McDonald v. Com.

Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Agee, JJ., and Russell, S.J.

WILLIAM S. MCDONALD,
A/K/A WILLIAM S. MACDONALD

v. Record No. 061456 OPINION BY JUSTICE DONALD W. LEMONS
June 8, 2007
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we consider a constitutional challenge to

Code § 18.2-361 prohibiting sodomy.

I. Facts

The facts of this case are not in dispute. William S.

McDonald ("McDonald"), a man who was 45 to 47 years old during

the years when the subject events took place, engaged in

private, sexual intercourse and oral sodomy with a 16-year-old

female, L.F., on two occasions. McDonald also had private,

sexual intercourse and engaged in oral sodomy with a different

female, A.J., who was 17 years of age at the time. In a non-

jury trial, McDonald was found guilty of one count of

contributing to the delinquency of a minor under Code § 18.2-

371 and four counts of sodomy under Code § 18.2-361. Only the

sodomy convictions are before this Court on appeal.

II. Proceedings

a. Trial Court

Prior to trial, a written “Motion to Dismiss on Due

Process Grounds” was filed asserting that “Code Section 18.2-

1
361 violates the Due Process Clause of the Fourteenth

Amendment of the United States Constitution” and further

citing to this Court’s opinion in Martin v. Ziherl, 269 Va.

35, 607 S.E.2d 367 (2005). Significantly, the written motion

did not state whether the constitutional challenge was facial

or as applied to McDonald. There were no memoranda of law or

briefs filed in support of the motion to dismiss.

Additionally, the Commonwealth filed no written response.

The record does not reveal whether this written motion

was the subject of a pre-trial consideration; however, the

matter was brought to the trial court’s attention at the

conclusion of the Commonwealth’s case-in-chief. In the oral

motion to dismiss, McDonald and the trial court made reference

to the written motion previously filed. McDonald’s argument

at this time was entirely predicated upon his contention that

the victims were both “of the age of consent.” Counsel for

McDonald stated:

My argument would be you have testimony from
these two girls they consented, they were not
forced, they were not threatened, they were not
paid. These were not public acts, they were
private, concealed from other people. My
argument would be that I believe that the age of
consent in Virginia would be sixteen.

Continuing, in an apparent reference to the only case that had

been mentioned, Martin, counsel stated:

2
 My argument here would be based on the testimony
that you heard thus far that these are two people
who are old enough to consent, who have consented,
who have not been forced to do anything, who have
not been threatened in any way and who are willing
participants in these activities. And my argument
is that because they are of the age of consent –
the court there doesn’t say specifically if they
are minors this ruling wouldn’t apply. It says it
may – state regulation of this type of activity
might support a different result. But, at the
same time we do not have people who are under the
age of consent, we have people who are of the age
of consent. One girl being seventeen-and-a-half
years old at the time and one girl being sixteen
at the time. They have not detailed that they
have been forced to commit any of these acts. In
fact, what Mr. McDonald is accused of is
consensual sodomy. And so what I would argue is
that because they are of the age of consent and
they’re old enough to give that consent, there is
no crime here, and to punish him would be in
violation of the due-process clause of the 14th
Amendment, just taking the Commonwealth at its
evidence.

At no point in this argument to the trial court did

McDonald claim that Code § 18.2-361 was facially

unconstitutional nor did he expressly argue that the statute

was unconstitutional as applied to him. By implication,

McDonald makes an as-applied argument maintaining that on the

facts of this case, because the victims were of the age of

consent, it would violate the Due Process Clause of the 14th

Amendment to find him guilty of the offenses charged. In an

apparent reference to Martin wherein we stated, “It is

important to note that this case does not involve minors, non-

consensual activity, prostitution, or public activity,” 269

3
Va. at 42, 607 S.E.2d at 371, McDonald sought to bring his

case within the scope of our decision in Martin by arguing

that the specific exceptions we noted did not apply in this

case because the age of consent for sodomy was sixteen-years-

old and both victims were “of age.” As presented to the trial

court, McDonald’s objections were quite narrowly stated.

Addressing the only argument made by McDonald, the trial

court stated:

I don’t find that the due-process clause or the
case that you cite would abrogate the law as it
relates to juveniles and the code section that
they’re charged under, and I don’t find any
constitutional violation.

The trial court denied the motion to dismiss. After

presentation of McDonald’s evidence, counsel for McDonald

stated, “Your Honor, the defense at this time will rest and

renew its motion to dismiss on the grounds previously stated.”

No additional arguments were offered in support of the motion

to dismiss on constitutional grounds, and the trial court

ruled as follows: “I would overrule your motions at the

conclusion of all the evidence and hear argument at this

point.” The court then heard closing arguments on the merits

of the case.

b. Court of Appeals

4
 After conviction, McDonald noted his appeal to the Court

of Appeals of Virginia and in his petition stated the Question

Presented as follows:

Did the trial court err in finding that Virginia
Code § 18.2-361 Section A remains a valid
exercise of the police power of the state,
surviving a substantive due process
constitutional challenge?

For the first time, McDonald included in his argument:

"Virginia Code Section 18.2-361 Section A, insofar as it

relates to consensual sodomy between unrelated individuals who

have reached the age of consent is facially unconstitutional,

as a violation of the Due Process Clause of the Fourteenth

Amendment.” At the petition stage in the Court of Appeals,

McDonald also argued that “the statute is also

unconstitutional as applied to the Defendant, as it prohibits

constitutionally protected conduct between individuals who

have reached the age of consent for such acts.” Once again,

McDonald’s argument was predicated upon the age of consent.

Upon grant of the petition for appeal, McDonald filed his

opening brief reciting the same question presented and making

arguments identical to those contained in his petition.

The Court of Appeals in a published decision, McDonald v.

Commonwealth, 48 Va. App. 325, 630 S.E.2d 754 (2006), affirmed

the judgment and conviction of the trial court. The Court of

Appeals appeared to hold that McDonald lacked standing to

5
mount a facial challenge to the constitutionality of a statute

because a party "has standing to challenge the

constitutionality of a statute only insofar as it has an

adverse impact on his own rights.” Id. at 329, 630 S.E.2d at

756 (quoting County Court of Ulster County v. Allen, 442 U.S.

140, 154-55 (1979)). The Court of Appeals appeared to hold

that “only an as-applied challenge was appropriate.” Id.

Nonetheless, the Court of Appeals also appeared to decide the

facial challenge to the statute by holding that “nothing in

Lawrence or the Supreme Court of Virginia’s opinion in Martin

. . . facially invalidates Code § 18.2-361(A).” Id.

The Court of Appeals then considered an as-applied

challenge to the constitutionality of Code § 18.2-361(A).

Recognizing that McDonald predicates his argument upon his

contention that the victims had reached the “age of consent,”

the Court of Appeals concluded that the statute “is

constitutional as applied to McDonald because his violations

involved minors and therefore merit no protection under the

Due Process Clause.” Id. at 332, 630 S.E.2d at 758.

c. Supreme Court of Virginia

Upon appeal to this Court, McDonald assigns error as

follows:

Mr. McDonald assigns as error Judge Haley’s
decision denying his appeal, and specifically
his findings that:

6
 1. That Mr. McDonald did not have standing to
mount a facial attack on the
constitutionality of Virginia Code § 18.2-
361(A).

2. That Virginia Code § 18.2-361(A) survives
an as applied constitutional attack where
the conduct alleged involved an adult and
a minor who is above the age of consent in
Virginia.

While assignment of error 2 is worded somewhat differently

than the content of McDonald's Question Presented in the Court

of Appeals, it nonetheless fairly encompasses his argument to

that court. Assignment of error 1 is directed to the judgment

of the Court of Appeals. In his brief before this Court,

McDonald makes the same arguments he did in the Court of

Appeals. He is aided in his arguments by a brief amicus

curiae.

But the efforts of the amicus are to no avail because the

arguments of the parties on appeal and thus the aid of amicus

must be limited to issues preserved in the trial court, Rule

5:25, and to issues presented before the appellate courts,

Rule 5A:12, Rule 5:17 and Rule 5:30(c). Of course, an

appellate court may not reverse a judgment of the trial court

based upon an alleged error in a decision that was not made or

upon an issue that was not presented. The trial court in this

case never had before it a claim of facial invalidity of Code

§ 18.2-361(A). Consequently, we will not consider McDonald’s

7
first assignment of error. We will consider his limited

argument concerning the constitutionality of the statute as

applied to him.

III. Analysis

The very narrow issue preserved in the trial court and

presented by McDonald for our review is quite simple.

McDonald maintains that our decision in Martin governs this

case, because, he alleges, the victims were of the age of

consent and not excepted from the scope of our opinion.

The Martin case involved two unmarried adults in a

sexually active relationship. 269 Va. at 38, 607 S.E.2d at

368. Martin became infected with the herpes virus allegedly

because of sexual contact with Ziherl. Id. After their

relationship ended, Martin sued Ziherl in tort alleging that

he knew he was infected with the sexually transmitted herpes

virus when they engaged in unprotected sexual conduct, knew

that the virus was contagious, and failed to inform her of his

condition. Id. Ziherl filed a demurrer asserting that

Martin's injuries were caused by her participation in an

illegal act under Virginia law and therefore, under Zysk v.

Zysk, 239 Va. 32, 404 S.E.2d 721 (1990), the motion for

judgment did not state a claim upon which relief could be

granted. Id. The trial court sustained Ziherl’s demurrer.

Id.

8
 On appeal we considered the effect of the decision of the

Supreme Court of the United States in Lawrence v. Texas, 539

U.S. 558 (2003), upon our prior decision in Zysk and further

considered whether Code § 18.2-344, the fornication statute,

("Any person, not being married, who voluntarily shall have

sexual intercourse with any other person, shall be guilty of

fornication, punishable as a Class 4 misdemeanor."), could

continue to provide a public policy basis for not permitting

civil recovery for the conduct presented in both Zysk and

Martin.

Lawrence had been convicted of violating a Texas statute

that made it a crime for two persons of the same sex to engage

in certain intimate sexual conduct described as the act of

sodomy. Tex. Penal Code Ann. § 21.06(a)(2003). The Court of

Appeals for the Texas Fourteenth District rejected Lawrence’s

constitutional challenge to the statute relying on Bowers v.

Hardwick, 478 U.S. 186, 189 (1986). The Supreme Court in

Bowers had previously held that a Georgia statute making it a

crime to engage in homosexual sodomy, was constitutional.

Lawrence v. State, 41 S.W.3d 349, 360-62 (Tex. App. 2001).

Reversing its prior decision in Bowers, the Court in Lawrence

held that the Texas sodomy statute was unconstitutional

because it furthered “no legitimate state interest which can

justify its intrusion into the personal and private life of

9
the individual.” Lawrence, 539 U.S. at 578. The Court in

Lawrence noted that:

The present case does not involve minors.
It does not involve persons who might be
injured or coerced or who are situated in
relationships where consent might not
easily be refused. It does not involve
public conduct or prostitution. It does
not involve whether the government must
give formal recognition to any
relationship that homosexual persons seek
to enter.

Id.

Upon consideration of the decision in Lawrence, we

observed in Martin that:

We find no relevant distinction between
the circumstances in Lawrence and the
circumstances in the present case . . . .
We find no principled way to conclude that
the specific act of intercourse is not an
element of a personal relationship between
two unmarried persons or that the Virginia
statute criminalizing intercourse between
unmarried persons does not improperly
abridge a personal relationship that is
within the liberty interest of persons to
choose. Because Code § 18.2-344, like the
Texas statute at issue in Lawrence, is an
attempt by the state to control the
liberty interest which is exercised in
making these personal decisions, it
violates the Due Process Clause of the
Fourteenth Amendment.

269 Va. at 41-42, 607 S.E.2d at 370.

First, it is necessary to state that our holding in

Martin was that, under the circumstances presented, the

10
statute at issue, Code § 18.2-344, was unconstitutional. See

Id. at 42, 607 S.E.2d at 371. We further stated that:

It is important to note that this case does not
involve minors, non-consensual activity,
prostitution, or public activity. The Lawrence
court indicated that state regulation of that
type of activity might support a different
result. Our holding, like that of the Supreme
Court in Lawrence, addresses only private,
consensual conduct between adults and the
respective statutes’ impact on such conduct. Our
holding does not affect the Commonwealth’s police
power regarding regulation of public fornication,
prostitution, or other such crimes.

Id. at 42-43, 607 S.E.2d at 371. Clearly, the declaration

that the holding did not affect the Commonwealth’s police

power regarding other crimes is the essence of an as-applied

analysis of constitutionality of the statute. After Martin,

Code § 18.2-344 still has efficacy as noted; consequently, it

was not facially invalidated by our opinion.

McDonald’s as-applied constitutional challenge to Code

§ 18.2-361, the sodomy statute, involves McDonald's proposed

construction of several statutes. Except for certain conduct

between specified related persons, the sodomy statute does not

contain age restrictions. See Code § 18.2-361. McDonald

seeks to “borrow” age restrictions from the contributing to

the delinquency of a minor statute, Code § 18.2-371 and the

carnal knowledge statute, Code § 18.2-63.

11
 In pertinent part, the contributing to the delinquency of

a minor statute states:

Any person 18 years of age or older, including
the parent of any child, who . . .(ii) engages in
consensual sexual intercourse with a child 15 or
older not his spouse, child, or grandchild, shall
be guilty of a Class 1 misdemeanor.

Code § 18.2-371.

In pertinent part, the carnal knowledge statute states:

If any person carnally knows, without the use
of force, a child thirteen years of age or
older but under fifteen years of age, such
person shall be guilty of a Class 4 felony.

. . . .

For the purposes of this section, (i) a child
under the age of thirteen years shall not be
considered a consenting child and (ii) "carnal
knowledge" includes the acts of sexual
intercourse, cunnilingus, fellatio, anallingus,
anal intercourse, and animate and inanimate
object sexual penetration.

Code § 18.2-63.

McDonald contends that the contributing to the

delinquency of a minor statute refers only to sexual

intercourse and penalizes such acts as a misdemeanor for an

adult to commit such acts upon children aged fifteen, sixteen,

or seventeen. Because the statute does not mention sodomy,

McDonald argues that the contributing statute does not apply

to acts of sodomy. He further infers from the carnal

knowledge statute that because prosecution under its

12
provisions includes both sexual intercourse and specified

forms of sodomy, that this "puts the age of consent for sexual

activity in Virginia at 15 years old.” McDonald is incorrect

for two reasons: (1) the sodomy statute stands alone and

without age restrictions concerning consent in this case, and

(2) the real issue in this case is the victims' legal status

as minors.

First, the fact that separate statutes may overlap in

their proscription of specific conduct does not detract from

their independent enforcement except when double jeopardy

concerns are implicated. "[W]hen an act violates more than

one criminal statute, the Government may prosecute under

either so long as it does not discriminate against any class

of defendants." United States v. Batchelder, 442 U.S. 114,

123-24 (1979); see also Muhammad v. Commonwealth, 269 Va. 451,

501-02, 619 S.E.2d 16, 45 (2005). "Whether to prosecute and

what charge to file or bring before a grand jury are decisions

that generally rest in the prosecutor's discretion."

Batchelder, 442 U.S. at 124. McDonald raises no double

jeopardy issues. Furthermore, there is no basis for

engrafting provisions or perceived implications from the

carnal knowledge statute and the laws governing the crime of

contributing to the delinquency of a minor into the sodomy

13
statute. Such matters are for legislative consideration, and

here the provisions are simply different.

Second, the real issue is the legal status of the victims

as minors. Determining the age of majority is the province of

the General Assembly. Mack v. Mack, 217 Va. 534, 537, 229

S.E.2d 895, 897 (1976) (holding "minority is a legal status

subject to change by the legislature”). The Code is quite

specific concerning the dividing line between minors and

adults. Code § 1-203 (" 'Adult' " means a person 18 years of

age or more.”), Code § 1-204 (“For the purposes of all laws of

the Commonwealth including common law, case law, and the acts

of the General Assembly, unless an exception is specifically

provided in this Code, a person shall be an adult, shall be of

full age, and shall reach the age of majority when he becomes

18 years of age.”), Code § 1-207 (“ 'Child,' 'juvenile,'

'minor,' 'infant,' or any combination thereof means a person

less than 18 years of age.").

The sodomy statute has no express age of consent;

however, it must be applied in a constitutional manner in

conformity with Lawrence and Martin. The Court in Lawrence

was explicit in its declaration of the scope of its opinion:

“The present case does not involve minors.” 539 U.S. at 578.

We were equally explicit in our opinion in Martin: "It is

important to note that this case does not involve minors, non-

14
consensual activity, prostitution, or public activity. . . .

Our holding, like that of the Supreme Court in Lawrence,

addresses only private, consensual conduct between adults and

the respective statutes’ impact on such conduct.” 269 Va. at

42-43, 607 S.E.2d at 371.

As we have previously held, we "construe the plain

language of a statute to have limited application if such a

construction will tailor the statute to a constitutional fit."

Virginia Society for Human Life v. Caldwell, 256 Va. 151, 157

n.3, 500 S.E.2d 814, 817 n.3 (1998). Therefore, when there is

an as-applied challenge to a statute, we must interpret the

statute in such a manner as to remove constitutional

infirmities.

The only issue preserved at the trial court and presented

to this Court is an as-applied constitutional challenge to the

sodomy statute. McDonald’s statutory construction argument is

faulty and furthermore, it misses the real issue. The victims

in this case were minors, defined by the Code of Virginia as

persons under the age of eighteen. See Code § 1-207. Nothing

in Lawrence or Martin prohibits the application of the sodomy

statute to conduct between adults and minors.

IV. Conclusion

For the reasons stated, we will affirm the judgment of

the Court of Appeals.

15
 Affirmed.

16