                               COURT OF APPEALS OF VIRGINIA

Present: Judges Kelsey, Petty and Senior Judge Willis
Argued at Chesapeake, Virginia

BRANDON CARTER, S/K/A
 BRANDON LEE CARTER
                                                                 MEMORANDUM OPINION * BY
v.               Record No. 2235-07-1                             JUDGE D. ARTHUR KELSEY
                                                                      OCTOBER 7, 2008
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                             Edward W. Hanson, Jr., Judge

               James D. Garrett (Barnes & Garrett, PC, on brief), for appellant.

               Rosemary V. Bourne, Assistant Attorney General (Robert F.
               McDonnell, Attorney General, on brief), for appellee.



       The trial court convicted Brandon Carter of abuse and neglect of a child in violation of

Code § 18.2-371.1(A). On appeal, Carter argues that the evidence failed to prove he willfully

abused or neglected the child and, at any rate, did not establish that he had any responsibility for

the care of the child. Finding the evidence sufficient to demonstrate Carter’s guilt, we affirm his

conviction.

                                                  I.

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

Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). This principle

requires us to “discard the evidence of the accused in conflict with that of the Commonwealth,

and regard as true all the credible evidence favorable to the Commonwealth and all fair

inferences to be drawn therefrom.” Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755,

759 (1980) (emphasis and citation omitted).

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       The evidence at trial showed that Carter shared a home with his girlfriend, Krystallynn

Magno, and two other housemates. All were members of the armed services. Magno went to

work and left her five-month-old son in Carter’s care. When the baby vomited on himself,

Carter placed him in the kitchen sink. Using the sink sprayer, Carter hosed the child down with

scalding water. A later investigation estimated the water temperature to be 150 degrees

Fahrenheit. The baby screamed as his face turned “red” and “slimy” as the skin immediately

began to burn. Within minutes, skin on the baby’s chest began to come off his body.

       Carter called Magno at work. He stated that he accidentally burned the child with a “hot

rag,” never mentioning the sprayer. Carter said the child’s upper lip was burned, but did not say

anything about the skin burned off the child’s chest. Magno asked if the burn was “bad.” “No,”

Carter replied. Carter then told her he would apply Vaseline to the burn. 1 Magno testified she

was not worried about the child’s condition because Carter “said it’s not that serious. It’s not

that bad.”

       When Magno left work about six hours later and saw the baby, she fell to the ground in

disbelief, crying: “My God. What happened? What did you do? I thought you said it wasn’t

that bad.” The baby’s face was red and slimy, his chest was losing the top layer of skin, and his

left eye was almost swollen shut. The child looked “scary,” Magno testified. Carter told Magno

he did not want “social services to get involved.” “We’re going to get in trouble,” Carter

explained, and he did not “want to get in trouble with the Navy too.”

       Carter slept with the baby that night after Magno fell asleep on a couch. The baby

whimpered throughout the night. The next morning, after being slathered the day before with

Vaseline, the burns looked worse. Fearing that a daycare provider might contact the authorities,



       1
         Carter claimed he made this decision based upon advice he received over the phone
from his mother and from one of the other residents still in the home at the time.

                                                -2-
Magno went to work and again left the baby in Carter’s care. Sometime during the day Magno

had a change of heart and returned home to take the baby to a hospital emergency room. The

police became involved as soon as the hospital staff saw the condition of the child. During an

interview with investigators, Carter admitted he and Magno decided not to take the child to the

hospital earlier because they feared the police and social services personnel would investigate the

incident.

       A child abuse pediatrician testified at trial as an expert medical witness. She explained

that the baby had second-degree burns on his face and second to third-degree burns on his chest.

The expert noted that the investigation revealed the water temperature to be about 150 degrees

Fahrenheit, and that was “consistent with the injuries” sustained by the child. At that

temperature, the burn would have been “[n]early instantaneous.” There would have been

“immediate blisters and immediate screaming.” Given the severity of the burns, the expert

explained, the seriousness of the situation would have been immediately apparent to Carter.

       Because the burns would have caused “instantaneous” blistering, the expert testified, it

would have been “obvious that they require medical treatment.” Delaying medical treatment

created “a very high risk of infection, of scarring and also of pain.” “In any child who has this

severe burn, the risk could be morbidity and mortality, severe illness and/or death,” the expert

stated. The expert also pointed out that Vaseline “actually hold[s] the heat in” and thus “worsens

the burn.” 2 The expert added that the child “would have been in pain throughout the day” and

anyone caring for the child would have known that.




       2
          When asked at trial if there was “any medical care” he intended to give the child, Carter
stated: “I told [Magno] I was going to put Vaseline on him, you know.” Carter also admitted
that, the next day, the child’s burns “look[ed] like they had gotten . . . worse than what they were
the day before.”

                                                -3-
       The trial court denied Carter’s motion to strike the evidence and found him guilty of

abuse and neglect under Code § 18.2-371.1(A). Though no evidence suggested Carter intended

to scald the baby, the court reasoned, Carter nonetheless was responsible for the care of the child

and willfully failed to obtain needed medical care because of the “fear of involving the police

and child protective services” in the situation.

                                                   II.

                                 SUFFICIENCY OF THE EVIDENCE:
                             WILLFUL NEGLECT & CAREGIVER STATUS

       On appeal, Carter challenges the sufficiency of the evidence supporting two aspects of his

conviction. He claims no evidence demonstrated he willfully neglected the child’s medical needs

or that he was responsible for the child’s care. 3 We find no merit in either contention.

       When reviewing the sufficiency of the evidence, appellate courts ask “whether the

evidence adduced at trial could support any rational determination of guilt beyond a reasonable

doubt.” United States v. Powell, 469 U.S. 57, 67 (1984). A reviewing court does not “ask itself

whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.”

Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (emphasis in original and citation omitted).

Instead, we ask only “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



       3
          Carter’s brief on appeal also questions whether his neglect, even if willful, “exacerbated
the child’s injuries or caused or permitted any greater or further injury.” Appellant’s Br. at 9.
Citing Rule 5A:18, the Commonwealth contends Carter may not make that argument on appeal
because he failed to specifically raise it in the trial court. At oral argument on appeal, in
response to this Court’s inquiry, Carter’s counsel agreed that his arguments were two-fold,
willfulness and responsibility, not whether “whatever happened caused or permitted serious
injury to the life or the health of the child.” Oral Argument at 12:31 (Sept. 3, 2008). Accepting
this concession, see, e.g., Logan v. Commonwealth, 47 Va. App. 168, 172, 622 S.E.2d 771, 773
(2005) (en banc) (holding the Commonwealth to a concession made on appeal), we address only
whether Carter’s conduct could be characterized as willful neglect by a caregiver under Code
§ 18.2-371.1(A).

                                                   -4-
beyond a reasonable doubt.” Maxwell v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499,

502 (2008) (quoting Jackson, 443 U.S. at 319) (emphasis in original).

       This deferential standard of review “applies not only to the historical facts themselves,

but the inferences from those facts as well.” Crowder v. Commonwealth, 41 Va. App. 658, 663

n.2, 588 S.E.2d 384, 387 n.2 (2003). Thus, a factfinder may “draw reasonable inferences from

basic facts to ultimate facts,” Haskins v. Commonwealth, 44 Va. App. 1, 10, 602 S.E.2d 402, 406

(2004) (citations omitted), unless doing so would push “into the realm of non sequitur,” Thomas

v. Commonwealth, 48 Va. App. 605, 608, 633 S.E.2d 229, 231 (2006) (citation omitted). These

principles recognize that an appellate court is “not permitted to reweigh the evidence,” Nusbaum

v. Berlin, 273 Va. 385, 408, 641 S.E.2d 494, 507 (2007), because appellate courts have no

authority “to preside de novo over a second trial,” Haskins, 44 Va. App. at 11, 602 S.E.2d at 407.

       Code § 18.2-371.1(A) states that any “person responsible for the care of a child” 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.”

Interpreting the “willful act or omission” requirement of this statute, the Virginia Supreme Court

has explained:

                 The word willful often denotes an act which is intentional, or
                 knowing, or voluntary, as distinguished from accidental. But when
                 used in a criminal statute it generally means an act done with a bad
                 purpose; without justifiable excuse; stubbornly, obstinately,
                 perversely. The word is also employed to characterize a thing
                 done without ground for believing it is lawful.

Barrett v. Commonwealth, 268 Va. 170, 183, 597 S.E.2d 104, 111 (2004) (citation and internal

brackets omitted); see also Mangano v. Commonwealth, 44 Va. App. 210, 214, 604 S.E.2d 118,

120 (2004). The willfulness requirement, however, does not mean the Commonwealth must

prove the defendant “intended to injure” the child. Collado v. Commonwealth, 33 Va. App. 356,

366, 533 S.E.2d 625, 630 (2000).

                                                 -5-
       Governed by this standard, the trial court did not plainly err when it concluded Carter

willfully neglected to obtain necessary medical needs for the child. After scalding the baby with

150-degree water, Carter lied to the baby’s mother about the severity of the child’s burns and

deliberately failed to obtain medical treatment for the child (which the expert testified any

reasonable person would have immediately known to be necessary) out of a fear of being

questioned by police and social services investigators. Instead of obtaining professional care,

Carter applied Vaseline which, the expert testified, has the effect of insulating heat and

worsening the burns. The child’s second to third-degree burns on his chest — which caused

immediate blistering, chronic pain, and shedding of the top layer of skin — were left medically

untreated for nearly 24 hours. In short, Carter’s failure to care for the child put the child in grave

danger and displayed a willful disregard for the ever-worsening condition of the child. 4

       We similarly find no fault with the trial court’s conclusion that Carter was a “person

responsible for the care of a child” under Code § 18.2-371.1(A). The child’s mother placed the

five-month-old baby in Carter’s exclusive care on the day of the scalding when she went to

work. She did the same thing the next day. And she jointly shared responsibility for the child’s

care during the intervening night. Carter had sufficient responsibility over the child’s care to fall

within the scope of Code § 18.2-371.1(A). See Snow v. Commonwealth, 33 Va. App. 766, 773,

537 S.E.2d 6, 10 (2000) (“[O]ne may become a person ‘responsible for the care of a child’ by a

voluntary course of conduct and without explicit parental delegation of supervisory

responsibility or court order.”).




       4
         Given Carter’s concession on appeal, we do not decide whether the worsening of the
child’s burns during Carter’s care for the child constituted “serious injury to the life or health” of
the child under Code § 18.2-371.1(A). See ante at 4, n.3.

                                                 -6-
                                             III.

     The evidence supports the trial court’s finding that Carter violated Code § 18.2-371.1(A)

by willfully failing to obtain medical treatment for the badly burned baby while the child was

under his care and responsibility. We thus affirm Carter’s conviction.




                                                                                 Affirmed.




                                             -7-
