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KENYON v. COMMONWEALTH




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KENYON

v.

COMMONWEALTH


COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Humphreys and Senior Judge Hodges

Argued at Chesapeake, Virginia

Record No. 2383-02-1

BETTY KENYON

v.

COMMONWEALTH OF VIRGINIA

 

MEMORANDUM OPINION[1]
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
on

brief.

(Jerry W. Kilgore, Attorney General; Amy Hay Schwab, Assistant

Attorney General, on brief), for appellee. Appellee submitting
on

brief.

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.

I.

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
her breath.

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).

II.

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
follows:

[T]he 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.’
‘"Gross

negligence" is culpable or criminal when accompanied by
acts of

commission or omission of a wanton or [willfull] 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.’

[Willfull is] an act done with a bad purpose, without
justifiable

excuse, or without ground for believing it is lawful. The term

denotes ‘"an act which is intentional, or knowing, or
voluntary, as

distinguished from accidental."’ The terms ‘bad purpose’ or

‘without justifiable excuse,’ while facially unspecific,
necessarily

imply knowledge that particular conduct will likely result in
injury

or illegality."

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.

Affirmed.

 

FOOTNOTES:

[1]Pursuant to
Code ? 17.1-413, this opinion is not designated for publication.


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