PULASKI, Va. – One of the convictions against the mother of drowned 5-year-old Noah Thomas was overturned Tuesday by the Court of Appeals of Virginia.
The reversal means Ashley White is not criminally responsible for the 2015 septic tank drowning of her son Noah. The majority opinion was written by Judge William G. Petty.
While the two lesser charges -- two counts of Class 6 felony child abuse -- still stand, the most severe charge of Class 4 felony child abuse and neglect was reversed.
Legal expert Phillip Kline, an assistant professor of law at Liberty University's law school, said this means that the court ruled willingness, or intent could not be proved.
Kline explained that a Class 4 felony of child abuse and neglect is a much higher charge than a Class 6 and requires that the intent or willingness to harm the child be proved.
White told a judge that after she returned home from taking her husband to work, she took a prescription of suboxone, a drug used to treat those addicted to opioids, then fell asleep. According to her testimony, she said when she woke up, Noah was missing. She said during testimony that she never imagined her son was in danger of drowning while taking a nap.
Kline explained that the judge reversed the decision because a court could not rule that White meant, or willingly took an action that would intend to harm Noah.
“There was no intent. No evidence of intent. In fact the prosecutor indicated that this was a matter of her falling asleep, and he argued that this was a danger out there that she should have known about and that does not constitute intentional harm,” Kline said.
Despite the conviction now being overturned, White has served all of her 23-month sentence and although the Virginia Attorney General's Office has the option to request her charges be heard again by all 10 appellate court judges, it has made no indication yet that will be done.
White’s criminal record will now only reflect the lesser charges. Kline said White is not likely to win a suit against the commonwealth if she pursued one, although there has been no indication at this time that she will.
“From where I sit I do not see any reason or justification for a lawsuit against the Commonwealth. There’s no evidence of wrongdoing by law enforcement or those involved and law enforcement enjoys fairly broad immunity from suit," Kline said.
Kline said, however, the reversal could impact White in the future when it comes to custody of her younger child.
"The impact on the person convicted is dramatically different depending on the seriousness of the felony. Not only for the initial sentence but if they were to find themselves in that situation dealing with child custody later, or another type of conviction, your criminal history has an impact on all of those things,” Kline said.