Ashley Michelle Unger v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Decker, Judges AtLee and Malveaux
UNPUBLISHED
Argued at Richmond, Virginia
ASHLEY MICHELLE UNGER
MEMORANDUM OPINION* BY
v. Record No. 0003-22-2 JUDGE RICHARD Y. ATLEE, JR.
JANUARY 10, 2023
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HANOVER COUNTY
J. Overton Harris, Judge
Elliott B. Bender (David C. Reinhardt; Bender Law Group, PLLC;
Reinhardt Law Firm, PLLC, on briefs), for appellant.
Rosemary V. Bourne, Senior Assistant Attorney General (Jason S.
Miyares, Attorney General, on brief), for appellee.
Following a bench trial, the circuit court convicted appellant Ashley Michelle Unger of
contributing to the delinquency of a minor, in violation of Code § 18.2-371. On appeal, she argues
that: (1) the circuit court did not have jurisdiction over this matter pursuant to Code § 16.1-241,
(2) the evidence was insufficient to prove a violation of Code § 18.2-371, and (3) the circuit
court erred in admitting the “irrelevant and speculative” testimony of Department of Social
Services (“DSS”) worker Shannon Hill regarding closed investigations and “as to whether the
behavior at issue would have been a violation of a child protective services safety plan.”1 For the
following reasons, we reverse.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Because we find that the evidence, with or without Hill’s testimony, was insufficient to
show Unger “willfully contribute[d] to, encourage[d], or cause[d] any act, omission, or
condition” that left T.W. “delinquent, in need of services, in need of supervision, or abused or
neglected,” Code § 18.2-371, we need not address the alleged errors in admitting Hill’s
testimony.
I. BACKGROUND
“On appeal of criminal convictions, we view the facts in the light most favorable to the
Commonwealth, and [we] draw all reasonable inferences from those facts.” Johnson v.
Commonwealth, 73 Va. App. 393, 396 (2021) (alteration in original) (quoting Payne v.
Commonwealth, 65 Va. App. 194, 198 (2015)). So viewed, the facts reflect the following.
Unger has a minor son, T.W., who was four years old at the time of the incident. T.W. is on
the autism spectrum. They live in a suburban neighborhood. One morning, Unger’s neighbor,
Amber Martin, woke up to her dog barking at 7:00 a.m. Martin saw T.W. on her back porch shortly
thereafter. She took a picture of him through the glass door and sent it to her mother-in-law at
7:06 a.m. She asked T.W. what he was doing, and he said he was playing. Martin took T.W. back
next door to his and Unger’s house. She asked him to go back inside using the door he had left
from; T.W. went in through the “side porch,” and Martin followed. Martin did not see Unger
downstairs and did not feel comfortable going upstairs to find her. She told T.W. to go “find
mommy” but that she would wait outside for him if he could not find her or needed something.
T.W. came back outside in “less than three minutes” and said Unger was sleeping. Martin and T.W.
went back to her house so she could get her phone. She and T.W. went back to Unger’s. Martin
knocked on the door “fairly loud[ly],” and waited outside with T.W. and her dog. Unger answered
the door around three minutes later. Martin said Unger appeared “mad” at her when she came to the
door. Martin estimated that from when she found T.W. to when he was returned to Unger was “at
least” 20 minutes. Later that afternoon or evening, “[a]fter [Unger] yelled at [her] for returning her
son,” Martin called the police.
Shannon Hill of the Hanover County DSS testified for the Commonwealth. Over defense
objection, she testified that she had a previous case involving T.W. that was “no longer pending.”
Again over defense objection, Hill testified that a safety plan had been put into place for T.W. to
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address his “leaving the home unauthorized.” As part of the plan, Unger had since put multiple
locks on the doors and installed an alarm system. She also built a six-foot-tall fence around the
property. Nevertheless, because “[t]he plan required th[at] mom would . . . ensure safety at all
times,” and Unger acknowledged that she may have left a deadbolt unsecured, Hill opined that
Unger had failed to follow the safety plan.
Unger testified in her own defense. She said that on the day of the incident, she “got up at
about seven o’clock.” She said that she was with T.W., helping them both get ready for an
8:00 a.m. speech therapy appointment. She left him in the bathroom and went back upstairs to get
clothes for them and to pack T.W.’s school bag and assorted things for a visit to his grandparents.
When she heard Martin knock on the door, she said she was in the “middle of getting ready.” She
believed that T.W. had been in the bathroom and had not realized he had left the house, nor did she
know how he had gotten out.2
Prior to trial, Unger filed a motion to quash or dismiss indictment, arguing that, because this
is a misdemeanor case with a minor victim, it could not be brought by direct indictment to the
circuit court because Code § 16.1-241 vests “exclusive original jurisdiction” in juvenile and
domestic relations district (“J&DR”) courts over matters involving “[a]ny parent . . . of a child
. . . [w]ho has been abused or neglected.” Code § 16.1-241(F).3 The circuit court heard argument
2
The defense also called Sergeant Tim Sutton of the Hanover County Sheriff’s
Department, who also runs a “consulting business teaching Alzheimer’s and autism as it pertains
to law enforcement or public safety.” He testified as an expert “in how to deal with certain
intellectual disabilities, including autism” and “coping mechanisms.” He spoke about children
with autism and their “propensity to wander off.” Unger’s mother, a retired elementary school
teacher, also testified about her experiences with T.W., as well as her and Unger’s efforts to
install safety measures to deal with T.W. getting out of the house.
3
This “exclusive original jurisdiction” also applies in “prosecution and punishment of
persons charged with ill-treatment, abuse, abandonment or neglect of children or with any
violation of law that causes or tends to cause a child to come within the purview of this law, or
with any other offense against the person of a child.” Code § 16.1-241(I).
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and denied the motion. Following a bench trial, the circuit court convicted Unger and sentenced her
to 30 days in jail, with all 30 days suspended. This appeal follows.
II. ANALYSIS
Because Unger’s jurisdictional challenge is fundamental to the circuit court’s power to
preside over this matter, and thus our jurisdiction on appeal, we address that argument first before
turning to the sufficiency of the evidence.
A. Standards of Review
To the extent our analysis of either the jurisdictional challenge or the sufficiency of the
evidence requires us to examine the statutory language, “we review issues of statutory
construction de novo on appeal.” Miller v. Commonwealth, 64 Va. App. 527, 537 (2015).
“When ruling upon the sufficiency of the evidence, 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 on appeal
unless it is plainly wrong or without evidence to support it.” Ellis v. Commonwealth, 29
Va. App. 548, 554 (1999).
B. Jurisdiction
Unger first argues that the circuit court lacked jurisdiction over this matter. She reasons
that, because this is a criminal case with a minor victim, it could not be brought by direct indictment
to the circuit court because Code § 16.1-241 vests “exclusive original jurisdiction” in J&DR
courts over matters involving “[a]ny parent . . . of a child . . . [w]ho has been abused or
neglected.” Code § 16.1-241(F).4 Accordingly, Unger reasons, the matter needed to be brought
on appeal from a conviction in the district court under Code § 16.1-136 or certified as an
ancillary misdemeanor under Code § 19.2-190.1.
4
The Commonwealth’s argument both on brief and at oral argument notwithstanding,
Code § 16.1-241 appears in chapter 11, not within the same chapter as Code § 16.1-126, which is
in chapter 7. As such, any argument that Code § 16.1-126 controls is inapposite.
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The Supreme Court of Virginia has previously addressed the function of Code § 16.1-241
in the context of a direct indictment in Payne v. Warden of Powhatan Correctional Center, 223
Va. 180 (1982). There we held that, although Code § 16.1-241 “vests in [J&DR] courts
exclusive original jurisdiction to conduct preliminary hearings in [certain] cases,” id. at 182
(addressing “adult defendants charged with felonious offenses, except murder and manslaughter,
committed against juvenile victims” (quoting Jones v. Commonwealth, 220 Va. 666, 669-70
(1980))), this jurisdiction does not extend to when a grand jury directly indicts a defendant.
Instead, “where an adult accused is directly indicted by a grand jury, without having been
previously arrested and charged, the jurisdiction of the circuit court is thereby invoked, and no
preliminary hearing is required, even though the victim of the crime involved may be a juvenile.”
Id. at 184. That is because the “legislative purpose of Code § 16.1-241 is to afford juvenile
defendants and juvenile victims the protection and expertise of the juvenile court during the
preliminary, or certification, hearing stage of a criminal prosecution.” Id. But where there is a
direct indictment, those preliminary stages are not at issue, and there are “no protections or
considerations that can be given a juvenile victim in a [J&DR] court that cannot be afforded in or
commanded by a court of record following a grand jury’s direct indictment of a defendant.” Id.
Although Payne addressed direct indictments in the context of felony charges (there,
rape, sodomy, and abduction), there is no logical reason to conclude that the reasoning
articulated in Payne does not apply with equal force to misdemeanor charges—the question is
what forum is best suited to provide “protection and expertise,” and thus has jurisdiction, over
“the preliminary, or certification, hearing stage of a criminal prosecution,” Payne, 223 Va. at
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184, which are not at issue when a defendant is directly indicted. The answer to that question
does not meaningfully change based upon the range of punishment that the court may impose. 5
Unger instead relies on Jones, 220 Va. at 666, and Pope v. Commonwealth, 19 Va. App.
130 (1994), superseded by statute, 1996 Va. Laws ch. 914, as recognized in Burke v.
Commonwealth, 29 Va. App. 183 (1999). Yet neither of these cases involved a direct
indictment. In Jones, the defendant received a preliminary hearing in the general district court
and was subsequently tried in the circuit court. Jones, 220 Va. at 666. However, it became clear
during trial that the victim was 17 at the time of the offenses, so the indictments were dismissed,
Jones was recharged, appeared for a preliminary hearing in the J&DR court, and reindicted. Id.
at 667-68. Jones appealed on the grounds of double jeopardy. We affirmed his convictions,
concluding that jeopardy did not attach at the general district or initial circuit court proceeding,
because “‘exclusive original jurisdiction’ in Code § 16.1-241 must be given its plain meaning,”
id. at 669-70, and the general district court, and subsequently the circuit court, did not have
jurisdiction over that initial proceeding. In Pope, the defendant waived his right to a preliminary
hearing in the general district court and the case was certified to the circuit court. Pope, 19
Va. App. at 131. Although Pope failed to timely object, we reversed, holding that the general
district court could not certify an offense against a family or household member, which was
within the J&DR court’s exclusive jurisdiction under Code § 16.1-241(J). Id. at 133-34.6
5
Moreover, to read Code § 16.1-241 as Unger presents it would directly conflict with
Code § 19.2-239, which states that “[t]he circuit courts, except where otherwise provided, shall
have exclusive original jurisdiction for the trial of all presentments, indictments and informations
for offenses committed within their respective circuits.”
6
Subsequently, the “the legislature, when it enacted Code § 16.1-241(J), created an
exception to the general rule that lack of subject-matter jurisdiction cannot be waived.” Burke,
29 Va. App. at 190.
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Crucially, neither Jones nor Pope involved a grand jury directly indicting a defendant.
Our case law is clear that the “purpose of Code § 16.1-241 is to afford juvenile defendants and
juvenile victims the protection and expertise of the juvenile court during the preliminary, or
certification, hearing stage of a criminal prosecution.” Payne, 223 Va. at 184 (emphasis added).
Those stages are not at issue here. As such, given the significant differences between the
pertinent facts in Jones and Pope as compared to Unger’s, the reasoning in Payne holds here.
Consequently, the circuit court had jurisdiction to hear Unger’s case.
C. Sufficiency of the Evidence
Unger next argues that the evidence was insufficient to support her conviction. Under
Code § 18.2-371, it is a Class 1 misdemeanor to, inter alia, “willfully contribute[] to, encourage[],
or cause[] any act, omission, or condition that renders a child delinquent, in need of services, in
need of supervision, or abused or neglected.” Code § 16.1-228 defines an abused or neglected
child, in pertinent part, as a child “[w]hose parent[ ] . . . creates a substantial risk of death,
disfigurement or impairment of bodily or mental functions” or “[w]ho is without parental care or
guardianship caused by the unreasonable absence or the mental or physical incapacity of the
child’s parent.” Code § 16.1-228(1), (5). Criminal liability can attach regardless of whether a
child actually experienced any harm. Jenkins v. Winchester Dep’t of Soc. Servs., 12 Va. App.
1178, 1183 (1991) (“[T]he statutory definitions of an abused or neglected child do not require
proof of actual harm or impairment having been experienced by the child.”).
“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.’” Miller, 64 Va. App. at 543-44 (alteration in original) (quoting
Jones v. Commonwealth, 272 Va. 692, 701 (2006)). This analysis is “fact specific.” Id. at 544.
“The term ‘willful act’ imports knowledge and consciousness that injury will result from the act
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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.” Morris v. Commonwealth, 272 Va. 732, 738
(2006) (quoting Barrett v. Commonwealth, 268 Va. 170, 183 (2004)).7 “Thus, the term
‘willful’. . . contemplates an intentional, purposeful act or omission.” Id. (emphasis added)
(quoting Commonwealth v. Duncan, 267 Va. 377, 384-85 (2004)). “In short, a parent’s act or
omission is “willful” . . . only if an objectively reasonable person would understand that injury to
the child is likely to result.” Hannon v. Commonwealth, 68 Va. App. 87, 94 (2017) (discussing
Code § 18.2-371.1(B)(1)).
Unger contends that her acts and omissions here do not satisfy the “willful” requirement.
We agree. Because these cases are fact-specific, there is no perfect analogy in the case law
dealing with contributing to the delinquency of a minor. Nevertheless, we cannot say that
Unger’s conduct, viewed in the totality, amounted to a willful omission deserving of criminal
punishment as contemplated by Code § 18.2-371.
Even accepting the Commonwealth’s evidence, disregarding Unger’s own testimony, and
assuming the most neglectful version of events (thus setting aside the hypothesis that T.W.
unlocked the door himself), Unger at most: (1) failed to completely secure a door lock and
(2) did not wake up before T.W. did. T.W. had already absconded sometime prior to 7:00 a.m.,
7
Much of the relevant case law on willfulness comes from cases addressing the felony
child neglect statute, Code § 18.2-371.1. See, e.g., Morris, 272 Va. at 740 (the defendant
double-locked the door to her trailer before she and her two young children went to sleep, but the
children awoke and went outside to play unsupervised). Although felony child neglect also
involves a “willful act or willful omission,” it also must be “so gross, wanton and culpable as to
show a reckless disregard for human life,” Code § 18.2-371.1, which is not required for a
misdemeanor. Definitions of “willfulness” in cases involving Code § 18.2-371 have included
definitions of willfulness from felony child neglect cases under Code § 18.2-371.1. See, e.g.,
Miller, 64 Va. App. at 543-44, Brown v. Commonwealth, No. 1737-14-2, 2015 WL 4451457, at
*5 (Va. Ct. App. July 21, 2015); Wilmer v. Commonwealth, No. 0654-16-3, 2017 WL 3707527,
at *3 (Va. Ct. App. Aug. 29, 2017). Of course, “unpublished opinions are merely persuasive
authority and not binding precedent.” Coffman v. Commonwealth, 67 Va. App. 163, 172 n.7
(2017) (quoting Baker v. Commonwealth, 59 Va. App. 146, 153 n.3 (2011)).
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leaving his mother asleep in his bed. The entire incident, from Martin noticing T.W. in her yard
to his being returned to Unger, occurred within 20 minutes. To have made it off the property,
T.W. also had to get through the gate of a fully fenced yard. Even considering Unger’s being on
notice of T.W.’s propensity to abscond, we cannot say that the law supports criminalizing a
parent or guardian’s failure to directly surveil their child every moment of a day. The facts here
are a far cry from a case like Miller, in which we affirmed a conviction where the defendant “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” outside a store for over an hour. Miller, 64
Va. App. at 544. Here, viewed in the light most favorable to the Commonwealth, Unger was
home, sleeping in T.W.’s bed, when he snuck out. She possibly had failed to secure one of the
house’s door locks the night before. An objectively reasonable person would not say that this
was a willful act or omission that created a “substantial risk” of harm to T.W., or that this
amounted to an “unreasonable absence or the mental or physical incapacity” on the part of
Unger. Code § 16.1-228. As such, her acts or omissions did not amount to her willfully
contributing to the delinquency of a minor under Code § 18.2-371.
III. CONCLUSION
Because the evidence was insufficient to prove a willful act or omission, the circuit court
erred in finding Unger guilty of contributing to the delinquency of a minor. Accordingly, the
conviction is reversed.
Reversed and dismissed.
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