Mollenhauer v. Commonwealth

MICHAEL R. MOLLENHAUER v. COMMONWEALTH OF VIRGINIA

Record No. 0826-20-2

COURT OF APPEALS OF VIRGINIA

JULY 6, 2021

UNPUBLISHED

Present: Chief Judge Decker, Judges Beales and Athey

Argued by videoconference

MEMORANDUM OPINION^* BY CHIEF JUDGE MARLA GRAFF DECKER

FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY

Paul W. Cella, Judge

Richmond A. Wollstein (The Elliott Law Firm, on briefs), for appellant.

Rachel L. Yates, Assistant Attorney General (Mark R. Herring, Attorney General, on briefs), for appellee.

Michael R. Mollenhauer appeals his conviction of child cruelty in violation of Code § 40.1-103. On appeal, he contends that the portion of the statute under which he was convicted is unconstitutionally vague. We hold that the record does not establish good cause for the appellant's failure to make a timely pre-trial challenge to the constitutionality of Code § 40.1-103. Consequently, we affirm the conviction without reaching the merits of his claim.¹

I. BACKGROUND²

The victim, S.M., is one of four children of Robert Mollenhauer. In October 2016, when S.M. was three years old, Robert and his children began living with Robert's parents, Michael Mollenhauer (the appellant) and Christina Mollenhauer. The appellant and Christina helped Robert care for S.M. and her siblings.

In 2017 and again in 2018, different childcare and school officials contacted the Dinwiddie County Department of Social Services (DSS) due to concerns about S.M. Information gathered during the investigation that ensued was wide ranging. It revealed in part that the family restricted S.M.'s access to food and kept her locked in a cage-like enclosure at night.

The investigation further showed that the appellant built the cage-like enclosure in which S.M. slept at least five nights per week. The appellant and Christina "explain[ed] the necessity" for the cage to Robert. The appellant characterized the enclosure as a special-needs bed and said that he made it, instead of buying one, to save money.

On September 6, 2018, Donna Harrison, an investigator for DSS's Child Protective Services division (CPS), visited the Mollenhauer home. Harrison was permitted to see S.M.'s sleeping enclosure, which she described as "a cage" located "in a closet with a curtain." The base was the standard size for a crib, but it had been shortened and had a "top" made of "two by fours." The cage was "no more than . . . about three feet" tall and was shorter in height than S.M. It had slats and a door with a latching mechanism and contained "a mattress that didn't have any padding or covering." The cage also had "a drainage hole." Beneath it was a scrap oflinoleum covered with baking soda, which Christina stated "was to [reduce] the smell from [S.M.] urinating and defecating on herself while in that area."

Both the appellant and Christina said that the enclosure was locked at night and that S.M. slept in it because of her bad behavior. They asserted that the cage was necessary to prevent S.M. from "steal[ing] food," getting "into the garbage" and "everything," and "bothering everybody."

Juxtaposed with the reports of S.M.'s family members that she was a "bad" child was information from teachers, daycare providers, and others that S.M. was sweet, smart, and well-behaved. They indicated that S.M. had occasional bowel and bladder control issues but described these as minor potty-training issues that improved over time.

As a result of Harrison's observations during the home visit, she immediately removed S.M. from the home. While S.M. was with Harrison, she was polite, pleasant, and able to go to the bathroom on her own.

A subsequent evaluation performed by Dr. Robin Foster, medical director of the child protection team for Virginia Commonwealth University Health Systems, concluded that S.M. suffered from a failure to thrive that resulted from the limitations placed on her food intake prior to the removal from the Mollenhauer home. Dr. Foster also concluded that S.M.'s history and medical records were "consistent with [a] medical diagnosis of child torture" because the evidence "m[et] all of the most common criteria" for that diagnosis. Foster noted that the child exhibited soft tissue injuries of a type inconsistent with those typically incurred by young children during play, was physically restrained and isolated by being kept in the enclosure, was socially isolated, and was deprived of food. Dr. Foster also pointed out that children undergoing physical and psychological trauma tend to "become very anxious," which sometimes causes symptoms of regression, including bedwetting and soiling themselves. She further noted basedon her team's examination of S.M. shortly after her removal, as well as during a later evaluation after she had been in foster care for eight months, that S.M. was not manifesting any behavior that would "warrant . . . restrain[ing her in a] . . . box."

Consistent with the evidence at trial as outlined above, the appellant and Christina were charged with child cruelty in violation of Code § 40.1-103.³ The indictments tracked the language of Code § 40.1-103, which proscribes "caus[ing] or permit[ting]" any of three types of behavior toward a child in his or her custody. The two were tried jointly but were represented by different attorneys.

Neither the appellant nor Christina made a pre-trial motion challenging the constitutionality of any portion of Code § 40.1-103. During trial, they made motions to strike based on Commonwealth v. Carter, 21 Va. App. 150 (1995), noting that it held unconstitutionally vague the portion of Code § 40.1-103 prohibiting a child's custodian from allowing the child to be placed in a situation that "may" endanger his or her "life, health, [or] morals." Counsel did not argue that other portions of the statute were unconstitutional. The circuit court denied the motions to strike. In closing argument, the appellant's counsel made no additional reference to the constitutionality of the statute.

After hearing the evidence, the circuit court found both the appellant and Christina guilty of one count each of violating Code § 40.1-103. The judge reasoned that S.M.'s "sleeping enclosure" was not "a bona fide special-needs bed" and was instead a "pen or cage." He further noted evidence "that the child was kept locked in it at night and that both defendants knew that and permitted it" during the 2018 time frame set out in the indictment. In finding the appellantand Christina guilty, the judge addressed the statute's "may" clause, again noting that this part of the statute had been held unconstitutional. The judge confirmed that the "rest of the statute," specifically the third part, which "deal[t] with caus[ing] or permit[ting the] child to be . . . tortured . . . or cruelly treated," remained valid. He further found that "having the child locked in th[e] pen [all] night me[t] th[e] criteria . . . of being tortured and cruelly treated."

Following trial, the appellant and Christina filed a joint written motion to set aside the verdict. The motion did not challenge the constitutionality of any portion of Code § 40.1-103. It raised only claims of "actual innocence" and "lack of evidence." The appellant noted that the statute did not define torture and argued that the Commonwealth's evidence did not meet the dictionary definition of the term. He further contended that the evidence did not prove a violation of Code § 40.1-103 in any other way, including through "cruel[] treat[ment]." On that basis, the appellant asked the court to set aside the verdict against him.

The appellant and Christina subsequently provided oral argument on their post-trial motions. At that hearing, for the first time, counsel for the appellant argued in part that the third clause of Code § 40.1-103 was unconstitutionally vague because it did not define "torture[d]" or "cruelly treated."

In denying the motions, the judge "acknowledge[d] . . . room for debate about th[e] statute" due to the lack of "statutory definitions of the term[s] torture[d and] . . . cruelly treated." He noted his "previous finding . . . that the fact that [S.M.] was kept in th[e] enclosure was sufficient to prove that [she] was tortured or cruelly treated." The judge indicated that he "st[ood] by that finding" and was "not prepared to declare the statute unconstitutional." Consequently, he denied the motions.

The court sentenced the appellant and Christina each to five years in prison and suspended both sentences conditioned upon five years of good behavior.

II. ANALYSIS

The appellant contends that the terms "tortured" and "cruelly treated" as used in the third clause of Code § 40.1-103 are unconstitutionally vague because they are not defined by the statute. The Commonwealth asserts that the appellant is barred from challenging the constitutionality of the statute on appeal because he did not raise the issue in a timely fashion in the circuit court and no evidence establishes good cause to excuse the late challenge.⁴

Code § 19.2-266.2 specifically provides that a defendant seeking dismissal of a charge in a circuit court "on the ground that a statute upon which it was based is unconstitutional shall . . . rais[e that claim] by motion or objection" made "in writing." Code § 19.2-266.2(A)-(B) (emphasis added). The statute further requires that the motion or objection "shall be filed and notice given to opposing counsel not later than seven days before trial." Code § 19.2-266.2(B) (emphasis added); see also Rule 3A:9(b)-(c).

"These requirements are not superfluous administrative hurdles. [Instead, t]hey 'serve[] legitimate state interests in protecting against surprise, harassment, and undue delay." Bass v. Commonwealth, 70 Va. App. 522, 534 (2019) (second alteration in original) (quoting Arrington v. Commonwealth, 53 Va. App. 635, 640 (2009)). Additionally, the statute aids in preserving the Commonwealth's right to appeal certain rulings, such as those suppressing evidence or dismissing a charge on constitutional...