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COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Senior Judge Hodges
Argued at Chesapeake, Virginia
Record No. 2383-02-1
COMMONWEALTH OF VIRGINIA
BY JUDGE JAMES W. BENTON, JR.
OCTOBER 28, 2003
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Christopher W. Hutton, Judge
(W. Alan Maust, on brief), for appellant. Appellant submitting
(Jerry W. Kilgore, Attorney General; Amy Hay Schwab, Assistant
Attorney General, on brief), for appellee. Appellee submitting
The trial judge convicted Betty Kenyon of felony child abuse and
neglect in violation of
Code ? 18.2-371.1(B). Kenyon contends the evidence was
insufficient to sustain her conviction.
We affirm the conviction.
At eight o’clock in the morning, Shannon Williams heard a loud
noise and saw Betty
Kenyon’s van driving through a split-rail fence and into a
neighbor’s yard. When Williams ran to
the van, he saw Kenyon’s eight-year-old son climbing from the
driver’s side of the van to the front
passenger seat side. Kenyon was sitting in the driver’s seat. In
response to Williams’s inquiry if she
was "okay," Kenyon said her son "handled [the
accident] pretty well" and "it’s better he learn to
wreck in my van than on the back of my Harley." Kenyon
began to move the van in reverse. When
Williams asked where she was going, Kenyon said she was going
home and would worry later
about the damaged fence.
Williams testified that one of the van’s tires was flat, that
the side mirror of the van "was
busted," that "bricks had been knocked up [in the
yard,] and the split-rail fence was busted."
Williams also testified that he saw an open 22-ounce beer bottle
between Kenyon’s legs but could
not see whether beer was in the bottle. He smelled alcohol on
Although the van’s tire was flat, Kenyon drove the van several
blocks to her residence. A
few minutes later, Kenyon returned on foot and attempted to
re-erect the fence. Williams testified
that Kenyon was holding an open beer bottle and "was
wobbling." Williams also testified that
Kenyon "reeked of beer" and "was slurring real
bad" while speaking to him. When Kenyon argued
with Williams and refused to leave his yard, Williams "used
the water hose to get her out of the yard
and soaked her down." He said "she was that drunk
[and] she wouldn’t leave."
Kenyon’s eight-year-old son testified that earlier in the
morning before the accident Kenyon
was driving the van and asked him if he wanted to drive. He
moved onto Kenyon’s lap and held the
steering wheel of the van. He wore a seat belt. In this
position, Kenyon’s son’s "toes were touching
[the gas pedal and the brake pedal] a little bit." Kenyon’s
hands were over his hands as he held the
steering wheel, and her feet were on the pedals. He testified
that Kenyon was drinking something
that "looked like coca-cola" while they were driving.
After driving in that manner for three blocks,
he turned the wheel "too hard" and "crashed into
a wooden fence."
After the crash, Kenyon told him to move to the passenger seat.
He testified that Kenyon
spoke with a person at the crash site and then she drove home,
where she told him to get into bed.
Later, he was taken to the hospital and examined because his
chest hit the steering wheel during the
crash. He testified that he was not hurt.
Officer Scott Anderson went to Kenyon’s residence after the
accident and noted that the van
had damage on the front left corner and had a flat tire. Officer
Anderson testified that as Kenyon
approached the door of her residence she whispered twice to
someone in the house, "Tell them I’ve
been here all night." Officer Anderson testified Kenyon was
wet, "smelled a strong odor of
alcohol," and had "glassy" eyes. When questioned
by Officer Anderson, Kenyon told him her son
was sitting on her lap and driving the van when she lost control
of the van. Officer Anderson also
testified that Kenyon said she drank two beers before midnight.
At the conclusion of the evidence the trial judge found that
Kenyon committed a willful act
that was so gross, wanton, and culpable as to show a reckless
disregard for human life. He
convicted her of violating Code ? 18.2-371.1(B).
In pertinent part, Code ? 18.2-371.1(B)(1) provides that
"[a]ny parent . . . responsible for the
care of a child under the age of eighteen whose willful act . .
. in the care of such child was so gross,
wanton and culpable as to show a reckless disregard for human
life shall be guilty of a Class 6
felony." We discussed the application of this statute in
Barrett v. Commonwealth, 41 Va. App. 377,
585 S.E.2d 355 (2003), and described the statutory terms as
[T]he term ‘gross, wanton, and culpable’ describes conduct. The
word ‘gross’ means ‘aggravated or increased negligence’ while
word ‘culpable’ means ‘deserving of blame or censure.’
negligence" is culpable or criminal when accompanied by
commission or omission of a wanton or [willfull] nature, showing
a reckless or indifferent disregard of the rights of others,
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
result of his acts.’
[Willfull is] an act done with a bad purpose, without
excuse, or without ground for believing it is lawful. The term
denotes ‘"an act which is intentional, or knowing, or
distinguished from accidental."’ The terms ‘bad purpose’ or
‘without justifiable excuse,’ while facially unspecific,
imply knowledge that particular conduct will likely result in
Id. at 400, 585 S.E.2d at 366-67 (citations omitted).
Kenyon contends the evidence failed to prove that she acted
willfully and that her
conduct was so gross, wanton and culpable as to demonstrate a
reckless disregard for human life.
The evidence was sufficient to prove, however, that Kenyon was
operating the van with an open
beer bottle between her legs. She reeked of alcohol when the van
came to a stop after leaving the
street and crashing into the fence. Kenyon’s son testified that
she was drinking something when
she was driving. Although he testified that "it looked like
coca-cola," he did not see the writing
on the container and did not recall whether she was drinking
from a can or a bottle. From this
evidence, the trier of fact could reasonably infer she was
drinking beer while driving.
The evidence also proved that after Kenyon drove the van from
the crash site to her
residence, which was only a few blocks away, she returned within
minutes. At that time, she
was slurring her speech, wobbling, and carrying a bottle of
beer. Her neighbor described her as
"drunk." Thus, Kenyon had an odor of alcohol emanating
from her while in the van and was
obviously intoxicated minutes after the crash. This evidence,
when combined with testimony
about the bottle of beer between her legs in the van, was
sufficient for the trier of fact to find that
Kenyon was intoxicated while driving.
The evidence proved that, in this condition, Kenyon put her
eight-year-old son between
her and the steering wheel of the van and permitted him to steer
the van. The trial judge
emphasized that Kenyon could not provide a justifiable reason
for allowing a child, who was not
near the driving age, to operate the van. Indeed, the evidence
demonstrates Kenyon’s knowledge
that her behavior would probably result in harm. She revealed
that she knew her actions could
likely result in an accident because she told Williams that this
was her son’s "first accident" and
"it’s better he learn to wreck in my van than on the back
of my Harley." In addition, the trial
judge noted the dangerous circumstance of the confined space
behind the steering wheel and
found that the child was larger than an average eight year old.
The trial judge could infer beyond a reasonable doubt that
Kenyon did not have complete
control of the van because of her condition and the cramped
space and that Kenyon made a
conscious decision to drive the vehicle in this dangerous
manner. When Kenyon was drinking
and her son was at the van’s steering wheel, she made her
conduct significantly more dangerous.
In so doing, Kenyon showed an indifference to the consequences
of her conduct under
circumstances which made it not improbable that injury would
occur to her child. See Snow v.
Commonwealth, 33 Va. App. 766, 775, 537 S.E.2d 6, 11 (2000)
(holding that eluding the police
at high speeds in an automobile occupied by children
demonstrates "willful" conduct in the care
of the child that shows a reckless disregard for human life);
Davis v. Commonwealth, 12 Va.
App. 408, 413, 404 S.E.2d 377, 380 (1991) (noting that "the
act of driving while intoxicated or
recklessly . . . is inherently dangerous"). Thus, we hold
that the evidence was sufficient for the
trial judge to find beyond a reasonable doubt all the elements
required by Code
? 18.2-371.1(B)(1). Accordingly, we affirm the conviction.
Code ? 17.1-413, this opinion is not designated for publication.