Michael R. Mollenhauer v. Commonwealth of Virginia, 0826202

In 2018 DSS removed three-year-old S.M. from the Mollenhauer home after finding she slept in a homemade, cage-like enclosure, was locked in it at night, and had limited access to food.
A VCU child-protection physician concluded S.M. suffered failure to thrive and that her history was consistent with a diagnosis of child torture (soft-tissue injuries, restraint/isolation, and food deprivation).
Michael R. Mollenhauer (appellant) and Christina Mollenhauer were jointly indicted and tried for child cruelty under Code § 40.1-103; the indictment tracked the statute’s multiple clauses.
No written pre-trial motion challenging the constitutionality of the statute was filed; at trial counsel moved to strike based on Carter (which struck the statute’s “may endanger” clause) but did not assert the third clause was vague.
After conviction, appellant first argued post-trial that the statute’s terms “tortured” and “cruelly treated” were unconstitutionally vague; the trial court denied the post-trial motion and sentenced both defendants to five years’ incarceration, suspended on five years’ good behavior.
On appeal the Court of Appeals held the record does not show good cause to excuse the failure to file the required written pre-trial constitutional challenge under Code § 19.2-266.2 and therefore declined to reach the vagueness merits; conviction affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the terms “tortured” and “cruelly treated” in Code § 40.1-103 are unconstitutionally vague	Mollenhauer: terms are undefined and vague, so conviction under that clause is unconstitutional	Commonwealth: challenge waived for failure to file the written pre-trial motion required by Code § 19.2-266.2; no good cause shown to excuse late challenge	Court: Waiver — record lacks good cause to permit late constitutional challenge; did not reach vagueness merits; conviction affirmed
Whether the circuit court implicitly found good cause by allowing post-trial argument and whether the record supports such an implicit finding	Mollenhauer: allowing post-trial argument implicitly permitted a late motion; good cause exists	Commonwealth: no explicit finding of good cause and record lacks facts (e.g., surprise or change in law) to support excusing the timing rule	Court: Even assuming implicit permission, the record does not establish good cause; timing requirement not excused

Carter v. Commonwealth, 21 Va. App. 150 (Va. Ct. App.) (struck statute’s “may endanger” clause as unconstitutionally vague)
Schmitt v. Commonwealth, 262 Va. 127 (Va. 2001) (failure to meet pre-trial statutory requirements waives constitutional challenge on appeal)
Upchurch v. Commonwealth, 31 Va. App. 48 (Va. Ct. App.) (good-cause exception analysis for late pre-trial motions)
Bass v. Commonwealth, 70 Va. App. 522 (Va. Ct. App.) (pre-trial filing requirements protect against surprise and preserve Commonwealth’s appeal rights)
Freeman v. Commonwealth, 14 Va. App. 126 (Va. Ct. App.) (change in law can establish good cause for late motion)
Epps v. Commonwealth, 293 Va. 403 (Va.) (failure to argue good cause in circuit court waives late challenge)
United States v. Forrester, 60 F.3d 52 (2d Cir.) (inadvertence by counsel does not constitute cause for late pre-trial filings)