Present: Chief Judge Moon, Judge Willis and Senior Judge Duff
Argued via teleconference


v. Record No. 2877-95-4 MEMORANDUM OPINION BY*

Jack B. Stevens, Judge

Michael T. Judge, Assistant Attorney General
(James S. Gilmore, III, Attorney General;
Linwood T. Wells, Jr., Assistant Attorney
General, on brief), for appellant.

Frank W. Romano, Assistant Public Defender,
for appellee.

Bernard Payne was charged with violating the felony
provision of Code ? 46.2-817. The trial court held that the term
“serious bodily injury” was unconstitutionally vague and
dismissed the felony charge. The Commonwealth appeals.
The parties present two issues: (1) whether the appeal is
barred because it falls outside of the scope of Code
? 19.2-398(1), and (2) whether the trial court erred in holding
that the felony language was unconstitutionally vague. We
reverse the trial court and remand.

*Pursuant to Code ? 17-116.010, this opinion is not
designated for publication.

Code ? 19.2-398 provides in pertinent part:
A petition for appeal from a circuit
court may be taken by the Commonwealth only
in felony cases, before a jury is impaneled
and sworn in a jury trial, or before the
court begins to hear or receive evidence or
the first witness is sworn, whichever occurs
first, in a nonjury trial. The appeal may be
taken from:
1. An order of a circuit court
dismissing a warrant, information or
indictment, or any count or charge thereof on
the ground that a statute upon which it was
based is unconstitutional . . . .

In this case, the Commonwealth proceeded upon an indictment
which contained two counts. The indictment as a whole was not
dismissed and neither count was dismissed. Therefore, the only
term in the statute which concerns this appeal is the term
“‘[T]he primary objective of statutory construction is to
ascertain and give effect to legislative intent.'” Crews v.
Commonwealth, 3 Va. App. 531, 535-36, 352 S.E.2d 1, 3 (1987)
(citation omitted).
A criminal “charge” is defined as “the specific crime the
defendant is accused of committing.” Black’s Law Dictionary 233
(6th ed. 1990). Here, the specific crime Payne was accused of
committing was the felony of speeding to elude, which is distinct
from the misdemeanor charge in that it contains the additional
element that serious bodily injury to another must result.

Therefore, the trial judge dismissed a “charge” and the
Commonwealth may appeal from that dismissal.
Serious Bodily Injury
Code ? 46.2-817 reads in pertinent part:
Any person who, having received a visible
or audible signal from any law-enforcement
officer to bring his motor vehicle to a stop,
drives such motor vehicle in a willful or
wanton disregard of such signal so as to
interfere with or endanger the operation of
the law-enforcement vehicle or endanger other
property or person, or who increases his
speed and attempts to escape or elude such
law-enforcement officer, shall be guilty of a
Class 1 misdemeanor.

If serious bodily injury to another
results from a violation of the preceding
paragraph, the offender shall be guilty of a
Class 6 felony.

Payne contends that the term “serious bodily injury” is
unconstitutionally vague. Specifically, he argues that the term
“provides neither explicit standards nor minimal guidelines,” “is
not a common and well-recognized legal term that has been
judicially narrowed by Virginia law,” and “creates a subjective
standard against which to measure a defendant’s actions.” We
In assessing the constitutionality of a
statute, “the burden is on the challenger to
prove the alleged constitutional defect”.
. . . A criminal statute is
unconstitutionally vague only if it fails to
define the offense “with sufficient
definiteness that ordinary people can
understand what conduct is prohibited and in
a manner that does not encourage arbitrary
and discriminatory enforcement.”


Bell v. Commonwealth, 21 Va. App. 693, 699-700, 467 S.E.2d 289,
292 (1996) (citations omitted).
Furthermore, in determining the meaning of a statute, “[t]he
validity of using other Code sections as interpretive guides is
well established. The Code of Virginia constitutes a single body
of law, and other sections can be looked to where the same
phraseology is employed.” King v. Commonwealth, 2 Va. App. 708,
710, 347 S.E.2d 530, 531 (1986). Code ? 18.2-369, which concerns
abuse or neglect of incapacitated adults, reads: “For purposes
of this subsection, ‘serious bodily injury or disease’ shall
include but not be limited to (i) disfigurement, (ii) a fracture,
(iii) a severe burn or laceration, (iv) mutilation, (v) maiming,
or (vi) life threatening internal injuries or conditions, whether
or not caused by trauma.” The term “serious bodily injury” can
also be found in other statutes. See Code ?? 10.1-1455 (handling
of hazardous wastes), 16.1-228 (family abuse definition),
16.1-269.1 (transfer of juveniles to circuit court), 17-237
(sentencing guidelines), 18.2-67.3 (aggravated sexual battery),
29.1-740 (duty to stop and render assistance); 54.1-2400.1 (duty
of mental health service providers to prevent violence), and
54.1-3434.3 (denial, revocation, and suspension of pharmacy
With such widespread use of the term, it is plain that the
term does have a common and well-recognized meaning. As such,

ordinary people can understand what conduct is prohibited and the
inclusion of the term in the statute does not encourage arbitrary
and discriminatory enforcement. Therefore, the term is not
unconstitutionally vague.1
For the reasons stated, we reverse the decision of the
circuit court and remand for trial on the felony charge contained
in Code ? 46.2-817.
Reversed and remanded.

1Other courts have likewise found that the term “serious
bodily injury” in not unconstitutionally vague. See United
States v. Williams, 51 F.3d 1004 (11th Cir. 1995) (carjacking
statute not unconstitutionally vague where enhanced punishment
“if serious bodily injury results”); United States v. Fitzgerald,
882 F.2d 397, 398 (9th Cir. 1989) (“serious bodily injury”
language used in federal assault statute was not
unconstitutionally vague); United States v. Chevalier, 776 F.
Supp. 853 (D. Vt. 1991) (use of “serious bodily injury” in
statute for sentence enhancement not unconstitutionally vague);
State v. Stowe, 635 So. 2d 168, 170-71 (La. 1994) (defining
“serious bodily injury” and holding that phrase in statute,
“extreme physical pain,” not unconstitutionally vague); Fleming
v. State, 604 So. 2d 280 (Miss. 1992) (holding that aggravated
assault statute was not unconstitutionally vague despite absence
of definition of “serious bodily injury”); Commonwealth v.
Edwards, 559 A.2d 63, 65 (Pa. Super. Ct. 1989) (holding that
enhanced punishment where leaving scene “materially contributes
to any serious bodily injury” not unconstitutionally vague);
Teubner v. Texas, 742 S.W.2d 57 (Tex. Ct. App. 1987) (holding
that statutory language prohibiting infliction of “serious bodily
injury” was not unconstitutionally vague).