                               COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Humphreys and Senior Judge Coleman
Argued at Chesapeake, Virginia


JASON MICHAEL JONES
                                                              MEMORANDUM OPINION* BY
v.     Record No. 1670-03-1                                   JUDGE JAMES W. BENTON, JR.
                                                                  NOVEMBER 16, 2004
COMMONWEALTH OF VIRGINIA


                FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                                 Von L. Piersall, Judge

                 S. Jane Chittom (Felipita Athanas; Public Defender Commission, on
                 briefs), for appellant.

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


       The trial judge convicted Jason Michael Jones of maliciously wounding his mother and

of felony child neglect of his eight-year-old son. Jones appeals his conviction for felony child

neglect and contends the evidence was insufficient to prove his conduct was so “gross, wanton,

and culpable as to show a reckless disregard for human life,” as required by Code

§ 18.2-371.1(B)(1). We disagree and affirm the conviction.

                                                  I.

       Lori Ann Jones, Jones’s mother, had custody of Jones’s son, age eight, and her other

grandson, age six. In the early evening of October 25, 2002, Jones arrived at his mother’s home

with his teenage nephew and asked his mother if he could take his son and her other grandson to

visit a relative, promising to return them by 11 p.m. Jones’s mother refused his request because

the boys’ mother had planned to take the boys for haircuts and eyeglasses early the next

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
morning. Jones insisted that he be allowed to take the boys with him. After he was unable to

contact the boys’ mother and his mother denied his repeated requests to take the boys with him,

Jones became angry. Jones and his mother began yelling and hitting each other. Jones hit his

mother in the face and stomach with his fists. During the struggle, one of Jones’s punches

missed his mother and hit his son on the forehead. As Jones was hitting his mother, she fell onto

a couch. He continued to hit her until she fell to the floor, where she laid bleeding and

unconscious.

       As Jones and his nephew prepared to exit the house, Jones said his mother “got what she

deserved,” and he told his son, “don’t call the police.” He then left the two boys in the house

with his unconscious mother.

       Despite Jones’s directive, his son dialed 911 and sought assistance. It was then 8:37 p.m.

Police and an ambulance responded a few minutes later and took Jones’s mother to the hospital

where she was treated for a collapsed lung, two black eyes, and other injuries to her face. When

police interviewed her almost two weeks later, her eyes were still bruised and she needed

assistance sitting up in bed.

       The trial judge convicted Jones of felony child abuse.

                                                  II.

       Code § 18.2-371.1(B)(1) provides that “[a]ny parent, guardian, or other person

responsible for the care of a child under the age of 18 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.” Unlike Code § 18.2-371(A), which makes it a crime for “any

parent, guardian, or other person responsible for the care of a child” to willfully permit “serious

injury to the life or health of such child,” subsection (B)(1) of the statute “does not require that a

child actually suffer serious injury as a result of a defendant’s acts or omissions.”

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Commonwealth v. Duncan, 267 Va. 377, 385, 593 S.E.2d 210, 214 (2004). The structure of

subsection (B)(1), in particular, the absence of an injury requirement and the authorization of a

less severe punishment, “demonstrates a legislative intent to prohibit conduct that also has the

potential for endangering a child’s life.” Id. (emphasis added). Thus, as Duncan instructs, the

statutory element of “‘reckless disregard [for human life]’ can be shown by conduct that subjects

a child to a substantial risk of serious injury, as well as to a risk of death, because exposure to

either type of risk can endanger the child’s life.” 267 Va. at 385, 593 S.E.2d at 214.

       Jones contends the evidence failed to prove “he committed a willful act or omission in

the care of his son that was ‘so gross, wanton, and culpable as to show a reckless disregard’ for

the child’s life.” We disagree.

       To be “willful,” the proscribed 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.” Duncan, 267 Va. at 384-85, 593 S.E.2d at 214. This mens rea

requirement “contemplates an intentional, purposeful act or omission in the care of a child by

one responsible for such child’s care.” Id. In this case, the mens rea was established by

evidence proving Jones left the boys alone with their injured grandmother while instructing his

son not to call for help. He purposefully left his eight-year-old son to attend a seriously injured

and bleeding person. Furthermore, his directive demonstrated his lack of concern for the dangers

inherent in leaving an eight-year-old child to care for a seriously injured, unconscious adult at

nighttime. This evidence demonstrated a bad purpose that satisfies the statutory element of

willfulness.

       Focusing on the element of “gross, wanton, and culpable,” Jones correctly notes that the

express language of Code § 18.2-371.1(B) requires proof beyond simple negligence. “Gross,

wanton, and culpable” is the standard that elevates the conduct into the realm of criminal

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negligence. Conrad v. Commonwealth, 31 Va. App. 113, 120-21, 521 S.E.2d 321, 325 (1999).

See also Cable v. Commonwealth, 243 Va. 236, 240, 415 S.E.2d 218, 220 (1992) (interpreting

“gross, wanton, and culpable” in the context of involuntary manslaughter); Mosby v.

Commonwealth, 23 Va. App. 53, 59, 473 S.E.2d 732, 735 (1996) (holding that the imposition of

a criminal penalty must rest upon more than simple negligence).

       Jones argues, however, that Snow v. Commonwealth, 33 Va. App. 766, 774-75, 537

S.E.2d 6, 10-11 (2000), and Ellis v. Commonwealth, 29 Va. App. 548, 555, 513 S.E.2d 453, 457

(1999), support the proposition that to convict him under the felony child neglect statute the

evidence must prove (1) he knew he was exposing his son to a substantial risk of serious injury

and (2) a condition of actual endangerment existed.1 Jones argues further that any possible risk

was minimized because his son was resourceful enough to call 911, knew how to ask for help

from neighbors, and also knew how to feed and care for himself.

       A comparison of Ellis and Snow demonstrates how we have interpreted the statute’s

requirements. In Snow, the appellant was convicted of felony child neglect after driving an

automobile with four children in excess of one hundred miles per hour while police chased him.

Affirming Snow’s conviction, we held that Snow’s driving was a willful act of exposing the

children to substantial risk of injury and was a “dangerous or unlawful activity” that was “so

gross, wanton, and culpable as to show a reckless disregard for human life.” 33 Va. App. at 775,

537 S.E.2d at 10-11 (2000).

       In Ellis, the appellant lit a stove burner and then, forgetting the burner was on, left her

apartment with her two children sleeping inside. The burner started a fire that seriously injured

both children. 29 Va. App. at 551-52, 513 S.E.2d at 455. We reversed Ellis’s conviction


       1
         Jones does not argue, and we do not decide, the issues whether the statute requires proof
of subjective awareness of potential danger or whether a reasonable person knew or should have
known of the potential for danger or harm.
                                               -4-
because she was unaware of the danger when she left her apartment. She had not willfully

exposed her children to a substantial risk of injury within the meaning of the statute because no

“evidence support[ed] the conclusion that she acted with knowledge or consciousness that her

children would be injured as a likely result of her departure to visit a neighbor for a short period

of time.” Id. at 555, 513 S.E.2d at 456-57. Although Ellis was inattentive and negligent, her

inadvertent act “could not be equated with actions taken willfully, thus making them subject to

criminal penalty.” Id. at 556, 513 S.E.2d at 457.

       Jones is correct in asserting that in both Snow and Ellis the risks to the children had

materialized. In Snow, there was a substantial risk of an accident while driving at a high rate of

speed, while in Ellis, an actual injury resulted from the fire. We disagree with Jones’s assertion,

however, that, when he left the apartment, there was neither a risk to his son nor a consciousness

of the risk. Convicting Jones, the trial judge found as follows:

               [H]is actions were to leave two small children in a house alone
               with a woman who’s responsible for their care who he’d knocked
               unconscious and left bleeding on the floor. He’d told the children
               not to call for help and . . . there’s no evidence he made any
               provisions whatsoever for caring for these children; and here are
               two children in the middle of the night left in the house to tend to
               their own care for an indeterminate period. There was no telling
               how long they would be there alone and in what, what could
               happen to two little children left in the house alone.

       A reasonable fact finder could infer, based on common knowledge, that there were

inherent dangers in leaving the boy alone that night. See Duncan, 267 Va. at 386, 593 S.E.2d at

214 (noting that the fact finder could infer, by common knowledge, the dangers “inherent in the

situation”). That the risks had not yet materialized does not mean that those risks were absent.

Jones’s son had just witnessed the brutal beating of his grandmother, who was rendered

unconscious and unable to care for the two boys. When Jones ordered his son not to call police,

the son was then left alone to care for his six-year-old brother and his seriously injured


                                                 -5-
grandmother. Had he obeyed his father’s command, he would have been left to fend for himself,

his grandmother, and his brother through the night and until an adult arrived the next day.

          The fact that Jones’s son was not seriously injured and showed remarkable composure in

ignoring Jones’s directive to not seek help does not remove Jones’s conduct from the

prohibitions of the statute. The fact finder could reasonably conclude that the risks to an

eight-year-old boy left in these circumstances were compounded by the need to care for his badly

injured and unconscious grandmother. In addition to the obvious reasons a caregiver would not

leave an eight year old unattended in the nighttime (for example, the potential for fire, injury, or

accident), the boy was exposed to the potential of having to go out by himself in the night to get

help for his grandmother and, thereby, exposing himself to greater risks. As in Duncan, the

danger was inherent in the situation and could be inferred by common knowledge. The evidence

was sufficient to prove Jones willfully disregarded these dangers by telling his son not to call the

police.

          We hold, therefore, that the evidence was sufficient to prove beyond a reasonable doubt

that Jones willfully instructed his son not to seek help and willfully omitted to provide care when

he left his son alone to care for the six-year-old brother and his seriously injured grandmother

and further that this conduct “was so gross, wanton and culpable as to show a reckless disregard

for human life.” Code § 18.2-371.1(B)(1).

          For these reasons, we affirm Jones’s conviction.

                                                                                           Affirmed.




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