                  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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