COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
COMMONWEALTH OF VIRGINIA
v. Record No. 1022-95-1 OPINION BY
JUDGE RICHARD S. BRAY
TRACI RAE CARTER, OCTOBER 10, 1995
ROBERT W. McPHERSON, JR. and
JUANITA D. REBERIO
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
John K. Moore, Judge
Thomas C. Daniel, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellant.
Larry B. Slipow (Slipow, Robusto & Kellam,
P.C., on brief), for appellee Traci Rae Carter.
No brief or argument for appellees Robert W.
McPherson, Jr. and Juanita D. Reberio.
Traci Rae Carter, Robert W. McPherson, Jr., and Juanita D.
Reberio (defendants) were indicted for "willfully or negligently
caus[ing] or permit[ting]" minors in their "care . . . to be placed
in a situation that their life, health, or morals may be
endangered," in violation of Code § 40.1-103. Arguing that the
statutory language is unconstitutionally vague, defendants moved to
dismiss the indictments, and the trial court sustained the motions.
The Commonwealth appeals, contending that the statute is
constitutionally sound. We disagree and affirm the decision of the
trial court.
In the absence of trial, the three records before the Court
reflect only brief procedural histories and little facts. Although
the indictments alleged no specific offending conduct, the record
otherwise indicates that defendants Carter and Reberio had been
charged with driving an automobile while under the influence of
alcohol (DUI), and defendant McPherson with "public intoxication."
These offenses were allegedly committed by defendants while a
minor was in their care and custody, prompting the indictments for
conduct which may have endangered the "life, health or morals" of
such child.
Code § 40.1-103 is found in Chapter 5, designated "Child
Labor," of Title 40.1, "Labor and Employment," and provides that
[i]t shall be unlawful for any person employing
or having 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, or to cause or permit
such child to be overworked, tortured,
tormented, mutilated, beaten or cruelly
treated. Any person violating this section
shall be guilty of a Class 6 felony.
(Emphasis added). Defendants' constitutional challenge is limited
to the italicized language of the statute, which was substantially
repeated in the indictments.
"In assessing the constitutionality of a statute, we must
presume that the legislative action is valid." Perkins v.
Commonwealth, 12 Va. App. 7, 14, 402 S.E.2d 229, 233 (1991).
"Generally, the words and phrases used in a statute should be given
their ordinary and usually accepted meaning . . . ." Woolfolk v.
Commonwealth, 18 Va. App. 840, 847, 447 S.E.2d 530, 534 (1994).
"'If a statute can be made constitutionally definite by a
reasonable construction, the court is under a duty to give it that
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construction.'" Perkins, 12 Va. App. at 14, 402 S.E.2d at 233
(quoting Pederson v. City of Richmond, 219 Va. 1061, 1065, 254
S.E.2d 95, 98 (1979)). When, as here, a statutory challenge does
not implicate a constitutionally protected right, the "narrow
question is whether [the legislation] is vague as applied to the
defendant[s'] conduct . . . ." Woodfin v. Commonwealth, 236 Va.
89, 92, 372 S.E.2d 377, 379 (1988), cert. denied, 490 U.S. 1009
(1989). "The burden is on the challenger to prove the alleged
constitutional defect." Perkins, 12 Va. App. at 14, 402 S.E.2d at
233.
In undertaking a void-for-vagueness analysis, we are guided by
a well established two-prong test. First, a penal statute, "when
measured by common understanding and practices," must define the
proscribed conduct with sufficient particularity to "warn a person
as to what behavior is prohibited . . . ." Stein v. Commonwealth,
12 Va. App. 65, 69, 402 S.E.2d 238, 241 (1991). Secondly, the
statutory language must not encourage arbitrary and discriminatory
enforcement. Kolender v. Lawson, 461 U.S. 352, 357 (1983); Smith
v. Goguen, 415 U.S. 566, 572-73 (1974). This second prong
recognizes "'the requirement that a legislature establish minimal
guidelines to govern law enforcement'" and has been described as
"the more important aspect of [the] vagueness doctrine." Kolender,
461 U.S. at 358 (citation omitted). It forbids the impermissible
delegation of "'basic policy matters to policemen, judges, and
juries for resolution on an ad hoc and subjective basis, with the
attendant dangers of arbitrary and discriminatory applications.'"
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Stein, 12 Va. App. at 69, 402 S.E.2d at 240-41 (quoting Grayned v.
City of Rockford, 408 U.S. 104, 108-09 (1972)).
Here, defendants were charged with a violation of Code
§ 40.1-103 arising from conduct related to alleged intoxication
while children were in their care and custody. 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. However,
neither intoxication nor other specific behavior, criminal or
otherwise, is a necessary element of the felonious endangerment
contemplated by the statutory language in issue. By using the term
"may," the legislature criminalizes any act which presents a
"possibility" of physical or moral harm to the child. See
Webster's Ninth New Collegiate Dictionary 734 (1989).
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
1
status. Whatever the motivation and however well-intentioned, the
vague and inclusive statutory language clearly failed to adequately
1
In construing Code § 46.2-357(B), we held that DUI, per se,
"was not . . . conduct dangerous to life, limb, or property of
another" within the intendment of that statute. Bishop v.
Virginia, 20 Va. App. 206, 211, 455 S.E.2d 765, 766 (1995).
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inform law enforcement of the precise conduct prohibited by Code
§ 40.1-103, thereby accommodating arbitrary and discriminatory
enforcement. See Coleman v. City of Richmond, 5 Va. App. 459, 466,
364 S.E.2d 239, 243-44, reh'g denied, 6 Va. App. 296, 368 S.E.2d
298 (1988).
We do not suggest that DUI or other alcohol-related misconduct
may not sufficiently endanger children to warrant criminal
sanction. Code § 18.2-270 presently imposes an enhanced punishment
for persons convicted of DUI "while transporting a person seventeen
years of age or younger," and Code § 18.2-371.1 punishes the
"reckless disregard" of the life of a child by "any parent,
guardian, or other person responsible for the care" of such child.
However, the constitutionally infirm language of Code § 40.1-103
in issue here is not a proper vehicle to prosecute such behavior.
Accordingly, we find the provision of Code § 40.1-103, which
declares it a Class 6 felony "for any person . . . having custody
of any child . . . to . . . willfully or negligently . . . cause or
permit such child to be placed in a situation that its life, health
or morals may be endangered," unconstituionally vague. 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 . . . .'" Willis v.
Commonwealth, 10 Va. App. 430, 442, 393 S.E.2d 405, 411 (1990)
(quoting Strawberry Hill Land Corp. v. Starbuck, 124 Va. 71, 77, 97
S.E. 362, 364 (1918)). Because we find that the offending language
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of Code § 40.1-103 is severable, the remainder of the statute is
undisturbed by this opinion.
Affirmed.
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