Everette Elmo Davidson v. Commonwealth of Virginia ( 2000 )


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  •                         COURT OF APPEALS OF VIRGINIA
    Present: Judges Coleman, Willis and Elder
    Argued at Salem, Virginia
    ELVIS GENE DePRIEST
    v.   Record No. 1587-99-3
    COMMONWEALTH OF VIRGINIA
    LARRY RIERSON JONES
    v.   Record No. 1595-99-3
    COMMONWEALTH OF VIRGINIA
    RUSSELL NEWAII POINDEXTER
    v.   Record No. 1596-99-3                    OPINION BY
    JUDGE JERE M. H. WILLIS, JR.
    COMMONWEALTH OF VIRGINIA                  NOVEMBER 21, 2000
    JAMES PATRICK FAY
    v.   Record No. 1597-99-3
    COMMONWEALTH OF VIRGINIA
    PHILLIP WAYNE EVANS
    v.   Record No. 1598-99-3
    COMMONWEALTH OF VIRGINIA
    BARRY WAYNE HODGES
    v.   Record No. 1599-99-3
    COMMONWEALTH OF VIRGINIA
    JOHN JOHNSON, S/K/A
    JOHN WILLIAM JOHNSON
    v.   Record No. 1600-99-3
    COMMONWEALTH OF VIRGINIA
    LAWRENCE T. MARTYS, S/K/A
    LAWRENCE P. MARTYS
    v.   Record No. 1601-99-3
    COMMONWEALTH OF VIRGINIA
    EVERETTE ELMO DAVIDSON
    v.   Record No. 1619-99-3
    COMMONWEALTH OF VIRGINIA
    RONALD WALLER, S/K/A
    RONALD THOMAS WALLER
    v.   Record No. 1920-99-3
    COMMONWEALTH OF VIRGINIA
    FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
    Jonathan M. Apgar, Judge, in DePriest
    Robert P. Doherty, Jr., Judge, in remaining cases
    Sam Garrison (David Denton Lawrence;
    Michael B. Massey; Trumbo & Massey, P.L.C.,
    Richard Lee Lawrence & Associates, on
    briefs), for appellants.
    John H. McLees, Jr., Senior Assistant
    Attorney General (Mark L. Earley, Attorney
    General, on brief), for appellee.
    Amicus Curiae: Log Cabin Republican Club of
    Northern Virginia (William G. Kocol;
    Eugene M. Lawson, Jr., Resident Counsel, on
    brief), for appellants.
    Amicus Curiae: The Liberty Project
    (Julie M. Carpenter; Jared O. Freedman;
    Elena N. Broder-Feldman; Jenner & Block, on
    brief), for appellants.
    Amicus Curiae: American Civil Liberties
    Union Foundation, American Civil Liberties
    Union of Virginia, Inc., and Lambda Legal
    Defense and Education Fund, Inc. (Michael
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    Adams; Matthew Coles; Marianne Merritt;
    Philip Hirschkop; Rebecca K. Glenberg;
    Stephen R. Scarborough; Hirschkop &
    Associates, P.C., on brief), for appellants.
    These ten consolidated appeals are from judgments of
    conviction in the Circuit Court of the City of Roanoke for
    solicitation to commit oral sodomy in violation of Code
    §§ 18.2-29 and 18.2-361. 1   The appellants contend that the trial
    court erred in ruling that Code § 18.2-361:     (1) does not
    violate the fundamental right to privacy guaranteed by Article I
    of the Constitution of Virginia; (2) does not violate the
    prohibitions against cruel and unusual punishment contained in
    Article I, Section 9, of the Constitution of Virginia and in the
    Eighth Amendment to the Constitution of the United States; and
    (3) does not violate the prohibitions against an establishment
    of religion contained in Article I, Section 16, of the
    Constitution of Virginia and in the First Amendment to the
    Constitution of the United States.      The Commonwealth contends
    that the appellants lack standing to attack the
    constitutionality of Code § 18.2-361 facially and that each may
    assert the statute's constitutional invalidity only as the
    1
    Code § 18.2-29 provides, "[a]ny person who commands,
    entreats, or otherwise attempts to persuade another person to
    commit a felony, shall be guilty of a Class 6 felony."
    Code § 18.2-361, in relevant part, makes it a Class 6
    felony "[i]f any person . . . carnally knows any male or female
    person by the anus or by or with the mouth, or voluntarily
    submits to such carnal knowledge."
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    statute applies to him in his respective case.   We affirm the
    judgments of the trial court.
    I.     BACKGROUND
    Each appellant moved to dismiss the indictment against him,
    contending that Code § 18.2-361 is unconstitutional on its face.
    Each argued, inter alia, that the statute denies the fundamental
    right to privacy guaranteed by the Constitution of Virginia,
    that it violates the prohibition against an establishment of
    religion contained in the First Amendment to the Constitution of
    the United States and in Article I, Section 16, of the
    Constitution of Virginia, and that it violates the prohibition
    against cruel and unusual punishment contained in Article I,
    Section 9, of the Constitution of Virginia and the Eighth
    Amendment to the Constitution of the United States.    After
    conducting a joint evidentiary hearing and receiving
    post-hearing briefs, the trial court denied the motions.    This
    appeal addresses the trial court's ruling.
    At the hearing on their respective motions to dismiss,
    appellants called as a witness Roanoke City Police Lieutenant
    R.E. Carlisle, commander of the police Vice Bureau.    Lieutenant
    Carlisle testified that the police had received numerous
    complaints of sexual activities in public places, including
    complaints that members of the public found used condoms
    littering the ground in city public parks.   He testified that
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    children had found condoms, in some cases thinking they were
    balloons.
    Responding to the foregoing complaints, Lieutenant Carlisle
    sent plainclothes police officers to surveil the public parks.
    They observed homosexual "cruising" occurring in and between
    Smith Park and Wasena Park and in the public restroom in Wasena
    Park.    Based on this information, Lieutenant Carlisle sent
    several male undercover officers into the parks to investigate
    solicitation to commit sodomy.    He instructed the officers:
    (1) they were not to entrap anyone; (2) they were to investigate
    "based on their training and see if anyone would offer to commit
    an act against them, or pay to commit an act against them"; and
    (3) to be charged, a person "had to show a willingness to carry
    out the act in the park."    The charges that led to these appeals
    were made pursuant to those guidelines.    One person proposed
    committing oral sodomy in a private place.    That person was not
    charged.
    The appellants also called as witnesses a number of sex
    therapists, clergymen and lay people, who testified to the
    prevalence, popularity and harmlessness of oral sex between
    consenting adults, married and unmarried, "gay" and "straight,"
    in their own lives and in modern American culture.
    The trial court issued a memorandum opinion explaining its
    denial of the motions to dismiss.    The court first held that
    Code § 18.2-361 did not constitute an establishment of religion
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    or impose cruel and unusual punishment.     It further held that,
    as applied to the appellants in these cases, Code § 18.2-361
    violated no right to privacy recognized by the United States or
    Virginia Constitutions.   It ruled that the appellants lacked
    standing to complain of the potential application of the statute
    to other persons or to their private activities.
    After the motions to dismiss were denied, nine of the
    appellants pled guilty and were tried jointly.     The evidence in
    each case, as summarized by the assistant Commonwealth's
    attorney, disclosed that the respective appellant and an
    undercover police officer met in a public park and struck up a
    conversation that led to the appellant's proposing to engage in
    oral sodomy with the officer.   In no case did the appellant
    specify that the act would occur other than in the public park.
    In four cases, the appellants reached for and fondled the
    officers' crotch areas while engaging in those discussions.     In
    another case, the appellant exposed himself to the officer while
    masturbating in a public restroom.      In one case, the appellant
    suggested "find[ing] a place where no one would see us" before
    performing fellatio on the officer.
    In appellant Waller's jury trial, the arresting officer
    testified that he struck up a casual conversation with Waller
    while both were standing by the river in Wasena Park.     Waller
    then "grabbed" the officer's genitals and fondled him while
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    discussing sex acts and proposing that they commit oral sodomy
    at a different spot in the park.
    The appellants contend that they have standing to challenge
    the constitutionality of Code § 18.2-361 on its face rather than
    only as applied to them.   They further contend that Code
    § 18.2-361 imposes cruel and unusual punishment and constitutes
    an establishment of religion.    Because the appellants lack
    standing to attack Code § 18.2-361 on its face and because the
    statute neither imposes cruel and unusual punishment nor
    constitutes an establishment of religion, we affirm the
    judgments of the trial court.
    II.    STANDING
    Appellants first contend that Code § 18.2-361 violates the
    right to privacy as guaranteed by Article I, Section 1, of the
    Constitution of Virginia, which provides:
    Equality and rights of men -- That all men
    are by nature equally free and independent
    and have certain inherent rights, of which,
    when they enter into a state of society,
    they cannot, by any compact, deprive or
    divest their posterity; namely, the
    enjoyment of life and liberty, with the
    means of acquiring and possessing property,
    and pursuing and obtaining happiness and
    safety.
    In Young v. Commonwealth, 
    101 Va. 853
    , 
    45 S.E. 327
     (1903),
    the Supreme Court explained the meaning of the liberty guarantee
    as follows:
    The word "liberty," as used in the
    Constitution of the United States and the
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    several States, has frequently been
    construed, and means more than mere freedom
    from restraint. It means not merely the
    right to go where one chooses, but to do
    such acts as he may judge best for his
    interest, not inconsistent with the equal
    rights of others; that is, to follow such
    pursuits as may be best adapted to his
    faculties, and which will give him the
    highest enjoyment. The liberty mentioned is
    deemed to embrace the right of the citizen
    to be free in the enjoyment of all his
    faculties; to be free to use them in all
    lawful ways; to live and work where he will;
    to earn his livelihood by any lawful
    calling, and for that purpose to enter into
    all contracts which may be proper,
    necessary, and essential to his carrying out
    to a successful conclusion the purpose above
    mentioned. These are individual rights,
    formulated as such under the phrase "pursuit
    of happiness" in the Declaration of
    Independence, which begins with the
    fundamental proposition that all men are
    created equal; that they are endowed by
    their Creator with certain inalienable
    rights; that among these are life, liberty
    and the pursuit of happiness.
    Id. at 862-63, 45 S.E. at 328-29 (citations omitted) (emphasis
    added).    The constitutional right to liberty is not an unlimited
    license.   Liberty must be enjoyed and exercised lawfully and in
    a manner not inconsistent with the equal rights of others.
    An individual may challenge the constitutionality of a law
    only as it applies to him or her.       See Coleman v. City of
    Richmond, 
    5 Va. App. 459
    , 463, 
    364 S.E.2d 239
    , 241-42 (citation
    omitted), reh'g denied, 
    6 Va. App. 296
    , 
    368 S.E.2d 298
     (1988).
    "That the statute may apply unconstitutionally to another is
    irrelevant; one cannot raise third party rights."       Id. at 463,
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    364 S.E.2d at 242.   See also Pederson v. Richmond, 
    219 Va. 1061
    ,
    1066, 
    254 S.E.2d 95
    , 98 (1979) (finding one lacks standing to
    assert the privacy rights of third parties).
    The appellants contend that they fall within an exception
    to the general standing rule.
    In the past, the [United States Supreme
    Court] has recognized some limited
    exceptions to these principles, but only
    because of the most "weighty, countervailing
    policies." One such exception is where
    individuals not parties to a particular suit
    stand to lose by its outcome and yet have no
    effective avenue of preserving their rights
    themselves. Another exception has been
    carved out in the area of the First
    Amendment.
    Broadrick v. Oklahoma, 
    413 U.S. 601
    , 611 (1973) (citations
    omitted); see also Santillo v. Commonwealth, 
    30 Va. App. 470
    ,
    477 n.3, 
    517 S.E.2d 733
    , 736 n.3 (1999) (stating an exception to
    the general standing rule is in the area of First Amendment
    challenges).
    This is not a First Amendment case.   See Pederson, 219 Va.
    at 1066, 254 S.E.2d at 98.   Contrary to the appellants'
    argument, sex therapists, married persons, and consenting adults
    engaging privately in sexual conduct (persons not involved in
    this case) do not stand to lose by the outcome of this case.
    They retain an "effective avenue of preserving their rights
    themselves."   Any such person proposing or engaging in sodomy
    under circumstances supporting a claim of privacy may, upon
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    discovery and accusation, assert, in his defense, those
    circumstances and that claim.
    We conclude, therefore, that appellants fall within the
    general rule that a party attacking the constitutionality of a
    statute must demonstrate that his own, rather than a third
    party's, rights are unconstitutionally infringed.    Accordingly,
    appellants lack standing to challenge facially the
    constitutionality of Code § 18.2-361.    Thus, we consider the
    constitutionality of the statute only as it applies to the
    appellants in this case and to their conduct that underlay their
    convictions.
    III.   PRIVACY
    Appellants contend that by inhibiting their ability to
    engage in homosexual conduct with other similarly disposed
    persons, Code § 18.2-361 infringes their right to privacy.    In
    so arguing, they assert the privacy rights of married persons
    and of persons who, unlike them, may engage in such conduct in
    private.   But the appellants' conduct was not private.   Whatever
    may be the constitutional privacy rights of one who engages in
    sodomy in private, those rights do not attach to one who does
    the same thing in public.    See Lovisi v. Slayton, 
    363 F. Supp. 620
     (E.D. Va. 1973), aff'd, 
    539 F.2d 349
     (4th Cir.), cert.
    denied, 
    429 U.S. 977
     (1976).
    Lovisi involved a challenge to the constitutionality of the
    predecessor to Code § 18.2-361.    Mr. and Mrs. Lovisi engaged in
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    sodomy with a third person in their home.      They permitted
    themselves to be photographed committing those acts.      The
    pictures fell into the hands of their children and became
    public.   Lovisi claimed the statute unconstitutionally invaded
    his right of privacy.    The court held that through publication
    Lovisi's acts ceased to be "private."      The court said:
    The Court is faced with the . . . question
    of whether, if the Lovisis' conduct was not
    constitutionally protected, they may attack
    the constitutionality of [the statute] on
    the basis of the rights of third persons.
    . . . The Court . . . holds that they do not
    have standing to assert the constitutional
    rights of other persons and thus may not
    attack the constitutionality of statutes
    underlying their conviction on this basis.
    Id. at 623-24.
    The activities underlying the charges against the
    appellants were not conducted in private.      Their solicitations
    were made to strangers in public parks.      They proposed to commit
    sodomy in the public parks.    The appellants' acts and their
    proposed conduct were clothed with no circumstance giving rise
    to a supportable claim of privacy.       Those acts and proposed
    conduct fall squarely within the rule of Lovisi.
    IV.    CRUEL AND UNUSUAL PUNISHMENT
    The appellants next contend that Code § 18.2-361 violates
    the prohibitions against "cruel and unusual punishment"
    contained in Article I, Section 9, of the Constitution of
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    Virginia 2 and the Eighth Amendment to the Constitution of the
    United States. 3   They argue that the disparity between the
    punishment provided for sodomy and that provided for adultery or
    fornication effects the imposition of cruel and unusual
    punishment upon those convicted of sodomy.    We disagree.
    It lies within the province of the legislature to define
    and classify crimes and to determine the punishments for those
    crimes.   Hart v. Commonwealth, 
    131 Va. 726
    , 
    109 S.E. 582
     (1921).
    No punishment authorized by statute, even though severe, is
    cruel and unusual unless it is one "prescribing a punishment in
    quantum so severe for a comparatively trivial offense that it
    would be so out of proportion to the crime as to shock the
    conscience . . . ."    Id. at 745, 109 S.E. at 588.   We find our
    consciences shocked neither by appellants' sentences 4 nor by the
    five-year maximum sentence provided by the statute.    Therefore,
    we find no imposition of cruel or unusual punishment.
    2
    "[E]xcessive bail ought not to be required, nor excessive
    fines imposed, nor cruel and unusual punishments inflicted
    . . . ." Va. Const. art. I, § 9.
    3
    "Excessive bail shall not be required, nor excessive fines
    imposed, nor cruel and unusual punishments inflicted." U.S.
    Const. amend. VIII.
    4
    In nine of the ten cases, the defendants entered
    conditional pleas of guilty with plea agreements that the
    appropriate sentences would be twelve months in jail suspended
    and a $1,000 fine. In the tenth case, the defendant was tried
    and convicted by a jury, and sentenced to serve sixty days in
    jail and a fine of $1,500.
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    V.   ESTABLISHMENT OF RELIGION
    Finally, the appellants contend that Code § 18.2-361
    violates the prohibition against an "Establishment of Religion"
    contained in Article I, Section 16, of the Constitution of
    Virginia 5 and the First Amendment to the Constitution of the
    United States. 6   We disagree.
    The appellants produced testimony concerning the religious
    origins and development of the law against sodomy.   They argue
    that its religious origin renders Code § 18.2-361
    unconstitutional.
    Although Code § 18.2-361 may have a basis in religious
    values, this alone is not dispositive of the constitutional
    issue.   In rejecting a constitutional challenge to Maryland's
    Sunday closing laws, the Supreme Court held in McGowan v.
    Maryland, 
    366 U.S. 420
     (1961):
    However, it is equally true that the
    "Establishment" Clause does not ban federal
    or state regulation of conduct whose reason
    or effect merely happens to coincide or
    harmonize with the tenets of some or all
    religions. In many instances, the Congress
    or state legislatures conclude that the
    general welfare of society, wholly apart
    from any religious considerations, demands
    such regulation. Thus, for temporal
    purposes, murder is illegal. And the fact
    5
    "[T]he General Assembly shall not . . . confer any peculiar
    privileges or advantages on any sect or denomination . . . ."
    Va. Const. art. I, § 16.
    6
    "Congress shall make no law respecting an establishment of
    religion . . . ." U.S. Const. amend. I.
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    that this agrees with the dictates of the
    Judaeo-Christian religions while it may
    disagree with others does not invalidate the
    regulation. So too with the questions of
    adultery and polygamy. The same could be
    said of theft, fraud, etc., because those
    offenses were also proscribed in the
    Decalogue.
    Id. at 442 (citations omitted).
    The Supreme Court has defined a three-pronged test to
    determine whether a statute effects an establishment of
    religion.   To be found free of such an establishment, "first,
    the statute must have a secular legislative purpose; second, its
    principal or primary effect must be one that neither advances
    nor inhibits religion; finally, the statute must not foster 'an
    excessive government entanglement with religion.'"     Lemon v.
    Kurtzman, 
    403 U.S. 602
    , 612-13 (1971) (citations omitted).
    The appellants have failed to prove that the primary effect
    of Code § 18.2-361 is to advance or inhibit religion.      Nor have
    they proved that Code § 18.2-361 fosters "excessive governmental
    entanglement with religion."    Id.   To the contrary, the statute
    rests plainly on long established secular values concerning
    sexual conduct.
    Thus, the appellants have failed to demonstrate that Code
    § 18.2-361 effects an establishment of religion.
    We affirm the judgments of the trial court.
    Affirmed.
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