COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Lemons∗ and Frank 

Argued at Chesapeake, Virginia 

AMY JEAN BARRETT 

 OPINION BY 

v. Record No. 0833-99-1 JUDGE JERE M. H. WILLIS, JR. 

 JUNE 27, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF YORK COUNTY 

Prentis Smiley, Jr., Judge 

 David B. Hargett (Joseph D. Morrissey; 

Morrissey & Hershner, PLC., on brief), for 

appellant. 

 Marla Graff Decker, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 On appeal from her convictions of child abuse or neglect, 

in violation of Code § 18.2-371.1(A), and felony murder, in 

violation of Code § 18.2-33, Amy Jean Barrett contends (1) that 

the evidence was insufficient to support her conviction for 

felony child neglect, (2) that the trial court erred in refusing 

to instruct the jury on the definition of "willful," and 

(3) that the trial court erred in refusing to vacate the murder 

conviction. We affirm the trial court's judgment on the first 

issue but reverse on the second and third issues. We remand the 

 ∗

 Justice Lemons participated in the hearing and decision of 

this case prior to his investiture as a Justice of the Supreme 

Court of Virginia. 
case for retrial on proper instruction as to child abuse or 

neglect, if the Commonwealth be so advised. 

I. Background

 Under well-settled principles, we view the evidence in the 

light most favorable to the Commonwealth, the prevailing party 

below. 

 Barrett and her two children, Patricia, aged two years ten 

months, and Joshua, aged ten months, lived with Barrett's 

boyfriend, Craig Griffith. On the evening of April 17, 1998, 

Barrett put her children to bed and went out. She stayed out 

all night, drinking beer. She returned home about 5:30 a.m. and 

went to bed. When Griffith left at approximately 7:00 a.m., 

Barrett awoke and tended to the children. She left Patricia 

playing in her room and gave Joshua a bottle in the living room. 

Soon thereafter, she fell asleep on the couch, with Joshua on 

the floor in front of her. 

 Shortly before noon, Griffith returned to find Barrett 

asleep on the couch and Patricia watching television. Griffith 

found Joshua in the bathtub, which was full of water. A laundry 

basket full of toys and blankets had been thrown over him. 

While Barrett slept, Patricia had run water in the tub, placed 

Joshua in the tub, and then covered him with the laundry basket. 

Griffith attempted to resuscitate Joshua, but the infant had 

drowned. 

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 Prior to the fatal incident, Patricia had demonstrated 

jealousy and extremely dangerous aggressiveness toward Joshua. 

She had hit him, pushed him, choked him, and attempted to 

smother him. Several days earlier, Patricia had pulled Joshua 

into the bathtub with her. On that occasion, Barrett 

acknowledged that it was fortunate that she was there to save 

Joshua. 

 Barrett had acknowledged before the fatal incident that 

there was something wrong with Patricia's attitude and behavior 

toward Joshua. She had been warned by others that the children 

required close supervision. She knew that Patricia could put 

Joshua in the tub and that she could run the water. The serious 

and likely hazard of leaving the children unsupervised was 

plainly foreseeable. Yet, Barrett did not place Joshua in his 

crib, but left him, without supervision, where he was accessible 

to Patricia. 

 The jury found Barrett guilty of child abuse or neglect, in 

violation of Code § 18.2-371.1(A), and felony murder, in 

violation of Code § 18.2-33. She was sentenced to five years 

imprisonment for the murder and two years for the child abuse. 

II. Sufficiency of the Evidence to

 Prove Child Abuse or Neglect

 Code § 18.2-371.1(a) provides: 

[a]ny parent . . . 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 

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of such child shall be guilty of a Class 4 

felony. 

Id.

 Barrett contends that the evidence was insufficient to 

support her conviction of child abuse or neglect, because it 

failed to prove that she acted with the requisite criminal 

intent. She argues that the evidence did not prove that she 

acted willfully to create a dangerous situation. She argues 

that she tended to the children, that they were playing 

peacefully, and that she did not intentionally fall asleep or 

otherwise willfully place either child in danger. We disagree. 

 When considering the sufficiency of the 

evidence on appeal of a criminal conviction, 

we must view all the evidence in the light 

most favorable to the Commonwealth and 

accord to the evidence all reasonable 

inferences fairly deducible therefrom. 

Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 718, 

721 (1988). 

 So viewed, the evidence established that, by staying out 

all night drinking beer, Barrett rendered herself unable to give 

proper attention to her children; that having slept only one and 

one-half hours, she made no effort to obtain assistance or to 

keep herself awake; that she sat on the couch where she 

succumbed to sleep; that knowing of Patricia's previous, 

potentially lethal, conduct toward Joshua, she nonetheless left 

the children unattended with no provision to protect Joshua from 

Patricia's known aggressiveness; and that she did all these 

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things knowingly and intentionally. These proven facts support 

the finding that Barrett, by willful act or omission and by her 

refusal to provide necessary care for Joshua's safety, permitted 

him to suffer death. Accordingly, the evidence was sufficient 

to support Barrett's conviction for felony child abuse or 

neglect, in violation of Code § 18.2-371.1. 

III. Jury Instruction

 Barrett contends that the trial court erred in refusing to 

instruct the jury on the meaning of the word "willful," as used 

in Code § 18.2-371.1. The Commonwealth argues that "willful" is 

a commonly used term, requiring no further elaboration. We 

disagree. 

"Willful" [as used in Code § 18.2-371.1] 

generally means an act done with a bad 

purpose, without justifiable excuse, or 

without ground for believing it is lawful. 

The term denotes "'an act which is 

intentional, or knowing, or voluntary, as 

distinguished from accidental.'" The terms 

"bad purpose" or "without justifiable 

excuse," while facially unspecific, 

necessarily imply knowledge that particular 

conduct will likely result in injury or 

illegality. 

Ellis v. Commonwealth, 29 Va. App. 548, 554, 513 S.E.2d 453, 456 

(1999) (citations omitted). 

 An understanding of the meaning of the term "willful," as 

used in Code § 18.2-371.1, was central to a proper assessment of 

the felony child abuse and neglect charge in the context of the 

evidence. An instruction explaining that term should have been 

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given on request. We find that the trial court erred in 

refusing to do so and, for this reason, reverse the conviction. 

IV. Murder Conviction

 Barrett next contends that the trial court erred in 

refusing to set aside her felony murder conviction. She argues 

that Joshua's death was not caused by any act committed in 

furtherance of the underlying felony, child abuse or neglect. 

We agree. 

 Code § 18.2-33 provides: 

The killing of one accidentally, contrary to 

the intention of the parties, while in the 

prosecution of some felonious act . . . is 

murder in the second degree and is 

punishable as a Class 3 felony. 

Id.

 Unquestionably, a direct stream of causation connected 

Barrett's dereliction to Patricia's conduct and Joshua's death. 

However, causal connection is not the criterion by which 

culpability for felony murder is determined. For felony murder 

to exist, the killer must act with malice, which is imputed to 

him by his commission of the underlying felony. See Wooden v. 

Commonwealth, 222 Va. 758, 763-65, 284 S.E.2d 811, 814-16. 

 The second degree felony-murder statute 

in Virginia contemplates a killing with 

malice. Indeed, "the commission of any

felonious act . . . supplies the malice 

which raises the incidental homicide to the 

level of second-degree murder." It does not 

follow, however, that any death of any 

person which occurs during the period in 

which a felony is being committed will 

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subject the felon to criminal liability 

under the felony-murder rule. . . . In order 

for the incidental . . . killing to be 

murder, the homicide must be criminal in 

nature and must contain the elements or 

attributes of criminal homicide cognizable 

at common law. 

King v. Commonwealth, 6 Va. App. 351, 355, 368 S.E.2d 704, 706 

(1988). 

The implications of this [rule] are three 

fold. First, only acts causing death which 

are committed by those involved in the 

felony may be the basis for a conviction. 

Second, the act causing death must result 

from some effort to further the felony 

before malice can be imputed to that act. 

Third, there must be some act attributable 

to the felons which causes death. 

Id. at 357, 368 S.E.2d at 707. 

 Unquestionably, Patricia's conduct fit none of the three 

prongs of the felony murder rule. She was not involved in the 

underlying felony of Barrett's child abuse or neglect. Her 

conduct involved no effort on her part to further that felony. 

She acted independently and her conduct cannot be attributed to 

Barrett. Therefore, although Barrett's commission of the 

underlying felony would impute malice to her in the commission 

of any act in furtherance of that felony, Patricia's conduct did 

not constitute a killing attributable to Barrett, which, clothed 

with the imputation of malice, constituted felony murder. 

 The Commonwealth argues that Patricia acted as Barrett's 

agent. None of the elements of agency existed. We will not 

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accept such a forced construction of the facts. See Scott v. 

Commonwealth, 14 Va. App. 294, 296, 416 S.E.2d 47, 48 (1992). 

 The evidence fails to support Barrett's conviction for 

felony murder. Therefore, we reverse Barrett's conviction for 

felony murder and remand the case to the trial court for further 

proceedings, if the Commonwealth be so advised. 

V. Conclusion

 We reverse Barrett's conviction for felony child abuse and 

neglect and remand it to the trial court for retrial on proper 

instruction, if the Commonwealth be so advised. We reverse 

Barrett's conviction for felony murder and remand that 

indictment to the trial court for further proceedings, if the 

Commonwealth be so advised. 

 Reversed and remanded.

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