                    COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bumgardner and Frank
Argued at Richmond, Virginia


ANNA MARIE DOTSON
                                           MEMORANDUM OPINION * BY
v.   Record No. 1507-99-3                JUDGE JAMES W. BENTON, JR.
                                             SEPTEMBER 11, 2001
COMMONWEALTH OF VIRGINIA


         UPON A REMAND FROM THE SUPREME COURT OF VIRGINIA

            FROM THE CIRCUIT COURT OF BUCHANAN COUNTY
                    Keary R. Williams, Judge

          David L. Epling for appellant.

          Kathleen B. Martin, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     A jury convicted the appellant, Anna Marie Dotson, of

felonious abuse and neglect of her infant son in violation of Code

§ 18.2-371.1(A).    On appeal, appellant contends that the trial

judge erred in (1) ruling that Code § 18.2-371.1(A) did not

require the Commonwealth to prove that an omission or refusal to

provide care was willful, (2) refusing to instruct the jury that

acts of omission or refusal must be willful, (3) ruling that her

attorney could not argue to the jury that the Commonwealth was

required to prove that an omission or refusal to provide care was

willful, and (4) permitting the jury to consider evidence of


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
improper nourishment and a healed leg fracture concerning the

infant.    She also contends the evidence was insufficient to

support the verdict.    For the reasons that follow, we reverse the

conviction. 1

                                  I.

     The grand jury indicted appellant as follows:

                    Abuse and Neglect of Children

               On or about July 13, 1996, [appellant]
            did unlawfully and feloniously as a parent,
            guardian, or other person responsible for
            the care of . . . a child under the age of
            eighteen, the date of birth being 11-25-95,
            by willful act or omission or refusal to
            provide any necessary care for the child's
            health cause or permit serious injury to the
            life or health of such child.

               In violation of § 18.2-371.1 of the Code
            of Virginia (1950) as amended.

The grand jury indicted Michael Rell Dotson, the infant's

father, on the same charge.    The trial judge ruled that

appellant and Dotson would be tried together.

     At trial, the Commonwealth's evidence proved that, at the

time of the incident giving rise to this prosecution, appellant

and Dotson lived together for two or three years but were not

married.   Appellant and Dotson had two children who were born

during their relationship, a girl, age twenty-two months, and a


     1
       The Court of Appeals issued a memorandum opinion in this
appeal on July 5, 2000. Following the Commonwealth's appeal to
the Supreme Court, the Supreme Court remanded the appeal, by
order of June 8, 2001, to this Court for reconsideration.


                                - 2 -
boy, age seven months.   Dotson also had a teenage daughter, who

lived with Dotson's parents.   The indictment concerned the baby

boy.

       On the morning of July 13, 1996, appellant had arranged for

Dotson's daughter, who was then seventeen, to babysit appellant's

and Dotson's baby boy.    The teenager testified that she had been

frequently babysitting the baby "since he was born" and that on

this morning she noticed a small bruise under the baby's eye.    She

also testified that on several occasions when appellant and Dotson

were not present in the room, she had seen their

twenty-two-month-old girl pinch and slap the baby and throw

bottles at him.   The teenager further testified that the baby had

been experiencing problems with food that caused him to "belch

back up [his milk] when you burped him."

       The teenager testified that when she arrived in her car to

get the baby, Dotson was not at home.    She assisted appellant in

preparing the baby to go home with her, and she carried the baby

to the car in his infant car carrier seat.    The teenager testified

that after she left appellant's home, she was driving faster than

she should have been.    When she entered a curve in the road, she

saw a car stopped in the middle of the road and "had to slam on

[her] brakes" to avoid a collision.     The teenager testified that

when she applied the brakes rapidly, she "heard it go thump."    The

baby "fell out of the car seat and the car seat fell on top of him



                                - 3 -
because [she] neglected to put [the baby] in . . . the seat, the

way it's supposed to be."

     After the teenager admitted during her direct examination

that she had not related this incident when she testified at the

preliminary hearing, the trial judge informed her out of the

jury's presence that she would likely be prosecuted for perjury.

She responded to the judge that she was now being truthful.    She

said she had not testified about the accident at the preliminary

hearing because she "was scared [and] . . . didn't want [her]

grandparents and [her] father [to know what happened]."   She said:

"I knew they would be mad at me.   I was scared."   When the jury

returned, the trial judge instructed the jury that the

Commonwealth was entitled to prove the teenager had made a prior

inconsistent statement but that the jury could only use proof of

the prior inconsistent testimony "for purpose of contradicting

this witness."

     The teenager then testified that on a prior occasion she said

she had driven slowly from appellant's residence and arrived home

without incident.   She explained that she had lied at the

preliminary hearing because she "didn't want [her] grandparents to

know what [she] had done [and] . . . didn't want [her] father to

know because they would be mad at [her] and they wouldn't let

[her] have anything to do with [the baby] any more."   She

testified that she "didn't think that anything was going to go

this far . . . [and] didn't think that it would go further than

                               - 4 -
little court."   She further testified that she "was trying to

protect [her]self."

     The teenager testified that instead of putting the infant

carrier on the back seat, she had placed it on the front seat of

the car so that the baby "could look out the window . . . [while

she] was driving."    She could not strap the carrier on the front

seat and had not secured either the baby or the seat properly.

Thus, when she slammed on the brakes, the carrier seat had fallen

onto the baby.   Aware that the baby "was crying and screaming when

he was in the floorboard" and was red in the face, the teenager

"panicked."   She continued to drive "up the road a little bit"

before stopping and putting the infant carrier seat on the back

seat of the car.   She then gave the baby a bottle and tried to

calm him before continuing home.

     Dotson's sister-in-law testified that she received a

telephone call from the teenager, her niece, and told the teenager

to bring the baby to her house.    When they arrived, the teenager's

aunt immediately noticed that the baby was bruised and his arm was

injured.   The aunt believed the baby's arm, which was red and

swollen, may have been broken, and she called the baby's

pediatrician, Dr. Ranje Patel.    He directed her to take the baby

to the hospital emergency room.    She testified that she has never

seen appellant or Dotson hit their children.

     The triage nurse who examined the baby in the emergency room

testified that she saw multiple bruises on the baby's face, a

                                 - 5 -
healed scab under his left eye, and bruises on his back and both

legs.    The baby's left arm was swollen and deformed.   Whenever she

touched or moved the arm, the baby cried.    She testified that the

healed wound on the face could have been caused by a fingernail.

Although she testified that the color of the bruises on the baby's

back and legs indicated they occurred at different times, she

admitted that the color of a bruise does not always indicate age

but may depend upon how hard an area is hit and how much blood

comes to the area.    She testified further that bruises "over bony

prominences are usually darker than [bruises] over a fatty area."

The nursing supervisor also testified that she saw bruises of

different colors on the baby's body.

        Dr. Sabry Radawi examined the baby and saw bruises all over

his body and around his eyes.    Some of the bruises appeared to be

recent and others appeared older.    He testified that the

appearance of a bruise may vary because of the strength of a blow

or the location on the body.    Dr. Radawi also testified that if a

person, who is falling or involved in an accident, brings his

hands to the front of his face and receives a sudden blow, the

impact of hands into the face could cause "raccoon" eyes, the type

of injury that the child had.    After he viewed x-rays of the

child's facial bones, skull, and left arm, Dr. Radawi diagnosed a

fracture of the upper left arm.    At his direction, the hospital

personnel contacted the Department of Social Services and

transferred the baby to a hospital in Roanoke.

                                 - 6 -
     In Roanoke, Dr. Hugh Johnson Hagan, an orthopedic surgeon,

reviewed the x-ray and ordered an x-ray of the baby's major long

bones.   The x-ray revealed a fracture in the baby's left leg,

which was in the process of healing.   Dr. Hagan testified that the

fracture most likely had occurred within one or two months and

most likely had resulted from a direct blow to the bone.   He

further testified, however, that without knowing anything else

except the existence of the break, it would be guesswork to say

when and how it happened.

     Dr. Donald Keys, a pediatrician, examined the baby two days

after he was admitted to the hospital.   Dr. Keys testified that

"getting into the ages of bruises" from coloration "is a little

bit difficult to say . . . [or] to be specific about."    Dr. Keys

testified that it is generally accepted that color indicates

different onset; however, he could not "say whether [the baby's

bruises] all occurred on the same day or whether they occurred

several days apart."   He testified that "[t]hey could have

potentially all occurred on the same date" and could have occurred

on the day the baby was taken to the hospital.   Dr. Keys also

testified that the baby's leg fracture was more than six weeks old

and could have occurred at anytime after the baby's birth.    He

further testified that the x-ray indicated that another break in

the leg had healed itself.   He agreed that because the

seven-month-old baby was not putting weight on his legs, the

fracture might only manifest itself by the baby occasionally

                               - 7 -
becoming "irritable and fussy."   He testified that the break in

the baby's arm "was a very recent break."

     Dr. Keys also testified that the baby was "very underweight."

He weighed eleven pounds when admitted to the hospital and gained

ten ounces during his four-day stay.   Although Dr. Keys had not

reported evidence of dehydration, he testified that two and

one-half percent dehydration would not be detected during a

physical examination.   Dr. Keys agreed that if the baby was

dehydrated two and one-half percent and rehydrated while in the

hospital, the baby's weight gain would be about ten ounces.

     Dr. Keys testified that, although the baby had been premature

at birth, "at seven and a-half months [the baby] should have had a

lot more fat and been heavier."   Based on a growth chart and his

examination of the baby's records, Dr. Keys testified that the

baby initially "made nice progress" but then "flat-lined," which

meant the baby did not grow, between five and seven months.     He

testified that the baby's pattern was "definitely abnormal" and

indicated that the baby "didn't receive adequate nourishment

during [the] time period [when he flat-lined]."    He opined that

the bruises, broken bones, and lack of weight gain indicated "that

[the baby] has been abused and there's no other explanation for

that."

     Dr. Keys testified that the lab reports which were done for

anemia and total protein were within normal limits except "[t]he

albumin was below the range of normal intake."    Although he

                               - 8 -
testified that the baby suffered from malnourishment or

malnutrition, he testified that those terms simply mean that there

is faulty nutrition.   On cross-examination, he further testified

as follows:

           It just sounds like what you're asking is,
           if you give diluted formula, does the baby
           grow well? The answer to that is no and
           that's true; however, for the first five and
           a-half months this baby grew appropriately,
           so that tells me the baby got the proper
           amount, the proper dilution, and then at
           five months something changed. I don't know
           what that something was. You're supposing,
           and I have no knowledge of this, that she
           started changing the way she prepared the
           formula; that is a possibility; that's all I
           can say. . . . I couldn't say . . . It
           could have resulted from lack of knowledge.

He testified, however, that most parents by the time they have a

second child are more familiar with feeding and what is proper

feeding.

     The Commonwealth proved that two deputies from the

sheriff's department and two employees of the county's social

services department met with appellant and Dotson at their

residence the same afternoon the baby was taken to the hospital.

They informed appellant and Dotson that they were investigating

a complaint of child abuse and had taken custody of the baby.

Appellant "became upset."   Both parents "were surprised" to

learn the baby had been taken to the hospital and said they did

not know how the baby's arm could have been broken.    When asked

if the baby had any injuries, appellant said the older child had


                               - 9 -
hit the baby two days earlier with the baby's feeder, causing a

bruise under the baby's eye.    Appellant said the older child

"appeared to be jealous" and tried to hit the baby if appellant

held the baby during feeding.

     During the interview, appellant and Dotson also "stated

that they frequently fight and hit on each other."   Appellant

said they sometimes fought because Dotson did not believe the

baby was his.   Appellant also said she was afraid of Dotson and

that the beating and fighting had occurred "ever since they had

been together."   Both appellant and Dotson "indicated that they

were aware that [the older child] was watching them fighting and

then that [the older child] was going to the crib and climbing

in and hitting on [the baby]."    Appellant also said that when

she was doing housework the older child would climb in the crib

and hit the baby.   The social worker testified that the older

child appeared healthy and seemed to be "on target

developmentally."   A social worker testified that appellant and

Dotson received public food assistance and Medicaid for their

children.

     After the Commonwealth presented its case-in-chief, the

trial judge overruled motions to strike the evidence.   Dr. Ranje

Patel, the baby's pediatrician, then testified for the defense.

Dr. Patel testified that he had seen the baby six times prior to

July 13 and had treated the baby on July 9 for congestion and

coughing.   He thoroughly examined the baby on July 9 and saw no

                                - 10 -
bruises on the child.    Dr. Patel testified that he saw no broken

bones or other injuries during the seven months he treated the

baby.    Although he said that a minor fracture in a baby's bone

could remain undetected unless there are symptoms, he testified

that he performed thorough examinations of the baby and saw no

bruises and detected no broken bones.    He testified that during

the course of his treatments he had no need to order x-rays of

the baby.

        Dr. Patel also testified that appellant had raised issues

with him concerning feeding the baby, that he had continuously

discussed feeding issues with appellant, and that he advised her

how to properly feed the baby.    He testified that there was a

"problem ongoing from day one, the speaking about the [baby's]

formulas," and that he addressed the issue of proper feeding

during most of the baby's visits.    Appellant offered no other

witnesses.

        At the conclusion of the evidence, the trial judge again

overruled motions to strike the evidence.    Appellant tendered a

jury instruction defining "willful" as "an act or omission done

with bad purpose, without justifiable excuse and without ground

for believing it is lawful."    When the Commonwealth objected

that Code § 18.2-371.1(A) did not require proof that an omission

or refusal be willful, appellant argued that willful modified

act and omission.    The trial judge refused the instruction and

ruled that neither the omission nor the refusal to provide care

                                - 11 -
had to be willful.   The judge also instructed appellant's

attorney that he could not argue to the jury that an omission or

refusal to provide care must be willful.   This appeal followed

from the jury's verdict convicting appellant of "Abuse and

Neglect of Children by Willful Act or Omission or Refusal to

Provide Necessary Care, Causing or Permitting Serious Injury as

charged."

                                 II.

     Appellant contends the trial judge erred in ruling that

Code § 18.2-371.1(A) did not require the Commonwealth to prove

omissions or refusals of care were willful, in refusing to

instruct the jury as to the definition of willful, and by

forbidding appellant's attorney to tell the jury that an

omission or refusal of care must have been willful.   The

Commonwealth argues that the trial judge's rulings are not

reversible error because they did not prejudice appellant.

     In pertinent part, the child abuse and neglect statute,

which is charged in the indictment, provides as follows:

               A. Any parent, guardian, or other person
            responsible for the care of a child under
            the age of eighteen 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
            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, (vi) forced


                               - 12 -
           ingestion of dangerous substances, or (vii)
           life-threatening internal injuries.

              B. Any parent, guardian, or other person
           responsible for the care of a child under
           the age of eighteen 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.

Code § 18.2-371.1 (emphasis added).

     The statute explicitly contains the disjunctive elements of

"willful act or omission or refusal to provide any necessary

care."   Id.   We would strain the meaning of the statute to read

it to require a "willful act" but an "omission" or "refusal"

that was not willful.    In Ellis v. Commonwealth, 29 Va. App.

548, 513 S.E.2d 453 (1999), we addressed the requirements of

proof to establish a violation under Code § 18.2-371.1.   We held

that "something more than negligence must be proved beyond a

reasonable doubt to support [the] conviction" under the statute.

Id. at 555, 513 S.E.2d at 457.    The ordinary definition of the

statutory element, "omission," means "[a] failure to do

something; esp., a neglect of duty."    Black's Law Dictionary

1116 (7th ed. 1999).    In addition, although a refusal is an

intentional act, it is not necessarily a willful act.    Refusal

is defined to mean a "rejection of something demanded."

Webster's Third New International Dictionary 1910 (1981).

     In Ellis, we held that a negligence standard was

insufficient to support a conviction under the statute.   We also


                               - 13 -
noted that "inattention and inadvertance have not been

heretofore equated with actions taken willfully."   29 Va. App.

at 556, 513 S.E.2d at 457.

           "Willful" generally means an act done with a
           bad purpose, without justifiable excuse, or
           without ground for believing it is lawful.
           See Richardson v. Commonwealth, 21 Va. App.
           93, 99, 462 S.E.2d 120, 123 (1995). The
           term denotes "'an act which is intentional,
           or knowing, or voluntary, as distinguished
           from accidental.'" Snead v. Commonwealth,
           11 Va. App. 643, 646, 400 S.E.2d 806, 807
           (1991) (quoting United States v. Murdock,
           290 U.S. 389, 394, 54 S. Ct. 223, 78 L.Ed.
           381 (1933)). The terms "bad purpose" or
           "without justifiable excuse," while facially
           unspecific, necessarily imply knowledge that
           particular conduct will likely result in
           injury or illegality. See Murdock, 290 U.S.
           at 395-96, 54 S. Ct. 223.

Id. at 554, 513 S.E.2d at 456 (footnote omitted).

     Thus, we hold that to sustain a conviction under this

statute, the evidence must prove beyond a reasonable doubt a

"willful act or [willful] omission or [willful] refusal"

regarding the proscribed conduct.   This conclusion necessarily

follows from the application of ordinary grammatical principles

and the general rule that "proper grammatical effect will be

given to the arrangement of words in a sentence of a statute."

Harris v. Commonwealth, 142 Va. 620, 624, 128 S.E. 578, 579

(1925).   "We presume that when drafting this statute, the

legislature understood the basic rules of grammar."   Frere v.

Commonwealth, 19 Va. App. 460, 464, 452 S.E.2d 682, 685 (1995).

Moreover, even if there is a choice to be made in reading the

                              - 14 -
statute, the principle is well established that "[c]riminal

statutes are to be 'strictly construed against the Commonwealth

and in favor of [a] citizen's liberty' . . . [and] must be

construed so as to proscribe only conduct which the legislature

clearly intended to be within the statute's ambit."   King v.

Commonwealth, 6 Va. App. 351, 354-55, 368 S.E.2d 704, 706 (1988)

(citations omitted).

     The trial judge incorrectly ruled that the statute did not

require the Commonwealth to prove that acts of omission or

refusal of care were willful and, likewise, erred in barring

appellant's attorney from arguing to the jury that such proof

was required for conduct alleged to be an omission or a refusal

of care.   Because the judge's error lessened the conduct on

which the jury could convict, we cannot say that the error was

not prejudicial.   The defense's inability to argue fully

hindered its ability to suggest reasonable doubt and taints the

legitimacy of the jury's verdict.

     As a consequence of the judge's ruling on the statute's

meaning, he also refused to instruct the jury that "'Willful,'

in this case, means an act or omission done with bad purpose,

without justifiable excuse and without grounds for believing it

is lawful."   The instruction was a correct statement of the law.

See Ellis, 29 Va. App. at 554, 513 S.E.2d at 456 (citing

Richardson, 21 Va. App. at 99, 462 S.E.2d at 123).



                              - 15 -
     It is a well established, elementary principle, "that a

jury must be informed as to the essential elements of the

offense; a correct statement of the law is one of the essentials

of a fair trial."     Darnell v. Commonwealth, 6 Va. App. 485, 488,

370 S.E.2d 717, 719 (1988) (internal quotations and citation

omitted).   "Unless [the essential] elements [of an offense] are

defined by instructions . . . to . . . the jury . . . , they

cannot properly determine whether the Commonwealth has carried

its burden [to prove each essential element of the offense

beyond a reasonable doubt]."     Dowdy v. Commonwealth, 220 Va.

114, 116, 255 S.E.2d 506, 508 (1979).      Moreover, a hallmark of a

fair trial is that "'instructions . . . should inform the jury

as to the law of the case applicable to the facts in such a

manner that [the jury] may not be misled.'"       Cooper v.

Commonwealth, 2 Va. App. 497, 500, 345 S.E.2d 775, 777 (1986)

(citation omitted).

     The rejected instruction would have informed the jury of

the level of culpability required to convict appellant of the

offense.    Although the trial judge instructed the jury on the

meaning of "gross" and "culpable" conduct, which are elements of

the lesser-included offense, without further instruction, the

jury was left to predicate a conviction upon a finding of a mere

omission or a non-willful refusal.       The jury received no

instruction as to what type of acts were "willful."      "[W]hen a

principle of law is vital to a defendant in a criminal case, a

                                - 16 -
trial court has an affirmative duty properly to instruct a jury

about the matter."     Jimenez v. Commonwealth, 241 Va. 244, 250,

402 S.E.2d 678, 681 (1991).

     Because the jury, as instructed, could have convicted

appellant of an omission or refusal that was not willful, we

cannot say that the trial judge's errors did not prejudice

appellant.

                                 III.

     Appellant contends that the trial judge erred by failing to

strike the Commonwealth's evidence regarding malnourishment and

the healed fracture.    She argues that the evidence permitted the

jury to speculate as to causation.       The Commonwealth argues that

those circumstances were discovered after the baby was delivered

to the hospital and presented a jury issue.

     These issues were circumstances that the jury was entitled

to consider in weighing the evidence.      The principle is well

established that "[c]ircumstantial evidence is as competent and

is entitled to as much weight as direct evidence, provided it is

sufficiently convincing to exclude every reasonable hypothesis

except that of guilt."     Coleman v. Commonwealth, 226 Va. 31, 53,

307 S.E.2d 864, 876 (1983).    We find no error.

                                  IV.

     "Where the sufficiency of the evidence is challenged after

conviction, it is our duty to consider it in the light most

favorable to the Commonwealth and give it all reasonable

                                - 17 -
inferences fairly deducible therefrom."     Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).     As

constitutionally required by In re Winship, 397 U.S. 358 (1970),

"the critical inquiry on review of the sufficiency of the

evidence to support a criminal conviction . . . is 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."

Jackson v. Virginia, 443 U.S. 307, 318-19 (1979).

     So viewed, the evidence proved that on July 13, 1996, when

the significant bruising and injuries were first discovered on

the baby, he was in the presence and care of Dotson's teenage

daughter.   The teenager testified that, with the exception of a

small bruise on his face, the baby was normal when she arrived

at appellant's house and did not appear to have any injuries.

She further testified that before leaving appellant's house with

the baby in her car, she failed to secure the baby in the infant

carrier and she put the infant carrier on the front seat.     That

failure, she testified, resulted in the baby falling to the

floorboard of the car and being hit by the falling infant seat

after she sped along the highway, entered a curve, and slammed

on the brakes to avoid a stopped vehicle.

     The Commonwealth argues that the jury could have

disbelieved the teenager, the Commonwealth's witness, because

she admitted at trial that she had testified differently at the

                              - 18 -
preliminary hearing in order to avoid incurring the wrath of her

grandparents and her father for injuring the child.    We agree,

of course, that the jury, as "fact finder . . . may reject

testimony that has been impeached."     Doss v. Commonwealth, 23

Va. App. 679, 685, 479 S.E.2d 92, 95 (1996).    Even if we assume,

however, that the jury rejected this testimony, no evidence

otherwise explains the cause of the baby's broken arm and severe

bruising, which were evident when he was taken to the hospital

that same day by the teenager and her aunt.    Dr. Keys, a witness

for the Commonwealth, testified that the bruises "could have

potentially all occurred on the same date."    The jury would have

been left to speculate that the baby had those bruises when the

teenager drove away from appellant's home with the baby.

     The evidence clearly established that the baby's broken arm

was a very recent injury.   The baby's pediatrician testified

that he examined the baby on July 9, four days before he was

taken to the emergency room.   At that time, the baby was

congested and coughing.   He thoroughly examined the baby and

detected no bruises or broken bones.    Although the triage nurse

testified that four days later when she touched or moved the

baby's arm, the baby cried, the teenager never testified that

the baby cried when she was preparing to leave appellant's house

or putting the baby in the car.

     Even if we conclude that the jury disbelieved the baby's

pediatrician, the evidence in this record establishes that some

                               - 19 -
event likely occurred on July 13 that caused the teenager to

seek medical treatment for the baby.   If that event, however,

was not the one described by the teenager, in which the baby was

injured in the car, then the record clearly fails to establish a

cause for the baby's bruises and broken arm.   Simply put, except

for the teenager's testimony, the evidence does not otherwise

prove the circumstances in which the broken arm and bruising

occurred or who caused injury to the child.

             "[E]vidence is not sufficient to support
          a conviction if it engenders only a
          suspicion or even a probability of guilt.
          Conviction cannot rest upon conjecture. The
          evidence must be such that it excludes every
          reasonable hypothesis of innocence. The
          giving by the accused of an unclear or
          unreasonable or false explanation of his
          conduct or account of his doings are matters
          for the jury to consider, but they do not
          shift from the Commonwealth the ultimate
          burden of proving by the facts or the
          circumstances, or both, that beyond all
          reasonable doubt the defendant committed the
          crime charged against him."

Hyde v. Commonwealth, 217 Va. 950, 955, 234 S.E.2d 74, 78 (1977)

(citation omitted).   As the Supreme Court held in Christian v.

Commonwealth, 221 Va. 1078, 1083, 277 S.E.2d 205, 208 (1981),

"[w]hile the defendant's opportunity to injure her [child] and

certain other circumstances in this case may raise inferences

which 'create a suspicion of guilt . . . or even a probability

of guilt', we are of opinion the evidence is insufficient to

exclude a reasonable hypothesis that someone other than the

defendant was the criminal agent."

                              - 20 -
     The Commonwealth's evidence concerning the other claims of

abuse and neglect is similarly deficient.   The teenager

testified that when she was at the appellant's house preparing

to leave, she noticed a small bruise on the baby's face.     When

the social worker and the police arrived at appellant's house on

the afternoon of July 13, and informed appellant that the baby

had been injured, appellant informed them that the only injury

she was aware of was a small bruise on the baby's cheek that

occurred when her twenty-two-month-old child had hit the baby

two days earlier with the baby's feeder.    Even if the jury

disbelieved that explanation for the bruise on the child's

cheek, no evidence proved that it was caused by appellant's

willful conduct.

     When the baby was examined in the hospital, an x-ray showed

that the baby had a healed fracture in a bone in his left leg.

The doctor testified that the fracture was at least six weeks

old and could have occurred anytime from the baby's premature

birth until six weeks prior to the examination.   He also

testified that, because the seven-month-old baby was not bearing

weight on his leg, the fracture might only have been manifested

by the child being "irritable and fussy."   Another doctor

testified that "[c]hildren heal fractures very quickly" and that

it would be guesswork to say when and how it occurred merely by

viewing the x-ray.   The baby's pediatrician testified that the

baby had been his patient since December 1995 and that he had

                              - 21 -
examined the baby six times during regular office visits.    He

testified that he never saw bruises on the child and never

detected any broken bones; he found no reasons or indications

during his treatments to order x-rays to look for broken bones.

He testified that on July 9 when he examined the baby, the baby

"was essentially normal" and, except for a cold, the baby was

healthy.

     Dr. Keys testified that the growth chart he prepared showed

that the baby, who was born prematurely, made "nice progress"

until his fifth month.   No evidence tended to show that anyone

other than the appellant and Dotson were caring for the baby

during that period.    Dr. Keys testified that "from five months

to what we saw in the seven and a-half months, [the baby]

basically didn't grow; didn't gain any weight, so he

flat-lined."   He considered the lack of growth during that two

and a-half months "abnormal" and testified that "if [the baby]

was fed in the right way, he would gain weight."   The doctor

testified that he did not know the cause of the feeding problem

and that "[i]t could have resulted from a lack of knowledge" by

the parents.   In short, his testimony is consistent with proof

of faulty nutrition.

     The Commonwealth had the burden of proving each element of

the offense beyond a reasonable doubt.   The Commonwealth on

brief contends "[t]he jury reasonably could conclude, based on



                               - 22 -
all the evidence, that [appellant] was guilty of violating Code

§ 18.2-371.1(A)."

           "Suspicion of guilt, however strong, or even
           a probability of guilt, is insufficient to
           support a conviction." And, when the
           evidence is wholly circumstantial, as in
           this case, "all necessary circumstances
           proved must be consistent with guilt and
           inconsistent with innocence and exclude
           every reasonable hypothesis of innocence.
           The chain of necessary circumstances must be
           unbroken."

Rogers v. Commonwealth, 242 Va. 307, 317-18, 410 S.E.2d 621, 627

(1991) (citations omitted).

     Even if the judge had properly instructed the jury

concerning the Commonwealth's obligation to prove willful

conduct, the record, when viewed in the light most favorable to

the Commonwealth, failed to establish sufficient evidence from

which the jury could have found beyond a reasonable doubt that

appellant engaged in willful acts, or willful omissions, or

willful refusals to provide any necessary care for the baby's

health.   The jury could not have found without speculation that

appellant acted willfully.    Accordingly, we reverse the

conviction and dismiss the indictment.

                                     Reversed and dismissed.




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