Opinion
Record No. 0295-08-2.
January 13, 2009, February 20, 2009.
Upon a Petition for Rehearing En Banc.
Appeal from the Circuit Court of Chesterfield County, Herbert C. Gill, Jr., Judge, Circuit Court No. CR07F00081-01.
James T. Maloney (Maloney David, P.L.C., on brief), for appellant.
Joshua M. Didlake, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
MEMORANDUM OPINION BY
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
On January 27, 2009 came the appellant, by counsel, and filed a petition requesting that the Court set aside the judgment rendered herein on January 13, 2009, and grant a rehearing en banc on the issue(s) raised in the petition.
On consideration whereof, the petition for rehearing en banc is granted with regard to the issue(s) raised therein, the mandate entered herein on January 13, 2009 is stayed pending the decision of the Court en banc, and the appeal is reinstated on the docket of this Court.
Notwithstanding the provisions of Rule 5A:35, the following briefing schedule hereby is established: Appellant shall file an opening brief upon rehearing en banc within 21 days of the date of entry of this order; appellee shall file an appellee's brief upon rehearing en banc within 14 days of the date on which the opening brief is filed; and appellant may file a reply brief upon rehearing en banc within 14 days of the date on which the appellee's brief is filed. The appellant shall attach as an addendum to the opening brief upon rehearing en banc a copy of the opinion previously rendered by the Court in this matter. It is further ordered that the appellant shall file twelve additional copies of the appendix previously filed in this case.
Elizabeth Noakes (appellant) was convicted after a bench trial of involuntary manslaughter in the death of fifteen-month-old Noah Colassco (Noah). On appeal, appellant argues that the Commonwealth presented insufficient evidence that she acted with criminal negligence, an essential element of involuntary manslaughter. For the reasons stated below, we reject appellant's argument and affirm her conviction.
I. BACKGROUND
On October 18, 2006, Noah was placed in the care of appellant, who ran a daycare business out of her home. Appellant placed Noah and at least one other child in cribs located in a spare bedroom. A review of the videotape recorded hours after Noah's death reveals his crib was more analogous to a portable, "pack and play" variety than to a traditional wooden crib. The surface of the Graco crib was raised from the floor by four legs, which continued upward until they met hard plastic supports at the top of each corner. The four "walls" of the crib were made of a mesh material. The rectangular crib was placed in a corner of the bedroom, at the intersection of the back wall and the right side wall; therefore, one long side of the crib and one short side of the crib abutted those walls. The other short side of Noah's crib was situated within inches of another crib, leaving the remaining long side ("the front side") as the only side of the crib exposed to the remainder of the bedroom.
Appellant put Noah down for a nap at around noon, but Noah refused to sleep. Noah's refusal to sleep was a common occurrence while he was in appellant's care. Appellant had tried several "traditional" methods to get Noah to sleep, but those were unsuccessful. Appellant determined that the source of the problem was Noah's ability and desire to stand in his crib.
In an attempt to prevent Noah from standing up, appellant devised a plan to cover the top of the crib with cardboard and fabric and place a thirty-three-pound, folded-up dog crate on top of the cardboard. The cardboard and fabric would cover the entire top of the crib, and the dog crate would cover half the width of the crib. Appellant would place the dog crate so that it covered the front side of the crib, where Noah usually stood.
Before leaving the dog crate there with Noah inside, appellant removed Noah from the crib, placed the crate on the crib, and then shook the crib to determine if the crate would easily fall down into the crib. Satisfied that the dog crate would not fall in the crib, appellant removed the crate momentarily and placed Noah back in his crib. Appellant placed the cardboard and fabric on top of the crib in such a way as to create an "overhang" to prevent Noah from sticking his fingers between the crib and the cardboard, thereby potentially injuring his fingers by getting them stuck in the dog crate. Appellant also considered the cardboard covering (padded with the fabric) to be a buffer should Noah hit his head while attempting to stand. Appellant then placed the dog crate on the crib, inspected the arrangement with Noah inside, and went back and forth periodically between her bedroom and the adjoining loft bedroom to monitor the situation and see if Noah was distressed.
Despite these efforts, Noah still refused to sleep. Instead, he began pressing his face against the front side of the crib's mesh wall. To stop this behavior, appellant placed a large nylon toy against the front side's wall, so that Noah could not look out of the crib. Appellant then assumed Noah went to asleep. She left the room at approximately 1:00 p.m.
Appellant did not return to the bedroom until approximately 3:30 p.m., when she attended to another child. She left without checking on Noah.
A few minutes after 4:00 p.m., appellant returned to wake Noah from his nap. She saw Noah standing in the crib with his head, neck, and hands over the side of the crib. His neck was wedged between the cardboard covering and the wall of the front side of the crib. The dog crate, still on top of the covering, held Noah in this position. As appellant demonstrated in the videotape recorded following Noah's death, Noah apparently lifted the cardboard covering enough to cause the dog crate to slide backwards. Noah apparently then stuck his head over the front-left corner and progressively slid along the front side's rail until he was wedged under the thirty-three-pound dog crate near the center of the front side. Noah became trapped as a result.
Noah was unconscious, and his face was blue. Appellant unsuccessfully attempted CPR while she was on the phone with the emergency operator. The responding paramedics pronounced Noah dead at appellant's home.
The medical examiner determined that Noah died from asphyxiation; specifically, the suppression of the blood vessels in his neck had constricted the flow of oxygen to his brain. The medical examiner could not determine a time of death, but indicated that this type of asphyxiation typically would have taken "minutes and not hours."
At the conclusion of appellant's trial, the trial court found that the Commonwealth had sufficiently proven appellant's criminal negligence, commenting that appellant's "conduct was arrogantly reckless, merciless and inhumane, recklessly disregarding Noah's safety or [the] consequences of her actions, being indifferent as to whether the harm would result." The court found appellant guilty of involuntary manslaughter, and this appeal followed.
II. ANALYSIS
When considering the sufficiency of the evidence on appeal, "a reviewing court does not 'ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.'"Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384, 387 (2003) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). "Viewing the evidence in the light most favorable to the Commonwealth, as we must since it was the prevailing party in the trial court,"Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004), "[w]e must instead ask whether ' any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt,'"Crowder, 41 Va. App. at 663, 588 S.E.2d at 387 (quoting Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) ( en banc)). See also Maxwell v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008). "This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319.
While involuntary manslaughter is a Class 5 felony, it is not statutorily defined. See Code § 18.2-36. In a recent opinion, our Supreme Court explained the elements of involuntary manslaughter accordingly:
[T]he crime of common law involuntary manslaughter has two elements: 1) the accidental killing of a person, contrary to the intention of the parties; and 2) the death occurs in the defendant's prosecution of an unlawful but not felonious act, or in the defendant's improper performance of a lawful act. Cable v. Commonwealth, 243 Va. 236, 240, 415 S.E.2d 218, 220 (1992); Dowden v. Commonwealth, 260 Va. 459, 470, 536 S.E.2d 437, 443 (2000); Gooden v. Commonwealth, 226 Va. 565, 571, 311 S.E.2d 780, 784 (1984). To constitute involuntary manslaughter, the "improper" performance of a lawful act must amount to an unlawful commission of that lawful act, manifesting criminal negligence. Cable, 243 Va. at 240, 415 S.E.2d at 220; Kirk v. Commonwealth, 186 Va. 839, 847, 44 S.E.2d 409, 413 (1947).
West v. Director, Dep't of Corrs., 273 Va. 56, 63-64, 639 S.E.2d 190, 195 (2007).
Here, the trial court found appellant acted with criminal negligence and was guilty of involuntary manslaughter. The trial court's findings are examined on appeal by reviewing the totality of the evidence.See Commonwealth v. Duncan, 267 Va. 377, 385, 593 S.E.2d 210, 215 (2004). In reviewing the sufficiency of the evidence supporting the verdict in this case, our analysis is guided particularly by two principles.
First, although "'the application of the distinctions between the[] degrees of negligence is frequently difficult to apply,'" Tubman v. Commonwealth, 3 Va. App. 267, 273, 348 S.E.2d 871, 875 (1986) (quotingTown of Big Stone Gap v. Johnson, 184 Va. 375, 379, 35 S.E.2d 71, 73 (1945)), such determinations '"only become questions of law to be determined by [an appellate] court [rather than by the factfinder], when reasonable minds could not differ,'" Forbes v. Commonwealth, 27 Va. App. 304, 309, 498 S.E.2d 457, 459 (1998) (quoting Tubman, 3 Va. App. at 273-74, 348 S.E.2d at 875). Therefore, only in the event that reasonable minds would be compelled to agree that appellant's actions were not criminally culpable could we, as an appellate court, find the evidence of appellant's criminal negligence insufficient.
Second, in determining whether reckless conduct amounts to unlawful conduct sustaining a conviction for involuntary manslaughter, it is immaterial whether the unlawful act was unlawful in its inception — that is, an inherently unlawful act — or was a lawful act that then actually became unlawful by the way it was performed after it was begun. See Gooden, 226 Va. at 571, 311 S.E.2d at 784. As in Gooden, "[t]he present case is of the second category; conduct not inherently unlawful, but done without requisite caution, in an unlawful manner." Id. To prove a defendant's criminal negligence in relation to an otherwise lawful act, the Commonwealth must show that the performance was so improper as to constitute negligence so gross and culpable as to indicate a callous disregard of human life. Beck v. Commonwealth, 216 Va. 1, 4, 216 S.E.2d 8, 10 (1975) (citing Goodman v. Commonwealth, 153 Va. 943, 946, 151 S.E. 168, 169 (1930)).
"The word 'gross' means 'aggravated or increased negligence' while the word 'culpable' means 'deserving of blame or censure.' Bell [v. Commonwealth, 170 Va. 597, 611, 195 S.E. 675, 681 (1938)]. '"Gross negligence" is culpable or criminal when accompanied by acts of commission or omission of a wanton or willful nature, showing 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 acts.' Id. at 611-12, 195 S.E. at 681."
"Willful" conduct "must be knowing or intentional, rather than accidental, and be done without justifiable excuse, without ground for believing the conduct is lawful, or with a bad purpose."Duncan, 267 Va. at 384, 593 S.E.2d at 214. "Wanton" conduct is "[m]arked by or manifesting arrogant recklessness of justice, of the rights or feelings of others" such as to be "merciless" and "inhumane."Forbes, 27 Va. App. at 310, 498 S.E.2d at 459; see Town of Big Stone Gap, 184 Va. at 379, 35 S.E.2d at 745.
Morris v. Commonwealth, 272 Va. 732, 739, 636 S.E.2d 436, 439-40 (2006) (quoting Barrett v. Commonwealth, 268 Va. 170, 183, 597 S.E.2d 104, 111 (2004)) (footnote added).
On brief, appellant recognizes that there is support for a finding that she was grossly negligent, insofar as her act of placing the dog crate on Noah's crib "constituted a disregard of prudence" and would "shock[] the fair minded." See Ferguson v. Ferguson, 212 Va. 86, 92, 181 S.E.2d 648, 653 (1971) (stating gross negligence is "that degree of negligence which shows indifference to others as constitutes an utter disregard of prudence amounting to a complete neglect of the safety" of another and "must be such a degree of negligence as would shock fair minded men although something less than willful recklessness"). However, she contends that she went to sufficient lengths to anticipate potential risks resulting from her "unconventional method" and to prevent those risks from becoming harmful. For instance, appellant noted that she shook the crate (after initially placing it on the crib while it was empty), to test the crate's tendency to fall from its perch over Noah; she padded the bottom of the crate with cardboard and fabric to safeguard Noah against injury to his head if he tried to stand; and she created an "overhang" with the cardboard to safeguard against Noah injuring his fingers in the holes of the crate. Appellant claims that such precautions demonstrate that she did not act with a callous disregard for the risks of death or serious injury that were likely to materialize. Therefore, appellant argues, while she may have been grossly negligent in her care of Noah, she was not criminally negligent.
We disagree with appellant's contention that her recognition of some risks inherent in placing a thirty-three-pound dog crate on a crib militates against a finding of criminal negligence. "Willful or wanton negligence involves a greater degree of negligence than gross negligence, particularly in the sense that in the former an actual or constructive consciousness of the danger involved is an essential ingredient of the act or omission." Griffin v. Shively, 227 Va. 317, 321-22, 315 S.E.2d 210, 213 (1984) (citations omitted). Here, the danger was that Noah would be harmed by appellant's placement of the dog crate atop his crib. This danger came in numerous forms, and appellant was aware of, or should have been aware of, far less dangerous alternatives to putting a thirty-three-pound collapsed dog crate over a young and active child in order to convince him to lie down and take a nap.Cf. Conrad v. Commonwealth, 31 Va. App. 113, 121-22, 521 S.E.2d 321, 325-26 (1999) ( en banc) (holding that criminal negligence is judged under an objective standard). Notably, appellant testified at trial that she considered using only the cardboard or a net-like dome instead of the dog crate, but rejected those options because they would not have prevented Noah from standing up. So, appellant instead placed the dog crate on Noah's crib, despite her recognition — implicit in the precautions that she took — that this act could be dangerous. The trial court could reasonably have concluded that appellant recklessly disregarded Noah's safety by proceeding with her plan to prevent Noah from standing up by placing the dog crate on his crib.
Appellant contends that, because Noah's death resulted from a different risk of harm than she had foreseen, Noah's death was improbable; therefore, she claims that she was not criminally liable for his death. This contention is meritless. "It is not necessary that [appellant] foresaw the specific manner in which injury and death occurred." Gallimore v. Commonwealth, 15 Va. App. 288, 296, 422 S.E.2d 613, 618 (1992). Instead, "[i]t is sufficient that she reasonably could have foreseen that risk of death or serious harm might result from her actions." Id. (citing Blondel v. Hays, 241 Va. 467, 475, 403 S.E.2d 340, 345 (1991)). Here, given that appellant saw the need to protect this infant from some risks, appellant 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.
This is not a case where the defendant's mere inadvertence or inattentiveness created harm or the potential for harm. See, e.g.,Ellis v. Commonwealth, 29 Va. App. 548, 555-56, 513 S.E.2d 453, 457 (1999) (finding that defendant was not criminally negligent because she was unaware she had left a kitchen burner on and, accordingly, did not consciously disregard the likely ignition of a grease fire that would ultimately endanger the lives of her children). Appellant affirmatively and knowingly created this danger to Noah, and then, despite her initial concerns, failed to check on him for several hours. Furthermore, the nature of Noah's death could not be considered improbable, given appellant was aware that Noah was tall enough to stand with his head above the crib side. See Conrad, 31 Va. App. at 121-22, 521 S.E.2d at 325-26 (holding that criminal negligence "may be found to exist where the offender either knew or should have known the probable results of his acts");Tubman, 3 Va. App. at 274, 348 S.E.2d at 875 (requiring the Commonwealth to prove that "a homicide was not improbable under all of the facts existing at the time, and that the knowledge of such facts should have had an influence on the conduct of the offender").
We reject appellant's related argument that Noah's ability to lift a dog crate thirty percent heavier than his own weight was an improbable feat constituting an intervening cause for his death, thus rendering appellant's placement of the dog crate on top of his crib something other than the probable cause of his death. However, Noah's lifting the dog crate, if this is how he became wedged between the crate and the crib, "was put into operation by [appellant's] negligent act[]" of placing the dog crate on top of Noah's crib. See O'Connell v. Commonwealth, 48 Va. App. 719, 728, 634 S.E.2d 379, 383 (2006). Therefore, Noah's actions were not an intervening cause.
In addition, appellant knew that Noah wanted to stand in the crib. Consequently, she should have been especially concerned about how the child would attempt to move the items over his crib when he attempted — as young children do — to get around the constraints placed on him. "The same discernment and foresight that older people and experienced persons habitually employ in discovering dangers cannot be reasonably expected of children of tender years, and therefore the greater precaution should be taken where children are exposed to such dangers."Lynchburg Cotton Mills v. Stanley, 102 Va. 590, 594, 46 S.E. 908, 909 (1904). While appellant's "test" of the dog crate on the empty crib suggested to her that the crate would stay in place sufficiently enough not to fall in the crib, appellant was very aware that Noah was determined to stand in his crib. It was not at all improbable that a determined child of tender years would be able to get under the sides of this make-shift contraption, move the dog crate, and, in the process, as here, get his neck trapped so that he was asphyxiated. See id. ("That course of conduct which would be ordinary care when applied to persons of mature judgment and discretion might be gross, and even criminal, negligence toward children of tender years.").
Appellant's inattentiveness to the danger in which she placed Noah reinforces our holding that a rational factfinder could find appellant guilty of involuntary manslaughter. By appellant's own admission, she did not go in the bedroom where Noah was to check on him for approximately two and a half hours, from 1:00 p.m. until 3:30 p.m. When she checked on the other child in the bedroom at 3:30 p.m., she did not even look in Noah's direction. Appellant assumed Noah was asleep. Appellant then left Noah unattended from 3:30 p.m. until she found him unconscious and trapped between the crib and the cardboard/dog crate covering shortly after 4:00 p.m. The medical examiner indicated that Noah's death from asphyxiation typically would have taken "minutes and not hours." Leaving Noah unattended for even a half-hour, given the danger in which appellant placed Noah by setting a thirty-three-pound dog crate on top of his crib, was an unjustifiable risk.
She argued at trial and contends on appeal that, because she turned off an air conditioner situated close to the crib when she entered the room at 3:30, Noah was within her peripheral vision and she would have noticed anything amiss. However, even if appellant could see Noah's crib in her peripheral vision, it does not necessarily follow that she would have noticed anything amiss. The back side of Noah's crib was against a wall, and a large toy that appellant herself placed there covered the front side of the crib. The short sides were obscured by a wall and another crib in close proximity to Noah's crib. Furthermore, cardboard and the dog crate covered the top of the crib. Accordingly, even if appellant could see Noah's crib peripherally, numerous impediments — many of her own making — blocked appellant's view of Noah and any efforts that he might have made to circumvent the dog crate that hindered his ability to stand up in the crib.
In summary, the act of attempting to limit Noah's ability to stand in his crib was not inherently unlawful; rather, a reasonable factfinder could determine that the placing of a thirty-three-pound dog crate on Noah's crib, combined with appellant's 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. See Gooden, 226 Va. at 573, 311 S.E.2d at 785 (differentiating inherently unlawful acts and the improper performance of lawful acts). Because reasonable minds could make a determination here that appellant was criminally negligent, cf. Tubman, 3 Va. App. at 273-74, 348 S.E.2d at 875, we conclude the trial court did not err in finding her guilty of involuntary manslaughter.
III. CONCLUSION
For the foregoing reasons, we affirm appellant's conviction.
Affirmed.
For the reasons that follow, I conclude that the evidence presented at trial was insufficient to prove the criminal negligence necessary to support an involuntary manslaughter conviction. Hence, I respectfully dissent from the majority's opinion.
"When considering a challenge to the sufficiency of evidence on appeal, we review the evidence in the light most favorable to the prevailing party at trial and consider all inferences fairly deducible from that evidence." Jones v. Commonwealth, 276 Va. 121, 124, 661 S.E.2d 412, 414 (2008). "We will not reverse the judgment of the trial court unless it is plainly wrong or without evidence to support it."Id. (citing Code § 8.01-680).
Involuntary manslaughter is defined as the accidental killing of a person, contrary to the intention of the parties, during the prosecution of an unlawful, but not felonious, act, or during the improper performance of some lawful act. The "improper" performance of the lawful act, to constitute involuntary manslaughter, must amount to an unlawful commission of such lawful act, not merely a negligent performance. The negligence must be criminal negligence. 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) (citations omitted) (quoting King v. Commonwealth, 217 Va. 601, 607, 231 S.E.2d 312, 316 (1977)). Thus, to sustain appellant's conviction in this case, the Commonwealth had to prove beyond a reasonable doubt that appellant's improper performance of the lawful act that proximately caused the accidental death of the child amounted to criminal negligence. Criminal negligence "'is acting consciously in disregard of another person's rights or acting with reckless indifference to the consequences, with the defendant aware, from his knowledge of existing circumstances and conditions, that his conduct probably would cause injury to another.'" Tubman v. Commonwealth, 3 Va. App. 267, 271, 348 S.E.2d 871, 873 (1986) (quoting Griffin v. Shively, 227 Va. 317, 321, 315 S.E.2d 210, 213 (1984)). "We judge criminal negligence by an objective standard. It occurs when 'the offender either knew or should have known the probable results of his acts.'" Banks v. Commonwealth, 41 Va. App. 539, 546, 586 S.E.2d 876, 879 (2003) (quoting Conrad v. Commonwealth, 31 Va. App. 113, 121-22, 521 S.E.2d 321, 325-26 (1999) (en banc)).
In this case, appellant was admittedly negligent in placing the cloth-covered cardboard and folded 33-pound dog crate over the child's crib to prevent him from standing up during nap time. However, I find no evidence in the record to support a finding that appellant's lawful act was performed in a manner so gross, wanton, and culpable as to show a reckless disregard of human life.
For one thing, nothing in the record indicates that the act itself and the manner in which it was performed were motivated by anything other than appellant's concern for the child. As appellant had discussed with the child's mother, the child had not been napping well in the three weeks appellant had been caring for him. Rather than sleep in the afternoon, the child would stand in the crib by the front railing and cry for his mother or appellant. Appellant knew from her experience that, if she could get the child to sit or lie down in the crib, the child would go to sleep. Concerned that the child was not getting enough sleep, appellant tried various "traditional means" to get the child to nap, but had no success. After "exhaust[ing] those means" and "brainstorming" for several days to come up with new ideas, appellant decided to cover the crib with something "heavy enough and large enough" to prevent the child from standing up. On the day in question, appellant determined that the crate "would work because it [was] heavy enough and large enough."
In placing the cardboard and dog crate over the crib, appellant took every step she could think of to ensure they would not harm the child. She initially tested them on the crib without the child in it to satisfy herself that they would not fall into the crib, even shaking the crib to make sure the covering was stable. She made sure the cardboard covered the entire top of the crib so the child could not hurt his head or fingers on the dog crate. She made sure the crate extended far enough over both sides of the crate so that "there would be no way that the crate could fall in given the overhang." She positioned the cardboard so that it extended beyond the crib where the child normally stood up and was folded over one side of the crib next to the wall to stabilize it. Additionally, when she placed the crate on the crib, appellant made sure it was positioned over the spot where the child normally stood by the front railing to prevent the child from being able to lift the cardboard at that spot. After putting the child in the covered crib shortly after 12:00 p.m., appellant stayed for a while in the child's room, which was a loft off her bedroom, to monitor the child and make sure he was not in any distress beneath the cardboard and crate. The child, who was playing with a ball in his crib, did not cry or try to stand up during that time. Around 1:00 p.m., appellant returned to the child's room and covered the front of the crib with a toy to help him go to sleep. The child was not standing at the time.
Several times throughout the afternoon, appellant returned to her bedroom to audibly monitor the child. Hearing no noise from the child, appellant assumed he was asleep. Around 3:30 p.m., appellant returned to the child's room for an unrelated purpose. Not seeing the child and assuming he was still asleep, appellant went back downstairs. Approximately a half an hour later, appellant returned to the room to wake the child and discovered him standing in the crib with his neck wedged in between the cardboard and the front railing of the crib. Appellant immediately removed the child from the crib, called 911, and tried to revive him.
Although, as the Commonwealth points out, appellant told the police she did not directly look at or check on the child during that trip to the child's room, it is clear from the record that, had the child been standing in the crib, appellant would have seen him.
Throughout these events, appellant expressed a genuine concern only for the child's well being. No evidence suggests her actions were born of frustration, inconvenience, or any other selfish motivation.
Likewise, nothing in the record indicates that appellant was aware or reasonably should have been aware that her conduct would probably cause injury to the child. Not only did she take steps to prevent every possible danger that reasonably occurred to her, the Commonwealth presented no evidence to show she knew or reasonably should have known that the fifteen-month-old child possessed sufficient strength and ability to lift the cardboard under the 33-pound dog crate to the side so that he could stand up with his head between the cardboard and the front of the crib. To the contrary, the record shows that appellant specifically used the dog crate because she believed it was "heavy enough and large enough" to prevent the child from moving it and the cardboard beneath it. Indeed, appellant was initially unsure that she would even "be[] able to lift the crate." Nothing in the record demonstrates that appellant's belief that the weight of the crate would make it physically impossible for the child to lift the cardboard at the front of the crib was unreasonable.
Accordingly, I find the evidence insufficient to prove that appellant's improper performance of the lawful act amounted to criminal negligence. Thus, I would reverse appellant's conviction for involuntary manslaughter and dismiss the charge.