Toghill v. Commonwealth

PRESENT: Lemons, C.J., Goodwyn, Millette, Mims, and
McClanahan, JJ., and Lacy and Koontz, S.JJ.

ADAM DARRICK TOGHILL
OPINION BY
v. Record No. 140414 JUSTICE S. BERNARD GOODWYN
February 26, 2015
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we consider whether Code § 18.2-361(A) 1 is

facially unconstitutional in light of the decision of the

United States Supreme Court in Lawrence v. Texas, 539 U.S. 558

(2003).

Background

Adam Darrick Toghill (Toghill), an adult, engaged in an

email exchange with a law enforcement officer posing as a minor

wherein Toghill proposed that the two engage in oral sex.

Subsequently, Toghill was indicted on charges of Internet

solicitation of a minor in violation of Code § 18.2-374.3. The

Circuit Court of Louisa County and both parties agreed that

Toghill was accused of soliciting oral sex from a minor, and

that oral sex between an adult and a minor is an act forbidden

by Code § 18.2-361(A). Toghill was found guilty after a jury

1
The General Assembly amended Code § 18.2-361(A) in 2014
to remove the general provisions forbidding sodomy. 2014 Acts
ch. 794. However, when this opinion refers to Code § 18.2-
361(A), it is referring to the statute as it existed on March
10, 2011, when the alleged crime was committed, unless denoted
otherwise.
trial, and the court sentenced him to five years’ imprisonment.

Notably, at trial, Toghill did not argue that Code § 18.2-

361(A) was unconstitutional.

Toghill appealed to the Court of Appeals of Virginia

(Court of Appeals), arguing that his conviction was invalid

because Code § 18.2-361(A) was unconstitutional. To support

his position, he cited a recently decided case from the United

States Court of Appeals for the Fourth Circuit, MacDonald v.

Moose, 710 F.3d 154 (4th Cir. 2013) (Moose), in which the

Fourth Circuit ruled that Code § 18.2-361(A) was facially

unconstitutional. The Court of Appeals affirmed the circuit

court’s decision, citing McDonald v. Commonwealth, 274 Va. 249,

645 S.E.2d 918 (2007), in which this Court ruled that Code §

18.2-361(A) was not unconstitutional as applied to sodomy cases

involving an adult with a minor. Toghill v. Commonwealth,

Record No. 2230-12-2, 2014 Va. App. LEXIS 42, at *6-7 (February

11, 2014). It held that Code § 18.2-361(A) was constitutional

as applied to Toghill because the Lawrence decision did not

prevent a state from criminalizing sodomy 2 between an adult and

2
For simplicity, the term “sodomy,” as utilized in this
opinion, encapsulates all forms of homosexual and heterosexual
non-coital sexual activity between humans, including anal and
oral sex. See MacDonald v. Moose, 710 F.3d 154, 156, 163 (4th
Cir. 2013) (citing Lawrence, 539 U.S. at 563) (“We herein use
the term ‘anti-sodomy provision’ to refer to the [non-
bestiality] portion[s] of section 18.2-361(A) . . . . The
conduct for which the Lawrence defendants were prosecuted

2
a minor. Id. Toghill appeals. Toghill assigns error as

follows:

The Court of Appeals erred in holding that
Virginia's anti-sodomy law was constitutional, with
the result that Toghill was convicted of soliciting a
minor to commit an act that was not, in actuality, a
violation of Virginia law.

Analysis

Toghill argues that Code § 18.2-361(A) is facially

unconstitutional and invalid, and thus his conviction, for

soliciting an activity deemed illegal because it violated Code

§ 18.2-361(A), was void ab initio. The Commonwealth argues

that the Lawrence decision did not facially invalidate Code

§ 18.2-361(A), because the Supreme Court of the United States

implied in its holding that a state could criminalize sodomy in

some circumstances, including sodomy involving adults with

minors.

As a preliminary matter, the Commonwealth asserts that

Toghill’s claim is procedurally barred because Toghill failed

to raise the issue of the constitutionality of Code § 18.2-

361(A) at trial. Toghill has conceded that he presented this

argument for the first time on appeal.

qualified as ‘deviate sexual intercourse’ in that it amounted
to ‘contact’ between any part of the genitals of one person and
the mouth or anus of another person, that is, sodomy.”);
Webster’s Third New International Dictionary 2165 (1993)
(providing that the term “sodomy” can be used to mean
homosexual and heterosexual non-coital sexual activity
broadly).

3
 Rule 5:25 states: “No ruling of the trial court . . .

will be considered as a basis for reversal unless an objection

was stated with reasonable certainty at the time of the

ruling.” Our Court has stated that “an appellate court may not

reverse a judgment of the trial court based . . . upon an issue

that was not presented.” McDonald, 274 Va. at 255, 645 S.E.2d

at 921 (holding that the Court could not evaluate a facial

challenge to Code § 18.2-361(A) because the appellant never

raised a facial challenge in the trial court). However, Rule

5:25 also states that this Court can review a ruling that was

not objected to at trial “for good cause shown or to enable

this Court to attain the ends of justice.”

Following the Supreme Court decision in Lawrence, this

Court had the opportunity in McDonald to consider the

continuing constitutionality of Code § 18.2-361(A) in light of

Lawrence. This Court held the statute to be constitutional as

applied to oral sex between an adult and a minor. McDonald,

274 Va. at 260, 645 S.E.2d at 924.

Toghill’s trial in the instant case occurred on November

26, 2012. On March 12, 2013, the Fourth Circuit issued its

published opinion in Moose, holding that Code § 18.2-361(A) is

facially unconstitutional because it does not pass muster under

the standards set by the Supreme Court in Lawrence. 710 F.3d

at 166.

4
 Despite Toghill’s failure to raise the issue at trial, we

hold that the conflict created by the Fourth Circuit’s

subsequent opinion is good cause under Rule 5:25 to consider

the error alleged by Toghill regarding the constitutionality of

Code § 18.2-361(A). Our prior cases have not applied the “good

cause shown” exception contained in Rule 5:25, but we believe

that exception to be applicable in this narrow instance and

will apply it sua sponte as has been done with the ends of

justice exception. See Ball v. Commonwealth, 221 Va. 754, 758-

59, 273 S.E.2d 790, 793 (1981) (applying the ends of justice

exception despite the fact that appellant did not request the

Court to consider that issue in his brief); Cooper v.

Commonwealth, 205 Va. 883, 889-90, 140 S.E.2d 688, 692-93

(1965) (same). Thus, we will examine whether, under our

jurisprudence, Toghill’s conviction is invalid premised on the

theory that Code § 18.2-361(A) is facially unconstitutional as

a result of the Supreme Court’s ruling in Lawrence.

The statute under which Toghill was convicted, former Code

§ 18.2-374.3(C), stated at the time of the offense that it was

a Class 5 felony for an adult to knowingly and intentionally

propose to a child under 15 years of age “an act of sexual

intercourse or any act constituting an offense under § 18.2-

361” using a computer. Also at that time, former Code § 18.2-

361(A) stated “If any person . . . carnally knows any male or

5
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.” 3

It is undisputed that Toghill’s conviction is based upon

the fact that he, using a computer, proposed oral sex to a

person he believed to be a child under 15 years old, and that

the circuit court ruled that oral sex between an adult and a

child under 15 was a criminal offense under Code § 18.2-361(A).

In Moose, the Fourth Circuit ruled that Code § 18.2-361(A) does

not outlaw oral sex between an adult and a child under 15

because the statute is facially unconstitutional, and thus

invalid. 710 F.3d at 166.

While this Court considers Fourth Circuit decisions as

persuasive authority, such decisions are not binding precedent

for decisions of this Court. See, e.g., Lockhart v. Fretwell,

506 U.S. 364, 376 (1993) (Thomas, J., concurring) (“[N]either

federal supremacy nor any other principle of federal law

requires that a state court’s interpretation of federal law

give way to a (lower) federal court’s interpretation.”); Owsley

v. Peyton, 352 F.2d 804, 805 (4th Cir. 1965) (denying that a

Fourth Circuit decision alters existing Virginia law and

acknowledging that “[t]hough state courts may for policy

3
Both former Code § 18.2-374(C) and former Code § 18.2-
361(A), in effect at the time of the offense at issue, appear
in the 2009 Replacement Volume containing Title 18.2.

6
reasons follow the decisions of the Court of Appeals whose

circuit includes their state . . . they are not obligated to do

so”); United States ex rel. Lawrence v. Woods, 432 F.2d 1072,

1076 (7th Cir. 1970) (“[B]ecause lower federal courts exercise

no appellate jurisdiction over state tribunals, decisions of

lower federal courts are not conclusive on state courts.”); Ace

Prop. & Cas. Ins. Co. v. Commissioner of Revenue, 770 N.E.2d

980, 986 n.8 (Mass. 2002) (citing Commonwealth v. Hill, 385

N.E.2d 253, 255 (Mass. 1979)) (“Although we are not bound by

decisions of Federal courts (other than the United States

Supreme Court) on matters of Federal law . . . , ‘we give

respectful consideration to such lower Federal court decisions

as seem persuasive.’”); State v. Coleman, 214 A.2d 393, 402,

403 (N.J. 1965) (“In passing on federal constitutional

questions, the state courts and the lower federal courts have

the same responsibility and occupy the same position; there is

a parallelism but not paramountcy for both sets of courts are

governed by the same reviewing authority of the Supreme

Court.”).

Toghill presents a facial constitutional challenge to Code

§ 18.2-361(A). We review questions of statutory

constitutionality de novo. Montgomery Cnty. v. Virginia Dep’t

of Rail & Pub. Transp., 282 Va. 422, 435, 719 S.E.2d 294, 300

(2011); Covel v. Town of Vienna, 280 Va. 151, 163, 694 S.E.2d

7
609, 617 (2010). Facial challenges are disfavored because they

create a risk of “‘premature interpretation of statutes on the

basis of factually barebones records’”; they “run contrary to

the fundamental principle of judicial restraint that courts

should neither ‘anticipate a question of constitutional law in

advance of the necessity of deciding it’ nor ‘formulate a rule

of constitutional law broader than is required by the precise

facts to which it is to be applied,’” and they invalidate an

entire law that was passed through the democratic process.

Washington State Grange v. Washington State Republican Party,

552 U.S. 442, 450 (2008) (citing Ayotte v. Planned Parenthood,

546 U.S. 320, 329 (2006); Sabri v. United States, 541 U.S. 600,

609 (2004); Ashwander v. TVA, 297 U.S. 288, 346-47 (1936)

(Brandeis, J., concurring)).

An appellant can only mount a successful facial challenge

to a statute by showing first that the statute in question is

unconstitutional as applied to him and that the statute in

question would not be constitutional in any context. County

Ct. of Ulster Cnty. v. Allen, 442 U.S. 140, 154-55 (1979) (“As

a general rule, if there is no constitutional defect in the

application of the statute to a litigant, he does not have

standing to argue that it would be unconstitutional if applied

to third parties in hypothetical situations.”); Broadrick v.

Oklahoma, 413 U.S. 601, 610 (1973) (“Embedded in the

8
traditional rules governing constitutional adjudication is the

principle that a person to whom a statute may constitutionally

be applied will not be heard to challenge that statute on the

ground that it may conceivably be applied unconstitutionally to

others, in other situations not before the court.”); Woollard

v. Gallagher, 712 F.3d 865, 882 (4th Cir. 2013) (applying the

rule from Broadrick that a law must be unconstitutional as

applied to a party in order for that party to facially

challenge the law); Washington State Grange, 552 U.S. at 449.

Thus, if a statute is constitutional as applied to a litigant,

he or she lacks standing to assert a facial constitutional

challenge to it, and the statute is not facially

unconstitutional because it has at least one constitutional

application.

We begin by determining whether Toghill meets the first

element that must be shown to raise a claim of facial

unconstitutionality, that is, that the statute is

unconstitutional as applied to him. Toghill alleges that

enforcement of Code § 18.2-361(A) is unconstitutional as

applied to him because enforcement of that criminal statute

infringes upon his substantive due process rights articulated

by the Supreme Court in Lawrence.

In Lawrence, the Supreme Court of the United States

invalidated the convictions of two men observed engaging in

9
anal sex in a private residence. 539 U.S. at 562-63, 579. A

Texas statute made it illegal for two people of the same sex to

engage in such “deviate sexual intercourse.” Id. at 563.

In deciding Lawrence, the Supreme Court overturned its

precedent in Bowers v. Hardwick, 478 U.S. 186 (1986), which had

stated that a Georgia law that prohibited sodomy was not

unconstitutional as applied to a male engaged in sodomy with

another male in private because there was no fundamental right

for homosexuals to engage in sodomy. Lawrence, 539 U.S. at

566-67, 577-78. The Court in Lawrence discussed how, in

Bowers, it had not “appreciate[d] the extent of the liberty at

stake” because penalizing such homosexual sodomy would impact

“the most private human conduct, sexual behavior, and in the

most private of places, the home.” Id. at 567. The Court

cautioned that a State cannot “define the meaning” of a

homosexual relationship or “set its boundaries absent injury to

a person or abuse of an institution the law protects.” Id. It

stated: “[A]dults may choose to enter upon this relationship

in the confines of their homes and their own private lives and

still retain their dignity as free persons.” Id.

The Supreme Court held that the Texas statute violated the

Due Process Clause because it regulated the private, non-

commercial and consensual sexual conduct of adults and

10
furthered no legitimate state interest. Id. at 578. However,

the Court in Lawrence was clear that

[t]he 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. The case does involve two adults who, with
full and mutual consent from each other, engaged in
sexual practices common to a homosexual lifestyle.
The petitioners are entitled to respect for their
private lives. The State cannot demean their
existence or control their destiny by making their
private sexual conduct a crime.

Id. (emphasis added).

Considering this limiting language, Lawrence simply does

not afford adults with the constitutional right to engage in

sodomy with minors. We held in McDonald, 274 Va. at 260, 645

S.E.2d at 924, and we reaffirm this day that the Supreme

Court’s decision in Lawrence did not prevent Code § 18.2-361(A)

from being constitutional and enforceable as applied to sodomy

between adults and minors. This Court recognized then and

recognizes in this case that “[t]he Court in Lawrence was

explicit in its declaration of the scope of its opinion: ‘The

present case does not involve minors.’” Id. (citing Lawrence,

539 U.S. at 578). “Nothing in Lawrence . . . prohibits the

application of the sodomy statute to conduct between adults and

11
minors.” Id. Thus, we hold that Code § 18.2-361(A) was

constitutional as applied to Toghill. Toghill therefore does

not have standing to successfully assert a facial

constitutional challenge to Code § 18.2-361(A).

There is no Supreme Court precedent to support a ruling

that Code § 18.2-361(A) is unconstitutional on its face. It is

claimed that the Supreme Court in Lawrence signaled that sodomy

statutes were facially unconstitutional because it overturned

Bowers, which involved a facial challenge to a Georgia statute

criminalizing all sodomy. This is factually incorrect. Bowers

did not involve a facial challenge to a Georgia statute, but

rather the issue of whether the federal Constitution confers

fundamental rights upon homosexuals to engage in sodomy. 478

U.S. at 188 n.2, 190. In fact, the majority stated in footnote

2 that “[t]he only claim properly before the Court is

Hardwick’s challenge to the Georgia statute as applied to

consensual homosexual sodomy. We express no opinion on the

constitutionality of the Georgia statute as applied to other

acts of sodomy.” Id. at 188 n.2. Thus, the fact that the

Supreme Court’s decision in Bowers was overruled in Lawrence is

not helpful in discerning whether a particular state statute is

unconstitutional on its face. 4

4
We concur with the sentiment expressed in Judge Diaz’s
dissent to the Moose decision that although the Court in

12
 In Lawrence itself, the Supreme Court did not explicitly

indicate whether it was concerned with a facial, as opposed to

an as-applied challenge to the statute at issue in the case.

However, the Lawrence opinion clearly states that individuals

are entitled to respect for their private lives such that

adults are entitled to engage in private, consensual,

noncommercial sexual conduct without intervention of the

government. 539 U.S. at 578.

We noted in Martin v. Ziherl, 269 Va. 35, 42, 607 S.E.2d

367, 370-71 (2005), that the Virginia statute criminalizing

intercourse between unmarried persons improperly abridged a

personal relationship that was within the liberty interest of

persons to choose. However, unlike Martin, which involved sex

between consenting adults, the instant case involves oral sex

with a minor which is not “within the liberty interests of

persons to choose,” as specifically stated by the Supreme Court

in Lawrence. 539 U.S. at 567, 578; see also Martin, 269 Va. at

43, 607 S.E.2d at 371 (emphasizing that the case did “not

involve minors, non-consensual activity, prostitution or public

activity[,]” which are activities that Lawrence indicated could

be regulated by the state).

Lawrence overturned Bowers, to infer that Lawrence intended
sodomy statutes to be facially invalid from this factor would
be a logical “bridge too far.” 710 F.3d at 169 (Diaz, J.,
dissenting).

13
 Toghill, an adult, was charged with soliciting oral sex

from a person he believed was a minor in violation of Code §

18.2-374.3(C) because oral sex is prohibited by Code § 18.2-

361(A), a generally-worded anti-sodomy statute. Because he

solicited sodomy with a person whom he thought was a minor,

Toghill does not have standing to assert a facial challenge to

the anti-sodomy provisions of Code § 18.2-361(A) because

enforcement of the sodomy prohibition law is constitutional as

applied to him in this instance. There are constitutional

applications of Code § 18.2-361(A), and Toghill’s facial

challenge to the statute therefore fails.

A facially unconstitutional statute is invalid. However,

courts can also order statutes that are unconstitutional only

in certain applications to be totally invalidated in rare

circumstances. Thus, even though Code § 18.2-361(A) is not

unconstitutional on its face, that is not dispositive of the

issue of whether it was error to rule that the statute was

enforceable.

The Supreme Court’s decision in Ayotte, 546 U.S. at 328-

32, recognized that in rare circumstances, it may be proper to

totally invalidate a statute even if it is merely

unconstitutional as applied in some circumstances and

constitutional in others. Ayotte does not condemn the failure

to totally invalidate a statute that is unconstitutional as

14
applied in certain instances. Id. at 328-29. Instead, it

provides an analytical framework for discerning the proper

remedy to be applied when a statute is unconstitutional as

applied.

Ayotte involved a New Hampshire abortion law that

prohibited physicians from performing an abortion on a pregnant

minor without notifying her parents in advance, a restriction

allowed by the Constitution. Id. at 323-24, 326-27. However,

the Supreme Court held that the law failed to provide

constitutionally sufficient access to abortions necessary to

protect the mother’s life or health. Id. at 326-28. The

Supreme Court remanded the case to the lower courts for them to

determine whether the proper remedy was for them to forbid the

unconstitutional applications of the statute only or to

invalidate the statute facially. 546 U.S. at 331-32.

The Supreme Court instructed the lower courts that

[g]enerally speaking, when confronting a
constitutional flaw in a statute, we try to limit the
solution to the problem. We prefer, for example, to
enjoin only the unconstitutional applications of the
statute while leaving other applications in force
. . . or to sever its problematic portions while
leaving the remainder intact[.]

Id. at 328.

The Supreme Court in Ayotte provided that three

interrelated principles should inform a court’s approach to

remedies when confronting a statute that may be applied in a

15
manner that violates constitutional rights. Id. at 329-30.

First, it affirmed again that the “‘normal rule’ is that

‘partial, rather than facial, invalidation is the required

course,’ such that a ‘statute may . . . be declared invalid to

the extent that it reaches too far, but otherwise left

intact.’” Id. at 329 (citing Brockett v. Spokane Arcades,

Inc., 472 U.S. 491, 504 (1985); Tennessee v. Garner, 471 U.S. 1

(1985); United States v. Grace, 461 U.S. 171, 180-83 (1983)).

The Court noted that “we try not to nullify more of a

legislature’s work than is necessary, for we know that ‘[a]

ruling of unconstitutionality frustrates the intent of the

elected representatives of the people.’” Id. (quoting Regan v.

Time, Inc., 468 U.S. 641, 652 (1984) (plurality opinion)).

Second, the Supreme Court instructed that a court should

not supplant the legislature by “rewriting state law to conform

it to constitutional requirements even as we strive to salvage

it.” Id. at 329 (alteration and internal quotation marks

omitted). The Court noted that “[o]ur ability to devise a

judicial remedy that does not entail quintessentially

legislative work often depends on how clearly we have already

articulated the background constitutional rules at issue and

how easily we can articulate the remedy.” Id. The Court

cautioned that “making distinctions in a murky constitutional

context, or where line-drawing is inherently complex, may call

16
for a ‘far more serious invasion of the legislative domain’

than we ought to undertake.” Id. at 330 (quoting United States

v. Treasury Employees, 513 U.S. 454, 479 n.26 (1995)).

Third, the Supreme Court emphasized that “the touchstone

for any decision is legislative intent, for a court cannot ‘use

its remedial powers to circumvent the intent of the

legislature.’” Id. (quoting Califano v. Westcott, 443 U.S. 76,

94 (1979)(Powell, J., concurring in part and dissenting in

part); Dorchy v. Kansas, 264 U.S. 286, 289-90 (1924)). The

Court stated that “after finding an application or portion of a

statute unconstitutional,” courts must “ask: Would the

legislature have preferred what is left of its statute to no

statute at all?” Id. Moreover, the Court cautioned against

allowing legislatures to rely on a court’s intervention by

crafting a statute that applies broadly and having the courts

carve out provisions from it that are unconstitutional. Id.

In fashioning a remedy in this instance, we will attempt

to nullify no more of the legislature’s work than is necessary.

This is consistent with Virginia jurisprudence, which requires

that we “‘construe the plain language of a statute to have

limited application if such a construction will tailor the

statute to a constitutional fit.’” McDonald, 274 Va. at 260

(quoting Virginia Soc. for Human Life v. Caldwell, 256 Va. 151,

157 n.3, 500 S.E.2d 814, 817 n.3 (1998)). The “as-applied”

17
remedy is simple to fashion in this case, given the Lawrence

decision’s articulation of the contexts in which a state can

criminalize sodomy. See Lawrence, 539 U.S. at 578. In

accordance with the Lawrence decision, Code § 18.2-361(A)

cannot criminalize private, noncommercial sodomy between

consenting adults, but it can continue to regulate other forms

of sodomy, such as sodomy involving children, forcible sodomy,

prostitution involving sodomy and sodomy in public. The easy

to articulate remedy is that Code § 18.2-361(A) is invalid to

the extent its provisions apply to private, noncommercial and

consensual sodomy involving only adults.

It should be noted that this is not the instance about

which the Supreme Court cautioned in Ayotte, in which a

legislature drafts a broad statute and relies upon the courts

for intervention. Rather, this is an instance when a statute

was considered constitutional when it was passed, but certain

applications of the statute were declared unconstitutional by a

subsequent Supreme Court opinion. The intent of the

legislature was to prohibit all sodomy, which it could do

constitutionally at the time Code § 18.2-361(A) was originally

passed by the legislature.

Although the General Assembly removed certain anti-sodomy

language from Code § 18.2-361(A) in 2014, in the same act it

amended other statutes to ensure that sodomy with a minor or

18
solicitation of sodomy with a minor would be a crime. 2014

Acts ch. 794. Currently, the Code of Virginia criminalizes

sodomy involving adults and minors in numerous ways and thus

shows clearly that our upholding convictions under the instant

version of Code § 18.2-361(A) for offenses involving children

is consistent with legislative intent. See, e.g., Code § 18.2-

63 (stating that an adult who engages in “sexual intercourse,

cunnilingus, fellatio, anilingus, anal intercourse, and animate

and inanimate object sexual penetration” with a minor between

13 years of age and 15 years of age is guilty of a Class 4

felony); Code § 18.2-370 (stating that an adult “who, with

lascivious intent, knowingly and intentionally” “propose[s]” to

a child under the age of 15 “the performance of an act of

sexual intercourse, anal intercourse, cunnilingus, fellatio, or

anilingus” is guilty of a Class 5 felony); Code § 18.2-371

(stating that any adult who “engages in consensual sexual

intercourse or anal intercourse with or performs cunnilingus,

fellatio, or anilingus upon or by a child 15 or older not his

spouse, child, or grandchild is guilty of a Class 1

misdemeanor”); Code § 18.2-374.3 (stating that it is a Class 5

felony for an adult to use a communications system to

“[p]ropose to [a minor under 15 years of age] the performance

of an act of sexual intercourse, anal intercourse, cunnilingus,

fellatio, or anilingus”). Moreover, the Code criminalizes

19
prostitution involving sodomy, Code § 18.2-346, sodomy in

public, Code § 18.2-387, and forcible sodomy, Code § 18.2-

67.1(A). Given the General Assembly’s decision to criminalize

sodomy in these contexts, upholding the portions of Code §

18.2-361(A) that are constitutional clearly follows legislative

intent.

After consideration of the factors articulated by the

Supreme Court in Ayotte, we hold that it is proper to apply the

“normal rule” by prohibiting those applications of Code § 18.2-

361(A) that are unconstitutional and leaving the constitutional

applications of Code § 18.2-361(A) to be enforced. This remedy

is an exercise in judicial restraint because it allows the

constitutional portions of a statute passed by the General

Assembly to remain in effect and reflects the legislative

preferences exhibited by the Code and the subsequent acts of

the General Assembly.

Conclusion

Accordingly, for the reasons stated, we will affirm the

judgment of the Court of Appeals.

Affirmed.

JUSTICE MIMS, concurring.

I concur with the majority’s conclusion that former Code §

18.2-361(A) was not facially unconstitutional and was

20
enforceable under the facts of this case. I write separately

because I do not agree that the Court should reach this issue

(raised for the first time on appeal) under the good cause

exception provided by Rule 5:25. I also write to explain why I

find the Fourth Circuit panel majority’s opinion in MacDonald

v. Moose, 710 F.3d 154 (4th Cir. 2013), unpersuasive.

Toghill raised the issue presented here for the first time

to the Court of Appeals. He invited that court to reach it

under the ends of justice exception provided by Rule 5A:18.

The court declined his invitation. Rather, it addressed the

issue on the ground that it raised a question of subject matter

jurisdiction. 1 Toghill v. Commonwealth, Record No. 2230-12-2,

slip op. at 3-4 (February 11, 2014) (unpublished). The Court

of Appeals then determined that former Code § 18.2-361(A) was

not facially unconstitutional and declined to “disturb the

ruling of the trial court.” Id. at 4.

Unlike the Court of Appeals, the majority opinion finds

good cause to reach the issue under Rule 5:25 because the

Fourth Circuit decided Moose between the time of Toghill’s

trial and his appeal. It creates the precedent that an

appellant may raise an issue for the first time on appeal

1
See Saunders v. Commonwealth, 62 Va. App. 793, 803, 753
S.E.2d 602, 607 (2014) (opining that courts lack jurisdiction
to enter a criminal judgment upon a statute that is facially
unconstitutional).

21
simply because a federal court addressed it in a non-binding

opinion after the state court has concluded its proceedings,

even though the appellant could have raised the issue there.

I believe that such a precedent weakens Rule 5:25.

Rule 5:25 provides that “No ruling of the trial court . .

. will be considered as a basis for reversal unless an

objection was stated with reasonable certainty at the time of

the ruling, except for good cause shown or to enable this Court

to attain the ends of justice.”

The purpose of the rule is to “afford the
trial court an opportunity to rule
intelligently on the issues presented, thus
avoiding unnecessary appeals and
reversals.” Weidman v. Babcock, 241 Va.
40, 44, 400 S.E.2d 164, 167 (1991). . . .
Thus, the provisions of Rule 5:25 “protect
the trial court from appeals based upon
undisclosed grounds.” Fisher v.
Commonwealth, 236 Va. 403, 414, 374 S.E.2d
46, 52 (1988). . . . The rule is not
intended . . . “to obstruct petitioners in
their efforts to secure writs of error, or
appeals, but to put the record in such
shape that the case may be heard in this
Court upon the same record upon which it
was heard in the trial court.” Kercher v.
Richmond, Fredericksburg & Potomac R.R.
Co., 150 Va. 108, 115, 142 S.E. 393, 395
(1928).

In analyzing whether a litigant has
satisfied the requirements of Rule 5:25,
this Court has consistently focused on
whether the trial court had the opportunity
to rule intelligently on the issue. “If
[the] opportunity [to address an issue] is
not presented to the trial court, there is
no ruling by the trial court on the issue,

22
 and thus no basis for review or action by
this Court on appeal.” Riverside Hosp.,
Inc. v. Johnson, 272 Va. 518, 526, 636
S.E.2d 416, 420 (2006). An appellate court
can only “determine whether or not the
rulings and judgment of the court below . .
. were correct.” Jackson [v. Chesapeake &
Ohio Ry. Co.], 179 Va. [642,] 651, 20
S.E.2d [489,] 493 [(1942)].

Scialdone v. Commonwealth, 279 Va. 422, 437, 689 S.E.2d 716,

724 (2010) (internal alterations omitted).

Toghill could have presented the question at issue in this

appeal to the circuit court for its consideration. By

declining to do so, he prevented the circuit court from

reaching its own conclusion on the matter. We and the Court of

Appeals were able to consider the question because of its

jurisdictional implications. It is not necessary to open the

door for parties in future cases to take advantage of the good

cause exception to Rule 5:25 simply because a federal court has

decided an issue that was not submitted for the state court’s

consideration. We have previously held that the exception does

not apply when an appellant fails to raise an argument to a

circuit court for its consideration simply because the law, as

it stood when the case was pending there, was unfavorable to

the argument. Gheorghiu v. Commonwealth, 280 Va. 678, 688-89,

701 S.E.2d 407, 413 (2010). The majority opinion does not

distinguish that case.

23
 With regard to the persuasive value of the Fourth Circuit

panel majority’s opinion in Moose, I agree with the majority’s

conclusion that it is wrongly decided insofar as it declares

former Code § 18.2-361(A) to be facially unconstitutional.

However, I also observe that the Fourth Circuit was in no

position to rule on that question at all. It arose there upon

a petition for review under 28 U.S.C. § 2254, following the

petitioner’s unsuccessful efforts on appellate and state habeas

review. 710 F.3d at 156.

As capably explained by Judge Diaz in his dissenting

opinion,

the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), [Pub. L.
104-132, §104, 110 Stat. 1214, 1218-19
(1996)], “limits the federal courts’ power
to issue a writ to exceptional
circumstances” where the state court
decision on the merits “‘resulted in a
decision that was contrary to, or involved
an unreasonable application of, clearly
established [f]ederal law, as determined by
the Supreme Court of the United States.’”
Richardson v. Branker, 668 F.3d 128, 138
(4th Cir. 2012) (quoting 28 U.S.C §
2254(d)).

Id. at 167 (Diaz, J., dissenting) (alteration omitted).

Although the panel majority recited the relevant statutory

provision, it undertook no AEDPA analysis of either our opinion

deciding the petitioner’s direct appeal, McDonald v.

Commonwealth, 274 Va. 249, 645 S.E.2d 918 (2007), or Martin v.

24
Ziherl, 269 Va. 35, 607 S.E.2d 367 (2005), on which it was

principally grounded. It did not conclude, as AEDPA required,

that our decision in either case “was contrary to, or an

unreasonable application of” Lawrence v. Texas, 539 U.S. 558

(2003), or any other decision of the Supreme Court of the

United States.

Consequently, the Fourth Circuit panel majority decided an

issue without authority. 2 Fundamental principles of comity and

federalism are offended when a federal court’s reach exceeds

its statutory grasp.

Accordingly, I find the Fourth Circuit panel majority’s

opinion wholly unpersuasive and reject its application in

Virginia courts.

JUSTICE McCLANAHAN, concurring.

On appeal to this Court, Toghill challenges Code § 18.2-

361(A) as unconstitutional. Toghill did not, however,

challenge the constitutionality of Code § 18.2-361(A) at any

point during the circuit court proceedings. Faced with exactly

2
While the United States Supreme Court declined to review
the Fourth Circuit’s decision, Moose v. MacDonald, U.S., 134
S.Ct. 200 (2013), “the denial of a writ of certiorari imports
no expression of opinion upon the merits of the case. The
variety of considerations that underlie denials of the writ
counsels against according denials of certiorari any
precedential value.” Teague v. Lane, 489 U.S. 288, 296 (1989)
(internal citations, quotation marks, and alteration omitted).

25
this circumstance in McDonald v. Commonwealth, 274 Va. 249, 645

S.E.2d 918 (2007), this Court held that Rule 5:25 barred

consideration of the petitioner's constitutional challenge on

appeal. Id. at 255, 645 S.E.2d at 921; Riner v. Commonwealth,

268 Va. 296, 325 n.11, 601 S.E.2d 555, 571 n.11 (2004) ("Under

this Court's contemporaneous objection rule, see Rule 5:25, we

do not consider a constitutional argument raised for the first

time on appeal.") That the Fourth Circuit issued a non-binding

opinion that Code § 18.2-361(A) is unconstitutional after the

circuit court proceedings concluded does not excuse Toghill's

failure to himself challenge the constitutionality of the

statute during the proceedings. Commonwealth v. Jerman, 263

Va. 88, 94, 556 S.E.2d 754, 757 (2002); McGhee v. Commonwealth,

280 Va. 620, 625, 701 S.E.2d 58, 60-61 (2010). Even if Toghill

believed a constitutional challenge would fail given the

authority available at that time, "[t]he perceived futility of

an [argument] does not excuse a defendant's procedural default

at trial." Id., 701 S.E.2d at 61. Consistent with our

precedent, I would hold that Rule 5:25 bars the Court's

consideration of Toghill's appeal. McDonald, 274 Va. at 255,

645 S.E.2d at 921; id.; see also Brandon v. Cox, 284 Va. 251,

254–56, 736 S.E.2d 695, 696–97 (2012); Edmonds v. Coldwell

Banker Residential Real Estate Servs., Inc., 237 Va. 428, 433,

377 S.E.2d 443, 446 (1989).
 Rule 5:25 does provide an exception for good cause, but

Toghill has not at any point attempted to even allege good

cause. The majority asserts it may raise sua sponte the good

cause exception, citing as support the Court's invocation sua

sponte of the ends of justice exception. While "this Court [is

able] to attain the ends of justice," the Court may apply the

good cause exception only "for good cause shown" by a party,

not for good cause discovered by this Court. Rule 5:25

(emphasis added); see Rule 5:9(d) (distinguishing between a

"motion for good cause shown" and a "sua sponte order of this

Court"). * Indeed, this Court has declined to sua sponte invoke

the good cause exception where the law changed under binding

decisions by this Court and by the Supreme Court of the United

States, in stark contrast to the merely persuasive Fourth

Circuit opinion. Jerman, 263 Va. at 94, 556 S.E.2d at 757;

McGhee, 280 Va. at 625, 701 S.E.2d at 60-61. And to be sure,

the Fourth Circuit's issuance of a non-binding opinion cannot,

and did not, carry Toghill's burden to show good cause to this

Court.

Finding the appeal barred under 5:25, I would affirm the

judgment of the Court of Appeals.

*
This is analogous to, for example, a show cause order,
which creates a burden on the party to whom the order is
directed to present the Court with evidence establishing good
cause. See, e.g., Rule 5:1(A) (show cause order issued "to
counsel or a party not represented by an attorney").

27