COURT OF APPEALS OF VIRGINIA

Present: Chief Judg e Huff, Judge Decker and Senior Judge Clements Argued at Richmond, Virginia

JAMES SETH BROWN MEMORANDUM OPINION * BY v. Record No. 1737-14-2 J UDGE MARLA GRAFF DECKER JULY 21, 2015 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG Gordon F. Willis, Judge John D. Mayoras (Spe ncer, Mayoras, Koch, Cornick, & Meyer, PLC, on brief), for appellant. Leah A. Darron, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

James Seth Brown appeals his co nvictions, in a bench trial, for failure to appear, in violation of Code § 19.2-128, an d contributing to the delinquency of a minor, in violation of Code § 18.2-371. He argues that the evidence was in sufficient to support his convictions because the trial court did not find that he intentionally missed his hearing and the Commonwealth did not prove that he willfully left his child unsupervis ed. We hold that the evidence was sufficient to establish the challenged elements of the offens es and, therefore, we affirm the convictions.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.UNPUBLISHED- 2 - I. BACKGROUND 1 On May 30, 2013, Pamela Kelley was working at the front desk of a hotel in Fredericksburg. At about 5:00 a.m., she received a call from a guest. The guest had discovered a toddler “outside of the hotel by one of the entrance doors,” which Kelley explained led to the parking lot. Kelley called the pol ice department for assistance a nd instructed a hotel security guard to retrieve the child. The two-year-old boy was wearing only a diaper. None of the guests staying at the hotel had register ed a small child. The police arri ved and began an investigation. Child Protective Services (CPS) took the child into custody. After learning that the appellant and his co-defendant, Courtney Love Brown, were reported to have a young child with them in the hotel , the police went to their room. The officers received no response when they knocked on th e door. Ben Johnson, a detective with the Fredericksburg Police Department, entered the room . He found the room in disarray, and he saw what appeared to be drug paraphernalia in pl ain view. Johnson obtaine d a search warrant and then returned to the room. He located three pi ll bottles, two bearing th e appellant’s name and one bearing the name of his co-d efendant. The bathtub was full of water. Near the television stand, Johnson found a cut soda straw and a na pkin with white powdery residue on it. Later that day, law enforcement found the a ppellant, the child’s fa ther, outside “in the area” of the hotel. Courtney Love Brown, the mo ther, went to the police station. There is no evidence that either parent ha d reported the child missing.

1 On review of the sufficiency of the evid ence to support a convicti on, “[a]ppellate courts in Virginia ‘view the evidence in the light mostfavorable to the Comm onwealth, the prevailing party in the trial court.’” Miller v. Commonwealth, 64 Va. App. 527, 534 n.1, 769 S.E.2d 706, 709 n.1 (2015). To do so, we give the Commonw ealth “‘all reasonable inferences fairly deducible’ from [the evidence,] . . . 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.’” Id. at 536, 769 S.E.2d at 710 (quoting DeAmicis v. Commonwealth, 31 Va. App. 437, 440, 524 S.E.2d 151, 152 (2000) ( en banc )).- 3 - The appellant agreed to speak with the police. During his interview, which was recorded and admitted into evidence, the appellant provided his version of events. He said that he had supervised the child while the mother had gone out with her friend earlier that night. While waiting for the mother, the appellant contacted he r because she was taking longer than expected

and he wanted her to return to the hotel. At about 2:00 a.m., the appe llant took the child with him to the parking lot to retrieve an item he ha d left in the mother’s car. The mother and her friend arrived back at the parking lot while the appellant was there. She became upset when she saw the appellant near her car. They argued, and the mother threatened to call the police. The appellant took his son back inside to the hotel room. The mother and her friend also returned to the room. The appellant explained that he left a few minutes later, around “two or three” in the morning, in part because the motherhad threatened to ca ll the police. He claimed that at that time, the mother was “putting [the child] down fo r bed,” and her friend had remained in the room

with them. According to the appellant, after leaving the room, he t ook a taxi to his friend’s house where he watched movies. While there, the appe llant attempted to contact the mother numerous times by sending her messages through Facebook, in cluding asking her, “Where you at?” He explained that he asked that ques tion in case she had taken the child with her away from the hotel because she was mad. The appellant initially stat ed that the mother had given him no reason to believe that she would leave the hotel, but then said that she had talked about “possibly going” with a friend to a doctor’s appointment at an unspecified time in the morning. While alone in the police interview room, th e appellant called the friend he had visited. The audio equipment in the interv iew room recorded the appellant’s side of the conversation. He said to his friend, “The reason I was trying to hur ry and get back, man. To make sure she ain’t

leave. And she did.”- 4 - The appellant also spoke with a representativ e from CPS. As part of CPS’ investigation, the appellant was tested for drugs. He tested positive for marijuana, oxycodone, methadone, and opiates. The appellant claimed th at he was prescribed medicati on for a torn meniscus in his knee. Although police found a prescription bottle for oxycodone with his name on it, the appellant did not produce a prescrip tion for the other drugs in his system. The witness from CPS testified, without objection, that the appellant stated at his ar raignment hearing that he “took full responsibility for what happened.” On the charge of failure to appear, the Commonwealth admitted official court documents into evidence demonstrating that the appellant wa s notified to appear in court for a preliminary hearing on July 10, 2013, for a related felony charge, but failed to appear for the hearing. The appellant testified that he knew a bout his court date but assumed that his case had been continued because his co-defendant, the mother, had received a continuance. He conceded, however, that

he did not receive notice of a c ontinuance. The appellant argued to the trial court that the Commonwealth was required to prove that his absence was willful. The Commonwealth contended simply that the appellant admitted that “no one told him” not to come to court for the scheduled hearing. The appellant was convicted of failure to ap pear and contributing to the delinquency of a minor. The court, however, granted the appellant ’s motion to strike the felony child neglect charge.

The trial court addressed the failure to appear charge in the following manner: Mr. Brown, you were charged with this serious charge of felony abuse and neglect of your son. You posted a bond. As a condition of your bond, you signed a recognizan ce that clearly showed that you were to reappear in court on Ju ly l0th at nine o’clock. . . . [I]f you had any question as to wh at your date was, whether it had changed from that or not, you could have contacted your attorney. You certainly could have contacted the court to confirm- 5 - if you thought your date had cha nged, but you didn’t do any of that. You just took a calculated risk that it had changed and you didn’t show up. Well, that’s a willful failure to appear. In finding the appellant and his co-defendant guilty of contributing to the delinquency of a minor, the court explained that th e appellant’s “actions and omissi ons contributed to the lack of supervision of [his] two-year old on the night . . . in question.” The tr ial court found that both the appellant and his co-defendant “failed in [their] required duties as . . . parent[s] to see that [their] son was adequately supervised.” The cour t also noted the family’s living conditions “in a hotel that was full of strangers,” in a room with “a bathtub full of water,” and “drugs in the room that had been misused by both [parents] within a relatively short period of time of his being neglected.” The court concluded that the parents’ actions and omissions caused the situation where the child was “wandering around the hotel unsupervised” and that the circumstances “clearly show[ed] neglect.” The court sentenced the appellan t to a total of three years of incarceration, with two years suspended.

II. ANALYSIS The appellant challenges the sufficiency of the evidence to prove both offenses. He argues as to the failure to appear conviction that the trial court did not find that his failure was willful , as required by Code § 19.2-128(B). Regard ing the conviction for contributing to the delinquency of a minor, he argues that th e Commonwealth failed to prove that any willful act or omission on his part led to his child’s lack of supervision. In this Court’s review of the sufficiency of the evidence to support a conviction, we will affirm the decision unless the trial court was pl ainly wrong or the conviction lacks evidence to support it. See, e.g., Williams v. Commonwealth, 57 Va. App. 750, 762, 706 S.E.2d 530, 536 (2011). If the evidence is sufficient to support the conviction, the reviewing appellate court will not- 6 - “substitute its own judgment for that of the trier of fact, even if its opinion might differ from the conclusions reached by the [fact finder].” Jo rdan v. Commonwealth, 286 Va. 153, 15 6-57, 747 S.E.2d 799, 800 (2013). The appellant was tried by the circuit court, sitting without a jury. Consequently, that court was the fact finder and its judgment is afforded the same weight as a jury verdict. Preston v. Commonwealth, 281 Va. 52, 57, 704 S.E.2d 127, 129 (20 11). It was in the position to see and hear the witnesses as they testified and to make credibility determinations. Miller v. Commonwealth, 64 Va. App. 527, 536, 769 S.E.2d 706, 710 (2015). Consequently, decisions regarding the credibility of the witnesses and the we ight of the evidence are matters left solely to the fact finder below, in this case the tria l court. See, e.g., Davis v. Commonwealth, 230 Va. 201, 206, 335 S.E.2d 375, 379 (1985).

When a conviction is based on circumstantial evidence, that eviden ce “‘must exclude every reasonable hypothesis of inno cence.’” Hamilton v. Commonwea lth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993) (quoting B oothe v. Commonwealth, 4 Va. App. 484, 492, 358 S.E.2d 740, 745 (1987)). However, “[t]he Commonwealth need onl y exclude reasonable hypotheses of innocence

that flow from the evidence . . . .” Id. Whether a “‘hypothesis of innocence is reasonable is a question of fact and, therefore, is binding on appeal unless plai nly wrong.’” Wood v. Commonwealth, 57 Va. App. 28 6, 306, 701 S.E.2d 810, 81 9 (2010) (quoting Emerson v. Commonwealth, 43 Va. App. 263, 277, 597 S.E.2d 242, 249 (2004)). We review the challenges to the sufficiency of the eviden ce under these well-established legal principles.- 7 - A. Failure to Appear The appellant argues that the trial court ma de a factual finding that his testimony was credible. He reasons that consequently the cour t erred by holding that hi s “calculated risk” that his court date “had changed” constitute d a “willful failure to appear.” Code § 19.2-128(B) provides that “[a]ny person . . . charged with a felony offense . . . who willfully fails to appear before any court as required shall be guilty of a Class 6 felony.” In order to support a conviction for failure to appear, the Commonwealth must prove that the defendant “‘willfully’ failed to appear” at tria l or other court proceeding. Williams, 57 Va. App. at 762-63, 706 S.E.2d at 536. “‘Willfully,’ as used in Code § 19.2-128(B), has the customary meaning that the act must have been done ‘purpo sely, intentionally, or de signedly.’” Hunter v. Commonwealth, 15 Va. App. 717, 721, 427 S.E.2d 197, 200 (1993) ( en banc ). Intent may, and usually must, be proved by circumstantial evidence, and the fact finder may presume an offender intends the “natural and proba ble consequences” of his acts. Campbell v. Commonwealth, 12 Va. App. 476, 483-84, 405 S.E.2d 1, 4 (1991) ( en banc ). “When the government proves that an accused received timely notice of when and where to appear for trial [or other legal proceeding] and thereafter does not appear on the date or plac e specified, the fact finder may infer that the failure to appear was willful.” Hunt er, 15 Va. App. at 721, 427 S.E.2d at 200. The appellant contends that the trial court’ s statement that he “took a calculated risk” demonstrates that it believed his testimony but then misapplied the “wil lful” element of the offense. However, when considering whether a trial court applied an incorrect legal standard, the judge’s comments must be viewed in cont ext, keeping in mind th e legal requirements on appellate review. See Yarborough v. Commonwealth, 217 Va. 971, 978, 234 S.E.2d 286, 291 (1977) (“[W]e will not fix upon isolated statements of the trial judge taken out of the full context in which they were made, and use them as a predicate for holding the law has been- 8 - misapplied.”); see also Bassett v. Commo nwealth, 13 Va. App. 580, 583-84, 414 S.E.2d 419, 421 (1992) (holding that a “trial court’s remark is not , in and of itself, ‘the full context’ simply because it represents the only point at which the court [expressly] addressed the issue [in dispute]”). The record in this case refutes the appella nt’s claim. After summarizing the facts that demonstrated that the appellant knowingly failed to appear in c ourt, the trial court stated, [I]f you had any question as to what your date was, whether it had changed from that or not, you coul d have contacted your attorney. You certainly could have contac ted the court to confirm if you thought your date had changed, but you didn’t do any of that. You just took a calculated risk that it had changed and you didn’t show up. Well, that’s a willf ul failure to appear. The first two sentences of the judge’s comments make clear the contingent nature of his observation, stating that “ if ” the appellant thought that his hearing date had changed, he “ could ” have contacted his attorney or the court. Th is conditional language signals that the judge doubted the appellant’s claim of an innocent mist ake. If the appellant, who was a convicted felon, had truly thought his court da te had changed, he could have contacted his attorney or the court, but he did not. The cour t concluded by opining, “[T]hat’s a willfulfailure to appear.” (Emphasis added). The judge’s comment that the appellant “took a calculated risk,” viewed in context, was not inconsistent with the finding th at the appellant’s actions were willful. In addition, consistent with the tria l court’s ruling, the appellant’s c ounsel argued to the trial court that willfulness was a required element of the offens e. A full reading of the record supports the

conclusion that the trial court knew a nd correctly applied the law. The judge rejected the appella nt’s “hypothesis of innocence,” and the record supports that decision. It contains the bond agre ement signed by the appellant promising to appear for his July 10, 2013 hearing. The appellant’s si gnature affirmed that he unders tood that “failure to appear [was] a separate crime” from the underlying charged offense. Further, the appellant admitted at- 9 - trial that no one told him not to go to court on that date. This evidence refutes any claim of mistake. The trial court was not required to accep t the appellant’s explanation as credible, and it was entitled to “accept the parts” of his testimony that it found “bel ievable and reject other parts as implausible.” Moyer v. Commonwea lth, 33 Va. App. 8, 28, 531 S.E.2d 580, 590 (2000) ( en banc ). The evidence that the appellant knew his hearin g date and did not appear in court on that date supports the trial court’s conc lusion that his failure to appear was willful. Therefore, we affirm the conviction for failure to appear. B. Contributing to th e Delinquency of a Minor The only challenge to the sufficiency of th e evidence is that the Commonwealth did not prove the “willful” element of the offense of c ontributing to the delinquency of a minor. He

relies on the fact that he left the child with hi s co-defendant, the child’s mother. The appellant suggests that there was no evidence that the child’s neglect arose from his actions. Code § 18.2-371 provides, in pertinent part: “Any person . . . , including the parent of any child, who (i) willfully contributes to, encourages, or cau ses any act, omission, or condition

that renders a child . . . abused or neglected as defined in § 16.1-228 . . . is guilty of a Class 1 misdemeanor.” (Emphases added). 2 The trial court made the factual finding that the appellant’s actions constituted neglect. Code § 16.1-228 defines an abused or neglec ted child, in pertinent part, as a child “[w]hose parent[] . . . creates a substantial risk of death, disfigurement or impairment of bodily or mental functions” or “[w]ho is without parental care or guardianship caused by the

2 In contrast, it is a felony offense for a parent to “by willful act or omission . . . permit[] serious injury to the life or health” of a child, or for a parent’s “willful act or omission in the care of [a] child” to be “so gross, wanton, and culp able as to show a reckless disregard for human life.” Code § 18.2-371.1.- 10 - unreasonable absence . . . of the child’s parent.” “[T]he statutory definitions of an abused or neglected child do not require pr oof of actual harm or impairme nt having been experienced by the child. The term ‘substantial risk’ speaks in futuro . . . .” Jenkins v. Winchester Dep’t of Soc. Servs., 12 Va. App. 1178, 1183, 409 S.E.2d 16, 19 (1991). The record supports the trial court’s conclusion that the appe llant willfully contributed to the neglect of his child, either through contributing to the situation that had “a substantial risk of death, disfigurement or impairment of bodily or mental functions” or though his “unreasonable absence,” contributing to the chil d’s lack of “parental care or guardianship.” His unchallenged statement that he took “full responsibility for wh at happened” supports the conclusion that he willfully contributed to the child’s neglect. The police recording of the thirty-one-year-old appellant further supports the inference that he le ft the hotel room having reason to believe that the mother would not stay to supervise their young child. He admitted that the situation was volatile with the mother when he left. The appe llant’s statements as to the mother’s whereabouts

were inconsistent. At first he told the officer that she had given him no indication that she would go anywhere, but later in the inte rview stated that she had disc ussed “possibly” going with a friend to a doctor’s appointment. Additionally, hi s recorded statement to his friend that he was in a hurry to return “to make su re she [didn’t] leave” suggested th at he had reason to believe that the mother would leave. The appellant’s attemp t to contact the mother while at his friend’s

house and ask her where she was at the time furthe r suggests that he knew or believed that she

had left the hotel. Although the appellant points to his statement to the police that he left the child in the

mother’s care and had no reason to think that sh e would leave, the trial court made an implicit factual finding rejecting this defense. See Wood, 57 Va. App. at 306-07, 701 S.E.2d at 820 (holding that the “trial court was not required to accept the st ory” that the defendant told the- 11 - police). See generally Cuffee v. Commonwealth, 61 Va. App. 353, 367, 735 S.E.2d 693, 700 (2013) (affirming the trial cour t’s implicit factual finding). That finding was supported by the appellant’s own statements and ad missions to law enforcement, to his friend, and in open court. Under the unique circumstances of this case , the trial court was not plainly wrong and the evidence supports the conclu sion that the appellant’s willful acts contributed to the neglect of his child. Consequently, we affirm the conviction for contributing to the delinquency of a minor. In light of this holding, we do not address the Commonwealth’s alternative argument that

the child was in need of services because the chil d was living in a hotel “full of strangers” and in a room “in close proximity to a bathtub with water and drugs.” See Jones v. Commonwealth, 272 Va. 692, 701-02, 636 S.E.2d 403, 408 (2006) (affirming conviction under Code § 18.2-371.1(B)(1) where “unattended child” was exposed to substantial or probable risk of harm from “harmful drugs within arm’s reach”).

III. CONCLUSION The evidence, viewed under the appropriate standard of re view, supports the finding that the appellant willfully failed to appear. In a ddition, the record supports the trial court’s finding that the appellant willfully contributed to the neglect of his two-year-old child. For these reasons, we affirm the convictions.

Affirmed.