Singson v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Kelsey and Senior Judge Overton
Argued at Chesapeake, Virginia

JOEL DULAY SINGSON
OPINION BY
v. Record No. 0646-04-1 JUDGE ROBERT J. HUMPHREYS
NOVEMBER 8, 2005
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Frederick B. Lowe, Judge1

Gregory R. Nevins (John L. Squires; Lambda Legal Defense and
Education Fund, Inc.; Dan Miller & Associates, on briefs), for
appellant.

William E. Thro, State Solicitor General (Judith Williams Jagdmann,
Attorney General; Matthew M. Cobb, Associate State Solicitor
General; Ronald N. Regnery, Associate State Solicitor General, on
brief), for appellee.

Appellant Joel Dulay Singson (“Singson”) appeals his conviction, following a conditional

guilty plea, for solicitation to commit oral sodomy, in violation of Code §§ 18.2-29 (criminal

solicitation) and 18.2-361 (crimes against nature). Based on the holding of the United States

Supreme Court in Lawrence v. Texas, 539 U.S. 558 (2003), Singson contends that Code

§ 18.2-361 is facially unconstitutional because it prohibits private acts of consensual sodomy, in

violation of the Due Process Clause of the Fourteenth Amendment. Thus, Singson argues that he

cannot be convicted for attempting, through solicitation, to violate that statute. In the alternative,

Singson contends that Code § 18.2-361 is unconstitutionally overbroad because it, in conjunction

1
Although Judge Frederick B. Lowe entered the final order in this case, the record
reflects that Judge Edward W. Hanson, Jr., made the ruling being challenged on appeal.
with Code § 18.2-29, chills constitutionally protected speech, also arguing that the sentence

imposed by the trial court constitutes cruel and unusual punishment, in violation of the Eighth

Amendment to the United States Constitution. For the reasons that follow, we hold that Singson

lacks standing to facially challenge the constitutionality of Code § 18.2-361 pursuant to the Due

Process Clause of the Fourteenth Amendment. We also hold that Code § 18.2-361 is not

unconstitutionally overbroad under the First Amendment and that Singson is procedurally barred

from arguing that the sentence imposed by the trial court constitutes cruel and unusual

punishment. Accordingly, we affirm his conviction for solicitation to commit oral sodomy.

I. BACKGROUND

The relevant facts are not in dispute. At approximately 4:00 p.m. on March 20, 2003,

Singson walked into a men’s restroom located in a department store. The restroom is freely

accessible to members of the public, including children. Once in the restroom, Singson entered

the handicapped bathroom stall and remained in that stall for approximately thirty minutes.

Singson then left the handicap bathroom stall and approached a stall occupied by an undercover

police officer. Singson “stopped in front of the stall, leaned forward,” and “peered into [the] stall

through the crack in the stall door.” The undercover police officer, who was in “a state of

undress,” asked Singson “What’s up?” and “What are you looking for?” Singson replied,

“Cock.” The officer then asked “What do you want to do,” and Singson replied, “I want to suck

cock.” The undercover officer asked if Singson wanted to suck his penis, and Singson

responded, “Yes.” When the officer asked, “Do you want to do it in here,” Singson nodded

towards the handicap stall. The officer then asked if Singson wanted to suck his penis in the

handicap stall, and Singson responded, “Yes.”

A grand jury indicted Singson for “command[ing], entreat[ing] or otherwise attempt[ing]

to persuade another to commit a felony other than murder,” specifically, “Crimes Against

-2-
Nature,” in violation of Code §§ 18.2-29 and 18.2-361. Singson moved to dismiss the

indictment, arguing that Code § 18.2-361 “is overbroad and vague, [and] violates the defendant’s

rights to Due Process under the United States Constitution as outlined in the recent U.S. Supreme

Court opinion in [Lawrence v. Texas, 539 U.S. 558 (2003)].”

The trial court overruled the motion to dismiss, reasoning that Lawrence did not apply

because “the restrooms within [s]tores open to the public are not within the zone of privacy as

contemplated by the United States Supreme Court.” The court further noted that it could not

“imagine too much more [of a] public place than a restroom in a shopping mall.” Singson

entered a conditional guilty plea, and the trial court, noting Singson’s extensive criminal history

of prior, similar behavior, imposed a sentence of three years in prison. The court suspended two

and one-half years of Singson’s sentence, resulting in a total active sentence of six months.

II. ANALYSIS

On appeal, Singson raises three assignments of error. First, he contends that his

conviction should be reversed because, in light of the Supreme Court’s decision in Lawrence,

Code § 18.2-361 is facially unconstitutional. Second, Singson argues, in the alternative, that his

conviction should be reversed because Code § 18.2-361 is unconstitutionally overbroad. Third,

Singson contends that the sentence imposed by the trial court constitutes cruel and unusual

punishment, in violation of the Eighth Amendment. For the reasons that follow, we find no

merit in any of these contentions. Accordingly, we affirm.

A. Whether Code § 18.2-361 is Facially Unconstitutional Because it Encompasses Conduct
Protected Under the Due Process Clause of the Fourteenth Amendment

Citing the United States Supreme Court’s decision in Lawrence v. Texas, 539 U.S. 558

(2003), Singson initially contends that Code § 18.2-361 is facially unconstitutional because it

encompasses private acts of consensual sodomy, thus offending the Due Process Clause of the

Fourteenth Amendment. However, because Singson’s conduct occurred in a public place—not a
-3-
private location—we hold that he lacks standing to challenge the constitutionality of Code

§ 18.2-361 on this ground. Accordingly, we do not reach the issue of whether, applying

Lawrence, Code § 18.2-361 is facially unconstitutional under the Fourteenth Amendment

because it encompasses private—as well as public—acts of consensual sodomy. And, because

application of Code § 18.2-361 under the circumstances of this case neither implicates nor

violates Singson’s constitutional right to due process of law, we conclude that this assignment of

error has no merit.

1. Whether Public Sexual Conduct is Encompassed by Code § 18.2-361

Code § 18.2-361 provides, in relevant part, as follows:

If any person carnally knows in any manner . . . any male or
female person by the anus or by or with the mouth, or voluntarily
submits to such carnal knowledge, he or she shall be guilty of a
Class 6 felony . . . .

Code § 18.2-361(A). As we have noted, “[t]he term ‘carnal knowledge’ has been construed to

include ‘any sexual bodily connection, not simply sexual intercourse.’” Santillo v.

Commonwealth, 30 Va. App. 470, 483, 517 S.E.2d 733, 740 (1999) (quoting Shull v.

Commonwealth, 16 Va. App. 667, 669, 431 S.E.2d 924, 925 (1993), aff’d, 247 Va. 161, 440

S.E.2d 133 (1994)). Because “[c]arnal knowedge ‘with the mouth’ is another term for

cunnilingus, and carnal knowledge ‘by the mouth’ includes fellatio,” id. (citation omitted), Code

§ 18.2-361 prohibits any sexual act “involv[ing] contact between the mouth and genitals,

including . . . oral sex.” Id. at 484, 517 S.E.2d at 740.

Here, Singson solicited fellatio from an undercover officer in a public restroom. In other

words, Singson sought to engage in conduct “involv[ing] contact between the mouth and

genitals,” specifically, “oral sex.” Id. Thus, Singson’s attempted conduct falls squarely within

the scope of Code § 18.2-361(A). See id.; see also Lankford v. Foster, 546 F. Supp. 241, 249

-4-
n.11 (W.D. Va. 1982) (defining fellatio as “sodomy by the mouth”), aff’d, 716 F.2d 896 (4th Cir.

1983).

2. Appellant’s Standing to Mount a Facial Challenge on Due Process Grounds

Singson argues, however, that Code § 18.2-361 is facially unconstitutional because, in

light of the United States Supreme Court’s holding in Lawrence, the statute—as applied to

private, consensual acts of sodomy—violates the Due Process Clause of the Fourteenth

Amendment. Because the statute is facially unconstitutional, Singson reasons that, even though

his public conduct falls within the ambit of Code § 18.2-361, the statute cannot be enforced

against him.

However, a litigant “has standing to challenge the constitutionality of a statute only

insofar as it has an adverse impact on his own rights.” County Court of Ulster County v. Allen,

442 U.S. 140, 154-55 (1979). Thus, “[a]s a general rule, if there is no constitutional defect in the

application of the statute to the litigant, he does not have standing to argue that it would be

unconstitutional if applied to third parties in hypothetical situations.” Id. at 155.2

For example, in DePriest v. Commonwealth, 33 Va. App. 754, 537 S.E.2d 1 (2000), the

appellants challenged their convictions for solicitation to commit oral sodomy, in violation of the

exact statutes at issue in this appeal. The appellants contended—as does Singson—that Code

§ 18.2-361 was “unconstitutional on its face,” reasoning that the statute, inter alia, “denies the

fundamental right to privacy guaranteed by the Constitution of Virginia.” 33 Va. App. at 758,

2
The only recognized exceptions to this rule are “First Amendment challenges” and
vagueness challenges that “touch[] First Amendment concerns.” Santillo, 30 Va. App. at 477
n.2, 517 S.E.2d at 737 n.2 (citing Massachusetts v. Oakes, 491 U.S. 576 (1989); Broadrick v.
Oklahoma, 413 U.S. 601 (1973); Kolender v. Lawson, 461 U.S. 352 (1983)); see also County
Court of Ulster, 442 U.S. at 155 (noting that the “limited exception . . . recognized for statutes
that broadly prohibit speech protected by the First Amendment” is “justified by the overriding
interest in removing illegal deterrents to the exercise of the right of free speech”). Singson’s
First Amendment arguments are addressed in Part II(B), infra.
-5-
537 S.E.2d at 3. We held, however, that appellants lacked standing to mount a facial challenge

to Code § 18.2-361, reasoning that the appellants fell “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 constitutionally infringed.” Id. at 762, 537 S.E.2d at 5. Thus, we addressed

the constitutionality of Code § 18.2-361 “only as it applie[d] to the appellants in [that] case and

to the[] conduct that underlay their convictions.” Id.

Similarly, in Santillo, the appellant challenged the constitutionality of Code § 18.2-361

on substantially similar grounds, contending that the statute “abridge[d] his constitutional right to

privacy” because it prohibited “consensual heterosexual sex.” 30 Va. App. at 477, 517 S.E.2d at

736-37. Before conducting a constitutional analysis, we noted that, “generally, a litigant may

challenge the constitutionality of a law only as it applies to him or her.” Id. at 477, 517 S.E.2d at

737. We further explained that whether “‘the statute may apply unconstitutionally to another is

irrelevant; one cannot raise third party rights.’” Id. (quoting Coleman v. City of Richmond, 5

Va. App. 459, 463, 364 S.E.2d 239, 242 (1988)).

Accordingly, as in DePriest and Santillo, we hold that Singson lacks standing to mount a

facial challenge to Code § 18.2-361.3 Rather, this Court is constrained to deciding whether Code

§ 18.2-361 is constitutional as applied to the circumstances of this case. And, for the reasons that

follow, we hold that application of Code § 18.2-361 to Singson’s proposed conduct does not

offend the Due Process Clause of the Fourteenth Amendment.

3
As the Commonwealth concedes, “[i]f a facial challenge is upheld, the sovereign cannot
enforce the statute against anyone.” Fisher v. King, 232 F.3d 391, 395 n.4 (4th Cir. 2000).
Despite Singson’s argument to the contrary, this particular statute has never been declared
facially unconstitutional. See Part II(A)(3), infra.
-6-
 3. Whether Code § 18.2-361 is Constitutional as Applied to the Circumstances of this Case

The United States Supreme Court has long recognized that the Due Process Clause of the

Fourteenth Amendment protects individuals from state governmental interference with specific

liberty interests. In Lawrence, for example, the United States Supreme Court examined the

constitutionality of a Texas statute forbidding same-sex couples from engaging in conduct

similar to that prohibited by Code § 18.2-361. See 539 U.S. at 563. The issue presented in

Lawrence was “whether the petitioners were free as adults to engage in the private conduct in the

exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the

Constitution.” Id. at 564. The Lawrence Court overruled its earlier decision in Bowers v.

Hardwick, 478 U.S. 186 (1986), and invalidated the Texas statute, concluding that the

government cannot make “private sexual conduct a crime” because the “right to liberty under the

Due Process Clause gives [individuals] the full right to engage in [that] conduct without

intervention of the government.” 539 U.S. at 578.

However, in Lawrence, the Supreme Court explicitly noted that the case being decided on

appeal did not “involve public conduct or prostitution.” Id. The Court, therefore, only addressed

the constitutionality of criminalizing “adult consensual sexual intimacy in the home,” id. at 564,

leaving undisturbed the states’ authority to prohibit sexual conduct that occurs in a public—

rather than private—arena. See, e.g., State v. Thomas, 891 So. 2d 1233, 1236, 1238 (La. 2005)

(declining to use Lawrence to strike down a law criminalizing solicitation of a crime against

nature, noting that “the majority opinion in Lawrence specifically states the court’s decision does

not disturb state statutes prohibiting public sexual conduct or prostitution”); State v. Pope, 608

S.E.2d 114, 116 (N.C. Ct. App.) (reversing dismissal of indictment based upon the defendant’s

“encounter with undercover police officers in which she indicated she would perform oral sex in

exchange for money,” reasoning that, “[a]s the Lawrence Court expressly excluded prostitution

-7-
and public conduct from its holding, the State of North Carolina may properly criminalize the

solicitation of a sexual act it deems a crime against nature”), review denied, 612 S.E.2d 636

(N.C. 2005).

Singson argues, however, that, in Lawrence, the Supreme Court effectively declared all

sodomy statutes facially unconstitutional. Singson points to the Court’s statement that “Bowers

was not correct when it was decided, and it is not correct today,” 539 U.S. at 578, as evidencing

the Supreme Court’s belief that no statute encompassing private acts of sodomy can survive

scrutiny under the Due Process Clause. We disagree.

In Bowers, the appellant was prosecuted for engaging in homosexual acts of sodomy in

the privacy of his own home. See 478 U.S. at 187. After the indictment was dismissed, the

appellant brought a suit in federal district court seeking, in essence, a declaratory judgment that

the Georgia statute was unconstitutional “as applied to consensual homosexual sodomy.” Id. at

187 n.2. The Bowers majority carefully stated that its decision “express[ed] no opinion on the

constitutionality of the Georgia statute as applied to other acts of sodomy,” id., later noting that

the issue being resolved in the appeal involved the continuing imposition of “criminal penalties

for sodomy performed in private and between consenting adults,” id. at 194. Similarly, the

principal dissent in Bowers noted that the issue being decided concerned “the right of an

individual to conduct intimate relationships in the intimacy of his or her own home.” Id. at 208

(Blackmun, J., dissenting).4 Thus, despite Singson’s argument to the contrary, Bowers did not

4
The two dissenting opinions in Bowers differed only to the extent that the justices
disagreed as to which constitutional provision should serve as the primary source of protecting
private sexual conduct between consenting adults. Justice Blackmun would have relied upon the
“constitutionally protected interests in privacy and freedom of intimate association,” as found in
the Ninth and Fourteenth Amendments, 478 U.S. at 202 (Blackmun, J., dissenting), and Justice
Stevens—who also joined in Justice Blackmun’s dissent—would have relied instead upon the
“liberty” interest “protected by the Due Process Clause of the Fourteenth Amendment,” id. at
216 (Stevens, J., dissenting). It is the latter view that was adopted by the Lawrence majority.
-8-
involve a facial challenge to the Georgia sodomy statute. At best, then, the dicta in Lawrence

indicates that the as-applied challenge in Bowers should have been upheld, and the statement

does not—as Singson contends—announce a per se rule that all sodomy statutes are facially

unconstitutional.

Singson also argues, however, that the decision of the Virginia Supreme Court in Martin

v. Ziherl, 269 Va. 35, 607 S.E.2d 367 (2005), effectively declared Code § 18.2-361 facially

unconstitutional. In Martin, the Virginia Supreme Court held that Code § 18.2-344, which

prohibits unmarried individuals from “voluntarily [] hav[ing] sexual intercourse with any other

person,” was unconstitutional in light of the decision in Lawrence. However, the Virginia

Supreme Court carefully noted that its decision “does not involve minors, non-consensual

activity, prostitution, or public activity.” Id. at 43, 607 S.E.2d at 371 (emphasis added). Rather,

the Court explicitly restricted its holding to “private, consensual conduct between adults and the

respective statutes’ impact on such conduct,” further noting that its decision “does not affect the

Commonwealth’s police power regarding regulation of public fornication, prostitution, or other

such crimes.” Id.

Thus, to the extent that Code § 18.2-361 prohibits individuals from engaging in public

acts of sodomy, the statute survives constitutional scrutiny under the Due Process Clause. See

State v. Whiteley, 616 S.E.2d 576, 580 (N.C. Ct. App. 2005) (“[O]ur state’s regulation of sexual

conduct falling outside the narrow liberty interest recognized in Lawrence remains

constitutional.”).5 And, because Singson’s proposed conduct occurred in a public location,

5
The principal dissent in Bowers says as much. See 478 U.S. at 212-13 (Blackmun, J.,
dissenting) (noting that “intimate behavior may be punished when it takes place in public,” and
further observing that “[s]tatutes banning public sexual activity are entirely consistent with . . .
the [constitutionally-protected] liberty interest in decisions concerning sexual relations”).
-9-
application of Code § 18.2-361 under the circumstances of this case does not implicate Singson’s

constitutionally-protected right to engage in private, consensual acts of sodomy.

Our decision in DePriest, 33 Va. App. 754, 537 S.E.2d 1, is instructive on this point. In

DePriest, we affirmed the appellants’ convictions for solicitation to commit oral sodomy, holding

that application of Code § 18.2-361 under the circumstances of that case did not “infringe[] [the

appellants’] right to privacy” because “the appellants’ conduct was not private.” 33 Va. App. at

762-63, 537 S.E.2d at 5. The appellants in DePriest approached “strangers in public parks” and

“proposed to commit sodomy in the public parks.” Id. at 763, 537 S.E.2d at 5. We held that

“[t]he appellants’ acts and their proposed conduct were clothed with no circumstance giving rise

to a supportable claim of privacy,” reasoning that, “[w]hatever 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.” Id.

Similarly, here, Singson’s proposed conduct was “clothed with no circumstances giving

rise to a supportable claim of privacy.” Id. Specifically, Singson approached a stranger in a

public restroom in a public department store during business hours, and he proposed to commit

sodomy in that restroom. Because Singson’s proposed conduct involved a public rather than

private location, application of Code § 18.2-361 under the circumstances of this case does not

implicate the narrow liberty interest recognized in Lawrence. See United States v. Marcum, 60

M.J. 198, 208 (C.A.A.F. 2004) (holding that Article 125 of the Uniform Code of Military Justice,

which forbids “unnatural carnal copulation with another person,” was “constitutional as applied

to Appellant” because the appellant’s conduct, specifically, coercing a subordinate into engaging

in acts of sodomy, “was outside the liberty interest recognized in Lawrence”); cf. United States

v. Lemmons, 697 F.2d 832, 839 (8th Cir. 1983) (Fagg, J., concurring) (noting that an individual

has no right “under the federal constitution to consummate his chosen sexual intimacy in a public

- 10 -
restroom”); Lovisi v. Slayton, 539 F.2d 349, 351 (4th Cir. 1976) (“What the federal constitution

protects is the right of privacy in circumstances in which it may reasonably be expected.”).6

B. Whether Code § 18.2-361 is Unconstitutional Because it is Overbroad

In the alternative, Singson contends that Code § 18.2-361 is constitutionally overbroad,

reasoning that the statute “deters constitutionally protected conduct as well as unprotected

conduct” because it, in conjunction with Code § 18.2-29, criminalizes “speech requesting legal

acts.” Specifically, Singson argues that, because private, consensual acts of sodomy are

encompassed by the statutory language, Code § 18.2-361 chills protected speech because “the

plain language of the solicitation law coupled with the sodomy law prohibits all discussions in

which persons exercise their right to discuss private sodomy, including oral sex, and this

undoubtedly reaches a substantial amount of speech.”7 For the reasons that follow, we disagree.8

6
As noted by one federal court,

there are many activities that the law recognizes a person may
constitutionally engage in in his home that could be made criminal
if done in public. For instance, a person is free to drink alcohol to
the point of inebriation in his home, but could be cited for public
intoxication if he left the house. A person can possess a firearm
without a license in his home, but could be cited for carrying that
same item in public. A person can walk around naked in his home,
but could be cited for public indecency if he left his house in that
condition.

United States v. Extreme Assocs., Inc., 352 F. Supp. 2d 578, 594 (W.D. Pa. 2005) (citations
omitted). Similarly, although individuals may engage in private, consensual acts of sodomy free
from government intrusion, the Commonwealth remains free to criminalize that conduct if—as
here—it occurs in a public location.
7
We note at the outset that Code §§ 18.2-361 and 18.2-29 do not operate, even at their
fullest extent, to prohibit “all” discussions regarding sodomy and oral sex. Rather, with respect
to consenting adults, only those conversations during which a party actively requests
participation in public commission of an act prohibited by Code § 18.2-361 would arguably fall
within the scope of the statutes.
8
Although the statute, as applied to Singson, is constitutional, see Part II(A)(3), supra,
“[l]itigants . . . are permitted to challenge a statute not because their own rights of free expression
- 11 -
 The First Amendment mandates that the government “shall make no law . . . abridging

the freedom of speech.” U.S. Const. amend. I. Although “[t]he government may violate this

mandate in many ways,” it is well settled that “a law imposing criminal penalties on protected

speech is a stark example of speech suppression.” Ashcroft v. Free Speech Coalition, 535 U.S.

234, 244 (2002). Similarly, laws that do not directly regulate speech but, instead, tend to chill

constitutionally-protected forms of expression may also run afoul of the First Amendment. See

id. (“The Constitution gives significant protection from overbroad laws that chill speech within

the First Amendment’s vast and privileged sphere.”). Accordingly, if a statute chills “a

substantial amount of protected expression,” the statute is “unconstitutional on its face.” Id. at

244, 252-53 (invalidating a federal statute that went “well beyond” the government interest in

“prohibit[ing] illegal conduct” by also “restricting the speech available to law-abiding adults”).

1. Whether Code § 18.2-361 is Overbroad Because it Criminalizes Constitutionally
Protected Speech

Singson argues primarily that Code § 18.2-361 is constitutionally overbroad because it

imposes criminal penalties on individuals who engage in constitutionally protected speech.

Specifically, Singson reasons that Code § 18.2-361, in conjunction with Code § 18.2-29, directly

prohibits speech proposing a private act of sodomy. For the reasons that follow, we disagree.

Initially, Code § 18.2-361 itself does not criminalize speech or expressive conduct.

Rather, it only prohibits sexual conduct. See United States v. Dhingra, 371 F.3d 557, 561 (9th

are violated, but because of a judicial prediction or assumption that the statute’s very existence
may cause others not before the court to refrain from constitutionally protected speech or
expression.” Broadrick, 413 U.S. at 612. Accordingly, Singson has standing, in the narrow
context of his First Amendment arguments, to challenge the facial constitutionality of Code
§ 18.2-361. See Stanley v. City of Norfolk, 218 Va. 504, 507, 237 S.E.2d 799, 801 (1977)
(“Even when a defendant’s conduct [is] not constitutionally protected and could have been
proscribed by a properly drawn statute, he may have standing to assert a facial challenge based
upon overbreadth which ‘chills’ the exercise of First Amendment rights by others.” (citing
Thornhill v. Alabama, 301 U.S. 88, 98 (1940))).
- 12 -
Cir. 2004). Accordingly, Code § 18.2-361 does not, in and of itself, prohibit conduct potentially

protected by the First Amendment. See, e.g., Commonwealth v. Mayfield, 832 A.2d 418, 424

(Pa. 2003) (holding that a statute prohibiting certain forms of sexual activity was not

constitutionally overbroad, reasoning that, “[o]n its face, the statute proscribes pure conduct,” not

“expressive activity protected by the First Amendment,” further noting that the court “can

conceive of no set of circumstances in which [the statute] would infringe on constitutionally

protected expression”); see also Arcara v. Cloud Books, Inc., 478 U.S. 697, 705 (1986) (noting

that public sexual activity “manifests absolutely no element of protected expression” and

emphasizing “the fallacy of seeking to use the First Amendment as a cloak for obviously

unlawful public sexual conduct”); Doe v. City of Lafayette, 377 F.3d 757, 763-64 (7th Cir. 2004)

(en banc) (holding that the First Amendment “protection of the right of self-expression” did not

extend to the defendant’s “non-expressive” act of going to a public place and “looking for

children to satisfy his sexual urges,” reasoning that the defendant’s conduct reflected “absolutely

no element of protected expression”).

Similarly, solicitation of a sexual act is not communicative speech, but rather,

non-expressive conduct. As noted by the Virginia Supreme Court, “[l]aws prohibiting

solicitation are not directed against words but against acts.” Pedersen v. Richmond, 219 Va.

1061, 1066, 254 S.E.2d 95, 98-99 (1979) (upholding ordinance prohibiting solicitation of

sodomy). That is, “[so]licitation . . . is the act of enticing or importuning on a personal basis for

personal benefit or gain,” and, as such, contains no element of expressive conduct. District of

Columbia v. Garcia, 335 A.2d 217, 224 (D.C. 1975) (emphasis added) (distinguishing

solicitation of sodomy from “advocacy of sodomy as socially beneficial,” reasoning that only the

latter constitutes “an act of public expression” implicating the First Amendment).

- 13 -
 To the extent that an individual may be held criminally liable for soliciting a violation of

Code § 18.2-361, it is not the individual’s speech that is being prohibited—rather, “‘speech is

merely the vehicle’” through which the solicitation occurs. Dhingra, 371 F.3d at 561 (quoting

United States v. Meek, 366 F.3d 705, 721 (9th Cir. 2004)). Because the prohibition against

solicitation of sodomy criminalizes conduct, not expression, Code § 18.2-361—even in

conjunction with Code § 18.2-29—does not directly prohibit speech or other forms of

communicative conduct. See United States v. Johnson, 376 F.3d 689, 696 (7th Cir. 2004)

(upholding a statute forbidding the solicitation of minors “to perform sexually explicit acts,”

noting that the statute “prohibited conduct, not protected speech”). Thus, we find no merit in

Singson’s argument that Code § 18.2-361 is constitutionally overbroad because it criminalizes

constitutionally protected speech.

2. Whether Code § 18.2-361 is Overbroad Because it “Chills” Constitutionally
Protected Speech

Singson, however, also contends that Code § 18.2-361 is unconstitutional on its face

because it chills protected speech, specifically, by deterring individuals from “exercis[ing] their

right to discuss private sodomy . . . .” Because Code § 18.2-361, in conjunction with Code

§ 18.2-29, does not chill “a substantial amount” of protected expression, Free Speech Coalition,

535 U.S. at 255, we disagree.

a. Whether Speech Soliciting an Act of Sodomy is Protected by the First Amendment

Initially, we must consider whether the speech allegedly being chilled is, in fact,

constitutionally protected. As noted by the United States Supreme Court, “[t]he freedom of

speech has its limits; it does not embrace certain categories of speech, including defamation,

incitement, obscenity, and pornography produced with real children.” Free Speech Coalition,

535 U.S. at 245-46. Two of these categories of unprotected speech are potentially relevant here:

obscenity and communications inciting another to commit a crime.
- 14 -
 First, although speech inciting an individual to commit a crime is unprotected by the First

Amendment, see Pedersen, 219 Va. at 1066, 254 S.E.2d at 98-99, it is clear, in the wake of

Lawrence, that private acts of sodomy between consenting adults cannot, pursuant to the Due

Process Clause of the Fourteenth Amendment, be criminally punished. And, because private acts

of consensual sodomy are constitutionally protected, speech proposing a private act of sodomy

no longer qualifies as an “incitement” to commit a “crime.”

Second, although discussions of the conduct prohibited by Code § 18.2-361 may border

on obscenity, it is not clear that those communications would be “patently offensive in light of

community standards.” Miller v. California, 413 U.S. 15, 24 (1973) (holding that the

government, to prove obscenity, must establish that the communication “appeals to the prurient

interest” and is “patently offensive in light of community standards”). Accordingly, we cannot

assume that speech proposing a private act of sodomy necessarily qualifies as “obscene.” See

Garcia, 335 A.2d at 223 (“[T]he words used in [] sexual proposal cases may or may not be

obscene in themselves.”).

As noted by the United States Supreme Court, “speech may not be prohibited [or chilled]

because it concerns subjects offending our sensibilities.” Free Speech Coalition, 535 U.S. at

245; see also Reno v. ACLU, 521 U.S. 844, 874 (1997) (“In evaluating the free speech right of

adults, we have made it perfectly clear that sexual expression which is indecent but not obscene

is protected by the First Amendment.” (internal quotations omitted)); FCC v. Pacifica Found.,

438 U.S. 726, 745 (1978) (“The fact that society may find speech offensive is not a sufficient

reason for suppressing it.”). Thus, we cannot conclude that speech proposing a private act of

sodomy entirely lacks First Amendment protection.

- 15 -
 b. Whether Code § 18.2-361 Impermissibly “Chills” Constitutionally Protected Speech

The overbreadth doctrine “prohibits the Government from banning unprotected speech if

a substantial amount of protected speech is prohibited or chilled in the process.” Free Speech

Coalition, 535 U.S. at 255. To establish that Code § 18.2-361 is facially unconstitutional,

Singson must therefore demonstrate, “‘from the text of [the law] and from actual fact,’” Virginia

v. Hicks, 539 U.S. 113, 122 (2003) (quoting N.Y. State Club Ass’n v. City of New York, 487

U.S. 1, 14 (1988))), that the criminal penalties for soliciting a violation of that statute chill “a

substantial amount of protected speech,” Free Speech Coalition, 535 U.S. at 255. Although

Singson contends that Code § 18.2-361 is substantially overbroad because it could potentially

deter consenting adults from proposing private acts of sodomy, we find his arguments

unpersuasive.

“[F]acial overbreadth adjudication is an exception to our traditional rules of practice,”

and the rationale behind application of the overbreadth doctrine “attenuates as the otherwise

unprotected behavior that it forbids the State to sanction moves from ‘pure speech’ toward

conduct.” Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973). Moreover, courts are especially

reluctant to invalidate a statute on facial overbreadth grounds when the prohibited conduct “falls

within the scope of otherwise valid criminal laws that reflect legitimate state interests in

maintaining comprehensive controls over harmful, constitutionally unprotected conduct.” Id.;

see also Parker v. Commonwealth, 24 Va. App. 681, 690, 485 S.E.2d 150, 154-55 (1997)

(“Overbreadth is a doctrine whose reach dissipates when a statute proscribes primarily conduct

and not speech.”). Thus, although criminal laws,

if too broadly worded, may deter protected speech to some
unknown extent, there comes a point where that effect—at best a
prediction—cannot, with confidence, justify invalidating a statute

- 16 -
 on its face and so prohibiting a State from enforcing the statute
against conduct that is admittedly within its power to proscribe.

Broadrick, 413 U.S. at 615.

Moreover, “‘the existence of a “chilling effect,” even in the area of First Amendment

rights, has never been considered a sufficient basis, in and of itself, for prohibiting state action.’”

Freeman v. Commonwealth, 223 Va. 301, 310, 288 S.E.2d 461, 465 (1982) (quoting Younger v.

Harris, 401 U.S. 37, 51 (1971)). As a result,

“[w]here a statute does not directly abridge free speech, but . . .
tends to have the incidental effect of inhibiting First Amendment
rights, it is well settled that the statute can be upheld if the effect
on speech is minor in relating to the need for control of the conduct
and the lack of alternative means for doing so.”

Id. (quoting Younger, 401 U.S. at 51).

Accordingly, where a statute regulates non-expressive conduct rather than speech, “the

overbreadth of [the] statute must not only be real, but substantial as well, judged in relation to the

statute’s plainly legitimate sweep.” Broadrick, 413 U.S. at 615. Also, when deciding whether a

statute is overbroad because it chills a substantial amount of protected speech, this Court must be

cognizant of the principle that “overbreadth scrutiny [is] somewhat less rigid in the context of

statutes regulating conduct in the shadow of the First Amendment, but doing so in a neutral,

noncensorial manner.” Id. at 614.

As discussed above, Code § 18.2-361 does not criminalize speech or other expressive

conduct. And, as noted by the United States Supreme Court, “rarely, if ever, will an overbreadth

challenge succeed against a law or regulation that is not specifically addressed to speech or to

conduct necessarily associated with speech (such as picketing or demonstrating).” Hicks, 539

U.S. at 124; see also Dhingra, 371 F.3d at 563 (noting that, where a “statute regulates conduct,

not speech, it is inappropriate to bootstrap our First Amendment jurisprudence into the context of

criminal sexual contact”).
- 17 -
 Moreover, to the extent that the statute, in conjunction with Code § 18.2-29, might “chill”

an individual from requesting an act of private sodomy, speech arguably residing “in the shadow

of the First Amendment,” it does so “in a neutral, noncensorial manner.” Broadrick, 413 U.S. at

614. Also, the statute’s “legitimate sweep” encompasses not only public sodomy, but also other

forms of conduct that lack constitutional protection, specifically, non-consensual sodomy,

incestual sodomy, sodomy with a minor, committing sodomy in exchange for money, and

engaging in acts of bestiality.9 In our view, the incidental, hypothetical effect of the statute on

speech requesting an act of private, consensual sodomy “cannot, with confidence, justify

invalidating [the] statute on its face and so prohibiting a State from enforcing the statute against

conduct that is admittedly within its power to proscribe.” Id. at 615; see also Hicks, 539 U.S. at

119-20 (“[T]here comes a point at which the chilling effect of an overbroad law, significant

though it may be, cannot justify prohibiting all enforcement of that law,” particularly when

striking the statute down on its face would “block application of [the] law . . . to constitutionally

unprotected conduct.”); Parker v. Levy, 417 U.S. 733, 760 (1974) (“This Court has . . .

repeatedly expressed its reluctance to strike down a statute on its face where there were a

substantial number of situations to which it might be validly applied.”).

For these reasons, we hold that Code § 18.2-361 is not substantially overbroad and,

therefore, decline to strike it down as facially unconstitutional.

9
According to Code § 18.2-361, “[i]f any person carnally knows in any manner any brute
animal, or carnally knows any male or female person by the anus or by or with the mouth, or
voluntarily submits to such carnal knowledge, he or she shall be guilty of a Class 6 felony,” and
“[a]ny person who performs or causes to be performed cunnilingus, fellatio, anilingus, or anal
intercourse upon or by his daughter or granddaughter, son or grandson, brother or sister, or father
or mother is guilty of a Class 5 felony.”
- 18 -
 C. Whether the Sentence in this Case Constitutes Cruel and Unusual Punishment

Finally, Singson contends that the imposition of a three-year prison sentence, coupled

with labeling his conviction a felony, constitutes cruel and unusual punishment, thus violating

the Eighth Amendment of the United States Constitution and Article I, section 9 of the Virginia

Constitution. Specifically, Singson argues that his “conviction of a felony, with its prison

sentence and permanent disenfranchisement, is a drastic sanction for his verbal solicitation of

intimacy.”

Singson, however, never made this argument to the trial court. Although, in a footnote

located in a pretrial brief, Singson noted that “the prosecution of this matter . . . raises grave

concerns under the proscription of cruel and unusual punishment,” this footnote is insufficient to

qualify as a contemporaneous objection for purposes of Rule 5A:18. That is, raising a “grave

concern” about the potential range of punishment in a pretrial, pre-conviction brief is not

equivalent to lodging a contemporaneous objection to the sentence actually imposed. As we

have noted,

As a precondition to appellate review, Rule 5A:18 requires a
contemporaneous objection in the trial court to preserve the issue
on appeal. Not just any objection will do. It must be both specific
and timely—so that the trial judge would know the particular point
being made in time to do something about it.

Thomas v. Commonwealth, 44 Va. App. 741, 750, 607 S.E.2d 738, 742 (emphasis in original),

aff’d on reh’g en banc, 45 Va. App. 811, 613 S.E.2d 870 (2005).

Because Singson did not argue below that the sentence actually imposed by the trial court

constituted cruel and unusual punishment, we hold that he failed to make a “specific” and

“timely” objection to the imposition of his felony conviction. Accordingly, we are barred from

considering this issue for the first time on appeal. See, e.g., Walton v. Commonwealth, 24

Va. App. 757, 761, 485 S.E.2d 641, 643 (1997) (holding that Rule 5A:18 barred appellant’s

- 19 -
argument that the sentence imposed by the trial court constituted cruel and unusual punishment

where the appellant failed to raise that argument before the trial court), aff’d, 255 Va. 422, 497

S.E.2d 869 (1998); see also West v. Commonwealth, 43 Va. App. 327, 337, 597 S.E.2d 274, 278

(2004) (holding that the appellant’s double jeopardy argument was barred for failure to make a

timely objection because, although he “did object to the convictions, he did not inform the trial

court that he objected on general constitutional or double jeopardy grounds”); Roberts v.

Roberts, 41 Va. App. 513, 525, 586 S.E.2d 290, 296 (2003) (noting that this Court “will not

consider on appeal an argument that was not presented to the trial court”).10

III. CONCLUSION

For these reasons, we affirm Singson’s conviction for solicitation to commit oral sodomy,

in violation of Code §§ 18.2-29 and 18.2-361.

Affirmed.

10
Singson does not ask this Court to invoke the ends of justice exception to Rule 5A:18,
and we decline to do so. See Widdifield v. Commonwealth, 43 Va. App. 559, 564, 600 S.E.2d
159, 162 (2004) (en banc) (“This Court will not consider, sua sponte, an ends-of-justice
argument under Rule 5A:18.”).
- 20 -