COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Bumgardner and Frank 

Argued at Richmond, Virginia 

ANNA MARIE DOTSON 

 MEMORANDUM OPINION* BY 

v. Record No. 1507-99-3 JUDGE JAMES W. BENTON, JR. 

 SEPTEMBER 11, 2001 

COMMONWEALTH OF VIRGINIA 

UPON A REMAND FROM THE SUPREME COURT OF VIRGINIA 

FROM THE CIRCUIT COURT OF BUCHANAN COUNTY 

Keary R. Williams, Judge 

 David L. Epling for appellant. 

 Kathleen B. Martin, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 A jury convicted the appellant, Anna Marie Dotson, of 

felonious abuse and neglect of her infant son in violation of Code 

§ 18.2-371.1(A). On appeal, appellant contends that the trial 

judge erred in (1) ruling that Code § 18.2-371.1(A) did not 

require the Commonwealth to prove that an omission or refusal to 

provide care was willful, (2) refusing to instruct the jury that 

acts of omission or refusal must be willful, (3) ruling that her 

attorney could not argue to the jury that the Commonwealth was 

required to prove that an omission or refusal to provide care was 

willful, and (4) permitting the jury to consider evidence of 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.
improper nourishment and a healed leg fracture concerning the 

infant. She also contends the evidence was insufficient to 

support the verdict. For the reasons that follow, we reverse the 

conviction.1

I. 

 The grand jury indicted appellant as follows: 

Abuse and Neglect of Children

 On or about July 13, 1996, [appellant] 

did unlawfully and feloniously as a parent, 

guardian, or other person responsible for 

the care of . . . a child under the age of 

eighteen, the date of birth being 11-25-95, 

by willful act or omission or refusal to 

provide any necessary care for the child's 

health cause or permit serious injury to the 

life or health of such child. 

 In violation of § 18.2-371.1 of the Code 

of Virginia (1950) as amended. 

The grand jury indicted Michael Rell Dotson, the infant's 

father, on the same charge. The trial judge ruled that 

appellant and Dotson would be tried together. 

 At trial, the Commonwealth's evidence proved that, at the 

time of the incident giving rise to this prosecution, appellant 

and Dotson lived together for two or three years but were not 

married. Appellant and Dotson had two children who were born 

during their relationship, a girl, age twenty-two months, and a 

 1

 The Court of Appeals issued a memorandum opinion in this 

appeal on July 5, 2000. Following the Commonwealth's appeal to 

the Supreme Court, the Supreme Court remanded the appeal, by 

order of June 8, 2001, to this Court for reconsideration. 

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boy, age seven months. Dotson also had a teenage daughter, who 

lived with Dotson's parents. The indictment concerned the baby 

boy. 

 On the morning of July 13, 1996, appellant had arranged for 

Dotson's daughter, who was then seventeen, to babysit appellant's 

and Dotson's baby boy. The teenager testified that she had been 

frequently babysitting the baby "since he was born" and that on 

this morning she noticed a small bruise under the baby's eye. She 

also testified that on several occasions when appellant and Dotson 

were not present in the room, she had seen their 

twenty-two-month-old girl pinch and slap the baby and throw 

bottles at him. The teenager further testified that the baby had 

been experiencing problems with food that caused him to "belch 

back up [his milk] when you burped him." 

 The teenager testified that when she arrived in her car to 

get the baby, Dotson was not at home. She assisted appellant in 

preparing the baby to go home with her, and she carried the baby 

to the car in his infant car carrier seat. The teenager testified 

that after she left appellant's home, she was driving faster than 

she should have been. When she entered a curve in the road, she 

saw a car stopped in the middle of the road and "had to slam on 

[her] brakes" to avoid a collision. The teenager testified that 

when she applied the brakes rapidly, she "heard it go thump." The 

baby "fell out of the car seat and the car seat fell on top of him 

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because [she] neglected to put [the baby] in . . . the seat, the 

way it's supposed to be." 

 After the teenager admitted during her direct examination 

that she had not related this incident when she testified at the 

preliminary hearing, the trial judge informed her out of the 

jury's presence that she would likely be prosecuted for perjury. 

She responded to the judge that she was now being truthful. She 

said she had not testified about the accident at the preliminary 

hearing because she "was scared [and] . . . didn't want [her] 

grandparents and [her] father [to know what happened]." She said: 

"I knew they would be mad at me. I was scared." When the jury 

returned, the trial judge instructed the jury that the 

Commonwealth was entitled to prove the teenager had made a prior 

inconsistent statement but that the jury could only use proof of 

the prior inconsistent testimony "for purpose of contradicting 

this witness." 

 The teenager then testified that on a prior occasion she said 

she had driven slowly from appellant's residence and arrived home 

without incident. She explained that she had lied at the 

preliminary hearing because she "didn't want [her] grandparents to 

know what [she] had done [and] . . . didn't want [her] father to 

know because they would be mad at [her] and they wouldn't let 

[her] have anything to do with [the baby] any more." She 

testified that she "didn't think that anything was going to go 

this far . . . [and] didn't think that it would go further than 

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little court." She further testified that she "was trying to 

protect [her]self." 

 The teenager testified that instead of putting the infant 

carrier on the back seat, she had placed it on the front seat of 

the car so that the baby "could look out the window . . . [while 

she] was driving." She could not strap the carrier on the front 

seat and had not secured either the baby or the seat properly. 

Thus, when she slammed on the brakes, the carrier seat had fallen 

onto the baby. Aware that the baby "was crying and screaming when 

he was in the floorboard" and was red in the face, the teenager 

"panicked." She continued to drive "up the road a little bit" 

before stopping and putting the infant carrier seat on the back 

seat of the car. She then gave the baby a bottle and tried to 

calm him before continuing home. 

 Dotson's sister-in-law testified that she received a 

telephone call from the teenager, her niece, and told the teenager 

to bring the baby to her house. When they arrived, the teenager's 

aunt immediately noticed that the baby was bruised and his arm was 

injured. The aunt believed the baby's arm, which was red and 

swollen, may have been broken, and she called the baby's 

pediatrician, Dr. Ranje Patel. He directed her to take the baby 

to the hospital emergency room. She testified that she has never 

seen appellant or Dotson hit their children. 

 The triage nurse who examined the baby in the emergency room 

testified that she saw multiple bruises on the baby's face, a 

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healed scab under his left eye, and bruises on his back and both 

legs. The baby's left arm was swollen and deformed. Whenever she 

touched or moved the arm, the baby cried. She testified that the 

healed wound on the face could have been caused by a fingernail. 

Although she testified that the color of the bruises on the baby's 

back and legs indicated they occurred at different times, she 

admitted that the color of a bruise does not always indicate age 

but may depend upon how hard an area is hit and how much blood 

comes to the area. She testified further that bruises "over bony 

prominences are usually darker than [bruises] over a fatty area." 

The nursing supervisor also testified that she saw bruises of 

different colors on the baby's body. 

 Dr. Sabry Radawi examined the baby and saw bruises all over 

his body and around his eyes. Some of the bruises appeared to be 

recent and others appeared older. He testified that the 

appearance of a bruise may vary because of the strength of a blow 

or the location on the body. Dr. Radawi also testified that if a 

person, who is falling or involved in an accident, brings his 

hands to the front of his face and receives a sudden blow, the 

impact of hands into the face could cause "raccoon" eyes, the type 

of injury that the child had. After he viewed x-rays of the 

child's facial bones, skull, and left arm, Dr. Radawi diagnosed a 

fracture of the upper left arm. At his direction, the hospital 

personnel contacted the Department of Social Services and 

transferred the baby to a hospital in Roanoke. 

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 In Roanoke, Dr. Hugh Johnson Hagan, an orthopedic surgeon, 

reviewed the x-ray and ordered an x-ray of the baby's major long 

bones. The x-ray revealed a fracture in the baby's left leg, 

which was in the process of healing. Dr. Hagan testified that the 

fracture most likely had occurred within one or two months and 

most likely had resulted from a direct blow to the bone. He 

further testified, however, that without knowing anything else 

except the existence of the break, it would be guesswork to say 

when and how it happened. 

 Dr. Donald Keys, a pediatrician, examined the baby two days 

after he was admitted to the hospital. Dr. Keys testified that 

"getting into the ages of bruises" from coloration "is a little 

bit difficult to say . . . [or] to be specific about." Dr. Keys 

testified that it is generally accepted that color indicates 

different onset; however, he could not "say whether [the baby's 

bruises] all occurred on the same day or whether they occurred 

several days apart." He testified that "[t]hey could have 

potentially all occurred on the same date" and could have occurred 

on the day the baby was taken to the hospital. Dr. Keys also 

testified that the baby's leg fracture was more than six weeks old 

and could have occurred at anytime after the baby's birth. He 

further testified that the x-ray indicated that another break in 

the leg had healed itself. He agreed that because the 

seven-month-old baby was not putting weight on his legs, the 

fracture might only manifest itself by the baby occasionally 

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becoming "irritable and fussy." He testified that the break in 

the baby's arm "was a very recent break." 

 Dr. Keys also testified that the baby was "very underweight." 

He weighed eleven pounds when admitted to the hospital and gained 

ten ounces during his four-day stay. Although Dr. Keys had not 

reported evidence of dehydration, he testified that two and 

one-half percent dehydration would not be detected during a 

physical examination. Dr. Keys agreed that if the baby was 

dehydrated two and one-half percent and rehydrated while in the 

hospital, the baby's weight gain would be about ten ounces. 

 Dr. Keys testified that, although the baby had been premature 

at birth, "at seven and a-half months [the baby] should have had a 

lot more fat and been heavier." Based on a growth chart and his 

examination of the baby's records, Dr. Keys testified that the 

baby initially "made nice progress" but then "flat-lined," which 

meant the baby did not grow, between five and seven months. He 

testified that the baby's pattern was "definitely abnormal" and 

indicated that the baby "didn't receive adequate nourishment 

during [the] time period [when he flat-lined]." He opined that 

the bruises, broken bones, and lack of weight gain indicated "that 

[the baby] has been abused and there's no other explanation for 

that." 

 Dr. Keys testified that the lab reports which were done for 

anemia and total protein were within normal limits except "[t]he 

albumin was below the range of normal intake." Although he 

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testified that the baby suffered from malnourishment or 

malnutrition, he testified that those terms simply mean that there 

is faulty nutrition. On cross-examination, he further testified 

as follows: 

It just sounds like what you're asking is, 

if you give diluted formula, does the baby 

grow well? The answer to that is no and 

that's true; however, for the first five and 

a-half months this baby grew appropriately, 

so that tells me the baby got the proper 

amount, the proper dilution, and then at 

five months something changed. I don't know 

what that something was. You're supposing, 

and I have no knowledge of this, that she 

started changing the way she prepared the 

formula; that is a possibility; that's all I 

can say. . . . I couldn't say . . . It 

could have resulted from lack of knowledge. 

He testified, however, that most parents by the time they have a 

second child are more familiar with feeding and what is proper 

feeding. 

 The Commonwealth proved that two deputies from the 

sheriff's department and two employees of the county's social 

services department met with appellant and Dotson at their 

residence the same afternoon the baby was taken to the hospital. 

They informed appellant and Dotson that they were investigating 

a complaint of child abuse and had taken custody of the baby. 

Appellant "became upset." Both parents "were surprised" to 

learn the baby had been taken to the hospital and said they did 

not know how the baby's arm could have been broken. When asked 

if the baby had any injuries, appellant said the older child had 

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hit the baby two days earlier with the baby's feeder, causing a 

bruise under the baby's eye. Appellant said the older child 

"appeared to be jealous" and tried to hit the baby if appellant 

held the baby during feeding. 

 During the interview, appellant and Dotson also "stated 

that they frequently fight and hit on each other." Appellant 

said they sometimes fought because Dotson did not believe the 

baby was his. Appellant also said she was afraid of Dotson and 

that the beating and fighting had occurred "ever since they had 

been together." Both appellant and Dotson "indicated that they 

were aware that [the older child] was watching them fighting and 

then that [the older child] was going to the crib and climbing 

in and hitting on [the baby]." Appellant also said that when 

she was doing housework the older child would climb in the crib 

and hit the baby. The social worker testified that the older 

child appeared healthy and seemed to be "on target 

developmentally." A social worker testified that appellant and 

Dotson received public food assistance and Medicaid for their 

children. 

 After the Commonwealth presented its case-in-chief, the 

trial judge overruled motions to strike the evidence. Dr. Ranje 

Patel, the baby's pediatrician, then testified for the defense. 

Dr. Patel testified that he had seen the baby six times prior to 

July 13 and had treated the baby on July 9 for congestion and 

coughing. He thoroughly examined the baby on July 9 and saw no 

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bruises on the child. Dr. Patel testified that he saw no broken 

bones or other injuries during the seven months he treated the 

baby. Although he said that a minor fracture in a baby's bone 

could remain undetected unless there are symptoms, he testified 

that he performed thorough examinations of the baby and saw no 

bruises and detected no broken bones. He testified that during 

the course of his treatments he had no need to order x-rays of 

the baby. 

 Dr. Patel also testified that appellant had raised issues 

with him concerning feeding the baby, that he had continuously 

discussed feeding issues with appellant, and that he advised her 

how to properly feed the baby. He testified that there was a 

"problem ongoing from day one, the speaking about the [baby's] 

formulas," and that he addressed the issue of proper feeding 

during most of the baby's visits. Appellant offered no other 

witnesses. 

 At the conclusion of the evidence, the trial judge again 

overruled motions to strike the evidence. Appellant tendered a 

jury instruction defining "willful" as "an act or omission done 

with bad purpose, without justifiable excuse and without ground 

for believing it is lawful." When the Commonwealth objected 

that Code § 18.2-371.1(A) did not require proof that an omission 

or refusal be willful, appellant argued that willful modified 

act and omission. The trial judge refused the instruction and 

ruled that neither the omission nor the refusal to provide care 

- 11 -
had to be willful. The judge also instructed appellant's 

attorney that he could not argue to the jury that an omission or 

refusal to provide care must be willful. This appeal followed 

from the jury's verdict convicting appellant of "Abuse and 

Neglect of Children by Willful Act or Omission or Refusal to 

Provide Necessary Care, Causing or Permitting Serious Injury as 

charged." 

II. 

 Appellant contends the trial judge erred in ruling that 

Code § 18.2-371.1(A) did not require the Commonwealth to prove 

omissions or refusals of care were willful, in refusing to 

instruct the jury as to the definition of willful, and by 

forbidding appellant's attorney to tell the jury that an 

omission or refusal of care must have been willful. The 

Commonwealth argues that the trial judge's rulings are not 

reversible error because they did not prejudice appellant. 

 In pertinent part, the child abuse and neglect statute, 

which is charged in the indictment, provides as follows: 

 A. Any parent, guardian, or other person 

responsible for the care of a child under 

the age of eighteen who by willful act or 

omission or refusal to provide any necessary 

care for the child's health causes or 

permits serious injury to the life or health 

of such child shall be guilty of a Class 4 

felony. For purposes of this subsection, 

"serious injury" shall include but not be 

limited to (i) disfigurement, (ii) a 

fracture, (iii) a severe burn or laceration, 

(iv) mutilation, (v) maiming, (vi) forced 

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ingestion of dangerous substances, or (vii) 

life-threatening internal injuries. 

 B. 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 (emphasis added). 

 The statute explicitly contains the disjunctive elements of 

"willful act or omission or refusal to provide any necessary 

care." Id. We would strain the meaning of the statute to read 

it to require a "willful act" but an "omission" or "refusal" 

that was not willful. In Ellis v. Commonwealth, 29 Va. App. 

548, 513 S.E.2d 453 (1999), we addressed the requirements of 

proof to establish a violation under Code § 18.2-371.1. We held 

that "something more than negligence must be proved beyond a 

reasonable doubt to support [the] conviction" under the statute. 

Id. at 555, 513 S.E.2d at 457. The ordinary definition of the 

statutory element, "omission," means "[a] failure to do 

something; esp., a neglect of duty." Black's Law Dictionary

1116 (7th ed. 1999). In addition, although a refusal is an 

intentional act, it is not necessarily a willful act. Refusal 

is defined to mean a "rejection of something demanded." 

Webster's Third New International Dictionary 1910 (1981). 

 In Ellis, we held that a negligence standard was 

insufficient to support a conviction under the statute. We also 

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noted that "inattention and inadvertance have not been 

heretofore equated with actions taken willfully." 29 Va. App. 

at 556, 513 S.E.2d at 457. 

"Willful" generally means an act done with a 

bad purpose, without justifiable excuse, or 

without ground for believing it is lawful. 

See Richardson v. Commonwealth, 21 Va. App. 

93, 99, 462 S.E.2d 120, 123 (1995). The 

term denotes "'an act which is intentional, 

or knowing, or voluntary, as distinguished 

from accidental.'" Snead v. Commonwealth, 

11 Va. App. 643, 646, 400 S.E.2d 806, 807 

(1991) (quoting United States v. Murdock, 

290 U.S. 389, 394, 54 S. Ct. 223, 78 L.Ed. 

381 (1933)). The terms "bad purpose" or 

"without justifiable excuse," while facially 

unspecific, necessarily imply knowledge that 

particular conduct will likely result in 

injury or illegality. See Murdock, 290 U.S. 

at 395-96, 54 S. Ct. 223. 

Id. at 554, 513 S.E.2d at 456 (footnote omitted). 

 Thus, we hold that to sustain a conviction under this 

statute, the evidence must prove beyond a reasonable doubt a 

"willful act or [willful] omission or [willful] refusal" 

regarding the proscribed conduct. This conclusion necessarily 

follows from the application of ordinary grammatical principles 

and the general rule that "proper grammatical effect will be 

given to the arrangement of words in a sentence of a statute." 

Harris v. Commonwealth, 142 Va. 620, 624, 128 S.E. 578, 579 

(1925). "We presume that when drafting this statute, the 

legislature understood the basic rules of grammar." Frere v. 

Commonwealth, 19 Va. App. 460, 464, 452 S.E.2d 682, 685 (1995). 

Moreover, even if there is a choice to be made in reading the 

- 14 -
statute, the principle is well established that "[c]riminal 

statutes are to be 'strictly construed against the Commonwealth 

and in favor of [a] citizen's liberty' . . . [and] must be 

construed so as to proscribe only conduct which the legislature 

clearly intended to be within the statute's ambit." King v. 

Commonwealth, 6 Va. App. 351, 354-55, 368 S.E.2d 704, 706 (1988) 

(citations omitted). 

 The trial judge incorrectly ruled that the statute did not 

require the Commonwealth to prove that acts of omission or 

refusal of care were willful and, likewise, erred in barring 

appellant's attorney from arguing to the jury that such proof 

was required for conduct alleged to be an omission or a refusal 

of care. Because the judge's error lessened the conduct on 

which the jury could convict, we cannot say that the error was 

not prejudicial. The defense's inability to argue fully 

hindered its ability to suggest reasonable doubt and taints the 

legitimacy of the jury's verdict. 

 As a consequence of the judge's ruling on the statute's 

meaning, he also refused to instruct the jury that "'Willful,' 

in this case, means an act or omission done with bad purpose, 

without justifiable excuse and without grounds for believing it 

is lawful." The instruction was a correct statement of the law. 

See Ellis, 29 Va. App. at 554, 513 S.E.2d at 456 (citing 

Richardson, 21 Va. App. at 99, 462 S.E.2d at 123). 

- 15 -
 It is a well established, elementary principle, "that a 

jury must be informed as to the essential elements of the 

offense; a correct statement of the law is one of the essentials 

of a fair trial." Darnell v. Commonwealth, 6 Va. App. 485, 488, 

370 S.E.2d 717, 719 (1988) (internal quotations and citation 

omitted). "Unless [the essential] elements [of an offense] are 

defined by instructions . . . to . . . the jury . . . , they 

cannot properly determine whether the Commonwealth has carried 

its burden [to prove each essential element of the offense 

beyond a reasonable doubt]." Dowdy v. Commonwealth, 220 Va. 

114, 116, 255 S.E.2d 506, 508 (1979). Moreover, a hallmark of a 

fair trial is that "'instructions . . . should inform the jury 

as to the law of the case applicable to the facts in such a 

manner that [the jury] may not be misled.'" Cooper v. 

Commonwealth, 2 Va. App. 497, 500, 345 S.E.2d 775, 777 (1986) 

(citation omitted). 

 The rejected instruction would have informed the jury of 

the level of culpability required to convict appellant of the 

offense. Although the trial judge instructed the jury on the 

meaning of "gross" and "culpable" conduct, which are elements of 

the lesser-included offense, without further instruction, the 

jury was left to predicate a conviction upon a finding of a mere 

omission or a non-willful refusal. The jury received no 

instruction as to what type of acts were "willful." "[W]hen a 

principle of law is vital to a defendant in a criminal case, a 

- 16 -
trial court has an affirmative duty properly to instruct a jury 

about the matter." Jimenez v. Commonwealth, 241 Va. 244, 250, 

402 S.E.2d 678, 681 (1991). 

 Because the jury, as instructed, could have convicted 

appellant of an omission or refusal that was not willful, we 

cannot say that the trial judge's errors did not prejudice 

appellant. 

III. 

 Appellant contends that the trial judge erred by failing to 

strike the Commonwealth's evidence regarding malnourishment and 

the healed fracture. She argues that the evidence permitted the 

jury to speculate as to causation. The Commonwealth argues that 

those circumstances were discovered after the baby was delivered 

to the hospital and presented a jury issue. 

 These issues were circumstances that the jury was entitled 

to consider in weighing the evidence. The principle is well 

established that "[c]ircumstantial evidence is as competent and 

is entitled to as much weight as direct evidence, provided it is 

sufficiently convincing to exclude every reasonable hypothesis 

except that of guilt." Coleman v. Commonwealth, 226 Va. 31, 53, 

307 S.E.2d 864, 876 (1983). We find no error. 

IV. 

 "Where the sufficiency of the evidence is challenged after 

conviction, it is our duty to consider it in the light most 

favorable to the Commonwealth and give it all reasonable 

- 17 -
inferences fairly deducible therefrom." Higginbotham v. 

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). As 

constitutionally required by In re Winship, 397 U.S. 358 (1970), 

"the critical inquiry on review of the sufficiency of the 

evidence to support a criminal conviction . . . is whether, 

after viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt." 

Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). 

 So viewed, the evidence proved that on July 13, 1996, when 

the significant bruising and injuries were first discovered on 

the baby, he was in the presence and care of Dotson's teenage 

daughter. The teenager testified that, with the exception of a 

small bruise on his face, the baby was normal when she arrived 

at appellant's house and did not appear to have any injuries. 

She further testified that before leaving appellant's house with 

the baby in her car, she failed to secure the baby in the infant 

carrier and she put the infant carrier on the front seat. That 

failure, she testified, resulted in the baby falling to the 

floorboard of the car and being hit by the falling infant seat 

after she sped along the highway, entered a curve, and slammed 

on the brakes to avoid a stopped vehicle. 

 The Commonwealth argues that the jury could have 

disbelieved the teenager, the Commonwealth's witness, because 

she admitted at trial that she had testified differently at the 

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preliminary hearing in order to avoid incurring the wrath of her 

grandparents and her father for injuring the child. We agree, 

of course, that the jury, as "fact finder . . . may reject 

testimony that has been impeached." Doss v. Commonwealth, 23 

Va. App. 679, 685, 479 S.E.2d 92, 95 (1996). Even if we assume, 

however, that the jury rejected this testimony, no evidence 

otherwise explains the cause of the baby's broken arm and severe 

bruising, which were evident when he was taken to the hospital 

that same day by the teenager and her aunt. Dr. Keys, a witness 

for the Commonwealth, testified that the bruises "could have 

potentially all occurred on the same date." The jury would have 

been left to speculate that the baby had those bruises when the 

teenager drove away from appellant's home with the baby. 

 The evidence clearly established that the baby's broken arm 

was a very recent injury. The baby's pediatrician testified 

that he examined the baby on July 9, four days before he was 

taken to the emergency room. At that time, the baby was 

congested and coughing. He thoroughly examined the baby and 

detected no bruises or broken bones. Although the triage nurse 

testified that four days later when she touched or moved the 

baby's arm, the baby cried, the teenager never testified that 

the baby cried when she was preparing to leave appellant's house 

or putting the baby in the car. 

 Even if we conclude that the jury disbelieved the baby's 

pediatrician, the evidence in this record establishes that some 

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event likely occurred on July 13 that caused the teenager to 

seek medical treatment for the baby. If that event, however, 

was not the one described by the teenager, in which the baby was 

injured in the car, then the record clearly fails to establish a 

cause for the baby's bruises and broken arm. Simply put, except 

for the teenager's testimony, the evidence does not otherwise 

prove the circumstances in which the broken arm and bruising 

occurred or who caused injury to the child. 

 "[E]vidence is not sufficient to support 

a conviction if it engenders only a 

suspicion or even a probability of guilt. 

Conviction cannot rest upon conjecture. The 

evidence must be such that it excludes every 

reasonable hypothesis of innocence. The 

giving by the accused of an unclear or 

unreasonable or false explanation of his 

conduct or account of his doings are matters 

for the jury to consider, but they do not 

shift from the Commonwealth the ultimate 

burden of proving by the facts or the 

circumstances, or both, that beyond all 

reasonable doubt the defendant committed the 

crime charged against him." 

Hyde v. Commonwealth, 217 Va. 950, 955, 234 S.E.2d 74, 78 (1977) 

(citation omitted). As the Supreme Court held in Christian v. 

Commonwealth, 221 Va. 1078, 1083, 277 S.E.2d 205, 208 (1981), 

"[w]hile the defendant's opportunity to injure her [child] and 

certain other circumstances in this case may raise inferences 

which 'create a suspicion of guilt . . . or even a probability 

of guilt', we are of opinion the evidence is insufficient to 

exclude a reasonable hypothesis that someone other than the 

defendant was the criminal agent." 

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 The Commonwealth's evidence concerning the other claims of 

abuse and neglect is similarly deficient. The teenager 

testified that when she was at the appellant's house preparing 

to leave, she noticed a small bruise on the baby's face. When 

the social worker and the police arrived at appellant's house on 

the afternoon of July 13, and informed appellant that the baby 

had been injured, appellant informed them that the only injury 

she was aware of was a small bruise on the baby's cheek that 

occurred when her twenty-two-month-old child had hit the baby 

two days earlier with the baby's feeder. Even if the jury 

disbelieved that explanation for the bruise on the child's 

cheek, no evidence proved that it was caused by appellant's 

willful conduct. 

 When the baby was examined in the hospital, an x-ray showed 

that the baby had a healed fracture in a bone in his left leg. 

The doctor testified that the fracture was at least six weeks 

old and could have occurred anytime from the baby's premature 

birth until six weeks prior to the examination. He also 

testified that, because the seven-month-old baby was not bearing 

weight on his leg, the fracture might only have been manifested 

by the child being "irritable and fussy." Another doctor 

testified that "[c]hildren heal fractures very quickly" and that 

it would be guesswork to say when and how it occurred merely by 

viewing the x-ray. The baby's pediatrician testified that the 

baby had been his patient since December 1995 and that he had 

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examined the baby six times during regular office visits. He 

testified that he never saw bruises on the child and never 

detected any broken bones; he found no reasons or indications 

during his treatments to order x-rays to look for broken bones. 

He testified that on July 9 when he examined the baby, the baby 

"was essentially normal" and, except for a cold, the baby was 

healthy. 

 Dr. Keys testified that the growth chart he prepared showed 

that the baby, who was born prematurely, made "nice progress" 

until his fifth month. No evidence tended to show that anyone 

other than the appellant and Dotson were caring for the baby 

during that period. Dr. Keys testified that "from five months 

to what we saw in the seven and a-half months, [the baby] 

basically didn't grow; didn't gain any weight, so he 

flat-lined." He considered the lack of growth during that two 

and a-half months "abnormal" and testified that "if [the baby] 

was fed in the right way, he would gain weight." The doctor 

testified that he did not know the cause of the feeding problem 

and that "[i]t could have resulted from a lack of knowledge" by 

the parents. In short, his testimony is consistent with proof 

of faulty nutrition. 

 The Commonwealth had the burden of proving each element of 

the offense beyond a reasonable doubt. The Commonwealth on 

brief contends "[t]he jury reasonably could conclude, based on 

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all the evidence, that [appellant] was guilty of violating Code 

§ 18.2-371.1(A)." 

"Suspicion of guilt, however strong, or even 

a probability of guilt, is insufficient to 

support a conviction." And, when the 

evidence is wholly circumstantial, as in 

this case, "all necessary circumstances 

proved must be consistent with guilt and 

inconsistent with innocence and exclude 

every reasonable hypothesis of innocence. 

The chain of necessary circumstances must be 

unbroken." 

Rogers v. Commonwealth, 242 Va. 307, 317-18, 410 S.E.2d 621, 627 

(1991) (citations omitted). 

 Even if the judge had properly instructed the jury 

concerning the Commonwealth's obligation to prove willful 

conduct, the record, when viewed in the light most favorable to 

the Commonwealth, failed to establish sufficient evidence from 

which the jury could have found beyond a reasonable doubt that 

appellant engaged in willful acts, or willful omissions, or 

willful refusals to provide any necessary care for the baby's 

health. The jury could not have found without speculation that 

appellant acted willfully. Accordingly, we reverse the 

conviction and dismiss the indictment. 

 Reversed and dismissed. 

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