Ellis v. Com.
| Decision Date | 20 April 1999 |
| Docket Number | Record No. 0148-98-2. |
| Citation | 513 S.E.2d 453,29 Va. App. 548 |
| Parties | Brenda Ann ELLIS v. COMMONWEALTH of Virginia. |
| Court | Virginia Court of Appeals |
Amy M. Curtis (Bowen, Bryant, Champlin & Carr, on brief), Richmond, for appellant.
John H. McLees, Jr., Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Present: WILLIS, ELDER and ANNUNZIATA, JJ.
Brenda Ann Ellis ("appellant") was convicted by bench trial of child neglect in violation of Code § 18.2-371.1(A) and of cruelty to children in violation of Code § 40.1-103. Appellant appeals both convictions, contending the evidence was insufficient to find that she acted with the criminal intent or state of mind required to support the convictions. For the reasons set forth below, we reverse.
When considering the sufficiency of the evidence on appeal of a criminal conviction, we consider the evidence in the light most favorable to the Commonwealth and grant all reasonable inferences fairly deducible therefrom. See Brooks v. Commonwealth, 15 Va.App. 407, 414, 424 S.E.2d 566, 571 (1992)
. "An appellate court must discard all evidence of the accused that conflicts with that of the Commonwealth and regard as true all credible evidence favorable to the Commonwealth and all fair inferences reasonably deducible therefrom." Lea v. Commonwealth, 16 Va.App. 300, 303, 429 S.E.2d 477, 479 (1993).
Framed in this light, appellant's trial established the following relevant facts. Appellant is the mother of two girls, C.E. and L.M., who were four and two years of age, respectively, at the time of the following incident. Appellant lived with her daughters in a first-floor apartment at 2820 Tower Road, a two-story, wooden apartment building.
On the afternoon of April 12, 1997, appellant was at home with C.F. and L.M. At some point that day, appellant turned on a burner of the apartment's gas stove in order to light a cigarette. Appellant then removed a soft drink from the refrigerator and left her daughters in the apartment unattended, walking to La'Shawn Berkley's apartment in another building thirty to seventy-five yards from her building. The evidence demonstrated that appellant left her daughters in a bedroom with the door closed. The trial court inferred from the evidence that the children were napping at the time appellant left her apartment. Appellant and Berkley prepared food in a microwave oven and talked on the front porch of Berkley's apartment building; appellant's apartment was not visible from Berkley's porch.
A fire began in appellant's apartment shortly after appellant left. The tenant residing above appellant's apartment reported the fire at 2:11 p.m., when the smoke detector in his apartment went off. Appellant was unaware of the fire in her apartment until she heard the sirens of the fire department while on Berkley's porch. The fire department arrived at appellant's apartment at 2:17 p.m. Police Sergeant William Pannell arrived on the scene immediately thereafter and saw smoke and flames coming from the doorway of appellant's apartment. When Pannell arrived, he saw several people holding appellant in front of her apartment. Firemen entered the apartment, found C.E. and L.M. in a bedroom, and brought the children to safety.
As a result of the fire, C.E. suffered smoke inhalation and was admitted to a pediatric intensive care unit, where she received oxygen. L.M.'s injuries required a surgical procedure to remove soot from her lungs. The parties stipulated that L.M. suffered a "serious injury" as defined by Code § 18.2-371.1.
Assistant Fire Marshall Ronald Stokes examined the scene of the fire and testified as an expert witness regarding the causes and origins of fire, including the time required for a fire to develop under given conditions. At trial, Stokes testified the fire in appellant's apartment began at the stove. Stokes estimated the fire burned for at least thirty minutes before setting off the smoke detector in the apartment above appellant's residence. Stokes acknowledged his estimation of the fire's timing depended on a number of variables. During his investigation, Stokes also discovered that appellant's smoke detector was inoperable at the time of the fire. The Commonwealth presented no evidence that appellant intentionally left the gas jet burning before leaving her apartment.
Appellant admitted to Detective Harry Owens that she left her daughters unattended in order to visit Berkley's apartment. Appellant also said that she believed "she may have left [the gas stove] on." Appellant estimated that she had been out of the apartment for fifteen minutes before she became aware of the fire. Appellant told Francis Fitzpatrick, a child protective services worker who subsequently interviewed appellant., that the fire started because she "had turned on the burner of the stove to light a cigarette and had forgotten to cut the burner off and went outside." Appellant also stated to Fitzpatrick that "she didn't see anything wrong with what she had done by going outside and leaving the children alone in the apartment [and] that everyone at Park Lee does that."
Appellant was charged with child neglect in violation of Code § 18.2-371.1 and with cruelty to children in violation of Code 40.1-103. With respect to two-year-old L.M., the trial court found appellant guilty of child neglect. With respect to four-year-old C.E., the trial court found appellant guilty of cruelty to children.
In support of its holding, the court made the following findings of fact: "that the acts of the Defendant were leaving two children aged 27 months and four years nine months asleep in a closed apartment for a period of 15 to 30 minutes with a purpose of socializing with friends or neighbors some 30 to 50 yards away." The court further stated:
Taking the evidence in a light most favorable to the Defendant, demonstrates both recklessness and a callous indi[fference] as well as a willful and wanton disregard for the well-being, health, safety, and welfare of those children. The Court does find that in [the case of L.M.], serious injury had been sustained.
Appellant challenges her conviction under Code § 18.2471.1, contending the evidence was insufficient to prove her actions constituted a "willful" act or omission, as that term has been construed under Virginia law.1 We agree.
When ruling upon the sufficiency of the evidence, we grant the judgment of a trial court sitting without a jury the same weight as a jury verdict and will not disturb that judgment on appeal unless it is plainly wrong or without evidence to support it. See Myrick v. Commonwealth, Va.App. 333, 339, 412 S.E.2d 176, 179 (1991). "Intent may, and most often must, be proven by circumstantial evidence and the reasonable inferences to be drawn from facts that are within the province of the trier of fact." Fleming v. Commonwealth, 13 Va.App. 349, 353, 412 S.E.2d 180, 183 (1991).
Applying these standards of review, we find that under the circumstances of this case the evidence does not establish beyond a reasonable doubt that appellant acted with the requisite intent when she left her two children unattended. While appellant, without question, purposefully and intentionally left her apartment to visit a friend in another residential building, the intent which is relevant to our determination of "bad purpose" does not relate simply to why she left the apartment. Rather, it relates to the degree to which she was aware of the danger when leaving her children unattended. Here, no evidence establishes that she left the apartment with the intent to injure her children; nor does the evidence support the conclusion that she acted with knowledge or consciousness that her children would be injured as a likely result of her departure to visit a neighbor for a short period of time in another residential building.
While evidence in this case supports the conclusion that the fire in the apartment was the likely result of appellant's inadvertent failure to turn off a gas burner, it fails to show that appellant left the apartment knowing the burner was on and in conscious disregard of the likely ignition of a grease fire that would ultimately endanger the lives of her children. Unquestionably, the evidence supports the conclusion that appellant was negligent in forgetting to turn off the gas jet and in failing to check the operability of the apartment's smoke detectors; however, something more than negligence must be proved beyond a reasonable doubt to support her conviction. See Mosby v. Commonwealth, 23 Va.App. 53, 59, 473 S.E.2d 732, 735 (1996)
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