Tiffany Stevens Miller v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Petty and Decker
PUBLISHED
Argued at Richmond, Virginia
TIFFANY STEVENS MILLER
OPINION BY
v. Record No. 0340-14-4 JUDGE MARLA GRAFF DECKER
MARCH 31, 2015
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Brett A. Kassabian, Judge
Bryan T. Kennedy, Assistant Public Defender (Office of the Public
Defender, on brief), for appellant.
Aaron J. Campbell, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Tiffany Stevens Miller appeals her conviction for contributing to the delinquency of a
minor, in violation of Code § 18.2-371. Specifically, she suggests that the evidence was insufficient
to support her conviction because the Commonwealth failed to prove: (1) she left her child without
parental care or guardianship, (2) her actions constituted an unreasonable absence from the child,
and (3) her actions were willful. Miller also argues that the trial court erred when it denied her
proposed jury instruction defining parental care for purposes of the statute. The Court holds that the
evidence was sufficient to support the conviction and that the trial court did not err by denying the
proposed jury instruction. Consequently, we affirm the judgment of the trial court.
I. BACKGROUND1
On May 1, 2013, the appellant went to a grocery store in Fairfax County. She had her
young child and two dogs with her in her vehicle. The child, who appeared to be between one and
two years old, was in a car seat in the back seat. The appellant “double parked” the car in the fire
lane in front of the store. The cement was clearly marked with yellow paint to indicate that no
parking was allowed in that location. The appellant left the car’s engine running and went inside the
store while the child remained asleep in the car seat. All of the car’s windows were open, including
the one closest to the child.
Once inside the store, at some point in time, the appellant approached employee Raul
Campaverde, whom the appellant did not know. She asked Campaverde if he could “watch her car
outside for about five minutes.” She pointed to her car but Campaverde could not see it. He went
outside to the car and saw a child asleep in the back seat. The appellant had not told him that a child
was inside the car. Campaverde stayed with the car for “longer than 30 minutes” but had to return
to the store to resume his duties. Before doing so, he found Lisa Slawson, a co-worker who had just
begun an hour-long assignment in the parking lot. Slawson agreed to “watch the child as much as
she could” but clarified with Campaverde that she “could not stand there and do nothing; she had to
move carts and go inside frequently.” Slawson, like Campaverde, did not know the appellant.
After about five to ten minutes of watching the car, Slawson saw the appellant exit the store.
The appellant went to the car, took what appeared to be the car keys, told Slawson she would be
back in a few more minutes, and went back inside. According to Slawson, the appellant did not
“tend to the child” or say anything else to her. After about twenty to thirty minutes, Slawson went
1
Appellate courts in Virginia “view the evidence in the light most favorable to the
Commonwealth, the prevailing party in the trial court.” Preston v. Commonwealth, 281 Va. 52, 57,
704 S.E.2d 127, 129 (2011). On appeal to this Court, the evidence is contained in an agreed
statement of facts.
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into the store to attend to her assigned responsibilities. She was not aware of anyone else watching
the vehicle. Slawson told her managers about the situation and explained that she was conflicted
between watching the car and doing her job.
Larry Baxley, a store manager, also saw the appellant’s car parked in the fire lane with the
unattended child inside. Baxley spoke with Campaverde, who “told him about the car.” Baxley
“looked [at] the car on several occasions after going into the store” but never saw anyone with the
vehicle or watching it. He wrote down the license plate number and, after about twenty minutes of
observing the unattended car, notified the police.
Campaverde estimated that the car was gone between forty-five minutes to an hour after he
first encountered the appellant. Slawson noticed that the vehicle was parked in front of the store just
before her hour-long assignment began and was still there when the assignment ended.
When Officer Kannegisser of the Fairfax County Police Department arrived at the store, the
car was gone. He went to the appellant’s home to investigate. She admitted that the unattended car
belonged to her and that her child was inside the vehicle while it was parked in front of the store.
She told the officer that she left the engine running and “employees of the store had agreed to watch
the child for her.” However, she did not know the names of the employees.
The jury convicted the appellant of contributing to the delinquency of a minor, in violation
of Code § 18.2-371. Consistent with the recommendation of the jury, the trial court imposed a fine
of $800.
II. ANALYSIS
A. Sufficiency of the Evidence
The appellant contends that the trial court erred by finding the evidence sufficient to convict
her of contributing to the delinquency of a minor. She asserts three alleged deficiencies, arguing
that the Commonwealth failed to prove that: (1) she left her child without parental care or
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guardianship, (2) her actions constituted an unreasonable absence from her child, and (3) her actions
were willful.
This Court applies a well-established standard when reviewing the sufficiency of the
evidence to support a criminal conviction. “[W]e consider the record ‘in the light most favorable to
the Commonwealth, giving it all reasonable inferences fairly deducible’” from that record.
DeAmicis v. Commonwealth, 31 Va. App. 437, 440, 524 S.E.2d 151, 152 (2000) (en banc) (quoting
Watkins v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998)) (internal quotation
marks omitted). In doing so, the Court discards “‘the evidence of the accused in conflict with that
of the Commonwealth, and regard[s] as true all the credible evidence favorable to the
Commonwealth.’” Id. (quoting Watkins, 26 Va. App. at 348, 494 S.E.2d at 866). The judgment of
the jury, confirmed by the trial court, “finding guilt beyond a reasonable doubt, will not be set aside
unless plainly wrong or unsupported by the evidence.” Id.; see Code § 8.01-680.
The law is also clear that determining the credibility of the witnesses and the weight
afforded the testimony of those witnesses are matters left to the trier of fact, who has the ability to
hear and see them as they testify. Commonwealth v. Taylor, 256 Va. 514, 518, 506 S.E.2d 312, 314
(1998). Finally, if the evidence is sufficient to support the conviction, the reviewing appellate court
will not “substitute its own judgment for that of the trier of fact, even if its opinion might differ from
the conclusions reached by the [fact finder].” Jordan v. Commonwealth, 286 Va. 153, 156-57, 747
S.E.2d 799, 800 (2013).
The code section prohibiting the offense of contributing to the delinquency of a minor
provides, in pertinent part, that any person, including the parent of the child, who “willfully
contributes to, encourages, or causes any act, omission, or condition that renders [the] child . . .
abused or neglected as defined in § 16.1-228 . . . is guilty of a Class 1 misdemeanor.” Code
§ 18.2-371(i). Here, the Commonwealth proceeded under the theory that the abuse or neglect fell
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within the definition provided in Code § 16.1-228(5). Based on that definition, an abused or
neglected child, for purposes of this case, is any child “[w]ho is without parental care or
guardianship caused by the unreasonable absence . . . of the child’s parent, guardian, legal
custodian, or other person standing in loco parentis.” Code § 16.1-228(5).
To the extent our analysis of the sufficiency of the evidence requires us to examine the
statutory language, we review issues of statutory construction de novo on appeal. See, e.g.,
Sarafin v. Commonwealth, 288 Va. ___, ___, 764 S.E.2d 71, 74 (2014). This same de novo
standard of review applies to determining the proper definition of a particular word in a statute.
See Blake v. Commonwealth, 288 Va. ___, ___, 764 S.E.2d 105, 107 (2014).
We apply these well-established legal principles to our review of this case.
1. Parental Care or Guardianship
The appellant argues that the Commonwealth failed to prove that she left her child “without
parental care or guardianship.” We hold that the evidence was sufficient to support the jury’s
finding regarding this element of the offense.
Code §§ 18.2-371 and 16.1-228, the applicable sections, do not define parental care or
guardianship. Consequently, consistent with the law relating to interpretation of statutes, plain,
ordinary words are to be given their common, everyday meaning. See, e.g., Thomas v.
Commonwealth, 59 Va. App. 496, 500, 720 S.E.2d 157, 159-60 (2012). There can be no dispute
that the mother left her toddler for about an hour. Parental care, a term used in the statute, is quite
simply the care provided by a parent to his or her child. When the appellant chose to go inside the
store and leave her young child in the car, either alone or under the intermittent monitoring of a
stranger, she left him without parental care. See Wood v. Commonwealth, 57 Va. App. 286,
300-01, 701 S.E.2d 810, 817 (2010) (recognizing that the level of care needed depends upon the
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degree of vulnerability of the child and that “mature judgment” is “necessary for parents of small
children”).
The record also supports a finding that the appellant left her child without a guardian. The
term guardian, given its common meaning, implies some degree of legal or formal responsibility for
a child. See In re O’Neil, 18 Va. App. 674, 678-79, 446 S.E.2d 475, 478 (1994) (“A guardian is
‘one who legally has responsibility for the care and management of the person, or the estate, or
both, of a child during its minority.’” (quoting Black’s Law Dictionary 635 (5th ed. 1979)));
Black’s Law Dictionary 822 (10th ed. 2014) (defining “guardian” as “[s]omeone who has the
legal authority and duty to care for another’s person or property, esp. because of the other’s
infancy, incapacity, or disability”). The record is devoid of any evidence of such an individual
attending to the child’s care in the appellant’s absence. Instead, here, at best, a stranger who agreed
to watch her car, not her child, and then a second stranger, whom she knew nothing about until she
saw that person already watching the car, remained with the vehicle intermittently during the
appellant’s hour-long absence. The jury did not err in refusing to consider these store employees,
unwittingly pressed into service, as “guardians” of the child for purposes of the definition of an
abused or neglected child. Their mere periodic presence near the car simply did not relieve the
appellant of her responsibility to provide an appropriate type and level of care for her young son.
To the extent that the appellant contends that the holdings in Snow v. Commonwealth, 33
Va. App. 766, 537 S.E.2d 6 (2000), and Krampen v. Commonwealth, 29 Va. App. 163, 510 S.E.2d
276 (1999), are instructive in interpreting the meaning of “parental care or guardianship” under
Code § 16.1-228(5), we conclude that those cases are distinguishable. Each opinion involved
determining the meaning of a particular phrase in a different statutory offense. Snow, 33
Va. App. at 771-73, 537 S.E.2d at 9-10 (considering who qualifies as a “person responsible for
the care of a child” in the context of who may be punished for the felony of child abuse or
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neglect under Code § 18.2-371.1); Krampen, 29 Va. App. at 166-69, 510 S.E.2d at 277-79
(considering what constitutes a “custodial or supervisory relationship” in the context of who may
be punished for the felony of taking indecent liberties with a child under Code § 18.2-370.1).
The Court concluded that the specific language in those statutes does not limit criminal liability
to those situations in which legal custody exists. Snow, 33 Va. App. at 773, 537 S.E.2d at 10;
Krampen, 29 Va. App. at 168, 510 S.E.2d at 278. Thus, in Snow and Krampen, the statutory
language at issue enlarged the category of criminal defendants subject to punishment for the
felonies proscribed by Code §§ 18.2-370.1 and -371.1. These phrases do not apply to narrow the
scope of criminal responsibility under the different statute at issue here, Code § 18.2-371(i).
That statute defines the misdemeanor offense of contributing to the delinquency of a minor,
which incorporates the definition of abuse or neglect in Code § 16.1-228 and does not contain
the elements at issue in Snow and Krampen.2
The appellant also suggests that when one leaves a child for a short period of time and the
child remains uninjured and does not demonstrate any unmet needs, this behavior does not amount
to leaving the child without parental care. Code § 18.2-371(i) provides, however, that a parent who
willfully and through an unreasonable absence causes the child to be without parental care or
2
In support of her argument that her son was not without parental care or guardianship, the
appellant also relies on a series of civil decisions. See Ridgley v. Fairfax Cnty. Dep’t of Fam.
Servs., No. 2560-09-4 (Va. Ct. App. Nov. 30, 2010); Datta v. Fairfax Cnty. Dep’t of Fam. Servs.,
No. 0293-06-4 (Va. Ct. App. Aug. 22, 2006); Lewis v. Fredericksburg Dep’t of Soc. Servs., No.
2832-02-2 (Va. Ct. App. Aug. 12, 2003). We reject her claim that these decisions are instructive.
First, they are unpublished and, therefore, are not binding precedent. See Otey v. Commonwealth,
61 Va. App. 346, 350 n.3, 735 S.E.2d 255, 257 n.3 (2012). Second, they are unpersuasive
because the facts and legal analyses differ significantly from those in the appellant’s case. Datta
was decided under the “mental or physical incapacity” prong of Code § 16.1-228(5) rather than the
“unreasonable absence” prong. Lewis held merely that an indeterminate incarceration constituted
an unreasonable absence under the statute; it did not purport to establish the floor of behavior that
constitutes an unreasonable absence. Finally, Ridgley, which also involved a parental absence due
to incarceration, addressed a termination of parental rights rather than a finding of abuse or neglect
under the definition in Code § 16.1-228(5).
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guardianship violates the statute. Compare Code § 18.2-371(i) (Class 1 misdemeanor not requiring
actual harm or impairment), with Code § 18.2-371.1(A) (Class 4 felony requiring proof of “serious
injury to the life or health of [the] child” and containing a non-exclusive list of injuries covered).
The statute does not require actual harm or impairment.3 Thus, the evidence supports the jury’s
finding that the appellant left her child without “parental care or guardianship.”
2. Unreasonable Absence
The appellant further suggests that the Commonwealth failed to prove that her absence was
“unreasonable” for purposes of showing abuse or neglect. We hold that the evidence was sufficient
to support the jury’s finding that the Commonwealth met its burden of proof as to this element.
Neither the statute nor case law defines what constitutes “unreasonable absence” for
purposes of determining abuse or neglect under Code § 16.1-228(5). However, “‘[w]hen the
language of a statute is unambiguous, courts are bound by the plain meaning of that language
and may not assign a construction that amounts to holding that the General Assembly did not
mean what it actually has stated.’” Williams v. Commonwealth, 265 Va. 268, 271, 576 S.E.2d
468, 470 (2003). Simply put, “[w]e must . . . assume that the legislature chose, with care, the
words it used when it enacted the relevant statute.” Barr v. Town & Country Props., Inc., 240
Va. 292, 295, 396 S.E.2d 672, 674 (1990). “An undefined term must be ‘given its ordinary
meaning, given the context in which it is used.’” Sansom v. Bd. of Supers., 257 Va. 589, 594-95,
3
“[T]he absence of any injury requirement and the authorization of a less severe
punishment[] ‘demonstrates a legislative intent to prohibit conduct that . . . has the potential for
endangering a child’s life.’” See Jones v. Commonwealth, 46 Va. App. 713, 718, 621 S.E.2d 676,
679 (2005) (applying these principles to the different grades of felony offenses proscribed by Code
§ 18.2-371.1(A) and (B)(1)) (quoting Commonwealth v. Duncan, 267 Va. 377, 385, 593 S.E.2d
210, 214 (2004)), aff’d, 272 Va. 692, 636 S.E.2d 403 (2006). In any event, the jury was instructed,
without objection, that the Commonwealth was not required to prove actual harm or impairment to
the child in order to establish abuse or neglect. Thus, this instruction became the law of the case.
See Ludwig v. Commonwealth, 52 Va. App. 1, 12, 660 S.E.2d 679, 684 (2008).
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514 S.E.2d 345, 349 (1999) (quoting Dep’t of Tax’n v. Orange-Madison Coop. Farm Serv., 220 Va.
655, 658, 261 S.E.2d 532, 533-34 (1980)).
The word “reasonable,” in ordinary usage, “means ‘fair; just; ordinary or usual; not
immoderate . . . ; not capricious or arbitrary.’” Sydnor Pump & Well Co. v. Taylor, 201 Va. 311,
317-18, 110 S.E.2d 525, 530 (1959) (citation omitted). Whether the appellant’s absence was
“unreasonable” was a question of fact for the jury. Cf. Commonwealth v. Duncan, 267 Va. 377,
386, 593 S.E.2d 210, 215 (2004) (“[T]he dangers inherent in [giving alcohol to a six-month-old
baby] could be inferred by the fact finder as a matter of common knowledge.”); Canipe v.
Commonwealth, 25 Va. App. 629, 643, 491 S.E.2d 747, 753 (1997) (holding that whether a killing
was done in the heat of passion upon reasonable provocation is a question of fact). Here, the jury
determined that the facts of this case supported the conclusion that the appellant’s undisputed
absence from her child for approximately one hour under the specific conditions of the case was
unreasonable. That conclusion is not plainly wrong or without evidence to support it.
The appellant left her young child in a car with its engine running and the windows open.
She double parked the vehicle in a fire lane where parking was clearly marked as prohibited. She
went inside the store, leaving the child unattended. At some point she asked an employee, a
complete stranger to her, if he would “watch her car outside for about five minutes.” Despite the
appellant’s representation to that employee that she would be gone for only five minutes, thirty
minutes later, the employee needed to return to his post in the store so, on his own volition, he asked
another employee, also a stranger to the appellant, to watch the car. She agreed to do so only on a
limited basis. After another five to ten minutes, the appellant came outside and removed the keys
from the car. Despite the fact that she did not know this second employee who was near her car and
child, and had not enlisted her to watch the child, the appellant simply told the employee that she
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would be back in a few minutes and went back inside the store. After about another twenty to thirty
minutes, the second employee went back inside the store, leaving the child and car unattended.
In total, the appellant left her child for about an hour while she was inside the grocery store.
No evidence indicated any sort of emergency that might have rendered her absence reasonable.
Rather, the appellant left the child merely so that she could shop or conduct other business in a store
for a significant period of time. The child could easily have been kidnapped or taken inadvertently
in a theft of the car, hurt in a collision with another car while double parked in the fire lane, or
injured by the dogs in the car. Further, the fact that strangers watched the vehicle during that period
of time could actually have added to the potential danger since the appellant knew nothing about the
two individuals beyond their status as employees of the grocery store.
These facts provided the jury with ample evidence to conclude that the appellant left her
child either with a stranger or unattended for an hour and that the situation constituted an
“unreasonable absence” from her young son.
3. Willfulness
The appellant argues that the Commonwealth failed to prove that her actions were willful.
We hold that the evidence, viewed under the proper standard, was sufficient to prove this element.
Pursuant to Code § 18.2-371(i), the Commonwealth was required to prove that the appellant
willfully contributed to or caused an act, omission, or condition that rendered her son abused or
neglected as defined in Code § 16.1-228(5). The jury was specifically instructed, without objection,
that a willful act is:
one done with a bad purpose, or without justifiable excuse, or
without ground for believing it is lawful. A willful act is intentional,
or knowing, or voluntary, as distinguished from accidental. The
terms “bad purpose” or “without justifiable excuse” require
knowledge that the particular conduct will likely result in injury or
illegality.
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See Va. Model Jury Instr. – Criminal, No. 29.360 (2012).4 Willfulness in this context “means the
same thing as ‘criminal negligence’ or recklessness.” Ronald J. Bacigal, Criminal Offenses and
Defenses 296 (Va. Practice Series, 2014) (addressing Virginia’s felony abuse and neglect statutes);
see Carosi v. Commonwealth, 280 Va. 545, 556, 701 S.E.2d 441, 447 (2010). In determining
whether conduct constitutes criminal negligence, the Court applies an objective standard, and the
test is whether the appellant “‘knew or should have known the probable results of [her] acts.’”
Jones v. Commonwealth, 272 Va. 692, 701, 636 S.E.2d 403, 408 (2006) (quoting Kelly v.
Commonwealth, 42 Va. App. 347, 356, 592 S.E.2d 353, 357 (2004)). The analysis regarding
whether an act is willful is fact specific. Carosi, 280 Va. at 556, 701 S.E.2d at 447. Relevant facts
include “the gravity and character of the possible risks of harm; the degree of accessibility of the
parent; the length of time of the abandonment; the age and maturity of the child[]; [and] the
protective measures, if any, taken by the parent.” Barnes v. Commonwealth, 47 Va. App. 105, 113,
622 S.E.2d 278, 282 (2005).
Here, the jury was presented with ample evidence to support its conclusion that the appellant
acted willfully in a criminally negligent manner. She left her young child asleep in her car, double
parked in a clearly marked fire lane, with the windows open, the engine running, and two dogs
inside. She left the child alone while she went inside and found a store employee, who was a
complete stranger. She asked him to watch her car, not her child. She also told the employee that
she would return in five minutes, but instead, she was gone for about an hour. After more than
4
This instruction became the law of the case. The commentary accompanying the model
jury instruction defining willfulness states that it applies to prosecutions under Code § 18.2-371.1,
which covers felony child abuse or neglect. See Va. Model Jury Instr. – Criminal, No. 29.360 cmt.
Because this instruction has become the law of the case, we use the various decisions analyzing
willfulness in the context of Code § 18.2-371.1 and the related felony in Code § 40.1-103 in
resolving the appellant’s challenge to this element of the misdemeanor proscribed by Code
§ 18.2-371. Nevertheless, these cases are not controlling in all respects because of the
differences in other elements in the various statutes.
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thirty minutes had passed and the first employee had pressed a co-worker into intermittent service
so that he could return to work, the appellant came outside to retrieve her keys. Seeing a new
stranger near the car, she merely grabbed her keys, yet again left her child in the car, and simply told
the stranger that she would return in a few minutes. Again, she failed to do so, and some twenty to
thirty minutes later, the second employee left the car unattended.
This evidence demonstrates that the appellant knowingly and intentionally left her child for
an extended period of time in a vehicle, either alone or with a stranger, in such a manner to support
the conclusion that it was done with “a bad purpose, or without justifiable excuse, or without ground
for believing it [was] lawful.” Under the facts of this case, it was reasonable for the jury to conclude
that the appellant knew or should have known that her intentional actions in leaving her young son
in the car rather than taking him with her into the grocery store subjected him to a substantial risk of
harm. See, e.g., Wood, 57 Va. App. at 300, 701 S.E.2d at 816 (identifying “moving vehicles and
strangers” as dangers to children in parking lots); Kelly, 42 Va. App. at 356, 592 S.E.2d at 357-58
(characterizing a young child left in a child seat in a vehicle as “helpless”). Any number of dangers
are associated with leaving a child unattended with two dogs, or periodically with complete
strangers, in a running vehicle parked in a fire lane in front of a grocery store for an hour. The
potential hazards to an unattended toddler under these circumstances span the range of the
imagination of the average person. The child could have sustained injury at the hands of a child
predator or car thief, injury caused by a vehicle striking the car double parked in the fire lane, or
injury caused by the dogs. The jury’s conclusion that the appellant acted willfully is not plainly
wrong or without evidence to support it.
The appellant relies on the decision in Ellis v. Commonwealth, 29 Va. App. 548, 513 S.E.2d
453 (1999), in support of her claim that her actions were not willful. The facts in Ellis, however, are
readily distinguishable. In Ellis, the defendant’s apartment caught fire after she accidentally left the
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stove on and went to a neighbor’s porch nearby while her young daughters napped in the apartment.
Id. at 551-53, 513 S.E.2d at 455-56. The defendant was charged with violating Code
§ 18.2-371.1(A), a Class 4 felony, which requires proof of both a “‘willful act or omission’” and a
nexus showing that the act or omission “‘cause[d] or permit[ted] serious injury to the life or health
of [a] child.’” Id. at 553-55 & n.1, 513 S.E.2d at 456-57 & n.1 (quoting Code § 18.2-371.1(A)).
The parties stipulated that one of the defendant’s children suffered the required serious injury from
smoke inhalation. Id. at 552, 513 S.E.2d at 455. The Court held that the defendant was guilty of
ordinary negligence because she left her apartment during her children’s nap time and accidentally
failed to turn off the stove when she did so. Id. at 555-56, 513 S.E.2d at 457. It further concluded
that her behavior did not violate the felony statute at issue because it was her accidental act of
forgetting to turn off the stove, rather than her intentional act of leaving the apartment, that caused
or permitted the injury. Id. at 555, 513 S.E.2d at 457. It reasoned that the evidence failed to
establish that she left the apartment “with knowledge or consciousness” that the harm that actually
occurred was likely to befall her child. Id.; see Noakes v. Commonwealth, 54 Va. App. 577, 590,
681 S.E.2d 48, 54 (2009) (en banc) (characterizing Ellis as holding that the “defendant was not
criminally negligent because she was unaware she had left a kitchen burner on and, accordingly, did
not consciously disregard the likely ignition of a grease fire that would ultimately endanger the lives
of her children”), aff’d, 280 Va. 338, 699 S.E.2d 284 (2010).
In the appellant’s case, by contrast, she was convicted of misdemeanor contributing to the
delinquency of a minor by abuse or neglect under Code § 18.2-371. This offense does not require
proof that the foreseeable risk resulted in actual harm to the child. This lesser crime, in relevant
part, is complete upon proof that the appellant “knew or should have known” that her intentional
conduct involving her child created “a substantial risk” of injury. The evidence here met this
standard. See, e.g., Jones, 272 Va. at 701, 636 S.E.2d at 408 (upholding a conviction under Code
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§ 18.2-371.1(B)(1) where the defendant knew or should have known that allowing her
eight-year-old son to be in the same room with heroin capsules and cocaine residue created a
substantial risk of serious injury); Barnes, 47 Va. App. at 111-13, 622 S.E.2d at 281-82 (upholding a
conviction under Code § 40.1-103(A) where the defendant left her young children alone in an
unlocked apartment while she drove to a grocery store); cf. Bean-Brewer v. Commonwealth, 49
Va. App. 3, 4, 12-17, 635 S.E.2d 680, 681, 685-87 (2006) (upholding a finding of a criminally
negligent “‘willful act or omission’” where a licensed in-home childcare provider allowed an eight
year old to provide “extended” supervision for younger children, resulting in injury to an infant).
Clearly, under the facts of this case, in contrast to Ellis, the appellant knew or should have
known that her intentional actions created a substantial risk of harm to her young son. These facts
were sufficient to prove the willfulness required to support her conviction.
B. Refused Jury Instruction
The appellant contends that the trial court erred in refusing a proffered jury instruction. The
refused instruction states: “One may become a person responsible for the care of a child by a
voluntary course of conduct and without explicit parental delegation of supervisor[y] responsibility
or court order.” We hold that the court’s refusal of the instruction was not error.
It is well established that the decision to grant or deny proffered jury instructions is
within the broad discretion afforded the trial court. Sarafin, 288 Va. at ___, 764 S.E.2d at 74.
“‘The purpose of any jury instruction is to inform the jury of the law guiding their deliberations
and verdict.’” Morgan v. Commonwealth, 50 Va. App. 120, 132, 646 S.E.2d 899, 905 (2007)
(quoting Keen v. Commonwealth, 24 Va. App. 795, 807, 485 S.E.2d 659, 665 (1997)). The
burden is on the proponent of the instruction “to satisfy the trial court that the proposed language
is a correct statement of the law, applicable to the facts of the case on trial, and expressed in
appropriate language.” Shaikh v. Johnson, 276 Va. 537, 546, 666 S.E.2d 325, 329 (2008).
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On appeal, this Court’s “responsibility in reviewing jury instructions is ‘to see that the
law has been clearly stated and that the instructions cover all issues which the evidence fairly
raises.’” Darnell v. Commonwealth, 6 Va. App. 485, 488, 370 S.E.2d 717, 719 (1988) (quoting
Swisher v. Swisher, 223 Va. 499, 503, 290 S.E.2d 856, 858 (1982)). When considering whether
a trial court abused its discretion by denying a defendant’s proffered instruction, this Court
“view[s] the facts relevant to the determination of that issue in the light most favorable to [the
defendant].” Commonwealth v. Cary, 271 Va. 87, 90-91, 623 S.E.2d 906, 907 (2006). “[A]
criminal defendant is entitled to have the jury instructed on his or her theory of defense when the
evidence in the record supports the defense and when the defendant has proffered an instruction
that correctly states the law.” Tart v. Commonwealth, 52 Va. App. 272, 278, 663 S.E.2d 113,
116 (2008).
Here, the text of the refused instruction came from language in Snow, 33 Va. App. at
773, 537 S.E.2d at 10. The defendant in that case was charged with felony child abuse or neglect
under a different statute, which applies to “‘[a]ny parent, guardian, or other person responsible
for the care of a child.’” Id. at 771, 537 S.E.2d at 9 (quoting Code § 18.2-371.1(B)). In the
context of who may be a criminal actor under that statute, the Court addressed the meaning of the
phrase “other person responsible for the care of a child.” Id. at 773, 537 S.E.2d at 10. It held
that one may become such a person “by a voluntary course of conduct and without explicit
parental delegation of supervisory responsibility or court order.” Id.
The appellant suggests that the language from Snow supports her theory that she did not
leave her son without “parental care or guardianship” because the store employees who agreed to
watch him while he remained in the car became “other person[s] responsible” for his care. We
reject this suggestion for two reasons. First, the phrase “other person responsible” does not
appear in the language of Code § 18.2-371, the misdemeanor offense for which the appellant was
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convicted, or in the definition of abuse or neglect that statute incorporates from Code
§ 16.1-228(5). The proposed jury instruction does not define parental care or guardianship, the
terms that do appear in the applicable statute. Second, even as employed in Code § 18.2-371.1,
the purpose of the phrase “other person responsible” is to cover a broader range of defendants
who may be held criminally liable, not to relieve others from criminal responsibility for their
own acts of abuse or neglect. Cf. Shaikh, 276 Va. at 546, 666 S.E.2d at 329 (cautioning against
indiscriminately using language from an appellate opinion in jury instructions); Cooper v.
Commonwealth, 2 Va. App. 497, 500, 345 S.E.2d 775, 777 (1986) (noting that jury instructions
should inform the jury regarding the law of the case that is applicable to the specific facts).
The offense in the instant case required the Commonwealth to prove that the appellant
willfully contributed to, encouraged, or caused an act, omission, or condition that rendered the child
abused or neglected. See Code § 18.2-371(i). In this case, abuse or neglect meant that the child was
“without parental care or guardianship caused by the unreasonable absence . . . of the child’s
parent.” See Code § 16.1-228(5). The jury was properly instructed on the elements of the offense
and all necessary definitions. The appellant’s counsel was free to argue to the jury the significance
of the presence of the two employees at the car for periods of time during her hour-long absence.
Consequently, the trial court did not abuse its discretion when it refused to give the proposed
instruction on the definition of a “person responsible for the care of a child,” a phrase that does not
appear in the statutes applicable to the charged offense.
III. CONCLUSION
We hold that the evidence was sufficient to prove that the appellant contributed to the
delinquency of a minor, in violation of Code § 18.2-371. Further, we hold that the trial court did not
err in rejecting the appellant’s proposed jury instruction. Consequently, we affirm the conviction.
Affirmed.
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