Hannon v. Commonwealth

• Decision Date: 22 August 2017
• Docket Number: Record No. 1374-16-3.
• Citation: 803 S.E.2d 355,68 Va.App. 87
• Court: Virginia Court of Appeals
• Parties: Kaniesha Shatae HANNON v. COMMONWEALTH of Virginia

68 Va.App. 87

803 S.E.2d 355

Kaniesha Shatae HANNON

v.COMMONWEALTH of Virginia

Record No. 1374-16-3.

Court of Appeals of Virginia, Lexington.

AUGUST 22, 2017

Caitlin Reynolds-Vivanco, Assistant Public Defender, for appellant.

J. Christian Obenshain, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Petty, Alston and Russell

OPINION BY JUDGE WESLEY G. RUSSELL, JR.

Kaniesha Shatae Hannon, appellant, was convicted of two counts of felony child endangerment in violation of Code § 18.2-371.1(B)(1). On appeal, she contends the evidence is insufficient to sustain her convictions. We agree with appellant and reverse her convictions.

BACKGROUND

Because the parties submitted the case to the trial court on stipulated evidence, the evidence is not in dispute.

At 6:12 p.m. on November 8, 2015, Deputy R.M. Turner responded to a call that two small children had been left unattended in a parked car in the parking lot of a Dollar General store. Deputy Turner arrived at the parking lot and located a five-year-old boy and a four-month-old girl sitting in a car with unlocked doors. The temperature outside was forty-eight degrees. Deputy Turner spoke with the boy, who told the deputy that he and his sister were "OK." A man sitting in his car beside the car containing the children told Deputy Turner that the children had been alone in the car for approximately ten minutes before the deputy arrived.

Appellant then came out from the store and questioned Deputy Turner as to why he was talking to her children. He explained that she had left her children in the unlocked car in a public parking lot "where numerous vehicles were coming in and out." The manager of the store came outside and advised Deputy Turner that the store's video surveillance system had recorded appellant going into and coming out of the store. The video revealed that appellant was inside the store for a total of fourteen minutes and thirty-four seconds.

Deputy Turner contacted Child Protective Services, and a CPS worker came to the scene. The CPS worker informed appellant that the children would have to be placed in someone else's custody for the night. Arrangements were made for appellant's mother to take custody of the children for the night. CPS directed appellant to report to their offices in the morning to discuss the incident. CPS conducted a family assessment, concluded that a complaint was unfounded, and returned the children to the custody of appellant, where they remained at the time of trial.

Having heard the stipulated evidence and the argument of counsel, the trial court took the matter under advisement. In a letter opinion, the trial court, relying upon this Court's decision in Miller v. Commonwealth, 64 Va. App. 527, 769 S.E.2d 706 (2015), found appellant guilty of violating Code § 18.2-371.1(B)(1). In the opinion letter, the trial court explained its reasoning:

Leaving small children unsupervised in an unlocked car poses a substantial risk for injury—or death. The five year-old in Ms. Hannon's car could have exited the car and faced various types of danger, leaving the four-month old alone. Both children, moreover, were susceptible to a stranger entering the unlocked car; that person could have stolen the car, abducted the children, or committed some other crime. At such young ages, both children faced serious danger being left alone in [an] unlocked car.

The trial court observed that the facts in Miller"seem a bit more ‘serious' in terms of length of time the children were left alone, etc." The trial court also recognized that the conviction in Miller was for violation of Code § 18.2-371, a misdemeanor, as opposed to Code § 18.2-371.1(B)(1), the felony provision under which appellant was charged. Ultimately, despite the differences, the trial court found the situations sufficiently analogous and Miller sufficiently persuasive to convict appellant of the two felony counts.

Appellant argues that the evidence was insufficient to meet the felony standard. Specifically, she argues that the evidence did not establish she acted with a reckless disregard for human life, emphasizing that the five year old was old enough to call for help had any danger arisen during the short time the children were left unattended.

ANALYSIS

I. Standard of Review

Ordinarily, when faced with "a challenge to the sufficiency of the evidence, we review the evidence in the light most favorable to the prevailing party, including any inferences the factfinder may reasonably have drawn from the facts proved." Smith v. Commonwealth, 282 Va. 449, 453, 718 S.E.2d 452, 454 (2011). Here, there is no dispute as to the "facts proved"; rather, the parties disagree as to whether the undisputed facts satisfy the elements necessary to support a conviction for violation of Code § 18.2-371.1(B)(1). "[W]hen an appeal presents the question whether the facts proved, and the legitimate inferences drawn from them, fall within the language of a statute, we must construe statutory language to answer the question. That function presents a pure question of law which we consider de novo on appeal." Id. at 453-54, 718 S.E.2d at 454 ; see also Hodges v. Commonwealth, 64 Va. App. 687, 693, 771 S.E.2d 693, 696 (2015).

II. Parental Inattention as Criminal Conduct

Once again, we are called upon to address when less-than-diligent parenting becomes criminal, and, if criminal, whether such inattention constitutes a felony. In doing so, we note that the policy determinations underlying the statutory classifications have been made by the General Assembly; our task is merely to apply the established statutory standards to individual cases. See Daily Press, LLC v. Office of the Exec. Sec'y, 293 Va. 551, 800 S.E.2d 822, 824 (2017) ("Public policy questions concerning where to draw the line ... fall within the purview of the General Assembly. In a regime of separated powers that assigns to the legislature the responsibility for charting public policy, our function is limited to adjudicating ... question[s] of law....").

The General Assembly expressly has recognized the fundamental nature of the parent child relationship. Code § 1-240.1 provides that "[a] parent has a fundamental right to make decisions concerning the upbringing, education, and care of the parent's child." Thus, although there are varied opinions about what constitutes "good parenting" and the appropriate level of parental supervision, parents are afforded a great deal of latitude regarding the care of their children.

This latitude, however, is not without bounds. The Commonwealth has a legitimate interest in preserving the physical safety of children. Knox v. Lynchburg Div. of Social Servs., 223 Va. 213, 223, 288 S.E.2d 399, 404 (1982) ( "[T]he protection of children from harm, whether moral, emotional, mental, or physical, is a valid and compelling state interest." (citing Stanley v. Illinois, 405 U.S. 645, 652, 92 S.Ct. 1208, 1213, 31 L.Ed.2d 551 (1972) )). Accordingly, the General Assembly can (and has) criminalized certain actions or inaction by parents, guardians or other custodians that either cause harm to children or place children in situations where harm is likely to occur.

To that end, the General Assembly enacted Code § 18.2-317.1(B)(1), which provides that

[a]ny 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 is guilty of a Class 6 felony.

In reviewing the elements necessary to support a conviction for a violation of Code § 18.2-371.1(B)(1), we first note that the statute does not require that a child actually suffer an injury as a result of a parent's act or omission.¹

Commonwealth v. Duncan, 267 Va. 377, 385, 593 S.E.2d 210, 215 (2004). "The absence of an injury requirement in subsection (B)(1) ... demonstrates a legislative intent to prohibit conduct that also has the potential of endangering a child's life." Id. Nevertheless, the mere fact that a child might be faced with a theoretical danger is insufficient to support a conviction under the statute. Jones v. Commonwealth, 272 Va. 692, 701, 636 S.E.2d 403, 408 (2006) ("[A] conviction under Code § 18.2-371.1(B)(1) requires more than a mere possibility of harm."). Rather, the act or omission must give rise to a "substantial or probable risk of harm." Id.

The remaining elements of the statute require "the Commonwealth [to] prove beyond a reasonable doubt that the accused (1) committed a ‘willful act or omission in the care’ of a child, and (2) that the act or omission is ‘so gross, wanton, and culpable as to show a reckless disregard for human life.’ " Coomer v. Commonwealth, 67 Va. App. 537, 545-46, 797 S.E.2d 787, 791 (2017). We address each element in turn.

For purposes of Code § 18.2-371.1(B)(1), "[t]he term ‘willful act [or omission]’ imports knowledge and consciousness that injury will result from the act [or omission]. The act [or omission] must be intended or it must involve a reckless disregard for the rights of another and will probably result in an injury." Barrett v. Commonwealth, 268 Va. 170, 183, 597 S.E.2d 104, 111 (2004). In short, a parent's act or omission is "willful" as used in Code § 18.2-371.1(B)(1) only if an objectively reasonable person would understand that injury to the child is likely to result.

Similarly, whether the statutory requirement that the act or omission "so gross, wanton, and culpable as to show a reckless disregard for human life" has been met turns on whether an injury to the child is likely to occur as a result of the act or omission. As the Supreme Court has held regarding Code § 18.2-371.1(B)(1) :

The term "gross, wanton, and culpable" describes conduct. The word "gross" means aggravated or increased negligence while the word "culpable" means deserving of blame or censure. "Gross negligence" is culpable or criminal when accompanied

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