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COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bumgardner and Retired Judge Smith
Argued at Salem, Virginia
Record No. 0532-02-3
KIMBERLY DAWN RATLIFFE
COMMONWEALTH OF VIRGINIA
BY JUDGE RUDOLPH BUMGARDNER, III
SEPTEMBER 23, 2003
FROM THE CIRCUIT COURT OF FRANKLIN COUNTY
William N. Alexander, II, Judge
Mark W. Claytor for appellant.
Steven A. Witmer, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
The trial court convicted Kimberly Dawn Ratliffe during a
bench trial of felony child neglect in violation of Code
? 18.2-371.1(B). She contends the evidence was insufficient to
prove her conduct was so gross, wanton, and culpable it showed a
reckless disregard for human life.
We review the evidence in the light most favorable to the
Commonwealth and grant all reasonable inferences fairly
deducible from it. Archer v. Commonwealth, 26 Va. App. 1, 11,
492 S.E.2d 826, 831 (1997). The defendant, her nine-month-old
daughter, and the child’s father went to visit a friend in
Franklin County. After arriving, the defendant made a bed for
the child in the bedroom’s hot tub rather than in her portable
crib because the room was small. The child could pull herself
up but could not walk and could not climb out of the tub. The
drain was inoperative.
After putting the child to bed in the tub about 10:30 p.m.,
the defendant heard her cry. She went into the bedroom and
found that the child had turned on the water and was wet. The
defendant turned off the water and put the child back in the tub
without changing her. Around 11:00 p.m., the child cried again,
and the defendant returned to the bedroom. She gave the child a
bottle, and the child quieted down. The defendant remained in
the bedroom and fell asleep on the bed. The defendant never
heard the child cry again although the hot tub was only forty
inches from her bed. A neighbor heard the child crying loudly at
11:30 p.m. while walking past in the hallway of the building.
still heard the crying ten or fifteen minutes later when she
returned past the door. At approximately 1:00 a.m., the
defendant awoke, found the tub overflowing, and the child
drowned. The water had run for a long time and had overflowed
into the apartment two levels below.
At the emergency room, attempts were made to revive the
child, but her body temperature and oxygen levels indicated that
she had been in the water for "a fair amount of time"
without oxygen for "a long period of time." The
the emergency room nurse that she should have known better. She
told the nurse, "She had put the child in the tub before
child had messed with the water."
The trial judge specifically found the child had been
crying for a lengthy period of time but the defendant did not
hear her cries. When the child had gotten wet, the defendant
did nothing to take care of the child. She placed the child in
the hot tub knowing that the water was dripping and that the
child could turn on the water. The defendant placed the child
in a position of extreme peril and left her there. As a result,
the child died by drowning. The trial court concluded, by
finding beyond a reasonable doubt, that the defendant willfully
acted and omitted to act in a way that showed a gross, wanton,
and culpable disregard for the life of the child.
Code ? 18.2-371.1(B) requires proof that the defendant’s
"willful act or omission in the care of such child was so
wanton and culpable as to show a reckless disregard for human
life." Willful "denotes ‘"an act which is
knowing, or voluntary, as distinguished from
Ellis v. Commonwealth, 29 Va. App. 548, 554, 513 S.E.2d 453, 456
(1999) (quoting Snead v. Commonwealth, 11 Va. App. 643, 646, 400
S.E.2d 806, 807 (1991) (quoting United States v. Murdock, 290
U.S. 389, 394 (1933))). The act necessarily implies
that particular conduct will likely result in injury or
In Ellis, this Court reversed a conviction where the
defendant had left her children unattended in her apartment. A
fire started from the gas stove, which the defendant had left on
after lighting a cigarette. No evidence indicated the defendant
intentionally left the gas jet burning. The evidence was
insufficient to show the defendant knew her children would
likely be injured.
In Barrett v. Commonwealth, 32 Va. App. 693, 697, 530
S.E.2d 437, 439 (2000), this Court affirmed a conviction where
the defendant left her children unattended. The defendant knew
the two-year-old child had hit, choked, and attempted to smother
her younger ten-month-old child. Barrett knew the older child
could pull the younger child into the tub and could run the
water. Knowing of previous, potentially lethal conduct, Barrett
left the children unattended and the older drowned the younger
in the tub. A different panel of this Court reviewed this set
of facts a second time. Barrett v. Commonwealth, ___ Va. App.
___, ___, ___ S.E.2d ___, ___ (August 26, 2003), affirmed
finding that [Barrett] acted in a ‘conscious disregard’ of the
likely present danger to the life and health of her children,
particularly the ten-month-old infant . . . ."
The defendant’s conduct in this case is similar to that of
Barrett. After the child had turned on the water, the defendant
knew of the lethal potential but willfully returned her daughter
to that place of imminent danger. Drowning was a tragic, but
foreseeable, consequence of placing a nine month old in a tub
from which she was too young to extricate herself from a danger
she could create. The defendant knew her particular conduct
would likely result in serious harm. She acted with conscious
disregard of the present danger to the life of her child. The
evidence was sufficient to prove beyond a reasonable doubt that
the defendant was guilty of felony child neglect. Accordingly,
we affirm the conviction.
Benton, J., dissenting.
As we noted in Ellis v. Commonwealth, 29 Va. App. 548, 513
S.E.2d 453 (1999), "inattention and inadvertence have not
heretofore equated with actions taken willfully, thus, making
them subject to criminal penalty." Id. at 556, 513 S.E.2d
457. "’[W]hen used in a criminal statute[, willful] generally
means an act done with a bad purpose; without justifiable
excuse; stubbornly, obstinately, perversely.’" Lambert v.
Commonwealth, 6 Va. App. 360, 363, 367 S.E.2d 745, 746 (1988).
Thus, to prove the element of "willful," the evidence
establish more than bad judgment, a mistake, or an accident.
See United States v. Murdock, 290 U.S. 389, 394 (1933). Indeed,
we have noted that "willful maltreatment of a child
‘something worse than good intentions coupled with bad
judgment.’" Ellis, 29 Va. App. at 556, 513 S.E.2d at 457
(quoting Mullen v. United States, 263 F.2d 275, 276 (D.C. Cir.
The evidence proved that Ratliffe used bad judgment in not
removing the nine-month-old child from the jacuzzi after the
child, who was not yet walking, apparently pulled herself up in
the jacuzzi and turned the faucet. When Ratliffe returned to
the room to tend the crying child, she gave the child milk and
stayed with the child to assure that the child slept. Ratliffe
then slept. I would hold that this conduct is insufficient to
prove Ratliffe acted willfully and certainly insufficient to
prove her conduct was so "gross, wanton and culpable as to
a reckless disregard for human life," as required by Code
For these reasons, I would reverse the conviction.
Charles H. Smith, Jr., took part in the
consideration of this case by designation pursuant to Code
Code ? 17.1-413, this opinion is not
designated for publication.