Danielle Marie Embrey v. Commonwealth of Virginia
0778163
| Va. Ct. App. | Mar 28, 2017Background
- Danielle Embrey convicted in Staunton circuit court of one count misdemeanor contributing to the delinquency of a minor under Va. Code § 18.2-371.1 for keeping her 4‑year‑old in unsanitary, hazardous living conditions.
- Trial evidence: child had been at the residence about four hours; filthy floors, food and black matter ground into carpet, overflowing litter box and cat feces on the floor, nonworking toilets (one with human feces), pests, dirty dishes, and syringes/pills near the bed; child’s feet were ‘‘very dirty’’ and she was barefoot.
- Trial court orally found the conditions created a substantial risk of death, disfigurement, or impairment (abuse/neglect) and also described the conditions as a ‘‘serious threat to the well‑being and physical safety’’ (child in need of services), then convicted Embrey.
- On appeal Embrey challenged only the abuse/neglect sufficiency, arguing the Commonwealth failed to prove how long or how often the child was exposed and that there was no evidence of actual injury or chronic neglect.
- The Court of Appeals reviewed sufficiency of the evidence in the light most favorable to the Commonwealth and affirmed, holding (1) duration need not be proven — any intentional exposure to a condition posing a substantial risk suffices, and (2) the record supported that the unsanitary conditions posed such a substantial risk.
Issues
| Issue | Plaintiff's Argument (Embrey) | Defendant's Argument (Commonwealth) | Held |
|---|---|---|---|
| Whether evidence was sufficient to prove child was "abused or neglected" (substantial risk of death, disfigurement, or impairment) | Commonwealth did not prove duration or repeated exposure; no evidence of injury or poor health, only intermittent presence in unsanitary apartment | Conditions (feces, syringes, filthy environment) presented substantial risk even from limited exposure; evidence supports conviction | Affirmed: evidence sufficient — intentional exposure to such conditions can satisfy statute regardless of duration |
| Whether appellant waived review by failing to challenge trial court's alternative "child in need of services" finding | Embrey limited assignment to abuse/neglect; did not challenge alternative holding | Commonwealth argued alternative holding stands as independent basis, so appeal waived | Majority: Embrey not barred because trial court’s statements about an alternative holding were not sufficiently clear; appellate assignment adequate. Concurring judge: would affirm on alternative holding and treat failure to challenge as waiver |
| Whether statute requires proof of exposure for a particular period or repeated occasions | Argues duration/time exposed is an element that must be proven | Commonwealth: no statutory/time requirement; any intentional exposure to a substantial risk is enough | Court: no requirement of duration; any intentional exposure to substantial risk suffices |
| Whether appellate standard of review permits substituting court’s judgment | Embrey contends factual inferences insufficient | Commonwealth relies on trial court factfinding | Court: applies standard favoring Commonwealth and will not substitute its judgment absent plain error |
Key Cases Cited
- Johnson v. Commonwealth, 45 Va. App. 113 (discusses waiver when an appellant fails to challenge alternative holdings)
- DeAmicis v. Commonwealth, 31 Va. App. 437 (explains disjunctive bases for conviction under § 18.2‑371)
- Singleton v. Commonwealth, 278 Va. 542 (standard for appellate sufficiency review in criminal cases)
- Smith v. Commonwealth, 56 Va. App. 711 (appellate review: credit credible evidence favorable to Commonwealth)
- Jordan v. Commonwealth, 286 Va. 153 (deference to factfinder; will not substitute appellate judgment)
- Forest Lakes Cmty. Ass’n v. United Land Corp. of Am., 795 S.E.2d 875 (discusses the central role of assignments of error in framing appeals)