Woodrow Lee Abshire, Jr. v. Commonwealth ( 2004 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Clements and Kelsey
Argued at Salem, Virginia
WOODROW LEE ABSHIRE, JR.
MEMORANDUM OPINION* BY
v. Record No. 2441-02-3 JUDGE ROSEMARIE ANNUNZIATA
MARCH 23, 2004
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF WAYNESBORO
Humes J. Franklin, Jr., Judge
William E. Bobbitt, Jr. (Office of the Public Defender, on brief), for
appellant.
Kathleen B. Martin, Assistant Attorney General (Jerry W. Kilgore,
Attorney General, on brief), for appellee.
Woodrow Lee Abshire, Jr. was tried without a jury and convicted of felony child abuse and
neglect, in violation of Code § 18.2-371.1. The trial court sentenced him to two years in prison and
suspended both years on certain conditions. He now appeals on the ground that the evidence was
insufficient to sustain his guilt beyond a reasonable doubt. For the reasons that follow, we affirm.
I. Background
“When considering the sufficiency of the evidence on appeal of a criminal conviction, we
consider the evidence in the light most favorable to the Commonwealth and grant all reasonable
inferences fairly deducible therefrom.” Ellis v. Commonwealth, 29 Va. App. 548, 551, 513
S.E.2d 453, 455 (1999). Under the applicable standard, the evidence establishes that, on January
7, 2002, Abshire and his ten-year-old son, J., argued about J.’s failure to clean his room. Abshire
had been drinking, but was not drunk. J. called Abshire names and told him he “wasn’t a good
* Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Daddy.” Abshire sent J. to his room, where he fell asleep. Between 10:00 p.m. and midnight,
Abshire looked into J.’s room and then slammed the door. A few minutes later, he walked into the
room and began whipping J.’s legs with a belt. The belt had a bronze buckle with the letters “C”
and “S” on its face. J. remained in his bed, trying to move away from Abshire. Abshire’s girlfriend
entered the room and took the belt from him, telling him to stop whipping J. Abshire next hit J.
with a box that had held a guitar, then left the room and returned with another, smaller belt and
continued to hit J. J. sustained bruising to his torso, back, groin and legs. One of the bruises on J.’s
back was oval in shape and comparable in size to the buckle on the first belt Abshire used to whip J.
The oval-shaped bruise had another bruise inside it that was consistent with the round part of the
letter “C.”1
The following day, Abshire kept J. home from school. When J. returned to school on
January 9, 2002, he spoke with his guidance counselor, Charleen Reid, about the beating and
subsequently showed her his bruises. She notified the Department of Social Services, and
Officer Kevin Miller came to the school to investigate. Miller observed the bruising on J.’s
upper body but did not view the bruises on J.’s legs because J. did not remove his pants.
Photographs were taken of J.’s bruises. At trial, Reid and Miller testified that the bruises
depicted in the photographs were consistent with the bruises they observed when they first spoke
with J. about the beating.
At trial, Abshire stated that he “lost it” and apologized for the conduct. Abshire testified
that he was taking new medication for a disabling nerve disease, which had a “bad” effect on
him. He admitted he used excessive force on the child and regretted doing so, stating “[i]t was
1
Although this evidence suggests Abshire beat J. with the buckle, J. testified that Abshire
had the buckle wrapped around his hand and hit him only with the end of the belt. “[T]he
credibility of a witness and the inferences to be drawn from proven facts are matters solely for
the fact finder’s determination.” Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500
S.E.2d 233, 235 (1998) (citations omitted).
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like the worst thing that ever happened to me in my life.” Abshire further testified that “violence
was not [his] way.” The trial court convicted Abshire, and he now appeals.
II. Analysis
A. Standard of Review
“An appellate court must discard all evidence of the accused that conflicts with that of the
Commonwealth and regard as true all credible evidence favorable to the Commonwealth and all
fair inferences reasonably deducible therefrom.” Lea v. Commonwealth, 16 Va. App. 300, 303,
429 S.E.2d 477, 479 (1993). When determining on appeal whether the evidence was sufficient
to sustain a criminal conviction, we grant the judgment of a trial court sitting without a jury the
same weight as a jury verdict and will not disturb that judgment unless it is plainly wrong or
without evidence to support it. Myrick v. Commonwealth, 13 Va. App. 333, 339, 412 S.E.2d
176, 179 (1991).
B. Criminal Negligence
Code § 18.2-371.1(B) provides, in relevant part:
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
reckless disregard for human life shall be guilty of a Class 6
felony.
On appeal, Abshire contends the evidence was insufficient to sustain a conviction, under Code
§ 18.2-371.1(B), on the ground that his conduct did not constitute criminal negligence because it
did not evidence a “reckless disregard for human life.” We disagree.
Conduct is
“criminal when accompanied by acts of commission or omission of
a wanton or willful nature, showing 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 results of his acts.”
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Ellis, 29 Va. App. at 557, 513 S.E.2d at 458 (quoting Bell v. Commonwealth, 170 Va. 597,
611-12, 195 S.E. 675, 681 (1938)). “‘[R]eckless 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.” Commonwealth v. Duncan, ___
Va. ___, ___, ___ S.E.2d ___, ___, (2004). “‘Willful and wanton negligence is acting
consciously in disregard of another person’s rights or acting with reckless indifference to the
consequences, with the defendant aware, from his knowledge of existing circumstances and
conditions, that his conduct probably would cause injury to another.’” Tubman v.
Commonwealth, 3 Va. App. 267, 271, 348 S.E.2d 871, 873 (1986) (quoting Griffin v. Shively,
227 Va. 317, 321, 315 S.E.2d 210, 213 (1984); Friedman v. Jordan, 166 Va. 65, 68, 184 S.E.
186, 187 (1936)). The term “willful” normally “means an act done with a bad purpose, without
justifiable excuse, or without ground for believing it is lawful. The term denotes an act which is
intentional, or knowing, or voluntary, as distinguished from accidental.” Ellis, 29 Va. App. at
554, 513 S.E.2d at 456 (quotations and citations omitted). The terms “bad purpose” and
“without justifiable excuse . . . necessarily imply knowledge that particular conduct will likely
result in injury.” Id.
We find the evidence was sufficient to sustain Abshire’s conviction. The evidence
establishes that Abshire, angered after an argument with J., in which J. called him names and told
him he “wasn’t a good Daddy,” entered J.’s room while he was in bed and began whipping him
with a belt. The first belt Abshire used on J. had a bronze buckle. When Abshire’s girlfriend
entered J.’s room and took the belt from Abshire, Abshire hit the child with a box instead, and
then, with another belt, Abshire continued to whip J. Even though J. tried to move away, he was
so bruised from the beating that Abshire kept him out of school the following day. Indeed, one
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of the bruises suggested it was sustained when J. was struck by the bronze buckle of the first belt
Abshire used to whip J.
Abshire’s actions establish that he had “indifferent disregard of the rights of others, under
circumstances reasonably calculated to produce injury.” Id. at 557, 513 S.E.2d at 457; see also
Campbell v. Commonwealth, 12 Va. App. 476, 484, 405 S.E.2d 1, 4 (1991) (en banc) (“The
finder of fact may infer that a person intends the natural and probable consequences of his
acts.”). Abshire’s contention that, although he “lost it” and used “excessive force,” his conduct
constituted negligence and not criminal behavior is without merit. Criminal negligence is more
than “the lack of ordinary care and precaution” and more than “mere inadvertence or
misadventure.” Ellis, 29 Va. App. at 556-57, 513 S.E.2d at 457. Abshire’s actions do not
constitute “mere inadvertence or misadventure.” He repeatedly beat his son with a belt with a
bronze buckle and, when his girlfriend took that belt from him, Abshire struck J. with a box, and
later, another belt. This conduct was deliberate, willful, and so gross and wanton as to show a
reckless disregard for human life. See Duncan, ___ Va. at ___, ___ S.E.2d at ___.
Accordingly, we affirm Abshire’s conviction.
Affirmed.
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