COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Hu ff, Judges Petty and Beales Argued at Richmond, Virginia

TARA MONIQUE THOMPSON MEMORANDUM OPINION * BY v. Record No . 0842-16-2 JUDGE RANDOLPH A. BEALES AUGUST 15, 2017 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY David E. Johnson, Judge Reginald M. Barle y for appellant. Aaron J. Campbell, Assistant Attorney General (Mark R. Herrin g, Attorney General, on brief), for appellee.

Tara Monique Thompson (“appella nt”) was convicted of felony ch ild neglect in violation of Code § 18.2-371.1. On appeal, she argues that the evidence was insufficient to support her conviction. Specifica lly, she argues that the trial court erre d by convicting her of an offense under Code § 18. 2-371.1(A) 1 because the evidence failed to show that her failure to take h er son to the hospital caused or permitted serious injury to the life or heal th of her child.
I. B ACKGROUND We consider the evidence on appeal “in the light most favorable to the Commonwealth, as we must since it was the prevailing party” in the trial court. Beasley v. Commonwealth, 60 Va. App. 381, 391, 728 S.E.2d 499, 504 (2012) ( quoting Riner v. Commonwealth, 268 Va. 296,

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.

1 Appellant’s conviction and sente ncing orders list the offense as a violation of Code § 18.2-371.1. While that statute ha s two subsections, counsel for both parties agreed at oral argument that appellant was i ndicted, tried, and convicted of a violation of Code § 18.2-371.1(A), and the indictment of appellant is clearly bas ed on subsection A of the statute.UNPUBLISHED- 2 - 330, 601 S.E.2d 5 55, 574 (2004)). So vie wed, the evidence esta blished that appellant and John Battle are the parent s of J.B. On Septem ber 13, 2015, Battle d ropped off J.B., who was then two years old, at appellant’s house. Appellant’s boyfriend, Rosmen dale Lebron, also lived at that residence. A few days later on September 16, 2015, appellant c alled Battle to inform him that J.B.’s feet had been burned accidenta lly with hot bacon grease. On Se ptember 18, 2015, Battle texted appellant to ask about the cond ition of J.B.’s feet. At trial, when Battle was asked whether appellant sought medical attenti on for the child, Ba ttle testified that a ppellant had told him that she would “take [J.B.] to Patient First.” Battle picked up J.B. from appellant’s hou se on September 26, 2 015. When Battle attempted to remove J.B.’s shoes to inspect his feet, J.B. shoo k his head and waved his hands as if to say “no.” When Battle removed appellant’s shoes, he noticed th at J.B.’s socks were soaked through and wet. Battle testified that a “thick and slimy liquid” was coming out of the scabs on J.B.’s feet. J.B. cried while his father ins pected the burns. Battle immedi ately took J.B. to the emergency room at Chippenham Hospital. Heidi Britland, a nur se practitioner at the hospital, treated t he burns on J.B. ’s feet. When J.B.’s socks were removed, she observed first an d second degree burns on the tops of both of J.B.’s feet. When asked if she was able to determine when the burns h ad taken place, Britla nd stated that they “looked older than a coupl e of days.” At tr ial, Britland was asked, “Did it appear that any treatment was being conducted that you could tell?” She respon ded, “Not that I could tell.” Britland did note, however, that the burns “were in the process of healing” and that the child’s feet appeared “red and sore.” She als o testified that an untreated burn is “a wide open infection source” that could have led to “a massi ve infection from his feet.” Th e nurse then debrid ed J.B.’s wounds, which is the process of removing the dead skin. She testified that the removal of dead skin is necessary “so the healing can sta rt.” Britland t hen cleaned J. B.’s burns and pro vided him with a- 3 - narcotic pain medicine. She also put some burn cream on J.B.’s feet and wrapped them in gauze. According to his father’s testimo ny, J.B. remaine d at the hospi tal for two nights. Appellant did not testify at tr ial. Rosmendale Lebron, appella nt’s boyfriend, testified that J.B.’s feet were accidentally burned by hot baco n grease on Sep tember 16, 2015 when appellant tripped over J.B. in the kitchen while cooking. Lebron testifi ed that he took J.B. to the bathroom to rinse off the child’s feet with c old water. He also testified that he called his sister, a physician, to obtain medical advice for treatin g J.B. Lebron stated that he followed that advice by cleaning J.B.’s feet with cold water, putting ointment or burn cream on the bur ns, and wrapping J.B.’s feet in gauze three times per day. The trial court found that appell ant’s “failure to provide care caused or permitted serious injury to the health of the ch ild.” The court further found th at “the burns opened a significant course of infection and imposed a serious injury to [J.B.’s] he alth.” Other than the initial injury of the burns on J.B.’s feet, howev er, there was no evidence tha t J.B. suffered any additional serious injury.
II. A NALYSIS A. Standard of Review When considering the sufficien cy of the eviden ce on appeal, “a reviewing court does not ‘ask itself whether it believes that the evidence at the trial established guilt beyo nd a reasonable doubt.’” Crowder v. Commonwea lth, 41 Va. App. 6 58, 663, 588 S. E.2d 384, 387 (2003) (quoting Jackson v. Virginia, 443 U.S. 30 7, 318-19 (1979)). “Viewing th e evidence in the light most favorable to the Commonwealth, as we must since it was the pr evailing party in the trial court ,” Riner v. Commonwealth, 268 Va. 29 6, 330, 601 S.E.2d 555, 574 (2 004), “[w]e must instead ask whether ‘any rational trier of fact could have found the essent ial elements of the crime beyond a reasonable doubt,’” Crowder, 41 V a. App. at 663, 588 S.E.2d at 387 (quoting Kelly v.- 4 - Commonwealth, 41 Va. App . 250, 257, 584 S.E. 2d 444, 44 7 (2003) ( en banc )). “This familiar standard gives full play to the res ponsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable infere nces from basic facts to ultimate facts.” Jackson, 4 43 U.S. at 319. In consideration of appellant’s assignment of erro r, we also ev aluate Code § 18.2-371.1(A), under which appellant was tried and convicted, and a ny issues of statutory interpretation are reviewed de novo

. B. Felony Child Neglect Appellant was charged and c onvicted under Code § 18.2-371.1(A), which states, in relevant part: Any parent, guardian, or other pe rson responsible for the care of a child under the age of 18 who by willf ul act or willful omissio n or refusal to provide any necessary care for the child’s health ca uses or permits serious injury to the life or health of such child i s guilty of a Class 4 felony. The statute further states, “For purposes of this subsection, ‘ serious injury’ inc ludes but is not limited to (i) disfigurement, (ii) a fracture, (iii) a severe b urn or laceration, (iv) mutilation, (v) maiming, (vi) forced ingestion of dangerous substances, and (vii) life-threatening internal injuries.” Id. On appeal, appell ant argues that the Commonwea lth failed to prove that appellant’s failure to take he r child to see a medical provider caused or permitted any serious injury to J.B. Specifically, she argues that there was no evid ence before the trial court that appellant’s acts or omissions caused – or exacerbated – the inj uries to J.B.’s feet. “When the language of a statu te is unambiguous, we are bound by the plain meaning of that language.” Kozmina v. Commonwealth, 281 Va. 347, 349, 706 S.E.2d 860, 862 (2011) (quoting Conyers v. Martial Ar ts World of Richmond, Inc., 273 V a. 96, 104, 639 S.E.2d 174,- 5 - 178 (2007)). Unlike the language c hosen by the General Assembl y in Code § 18.2-371.1(B)(1), 2 the plain language of Code § 18.2- 371.1(A) specifically require s that a child suffer a “serious injury” caused by the defendant’s acts, omissi ons, or refusal to provide necessa ry care to a child. See Commonwealth v. Duncan, 267 Va. 377, 385, 593 S.E.2d 210, 2 15 (2004); Wood v. Commonwealth, 57 Va. App. 286, 298, 701 S.E.2d 810, 815 (2010). The parties do not dispute that J.B.’s first and second degree burns were caused by an
accidental spill of hot bacon grea se. The Commonwea lth has not alleged, either to this Court or to the trial court, that those burns were caused by the willful acts or willful omissions of appellant. Therefore, to sustain a conviction under subsection A of Code § 18.2-371.1, the evidence must prove that appell ant’s failure to provide necessa ry medical care either caused or permitted a “serious injury” to the child. Upon our careful review of the r ecord, we find that there was s imply no evidence that J.B. actually suffered the requi red “serious injury,” over and above the initial accidental burns, as a result of appellant’s failure to take the ch ild to be examined by a medical professional . At trial, the nurse testified that the child’s burns could have developed into an infection – not that the burns on the child’s feet had become infected. In addition , there was also no evidence that the child’s existing injuries f rom the spilled bacon grease wer e actually exacerbated by appellant’s failure to take the child to the hospital or to be seen by a doctor. In fact, the testimony of the nurse practitione r established that J.B.’s vit al signs appeared normal and that the burns “were in the process of healing” when he was admitted int o the hospital. Thus, the nurse practitioner’s testimony at trial does not indicate that any additional injury occurred because of

2 Pursuant to Code § 18.2-371.1(B)(1 ), “Any parent, guardian, or other person responsible for the care of a c hild under the age of 18 whose w illful act or omission in the care of such child was so gross, want on, and culpable as to show a reck less disregard for human life is guilty of a Class 6 felony.”- 6 - appellant’s failure to bring the c hild in for medical treatment earlier. Consequently, we find that the evidence in support of appe llant’s conviction for felony ch ild neglect in violation of Code § 18.2-371.1(A) was insufficien t as a matter of law. Our reversal of appellant’s c onviction should cer tainly not be construed as an endorsement of appellant’s behavi or or choices. As an appellat e court, “we are not free to affirm a conviction, even one obtained f or behavior that we find repre hensible,” unless the evidence at trial proved each of the element s of the offense charged in the indictment. Hutton v. Commonwealth, 66 Va. App. 714, 725, 791 S.E.2d 750, 755 (2016). “[T]he paramount principle of statutory interpretation is ‘ to interpret the statute as wri tten.’” Miller & Rhoads Bldg., L.L.C. v. City of Richmond, 292 Va. 537, 542, 790 S.E.2d 484, 486 (201 6) (quoting City of Lynchburg v. Suttenfield, 177 Va. 212, 221, 13 S.E.2d 323, 326 (1941)). As stated supra, the plain language of subsection A of Code § 18.2-371.1 r equires a finding that ap pellant’s willful acts, omissions, or her failure to provide the child with necessary care caused or permitted serious injury to the child. Unlike subsection B, s ubsection A does not criminalize conduct that simply creates the potential for serious injury to occur. 3 Appellant was quite fortunate t hat her failure to take her two-year-old son to the doctor (and the apparent lack of care t o his wounds, according to the nurse practitioner’s testimony) did not result in the wounds be coming infected or cause other serious repercussions to the child’s health.

3 The trial court seemed to agree that appellant’s failure to pr ovide necessary care to the child only exposed the child to the possibility of further injury. The t rial judge stated, “The [c]ourt does not find that check ing for a fever and applying oi ntment is a reasonable response to this potential injury .” (Emphasis added). However, t he trial court also found that the child’s burns “opened a significant cour se of infection and imposed a s erious injury to [J.B.’s] health.” To the extent that the trial court did, in fact, find that appe llant’s failure to provide necessary care to her son caused an additional “serious injury,” we conclude that particular fi nding of the trial court was not supported by the evidence in the record.- 7 - In short, upon our review of all of the evidence, we conclude t hat there was no evidence before the trial court that a ppellant’s acts, omissions, or her failure to take J.B. to have his accidental burns examined by a doctor caused any additional injuries, serious or otherwise, to J.B.’s health. We find, therefo re, that the evidence in suppor t of appellant’s conviction for felony child neglect in viol ation of Code § 18.2-371.1(A) was i nsufficient as a matter of law. Consequently, we reverse and dism iss appellant’s conviction.
III. C ONCLUSION In summary, given that all part ies have agreed that the child’s burns were accidental, we find that there was no evidence at trial that appellant’s failu re to take her child to see a medical provider actually ended up causing or permitting any additional serious injuries to her child’s health, as required by subs ection A of Code § 18.2-371.1. As a result, the evidence was insufficient to convict appe llant of a violation of Code § 18.2 -371.1(A), and we, therefore, must reverse and dismiss appellant’s felony child neglect conviction

. Reversed and dismissed.