Flowers v. Com.

• Decision Date: 16 January 2007
• Docket Number: Record No. 2158-05-3.
• Citation: 49 Va. App. 241,639 S.E.2d 313
• Court: Virginia Court of Appeals
• Parties: Shirley Ann FLOWERS v. COMMONWEALTH of Virginia.

639 S.E.2d 313

49 Va. App. 241

Shirley Ann FLOWERS v. COMMONWEALTH of Virginia.

Record No. 2158-05-3.

Court of Appeals of Virginia, Salem.

January 16, 2007.

(Rena G. Berry; Andrea Muse, on brief) for appellant. Appellant submitting on brief.

Robert H. Anderson, III, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: HUMPHREYS, McCLANAHAN and PETTY, JJ.

HUMPHREYS, Judge.

Shirley Ann Flowers ("Flowers") appeals her conviction, following a bench trial, of reckless endangerment, in violation of Code § 18.2-371.1(B)(1). Flowers contends that the trial court erred in finding that the evidence was sufficient to prove that she acted "willfully" and in "reckless disregard of the life of another" within the meaning of Code § 18.2-371.1(B)(1). For the following reasons, we disagree, and therefore affirm the conviction.

BACKGROUND

When considering the sufficiency of the evidence on appeal of a criminal conviction, we view the evidence "in the light most favorable to the Commonwealth and grant all reasonable inferences fairly deducible therefrom." Ellis v. Commonwealth, 29 Va.App. 548, 551, 513 S.E.2d 453, 454 (1999). So viewed, the evidence established the following.

On January 17, 2004, A.W.¹ was spending the weekend with her mother, Kimberly Custer ("Custer"). A.W. made plans to spend the night with E.L., her friend and next-door neighbor. However, at some point in time, A.W. and E.L. decided to spend the night at Flowers' house with Flowers' daughter, M.F.² When A. W. arrived at Flowers' home for the evening, Flowers was asleep on the couch. A.W. went to M.F.'s bedroom, where M.F., her boyfriend, and E.L. were "hanging out." At some point in time, A.W. took four Ambien sleeping pills. A.W. remembers going to sleep, getting sick, and being unable to stand up.

Sometime between ten and twelve o'clock that night, Flowers went upstairs to check on the children.³ After seeing the children looking "very sleepy" and disoriented, Flowers called her daughter's fiancé, Jason Setchall ("Setchall"), and told him that she had "an emergency." She asked him to come over and check on the kids upstairs because "something seemed wrong." When Setchall arrived, sometime between ten and twelve o'clock, he noticed that the children⁴ were huddled around each other "staring at the floor" and that one of the girls was "drooling out of the mouth." Setchall told Flowers "they're obviously on something; you need to go ahead and get them checked out."

Instead of calling 911, Flowers called Ricky Waid ("Waid"), A.W.'s father. Flowers placed this call between 3:00 and 3:30 a.m., at least three hours after Setchall advised her that the children needed medical attention. Moreover, although A.W. was visiting her mother, who lived in the same complex, Flowers did not call her to tell her that something was wrong with A.W. Instead, she called Waid who lived "less than thirty minutes away" and who had physical custody of the child. Flowers told Waid that she believed A.W. had taken something and that she needed medical attention. However, Flowers asked him not to call his ex-wife, Custer, or the police, because she did not "want a bunch of hoopla" at her apartment. She indicated that Custer would only make the situation worse and that she did not "want the police involved." When Waid arrived, he found his daughter in M.F.'s room awake, but unable to stand. He "ended up having to pick [A.W.] up and physically move her out of the house." Waid then drove A.W. to the hospital.

A.W. arrived at the hospital at 4:53 a.m., and Dr. Paul Haskins ("Haskins") evaluated her within ten minutes of her arrival. Based on A.W.'s representation of her condition, Haskins treated her for possible ingestion of Ambien. A.W.'s exam indicated that she was "extremely tachacardic, or she had a very high heart rate." Dr. Haskins testified that tachacardia is "dangerous if it [is] prolonged" and could possibly "create a heart attack." Dr. Haskins also testified that, in hindsight, A.W. had not suffered a serious injury. However, at the time of her presentation at the emergency room, she "absolutely" had the potential for such injury.

A grand jury indicted Flowers on three counts of reckless endangerment, in violation of Code § 18.2-371.1(B)(1).⁵ During trial, the court and Flowers had the following dialog:

COURT: Your testimony from what I can remember [was that] . . . your major concern was to take care of the kids. . . . You had asked [Waid] not to call . . . [and you] wanted him to take kids to the hospital.

FLOWERS: Right.

COURT: Okay.

FLOWERS: I didn't want to take any chances. When you're dealing with teenagers, teenagers are taking Ecstasy, I found out the other day they were mixing Viagra with Ecstasy.

COURT: Alright, was there any indication . . .

FLOWERS: They're killing themselves.

COURT: Was there any indication to you that she was in need of hospitalization?

FLOWERS: No. Because I really don't know the child.

* * * * * *

COURT: Okay. Well let me ask you this then. If you, you did not know how she reacted, I believe is what you just testified to. You wanted [Waid] to take her to the emergency room because you didn't know what they had been having, they may have mixed drugs or whatever. At that juncture, not knowing what was going on, why didn't you call 9-1-1?

FLOWERS: I didn't see the need.

COURT: Well . . .

FLOWERS: I, these kids were, you'd had to have been there, Your Honor, these kids were coherent. They were walking, talking, they didn't really seem like they had anything wrong with them, but I didn't want to take the chance on maybe they took something. You know, I didn't want to take that chance.

COURT: Ms. Flowers, that's the reason I asked you the question about the hospitalization. You wanted them to go to the hospital. You didn't want them to be checked by a doctor tomorrow, you wanted them, on your own testimony, your major concern was to take care of the kids . . . [you] wanted [Waid] to take them to the hospital.

FLOWERS: Right, I asked him to take them straight . . .

COURT: If it's that dire need, Ms. Flowers, why didn't you call 9-1-1 because of the time frame it would take, you didn't know how long it was going to take him to get there.

On September 1, 2005, the trial court convicted Flowers of one count of reckless endangerment, and sentenced her to three years, with all but two months suspended. Flowers appeals.

ANALYSIS

On appeal Flowers contends that the evidence was insufficient to prove she acted "willfully" and "in reckless disregard" of another's life. For the following reasons, we disagree.

When the sufficiency of the evidence is challenged on appeal, the judgment of the trial court 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). Also, "[g]reat deference must be given to the fact finder who, having seen and heard the witnesses, assesses their credibility and weighs their testimony." Walton v. Commonwealth, 255 Va. 422, 426, 497 S.E.2d 869, 871 (1998).

Flowers was convicted of violating Code § 18.2-371.1(B)(1), which provides in relevant part as follows:

Any parent, guardian or other person responsible for the care of a child under the age of 18 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.

Thus, to support a conviction for felony child neglect, the Commonwealth must establish that the defendant, through her willful act or omission, created a situation placing the child at risk of actual physical harm. Barrett v. Commonwealth, 268 Va. 170, 183, 597 S.E.2d 104, 110 (2004).

A willful act is one "`which is intentional, or knowing, or voluntary, as distinguished from accidental.'" Ellis, 29 Va. App. at 554, 513 S.E.2d at 456 (quoting Snead v. Commonwealth, 11 Va.App. 643, 646, 400 S.E.2d 806, 807 (1991)); see also Morris v. Commonwealth, 272 Va. 732, 738, 636 S.E.2d 436, 439 (2006) ("[T]he term willful, as used in the statute, refers to conduct that `must be knowing or intentional, rather than accidental, and [undertaken] without justifiable excuse, without ground for believing the conduct is lawful, or with a bad purpose.'"). "The act necessarily implies `knowledge that particular conduct will likely result in injury or illegality.'" Mangano v. Commonwealth, 44 Va.App. 210, 214, 604 S.E.2d 118, 120 (2004) (quoting Ellis, 29 Va. App. at 554, 513 S.E.2d at 456). In other words, "the defendant must have been aware that [the] conduct was likely to result in serious injury." Id. at 215, 604 S.E.2d at 121 (citing Collado v. Commonwealth, 33 Va.App. 356, 366, 533 S.E.2d 625, 630 (2000) (shaken baby syndrome)).

Moreover, Code § 18.2-371.1(B)(1) does not require a showing of actual injury or death. Rather, it proscribes conduct that is so "gross, wanton and culpable" as to demonstrate a "reckless disregard" for the child's life. See Commonwealth v. Duncan, 267 Va. 377, 385, 593 S.E.2d 210, 215 (2004). "Such `reckless disregard' can be shown by conduct that subjects a child to a substantial risk of serious injury, as well as to a risk of death, because exposure to either type of risk can endanger the child's life." Id.; see also Barrett, 268 Va. at 186, 597 S.E.2d at 112.

In this case, even though Flowers believed that the children had taken something and that they needed immediate medical attention, she failed to call 911 or to take any other prompt action to secure medical attention for A.W. Specifically, Flowers waited three hours to call Waid. Moreover, she requested that Waid refrain from calling the police or the child's mother, who lived nearby, in order to avoid "any hoopla." In ruling from the bench, the trial court indicated that it was this omission — the deliberate...