                                                                      COURT OF APPEALS OF VIRGINIA


              Present: Judges Petty, Alston and Russell
UNPUBLISHED


              Argued at Lexington, Virginia


              CHARLES WILMER, S/K/A
               CHARLES RONALD WILMER, II
                                                                                           MEMORANDUM OPINION BY
              v.            Record No. 0654-16-3                                           JUDGE ROSSIE D. ALSTON, JR.
                                                                                                 AUGUST 29, 2017
              COMMONWEALTH OF VIRGINIA


                                                 FROM THE CIRCUIT COURT OF THE CITY OF SALEM
                                                             Charles N. Dorsey, Judge

                                           Suzanne Moushegian (Moushegian Law, P.L.L.C., on brief), for
                                           appellant.

                                           Eugene Murphy, Senior Assistant Attorney General (Mark R.
                                           Herring, Attorney General, on brief), for appellee.


                            Charles Ronald Wilmer, II (appellant) appeals his two convictions for causing an act or

              omission, which rendered a child abused or neglected in violation of Code § 18.2-371. Appellant

              argues that the trial court erred in denying his motion to strike. Specifically, appellant argues

              that the evidence was insufficient to find that he “willfully contributed to, encouraged, created,

              caused or omitted a condition that rendered [his] children abused and neglected” because the

              Commonwealth failed to prove abuse and neglect as defined in Code § 16.1-228(1) and (5). We

              agree, and reverse the decision of the trial court.

                                                                              BACKGROUND

                            Appellant was originally indicted for felony child abuse and neglect pursuant to Code

              § 18.2-371.1. On December 4, 2014, prior to appellant’s bench trial, the trial court granted the


                                                                          
                            
                                Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Commonwealth’s motion to amend the charges to misdemeanor child neglect pursuant to Code

§ 18.2-371.

       The evidence presented at trial established that on April 8, 2014, Bobby Hall, a

maintenance worker at appellant’s apartment building, was changing filters and providing other

preventative maintenance around appellant’s building. When Hall arrived at appellant’s

apartment, he knocked but there was no response. After knocking a second time, Hall took out

his keys and shook them. He then entered the apartment and indicated that he was with the

maintenance staff, but still received no response.

       Upon entering the apartment, Hall smelled ammonia from cat urine but did not observe

any litter boxes. Hall saw a ferret in a cage, and noticed that there were only a few things in the

apartment. Hall then observed “a little boy, [wearing a diaper] behind [a] baby gate in the

den/bedroom” of the apartment. Hall stated that he “could tell the diaper was full [and that the

boy] looked about as white as [a] piece of paper.” He walked through the apartment and noticed

what appeared to be children’s bedrooms were “bare.” Hall also heard a dog that was “freaking

out, trying to eat his way through the closet.” Hall further testified that he then knocked on the

bedroom door but there was no response.

       Hall entered the master bedroom and saw a woman asleep. Hall testified that after

waking the woman, she “seemed pretty incoherent to what was going on.” Hall informed the

woman that the children in the apartment appeared to need attention, but the woman did not do

anything about it. Throughout the apartment, Hall counted eighteen cats, one ferret, and a “very

angry” dog. Significantly, Hall stated that appellant was not present on that day. On

cross-examination, Hall indicated that before April 8, 2014, there had been several complaints

due to the strong smell of ammonia emanating from the apartment.




                                                - 2 -
       Officer Lawrence Stump testified that upon approaching the apartment building he could

smell a strong cat urine odor coming from the building itself and that the smell got stronger as he

approached appellant’s apartment.

       Officer A.L. Gwin testified that, upon arriving at the apartment, he observed “a large

number of cats, extremely bad odor of cat urine, [and] a middle aged female alone by herself

with two small toddler aged children.”

       Melissa Cook, a family services specialist and child protective services investigator,

testified that she noticed the smell of cat urine before entering the apartment. When she walked

into the living room, there was a cage with a ferret. There were also multiple cats throughout the

apartment. Off of the living room was a bedroom with a little boy laying on a toddler bed with

no sheets, and wearing a sagged diaper. Down the hallway past the dining area and kitchen,

there was another bedroom, and then straight-ahead was a little girl’s bedroom. The little girl

was standing at a gate with a “sagging, urine soaked diaper.” Cook testified that appellant was

not home when she arrived, but indicated that the little girl’s mother was present. The little

boy’s mother later arrived at the apartment. Cook stated that she took both of the children into

custody due to the condition of the apartment and her concerns with the parental supervision.  

Upon requesting clothing for the children, the mothers were only able to provide Cook with the

clothing that the children had on when they left the home.

       When appellant followed up with Cook, appellant admitted that the urine smell was bad

and indicated that they were working to clean it up. Appellant also stated that the children

decided to put themselves down for a nap, and because they were napping, the little girl’s mother

napped as well. However, he did not know how the baby gates got up in front of the bedroom

doors. Appellant further testified that the mothers slept while he was at work because they

worked during the evenings, and it was not unusual for the gates to be put up to keep the children

                                               - 3 -
safe. Cook stated that appellant did not seem overly concerned with the fact that there were two

toddlers at home while the mothers slept.

       Appellant claimed ownership of sixteen of the cats, and explained to Cook that he

inherited them from his aunt who committed suicide and that he was using them to treat his

post-traumatic stress disorder. Appellant indicated, to one of the officers, that he was trying to

find homes for the cats, but that he did not want to give them to shelters because he was afraid

they would be killed. Appellant also told Cook that he, along with the children and their

mothers, had been locked out of their last apartment and that all of their furniture was still inside

their previous home. Cook further testified that appellant took care of the cats following the

children’s removal. On cross-examination, Cook indicated that other than the smell of the home,

the shelter was adequate and that her main concern was apparent lack of parental supervision of

the two children.

       After the Commonwealth rested its case, appellant moved to strike the evidence arguing

that the Commonwealth failed to prove that appellant contributed to, encouraged, caused an act,

omission or condition that rendered abuse and neglect. Specifically, appellant argued that there

was a lack of supervision by the children’s mothers and that the Commonwealth failed to prove

that appellant knew that the mother would sleep when there was only one parent in the

apartment. The trial court overruled appellant’s motion. Appellant rested his case without

presenting evidence, at which point he renewed his motion to strike. The trial court again

overruled his motion.

       Ultimately, the trial court found appellant guilty of both offenses, and sentenced appellant

to twelve months in jail on each of the two convictions, with all but ninety days suspended. This

appeal followed.




                                                - 4 -
                                              ANALYSIS

       “When ruling upon the sufficiency of the evidence, we grant the judgment of a trial court

sitting without a jury the same weight as a jury verdict and will not disturb that judgment on

appeal unless it is plainly wrong or without evidence to support it.” Ellis v. Commonwealth, 29

Va. App. 548, 554, 513 S.E.2d 453, 456 (1999). On appeal, we must view “the evidence and all

reasonable inferences flowing therefrom . . . in the light most favorable to the prevailing party in

the trial court.” Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). In

so doing, this Court “discards ‘the evidence of the accused in conflict with that of the

Commonwealth, and regard[s] as true all the credible evidence favorable to the

Commonwealth.’” Miller v. Commonwealth, 64 Va. App. 527, 536, 769 S.E.2d 706, 710 (2015)

(quoting DeAmicis v. Commonwealth, 31 Va. App. 437, 440, 524 S.E.2d 151, 152 (2000) (en

banc)). If sufficient evidence exists to support the convictions, “the reviewing appellate court

will not ‘substitute its own judgment for that of the trier of fact, even if its opinion might differ

from the conclusions reached by the [fact finder].’” Id. at 536-37, 769 S.E.2d at 710 (quoting

Jordan v. Commonwealth, 286 Va. 153, 156-57, 747 S.E.2d 799, 800 (2013)). However, an

appellate court may reverse the judgment of the trial court “if the judgment ‘is plainly wrong or

without evidence to support it.’” Coomer v. Commonwealth, 67 Va. App. 537, 545, 797 S.E.2d

787, 790 (2017) (quoting Crawford v. Commonwealth, 281 Va. 84, 112, 704 S.E.2d 107, 123

(2011)).

       Appellant challenges his misdemeanor convictions under Code § 18.2-371, contending

that the evidence was insufficient to prove his actions constituted a “willful” act or omission, as

that term has been interpreted under Virginia law. In finding appellant guilty, the trial court

focused primarily on the theory that the abuse or neglect fell within the definition provided in

Code § 16.1-228(1) and (5).

                                                 - 5 -
              Criminally culpable child abuse or neglect is particularly defined in Code § 18.2-371,

which states, in relevant part:

                             Any person 18 years of age or older, including the parent of any
                             child, who (i) willfully contributes to, encourages, or causes any
                             act, omission, or condition that renders a child delinquent, in need
                             of services, in need of supervision, or abused or neglected as
                             defined in [Code] § 16.1-228 . . . is guilty of a Class 1
                             misdemeanor.

(Emphasis added). Per Code § 16.1-228(1), “abused or neglected child” includes a child

“[w]hose parents or other person responsible for his care creates or inflicts, threatens to create or

inflict, or allows to be created or inflicted upon such child a physical or mental injury by other

than accidental means.” (Emphases added). Code § 16.1-228(5) refers to a child “[w]ho is

without parental care or guardianship caused by the unreasonable absence or the mental or

physical incapacity of the child’s parent [or] guardian.” 1

              Appellant argues that the Commonwealth failed to prove that he “willfully” acted in a

way that constituted child abuse or neglect. “To be willful, 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.’” Jones v. Commonwealth, 272 Va. 692,

699, 636 S.E.2d 403, 406 (2006) (quoting Commonwealth v. Duncan, 267 Va. 377, 384, 593

S.E.2d 210, 214 (2004)). In child abuse cases, “willful” means “an intentional, purposeful act or

omission in the care of a child by one responsible for such child’s care.” Duncan, 267 Va. at

385, 593 S.E.2d at 215.




                                                            
              1
         Parental care “is quite simply the care provided by a parent to his or her child.” Miller,
64 Va. App. at 538, 769 S.E.2d at 711; see also Wood v. Commonwealth, 57 Va. App. 286,
300-01, 701 S.E.2d 810, 817 (2010) (recognizing that the level of care needed depends upon the
degree of vulnerability of the child and that “mature judgment” is “necessary for parents of small
children”).
                                                - 6 -
              Determining whether an act is willful under the statute is decided on a case‐by‐case basis,

Miller, 64 Va. App. at 544, 769 S.E.2d at 714 (citing Carosi v. Commonwealth, 280 Va. 545,

556, 701 S.E.2d 441, 447 (2010)), and on appeal we consider “the gravity and character of the

possible risks of harm; the degree of accessibility of the parent; the length of time of

abandonment; the age and maturity of the children; [and] the protective measures, if any, taken

by the parent,” id. (quoting Barnes v. Commonwealth, 47 Va. App. 105, 113, 622 S.E.2d 278,

282 (2005)). Under the circumstances in this case, willfulness is analogous to criminal

negligence which

                             is established by showing that the defendant’s acts or omissions
                             were “of a wanton or willful character . . . show[ing] 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 [her]
                             acts.”

Carosi, 280 Va. at 556, 701 S.E.2d at 447 (quoting Brown v. Commonwealth, 278 Va. 523,

528-29, 685 S.E.2d 43, 46 (2009)). Ultimately, the consideration is one in which we look at the

totality of the evidence presented. See Coomer, 67 Va. App. at 547, 797 S.E.2d at 792.

              Here, appellant relies on Ellis v. Commonwealth, 29 Va. App. 548, 513 S.E.2d 453

(1999),2 arguing that mere negligence alone is insufficient to prove criminal abuse or neglect

under the statute. In Ellis, we defined “bad purpose,” stating:

                             While appellant, without question, purposefully and intentionally
                             left her apartment to visit a friend in another residential building,
                             the intent which is relevant to our determination of “bad purpose”
                             does not relate simply to why she left the apartment. Rather, it
                             relates to the degree to which she was aware of the danger when
                             leaving her children unattended.




                                                            
              2
        In Ellis, appellant was convicted of child neglect under Code § 18.2-371.1(A). 29
Va. App. at 551, 513 S.E.2d at 454.
                                               - 7 -
29 Va. App. at 555, 513 S.E.2d at 456-57 (emphasis added). We also stated that “inattention and

inadvertence have not been heretofore equated with actions taken willfully, thus making them

subject to criminal penalty.” Id. at 556, 513 S.E.2d at 457. In Ellis, the mother left her children

unattended in her apartment and walked to a friend’s apartment building nearby. Id. at 552, 513

S.E.2d at 455. Shortly after leaving, a fire started in mother’s apartment. Id. Both children

required emergency care. Id.

              Despite the actions or inactions taken by the mother, this Court found that there was no

evidence proving that she did so with an intent to injure, nor was there evidence to support the

conclusion that she acted with knowledge or consciousness that her children were likely to be

injured. Id. at 555, 513 S.E.2d at 457. We noted that while the mother was negligent in

forgetting to turn off the gas burner after lighting a cigarette and in not checking that the smoke

detectors were functioning properly, “something more than negligence must be proved beyond a

reasonable doubt to support [mother’s] conviction.” Id.

              Here, in critical discernment of the factual circumstances of this case, and viewing the

evidence as a whole in the light most favorable to the Commonwealth, we cannot conclude that

appellant created or inflicted a physical or mental injury upon the children,3 see Code

§ 16.1-228(1), nor can we say that appellant caused the children to be without care by an

unreasonable absence, see Code § 16.1-228(5). Code § 16.1-228(1) provides that the statute

covers abuse and neglect by “parents or other person[s] responsible for his care.” (Emphasis

added). Thus, both, or either of the mothers independently, were responsible for the children’s

care during the time that appellant left the children with them. While the statutory responsibility



                                                            
              3
          The alleged violation of Code § 16.1-228(1) was not established in this case because
there was no evidence that the children suffered any injury. While the Commonwealth
references the “flat affect” as the mental injury, we find no evidence causally linking the flat
affect of the children to any act or omission of appellant.
                                                 - 8 -
of the mothers does not absolve appellant of all obligations, appellant’s actions herein simply do

not rise to the level of criminal culpability.

              Furthermore, neither of the children was injured or harmed in this case. Thus, the mere

possibility that the children could have been harmed does not meet the evidentiary threshold

necessary to prove child abuse and neglect under Code § 18.2-371. Here, the Commonwealth

provided no evidence that appellant had any knowledge of the mothers leaving, or being absent

or asleep at the same time. Nor is there any evidence that appellant knew the conditions of the

apartment could harm his children to the extent necessary under the statute. Significantly, there

is no evidence that appellant acted with an intent, circumstantially or otherwise, to injure his

children. See Ellis, 29 Va. App. at 555, 513 S.E.2d at 457. While the condition of the apartment

and the lack of supervision may have presented a mere possibility of harm, the children were,

nonetheless, placed in the care of their mothers while appellant worked.

              In this case, even under our highly deferential standard, any absence of supervision of the

children cannot be attributed to appellant. The children’s mothers were tasked with supervising

the children while appellant worked.4 As such, given that appellant placed the children in the

care of both mothers, appellant did not have the mens rea necessary to prove that he acted

willfully or with “reckless or indifferent disregard” for his children. See Carosi, 280 Va. at 556,

701 S.E.2d at 447 (quoting Brown, 278 Va. at 528-29, 685 S.E.2d at 46).

              As such, we cannot find that appellant’s conduct was willful. For these reasons, we

reverse the trial court.

                                                                           Reversed and final judgment.




                                                            
              4
         But cf. Duncan, 267 Va. at 385, 593 S.E.2d at 215 (reinstating appellant’s conviction
where the evidence showed that appellant left his infant son for several hours with people he
barely knew).
                                              - 9 -
