                               COURT OF APPEALS OF VIRGINIA


Present: Judges Annunziata, Humphreys and McClanahan
Argued at Richmond, Virginia


DANYEL LORENZO GRAY, S/K/A
DANYELL GRAY
                                                          MEMORANDUM OPINION* BY
v.     Record No. 2720-02-2                            JUDGE ELIZABETH A. McCLANAHAN
                                                                APRIL 13, 2004
COMMONWEALTH OF VIRGINIA


                 FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
                               James F. D’Alton, Jr., Judge

                 John H. Cobb, Jr., Public Defender (Office of the Public Defender,
                 on brief), for appellant.

                 Donald E. Jeffrey, III, Assistant Attorney General (Jerry W. Kilgore,
                 Attorney General, on brief), for appellee.


       Danyel Lorenzo Gray appeals his conviction for felony child abuse. Gray was charged

with Class 4 felony child abuse, a violation of Code § 18.2-371.1(A), but was convicted of Class

6 felony child abuse in violation of Code § 18.2-371.1(B).1 Gray contends that the trial court

erred in holding the evidence sufficient to find him guilty of Class 6 felony child abuse. We

disagree.

                                         I. BACKGROUND

       When reviewing sufficiency arguments on appeal, we review the evidence and the

inferences fairly deducible from that evidence in the light most favorable to the Commonwealth.

Snow v. Commonwealth, 33 Va. App. 766, 774, 537 S.E.2d 6, 10 (2000). We will not disturb

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       1
          Code § 18.2-371.1(B) was renumbered as Code § 18.2-371.1(B)(1) by the General
Assembly in 2003, after appellant was convicted. We refer to the subsection as it was numbered
at the time of appellant’s conviction. The language in the subsection remains the same.
the fact finder’s verdict unless that decision was plainly wrong or without evidence to support it.

See Ashby v. Commonwealth, 33 Va. App. 540, 548, 535 S.E.2d 182, 187 (2000).

       In December 2001, Gray was responsible for taking care of his fourteen-month-old son.

Gray and the baby’s mother were estranged, but had agreed that Gray would take custody of the

child at Gray’s mother’s house for a few weeks. On December 30, 2001, the baby’s mother

telephoned Gray and heard the baby crying in the background. She asked why the baby was

crying, but Gray would not answer her. After several calls, Gray finally told the baby’s mother

that the infant “had got[ten] in a tub of water by himself.” When the mother went to the house to

retrieve her son, she found out that he had been taken to the hospital.

       When the mother arrived at the hospital, Gray told her that “he didn’t do it.” He

reiterated that the baby had climbed into the tub by himself. When the mother first saw the baby

at the hospital, she described his feet as “big” and “burn[ed].”

       Tracie Hilliard-Eppes, a registered nurse who was working at the hospital that day,

testified that when the baby was brought into the hospital, the soles of his feet were “very red.”

Gray also told Hilliard-Eppes that the baby had climbed into the tub, “apparently unobserved.”

She testified that the injuries appeared consistent with burns, but that she “didn’t feel

comfortable with” Gray’s explanation. Hilliard-Eppes said that the burns were “pretty

clean-cut.” She explained that a person’s natural reaction to touching hot water is to pull back,

which creates splash marks. She testified that the baby did not have splash marks up his leg; he

only had burns on the soles of the feet. She opined that the burns were first-degree, comparable

to sunburn.

       Petersburg police officer Will Mayer spoke with Gray in the emergency room. Gray

initially told Mayer that he had run some water in the tub and that, when he was in the kitchen

cooking, the baby got away from him and climbed into the tub. When he heard the baby crying

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he went into the bathroom, saw that the baby had red feet and called the EMS. After talking to

the nurses, Mayer conducted further investigation and learned from the baby’s mother that the

baby was not able to climb into the tub.

       At that point, the police read Gray a statement of his Miranda rights. Gray then changed

his story and told Mayer, “The baby had been sick all night, and that he had the runs and he was

dirty. He placed the baby in the tub and did not check the temperature of the water.” He also

told Mayer that the cold water connection was not working and that he only had access to hot

water. Gray said that he placed the baby into the tub and that when the baby started to scream

and cry he pulled him out.

       After some time, Gray provided Mayer yet a third story. He stated he wanted “to make

things right.” “He said that the baby had been sick and crying all night long. He didn’t get any

sleep and was mad the whole day. He said that he began to cook chicken, and the baby had on a

dirty diaper. He said that the fecal matter was coming out of the diaper and the baby was dirty.”

Gray also said “he was already mad about not getting rest, so he decided to teach the baby a

lesson. He turned on the hot water and placed the infant in the hot water and went back to

cooking the chicken.” He said, “after about five to ten minutes he couldn’t stand to hear the

baby screaming and crying anymore.” Gray told Mayer he removed the baby from the water and

noticed that his feet were red and swollen. “He got scared and called the EMS.” Gray then

made a written statement that was consistent with his third story, which was notarized by a

magistrate.

       The trial court found Gray guilty of child abuse under Code § 18.2-371.1. At the

sentencing hearing, the Commonwealth recommended that Gray be punished for Class 6 felony

child abuse because he exhibited a reckless disregard for human life. The Commonwealth

contended that Gray would have had to know that the baby would be burned if he immersed him

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in hot water for five to ten minutes. Gray admitted he wanted to “teach it [the baby] a lesson.”

Gray’s counsel argued that the indictment had charged Gray with Class 4 child abuse. He stated

that the reckless disregard for human life standard would change the nature and character of the

indictment. The judge found that the totality of the evidence, including Gray’s statement about

why he put the baby in the tub, constituted a Class 6 felony. Gray was sentenced to five years in

the penitentiary with four years, six months suspended conditioned on, inter alia, good behavior

and indefinite probation.

                                            II. ANALYSIS

        Gray argues that the instant case is only one of infliction of injury and the evidence is not

sufficient to show that his acts rose to the level of reckless disregard for human life. He contends

that because he called EMS when he noticed that the baby’s feet were red, any finding of

conduct that is “so gross, wanton and culpable as to show a reckless disregard for human life” is

negated. However, there is ample evidence in the record to support the trial court’s

determination that Gray was guilty of acts so gross, wanton, and culpable as to show a reckless

disregard for the life of his son.

        Code § 18.2-371.1 defines and establishes penalties for abuse and neglect of children. At

the time of Gray’s conviction, subsection (A) provided in pertinent part:

                Any parent . . . responsible for the care of a child . . . who by
                willful act or omission . . . 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 . . . .

At the time of Gray’s conviction, subsection (B) provided in pertinent part:

                Any parent . . . responsible for the care of a child . . . whose willful
                act or omission in the care of such child was so gross, wanton and
                culpable as to show a reckless disregard for human life shall be
                guilty of a Class 6 felony.

                                                  -4-
To convict under subsection (A), the Commonwealth must prove that by a willful act or

omission, a parent has caused or permitted a serious injury to the child. Under subsection (B),

the Commonwealth does not have to prove that a child actually suffered a serious injury, but that

the parent had engaged in a willful act or omission that is so gross, wanton and culpable as to

show reckless disregard for the child’s life. The Virginia Supreme Court has recently stated that

subsection (B) demonstrates a legislative intent to prohibit conduct that “has the potential of

endangering a child’s life.” Commonwealth v. Duncan, ___ Va. ___, ___, 593 S.E.2d 210, ___

(2004).

                 The statutory requirement that such conduct be “willful” means
                 that the conduct must be knowing or intentional, rather than
                 accidental, and be done without justifiable excuse, without ground
                 for believing the conduct is lawful, or with a bad purpose. Thus,
                 the term “willful,” as used in Code § 18.2-371.1(B)[],
                 contemplates an intentional, purposeful act or omission in the care
                 of a child by one responsible for such child’s care.

                            *      *       *       *       *      *       *

                 Notably, subsection (B)[] does not limit the prohibited conduct to
                 acts and omissions that subject a child to an actual risk of death,
                 but proscribes conduct that is so “gross, wanton and culpable” as to
                 demonstrate a “reckless disregard” for the child’s life. Therefore,
                 we hold that such “reckless disregard” can be shown by conduct
                 that subjects a child to a substantial risk of serious injury, as well
                 as to a risk of death, because exposure to either type of risk can
                 endanger the child’s life.

Id. (citations omitted).

          Gray’s own admission clearly shows that he purposely and willfully acted to inflict injury

upon his son. In his statement to the police, Gray said, “the baby had been sick and crying all

night long.” He admitted that he “didn’t get any sleep and was mad the whole day.” He said that

he “was already mad about not getting rest, so he decided to teach the baby a lesson.” He

“turned on the hot water and placed the infant in the hot water and went back to cooking the

chicken.” Gray left the baby screaming for five to ten minutes and only retrieved the baby from
                                                 -5-
the tub because he “couldn’t stand to hear the baby screaming and crying anymore.” Placing a

fourteen-month-old baby into hot water “to teach the baby a lesson” is a gross, wanton and

culpable act. Gray calculated that putting the baby into hot water would burn him – and that is

why he did it, according to his own admission. There is certainly sufficient evidence for the fact

finder to infer that Gray had the knowledge that these actions would likely result in substantial

risk of serious injury to the child.

                                       III. CONCLUSION

        The evidence was sufficient for the trial court to find that Gray willfully, wantonly and

culpably inflicted serious injury on his son such that he demonstrated a reckless disregard for

human life and, therefore, convict him of Class 6 felony child abuse under Code § 18.2-371.1(B).

                                                                                          Affirmed.




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