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 
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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 

status.1

 Whatever the motivation and however well-intentioned, the 

vague and inclusive statutory language clearly failed to adequately 

 

 1In 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.