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NOVEMBER 21, 2000

Record No. 0168-00-2

Present: Judges Bumgardner, Frank and Humphreys

Argued at Richmond, Virginia





James A. Luke, Judge


Brad P. Butterworth (Butterworth & Waymack
on brief), for appellant.

Stephen R. McCullough, Assistant Attorney
General (Mark L. Earley, Attorney General, on brief), for

Emmanuel Snow appeals his convictions, in a
bench trial, for child cruelty and receiving stolen goods. The
appellant contends that the trial court erred in finding: 1) that
driving a motor vehicle at a high rate of speed constituted a
willful act by a person responsible for the care of a child so
gross, wanton and culpable as to show a reckless disregard for
human life, 2) that the evidence was sufficient to prove he was
responsible for the care of the juveniles involved, and 3) that
he had knowledge that the vehicle was stolen.

I. Background

On August 3, 1999, Sergeant Daniel Moegling of
the Prince George County Police Department, observed a burgundy
Dodge Spirit traveling fast on Interstate 295. Using a stationary
radar, Officer Moegling estimated the rate of speed at 105 miles
per hour. Accordingly, Officer Moegling stopped the vehicle and
observed a "tremendous amount of movement [in] the interior
of the vehicle." Because of the movement in the vehicle and
"not knowing what [he] had," he did not approach the
vehicle but, rather, used his patrol car speaker system to order
the driver to get out of the vehicle and present identification.
The driver got out of the vehicle, approached Officer Moegling,
and presented him with a Maryland driver’s license and a repair
receipt for the vehicle registration. The driver’s license listed
the name of the driver as "Emmanuel Snow." However, the
driver was not Emmanuel Snow, but was in fact Dion Snow, Emmanuel
Snow’s brother.

Officer Moegling arrested Dion for reckless
driving, placed him in handcuffs and began to put him into the
rear seat of his patrol car. At that point, appellant, who was a
passenger in the right front seat, got out of the Dodge Spirit
and began "groping" on the floorboard of the car.
Officer Moegling drew his weapon and ordered appellant back into
the car. Appellant complied after some hesitation.

Officer Moegling then turned his attention back
to Dion. After a brief struggle, he was able to get Dion into the
patrol car. Just as he accomplished this, he looked up and saw
appellant in the Dodge’s front seat "go across the console
and get into the driver’s seat." Appellant then sped away
with the car and its occupants.

Officer Castle, who was patrolling an area of
highway about two and one-half miles north of the scene, received
a radio dispatch about the speeding car. He soon observed the car
pass him at a speed of 112 miles per hour. Officer Castle
followed the vehicle, turning on his emergency lights. However,
the driver did not stop but maintained his speed, weaving in and
out of the slower traffic. Officer Castle then observed the Dodge
spraying coolant and oil and concluded that the car’s engine had
blown. Despite this, the driver still did not stop, but only
slowed to a speed of about forty-five to fifty miles per hour.
[1] At this time a state police
officer and a Henrico County police officer joined in the chase
and were able to assist Officer Castle in bringing the Dodge
Spirit to a stop.

When Officer Castle approached the driver’s
side window, he observed that the ignition lock appeared to have
been tampered with. The ignition switch was "popped,"
and the "chrome fixture that goes around the edge [of the
ignition switch] was on the floorboard." Officer Castle then
observed that four other individuals were in the car in addition
to appellant.

After a brief investigation, Officer Castle
determined that appellant, age thirty-two, was the driver of the
car. The other passengers were Demonte Snow, age eighteen, David
Snow, age seventeen, Brendan Snow, age ten, and Diontrae Snow,
age eight. Appellant and Demonte were sitting in the front seat.
David, Brendan, and Diontrae were sitting in the rear seat.
Appellant denied being the father or legal custodian of any of
the children in the car.

Appellant was arrested and transported to the
police station. The next day, after processing the vehicle,
Officer Moegling determined that the car had been stolen a few
days earlier from a residence in Baltimore, Maryland. Appellant
was subsequently indicted for three counts of child abuse or
neglect in violation of Code ? 18.2-371.1, as well as one
count of receiving stolen property in violation of Code
? 18.2-108.

At trial, the evidence established that
appellant was the uncle of Demonte, David and Diontrae and that
Demonte, David and appellant had driven the stolen car to South
Carolina to visit relatives. They then picked up Dion, Diontrae
and Brendan and were returning to Baltimore in the car when they
were stopped.

At the scene, appellant stated that he thought
Demonte may have stolen the vehicle. However, at trial appellant
testified that he had no knowledge that the vehicle was stolen
and denied making a contrary statement to the police. Appellant
also testified that he had been asleep in the back of the vehicle
when it was initially pulled over. After Dion had been taken to
the patrol car, appellant claimed that Demonte had awakened him
and told him to drive. Appellant claims he complied, but never
noticed any evidence of tampering with the ignition switch.
Appellant also reiterated that he was not the father of the
children in the vehicle and testified that Dion was the custodian
of the children at the time they were stopped.

II. Analysis

A. Child Abuse or Neglect

Code ? 18.2-371.1 provides the following
in relevant part:

B. Any parent, guardian, or other person responsible
for the care of a child under the age of eighteen
willful act or omission 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.

(Emphasis added).

Appellant first argues that the trial court
erred in convicting him of violating this statute because he was
not the guardian for the juveniles in the car, nor was he
responsible for their care at the time he was stopped. We
disagree. In Krampen v. Commonwealth, 29 Va. App.
163, 510 S.E.2d 276 (1999), we addressed a similar statute, Code
? 18.2-370.1. That statute punishes persons who take
indecent liberties with a child, under the age of eighteen, over
which they have a "custodial or supervisory
relationship." There, we held that:

Code ? 18.2-370.1 is clear and
unambiguous in requiring proof of a "custodial" or
"supervisory" relationship over the
victim. . . .

"Where a statute is unambiguous, the plain
meaning is to be accepted without resort to the rules of
statutory interpretation." Last v. Virginia State Bd. Of
, 14 Va. App. 906, 910, 421 S.E.2d 201, 205
(1992). . . . Accordingly, we must "’take the
words as written’" in Code ? 18.2-370.1 and give them
their plain meaning. Adkins v. Commonwealth, 27 Va.
App. 166, 169, 497 S.E.2d 896, 897 (1998) (quoting Birdsong
Peanut Co. v. Cowling
, 8 Va. App. 274, 277, 381 S.E.2d
24, 26 (1989)).

[T]he Supreme Court has rejected limiting the
definition of "custody" to legal custody. See Lovisi
v. Commonwealth
, 212 Va. 848, 850, 188 S.E.2d 206, 208
(construing Code ? 40.1-103, formerly Code ? 40-112),
cert. denied, 407 U.S. 922 (1972).

"[Moreover,] [i]n its language [Code
? 18.2-370.1] is unambiguous, justifying no limitation of
the meaning of ‘custody’ to legal custody. [In fact,] [t]o
give it such a restrictive definition would eliminate, among
others, teachers, athletic instructors and baby-sitters, all of
whom might have temporary custody of children
, from
the purview of the statute." Id. (emphasis added).

Accordingly, we hold that the "custodial
or supervisory relationship" required under Code
? 18.2-370.1 is not limited to those situations where legal
custody exists. The statute specifically provides that such a
relationship "include[s] but [is] not limited to the
parent, step-parent, grandparent, [or] step-grandparent."
Code ? 18.2-370.1 (emphasis added). The term also includes
those individuals eighteen years or older who have a temporary,
custodial relationship with a child, such as, "teachers,
athletic instructors and baby-sitters." Lovisi,
212 Va. at 850, 188 S.E.2d at 208. The child in each instance has
been entrusted to the care and control of the supervising adult.

Krampen, 29 Va. App. at 167-68,
510 S.E.2d at 278.

In Krampen, the evidence established
that, with the permission of the victim’s mother, Krampen
willingly drove the victim home from church. We found that
"[a]s the only adult present during [those] trips, [Krampen] had the responsibility for and control of the victim’s safety and
well-being while she was in his care. His contact with the victim
was in the nature of a baby-sitter, i.e. one entrusted
with the care of the child for a limited period of time." Id.
at 168, 510 S.E.2d at 278-79.

As stated above, Krampen concerned Code
? 18.2-370.1, which requires proof of a "custodial or
supervisory" relationship. Code ? 18.2-371.1 does not
go that far. Instead, it requires proof only that a person is
"responsible for the care of a child."

We have not previously considered whether
circumstances such as those presented here may constitute the
unilateral assumption of responsibility for the care of a child
as required under the less stringent wording of Code
? 18.2-371.1. However, as a logical extension of our
holding in Krampen, we find that one may become a person
"responsible for the care of a child" by a voluntary
course of conduct and without explicit parental delegation of
supervisory responsibility or court order.

Here, appellant was an uncle of Diontrae and
David Snow and traveling with Diontrae’s custodial father, his
brother, from South Carolina to Maryland. He knew that the father
was detained in police custody when he voluntarily took control
of the vehicle and drove away knowing that the juveniles were in
the vehicle. We hold that on these facts, appellant was a
"person responsible for the care" of the juvenile
occupants of the motor vehicle.

Appellant next argues the trial court erred
when it found that the evidence presented concerning the manner
in which he drove the car was sufficient to show "a willful
act or omission in the care of the children." Again, we

Where the sufficiency of the evidence is
challenged after conviction, it is our duty to consider it in the
light most favorable to the Commonwealth and give it all
reasonable inferences fairly deducible therefrom. We should
affirm the judgment unless it appears from the evidence that the
judgment is plainly wrong or without evidence to support it.

Higginbotham v. Commonwealth, 216
Va. 349, 352, 218 S.E.2d 534, 537 (1975). Moreover, "[i]f
there is evidence to support the conviction, an appellate court
is not permitted to substitute its own judgment for that of the
finder of fact, even if the appellate court might have reached a
different conclusion." Commonwealth v. Presley, 256
Va. 465, 466, 507 S.E.2d 72, 72 (1998).

Furthermore, "[t]he credibility of a
witness and the inferences to be drawn from proven facts are
matters solely for the fact finder’s determination. In its role
of judging witness credibility, the fact finder is entitled to
disbelieve the self-serving testimony of the accused and to
conclude that the accused is lying to conceal his guilt." Marable
v. Commonwealth
, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235
(1998) (citations omitted).

The statute at issue requires proof that
appellant’s "willful act or omission in the care of such
child was so gross, wanton and culpable as to show a reckless
disregard for human life." Code ? 18.2-371.1.

"Willful" generally means 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.

Ellis v. Commonwealth, 29 Va.
App. 548, 554, 513 S.E.2d 453, 456 (1999) (citations omitted).

"Intent may, and most often must, be
proven by circumstantial evidence and the reasonable inferences
to be drawn from facts that are within the province of the trier
of fact." Id. at 555, 513 S.E.2d at 456. Based upon
the facts before us, we cannot hold that the trial court erred in
finding that appellant acted willfully in driving in the manner
in which he did. This conclusion is particularly compelling in
light of the fact that during most of the trip, appellant was
being followed by a police cruiser with its emergency lights on,
yet he did not pull over until the engine of the car was
"blown" and two additional police cruisers were forced
to join the chase. Furthermore, we find it reasonable for the
fact finder to have rejected the conclusion that appellant would
have had any reason to believe that driving at a speed of over
100 miles per hour in an attempt to evade police was not
dangerous or unlawful activity. Accordingly, we find that under
the circumstances of this case, the trial court did not err in
finding appellant’s actions to have been "willful" and
"so gross, wanton and culpable as to show a reckless
disregard for human life."

B. Receiving Stolen Property

"To convict a defendant under Code
? 18.2-108, the Commonwealth must prove that property ‘was
(1) previously stolen by another, and (2) received by defendant,
(3) with knowledge of the theft, and (4) a dishonest intent.’
Guilty knowledge ‘is sufficiently shown if the circumstances
proven are such as must have made or caused the recipient of
stolen goods to believe they were stolen.’" Shaver v.
, 30 Va. App. 789, 800-01, 520 S.E.2d 393,
399 (1999). "Guilty knowledge . . . [a]bsent proof
of an admission against interest, . . . necessarily
must be shown by circumstantial evidence." Lewis
v. Commonwealth
, 225 Va. 497, 503, 303 S.E.2d 890, 893
(1983). Officer Moegling’s and Officer Castle’s testimony
describing appellant’s frantic efforts to evade the police, as
well as Officer Castle’s testimony concerning the
"popped" ignition and appellant’s statement that he
believed Demonte had stolen the vehicle, if believed by the fact
finder in this case, were sufficient to prove receipt of the
stolen vehicle with the requisite knowledge required by Code
? 18.2-108.



[1] In arguing on brief that the trial court erred in
finding appellant’s action of driving the car at a high rate of
speed to be "willful," counsel for appellant stated
"Trooper Maxwell[, one of the officers who joined Officer
Castle in the chase,] testified the defendant’s vehicle was only
going forty-five to fifty-five mph. ‘And it wasn’t at a very fast
pace . . . .’" This statement misrepresented the facts.
Trooper Maxwell, in making this statement, was testifying to the
rate of speed that appellant was driving after the engine
on the car had blown. We note with disfavor that counsel omitted
this important distinction from his brief.