                      COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Senior Judge Cole
Argued at Richmond, Virginia


BETHANY JANE MCBETH
                                         MEMORANDUM OPINION * BY
v.   Record No. 1096-98-2             JUDGE JERE M. H. WILLIS, JR.
                                              JUNE 29, 1999
COMMONWEALTH OF VIRGINIA


       FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
                    John W. Scott, Jr., Judge

          (Jeffrey Garth Edmunds, on brief), for
          appellant. Appellant submitting on brief.

          Marla Graff Decker, Assistant Attorney
          General (Mark L. Earley, Attorney General;
          Donald E. Jeffrey, III, Assistant Attorney
          General, on brief), for appellee.


     On appeal from her conviction of child neglect, in

violation of Code § 18.2-371.1(B), Bethany Jane McBeth contends

that the evidence was insufficient to support her conviction.

We agree and reverse the judgment of the trial court.

               On appeal, we review the evidence in
          the light most favorable to the
          Commonwealth, granting to it all reasonable
          inferences fairly deducible therefrom. The
          judgment of a trial court sitting without a
          jury is entitled to the same weight as a
          jury verdict and will not be set aside
          unless it plainly appears from the evidence
          that the judgment is plainly wrong or
          without evidence to support it.



    *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418

(1987).

     On February 7, 1997, a social worker brought Anthony

Hatcher, McBeth's son, to Dr. Pamela Mancini for treatment.     Dr.

Mancini testified that Anthony appeared unkempt and dehydrated

and that she observed several burns on his buttocks.   She could

not tell whether the injuries were actual burns or were

abrasions caused by the child's being struck by a cord or rope.

She testified that the wounds were serious, but not

life-threatening, and had occurred within two weeks prior to the

medical visit.   Anthony was admitted to the hospital for

treatment.   No evidence of dehydration, infection, or other

ailment was introduced at trial.   No evidence disclosed how

Social Services came to be involved in the case.

     Anthony's babysitter testified that the injury had occurred

on or about February 1, 1997, while Anthony was in her care.

Her twelve-year-old son had caused Anthony to sit on the

electric space heater, the dimensions of which matched the

pattern of his burns.   The babysitter phoned McBeth at work to

tell her of the injury, but no evidence disclosed that McBeth or

the babysitter discussed the severity of the burns.    McBeth

applied an ointment to the burns, but sought no medical care

because of the expense, the consequences of taking time off

work, and her fear that Social Services would become involved.



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     Code § 18.2-371.1(B) provides:

            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.

     The trial court found that:

                 Even if the acts of [McBeth] did not
            directly cause the injuries to her child,
            her frequent and continued usage of this
            baby-sitter given the continuous series of
            injuries or "accidents" that were sustained
            by her child while in the sitter's care were
            so willful, wanton and culpable as to show a
            reckless disregard for human life.

     McBeth admitted that Anthony spent a great deal of time at

the babysitter's home.   While the trial court examined the

cumulative effects of all the child's injuries, there was little

evidence as to which injuries (except the burns) had occurred in

the babysitter's home.   No evidence established that McBeth left

Anthony in the babysitter's care following his burns or that he

suffered significant other injuries, while in the babysitter's

care, either before or after the burns.

     The Commonwealth argues that McBeth's failure to obtain

proper medical attention for Anthony, following his burns,

supports her conviction.   We disagree.   Plainly, McBeth's

response to Anthony's serious injuries was negligent and highly

derelict.   However, she cannot be held to a level of

understanding beyond her education and experience.   The doctor


                                - 3 -
perceived a need for medical treatment.   There was no evidence

that a person of McBeth's education and experience should have

had the same perception.   The evidence established that

Anthony's injuries, though serious and painful, were not

life-threatening.   Under these circumstances, McBeth's approach

to Anthony's injuries was not "so gross, wanton or culpable as

to show a reckless disregard for human life."   Code

§ 18.2-371.1(B).

     The judgment of the trial court is reversed.

                                                           Reversed.




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