Alice Virginia Riggs v. Commonwealth ( 1996 )


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  •                   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.
    -4-
    

Document Info

Docket Number: 1892952

Filed Date: 9/10/1996

Precedential Status: Non-Precedential

Modified Date: 10/30/2014