COURT OF APPEALS OF VIRGINIA

Present: Chie f Judge Fitzpatr ick, Judges Be nton, Elder, Annunz iata, Bumgardner , Frank, Humphr eys, Clements, Agee, * Felton and Kelsey Argued at Rich mond, Virginia

CARLTON WEND ELL DUNCAN MEMORANDUM OPINION ** BY v. Record No. 1060-01-1 JU DGE JEAN HARR ISON CLEMENTS APRIL 8, 2003 COMMONWEALTH OF VIRGINIA

UPON A REHEARING EN BANC FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG AND COUNTY OF JAMES CITY Thomas B. Ho over, Judge LeeAnn N. Barnes for appellant. Virginia B. Theise n, Assistan t Attorney General (Jerry W. Kilgore, Atto rney General, on brief), for appellee.

On August 27, 2002, a unanimous pane l of this Co urt reversed and dismissed the conviction of ap pellant, Carlton Wendell Duncan, for felony child abus e and neglect, in violation of Code § 18.2-371.1(B ). The panel de termined that th e Commonwealth's evidence did not establ ish beyond a reasonable doubt that Duncan's willful acts and omissi ons in the care of hi s six-month- old son

* Justice Agee participated in the hearing and decision of this case prior to his investiture as a Justice of the Supreme Court of Virginia.

** Pursuant to Code § 17.1-413, this opinion is not designated for publication.was conduct so gross, wanton and culpable as to show a reckless disregard for the child's life. We granted the Commonwealth's petition for a rehearing en banc and stayed the mandate of the panel's deci sion. Upon rehearing en banc , we revers e the trial court and dismiss the conviction. When the sufficiency of the evidence is ch allenged on appeal, we review the eviden ce "in the light most favorable to the Commonwealth, granting to it all reason able inferences fairly deducible th erefrom." Bright v. Commonwealth , 4 Va. App. 248, 250, 356 S.E.2d 443, 444 (1997). "In so do ing, we must discard the evidence of the accused in confli ct with that of the Commonwealth, an d regard as true all the credible evidence favorable to the Common wealth and all fair in ferences that may be drawn ther efrom." Watkins v. Commonwealth , 26 Va. App. 335, 349, 494 S.E.2d 859, 866 (1998). We ar e further mind ful that the "credibility of a witness, the weight acco rded the testimony, and the inferences to be drawn from proven facts are matt ers solely for the fact finder's determination." Crawley v. Commonwealth , 29 Va. App. 372, 375, 51 2 S.E.2d 169, 170 (1 999). We will not disturb the convic tion unless it is plai nly wrong or unsupported by the evidence. Sutphin v. Commonwealth , 1 Va. App. 241, 243, 337 S.E.2d 897, 898 (1985). Here, viewed in the light most favorabl e to the Co mmonwealth, the evidence establishe d that, on June 12, 20 00, around 3:30 p.m., Jennifer Dansby re turned home from work to find Michelle Cribbs,

- 2 -several friends, and Duncan's six-month-ol d son there. Duncan was not there. Da nsby shared the home with Cribbs and Eliz abeth Nemo. She had first met Duncan and his baby the da y before when Dansby's ex-housemate had invite d Duncan to Da nsby's house. The baby was awake when Dansby got home but would doze of f as Dansby and the others took turn s holding him and playing with him. There was no baby food or formula in the house, so Dansby and he r friends were unable to feed the ch ild. Accordin g to Dansby, nobody fed the child from 3:30 p.m. until 11:00 p.m. Nemo arrived home at 9:30 p.m. Later in the evening, an impromptu party be gan as other frie nds arrived and people started drinking beer an d using illegal dr ugs. Dansby, her housemates, and her friends co ntinued to take turns holding the baby, passing him around. Duncan arrived at the house around 10:30 p.m., bringing a bag of mariju ana with him. Nemo noticed that his eyes were "glazed over" and th e whites of his eyes were ye llow. Duncan began drinking wi th the group. When the subject of babies came up, Duncan started talk ing about women he had impreg nated and the abortions they had had. Later, Duncan took the baby from Nemo, put him on the couch, an d, holding him by his hands, lifted him up off the couch. The baby st arted crying. Around midnight, th e baby became fussy and starte d crying loudly. Duncan, saying he would "take care of the problem," took the child from his carr iage in the li ving room an d carried him into the bathroom, and then into a back bedr oom. Nemo , who was - 3 -concerned about the baby, follow ed them. Look ing into the bedroom, she saw the ba by lying on a futon. Duncan was sitting next to the futo n, lifting it "as if it was going towards the baby's body." When Duncan saw Nemo, he pu t the futon down and told her he was lookin g for a pacifier . Duncan left the room, and Nemo picked up the baby , who was still crying. Duncan went into the kitchen. Dansby heard him open the refrigerator door, whic h was "odd," she though t, because there was only beer and wine co olers in the refriger ator. Approximately five minutes later, Du ncan came out of the kitchen with a baby bottle, which he took to the back room and gave to Nemo. Nemo started feeding th e child, and Duncan left the room and then went outside. While feeding th e baby, Nemo went into the living room and sat down with her friends. Nemo then noticed that the liquid in the baby bottle had a "pinkish color" an d smelled like wine cooler. After a frie nd tasted the liquid in the bottle and confirmed that it tasted of alco hol, Dansby, wh o described the liquid as having a "m ilky pinkish color," ca lled the hospital and the police. She then took the baby bottle , which was a little more than half full, and hid it in the microwave ov en until the police arrived. Whil e in the kitchen, Da nsby noticed that a bottle of wine cooler was missing fr om the refrig erator. She found an open bott le of wine cooler that had not been there before on the kitchen co unter behind some fast-food bags of trash. It

- 4 -had approximat ely three inch es of liquid missin g from the top. The contents of the bottle were "pink." Approximately fifteen minutes later, Duncan, who was unaware the police had been ca lled, came back insi de to check on his child. He sat on th e couch next to Nemo, who cont inued to hold the baby until th e police came. When the police arri ved, Officer Nacastro noticed that Duncan had "bloodshot eyes," his speech was "sligh tly mumbled, " and he smelled "of intoxi cant[s]." The police to ok the baby bottle and the opened bottle of wine cooler for analysis. Laboratory tests revealed that the liquid in the twel ve-ounce bottle of wine cooler was 3.2% ethyl alcohol by volume. The liquid in the ei ght-ounce baby bottle, which the police noted was "whiti sh [with a] little pinkish color in that," was 2.8% ethy l alcohol by volume. At trial, Duncan de nied putting any alcoho l in his son's baby bottle. He said he picked up the baby bottle fr om the kitchen table and gave it to Nemo, but di d not know it contained wine cooler. He also test ified that he had fed the baby apple raisin cereal earlier in the ev ening. He also clai med he put his son on the futon in the back bedroom and rubb ed his back so he could go to sleep. Code § 18.2-371.1(B ) provides that "[a] ny parent, guardian, or other person respon sible for the ca re of a child under the age of eighteen whose will ful act or omission in the care of such

- 5 -child was so gross, wa nton and culpable as to show a reckless disregard for huma n life shall be guiltyof a Clas s 6 felony." After hearing th e evidence and argument of counsel, the trial judge stated: I find that Mr. Duncan is not a believable witness. I reject his testimony as to the explanat ion. I find the Commonwealth's witnesse s, again Ms. Nemo and Ms. Dansby together with Officer Na castro, to clearly show and prove beyond a reasonable doubt that the defendan t took the baby back to the back bedroom and whatever happened on the [futon], he then is the on e who goes to the kitchen area, he comes back with a bottle that has this clear pi nkish substa nce in it, he gives the bo ttle to Ms. Ne mo, then he walks out. Feeding alcoho l to a six-mo nth baby is clear neglect. Coupled with all the other acts, omissions and commissions that he did, I find the defendan t guilty beyond a reasonable doubt of the felony charge. On appeal, Duncan does not challenge th e sufficienc y of the evidence to show that he committed certain improp er acts and omissions in the care of his son and that su ch acts an d omissions were willful. In addi tion, he concedes that such willful acts and omissions could be construed as being irre sponsible, derelict, and negligent. He argues, however, that, even vi ewing the ev idence in the light most favorabl e to the Common wealth, his will ful acts and omissions were not so gross, wanton, and culp able as to show a reckless disregar d for human life. The Commonwealth argu es that Duncan's ac ts and omissions in the care of his son support his conviction. Sp ecifically, the

- 6 -Commonwealth asserts th at Duncan's leaving th e child in the care of people he had know n for just a day; fail ing to feed, or make sure someone else fe d, the child for more than seven hours; returning to Dansby's home intoxicated an d in possession of marijuana; "put[ting] the child on a futon an d then lift[ing] the futon until he was ca ught" by Nemo; and, most significantly, causing Nemo, un beknownst to her, to feed wine cool er to the baby was conduct so gross, wanton and culpable as to show a reckless disregard for th e life of his six- month-old son. We disagree with the Common wealth. Plainly, Duncan was negligent in caring for his chil d. His conduct was inexcu sable and cannot be condoned. A finding of negligence, howe ver, is not en ough, by itself , to sustain a conviction for criminal abuse and neglect of a child under Code § 18.2-371.1. See Ellis v. Commonwealth , 29 Va. App. 548, 555, 513 S.E.2d 453, 457 (1 999) (holding that "s omething more than negligence must be pr oved beyond a reasonab le doubt to support [defendant's] conviction" of crim inal child neglec t). To sustain Duncan's conviction in this case, the Common wealth had to prove beyond a reasonable do ubt that Duncan commit ted a willful act or omission in the care of his son that was "so gros s, wanton, and culpable as to show a reckless disregard" for the chil d's life. Code § 18.2-371 .1(B). In Snow v. Co mmonwealth , 33 Va. App. 766, 775, 537 S.E.2d 6, 11 (2000), we held that the defe ndant's act of driving a car with children in it in excess of one hundred miles

- 7 -per hour while trying to elude the po lice was not on ly illegal but "dangerous," and, thus, constitute d conduct "so gros s, wanton, and culpable as to show a reckless disregard fo r human life ." The same cannot be said, however, of th e willful acts and omissions before us in this case. Here, although Dunc an, as the Commonweal th notes, left his son with women he had known for only a day, no evidence showed that the women were ir responsible or that Duncan ha d reason to believe they were unable or unwi lling to care fo r the baby, or that they would place the child's life at risk. Furthermore, the evidence supports the trial court's fi nding that the women found "the baby intere sting and cute" an d enjoyed "looking after" him. Indeed, they continued to play with and hold the child even after Duncan returned to the women's hous e. In addi tion, Duncan interacted with his son upon his return to the house and, despite his apparent intoxication and possession of illicit drugs, responded to him when the child beca me fussy and cried loudly. Furthermore, althou gh Nemo testified th at she was concerned for the baby's safety when Duncan took th e child to the back bedroom after anno uncing he would "take care of th e problem," we find, on the evidence presented, that her assignment of ill will to Duncan was purely speculative, as was her perc eption that Duncan intended to harm the child when she saw him lift the futon. The trial court co rrectly gave little, if any, weight to such conjecture in reac hing its decision.

- 8 -Likewise, the ev idence did not show that Duncan's failure to feed his son for seve n and a half hours co nstituted co nduct so gross, wanton, and culp able as to show a re ckless disregard for the child's life, particularly as there was no evid ence that the baby was hungry or ot herwise in distress du ring that period of time. In fact, the evidence show ed that, when th e baby became fussy and started to cry loudly, Du ncan took steps to feed him, albeit with a bo ttle containing a liquid mixture, part of which was wine cooler—which brings us to the cr ux of this appeal. In finding Duncan gu ilty of violat ing Code § 18 .2-371.1(B), the trial court at tached the greatest signif icance to Du ncan's act of putting the mixt ure containing wi ne cooler in th e baby's bottle and causing it to be fed to his so n. Clearly, th at was the most serious allega tion against Duncan . Duncan argues that, given the low alcohol conten t of the mixture fed to his son, his child's life would not have be en endangered even if he had consumed the entire contents of the bottle. The question befo re us, then, is whether feeding a six-month-old in fant approximately eigh t ounces of liquid containing 2.8% ethyl alcohol by volume is an act so gross, wanton, and culpab le as to show a reckle ss disregar d for human life. The Commonwealthasserts that "[i]t is beyond dispute that feeding alcohol to an infant is dangerous." Plai nly, at some quantitative level, ba sed on the alcoholic co ntent and vo lume of the liquid ingested, feeding a six-mo nth-old child liquid that

- 9 -contains alcohol would, like driving an auto mobile in excess of one hundred mile s an hour while being pursued by the police, constitute a danger to the child's li fe. In this case, however, there was no eviden ce presented to sh ow that feeding a six-month-old ch ild up to eight ou nces of a liquid that is 2.8% ethyl alcohol byvolume endangers the child's life. Such a conclusion would, therefore, have to be based on pure conjecture and speculatio n, rather than on the evidence or inferences reasonably drawn theref rom. Hence, we conclude th e evidence did not support such a finding beyond a reasonable doub t by the trial

court. See Thomas v. Commonwealth , 187 Va. 265, 27 2, 46 S.E.2d 388, 391 (1948) ("A co nclusion of guilt must be supported by credible evidence and ca nnot rest upon conjec ture or suspicion."). We hold, therefore, that the Commonweal th's evidence was insufficient, as a matter of law, to prove beyond a reasonable doubt that Duncan's wi llful acts and omission s in caring for his child were so gr oss, wanton, and culpable as to show a reckless disregard for hu man life. Accordingly, we revers e Duncan's conviction of felo ny child abuse and neglect un der Code § 18.2-371.1(B) and dismiss th e indictment. Reversed and dismissed.

- 10 -- 11 - Fitzpatrick, C.J., with whom Elder, Humphreys and Felton, JJ., join, dissenting. I respectfully dissent from the majority opinion, which holds the evidence in this case insufficient to establish that appellant's willful acts or omissions while caring for his son showed a "reckless disregard for human life." Code § 18.2-371.1(B) provides in pertinent part that "[a]ny parent . . . responsible for the care of a child . . . whose willful act or omission in the care of such child was so gross, wanton and culpable as to show a reckless disregard for human life shall be guilty of a Class 6 felony." The evidence, viewed in the light most favorable to the Commonwealth, proved appellant left his six-month-old baby with people he had just met. He provided no food or formula, and the baby was not fed for more than seven hours. The baby remained at the home while appellant and others drank alcohol and used illegal drugs. Witnesses described appellant's appearance as impaired with his eyes "glazed over." Around midnight, the baby started crying and appellant took the baby into a back bedroom saying "I'm going to take care of the problem." He placed the baby on a futon, and a witness saw him lift the futon "as if it was going towards the baby's body." When he saw the witness, he left the baby on the futon and went to the kitchen. He returned from the kitchen with a bottle and handed it to one of the girls who lived at the house. She started to feed it to the baby, but- 12 - noticed the liquid in the bottle was a "pinkish color" and smelled like wine cooler. Later testing revealed the liquid in the bottle was alcohol. The trial court rejected appellant's testimony and found: [Appellant] is not a believable witness. I reject his testimony as to the explanation. I find the Commonwealth's witnesses . . . to clearly show and prove beyond a reasonable doubt that the [appellant] took the baby back to the back bedroom and whatever happened on the sofa, he then is the one who goes to the kitchen area, he comes back with a bottle that has this clear pinkish substance in it, he gives the bottle to [a witness], then he walks out. Feeding alcohol to a six-month old baby is clear neglect. Coupled with all the other acts, omissions and commissions that he did, I find the [appellant] guilty beyond a reasonable doubt of the felony charge. This evidence established a day long series of actions that culminated in appellant's preparation of a bottle laced with alcohol to be fed to his six-month-old baby who had eaten nothing for the entire day. This behavior shows more than mere indifference or negligence. Appellant's acts of leaving the baby with people he barely knew, failing to provide food for more than seven hours, having the baby in a home where the people were using illegal drugs, and causing the baby to ingest alcohol were willful, wanton and showed a reckless disregard for human life. Had the baby died as a result of ingesting the- 13 - alcohol laced drink, a manslaughter indictment would have been the outcome. Therefore, I would affirm appellant's conviction.- 14 - Kelsey, J., dissenting. Crime is a "compo und concept," generally requiring the "concurrence of an evil-meaning mi nd with an evil -doing hand." Morissette v. United States , 342 U.S. 246, 251- 52 (1952). Every criminal statute, unle ss it imposes strict liabilit y, must have two components: mens rea and actus reus . The former describes the criminal actor's st ate of mind, while th e latter identifies the specific behavior deemed unlawful. Underlying the disagreement between the majo rity and the dissent in this ca se, I believe, is an unstated —— but altogether real —— differen ce in opinion on how to deal with th e apparent lack of an actus reus component in Code § 18.2-371 .1(B). Subsection (B) of the statut e reads: Any parent, guardian, or other person responsible for the care of a child under the age of eighteen whose willful act or omission in the care of such child was so gross, wanton and culpable as to show a reckless disregard for human life shall be guilty of a Class 6 felony. Code § 18.2-371.1(B). Subsection (B) crimin alizes undefined acts or omissions that "sho w a reckless disregard for human li fe." The majority inte rpolates an actus reus component from the "reckless disr egard for human li fe" phrase. Focu sing on this phrase alone, the majo rity assumes the "act or omission " condemned by the statute must be one that puts the vi ctim at a pr obable risk of death. Unde r this interpreta tion, only lethal risks (not non-fatal risks of harm) fall within the sc ope of the st atute. In- 15 - other words, if a parent puts a child at risk of being burned, cut, drugged, beaten, shot, or otherwise seri ously injure d —— but the trauma would not ha ve likely resulted in death —— the parent has not violat ed Code § 18 .2-371.1(B).

For two reason s, I do not be lieve the legisl ature intended the interpreta tion adopted by the majori ty. First, the phrase "reckless disr egard for human li fe" is a statutor y term of art that describes the requisite mens rea of the crimin al actor, not the actus reus of the criminal act. The ph rase has been used in many contexts, for many years, merely as a synonym for criminal negligence. We should presume th at, by including this phrase in Code § 18.2-371.1(B), the legislatur e intended the traditional

mens rea meaning ascrib ed to these wo rds by the courts. Second, Code § 18.2-371.1 should be read as a whole an d not as a series of freestanding phrases. A holistic approach le ads us to subsection (A), which criminal izes "serious in jury" to a child, as we search for the relevant actus reus of subsection (B).

I. A.

When the General Asse mbly enacted Code § 18.2-371.1 in 1981, the statute includ ed only the lang uage now found in subsections (A) and (C). Th e 1981 statute cr iminalized behavi or resulting in "serious injury to the life or health of su ch child," but did not address the feloni ous endangerment of a child sh ort of actual- 16 - injury or death. The General As sembly amended Co de § 18.2-371.1 in 1993 to include a fe lony endangerment sect ion, subsection (B), to address this omission. The phrase "reckles s disregard for human life," used in subsection (B), is a statutor y term of art for criminal negligence. See , e.g. , Goodman v. Commonwealth , 37 Va. App. 374, 387, 558 S.E.2d 555, 562 (2002) ("A convic tion for aggravated involuntary ma nslaughter in violation of Code § 18.2-36.1(B) requires proof, in ad dition, that the driver 's 'conduct . . . was so gross, wanton and culpable as to show a reckless disregard for human life,' i.e., th at the driver was cr iminally negligent ." (emphasis added)). The phrase has been used interchangeabl y with a variety of other phrases such as "disregard of another person 's rights with reckless indifference to the cons equences," Hubbard v. Commonwealth , 243 Va. 1, 15, 413 S.E.2d 875, 883 (1992), "reckless and utter disregar d for the life and person al safety of others," Gallimore v. Commonwealth , 15 Va. App. 288, 29 4, 422 S.E.2d 613, 616 (1992), and "r eckless or indifferent di sregard of the rights of others," Cable v. Commonwealth , 243 Va. 236, 24 0, 415 S.E.2d 218, 220 (1992). We have equated th e language "reckless disregard for human life" to the common law definition of criminal negligence enunciated in Bell v. Co mmonwealth , 170 Va. 597, 61 1-12, 195 S.E. 675, 681 (1938), where th e Virginia Supreme Court- 17 - 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." Wright v. Commonwealth , 39 Va. App. 698, 703, 576 S.E.2d 242, 244 (2003) (quoting Ellis v. Commonwealth , 29 Va. App. 548, 557, 513 S.E.2d 453, 457- 58 (1999), and Bell 170 Va. at 611- 12, 195 S.E. at 681)) (emphasis added); see also Banovitch v. Commonwealth , 196 Va. 210, 220, 83 S.E.2d 369, 375 (1954). We have never limited the mens rea of criminal negligence to risk-of-death sc enarios, as has the majority in this case. Though some crimes with a mens rea of criminal neglig ence also require death, in each of those cases deat h is set forth se parately in the

actus reus component of the crim e. For ex ample in Goodman , we affirmed a conviction of involuntary DUI manslaughter under Code § 18.2-36.1 becaus e the defendant's actions caused the death of another, as requ ired under Code § 18.2-36.1(A). 1 We held that the

1 Code § 18.2-36.1 reads: A. Any person who, as a result of driving under the influence in violation of clause (ii), (iii), or (iv) of § 18.2-266 or any local ordinance substantially similar thereto unintentionally causes the death of another person, shall be guilty of involuntary manslaughter.- 18 - defendant's ac tions were "aggravated" un der subsection (B) because the "appellant was cr iminally negligent be cause the ma nner in which he operated his vehicle 'show[ed ] a reckless or indifferent disregard of the rights of others, un der circumstance s reasonably calculated to pr oduce injury.'" Goodman , 37 Va. App. at 389, 558 S.E.2d at 562 (cit ations omitted). Though death is an element of DUI manslaug hter under Code § 18.2-36.1(A), the lethal nature of the ri sk does not figure into the aggravation an alysis under Code § 18.2 -36.1(B). Put another way, an aggravat ed DUI manslaught er conviction ca n be predicated on a showing that the defend ant had criminal negligence mens rea coupled with an actus reus of "unintenti onally caus[i ng] the death of another person." Consider too the DUI maiming st atute, Code § 18.2-51.4(A). It provides: Any person who, as a result of driving while intoxicated in violation of § 18.2-266 or any local ordinance substantially similar thereto in a manner so gross, wanton and culpable as to show a reckless disregard for human life, unintentionally causes the serious bodily injury of another person resulting in permanent and significant B. If, in addition, the conduct of the defendant was so gross, wanton and culpable as to show a reckless disregard for human life, he shall be guilty of aggravated involuntary manslaughter, a felony punishable by a term of imprisonment of not less than one nor more than twenty years, one year of which shall be a mandatory, minimum term of imprisonment.- 19 - physical impairment shall be guilty of a Class 6 felony. Code § 18.2-51.4(A). In this statute, as with the DUI manslaughter statute, the legislature included the same mens rea language ("reckless disregard for human life") used in the child endangerment statute. The actus reus requirement of the DUI maiming statute, however, requires a specific form of "serious bodily injury." Nothing in this statute or in our cases interpreting it requires a fact finder to analyze the defendant's behavior in the abstract to determine if it exposed the victim to a lethal risk of harm before considering the actual, non-fatal harm inflicted. For these reas ons, I believe the phra se "reckles s disregard for human life" should be inte rpreted as a mens rea requirement synonymous with cr iminal negligence. The ph rase does not, in my judgment, in clude any actus reus requirement limiting the scope of the statute only to lethal risks of harm . By interp reting the statute to include sucha limitation, the majority has "conflated the two theoretica l pillars of cr iminal law —— actus reus and mens

rea ." United States v. Bartley , 230 F.3d 667, 67 7 (4th Cir. 2000) (Wilkinson, C.J. , dissenting).

B. In legal codes, as in ordinary conversati on, "a word is known by the company it keeps." Sprietsma v. Mercury Marine , 537 U.S. ___, 123 S. Ct. 518, 526 (2002) (quoting Gustafson v. Alloyd, Co. ,- 20 - 513 U.S. 561, 575 (199 5)). The same can be said of a statutory phrase. "Under basic principles of statutory cons truction, we consider all relevant provisions of a statute and do not isolate particular words or phrases." Lee County v. Town of St. Charles , 264 Va. 344, 348, 568 S.E.2d 68 0, 682 (2002); see also Lucy v. County of Albemarle , 258 Va. 118, 12 9, 516 S.E.2d 48 0, 485 (1999) ("Statutes which have the same general or co mmon purpose or are parts of the same general plan are also ordi narily considered as in pari materia ."). We thus consider "the en tire body of legislation and the statutory sc heme to determ ine the 'true intention of ea ch part.'" McCray v. Commonwealth , 37 Va. App. 202, 204, 556 S.E.2d 50, 51 (2001) (cit ation omitte d). And despite the stri ct construction afford ed penal statutes, a defendant "is not 'entitled to a favorable result based upon an unreasonably restrictive interp retation of th e statute.'" Id. Following these pr inciples, Code § 18 .2-371.1(B )'s child endangerment provision should be read in ha rmony with subsection (A), which addresses acts or omissi ons resulting in "serious injury to the life or health of such child." Read this way, Code § 18.2-371.1 contains a dichotomy betw een behavior causing serious harm to a child in subsection (A) and behavi or creating a realistic risk of serious harm to a child in subsec tion (B). In this sense, subsection (B) equa lly condemns a pa rent who, for example, exposes a chil d through crimin al negligence to the risk of a nonfatal gunshot wound every bit as much as on e who exposes a- 21 - child to a lethal one. It should be unnecessary to have to prove that the wound, had it been inflicted, woul d have likely killed the child. By inco rporating the actus reus in subsection (A), subsection (B)'s enda ngerment provision li mits liability to criminal negligence that creates a real istic risk of "serious harm to the life or he alth" of the child.

II. When faced with a challeng e to the suffic iency of the evidence, we "presume the judgment of th e trial cour t to be correct" and reverse only if the trial co urt's decision is "plainly wrong or without eviden ce to supp ort it." Davis v. Commonwealth , 39 Va. App. 96, 99, 570 S. E.2d 875, 876-77 (2002) (citations omitted); see also McGee v. Commonwealth , 25 Va. App. 193, 197-98, 487 S.E.2d 259, 261 (1997) ( en banc ). When a jury decides the case, Code § 8.01 -680 requires that "we review the jury's decision to se e if reasonable jurors could have made the ch oices that the ju ry did make." Pease v. Commonwealth , 39 Va. App. 342, 355, 57 3 S.E.2d 272, 278 (2002) ( en banc ). "We let the decision stand unless we conclude no rational juror could have reache d that decision." Id. The same standard applies when a trial ju dge sits as th e fact finder because "the court's judgment is accorded the same weig ht as a jury verdict."- 22 - Shackleford v. Commonwealth , 262 Va. 196, 209, 547 S.E.2d 899, 907 (2001). 2 In other words, when faced with a challenge to the sufficiency of the evidence, a reviewing court does not "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Jackson v. Virginia , 443 U.S. 307, 318-19 (1979) (emphasis in original and citation omitted). It asks instead whether " any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at 319 (emphasis in original). This deference applies not only to the historical facts themselves, but the inferences from those facts as well. "The inferences to be drawn from proven facts, so long as they are reasonable, are within the province of the trier of fact." Hancock v. Commonwealth , 12 Va. App. 774, 783, 407 S.E.2d 301, 306 (1991). Governed by this st andard of revi ew, the eviden ce satisfies the sufficiency te st. A rational fact fi nder could have found

2 Unless the fact finder acted unreasonably, we consider it our duty not to "substitute our judgment for that of the trier of fact, even were our opinion to differ." Wactor v. Commonwealth , 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002) (quoting Commonwealth v. Presley , 256 Va. 465, 466, 507 S.E.2d 72, 72 (1998)); see also Pease , 39 Va. App. at 355, 573 S.E.2d at 278; Harris v. Commonwealth , 38 Va. App. 680, 691, 568 S.E.2d 385, 390 (2002). Thus, on appeal from a bench trial, if "reasonable jurists could disagree about the probative force of the facts, we have no authority to substitute our views for those of the trial judge." Campbell v. Commonwealth , 39 Va. App. 180, 186, 571 S.E.2d 906, 909 (2002).- 23 - Duncan guilty unde r Code § 18.2-371.1 (B). Duncan le ft a six-month-old baby with stranger s he had met brie fly only the day before. During his se ven-hour hiatus, Duncan failed to provide any nutrition or hydrat ion for the infa nt. Upon retu rning, Duncan failed to feed the in fant for at least anot her two hour s. When the baby began "crying and making a lot of no ise" after having no nourishment or hydratio n for about ten hours, Duncan stated he would "take care of the problem" and willfully gave the infant a bottle containing alco hol, a known diuretic. Had the child slept the rest of the ni ght from the alcohol, the next day he would have gone 20 hours or more without any nutr ition or hydration at all. Even Duncan —— who deni ed doing anything of the kind —— seemed to understand the danger of giving alcohol to a de hydrated six-month-old in fant, when he decl ared: "I would ne ver do that to my son. I woul d never do that." 3 I agree complete ly with Chief Judge Fi tzpatrick that "[h]ad the baby died as a re sult of ingest ing the alcohol laced drink, a manslaughter indict ment would have be en the outcome." Ante at 13. I thus cannot say, as the majority does, that the trial court

3 Duncan failed to move to strike at the close of the Commonwealth's case and failed to make a formal motion to strike at the conclusion of all evidence. Though Duncan's counsel argued that the evidence did not prove Duncan was the one who put alcohol in the infant's bottle, counsel never once argued that feeding this amount of alcohol to a dehydrated infant could not constitute, as a matter of law, felony neglect under Code § 18.2-371.1(B), the issue decided by the majority.- 24 - erred as a matter of la w in finding Duncan gu ilty of felony child endangerment under Co de § 18.2-371.1(B). I thus respectfully dissent.- 25 - Monday 30th September, 2002.

Carlton Wendell Duncan, Appellant, against Record No. 1060-01-1 Circuit Court No. CR11514-00 Commonwealth of Virginia, Appellee.

Upon a Petition for Rehearing En Banc Before the Full Court

On September 9, 2002 came the appellee, by the Attorney General of Virginia, and filed a petition praying that the Court set aside the judgment rendered herein on August 27, 2002, and grant a rehearing en banc thereof. On consideration whereof, the petition for rehearing

en banc is granted, the mandate entered herein on August 27, 2002 is stayed pending the decision of the Court en banc , and the appeal is reinstated on the docket of this Court. The parties shall file briefs in compliance with Rule 5A:35. The appellee shall attach as an addendum to the opening brief upon rehearing en banc a copy of the opinion previously rendered by the Court in this matter. It is further ordered that- 26 - the appellee shall file with the clerk of this Court twelve additional copies of the appendix previously filed in this case.

A Copy, Teste: Cynthia L. McCoy, Clerk By: Deputy Clerk- 27 - COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Bumgardn er and Clements Argued at Ches apeake, Virginia

CARLTON WEND ELL DUNCAN MEMORANDUM OPINION * BY v. Record No. 1060-01-1 JU DGE JEAN HARR ISON CLEMENTS AUGUST 27, 2002 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG AND COUNTY OF JAMES CITY Thomas B. Ho over, Judge LeeAnn N. Barnes for appellant. Virginia B. Theise n, Assistan t Attorney General (Rando lph A. Beales , Attorney General, on brief), for appellee.

Carlton Wendel l Duncan was convicted in a bench trial of felony child abuse and negl ect in violation of Code § 18.2-371.1(B). On appeal, he cont ends the evidence was insufficient to sustain the convic tion. We agree and reverse the conviction. As the parties are fu lly conversant with the record in this case and because this memorandum opinion carr ies no precedential value, this opin ion recites only those facts and in cidents of the proceedings as necess ary to the parties' understandin g of the disposition of this appeal.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication.- 28 - When the sufficiency of the evidence is ch allenged on appeal, we review the eviden ce "in the light most favorable to the Commonwealth, granting to it all reason able inferences fairly deducible th erefrom." Bright v. Commonwealth , 4 Va. App. 248, 250, 356 S.E.2d 443, 444 (1997). "In so do ing, we must discard the evidence of the accused in confli ct with that of the Commonwealth, an d regard as true all the credible evidence favorable to the Common wealth and all fair in ferences that may be drawn ther efrom." Watkins v. Commonwealth , 26 Va. App. 335, 349, 494 S.E.2d 859, 866 (1998). We ar e further mind ful that the "credibility of a witness, the weight acco rded the testimony, and the inferences to be drawn from proven facts are matt ers solely for the fact finder's determination." Crawley v. Commonwealth , 29 Va. App. 372, 375, 51 2 S.E.2d 169, 170 (1 999). We will not disturb the convic tion unless it is plai nly wrong or unsupported by the evidence. Sutphin v. Commonwealth , 1 Va. App. 241, 243, 337 S.E.2d 897, 898 (1985). Here, viewed in the light most favorabl e to the Co mmonwealth, the evidence establishe d that, on June 12, 20 00, around 3:30 p.m., Jennifer Dansby re turned home from work to find Michelle Cribbs, several friends, and Duncan's six-month-ol d son there. Duncan was not there. Da nsby shared the home with Cribbs and Eliz abeth Nemo. She had first met Duncan and his baby the da y before when Dansby's ex-housemate had invited him to Dansby's house. The baby was awake when Dansby got home but would doze of f as Dansby and the- 29 - others took turn s holding him and playing with him. There was no baby food or formula in the house, so Dansby and he r friends were unable to feed the ch ild. Accordin g to Dansby, nobody fed the child from 3:30 p.m. until 11:00 p.m. Nemo arrived home at 9:30 p.m. Later in the evening, an impromptu party be gan as other frie nds arrived and people started drinking beer an d using illegal dr ugs. Dansby, her housemates, and her friends co ntinued to take turns holding the baby, passing him around. Duncan arrived at the house around 10:30 p.m., bringing a bag of mariju ana with him. Nemo noticed that his eyes were "glazed over" and th e whites of his eyes were ye llow. Duncan began drinking wi th the group. When the subject of babies came up, Duncan started talk ing about women he had impreg nated and the abortions they had had. Later, Duncan took the baby from Nemo, put him on the couch, an d, holding him by his hands, lifted him up off the couch. The baby st arted crying. Around midnight, th e baby became fussy and starte d crying loudly. Duncan, saying he would "take care of the problem," took the child from his carr iage in the li ving room an d carried him into the bathroom, and then into a back bedr oom. Nemo , who was concerned about the baby, follow ed them. Look ing into the bedroom, she saw the ba by lying on a futon. Duncan was sitting next to the futo n, lifting it "as if it was going towards the baby's body." When Duncan saw Nemo, he pu t the futon down and- 30 - told her he was lookin g for a pacifier . Duncan left the room, and Nemo picked up the baby , who was still crying. Duncan went into the kitchen. Dansby heard him open the refrigerator door, whic h was "odd," she though t, because there was only beer and wine co olers in the refriger ator. Approximately five minutes later, Du ncan came out of the kitchen with a baby bottle, which he took to the back room and gave to Nemo. Nemo started feeding th e child, and Duncan left the room and then went outside. While feeding th e baby, Nemo went into the living room and sat down with her friends. Nemo then noticed that the liquid in the baby bottle had a "pinkish color" an d smelled like wine cooler. After a frie nd tasted the liquid in the bottle and confirmed that it tasted of alco hol, Dansby, wh o described the liquid as having a "m ilky pinkish color," ca lled the hospital and the police. She then took the baby bottle , which was a little more than half full, and hid it in the microwave ov en until the police arrived. Whil e in the kitchen, Da nsby noticed that a bottle of wine cooler was missing fr om the refrig erator. She found an open bott le of wine cooler that had not been there before on the kitchen co unter behind some fast-food bags of trash. It had approximat ely three inch es of liquid missin g from the top. The contents of the bottle were "pink." Approximately fifteen minutes later, Duncan, who was unaware the police had been ca lled, came back insi de to check on his- 31 - child. He sat on th e couch next to Nemo, who cont inued to hold the baby until th e police came. When the police arri ved, Officer Nacastro noticed that Duncan had "bloodshot eyes," his speech was "sligh tly mumbled, " and he smelled "of intoxi cant[s]." The police to ok the baby bottle and the opened bottle of wine cooler for analysis. Laboratory tests revealed that the liquid in the twel ve-ounce bottle of wine cooler was 3.2% ethyl alcohol by volume. The liquid in the ei ght-ounce baby bottle, which the police noted was "whiti sh [with a] little pinkish color in that," was 2.8% ethy l alcohol by volume. At trial, Duncan de nied putting any alcoho l in his son's baby bottle. He said he picked up the baby bottle fr om the kitchen table and gave it to Nemo, but di d not know it contained wine cooler. He also test ified that he had fed the baby apple raisin cereal earlier in the ev ening. He also clai med he put his son on the futon in the back bedroom and rubb ed his back so he could go to sleep. Code § 18.2-371.1(B ) provides that "[a] ny parent, guardian, or other person respon sible for the ca re of a child under the age of eighteen whose will ful act or omission in the care of such child was so gross, wa nton and culpable as to show a reckless disregard for huma n life shall be guiltyof a Clas s 6 felony." After hearing th e evidence and argument of counsel, the trial judge stated:- 32 - I find that Mr. Duncan is not a believable witness. I reject his testimony as to the explanat ion. I find the Commonwealth's witnesse s, again Ms. Nemo and Ms. Dansby together with Officer Na castro, to clearly show and prove beyond a reasonable doubt that the defendan t took the baby back to the back bedroom and whatever happened on the [futon], he then is the on e who goes to the kitchen area, he comes back with a bottle that has this clear pi nkish substa nce in it, he gives the bo ttle to Ms. Ne mo, then he walks out. Feeding alcoho l to a six-mo nth baby is clear neglect. Coupled with all the other acts, omissions and commissions that he did, I find the defendan t guilty beyond a reasonable doubt of the felony charge. On appeal, Duncan does not challenge th e sufficienc y of the evidence to show that he committed certain improp er acts and omissions in the care of his son and that su ch acts an d omissions were willful. In addi tion, he concedes that such willful acts and omissions could be construed as being irre sponsible, derelict, and negligent. He argues, however, that, even vi ewing the ev idence in the light most favorabl e to the Common wealth, his will ful acts and omissions were not so gross, wanton, and culp able as to show a reckless disregar d for human life. The Commonwealth argu es that Duncan's ac ts and omissions in the care of his son support his conviction. Sp ecifically, the Commonwealth asserts th at Duncan's leaving th e child in the care of people he had know n for just a day; fail ing to feed, or make sure someone else fe d, the child for more than seven hours; returning to Dansby's home intoxicated an d in possession of- 33 - marijuana; "put[ting] the child on a futon an d then lift[ing] the futon until he was ca ught" by Nemo; and, most significantly, causing Nemo, un beknownst to her, to feed wine cool er to the baby was conduct so gross, wanton and culpable as to show a reckless disregard for th e life of his six- month-old son. We disagree with the Common wealth. Plainly, Duncan was negligent in caring for his chil d. His conduct was inexcu sable and cannot be condoned. A finding of negligence, howe ver, is not en ough, by itself , to sustain a conviction for criminal abuse and neglect of a child under Code § 18.2-371.1. See Ellis v. Commonwealth , 29 Va. App. 548, 555, 513 S.E.2d 453, 457 (1 999) (holding that "s omething more than negligence must be pr oved beyond a reasonab le doubt to support [defendant's] conviction" of crim inal child neglec t). To sustain Duncan's conviction in this case, the Common wealth had to prove beyond a reasonable do ubt that Duncan commit ted a willful act or omission in the care of his son that was "so gros s, wanton, and culpable as to show a reckless disregard" for the chil d's life. Code § 18.2-371 .1(B). In Snow v. Co mmonwealth , 33 Va. App. 766, 775, 537 S.E.2d 6, 11 (2000), we held that the defe ndant's act of driving a car with children in it in excess of one hundred miles per hour while trying to elude the po lice was not on ly illegal but "dangerous," and, thus, constitute d conduct "so gros s, wanton, and culpable as to show a reckless disregard fo r human life ." The- 34 - same cannot be said, however, of th e willful acts and omissions before us in this case. Here, although Dunc an, as the Commonweal th notes, left his son with women he had known for only a day, the evidence supports the trial court' s finding that the wo men found "the baby interesting and cu te" and enjoyed "l ooking after" him. Indeed, they continued to play with and hold the ch ild even after Duncan returned to the women's house. In addition, Dunc an did interact on occasion with his so n upon his return to the house and, despite his apparent intoxication and possession of illicit drugs, responded to him when the child beca me fussy and cried loudly. Furthermore, althou gh Nemo testified th at she was concerned for the baby's safety when Duncan took th e child to the back bedroom after anno uncing he would "take care of th e problem," we find, on the evidence presented, that her assignment of ill will to Duncan was purely speculative, as was her perc eption that Duncan intended to harm the child when she saw him lift the futon. The trial court co rrectly gave little, if any, weight to such conjecture in reac hing its decision. Likewise, the ev idence did not show that Duncan's failure to feed his son for seve n and a half hours co nstituted co nduct so gross, wanton, and culp able as to show a re ckless disregard for the child's life, particularly as there was no evid ence that the baby was hungry or ot herwise in distress du ring that period of time. In fact, th e evidence showed that, when the baby did become- 35 - fussy and start to cry loudly, Dunc an took steps to feed him, albeit with a bott le containing wine cooler—which br ings us to the crux of this appeal. In finding Duncan gu ilty of violat ing Code § 18 .2-371.1(B), the trial court at tached the greatest signif icance to Du ncan's act of putting wine cooler in the baby's bottle and causing it to be fed to his son. Clea rly, that was the most serious al legation against Duncan. Duncan argues that, given th e low alcoho l content of the mixture fed to his son, his child's life would not have been endangered even if he had consumed the en tire contents of the bottle. The question befo re us, then, is whether feeding a six-month-old in fant approximately eigh t ounces of liquid containing 2.8% ethyl alcohol by volume is an act so gross, wanton, and culpab le as to show a reckle ss disregar d for human life. The Commonwealthasserts that "[i]t is beyond dispute that feeding alcohol to an infant is dangerous." Plai nly, at some quantitative level, ba sed on the alcoholic co ntent and vo lume of the liquid ingested, feeding a six-mo nth-old child liquid that contains alcohol would, like driving an auto mobile in excess of one hundred mile s an hour while being pursued by the police, constitute a danger to the child's li fe. In this case, however, there was simply no evidence presented to show that feeding Duncan's six-month-old so n up to eight ounces of a li quid that was 2.8% ethyl alcohol by volume put the child' s life in danger.- 36 - Hence, we conclu de that the ev idence did not support such a finding beyond a reasonable doubt by the trial court. We hold, therefore, that the Commonweal th's evidence was insufficient, as a matter of law, to prove beyond a reasonable doubt that Duncan's wi llful acts and omission s in caring for his child were so gr oss, wanton, and culpable as to show a reckless disregard for hu man life. Accordingly, we revers e Duncan's conviction of felo ny child abuse and neglect un der Code § 18.2-371.1(B) and dismiss th e indictment. Reversed and dismissed.