 Va. 170, 183, 597 S.E.2d 104, 110 (2004). Unlike Code § 18.2-371.1(A) which prohibits “any parent, guardian, or other person responsible for the care of a child ” from willfully permitting “any inju ry to the life or health of such child,” subsection (B)(1) of the statute “doe s not require that a child actually suffer serious injury as a result of the defendant’s acts or omission.” Commonwealth v. Duncan , 267 Va. 377, 385, 593 S.E.2d 210, 214 (2004). The structure of subs ection (B)(1), in part icular, the absence of any injury requirement and the authorizati on of a less severe punishment, “demonstrates a legislative intent to prohib it conduct that also has the potential for endangering a child’s life.”

Id. (emphasis added). Thus, as Duncan instructs, the statutory element of “‘reckless disregard [for human life]’ can be shown by conduct that subj ects a child to a substantial risk of serious injury, as well as to the risk of death, because exposure to either type of risk can endanger the

child’s life.” Id. The sole issue on appeal in this case is whether the mother’s conduct created a probability of serious bodily injury or death suffi cient to bring that conduct within the scope of- 5 - Code § 18.2-371.1(B)(1). We hold appellant’s conduct did subject her child to a substantial risk of serious bodily injury or deat h, and we affirm her conviction.

A. Initially, to be convicted under Code § 18.2-371.1( B)(1), an individual must engage in a “willful act or omission in the care of [a] child [t hat is] so gross, wanton and culpable as to show a reckless disregard for human life.” In the pres ent case, the record reflects appellant willfully engaged in selling heroin from her apartment. A ppellant stated that, for three months prior to the execution of the search warrant, she had been selli ng approximately 20 capsules of heroin a day. Upon execution of the warrant, police found a medici ne bottle containing f ourteen capsules of heroin on a nightstand near appellant’s child. It is this drug activity, both the sale of drugs from the apartment and the presence of a controlled substance in close proximity to the child, that constitutes the willful act required by the statute. Appellant does not contest she engage d in such conduct, but rather argues that such conduct was insufficient to pose a substantial or probable likelihood of seri ous bodily injury or

death to the child.

B. First, appellant contends armed entry by police officers merely could have resulted in injury and, therefore, did not cr eate the requisite “probability” of harm contemplated by Code § 18.2-371.1(B)(1). We disagree.

As we observed in Williams v. Commonwealth , 4 Va. App. 53, 354 S.E.2d 79 (1987), Although suspicion of narcotics pos session and distribution is not universally recognized as a circ umstance which, standing alone, gives rise to an inference of da ngerousness, we believe that the better view is that it does. The Supreme Court implied as much in Summers when it stated: “[T]he execu tion of a warrant to search for narcotics is the kind of transac tion that may give rise to sudden violence or frantic efforts to conceal or destroy evidence.”- 6 - Id. at 67, 354 S.E.2d at 87 ( quoting Michigan v. Summers , 452 U.S. 692, 702 (1981)) (citation omitted).

In Williams , police officers obtained a search wa rrant for a home believed to contain

cocaine. Id. at 59, 354 S.E.2d at 82. However, before the officers could execute the warrant, Williams, the individual suspected of dealing coca ine, left the home in his vehicle. Id. An officer conducting surveillance of the residence notified the officer who was en route to execute the warrant that Williams had left the home. The officers decided to follow Williams and pull him over. When Williams exited the vehicle, the officers conducted a pat-down search for weapons. Id. Williams contested the validity of the pat-down search. 3 Id. at 66, 354 S.E.2d at 86. In deciding the pat-down search was not in violation of Williams’s Fourth Amendment rights, this Court recognized that, because th e officers knew Williams was presently engaged in narcotics distribution, they we re entitled to conduct a prot ective pat-down search. Id. at 66, 354 S.E.2d at 87. This Court stated “[t]o hold otherwise would be an invitation to violence in what is always a potentially explosive situation.” Id. The facts and circumstances of the presen t case clearly illustrate the recognized connection between violence and drugs. Further, this case presents a situation in which the ongoing potential for violence stemming from the illegal sale of drugs continually put a child in harm’s way. The record indicates that, based on the pr ior week’s surveillance that suggested substantial drug trafficking, police officers en tered appellant’s home pursuant to a search warrant, wearing body armor with their weapons drawn. Although no weapons were actually found in the apartment, the officers, believing the occupants to be ar med, executed a no-knock

3 This was not the only issue on appeal; however , it is the only relevant issue with regard to the relationship between drugs and violence.- 7 - entry and conducted themselves in a precautionary manner. Based on the information received from the informants, and the nature of the drug trade, the potential for violence was present and caused by the appellant’s own actions. Appellant argues that, because the officers did not observe any firearm activity in the week before the raid and did not find any firearms in the apartment, the type of violent resistance contemplated in Williams and Summers was far from probable. We disagree. Appellant engaged in the illega l sale of narcotics from he r home. Based on their ongoing investigation, the officers executing the warrant believed the occupants might be armed. This caused the officers to enter with protective armo r and weapons drawn. As indicated by Currot’s testimony, this type of situation in herently poses a risk of substa ntial bodily harm or death, even to children and other innocent bystanders. 4 Officer training aside, th e appellant’s willful conduct led the officers to believe that violence may ha ve resulted upon execution of the warrant. The mere presence of armed officers cr eated a situation fraught with the potential for violence. Thus,

a reasonable fact finder could in fer that, when armed officers entered appellant’s apartment, the potential for harm to her child escalated. A r easonable fact finder could also conclude this particular harm posed a substantial or probabl e likelihood of serious bod ily harm or death as required by Code § 18.2-371.1(B)(1).

4 Currot testified to the type of potential danger to innocent children bystanders that could arise in situations such as the one before this Court. When asked by defense counsel if he felt threatened by the child on the bed, Currot res ponded “No, sir.” Howeve r, he qualified this response by stating he once almost shot a child in the dark after mistaking the child for an animal. In that situation, Currot had also entered the residence with his weapon drawn. Although it was not dark at the time Currot execute d the warrant, he acknowledged the potential for serious bodily harm or death to innocent children dur ing a police raid.- 8 - C. Appellant also contends that merely pl acing a child in a position where he is reasonably likely to ingest illegal drugs does not give rise to a probability of harm contemplated by Code § 18.2-371.1(B)(1). Again, we disagree. Although this Court has never addressed whet her a child’s mere pr oximity to illegal narcotics creates a substantial risk of bodily ha rm, we hold that, under the circumstances of this case, a reasonable fact finder could have conclude d that the child was at risk of ingesting the illegal narcotics and incurring substantial bodily harm as a result. Other states, which have addressed this question in the context of similar statutes, have reached the same conclusion. For example, in State v. Padua , 869 A.2d 192 (Conn. 2004), the Supreme Court of Connecticut

affirmed the convictions of three defendants w ho kept marijuana in close proximity to two children, ages seven and three. 5 These convictions stemmed from evidence found when police

officers executed a search warrant on the defendants’ home. Id. at 199. Upon entry, the officers found marijuana on the kitchen table being packaged for sale. Id. They also found large amounts of marijuana in different lo cations throughout the house. Id. The appellants in that case argued the mere presence of marijuana was not sufficient to justify a conviction under the statute. The Conn ecticut Supreme Court di sagreed. In affirming the convictions, the Padua court noted that “[t]he ability to draw inferences about the impairing effects of marijuana, like alcohol, . . . is based upon common knowledge, experience and

common sense.” Id. at 203. The court further stated that, although the precise physiological effects of marijuana and their severity may not be within co mmon knowledge, the only question the jury must answer is whether the ingestion, oral or otherwise, of marijuana would be likely to

5 The three defendants were the children’s parents and their grandmother. All were charged with two counts of risk of injury to a child.- 9 - injure the child. Id. at 207. Under the circumstan ces of that case, the Padua court concluded that the mere presence of marijuana was sufficient to create a likelihood of injury to the child. See id. In this present case, appellant stated she had been selling 20 capsules of heroin a day from her apartment since July 2003. When the o fficers executed the search warrant, appellant’s child was within an arm’s reach of fourteen capsu les of heroin. Also, a plate containing cocaine residue and plastic bags for packaging were located under the mattress where he lay.

As in Padua , the illegal substance was within arm’s reach of appellant’s child. There is no evidence to suggest appellant took any precauti ons to eliminate the pos sibility of her child opening the container and ingesting the heroin. 6 As stated in Duncan , “based on the evidence presented, the dangers inherent in such a situation could be inferred by the fact finder as a matter of common knowledge.” Duncan , 267 Va. at 386, 593 S.E.2d at 215. Thus, we find that a reasonable fact finder could infer, based on co mmon knowledge, that there are inherent dangers in placing any amount of an illegal substance su ch as heroin within reach of a child.

CONCLUSION By engaging in the sale of drugs from her home, appellant willfully placed her child in harm’s way. She exposed her child to the risk of an accidental overdose. Her child and other children were also placed in the midst of a pot entially violent situation when police officers entered appellant’s apartment while executing the search warrant. This type of inherently dangerous situation clearly poses a substantial risk of serious bodily injury or harm to the child

6 At oral argument, appellant’s counsel s uggested that the child proof container would have prevented appellant’s son from opening the bottle and ingesting the drugs. He commented further that there was no evidence in the reco rd to suggest her son could have opened the childproof medicine bottle containing the heroin. However, as noted by the trial court, although the heroin was in a childproof container, the child was not a baby whose motor skills had not developed. And, as the Commonwea lth asserts, there is no evid ence that appellant’s son, who was eight years old at the time and able to read and write, would be unable to follow the instructions, “push down and turn to open,” that were printed on the bottle cap.- 10 - and is within the parameters the legisl ature contemplated when drafting Code § 18.2-371.1(B)(1). We hold, therefore, that th e evidence was sufficient to prove beyond a

reasonable doubt that the trial court did not err in concluding that appe llant’s conduct “was so gross, wanton and culpable as to show a reckless disregard for human life.” Code § 18.2-371.1(B)(1). For these reasons, we affirm appellant’s conviction.

Affirmed.