COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Benton, Elder, 

 Annunziata, Bumgardner, Frank, Humphreys, Clements, 

 Agee,* Felton and Kelsey 

Argued at Richmond, Virginia 

CARLTON WENDELL DUNCAN 

 MEMORANDUM OPINION** BY 

v. Record No. 1060-01-1 JUDGE JEAN HARRISON 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. Hoover, Judge 

 LeeAnn N. Barnes for appellant. 

 Virginia B. Theisen, Assistant Attorney 

General (Jerry W. Kilgore, Attorney General, 

on brief), for appellee. 

 On August 27, 2002, a unanimous panel of this Court reversed 

and dismissed the conviction of appellant, Carlton Wendell Duncan, 

for felony child abuse and neglect, in violation of Code 

§ 18.2-371.1(B). The panel determined that the Commonwealth's 

evidence did not establish beyond a reasonable doubt that Duncan's 

willful acts and omissions in the care of his 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 decision. Upon rehearing en banc, we reverse the trial 

court and dismiss the conviction. 

 When the sufficiency of the evidence is challenged on appeal, 

we review the evidence "in the light most favorable to the 

Commonwealth, granting to it all reasonable inferences fairly 

deducible therefrom." Bright v. Commonwealth, 4 Va. App. 248, 

250, 356 S.E.2d 443, 444 (1997). "In so doing, we must discard 

the evidence of the accused in conflict with that of the 

Commonwealth, and regard as true all the credible evidence 

favorable to the Commonwealth and all fair inferences that may be 

drawn therefrom." Watkins v. Commonwealth, 26 Va. App. 335, 349, 

494 S.E.2d 859, 866 (1998). We are further mindful that the 

"credibility of a witness, the weight accorded the testimony, and 

the inferences to be drawn from proven facts are matters solely 

for the fact finder's determination." Crawley v. Commonwealth, 29 

Va. App. 372, 375, 512 S.E.2d 169, 170 (1999). We will not 

disturb the conviction unless it is plainly 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 favorable to the Commonwealth, 

the evidence established that, on June 12, 2000, around 3:30 p.m., 

Jennifer Dansby returned home from work to find Michelle Cribbs, 

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several friends, and Duncan's six-month-old son there. Duncan was 

not there. Dansby shared the home with Cribbs and Elizabeth Nemo. 

She had first met Duncan and his baby the day before when Dansby's 

ex-housemate had invited Duncan to Dansby's house. The baby was 

awake when Dansby got home but would doze off as Dansby and the 

others took turns holding him and playing with him. There was no 

baby food or formula in the house, so Dansby and her friends were 

unable to feed the child. According 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 began as other friends arrived and people started 

drinking beer and using illegal drugs. Dansby, her housemates, 

and her friends continued to take turns holding the baby, passing 

him around. Duncan arrived at the house around 10:30 p.m., 

bringing a bag of marijuana with him. Nemo noticed that his eyes 

were "glazed over" and the whites of his eyes were yellow. Duncan 

began drinking with the group. When the subject of babies came 

up, Duncan started talking about women he had impregnated and the 

abortions they had had. Later, Duncan took the baby from Nemo, 

put him on the couch, and, holding him by his hands, lifted him up 

off the couch. The baby started crying. 

 Around midnight, the baby became fussy and started crying 

loudly. Duncan, saying he would "take care of the problem," took 

the child from his carriage in the living room and carried him 

into the bathroom, and then into a back bedroom. Nemo, who was 

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concerned about the baby, followed them. Looking into the 

bedroom, she saw the baby lying on a futon. Duncan was sitting 

next to the futon, lifting it "as if it was going towards the 

baby's body." When Duncan saw Nemo, he put the futon down and 

told her he was looking 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, which was "odd," she thought, because there was 

only beer and wine coolers in the refrigerator. Approximately 

five minutes later, Duncan came out of the kitchen with a baby 

bottle, which he took to the back room and gave to Nemo. Nemo 

started feeding the child, and Duncan left the room and then went 

outside. 

 While feeding the 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" and smelled like wine 

cooler. After a friend tasted the liquid in the bottle and 

confirmed that it tasted of alcohol, Dansby, who described the 

liquid as having a "milky pinkish color," called 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 oven until the 

police arrived. While in the kitchen, Dansby noticed that a 

bottle of wine cooler was missing from the refrigerator. She 

found an open bottle of wine cooler that had not been there before 

on the kitchen counter behind some fast-food bags of trash. It 

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had approximately three inches of liquid missing from the top. 

The contents of the bottle were "pink." 

 Approximately fifteen minutes later, Duncan, who was unaware 

the police had been called, came back inside to check on his 

child. He sat on the couch next to Nemo, who continued to hold 

the baby until the police came. 

 When the police arrived, Officer Nacastro noticed that Duncan 

had "bloodshot eyes," his speech was "slightly mumbled," and he 

smelled "of intoxicant[s]." The police took the baby bottle and 

the opened bottle of wine cooler for analysis. Laboratory tests 

revealed that the liquid in the twelve-ounce bottle of wine cooler 

was 3.2% ethyl alcohol by volume. The liquid in the eight-ounce 

baby bottle, which the police noted was "whitish [with a] little 

pinkish color in that," was 2.8% ethyl alcohol by volume. 

 At trial, Duncan denied putting any alcohol in his son's baby 

bottle. He said he picked up the baby bottle from the kitchen 

table and gave it to Nemo, but did not know it contained wine 

cooler. He also testified that he had fed the baby apple raisin 

cereal earlier in the evening. He also claimed he put his son on 

the futon in the back bedroom and rubbed his back so he could go 

to sleep. 

 Code § 18.2-371.1(B) provides that "[a]ny 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 

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child was so gross, wanton and culpable as to show a reckless 

disregard for human life shall be guilty of a Class 6 felony." 

 After hearing the 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 explanation. I find the 

Commonwealth's witnesses, again Ms. Nemo and 

Ms. Dansby together with Officer Nacastro, to 

clearly show and prove beyond a reasonable 

doubt that the defendant took the baby back 

to the back bedroom and whatever happened on 

the [futon], 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 Ms. Nemo, then he 

walks out. 

 Feeding alcohol to a six-month baby is 

clear neglect. Coupled with all the other 

acts, omissions and commissions that he did, 

I find the defendant guilty beyond a 

reasonable doubt of the felony charge. 

 On appeal, Duncan does not challenge the sufficiency of the 

evidence to show that he committed certain improper acts and 

omissions in the care of his son and that such acts and omissions 

were willful. In addition, he concedes that such willful acts and 

omissions could be construed as being irresponsible, derelict, and 

negligent. He argues, however, that, even viewing the evidence in 

the light most favorable to the Commonwealth, his willful acts and 

omissions were not so gross, wanton, and culpable as to show a 

reckless disregard for human life. 

 The Commonwealth argues that Duncan's acts and omissions in 

the care of his son support his conviction. Specifically, the 

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Commonwealth asserts that Duncan's leaving the child in the care 

of people he had known for just a day; failing to feed, or make 

sure someone else fed, the child for more than seven hours; 

returning to Dansby's home intoxicated and in possession of 

marijuana; "put[ting] the child on a futon and then lift[ing] the 

futon until he was caught" by Nemo; and, most significantly, 

causing Nemo, unbeknownst to her, to feed wine cooler to the baby 

was conduct so gross, wanton and culpable as to show a reckless 

disregard for the life of his six-month-old son. We disagree with 

the Commonwealth. 

 Plainly, Duncan was negligent in caring for his child. His 

conduct was inexcusable and cannot be condoned. A finding of 

negligence, however, is not enough, 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 (1999) (holding that "something more than 

negligence must be proved beyond a reasonable doubt to support 

[defendant's] conviction" of criminal child neglect). To sustain 

Duncan's conviction in this case, the Commonwealth had to prove 

beyond a reasonable doubt that Duncan committed a willful act or 

omission in the care of his son that was "so gross, wanton, and 

culpable as to show a reckless disregard" for the child's life. 

Code § 18.2-371.1(B). In Snow v. Commonwealth, 33 Va. App. 766, 

775, 537 S.E.2d 6, 11 (2000), we held that the defendant's act of 

driving a car with children in it in excess of one hundred miles 

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per hour while trying to elude the police was not only illegal but 

"dangerous," and, thus, constituted conduct "so gross, wanton, and 

culpable as to show a reckless disregard for human life." The 

same cannot be said, however, of the willful acts and omissions 

before us in this case. 

 Here, although Duncan, as the Commonwealth notes, left his 

son with women he had known for only a day, no evidence showed 

that the women were irresponsible or that Duncan had reason to 

believe they were unable or unwilling to care for the baby, or 

that they would place the child's life at risk. Furthermore, the 

evidence supports the trial court's finding that the women found 

"the baby interesting and cute" and enjoyed "looking after" him. 

Indeed, they continued to play with and hold the child even after 

Duncan returned to the women's house. In addition, 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 became fussy and cried loudly. 

 Furthermore, although Nemo testified that she was concerned 

for the baby's safety when Duncan took the child to the back 

bedroom after announcing he would "take care of the problem," we 

find, on the evidence presented, that her assignment of ill will 

to Duncan was purely speculative, as was her perception that 

Duncan intended to harm the child when she saw him lift the futon. 

The trial court correctly gave little, if any, weight to such 

conjecture in reaching its decision. 

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 Likewise, the evidence did not show that Duncan's failure to 

feed his son for seven and a half hours constituted conduct so 

gross, wanton, and culpable as to show a reckless disregard for 

the child's life, particularly as there was no evidence that the 

baby was hungry or otherwise in distress during that period of 

time. In fact, the evidence showed that, when the baby became 

fussy and started to cry loudly, Duncan took steps to feed him, 

albeit with a bottle containing a liquid mixture, part of which 

was wine cooler—which brings us to the crux of this appeal. 

 In finding Duncan guilty of violating Code § 18.2-371.1(B), 

the trial court attached the greatest significance to Duncan's act 

of putting the mixture containing wine cooler in the baby's bottle 

and causing it to be fed to his son. Clearly, that was the most 

serious allegation against Duncan. Duncan argues that, given the 

low alcohol content of the mixture fed to his son, his child's 

life would not have been endangered even if he had consumed the 

entire contents of the bottle. 

 The question before us, then, is whether feeding a 

six-month-old infant approximately eight ounces of liquid 

containing 2.8% ethyl alcohol by volume is an act so gross, 

wanton, and culpable as to show a reckless disregard for human 

life. The Commonwealth asserts that "[i]t is beyond dispute that 

feeding alcohol to an infant is dangerous." Plainly, at some 

quantitative level, based on the alcoholic content and volume of 

the liquid ingested, feeding a six-month-old child liquid that 

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contains alcohol would, like driving an automobile in excess of 

one hundred miles an hour while being pursued by the police, 

constitute a danger to the child's life. In this case, however, 

there was no evidence presented to show that feeding a 

six-month-old child up to eight ounces of a liquid that is 2.8% 

ethyl alcohol by volume endangers the child's life. Such a 

conclusion would, therefore, have to be based on pure conjecture 

and speculation, rather than on the evidence or inferences 

reasonably drawn therefrom. Hence, we conclude the evidence did 

not support such a finding beyond a reasonable doubt by the trial 

court. See Thomas v. Commonwealth, 187 Va. 265, 272, 46 S.E.2d 

388, 391 (1948) ("A conclusion of guilt must be supported by 

credible evidence and cannot rest upon conjecture or suspicion."). 

 We hold, therefore, that the Commonwealth's evidence was 

insufficient, as a matter of law, to prove beyond a reasonable 

doubt that Duncan's willful acts and omissions in caring for his 

child were so gross, wanton, and culpable as to show a reckless 

disregard for human life. Accordingly, we reverse Duncan's 

conviction of felony child abuse and neglect under Code 

§ 18.2-371.1(B) and dismiss the indictment. 

 Reversed and dismissed.

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- 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 
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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 
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alcohol laced drink, a manslaughter indictment would have been 

the outcome. Therefore, I would affirm appellant's conviction. 
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Kelsey, J., dissenting. 

 Crime is a "compound concept," generally requiring the 

"concurrence of an evil-meaning mind with an evil-doing hand." 

Morissette v. United States, 342 U.S. 246, 251-52 (1952). Every 

criminal statute, unless it imposes strict liability, must have 

two components: mens rea and actus reus. The former describes 

the criminal actor's state of mind, while the latter identifies 

the specific behavior deemed unlawful. 

 Underlying the disagreement between the majority and the 

dissent in this case, I believe, is an unstated —— but altogether 

real —— difference in opinion on how to deal with the apparent 

lack of an actus reus component in Code § 18.2-371.1(B). 

Subsection (B) of the statute 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) criminalizes undefined acts 

or omissions that "show a reckless disregard for human life." 

 The majority interpolates an actus reus component from the 

"reckless disregard for human life" phrase. Focusing on this 

phrase alone, the majority assumes the "act or omission" condemned 

by the statute must be one that puts the victim at a probable risk 

of death. Under this interpretation, only lethal risks (not 

non-fatal risks of harm) fall within the scope of the statute. In 
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other words, if a parent puts a child at risk of being burned, 

cut, drugged, beaten, shot, or otherwise seriously injured —— but 

the trauma would not have likely resulted in death —— the parent 

has not violated Code § 18.2-371.1(B). 

 For two reasons, I do not believe the legislature intended 

the interpretation adopted by the majority. First, the phrase 

"reckless disregard for human life" is a statutory term of art 

that describes the requisite mens rea of the criminal actor, not 

the actus reus of the criminal act. The phrase has been used in 

many contexts, for many years, merely as a synonym for criminal 

negligence. We should presume that, by including this phrase in 

Code § 18.2-371.1(B), the legislature intended the traditional 

mens rea meaning ascribed to these words by the courts. Second, 

Code § 18.2-371.1 should be read as a whole and not as a series of 

freestanding phrases. A holistic approach leads us to subsection 

(A), which criminalizes "serious injury" to a child, as we search 

for the relevant actus reus of subsection (B). 

I. 

A. 

 When the General Assembly enacted Code § 18.2-371.1 in 1981, 

the statute included only the language now found in subsections 

(A) and (C). The 1981 statute criminalized behavior resulting in 

"serious injury to the life or health of such child," but did not 

address the felonious endangerment of a child short of actual 
- 16 - 

injury or death. The General Assembly amended Code § 18.2-371.1 

in 1993 to include a felony endangerment section, subsection (B), 

to address this omission. 

 The phrase "reckless disregard for human life," used in 

subsection (B), is a statutory 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 conviction for aggravated 

involuntary manslaughter in violation of Code § 18.2-36.1(B) 

requires proof, in addition, that the driver's 'conduct . . . was 

so gross, wanton and culpable as to show a reckless disregard for 

human life,' i.e., that the driver was criminally negligent." 

(emphasis added)). 

 The phrase has been used interchangeably with a variety of 

other phrases such as "disregard of another person's rights with 

reckless indifference to the consequences," Hubbard v. 

Commonwealth, 243 Va. 1, 15, 413 S.E.2d 875, 883 (1992), "reckless 

and utter disregard for the life and personal safety of others," 

Gallimore v. Commonwealth, 15 Va. App. 288, 294, 422 S.E.2d 613, 

616 (1992), and "reckless or indifferent disregard of the rights 

of others," Cable v. Commonwealth, 243 Va. 236, 240, 415 S.E.2d 

218, 220 (1992). 

 We have equated the language "reckless disregard for human 

life" to the common law definition of criminal negligence 

enunciated in Bell v. Commonwealth, 170 Va. 597, 611-12, 195 S.E. 

675, 681 (1938), where the 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 scenarios, as has the majority in this case. Though 

some crimes with a mens rea of criminal negligence also require 

death, in each of those cases death is set forth separately in the 

actus reus component of the crime. For example in Goodman, we 

affirmed a conviction of involuntary DUI manslaughter under Code 

§ 18.2-36.1 because the defendant's actions caused the death of 

another, as required 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. 
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defendant's actions were "aggravated" under subsection (B) because 

the "appellant was criminally negligent because the manner in 

which he operated his vehicle 'show[ed] a reckless or indifferent 

disregard of the rights of others, under circumstances reasonably 

calculated to produce injury.'" Goodman, 37 Va. App. at 389, 558 

S.E.2d at 562 (citations omitted). 

 Though death is an element of DUI manslaughter under Code 

§ 18.2-36.1(A), the lethal nature of the risk does not figure into 

the aggravation analysis under Code § 18.2-36.1(B). Put another 

way, an aggravated DUI manslaughter conviction can be predicated 

on a showing that the defendant had criminal negligence mens rea

coupled with an actus reus of "unintentionally caus[ing] the death 

of another person." 

 Consider too the DUI maiming statute, 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. 
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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 reasons, I believe the phrase "reckless disregard 

for human life" should be interpreted as a mens rea requirement 

synonymous with criminal negligence. The phrase does not, in my 

judgment, include any actus reus requirement limiting the scope of 

the statute only to lethal risks of harm. By interpreting the 

statute to include such a limitation, the majority has "conflated 

the two theoretical pillars of criminal law —— actus reus and mens

rea." United States v. Bartley, 230 F.3d 667, 677 (4th Cir. 2000) 

(Wilkinson, C.J., dissenting). 

B. 

 In legal codes, as in ordinary conversation, "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 (1995)). The same can be said of a statutory 

phrase. "Under basic principles of statutory construction, 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 680, 682 (2002); see also Lucy v. 

County of Albemarle, 258 Va. 118, 129, 516 S.E.2d 480, 485 (1999) 

("Statutes which have the same general or common purpose or are 

parts of the same general plan are also ordinarily considered as 

in pari materia."). We thus consider "the entire body of 

legislation and the statutory scheme to determine the 'true 

intention of each part.'" McCray v. Commonwealth, 37 Va. App. 

202, 204, 556 S.E.2d 50, 51 (2001) (citation omitted). And 

despite the strict construction afforded penal statutes, a 

defendant "is not 'entitled to a favorable result based upon an 

unreasonably restrictive interpretation of the statute.'" Id.

 Following these principles, Code § 18.2-371.1(B)'s child 

endangerment provision should be read in harmony with subsection 

(A), which addresses acts or omissions resulting in "serious 

injury to the life or health of such child." Read this way, Code 

§ 18.2-371.1 contains a dichotomy between behavior causing serious 

harm to a child in subsection (A) and behavior creating a 

realistic risk of serious harm to a child in subsection (B). In 

this sense, subsection (B) equally condemns a parent who, for 

example, exposes a child through criminal negligence to the risk 

of a nonfatal gunshot wound every bit as much as one who exposes a 
- 21 - 

child to a lethal one. It should be unnecessary to have to prove 

that the wound, had it been inflicted, would have likely killed 

the child. By incorporating the actus reus in subsection (A), 

subsection (B)'s endangerment provision limits liability to 

criminal negligence that creates a realistic risk of "serious harm 

to the life or health" of the child. 

II. 

 When faced with a challenge to the sufficiency of the 

evidence, we "presume the judgment of the trial court to be 

correct" and reverse only if the trial court's decision is 

"plainly wrong or without evidence to support 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 see if reasonable jurors could 

have made the choices that the jury did make." Pease v. 

Commonwealth, 39 Va. App. 342, 355, 573 S.E.2d 272, 278 (2002) (en

banc). "We let the decision stand unless we conclude no rational 

juror could have reached that decision." Id. The same standard 

applies when a trial judge sits as the fact finder because "the 

court's judgment is accorded the same weight as a jury verdict." 
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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 standard of review, the evidence satisfies 

the sufficiency test. A rational fact finder 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 under Code § 18.2-371.1(B). Duncan left a 

six-month-old baby with strangers he had met briefly only the day 

before. During his seven-hour hiatus, Duncan failed to provide 

any nutrition or hydration for the infant. Upon returning, Duncan 

failed to feed the infant for at least another two hours. When 

the baby began "crying and making a lot of noise" after having no 

nourishment or hydration for about ten hours, Duncan stated he 

would "take care of the problem" and willfully gave the infant a 

bottle containing alcohol, a known diuretic. Had the child slept 

the rest of the night from the alcohol, the next day he would have 

gone 20 hours or more without any nutrition or hydration at all. 

Even Duncan —— who denied doing anything of the kind —— seemed to 

understand the danger of giving alcohol to a dehydrated 

six-month-old infant, when he declared: "I would never do that to 

my son. I would never do that."3

 I agree completely with Chief Judge Fitzpatrick that "[h]ad 

the baby died as a result of ingesting the alcohol laced drink, a 

manslaughter indictment would have been 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 law in finding Duncan guilty of felony child 

endangerment under Code § 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, Bumgardner and Clements 

Argued at Chesapeake, Virginia 

CARLTON WENDELL DUNCAN 

 MEMORANDUM OPINION* BY 

v. Record No. 1060-01-1 JUDGE JEAN HARRISON CLEMENTS 

 AUGUST 27, 2002 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG 

AND COUNTY OF JAMES CITY 

Thomas B. Hoover, Judge 

 LeeAnn N. Barnes for appellant. 

 Virginia B. Theisen, Assistant Attorney 

General (Randolph A. Beales, Attorney 

General, on brief), for appellee. 

 Carlton Wendell Duncan was convicted in a bench trial of 

felony child abuse and neglect in violation of Code 

§ 18.2-371.1(B). On appeal, he contends the evidence was 

insufficient to sustain the conviction. We agree and reverse the 

conviction. 

 As the parties are fully conversant with the record in this 

case and because this memorandum opinion carries no precedential 

value, this opinion recites only those facts and incidents of the 

proceedings as necessary to the parties' understanding 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 challenged on appeal, 

we review the evidence "in the light most favorable to the 

Commonwealth, granting to it all reasonable inferences fairly 

deducible therefrom." Bright v. Commonwealth, 4 Va. App. 248, 

250, 356 S.E.2d 443, 444 (1997). "In so doing, we must discard 

the evidence of the accused in conflict with that of the 

Commonwealth, and regard as true all the credible evidence 

favorable to the Commonwealth and all fair inferences that may be 

drawn therefrom." Watkins v. Commonwealth, 26 Va. App. 335, 349, 

494 S.E.2d 859, 866 (1998). We are further mindful that the 

"credibility of a witness, the weight accorded the testimony, and 

the inferences to be drawn from proven facts are matters solely 

for the fact finder's determination." Crawley v. Commonwealth, 29 

Va. App. 372, 375, 512 S.E.2d 169, 170 (1999). We will not 

disturb the conviction unless it is plainly 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 favorable to the Commonwealth, 

the evidence established that, on June 12, 2000, around 3:30 p.m., 

Jennifer Dansby returned home from work to find Michelle Cribbs, 

several friends, and Duncan's six-month-old son there. Duncan was 

not there. Dansby shared the home with Cribbs and Elizabeth Nemo. 

She had first met Duncan and his baby the day before when Dansby's 

ex-housemate had invited him to Dansby's house. The baby was 

awake when Dansby got home but would doze off as Dansby and the 
- 29 - 

others took turns holding him and playing with him. There was no 

baby food or formula in the house, so Dansby and her friends were 

unable to feed the child. According 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 began as other friends arrived and people started 

drinking beer and using illegal drugs. Dansby, her housemates, 

and her friends continued to take turns holding the baby, passing 

him around. Duncan arrived at the house around 10:30 p.m., 

bringing a bag of marijuana with him. Nemo noticed that his eyes 

were "glazed over" and the whites of his eyes were yellow. Duncan 

began drinking with the group. When the subject of babies came 

up, Duncan started talking about women he had impregnated and the 

abortions they had had. Later, Duncan took the baby from Nemo, 

put him on the couch, and, holding him by his hands, lifted him up 

off the couch. The baby started crying. 

 Around midnight, the baby became fussy and started crying 

loudly. Duncan, saying he would "take care of the problem," took 

the child from his carriage in the living room and carried him 

into the bathroom, and then into a back bedroom. Nemo, who was 

concerned about the baby, followed them. Looking into the 

bedroom, she saw the baby lying on a futon. Duncan was sitting 

next to the futon, lifting it "as if it was going towards the 

baby's body." When Duncan saw Nemo, he put the futon down and 
- 30 - 

told her he was looking 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, which was "odd," she thought, because there was 

only beer and wine coolers in the refrigerator. Approximately 

five minutes later, Duncan came out of the kitchen with a baby 

bottle, which he took to the back room and gave to Nemo. Nemo 

started feeding the child, and Duncan left the room and then went 

outside. 

 While feeding the 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" and smelled like wine 

cooler. After a friend tasted the liquid in the bottle and 

confirmed that it tasted of alcohol, Dansby, who described the 

liquid as having a "milky pinkish color," called 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 oven until the 

police arrived. While in the kitchen, Dansby noticed that a 

bottle of wine cooler was missing from the refrigerator. She 

found an open bottle of wine cooler that had not been there before 

on the kitchen counter behind some fast-food bags of trash. It 

had approximately three inches of liquid missing from the top. 

The contents of the bottle were "pink." 

 Approximately fifteen minutes later, Duncan, who was unaware 

the police had been called, came back inside to check on his 
- 31 - 

child. He sat on the couch next to Nemo, who continued to hold 

the baby until the police came. 

 When the police arrived, Officer Nacastro noticed that Duncan 

had "bloodshot eyes," his speech was "slightly mumbled," and he 

smelled "of intoxicant[s]." The police took the baby bottle and 

the opened bottle of wine cooler for analysis. Laboratory tests 

revealed that the liquid in the twelve-ounce bottle of wine cooler 

was 3.2% ethyl alcohol by volume. The liquid in the eight-ounce 

baby bottle, which the police noted was "whitish [with a] little 

pinkish color in that," was 2.8% ethyl alcohol by volume. 

 At trial, Duncan denied putting any alcohol in his son's baby 

bottle. He said he picked up the baby bottle from the kitchen 

table and gave it to Nemo, but did not know it contained wine 

cooler. He also testified that he had fed the baby apple raisin 

cereal earlier in the evening. He also claimed he put his son on 

the futon in the back bedroom and rubbed his back so he could go 

to sleep. 

 Code § 18.2-371.1(B) provides that "[a]ny 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." 

 After hearing the 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 explanation. I find the 

Commonwealth's witnesses, again Ms. Nemo and 

Ms. Dansby together with Officer Nacastro, to 

clearly show and prove beyond a reasonable 

doubt that the defendant took the baby back 

to the back bedroom and whatever happened on 

the [futon], 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 Ms. Nemo, then he 

walks out. 

 Feeding alcohol to a six-month baby is 

clear neglect. Coupled with all the other 

acts, omissions and commissions that he did, 

I find the defendant guilty beyond a 

reasonable doubt of the felony charge. 

 On appeal, Duncan does not challenge the sufficiency of the 

evidence to show that he committed certain improper acts and 

omissions in the care of his son and that such acts and omissions 

were willful. In addition, he concedes that such willful acts and 

omissions could be construed as being irresponsible, derelict, and 

negligent. He argues, however, that, even viewing the evidence in 

the light most favorable to the Commonwealth, his willful acts and 

omissions were not so gross, wanton, and culpable as to show a 

reckless disregard for human life. 

 The Commonwealth argues that Duncan's acts and omissions in 

the care of his son support his conviction. Specifically, the 

Commonwealth asserts that Duncan's leaving the child in the care 

of people he had known for just a day; failing to feed, or make 

sure someone else fed, the child for more than seven hours; 

returning to Dansby's home intoxicated and in possession of 
- 33 - 

marijuana; "put[ting] the child on a futon and then lift[ing] the 

futon until he was caught" by Nemo; and, most significantly, 

causing Nemo, unbeknownst to her, to feed wine cooler to the baby 

was conduct so gross, wanton and culpable as to show a reckless 

disregard for the life of his six-month-old son. We disagree with 

the Commonwealth. 

 Plainly, Duncan was negligent in caring for his child. His 

conduct was inexcusable and cannot be condoned. A finding of 

negligence, however, is not enough, 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 (1999) (holding that "something more than 

negligence must be proved beyond a reasonable doubt to support 

[defendant's] conviction" of criminal child neglect). To sustain 

Duncan's conviction in this case, the Commonwealth had to prove 

beyond a reasonable doubt that Duncan committed a willful act or 

omission in the care of his son that was "so gross, wanton, and 

culpable as to show a reckless disregard" for the child's life. 

Code § 18.2-371.1(B). In Snow v. Commonwealth, 33 Va. App. 766, 

775, 537 S.E.2d 6, 11 (2000), we held that the defendant's act of 

driving a car with children in it in excess of one hundred miles 

per hour while trying to elude the police was not only illegal but 

"dangerous," and, thus, constituted conduct "so gross, wanton, and 

culpable as to show a reckless disregard for human life." The 
- 34 - 

same cannot be said, however, of the willful acts and omissions 

before us in this case. 

 Here, although Duncan, as the Commonwealth notes, left his 

son with women he had known for only a day, the evidence supports 

the trial court's finding that the women found "the baby 

interesting and cute" and enjoyed "looking after" him. Indeed, 

they continued to play with and hold the child even after Duncan 

returned to the women's house. In addition, Duncan did interact 

on occasion 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 became fussy and cried loudly. 

 Furthermore, although Nemo testified that she was concerned 

for the baby's safety when Duncan took the child to the back 

bedroom after announcing he would "take care of the problem," we 

find, on the evidence presented, that her assignment of ill will 

to Duncan was purely speculative, as was her perception that 

Duncan intended to harm the child when she saw him lift the futon. 

The trial court correctly gave little, if any, weight to such 

conjecture in reaching its decision. 

 Likewise, the evidence did not show that Duncan's failure to 

feed his son for seven and a half hours constituted conduct so 

gross, wanton, and culpable as to show a reckless disregard for 

the child's life, particularly as there was no evidence that the 

baby was hungry or otherwise in distress during that period of 

time. In fact, the evidence showed that, when the baby did become 
- 35 - 

fussy and start to cry loudly, Duncan took steps to feed him, 

albeit with a bottle containing wine cooler—which brings us to the 

crux of this appeal. 

 In finding Duncan guilty of violating Code § 18.2-371.1(B), 

the trial court attached the greatest significance to Duncan's act 

of putting wine cooler in the baby's bottle and causing it to be 

fed to his son. Clearly, that was the most serious allegation 

against Duncan. Duncan argues that, given the low alcohol content 

of the mixture fed to his son, his child's life would not have 

been endangered even if he had consumed the entire contents of the 

bottle. 

 The question before us, then, is whether feeding a 

six-month-old infant approximately eight ounces of liquid 

containing 2.8% ethyl alcohol by volume is an act so gross, 

wanton, and culpable as to show a reckless disregard for human 

life. The Commonwealth asserts that "[i]t is beyond dispute that 

feeding alcohol to an infant is dangerous." Plainly, at some 

quantitative level, based on the alcoholic content and volume of 

the liquid ingested, feeding a six-month-old child liquid that 

contains alcohol would, like driving an automobile in excess of 

one hundred miles an hour while being pursued by the police, 

constitute a danger to the child's life. In this case, however, 

there was simply no evidence presented to show that feeding 

Duncan's six-month-old son up to eight ounces of a liquid that was 

2.8% ethyl alcohol by volume put the child's life in danger. 
- 36 - 

Hence, we conclude that the evidence did not support such a 

finding beyond a reasonable doubt by the trial court. 

 We hold, therefore, that the Commonwealth's evidence was 

insufficient, as a matter of law, to prove beyond a reasonable 

doubt that Duncan's willful acts and omissions in caring for his 

child were so gross, wanton, and culpable as to show a reckless 

disregard for human life. Accordingly, we reverse Duncan's 

conviction of felony child abuse and neglect under Code 

§ 18.2-371.1(B) and dismiss the indictment. 

 Reversed and dismissed.