COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Bumgar dner and Frank Argued at Rich mond, Virginia

ANNA MARIE DOTSON MEMORANDUM OPINION * BY v. Record No. 1507-99-3 JU DGE JAMES W. BENTON, JR. SEPTEMBER 11, 2001 COMMONWEALTH OF VIRGINIA

UPON A REMAND FROM THE SU PREME COURT OF VIRGINIA
FROM THE CIRCUIT COUR T 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 an d neglect of her infant so n in violation of Code § 18.2-371.1(A ). On appeal, appellant co ntends that the trial judge erred in (1) ru ling that Code § 18 .2-371.1(A ) did not require the Common wealth to prove that an omission or refusal to provide care was willfu l, (2) refusing to in struct the jury that acts of omission or refusal must be willful, (3) ruling that her attorney could not argu e to the jury that the Commonwe alth was required to prove that an omission or refusal to provide care was willful, and (4) permit ting the jury to co nsider evidence of

* Pursuant to Code § 17.1-413, this opinion is not designated for publication.improper nourishment and a healed leg frac ture concerning the infant. She also co ntends the evidence was insuffic ient to support the verdic t. For the reas ons that follow, we reverse the conviction. 1

I. The grand jury indicted appellant as follows: Abuse and Neglec t 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 inci dent giving rise to this prosecution, appellant and Dotson lived together for tw o or three year s but were not married. Appell ant and Dotson had two ch ildren who were born during their relation ship, a girl, ag e 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.

- 2 -boy, age seven months. Dotson also had a teenage daug hter, who lived with Dotson's pa rents. The in dictment concerned the baby boy. On the morning of July 13, 1996, appell ant had arra nged for Dotson's daughter, who was then seventeen, to babysit ap pellant's and Dotson's baby boy. The teen ager testified th at she had been frequently babysitting the baby "since he wa s born" and that on this morning she notice d a small bruise under the baby's eye. She also testified that on several occasi ons when appell ant and Dotson were not present in the room, she had seen their twenty-two-month -old girl pinch and sl ap the baby and throw bottles at him. The teenager further testif ied that the baby had been experiencing prob lems with food that caused him to "belch back up [his milk] wh en you burped him." The teenager testified that wh en she arrived in her car to get the baby, Dots on was not at home. Sh e assisted appellant in preparing the baby to go home with her, and she carried the baby to the car in his infa nt car carrier seat. The teenager testified that after she left ap pellant'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 "h ad to slam on [her] brakes" to avoid a collision. The teenager testified that when she applied the brak es rapidly, she "heard it go thump." The baby "fell out of the ca r seat and the car seat fell on top of him

- 3 -because [she] negl ected to put [the baby] in . . . the seat, the way it's supposed to be." After the teen ager admitted during her direct examination that she had not relate d this incident when she testifie d at the preliminary hear ing, the trial judge in formed her out of the jury's presence that sh e would likely be prosecuted for perjury. She responded to the judge that she was no w being trut hful. She said she had not testif ied about the ac cident at th e preliminary hearing because sh e "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 scar ed." When the jury returned, the tr ial judge inst ructed the jury that the Commonwealth was entitl ed to prove th e teenager had made a prior inconsistent statement but that the jury coul d only use proof of the prior inconsis tent testimony "for pu rpose of contradicting this witness." The teenager then te stified that on a prior occasi on she said she had driven slowly from appellant's reside nce and arri ved home without incident . She explaine d that she had lied at the preliminary hearing because she "didn't wa nt [her] gran dparents to know what [she] had do ne [and] . . . didn't want [her] father to know because they woul d be mad at [her] an d they wouldn't let [her] have anything to do with [the ba by] any more ." She testified that she "did n't think that anythi ng was going to go this far . . . [and] di dn't think that it wo uld go further than

- 4 -little court." She fu rther testified that she "was trying to protect [h er]self." The teenager testified that instead of putt ing the infant carrier on the back se at, she had plac ed it on the front seat of the car so that the ba by "could look out th e window . . . [while she] was driving." Sh e could not stra p the carrier on the front seat and had not secure d either the baby or the seat properly. Thus, when she slammed on the brakes, the carr ier seat had fallen onto the baby. Aware th at the baby "was cryi ng and scre aming when he was in the floorboa rd" and was red in the face, the teenager "panicked." She contin ued to drive "up the road a little bit" before stopping and pu tting the infant carrie r seat on the back seat of the car. She then gave the baby a bott le and tried to calm him before continuing home. Dotson's sister-in-law test ified that she received a telephone call fr om the teenager, her niece, and to ld the teenager to bring the baby to he r house. When they arrived, the teenager's aunt immediately notice d that the baby was br uised and hi s arm was injured. The au nt 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 emerge ncy room. She testifie d that she has never seen appellant or Dots on hit their children. The triage nurse who examined the baby in the emergency room testified that she sa w multiple bruises on the baby's face, a

- 5 -healed scab unde r his left eye, and bruises on hi s back and both legs. The baby's left arm was swolle n and deformed. Whenever she touched or moved the ar m, the baby cried. She testifie d that the healed wound on the face could have been caus ed by a fi ngernail. Although she testified that the color of the bruises on the baby's back and legs indicate d they occurred at different ti mes, she admitted that th e color of a bruise does not always indicate age but may depend upon ho w hard an area is hi t and how much blood comes to the area. Sh e testified furt her that bruise s "over bony prominences are us ually darker than [bruises] over a fatty area." The nursing superv isor also test ified that she saw bruises of different colo rs on the baby's body. Dr. Sabry Radawi examined the baby an d saw bruise s all over his body and around his eyes. Some of the br uises appear ed to be recent and others appeared ol der. He test ified that the appearance of a br uise may vary be cause of the stre ngth of a blow or the location on the body. Dr. Radawi al so testified that if a person, who is falling or involved in an accident, br ings his hands to the front of his face and receives a sudden blow, the impact of hands into the face co uld cause "raccoon " eyes, the type of injury that the ch ild 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 directio n, the hospital personnel contac ted the Departme nt of Social Services and transferred th e baby to a hospital in Roanoke.
- 6 -In Roanoke, Dr. Hugh Johnson Hagan, an orthopedic surgeon, reviewed the x-ray and ordered an x-ray of th e baby's major long bones. The x-ra y revealed a fracture in the baby's left leg, which was in the proces s of healing. Dr. Ha gan testifie d that the fracture most li kely had occurred within one or two months and most likely had result ed from a direct blow to the bone. He further testif ied, however, that withou t knowing anyt hing else except the existence of the break, it would be guesswork to say when and how it happened. Dr. Donald Keys, a pediatrician, ex amined the baby two days after he was admitted to the hospital. Dr. Keys testified that "getting into th e ages of bruise s" from colorati on "is a little bit difficult to say . . . [or] to be specific ab out." Dr. Keys testified that it is generally accepted that color indicates different onse t; however, he co uld not "say whet her [the baby's bruises] all occurred on the same day or wh ether they occurred several days apart." He testifie d that "[t]he y could have potentially all oc curred on the sa me date" and coul d have occurred on the day the baby wa s taken to the hospit al. Dr. Keys also testified that the baby 's leg fracture was mo re than six weeks old and could have occurred at anytime af ter the baby's birth. He further testif ied that the x-ra y indicated that another break in the leg had heal ed itself. He agre ed that because the seven-month-old baby was not putting we ight on hi s legs, the fracture might only ma nifest itself by th e baby occasionally

- 7 -becoming "irritable an d fussy." He testified that the break in the baby's arm "was a very recent break." Dr. Keys also testif ied that the baby was "very underw eight." He weighed eleven pounds when admitted to th e hospital and gained ten ounces during his four-day stay. Althou gh Dr. Keys had not reported evidence of dehydration, he te stified that two and one-half percent dehy dration would not be detected during a physical examination. Dr. Keys agreed th at if the baby was dehydrated two and one- half percent and rehy drated while in the hospital, the baby 's weight gain would be about te n ounces. Dr. Keys testified th at, although the baby had been premature at birth, "at seven and a-half months [the ba by] 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 ni ce progress" but then "flat-line d," which meant the baby did not grow, between fi ve and seven months. He testified that the ba by's pattern was "def initely abno rmal" and indicated that the ba by "didn't receive ad equate nourishment during [the] time period [when he flat-lined ]." He opined that the bruises, broken bones, and lack of weig ht gain indi cated "that [the baby] has been ab used and there's no other explan ation for that." Dr. Keys testified that the la b reports which were done for anemia and total protei n were within normal limits except "[t]he albumin was below the range of normal in take." Al though he
- 8 -testified that the ba by suffered from malnourishment or malnutrition, he testified that those term s simply mean that there is faulty nutrition. On cross-examination, he fu rther 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

- 9 -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

- 10 -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

- 12 -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

- 13 -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

- 18 -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

- 19 -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."

- 20 -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

- 21 -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

- 22 -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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