John Elmore Gibbs v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Beales and AtLee
UNPUBLISHED
Argued at Richmond, Virginia
JOHN ELMORE GIBBS
MEMORANDUM OPINION* BY
v. Record No. 1020-17-2 JUDGE RANDOLPH A. BEALES
APRIL 3, 2018
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
David E. Johnson, Judge
David B. Hargett (Hargett Law, PLC, on brief), for appellant.
Stephen L. Forster, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
On November 17, 2016, Dr. John Elmore Gibbs (“appellant”) was convicted of felony
child neglect in violation of Code § 18.2-371.1(B).1 Appellant appeals the sufficiency of the
evidence for the conviction, arguing that the trial court “erred in convicting Gibbs when the
evidence failed to prove beyond a reasonable doubt criminal negligence, any ‘willful act or
omission’ that ‘was so gross, wanton, and culpable as to show a reckless disregard for human
life,’ or any knowledge or consciousness that the child likely would be seriously injured.”
I. BACKGROUND
We consider the evidence on appeal “in the light most favorable to the Commonwealth,
as we must since it was the prevailing party” in the trial court. Beasley v. Commonwealth, 60
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Although neither the final conviction order nor the sentencing order specifies that
appellant’s conviction is based on subsection B of Code § 18.2-371.1, the indictment recites the
language of Code § 18.2-371.1(B).
Va. App. 381, 391, 728 S.E.2d 499, 502 (2012) (quoting Riner v. Commonwealth, 268 Va. 296,
330, 601 S.E.2d 555, 574 (2004)). So viewed, the evidence at trial showed that on the afternoon
of February 22, 2016, Gregory Gentry, the maintenance adviser at the Clairmont at Chesterfield
Apartments, located in Chesterfield County, observed five-year-old J.G.2 wandering alone
around the outside of the apartment complex. Gentry described J.G. as “a little child, a little
boy” wearing “no jacket, a T-shirt, some pants,” and shoes without socks. Gentry testified that
“[i]t was very cold. I had on a sweatshirt along with a jacket. It was cold. It was February.”
Gentry attempted to talk to J.G.; however, the boy turned and ran from him. Gentry and
his supervisor, Rebecca Cantowsky, followed the boy as he crossed the street from the apartment
complex. Gentry explained, “He [J.G.] had crossed the street from our property onto the Costco
side. So we were going up to traffic.” By the time they caught up with him, J.G. was “[w]ell
over 150 feet” from the apartment complex. He had crossed through the apartment’s “privacy
fence, through the gate, across the street, and was on the Costco side [of the street] up by the gas
station area, where other pedestrians were pumping gas.” During his exit from the complex, J.G.
had also passed the apartment complex’s gated pool and pond.
Gentry testified that, after he reached J.G., the boy told Gentry that his father, appellant,
had instructed J.G. to meet him at the hospital. Gentry tried to persuade the boy to get into
Cantowsky’s car, but J.G. resisted and repeatedly told Gentry that appellant had told J.G. to meet
him at the hospital. Gentry eventually persuaded J.G. to return to the apartment complex with
him by allowing J.G. to ride on his shoulders. When Gentry asked J.G. his age, the boy claimed
that he was thirteen. J.G. refused to tell Gentry his name.
After returning to the Clairmont Apartments, Gentry testified that he waited in his office
with J.G. on his shoulders for 30 to 40 minutes. During this time, two Chesterfield County
2
We use initials, instead of the child’s name, in an attempt to better protect his privacy.
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police officers arrived at the apartment complex and, with Cantowsky’s assistance, they located
the boy’s apartment. When they reached the apartment, appellant approached the group. Gentry
asked appellant if J.G. “belong[ed] to him,” and appellant told the group that J.G. was his son.
Gentry testified that he was upset by appellant’s reaction to learning that his son had been
wandering around outside alone. Gentry stated that appellant offered “[n]o thank you. No
nothing. No look like a sigh, where did you find him, anything.” Gentry testified that he told
appellant that J.G. claimed he was thirteen years old, and appellant responded that “he [J.G.] is a
liar.” Gentry also testified that it was “[w]ell over forty minutes” between the time Gentry first
saw J.G. and the time appellant arrived.
Cantowsky, Gentry’s supervisor and the property manager for the Clairmont at
Chesterfield Apartments, testified at appellant’s trial and confirmed Gentry’s account. She also
testified that she recognized J.G. from a prior incident on the apartment complex’s property
where J.G. had been found alone at the apartment complex’s pool.
Cantowsky testified that she called the police from her car while she and Gentry were
following J.G. Cantowsky told the police where J.G. lived. She also testified that, when they
arrived at appellant’s apartment, they knocked on the door and then “stood there for a while and
knocked, at least for a few minutes.” Cantowsky testified that no one ever answered the door,
but the group eventually saw appellant walking toward them from the front of the building.
Officer Saxer, one of the officers from the Chesterfield County Police Department,
testified that, after the call came in on the day of the incident, he was actually dispatched at
4:10 p.m., and arrived at the apartment complex at 4:33 p.m. He testified that an additional 15 to
20 minutes elapsed before appellant appeared.
Officer Saxer testified that he explained to appellant that J.G. had left the apartment and
that J.G. had said that he was on the way to the hospital to meet his father. Officer Saxer also
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testified that appellant told him that J.G.’s explanation about the hospital “was a lie, he
[appellant] didn’t say anything like that.” Appellant told Officer Saxer that J.G. was at home
that day because J.G. had been suspended from school.
A school counselor at J.G.’s elementary school also testified as a witness for the
Commonwealth. She stated that, at the time of the incident, J.G. was in kindergarten. On the
afternoon that J.G. was found wandering, she had a meeting with appellant at 4:00 p.m. to
discuss J.G.’s behavior, his current suspension from school, and how “to keep him safe and other
kids safe at school.” The counselor testified that the principal, assistant principal, and a special
education teacher were also present at the meeting. She also testified that she believed J.G. had
been suspended on other occasions that year and that he had “other office referrals.” She stated
that their meeting with appellant lasted about 30 minutes and that the drive from the elementary
school to the Clairmont Apartments takes a “couple of minutes.”
The Commonwealth’s last witness was an investigator with Chesterfield County Child
Protective Services (CPS). She testified that she had an interview with appellant on February 25,
2016, following a complaint made about appellant’s treatment of J.G. During the interview,
appellant told her that he had gone to J.G.’s school for a conference with J.G.’s teachers, and he
had left J.G. home by himself at the apartment. Appellant told her that he believed J.G. was not
allowed on school grounds. She also testified that appellant had told her about a prior incident
that had occurred the month before when appellant had left J.G. at home with his older teenage
brother. On that day in January, J.G. had left the apartment by himself and wandered to the
apartment complex’s community pool, where the apartment staff found him.
At some point following the incident now before us on appeal, the CPS investigator
visited J.G. at school. She and a detective tried to speak with J.G. in a conference room, but the
child ran from the room and through the school’s halls, requiring “principals and several school
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staff . . . to go after him.” Eventually, the guidance counselor was able to calm J.G. down. The
CPS investigator and the detective were able to speak with J.G., but, whenever they “started
talking about who was in his family, who lived at home with him, he shut down.”
Following the bench trial, appellant was convicted of felony child neglect in violation of
Code § 18.2-371.1(B)(1). In finding appellant guilty of the offense, the trial court reasoned:
The facts are Dr. Gibbs left his five-year-old son, a child with a
history of unruly or undisciplined behavior, at home alone.
Dr. Gibbs did not leave due to an emergency. He left to attend a
prescheduled meeting. This act alone has the potential of
endangering the child’s life, even if he does not get out of the
apartment. This act alone is subjecting [J.G.] to substantial risk of
serious injury. The fact that he got out, and Mr. Gentry, under
questioning from defendant’s counsel, referred to a slash in the
screen, and there was nothing else presented, raises more potential
concern, but finally he does get out, which opens up an entire new
realm of potential endangerment to his life.
This appeal followed.
II. ANALYSIS
When considering the sufficiency of the evidence on appeal, “a reviewing court does not
‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable
doubt.’” Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384, 387 (2003)
(quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). “We must instead ask whether ‘any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.’” Id. (quoting Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447
(2003) (en banc)). “This familiar standard gives full play to the responsibility of the trier of fact
fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.” Kelly, 41 Va. App. at 257-58, 584 S.E.2d at 447
(quoting Jackson, 443 U.S. at 319).
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Code § 18.2-371.1(B)(1), provides:
Any parent, guardian, or other person responsible for the care of a
child under the age of 18 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 is guilty of a Class 6 felony.
To support a conviction under Code § 18.2-371.1(B)(1), the Commonwealth must prove
that appellant “through [his] willful act or omission, showed a reckless disregard for [his] son’s
life.” Jones v. Commonwealth, 272 Va. 692, 698, 636 S.E.2d 403, 406 (2006) (citing Barrett v.
Commonwealth, 268 Va. 170, 183, 597 S.E.2d 104, 110-11 (2004)).
The word [willful] often denotes an act which is intentional, or
knowing, or voluntary, as distinguished from accidental. But when
used in a criminal statute it generally means an act done with a bad
purpose; without justifiable excuse; stubbornly, obstinately,
perversely[.] The word is also employed to characterize a thing
done without ground for believing it is lawful.
Barrett, 268 Va. at 183, 597 S.E.2d at 111 (quoting United States v. Murdock, 290 U.S. 389, 394
(1933)). “The term ‘willful act’ imports knowledge and consciousness that injury will result
from the act done. The act done must be intended or it must involve a reckless disregard for the
rights of another and will probably result in an injury.” Id.
The term “gross, wanton, and culpable” describes conduct. The
word “gross” means “aggravated or increased negligence” while
the word “culpable” means “deserving of blame or censure.” Bell
[v. Commonwealth, 170 Va. 597, 611, 195 S.E. 675, 681 (1938)].
“‘Gross negligence’ is culpable or criminal when accompanied by
acts of commission or omission of a wanton or wilful nature,
showing a 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 result of his acts.” Id. at 611-12, 195 S.E. at 681.
Barrett, 268 Va. at 183, 597 S.E.2d at 111 (quoting Cable v. Commonwealth, 243 Va. 236, 240,
415 S.E.2d 218, 220 (1992)).
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Appellant argues that this Court’s decision in Ellis v. Commonwealth, 29 Va. App. 548,
554, 513 S.E.2d 453, 456-57 (1999), requires that his conviction be overturned. In Ellis, Brenda
Ann Ellis, had, at some point during the day, turned on the gas stove in her apartment in order to
light a cigarette. Id. at 551, 513 S.E.2d at 455. She failed to turn off the stove, and later left her
apartment to visit her friend in another apartment in that complex that the trial court found was
approximately 30 to 50 yards from her building, leaving her two young children (ages two and
four) alone napping in their bedroom. Id. at 552, 513 S.E.2d at 455. Ellis and her friend
prepared food in her friend’s microwave oven and then talked on the friend’s front porch. Id.
Ellis’s apartment was nearby, but was not visible from the friend’s porch. Id. Shortly after Ellis
left her apartment, a fire broke out, resulting in injury to her children. Id.
The trial court found Ellis guilty of child neglect in violation of Code § 18.2-371.1 with
respect to one child and cruelty to children in violation of Code § 40.1-103 with respect to the
other child. Id. at 553, 513 S.E.2d at 456. In support of its ruling, the trial court found that the
culpable “acts of the Defendant were leaving two children aged 27 months and four years nine
months asleep in a closed apartment for a period of 15 to 30 minutes with a purpose of
socializing with friends or neighbors some 30 to 50 yards away.” Id.
Ellis appealed the Code § 18.2-371.1 conviction, “contending the evidence was
insufficient to prove her actions constituted a ‘willful’ act or omission.” Id. This Court agreed
and reversed the conviction, holding that the evidence failed to show that Ellis acted willfully
when she left her children unattended. Id. at 555, 513 S.E.2d at 456. The Court stated that,
although appellant “purposefully and intentionally left her apartment” to visit a friend, “the intent
which is relevant to our determination of ‘bad purpose’ does not relate simply to why she left the
apartment. Rather, it relates to the degree to which she was aware of the danger when leaving
her children unattended.” Id. at 555, 513 S.E.2d at 457. In reviewing the record, this Court
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found that “no evidence establishes that she [Ellis] left the apartment with the intent to injure her
children; nor does the evidence support the conclusion that she acted with knowledge or
consciousness that her children would be injured as a likely result of her departure to visit a
neighbor for a short period of time in another residential building.” Id. at 555, 513 S.E.2d at 457.
Contrary to appellant’s argument, however, the present case is not controlled by Ellis
because in Ellis, the evidence did not support the conclusion that Ellis acted with knowledge or
consciousness that her children would likely be injured as a result of her visiting a neighbor a
short distance away. Here, however, the evidence does support the conclusion that appellant
acted with reckless disregard for the life and safety of his child in a way that would probably
result in injury by leaving him alone in their apartment for the better part of an hour to drive
away to a prescheduled meeting. Most significant of the several facts that should have alerted
appellant to the likelihood that harm would occur to J.G. from leaving the child alone at the
apartment is the fact that a similar situation occurred just a month earlier. On that day, J.G., who
had been left home with his older brother, walked out of appellant’s apartment, and the staff at
the apartment complex found J.G. alone at the complex’s pool in January. This prior incident
should have alerted appellant to J.G.’s propensity to leave the apartment when not adequately
supervised. In the earlier incident, he was not even alone in the apartment as he was this time.
In addition, appellant should have been aware that J.G.’s young age, coupled with (as the trial
court found) his “history of unruly or undisciplined behavior,” rendered the child incapable of
staying alone in the apartment unsupervised for close to an hour. The record shows that J.G. was
demonstrating major behavioral problems at school. At the time of the incident, J.G. was
suspended from school, and the actions that led to the suspension apparently required appellant
and school staff to have a discussion about how “to keep him safe and other kids safe at school.”
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These facts demonstrate that appellant knew that leaving J.G. alone at home, unsupervised,
would probably result in injury to the child. 3
We agree with the Commonwealth that this Court’s decision in Barnes v.
Commonwealth, 47 Va. App. 105, 622 S.E.2d 278 (2005), is more persuasive to our decision in
this case. In Barnes, Arteshia S. Barnes left her two children, ages two and four, sleeping alone
at their apartment while she went to the store to shop for groceries. Id. at 109, 622 S.E.2d at
279-80. While she was gone, the children awakened, left the apartment, and knocked on the
door of the neighbor’s apartment. Id. at 109, 622 S.E.2d at 279. Suspecting that the children had
been left alone, the neighbor called the police. Id. Shortly after the police arrived –
approximately 50 minutes after the children first knocked on the neighbor’s door – Barnes
appeared carrying ten grocery bags. Id. at 109, 622 S.E.2d at 280. Barnes admitted to the police
that she had left the children alone in order to go to the grocery store by herself. Id.
At trial, Barnes was convicted of child endangerment in violation of Code
§ 40.1-103(A).4 The trial court noted that among the risks to the children’s safety “was the
3
The fact that J.G. was not actually injured is irrelevant to our analysis. Unlike Code
§ 18.2-371.1(A), Code § 18.2-371.1(B)(1), “does not require that a child actually suffer serious
injury as a result of the defendant’s acts or omissions.” Commonwealth v. Duncan, 267 Va. 377,
385, 593 S.E.2d 210, 214 (2004).  “The absence of an injury requirement in subsection (B)(1)
reflects the lesser nature of the offense, a Class 6 felony, and demonstrates a legislative intent to
prohibit conduct that also has the potential of endangering a child’s life.” Id. (emphasis added).
See also White v. Commonwealth, 68 Va. App. 111, 115 n.2, 804 S.E.2d 317, 319 n.2 (2017)
(noting that White’s decision to leave “her young children alone at home while she took her
husband to work was a significant fact in her convictions under Code § 18.2-371.1(B)” – which
she did not appeal – but would not have established criminal liability under Code
§ 18.2-371.1(A) because no injury occurred to either of the children at that time).
4
Although Barnes’s conviction fell under Code § 40.1-103(A), our decision in that case
is also persuasive for our determination of the type of behavior that constitutes criminal
negligence punishable under Code § 18.2-371.1(B)(1) – the statute under which appellant was
convicted. See Carosi v. Commonwealth, 280 Va. 545, 553, 701 S.E.2d 441, 445 (2010)
(“Although the two statutes [Code § 40.1-103(A) and Code § 18.2-371.1(B)(1)] define separate
offenses, it is clear that the mens rea for each offense can be satisfied by a showing of criminal
negligence on the part of the defendant.”). See also Mott v. Commonwealth, No. 1802-15-1,
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foreseeable possibility that they would wake up, go outside looking for their mother, and be
struck by a vehicle on Virginia Avenue.” Id. On appeal, Barnes argued the evidence was
insufficient to prove that she acted with criminal negligence. This Court disagreed and upheld
the conviction because, given the circumstances of the case, a rational factfinder could have
found Barnes “criminally negligent in leaving her 2 and 4-year-old children alone in an unlocked
apartment while making herself inaccessible for a period of time long enough to travel to a
grocery store, collect and check out 10 bags of groceries, and then drive back to her apartment.”
Id. at 111, 622 S.E.2d at 281. It was significant to the Court’s decision that “[w]hen the children
awoke, they had no idea where their mother was or where they should look for her.” Id.
Although the children sensibly sought the help of a neighbor, “they just as easily could have
wandered out on Virginia Avenue into vehicular traffic, or gotten lost outside, or injured
themselves in any number of ways that children of such a young age can.” Id. at 111-12, 622
S.E.2d at 281.
In affirming Barnes’s conviction, the Court explained:
Given the fact-intensive nature of the inquiry, the sufficiency
analysis on appeal depends entirely on the specific circumstances
of each case: 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 children; the
protective measures, if any, taken by the parent; and any other
circumstance that would inform the factfinder on the question
whether the defendant’s conduct was criminally negligent.
Id. at 113, 622 S.E.2d at 282.
2016 Va. App. LEXIS 325, at *4-5 (Va. Ct. App. Nov. 29, 2016) (affirming felony child neglect
convictions under Code § 18.2-371.1(B)(1) based on the factors articulated in Barnes). The two
statutes, both Class 6 felonies, “are sufficiently similar that the legislature has included identical
provisions for an affirmative defense to each offense where the prosecution is ‘based solely on
the accused parent having left the child at a hospital or rescue squad . . . within the first 14 days
of the child’s life.’”  Carosi, 280 Va. at 553 n.4, 701 S.E.2d at 445 n.4 (citing Code
§ 18.2-371.1(B)(2) and Code § 40.1-103(B)).
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Considering each of the six factors described in Barnes, we cannot say that, under these
specific circumstances in this case, a rational factfinder could not find appellant guilty of felony
child neglect beyond a reasonable doubt. A review of those factors shows why the trial court
was not plainly wrong in finding that “Dr. Gibbs took a willful act in the care of [J.G.] that was
so gross, wanton and culpable [as] to show a reckless disregard for human life.” The first factor
– the gravity and the character of the possible harm – is similar to that faced by the children in
Barnes. As in Barnes, the potential harm in this case was the harm that would occur from the
child, J.G., being left alone in the apartment without supervision for close to an hour. More
specifically, the risk was the harm that was likely to occur when J.G. left the apartment alone and
ventured across the street, as he actually did in this case, to the parking lot of the Costco and gas
station.
With respect to the second factor – the degree of accessibility of the parent – the record
shows that appellant made himself completely inaccessible to J.G. Although the school was only
minutes away by car, it required appellant to drive away from his apartment building, preventing
him from seeing or hearing J.G. if the child needed assistance. In Barnes, this Court found
Barnes’s inaccessibility to be a substantial factor that distinguished Barnes from Ellis. While
Ellis was not far away at a neighbor’s apartment and could have potentially been easily located
by her children – or a neighbor if the neighbor saw her children in distress, “Barnes absented
herself entirely from her children, her neighbors, and anyone else who might find the children
wandering outside.” Id. at 112, 622 S.E.2d at 281. Similarly, appellant’s choice to completely
absent himself from the entire premises of the apartment complex distinguishes the present case
from Ellis. Furthermore, also similar to the children in Barnes, who awoke with no idea where
their mother was located, J.G. appeared to have no idea that appellant was at his school. J.G.
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apparently believed that appellant was working at the hospital and that he was supposed to meet
him there.
As to the third factor – the length of time of the abandonment – appellant was absent for
about the same amount of time as the mother in Barnes. Although there is no hard and fast rule
regarding how long a child may be left alone before a parent may become criminally negligent,
as the analysis depends on the specific facts of the case, we note that appellant left J.G. alone for
a period of time longer than in cases where this Court held that the evidence was insufficient to
support a conviction. See Hannon v. Commonwealth, 68 Va. App. 87, 91, 803 S.E.2d 355, 357
(2017) (evidence insufficient to convict appellant under Code 18.2-371.1(B)(1) where appellant
left two children, a five-year-old boy and a four-month-old girl, alone in an unlocked car for less
than fifteen minutes in the parking lot in front of a Dollar General Store while she was shopping
in the store).
The trial court found that J.G.’s age and immaturity – the fourth factor the Court in
Barnes considered – weighed in favor of the conviction. The trial court found that J.G. had a
“history of unruly or undisciplined behavior,” and this finding is supported by the evidence. J.G.
was suspended from school at the time of the incident, and his behavior at school had
necessitated a meeting between appellant and school officials in order, as the school counselor
put it, “to keep him safe and other kids safe at school.” J.G. had also apparently been suspended
by the school before, and he was only in kindergarten. Furthermore, J.G. had left the apartment
by himself just a month before and wandered away to the pool when appellant had left him at
home with his older teenage brother. On the whole, the evidence presented at trial and the
findings of the trial court show that appellant should have known that J.G., an immature,
apparently unruly, five year old, was not mature enough to remain alone at his apartment for the
better part of an hour.
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The record contains little evidence that would have allowed the trial court to infer facts
relevant to the fifth Barnes factor –– i.e., that appellant took any protective measures to keep J.G.
safe and secure when he left the apartment. Instead, the trial court’s findings highlight
appellant’s failure to take any protective measures. The trial court found that the fact that
appellant left J.G. to attend a prescheduled meeting – as opposed to leaving to address an
emergency situation – supported the conviction. Because the meeting was prescheduled,
appellant had the opportunity to arrange for other care for J.G. or to change the time of the
meeting to ensure J.G. would be supervised and cared for before he left for the meeting – or to
take J.G. with him if he had no other alternative. However, the record contains no facts
suggesting that appellant attempted to arrange for any alternative care for J.G.
The final factor, which requires us to consider “any other circumstance that would inform
the factfinder on the question whether the defendant’s conduct was criminally negligent,”
strongly supports appellant’s conviction. In this case, appellant was aware that, just a month
prior to the incident at issue, a virtually identical situation had occurred. What happened then
should certainly have alerted appellant to the likelihood that J.G. would leave the apartment and
be injured if he left the child alone in their apartment, given that J.G. had already wandered off
alone from the apartment when he was left there with his older teenage sibling. Based on the
totality of the circumstances (and our application of the factors in Barnes), we certainly cannot
say that no rational factfinder would have convicted appellant.
III. CONCLUSION
We certainly create no per se rule that a parent who leaves a five-year-old child at home by
himself will be guilty of felony child neglect. See e.g., Hannon, 68 Va. App. at 92, 803 S.E.2d at
357.
The General Assembly expressly has recognized the fundamental
nature of the parent child relationship. Code § 1-240.1 provides that
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“[a] parent has a fundamental right to make decisions concerning the
upbringing, education, and care of the parent’s child.” Thus,
although there are varied opinions about what constitutes “good
parenting” and the appropriate level of parental supervision, parents
are afforded a great deal of latitude regarding the care of their
children.
Id. at 92-93, 803 S.E.2d at 358.
Circumstances – and children themselves – can be quite different. A parent has a right to
decide, within reason, when and for how long, a child is sufficiently mature to be left alone at home.
“This latitude, however, is not without bounds. The Commonwealth has a legitimate interest in
preserving the physical safety of children.” Id. at 93, 803 S.E.2d at 358 (citing Knox v. Lynchburg
Div. of Soc. Servs., 223 Va. 213, 223, 288 S.E.2d 399, 404 (1982)). “Clearly, the protection of
children from harm, whether moral, emotional, mental, or physical, is a valid and compelling state
interest.” Knox, 223 Va. at 223, 288 S.E.2d at 404 (citing Stanley v. Illinois, 405 U.S. 645, 652
(1972)). “Accordingly, the General Assembly can (and has) criminalized certain actions or inaction
by parents, guardians or other custodians that either cause harm to children or place children in
situations where harm is likely to occur.” Hannon, 68 Va. App. at 93, 803 S.E.2d at 358.
Based on the specific facts and circumstances of this particular case, “each mounting upon
the others,” Ervin v. Commonwealth, 57 Va. App. 495, 505, 704 S.E.2d 135, 140 (2011) (en banc),
we affirm appellant’s conviction. The record establishes that appellant should have known that
five-year-old J.G. was insufficiently mature to be left alone in their apartment for the better part of
an hour, while appellant attended a prescheduled meeting, and that leaving him as appellant did here
showed “a reckless disregard” for J.G.’s life and safety and created circumstances that would
“probably result in an injury” to him. See Barrett, 268 Va. at 183, 597 S.E.2d at 111. Appellant
was aware of his child’s significant “history of unruly or undisciplined behavior,” his immaturity,
and his impulsiveness as evidenced by J.G.’s actions at school – in addition to this kindergartener’s
young age. Significantly, appellant’s meeting with school officials was to discuss their concern that
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J.G.’s behavior was such that J.G. and school officials could not keep him or others safe at school
when J.G. was there.
Most of all, appellant was specifically aware of J.G’s propensity to leave the apartment –
which was surrounded by a pool, a pond, and a street that bordered commercial businesses,
including a Costco store and gas station – when not properly supervised. Appellant knew that, just a
month before, his child had left the apartment and was found wandering around the complex’s pool
by himself when he had been left at home with his older teenage brother. Despite having this
knowledge of all of the circumstances, appellant chose to make himself completely inaccessible to
his child by leaving J.G. alone in their apartment (apparently without even telling J.G. where he was
going) in order to attend a prescheduled meeting. Moreover, appellant’s apparent lack of concern
that J.G. had left the home, traveled across a road, and was not dressed for the weather indicates
appellant’s “reckless disregard” for J.G.’s life and safety, and appellant’s actions here created
circumstances that would “probably result in an injury” to him. See Barrett, 268 Va. at 183, 597
S.E.2d at 111. Gentry testified that appellant showed no concern for the danger to which J.G. had
been exposed. Appellant did not ask where the child had been found or thank the people who had
ensured the child’s safety. Appellant was concerned only with impugning J.G. as a liar.
For all of these reasons, we certainly cannot conclude that no rational factfinder would have
found appellant guilty of Code § 18.2-371.1(B). Therefore, we affirm appellant’s conviction.
Affirmed.
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