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NOVEMBER 14, 2000

Record No. 2651-99-2

Present: Judges Bumgardner, Humphreys and

Argued at Richmond Virginia





Horace A. Revercomb, III, Judge


Joseph D. Morrissey (James T. Maloney;
Morrissey & Hershner, PLC, on brief), for appellant.

Kathleen B. Martin, Assistant Attorney General
(Mark L. Earley, Attorney General,

on brief), for appellee.

Sharon Peace appeals her convictions after a
bench trial for contributing to the delinquency of a minor and
maintaining a common nuisance. Peace contends that the trial
court erred in finding the evidence sufficient to convict her of
these offenses.

"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. Code
? 8-491." Higginbotham v. Commonwealth, 216
Va. 349, 352, 218 S.E.2d 534, 537 (1975).

Furthermore, "[a]n appellate court must
discard all evidence of the accused that conflicts with that of
the Commonwealth." Martin v. Commonwealth, 4 Va. App.
438, 443, 358 S.E.2d 415, 418 (1987). "The credibility of
witnesses, the weight accorded testimony, and the inferences to
be drawn from proven facts are matters to be determined by the
fact finder." Long v. Commonwealth, 8 Va. App. 194,
199, 379 S.E.2d 473, 476 (1989). The judgment of a trial court
will be disturbed on appeal only if plainly wrong or unsupported
by the evidence. See Code ? 8.01-680.

In the present case, the relevant evidence
established that Peace was a single parent who, between the time
period of June 1, 1998 and March 15, 1999, attended nursing
classes and worked several hours out of each day of the week. Her
son, Sean Peace, who was 15 years of age, lived with her at her
home. Sean lived in the garage of Peace’s house. The garage was
detached from the main house by a distance of about four feet.

During this time period, several of Sean’s
friends from Essex High School, ranging in ages from fourteen to
nineteen, would visit Sean in his garage bedroom and smoke
marijuana, cigarettes and cigars. Marijuana was often passed
between the individuals who were there at the time, and one
individual sold marijuana while there.

Peace claimed that she knew nothing about the
marijuana. However, several young men testified at trial that
Peace would often enter the room just after they had been smoking
marijuana. Sean and his friends usually kept the door to the
garage locked while they were smoking marijuana and when they
heard Peace try to enter, they would hide it and burn candles and
incense, and smoke cigarettes and cigars to cover up the smell.
Despite this effort, at least one "bong" and some
number of "bowls", used as smoking paraphernalia, were
often in view when Peace would enter the room. On one occasion
when Peace entered the garage after Sean and his friends had been
smoking marijuana, cigarettes, and cigars, she stated that
"they were not to be doing it with the garage door
open". She often told the kids that "it shouldn’t be
happening," "don’t do it . . . or get

In addition, at some point, Peace saw a
"bong" in Sean’s room and told the kids to "get
rid of it, or she was going to trash it." She later told the
owner of the bong to "get rid of it" and that "she
didn’t want [it] in her house".

Code ? 18.2-371 provides, in pertinent
part, that:

Any person eighteen years of age or older,
including the parent of any child, who (i) willfully
contributes to, encourages, or causes any act, omission, or
condition which renders a child delinquent, in need of services,
in need of supervision, or abused or neglected as defined in ?
16.1-228 . . . shall be guilty of a Class 1

(Emphasis added.)

"’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).

The trial court found that, based on the
evidence, there was "no doubt" Peace "knew what
was going on." Accordingly, the court held that by Peace’s
failure to act, she "encouraged" the activity, within
the meaning of the statute. The trial court also stated "I
think it may be under the omission part of the Statute." On
appeal, Peace contends that the evidence was insufficient to
prove that she had any knowledge the activity was taking place.
She also argues that the evidence failed to prove she
"encouraged" the activity, or "willfully"
omitted to act.

"Where inferences are relied upon to
establish guilt, they must point to guilt so clearly that any
other conclusion would be inconsistent therewith." Person
v. Commonwealth
, 10 Va. App. 36, 38, 398 S.E.2d 907, 909
(1990)(citation omitted). "Inferences may be taken from
proved circumstances only to the extent those inferences are
reasonable and justified." Webb v. Commonwealth,
204 Va. 24, 34, 129 S.E.2d 22, 29 (1963). "Furthermore,
where the Commonwealth’s evidence as to an element of an offense
is wholly circumstantial, ‘all necessary circumstances proved
must be consistent with guilt and inconsistent with innocence and
exclude every reasonable hypothesis of innocence.’" Moran
v. Commonwealth
, 4 Va. App. 310, 314, 357 S.E.2d 551,
553 (1987) (citation omitted). However, "[t]he factfinder
need not believe an accused’s explanation and, if that
explanation is not believed, may infer that the accused is lying
to conceal his guilt." Phan v. Commonwealth, 258
Va. 506, 511, 521 S.E.2d 282, 284 (1999).

Viewing the evidence in the light we must, we
find that the trial court could conclude, beyond a reasonable
doubt, that Peace knew her son and his friends were smoking
marijuana. However, we do not agree that by failing to act on
this knowledge, Peace "willfully"
"encouraged" the activity within the meaning of the
statute, nor that she engaged in a "willful"
"omission" to act.

First, the word "encourage" is not
defined in the statute itself, nor do we find a controlling
definition of the word, so we look to other sources to define its
meaning. Webster’s Third New International Dictionary defines
"encourage" as "to give courage to," to
"inspire with courage, spirit, or hope," to
"hearten," "to spur on," to
"stimulate," to "incite," "to give help
or patronage," to "foster," "to call
forth," to "produce," or "create." Webster’s
Third New International Dictionary

Each of these defining terms describes the word
as encompassing an affirmative act, not an omission or failure to
act. Here, there was no evidence which established that Peace
took any affirmative act to "encourage" Sean and his
friends to smoke marijuana. In fact, the trial court specifically
stated that the evidence did not establish that she
"caused" the activity.

In addition, the trial court found, as a matter
of fact, that when Peace found the bong, "she was
upset," "she was very blunt," and told the owner
to "get rid of it." We do not agree that Peace’s action
in this regard constitutes willfully "encouraging" the
activity. Instead, a reasonable inference is that Peace was
attempting, although unsuccessfully and perhaps ineffectually, to
discourage the activity. Moreover, based on these facts and the
reasonable inference already noted, we cannot find as a matter of
law that Peace omitted to act. Accordingly, we reverse and
dismiss the conviction for contributing to the delinquency of a

By holding here that Peace did not
"encourage" the activity by failing to act, and by
finding that based on these facts there was no willful omission,
we do not find that a parent’s refusal to act may never fall
within the statute. However, in this case, the evidence simply
does not establish a willful omission to act which proximately
resulted in a continuation of delinquent activity.

Next, Code ? 18.2-258 provides:

A. Any . . . dwelling house,
apartment, building of any kind . . . which with the
knowledge of the owner . . . is frequented by persons
under the influence of illegally obtained controlled substances
or marijuana, as defined in ? 54.1-3401, or for the purpose of
illegally obtaining possession of, manufacturing or distributing
controlled substances or marijuana, or is used for the illegal
possession, manufacture or distribution of controlled substances
or marijuana, shall be deemed a common nuisance. Any such owner
. . . who knowingly permits, establishes, keeps or
maintains such a common nuisance is guilty of a Class 1
misdemeanor . . . .

The statute very clearly requires 1) that the
owner of the premises have knowledge that it is being frequented
for the purpose of the illegal possession and distribution of
marijuana, and 2) that the owner knowingly permit, keep, or
maintain the nuisance. See St. Clair v. Commonwealth,
174 Va. 480, 5 S.E.2d 512 (1939).

Peace again argues that the evidence was
insufficient to prove her knowledge of the marijuana use and was
therefore inadequate to support a conviction pursuant to this
statute. However, as we have noted above, we find that the trial
court reasonably concluded that Peace knew about the marijuana.

Nevertheless, Peace did not
"establish," "keep," or "maintain"
the premises for the purpose of the prohibited activity, as
indicated by the factual findings of the trial court referenced
above. The question is whether Peace, by knowing about the
illegal activity and, as the trial court stated, "allowing
[it] to continue," "permitted" the activity. Given
the trial court’s factual findings, we do not find that there is
any evidence in this record to establish that Peace
"permitted" the activity within the meaning of Code
? 18.2-258.

The Supreme Court of Virginia has noted that
"Webster’s International Dictionary, 2d ed. defines the verb
‘permit’ to mean ‘to allow the act or existence of; to consent to
expressly or formally; to grant (one) license or liberty; to
authorize; to give leave.’ The word ‘allow’ is not as positive as
the word ‘permit,’ being more of a synonym with the word
‘suffer,’ while the word ‘permit’ denotes a decided assent."
Nolde Bros. v. Chalkley, 184 Va. 553, 566-567, 35
S.E.2d 827, 833 (1945)(citation omitted).

The trial court found no such affirmative act
or "decided assent" in this case, and very clearly
indicated that Peace did not "allow" the activity by
finding that she became upset and discouraged the activity when
she was confronted with it.

Accordingly, we also reverse and dismiss
Peace’s conviction under ? 18.2-258.

Reversed and dismissed.


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