                        COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judges Benton, Elder,
          Annunziata, Bumgardner, Frank, Humphreys, Clements,
          Agee, * Felton and Kelsey
Argued at Richmond, Virginia


CARLTON WENDELL DUNCAN
                                            MEMORANDUM OPINION ** BY
v.   Record No. 1060-01-1                JUDGE JEAN HARRISON CLEMENTS
                                                 APRIL 8, 2003
COMMONWEALTH OF VIRGINIA


                       UPON A REHEARING EN BANC

           FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG
                        AND COUNTY OF JAMES CITY
                         Thomas B. Hoover, Judge

             LeeAnn N. Barnes for appellant.

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


     On August 27, 2002, a unanimous panel of this Court reversed

and dismissed the conviction of appellant, Carlton Wendell Duncan,

for felony child abuse and neglect, in violation of Code

§ 18.2-371.1(B).    The panel determined that the Commonwealth's

evidence did not establish beyond a reasonable doubt that Duncan's

willful acts and omissions in the care of his six-month-old son



     * Justice Agee participated in the hearing and decision of
this case prior to his investiture as a Justice of the Supreme
Court of Virginia.

     ** Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
was conduct so gross, wanton and culpable as to show a reckless

disregard for the child's life.    We granted the Commonwealth's

petition for a rehearing en banc and stayed the mandate of the

panel's decision.   Upon rehearing en banc, we reverse the trial

court and dismiss the conviction.

     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."   Bright v. Commonwealth, 4 Va. App. 248,

250, 356 S.E.2d 443, 444 (1997).    "In so doing, we must 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 that may be

drawn therefrom."   Watkins v. Commonwealth, 26 Va. App. 335, 349,

494 S.E.2d 859, 866 (1998).   We are further mindful that the

"credibility of a witness, the weight accorded the testimony, and

the inferences to be drawn from proven facts are matters solely

for the fact finder's determination."   Crawley v. Commonwealth, 29

Va. App. 372, 375, 512 S.E.2d 169, 170 (1999).   We will not

disturb the conviction unless it is plainly wrong or unsupported

by the evidence.    Sutphin v. Commonwealth, 1 Va. App. 241, 243,

337 S.E.2d 897, 898 (1985).

     Here, viewed in the light most favorable to the Commonwealth,

the evidence established that, on June 12, 2000, around 3:30 p.m.,

Jennifer Dansby returned home from work to find Michelle Cribbs,

                                - 2 -
several friends, and Duncan's six-month-old son there.     Duncan was

not there.    Dansby shared the home with Cribbs and Elizabeth Nemo.

She had first met Duncan and his baby the day before when Dansby's

ex-housemate had invited Duncan to Dansby's house.     The baby was

awake when Dansby got home but would doze off as Dansby and the

others took turns holding him and playing with him.     There was no

baby food or formula in the house, so Dansby and her friends were

unable to feed the child.   According to Dansby, nobody fed the

child from 3:30 p.m. until 11:00 p.m.

     Nemo arrived home at 9:30 p.m.      Later in the evening, an

impromptu party began as other friends arrived and people started

drinking beer and using illegal drugs.     Dansby, her housemates,

and her friends continued to take turns holding the baby, passing

him around.    Duncan arrived at the house around 10:30 p.m.,

bringing a bag of marijuana with him.     Nemo noticed that his eyes

were "glazed over" and the whites of his eyes were yellow.      Duncan

began drinking with the group.    When the subject of babies came

up, Duncan started talking about women he had impregnated and the

abortions they had had.   Later, Duncan took the baby from Nemo,

put him on the couch, and, holding him by his hands, lifted him up

off the couch.    The baby started crying.

     Around midnight, the baby became fussy and started crying

loudly.   Duncan, saying he would "take care of the problem," took

the child from his carriage in the living room and carried him

into the bathroom, and then into a back bedroom.     Nemo, who was

                                 - 3 -
concerned about the baby, followed them.     Looking into the

bedroom, she saw the baby lying on a futon.     Duncan was sitting

next to the futon, lifting it "as if it was going towards the

baby's body."   When Duncan saw Nemo, he put the futon down and

told her he was looking for a pacifier.     Duncan left the room, and

Nemo picked up the baby, who was still crying.

     Duncan went into the kitchen.      Dansby heard him open the

refrigerator door, which was "odd," she thought, because there was

only beer and wine coolers in the refrigerator.     Approximately

five minutes later, Duncan came out of the kitchen with a baby

bottle, which he took to the back room and gave to Nemo.     Nemo

started feeding the child, and Duncan left the room and then went

outside.

     While feeding the baby, Nemo went into the living room and

sat down with her friends.   Nemo then noticed that the liquid in

the baby bottle had a "pinkish color" and smelled like wine

cooler.    After a friend tasted the liquid in the bottle and

confirmed that it tasted of alcohol, Dansby, who described the

liquid as having a "milky pinkish color," called the hospital and

the police.   She then took the baby bottle, which was a little

more than half full, and hid it in the microwave oven until the

police arrived.   While in the kitchen, Dansby noticed that a

bottle of wine cooler was missing from the refrigerator.     She

found an open bottle of wine cooler that had not been there before

on the kitchen counter behind some fast-food bags of trash.     It

                                - 4 -
had approximately three inches of liquid missing from the top.

The contents of the bottle were "pink."

     Approximately fifteen minutes later, Duncan, who was unaware

the police had been called, came back inside to check on his

child.    He sat on the couch next to Nemo, who continued to hold

the baby until the police came.

     When the police arrived, Officer Nacastro noticed that Duncan

had "bloodshot eyes," his speech was "slightly mumbled," and he

smelled "of intoxicant[s]."   The police took the baby bottle and

the opened bottle of wine cooler for analysis.   Laboratory tests

revealed that the liquid in the twelve-ounce bottle of wine cooler

was 3.2% ethyl alcohol by volume.    The liquid in the eight-ounce

baby bottle, which the police noted was "whitish [with a] little

pinkish color in that," was 2.8% ethyl alcohol by volume.

     At trial, Duncan denied putting any alcohol in his son's baby

bottle.   He said he picked up the baby bottle from the kitchen

table and gave it to Nemo, but did not know it contained wine

cooler.    He also testified that he had fed the baby apple raisin

cereal earlier in the evening.    He also claimed he put his son on

the futon in the back bedroom and rubbed his back so he could go

to sleep.

     Code § 18.2-371.1(B) provides that "[a]ny 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



                                 - 5 -
child was so gross, wanton and culpable as to show a reckless

disregard for human life shall be guilty of a Class 6 felony."

     After hearing the evidence and argument of counsel, the trial

judge stated:

                  I find that Mr. Duncan is not a
             believable witness. I reject his testimony
             as to the explanation. I find the
             Commonwealth's witnesses, again Ms. Nemo and
             Ms. Dansby together with Officer Nacastro, to
             clearly show and prove beyond a reasonable
             doubt that the defendant took the baby back
             to the back bedroom and whatever happened on
             the [futon], he then is the one who goes to
             the kitchen area, he comes back with a bottle
             that has this clear pinkish substance in it,
             he gives the bottle to Ms. Nemo, then he
             walks out.
                  Feeding alcohol to a six-month baby is
             clear neglect. Coupled with all the other
             acts, omissions and commissions that he did,
             I find the defendant guilty beyond a
             reasonable doubt of the felony charge.

     On appeal, Duncan does not challenge the sufficiency of the

evidence to show that he committed certain improper acts and

omissions in the care of his son and that such acts and omissions

were willful.    In addition, he concedes that such willful acts and

omissions could be construed as being irresponsible, derelict, and

negligent.    He argues, however, that, even viewing the evidence in

the light most favorable to the Commonwealth, his willful acts and

omissions were not so gross, wanton, and culpable as to show a

reckless disregard for human life.

     The Commonwealth argues that Duncan's acts and omissions in

the care of his son support his conviction.    Specifically, the


                                 - 6 -
Commonwealth asserts that Duncan's leaving the child in the care

of people he had known for just a day; failing to feed, or make

sure someone else fed, the child for more than seven hours;

returning to Dansby's home intoxicated and in possession of

marijuana; "put[ting] the child on a futon and then lift[ing] the

futon until he was caught" by Nemo; and, most significantly,

causing Nemo, unbeknownst to her, to feed wine cooler to the baby

was conduct so gross, wanton and culpable as to show a reckless

disregard for the life of his six-month-old son.    We disagree with

the Commonwealth.

     Plainly, Duncan was negligent in caring for his child.       His

conduct was inexcusable and cannot be condoned.    A finding of

negligence, however, is not enough, by itself, to sustain a

conviction for criminal abuse and neglect of a child under Code

§ 18.2-371.1.   See Ellis v. Commonwealth, 29 Va. App. 548, 555,

513 S.E.2d 453, 457 (1999) (holding that "something more than

negligence must be proved beyond a reasonable doubt to support

[defendant's] conviction" of criminal child neglect).   To sustain

Duncan's conviction in this case, the Commonwealth had to prove

beyond a reasonable doubt that Duncan 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.

Code § 18.2-371.1(B).   In Snow v. Commonwealth, 33 Va. App. 766,

775, 537 S.E.2d 6, 11 (2000), we held that the defendant's act of

driving a car with children in it in excess of one hundred miles

                               - 7 -
per hour while trying to elude the police was not only illegal but

"dangerous," and, thus, constituted conduct "so gross, wanton, and

culpable as to show a reckless disregard for human life."     The

same cannot be said, however, of the willful acts and omissions

before us in this case.

     Here, although Duncan, as the Commonwealth notes, left his

son with women he had known for only a day, no evidence showed

that the women were irresponsible or that Duncan had reason to

believe they were unable or unwilling to care for the baby, or

that they would place the child's life at risk.   Furthermore, the

evidence supports the trial court's finding that the women found

"the baby interesting and cute" and enjoyed "looking after" him.

Indeed, they continued to play with and hold the child even after

Duncan returned to the women's house.   In addition, Duncan

interacted with his son upon his return to the house and, despite

his apparent intoxication and possession of illicit drugs,

responded to him when the child became fussy and cried loudly.

     Furthermore, although Nemo testified that she was concerned

for the baby's safety when Duncan took the child to the back

bedroom after announcing he would "take care of the problem," we

find, on the evidence presented, that her assignment of ill will

to Duncan was purely speculative, as was her perception that

Duncan intended to harm the child when she saw him lift the futon.

The trial court correctly gave little, if any, weight to such

conjecture in reaching its decision.

                              - 8 -
        Likewise, the evidence did not show that Duncan's failure to

feed his son for seven and a half hours constituted conduct so

gross, wanton, and culpable as to show a reckless disregard for

the child's life, particularly as there was no evidence that the

baby was hungry or otherwise in distress during that period of

time.    In fact, the evidence showed that, when the baby became

fussy and started to cry loudly, Duncan took steps to feed him,

albeit with a bottle containing a liquid mixture, part of which

was wine cooler—which brings us to the crux of this appeal.

        In finding Duncan guilty of violating Code § 18.2-371.1(B),

the trial court attached the greatest significance to Duncan's act

of putting the mixture containing wine cooler in the baby's bottle

and causing it to be fed to his son.       Clearly, that was the most

serious allegation against Duncan.       Duncan argues that, given the

low alcohol content of the mixture fed to his son, his child's

life would not have been endangered even if he had consumed the

entire contents of the bottle.

        The question before us, then, is whether feeding a

six-month-old infant approximately eight ounces of liquid

containing 2.8% ethyl alcohol by volume is an act so gross,

wanton, and culpable as to show a reckless disregard for human

life.    The Commonwealth asserts that "[i]t is beyond dispute that

feeding alcohol to an infant is dangerous."      Plainly, at some

quantitative level, based on the alcoholic content and volume of

the liquid ingested, feeding a six-month-old child liquid that

                                 - 9 -
contains alcohol would, like driving an automobile in excess of

one hundred miles an hour while being pursued by the police,

constitute a danger to the child's life.    In this case, however,

there was no evidence presented to show that feeding a

six-month-old child up to eight ounces of a liquid that is 2.8%

ethyl alcohol by volume endangers the child's life.    Such a

conclusion would, therefore, have to be based on pure conjecture

and speculation, rather than on the evidence or inferences

reasonably drawn therefrom.   Hence, we conclude the evidence did

not support such a finding beyond a reasonable doubt by the trial

court.   See Thomas v. Commonwealth, 187 Va. 265, 272, 46 S.E.2d

388, 391 (1948) ("A conclusion of guilt must be supported by

credible evidence and cannot rest upon conjecture or suspicion.").

     We hold, therefore, that the Commonwealth's evidence was

insufficient, as a matter of law, to prove beyond a reasonable

doubt that Duncan's willful acts and omissions in caring for his

child were so gross, wanton, and culpable as to show a reckless

disregard for human life.   Accordingly, we reverse Duncan's

conviction of felony child abuse and neglect under Code

§ 18.2-371.1(B) and dismiss the indictment.

                                           Reversed and dismissed.




                               - 10 -
Fitzpatrick, C.J., with whom Elder, Humphreys and Felton, JJ.,
 join, dissenting.

     I respectfully dissent from the majority opinion, which

holds the evidence in this case insufficient to establish that

appellant's willful acts or omissions while caring for his son

showed a "reckless disregard for human life."

     Code § 18.2-371.1(B) provides in pertinent part that "[a]ny

parent . . . responsible for the care of a child . . . 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 evidence, viewed in the light most favorable to the

Commonwealth, proved appellant left his six-month-old baby with

people he had just met.   He provided no food or formula, and the

baby was not fed for more than seven hours.    The baby remained

at the home while appellant and others drank alcohol and used

illegal drugs.   Witnesses described appellant's appearance as

impaired with his eyes "glazed over."    Around midnight, the baby

started crying and appellant took the baby into a back bedroom

saying "I'm going to take care of the problem."    He placed the

baby on a futon, and a witness saw him lift the futon "as if it

was going towards the baby's body."     When he saw the witness, he

left the baby on the futon and went to the kitchen.    He returned

from the kitchen with a bottle and handed it to one of the girls

who lived at the house.   She started to feed it to the baby, but

                               - 11 -
noticed the liquid in the bottle was a "pinkish color" and

smelled like wine cooler.   Later testing revealed the liquid in

the bottle was alcohol.

     The trial court rejected appellant's testimony and found:

               [Appellant] is not a believable
          witness. I reject his testimony as to the
          explanation. I find the Commonwealth's
          witnesses . . . to clearly show and prove
          beyond a reasonable doubt that the
          [appellant] took the baby back to the back
          bedroom and whatever happened on the sofa,
          he then is the one who goes to the kitchen
          area, he comes back with a bottle that has
          this clear pinkish substance in it, he gives
          the bottle to [a witness], then he walks
          out.
               Feeding alcohol to a six-month old baby
          is clear neglect. Coupled with all the
          other acts, omissions and commissions that
          he did, I find the [appellant] guilty beyond
          a reasonable doubt of the felony charge.

     This evidence established a day long series of actions that

culminated in appellant's preparation of a bottle laced with

alcohol to be fed to his six-month-old baby who had eaten

nothing for the entire day.   This behavior shows more than mere

indifference or negligence.   Appellant's acts of leaving the

baby with people he barely knew, failing to provide food for

more than seven hours, having the baby in a home where the

people were using illegal drugs, and causing the baby to ingest

alcohol were willful, wanton and showed a reckless disregard for

human life.   Had the baby died as a result of ingesting the




                               - 12 -
alcohol laced drink, a manslaughter indictment would have been

the outcome.   Therefore, I would affirm appellant's conviction.




                               - 13 -
Kelsey, J., dissenting.

     Crime is a "compound concept," generally requiring the

"concurrence of an evil-meaning mind with an evil-doing hand."

Morissette v. United States, 342 U.S. 246, 251-52 (1952).   Every

criminal statute, unless it imposes strict liability, must have

two components:   mens rea and actus reus.   The former describes

the criminal actor's state of mind, while the latter identifies

the specific behavior deemed unlawful.

     Underlying the disagreement between the majority and the

dissent in this case, I believe, is an unstated —— but altogether

real —— difference in opinion on how to deal with the apparent

lack of an actus reus component in Code § 18.2-371.1(B).

Subsection (B) of the statute reads:

            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.

Code § 18.2-371.1(B).   Subsection (B) criminalizes undefined acts

or omissions that "show a reckless disregard for human life."

     The majority interpolates an actus reus component from the

"reckless disregard for human life" phrase.   Focusing on this

phrase alone, the majority assumes the "act or omission" condemned

by the statute must be one that puts the victim at a probable risk

of death.   Under this interpretation, only lethal risks (not

non-fatal risks of harm) fall within the scope of the statute.      In
                                - 14 -
other words, if a parent puts a child at risk of being burned,

cut, drugged, beaten, shot, or otherwise seriously injured —— but

the trauma would not have likely resulted in death —— the parent

has not violated Code § 18.2-371.1(B).

     For two reasons, I do not believe the legislature intended

the interpretation adopted by the majority.     First, the phrase

"reckless disregard for human life" is a statutory term of art

that describes the requisite mens rea of the criminal actor, not

the actus reus of the criminal act.      The phrase has been used in

many contexts, for many years, merely as a synonym for criminal

negligence.    We should presume that, by including this phrase in

Code § 18.2-371.1(B), the legislature intended the traditional

mens rea meaning ascribed to these words by the courts.     Second,

Code § 18.2-371.1 should be read as a whole and not as a series of

freestanding phrases.   A holistic approach leads us to subsection

(A), which criminalizes "serious injury" to a child, as we search

for the relevant actus reus of subsection (B).

                                  I.

                                  A.

     When the General Assembly enacted Code § 18.2-371.1 in 1981,

the statute included only the language now found in subsections

(A) and (C).   The 1981 statute criminalized behavior resulting in

"serious injury to the life or health of such child," but did not

address the felonious endangerment of a child short of actual

                                - 15 -
injury or death.   The General Assembly amended Code § 18.2-371.1

in 1993 to include a felony endangerment section, subsection (B),

to address this omission.

     The phrase "reckless disregard for human life," used in

subsection (B), is a statutory term of art for criminal

negligence.   See, e.g., Goodman v. Commonwealth, 37 Va. App. 374,

387, 558 S.E.2d 555, 562 (2002) ("A conviction for aggravated

involuntary manslaughter in violation of Code § 18.2-36.1(B)

requires proof, in addition, that the driver's 'conduct . . . was

so gross, wanton and culpable as to show a reckless disregard for

human life,' i.e., that the driver was criminally negligent."

(emphasis added)).

     The phrase has been used interchangeably with a variety of

other phrases such as "disregard of another person's rights with

reckless indifference to the consequences," Hubbard v.

Commonwealth, 243 Va. 1, 15, 413 S.E.2d 875, 883 (1992), "reckless

and utter disregard for the life and personal safety of others,"

Gallimore v. Commonwealth, 15 Va. App. 288, 294, 422 S.E.2d 613,

616 (1992), and "reckless or indifferent disregard of the rights

of others," Cable v. Commonwealth, 243 Va. 236, 240, 415 S.E.2d

218, 220 (1992).

     We have equated the language "reckless disregard for human

life" to the common law definition of criminal negligence

enunciated in Bell v. Commonwealth, 170 Va. 597, 611-12, 195 S.E.

675, 681 (1938), where the Virginia Supreme Court
                               - 16 -
            defined criminal negligence in terms of
            "gross negligence," stating that conduct "is
            culpable or criminal when accompanied by
            acts of commission or omission of a wanton
            or wil[l]ful nature, showing 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 his acts."

Wright v. Commonwealth, 39 Va. App. 698, 703, 576 S.E.2d 242, 244

(2003) (quoting Ellis v. Commonwealth, 29 Va. App. 548, 557, 513

S.E.2d 453, 457-58 (1999), and Bell 170 Va. at 611-12, 195 S.E. at

681)) (emphasis added); see also Banovitch v. Commonwealth, 196

Va. 210, 220, 83 S.E.2d 369, 375 (1954).

     We have never limited the mens rea of criminal negligence to

risk-of-death scenarios, as has the majority in this case.     Though

some crimes with a mens rea of criminal negligence also require

death, in each of those cases death is set forth separately in the

actus reus component of the crime.      For example in Goodman, we

affirmed a conviction of involuntary DUI manslaughter under Code

§ 18.2-36.1 because the defendant's actions caused the death of

another, as required under Code § 18.2-36.1(A). 1    We held that the

     1
         Code § 18.2-36.1 reads:

            A. Any person who, as a result of driving
            under the influence in violation of clause
            (ii), (iii), or (iv) of § 18.2-266 or any
            local ordinance substantially similar
            thereto unintentionally causes the death of
            another person, shall be guilty of
            involuntary manslaughter.
                                   - 17 -
defendant's actions were "aggravated" under subsection (B) because

the "appellant was criminally negligent because the manner in

which he operated his vehicle 'show[ed] a reckless or indifferent

disregard of the rights of others, under circumstances reasonably

calculated to produce injury.'"   Goodman, 37 Va. App. at 389, 558

S.E.2d at 562 (citations omitted).

     Though death is an element of DUI manslaughter under Code

§ 18.2-36.1(A), the lethal nature of the risk does not figure into

the aggravation analysis under Code § 18.2-36.1(B).   Put another

way, an aggravated DUI manslaughter conviction can be predicated

on a showing that the defendant had criminal negligence mens rea

coupled with an actus reus of "unintentionally caus[ing] the death

of another person."

     Consider too the DUI maiming statute, Code § 18.2-51.4(A).

It provides:

          Any person who, as a result of driving while
          intoxicated in violation of § 18.2-266 or
          any local ordinance substantially similar
          thereto in a manner so gross, wanton and
          culpable as to show a reckless disregard for
          human life, unintentionally causes the
          serious bodily injury of another person
          resulting in permanent and significant

          B. If, in addition, the conduct of the
          defendant was so gross, wanton and culpable
          as to show a reckless disregard for human
          life, he shall be guilty of aggravated
          involuntary manslaughter, a felony
          punishable by a term of imprisonment of not
          less than one nor more than twenty years,
          one year of which shall be a mandatory,
          minimum term of imprisonment.

                              - 18 -
             physical impairment shall be guilty of a
             Class 6 felony.

Code § 18.2-51.4(A).     In this statute, as with the DUI

manslaughter statute, the legislature included the same mens rea

language ("reckless disregard for human life") used in the child

endangerment statute.     The actus reus requirement of the DUI

maiming statute, however, requires a specific form of "serious

bodily injury."     Nothing in this statute or in our cases

interpreting it requires a fact finder to analyze the

defendant's behavior in the abstract to determine if it exposed

the victim to a lethal risk of harm before considering the

actual, non-fatal harm inflicted.

        For these reasons, I believe the phrase "reckless disregard

for human life" should be interpreted as a mens rea requirement

synonymous with criminal negligence.      The phrase does not, in my

judgment, include any actus reus requirement limiting the scope of

the statute only to lethal risks of harm.      By interpreting the

statute to include such a limitation, the majority has "conflated

the two theoretical pillars of criminal law —— actus reus and mens

rea."    United States v. Bartley, 230 F.3d 667, 677 (4th Cir. 2000)

(Wilkinson, C.J., dissenting).

                                   B.

        In legal codes, as in ordinary conversation, "a word is known

by the company it keeps."    Sprietsma v. Mercury Marine, 537 U.S.

___, 123 S. Ct. 518, 526 (2002) (quoting Gustafson v. Alloyd, Co.,
                                 - 19 -
513 U.S. 561, 575 (1995)).    The same can be said of a statutory

phrase.   "Under basic principles of statutory construction, we

consider all relevant provisions of a statute and do not isolate

particular words or phrases."   Lee County v. Town of St. Charles,

264 Va. 344, 348, 568 S.E.2d 680, 682 (2002); see also Lucy v.

County of Albemarle, 258 Va. 118, 129, 516 S.E.2d 480, 485 (1999)

("Statutes which have the same general or common purpose or are

parts of the same general plan are also ordinarily considered as

in pari materia.").   We thus consider "the entire body of

legislation and the statutory scheme to determine the 'true

intention of each part.'"    McCray v. Commonwealth, 37 Va. App.

202, 204, 556 S.E.2d 50, 51 (2001) (citation omitted).   And

despite the strict construction afforded penal statutes, a

defendant "is not 'entitled to a favorable result based upon an

unreasonably restrictive interpretation of the statute.'"    Id.

     Following these principles, Code § 18.2-371.1(B)'s child

endangerment provision should be read in harmony with subsection

(A), which addresses acts or omissions resulting in "serious

injury to the life or health of such child."   Read this way, Code

§ 18.2-371.1 contains a dichotomy between behavior causing serious

harm to a child in subsection (A) and behavior creating a

realistic risk of serious harm to a child in subsection (B).    In

this sense, subsection (B) equally condemns a parent who, for

example, exposes a child through criminal negligence to the risk

of a nonfatal gunshot wound every bit as much as one who exposes a
                               - 20 -
child to a lethal one.   It should be unnecessary to have to prove

that the wound, had it been inflicted, would have likely killed

the child.   By incorporating the actus reus in subsection (A),

subsection (B)'s endangerment provision limits liability to

criminal negligence that creates a realistic risk of "serious harm

to the life or health" of the child.

                                II.

     When faced with a challenge to the sufficiency of the

evidence, 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."   Davis v.

Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002)

(citations omitted); see also McGee v. Commonwealth, 25 Va. App.

193, 197-98, 487 S.E.2d 259, 261 (1997) (en banc).

     When a jury decides the case, Code § 8.01-680 requires that

"we review the jury's decision to see if reasonable jurors could

have made the choices that the jury did make."    Pease v.

Commonwealth, 39 Va. App. 342, 355, 573 S.E.2d 272, 278 (2002) (en

banc).   "We let the decision stand unless we conclude no rational

juror could have reached that decision."   Id.   The same standard

applies when a trial judge sits as the fact finder because "the

court's judgment is accorded the same weight as a jury verdict."




                               - 21 -
Shackleford v. Commonwealth, 262 Va. 196, 209, 547 S.E.2d 899, 907

(2001). 2

     In other words, when faced with a challenge to the

sufficiency of the evidence, 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).   It asks instead whether "any rational trier

of fact could have found the essential elements of the crime

beyond a reasonable doubt."   Id. at 319 (emphasis in original).

This deference applies not only to the historical facts

themselves, but the inferences from those facts as well.     "The

inferences to be drawn from proven facts, so long as they are

reasonable, are within the province of the trier of fact."

Hancock v. Commonwealth, 12 Va. App. 774, 783, 407 S.E.2d 301,

306 (1991).

     Governed by this standard of review, the evidence satisfies

the sufficiency test.   A rational fact finder could have found


     2
       Unless the fact finder acted unreasonably, we consider it
our duty not to "substitute our judgment for that of the trier
of fact, even were our opinion to differ." Wactor v.
Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002)
(quoting Commonwealth v. Presley, 256 Va. 465, 466, 507 S.E.2d
72, 72 (1998)); see also Pease, 39 Va. App. at 355, 573 S.E.2d
at 278; Harris v. Commonwealth, 38 Va. App. 680, 691, 568 S.E.2d
385, 390 (2002). Thus, on appeal from a bench trial, if
"reasonable jurists could disagree about the probative force of
the facts, we have no authority to substitute our views for
those of the trial judge." Campbell v. Commonwealth, 39
Va. App. 180, 186, 571 S.E.2d 906, 909 (2002).
                              - 22 -
Duncan guilty under Code § 18.2-371.1(B).    Duncan left a

six-month-old baby with strangers he had met briefly only the day

before.   During his seven-hour hiatus, Duncan failed to provide

any nutrition or hydration for the infant.   Upon returning, Duncan

failed to feed the infant for at least another two hours.    When

the baby began "crying and making a lot of noise" after having no

nourishment or hydration for about ten hours, Duncan stated he

would "take care of the problem" and willfully gave the infant a

bottle containing alcohol, a known diuretic.   Had the child slept

the rest of the night from the alcohol, the next day he would have

gone 20 hours or more without any nutrition or hydration at all.

Even Duncan —— who denied doing anything of the kind —— seemed to

understand the danger of giving alcohol to a dehydrated

six-month-old infant, when he declared:   "I would never do that to

my son.   I would never do that." 3

     I agree completely with Chief Judge Fitzpatrick that "[h]ad

the baby died as a result of ingesting the alcohol laced drink, a

manslaughter indictment would have been the outcome."   Ante at 13.

I thus cannot say, as the majority does, that the trial court




     3
       Duncan failed to move to strike at the close of the
Commonwealth's case and failed to make a formal motion to strike
at the conclusion of all evidence. Though Duncan's counsel
argued that the evidence did not prove Duncan was the one who
put alcohol in the infant's bottle, counsel never once argued
that feeding this amount of alcohol to a dehydrated infant could
not constitute, as a matter of law, felony neglect under Code
§ 18.2-371.1(B), the issue decided by the majority.
                              - 23 -
erred as a matter of law in finding Duncan guilty of felony child

endangerment under Code § 18.2-371.1(B).

     I thus respectfully dissent.




                              - 24 -
                                               Monday      30th

          September, 2002.


Carlton Wendell Duncan,                                    Appellant,

against      Record No. 1060-01-1
             Circuit Court No. CR11514-00

Commonwealth of Virginia,                                  Appellee.


                Upon a Petition for Rehearing En Banc

                      Before the Full Court


          On September 9, 2002 came the appellee, by the

Attorney General of Virginia, and filed a petition praying that

the Court set aside the judgment rendered herein on August 27,

2002, and grant a rehearing en banc thereof.

          On consideration whereof, the petition for rehearing

en banc is granted, the mandate entered herein on August 27,

2002 is stayed pending the decision of the Court en banc, and

the appeal is reinstated on the docket of this Court.

          The parties shall file briefs in compliance with Rule

5A:35. The appellee shall attach as an addendum to the opening

brief upon rehearing en banc a copy of the opinion previously

rendered by the Court in this matter. It is further ordered that




                              - 25 -
the appellee shall file with the clerk of this Court twelve

additional copies of the appendix previously filed in this case.


                          A Copy,

                               Teste:

                                        Cynthia L. McCoy, Clerk
                               By:

                                                  Deputy Clerk




                              - 26 -
                      COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Bumgardner and Clements
Argued at Chesapeake, Virginia


CARLTON WENDELL DUNCAN
                                           MEMORANDUM OPINION * BY
v.   Record No. 1060-01-1               JUDGE JEAN HARRISON CLEMENTS
                                                AUGUST 27, 2002
COMMONWEALTH OF VIRGINIA


        FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG
                     AND COUNTY OF JAMES CITY
                      Thomas B. Hoover, Judge

          LeeAnn N. Barnes for appellant.

          Virginia B. Theisen, Assistant Attorney
          General (Randolph A. Beales, Attorney
          General, on brief), for appellee.


     Carlton Wendell Duncan was convicted in a bench trial of

felony child abuse and neglect in violation of Code

§ 18.2-371.1(B).   On appeal, he contends the evidence was

insufficient to sustain the conviction.   We agree and reverse the

conviction.

     As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

value, this opinion recites only those facts and incidents of the

proceedings as necessary to the parties' understanding of the

disposition of this appeal.


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.

                               - 27 -
     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."   Bright v. Commonwealth, 4 Va. App. 248,

250, 356 S.E.2d 443, 444 (1997).   "In so doing, we must 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 that may be

drawn therefrom."   Watkins v. Commonwealth, 26 Va. App. 335, 349,

494 S.E.2d 859, 866 (1998).   We are further mindful that the

"credibility of a witness, the weight accorded the testimony, and

the inferences to be drawn from proven facts are matters solely

for the fact finder's determination."   Crawley v. Commonwealth, 29

Va. App. 372, 375, 512 S.E.2d 169, 170 (1999).    We will not

disturb the conviction unless it is plainly wrong or unsupported

by the evidence.    Sutphin v. Commonwealth, 1 Va. App. 241, 243,

337 S.E.2d 897, 898 (1985).

     Here, viewed in the light most favorable to the Commonwealth,

the evidence established that, on June 12, 2000, around 3:30 p.m.,

Jennifer Dansby returned home from work to find Michelle Cribbs,

several friends, and Duncan's six-month-old son there.   Duncan was

not there.   Dansby shared the home with Cribbs and Elizabeth Nemo.

She had first met Duncan and his baby the day before when Dansby's

ex-housemate had invited him to Dansby's house.    The baby was

awake when Dansby got home but would doze off as Dansby and the
                               - 28 -
others took turns holding him and playing with him.      There was no

baby food or formula in the house, so Dansby and her friends were

unable to feed the child.   According to Dansby, nobody fed the

child from 3:30 p.m. until 11:00 p.m.

     Nemo arrived home at 9:30 p.m.       Later in the evening, an

impromptu party began as other friends arrived and people started

drinking beer and using illegal drugs.      Dansby, her housemates,

and her friends continued to take turns holding the baby, passing

him around.   Duncan arrived at the house around 10:30 p.m.,

bringing a bag of marijuana with him.      Nemo noticed that his eyes

were "glazed over" and the whites of his eyes were yellow.       Duncan

began drinking with the group.    When the subject of babies came

up, Duncan started talking about women he had impregnated and the

abortions they had had.   Later, Duncan took the baby from Nemo,

put him on the couch, and, holding him by his hands, lifted him up

off the couch.    The baby started crying.

     Around midnight, the baby became fussy and started crying

loudly.   Duncan, saying he would "take care of the problem," took

the child from his carriage in the living room and carried him

into the bathroom, and then into a back bedroom.      Nemo, who was

concerned about the baby, followed them.      Looking into the

bedroom, she saw the baby lying on a futon.      Duncan was sitting

next to the futon, lifting it "as if it was going towards the

baby's body."    When Duncan saw Nemo, he put the futon down and


                                 - 29 -
told her he was looking for a pacifier.   Duncan left the room, and

Nemo picked up the baby, who was still crying.

     Duncan went into the kitchen.    Dansby heard him open the

refrigerator door, which was "odd," she thought, because there was

only beer and wine coolers in the refrigerator.   Approximately

five minutes later, Duncan came out of the kitchen with a baby

bottle, which he took to the back room and gave to Nemo.   Nemo

started feeding the child, and Duncan left the room and then went

outside.

     While feeding the baby, Nemo went into the living room and

sat down with her friends.   Nemo then noticed that the liquid in

the baby bottle had a "pinkish color" and smelled like wine

cooler.    After a friend tasted the liquid in the bottle and

confirmed that it tasted of alcohol, Dansby, who described the

liquid as having a "milky pinkish color," called the hospital and

the police.   She then took the baby bottle, which was a little

more than half full, and hid it in the microwave oven until the

police arrived.   While in the kitchen, Dansby noticed that a

bottle of wine cooler was missing from the refrigerator.   She

found an open bottle of wine cooler that had not been there before

on the kitchen counter behind some fast-food bags of trash.     It

had approximately three inches of liquid missing from the top.

The contents of the bottle were "pink."

     Approximately fifteen minutes later, Duncan, who was unaware

the police had been called, came back inside to check on his
                               - 30 -
child.    He sat on the couch next to Nemo, who continued to hold

the baby until the police came.

     When the police arrived, Officer Nacastro noticed that Duncan

had "bloodshot eyes," his speech was "slightly mumbled," and he

smelled "of intoxicant[s]."   The police took the baby bottle and

the opened bottle of wine cooler for analysis.   Laboratory tests

revealed that the liquid in the twelve-ounce bottle of wine cooler

was 3.2% ethyl alcohol by volume.    The liquid in the eight-ounce

baby bottle, which the police noted was "whitish [with a] little

pinkish color in that," was 2.8% ethyl alcohol by volume.

     At trial, Duncan denied putting any alcohol in his son's baby

bottle.   He said he picked up the baby bottle from the kitchen

table and gave it to Nemo, but did not know it contained wine

cooler.    He also testified that he had fed the baby apple raisin

cereal earlier in the evening.    He also claimed he put his son on

the futon in the back bedroom and rubbed his back so he could go

to sleep.

     Code § 18.2-371.1(B) provides that "[a]ny 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."

     After hearing the evidence and argument of counsel, the trial

judge stated:


                                 - 31 -
                  I find that Mr. Duncan is not a
             believable witness. I reject his testimony
             as to the explanation. I find the
             Commonwealth's witnesses, again Ms. Nemo and
             Ms. Dansby together with Officer Nacastro, to
             clearly show and prove beyond a reasonable
             doubt that the defendant took the baby back
             to the back bedroom and whatever happened on
             the [futon], he then is the one who goes to
             the kitchen area, he comes back with a bottle
             that has this clear pinkish substance in it,
             he gives the bottle to Ms. Nemo, then he
             walks out.
                  Feeding alcohol to a six-month baby is
             clear neglect. Coupled with all the other
             acts, omissions and commissions that he did,
             I find the defendant guilty beyond a
             reasonable doubt of the felony charge.

     On appeal, Duncan does not challenge the sufficiency of the

evidence to show that he committed certain improper acts and

omissions in the care of his son and that such acts and omissions

were willful.    In addition, he concedes that such willful acts and

omissions could be construed as being irresponsible, derelict, and

negligent.    He argues, however, that, even viewing the evidence in

the light most favorable to the Commonwealth, his willful acts and

omissions were not so gross, wanton, and culpable as to show a

reckless disregard for human life.

     The Commonwealth argues that Duncan's acts and omissions in

the care of his son support his conviction.    Specifically, the

Commonwealth asserts that Duncan's leaving the child in the care

of people he had known for just a day; failing to feed, or make

sure someone else fed, the child for more than seven hours;

returning to Dansby's home intoxicated and in possession of

                                 - 32 -
marijuana; "put[ting] the child on a futon and then lift[ing] the

futon until he was caught" by Nemo; and, most significantly,

causing Nemo, unbeknownst to her, to feed wine cooler to the baby

was conduct so gross, wanton and culpable as to show a reckless

disregard for the life of his six-month-old son.    We disagree with

the Commonwealth.

     Plainly, Duncan was negligent in caring for his child.       His

conduct was inexcusable and cannot be condoned.    A finding of

negligence, however, is not enough, by itself, to sustain a

conviction for criminal abuse and neglect of a child under Code

§ 18.2-371.1.   See Ellis v. Commonwealth, 29 Va. App. 548, 555,

513 S.E.2d 453, 457 (1999) (holding that "something more than

negligence must be proved beyond a reasonable doubt to support

[defendant's] conviction" of criminal child neglect).   To sustain

Duncan's conviction in this case, the Commonwealth had to prove

beyond a reasonable doubt that Duncan 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.

Code § 18.2-371.1(B).   In Snow v. Commonwealth, 33 Va. App. 766,

775, 537 S.E.2d 6, 11 (2000), we held that the defendant's act of

driving a car with children in it in excess of one hundred miles

per hour while trying to elude the police was not only illegal but

"dangerous," and, thus, constituted conduct "so gross, wanton, and

culpable as to show a reckless disregard for human life."   The


                               - 33 -
same cannot be said, however, of the willful acts and omissions

before us in this case.

        Here, although Duncan, as the Commonwealth notes, left his

son with women he had known for only a day, the evidence supports

the trial court's finding that the women found "the baby

interesting and cute" and enjoyed "looking after" him.    Indeed,

they continued to play with and hold the child even after Duncan

returned to the women's house.    In addition, Duncan did interact

on occasion with his son upon his return to the house and, despite

his apparent intoxication and possession of illicit drugs,

responded to him when the child became fussy and cried loudly.

        Furthermore, although Nemo testified that she was concerned

for the baby's safety when Duncan took the child to the back

bedroom after announcing he would "take care of the problem," we

find, on the evidence presented, that her assignment of ill will

to Duncan was purely speculative, as was her perception that

Duncan intended to harm the child when she saw him lift the futon.

The trial court correctly gave little, if any, weight to such

conjecture in reaching its decision.

        Likewise, the evidence did not show that Duncan's failure to

feed his son for seven and a half hours constituted conduct so

gross, wanton, and culpable as to show a reckless disregard for

the child's life, particularly as there was no evidence that the

baby was hungry or otherwise in distress during that period of

time.    In fact, the evidence showed that, when the baby did become
                                 - 34 -
fussy and start to cry loudly, Duncan took steps to feed him,

albeit with a bottle containing wine cooler—which brings us to the

crux of this appeal.

        In finding Duncan guilty of violating Code § 18.2-371.1(B),

the trial court attached the greatest significance to Duncan's act

of putting wine cooler in the baby's bottle and causing it to be

fed to his son.    Clearly, that was the most serious allegation

against Duncan.    Duncan argues that, given the low alcohol content

of the mixture fed to his son, his child's life would not have

been endangered even if he had consumed the entire contents of the

bottle.

        The question before us, then, is whether feeding a

six-month-old infant approximately eight ounces of liquid

containing 2.8% ethyl alcohol by volume is an act so gross,

wanton, and culpable as to show a reckless disregard for human

life.    The Commonwealth asserts that "[i]t is beyond dispute that

feeding alcohol to an infant is dangerous."    Plainly, at some

quantitative level, based on the alcoholic content and volume of

the liquid ingested, feeding a six-month-old child liquid that

contains alcohol would, like driving an automobile in excess of

one hundred miles an hour while being pursued by the police,

constitute a danger to the child's life.    In this case, however,

there was simply no evidence presented to show that feeding

Duncan's six-month-old son up to eight ounces of a liquid that was

2.8% ethyl alcohol by volume put the child's life in danger.
                               - 35 -
Hence, we conclude that the evidence did not support such a

finding beyond a reasonable doubt by the trial court.

     We hold, therefore, that the Commonwealth's evidence was

insufficient, as a matter of law, to prove beyond a reasonable

doubt that Duncan's willful acts and omissions in caring for his

child were so gross, wanton, and culpable as to show a reckless

disregard for human life.   Accordingly, we reverse Duncan's

conviction of felony child abuse and neglect under Code

§ 18.2-371.1(B) and dismiss the indictment.

                                         Reversed and dismissed.




                               - 36 -
