Leslie Itutu Camp v. Com. of Va.

• Decision Date: 08 May 2018
• Docket Number: Record No. 0483-17-2
• Citation: 813 S.E.2d 10,68 Va.App. 694
• Parties: Leslie Itutu CAMP v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

68 Va.App. 694

813 S.E.2d 10

Leslie Itutu CAMP

v.COMMONWEALTH of Virginia

Record No. 0483-17-2

Court of Appeals of Virginia, Richmond.

May 8, 2018

James Joseph Ilijevich, Fredericksburg, for appellant.

John I. Jones, IV, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Chief Judge Huff, Judges Russell and Malveaux

OPINION BY JUDGE WESLEY G. RUSSELL, JR.

Appellant, Leslie Itutu Camp, was convicted of two counts of felony child neglect pursuant to Code § 18.2-371.1(B).¹ She contends the evidence was insufficient to support her convictions. Specifically, she contends the trial court erred "when it relied upon evidence of an elevated" blood alcohol content (BAC) to support her convictions for felony child neglect. We disagree and affirm.

BACKGROUND

"Under well-settled principles of appellate review, we consider the evidence presented at trial in the light most favorable to the Commonwealth, the prevailing party below." Smallwood v. Commonwealth, 278 Va. 625, 629, 688 S.E.2d 154, 156 (2009) (quoting Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008) ). This principle requires us to "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 to be drawn therefrom."

Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis and internal quotation marks omitted).

So viewed, the evidence establishes that, on the evening of December 25, 2014, Fredericksburg police officer Aheleza Lasco was on patrol in his marked police vehicle. While at an intersection at approximately 8:24 p.m., he observed an SUV on which both driver's side tires were completely flat. The SUV, driven by appellant, had difficulty making a turn into the intersection, nearly striking Lasco's patrol car. Lasco then followed appellant's vehicle into an apartment complex parking lot. Appellant and her two children, then seven and twelve years old, were exiting the SUV when Lasco approached.

Lasco initially believed appellant had been in an accident and needed assistance. When he asked her about the tires, she responded that she was "not aware" that the tires were flat. Initially, she was evasive to the point of "almost ignoring" Lasco. She then stated "something to the effect she'd hit a median somewhere." As they were speaking, Lasco smelled alcohol coming from appellant. When Lasco asked appellant if she had been drinking, she stated that she had been drinking at a restaurant around 7:30 that evening. At that point, one of the children spoke up and "said something to the effect of no, we were at auntie's house."

Based on his interaction with appellant, Lasco asked her to perform field sobriety tests. She agreed to attempt the tests, ultimately failing all three. Lasco first attempted to administer the finger dexterity test, but appellant began the test before Lasco finished giving her instructions and did not complete the test successfully. Appellant then attempted to perform the nine-step walk and turn test, which she failed. During the one-legged stand, appellant fell over. Appellant refused a preliminary breath test, and Lasco arrested her. Because of appellant's refusal to take a breath test, Lasco obtained a search warrant for a blood draw and transported appellant to Mary Washington Hospital.

Appellant's blood was drawn at 10:42 p.m. The analyzed sample revealed that her BAC was .25. At trial, Dr. Carol O'Neal, a forensic toxicologist supervisor with the Department of Forensic Science at the Northern Laboratory, testified that appellant's BAC concentration would affect an individual's steering accuracy, vision, balance and coordination, and the ability to see objects clearly. She also explained that appellant's BAC would cause "tunnel vision," meaning that the driver is just staring straight ahead and losing all reference to the periphery. Dr. O'Neal further testified that individuals typically reach their highest BAC concentration within thirty minutes of their last drink. For that reason, she expressed her opinion that if someone took a drink an hour before driving, and the blood was drawn three hours later, it could be expected that the "blood alcohol level at the time of driving [would be] higher than when the blood was taken." Finally, Dr. O'Neal opined that "the ability to drive safely is compromised" if a person drives with a BAC concentration of .25.

In convicting appellant of driving while intoxicated, the trial court pointed to appellant's admission to consuming alcohol, her operation of a vehicle with two flat tires, the strong odor of alcohol observed by Lasco, and her admission to hitting a median. The court further noted appellant's failure to complete the field sobriety tests and her belligerence towards Lasco and hospital staff. The court explained that "the BAC test of [.25] is consistent with all the other indicia of your being heavily and highly intoxicated." Then, "from the evidence and testimony provided," the court found the evidence was sufficient for a finding of felony child neglect.

And, of course, driving extremely intoxicated while you have your children in the vehicle and actually having an accident, actually having hit the median, is not a possibility of danger or harm to your children. It is more—it's a probability of harm.

And of course, as an adult, when you get behind the wheel while you've been drinking and intoxicated, you certainly know that that is a risk of harm, not only to you, but to your loved ones.

The trial court sentenced appellant to three years' incarceration with two years and ten months suspended on each of the felony child neglect convictions for a total period of active incarceration of four months on the felony child neglect convictions.²

This appeal followed.

ANALYSIS

Appellant argues the trial court gave undue weight to her BAC result in convicting her of felony child neglect. Fundamentally, appellant's argument is that the evidence was insufficient to establish the elements set forth in Code § 18.2-371.1(B)(1). "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.’ " Hannon v. Commonwealth, 68 Va. App. 87, 92, 803 S.E.2d 355, 357 (2017) (quoting Smith v. Commonwealth, 282 Va. 449, 453, 718 S.E.2d 452, 454 (2011) ). To the extent that this argument ultimately "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." Smith, 282 Va. at 453-54, 718 S.E.2d at 454 ; see also Hodgesv. Commonwealth, 64 Va. App. 687, 693, 771 S.E.2d 693, 696 (2015).

Code § 18.2-371.1(B)(1) 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.

Here, it is uncontested that appellant was the mother of the two children who were her passengers and that the two children were under the age of eighteen. Thus, the question before us is whether the evidence established that appellant committed a "willful act or omission in the care of such child [that] was so gross, wanton, and culpable as to show a reckless disregard for human life."³

In interpreting Code § 18.2-371.1(B)(1)'s willfulness requirement, the Supreme Court has held that "[t]he term ‘willful act’ imports knowledge and consciousness that injury will result from the act done. The act done 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). Thus, to fall within the scope of the statute, a parent's act or omission must be such that "an objectively reasonable person would understand that injury to the child is likely to result" from the act or omission. Hannon, 68 Va. App. at 94, 803 S.E.2d at 359.

Similarly, Code § 18.2-371.1(B)(1)'s requirement that the act or omission be "so gross, wanton, and culpable as to show a reckless disregard for human life" also implicates whether injury "is likely to occur as a result of the act or omission." Hannon, 68 Va. App. at 94, 803 S.E.2d at 359. As the Supreme Court has observed regarding this portion of the statute:

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 by acts of commission or omission of a wanton or wilful 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.

Barrett, 268 Va. at 183, 597 S.E.2d at 111 (emphasis added) (internal quotation marks and citations omitted). Accordingly, to sustain appellant's convictions, the evidence must be sufficient to allow the factfinder to conclude that appellant's actions exposed the children to more than a mere possibility of injury; the factfinder must be able to conclude from the evidence that injuries were likely.

Appellant argues the evidence was insufficient to allow the trial court as factfinder to make such a determination. Specifically, she argues that, in reaching its conclusion that appellant's actions created "a probability of harm," the trial court "gave undue weight to the blood test results."⁴ We d...