                                COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Senior Judge Hodges
Argued at Richmond, Virginia


MARSHA KING ASCENCIO
                                                               MEMORANDUM OPINION* BY
v.      Record No. 3357-02-2                                   JUDGE WILLIAM H. HODGES
                                                                   FEBRUARY 3, 2004
COMMONWEALTH OF VIRGINIA


                   FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                                 Michael C. Allen, Judge

                  John A. Rockecharlie (Bowen, Champlin, Carr & Rockecharlie, on
                  brief), for appellant.

                  Virginia B. Theisen, Assistant Attorney General (Jerry W. Kilgore,
                  Attorney General, on brief), for appellee.


        Marsha King Ascencio, appellant, was convicted of two counts of felony child neglect.

Appellant contends the evidence was insufficient to support her convictions, arguing that her

conduct did not constitute a “willful act” or rise to the level of criminal negligence required under

Code § 18.2-371.1(B) and that the evidence failed to prove the length of time she was absent from

the residence and whether she is the parent, guardian or custodian of the older of the two children.

Finding no error, we affirm the convictions. However, because appellant’s sentences exceeded the

maximum allowed by law, we remand for the trial court to modify the sentences.

                                                 Facts

        “On appeal, ‘we review the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth,

26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted). So viewed, the evidence

        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
proved that appellant left her two children, ages eight and eleven, in their home alone for several

days in March of 2002 while she was out-of-state. Appellant left notes around their home

instructing the children on different issues. One note instructed the children to watch the weather

channel in the morning so they could decide how to dress appropriately for school. The note told

them to put their key around their neck and go to the bus stop at 8:03 a.m., and told them what to

do when they got home from school. The note told them what to eat for breakfast, snack, and

dinner on Monday, Tuesday, Wednesday and Thursday, the days appellant would be away before

returning on Friday, the day the note read “Mom’s home.” However, there was not enough food

in the refrigerator for the children to eat the meals specified in the note and, apparently, the

children had no way to restock the refrigerator. In addition, several of the specified meals, such

as grilled cheese, hot dogs, chicken nuggets, rice, and macaroni and cheese presumably required

the children to cook using a stove or microwave. The children were instructed to check Caller

ID before answering the telephone and to answer only calls made from specific telephone

numbers that “Mommie’s [sic] calls will be [from]” “no matter what.” Another note instructed

the children that they could call appellant at night after she called them and told her “which

house” she was staying in that night. The note also instructed the children to “behave in school

while I am away” and to “sit still.” The eight-year-old child testified that she was “scared” every

night when she went to bed while her mother was not home and that she slept in her mother’s

bed because she did not have an alarm clock near her bed. The child also said her mother had

the key to the mailbox, so that unless her mother was there to open the mailbox, it would be

“stuffed” with mail.

       On March 26, 2002, Ken Landry from Child Protective Services responded to appellant’s

home and saw a child looking out the window as he knocked on the door. The principal and

assistant principal from the children’s school arrived and knocked on the door. The children

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would not respond. Thereafter, the police and two people listed as “emergency contacts” on the

children’s school forms arrived at the home. The children would not respond. Finally, a

neighbor who had a key to the children’s home arrived and unlocked the door, and was able to

convince the children to unchain the door. When the adults entered the home, the children were

visibly upset and the adults comforted them. Landry telephoned appellant at several numbers,

including the new number listed on the note left with the children, but was unable to contact her.

Therefore, the children were placed into the custody of the Department of Social Services.

                                            Discussion

       Code § 18.2-371.1(B) states that any parent responsible for a child under the age of

eighteen “whose willful act or omission of care of such child was so gross, wanton and culpable

as to show a reckless disregard for human life” is guilty of felony child neglect.

               “Willful” 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).

The requirement that an act be willful does not mean that the Commonwealth must prove the

parent or caregiver intended to injure the child. Collado v. Commonwealth, 33 Va. App. 356,

366, 533 S.E.2d 625, 630 (2000). The term “gross, wanton and culpable as to show a reckless

disregard for human life” describes conduct. Cable v. Commonwealth, 243 Va. 236, 240, 415

S.E.2d 218, 220 (1992) (describing the meaning of the phrase in the context of the involuntary

manslaughter statute). The word “gross” means “aggravated or increased negligence” and

“culpable” means “deserving of blame.” Id. A defendant’s negligence is criminal negligence

when “accompanied by acts of commission or omission of a wanton or willful nature, showing a


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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

that the offender knows, or is charged with the knowledge of, the probable results of his acts.”

Id. (citation omitted).

        In Barrett v. Commonwealth, 41 Va. App. 377, 400-01, 585 S.E.2d 355, 367 (2003), we

affirmed a conviction where the defendant left her children unattended. While Barrett napped

following a night of drinking, she left her two-year-old daughter and ten-month-old son

unsupervised. During Barrett’s nap, the two year old drowned the ten month old in the bathtub.

The evidence proved that Barrett was aware of the potential and likely dangers resulting from her

conduct. Barrett knew her two year old enjoyed playing in the bathtub, and had sufficient

strength to turn on the hot water and to lift her younger brother into the bathtub, and had

previously behaved aggressively towards her brother. The Court found that “the evidence amply

supported the determination that Barrett willfully, wantonly, and culpably created a situation in

her home that exposed [her child] to injury and/or risk of death. By doing so, Barrett

demonstrated a reckless and wanton disregard for [the child’s] life and health.” Id.

        The evidence proved that appellant showed utter disregard for the safety and well-being

of her children by leaving them unsupervised for several days and nights, thereby exposing them

to injury and risk of harm or death. The notes she wrote her children indicate that she

understood the risks associated with leaving children unsupervised for such a long period of

time. She warned them to come home from school together and to lock the door. She warned

them not to answer the telephone until confirming with Caller ID that it was a call from an

acceptable number. Appellant showed reckless and wanton disregard for her children’s health

and safety by leaving them to prepare foods requiring them to use the stove or microwave

without supervision, and by leaving an inadequate amount of food to comply with the menu and

                                                -4-
no way to restock the refrigerator while she was away. Appellant’s eight-year-old child said she

was scared every night that her mother was away. The notes indicated that the children could

only call their mother, appellant, with their concerns after appellant called them each night and

told them where she was staying. Consequently, the children had no way to contact their mother

if an emergency arose such as a fire, power outage, or if an intruder entered their home having

noticed the mailbox was “stuffed” and no one was picking up the mail. The children had no way

to contact their mother to ask what to do if they missed the school bus, or what to do if one or

both of them got injured, or what medicine to take if one or both of them got sick, or if they had

a medical emergency during the many days appellant was out-of-state. This inability to contact

their mother was underscored when Landry called every phone number appellant left with her

children and was unable to reach appellant.

       The fact finder believed the Commonwealth’s evidence. “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.” Sandoval v. Commonwealth, 20

Va. App. 133, 138, 455 S.E.2d 730, 732 (1995). The trial judge, acting as fact finder, said, “The

underlying act of leaving the kids for four days or a week or however long it was with no adult is

so egregious that it’s just not safe.” The trial judge continued,

               [I]t is a fact that Ms. Ascencio removed herself from the
               Commonwealth of Virginia for a period of a minimum of four
               days, left the children on their own, and the Court finds the
               conduct is a reckless and willful disregard for the lives of her
               children and that it’s not cured by the fact that she left the notes.

The Commonwealth’s evidence proved that appellant was the mother of her two young children,1

that she left her young children alone for several days and nights unsupervised and without


       1
         The eight-year-old child’s testimony coupled with circumstantial evidence contained in
certain Commonwealth’s exhibits, was sufficient to prove beyond a reasonable doubt that
appellant was the mother of the eleven-year-old child.
                                               -5-
adequate food, and that she left them to care for themselves and get themselves to school, all of

which constituted a “willful act or omission in the care” of the children and constituted criminal

negligence. The Commonwealth’s evidence was competent, was not inherently incredible, and

was sufficient to prove beyond a reasonable doubt that appellant committed two counts of felony

child neglect.

       For these reasons, appellant’s convictions are affirmed. However, a conviction under

Code § 18.2-371.1(B) is a Class 6 felony. Pursuant to Code § 18.2-10(f), a Class 6 felony is

punishable with a maximum prison term of up to 5 years. Consequently, we remand this matter

for the trial court to modify the sentences.

                                                                          Affirmed and remanded.




                                                -6-
Benton, J., dissenting.

       To sustain a conviction for violating Code § 18.2-371.1(B), the Commonwealth must

prove beyond a reasonable doubt “willful” conduct.

               “Willful” 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).

“As a general matter, when used in the criminal context, a ‘willful’ act is one undertaken with a

‘bad purpose.’” Bryan v. United States, 524 U.S. 184, 191 (1998). In other words, the evidence

must prove “the defendant acted with an evil-meaning mind.” Id. at 193.

       The evidence proved Marsha King Ascencio demonstrated grossly bad judgment in

leaving the children alone. She was a single parent who left the children alone while she was

working. She relied upon the maturity of children ages eleven and eight to follow her

instructions, care for themselves, and telephone her or a neighbor if they needed assistance.

       It is not enough, however, to conclude that Ascencio’s conduct was marked by a knowing

or understanding quality. “Most obviously [willful] differentiates between deliberate and

unwitting conduct, but in the criminal law it also typically refers to a culpable state of mind.” Id.

at 191. On the other hand, conduct that is knowing “does not necessarily have any reference to a

culpable state of mind or to knowledge of the law.” Id. at 192. Indeed, as we have noted,

“willful maltreatment of a child requires ‘something worse than good intentions coupled with

bad judgment.’” Ellis, 29 Va. App. at 556, 513 S.E.2d at 457 (citations omitted).

       I would hold that the evidence failed to prove Ascencio’s conduct was willful. Therefore,

I would reverse the felony convictions.


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