                                                                    COURT OF APPEALS OF VIRGINIA


            Present: Judges Petty, Alston and Russell
PUBLISHED


            Argued at Lexington, Virginia


            ASHLEY JENNIFER WHITE
                                                                                                OPINION BY
            v.            Record No. 1322-16-3                                             JUDGE WILLIAM G. PETTY
                                                                                             SEPTEMBER 19, 2017
            COMMONWEALTH OF VIRGINIA


                                                  FROM THE CIRCUIT COURT OF PULASKI COUNTY
                                                              Bradley W. Finch, Judge

                                         Kelsey M. Bulger, Assistant Public Defender (Cynthia Dodge,
                                         Public Defender, on briefs), for appellant.

                                         Victoria Johnson, Assistant Attorney General (Mark R. Herring,
                                         Attorney General, on brief), for appellee.


                          Ashley Jennifer White was convicted of two counts of child abuse and neglect in

            violation of Code § 18.2-371.1(B) and one count of child abuse and neglect in violation of Code

            § 18.2-371.1(A).1 On appeal, White challenges only the conviction under Code § 18.2-371.1(A).

            White argues that the evidence was insufficient to prove she committed a willful act or willful

            omission that caused or permitted the tragic death of her five-year-old son.

                                                                            BACKGROUND

                          When considering whether evidence is sufficient to sustain a criminal conviction, we

            view the evidence in the light most favorable to the prevailing party at trial and grant to it all

            reasonable inferences fairly deducible from that evidence. Barrett v. Commonwealth, 268 Va.



                                                                        
                          1
                      White was sentenced to serve five years for each conviction. The trial court suspended
            all but one year and eleven months of the fifteen-year sentence without apportioning the active
            sentence among the three convictions. It appears that at the time this case was argued, she had
            already served the active portion of her sentence.
170, 179, 597 S.E.2d 104, 108 (2004). It is “within the province of the [fact finder] to determine

what inferences are to be drawn from proved facts, provided the inferences are reasonably

related to those facts.” Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786

(2003).

          On Sunday, March 22, 2015, White began her morning by leaving her infant daughter

and five-year-old son at home alone while she took her husband to work. When she returned,

she took prescription Suboxone and laid down on her bed to watch television with her son while

waiting for her daughter to wake up. At about 8:45 a.m., White let her son go to the living room

to watch cartoons, and she fell asleep. White awoke at about 10:30 a.m. to the sound of her

daughter’s crying. After tending to her daughter, White found the television in the living room

blaring, the front door open, and her son missing. White searched inside and outside for her son,

but to no avail. She called the landlord, who lived on adjoining property, and a neighbor to see if

her son was there. She walked to the wood line and fence line borders of her yard, calling for her

son, but received no response. She then called 911. 

          The law enforcement officers responding to the scene searched both inside and outside

the home. One officer saw the septic tank lid while he was using a search dog but did not

investigate the lid at that time. Later, he approached the septic tank lid and lightly kicked it,

causing the lid to pop off the opening of the septic tank. He picked up a four-foot metal rod

laying nearby and handed it to another officer, who placed it into the brown murky water in the

septic tank and moved it around, finding no resistance. In the ensuing four days, the septic tank

lid was lifted and replaced by several searchers, including an FBI agent, who had come to assist

in finding the missing child. After looking in the septic tank, neither the officer nor the FBI

agent secured the lid on the opening.




                                                 ‐ 2 -
              During the four-day search for the child, White was interviewed multiple times. She

initially told the officers that she had taken the children with her when she took her husband to

work that morning, but later admitted that she had left them alone.2 She said that if her son had

gone outside, he would not have left the yard except to play with the nearby neighbors. On

Thursday, March 26, the FBI agent ordered the septic tank to be drained, and at that time noticed

that only one screw was in the lid’s hole. A subsequent search of the surrounding area with a

metal detector did not locate any other screws, bolts, or fasteners.3 White’s son’s body was

found in the bottom of the septic tank.

              The septic tank had been installed by a contractor in approximately 2002. The septic

system was inspected to ensure it conformed to all safety standards, including the requirement

that it include a tamper proof, child resistant lid. Witnesses described the lid as a black plastic

disc approximately two feet in diameter and weighing two to three pounds. White began renting

the home in 2010, when her son was an infant. In 2014, the landlord, with the help of a retired

plumber, ran a pipe from an adjacent rental property to the septic tank in White’s yard. The

connection required digging beside the tank and removing a plastic ring approximately a foot



                                                            
              2
          The fact that White left her young children alone at home while she took her husband to
work was a significant fact in her convictions under Code § 18.2-371.1(B), which she does not
challenge on appeal. Because no injury occurred to the children from being left alone earlier in
the morning of March 22, 2015, the conduct does not establish criminal liability under Code
§ 18.2-371.1(A). However, White’s changing story regarding leaving her children alone earlier
on that fateful day are included here as relevant to the trial court’s assessment of White’s
credibility.
              3
          Photographs of the septic tank lid were admitted in lieu of the actual lid. The
photographs show the label “safety screws ” on the lid and suggest the safety screws attached
the lid from the side. These screws would have been obscured by grass that grew above the lip
of the opening. Several of the screw holes on the top of the lid were caked with mud. No screws
were attached to the lid when the photographs were taken, and no screws were admitted into
evidence. No evidence was introduced as to what condition the screw or screws were in at the
time of White’s son’s death.
 
                                                               ‐ 3 -
down from the top of the septic tank. While connecting the new line, the landlord removed toys

from the septic tank.4 The landlord mowed the yard often, including behind the home where the

                                                            
              4
          The landlord testified that he had never pumped the tank and he did not remember
removing toys from the tank. The only testimony regarding toys in the septic tank came from
White herself in an interview with Sergeant Billy Ritter after her son’s body was discovered.
Ritter told White that he wanted as much information on the septic tank as possible. Ritter
testified at trial to the interview, reading from the transcript of the interview, but the transcript of
the interview was not introduced as evidence. Ritter testified as follows:

                             [Commonwealth]: Did Ms. White tell you that she was present at
                                     a time when the septic tank was cleaned or, or at least
                                     opened up? And I’m referring to Page 36. Well, did, did
                                     Ms. White say anything about a time when the lid was
                                     opened and I believe [the landlord] was present?
                             [Ritter]: Yes. We were actually discussing the history and their
                                     knowledge of the septic. And she makes a statement that
                                     “[The landlord] and that guy were out back at one time
                                     digging stuff out of it, and they were bitching about finding
                                     toys.”

                                                  . . . .

                                            Her next statement after that was “Yeah, he told us to stop
                                            flushing cigarette butts.”

Although the Commonwealth stopped there on direct examination, defense counsel elicited the
next statements in the interview.

                             [Ritter]: Mrs. White states, “Yeah, he told us to stop flushing
                                     cigarette butts.”
                             [Defense]: And then what did you ask her?
                             [Ritter]: “How did you do it? How did you do that? I mean, how
                                     did you put it in there? . . . There were toys that came
                                     [d]own the toilet?”
                             [Defense]: And how did she respond?
                             [Ritter]: “Yeah.”

The context of the conversation indicated the complaint about toys was in 2014 when the
landlord was adding the new line. It is not completely clear from the testimony whether the toys
were removed from the septic tank itself, from the filter, or from the hole dug beside the tank. It
was not clear from the testimony that the toys actually belonged to White’s son. Neither party
elicited testimony to clarify these points. Viewing the evidence in the light most favorable to the
Commonwealth and with all reasonable inferences, we accept as fact that White was aware that
the landlord removed her son’s toys from the septic tank almost a year before his death. There is
 
                                                                    ‐ 4 -
septic tank lid was. The landlord testified he “could mow up to it on top of it with a riding lawn

mower [and would] run up to the edge of it, back off of it.” The access lid for the septic tank

was located about twelve feet from the back door of the residence, in the fenced backyard play

area.

              In an interview after her son’s body was found, White admitted her son loved the

outdoors and played by himself most of the time. She admitted that it would not be unusual for

her son to go outside and to get something from the car while she was asleep. Her son played in

the backyard so nobody else could see him. Toys were scattered in various places in the

backyard. White recounted that a month or two before her son’s death she saw her son stand on

the septic tank lid. She “yelled” at him and told him he was not allowed on the lid; she made

him promise never to stand on it again. When asked if the incident was a “red flag” to her, she

responded, “I just thought he shouldn’t be standing on it. . . . I didn’t know it was that deep. I

didn’t know that it was like such a dangerous like (pause). I should’ve been—it should’ve been

bolted. I didn’t even know that. I mean, looking back at all the things that I should’ve done but I

didn’t.”

              After a two-day bench trial, the trial court found White guilty of child abuse and neglect

in violation of Code § 18.2-371.1(A). The trial court noted that after hearing White’s testimony

and seeing her demeanor, it found some of her statements to be “self-serving testimony designed

to help conceal her guilt.” It found that White had lived in the home five years and was aware of

the septic tank and its opening. Further, it found she was present in the past at a time when the

septic tank was open and toys had been found in it and knew the backyard was a favorite place



                                                            
simply nothing in this testimony, however, from which the trial court could infer that the toys got
into the tank in a manner other than by flushing them down the toilet. Nor does this testimony
provide a basis for inferring that White was aware that her son was able to open the lid or that
she had been present when the tank was open.
                                               ‐ 5 -
for her son to play. The court concluded that White “was aware of the danger posed to [her son]

by the septic tank” because she had made her son promise not to stand on the lid again and had

told the police that in hindsight she should have taken additional precautions. White appeals the

trial court’s decision.

                                              ANALYSIS

        White attacks in two ways the sufficiency of the evidence to convict her. She argues that

the evidence was insufficient to prove a willful act or willful omission, and she argues that the

Commonwealth failed to prove that her conduct caused or permitted the death of her child.

        “When considering on appeal the sufficiency of the evidence presented below, we

‘presume the judgment of the trial court to be correct’ and reverse only if the trial court’s

decision is ‘plainly wrong or without evidence to support it.’” Kelly v. Commonwealth, 41

Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc) (quoting Davis v. Commonwealth, 39

Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002)). “[T]he relevant question 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.” Id. (quoting

Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Although the trier of fact may “draw reasonable

inferences from basic facts to ultimate facts,” id., it must not adopt a conclusion reached by the

“process of assuming a first position, and then piling inference upon inference,” Payne v. Graves,

32 Va. (5 Leigh) 561, 572 (1834) (quoted with approval in Carter v. Commonwealth, No.

161102, 2017 Va. Unpub. LEXIS 21 (Va. Aug. 17, 2017)).

        Code § 18.2-371.1(A) provides, in part, “Any parent, guardian, or other person

responsible for the care of a child under the age of 18 who by willful act or willful omission . . .

causes or permits serious injury to the life or health of such child is guilty of a Class 4 felony.”

                The word [willful] often denotes an act which is intentional, or
                knowing, or voluntary, as distinguished from accidental. But when
                                                 ‐ 6 -
               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, 268 Va. at 183, 597 S.E.2d at 111 (alterations in original) (quoting United States v.

Murdock, 290 U.S. 389, 394 (1993)); Willful, Black’s Law Dictionary (10th ed. 2014) (“The

term willful is stronger than voluntary or intentional; it is traditionally the equivalent of

malicious, evil or corrupt.”). “The term ‘willful act’ imports knowledge and consciousness that

injury will result from the act done. The act done must be intended or it must involve a reckless

disregard for the rights of another and will probably result in an injury.” Barrett, 268 Va. at 183,

597 S.E.2d at 111. The terms “bad purpose” or “without justifiable excuse” necessarily imply

knowledge that particular conduct will likely result in injury or illegality. Id.; Flowers v.

Commonwealth, 49 Va. App. 241, 248, 639 S.E.2d 313, 316 (2007) (“In other words, the

defendant must have been aware that [the] [omission] was likely to result in serious injury.”

(quoting Mangano v. Commonwealth, 44 Va. App. 210, 214, 604 S.E.2d 118, 120 (2004) (first

alteration in original))). “[S]omething more than negligence must be proved beyond a

reasonable doubt to support [a] conviction [under Code § 18.2-371.1(A)].” Ellis v.

Commonwealth, 29 Va. App. 548, 555, 513 S.E.2d 453, 457 (1999).

       When evaluating whether lack of supervision was a willful omission that caused or

permitted a substantial injury to a child, this Court often considers the analysis in Ellis and

Barrett. In Ellis, this Court reversed convictions of felony child neglect under Code

§ 18.2-371.1(A). The defendant in Ellis left her children, ages two years and four years,

unsupervised and asleep in her home while she visited in another building with a neighbor. Id. at

552, 513 S.E.2d at 455. The defendant had negligently left the gas stove on, resulting in a fire

that injured the children; the smoke detector was inoperable. Id. at 553, 513 S.E.2d at 455. This

Court recognized that the analysis “which is relevant to our determination of ‘bad purpose’ does
                                                 ‐ 7 -
not relate simply to why [the defendant] left the [children unsupervised.] Rather, it relates to the

degree to which she was aware of the danger when leaving her children unattended.” Id. at 555,

513 S.E.2d at 457.

       The Supreme Court cited Ellis with approval in Barrett, but distinguished Barrett’s level

of awareness regarding the probability of injury when she left her children unsupervised.

Barrett, 268 Va. at 186 n.8, 597 S.E.2d at 112 n.8. Barrett fell into a heavy sleep after a night of

drinking and left her children, ages ten months and two years, unsupervised and unsecured for

more than six hours. Id. at 182, 597 S.E.2d at 110. The mother knew that the older child’s

favorite place to play was the bathtub and knew of the older child’s “propensity for attempting to

injure [the younger child,] but recklessly disregarded those warning symptoms.” Id. at 184, 597

S.E.2d at 111. By leaving the two young children unsupervised for the extended length of time,

and with the knowledge that the two year old had tried to kill the infant on prior occasions, the

defendant “created a situation ‘reasonably calculated to produce injury, or which [made] it not

improbable that injury [would] be occasioned . . . .” Id. (first and second alteration in original).

        “The distinguishing feature between Barrett and Ellis is an awareness of the likely

danger in the defendant’s conduct. Barrett knew of the danger; Ellis did not.” Mangano, 44

Va. App. at 215, 604 S.E.2d at 120. Code § 18.2-371.1(A) “punishes willful omissions, which

requires an awareness that the conduct would cause or permit serious injury. It proscribes

advertence, not inadvertence.” Id. at 216, 604 S.E.2d at 121. Thus, a finding of willfulness

requires that the parent “must have been advertent to the likelihood that the conduct [omission]

in question would cause or permit serious injury.” Id. at 215, 604 S.E.2d at 121 (quoting Roger

D. Groot, Criminal Offenses and Defenses in Virginia 355 (4th ed. 2003)); see also Bean-Brewer

v. Commonwealth, 49 Va. App. 3, 11, 635 S.E.2d 680, 684 (2006) (noting analysis under the

Supreme Court’s definition of “willful” in Barrett requires “an examination not only of the act

                                                 ‐ 8 -
that created the risk, but also of the degree to which the accused ‘was aware of the danger’ that

resulted from the act” (alteration omitted)).

       The Supreme Court subsequently distinguished the conduct in Morris v. Commonwealth,

272 Va. 732, 740, 636 S.E.2d 436, 440 (2006), from that in Barrett. In Morris, a mother fell into

a deep sleep while taking a nap with her two children, ages five years and two years. Id. at 734,

636 S.E.2d at 437. While the mother was asleep, the two children unlocked the door and

wandered outside unsupervised. The mother failed to wake up, even when the police banged

loudly on her door and loudly announced themselves. The Supreme Court reversed Morris’s

conviction under Code § 18.2-371.1(B), holding the evidence was insufficient to show Morris

acted willfully with a reckless disregard for the lives of her children. Id. at 740, 636 S.E.2d at

440. Although Morris admitted she had a substance abuse problem, the court concluded it was

“mere speculation . . . to say that Morris’ deep sleep was likely drug or alcohol induced.” Id.

Although Morris admitted that the children had gotten out of the residence “a few days prior,”

the Supreme Court found she “had no reason to believe her children would be in any danger

while she was asleep with them, particularly after she had double-locked the trailer door.” Id. at

736, 636 S.E.2d at 438.

       We also find this Court’s analysis in Mangano to be instructive. The father in Mangano

discovered that his fourteen-year-old son and his friend were in the living room and the son had

retrieved a rifle. Mangano, 44 Va. App. at 215, 604 S.E.2d at 120. The father told his son to put

the rifle away in an upstairs bedroom. The father “had no reason to suspect that the gun was

loaded or that his son would not obey him.” Id. The son, however, did not immediately put the

rifle away and accidentally shot his friend, causing serious injury. Id. The trial court convicted

the father under Code 18.2-371.1(A), opining, “I just can’t understand how a person can be in a




                                                ‐ 9 -
room and see a gun in the presence of two children and not take some positive act to make that

room safe.” Id. at 216, 604 S.E.2d at 121. This Court reversed the conviction, concluding,

                             That interpretation imposed a criminal sanction for failing to act to
                             insure the room was safe. The statute punishes willful omissions,
                             which requires an awareness that the conduct would cause or
                             permit serious injury. It proscribes advertence, not inadvertence.
                             The evidence did not establish that the defendant knew danger
                             ensued from only ordering his son to put the gun away rather than
                             taking it from him. It failed to establish “knowledge and
                             consciousness that injury will result from the act done.” Barrett,
                             268 Va. at 183, 597 S.E.2d at 111.

Id.

              Here, White took a nap, leaving her five-year-old son unsupervised in the home.5 At

some point, her son left the home without White’s knowledge and fell into the septic tank, which

had an unsecured lid. To convict White under Code § 18.2-371.1(A), the Commonwealth was

required to show that White left her son unsupervised with “reckless disregard” for his safety and

with the “knowledge and consciousness” that the lack of supervision would “likely result in

injury.” See id.

              The evidence in the light most favorable to the Commonwealth showed that the son loved

the outdoors and had gone outside on prior occasions without White’s knowledge. White’s son

was capable of unlocking the door and the screen door. His favorite place to play was in the

backyard, with a basketball hoop on a concrete porch, which was about ten feet from the septic

tank lid. The trial court did not err in inferring that White knew her son might go outside to play



                                                            
              5
          The trial court found that White had taken a prescription drug before her nap, which
may have made her drowsy. However, there was no evidence that the prescription rendered her
inaccessible to her son, as was the defendant in Barrett. See Barrett, 268 Va. at 182, 597 S.E.2d
at 110. Even if White had been sleeping heavily, that is not sufficient in itself to render the lack
of supervision a willful omission. See Morris, 272 Va. at 740, 636 S.E.2d at 440. Our analysis
would be essentially the same if White had allowed her son to play in the backyard unsupervised
for a different reason, such as talking on a phone, cooking dinner, or visiting a neighbor as in
Ellis.
                                                ‐ 10 -
without her knowledge while she was sleeping. However, the mere presence of potential hazards

in the yard, such as a swimming pool, pond, or septic tank, is not sufficient to find that White

was advertent to the likelihood that lack of supervision would result in serious injury. The

Commonwealth was also required to show that White knew of a heightened risk in the yard such

that the son would likely be injured if he played there unsupervised. This appeal turns on “the

degree to which [White] was aware of the danger [of the unsecured septic tank] when leaving her

[son] unattended.” See Mangano 44 Va. App. at 215, 604 S.E.2d at 120.

       The trial court was entitled to disbelieve or disregard White’s testimony that she had

never tried to open the septic tank lid and did not realize the lid was a dangerous hazard. The

Commonwealth failed, however, to present evidence from which the trial court could infer White

did know. The Commonwealth established through the landlord’s testimony that he had often

cleaned the filter on the septic tank, had done construction on the tank, and had mowed the grass

around the tank. White clearly knew there was a septic tank in her backyard and knew that the

landlord had performed maintenance on the tank. Neither party, however, elicited testimony

regarding how many screws were required to secure the lid, the last time it was known to be

secured, or whether White had ever seen the lid unsecured. No evidence was admitted as to

whether the lid was child resistant or whether missing screws would be noticeable to a casual

observer. No evidence established that White had been present in the backyard when the tank

was open or that her son had dropped toys into the tank by way of the lid. Simply put, there was

no evidence from which the trial court could infer that White was aware, prior to her son’s death,

of the heightened danger posed by the unsecured lid. See Mangano, 44 Va. App. at 215, 604

S.E.2d at 120.

       Nevertheless, the Commonwealth emphasizes the trial court’s finding that there were toys

in and around the septic tank. The Commonwealth suggests that, accordingly, White should

                                               ‐ 11 -
have known that her son had a propensity for playing in or near the septic tank opening. The

trial court was entitled to disregard the landlord’s testimony that he did not remember any toys in

the filter6 or floating in the septic tank. Even if the trial court concluded that White’s son’s toys

had been found in the septic tank almost a year prior to his death, no evidence was presented to

support the theory that White’s son had exhibited a propensity for dropping toys into the tank in

the months prior to his death. To the contrary, the sanitation contractor who pumped the tank to

discover the body testified there were no toys, balls, or similar objects visible. The only toy

present in the tank and entered into evidence was an action figure in the bag with the body.

Thus, there was simply no evidence from which the trial court could infer that White knew her

son had a propensity for opening the unsecured lid and dropping toys into the tank while playing

in his backyard.

              The Commonwealth stressed in its argument before the trial court and this Court that

White recognized the danger of the septic tank when she saw her son standing on the lid. One to

two months prior to her son’s death, White saw him standing on the lid of the septic tank.

White’s statements during interviews and trial were consistent; she “yelled” at her son to get off

the lid and made him promise not to stand on the lid again. This incident, however, also showed

White did not disregard the potential hazard of the septic tank, but rather took steps to mitigate

the danger by instructing her child not to stand on the lid again. Moreover, here, as in Mangano,

White had no reason to suspect that her son would not obey her. See Mangano, 44 Va. App. at

215, 604 S.E.2d at 120. Although White’s son played frequently in the backyard, no evidence

suggested White knew of subsequent occasions when her son played on or near the lid, or

engaged in dangerous activity in the yard, prior to the tragic events of March 22, 2015.



                                                            
              6
        The landlord described the filter as a plastic object about two inches in diameter that fits
down a three-inch piece of pipe that extends above ground near the septic tank lid.
                                               ‐ 12 -
Moreover, there was no evidence suggesting that the screws to the lid were unsecured when

White told her son to get off the lid. Nothing in White’s statements suggested that the lid was

loose or dislodged in any way when her son was standing on it. Thus, White’s instruction to her

son reflected “the degree to which [White] was aware of the danger” the septic tank posed at that

time. See id.7

              Code § 18.2-371.1(A) does not impose criminal liability on parents who fail to take

positive action to ferret out every potential hazard to ensure the premises are safe. See id. at 216,

604 S.E.2d at 121. Rather, the statute punishes a parent’s willful omission, “which requires an

awareness” of the danger associated with leaving her child unsupervised. Compare Barrett, 268

Va. at 184, 597 S.E.2d at 111 (aware of the particular danger), with Ellis, 29 Va. App. at 555,

513 S.E.2d at 457 (unaware of the particular danger). Here, the evidence was insufficient to

establish that White acted with a “reckless disregard” for her son’s safety and with the

“knowledge and consciousness” that this lack of supervision would “likely result in injury.”




                                                            
              7
          We agree with the dissent that the septic tank posed a significant danger to a
five-year-old child. However, as we noted above, this appeal does not turn on that fact. Rather,
it turns on whether White was aware of that significant danger and, by willful act or willful
omission, failed to prevent the death of her child. The dissent states there was “considerable”
testimony that the lid, “on occasion” was not securely attached and the “evidence presented
supports the reasonable conclusion that the vulnerable state of the septic tank lid was apparent.”
The dissent fails to address the penultimate question; apparent to whom? While the evidence
supports the conclusion that the lid was not properly attached, there is no evidence to suggest
that it was or should have been apparent to her that the lid was not secured. To the contrary, the
landlord testified that he mowed the grass right up to the lid, but he did not give any indication
that he saw that it was not properly attached. Photographs of the tank opening and the lid do not
support the inference White knew the lid was unsecured. See supra footnote 3. Thus, we see no
way to infer from the evidence presented that it would be “apparent” to White that the lid was
unsecured.
         While we agree with the dissent that the trial court was entitled to draw reasonable
inferences from the evidence presented, those “[i]nferences must be based on facts and not upon
other inferences or mere speculation.” Watson, Adm’x v. Virginia Elec., Etc. Co, 199 Va. 570,
578, 100 S.E.2d 774, 780 (1957).
                                                ‐ 13 -
                                                               CONCLUSION

              Over a century ago, Supreme Court Justice Harlan observed that “it is the duty of all

courts of justice to take care, for the general good of the community, that hard cases do not make

bad law.” United States v. Clark, 96 U.S. 37, 49 (1878) (Harlan, J., dissenting). The tragic death

of a young child is a hard case. When the child’s body is found in a septic tank after four days of

searching, the case is even harder. But it would not benefit the general good of the community to

expand Code § 18.2-371.1’s requirement of “willful” conduct to include a parent’s failure to

protect a child from an undiscovered and unknown danger. Septic tanks are common in many

areas of this Commonwealth. As tragic as the facts of this case are, to affirm this conviction

would be to hold that Code § 18.2-371.1 requires a parent to search out potential dangers and

continuously supervise his or her child. A parent could be subject to a felony conviction if he or

she failed to recognize the danger posed by the unsecured tank cover, the unlatched gate, the

rotted board, the unfenced pond, or any other hazard that, in hindsight, could have been

corrected. Simply put, we conclude that the General Assembly, by requiring proof of a willful

act or omission, intended a much higher mens rea than the evidence establishes in this case.

Here, the evidence was insufficient to show that White left her son unsupervised with “the

knowledge and consciousness that injury would result.” See Barrett, 268 Va. at 183, 597 S.E.2d

at 111. Accordingly, we reverse White’s conviction and dismiss the indictment.8 We remand to




                                                            
              8
         Because we find the evidence was insufficient to support the element of a willful act or
willful omission, we need not address specifically whether the evidence was sufficient to show
that White’s failure to supervise caused or permitted her son’s death.
                                               ‐ 14 -
the trial court for entry of a final sentencing order reflecting our reversal of White’s conviction

under Code § 18.2-371.1(A).9

                                                               Reversed and remanded with instructions.




                                                            
              9
         The trial court sentenced White to five years’ imprisonment on each of the three
convictions. It then suspended thirteen years and one month of the total fifteen-year sentence.
Because the term of suspension exceeds the maximum five-year punishment for each of the
remaining convictions, the order must be corrected to reflect a term of suspension that does not
exceed ten years, less the active sentence previously imposed.
                                               ‐ 15 -
Alston, J., dissenting.

        The eloquence and care of the majority opinion to reach a difficult result in a

heartbreaking case speaks to the best work of the jurisprudence of this Court. While a court

should always endeavor not to allow hard cases to make bad law; it can also be said with at least

as much truth, that hard cases can and do endeavor to accomplish the objective of the legislature

to make good law. True justice is not measured by what we think we would do in a similar

situation; it is measured by the law and how the law applies to certain facts.

        The willful omissions of appellant in this case resulted in tragic circumstances that the

trial court took great pains to resolve under the reasonable doubt standard. For this reason, and

based upon this Court’s applicable standard of review on appeal, I respectfully dissent from the

thoughtful analysis of my colleagues in the majority.

        The majority suggests that to find appellant guilty, we need to adopt something in the

nature of a strict liability obligation for parents who live on properties with septic systems, a

swimming pool, a pond, or other conditions otherwise benign, but potentially hazardous. I

disagree. The compelling facts of this particular case provide the backdrop to the criminally

culpable event under this statute.

        In a case such as this, we must view the evidence in light of “all the circumstances

preceding and surrounding” the incident. Barrett v. Commonwealth, 268 Va. 170, 184, 597

S.E.2d 104, 111 (2004). In doing so, we review the relevant factors including the gravity and

character of the possible risks of harm, the accessibility of the parent, the length of time of the

abandonment, any protective measures taken by the parent, and the age and maturity of the child.

Miller v. Commonwealth, 64 Va. App. 527, 544, 769 S.E.2d 706, 714 (2015) (citing Barnes v.

Commonwealth, 47 Va. App. 105, 113, 622 S.E.2d 278, 282 (2005)). These dangers inherent in

a situation can be inferred by the fact finder as a matter of common knowledge. Commonwealth

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v. Duncan, 267 Va. 377, 386, 593 S.E.2d 210, 215 (2004). Significantly in this case “when the

sufficiency of the evidence is challenged on appeal, we review the evidence in the light most

favorable to the Commonwealth granting to it all reasonable inferences fairly deducible

therefrom.” Kelly v. Commonwealth, 41 Va. App. 250, 254, 584 S.E.2d 444, 447 (2003) (en

banc).

         When so viewed, the circumstances show beyond a reasonable doubt that appellant was

guilty of more than “ordinary negligence.” Here, appellant was fully aware that her five-year-old

son, N.T., could unlock the broken screen door to their home and that he routinely left the house

unsupervised while she slept. Even further, the record indicates that appellant knew of the

potential danger that the septic tank posed to N.T. The septic tank was approximately ten to

twelve feet from the rear of the home. N.T.’s toys were scattered throughout the backyard, and

there were toys found in and around the septic tank on at least one prior occasion. Appellant was

either present during or after the tank was cleaned, and was made aware that N.T.’s toys were

found inside the septic system. While the evidence may be subject to interpretation as to how the

toys actually got into the septic system, it is clear that some of N.T.’s toys were indeed observed

around the septic system and that appellant knew that N.T. was interested in the septic tank and

the area surrounding it. Appellant had previously seen N.T. standing on the lid, and went so far

as to tell N.T. that he was not allowed to climb on it. Appellant even made the five-year-old

N.T. promise never to climb on the lid of the septic tank again.

         My respectful disagreement over the interpretation and significance of the facts of this

case underscores my view that the standard of review dictates the result I suggest we should

reach. Much of the evidence adduced at trial was subject to interpretation, but indeed there was

considerable testimony that on occasion the lid was not properly attached to the septic tank, and

apparently not secure. The evidence presented supports the reasonable conclusion that the

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vulnerable state of the septic tank lid was apparent, such that even the slightest kick could

remove it. Coupling these facts with the evidence of appellant’s conduct prior to, and after,

N.T.’s disappearance, appellant’s willful omissions created a situation which caused or permitted

serious injury (here, death) to N.T. In my view, these facts alone, and not the failure of appellant

to take positive action to ferret out every potential hazard to ensure the premises were safe,

support the result reached by the trial court. It was appellant’s utter failure to take any credible

corrective action to address this known danger of the septic tank, which creates the liability.

Appellant simply does not discharge her responsibility and duty under the statute by resting her

claim on an inferential hardship which may be placed on blameless parents or caretakers.

       Willful omissions carry the same level of criminal culpability as intentional acts under

the applicable statute. Many of the facts in this case led me to believe that a reasonable

fact-finder could find appellant guilty under this statute, including (1) the known dangerousness

(and apparently unaddressed) condition of the defective covering of the septic system

forewarning a particularized risk to the child; (2) the prior admonitions to appellant, direct and

otherwise, of the child’s attraction to and exposure to the area in which the unsafe system

functioned; (3) the either casual indifference to or callous disregard to the circumstances

appurtenant to the dangerousness of this particular threat to the child; (4) the observance of

marijuana in the residence and the trial court’s particularized finding that appellant consumed the

prescriptive somnolent Suboxone on the date of the incident; and finally (5) appellant’s lack of

candor in the events leading up to, and during the period of, the investigation of the child’s death.

       I reference all of these critical facts because while I believe that not one of these facts

standing alone would support a conviction under this statute, willful omissions are traditionally

and necessarily supported by circumstantial evidence and inferences. And circumstantial

evidence, by its very nature, envisions a totality of the circumstances analysis. See Juniper v.

                                                ‐ 18 -
Commonwealth, 271 Va. 362, 416, 626 S.E.2d 383, 418 (2006) (stating “while no single piece of

evidence may be sufficient, the ‘combined force of many concurrent and related circumstances,

each insufficient in itself, may lead a reasonable mind irresistibly to a conclusion’” (quoting

Chichester v. Commonwealth, 248 Va. 311, 329, 448 S.E.2d 638, 650 (1994), cert. denied, 513

U.S. 1166 (1995))). It was reasonable for the trial court to conclude that the totality of

appellant’s actions and omissions ultimately led to N.T.’s death; which is all that the

Commonwealth was required to prove. All of the facts considered together under the totality of

the circumstances present in this case, support appellant’s conviction. Accordingly, and with all

due regard for the exceptional consideration and text of the majority, I would affirm the

judgment of the trial court.




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