JUDGE JAMES W. BENTON, JR.
A jury convicted Anna Marie Dotson of felonious abuse and neglect of her infant son in violation of Code § 18.2-371.1(A). Dotson contends the evidence was insufficient to support the verdict. She also contends that the trial judge erred in (1) ruling that Code § 18.2-371.1(A) did not require the Commonwealth to prove that any omission to provide care was willful, (2) refusing to instruct the jury that willful modifies omission, (3) permitting the jury to consider evidence of improper nourishment and a healed leg fracture concerning the infant, and (4) ruling that Dotson's counsel could not argue to the jury that the Commonwealth was required to prove that any omission to provide care was willful. We conclude the evidence was insufficient to support the conviction and reverse the conviction.
I.
The evidence proved that appellant and Michael Rell Dotson lived together but were not married. At the time of the incident giving rise to this prosecution, appellant and Dotson had two infant children, a girl age twenty-two months and a boy age seven months, who were born during their relationship. Dotson also had a teenage daughter, who lived with Dotson's parents.
On the morning of July 13, 1996, appellant had arranged for Dotson's daughter, who was then seventeen, to babysit appellant's and Dotson's son. The teenager testified that when she arrived in her car to get the baby, Dotson was not at home. She assisted appellant in preparing the baby to go home with her, and she put the baby in the car in his infant car carrier seat. At some point before she left, she noticed that the baby had a small bruise under his eye.
The teenager testified that she had been frequently babysitting the baby "since he was born." She also testified that on several occasions when appellant and Dotson were not present in the room, she had seen the twenty-two-month-old child pinch and slap the baby and throw bottles at him. The teenager further testified that the baby had been experiencing problems with food. When she fed him, "[h]e would belch back up [his milk] when you burped him."
The teenager testified that after she left appellant's home, she was driving faster than she should have been. When she entered a curve in the road, she saw a car stopped in the middle of the road and "had to slam on her brakes" to avoid a collision. The teenager testified that when she applied the brakes rapidly, she "heard it go thump." The baby then "fell out of the car seat and the car seat fell on top of him because [she] neglected to put [the baby] in . . . the seat, the way it's supposed to be."
She explained that instead of putting the infant carrier on the back seat, she had placed it on the front seat of the car so that the baby "could look out the window . . . [while she] was driving." She could not strap the carrier on the front seat and had not secured either the baby or the seat properly. Thus, the carrier seat had fallen onto the baby. Aware that the baby "was crying and screaming when he was in the floorboard" and was red in the face, the teenager "panicked." She continued to drive "up the road a little bit" before stopping. She then stopped, put the infant carrier seat on the back seat of the car, gave the baby a bottle, and tried to calm the baby.
After the teenager admitted during her direct examination that she had not related this incident when she testified at the preliminary hearing, the trial judge informed her out of the jury's presence that she would likely be prosecuted for perjury. She responded to the judge that she was now being truthful. She said she had not testified about the accident at the preliminary hearing because she "was scared [and] . . . didn't want her grandparents and [her] father [to know what happened]." She said "I knew they would be mad at me, I was scared." When the jury returned, the trial judge instructed the jury that the Commonwealth was entitled to prove the teenager had made a prior inconsistent statement but that the jury could only use proof of the prior inconsistent testimony "for purpose of contradicting this witness." The teenager then testified that on a prior occasion she said she had driven slowly from appellant's residence and arrived home without incident. She explained that she had lied at the preliminary hearing because she "didn't want [her] grandparents to know what [she] had done [and] . . . didn't want [her] father to know because they would be mad at [her] and they wouldn't let [her] have anything to do with [the baby] anymore." She testified that she "didn't think that anything was going to go this far . . . and didn't think that it would go further than little court." She further testified that she "was trying to protect [her]self."
The teenager testified that she telephoned her aunt from her home concerning the baby's condition. The aunt testified that when she received the telephone call she told the teenager to bring the baby to her house. When they arrived, the aunt immediately noticed that the baby was bruised and his arm was injured. The aunt believed the baby's arm, which was red and swollen, may have been broken, and she called the baby's pediatrician, Dr. Ranje Patel. He directed her to take the baby to the hospital emergency room.
The triage nurse who examined the baby in the emergency room testified that she saw multiple bruises on the baby's face, a healed scab under his left eye, and bruises on his back and both legs. The baby's left arm was swollen and deformed. Whenever she touched or moved the arm, the baby cried.
Dr. Sabry Radawi examined the baby and saw bruises all over his body and around his eyes. Some of the bruises appeared to be recent and others appeared older. Dr. Radawi testified that if a person, who is falling or involved in an accident, brings his hands to the front of his face and receives a sudden blow, the impact of hands into the face could cause "raccoon" eyes, the type of injury that the child had. After he viewed x-rays of the child's facial bones, skull, and left arm, Dr. Radawi diagnosed a fracture of the upper left arm. At his direction, the hospital personnel contacted the Department of Social Services and transferred the baby to a hospital in Roanoke.
In Roanoke, Dr. Hugh Johnson Hagan, an orthopedic surgeon, reviewed the x-ray and ordered an x-ray of the baby's major long bones. The x-ray revealed a fracture in the baby's left leg, which was in the process of healing. Dr. Hagan testified that the fracture most likely had occurred with one or two months and most likely had resulted from a direct blow to the bone. He further testified, however, that without knowing anything else except the existence of the break, it would be guesswork to say when and how it happened.
Dr. Donald Keys, a pediatrician, examined the child two days after the child was admitted to the hospital. Dr. Keys testified that "getting into the ages of bruises" from coloration "is a little bit difficult to say . . . [or] to be specific about that." Dr. Keys testified that he "can not say whether [the baby's bruises] all occurred on the same day or whether they occurred several days apart" and that "[t]hey could have potentially all occurred on the same date." He also testified that the child's leg fracture was more than six weeks old and could have occurred at anytime after the baby's birth. He agreed that because the baby was not putting weight on his legs, the fracture might only manifest itself by the baby occasionally becoming "irritable and fussy." He testified that the break in the baby's arm "was a very recent break."
Dr. Keys also testified that the baby was "very underweight." Although he learned that the baby had been premature at birth, Dr. Keys testified that "at seven and a-half months the baby should have had a lot more fat and been heavier." Based on a growth chart and his examination of the baby's records, Dr. Keys testified that the baby initially "made nice progress" but then "flat-lined," which meant the baby did not grow, between five and seven months. Dr. Keys testified that the baby's pattern was "definitely abnormal" and indicated that the child "didn't receive adequate nourishment during [the] time period [when he flat-lined]."
Dr. Keys also testified that the baby weighed eleven pounds when admitted to the hospital and gained ten ounces during his four-day stay. Dr. Keys agreed that if the baby was dehydrated two and one-half percent and rehydrated while in the hospital, the weight gain to the child would be about ten ounces. Although he had not reported evidence of dehydration, he testified that two and one-half percent dehydration would not be detected during a physical examination.
Dr. Keys testified, however, that the lab reports which were done for anemia and total protein were within normal limits except "the albumin was below the range of normal intake." Although he testified that the baby suffered from malnourishment or malnutrition, he testified that those terms simply mean that there is faulty nutrition. He further testified as follows:
It just sounds like what you're asking is, if you give diluted formula, does the baby grow well? The answer to that is no and that's true; however, for the first five and a-half months this baby grew appropriately, so that tells me the baby got the proper amount, the proper dilution, and then at five months something changed. I don't know what that something was. You're supposing, and I have no knowledge of this, that she started changing the way she prepared the formula; that is a possibility; that's all I can say. . . . I couldn't say . . . it could have resulted from a lack of knowledge.
He testified that most parents by the time they have a second child are more familiar with feeding and what is proper feeding.
The Commonwealth also proved that two deputies from the sheriff's department and two employees of the county's social services department met with appellant and Dotson at their residence the same afternoon the baby was taken to the hospital. They informed appellant and Dotson that they were investigating a complaint of child abuse and had taken custody of the baby. Both parents "were surprised" to learn the baby had been taken to the hospital and said they did not know how the baby's arm could have been broken. Appellant "became upset." When asked if the baby had any injuries, appellant said the older child had accidentally hit the baby two days earlier with the baby's feeder, causing a bruise under the baby's eye. Appellant said the older child "appeared to be jealous" when appellant would not let her hold the baby. She had seen the older child climb into the baby's crib and hit him.
During the interview, appellant and Dotson also "stated that they frequently fight and hit on each other." Appellant said that the older child hit the baby after she saw appellant and Dotson hitting each other. The social worker testified that the older child appeared healthy and seemed to be "on target developmentally."
After the Commonwealth presented its case-in-chief, the trial judge overruled motions to strike the evidence. Dr. Ranje Patel, the baby's pediatrician, then testified for the defense. Dr. Patel testified that he had seen the baby six times prior to July 13 and had treated the baby on July 9 for congestion and coughing. "[S]peaking about the [baby's] formulas," he testified that there was a "problem ongoing from day one." He testified that appellant had raised issues with him concerning feeding the baby, that he had continuously discussed feeding issues with appellant, and that he advised her how to properly feed the baby.
Dr. Patel testified that he saw no broken bones or other injuries during the seven months he treated the baby. Although he said that a minor fracture in a baby's bone could remain undetected unless there are symptoms, he testified that he performed thorough examinations of the baby and saw no bruises and detected no broken bones.
At the conclusion of the evidence, the trial judge again overruled motions to strike the evidence. Appellant tendered a jury instruction defining "willful" as "an act or omission done with bad purpose, without justifiable excuse, or without ground for believing it is lawful." When the Commonwealth objected that Code § 18.2-371.1(A) did not require proof that an omission or refusal be willful, appellant argued that willful modified act and omission. The trial judge refused the instruction and ruled that neither the omission nor the refusal to provide care had to be willful. The judge also instructed appellant's counsel that he could not argue to the jury that an omission or refusal to provide care must be willful.
This appeal followed from the jury's verdict convicting appellant of "Abuse and Neglect of Children by Willful Act or Omission or Refusal to Provide Necessary Care, Causing or Permitting Serious Injury as Charged."
II.
Pertinent to this appeal, the child abuse and neglect statute provides as follows:
Any parent, guardian, or other person responsible for the care of a child under the age of eighteen who by willful act or omission or refusal to provide any necessary care for the child's health causes or permits serious injury to the life or health of such child shall be guilty of a Class 4 felony. For purposes of this subsection, "serious injury" shall include but not be limited to (i) disfigurement, (ii) a fracture, (iii) a severe burn or laceration, (iv) mutilation, (v) maiming, (vi) forced ingestion of dangerous substances, or (vii) life-threatening internal injuries.
Code § 18.2-371.1(A).
To sustain a conviction under this statute, the evidence must prove beyond a reasonable doubt a "willful act or [willful] omission or [willful] refusal" regarding the proscribed conduct. This conclusion necessarily follows from the application of ordinary grammatical principles and the general rule that "proper grammatical effect will be given to the arrangement of words in a sentence of a statute." Harris v. Commonwealth, 142 Va. 620, 624, 128 S.E. 578, 579 (1925). "We presume that when drafting this statute, the legislature understood the basic rules of grammar."Frere v. Commonwealth, 19 Va. App. 460, 464, 452 S.E.2d 682, 685 (1995). Moreover, even if there is a choice to be made in reading the statute, the principle is well established that "[c]riminal statutes are to be `strictly construed against the Commonwealth and in favor of [a] citizen's liberty' . . . [and] must be construed so as to proscribe only conduct which the legislature clearly intended to be within the statute's ambit." King v. Commonwealth, 6 Va. App. 351, 354-55, 368 S.E.2d 704, 706 (1988) (citation omitted).
The evidence proved that on July 13, 1997, when the significant bruising and injuries were first discovered on the baby, he was in the presence and care of Dotson's teenage daughter. The teenager testified that, with the exception of a small bruise on his face, the baby was normal and did not appear to have any injuries. She further testified that before leaving appellant's house with the baby in her car, she failed to secure the baby in the infant carrier and she put the infant carrier on the front seat. That failure resulted in the child falling to the floorboard of the car and being hit by the falling infant seat when the teenager, who was speeding along the highway, entered a curve, saw a stopped vehicle, and slammed on the brakes.
The Commonwealth argues that the jury could have disbelieved the teenager, the Commonwealth's witness, because she admitted at trial that she had testified differently at the preliminary hearing in order to avoid incurring the wrath of her grandparents and her father for injuring the child. We agree, of course, that the jury, as "fact finder . . . may reject testimony that has been impeached." Doss v. Commonwealth, 23 Va. App. 679, 685, 479 S.E.2d 92, 95 (1996). Even if we assume, however, that the jury rejected this testimony, no evidence otherwise explains the cause of the baby's broken arm and severe bruising, which were evident when he was taken to the hospital that same day by the teenager and her aunt. No evidence proves that the baby had those bruises and injuries when the teenager drove away from appellant's home with the baby.
The baby's pediatrician testified that he examined the baby on July 9, four days before he was taken to the emergency room. At that time, the baby was congested and coughing. He thoroughly examined the baby and detected no bruises or broken bones. Although the triage nurse testified that four days later when she touched or moved the baby's arm, the baby cried, the teenager never testified that the baby cried when she was preparing to leave appellant's house or putting the baby in the car. Thus, the evidence clearly established that the baby's broken arm was a very recent injury. Dr. Keys, a witness for the Commonwealth, testified that the bruises "could have potentially all occurred on the same day."
The evidence in this record establishes that some event likely occurred on July 13 that caused the teenager to seek medical treatment for the child. If that event, however, was not the one described by the teenager, in which the baby fell forward and onto the floorboard of the car after the teenager braked suddenly, then the record clearly fails to establish a cause for the baby's bruises and broken arm. Simply put, except for the teenager's testimony, the evidence does not otherwise prove the circumstances in which the broken arm and bruising occurred or who caused injury to the child.
"[E]vidence is not sufficient to support a conviction if it engenders only a suspicion or even a probability of guilt. Conviction cannot rest upon conjecture. The evidence must be such that it excludes every reasonable hypothesis of innocence. The giving by the accused of an unclear or unreasonable or false explanation of his conduct or account of his doings are matters for the jury to consider, but they do not shift from the Commonwealth the ultimate burden of proving by the facts or the circumstances, or both, that beyond all reasonable doubt the defendant committed the crime charged against him."
Hyde v. Commonwealth,
217 Va. 950, 955, 234 S.E.2d 74, 78 (1977) (citation omitted).
The Commonwealth's evidence concerning the other claims of abuse and neglect is similarly deficient. The teenager testified that when she was at the appellant's house preparing to leave, she noticed a small bruise on the baby's face. When the social worker and the police arrived at appellant's house on the afternoon of July 13, and informed appellant that the baby had been injured, she informed them that the only injury she was aware of was a small bruise on the baby's cheek that occurred when her twenty-two-month-old child had accidentally hit the baby two days earlier with the baby's feeder. Even if the jury disbelieved that explanation for the bruise on the child's cheek, no evidence proved that it was caused by a willful act or who else may have caused the bruise.
When the baby was examined in the hospital, an x-ray showed that the baby had a healed fracture in a bone in his left leg. The doctor testified that the fracture was at least six weeks old and could have occurred anytime from birth until six weeks prior to the examination. He also testified that, because the baby was not bearing weight on its leg, the fracture might only have been manifested by the child being "irritable and fussy." Another doctor testified that "children heal fractures very quickly" and that it would be guesswork to say when and how it occurred merely by viewing the x-ray. The baby's pediatrician testified that the baby had been his patient since December 1995 and that he had examined the baby six times during regular office visits. He testified that he never saw bruises on the child and never detected any broken bones; he found no reasons or indications during his treatments to order x-rays to look for broken bones. He testified that on July 9 when he examined the baby, the baby "was essentially normal" and, except for a cold, the baby was healthy.
Dr. Keys testified that the growth chart he prepared showed that the baby, who was born prematurely, made "nice progress" until his fifth month. He testified that "from five months to what we saw in the seven and a-half months, he basically didn't grow; didn't gain any weight, so he flat-lined." He considered the lack of growth during that two and a-half months "abnormal" and testified that "if [the baby] was fed in the right way, he would gain weight." His testimony merely proves faulty nutrition. Indeed, the doctor testified that he did not know the cause of the feeding problem and that "it could have resulted from a lack of knowledge" by the parents.
We hold that the evidence in its totality was insufficient to prove beyond a reasonable doubt that appellant "by willful act or omission or refusal to provide any necessary care for the child's health cause[d] or permit[ted] serious injury to the life or health of [her] child." Code § 18.2-371.1(A). Because we hold the evidence was insufficient to support the conviction, we do not address the remaining issues. Accordingly, we reverse the conviction and dismiss the indictment.
Reversed and dismissed.