*1 351 tool, implement burglarious be a could never plastic bag overly broad Therefore, majority’s disagree I with outfit. as contem- ‘implement’ not an bag that “a holding plastic § plated by Code 18.2-94.” under Code reversing
I in conviction appellant’s concur 18.2-94, that the facts this § the more narrow basis but on plastic bag appellant’s finding case not support do tool, implement or outfit. burglarious was a possession 724 FERGUSON Kenneth
v. Virginia. COMMONWEALTH Record No. 0539-06-1. of Appeals Virginia,
Court
Chesapeake. 11, 2007.
Sept. Commonwealth, 36, 41, (citing part Va. of the act Miller v. 180 itself.” (1942))); v. Bell section, (1996) (“While part of the code sense, construing caption may be considered the strictest ” statute, legislative (quoting it is intent.’ Valuable indicative 186 Va. S.E.2d Krummert (1947))). *4 (Office Webb, of the Public Defender W. Public Edward brief), Defender, appellant. on for Theisen, Attorney General Virginia B. Senior Assistant brief), General, (Robert McDonnell, appel- Attorney F. lee. BEALES, C.J., JJ. FELTON, FRANK and
Present: and FRANK, Judge. ROBERT P. trial, (appellant) was Ferguson Kenneth
Following bench (in of wounding of malicious violation convicted two counts (in 18.2-47),1 § 18.2-51), violation Code § Code abduction (in of Code felony neglect and five child violation counts 18.2~371.1(B)). § the trial court erred in Appellant contends wound- sentencing him on one of the malicious convicting unlawful charged only ing charges because indictment sufficiency of the challenges also wounding. Appellant wounding charges to convict him on both malicious evidence agree felony neglect charges. and three of the five child We finding of mali- appellant guilty that the trial court erred on an indictment that the Commonwealth wounding cious wounding. Accordingly, unlawful we charges only concedes on that and remand for new trial reverse conviction remaining conviction charge. We affirm felony neglect charges affirm the two child wounding, and the remaining “brother” and “sister.” reverse involving We neglect involving child conviction
BACKGROUND light we the evidence in the most appeal, On examine us principle requires That favorable the Commonwealth. with that of of the accused conflict discard evidence as true all the credible regard Commonwealth all fair infer- evidence favorable to Commonwealth may be drawn therefrom. ences this Court. 1. The abduction conviction is not before *5 453, 455, Guda v. 42 Va.App. (citation (2004) omitted). standard, that
Applying the evidence demonstrates that A.C., became a parent “brother,” foster to siblings and “sister”2 in June 2000.3 explained, As A.C. “[w]hen [we in, first everything moved children] was fine and dandy. Then time, period after certain things changed.” A.C. recalled initially appellant disciplined by the children requiring them to perform push-ups and but the sit-ups, children “got it, used to [appellant] so had to find ways.” other A.C. explained began to physically beat children, two younger mostly upon suspicion stealing food and money. Appellant would beat the children “with belts and then when that wasn’t working, he using started cable cords.” A.C., According to the beatings took place daily. almost After began “brother” in the waking up of the night middle taking food from the pantry, downstairs appellant starting chaining “brother” his bed night. occasions, at On some appellant would make A.C. chain his brother the bed. being “Brother” also by remembered chained appellant to an exercise machine in the garage couple “a of times.”
The malicious wounding appeal indictment relevant this relates to appellant’s September conduct in 2003 when appel- feet, lant struck A.C. with his whipped hands him with a cable cord after he attempted to provide excuses his teacher, brother’s Spanish and sister’s conduct. A.C.’s along counselor, guidance with his took several photographs showing scabs and dried blood on A.C.’s back and left shoulder that were result of appellant’s beating him repeatedly with the cable cord. May
2. A.C. born February “brother” was born September and "sister” was born 1992. younger 3. theAs two children have the same initials and as we seek to protect privacy possible, their as much we will refer to them herein as “brother” and "sister.” occurred events that about children testified All three in trouble had been “sister” *6 “Brother” and 2003. December 2. Appellant, on December from school suspended were and where he in the church located recording a studio who had them to and ordered children at 2:00 a.m. worked, woke the chil- the instructed Appellant to the studio. come with him cold December the on this outside studio guard to stand dren vandalism, in the studio’s parked as a car and night watch Accord- by vandals. damaged recently lot had been parking only time A.C., [“brother”] “that the told him ing to the go was to allowed inside was [“sister”] [sic] and any time bathroom, could come [A.C.] that [but] [A.C.] of the studio A.C. outside Appellant placed to.” wanted side,” brother, stood “on the far left who between his standing side,” sister, right and instruct- “on the far his who stood and A.C. remem- keep guard.” ed him “to stand out there and hoodie, jeans a T- a and wearing pair he “a bered that was jacket you’d that wear shirt”; wearing light a was “[“sister”] and pajamas”; and her or in the summertime spring jeans jacket pair and a wearing jean was “[“brother”] outside, inside the A.C. went it was cold Because shirt.” sister.4 to his brother and give found coats studio and outside, appellant standing guard the children were While new was on some working room and recording “went into their stuff, asleep.” then he fell a.m., her if she his to ask began calling aunt
At 5:30 A.C. a.m,, her at 7:00 finally reached get come them. A.C. could walking with and, A.C. started suggestion, his aunt’s upon from away highway leading along “brother” and “sister” children a.m., picked the aunt studio. At about 7:30 walk thirty-minute approximately that was up at a location aunt, “it freezing According to the studio. from con- days later “brother” recalled that two She out[side].” flu.” “sister” “had the pneumonia, tracted brought siblings to his retrieved and 4. testified that the coats he “heavy coats.” were not Appellant initially brought testified he the children to his studio they because could not be left they alone and that only cross-examination, were outside for a few minutes. On however, appellant given confirmed that he had a statement to police admitting placed that he had the children outside the guard studio to stand because of the recent vandalism. neighbors Several testified children had a bad addition, reputation “brother,” truthfulness. In who had special needs, some also a problem had with stealing. On the however, credibility, issue of the trial court specifically found the Commonwealth’s witnesses more credible than appellant. The trial court found appellant guilty of two counts of mali- cious wounding, abduction, one count of five counts neglect. child
This appeal follows.
ANALYSIS wounding charge I. The malicious Appellant contends the trial court by convicting erred him on sentencing charge the of wounding malicious of “brother” because the indictment charge did not acted with malicious intent. The question indictment in read:
[Appellant], June, Between day 2000, the 19th through December, the day 2003, 3rd feloniously, with intent maim, kill, disfigure, shoot, cut, disable or stab, did wound bodily or cause injury §§ [“brother”] violation of 18.2- (1950) 51 of the Virginia code of [amended]. error,
The Commonwealth concedes the noting that justice ends of exception should since the error apply was not until discovered after the trial the sentencing hearing.5 The Commonwealth further that the requests case be remand- recognize 5. We this error was not raised in the trial court. However, agree we principles with the Commonwealth that under the Commonwealth, 221, 228, Legette set forth in v. Va.App. 33 532 S.E.2d 353, (2000), justice” 356 exception "[t]he ends of to Rule 5A:18 allows us to appeal. review this issue for the first time on
359 wounding, consis- of unlawful charge sentencing on the ed for Commonwealth, 221, 532 Va.App. 38 v. Legette tent with (2000). 353 S.E.2d convicted indicted and the accused was although Legette,
In sentenced the trial court wounding, a of unlawful charge 228, at 356. Id. at wounding. Legette for consis- sentencing for new and remanded This Court reversed contrast, we Id. In indictment and conviction. with the tent sentenced, but only in this case not the trial court note that greater wounding, an offense convicted, of malicious indicted. for which he was than that of crime and accusation a “An indictment is written and cause of of the nature to inform accused is intended Commonwealth, v. 2 him.” Hairston against the accusation (1986). 355, “An accused has Va.App. he clearly charge informed of the faces.” right be 336, 341, 381 Va.App. v. S.E.2d Williams “ (1989). cannot be convicted unless ‘The accused in his charged the offense indict brings evidence him within very offense for charge ... indictment must ment. [T]he ” is asked.’ Scott which conviction (2006) Williams, (quoting Va.App. “ 364). When a defendant at 381 S.E.2d at indictment, charges [either included convicted offense,] ... reversible per se or as lesser included expressly *8 occurred],’ prejudice no of actual showing error [has 74, (quoting at 896 United States required.” Id. at 636 S.E.2d Cir.1996)). (4th Fletcher, 49, 74 53 v. F.3d of an appellant convicted finding In the trial court indictment, that convic- we reverse charged offense in this case is remedy the appropriate conclude that tion. We with the for a new trial consistent and remand reverse 826, Commonwealth, 122 Va. 94 v. See Hummer indictment. (1917) conviction and wounding (reversing 157 malicious S.E. indicted for was appellant for a new trial when remanding con- Accordingly, appellant’s we reverse wounding). unlawful 360
viction for wounding and remand for retrial on the unlawful wounding indictment.6 Sufficiency
II.
of the evidence7
When considering
appeal
the sufficiency of the evidence
below,
presented
we
“presume
judgment of the trial court
to be correct”
only
and reverse
if the trial court’s decision is
“plainly
v.
wrong
without evidence to support
Davis
it.”
Commonwealth,
96, 99,
875,
39 Va.App.
570 S.E.2d
876-77
Commonwealth,
v.
(2002);
see also McGee
193,
25 Va.App.
(1997) (en banc).
197-98,
259,
487 S.E.2d
261
Under
this
standard, “a reviewing court does not ‘ask itself whether
it
believes that the evidence at the trial established guilt beyond
”
Commonwealth,
Myers
v.
reasonable doubt.’
43 Va.App.
113, 118,
(2004) (citation
536,
538
omitted and
“
emphasis
original).
It asks
‘any
instead whether
rational
trier of fact could have found the essential elements of the
”
beyond
crime
Kelly Commonwealth,
v.
a reasonable
doubt.’
250,
41
257,
(2003)
Va.App.
444,
447
(quoting
Jackson v. Virginia,
307, 319,
443 U.S.
99 S.Ct.
61
(1979))
560
Thus,
L.Ed.2d
(emphasis
original).
we do not
judgment
“substitute our
for that of the trier of fact” even if
opinion
our
differ. Wactor v.
were
38
acknowledge
Supreme
6. We
Court has ruled that a new
sentencing proceeding
appropriate remedy
is the
appellate
an
when
presented
court determines that
only
the evidence
at trial was sufficient
charge
sustain lesser-included
offense of
for which the accused
South,
was convicted. See Commonwealth
v.
Va.
361 (2002). addition, In Va.App. and testimony the accorded weight the credibility, “[witness are matters from facts proven drawn inferences to be the Foster v. fact finder.” by the be determined (2002). wounding charge A. The malicious to sus is insufficient contends the evidence Appellant Appel of A.C. wounding the conviction for the tain but claims have been excessive” “may lant admits his methods injure A.C.8 permanently he not intend to did wounding: § 18.2-51 defines malicious Code shoot, cut, stab, any or wound If any maliciously person with the bodily injury, him by any or means cause person shall, kill, maim, disable, except or he disfigure, intent to 3 felony. of a Class provided, guilty is be where it otherwise Va. Harbaugh In (1969), Supreme Court noted: Virginia the may standing parentis in loco parents persons or
[W]hile may timely punishment and as administer such reasonable child, growing right the necessary be correct faults a exercise of uncontrolled cannot cloak be used person may criminally such be liable passion, and that which corporal punishment if he inflicts battery assault and that where due moderation. We said exceeds bounds of been punishment as to whether had is raised question excessive, is for the [fact finder] the fact one moderate circumstances, considering from attending determine child, nature of the age, size and of the conduct inflicted on misconduct, the kind of marks or wounds body of the child. 697-98, 167 at 332. Id. at S.E.2d battery, Court this Harbaugh While dealt with assault under similar wounding for malicious affirmed conviction right corporal punish- Appellant had the to administer 8. asserts that he ment, wrongful noting not to correct misbehavior "[t]he intent the result of ill will." *10 circumstances in Commonwealth, v. Campbell 476, 12 Va.App. (1991). There, S.E.2d 1 a stepfather struck his three- year-old stepson fifteen times with a belt and caused injuries required that hospitalization. upheld This Court the convic- “ tion for malicious wounding, recognizing that while ‘a parent a right punish has a child within the bounds of moderation reason,’ or justified he she legally doing so to the ” extent that it ‘exceeds due moderation.’ 483, Id. at 4 (quoting Commonwealth, S.E.2d at Carpenter 186 Va. (1947)). Furthermore, “if a person intentionally action, takes an probable consequence of which is permanent another, disability of even if perma- nent disability result, does not he or she can be found to have intended to cause a permanent disability.” Id. at S.E.2d at 4-5.
We have defined malice as: Malice inheres doing intentional wrongful of a act justification without legal or excuse. Malice is not confined will, to ill any but includes action flowing from a wicked or corrupt motive, done an with evil mind wrongful inten- tion, where the act has been attended with such circum- stances as to carry it the plain indication of a heart deliberately on bent mischief. implied Malice is any from willful, deliberate and cruel act against another. Commonwealth, Williams v. 393, 398, 13 Va.App. (1991). Malice may be from “inferred acts and conduct which necessarily result in injury,” and whether or not a defendant acted with malicious question intent “is a fact.” Dawkins v. 186 Va. (1947).
500, 503 Here, evidence, light taken in the most favorable to the appellant shows that beat A.C. with his hands, feet, kicked A.C. with his and struck A.C. repeatedly with a cable The cord. record contains photographs injuries appellant inflicted upon A.C. The pictures illustrate appellant that whipped A.C. with the cable cord with sufficient “welts, force to inflict bruising, and scabs back” [A.C.]’s court, acting the trial Consequently, left shoulder. concluding finder, err in did not fact rational striking repeated- him by injure to permanently intended Additionally, hands, feet, cord. and a cable ly with his acted with concluding err in did not trial court intent. charges9 neglect B. The child his foster ordering that his actions argues Appellant in a night December on a cold guard outside children stand as to culpable lot, gross, wanton were “not so parking life.” In so the children’s disregard for show a reckless *11 to is insufficient sus- the evidence he contends that arguing, felony neglect child of three of the five the convictions tain charges. 18.2—371.1(B)(1) § states:
Code for the person responsible or other Any guardian, parent, act or age of 18 whose willful care of a child under wanton and gross, child was so in the care such omission life for human shall disregard to a reckless culpable as show felony. a 6 be of Class guilty v. recently in Jones Court held Virginia Supreme
theAs
(2006), “When
Commonwealth,
692,
272
9. arise from sufficiency the three that challenges the evidence on 3, 2003 incident. the December “Criminal ... negligence judged objective is under an stan- and, therefore, dard may be found to exist where the offender either knew or should have known the probable Thus, results of his acts. criminal negligence acting consciously in disregard person’s of another rights or acting with reckless indifference to the consequences, with the aware, defendant from his knowledge of existing circum- conditions, stances and that his conduct probably would injury cause to another.” 347,
Kelly 353, (2004) (quoting Conrad v. 31 Va.App. 121-22, (en (1999) (other banc)) 325-26 cita- “ omitted). ‘[Wjillful,’ statute, tions as used in the refers conduct that must knowing intentional, be or rather than accidental, justifiable excuse, and be done without without ground believing lawful, the conduct is awith bad Thus, purpose. the term ‘willful’ ... contemplates an inten- tional, purposeful act or omission.” Commonwealth v. Dun- can, 384-85, (2004) Va. 214-15 (citations omitted). Barrett,
In
an infant was drowned when his two-year-old
placed
sister
him a bathtub. The evidence
established
Barrett knew that her daughter
jealous
of her infant
brother and had “propensity
attempting
injure [him].”
*12
184,
atVa.
The Supreme Court determined that the mother had knowl-
edge of many facts that should have forewarned her
an
that
injury
likely
185,
was
to occur. Id. at
112.
S.E.2d at
The
Court held that
clearly
the evidence
by
showed that conduct
Barrett had also subjected
daughter
her
to “a substantial risk
of serious
injury
death.” Id. at
However, two by younger same faced dangers He 7 months years, present children were He improperly revealed he was dressed. old. No evidence no He building, had access to the with restrictions. complete exposed to the harsh winter conditions continually was not treatment Thus, appellant’s we not condone outside. while do A.C., we cannot conclude that demonstrated safety. health and disregard reckless for A.C.’s for the rights reckless indifference acted -with Appellant trial court did younger the two children. The well-being of We, accordingly, appellant’s hold that finding. not err so negligence criminal on December 2003 constituted actions convictions for as to and “sister” and affirm those “brother” 18.2-371.1(B). not the § We find such is violating Code convic- reverse that neglect case in the A.C. child case. We tion.
CONCLUSION *13 stated, appellant’s we reverse For the reasons and remand to the involving “brother” wounding conviction trial court for if retrial the Commonwealth be so advised. We reverse and dismiss child neglect conviction involv- ing A.C. The are remaining convictions affirmed. in part, part, reversed and remanded in and
Affirmed reversed and in part. dismissed J.,
BEALES, in concurring, part, and in dissenting, part. I respectfully dissent the portion from of the majority opinion that appellant’s reverses conviction for felony child neglect of A.C. I concur with the analysis holding of the remainder the majority opinion.
I evidence, would hold that light taken in the most favorable to the which we on must do appeal, given that the in prevailed Commonwealth court trial on charge, this placed demonstrates that in virtu- A.C. ally the perilous same situation as his brother and sister and him forced to face essentially the same his dangers siblings. Appellant removed all from three children their in beds middle of night, took them the studio around 2:00 in the morning, ordered A.C. to remain outside on a cold December night with his brother and sister (although he allowed toA.C. come “any to”), inside time [A.C.] wanted left A.C. charge the two younger children with to guard instructions lot parking against vandals. Furthermore and perhaps A.C., who, a.m., even more importantly, by 5:30 was almost desperate help situation, his brother and escape sister this effectively forced to lead his siblings thirty-minute walk down a highway early on an December morning to meet aunt, their whom had A.C. called them from rescue their plight. They highway marched down this a significant dark, distance while it was still presumably before being spotted up their picked by aunt.
By leaving charge A.C. his two younger siblings lot in parking the middle of a night cold December while studio, appellant slept inside the appellant placed virtually as much danger, especially given supervisory A.C.’s role, placed as he A.C.’s brother and As appellant’s sister. *14 his charge siblings in of in A.C. placing purpose admitted stand to have them night in lot that was parking outside vandals, certainly knew or either appellant against guard three might expose well all actions have known that his should all of injury activity to criminal and result of the children warm comfortably appellant slept while the children studio. A.C. was almost 18 majority opinion emphasizes
The Nevertheless, felony B child of subsection years old. reads, person or other “Any parent, guardian, neglect statute of 18 whose age of a child under responsible for care gross, of such child was so willful act or omission the care a for culpable disregard as to show reckless wanton § felony.” Code 18.2- human life shall be of Class guilty 371.1(B)(1). neglect of a child under 18 The statute refers to old, so he was still “under the age. years A.C. was years from the Being almost 18 not A.C. age protect of 18.” did him his appellant placed siblings. situation which minor, for his well- appellant was responsible callously being—a ignored. responsibility reasons, substantially I not differenti- For all these would A.C. and appellant’s ate between actions or omissions toward siblings. his toward the other actions omissions I allow trier of Since believe there sufficient evidence to disregard fact to conclude that showed reckless (see Kelly all of the children’s health and Common- safety, wealth, (2004)), I felony affirm conviction for child only appellant’s would appel- affirm and “sister” but would also neglect “brother” child of A.C. neglect lant’s conviction