                      COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Coleman and Lemons
Argued at Salem, Virginia


SANDY JEAN ROBERTS
                                           MEMORANDUM OPINION * BY
v.   Record No. 1594-98-3                 JUDGE SAM W. COLEMAN III
                                                JUNE 8, 1999
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
                    J. Samuel Johnston, Jr., Judge

          Grady W. Donaldson, Jr. (Schenkel &
          Donaldson, P.C., on brief), for appellant.


          Marla Graff Decker, Assistant Attorney
          General (Mark L. Earley, Attorney General;
          Richard B. Campbell, Assistant Attorney
          General, on brief), for appellee.



     Sandy Jean Roberts was convicted in a bench trial of felony

abuse and neglect of her child in violation of Code § 18.2-371.1.

On appeal, she contends that the evidence was insufficient to

support a finding that she committed a willful act or omission in

violation of Code § 18.2-371.1.   We disagree and affirm the

conviction.

                             BACKGROUND

     When a defendant challenges the sufficiency of the evidence

to convict, we review the evidence, and all reasonable inferences


    *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
fairly deducible therefrom, in the light most favorable to the

Commonwealth.   See Stockton v. Commonwealth, 227 Va. 124, 145, 314

S.E.2d 371, 385 (1984).

     So viewed, the evidence proved that Roberts noticed injuries

to her son, Melvin, shortly before 6:00 a.m. on August 29, 1996.

The four-year-old child had two black eyes, bruises on his head

and back, a split lip, a bald spot in the back of his head where

it appeared hair had been pulled out, an abrasion on his chin, and

blood coming out of his ear.   Roberts administered ice and Tylenol

to the child.   Roberts discussed with her boyfriend, Terry Creasy,

and a visiting friend, Theresa Silby, whether to take the child to

the hospital.   Silby offered to do so, but Creasy advised against

it warning that it would inevitably arouse the suspicions of

social services.   Creasy remained at the residence all day on

August 29.

     Roberts testified that Creasy had beaten her during the

evening of August 28, and she said that she “was very scared” and

“felt it was [in her] best interest to go along with what he

said.”

     On the morning of August 30, Creasy left for work.   Creasy

advised Roberts not to open the door for anyone and not to take

the child to the hospital.   Fearing that Creasy “might be at the

hospital,” and not knowing “who to trust,” Roberts drove to a

store to call her mother around 4:30 or 5:30 p.m.   Roberts left a

message asking her mother to take her and the injured child to the

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doctor.    Roberts’ mother testified that Roberts left a message

asking her to take Melvin to the hospital.    However, the mother

testified that Roberts called in the morning rather than the

afternoon.

        When Roberts returned to her residence, around 5:30 p.m., a

police investigator and a social services investigator were there.

On the investigators’ advice, Roberts packed her clothing and the

children’s clothing into Silby’s vehicle and drove the children to

her sister’s house.    When Roberts’ sister refused to watch

Roberts’ other children, Silby agreed to take Melvin to the

hospital.    At 11:00 p.m. on August 30, the hospital admitted

Melvin –- approximately forty hours after Roberts first noticed

the injuries.

        Melvin underwent a standard physical examination and a CAT

scan.    Doctors noted multiple contusions, black eyes, an abrasion,

and the presence of blood in the auditory canal.    Melvin had no

fractured bones, and the CAT scan revealed no intracranial

bleeding or swelling.    Dr. Frederick Sloan, who examined Melvin,

testified that it was medically necessary for the child to be seen

by a physician and that the injuries indicated “a fair amount of

trauma.”    Doctors discharged Melvin from the hospital August 31,

at 12:40 a.m.

                                ANALYSIS

        As previously stated, and pursuant to familiar principles, we

view the evidence in the light most favorable to the Commonwealth.

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Additionally, the credibility of the witnesses and the weight

accorded their testimony are matters solely within the province of

the fact finder.    See Lane v. Commonwealth, 184 Va. 603, 610-11,

35 S.E.2d 749, 752 (1945).   “The judgment of a trial court sitting

without a jury is entitled to the same weight as a jury verdict

and will not be set aside unless it appears from the evidence that

the judgment is plainly wrong or without evidence to support it.”

Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418

(1987).

     The trial court convicted Roberts for violating Code

§ 18.2-371.1 and sentenced her to five years, two of which were

conditionally suspended.    The record does not specify whether the

trial court convicted her under subsection (A) or (B) of Code

§ 18.2-371.1.   However, the sentence imposed by the trial court is

within the range of the lesser offense of subsection (B) –- a

Class 6 felony.    Therefore, on review, if we find evidence

sufficient to convict under subsection (B), we affirm the

conviction of the trial court.

     We find that the evidence was sufficient for the trial court

to convict Roberts of felony neglect of a child under Code

§ 18.2-371.1(B).    Roberts’ forty-hour delay in seeking medical

attention for her son Melvin, after recognizing that he suffered

extensive abuse, constituted a “willful . . . omission in the care

of a child . . . so gross, wanton and culpable as to show a

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

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     Roberts contends that her fear of Creasy justified her

delay in seeking the medical attention for Melvin.   She does not

assert that the facts are not sufficient to show that she failed

or delayed in getting medical care for her son.   She argues,

however, that the omission was not willful but rather was

because she feared for her own safety and well-being.     Although

akin to the defense of duress or coercion, Roberts claims that

she did not possess the requisite intent to willfully fail or

omit to obtain medical care for her son.   However, viewed in the

light most favorable to the Commonwealth, the evidence proved

that Creasy “advised” Roberts against seeking medical attention

for Melvin.   He did not prevent Roberts from doing so.   There

was no evidence that Creasy threatened Roberts or that he

physically prevented her from seeking medical attention for

Melvin.   Although Roberts testified that she feared Creasy and

that he had beaten her the night before, the evidence showed

that on the morning of August 30, despite Creasy’s departure

from the residence, Roberts continued to delay in acting on

behalf of her abused child until late in the afternoon.

Ultimately, Roberts did not take effective steps toward

obtaining medical attention until after investigators advised

her to do so.

     Accordingly, we find the evidence sufficient to support the

trial court’s finding that Roberts’ “willful . . . omission in

the care of [her] child was so gross, wanton and culpable as to

                               - 5 -
show a reckless disregard for human life,” in violation of Code

§ 18.2-371.1(B).   Thus, we affirm Roberts’ conviction.

                                                          Affirmed.




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