COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Willis and Elder 

Argued at Richmond, Virginia 

VICKI L. MOSBY 

 OPINION BY 

v. Record No. 1434-95-2 JUDGE JERE M. H. WILLIS, JR. 

 AUGUST 13, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

William R. Shelton, Judge 

 Denis C. Englisby (Margaret Ann Englisby; 

Englisby & Englisby, on brief), for 

appellant. 

 Brian Wainger, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 On appeal from her conviction of negligent child 

endangerment pursuant to Code § 40.1-103, Vicki L. Mosby contends 

(1) that Code § 40.1-103 is unconstitutionally vague as applied 

to her, and (2) that the trial court erred in instructing the 

jury on simple negligence. We find the statute constitutional as 

applied to Ms. Mosby. However, because the trial court erred in 

instructing the jury on simple negligence, we reverse the 

judgment of the trial court and remand this case for retrial, if 

the Commonwealth be so advised. 

 I. 

 Code § 40.1-103 provides, in pertinent part: 

 It shall be unlawful for any person employing 

or having the 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 
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be placed in a situation that its life, 

health or morals may be endangered . . . . 

In Commonwealth v. Carter, 21 Va. App. 150, 462 S.E.2d 582 

(1995), we held the second clause of the statute to be 

unconstitutionally vague. We said: 

 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. . . . By using the term "may," 

the legislature criminalizes any act which 

presents a "possibility" of physical or moral 

harm to the child. 

 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. Whatever the 

motivation and however well-intentioned, the 

vague and inclusive statutory language 

clearly failed to adequately inform law 

enforcement of the precise conduct prohibited 

by Code § 40.1-103, thereby accommodating 

arbitrary and discriminatory enforcement. 

Id. at 154-55, 462 S.E.2d at 584-85 (citations omitted). In 

Carter, we went on to say: 

 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 

. . . .'" Because we find that the offending 

language of Code § 40.1-103 is severable, the 

remainder of the statute is undisturbed by 

this opinion. 
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Id. at 155, 462 S.E.2d at 585. 

 On May 23, 1994, Vicki L. Mosby drove from her grandmother's 

home with her six-week-old son, George Mosby, Jr., on the car 

seat in a baby carrier. Two miles from her grandmother's house, 

Ms. Mosby ran off the road and into a cinder block house located 

224 feet off the paved surface. The child was thrown from the 

baby carrier onto the floor behind the driver's seat. He 

suffered a fractured femur and head injuries. The baby carrier 

displayed a warning that it was not to be used as a car seat. 

 Officer Moore testified that upon his arrival at the 

accident scene, he could smell alcohol on Ms. Mosby and she 

admitted to him that she had been drinking. Dr. James Valentour, 

Chief Toxicologist at the State Division of Forensic Science, 

testified as an expert concerning the effects of alcohol on 

humans. He testified that Ms. Mosby's blood alcohol content was 

0.25 percent, a level that would diminish her coordination and 

balance and would affect her ability to stand, walk, or drive. 

 The indictment on which Ms. Mosby was tried specified that 

on the subject occasion, she 

 did unlawfully and feloniously having the 

custody of a child, George L. Mosby, Jr., 

willfully or negligently cause or permit the 

life of such child to be endangered or the 

health of such child to be injured. 

This indictment set forth a charge under the clause of Code 

§ 40.1-103 that was excepted from the embrace of Carter. Citing 

Carter, Ms. Mosby contends that the first clause of Code 
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§ 40.1-103, upon which the charge against her was based, is 

unconstitutionally vague. She argues that the clause fails to 

define adequately the mens rea element upon which criminal 

liability for the proscribed conduct may be based. We disagree. 

 The terms, "willfully" and "negligently" are concepts of 

long-standing recognition and legal definition. Likewise, 

criminal liability for willful or culpably negligent conduct is 

an established principle. These standards are solidly 

established and are not impermissibly vague. 

 In Carter, we found impermissibly vague the use of the word 

"may" in the second clause of Code § 40.1-103. We held that 

"may" suggested mere possibility and imposed criminal liability 

for conduct suggesting a mere potential or possibility of 

endangerment to a child. We held that because such possibility 

was not readily ascertainable, its employment as a standard for 

the imposition of criminal liability was impermissibly vague and 

susceptible to arbitrary enforcement. Such is not the case under 

the first clause. Ms. Mosby was charged with willfully or 

negligently subjecting her child not to a possibility of 

endangerment, but to an actual condition of endangerment. That 

her child was actually endangered, and was in fact injured, were 

matters of ready perception, a perception based on existing 

facts, a perception not vulnerable to arbitrary enforcement. 

 Thus, we hold that the first clause of Code § 40.1-103 

defines readily understandable proscribed conduct and is 
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constitutionally firm. 
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 II. 

 Second, Ms. Mosby contends that the trial court erred in 

instructing the jury on simple negligence. We agree. 

 The trial court gave the following instructions: 

INSTRUCTION NO. 8 

 The Court instructs the jury that the 

negligence alleged in the crimes in this case 

is something called "criminal negligence". 

Gross or culpable negligence is that which 

indicates a callous disregard of human life 

and of the probable consequences of the 

defendant's act. Criminal liability cannot 

be predicated upon every act carelessly or 

negligently performed merely because such 

carelessness or negligence results in harm or 

even the death of another. In order for 

criminal liability to result from negligence, 

it must necessarily be reckless or wanton and 

of such a character as to show disregard of 

the safety of others under circumstances 

likely to cause injury or death. Unless you 

believe from the evidence beyond a reasonable 

doubt the defendant was guilty of negligence 

so culpable or gross as to indicate a callous 

disregard of human life and of the probable 

consequences of his act, you cannot find him 

guilty of these charges. 

INSTRUCTION NO. 9 

 Negligence is the doing of some act 

which an ordinarily careful and prudent man 

under like circumstances would not do by 

reason of which another person is endangered 

in life or bodily safety. The word 

"ordinary" is synonymous with "reasonable" in 

this connection. 

INSTRUCTION NO. 10 

 Negligence is more than mere 

inadvertence or misadventure; it is 

recklessness or indifference incompatible 

with a proper regard for human life. 
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INSTRUCTION NO. 11 

 Negligent conduct constitutes a great 

departure from that of a reasonable person 

which creates a great risk of injury to 

others. 

 Code § 40.1-103 is a criminal statute. See Johnson v. 

Commonwealth, 211 Va. 815, 180 S.E.2d 661 (1971) (predecessor 

statute, Code § 40-112, declared a criminal statute). Although 

the statute contains the word "negligently," a mens rea

requirement must be read into it. See Maye v. Commonwealth, 213 

Va. 48, 49, 189 S.E.2d 350, 351 (1972). 

 Code § 40.1-103, being a criminal statute, requires proof of 

a greater degree of negligence than is required in a civil 

action. "The negligence required in a criminal proceeding must 

be more than the lack of ordinary care and precaution. It must 

be something more than mere inadvertence or misadventure. It is 

a recklessness or indifference incompatible with a proper regard 

for human life." Bell v. Commonwealth, 170 Va. 597, 611, 195 

S.E. 675, 681 (1938). The negligence must be "so gross and 

culpable as to indicate a callous disregard of human life and of 

the probable consequences of his act." Keech v. Commonwealth, 9 

Va. App. 272, 277, 386 S.E.2d 813, 815 (1989) (quoting Goodman v. 

Commonwealth, 153 Va. 943, 952, 151 S.E. 168, 171 (1930)). 

 Instruction 8 correctly set forth the definition of criminal 

negligence. Instruction 10 was correct when read with 

Instruction 8. However, Instructions 9 and 11 were erroneous. 
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Neither defined criminal negligence. They invited the imposition 

of criminal liability upon a finding of simple negligence. 

Because we cannot say that this invitation could not have 

influenced the verdict, we hold that the giving of these 

instructions was reversible error. 

 The judgment of the trial court is reversed and this case is 

remanded for retrial, if the Commonwealth be so advised. 

 Reversed and remanded.