Blake v. Commonwealth

Present: All the Justices

MAUREEN ANNE BLAKE
OPINION BY
v. Record No. 140081 JUSTICE LEROY F. MILLETTE, JR.
October 31, 2014
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal we consider whether Code § 22.1-254,

requiring compulsory school attendance, can be used to

prosecute parents or guardians whose children are tardy for

school. For the reasons stated below, we conclude that it

cannot.

I. Facts and Proceedings

Maureen Anne Blake was convicted by the Circuit Court of

Loudoun County of three counts of a Class 3 misdemeanor under

Code § 22.1-263, enforcing Code § 22.1-254, Virginia's

compulsory school attendance law, for failing to ensure that

her children arrived at school in a timely manner.

Blake is a divorced mother of three minor children, ages

8, 10, and 11. She shares joint custody with her ex-husband.

She has custody of the children on Wednesday nights and is

responsible for transporting the children to school on Thursday

mornings. From September 15, 2011 through January 19, 2012,

the period charged in the warrants brought against Blake, the

children were repeatedly tardy to school on Thursdays. Within

the time period of the warrants, the children were tardy two of
the three Thursdays in September, two of the four Thursdays in

October, one of the three Thursdays in which school was in

session in November, all three Thursdays that school was in

session in December, and two of the three Thursdays in January. 1

The tardiness generally ranged from five to twenty minutes in

length.

The tardiness of the children on Thursdays was universally

marked as unexcused. The children's record showed no other

unexcused tardiness. The school's attendance officer sent the

defendant a letter on November 3, 2011, containing language

attempting to convey defendant's duty to send the children to

school on time. 2 Blake indicated in a December conference with

the attendance officer that she and one of her children had

been diagnosed with Attention Deficit Hyperactivity Disorder

(ADHD) and that one of her other children was currently being

tested. Blake stated that some of the tardiness was

attributable to the ADHD, either due to behavioral problems on

the part of the children or due to Blake's own ADHD, for which

she was getting treatment. It was determined by the school

1
The exact number and dates of the tardies were stipulated
to at trial and presented to the circuit court in a document
that was not entered into evidence and thus not in the record
before this Court. However, the Commonwealth’s Attorney gave
the above recitation without objection in his closing argument.
2
Receipt of this letter was acknowledged by the defendant,
but the letter was not entered into evidence.

2
that none of the reasons proffered were sufficient to mark the

tardies as "excused."

Blake was prosecuted under Code §§ 22.1-254 and -263. The

circuit court heard the case on appeal from convictions in the

Loudoun County Juvenile and Domestic Relations Court, and

convicted her of three Class 3 misdemeanors, one per child.

Each misdemeanor was based on five instances of tardiness, from

December 1, 2011 to January 19, 2012 (the period after the

circuit court found effective notice by means of the November

letter but still within the warrant period).

Blake appealed to the Court of Appeals of Virginia,

seeking review as to whether Code § 22.1-254(A) could be

applied to prosecute tardiness when a child was otherwise

enrolled in and regularly attending school. A divided panel of

the Court of Appeals affirmed her convictions in an unpublished

opinion. Blake v. Commonwealth, Record No. 1751-12-4, 2013 Va.

App. LEXIS 339, at *19 (November 19, 2013). Defendant sought a

rehearing en banc, but her petition was denied. Blake then

appealed to this Court, and we granted review as an issue of

significant precedential value under Code § 17.1-410(B).

II. Analysis

The dispositive threshold issue in this case is whether

Code § 22.1-254(A) can be construed in a manner that

encompasses tardiness. If Code § 22.1-254(A) cannot be so

3
construed, Blake cannot be prosecuted under this Code section

and the rest of the assignments of error in this case are

rendered moot. See, e.g., DurretteBradshaw, P.C. v. MRC

Consulting, L.C., 277 Va. 140, 142 n.*, 670 S.E.2d 704, 705 n.*

(2009) (addressing only one assignment of error that is

dispositive).

A. Standard of Review

Whether Code § 22.1-254(A) should be construed as

applicable to tardiness is a question of statutory

interpretation; it therefore "'presents a pure question of law

and is accordingly subject to de novo review by this Court.'"

Warrington v. Commonwealth, 280 Va. 365, 370, 699 S.E.2d 233,

235 (2010) (quoting Jones v. Commonwealth, 276 Va. 121, 124,

661 S.E.2d 412, 414 (2008)). While we view the facts in the

light most favorable to the prevailing party below, in this

instance, the Commonwealth, see Perry v. Commonwealth, 280 Va.

572, 578, 701 S.E.2d 431, 435 (2010), we will nonetheless

review de novo the scope and application of the statute under

which the defendant was convicted. See Findlay v.

Commonwealth, 287 Va. 111, 114, 752 S.E.2d 868, 870 (2014);

Covel v. Town of Vienna, 280 Va. 151, 158, 167, 694 S.E.2d 609,

613, 616-17 (2010); Muhammad v. Commonwealth, 269 Va. 451, 479,

619 S.E.2d 16, 31 (2005)("the legal viability of the

4
Commonwealth's theories" for imposing guilt under a statute

reviewed de novo).

B. Definition of "Send" in Code § 22.1-254(A)

1. The Term "Send" in Code § 22.1-254(A) is Ambiguous

"When construing a statute, our primary objective is 'to

ascertain and give effect to legislative intent,' as expressed

by the language used in the statute." Cuccinelli v. Rector &

Visitors of the Univ. of Va., 283 Va. 420, 425, 722 S.E.2d 626,

629 (2012) (quoting Commonwealth v. Amerson, 281 Va. 414, 418,

706 S.E.2d 879, 882 (2011) (internal quotation marks omitted)).

To best ascertain that intent, "'[w]hen the language of a

statute is unambiguous, we are bound by the plain meaning of

that language.'" Kozmina v. Commonwealth, 281 Va. 347, 349, 706

S.E.2d 860, 862 (2011) (quoting Conyers v. Martial Arts World

of Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178

(2007)).

To determine whether language is ambiguous, we must

consider whether "the text can be understood in more than one

way or refers to two or more things simultaneously [or]

whe[ther] the language is difficult to comprehend, is of

doubtful import, or lacks clearness or definiteness." Boynton

v. Kilgore, 271 Va. 220, 227 n.8, 623 S.E.2d 922, 926 n.8

(2006) (citation and internal quotation marks omitted).

Code § 22.1-254(A) reads as follows:

5
 Except as otherwise provided in this article, every
parent, guardian, or other person in the Commonwealth
having control or charge of any child who will have
reached the fifth birthday on or before September 30
of any school year and who has not passed the
eighteenth birthday shall, during the period of each
year the public schools are in session and for the
same number of days and hours per day as the public
schools, send such child to a public school or to a
private, denominational, or parochial school or have
such child taught by a tutor or teacher of
qualifications prescribed by the Board of Education
and approved by the division superintendent, or
provide for home instruction of such child as
described in § 22.1-254.1.

(Emphasis added.)

The word "send" has a variety of different definitions,

but to determine whether it is ambiguous, we must consider the

term in context. "'A statute is not to be construed by

singling out a particular phrase.'" Eberhardt v. Fairfax Cnty.

Employees' Retirement Sys. Bd. of Trustees, 283 Va. 190, 195,

721 S.E.2d 524, 526 (2012) (quoting Virginia Elec. & Power Co.

v. Board of Cnty. Supervisors, 226 Va. 382, 388, 309 S.E.2d

308, 311 (1983)).

In considering the context, there can be little doubt that

the statute is ambiguous. Among ten definitions provided by

Webster's Dictionary, two would result in distinct

interpretations of the statute: the first-listed definition,

"to cause to go," and the fourth-listed definition, "to direct,

order, or request to go; to permit or enable to attend a term

or session." Webster's New Collegiate Dictionary 1071 (9th ed.

6
1983). The example provided by the text in the latter instance

is specific to school, as in to send to college, further making

it a reasonably intended meaning despite its less common

general usage. Id. Black's Law Dictionary presents a similar

dichotomy, with its first-listed definition indicating

authorization ("[t]o cause or direct to go or pass; to

authorize to go and act") and its second indicating conveyance

("[t]o cause to be moved or conveyed from a present location to

another place"). Black's Law Dictionary 1568 (10th ed. 2014).

Subsection (A) can therefore be read in one of two ways,

in which "send" either means: (1) "enable to attend a term or

session," with the requirement that any program that is an

alternative to public school be just as comprehensive from a

temporal perspective ("same number of days and hours per day")

as public school, i.e., to enroll; or (2) "cause to go," with

the literal requirement that the child be physically present

for the same number of days and hours that the school is in

session, i.e., to attend. As the text can, indeed, "be

understood in more than one way," Boynton, 271 Va. at 227 n.8,

623 S.E.2d at 926 n.8 (citation omitted), we conclude that the

term "send" as used in the statute is indeed ambiguous and

proceed to further analysis.

7
 2. Statutory Context Indicates that "Send"
Does Not Encompass Tardiness

If the statutory language is, in fact, subject to more

than one interpretation, "'we must apply the interpretation

that will carry out the legislative intent behind the

statute.'" Kozmina, 281 Va. at 349-50, 706 S.E.2d at 862

(quoting Conyers, 273 Va. at 104, 639 S.E.2d at 178).

We construe statutory language in the context of the

entire statute: "A cardinal rule of statutory construction is

that a statute be construed from its four corners and not by

singling out a particular word or phrase." Commonwealth

Natural Resources, Inc. v. Commonwealth, 219 Va. 529, 536, 248

S.E.2d 791, 795 (1978). "[S]tatutes are not to be considered

as isolated fragments of law, but as a whole, or as parts of a

great connected, homogenous system, or a single and complete

statutory arrangement." Prillaman v. Commonwealth, 199 Va.

401, 405, 100 S.E.2d 4, 7 (1957) (quoting 50 Am. Jur.,

Statutes, § 349). "[E]very part of a statute is presumed to

have some effect and no part will be considered meaningless

unless absolutely necessary." Hubbard v. Henrico Ltd.

Partnership, 255 Va. 335, 340, 497 S.E.2d 335, 338 (1998).

Where multiple sections of a statute are inconsistent or

ambiguous when read together, courts "are required to harmonize

any ambiguity or inconsistency in the statute to give effect to

8
the General Assembly's intent without usurping 'the

legislature's right to write statutes.'" Parker v. Warren, 273

Va. 20, 24, 639 S.E.2d 179, 181 (2007) (quoting Boynton, 271

Va. at 229-30, 623 S.E.2d at 927).

Code § 22.1-254 is the opening section of Title 22.1,

Chapter 14, Article 1. Code § 22.1-254(A) itself has a number

of primary features that deal specifically with mandatory

enrollment: it addresses the span of ages during which school

enrollment is required and the various permissible forms of

education (private, denominational, parochial, home

instruction, and approved alternative programs). It would be

consistent and relevant to enrollment for the time period

referred to therein ("same number of days and hours per day")

to refer to the requisite length of time for such a program. A

previous case before this Court considering a family's

religious objection to the mandate that students "attend"

school under Code § 22.1-254 addressed their objections not to

attending a few hours or days but attending school generally,

i.e., enrollment. See Johnson v. Prince William County School

Bd., 241 Va. 383, 384-85, 404 S.E.2d 209, 209-10 (1991). This

Court's own use of "sending" in that case pertained to

enrollment. Id. Notably, while truancy and absence are

clearly addressed elsewhere in Chapter 14, this opening

9
subsection is the only portion of the statutory scheme that is

a general enrollment requirement of its kind.

In addition, reading subsection (A) as pertaining to

attendance rather than enrollment risks failing to give full

effect to other statutory provisions because Code § 22.1-254(A)

alone would authorize criminal proceedings under Code § 22.1-

263 against any parent whose child was absent for even one day.

As we have previously stated, "no part [of a statute] will be

considered meaningless unless absolutely necessary." Hubbard,

255 Va. at 340, 497 S.E.2d at 338. If it were construed to

address attendance and tardiness, Code § 22.1-254(A) would

disrupt the cohesive reading of this chapter.

For example, Code § 22.1-258 specifically addresses truant

children and includes a graduated plan for addressing multiple

days of nonattendance, providing for notice to the parent,

conference with the parent after a sixth absence, and

notification of the court if the child continues to be absent

without parental awareness or support. Code § 22.1-263

punishes noncompliance with this statute. If these same

criminal repercussions could be triggered for failing to send a

child to school for even one day, however, the entire

structured graduated plan articulated in Code § 22.1-258 would

be advisory at best.

10
 Similarly, under Article 3 of the same chapter, Code

§ 22.1-279.3(A) imposes on parents a "duty to assist the school

in enforcing the standards of student conduct and compulsory

school attendance." Code § 22.1-263 provides the same criminal

penal provisions for violating "parental responsibility

provisions relating to compulsory school attendance included in

§ 22.1-279.3" as for violating Code § 22.1-254(A). Thus,

violation of Code § 22.1-254(A) must encompass something

distinct from compliance with attendance policies, or Code

§ 22.1-254(A) and Code § 22.1-279.3(A) would be redundant and

have no independent legal meaning.

Under Code § 22.1-279.3, school boards are required to

establish and distribute a copy of the standards of student

conduct and a copy of the compulsory attendance law at the

beginning of the school year for parental notice and signature.

Code § 22.1-279.3(C). The section also outlines a process for

parental notification of violations, allows for meetings to

remedy problematic student behavior or failure to comply with

school attendance policies, and provides for court orders and

civil penalties if parents do not engage in this process. Code

§ 22.1-279.3(D)-(H). In short, Code § 22.1-279.3 arms schools

to enforce standards for behavior, tardiness, and absence.

The provisions of Code § 22.1-279.3 requiring parents to

meet regarding their child's failure to comply with compulsory

11
school attendance and to assist the school in enforcing

compulsory attendance can be enforced by court order under Code

§ 22.1-279.3(G)(1) or criminal prosecution under Code § 22.1-

263. Once again, these graduated enforcement options seem

inconsistent with a reading of Code § 22.1-254(A) in which a

single day's absence would trigger the same criminal penalties.

There would simply be no need for criminal enforcement

provisions for the compulsory attendance portion of this

statute if parents could already be criminally prosecuted for

absences and tardiness alone.

In sum, in order to read Code § 22.1-254(A) to encompass

absence and tardiness, the Court would fail to give full effect

to many pages of statutory material. We decline to read Code

§ 22.1-254 in this manner.

Although the statutes that Code § 22.1-254 risks rendering

redundant speak to attendance or absence generally and not

specifically to tardiness, the two are the same for the

purposes of construing Code § 22.1-254(A). In construing a

statute, the "plain, obvious, and rational meaning . . . is to

be preferred over any curious, narrow, or strained

construction." Meeks v. Commonwealth, 274 Va. 798, 802, 651

S.E.2d 637, 639 (2007) (internal quotation marks omitted). It

would be the epitome of a "strained" construction if we were to

somehow construe Code § 22.1-254 as applying to tardiness but

12
not absences: because the statute refers to days and hours per

day in the same sentence, it must be read to apply to both or

neither. Thus, in concluding that Code § 22.1-254(A) does not

apply to absences, we must likewise conclude that it does not

apply to tardiness.

Finally, interpreting "send" to encompass tardiness would

entail construing Code § 22.1-254 as blanket authority for

prosecution of parents for even de minimis tardiness or absence

on the part of their children. This result seems contrary to

the comprehensive and graduated approach to absences found

elsewhere in the Code. Given the obvious attention to detail

and structured guidance that the General Assembly has provided

through other attendance- and truancy-related sections, we find

it highly unlikely that the General Assembly intended that sort

of result.

3. The Rule of Lenity Dictates that "Send"
Should Not Encompass Tardiness

Should any ambiguity remain, penal statutes must be

strictly construed according to the rule of lenity and, if the

language of the statute permits two "reasonable but

contradictory constructions," the statutory construction

favorable to the accused should be applied. Wesley v.

Commonwealth, 190 Va. 268, 276, 56 S.E.2d 362, 365 (1949). The

Commonwealth is correct in its contention that a criminal

13
defendant is not "entitled to benefit from an 'unreasonably

restrictive interpretation of [a] statute.'" Holloman v.

Commonwealth, 221 Va. 196, 198, 269 S.E.2d 356, 357 (1980)

(citation omitted). As demonstrated both by the detailed

discussion set forth above and by the sheer lack of any mention

of tardiness or absence at all in the subsection, however, the

narrower construction presented here does not constitute an

unreasonably restrictive interpretation.

We therefore conclude that the requirement that a parent,

guardian, or person having control or charge of a minor "send"

that child to school requires that such child be enrolled in a

school program fulfilling the requirements of Code § 22.1-

254(A), including that the program meet for as many days and

hours each year as the public school year. We further conclude

that, while enrollment necessarily contemplates general

attendance, the statute cannot be used to prosecute instances

of tardiness.

C. Additional Assignments of Error

Defendant also assigned error to the refusal of the Court

of Appeals to reverse based on issues involving lack of notice

and the constitutionality of the statute if interpreted to

encompass tardiness. Because we conclude that Code § 22.1-254

does not apply to tardiness, we need not reach any additional

assignments of error here.

14
 III. Conclusion

For the aforementioned reasons, we hold that Code § 22.1-

254 cannot be used to prosecute tardiness. Accordingly, we

will reverse the judgment of the Court of Appeals and enter

final judgment vacating the defendant's convictions.

Reversed and final judgment.

JUSTICE POWELL, with whom JUSTICE MIMS joins, dissenting.

I agree with the majority that the use of the word “send”

in Code § 22.1-254(A) is ambiguous, but I disagree with the

majority’s holding that “send,” as used in Code § 22.1-254,

means merely “enroll.” After “harmoniz[ing] any ambiguity or

inconsistency in the statute to give effect to the General

Assembly’s intent without usurping ‘the legislature’s right to

write statutes,’” Parker v. Warren, 273 Va. 20, 24, 639 S.E.2d

179, 181 (2007)(quoting Boynton v. Kilgore, 271 Va. 220, 229-

30, 623 S.E.2d 922, 927 (2006)), I believe that the General

Assembly necessarily intended that the definition of “send” in

Code § 22.1-254(A) includes both attendance and, as at issue

here, tardiness.

Except as otherwise provided in this
article, every parent . . . having control
or charge of any child . . . shall, during
the period of each year the public schools
are in session and for the same number of
days and hours per day as the public
schools, send such child to a public school
or to a private, denominational, or

15
 parochial school or have such child taught
by a tutor or teacher of qualifications
prescribed by the Board of Education and
approved by the division superintendent, or
provide for home instruction of such child
as described in § 22.1-254.1.

Code § 22.1-254(A)(emphasis added). The oldest historical

meaning of “send” is “to cause to go by physical means or

direct volition.” Webster’s Third New International Dictionary

2065 (1983); see id. at 17a (stating in explanatory note 12.5

that “[t]he order of [meanings] is historical: the one known to

have been first used in English is entered first.”). Thus,

“send” means more than “enroll.”

Indeed, the General Assembly chose to use “enroll”

elsewhere in this article when it wanted to limit the

obligations of parents and educators to issues of mere

enrollment. See Code § 22.1-260 (imposing a duty upon a

principal to report to the superintendent all students enrolled

and, to the extent he or she is able to, not enrolled within

ten days of the start of each school year); Code § 22.1-261

(requiring the attendance officer or division superintendent to

compose a list of all unenrolled children by cross-checking the

list compiled pursuant to Code § 22.1-260 with the State

Registrar of Vital Records and Health Statistics). Moreover,

albeit in the context of parents seeking a religious exemption

for their children, this Court has previously stated that Code

16
§ 22.1-254 requires that children attend school. Johnson v.

Prince William County School Bd., 241 Va. 383, 385, 404 S.E.2d

209, 210 (1991) (stating “Code § 22.1-254 provides that all

children between the ages of five and seventeen shall attend

school.”). Thus, it is clear that the definition of “send,”

coupled with our prior holding and the General Assembly’s

decision to use the phrase “hours per day” in Code § 22.1-254,

clearly contemplates attendance for the full day as well as

tardiness rather than mere enrollment.

Contrary to the majority’s position that reading Code

§ 22.1-254(A) to include tardiness “risks failing to give full

effect to other statutory provisions,” nothing in the language

of the remainder of this Article would be affected by

interpreting Code § 22.1-254 to apply to tardiness. Code

§ 22.1-258 specifically deals with the procedure that is to be

followed when a student “fails to report to school” and there

is no indication that the parent is “aware” of the absence.

That is inherently different from Code § 22.1-254, which places

the duty upon parents to “send” their children to school. This

duty connotes a knowing obligation and/or requirement on the

parent that would apply under circumstances such as here, where

the parent was only prosecuted for those instances of which she

was aware.

17
 Significantly, Code § 22.1-258 specifically provides that,

“[n]othing in this section [dealing with the unaware parent]

shall be construed to limit in any way the authority of any

attendance officer or division superintendent to seek immediate

compliance with the compulsory school attendance law as set

forth in this article.” There is nothing mentioned in this

statute about allowing a school district to proceed immediately

against a parent who is aware but unresponsive to a child’s

failure to attend school and/or to attend school in a timely

fashion that would render ineffective a separate provision that

allows a gradual approach to be taken with a parent who is

unaware of a student’s absence.

Code § 22.1-279.3 governs the role a parent plays in

improving her child’s behavior and attendance and what happens

when a parent is derelict in her responsibility to perform that

role. The primary focus of this section is on a parent’s

failure to attend a meeting to discuss a student’s conduct

and/or absences or to accompany the student to such a meeting.

It also imposes a lesser penalty ($500) than Code § 22.1-254.

Again, this is very different from the parent who is causing

her child to be tardy in violation of Code § 22.1-254.

The majority hypothesizes that interpreting Code § 22.1-

254 to mean more than mere enrollment would allow a parent to

be prosecuted for de minimis absence or tardiness, but this

18
contention is speculative. While this hypothesis is possible,

the absence of any reported cases of this occurring would tend

to indicate it is unlikely. Although Code § 22.1-268 compels

Commonwealth's Attorneys to prosecute all cases arising under

this article, Code § 22.1-269 bestows upon the board of

education in each jurisdiction the power and duty to “see that

the provisions of this article are properly enforced throughout

the Commonwealth.” The school board is required to create,

publish, and enforce “standards of student conduct and

attendance and enforcement procedures designed to provide that

public education be conducted in an atmosphere free of

disruption.” Code § 22.1-253.13:7(C)(3). To this end and

pursuant to Code § 22.1-254, the board of education and each

school district employs a system whereby it identifies excused

and unexcused absences. The Loudoun County School Board

Policies and Regulations state that the principal shall excuse

any absences or tardiness for personal illness, death in the

family, medical or dental appointments, and court appearances.

The principal may excuse absences or tardiness for “illness in

the immediate family that requires the student to be absent,”

“emergencies that require the student to be absent,” or “trips

19
or activities that enhance or extend the student’s education,

when approved by the [p]rincipal in advance.” 1

Loudoun County Public Schools, Policy and Regulations, Chapter

8, § 8-17, available at

http://www.lcps.org/cms/lib4/VA01000195/Centricity/Domain/9/Cha

pter 8/8-17.pdf (last visited October 9, 2014). Pragmatically,

only the unexcused absences would ever come to the attention of

the Commonwealth's Attorney. 2

1
Although the regulations for Loudoun County are not a
part of the record, "[w]henever in any criminal case it becomes
necessary to ascertain what the law, statutory or otherwise, of
this Commonwealth, . . . or of any political subdivision or
agency of the same is, or was, at any time, the court shall
take judicial notice thereof whether specially pleaded or not.”
Code § 19.2-265.2(A); see also Va. R. Evid. 2:202. Moreover,
we have said that "courts may take judicial notice of generally
known or easily ascertainable facts". Shackleford v.
Commonwealth, 262 Va. 196, 211 (2001) (quoting Ryan v.
Commonwealth, 219 Va. 439, 445, 247 S.E.2d 698, 703 (1978)).
See also Flory v. Smith, 145 Va. 164, 168-70, 134 S.E. 360,
362-63 (1926)(treating school board rule about absence from
school grounds during the school day as regulation having the
force of law).
2
In fact, in Loudoun County, the School Board has stated
that “[a]ll absences should be investigated by each teacher as
far as possible. A written excuse from parents must be
required in case of absence. Teachers will report through the
principal to the Attendance Officer problem cases involving
conduct and attendance. In many cases, a short talk with
parents will secure better attendance or correct habits of
tardiness.” Loudoun County Public Schools, Policy and
Regulations, Chapter 8, § 8-17 Reg, available at
http://www.lcps.org/cms/lib4/VA01000195/Centricity/Domain/9/Cha
pter 8/8-17_reg.pdf (last visited October 9, 2014). The Board
has established that “[a]ll absences not excused by the
[p]rincipal or caused by a student's suspension from school are
classified as unexcused absences, which shall result in

20
 Indeed, here, Lori Melcher, the attendance officer,

testified that she recorded all of the times that Blake’s

children were tardy. The children were late for valid reasons,

such as a doctor’s appointment, on days when their father was

responsible for bringing them to school. The unexcused late

arrivals, for reasons such as spilled soup or misplaced keys,

occurred on days when Blake was responsible for bringing the

children to school. While an overzealous prosecutor could

theoretically prosecute a parent for a child being tardy

without an excuse on only one occasion, by only a few minutes,

[t]he [prosecutor] is the representative
not of an ordinary party to a controversy,
but of a sovereignty whose obligation to
govern impartially is as compelling as its
obligation to govern at all; and whose
interest, therefore, in a criminal
prosecution is not that it shall win a
case, but that justice shall be done. As
such, he is in a peculiar and very definite
sense the servant of the law, the twofold
aim of which is that guilt shall not escape
or innocence suffer. He may prosecute with
earnestness and vigor -- indeed, he should
do so. But, while he may strike hard
blows, he is not at liberty to strike foul
ones. It is as much his duty to refrain
from improper methods calculated to produce
a wrongful conviction as it is to use every
legitimate means to bring about a just one.

appropriate disciplinary measures.” Loudoun County Public
Schools, Policy and Regulations, Chapter 8, § 8-17, available
at
http://www.lcps.org/cms/lib4/VA01000195/Centricity/Domain/9/Cha
pter 8/8-17.pdf (last visited October 9, 2014).

21
Berger v. United States, 295 U.S. 78, 88 (1935). Thus, the

responsibility of the school board to ensure that the article

is properly enforced together with a prosecutor’s duty to

ensure that justice is done provide safeguards for responsible

parents.

Moreover, I believe that reading Code § 22.1-254 to refer

merely to enrollment and not to encompass truancy or tardiness

results in a “curious, narrow, or strained construction” of the

statute. Lucas v. Woody, 287 Va. 354, 365, 756 S.E.2d 447, 452

(2014). Under the majority’s definition of “send,” there are

no repercussions under the Code for a parent who brings her

child to school twenty minutes prior to dismissal every day.

That is clearly a “curious, narrow, [and] strained

construction” and could result in a greater harm than the

hypothetical posed by the majority. While it is true “that if

the language admits of two reasonable but contradictory

constructions, that resulting favorably to the accused should

be applied,” it is also axiomatic that “if that favorable

result be attained only by an interpretation so narrow as to be

unreasonable, it must be rejected.” Wesley v. Commonwealth,

190 Va. 268, 276, 56 S.E.2d 362, 365 (1949). Because I believe

that interpreting Code § 22.1-254 to not apply to tardiness

22
would clearly lead to an unreasonable result, I would reject

such an interpretation.

Having determined that Code § 22.1-254 allows a parent to

be prosecuted when her child is tardy for unexcused reasons, I

must next address Blake’s assertion that the Court of Appeals

erred in holding that “[b]ecause appellant was convicted and

sentenced pursuant to Class 3 misdemeanors, the Commonwealth

was not required to prove that she knowingly and willfully

violated the compulsory attendance law, nor was the

Commonwealth required to prove notice.” Blake v. Commonwealth,

Record No. 1751-12-4, 2013 Va. App. LEXIS 339, at *19 (Nov. 19,

2013).

Any person violating the provisions of
either § 22.1-254, except for clause (ii)
of subsection A, §§ 22.1-255, 22.1-258,
22.1-267, or the parental responsibility
provisions relating to compulsory school
attendance included in § 22.1-279.3, shall
be guilty of a Class 3 misdemeanor. Upon a
finding that a person knowingly and
willfully violated any provision of § 22.1-
254, except for clause (ii) of subsection
A, or any provision of §§ 22.1-255, 22.1-
258, or § 22.1-267 and that such person has
been convicted previously of a violation of
any provision of § 22.1-254, except for
clause (ii) of subsection A, or any
provision of §§ 22.1-255, 22.1-258 or §
22.1-267, such person shall be guilty of a
Class 2 misdemeanor.

Code § 22.1-263. Thus, under the Code, a conviction for a

Class 2 misdemeanor requires proof of both a prior violation

23
and a knowing and willful violation. Id. A Class 3

misdemeanor conviction requires only a violation of Code

§ 22.1-254.

Here, Blake’s arrest warrants were modified from Class 1

to Class 2 misdemeanors in general district court, charging

knowing and willful violations of Code §§ 22.1-254 and -263.

In circuit court, Blake was arraigned for a Class 3

misdemeanor, which does not require proof of a knowing and

willful violation of Code § 22.1-254, however when arraigning

Blake, the court stated,

[t]he charge[] in each case then is while
being a parent of a child being between the
ages of 5 and 18, to wit KFB, to wit KAB,
and to wit KEB, did fail to send such child
to school during the period of each year
the public schools are in session and for
the same number of days and hours per day
at the public schools, the failure being
knowing and willful.

Therefore, while under Code § 22.1-263 a Class 3 misdemeanor

need not be knowing and willful, the Commonwealth alleged that

the violation was knowing and willful, and Blake was so

arraigned.

It is true that a variance between the
allegations of an indictment and proof of
the crime may be “fatal”, Etheridge v.
Commonwealth, 210 Va. 328, 171 S.E.2d 190
(1969), and “[t]he offense as charged must
be proved.” Mitchell v. Commonwealth, 141
Va. 541, 560, 127 S.E. 368, 374 (1925). A
variance is fatal, however, only when the
proof is different from and irrelevant to

24
 the crime defined in the indictment and is,
therefore, insufficient to prove the
commission of the crime charged.

Hawks v. Commonwealth, 228 Va. 244, 247, 321 S.E.2d 650, 651-52

(1984). Because the Commonwealth alleged a knowing and willful

violation, even though they were seeking a Class 3 misdemeanor

conviction, the Commonwealth raised its own burden of proof.

“It is elementary that what need not be proved need not be

alleged, but sometimes, as in the instant case, the pleader

goes beyond what is necessary and alleges something that it was

not necessary to allege and the result is that he must prove

what he has alleged unless the unnecessary allegation can be

rejected as surplusage.” Mitchell v. Commonwealth, 141 Va.

541, 555, 127 S.E. 368, 373 (1925). “If the unnecessary word

or words inserted in the [charge] describe, limit or qualify

the words which it was necessary to insert therein, then they

are descriptive of the offense charged in the indictment and

cannot be rejected as surplusage. The offense as charged must

be proved.” Id. at 560, 127 S.E. at 374. Based on the manner

in which the Commonwealth charged this case, it assumed the

burden of proving a knowing and willful violation. 3 Thus, the

3
Cf. Myers v. Commonwealth, 148 Va. 725, 729, 138 S.E.
483, 484 (1927); Morris v. Commonwealth, 145 Va. 880, 881-82,
134 S.E. 567, 568 (1926)(where the defendant was charged with a
misdemeanor, inclusion of the word “feloniously” either was

25
Court of Appeals erred in holding that Blake was attempting to

approbate and reprobate. However, the Court of Appeals’ error

on this point was harmless in light of the record.

“We have said that non-constitutional error may be

harmless ‘[i]f other evidence of guilt is so overwhelming and

the error [is] insignificant[] by comparison, supporting a

conclusion that the error did not have a substantial effect on

the verdict.’” Turner v. Commonwealth, 284 Va. 198, 209, 726

S.E.2d 325, 331 (2012)(quoting Angel v. Commonwealth, 281 Va.

248, 268, 704 S.E.2d 386, 398 (2011)). Here, the evidence was

fully sufficient to support a finding that the violation was

knowing and willful. School officials met with Blake in

December 2011 to inform her of the compulsory attendance law.

Despite this knowledge, Blake’s children were inexcusably late

on all five of the six Thursdays in December and January that

school was in session. Thus, the evidence was sufficient to

prove a knowing and willful violation of Code § 22.1-254. For

this reason, the Court of Appeals’ approbate and reprobate

analysis is harmless error.

Finally, Blake argues that “[t]he Court of Appeals erred

by holding that the issues of notice and constitutionality of

harmless surplusage or would be treated as charging only the
scienter required for the lesser grade of offense).

26
Code § 22.1-254 were not included in the Assignments of Error.”

In her petition to the Court of Appeals, Blake assigned the

following error: “The trial court erred in ruling that

Virginia Code 22.1-254 prohibits a parent from occasionally

allowing his/her child to be tardy to school where the child is

otherwise validly enrolled and regularly attending.” She

subsequently filed a motion to amend seeking to change the

wording to “[t]he trial court erred in interpreting what it

means to send a child to school pursuant to Code § 22.1-254 and

ruling that such interpretation was not unconstitutionally

vague.” The Court of Appeals denied her motion. The Court

then ruled that her constitutional argument was waived because

she had not properly assigned error to it.

Contrary to Blake’s argument, her assignment of error

filed in the Court of Appeals did not encompass a

constitutional argument under Findlay v. Commonwealth, 287 Va.

111, 752 S.E.2d 868 (2014). In Findlay, this Court held that

Findlay’s assignment of error goes beyond
the bare-bones allegations prohibited by
Rule 5A:12(c)(1)(ii). Findlay does not
merely allege that his convictions are
contrary to the law. Likewise, he does not
state generally that the evidence is
insufficient. Rather, Findlay points to a
specific preliminary ruling of the trial
court — the trial court’s denial of his
motion to suppress — that he believes to be
in error. Such specificity adequately puts
the court and opposing counsel on notice as
to “what points [appellant]’s counsel

27
 intends to ask a reversal of the judgment
or decree” and prevents them from having to
“hunt through the record for every
conceivable error which the court below may
have committed.”

Id. at 116, 752 S.E.2d at 871 (quoting First Nat’l Bank of

Richmond v. William R. Trigg Co., 106 Va. 327, 341, 56 S.E.

158, 163 (1907). Blake made a very general challenge to the

sufficiency of the evidence and never mentioned the

constitutionality of the statute in her assignments of error.

Although she filed a motion to amend her assignments of error

to insert a specific reference to the constitutionality of the

statute, the Court of Appeals denied that motion and she did

not assign error to that ruling on the present appeal.

Therefore, Blake has waived her challenges based on inadequacy

of notice and the asserted unconstitutionality of the statute

on vagueness grounds.

Thus, for the above-stated reasons, I would affirm Blake’s

convictions.

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