                      COURT OF APPEALS OF VIRGINIA


Present: Judges Bumgardner, Humphreys and Clements
Argued at Richmond Virginia


SHARON PEACE
                                          MEMORANDUM OPINION * BY
v.   Record No. 2651-99-2                JUDGE ROBERT J. HUMPHREYS
                                             NOVEMBER 14, 2000
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF ESSEX COUNTY
                  Horace A. Revercomb, III, Judge

          Joseph D. Morrissey (James T. Maloney;
          Morrissey & Hershner, PLC, on brief), for
          appellant.

          Kathleen B. Martin, Assistant Attorney
          General (Mark L. Earley, Attorney General,
          on brief), for appellee.


     Sharon Peace appeals her convictions after a bench trial for

contributing to the delinquency of a minor and maintaining a

common nuisance.   Peace contends that the trial court erred in

finding the evidence sufficient to convict her of these offenses.

     "Where the sufficiency of the evidence is challenged after

conviction, it is our duty to consider it in the light most

favorable to the Commonwealth and give it all reasonable

inferences fairly deducible therefrom.    We should affirm the

judgment unless it appears from the evidence that the judgment

is plainly wrong or without evidence to support it.     Code

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
§ 8-491."     Higginbotham v. Commonwealth, 216 Va. 349, 352, 218

S.E.2d 534, 537 (1975).

     Furthermore, "[a]n appellate court must discard all

evidence of the accused that conflicts with that of the

Commonwealth."     Martin v. Commonwealth, 4 Va. App. 438, 443, 358

S.E.2d 415, 418 (1987).    "The credibility of witnesses, the

weight accorded testimony, and the inferences to be drawn from

proven facts are matters to be determined by the fact finder."

Long v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476

(1989).   The judgment of a trial court will be disturbed on

appeal only if plainly wrong or unsupported by the evidence.

See Code § 8.01-680.

     In the present case, the relevant evidence established that

Peace was a single parent who, between the time period of June 1,

1998 and March 15, 1999, attended nursing classes and worked

several hours out of each day of the week.    Her son, Sean Peace,

who was 15 years of age, lived with her at her home.   Sean lived

in the garage of Peace's house.    The garage was detached from the

main house by a distance of about four feet.

     During this time period, several of Sean's friends from Essex

High School, ranging in ages from fourteen to nineteen, would

visit Sean in his garage bedroom and smoke marijuana, cigarettes

and cigars.    Marijuana was often passed between the individuals

who were there at the time, and one individual sold marijuana

while there.

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       Peace claimed that she knew nothing about the marijuana.

However, several young men testified at trial that Peace would

often enter the room just after they had been smoking marijuana.

Sean and his friends usually kept the door to the garage locked

while they were smoking marijuana and when they heard Peace try to

enter, they would hide it and burn candles and incense, and smoke

cigarettes and cigars to cover up the smell.   Despite this effort,

at least one "bong" and some number of "bowls", used as smoking

paraphernalia, were often in view when Peace would enter the room.

       On one occasion when Peace entered the garage after Sean and

his friends had been smoking marijuana, cigarettes, and cigars,

she stated that "they were not to be doing it with the garage door

open".   She often told the kids that "it shouldn't be happening,"

"don't do it . . . or get out".

       In addition, at some point, Peace saw a "bong" in Sean's room

and told the kids to "get rid of it, or she was going to trash

it."   She later told the owner of the bong to "get rid of it" and

that "she didn't want [it] in her house".

       Code § 18.2-371 provides, in pertinent part, that:

            Any person eighteen years of age or older,
            including the parent of any child, who (i)
            willfully contributes to, encourages, or
            causes any act, omission, or condition which
            renders a child delinquent, in need of
            services, in need of supervision, or abused
            or neglected as defined in § 16.1-228
            . . . shall be guilty of a Class 1
            misdemeanor.

(Emphasis added.)

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       "'Willful' generally means an act done with a bad purpose,

without justifiable excuse, or without ground for believing it

is lawful.   The term denotes 'an act which is intentional, or

knowing, or voluntary, as distinguished from accidental.'      The

terms 'bad purpose' or 'without justifiable excuse,' while

facially unspecific, necessarily imply knowledge that particular

conduct will likely result in injury or illegality."     Ellis v.

Commonwealth, 29 Va. App. 548, 554, 513 S.E.2d 453, 456 (1999).

       The trial court found that, based on the evidence, there

was "no doubt" Peace "knew what was going on."   Accordingly, the

court held that by Peace's failure to act, she "encouraged" the

activity, within the meaning of the statute.   The trial court

also stated "I think it may be under the omission part of the

Statute."    On appeal, Peace contends that the evidence was

insufficient to prove that she had any knowledge the activity

was taking place.   She also argues that the evidence failed to

prove she "encouraged" the activity, or "willfully" omitted to

act.

       "Where inferences are relied upon to establish guilt, they

must point to guilt so clearly that any other conclusion would

be inconsistent therewith."    Person v. Commonwealth, 10 Va. App.

36, 38, 398 S.E.2d 907, 909 (1990)(citation omitted).

"Inferences may be taken from proved circumstances only to the

extent those inferences are reasonable and justified."     Webb v.

Commonwealth, 204 Va. 24, 34, 129 S.E.2d 22, 29 (1963).

                                - 4 -
"Furthermore, where the Commonwealth's evidence as to an element

of an offense is wholly circumstantial, 'all necessary

circumstances proved must be consistent with guilt and

inconsistent with innocence and exclude every reasonable

hypothesis of innocence.'"   Moran v. Commonwealth, 4 Va. App.

310, 314, 357 S.E.2d 551, 553 (1987) (citation omitted).

However, "[t]he factfinder need not believe an accused's

explanation and, if that explanation is not believed, may infer

that the accused is lying to conceal his guilt."    Phan v.

Commonwealth, 258 Va. 506, 511, 521 S.E.2d 282, 284 (1999).

     Viewing the evidence in the light we must, we find that the

trial court could conclude, beyond a reasonable doubt, that

Peace knew her son and his friends were smoking marijuana.

However, we do not agree that by failing to act on this

knowledge, Peace "willfully" "encouraged" the activity within

the meaning of the statute, nor that she engaged in a "willful"

"omission" to act.

     First, the word "encourage" is not defined in the statute

itself, nor do we find a controlling definition of the word, so

we look to other sources to define its meaning.    Webster's Third

New International Dictionary defines "encourage" as "to give

courage to," to "inspire with courage, spirit, or hope," to

"hearten," "to spur on," to "stimulate," to "incite," "to give

help or patronage," to "foster," "to call forth," to "produce,"



                               - 5 -
or "create."    Webster's Third New International Dictionary

(1993).

       Each of these defining terms describes the word as

encompassing an affirmative act, not an omission or failure to

act.   Here, there was no evidence which established that Peace

took any affirmative act to "encourage" Sean and his friends to

smoke marijuana.   In fact, the trial court specifically stated

that the evidence did not establish that she "caused" the

activity.

       In addition, the trial court found, as a matter of fact,

that when Peace found the bong, "she was upset," "she was very

blunt," and told the owner to "get rid of it."   We do not agree

that Peace's action in this regard constitutes willfully

"encouraging" the activity.   Instead, a reasonable inference is

that Peace was attempting, although unsuccessfully and perhaps

ineffectually, to discourage the activity.    Moreover, based on

these facts and the reasonable inference already noted, we

cannot find as a matter of law that Peace omitted to act.

Accordingly, we reverse and dismiss the conviction for

contributing to the delinquency of a minor.

       By holding here that Peace did not "encourage" the activity

by failing to act, and by finding that based on these facts

there was no willful omission, we do not find that a parent's

refusal to act may never fall within the statute.   However, in

this case, the evidence simply does not establish a willful

                                - 6 -
omission to act which proximately resulted in a continuation of

delinquent activity.

     Next, Code § 18.2-258 provides:

            A. Any . . . dwelling house, apartment,
            building of any kind . . . which with the
            knowledge of the owner . . . is frequented
            by persons under the influence of illegally
            obtained controlled substances or marijuana,
            as defined in § 54.1-3401, or for the
            purpose of illegally obtaining possession
            of, manufacturing or distributing controlled
            substances or marijuana, or is used for the
            illegal possession, manufacture or
            distribution of controlled substances or
            marijuana, shall be deemed a common
            nuisance. Any such owner . . . who knowingly
            permits, establishes, keeps or maintains
            such a common nuisance is guilty of a Class
            1 misdemeanor . . . .

     The statute very clearly requires 1) that the owner of the

premises have knowledge that it is being frequented for the

purpose of the illegal possession and distribution of marijuana,

and 2) that the owner knowingly permit, keep, or maintain the

nuisance.     See St. Clair v. Commonwealth, 174 Va. 480, 5 S.E.2d

512 (1939).

     Peace again argues that the evidence was insufficient to

prove her knowledge of the marijuana use and was therefore

inadequate to support a conviction pursuant to this statute.

However, as we have noted above, we find that the trial court

reasonably concluded that Peace knew about the marijuana.

     Nevertheless, Peace did not "establish," "keep," or

"maintain" the premises for the purpose of the prohibited


                                 - 7 -
activity, as indicated by the factual findings of the trial

court referenced above.   The question is whether Peace, by

knowing about the illegal activity and, as the trial court

stated, "allowing [it] to continue," "permitted" the activity.

Given the trial court's factual findings, we do not find that

there is any evidence in this record to establish that Peace

"permitted" the activity within the meaning of Code § 18.2-258.

     The Supreme Court of Virginia has noted that "Webster's

International Dictionary, 2d ed. defines the verb 'permit' to

mean 'to allow the act or existence of; to consent to expressly

or formally; to grant (one) license or liberty; to authorize; to

give leave.'   The word 'allow' is not as positive as the word

'permit,' being more of a synonym with the word 'suffer,' while

the word 'permit' denotes a decided assent."   Nolde Bros. v.

Chalkley, 184 Va. 553, 566-567, 35 S.E.2d 827, 833

(1945)(citation omitted).

     The trial court found no such affirmative act or "decided

assent" in this case, and very clearly indicated that Peace did

not "allow" the activity by finding that she became upset and

discouraged the activity when she was confronted with it.

     Accordingly, we also reverse and dismiss Peace's conviction

under § 18.2-258.

                                         Reversed and dismissed.




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