Mosby v. Com., 1434-95-2
| Citation | 23 Va.App. 53,473 S.E.2d 732 |
| Decision Date | 13 August 1996 |
| Docket Number | No. 1434-95-2,1434-95-2 |
| Court | Virginia Court of Appeals |
| Parties | Vicki L. MOSBY v. COMMONWEALTH of Virginia. Record |
Denis C. Englisby (Margaret Ann Englisby; Englisby & Englisby, on brief), Chesterfield, for appellant.
Brian Wainger, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: BENTON, WILLIS and ELDER, JJ.
On appeal from her conviction of negligent child endangerment pursuant to Code § 40.1-103, Vicki L. Mosby contends (1) that Code § 40.1-103 is unconstitutionally vague as applied to her, and (2) that the trial court erred in instructing the jury on simple negligence. We find the statute constitutional as applied to Ms. Mosby. However, because the trial court erred in instructing the jury on simple negligence, we reverse the judgment of the trial court and remand this case for retrial, if the Commonwealth be so advised.
Code § 40.1-103 provides, in pertinent part:
It shall be unlawful for any person employing or having the custody of any child willfully or negligently to cause or permit the life of such child to be endangered or the health of such child to be injured, or willfully or negligently to cause or permit such child to be placed in a situation that its life, health or morals may be endangered....
In Commonwealth v. Carter, 21 Va.App. 150, 462 S.E.2d 582 (1995), we held the second clause of the statute to be unconstitutionally vague. We said:
Manifestly, potential endangerment of a child or children is the gravamen of the offense, and the instant charges arose from a perception by law enforcement officials that the conduct of each defendant may have threatened the "life, health or morals of such children...." By using the term "may," the legislature criminalizes any act which presents a "possibility" of physical or moral harm to the child.
Thus, guided by subjectivity and personal predilection, police and prosecutors in this instance concluded that the factually diverse conduct of each defendant possibly endangered the life, health or morals of minors then in their custody. This determination may have resulted from individual moral imperatives, unique perspectives on the specific conduct, or defendants' mere status. Whatever the motivation and however well-intentioned, the vague and inclusive statutory language clearly failed to adequately inform law enforcement of the precise conduct prohibited by Code § 40.1-103, thereby accommodating arbitrary and discriminatory enforcement.
Id. at 154-55, 462 S.E.2d at 584-85 (citations omitted). In Carter, we went on to say:
However, " 'an act may be valid in one part and invalid in another, and ... that invalid part may be ignored, if after such elimination the remaining portions are sufficient to accomplish their purpose in accordance with the legislative intent....' " Because we find that the offending language of Code § 40.1-103 is severable, the remainder of the statute is undisturbed by this opinion.
Id. at 155, 462 S.E.2d at 585.
On May 23, 1994, Vicki L. Mosby drove from her grandmother's home with her six-week-old son, George Mosby, Jr., on the car seat in a baby carrier. Two miles from her grandmother's house, Ms. Mosby ran off the road and into a cinder block house located 224 feet off the paved surface. The child was thrown from the baby carrier onto the floor behind the driver's seat. He suffered a fractured femur and head injuries. The baby carrier displayed a warning that it was not to be used as a car seat.
Officer Moore testified that upon his arrival at the accident scene, he could smell alcohol on Ms. Mosby and she admitted to him that she had been drinking. Dr. James Valentour, Chief Toxicologist at the State Division of Forensic Science, testified as an expert concerning the effects of alcohol on humans. He testified that Ms. Mosby's blood alcohol content was 0.25 percent, a level that would diminish her coordination and balance and would affect her ability to stand, walk, or drive.
The indictment on which Ms. Mosby was tried specified that on the subject occasion, she
did unlawfully and feloniously having the custody of a child, George L. Mosby, Jr., willfully or negligently cause or permit the life of such child to be endangered or the health of such child to be injured.
This indictment set forth a charge under the clause of Code § 40.1-103 that was excepted from the embrace of Carter. Citing Carter, Ms. Mosby contends that the first clause of Code § 40.1-103, upon which the charge against her was based, is unconstitutionally vague. She argues that the clause fails to define adequately the mens rea element upon which criminal liability for the proscribed conduct may be based. We disagree.
The terms, "willfully" and "negligently" are concepts of long-standing recognition and legal definition. Likewise, criminal liability for willful or culpably negligent conduct is an established principle. These standards are solidly established and are not impermissibly vague.
In Carter, we found impermissibly vague the use of the word "may" in the second clause of Code § 40.1-103. We held that "may" suggested mere possibility and imposed criminal liability for conduct suggesting a mere potential or possibility of endangerment to a child. We held that because such possibility was not readily ascertainable, its employment as a standard for the imposition of criminal liability was impermissibly vague and susceptible to arbitrary enforcement. Such is not the case under the first clause. Ms. Mosby was charged with willfully or negligently subjecting her child not to a possibility of endangerment, but to an actual condition of endangerment. That her child was actually endangered, and was in fact injured, were matters of ready perception, a perception based on existing facts, a perception not vulnerable to arbitrary enforcement.
Thus, we hold that the first clause of Code § 40.1-103 defines readily understandable proscribed conduct and is constitutionally firm.
Second, Ms. Mosby contends that the trial court erred in instructing the jury on simple negligence. We agree.
The trial court gave the...
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