Danyel Lorenzo Gray, s/k/a Danyell Gray v. Commonwealth of Virginia ( 2004 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Humphreys and McClanahan
Argued at Richmond, Virginia
DANYEL LORENZO GRAY, S/K/A
DANYELL GRAY
MEMORANDUM OPINION* BY
v. Record No. 2720-02-2 JUDGE ELIZABETH A. McCLANAHAN
APRIL 13, 2004
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
James F. D’Alton, Jr., Judge
John H. Cobb, Jr., Public Defender (Office of the Public Defender,
on brief), for appellant.
Donald E. Jeffrey, III, Assistant Attorney General (Jerry W. Kilgore,
Attorney General, on brief), for appellee.
Danyel Lorenzo Gray appeals his conviction for felony child abuse. Gray was charged
with Class 4 felony child abuse, a violation of Code § 18.2-371.1(A), but was convicted of Class
6 felony child abuse in violation of Code § 18.2-371.1(B).1 Gray contends that the trial court
erred in holding the evidence sufficient to find him guilty of Class 6 felony child abuse. We
disagree.
I. BACKGROUND
When reviewing sufficiency arguments on appeal, we review the evidence and the
inferences fairly deducible from that evidence in the light most favorable to the Commonwealth.
Snow v. Commonwealth, 33 Va. App. 766, 774, 537 S.E.2d 6, 10 (2000). We will not disturb
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Code § 18.2-371.1(B) was renumbered as Code § 18.2-371.1(B)(1) by the General
Assembly in 2003, after appellant was convicted. We refer to the subsection as it was numbered
at the time of appellant’s conviction. The language in the subsection remains the same.
the fact finder’s verdict unless that decision was plainly wrong or without evidence to support it.
See Ashby v. Commonwealth, 33 Va. App. 540, 548, 535 S.E.2d 182, 187 (2000).
In December 2001, Gray was responsible for taking care of his fourteen-month-old son.
Gray and the baby’s mother were estranged, but had agreed that Gray would take custody of the
child at Gray’s mother’s house for a few weeks. On December 30, 2001, the baby’s mother
telephoned Gray and heard the baby crying in the background. She asked why the baby was
crying, but Gray would not answer her. After several calls, Gray finally told the baby’s mother
that the infant “had got[ten] in a tub of water by himself.” When the mother went to the house to
retrieve her son, she found out that he had been taken to the hospital.
When the mother arrived at the hospital, Gray told her that “he didn’t do it.” He
reiterated that the baby had climbed into the tub by himself. When the mother first saw the baby
at the hospital, she described his feet as “big” and “burn[ed].”
Tracie Hilliard-Eppes, a registered nurse who was working at the hospital that day,
testified that when the baby was brought into the hospital, the soles of his feet were “very red.”
Gray also told Hilliard-Eppes that the baby had climbed into the tub, “apparently unobserved.”
She testified that the injuries appeared consistent with burns, but that she “didn’t feel
comfortable with” Gray’s explanation. Hilliard-Eppes said that the burns were “pretty
clean-cut.” She explained that a person’s natural reaction to touching hot water is to pull back,
which creates splash marks. She testified that the baby did not have splash marks up his leg; he
only had burns on the soles of the feet. She opined that the burns were first-degree, comparable
to sunburn.
Petersburg police officer Will Mayer spoke with Gray in the emergency room. Gray
initially told Mayer that he had run some water in the tub and that, when he was in the kitchen
cooking, the baby got away from him and climbed into the tub. When he heard the baby crying
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he went into the bathroom, saw that the baby had red feet and called the EMS. After talking to
the nurses, Mayer conducted further investigation and learned from the baby’s mother that the
baby was not able to climb into the tub.
At that point, the police read Gray a statement of his Miranda rights. Gray then changed
his story and told Mayer, “The baby had been sick all night, and that he had the runs and he was
dirty. He placed the baby in the tub and did not check the temperature of the water.” He also
told Mayer that the cold water connection was not working and that he only had access to hot
water. Gray said that he placed the baby into the tub and that when the baby started to scream
and cry he pulled him out.
After some time, Gray provided Mayer yet a third story. He stated he wanted “to make
things right.” “He said that the baby had been sick and crying all night long. He didn’t get any
sleep and was mad the whole day. He said that he began to cook chicken, and the baby had on a
dirty diaper. He said that the fecal matter was coming out of the diaper and the baby was dirty.”
Gray also said “he was already mad about not getting rest, so he decided to teach the baby a
lesson. He turned on the hot water and placed the infant in the hot water and went back to
cooking the chicken.” He said, “after about five to ten minutes he couldn’t stand to hear the
baby screaming and crying anymore.” Gray told Mayer he removed the baby from the water and
noticed that his feet were red and swollen. “He got scared and called the EMS.” Gray then
made a written statement that was consistent with his third story, which was notarized by a
magistrate.
The trial court found Gray guilty of child abuse under Code § 18.2-371.1. At the
sentencing hearing, the Commonwealth recommended that Gray be punished for Class 6 felony
child abuse because he exhibited a reckless disregard for human life. The Commonwealth
contended that Gray would have had to know that the baby would be burned if he immersed him
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in hot water for five to ten minutes. Gray admitted he wanted to “teach it [the baby] a lesson.”
Gray’s counsel argued that the indictment had charged Gray with Class 4 child abuse. He stated
that the reckless disregard for human life standard would change the nature and character of the
indictment. The judge found that the totality of the evidence, including Gray’s statement about
why he put the baby in the tub, constituted a Class 6 felony. Gray was sentenced to five years in
the penitentiary with four years, six months suspended conditioned on, inter alia, good behavior
and indefinite probation.
II. ANALYSIS
Gray argues that the instant case is only one of infliction of injury and the evidence is not
sufficient to show that his acts rose to the level of reckless disregard for human life. He contends
that because he called EMS when he noticed that the baby’s feet were red, any finding of
conduct that is “so gross, wanton and culpable as to show a reckless disregard for human life” is
negated. However, there is ample evidence in the record to support the trial court’s
determination that Gray was guilty of acts so gross, wanton, and culpable as to show a reckless
disregard for the life of his son.
Code § 18.2-371.1 defines and establishes penalties for abuse and neglect of children. At
the time of Gray’s conviction, subsection (A) provided in pertinent part:
Any parent . . . responsible for the care of a child . . . who by
willful act or omission . . . 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 . . . .
At the time of Gray’s conviction, subsection (B) provided in pertinent part:
Any parent . . . responsible for the care of a child . . . 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.
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To convict under subsection (A), the Commonwealth must prove that by a willful act or
omission, a parent has caused or permitted a serious injury to the child. Under subsection (B),
the Commonwealth does not have to prove that a child actually suffered a serious injury, but that
the parent had engaged in a willful act or omission that is so gross, wanton and culpable as to
show reckless disregard for the child’s life. The Virginia Supreme Court has recently stated that
subsection (B) demonstrates a legislative intent to prohibit conduct that “has the potential of
endangering a child’s life.” Commonwealth v. Duncan, ___ Va. ___, ___, 593 S.E.2d 210, ___
(2004).
The statutory requirement that such conduct be “willful” means
that the conduct must be knowing or intentional, rather than
accidental, and be done without justifiable excuse, without ground
for believing the conduct is lawful, or with a bad purpose. Thus,
the term “willful,” as used in Code § 18.2-371.1(B)[],
contemplates an intentional, purposeful act or omission in the care
of a child by one responsible for such child’s care.
* * * * * * *
Notably, subsection (B)[] does not limit the prohibited conduct to
acts and omissions that subject a child to an actual risk of death,
but proscribes conduct that is so “gross, wanton and culpable” as to
demonstrate a “reckless disregard” for the child’s life. Therefore,
we hold that 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. (citations omitted).
Gray’s own admission clearly shows that he purposely and willfully acted to inflict injury
upon his son. In his statement to the police, Gray said, “the baby had been sick and crying all
night long.” He admitted that he “didn’t get any sleep and was mad the whole day.” He said that
he “was already mad about not getting rest, so he decided to teach the baby a lesson.” He
“turned on the hot water and placed the infant in the hot water and went back to cooking the
chicken.” Gray left the baby screaming for five to ten minutes and only retrieved the baby from
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the tub because he “couldn’t stand to hear the baby screaming and crying anymore.” Placing a
fourteen-month-old baby into hot water “to teach the baby a lesson” is a gross, wanton and
culpable act. Gray calculated that putting the baby into hot water would burn him – and that is
why he did it, according to his own admission. There is certainly sufficient evidence for the fact
finder to infer that Gray had the knowledge that these actions would likely result in substantial
risk of serious injury to the child.
III. CONCLUSION
The evidence was sufficient for the trial court to find that Gray willfully, wantonly and
culpably inflicted serious injury on his son such that he demonstrated a reckless disregard for
human life and, therefore, convict him of Class 6 felony child abuse under Code § 18.2-371.1(B).
Affirmed.
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