Spell v. Commonwealth

• Decision Date: 15 December 2020
• Docket Number: Record No. 0024-20-4
• Citation: 851 S.E.2d 83,72 Va.App. 629
• Parties: Kerry Ann SPELL v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

72 Va.App. 629

851 S.E.2d 83

Kerry Ann SPELL

v.COMMONWEALTH of Virginia

Record No. 0024-20-4

Court of Appeals of Virginia.

DECEMBER 15, 2020

Mark A. Murphy, Fredericksburg (William D. Ashwell ; Mark B. Williams & Associates, PLC, on briefs), for appellant.

Leah A. Darron, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Humphreys, Petty and Huff

OPINION BY JUDGE WILLIAM G. PETTY

Kerry Ann Spell appeals her conviction for contributing to the delinquency of a minor, in violation of Code § 18.2-371. She argues that the evidence was insufficient to support her conviction, and therefore that the trial court erred in failing to set aside the jury verdict. We agree and reverse the judgment of the trial court.

I. BACKGROUND

Kerry Ann Spell was charged with driving under the influence, second offense, in violation of Code §§ 18.2-266 and 18.2-270, and contributing to the delinquency of a minor, in violation of Code § 18.2-371, both misdemeanors. She was tried by jury on September 18, 2019, and found guilty of contributing to the delinquency of a minor. The jury was unable to reach a verdict on the charge for driving under the influence.

At trial, the Commonwealth called Spell's minor daughter, K.S., as a witness. K.S. testified that on December 21, 2018, Spell was late to pick up K.S. from school. Pickup that day was scheduled for 12:30 p.m. K.S. called Spell while she was waiting to be picked up, and Spell said that she had fallen asleep.

K.S. testified that when Spell arrived, they picked up K.S.’s brother from school and went to a Goodwill, a jewelry store, a Five-Below, and a Starbucks. She testified that Spell "looked really sleepy and wasn't really focused ... like someone who just woke up from a really long nap." She also testified that Spell was driving "a little wavy" and that she "rear-ended, not lightly tapped" another car when driving out of the Starbucks parking lot.

On the way home from Starbucks, K.S. was sitting in the third row of the car. She testified that she was "really scared" and that Spell was driving "practically on the other side of the road." After using her cell phone to contact her stepmother, father, and grandmother, K.S. called 911. K.S. testified that Spell asked her who she was talking to, and K.S. said that she was talking to a friend. While K.S. was on the phone with 911, Spell drove the car home and parked. Spell and the children went inside the house.

Later, a few minutes before 4:00 p.m., Deputy Gale with the Stafford County Sheriff's Office arrived at Spell's house. Deputy Gale asked Spell to come outside. The officer conducted numerous field sobriety tests. Spell passed several of the tests, but she failed the "walk-and-turn," the "one-leg stand," and the "horizontal gaze nystagmus" test

. Deputy Gale placed Spell under arrest for driving under the influence. A subsequent chemical analysis of Spell's blood sample was negative for alcohol but did show the presence of the prescription drug Lorazepam. A forensic chemist testified that the level of the drug in Spell's blood was consistent with a minimum therapeutic dose to treat anxiety.

Spell moved to strike on both charges, and the court denied the motion. She presented no evidence and renewed her motion to strike, which the court again denied.

The Commonwealth proceeded on only one theory under Code § 18.2-371, the statute charging contributing to the delinquency of a minor: it elected to prove that K.S. was a child "in need of services." Without objection, the court gave Jury Instruction No. 7, which read that the Commonwealth must prove

(1) That the defendant willfully contributed to or caused an act or condition which rendered [K.S.] in need of services and

(2) That the defendant was 18 years old or older at the time; and

(3) That [K.S.] was under 18 years old at the time.

Without objection, the court also gave Jury Instruction No. 8., which defined a "child in need of services," in relevant part, as

a child whose behavior, conduct, or condition presents or results in a serious threat to the well-being and physical safety of the child ....

However, to find that a child falls within these provisions, (i) the conduct complained of must present a clear and substantial danger to the child's life or health or to the life or health of another person, (ii) the child or his family is in need of treatment, rehabilitation or services not presently being received, and (iii) the intervention of the court is essential to provide the treatment, rehabilitation or services needed by the child or his family.

This instruction mirrors the definition provided in Code § 16.1-228. The jury returned a verdict of guilty for contributing to the delinquency of a minor.

Spell filed a motion to set aside the verdict on November 22, 2019, arguing that the evidence was insufficient to sustain the conviction for contributing to the delinquency of a minor. On December 6, 2019, the court heard Spell's motion. Spell argued the Commonwealth failed to prove that K.S. was a child in need of services because there was no evidence that K.S.’s "behavior ... conduct ... or ... condition presented or resulted in serious threat to the well-being and physical safety of the child." In addition, she argued the Commonwealth failed to prove that "treatment, rehabilitation or services" were needed and that court intervention was "essential to provide the treatment, rehabilitation or services needed by the child ...."

The Commonwealth's attorney argued that K.S. was "in need of services" when she was in the car being driven by Spell, that the 911 call constituted "services," and that "the services ended" when K.S. got to the house and hung up with 911. After hearing argument from both counsel, the court stated, in part,

The context of the event itself, and the [911] call's contents indicate clearly that this was a child who was frightened, who feared physical injury to the extent that she had to turn on her own mother and call [911]. And if that is not a child who at that point is in need of services, those services thankfully being ultimately not as necessary as they could have been, then I don't know what is.

Accordingly, the court denied the motion. Consistent with the jury's recommendation, the court sentenced Spell to thirty days in jail and ordered her to pay costs.

II. ANALYSIS

Spell argues that the trial court erred when it denied her motion to set aside the verdict. She argues that the evidence failed to prove that K.S. was a "child in need of services," as defined in Code § 16.1-228.¹

"When considering whether evidence is sufficient to sustain a criminal conviction, we view the evidence in the light most favorable to the prevailing party at trial and grant to it all reasonable inferences fairly deducible from that evidence." White v. Commonwealth, 68 Va. App. 111, 114, 804 S.E.2d 317 (2017). When a trial court decides a motion to set aside the verdict, the court only looks to whether the jury's verdict is "plainly wrong or without evidence to support it." Wagoner v. Commonwealth, 289 Va. 476, 484, 770 S.E.2d 479 (2015) (quoting Code § 8.01-680 ). "However, to the extent the appellant's assignment of error requires ‘statutory interpretation, it is a question of law reviewed de novo on appeal.’ " Coomer v. Commonwealth, 67 Va. App. 537, 545, 797 S.E.2d 787 (2017) (quoting Grimes v. Commonwealth, 288 Va. 314, 318, 764 S.E.2d 262 (2014) ).

Code § 18.2-371 provides that any person eighteen years of age or older "who (i) willfully contributes to, encourages, or causes any act, omission, or condition that renders a child delinquent, in need of services, in need of supervision, or abused or neglected as defined in § 16.1-228 ... is guilty of a Class 1 misdemeanor." The statute clearly outlines four disjunctive theories regarding the condition of the child: delinquency, in need of services, in need of supervision, or abuse and neglect. Each has a separate and distinct meaning as defined in Code § 16.1-228. The indictment in this case charged Spell in the disjunctive, mirroring the words of the statute. However, Jury Instruction No. 7 stated that the Commonwealth must prove that K.S. was a "child in need of services." That theory became the law of the case. "It is well settled that instructions given without objection become the law of the case and thereby bind the parties in the trial court and this Court on review." Bryant v. Commonwealth, 295 Va. 302, 307, 811 S.E.2d 250 (2018) (quoting Online Res. Corp. v. Lawlor, 285 Va. 40, 60-61, 736 S.E.2d 886 (2013) ).

The phrase "child in need of services" is a term of art defined by the Code. A child is "in need of services" when that child's "behavior, conduct, or condition presents or results in a serious threat to the well-being and physical safety of the child ... [or] of another person." Code § 16.1-228. The definition also requires proof of three additional elements:

However, to find that a child falls within these provisions, (i) the conduct complained of must present a clear and substantial danger to the child's life or health or to the life and health of another person, (ii) the child or his family is in need of treatment, rehabilitation or services not presently being received, and (iii) the intervention of the court is essential to provide the treatment, rehabilitation or services needed by the child or his family.

Id.

In Grigg v. Commonwealth, 224 Va. 356, 297 S.E.2d 799 (1982),² the Supreme Court considered the requirements for a "child in need of services" set forth in Code § 16.1-228. There, parents had withdrawn their children from public school and were providing in-home instruction not in accordance with the requirements of the Code. Id. at 359. The circuit court found the children to be in need of services they were not currently receiving, specifically proper educational instruction. Id. at 359-60, 297 S.E.2d 799. The parents were given an opportunity to remedy the...