COURT OF APPEALS OF VIRGINIA

Present: J udges Petty, Alston and Russell Argued at Lexington, Virginia

ASHLEY JENNIFER WHITE OPINION BY v. Record No . 1322-16-3 JUDGE W ILLIAM G. PETTY SEPTEMBER 19, 2017 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PULASKI COUNTY Bradley W. Finch, Judge Kelsey M. Bulger, Assistant P ublic Defender (Cynthia Dodge, Public Defender, on briefs), for appellant. Victoria Johnson, Assistant Atto rney General (Mark R. Herring, Attorney General, on bri ef), for appellee.
Ashley Jennifer White was convi cted of two counts of child abus e and neglect in violation of Code § 18.2-371.1(B) an d one count of child abuse and neglect in v iolation of Code § 18.2-371.1(A). 1 On appeal, White challenges on ly the conviction under Code § 18.2-371.1(A). White argues that the evidence was insufficient to prove she co mmitted a willful act or willful omission that caused or permitted the tragic death of her five- year-old son.
B ACKGROUND When considering whether evidence is sufficient to sustain a cr iminal conviction, we view the evidence in the light most favorable to the prevailing party at trial a nd grant to it all reasonable inferences fairly de ducible from that evidence. Barrett v. Commonwealth, 268 Va.

1 White was sentenced to serve five years for ea ch conviction. The trial court suspended all but one year and eleven months of the fifteen-year sentence without apportioning the active sentence among the three convictio ns. It appears that at the t ime this case was argued, she had already served the active portion of her sentence.PUBLISHED‐ 2 - 170, 179, 597 S.E.2d 104, 108 (2004). It is “within the provin ce of the [fact finder] to determine what inferences are to be drawn f rom 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 h er infant daughter and five-year-old son at home alone while she took her husband to work. When she returned, she took prescription Suboxone a nd laid down on her bed to watc h television with her son while waiting for her daughter to wak e up. At about 8:45 a.m., White let her son go to the living room to watch cartoons, and she fell as leep. White awoke at about 1 0:30 a.m. to the sound of her daughter’s crying. After tendi ng to her daughter, White found the television i n the living room blaring, the front door open, a nd her son missing. White searc hed inside and outside for her son, but to no avail. She called the landlord, who lived on adjoini ng 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 respons e. She then called 911. The law enforcement officers re sponding to the scene searched both inside and outside the home. One officer saw the s eptic tank lid while he was usi ng a search dog but did not investigate the lid at that tim e. Later, he approached the sep tic 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 i nto the brown murky water in the septic tank and moved it around, f inding no resistance. In the ensuing four days, the septic tank lid was lifted and replaced by sev eral searchers, including an FBI agent, who had come to assist in finding the missing child. Aft er looking in the septic tank , neither the offi cer nor the FBI agent secured the lid on the opening.‐ 3 - During the four-day search for the child, White was interviewed multiple times. She initially told the officers that she had taken the children wit h her when she took her husband to work that morning, but later admitted that she had left them al one. 2 She said that if her son had gone outside, he would not have left the yard except to play wi th the nearby neighbors. On Thursday, March 26, the FBI agent ordered the septic tank to be drained, and at th at time noticed that only one screw was in the lid’s hole. A subsequent searchof the surrounding area with a metal detector did not locate a ny other screws , bolts, or faste ners. 3 White’s son’s body was found in the bottom of the septic tank. The septic tank had been installe d by a contractor in approxima tely 2002. The septic system was inspected to ensure it conformed to all safety stand ards, including the requirement that it include a ta mper proof, child resistant lid. Witnesses described the lid as a black plastic disc approximately two feet in d iameter and weighing two to thr ee pounds. White began renting the home in 2010, when her son was an infant. In 2014, the lan dlord, with the help of a retired plumber, ran a pipe from an adj acent rental property to the sep tic tank in White’s yard. The connection required digging beside the tank and removing a plas tic ring approximately a foot

2 The fact that White left her young children alone at home whil e she took her husband to work was a significant fact i n her convictions under Code § 18. 2-371.1(B), which she does not challenge on appeal. Because no i njury occurred to the childre n from being left alone earlier in the morning of March 22, 2015, the c onduct does not establish c riminal liability under Code § 18.2-371.1(A). However, White’s c hanging story regarding lea ving her childre n alone earlier on that fateful day are included he re as relevant to the trial court’s assessment of White’s credibility.

3 Photographs of the septic tank l id were admitted in lieu of th e actual lid. The photographs show the label “safety screws  ” on the lid and suggest the safety screws attached the lid from the side. These screws would have been obscured b y grass that grew above the lip of the opening. Several of the screw holes on the top of the l id were caked with mud. No screws were attached to the lid when t he photographs were taken, and n o screws were admitted into evidence. No evidence was intr oduced as to what condition the screw or screws were in at the time of White’s son’s death.‐ 4 - down from the top of the septic tank. While conn ecting the new line, the landlord removed toys from the septic tank. 4 The landlord mowed the yar d often, including behind the home where the

4 The landlord testified that he had never pumped the tank and h e did not remember removing toys from the tank. T he only testimony regarding toys in the septic tank came from White herself in an interview with Sergeant Billy Ritter after her son’s body was discovered. Ritter told White that he wanted as much information on the sep tic tank as possible. Ritter testified at trial t o the interview, readi ng from the transcrip t of the interview, butthe transcript of the interview was not introduced as evidence. Ritter testified as follows: [Commonwealth]: Did Ms. White t ell you that she was present at a time when the septic tank w as cleaned or, or at least opened up? And I’m referri ng to Page 36. Well, did, did Ms. White say anything about a time when the lid was opened and I believe [the l andlord] was present? [Ritter]: Yes. We were actuall y discussing the history and the ir knowledge of the septic. And she makes a statement that “[The landlord] and that guy w ere out back at one time digging stuff out of it, and they w ere bitching about finding toys.”

. . . . Her next statement after tha t was “Yeah, he told us to stop flushing cigarette butts.” Although the Commonwealth stoppe d there on direct examination, defense counsel elicited the next statements i n the interview. [Ritter]: Mrs. White states, “Yeah, he told us to stop flushin g cigarette butts.” [Defense]: And the n what did you ask her? [Ritter]: “How did you do it? How did you do that? I mean, h ow did you put it in there? . . . There were toys that came [d]own the toilet?” [Defense]: And how did she respond? [Ritter]: “Yeah.” The context of the conversation i ndicated the c omplaint about t oys was in 2014 when the landlord was adding the new line . It is not completely clear f rom the testimony whether the toys were removed from the septic ta nk itself, from the filter, or f rom the hole dug beside the tank. It was not clear from the testimony that the toys actually belonge d to White’s son. Neither party elicited testimony to clarify the se points. Viewing the eviden ce in the light most favorable to the Commonwealth and with all reasonable inferences, we accept as f act that White was aware that the landlord removed her son’s toys from the septic tank almost a year before his death. There is‐ 5 - septic tank lid was. The landl ord testified he “could mow up t o it on top of it with a riding lawn mower [and would] run up to the edg e of it, back off of it.” T he access lid for the septic tank was located about twelve feet fro m the back door of the residen ce, 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 so mething from the car while s he was asleep. Her son played in the backyard so nobody else could s ee 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 “yell ed” at him and told him he was n ot allowed on the lid; she made him promise never to stand on it again. When asked if the inci dent was a “red flag” to her, she responded, “I just thought he s houldn’t be standing on it. . . . I didn’t know it was that deep. I didn’t know that it was like suc h 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, th e trial court found White guilty of child abuse and neglect in violation of Code § 18.2-371.1(A) . The trial court noted th at after hearing White’s testimony and seeing her demeanor, it found som e of her statements to be “self-serving testimony designed to help conceal her guilt.” I t found that White had lived in t he home five years and was aware of the septic tank and its openi ng. Further, it found she was pre sent 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

simply nothing in this testimony, how ever, from which the trial court could infer that the toys got into the tank in a manner other than by flushing them down the toilet. Nor does this testimony provide a basis for inferring tha t White was aware that her son was able to open the lid or that she had been present when the tank was open.‐ 6 - 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 additio nal precautions. White appeals the trial court’s decision.
A NALYSIS White attacks in two ways the su fficiency of the evidence to co nvict her. She argues that the evidence was insufficien t to prove a willful act or willful omission, and she argues that the Commonwealth failed to prove tha t her conduct caused or permitt ed the death of her child. “When considering on appeal the su fficiency of the evidence pre sented below, we ‘presume the judgment of the tri al court to be co rrect’ and rev erse only if the trial court’s decision is ‘plainly wrong or w ithout 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 releva nt question is whether, after viewing the evidence in the lig ht most favorable to the prosecu tion, any rational trier of fact could have found the essential elements of the crime beyond a r easonable doubt.” Id. (quoting Jackson v. Virginia, 443 U .S. 307, 319 (1979)). Although the t rier of fact may “draw reasonable inferences from basic facts t o ultimate facts,” id., it must no t adopt a conclusion reached by the “process of assuming a first po sition, and then piling inferenc e upon inference,” Payne v. Graves, 32 Va. (5 Leigh) 561, 572 (1834) (quot ed with approval in Carte r v. Commonwealth, No. 161102, 2017 Va. Unpub. LEXIS 21 (Va. Aug. 17, 2017)). Code § 18.2-371.1(A) provides, in p art, “Any parent, guardian, or other person responsible for the care of achild under th e 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 a n act which is intentional, o r knowing, or voluntary, as distingui shed from accidental. But w hen‐ 7 - used in a criminal statute it ge nerally means an act done with a bad purpose; without justifiable e xcuse; stubbornly, obstinately, perversely[.] The word is als o employed to characterize a thin g done without ground for believing it is lawful. Barrett, 268 Va. at 183, 597 S.E.2d at 111 (alterations in orig inal) (quoting United States v. Murdock, 290 U.S. 389, 394 (1993)); Willful, Black’s Law Dictio nary (10th ed. 2014) (“The

term willfulis stronger than voluntary or intentional ; it is traditionally the equivalent of malicious, evil or corrupt .”). “The term ‘willful act’ imports knowledge and consciousne ss that injury will result from the act done. The act done must be int ended or it must involve a reckless disregard for the rights of anot her and will prob ably result inan injury.” Barrett, 268 Va. at 183, 597 S.E.2d at 111. The terms “bad pur pose” or “without justifi able 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 tha t [the] [omission] was likelyto 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 mo re than negligence must be proved beyond a reasonable doubt to support [a ] conviction [under Code § 18.2-3 71.1(A)].” Ellis v. Commonwealth, 29 Va. App. 548, 555, 513 S.E.2d 453, 457 (1999). When evaluating whether lack of s upervision was a willful omis sion that caused or permitted a substantial injury to a child, this Court often con siders the analysis in Ellis and Barrett. In Ellis, this Court reversed convictions of felony c hild neglect under Code § 18.2-371.1(A). The defendant in Ellis left her children, age s two years and four years, unsupervised and asleep in her hom e while she visited in anothe r 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 anal ysis “which is relevant to our de termination of ‘bad purpose’ does‐ 8 - not relate simply to why [the de fendant] left the [children uns upervised.] Rather, i t relates to the degree to which she was aware of the danger when leaving her ch ildren unattended.” Id. at 555, 513 S.E.2d at 457. The Supreme Court cited Ellis with approval in Barrett, but di stinguished Barrett’s level of awareness regarding the probabi lity of injury when she left her children unsupervised. Barrett, 268 Va. at 186 n.8, 597 S.E.2d at 112 n.8. Barrett fe ll into a heavy sleep after a night of drinking and left her children, a ges ten months and two years, unsupervised and unsecured for more than six hours. Id. at 182, 597 S.E.2d at 110. The mothe r knew that the older child’s favorite place to play was the ba thtub and knew of the older ch ild’s “propensity for attempting to injure [the younger child,] but recklessly disregarded those wa rning symptoms.” Id. at 184, 597 S.E.2d at 111. By leaving the tw o young children unsupervised for the extended length of time, and with the knowledge that the two year old had tried to kill the infant on prior occasions, the defendant “created a situation ‘re asonably calculated to produc e injury, or which [made] it not improbable that injury [would] be occasioned . . . .” Id. (fir st and second alterati on in original). “The distinguishing feature be tween Barrett and Ellis is an a wareness of the likely danger in the defendant’s conduc t. Barrett knew of the danger; Ellis did not.” Mangano, 44 Va. App. at 215, 604 S.E.2d at 120. Code § 18.2-371.1(A) “puni shes willful omissions, which requires an awareness that the conduct would cause or permit se rious injury. It proscribes advertence, not inadvert ence.” Id. at 216, 604 S.E.2d at 121. Thus, a finding of willfulness requires that the parent “must ha ve been advertent to the likel ihood that the conduct [omission] in question would cause or perm it serious injury.” Id. at 215, 604 S.E.2d at 121 (quoting Roger D. Groot, Criminal Offenses and D efenses in Virginia 355 (4th e d. 2003)); see also Bean-Brewer v. Commonwealth, 49 Va. App. 3, 11, 635 S.E.2d 680, 684 (2006) (noting analysis under the Supreme Court’s definition of “w illful” in Barrett requires “anexamination not only of the act‐ 9 - that created the risk, but also of t he degree to which the accu sed ‘was aware of the danger’ that resulted from the act” (alteration omitted)). The Supreme Court subsequentl y distinguished the conduct in Mo rris v. Commonwealth, 272 Va. 732, 740, 636 S.E.2d 436, 440 (2006), from that in Barr ett. In Morris, a mother fell into a deep sleep while taking a na p with her two children, ages fiv e years and two years. Id. at 734, 636 S.E.2d at 437. While the mother was asleep, the two childr en unlocked the door and wandered outside unsupervised. T he mother failed to wake up, e ven when the police banged loudly on her door and loudly announce d themselves. The Suprem e Court reversed Morris’s conviction under Code § 18.2-371.1(B) , holding the evidence was insufficient to show Morris acted willfully with a reckless disregard for the lives of her children. Id. at 740, 636 S.E.2d at 440. Although Morris admitted she had a substance abuse proble m, the court concluded it was “mere speculation . . . to say that Mo rris’ deep sleep was like ly drug or alcohol induced.” Id. Although Morris admitted that the children had gotten out of th e residence “a few days prior,” the Supreme Court found she “ha d no reason to belie ve her children would be in any danger while she was asleep with them , particularly after she had doub le-locked the tra iler door.” Id. at 736, 636 S.E.2d at 438. We also find this Court’s anal ysis in Mangano to be instructiv e. The father in Mangano discovered that his fourteen-y ear-old son and his friend were i n the living room and the son had retrieved a rifle. Manga no, 44 Va. App. at 215, 604 S.E.2d at 120. The father told his son to put the rifle away in an upstairs be droom. The father “had no reas on to suspect that the gun was loaded or that his son woul d not obey him.” Id. The son, howe ver, did not immediately put the rifle away and accidentally shot his friend, causing serious in jury. Id. The trial court convicted the father under Code 18.2-371.1(A) , opining, “I just can’t und erstand how a person can be in a‐ 10 - room and see a gun in the presence of two children and not take some positive act to make that room safe.” Id. at 216, 604 S.E .2d at 121. This Court reverse d the conviction, concluding, That interpretation imposed a c riminal sanction for failing to act to insure the room was safe. The statute punishes willful omissio ns, which requires an awareness that the conduct would cause or permit serious injury. It proscr ibes advertence, not inadverte nce. The evidence did not establish that the defendant knew danger ensued from only ordering his s on to put the gun aw ay rather th an taking it from him. It failed to establish “knowledge and consciousness that injury will result from the act done.” Barr ett, 268 Va. at 183, 597 S.E.2d at 111. Id. Here, White took a nap, leavi ng her five-yea r-old son unsuperv ised in the home. 5 At some point, her son left the home without White’s knowledge and fell into the s eptic tank, which had an unsecured lid. To convict White under Code § 18.2-371.1 (A), the Commonwealth was required to show that White left her son unsupervised with “rec kless disregard” for his safety and with the “knowledge and conscious ness” that the lack of supervi sion would “likely result in injury.” See id. The evidence in the light most fa vorable to the Commonwealth sh owed that the son loved the outdoors and had gone outside o n prior occasions without Wh ite’s knowledge. White’s son was capable of unlocking the door and the screen door. His fav orite place to play was in the backyard, with a basketball hoop on a concrete porch, which was about ten feet from the septic tank lid. The trial court did not err in inferring that White knew her son might go outside to play

5 The trial court found that White had taken a prescription drug before her nap, which may have made her drowsy. However, there was no evidence that the prescription rendered her inaccessible to her son, as was the defendant in Barrett. See Barrett, 268 Va. at 182, 597 S.E.2d at 110. Even if White had been sle eping heavily, that is not s ufficient in itself to render the lack of supervision a willful omi ssion. See Morris, 272 Va. at 740, 636 S.E.2d at 440. Our analysis would be essentially the same if White had allowed her son to p lay in the backyard unsupervised for a different reason, such as talking on a phone, cooking dinner, or visiting a neighbor as in Ellis.‐ 11 - without her knowledge while she w as sleeping. However, the mer e presence of potential hazards in the yard, such as a sw imming pool, pond, or septic tank, is not sufficient to find that White was advertent to the likeli hood that lack of supervision would result in serious injury. The Commonwealth was also required t o show that White knew of a hei ghtened risk in the yard such that the son would likely be inj ured if he played there unsupervised. This appeal turns on “the degree to which [White] was awar e of the danger [of the unsecur ed septic tank] when leaving her [son] unattended.” See Mangano 44 Va. App. at 215, 604 S.E.2d at 120. The trial court was entitled t o disbelieve or disregard White’ s testimony that she had never tried to open the septic t ank lid and did not realize the lid was a dangerous hazard. The Commonwealth failed, how ever, to present evidence from which th e trial court could infer White
did know. The Commonwealth establishe d through the landlord’s test imony that he had often cleaned the filter on the septic tank, had done construction onthe tank, and had mowed the grass around the tank. White clearly knew there was a septic tank inher backyard a nd knew that the landlord had performed maintenan ce on the tank. Neither party, however, elicited testimony regarding how many screws were req uired to secure the lid, the last time it was known to be secured, or whether White had ev er seen the lid unsecured. No evidence was admitted as to whether the lid was c hild resistant or whe ther missing screws w ould be noticeable to a casual observer. No evidence establis hed that White had been present in the backyard when the tank was open or that her son had dr opped toys into the tank by way of the lid. Simply put, there was no evidence from which the trial court could infer that White w as aware, prior to her son’s death, of the heightened danger pose d by the unsecured lid. See Manga no, 44 Va. App. at 215, 604 S.E.2d at 120. Nevertheless, the Commonwealth e mphasizes the trial court’s fi nding that there were toys in and around the septic tank. The Commonwealth suggests that, accordingly, White should‐ 12 - have known that her son had a pr opensity for playing in or near the septic tank opening. The trial court was entitled to di sregard the landlord’s testimony that he did not remember any toys in the filter 6 or floating in the septic tank. E ven if the trial court concl uded that White’s son’s toys had been found in the septic tank a lmost a year prior to his de ath, no evidence was presented to support the theory that White’s son had exhibited a propensity for dropping toys into the tank in the months prior to his death. T o the contrary, the sanitation contractor who pumped the tank to discover the body testified the re were no toys, balls, or simil ar objects visible. The only toy present in the tank and entered i nto evidence was an action fig ure in the body bag. Thus, there was simply no evidence from which the trial court could infer that White knew her son had a propensity for opening the unsecu red lid and dropping toys into the tank while playing in his backyard. The Commonwealth stressed in its argument before the trial cour t and this Court that White recognized the danger of t he septic tank when she saw her son standing on the lid. One to two months prior to her son’s death, White saw him standing on the lid of the septic tank. White’s statements during intervi ews and trial were consistent; she “yelled” at her son to get off the lid and made him promise not to stand on the lid again. Th is incident, however, also showed White did not disregard the potential hazard of the septic tank , but rather took steps to mitigate the danger by instructing her child not to stand on the lid aga in. Moreover, here, as in Mangano, White had no reason to suspect t hat her son would not obey her. See Mangano, 44 Va. App. at 215, 604 S.E.2d at 120. Although White’s son played frequentlyin the backyard, no evidence suggested White knew of subsequent occasions when her son playe d on or near the lid, or engaged in dangerous activity i n the yard, prior to the tragic events of March 22, 2015.

6 The landlord described the filter as a plastic object about tw o inches in diameter that fits down a three-inch piece of pipe that extends above ground near the septic tank lid.‐ 13 - Moreover, there was no evidence su ggesting that the screws to t he lid were unsecured when White told her son to get off th e lid. Nothing in White’s stat ements suggested that the lid was loose or dislodged in any wa y when her son was standing on it. Thus, White’s instruction to her son reflected “the degree to whi ch [White] was aware of the dan ger” the septic tank posed at that time. See id. 7 Code § 18.2-371.1(A) does not impose criminal liability on par ents who fail to take positive action to ferret out eve ry potential hazard to ensure the premises are safe. See id. at 216, 604 S.E.2d at 121. Rather, the statute punishes a parent’s wil lful omission, “which requires an awareness” of the danger associ ated with leaving her child unsu pervised. Compare Barrett, 268 Va. at 184, 597 S.E.2d at 111 (aware of the particular danger), with Ellis, 29 Va. App. at 555, 513 S.E.2d at 457 (unaware of the part icular danger). Here, th e evidence was insufficient to establish that White acted wit h a “reckless disregard” for her son’s safety and with the “knowledge and consciousness” tha t this lack of s upervision wou ld “likely result in injury.”

7 We agree with the dissent that the septic tank posed a signifi cant danger to a five-year-old child. However, a s we noted above, this appeal d oes not turn on that fact. Rather, it turns on whether White was awa re of that significant danger and, by willful act or willful omission, failed to prevent the death of her child. The dissen t states there was “considerable” testimony that the lid, “on occasion” was not securely attached and the “evidence presented supports the reasonable conclusi on that the vuln erable state of the septic tank lid was apparent.” The dissent fails to address the penultimate question; apparent to whom? While the evidence supports the conclusion that th e lid was not properly attached, there is no evidence to suggest that it was or should have been apparent to her that the lid wa s not secured. To the contrary, the landlord testified tha t he mowed the grass right up to the lid, but he did not give any indication that he saw that it was not pr operly attached. Photographs of the tank opening and the lid do not support the inference White knew the lid was unsecured. See su pra footnote 3. Thus, we see no way to infer from the evidence presented that it would be “appa rent” to White that the lid was unsecured. While we agree with the dissent that the trial court was entitl ed to draw reasonable inferences from the evidence presented, those “[i]nferences mus t be based on facts and not upon other inferences or mere specu lation.” Watson, Adm’x v. Virgin ia Elec., Etc. Co, 199 Va. 570, 578, 100 S.E.2d 774, 780 (1957).‐ 14 - C ONCLUSION Over a century ago, Supreme Court Justice Harlan observed that “it is the duty of all courts of justice to take care , for the general good of the com munity, that hard cases do not make bad law.” United States v. C lark, 96 U.S. 37, 49 (1878) (Harla n, J., dissenting). The tragic death of a young child is a hard case . When the child’s body is foun d in a septic tank after four days of searching, the case is even hard er. But it would not benefit t he general good of the community to expand Code § 18.2-371.1’s requirement of “willful” conduct to include a parent’s failure to protect a child from an undi scovered and unknown danger. Septi c tanks are common in many areas of this Commonwealth. As trag ic as the facts of this cas e are, to affirm this conviction would be to hold that Code § 18.2-37 1.1 requires a parent to se arch out potential dangers and continuously supervise his or her child. A parent could be sub ject to a felony conviction if he or she failed to recognize the da nger posed by the unsecured tank cover, the unlatched gate, the rotted board, the unfenced pond, or any other hazard that, in h indsight, could have been corrected. Simply put, we conclude that the General Assembly, by requiring proof of a willful act or omission, intended a much higher mens rea than the evidence establishes in this case. Here, the evidence was insuffici ent to show that White left her son unsupervised with “the knowledge and consciousness that i njury would result.” See Barrett, 268 Va. at 183, 597 S.E.2d at 111. Accordingly, we reverse Wh ite’s conviction and dismiss the indictment. 8 We remand to

8 Because we find the evidence was insufficient to support the e lement of a willful act or willful omission, we need not address specifically whether the evidence was sufficient to show that White’s failure to supervise caused or permitted her son’s death.‐ 15 - the trial court for entry of a f inal sentenci ng order reflectin g our reversal of Wh ite’s conviction under Code § 18.2-371.1(A). 9
Reversed and remande d with instructions.

9 The trial court sentenced White to five years’ imprisonment on each of the three convictions. It then suspende d thirteen years and one month of the total fifteen-year sentence. Because the term of suspension exceeds the maximum five-year pu nishment for each of the remaining convictions, the order must be corrected to reflect a term of suspension that does not exceed ten years, less the active sentence previously imposed.‐ 16 - Alston, J., dissenting. The eloquence and care of the majority opinion to reach a diffi cult result in a heartbreaking case speaks to the best work of the jurisprudence of this Court. While a court should always endeavor not to allo w hard cases to make bad law; it can also be sai d with at least as much truth, that hard cases can and do endeavor to accomplis h the objective of t he legislature to make good law. True justice is not measur ed by what we think we would d o in a similar situation; it is measured by the law and how the law applies to certain facts. The willful omissions of appellant in this case resulted in tra gic circumstances that the trial court took great pains to r esolve under the reasonable do ubt standard. For this reason, and based upon this Court’s applicab le standard of r eview on appeal , I respectfully dissent from the thoughtful analysis of my colle agues in the majority. The majority suggests that to f ind appellant guilty, we need to adopt something in the nature of a strict liability ob ligation for parents who live onproperties with septic systems, a swimming pool, a pond, or other conditions otherwise benign, bu t potentially hazardous. I disagree. The compelling facts of this particular case provide the backdrop to the criminally culpable event under this statute. In a case such as this, we must view the evidence in light of “ all the circumstances preceding and surrounding” the incident. Barrett v. Commonweal th, 268 Va. 170, 184, 597 S.E.2d 104, 111 (2004). In doing so, we review the relevant fa ctors including the gravity and character of the possible risk s of harm, the accessibility of t he parent, the length of time of the abandonment, any protective measures taken by the parent, and the age a nd maturity of the child. Miller v. Commonwealth, 64 Va. App. 527, 544, 769 S.E.2d 706, 7 14 (2015) (citing Barnes v. Commonwealth, 47 Va. App. 105, 113, 622 S.E.2d 278, 282 (2005)) . These dangers inherent in a situation can be inferred by the fact finder as a matter of c ommon knowledge. Commonwealth‐ 17 - v. Duncan, 267 Va. 377, 386, 593 S.E.2d 210, 215 (2004). Signi ficantly in this case “when the sufficiency of the evidence is challenged on appeal, we review the evidence in the light most favorable to the Commonwealth gr anting to it all reasonable inf erences fairly deducible therefrom.” Kelly v. Commonwealth, 41 Va. App. 250, 254, 584 S .E.2d 444, 447 (2003) ( en banc ). When so viewed, the circumstances show beyond a reasonable doub t that appellant was guilty of more than “ordinary negl igence.” Here, appellant was fully aware that her five-year-old son, N.T., could unlock the broke n screen door to their home an d that he routinely left the house unsupervised while she slept. Eve n further, the record indicat es that appellant knew of the potential danger that the septi c tank posed to N.T. The septic tank was approximately ten to twelve feet from the rear of the home. N.T.’s toys were scatte red throughout the backyard, and there were toys found in and around the septic tank on at le ast one prior occasion. Appell ant was either present during or after th e tank was cleaned, and was ma de aware that N.T.’s toys were found inside the septic system . While the evidence may be subj ect to interpretat ion as to how the toys actually got into the septic system, it is clear that some of N.T.’s toys were indeed observed around the septic system and that appellant knew that N.T. was interested in the septic tank and the area surrounding it. Appellanthad previously seen N.T. st anding on the lid, and went so far as to tell N.T. that he was not allowed to climb on it. Appell ant even made the five-year-old N.T. promise never to climb on the lid of the septic tank again

. My respectful disagreement over the interpretation and signific ance of the facts of this case underscores my view that the standard of review dictates t he result I suggest we should reach. Much of the evidence adduce d at trial was subject to in terpretation, but indeed there was considerable testimony thaton occasion the lid was not properl y attached to the septic tank, and apparently not secure. The evide nce presented supports the rea sonable conclusion that the‐ 18 - vulnerable state of the septic t ank lid was apparent, such that even the slightest kick could remove it. Coupling these facts with the evidence of appellant ’s conduct prior to, and after, N.T.’s disappearance, appellant’s willful omissions created a s ituation which caused or permitted serious injury (here, death) to N .T. In my view, these facts a lone, and not the failure of appellant to take positive action to ferret out every potential hazard to ensure the premises were safe, support the result reached by the trial court. It was appellan t’s utter failure to t ake any credible corrective action to address th is known danger of the septic ta nk, which creates t he liability. Appellant simply does not discharg e her responsi bility and dutyunder the statute by resting her claim on an inferential hardshi p which may be placed on blamele ss parents or caretakers. Willful omissions carry the same level of criminal culpability as intentional acts under the applicable statute. Many of the facts in this case led me to believe that a reasonable fact-finder could find appellant guilty under this statute, inc luding (1) the known dangerousness (and apparently unaddre ssed) condition of the defective coverin g of the septic system forewarning a particularized ris k to the child; (2) the prior a dmonitions to appellant, direct and otherwise, of the child’s attraction to and exposure to the area in w hich the unsafe system functioned; (3) the either casua l indifference to or callous di sregard to the circumstances appurtenant to the dangerousness of this particular threat to t he child; (4) the observance of marijuana in the residence and t he trial court’s particularized finding that appellant consumed the prescriptive somnolent Suboxone on the date of the incident; an d finally (5) appellant’s lack of candor in the events lea ding up to, and during the period of, the investigation of the child’s death. I reference all of these criti cal facts because while I believe that not one of these facts standing alone would support a c onviction under this statute, w illful omissions are traditionally and necessarily supported by circumstantial evidence and infere nces. And circumstantial evidence, by its very nature, envisions a totality of the circu mstances analysis. See Juniper v.‐ 19 - Commonwealth, 271 Va. 362, 416, 626 S.E.2d 383, 418 (2006) (sta ting “while no single piece of evidence may be sufficient, the ‘combined force of many concurr ent and related circumstances, each insufficient in itself, may lead a reasonable mind irresis tibly to a conclusion’” (quoting Chichester v. Commonwealth, 248 Va. 311, 329, 448 S.E.2d 638, 6 50 (1994), cert. denied, 513 U.S. 1166 (1995))). It was reasonable for the trial court to c onclude that the totality of appellant’s actions and omissions ultimately led to N.T.’s death; which is all that the Commonwealth was required to prov e. All of the facts considere d together under the totality of the circumstances present in t his case, support appellant’s con viction. Accordingly, and with all due regard for the exceptional c onsideration and text of the ma jority, I would affirm the judgment of the trial court.