                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Petty, Malveaux and Senior Judge Annunziata
              Argued at Alexandria, Virginia
UNPUBLISHED




              CHELIE L. CASSWELL
                                                                            MEMORANDUM OPINION BY
              v.     Record No. 1081-17-4                                    JUDGE WILLIAM G. PETTY
                                                                                  JULY 24, 2018
              COMMONWEALTH OF VIRGINIA


                                   FROM THE CIRCUIT COURT OF STAFFORD COUNTY
                                               Victoria A.B. Willis, Judge

                               (John M. Spencer; Spencer, Meyer & Kock, PLC, on brief), for
                               appellant. Appellant submitting on brief.

                               Victoria Johnson, Assistant Attorney General (Mark R. Herring,
                               Attorney General, on brief), for appellee.


                     Chelie Casswell appeals her conviction of child cruelty pursuant to Code § 40.1-103(A).1

              On appeal, Casswell argues that the trial court erred because the evidence was insufficient to

              establish the requisite criminal negligence for a child cruelty conviction. For the reason stated

              below, we affirm.

                                                         BACKGROUND

                     Chelie Casswell asked Chad Etka if she could babysit Etka’s two children, S.E., his

              three-year-old daughter, and A.E., his two-year-old son. Etka agreed. Etka and Casswell had

              met approximately two months before. Casswell had been to the home many times before Etka

              allowed her to babysit; many of the occasions were pool parties where the children either swam



                     
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                       Casswell was also charged with involuntary manslaughter in connection with the same
              incident but was acquitted of that charge.
in the pool or played in their playroom. Casswell had two children of her own and three

grandchildren.

       Before Etka left early the morning of August 13, 2016, Etka told Casswell that there was

a heat advisory that day so the children were not to go outside. The children’s playroom in

Etka’s house had two internal entrances, both of which were blocked by baby gates. The

playroom also had a sliding glass door that led to the back deck. Stairs connected the deck to a

patio area and a kidney-shaped swimming pool that was, at its greatest depth, five feet deep.

When asked whether the children were able to unlock the sliding glass door in the playroom,

Etka said, “They were. I think [S.E.] was able to unlock the sliding glass door.” In light of that,

Etka put an old kitchen cabinet-turned-toy-chest in the track of the sliding door so that the door

would not open. Etka told Casswell about the cabinet. Etka testified he “never once had any

problems” with the children getting out of the playroom through the sliding door when he

blocked it with the cabinet. Etka did not block the door before he left on August 13th, however,

because Casswell was on the deck smoking when he left.

       A few hours after he left, at 10:25 a.m., Etka sent Casswell a text message to check on the

children. Casswell responded at 10:31 a.m., saying she was cleaning up while “they have a tea

party.” The records from Casswell’s cell phone show that she then spent over ten minutes on

two FaceTime calls with her daughter, starting at 10:34 a.m. There was no further activity on her

cell phone until 11:47 a.m., and there was a second lull in cell phone activity from 11:54 a.m.

until 12:51 p.m., when Casswell called 911.

       Casswell said she and the children played until around 10:30 a.m. when she put both of

them down for a nap in the playroom. However, a neighbor said that she saw two children

outside sometime around 10:10 a.m. to 10:30 a.m. Although Casswell testified that she let the

dog out at 10:30 a.m. through the sliding glass door and locked it behind her, she told her social

                                                -2-
worker that when she went to get A.E. from the neighbor, the sliding glass door was unlocked

and easy to open. Casswell said the children were both asleep by 11:20 or 11:30 a.m. She

admitted that S.E. had asked to go swimming that morning. Casswell said that she worked in the

kitchen after the children fell asleep and heard a knock on the door. Casswell testified that on

her way to answer the door she noticed S.E.’s feet as she slept on the floor in the playroom.

       Around noon, two neighbors found A.E. standing in a ditch next to the street with no

shoes or shirt on, very sweaty, and crying. It was very hot and humid that day, with temperatures

in the nineties. One neighbor called police and took A.E. inside, the other went to Etka’s house

and knocked on the door while trying to call Etka’s cell phone. Etka answered the phone at

12:41 p.m., as Casswell answered the door. Casswell told each neighbor separately that she had

fallen asleep. When Casswell returned home with A.E., she found S.E. in the pool and called

911. The officer who responded to the call about A.E. went to Etka’s home. S.E. was on the

kitchen floor, wet and unresponsive. Casswell was in the kitchen holding A.E. Officer Walker

described Casswell as “calm,” but “concerned,” and “not frantic.” Shortly thereafter, emergency

medical services arrived and quickly got S.E. and rushed her to the ambulance and to the

hospital. Despite the efforts of medical personnel, S.E. was pronounced dead at Stafford

Hospital’s Emergency Department later that afternoon.

       Police testified that there was a direct view from the kitchen into the playroom through a

cutout in the kitchen wall; an individual looking out of the cutout into the playroom at an angle

can see the sliding glass door. If one stood in the kitchen, he could “very clearly hear” another

person come in and out of the sliding glass door, but there was little to no resistance when sliding

the glass door open.

       Casswell’s blood showed no more than “therapeutic levels” of her medications for

depression, anxiety, migraines, insomnia, and thyroid deficiency. Although the

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Commonwealth’s toxicologist testified that the medications had the potential for side effects like

sedation, drowsiness, and dizziness, he explained that he could not determine whether Casswell

was experiencing side effects while the children were in her care.

         The jury found Casswell guilty of child cruelty pursuant to Code § 40.1-103(A) and

sentenced her to four years of incarceration. Casswell timely appealed that conviction to this

Court.

                                             ANALYSIS

         Casswell argues that the evidence was insufficient to establish the requisite criminal

negligence for a child cruelty conviction. We disagree.

         When considering the sufficiency of the evidence presented below, “we presume the

judgment of the trial court to be correct.” Davis v. Commonwealth, 39 Va. App. 96, 99, 570

S.E.2d 875, 876-77 (2002) (quoting Broom v. Broom, 15 Va. App. 497, 504, 425 S.E.2d 90, 94

(1992)). Indeed, “[i]n our review of the sufficiency of the evidence, we must affirm the

conviction unless the trial court was plainly wrong or the conviction lacked evidence to support

it.” Parham v. Commonwealth, 64 Va. App. 560, 565, 770 S.E.2d 204, 207 (2015); see also

Code § 8.01-680.

         Furthermore, we will not “substitute our judgment for that of the trier of fact.” Beshah v.

Commonwealth, 60 Va. App. 161, 168, 725 S.E.2d 144, 147 (2012) (quoting Brown v.

Commonwealth, 56 Va. App. 178, 184-85, 692 S.E.2d 271, 274 (2010)). Instead, we ask

“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.” Id.

(emphasis added) (quoting Brown, 56 Va. App. at 184-85, 692 S.E.2d at 274).

         Code § 40.1-103(A) provides, in pertinent part,
                       It shall be unlawful for any person employing or having the
                custody of any child willfully or negligently to cause or permit the

                                                 -4-
               life of such child to be endangered or the health of such child to be
               injured, or willfully or negligently to cause or permit such child to
               be placed in a situation that its life, health or morals may be
               endangered.

The negligence required to sustain a conviction under this statute is “criminal negligence.” In

Barnes v. Commonwealth, 47 Va. App. 105, 111, 622 S.E.2d 278, 280-81 (2005) (internal

quotations marks omitted), we noted,

                       Criminal negligence requires what ordinarily would be
               called gross negligence, for it involves a reckless or indifferent
               disregard of the rights of others, under circumstances reasonably
               calculated to produce injury, or which make it not improbable that
               injury will be occasioned, and the offender knows, or is charged
               with the knowledge of, the probable result of his acts.

       Given the fact-intensive nature of this inquiry, we have established factors to consider in

making the determination of whether criminal negligence was present:

               the gravity and character of the possible risks of harm; the degree
               of accessibility of the [guardian]; the length of time of the
               abandonment; the age and maturity of the children; the protective
               measures, if any, taken by the [guardian]; and any other
               circumstance that would inform the factfinder on the question
               whether the [guardian’s] conduct was criminally negligent.

Id. at 113, 622 S.E.2d at 282.

       Applied to the facts of this case, these factors demonstrate that Casswell’s conduct was of

such a nature as to support the jury’s finding that she was criminally negligent. First, the gravity

and character of the possible risk of harm was great. Leaving the sliding glass door in the

playroom unsecure meant exposing the children to extreme danger. Not securing the door and

allowing the children to go outside unsupervised meant not only exposing them to the extreme

heat, but allowing them access to a five-foot-deep swimming pool that was just steps away from

their playroom.

       Second, the jury could conclude that Casswell failed to supervise the children for more

than two hours. The jury believed the neighbor, who saw A.E. and S.E. outside between
                                                -5-
10:10 and 10:30 a.m., rather than Casswell who said she was supervising the children inside at

the time.2 See Burnette v. Commonwealth, 60 Va. App. 462, 476, 729 S.E.2d 740, 746 (2012)

(“The credibility of the witnesses and the weight accorded the evidence are matters solely for the

fact finder who has the opportunity to see and hear that evidence as it is presented.” (quoting

Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995))). If the

children were already outside by 10:30 a.m., then Casswell lied when she said she texted Etka at

10:31 a.m., lied that the children were having a tea party while she was cleaning, lied that she put

them down for a nap, lied that they fell asleep around 11:20 or 11:30 a.m., and lied that she saw

S.E.’s foot when she went to retrieve A.E. Clearly Casswell did not know A.E.’s whereabouts

when he was outside unbeknownst to her from at least noon, when he was discovered by the

neighbor, to about 12:41 p.m. when Casswell retrieved him. Accordingly, the jury could

conclude that the children were either outside, or at least unsupervised, from at least 10:30 a.m.

to 12:41 p.m. Because the playroom and the sliding door could be seen from the kitchen, the

jury could find Casswell’s failure to supervise the children for more than two hours was more

than mere inadvertence. Accordingly, the length of time Casswell left the children unsupervised

supports the jury’s finding of criminal negligence. See also Noakes v. Commonwealth, 280 Va.

338, 347, 699 S.E.2d 284, 289 (2010) (finding it criminal negligence for appellant to put

thirty-three-pound dog crate on top of fifteen-month-old child’s crib to prevent the child from

standing up and then failing to check on the child for three hours).




       2
         Casswell’s own testimony rules out the possibility of the children being outside while
under her supervision. Casswell testified that she did not let the children outside at any point in
the morning. According to Casswell, other than going to the kitchen to get breakfast, the
children were in the playroom all morning until they fell asleep. Although she said she let the
dog out of the sliding door at 10:30 a.m., she clarified that the children did not go outside with
her.  
                                                -6-
       Third, the age and maturity of the children demonstrate that they required attentive

supervision. A.E. was two years old, and S.E. was three years old. Etka testified that he thought

S.E. knew how to unlock the sliding door. Although she could unlock doors, she was not mature

enough to be left unsupervised. A neighbor testified that when the children were in the yard

playing, they were always supervised. S.E. was not allowed to go into the swimming pool

without a flotation device. Casswell was aware of S.E.’s age and maturity because she had been

to Etka’s pool parties and witnessed S.E. in the pool and otherwise. Therefore, the factfinder

could infer that the age and maturity of the children required closer attention than what Casswell

provided.

       Lastly, Casswell took no protective measures to guard against the risk of the children

opening the sliding door, going outside, and getting into the pool. S.E. was three years old, knew

how to open the sliding glass door, and had stated her desire to go outside and swim. In fact,

accepting the facts in the light most favorable to the Commonwealth, the jury could infer that

S.E. knew how to move the toy cabinet off of the sliding door tracks because her father testified

that he put loud toys in the cabinet so that he could hear the toys “if by chance [the children]

decided to move [the cabinet].” Despite that, however, Casswell failed to guard against the risk

by securing the door. Not only did Casswell fail to block the door with the cabinet as Etka

instructed, but she failed to even lock the door. Casswell told her social worker that when she

went to get A.E. from Etka’s neighbor, the sliding door was unlocked and easy to open. Thus,

the factfinder could infer that the door had been unlocked since Casswell took the dog out at

10:30 a.m. Accordingly, these factors, taken together, support the jury’s conclusion that

Casswell’s conduct was criminally negligent.

       Nevertheless, Casswell argues that this Court’s decision in Ellis v. Commonwealth, 29

Va. App. 548, 513 S.E.2d 453 (1999), requires us to reverse her conviction. In Ellis, the

                                                -7-
appellant left her two daughters, ages two and four, in her apartment alone while she visited an

apartment approximately seventy-five yards away from her building. Id. at 551-52, 513 S.E.2d

at 455. Sometime before she left, Ellis turned on the gas stove burner to light a cigarette. Id. at

551, 513 S.E.2d at 455. A fire started shortly after Ellis left. Id. at 552, 513 S.E.2d at 455. The

children were asleep in a bedroom with the door closed. Id. There was no evidence that Ellis

intentionally left the gas stove burner on before leaving her apartment. Id. at 553, 513 S.E.2d at

455. The children were both injured. Id. at 552, 513 S.E.2d at 455. Ellis was convicted in a

bench trial of child neglect in violation of Code § 18.2-371.1(A) and of cruelty to children in

violation of Code § 40.1-103. Id. at 551, 513 S.E.2d at 454-55.

       This Court reversed Ellis’s convictions, holding that Ellis’s conduct did not amount to

criminal negligence. We noted that

               [n]otwithstanding the fire that resulted from her inadvertence [in
               failing to turn off the gas jet on her stove], the evidence fails to
               show that [Ellis] acted with the requisite knowledge or callous
               indifference to the fact that her children were at risk of injury while
               she left them unattended.

Id. at 557, 513 S.E.2d at 458. The children were asleep in a closed bedroom when Ellis left to

visit a neighbor. Id. There was no evidence that Ellis did not intend to return before the children

woke up or that the children often woke up early from naps—there was no known risk of danger

to the children in the apartment.

       Here, unlike in Ellis, the evidence demonstrates that Casswell knew of the dangers likely

to occur and failed to eliminate them. Even if Casswell did lock the sliding glass door, as she

claimed, she had been warned that S.E. knew how to unlock it.  Ellis, on the other hand, left her

children unattended after they were asleep in a closed bedroom. Although Ellis inadvertently

failed to turn off the gas jet on the stove before leaving the apartment, she was otherwise fully

aware of where the children were and what they were doing. Casswell, however, either fell

                                                -8-
asleep or discontinued monitoring the children after failing to secure the sliding door that led to

the pool.3 Therefore, the known risk analysis from Ellis supports an affirmance.

       Furthermore, Casswell knew of the existence of the dangers that could result in the

child’s death. Before he left, Etka not only told Casswell that the children were not to go outside

because of the heat, but he told her that the sliding glass door needed to be secured. Etka

explained that the kitchen cabinet-turned-toy-chest needed to be used to block the door.

Accordingly, Casswell knew that steps needed to be taken to ensure that the children did not go

outside and expose themselves to the perils that arise when children and swimming pools come

together. The record is clear that Casswell failed to take such steps. Although she testified that

she locked the sliding door after she came in from letting the dog out, both of the children

escaped from the room. And, as we noted above, Casswell knew that three-year-old S.E., who

was eager to go swimming that day, could unlock the door. Consequently, the factfinder was

free to infer that whatever Casswell did, if anything, to prevent the children from getting out, it

was not as she was warned or instructed.

       Finally, Casswell’s knowledge of the probable results of her inaction is laid bare by her

testimony that she had been to Etka’s house “[m]any times” for pool parties and S.E. and A.E.

went to the parties and swam or played in their playroom. The factfinder can rely on common

sense to conclude that swimming pools are dangerous to children. Cf. Commonwealth v.

Duncan, 267 Va. 377, 386, 593 S.E.2d 210, 215 (2004) (holding it is common knowledge that

giving alcohol to a six-month-old baby who had not had any food or liquids for at least seven

hours presented a “substantial risk of serious injury or risk of death to the baby”). Here,



       3
          Although there was evidence that Casswell had a number of medications in her system
while she was babysitting, we do not factor that into the analysis because the toxicologist
testified that he could not determine whether Casswell was experiencing side effects of the
medications at the relevant time.
                                               -9-
Casswell knew that a swimming pool was steps away from these children’s playroom and that

S.E. wanted to go swimming. Accordingly, viewed in the light most favorable to the

Commonwealth, the evidence demonstrates that Casswell had the requisite knowledge and

consciousness that her lack of supervision would likely result in injury to S.E.

        Moreover, the particular facts and circumstances of this case demonstrate that Casswell’s

conduct was of such a nature as to support the jury’s finding that her failure to ensure S.E.’s

safety went beyond inattention and inadvertence, but rose to criminal negligence. Casswell

knew the probable result of her inaction, and thereby permitted S.E.’s life to be endangered—

and, in this case, the result was fatal.

                                            CONCLUSION

        For the foregoing reason, the ruling of the trial court is affirmed.
                                                                                          Affirmed.




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