COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Senior Judge Hodges
Argued at Norfolk, Virginia
EARL VALENTINE BRANCHE, S/K/A
EARL VALENTINE BRANCH
OPINION BY
v. Record No. 0780-96-1 JUDGE SAM W. COLEMAN III
SEPTEMBER 2, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Jerome B. Friedman, Judge
James O. Broccoletti (Zoby & Broccoletti, on
brief), for appellant.
Monica S. McElyea, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
In this criminal appeal, the defendant challenges the
constitutionality of the statutory scheme found in Code
§§ 18.2-29 and 18.2-346. Code § 18.2-29 provides that a person
who solicits another to commit a felony, in this case oral
1
sodomy, is guilty of a Class 6 felony. Under Code § 18.2-346, a
person who solicits another to commit oral sodomy for money or
its equivalent is guilty of a Class 1 misdemeanor. The defendant
contends that this statutory scheme violates the Equal Protection
Clause of the Fourteenth Amendment because it classifies those
instances of oral sodomy that are typically engaged in by
homosexual males as a felony where the same conduct undertaken by
a female prostitute is classified as a misdemeanor. He further
1
Code § 18.2-361 provides that sodomy is a Class 6 felony.
contends that the City of Virginia Beach Police Department has
selectively enforced the criminal solicitation statute against
male homosexuals in violation of the Equal Protection Clause.
Lastly, he asserts that the evidence was insufficient to support
his conviction. For the reasons that follow, we affirm.
BACKGROUND
On December 28, 1994, Detective Edgar M. Cruz was
investigating criminal solicitations at Redwing Park in Virginia
Beach. As Detective Cruz, who was working undercover, drove into
the park, he saw the defendant sitting in a vehicle facing the
men's restroom. Cruz made eye contact with the defendant, who
then went into the restroom. When the detective entered the
restroom, he observed the defendant seated in a doorless stall on
the far side of the restroom. As Cruz stood in front of the
urinal, the defendant peered around the stall and made eye
contact with Cruz.
Cruz left the restroom when another man entered, but
returned later and found the defendant still seated in the stall
area. When Cruz re-entered the restroom, the defendant stood and
"began [pointing] toward his groin area while he was looking at
[Cruz's] groin area." The defendant whispered "show it to me" to
the detective while staring at the detective's groin area. Cruz
told the defendant that he was afraid someone would come into the
restroom and suggested that they go outside. The defendant
agreed and followed Cruz into the woods surrounding the restroom.
2
Once outside, Detective Cruz sat down on a bench, but the
defendant motioned for Cruz to go further into the woods. After
they stopped, the defendant "reached down and touched the outside
of [Cruz's] pants on the groin area and rubbed [him] once there."
At that time, Cruz told the defendant that "there were a few
things [he] did not want to do." When the defendant asked what
Cruz did not want to do, Cruz said he did not like anal sex; the
defendant said that he did not like it either. Detective Cruz
then asked the defendant what he wanted to do, and the defendant
said, "How about blowing?" Cruz asked, "Who? Me to you or you
to me?" The defendant replied, "How about both?" and immediately
reached for Cruz's groin area. Before the defendant touched him,
Cruz identified himself as a police officer and arrested the
defendant. After Cruz advised the defendant of his Miranda
rights, he asked the defendant if he would have requested money
in return for oral sex. The defendant said that he would not
have done so. The defendant was charged and convicted of
criminal solicitation, a Class 6 felony, in violation of Code
§ 18.2-29.
STATUTORY SCHEME
Under Code § 18.2-29, soliciting an individual to commit a
felony is a Class 6 felony. 2 Under Code § 18.2-361, oral sodomy
is a Class 6 felony. See Code § 18.2-361(A) ("If any person
2
"Any person who commands, entreats, or otherwise attempts
to persuade another person to commit a felony, shall be guilty of
a Class 6 felony." Code § 18.2-29.
3
. . . 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
. . . ."). Code § 18.2-346, the statute prohibiting
prostitution, states that:
[a]ny person who, for money or its
equivalent, commits . . . any act in
violation of Code § 18.2-361 [the sodomy
statute], or offers to commit . . . any act
in violation of § 18.2-361 and thereafter
does any substantial act in furtherance
thereof, shall be guilty of being a
prostitute, or prostitution, which shall be
punishable as a Class 1 misdemeanor.
The appellant contends that the statutory scheme outlined in
Code §§ 18.2-29 and 18.2-346 irrationally discriminates between
women who engage in prostitution and homosexual men. The
unfairness in the scheme, according to the appellant, is that
females who solicit another to commit an act of oral sodomy for
money can be convicted only of a misdemeanor, see McFadden v.
Commonwealth, 3 Va. App. 226, 230, 348 S.E.2d 847, 849 (1986),
whereas men who solicit another to commit an act of oral sodomy,
not for money, may be convicted of a felony.
The Equal Protection Clause of the Fourteenth Amendment
provides that no state shall "deny to any person . . . the equal
protection of the laws." U.S. Const. Amend. XIV, § 1. This "is
essentially a direction that all persons similarly situated
should be treated alike." City of Cleburne v. Cleburne Living
Center, 473 U.S. 432, 439 (1985). However, the United States
4
Supreme Court "has consistently recognized that the Fourteenth
Amendment does not deny to States the power to treat different
classes of persons in different ways." Reed v. Reed, 404 U.S.
71, 75 (1971). See also Rostker v. Goldberg, 453 U.S. 57, 80
(1981) ("The Constitution requires that Congress treat similarly
situated persons similarly, not that it engage in gestures of
superficial equality."); Rinaldi v. Yeager, 384 U.S. 305, 309
(1966) ("'The Constitution does not require things which are
different in fact . . . to be treated in law as though they were
the same.'") (quoting Tigner v. Texas, 310 U.S. 141, 147 (1940)).
Where individuals are not similarly situated, courts need not
engage in the traditional equal protection analysis by applying
either strict scrutiny, intermediate scrutiny, or the rational
basis test. See, e.g., Schweiker v. Hogan, 457 U.S. 569, 590
(1982) (holding that, for purposes of Medicaid benefits, "the
wealthy and the poor are not similarly situated and need not be
treated the same"); Rostker, 453 U.S. at 80 (holding that men and
women are not similarly situated for purposes of military draft
registration); Schlesinger v. Ballard, 419 U.S. 498, 508-09
(1975) (holding that men and women are not similarly situated for
purposes of military promotions); Gunter v. Virginia State Bar,
241 Va. 186, 191, 399 S.E.2d 820, 823 (1991) (finding that
accused was not similarly situated with other members of his
class); Carter v. Carter, 232 Va. 166, 170-71, 349 S.E.2d 95, 98
(1986) (holding that foreign judgment creditors are not similarly
5
situated with domestic judgment creditors).
By enacting a statute that forbids prostitution and another
which forbids solicitation to commit a felony, the General
Assembly has not drawn a distinction or made a classification
between individuals who are similarly situated. The statutes
classify or draw distinctions between two types of behavior. The
statutes do not classify or draw distinctions between people of
the same or a similar group or class who commit the same or
similar acts. Under the statutory scheme, all persons, male or
female whether heterosexual or homosexual, who solicit another to
commit an act of sodomy are guilty of a Class 6 felony.
Similarly, all persons, males or females, whether heterosexual or
homosexual, who solicit a person to engage in certain sexual acts
for money, including oral sodomy, are guilty of a misdemeanor.
Both heterosexual males and females and homosexual males and
females may violate either statute and, under both statutes, all
persons, regardless of sexual orientation, are treated in the
same fashion.
The fact that solicitation to commit prostitution is a
misdemeanor and is, therefore, considered a less serious crime
than solicitation to commit a felony, which includes solicitation
to commit sodomy, does not create an impermissible classification
between groups of people similarly situated.
A belief that an [act of the General
Assembly] may be inequitable or unwise is of
course an insufficient basis on which to
conclude that it is unconstitutional.
Moreover, the validity of a broad legislative
6
classification is not properly judged by
focusing solely on the portion of the
disfavored class that is affected most
harshly by its terms.
Schweiker, 457 U.S. at 589. The General Assembly, to whose
judgment such matters are committed, has provided that persons
who solicit others to commit a felony, including sodomy, are
guilty of a felony. However, the criminal solicitation statute
also covers offenses other than solicitation to commit oral
sodomy. The General Assembly has also determined that those
persons who engage in prostitution, including persons who solicit
others to engage in oral sodomy for money, are guilty of only a
misdemeanor. The defendant correctly observes that persons who
solicit oral sodomy may be guilty of either a felony or a
misdemeanor depending upon whether they seek remuneration for the
act. While both statutes prohibit solicitation to engage in the
act of sodomy, one statute is directed at those who do so for
remuneration and the other is directed at those who do so without
a request or demand for remuneration. By recognizing different
motivations, the statutes create separate classifications of
prohibited conduct. The persons affected by the statutes are not
similarly situated and the General Assembly may without judicial
scrutiny under the Equal Protection Clause, assign distinct
punishments for different crimes. See McFadden, 3 Va. App. at
230, 348 S.E.2d at 849.
Because the two groups of individuals proscribed by the
statute are not engaged in the same activity, the General
7
Assembly's decision to punish one group more severely than the
other does not violate our constitutional principle of equality.
Thus, we reject the defendant's claim that the statutory scheme
violates the Equal Protection Clause.
8
SELECTIVE ENFORCEMENT
The appellant next contends that the Virginia Beach Police
Department engages in purposeful, selective enforcement of Code
§ 18.2-29 by arresting only homosexual men for violating the
anti-sodomy statute, thereby violating the Equal Protection
Clause.
Code §§ 18.2-29 and 18.2-361, on their face, are gender
neutral and apply equally to males and females. If either a
heterosexual male or female solicited another to engage in a
consensual act of oral sodomy, he or she would be subject to
prosecution for felony criminal solicitation. The decision by
the state to prosecute individuals for certain crimes may not be
based on "an unjustifiable standard such as race, religion or
other arbitrary classification." Oyler v. Boles, 368 U.S. 448,
456 (1962). Thus, if an accused can prove that a facially
neutral law is being applied in a discriminatory manner, he or
she has an equal protection claim.
In order to prove that a person or group of persons are
being selectively prosecuted in violation of the Equal Protection
Clause, an accused must present clear evidence to rebut the
presumption that the state has not violated his or her equal
protection rights. Id. The appellant must "demonstrate that the
administration of a criminal law is 'directed so exclusively
against a particular class of persons . . . with a mind so
unequal and oppressive' that the system of prosecution amounts to
9
'a practical denial' of equal protection of the law." United
States v. Armstrong, 116 S. Ct. 1480, 1486 (1996) (quoting Yick
Wo v. Hopkins, 118 U.S. 356, 373 (1886)). The accused must "show
both . . . a [resultant] discriminatory effect and that [the
discriminatory effect] was motivated by a discriminatory
purpose." Wayte v. United States, 470 U.S. 598, 608 (1985).
Here, the defendant failed to present persuasive evidence
that the Virginia Beach Police Department purposefully
discriminates against homosexual males in the enforcement of Code
§§ 18.2-29 and 18.2-361. Officer Cruz testified that the police
were conducting sting operations in the city parks and in several
local malls because they had received numerous complaints about
male homosexuals soliciting in restrooms. He further testified
that, to his knowledge, female undercover officers had never been
utilized to target female homosexual offenders. However, the
defendant offered no evidence that female homosexual offenders
could have been arrested had the police targeted them. The
police do not intentionally discriminate against one gender by
the absence of attempts to detect and apprehend offenders of the
other gender, when no evidence is presented that offenders of the
other gender are engaging in similar criminal behavior. The
defendant offered no evidence that similarly situated females
could have been prosecuted, but were not. See Armstrong, 116
S. Ct. at 1486. Thus, the defendant has not met his burden of
proof on this issue.
10
SUFFICIENCY
In determining whether evidence is sufficient to support a
conviction, "we review the evidence in the light most favorable
to the Commonwealth, granting to it all reasonable inferences
fairly deducible therefrom." Martin v. Commonwealth, 4 Va. App.
438, 443, 358 S.E.2d 415, 418 (1987).
Criminal solicitation involves the attempt of the accused to
incite another to commit a criminal offense. "It is immaterial
whether the solicitation is of any effect and whether the crime
solicited is in fact committed. . . . The gist of [the] offense
is incitement." Huffman v. Commonwealth, 222 Va. 823, 827, 284
S.E.2d 837, 840 (1981). The appellant contends that the evidence
was insufficient to prove solicitation to commit oral sodomy
because Officer Cruz offered no explanation as to the meaning of
the term "blowing" as used by Branche when he asked Cruz, "How
about blowing?"
We hold that the evidence is sufficient to prove that the
defendant intended to induce Officer Cruz to engage in oral
sodomy. The defendant admitted to Cruz that he was outside the
restroom "looking for oral sex." Furthermore, the defendant
stared, pointed, and repeatedly attempted to grab Cruz in the
groin area and asked Cruz to expose his penis. When Cruz told
the defendant he was afraid someone would enter the restroom, the
defendant encouraged him, saying, "it would be okay . . . no one
would know." When Cruz and the defendant were in the wooded area
11
surrounding the restroom, the defendant touched Cruz in the groin
area. When Cruz told the defendant he did not like anal sex, the
defendant said, "How about blowing?"
From the evidence, the fact finder could reasonably have
inferred that the defendant was soliciting Cruz to commit an act
of oral sodomy. Slang expressions, including the vernacular for
sexual activity, are well known and matters of common knowledge.
The fact finder, in this case the trial judge, could reasonably
have inferred from the circumstances and the defendant's request,
"How about blowing?" that the defendant was soliciting to commit
oral sodomy. See Anderson v. State, 235 S.E.2d 675, 676-77 (Ga.
App. 1977). "It would be completely unrealistic to require that
witnesses, many of whom are unlearned or have limited
vocabularies, describe the acts constituting the commission of
crimes in statutory or technical language in order to prove the
commission of such acts." Id. Accordingly, we hold that the
evidence was sufficient to prove that the defendant was
soliciting oral sodomy from Officer Cruz.
For the reasons stated, we affirm the conviction.
Affirmed.
12