Michael Rell Dotson v. Commonwealth of Virginia ( 2001 )


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  •                    COURT OF APPEALS OF VIRGINIA
    Present: Judges Benton, Bumgardner and Frank
    Argued at Richmond, Virginia
    MICHAEL RELL DOTSON
    MEMORANDUM OPINION * BY
    v.   Record No. 1541-99-3               JUDGE JAMES W. BENTON, JR.
    SEPTEMBER 11, 2001
    COMMONWEALTH OF VIRGINIA
    UPON A REMAND FROM THE SUPREME COURT OF VIRGINIA
    FROM THE CIRCUIT COURT OF BUCHANAN COUNTY
    Keary R. Williams, Judge
    Robert M. Galumbeck (Dudley, Galumbeck,
    Necessary & Dennis, on brief), for appellant.
    Virginia B. Theisen, Assistant Attorney
    General (Mark L. Earley, Attorney General, on
    brief), for appellee.
    A jury convicted the appellant, Michael Rell Dotson, of
    felonious abuse and neglect of his infant son in violation of Code
    § 18.2-371.1(A).   On appeal, appellant contends that the trial
    judge erred in (1) allowing a doctor to testify that the infant's
    injuries were caused by or consistent with abuse or neglect, (2)
    allowing a witness to testify about statements the infant's mother
    made outside appellant's presence and failing to grant a mistrial
    when the prosecutor argued to the jury that those statements
    proved appellant's intent, (3) ruling that Code § 18.2-371.1(A)
    * Pursuant to Code § 17.1-413, this opinion is not
    designated for publication.
    did not require the Commonwealth to prove that an omission or
    refusal to provide care was willful, (4) refusing to instruct the
    jury that acts of omission or refusal must be willful, (5) ruling
    that his attorney could not argue to the jury that the
    Commonwealth was required to prove that an omission or refusal to
    provide care was willful, and (6) permitting the jury to consider
    evidence of improper nourishment and a healed leg fracture
    concerning the infant.   He also contends the evidence was
    insufficient to support the verdict.   For the reasons that follow,
    we reverse the conviction. 1
    I.
    The grand jury indicted appellant as follows:
    Abuse and Neglect of Children
    On or about July 13, 1996, [appellant]
    did unlawfully and feloniously as a parent,
    guardian, or other person responsible for
    the care of . . . a child under the age of
    eighteen, the date of birth being 11-25-95,
    by willful act or omission or refusal to
    provide any necessary care for the child's
    health cause or permit serious injury to the
    life or health of such child.
    In violation of § 18.2-371.1 of the Code
    of Virginia (1950) as amended.
    1
    The Court of Appeals issued a memorandum opinion in this
    appeal on July 5, 2000. Following the Commonwealth's appeal to
    the Supreme Court, the Supreme Court remanded the appeal, by
    order of June 8, 2001, to this Court for reconsideration.
    - 2 -
    The grand jury indicted Anna Marie Dotson, the infant's mother,
    on the same charge.   The trial judge ruled that appellant and
    Dotson would be tried together.
    At trial, the Commonwealth's evidence proved that, at the
    time of the incident giving rise to this prosecution, appellant
    and Dotson lived together for two or three years but were not
    married.   Appellant and Dotson had two children who were born
    during their relationship, a girl, age twenty-two months, and a
    boy, age seven months.    Appellant also had a teenage daughter, who
    lived with his parents.   The indictment concerned the baby boy.
    On the morning of July 13, 1996, Dotson had arranged for
    appellant's daughter, who was then seventeen, to babysit
    appellant's and Dotson's baby boy.      The teenager testified that
    she had been frequently babysitting the baby "since he was born"
    and that on this morning she noticed a small bruise under the
    baby's eye.   She also testified that on several occasions when
    appellant and Dotson were not present in the room, she had seen
    their twenty-two-month-old girl pinch and slap the baby and throw
    bottles at him.   The teenager further testified that the baby had
    been experiencing problems with food that caused him to "belch
    back up [his milk] when you burped him."
    The teenager testified that when she arrived in her car to
    get the baby, appellant was not at home.     She assisted Dotson in
    preparing the baby to go home with her, and she carried the baby
    to the car in his infant car carrier seat.     The teenager testified
    - 3 -
    that after she left appellant's home, she was driving faster than
    she should have been.   When she entered a curve in the road, she
    saw a car stopped in the middle of the road and "had to slam on
    [her] brakes" to avoid a collision.    The teenager testified that
    when she applied the brakes rapidly, she "heard it go thump."    The
    baby "fell out of the car seat and the car seat fell on top of him
    because [she] neglected to put [the baby] in . . . the seat, the
    way it's supposed to be."
    After the teenager admitted during her direct examination
    that she had not related this incident when she testified at the
    preliminary hearing, the trial judge informed her out of the
    jury's presence that she would likely be prosecuted for perjury.
    She responded to the judge that she was now being truthful.    She
    said she had not testified about the accident at the preliminary
    hearing because she "was scared [and] . . . didn't want [her]
    grandparents and [her] father [to know what happened]."   She said:
    "I knew they would be mad at me.   I was scared."   When the jury
    returned, the trial judge instructed the jury that the
    Commonwealth was entitled to prove the teenager had made a prior
    inconsistent statement but that the jury could only use proof of
    the prior inconsistent testimony "for purpose of contradicting
    this witness."
    The teenager then testified that on a prior occasion she said
    she had driven slowly from appellant's residence and arrived home
    without incident.   She explained that she had lied at the
    - 4 -
    preliminary hearing because she "didn't want [her] grandparents to
    know what [she] had done [and] . . . didn't want [her] father to
    know because they would be mad at [her] and they wouldn't let
    [her] have anything to do with [the baby] any more."   She
    testified that she "didn't think that anything was going to go
    this far . . . [and] didn't think that it would go further than
    little court."   She further testified that she "was trying to
    protect [her]self."
    The teenager testified that instead of putting the infant
    carrier on the back seat, she had placed it on the front seat of
    the car so that the baby "could look out the window . . . [while
    she] was driving."    She could not strap the carrier on the front
    seat and had not secured either the baby or the seat properly.
    Thus, when she slammed on the brakes, the carrier seat had fallen
    onto the baby.   Aware that the baby "was crying and screaming when
    he was in the floorboard" and was red in the face, the teenager
    "panicked."   She continued to drive "up the road a little bit"
    before stopping and putting the infant carrier seat on the back
    seat of the car.   She then gave the baby a bottle and tried to
    calm him before continuing home.
    Appellant's sister testified that she received a telephone
    call from the teenager, her niece, and told the teenager to bring
    the baby to her house.    When they arrived, the teenager's aunt
    immediately noticed that the baby was bruised and his arm was
    injured.   The aunt believed the baby's arm, which was red and
    - 5 -
    swollen, may have been broken, and she called the baby's
    pediatrician, Dr. Ranje Patel.    He directed her to take the baby
    to the hospital emergency room.    She testified that she has never
    seen appellant or Dotson hit their children.
    The triage nurse who examined the baby in the emergency room
    testified that she saw multiple bruises on the baby's face, a
    healed scab under his left eye, and bruises on his back and both
    legs.    The baby's left arm was swollen and deformed.   Whenever she
    touched or moved the arm, the baby cried.    She testified that the
    healed wound on the face could have been caused by a fingernail.
    Although she testified that the color of the bruises on the baby's
    back and legs indicated they occurred at different times, she
    admitted that the color of a bruise does not always indicate age
    but may depend upon how hard an area is hit and how much blood
    comes to the area.    She testified further that bruises "over bony
    prominences are usually darker than [bruises] over a fatty area."
    The nursing supervisor also testified that she saw bruises of
    different colors on the baby's body.
    Dr. Sabry Radawi examined the baby and saw bruises all over
    his body and around his eyes.    Some of the bruises appeared to be
    recent and others appeared older.    He testified that the
    appearance of a bruise may vary because of the strength of a blow
    or the location on the body.    Dr. Radawi also testified that if a
    person, who is falling or involved in an accident, brings his
    hands to the front of his face and receives a sudden blow, the
    - 6 -
    impact of hands into the face could cause "raccoon" eyes, the type
    of injury that the child had.   After he viewed x-rays of the
    child's facial bones, skull, and left arm, Dr. Radawi diagnosed a
    fracture of the upper left arm.   At his direction, the hospital
    personnel contacted the Department of Social Services and
    transferred the baby to a hospital in Roanoke.
    In Roanoke, Dr. Hugh Johnson Hagan, an orthopedic surgeon,
    reviewed the x-ray and ordered an x-ray of the baby's major long
    bones.   The x-ray revealed a fracture in the baby's left leg,
    which was in the process of healing.    Dr. Hagan testified that the
    fracture most likely had occurred within one or two months and
    most likely had resulted from a direct blow to the bone.    He
    further testified, however, that without knowing anything else
    except the existence of the break, it would be guesswork to say
    when and how it happened.
    Dr. Donald Keys, a pediatrician, examined the baby two days
    after he was admitted to the hospital.   Dr. Keys testified that
    "getting into the ages of bruises" from coloration "is a little
    bit difficult to say . . . [or] to be specific about."   Dr. Keys
    testified that it is generally accepted that color indicates
    different onset; however, he could not "say whether [the baby's
    bruises] all occurred on the same day or whether they occurred
    several days apart."   He testified that "[t]hey could have
    potentially all occurred on the same date" and could have occurred
    on the day the baby was taken to the hospital.   Dr. Keys also
    - 7 -
    testified that the baby's leg fracture was more than six weeks old
    and could have occurred at anytime after the baby's birth.     He
    further testified that the x-ray indicated that another break in
    the leg had healed itself.   He agreed that because the
    seven-month-old baby was not putting weight on his legs, the
    fracture might only manifest itself by the baby occasionally
    becoming "irritable and fussy."   He testified that the break in
    the baby's arm "was a very recent break."
    Dr. Keys also testified that the baby was "very underweight."
    He weighed eleven pounds when admitted to the hospital and gained
    ten ounces during his four-day stay.   Although Dr. Keys had not
    reported evidence of dehydration, he testified that two and
    one-half percent dehydration would not be detected during a
    physical examination.   Dr. Keys agreed that if the baby was
    dehydrated two and one-half percent and rehydrated while in the
    hospital, the baby's weight gain would be about ten ounces.
    Dr. Keys testified that, although the baby had been premature
    at birth, "at seven and a-half months [the baby] should have had a
    lot more fat and been heavier."   Based on a growth chart and his
    examination of the baby's records, Dr. Keys testified that the
    baby initially "made nice progress" but then "flat-lined," which
    meant the baby did not grow, between five and seven months.    He
    testified that the baby's pattern was "definitely abnormal" and
    indicated that the baby "didn't receive adequate nourishment
    during [the] time period [when he flat-lined]."   He opined that
    - 8 -
    the bruises, broken bones, and lack of weight gain indicated "that
    [the baby] has been abused and there's no other explanation for
    that."
    Dr. Keys testified that the lab reports which were done for
    anemia and total protein were within normal limits except "[t]he
    albumin was below the range of normal intake."   Although he
    testified that the baby suffered from malnourishment or
    malnutrition, he testified that those terms simply mean that there
    is faulty nutrition.   On cross-examination, he further testified
    as follows:
    It just sounds like what you're asking is,
    if you give diluted formula, does the baby
    grow well? The answer to that is no and
    that's true; however, for the first five and
    a-half months this baby grew appropriately,
    so that tells me the baby got the proper
    amount, the proper dilution, and then at
    five months something changed. I don't know
    what that something was. You're supposing,
    and I have no knowledge of this, that she
    started changing the way she prepared the
    formula; that is a possibility; that's all I
    can say. . . . I couldn't say . . . It
    could have resulted from lack of knowledge.
    He testified, however, that most parents by the time they have a
    second child are more familiar with feeding and what is proper
    feeding.
    The Commonwealth proved that two deputies from the
    sheriff's department and two employees of the county's social
    services department met with appellant and Dotson at their
    residence the same afternoon the baby was taken to the hospital.
    - 9 -
    They informed appellant and Dotson that they were investigating
    a complaint of child abuse and had taken custody of the baby.
    The trial judge instructed the jury that statements made by
    Dotson "may not be considered in [their] deliberations regarding
    [appellant]."
    The social worker testified that Dotson "became upset."
    Both parents "were surprised" to learn the baby had been taken
    to the hospital and said they did not know how the baby's arm
    could have been broken.   When asked if the baby had any
    injuries, Dotson said the older child had hit the baby two days
    earlier with the baby's feeder, causing a bruise under the
    baby's eye.   Dotson said the older child "appeared to be
    jealous" and tried to hit the baby if Dotson held the baby
    during feeding.
    During the interview, appellant and Dotson also "stated
    that they frequently fight and hit on each other."   Dotson said
    they sometimes fought because appellant did not believe the baby
    was his.    Dotson also said she was afraid of appellant and that
    the beating and fighting had occurred "ever since they had been
    together."    Both appellant and Dotson "indicated that they were
    aware that [the older child] was watching them fighting and then
    that [the older child] was going to the crib and climbing in and
    hitting on [the baby]."   Dotson also said that when she was
    doing housework the older child would climb in the crib and hit
    the baby.
    - 10 -
    Appellant told the deputies and one of the social workers
    that he had "done very little of the child rearing, but that he
    did . . . play with the children when he came home from work."
    He also said he did not know how the injuries occurred.    The
    social worker testified that the older child appeared healthy
    and seemed to be "on target developmentally."    A social worker
    also testified that appellant and Dotson received public food
    assistance and Medicaid for their children.
    After the Commonwealth presented its case-in-chief, the
    trial judge overruled motions to strike the evidence.    Dr. Ranje
    Patel, the baby's pediatrician, then testified for the defense.
    Dr. Patel testified that he had seen the baby six times prior to
    July 13 and had treated the baby on July 9 for congestion and
    coughing.    He thoroughly examined the baby on July 9 and saw no
    bruises on the child.    Dr. Patel testified that he saw no broken
    bones or other injuries during the seven months he treated the
    baby.    Although he said that a minor fracture in a baby's bone
    could remain undetected unless there are symptoms, he testified
    that he performed thorough examinations of the baby and saw no
    bruises and detected no broken bones.    He testified that during
    the course of his treatments he had no need to order x-rays of
    the baby.
    Dr. Patel also testified that Dotson had raised issues with
    him concerning feeding the baby, that he had continuously
    discussed feeding issues with Dotson, and that he advised her
    - 11 -
    how to properly feed the baby.   He testified that there was a
    "problem ongoing from day one, the speaking about the [baby's]
    formulas," and that he addressed the issue of proper feeding
    during most of the baby's visits.      Appellant offered no other
    witnesses.
    At the conclusion of the evidence, the trial judge again
    overruled motions to strike the evidence.     Appellant tendered a
    jury instruction defining "willful" as "an act or omission done
    with bad purpose, without justifiable excuse and without ground
    for believing it is lawful."   When the Commonwealth objected
    that Code § 18.2-371.1(A) did not require proof that an omission
    or refusal be willful, appellant argued that willful modified
    act and omission.    The trial judge refused the instruction and
    ruled that neither the omission nor the refusal to provide care
    had to be willful.   The judge also instructed appellant's
    attorney that he could not argue to the jury that an omission or
    refusal to provide care must be willful.     This appeal followed
    from the jury's verdict convicting appellant of "Abuse and
    Neglect of Children by Willful Act or Omission or Refusal to
    Provide Necessary Care, Causing or Permitting Serious Injury as
    charged."
    II.
    Appellant contends the trial judge erred in permitting
    Dr. Keys to testify that the baby had been abused.     The
    - 12 -
    Commonwealth argues that the testimony was not a comment on the
    ultimate issue of fact.
    The principle is well established that "[e]xpert opinion on
    an ultimate fact in issue is inadmissible in a criminal case
    because it 'invade[s] the province of the jury.'"    Jenkins v.
    Commonwealth, 
    254 Va. 333
    , 336, 
    492 S.E.2d 131
    , 132 (1997)
    (citation omitted).   Moreover, "an opinion of a witness the
    judge has found to be an expert carries great weight with
    [jurors]."   Bond v. Commonwealth, 
    226 Va. 534
    , 538, 
    311 S.E.2d 769
    , 772 (1984).
    In response to the prosecutor's question whether he "would
    . . . consider these [injuries] consistent with child abuse,"
    Dr. Keys testified that "look[ing] at everything together . . .
    means that [the baby] has been abused and there's no other
    explanation for that."    It is true, as the Commonwealth argues,
    that although Code § 18.2-371.1 is styled "Abuse and neglect of
    children," the body of the statute does not contain that precise
    wording.   Nonetheless, as the Supreme Court indicated in Webb v.
    Commonwealth, 
    204 Va. 24
    , 33, 
    129 S.E.2d 22
    , 29 (1963), the
    doctor's testimony was an opinion upon "the very issue in this
    case."   His testimony "had the effect of stating a conclusion"
    which was the heart of the matter the jury had to decide.      
    Id. Any doubt in
    that regard is dispelled by the wording of the
    indictment, which is styled "Abuse and Neglect of Children."      In
    addition, the finding instructions to the jury state that "[t]he
    - 13 -
    defendant is charged with the crime of abuse or neglect of a
    child" and contains the words "offense of abuse or neglect" in
    three other places.   The finding instruction concerning
    punishment also recites that the offense is "Abuse and Neglect
    of Children" and the verdict form likewise recites that the
    offense is "Abuse and Neglect of Children."
    Because of the similarity of the wording used in these
    instances, this case differs from Hussen v. Commonwealth, 
    257 Va. 93
    , 
    511 S.E.2d 106
    (1999), cited by the Commonwealth.
    There, the Court allowed an expert's testimony because she said
    an alleged rape victim's injuries were not consistent with
    consensual sexual activity, but did not comment specifically on
    "whether the defendant's conduct was against the victim's 
    will." 257 Va. at 99
    , 511 S.E.2d at 109.   In this case, the expert's
    words clearly addressed "one of the ultimate issues of fact to
    be determined by the jury," 
    id., as the instructions
    and verdict
    form communicated that issue to the jury.   Thus, this case more
    closely resembles Jenkins, where the Court found that an
    expert's testimony that a child "'had been sexually 
    abused,'" 254 Va. at 336
    , 492 S.E.2d at 133, improperly influenced the
    jury's sentencing in a case where "sexual abuse" was an element
    of the crime.   
    Id. at 337-38, 492
    S.E.2d at 133-34.
    Accordingly, we hold that the trial judge erred in allowing that
    opinion testimony.
    - 14 -
    III.
    Appellant contends the trial judge erred by permitting a
    witness to testify about statements which Dotson made to the
    social worker outside his presence and which alleged prior bad
    acts.
    The evidence proved that while the social worker was
    questioning appellant and Dotson in their home, appellant left
    the room to show the deputies another room in the house.       Dotson
    continued her conversation with the social worker.     She said
    that she and appellant fought often, that she had sole
    responsibility for the housework and child rearing, and that, if
    she did not have appellant's dinner ready when he came home,
    appellant would "start hitting on her."    Dotson also said they
    fought frequently because appellant believed the baby was not
    his son.    In addition, Dotson related an incident in which
    appellant threw a lamp at her when she was pregnant with the
    baby.    She said she was afraid of appellant.
    Appellant contends the testimony was hearsay and
    prejudicial to him.    Prior to this testimony, however, the trial
    judge gave the jury a cautionary instruction that they were to
    consider Dotson's statements only in her case and not against
    appellant.    In final instructions to the jury before their
    deliberations, the judge again instructed the jury as follows:
    In considering your verdict against
    [appellant], you may not consider any
    statement made by Anna Dotson which was
    - 15 -
    introduced as evidence in this trial. Such
    statement may only be considered in your
    deliberations in the case of Anna Dotson.
    Appellant assumes that the jury considered that evidence in
    convicting him.   We do not make that assumption.   The trial
    judge twice cautioned the jury to consider the evidence only in
    its deliberation in Dotson's case.     We presume that the jury
    "follow[ed] prompt cautionary instructions regarding the
    limitations placed upon evidence."     Burley v. Commonwealth, 
    29 Va. App. 140
    , 147, 
    510 S.E.2d 265
    , 269 (1999) (citing LeVasseur
    v. Commonwealth, 
    225 Va. 564
    , 589, 
    304 S.E.2d 644
    , 657 (1983)).
    Nothing in the record clearly shows that the jury disregarded
    those instructions.
    Although appellant also contends the admission of these
    statements violated his rights under the confrontation clause,
    that argument was not made at trial and, therefore, is now
    barred by Rule 5A:18.
    IV.
    Appellant contends that when the prosecutor made her
    closing argument and referred to Dotson's statements, the trial
    judge erred in refusing his motion for a mistrial.
    The record indicates that when the prosecutor made her
    closing statements about the social worker's conversation with
    Dotson and appellant at their residence, she pointed to
    appellant and said "he . . . took a lamp and threw it at her."
    The trial judge sustained appellant's objection, ruling that the
    - 16 -
    prosecutor "has gotten a little untracked in view of the Court's
    ruling regarding this testimony."   Later, in her rebuttal
    argument, the prosecutor referred to appellant's attorney's
    argument that appellant did not generally carry the baby and
    said, "Well, he didn't think it was his child . . . continually
    fighting with his wife, accusing that he wasn't his child."    The
    trial judge again sustained appellant's objection, and denied
    the motion for a mistrial.
    The principles governing the review of this issue are well
    established.
    The grant or denial of a mistrial falls
    within the sound discretion of the trial
    court. A mistrial should not be granted for
    minor irregularities and mistakes in a trial
    which can be cured by a direction from the
    trial court to disregard the irregularity or
    mistake. A mistrial is not appropriate
    unless "there is a manifest probability that
    objectionable evidence or statements before
    the jury are prejudicial to the adverse
    party."
    Clark v. Chapman, 
    238 Va. 655
    , 661, 
    385 S.E.2d 885
    , 888 (1989)
    (citations omitted).
    Although the evidence had been admitted in the prosecution
    against Dotson, in each instance, the trial judge sustained
    appellant's objection.   Moreover, the trial judge twice had
    cautioned the jury to use the evidence only against Dotson, and
    not against appellant.   In view of these circumstances, we
    cannot say there was a manifest probability that the
    - 17 -
    prosecutor's action and statement were so prejudicial that they
    were not cured by the trial judge's rulings.
    V.
    Appellant contends the trial judge erred in ruling that
    Code § 18.2-371.1(A) did not require the Commonwealth to prove
    omissions or refusals of care were willful, in refusing to
    instruct the jury as to the definition of willful, and by
    forbidding appellant's attorney to tell the jury that an
    omission or refusal of care must have been willful.   The
    Commonwealth argues that the trial judge's rulings are not
    reversible error because they did not prejudice appellant.
    In pertinent part, the child abuse and neglect statute,
    which is charged in the indictment, provides as follows:
    A. Any parent, guardian, or other person
    responsible for the care of a child under
    the age of eighteen who by willful act or
    omission or refusal to provide any necessary
    care for the child's health causes or
    permits serious injury to the life or health
    of such child shall be guilty of a Class 4
    felony. For purposes of this subsection,
    "serious injury" shall include but not be
    limited to (i) disfigurement, (ii) a
    fracture, (iii) a severe burn or laceration,
    (iv) mutilation, (v) maiming, (vi) forced
    ingestion of dangerous substances, or (vii)
    life-threatening internal injuries.
    B. Any parent, guardian, or other person
    responsible for the care of a child under
    the age of eighteen whose willful act or
    omission in the care of such child was so
    gross, wanton and culpable as to show a
    - 18 -
    reckless disregard for human life shall be
    guilty of a Class 6 felony.
    Code § 18.2-371.1 (emphasis added).
    The statute explicitly contains the disjunctive elements of
    "willful act or omission or refusal to provide any necessary
    care."   
    Id. We would strain
    the meaning of the statute to read
    it to require a "willful act" but an "omission" or "refusal"
    that was not willful.    In Ellis v. Commonwealth, 
    29 Va. App. 548
    , 
    513 S.E.2d 453
    (1999), we addressed the requirements of
    proof to establish a violation under Code § 18.2-371.1.    We held
    that "something more than negligence must be proved beyond a
    reasonable doubt to support [the] conviction" under the statute.
    
    Id. at 555, 513
    S.E.2d at 457.    The ordinary definition of the
    statutory element, "omission," means "[a] failure to do
    something; esp., a neglect of duty."    Black's Law Dictionary
    1116 (7th ed. 1999).    In addition, although a refusal is an
    intentional act, it is not necessarily a willful act.     Refusal
    is defined to mean a "rejection of something demanded."
    Webster's Third New International Dictionary 1910 (1981).
    In Ellis, we held that a negligence standard was
    insufficient to support a conviction under the statute.    We also
    noted that "inattention and inadvertance have not been
    heretofore equated with actions taken 
    willfully." 29 Va. App. at 556
    , 513 S.E.2d at 457.
    "Willful" generally means an act done with a
    bad purpose, without justifiable excuse, or
    - 19 -
    without ground for believing it is lawful.
    See Richardson v. Commonwealth, 
    21 Va. App. 93
    , 99, 
    462 S.E.2d 120
    , 123 (1995). The
    term denotes "'an act which is intentional,
    or knowing, or voluntary, as distinguished
    from accidental.'" Snead v. Commonwealth,
    
    11 Va. App. 643
    , 646, 
    400 S.E.2d 806
    , 807
    (1991) (quoting United States v. Murdock,
    
    290 U.S. 389
    , 394, 
    54 S. Ct. 223
    , 
    78 L. Ed. 381
    (1933)). The terms "bad purpose" or
    "without justifiable excuse," while facially
    unspecific, necessarily imply knowledge that
    particular conduct will likely result in
    injury or illegality. See 
    Murdock, 290 U.S. at 395-95
    , 
    54 S. Ct. 223
    .
    
    Id. at 554, 513
    S.E.2d at 456 (footnote omitted).
    Thus, we hold that to sustain a conviction under this
    statute, the evidence must prove beyond a reasonable doubt a
    "willful act or [willful] omission or [willful] refusal"
    regarding the proscribed conduct.   This conclusion necessarily
    follows from the application of ordinary grammatical principles
    and the general rule that "proper grammatical effect will be
    given to the arrangement of words in a sentence of a statute."
    Harris v. Commonwealth, 
    142 Va. 620
    , 624, 
    128 S.E. 578
    , 579
    (1925).   "We presume that when drafting this statute, the
    legislature understood the basic rules of grammar."   Frere v.
    Commonwealth, 
    19 Va. App. 460
    , 464, 
    452 S.E.2d 682
    , 685 (1995).
    Moreover, even if there is a choice to be made in reading the
    statute, the principle is well established that "[c]riminal
    statutes are to be 'strictly construed against the Commonwealth
    and in favor of [a] citizen's liberty' . . . [and] must be
    construed so as to proscribe only conduct which the legislature
    - 20 -
    clearly intended to be within the statute's ambit."    King v.
    Commonwealth, 
    6 Va. App. 351
    , 354-55, 
    368 S.E.2d 704
    , 706 (1988)
    (citations omitted).
    The trial judge incorrectly ruled that the statute did not
    require the Commonwealth to prove that acts of omission or
    refusal of care were willful and, likewise, erred in barring
    appellant's attorney from arguing to the jury that such proof
    was required for conduct alleged to be an omission or a refusal
    of care.   Because the judge's error lessened the conduct on
    which the jury could convict, we cannot say that the error was
    not prejudicial.    The defense's inability to argue fully
    hindered its ability to suggest reasonable doubt and taints the
    legitimacy of the jury's verdict.
    As a consequence of the judge's ruling on the statute's
    meaning, he also refused to instruct the jury that "'Willful,'
    in this case, means an act or omission done with bad purpose,
    without justifiable excuse and without grounds for believing it
    is lawful."   The instruction was a correct statement of the law.
    See Ellis, 29 Va. App. at 
    554, 513 S.E.2d at 456
    (citing
    
    Richardson, 21 Va. App. at 99
    , 462 S.E.2d at 123).
    It is a well established, elementary principle, "that a
    jury must be informed as to the essential elements of the
    offense; a correct statement of the law is one of the essentials
    of a fair trial."    Darnell v. Commonwealth, 
    6 Va. App. 485
    , 488,
    
    370 S.E.2d 717
    , 719 (1988) (internal quotations and citation
    - 21 -
    omitted).   "Unless [the essential] elements [of an offense] are
    defined by instructions . . . to . . . the jury . . . , they
    cannot properly determine whether the Commonwealth has carried
    its burden [to prove each essential element of the offense
    beyond a reasonable doubt]."    Dowdy v. Commonwealth, 
    220 Va. 114
    , 116, 
    255 S.E.2d 506
    , 508 (1979).     Moreover, a hallmark of a
    fair trial is that "'instructions . . . should inform the jury
    as to the law of the case applicable to the facts in such a
    manner that [the jury] may not be misled.'"      Cooper v.
    Commonwealth, 
    2 Va. App. 497
    , 500, 
    345 S.E.2d 775
    , 777 (1986)
    (citation omitted).
    The rejected instruction would have informed the jury of
    the level of culpability required to convict appellant of the
    offense.    Although the trial judge instructed the jury on the
    meaning of "gross" and "culpable" conduct, which are elements of
    the lesser-included offense, without further instruction, the
    jury was left to predicate a conviction upon a finding of a mere
    omission or a non-willful refusal.      The jury received no
    instruction as to what type of acts were "willful."     "[W]hen a
    principle of law is vital to a defendant in a criminal case, a
    trial court has an affirmative duty properly to instruct a jury
    about the matter."    Jimenez v. Commonwealth, 
    241 Va. 244
    , 250,
    
    402 S.E.2d 678
    , 681 (1991).
    Because the jury, as instructed, could have convicted
    appellant of an omission or refusal that was not willful, we
    - 22 -
    cannot say that the trial judge's errors did not prejudice
    appellant.
    VI.
    Appellant contends that the trial judge erred by failing to
    strike the Commonwealth's evidence regarding malnourishment and
    the healed fracture.   He argues that the evidence permitted the
    jury to speculate as to causation.     The Commonwealth argues that
    those circumstances were discovered after the baby was delivered
    to the hospital and presented a jury issue.
    These issues were circumstances that the jury was entitled
    to consider in weighing the evidence.    The principle is well
    established that "[c]ircumstantial evidence is as competent and
    is entitled to as much weight as direct evidence, provided it is
    sufficiently convincing to exclude every reasonable hypothesis
    except that of guilt."   Coleman v. Commonwealth, 
    226 Va. 31
    , 53,
    
    307 S.E.2d 864
    , 876 (1983).   We find no error.
    VII.
    "Where the sufficiency of the evidence is challenged after
    conviction, it is our duty to consider it in the light most
    favorable to the Commonwealth and give it all reasonable
    inferences fairly deducible therefrom."     Higginbotham v.
    Commonwealth, 
    216 Va. 349
    , 352, 
    218 S.E.2d 534
    , 537 (1975).      As
    constitutionally required by In re Winship, 
    397 U.S. 358
    (1970),
    "the critical inquiry on review of the sufficiency of the
    evidence to support a criminal conviction . . . is whether,
    - 23 -
    after viewing the evidence in the light most favorable to the
    prosecution, any rational trier of fact could have found the
    essential elements of the crime beyond a reasonable doubt."
    Jackson v. Virginia, 
    443 U.S. 307
    , 318-19 (1979).
    So viewed, the evidence proved that on July 13, 1996, when
    the significant bruising and injuries were first discovered on
    the baby, he was in the presence and care of appellant's teenage
    daughter.   The teenager testified that, with the exception of a
    small bruise on his face, the baby was normal when she arrived
    at appellant's house and did not appear to have any injuries.
    She further testified that before leaving appellant's house with
    the baby in her car, she failed to secure the baby in the infant
    carrier and she put the infant carrier on the front seat.    That
    failure, she testified, resulted in the baby falling to the
    floorboard of the car and being hit by the falling infant seat
    after she sped along the highway, entered a curve, and slammed
    on the brakes to avoid a stopped vehicle.
    The Commonwealth argues that the jury could have
    disbelieved the teenager, the Commonwealth's witness, because
    she admitted at trial that she had testified differently at the
    preliminary hearing in order to avoid incurring the wrath of her
    grandparents and her father for injuring the child.   We agree,
    of course, that the jury, as "fact finder . . . may reject
    testimony that has been impeached."    Doss v. Commonwealth, 
    23 Va. App. 679
    , 685, 
    479 S.E.2d 92
    , 95 (1996).   Even if we assume,
    - 24 -
    however, that the jury rejected this testimony, no evidence
    otherwise explains the cause of the baby's broken arm and severe
    bruising, which were evident when he was taken to the hospital
    that same day by the teenager and her aunt.    Dr. Keys, a witness
    for the Commonwealth, testified that the bruises "could have
    potentially all occurred on the same date."    The jury would have
    been left to speculate that the baby had those bruises when the
    teenager drove away from appellant's home with the baby.
    The evidence clearly established that the baby's broken arm
    was a very recent injury.   The baby's pediatrician testified
    that he examined the baby on July 9, four days before he was
    taken to the emergency room.   At that time, the baby was
    congested and coughing.   He thoroughly examined the baby and
    detected no bruises or broken bones.    Although the triage nurse
    testified that four days later when she touched or moved the
    baby's arm, the baby cried, the teenager never testified that
    the baby cried when she was preparing to leave appellant's house
    or putting the baby in the car.
    Even if we conclude that the jury disbelieved the baby's
    pediatrician, the evidence in this record establishes that some
    event likely occurred on July 13 that caused the teenager to
    seek medical treatment for the baby.    If that event, however,
    was not the one described by the teenager, in which the baby was
    injured in the car, then the record clearly fails to establish a
    cause for the baby's bruises and broken arm.   Simply put, except
    - 25 -
    for the teenager's testimony, the evidence does not otherwise
    prove the circumstances in which the broken arm and bruising
    occurred or who caused injury to the child.
    "[E]vidence is not sufficient to support
    a conviction if it engenders only a
    suspicion or even a probability of guilt.
    Conviction cannot rest upon conjecture. The
    evidence must be such that it excludes every
    reasonable hypothesis of innocence. The
    giving by the accused of an unclear or
    unreasonable or false explanation of his
    conduct or account of his doings are matters
    for the jury to consider, but they do not
    shift from the Commonwealth the ultimate
    burden of proving by the facts or the
    circumstances, or both, that beyond all
    reasonable doubt the defendant committed the
    crime charged against him."
    Hyde v. Commonwealth, 
    217 Va. 950
    , 955, 
    234 S.E.2d 74
    , 78 (1977)
    (citation omitted).   As the Supreme Court held in Christian v.
    Commonwealth, 
    221 Va. 1078
    , 1083, 
    277 S.E.2d 205
    , 208 (1981),
    "[w]hile the defendant's opportunity to injure her [child] and
    certain other circumstances in this case may raise inferences
    which 'create a suspicion of guilt . . . or even a probability
    of guilt', we are of opinion the evidence is insufficient to
    exclude a reasonable hypothesis that someone other than the
    defendant was the criminal agent."
    The Commonwealth's evidence concerning the other claims of
    abuse and neglect is similarly deficient.   The teenager
    testified that when she was at the appellant's house preparing
    to leave, she noticed a small bruise on the baby's face.   When
    the social worker and the police arrived at appellant's house on
    - 26 -
    the afternoon of July 13, and informed appellant and Dotson that
    the baby had been injured, Dotson informed them that the only
    injury she was aware of was a small bruise on the baby's cheek
    that occurred when her twenty-two-month-old child had hit the
    baby two days earlier with the baby's feeder.   Even if the jury
    disbelieved that explanation for the bruise on the child's
    cheek, no evidence proved that it was caused by appellant's
    willful conduct.
    When the baby was examined in the hospital, an x-ray showed
    that the baby had a healed fracture in a bone in his left leg.
    The doctor testified that the fracture was at least six weeks
    old and could have occurred anytime from the baby's premature
    birth until six weeks prior to the examination.   He also
    testified that, because the seven-month-old baby was not bearing
    weight on his leg, the fracture might only have been manifested
    by the child being "irritable and fussy."   Another doctor
    testified that "[c]hildren heal fractures very quickly" and that
    it would be guesswork to say when and how it occurred merely by
    viewing the x-ray.   The baby's pediatrician testified that the
    baby had been his patient since December 1995 and that he had
    examined the baby six times during regular office visits.    He
    testified that he never saw bruises on the child and never
    detected any broken bones; he found no reasons or indications
    during his treatments to order x-rays to look for broken bones.
    He testified that on July 9 when he examined the baby, the baby
    - 27 -
    "was essentially normal" and, except for a cold, the baby was
    healthy.
    Dr. Keys testified that the growth chart he prepared showed
    that the baby, who was born prematurely, made "nice progress"
    until his fifth month.   No evidence tended to show that anyone
    other than the appellant and Dotson were caring for the baby
    during that period.    Dr. Keys testified that "from five months
    to what we saw in the seven and a-half months, [the baby]
    basically didn't grow; didn't gain any weight, so he
    flat-lined."   He considered the lack of growth during that two
    and a-half months "abnormal" and testified that "if [the baby]
    was fed in the right way, he would gain weight."   The doctor
    testified that he did not know the cause of the feeding problem
    and that "[i]t could have resulted from a lack of knowledge" by
    the parents.   In short, his testimony is consistent with proof
    of faulty nutrition.
    The Commonwealth had the burden of proving each element of
    the offense beyond a reasonable doubt.   The Commonwealth on
    brief contends "[t]he jury reasonably could conclude, based on
    all the evidence, that [appellant] was guilty of violating Code
    § 18.2-371.1(A)."
    "Suspicion of guilt, however strong, or even
    a probability of guilt, is insufficient to
    support a conviction." And, when the
    evidence is wholly circumstantial, as in
    this case, "all necessary circumstances
    proved must be consistent with guilt and
    inconsistent with innocence and exclude
    - 28 -
    every reasonable hypothesis of innocence.
    The chain of necessary circumstances must be
    unbroken."
    Rogers v. Commonwealth, 
    242 Va. 307
    , 317-18, 
    410 S.E.2d 621
    , 627
    (1991) (citations omitted).
    Even if the judge had properly instructed the jury
    concerning the Commonwealth's obligation to prove willful
    conduct, the record, when viewed in the light most favorable to
    the Commonwealth, failed to establish sufficient evidence from
    which the jury could have found beyond a reasonable doubt that
    appellant engaged in willful acts, or willful omissions, or
    willful refusals to provide any necessary care for the baby's
    health.   The jury could not have found without speculation that
    appellant acted willfully.    Accordingly, we reverse the
    conviction and dismiss the indictment.
    Reversed and dismissed.
    - 29 -