OFFICE OF THE COMMONWEALTH’S ATTORNEY W. Wesley Nance Courthouse Christopher M. Dolen, Chief Commonwealth's Anorney 123 Fast Main Street Assistant Commonwealth's Attorney Bedford, VA 24523, Stacey L. Stickney, Deputy 540-586-7628 Drew Givens Commonwealth's Anomey Fax: 540-586-2483 Lawrence E. Steele Gerry A. Urbanek Assistant Commonviealth's Attorneys February 17, 2022 | was appointed to review this tragic incident as a special prosecutor. Thus, my goal was limited to reviewing the incident to see whether any of the actions, or inaction, warranted criminal charges. Pursuant to that appointment, I have had the opportunity to thoroughly review the exhaustive investigation undertaken by law enforcement in this matter. In part, the investigation included interviews, and follow up interviews, of employees of the YMCA working on that day, a nonemployee adult present during the incident, and law enforcement officers who responded to the incident. One of those officers included an off-duty officer who was on the YMCA property when the 911 call was made. That officer responded immediately to the initial dispatch call. Other materials that were collected as part of the investigation included surveillance video from the incident and medical records. For purposes of this opinion letter, | will not be making detailed findings of fact. There isa possibility of civil action arising out of this incident. That being the case, | will not make detailed declarations as to the series of events so as not to unduly influence potential future proceedings. General determinations of fact, necessary to reach criminal law conclusions, will be summarized, Preliminary Findings On December 6, 2021, the YMCA located at 615 Oakhurst Avenue experienced a larger than normal number of children present for their program. This increased number was due to Pulaski County Public Schools conducting virtual learning on that day. The majority of the 38children present were playing in the pool. Four employees, to include one designated and trained lifeguard, were tasked with watching the 38 children. At the time of the drowning incident, the lifeguard was observing the entire pool, while one adult employee watched the shallow end, and another employee observed the deep end of the pool. The fourth employee was busy taking children back and forth to the restroom as they changed clothes and used those facilities. The non-employee adult, watching their own child swim, recalled the employees being attentive and hearing the lifeguard blow her whistle routinely to correct the children’s behavior in the pool Upon observing the 5 year old victim motionless in the deep end of the pool, the child was retrieved and life saving measures were immediately started. These measures were continued by the employees, the off-duty law enforcement officer, and then law enforcement and EMS personnel until the child was transported to the hospital. The child passed away overnight, or early the next morning. The medical examiner has determined the cause of death to be drowning. Legal Analysis The results of the investigation reflect that the child’s death was not an intentional act. This does not, however, end the legal evaluation of the incident. Generally, an adult does not have a legal responsibility to another healthy adult under criminal law. An adult, however, does have some heightened responsibility to a child in their care or under their supervision. The most direct examples of an adult's heightened legal responsibility to a child are found with Contributing to the Delinquency of a Minor, Va. Code Section 18.2-371, and Felony Child Neglect, Va. Code Section 18.2-371.1. Both statutes criminalize acting, or failing to act, in fulfilling the responsibility that an adult has in protecting their child, or a child in their care. However, both statutes require more than a mere failure to act. Both statutes require an omission to provide care to be described as willful. This willfulness means that there must be some intent to not provide care, or an intentional decision to not fulfill your required duty. In the case at hand, this could translate to seeing a child struggling to swim or in need of rescue and purposely not rendering aid. Similarly, a person who has the duty, by employment or otherwise, to provide oversight of children swimming could willfully or intentionally not do their job. Such an intentional abandonment of their responsibility could open them to prosecution. Based upon the clear evidence in this case, the adult employees present were actively engaged in their duty. Unfortunately, they did not see the child as he began to slip under the water. There is no evidence that this tragic oversight was intentional, reckless, or based upon the adults not fulfilling their duties. Once those adults saw the child was in need of services, they provided aid which was reasonable and appropriate for the circumstances. Thus, the willfulness element required for either statute to apply is not present. Similar legal analysis is appropriate in Virginia's homicide statutes. As this death was clearly not intentional, first degree murder, second degree murder, and voluntarymanslaughter are not applicable. This leaves for consideration involuntary manslaughter which can be charged in some circumstances where a death was unintentional. Involuntary manslaughter case law and analysis in Virginia is well-settled. The following analysis is pulled directly from several established legal sources and is not this author's original case analysis To constitute involuntary manslaughter, the “improper” execution of a lawful act must amount to an unlawful commission of that lawful act, demonstrating criminal negligence. West, 273 Va. at 64, 639 S.E.2d at 195; Cable, 243 Va. at 240, 415 S.E.2d at 220; Kirk v Commonwealth, 186 Va. 839, 847, 44 S.£.2d 409, 413 (1947). The Supreme Court has defined criminal negligence in the context of an involuntary manslaughter case in Noakes v. Commonwealth, 280 Va. 338, 345, 699 S.E.2d 284, 288 (2010): "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.’” Noakes, 208 Va. at 346, 699 S.E.2d at 288 (quoting Brown v. Commonwealth, 278 Va. 523, 528-29, 685 S.E.2d 43, 46 (2009)). See Also: Rich v. Commonwealth, 292 Va. 791, 793 S.E.2d 798 (2016). In Noakes, the Supreme Court specifically noted that “the Commonwealth did not need to prove that [the defendant] actually knew or intended that [his] conduct would cause, or would likely cause, [the victim's] death, but rather that [the defendant] should have known [his] acts created a substantial risk of harm to [the victim].” Id. at 346, 699 S.E.2d at 289. 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 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.£.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."", 243 Va. at 240, 415 S.£.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. 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). 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)(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"). Under 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), “it is not necessary for a defendant to foresee the specific manner in which injury occurred." What the legal precedent reflects is that mere negligence, or mere oversight, is not enough for there to be criminal liability. To be more specific to this tragic fact scenario, the failure to see the child in need of aid or saving is not sufficient for criminal liability. Seeing the child in need and failing to act, or failing to even keep the proper lookout for a child having difficultly, would be enough to warrant criminal charges. In this case, however, the facts collected show the adults in question were keeping lookout on the pool, were fulfilling their legal responsibility, but unfortunately failed to see the child before it was too late. There is no evidence of criminal negligence to support criminal charges in this incident. Consequently, no criminal charges will be sought pursuant to this investigation. This opinion letter does not attempt to reach any legal conclusions but those necessary for the criminal investigation, @. Lb W. Wesley Nance, Commonwealth’s Attorney for Bedford County J C