COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Elder
Argued at Richmond, Virginia
VICKI L. MOSBY
OPINION BY
v. Record No. 1434-95-2 JUDGE JERE M. H. WILLIS, JR.
AUGUST 13, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge
Denis C. Englisby (Margaret Ann Englisby;
Englisby & Englisby, on brief), for
appellant.
Brian Wainger, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
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.
I.
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.
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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
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§ 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
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constitutionally firm.
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II.
Second, Ms. Mosby contends that the trial court erred in
instructing the jury on simple negligence. We agree.
The trial court gave the following instructions:
INSTRUCTION NO. 8
The Court instructs the jury that the
negligence alleged in the crimes in this case
is something called "criminal negligence".
Gross or culpable negligence is that which
indicates a callous disregard of human life
and of the probable consequences of the
defendant's act. Criminal liability cannot
be predicated upon every act carelessly or
negligently performed merely because such
carelessness or negligence results in harm or
even the death of another. In order for
criminal liability to result from negligence,
it must necessarily be reckless or wanton and
of such a character as to show disregard of
the safety of others under circumstances
likely to cause injury or death. Unless you
believe from the evidence beyond a reasonable
doubt the defendant was guilty of negligence
so culpable or gross as to indicate a callous
disregard of human life and of the probable
consequences of his act, you cannot find him
guilty of these charges.
INSTRUCTION NO. 9
Negligence is the doing of some act
which an ordinarily careful and prudent man
under like circumstances would not do by
reason of which another person is endangered
in life or bodily safety. The word
"ordinary" is synonymous with "reasonable" in
this connection.
INSTRUCTION NO. 10
Negligence is more than mere
inadvertence or misadventure; it is
recklessness or indifference incompatible
with a proper regard for human life.
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INSTRUCTION NO. 11
Negligent conduct constitutes a great
departure from that of a reasonable person
which creates a great risk of injury to
others.
Code § 40.1-103 is a criminal statute. See Johnson v.
Commonwealth, 211 Va. 815, 180 S.E.2d 661 (1971) (predecessor
statute, Code § 40-112, declared a criminal statute). Although
the statute contains the word "negligently," a mens rea
requirement must be read into it. See Maye v. Commonwealth, 213
Va. 48, 49, 189 S.E.2d 350, 351 (1972).
Code § 40.1-103, being a criminal statute, requires proof of
a greater degree of negligence than is required in a civil
action. "The negligence required in a criminal proceeding must
be more than the lack of ordinary care and precaution. It must
be something more than mere inadvertence or misadventure. It is
a recklessness or indifference incompatible with a proper regard
for human life." Bell v. Commonwealth, 170 Va. 597, 611, 195
S.E. 675, 681 (1938). The negligence must be "so gross and
culpable as to indicate a callous disregard of human life and of
the probable consequences of his act." Keech v. Commonwealth, 9
Va. App. 272, 277, 386 S.E.2d 813, 815 (1989) (quoting Goodman v.
Commonwealth, 153 Va. 943, 952, 151 S.E. 168, 171 (1930)).
Instruction 8 correctly set forth the definition of criminal
negligence. Instruction 10 was correct when read with
Instruction 8. However, Instructions 9 and 11 were erroneous.
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Neither defined criminal negligence. They invited the imposition
of criminal liability upon a finding of simple negligence.
Because we cannot say that this invitation could not have
influenced the verdict, we hold that the giving of these
instructions was reversible error.
The judgment of the trial court is reversed and this case is
remanded for retrial, if the Commonwealth be so advised.
Reversed and remanded.
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