PULASKI COUNTY, Va. (WFXR) — More than two months after a five-year-old boy died after drowning at a YMCA pool in Pulaski County, the special prosecutor for the case announced that criminal charges will not be filed.

The Pulaski Police Department says officers — along with members of the Pulaski Fire Department and the Pulaski County Department of Public Safety — responded to the YMCA at 615 Oakhurst Avenue around 2:30 p.m. on Dec. 6, 2021 for a potential drowning.

A five-year-old boy was found unresponsive at the scene, transported to LewisGale Pulaski, and airlifted to Roanoke Memorial Hospital. He was then pronounced dead shortly after 10:15 p.m., according to police.

Officials say the medical examiner determined that the cause of death for the boy — identified as Auston Wingo, a student at Critzer Elementary School in Pulaski — was drowning.

Due to a personal and financial relationship between the Pulaski County Commonwealth’s Attorney and the Pulaski County YMCA, the Bedford County Commonwealth’s Attorney was brought in to handle the investigation into the child’s death.

Bedford County Commonwealth’s Attorney W. Wesley Nance told WFXR News on Thursday, Feb. 17 that he was appointed to review the incident as special prosecutor, which means he was limited to reviewing the incident to see whether any of the actions — or lack thereof — warranted criminal charges.

According to Nance, the investigation included interviews with YMCA employees who were working the day the drowning was reported; a nonemployee adult who was present at the time of the incident; and the law enforcement officers who responded, including an off-duty officer who was on the YMCA property when the 911 call came in and immediately responded to the dispatch. Medical records and surveillance video were also collected for the investigation.

Nance says the preliminary findings discovered that the Oakhurst Avenue YMCA had a larger number of children than usual at the facility’s program due to Pulaski County Public Schools holding a virtual learning day.

However, only four employees — including one designated and trained lifeguard — were reportedly assigned to watch all 38 children, most of whom were in the pool.

At the time of the drowning incident, Nance says the lifeguard was watching the whole pool, one employee watched the shallow end while another watched the deep end, and one employee was taking children back and forth to the restroom. Meanwhile, the non-employee adult was waching their own children swim, but remembered the employees being attentive and the lifeguard blowing her whistle routinely to correct the behavior of the children in the pool.

Once people noticed that Wingo was not moving in the deep end of the pool, he was pulled out and life-saving measures were performed by the employees, the off-duty law enforcement officer, and the first responders until he was transported to the hospital, where he later died.

Nance told WFXR News that the results of his investigation indicate Wingo’s death was not an intentional act. In addition, he says there is no evidence of criminal negligence in this incident, so criminal charges will not be pursued in connection with Wingo’s death.

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 difficulty, 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.

W. Wesley Nance, Commonwealth’s Attorney for Bedford County

You can read Nance’s full statement below:

This is a developing story.