COURT OF APPEALS OF VIRGINIA


Present: 	Judges Annunziata, Frank and McClanahan
Argued at Chesapeake, Virginia


PATRICK THOMAS WOLFE
			OPINION BY
v.	Record No. 1197-03-1	JUDGE ROSEMARIE ANNUNZIATA
	APRIL 13, 2004
COMMONWEALTH OF VIRGINIA


	FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
H. Thomas Padrick, Jr., Judge

		Michael A. Robusto (Slipow, Robusto & Kellam, on brief), for 
appellant.

		Virginia B. Theisen, Assistant Attorney General (Jerry W. Kilgore, 
Attorney General, on brief), for appellee.


	Patrick Thomas Wolfe appeals his conviction for felony child abuse and neglect.  Wolfe 
was arrested on November 22, 2002, for driving his vehicle erratically.  Wolfe's four-year-old 
son was a passenger in the car when police stopped the vehicle and arrested Wolfe.  Wolfe was 
subsequently charged with driving under the influence of alcohol (DUI) in violation of Code 
 18.2-266, refusing to submit to a breathalyzer test in violation of City of Virginia Beach Code 
 21-338.3, leaving the scene of an accident with damage to unattended property valued at less 
than $250 in violation of City of Virginia Beach Code  21-496, and felony child abuse and 
neglect in violation of Code  18.2-371.1(B).  Wolfe pled guilty to DUI, refusal to submit to a 
breathalyzer test, and leaving the scene of an accident.  He agreed to a bench trial on the charge 
of child abuse and neglect.  The trial court convicted Wolfe of child endangerment, and this 
appeal followed.


I.  Background
	On appeal, we review the evidence, and all reasonable inferences that may be drawn from 
that evidence, in the light most favorable to the Commonwealth as the party prevailing below.  
Garcia v. Commonwealth, 40 Va. App. 184, 189, 578 S.E.2d 97, 99 (2003).  So viewed, the 
evidence establishes that in the late afternoon of November 22, 2002, Dawn Craddock saw a blue 
Geo automobile being driven erratically in the City of Virginia Beach.  Craddock observed the 
car drive onto the curb and strike lampposts, hitting one with such force that the globe at the top 
of the post crashed to the sidewalk.  The car lost a hubcap and part of its bumper; the impact also 
blew out one of the front tires.  Craddock reported the incident to the police.   When officers 
C.W. Wilburn and R.W. Cheatham responded, they found the car engine still running.  Wilburn 
parked her car behind the vehicle and approached the driver; Wolfe was behind the wheel and his 
son was in a child safety seat in the front passenger position. 
	Wolfe's speech was incoherent and peppered with profanity.  His skin was flushed and 
his eyes watery and bloodshot.  Both officers smelled a very strong odor of alcohol.  The efforts 
of both officers were needed to remove Wolfe from the car.  Once outside, Wolfe staggered and 
could not stand without assistance.
	The child sat loosely in a child safety seat without any visible restraining straps across his 
body.  After the child was removed from the vehicle, one of the officers removed the child safety 
seat; it was not strapped to the car or secured in any fashion.  Cheatham saw a bottle of alcohol 
in the front seat between the driver's seat and the center console.  It was open and nearly empty.
	At trial, Wolfe pled guilty to one count of driving under the influence, one count of 
refusing a breathalyzer test, and one count of leaving the scene of an accident with damage to 
unattended property worth less than $250.  On his plea of not guilty to the charge of felony child 
abuse and neglect, Wolfe was convicted in a bench trial and sentenced to two years in prison, all 
but 30 days suspended. 
	In his motion to strike made at the conclusion of the Commonwealth's evidence, Wolfe 
unsuccessfully argued that the Commonwealth was prohibited from prosecuting him for felony 
child abuse and neglect under Code  18.2-371.1(B), based upon his act of transporting his son 
while driving under the influence, because Code  18.2-270(D) provides a specific penalty for a 
person driving under the influence who has a passenger 17 years of age or younger.  Thus, Wolfe 
argued, Code  18.2-266 and 18.2-270 constituted the exclusive avenue of prosecution under 
the facts of this case.  Wolfe raises the same argument on appeal.  For the following reasons, we 
affirm the decision of the trial court.
II.  Analysis
Under settled law, proceeding under one or another criminal statute is a matter of 
prosecutorial election.  Mason v. Commonwealth, 217 Va. 321, 323-24, 228 S.E.2d 683, 684 
(1976); Smith v. Commonwealth, 17 Va. App. 37, 41, 434 S.E.2d 914, 916 (1993).
In the ordinary case, "so long as the prosecutor has probable cause 
to believe that the accused committed an offense defined by 
statute, the decision whether or not to prosecute, and what charge 
to file or bring before a grand jury, generally rests entirely in his 
discretion."

United States v. Armstrong, 517 U.S. 456, 464 (1996) (quoting Bordenkircher v. Hayes, 434 
U.S. 357, 364 (1978)); see also Buchanan v. Commonwealth, 238 Va. 389, 397, 384 S.E.2d 757, 
762 (1989) ("The Commonwealth is free to indict an individual for as many separate crimes as 
the Commonwealth, in good faith, thinks it can prove.").
	Wolfe asserts, however, that the General Assembly effectively removed the act of 
transporting a minor in a motor vehicle while under the influence of alcohol from the ambit of 
the child abuse and neglect statute because the DUI statute provides a specific penalty for such 
an act.  He thus reasons that the Commonwealth was limited to prosecuting him under the DUI 
statute.  We disagree.
	In support of his argument, Wolfe relies exclusively on this Court's decision in 
McFadden v. Commonwealth, 3 Va. App. 226, 348 S.E.2d 847 (1986).  We find Wolfe's 
reliance on McFadden misplaced.
	In McFadden, this Court considered a defendant's challenge to her conviction for 
attempted oral sodomy.  Id. at 227, 348 S.E.2d at 847.  The defendant was previously convicted 
of prostitution on the same facts.  Id.  The Commonwealth based the subsequent prosecution for 
attempted oral sodomy on the general criminal attempt statute, Code  18.2-26.  Id.  The Court 
found that defendant's conviction for attempted oral sodomy was improper because attempts to 
commit oral sodomy in exchange for money were wholly included within the prostitution statute, 
Code  18.2-346, by legislative amendment which specifically removed attempted oral sodomy 
in exchange for money from the felony sodomy statute and incorporated it into the prostitution 
statute.  Id. at 230, 348 S.E.2d at 849.
The circumstances of the present case are distinguishable from those addressed in 
McFadden.  First, the legislature has not incorporated by reference the offense of felony child 
abuse and neglect into the DUI statute.  Unlike the prostitution statute addressed in McFadden, 
which specifically cross-references the crime of oral sodomy, see Code  18.2-346 and 
18.2-361, no reference whatsoever is made to the crime of felony child abuse and neglect in 
Code  18.2-270; Code  18.2-270(D) simply provides an additional penalty for driving under 
the influence "while transporting a person seventeen years of age or younger."   Second, Code 
 18.2-270 does not include within its parameters the elements of the child abuse and neglect 
offense, and Code  18.2-266 does not require proof of those elements for a conviction of DUI.  
See Code  18.2-371.1(B) ; cf. McFadden, 3 Va. App. at 229-30, 348 S.E.2d at 849. 
	The meaning of the legislative action may be easily discerned from the plain language of 
the statute.  "The plain, obvious, and rational meaning of a statute is always preferred to any 
curious, narrow or strained construction; a statute should never be construed so that it leads to 
absurd results."  Branch v. Commonwealth, 14 Va. App. 836, 839, 419 S.E.2d 422, 424-25 
(1992).  Code  18.2-270(D) speaks only to an enhanced penalty, not a new offense.  A review of 
the language of the DUI statutes discloses that the legislature intended nothing more than to 
enhance the penalty for the crime of DUI where transportation of a minor is involved.  Nothing 
in the statute indicates that the General Assembly intended to augment the DUI offense by 
including the felony child abuse and neglect elements within its ambit.  Furthermore, nothing 
supports the converse, viz., that the legislature intended to substitute the DUI offense, the 
elements of which are entirely distinguishable, for the child abuse and neglect offense set forth in 
Code  18.2-371.1(B).  Accordingly, we find that the legislature did not preclude prosecution for 


felony child abuse and neglect under Code  18.2-371.1(B) when it provided an enhanced 
punishment for driving under the influence "while transporting a person seventeen years of age 
or younger."  We therefore find that the prosecution of Wolfe for felony child abuse and neglect 
was a valid exercise of the Commonwealth's prosecutorial discretion, and we affirm his 
conviction.
								        Affirmed.

  Craddock did not testify at the trial.  Rather, her testimony was entered by stipulation.
  Code  18.2-270(D), which is titled "Penalty for driving while intoxicated," stated:

In addition to the penalty otherwise authorized by this section . . ., 
any person convicted of a violation of  18.2-266 committed while 
transporting a person seventeen years of age or younger shall be (i) 
fined an additional minimum of $500 and not more than $1000 and 
(ii) sentenced to perform forty hours of community service.

(Emphasis added).  After Wolfe's conviction, the legislature amended Code  18.2-270(D) to 
provide for a mandatory, minimum period of confinement of five days in lieu of the forty hours 
of community service.

  Code  18.2-371.1(B) provided:  

Any parent, guardian, or other person responsible for the care of a 
child under the age of eighteen whose willful act or omission in the 
care of such child was so gross, wanton and culpable as to show a 
reckless disregard for human life shall be guilty of a Class 6 
felony.

By amendment in 2003, the above language was redesignated as Code  18.2-371.1(B)(1).
 
 

 
 


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