COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Elder and Senior Judge Cole
Argued at Richmond, Virginia
ALICE VIRGINIA RIGGS
MEMORANDUM OPINION * BY
v. Record No. 1892-95-2 JUDGE LARRY G. ELDER
SEPTEMBER 10, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Walter W. Stout, III, Judge
Robert P. Geary for appellant.
Kathleen B. Martin, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Alice Virginia Riggs (appellant) appeals her conviction for
violating Code § 40.1-103 by willfully or negligently causing or
permitting her children to be placed in a situation where their
lives, health or morals may have been endangered. Appellant
contends that the evidence did not support her conviction and
that the clause of Code § 40.1-103 under which she was convicted
is unconstitutional. Because the evidence did not support it, we
reverse and dismiss her conviction.
On March 30, 1995, a police officer observed appellant and
her boyfriend purchase drugs from their vehicle, in which
appellant's three-year-old twins sat as passengers. Appellant
and her boyfriend later placed the drugs in a cigarette pack on
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
the dashboard, within reach of the children, as they exited the
vehicle to purchase fast-food. Police arrested appellant and her
boyfriend outside their vehicle, and the Commonwealth charged
appellant with possession of cocaine and cruelty to children.
After the Commonwealth presented its evidence at trial on
July 17, 1995, appellant moved to strike, arguing that Code
§ 40.1-103 did not apply to the facts of her case because the
evidence did not prove that she may have endangered her children.
Appellant also argued that the statutory language was overly
broad and that it deprived her of due process of the law. The
trial court, sitting without a jury, overruled appellant's motion
and convicted her of the two charges. The trial court sentenced
appellant on August 18, 1995. On October 10, 1995, this Court
decided Commonwealth v. Carter, 21 Va. App. 150, 462 S.E.2d 582
(1995), in which we declared the portion of Code § 40.1-103 under
which appellant was convicted to be unconstitutionally
void-for-vagueness.
First, we note that appellant procedurally defaulted
consideration of the constitutional void-for-vagueness issue at
both the trial and appellate stages. Because appellant never
specifically raised the void-for-vagueness issue at the trial
court level, Rule 5A:18 bars her from raising it on appeal. We
cannot apply Rule 5A:18's ends of justice exception because
appellant's sole assignment of error in her petition for appeal,
filed three months after this Court decided Carter, was that the
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evidence did not support her conviction. Pursuant to Rule 5A:12,
we may consider only the questions presented in appellant's
petition for appeal. Appellant therefore limits us to
considering whether the evidence supported her conviction.
When a party challenges the sufficiency of the evidence on
appeal, we must construe the evidence in the light most favorable
to the Commonwealth, granting to it all reasonable inferences
fairly deducible therefrom. Higginbotham v. Commonwealth, 216
Va. 349, 352, 218 S.E.2d 534, 537 (1974).
Under the relevant clause of Code § 40.1-103, a person
having custody of a child may not "willfully or negligently []
cause or permit such child to be placed in a situation that its
life, health or morals may be endangered . . . ." The
Commonwealth argues that the evidence proved appellant violated
this part of the statute when she purchased cocaine in front of
her young children and momentarily left them in the vehicle where
they could reach the cocaine.
Even viewed in the light most favorable to the Commonwealth,
we hold that the evidence does not support appellant's conviction
beyond a reasonable doubt. The facts do not prove that
appellant's actions may have endangered the life, health or
morals of her three-year-old children. No evidence showed that
either appellant or her boyfriend ingested the drugs before or
while operating the vehicle, or that the children understood
their mother had just purchased illegal drugs and the moral
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significance associated thereto. The Commonwealth's decision to
prosecute appellant under this statutory section "may have
resulted from individual moral imperatives [or] unique
perspectives on [appellant's] specific conduct," Carter, 21 Va.
App. at 154, 462 S.E.2d at 585, but appellant's conviction was
not supported by sufficient evidence of actions that may have
endangered her children.
For the foregoing reasons, we reverse and dismiss
appellant's conviction.
Reversed and dismissed.
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