UPDATE: Judge reverses decision in mother's conviction of Noah Thomas
An appeals court reversed Noah Thomas' mother's conviction in his death.
Ashley White was charged with child abuse and neglect after her son, Noah Thomas, fell into a septic tank at his Pulaski County home in 2015.
She argued there was insufficient evidence proving she committed a willful act or willful omission that caused Noah's death, according to the court opinion.
The opinion says White left Noah and her infant daughter alone on Sunday, March 22, while she drove her husband to work.
According to the opinion, when White got home, she took a dose of Suboxone and watched television with her son until she fell asleep.
It says she woke up to the sound of her daughter crying and noticed Noah was missing.
According to the court opinions, White called 911 and law enforcement looked in and around the septic tank on the property for four days until it was drained, and Noah's body was discovered.
It says the tank's lid was ensured to be childproof back in 2002.
The court opinion says White began renting the home in 2010, and the landlord had never drained the tank, but had mowed around it.
The landlord testified during court that he had never removed any toys from the tank.
In the court opinion, White says she saw Noah stand on top of the lid about two months before his death and made him promise to never do that again.
The court says in order to convict White, the Commonwealth was required to show that White left her son unsupervised with "reckless disregard" for his safety and with the "knowledge and consciousness" that the lack of supervision would "likely result in injury."
The court says Noah was capable of unlocking doors, liked to play outside by himself, and that his favorite place to play was near the septic tank.
"However, the mere presence of potential hazards in the yard, such as a swimming pool, pond, or septic tank, is not sufficient to find that White was advertent to the likelihood that lack of supervision would result in serious injury," the court opinion reads.
It says there was no concrete evidence White knew the septic tank posed a hazard to her young son.As tragic as the facts of this case are, to affirm this conviction would be to hold that Code § 18.2-371.1 requires a parent to search out potential dangers and continuously supervise his or her child. A parent could be subject to a felony conviction if he or she failed to recognize the danger posed by the unsecured tank cover, the unlatched gate, the rotted board, the unfenced pond, or any other hazard that, in hindsight, could have been corrected. Simply put, we conclude that the General Assembly, by requiring proof of a willful act or omission, intended a much higher mens rea than the evidence establishes in this case. Here, the evidence was insufficient to show that White left her son unsupervised with "the knowledge and consciousness that injury would result."
The report concluded that White's conviction was reversed and the indictment dismissed.
The court says the trail court should enter a final sentencing that reflects the reversal.