Noakes v. Com.

Present:   Hassell, C.J., Koontz, Kinser, Goodwyn, and Millette,
           JJ., and Carrico and Russell, S.JJ.

ELIZABETH POLLARD NOAKES
                                               OPINION BY
v.   Record No. 091911                 JUSTICE CYNTHIA D. KINSER
                                           September 16, 2010
COMMONWEALTH OF VIRGINIA

               FROM THE COURT OF APPEALS OF VIRGINIA

      In this appeal, a defendant challenges the sufficiency of

the evidence to support her conviction for involuntary

manslaughter, specifically contesting the findings that she was

criminally negligent and that her acts were a proximate cause of

a toddler's death.      Because there is sufficient evidence to

support both findings, we will affirm the judgment of

conviction.

                  MATERIAL FACTS AND PROCEEDINGS

      The relevant facts are undisputed.     The defendant,

Elizabeth Pollard Noakes, provided child care services in her

home, and on the day in question, October 18, 2006, had in her

care Noah Alexander Colassaco, a fifteen-month-old child, and

two other children. 1    Noakes had been caring for Noah for

approximately three weeks and, throughout that time, had


      1
       Code § 63.2-100 defines the term "[f]amily day home" as a
"child day program offered in the residence of the provider
. . . in care for one through 12 children under the age of 13
. . . when at least one child receives care for compensation"
and requires licensure or voluntarily registration for such
homes caring "for more than four children under the age of two."
experienced difficulty in getting Noah to lie down and sleep

during "nap time."     Instead, he usually would stand in the crib

and cry.    Noakes had tried "traditional means" to help Noah

sleep, which included "rocking him to sleep" and "patting his

back," without success.

     Around noon on the day in question, Noakes put Noah and

another toddler she was caring for in their cribs for an

afternoon nap. 2    The cribs were located in an upstairs, "loft"

bedroom that was partially visible from Noakes' bedroom.     Only a

half wall divided the two rooms, which were connected by a

stairway.   The cribs, however, were not visible from Noakes'

bedroom.    Noah's crib, as viewed from the loft's entrance, was

positioned lengthwise against the back wall of the room, in the

far right corner.     The rectangular crib was abutted on the right

by one wall, on the rear with another, and on the left by

another crib, with only the front, lengthwise portion

unobstructed.      A third crib, in which Noakes placed the other

toddler that day, was positioned a few feet from Noah's crib,

nearer the entrance of the loft and also on the right wall.




     2
       Noah's crib was of the "pack-n-play" style, made of nylon
and mesh, with plastic on the four corners and its bottom only a
short distance off the floor. Noakes described it as a
"portacrib." Its design makes the crib flexible, portable, and
suitable for use as a playpen and crib.


                                    2
When Noakes left the loft, Noah was standing "facing the front

of the crib" and crying.

     At approximately 12:30 p.m., Noakes returned to the loft to

"check on" Noah, who was still standing in the crib and crying.

Knowing that when Noah stood in his crib, his chin was above the

crib's sides, and also that Noah would fall asleep if he were

lying or sitting in the crib instead of standing, Noakes decided

to place a make-shift covering over the crib to prevent Noah

from standing.   After removing Noah from his crib, Noakes placed

a thirty-three and one-quarter pound, collapsed "dog crate,"

which ran the length of the crib but was substantially narrower,

on top of the crib.   Noakes reasoned that the crate's weight

would prevent Noah from standing up in the crib.

     Noakes tested the stability of her contraption by shaking

the crib with the crate on top to determine if the crate could

fall into the crib and injure Noah.   Satisfied that the crate

could not fall into the crib, Noakes removed the crate, put Noah

back into the crib, and placed a fabric-covered piece of

approximately one-inch thick cardboard on top of the crib.   The

cardboard was added, in part, to cushion the force of any impact

between Noah's head and the crate if Noah attempted to stand.

Although the cardboard would cover the entirety of the crib's

top, Noakes positioned it so the cardboard extended out over the

front of the crib, where Noah often stood, thus leaving a small


                                 3
"gap" in the rear between the crib's side and the cardboard.

Noakes then placed the dog crate on top of the cardboard,

towards the front side of the crib, where it covered a little

more than one-half of the crib's width.   Noakes examined the

covering to ensure that Noah would not be able to reach into the

dog crate and injure his fingers.

     With Noah in his now-covered crib, Noakes remained in the

loft for a short while to determine if the enclosure was causing

any distress to Noah and if he was attempting to stand up in the

crib despite the covering.   Observing no problems, Noakes left

the loft.    Sometime before 1:00 p.m., Noakes, however, heard a

noise from the loft and returned to find Noah sitting in his

crib but not sleeping, with his face pressed against crib's

front, mesh side.   Concluding that Noah would not fall asleep if

he were able to look for her, Noakes placed a toy in front of

the crib to obstruct Noah's view "so that he would not be

looking for [Noakes] but . . . would just get bored and go . . .

to sleep."

     Noakes again left the loft at about 1:00 p.m. and did not

return until 3:15 p.m., when she came to wake the other toddler

from his nap.   Noakes testified, however, that she monitored the

toddlers audibly from her bedroom during that time and heard no

noise from either of them.   Noakes testified that when she

returned to wake the other child, she did not look at Noah's


                                  4
crib, which was several feet to the left of the other crib, but

"within [her] peripheral vision of the room."   She believed,

however, that Noah was asleep since she did not hear any sounds

from him when she awakened the other toddler.

     Shortly after 4:00 p.m., Noakes returned to the loft to

wake Noah and found him unconscious.   He was standing with his

chin resting on the side of the crib, one or both of his hands

gripping the crib's side, and his head and neck wedged between

the cardboard and the crib.   His lips were blue and his skin was

cold to Noakes' touch.   Noakes surmised that Noah had attempted

to stand, had pushed up against the cardboard causing the dog

crate to slide a few inches thereby creating a space between the

covering on top of the crib and the crib's wall.   Noah then had

moved his head toward the crib's center, where he normally

stood, trapping himself in a space between the side of the crib

and the cardboard, which was held in place by the weight of the

dog crate.   Despite Noakes' efforts to revive Noah and the

intervention of emergency medical personnel, Noah was pronounced

dead at Noakes' home.

     An autopsy of Noah's body revealed that the cause of death

was "[a]sphyxia due to mechanical compression of neck."   The

medical examiner who performed the autopsy found "a pressure

mark at the neck [and] little broken blood vessels on the face,"

with "reddish coloring above and below the pressure mark."


                                 5
According to the medical examiner, her findings were consistent

with Noakes' explanation regarding the events leading to Noah's

death. 3   The examiner also testified that a restriction of the

oxygen supply to the brain, such as would be caused by the

circumstances Noakes described, would cause unconsciousness

"within a minute" and death within "minutes and not hours."

     Noakes was subsequently convicted in a bench trial in the

Circuit Court of the County of Chesterfield of involuntary

manslaughter, in violation of Code § 18.2-36.    The trial court

found Noakes' conduct to be "arrogantly reckless, merciless and

inhumane," and concluded that she had "recklessly disregard[ed]

Noah's safety [and the] consequences of her actions, being

indifferent as to whether the harm would result."    The trial

court sentenced Noakes to five years of incarceration, with four

years suspended on the condition that she "be of good behavior

upon [her] release from confinement" for a period of twenty

years.

     On appeal to the Court of Appeals of Virginia, a divided

panel affirmed the trial court's judgment.    Noakes v.

Commonwealth, Record No. 0295-08-2 (Jan. 13, 2009)

(unpublished).    Upon rehearing en banc, the Court of Appeals


     3
       Noakes cooperated with the police during all phases of
their investigation, providing a written statement, answering
questions for an audio recording, and demonstrating in a video
recording her acts on October 18, 2006.


                                  6
found that the "trial court could reasonably have concluded that

[Noakes] recklessly disregarded Noah's safety by proceeding with

her plan to prevent Noah from standing up by placing the dog

crate on his crib."   Noakes v. Commonwealth, 54 Va. App. 577,

589-90, 681 S.E.2d 48, 54 (2009).    The Court of Appeals

concluded that Noakes "could have foreseen the harm that could

and did befall Noah from putting a thirty-three-pound collapsed

dog crate on top of his crib."   Id. at 590, 681 S.E.2d at 54.

Accordingly, having found "sufficient[,] credible evidence to

support a rational factfinder's decision that [Noakes] was

criminally negligent and, therefore, was guilty of involuntary

manslaughter beyond a reasonable doubt," the Court of Appeals

affirmed the conviction.   Id. at 593-94, 681 S.E.2d at 56.

     Noakes now appeals to this Court.    In a single assignment

of error, she asserts the evidence was insufficient as a matter

of law to sustain her conviction, claiming that "her acts did

not rise to the level of criminal negligence nor could she have

anticipated the unforeseeable acts that would be performed by

the child while inside the crib."

                             ANALYSIS

     When the sufficiency of the evidence is challenged on

appeal, we review "the evidence in the light most favorable to

the Commonwealth, the prevailing party in the [trial] court" and

"accord the Commonwealth the benefit of all reasonable


                                 7
inferences deducible from the evidence."   Brown v. Commonwealth,

278 Va. 523, 527, 685 S.E.2d 43, 45 (2009); accord Jay v.

Commonwealth, 275 Va. 510, 524, 659 S.E.2d 311, 319 (2008);

Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786

(2003).   We give the trial court's judgment sitting as the

factfinder "the same weight as a jury verdict," Brown, 278 Va.

at 527, 685 S.E.2d at 45, and we will affirm that judgment

unless it "is plainly wrong or without evidence to support it."

Code § 8.01-680; accord Dowden v. Commonwealth, 260 Va. 459,

467, 536 S.E.2d 437, 441 (2000).

     We have defined the common law crime of involuntary

manslaughter as "the killing of one accidentally, contrary to

the intention of the parties, in the prosecution of some

unlawful, but not felonious, act; or in the improper performance

of a lawful act."   Mundy v. Commonwealth, 144 Va. 609, 615, 131

S.E. 242, 244 (1926); accord Brown, 278 Va. at 528, 685 S.E.2d

at 45-46; Dowden, 260 Va. at 470, 536 S.E.2d at 443.   To convict

a person for involuntary manslaughter caused by the improper

performance of a lawful act, the Commonwealth must show that the

improper performance of the lawful act "amount[ed] to an

unlawful performance of such lawful act, not merely a negligent

performance; that is, the lawful act must have been done in a

way so grossly negligent and culpable as to indicate an

indifference to consequences or an absence of decent regard for


                                   8
human life."   Kirk v. Commonwealth, 186 Va. 839, 847, 44 S.E.2d

409, 413 (1947); accord Brown, 278 Va. at 528, 685 S.E.2d at 45-

46; West v. Director, Dep't of Corrs., 273 Va. 56, 64, 639

S.E.2d 190, 195 (2007); Cable v. Commonwealth, 243 Va. 236, 240,

415 S.E.2d 218, 220 (1992).   "The accidental killing must be the

proximate result of a lawful act performed in a manner 'so

gross, wanton, and culpable as to show a reckless disregard of

human life,'" Gooden v. Commonwealth, 226 Va. 565, 571, 311

S.E.2d 780, 784 (1984) (quoting King v. Commonwealth, 217 Va.

601, 607, 231 S.E.2d 312, 316 (1977)); the conduct must

"manifest[] criminal negligence."    West, 273 Va. at 64, 639

S.E.2d at 195; accord Cable, 243 Va. at 240, 415 S.E.2d at 220.

     "In this context, the term[s] 'gross, wanton, and culpable'

describe[] conduct.   The word 'gross' means 'aggravated or

increased negligence' while the word 'culpable' means 'deserving

of blame or censure.'"   Cable, 243 Va. at 240, 415 S.E.2d at 220

(quoting Bell v. Commonwealth, 170 Va. 597, 611, 195 S.E. 675,

681 (1938)).   Gross negligence amounts to criminal negligence

"when acts of a wanton or willful character, committed or

omitted, show 'a reckless or indifferent disregard of the rights

of others, under circumstances reasonably calculated to produce

injury, or which make it not improbable that injury will be

occasioned, and the offender knows, or is charged with the

knowledge of, the probable result of his [or her] acts.'"


                                 9
Brown, 278 Va. at 528-29, 685 S.E.2d at 46 (quoting Riley v.

Commonwealth, 277 Va. 467, 484, 675 S.E.2d 168, 177 (2009));

accord Morris v. Commonwealth, 272 Va. 732, 739, 636 S.E.2d 436,

440 (2006); Gallimore v. Commonwealth, 246 Va. 441, 445-46, 436

S.E.2d 421, 424 (1993); Cable, 243 Va. at 240, 415 S.E.2d at

220.   While the improper performance of a lawful act must be

"'so gross and culpable as to indicate a callous disregard of

human life,'" it need "'not be so gross as to raise the

presumption of malice.'"    Beck v. Commonwealth, 216 Va. 1, 4,

216 S.E.2d 8, 10 (1975) (quoting Goodman v. Commonwealth, 153

Va. 943, 946, 952, 151 S.E. 168, 169, 171 (1930)) (internal

quotation marks omitted).   The Commonwealth must also prove that

the criminally negligent act proximately caused the accidental

death.    Brown, 278 Va. at 529, 685 S.E.2d at 46; Gallimore, 246

Va. at 446, 436 S.E.2d at 424.

       In determining whether conduct rises to the level of

criminal negligence, an "objective standard" applies, and

criminal negligence may be found to exist when the defendant

"either knew or should have known the probable results of

his[/her] acts."    Riley, 277 Va. at 483-84, 675 S.E.2d at 177

(internal quotation marks omitted); Brown, 278 Va. at 528, 685

S.E.2d at 46; Jones v. Commonwealth, 272 Va. 692, 701, 636

S.E.2d 403, 408 (2006).    Thus, the Commonwealth did not need to

prove that Noakes actually knew or intended that her conduct


                                 10
would cause, or would likely cause, Noah's death, but rather

that Noakes should have known her acts created a substantial

risk of harm to Noah.   See Jones, 272 Va. at 701-02, 636 S.E.2d

at 408 (approving a trial court's finding of criminal negligence

"[u]nder an objective standard" because the defendant-mother

"knew or should have known that placing fourteen capsules of

heroin and a plate with cocaine residue in the same room as her

unattended eight-year-old son created a substantial risk of

serious injury" as did "her continuous and illegal drug activity

at the apartment when her young child was present" in view of

the "dangers inherent in the illicit drug trade").

     Citing Gallimore v. Commonwealth, 15 Va. App. 288, 296, 422

S.E.2d 613, 618 (1992), aff'd, 246 Va. 441, 448, 436 S.E.2d 421,

426 (1993), Noakes concedes on brief "that it is not necessary

for a defendant to foresee the specific ma[nn]er in which injury

occurred."   Noakes, nevertheless, argues that in evaluating the

foreseeability of death or serious injury to Noah, attention

must be given to the measures she "took to insure that death or

serious injury would not occur."     Noakes points to her purpose

for covering the crib — "to assist the child in sleeping" — and

the "painstaking lengths [taken by her] to anticipate possible

dangers and prevent them," as well her "regular[]" returns "to

the adjoining bedroom so that she could monitor the child as she

did housework."   Noakes claims, "[e]ach of these measures


                                11
reduced the probability of harm to the child to the point that

no reasonably intelligent person, using an objective standard,

could be charged with the knowledge . . . that the child

probably would be harmed by the object."   In summary, Noakes

claims that "[i]t was her inability to predict any and all

possible dangers that failed her."

     Upon review of the evidence, we conclude that Noakes'

conduct in placing cardboard and a thirty-three and one-quarter

pound, collapsed dog crate atop Noah's crib and failing to

visually check on him for about three hours was wanton and

willful, "showing a reckless or indifferent disregard of [Noah's

rights], under circumstances [that made] it not improbable that

injury [would] be occasioned, and [Noakes] is charged with the

knowledge of[] the probable result of [her] acts."    Cable, 243

Va. at 240, 415 S.E.2d at 220.   Noakes knew that Noah would

attempt to stand in his crib and also that when doing so, Noah's

head and chin rose above the height of the crib's sides.   While

she obviously took steps to prevent the crate's falling upon

Noah and his reaching into the crate, Noakes should have known

that a toddler, used to standing but constrained against his

will, might attempt to free himself, thereby dislodging the

makeshift covering and sustaining serious injury.    The measures

that Noakes undertook to prevent the crate from falling upon

Noah demonstrate her actual knowledge of the inherent danger of


                                 12
the contraption she placed atop the crib.   And, because Noakes

knew that she had placed Noah in an inherently dangerous

situation that could cause serious injury, she certainly should

not have left Noah unattended for approximately three hours. 4

     In sum, we agree with the Court of Appeals' conclusion:

     [T]he act of attempting to limit Noah's ability
     to stand in his crib was not inherently unlawful;
     however, a rational factfinder could indeed
     determine that the placing of a thirty-three-
     pound dog crate on Noah's crib, combined with
     [Noakes'] inattentiveness in the face of this
     experimental and dangerous set-up and with Noah's
     conceded determination to stand up in his crib,
     constituted reckless and unlawful conduct in
     utter disregard of Noah's safety.

Noakes, 54 Va. App. at 593, 681 S.E.2d at 56.

     Noakes, however, further contends that Noah's lifting "an

object that weighed 30% greater than his own body weight and,

without displacing [the object,] maneuver[ing] his head

underneath it and asphyxiat[ing] himself" was not foreseeable

and, thus, any knowledge of that danger cannot be "fairly

imputed to her."   Noakes maintains that if Noah had "not

performed this improbable feat," her actions would not have

caused injury to Noah.   According to Noakes, Noah's actions were

     4
       We also do not find Noakes' reliance on Forbes v.
Commonwealth, 27 Va. App. 304, 498 S.E.2d 457 (1998) availing.
The defendant in Forbes had "followed the medical directions he
had been given" to address the risk that materialized, causing
the accidental death; here, Noakes did not have the benefit of
professional advice nor did her precautionary measures address
the relevant risk. Id. at 312, 498 S.E.2d at 460.


                                13
therefore an intervening cause that rendered Noakes' conduct a

remote, rather than a proximate, cause of Noah's death.     We do

not agree.

     "A proximate cause is 'an act or omission that, in natural

and continuous sequence unbroken by a superseding cause,

produces a particular event and without which that event would

not have occurred.' "     Brown, 278 Va. at 529, 685 S.E.2d at 46

(quoting Williams v. Joynes, 278 Va. 57, 62, 677 S.E.2d 261, 264

(2009)).   An intervening act, to "'break[] the chain of causal

connection between an original act of negligence and subsequent

injury,' " cannot have been "'reasonably foreseeable.' "

Gallimore, 246 Va. at 447, 436 S.E.2d at 425 (quoting Delawder

v. Commonwealth, 214 Va. 55, 58, 196 S.E.2d 913, 915 (1973));

accord Brown, 278 Va. at 529, 685 S.E.2d at 46.    "Furthermore,

an intervening event, even if a cause of the harm, does not

operate to exempt a defendant from liability if the intervening

event was put into operation by the defendant's negligent acts."

Gallimore, 246 Va. at 447, 436 S.E.2d at 425 (citing Baxley v.

Fischer, 204 Va. 792, 798, 134 S.E.2d 291, 295 (1964)).

     Like the Court of Appeals, we conclude that whatever Noah

did to maneuver his head and neck between the cardboard and the

side of the crib was "put into operation" by Noakes' placing the

covering atop the crib.     Gallimore, 246 Va. at 447, 436 S.E.2d

at 425.    There is no evidence in this record to show an


                                  14
unforeseeable, intervening act that broke the causal chain of

connection between Noakes' original act of criminal negligence

and Noah's subsequent death.   See id.   In other words, Noah

would not have suffocated on the day in question if Noakes

either had not placed the cardboard and dog crate atop Noah's

crib while he was in the crib or, having erected the covering,

had continuously monitored Noah during his nap.

                           CONCLUSION

     For these reasons, we will affirm the judgment of the Court

of Appeals.

                                                          Affirmed.




                                15