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Present: Judges Benton, Bumgardner and Retired Judge Smith[1]

Argued at Salem, Virginia

Record No. 0532-02-3






SEPTEMBER 23, 2003


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
defendant told

the emergency room nurse that she should have known better. She

told the nurse, "She had put the child in the tub before
and the

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
intentional, or

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

illegality." Id.

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

? 18.2-371.1(B)(1).

For these reasons, I would reverse the conviction.



[1]Retired Judge
Charles H. Smith, Jr., took part in the

consideration of this case by designation pursuant to Code

? 17.1-400.


[2]Pursuant to
Code ? 17.1-413, this opinion is not

designated for publication.