DePriest v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Willis and Elder
Argued at Salem, Virginia

ELVIS GENE DePRIEST

v. Record No. 1587-99-3

COMMONWEALTH OF VIRGINIA

LARRY RIERSON JONES

v. Record No. 1595-99-3

COMMONWEALTH OF VIRGINIA

RUSSELL NEWAII POINDEXTER

v. Record No. 1596-99-3 OPINION BY
JUDGE JERE M. H. WILLIS, JR.
COMMONWEALTH OF VIRGINIA NOVEMBER 21, 2000

JAMES PATRICK FAY

v. Record No. 1597-99-3

COMMONWEALTH OF VIRGINIA

PHILLIP WAYNE EVANS

v. Record No. 1598-99-3

COMMONWEALTH OF VIRGINIA

BARRY WAYNE HODGES

v. Record No. 1599-99-3

COMMONWEALTH OF VIRGINIA

JOHN JOHNSON, S/K/A
JOHN WILLIAM JOHNSON

v. Record No. 1600-99-3

COMMONWEALTH OF VIRGINIA
LAWRENCE T. MARTYS, S/K/A
LAWRENCE P. MARTYS

v. Record No. 1601-99-3

COMMONWEALTH OF VIRGINIA

EVERETTE ELMO DAVIDSON

v. Record No. 1619-99-3

COMMONWEALTH OF VIRGINIA

RONALD WALLER, S/K/A
RONALD THOMAS WALLER

v. Record No. 1920-99-3

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Jonathan M. Apgar, Judge, in DePriest
Robert P. Doherty, Jr., Judge, in remaining cases

Sam Garrison (David Denton Lawrence;
Michael B. Massey; Trumbo & Massey, P.L.C.,
Richard Lee Lawrence & Associates, on
briefs), for appellants.

John H. McLees, Jr., Senior Assistant
Attorney General (Mark L. Earley, Attorney
General, on brief), for appellee.

Amicus Curiae: Log Cabin Republican Club of
Northern Virginia (William G. Kocol;
Eugene M. Lawson, Jr., Resident Counsel, on
brief), for appellants.

Amicus Curiae: The Liberty Project
(Julie M. Carpenter; Jared O. Freedman;
Elena N. Broder-Feldman; Jenner & Block, on
brief), for appellants.

Amicus Curiae: American Civil Liberties
Union Foundation, American Civil Liberties
Union of Virginia, Inc., and Lambda Legal
Defense and Education Fund, Inc. (Michael

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 Adams; Matthew Coles; Marianne Merritt;
Philip Hirschkop; Rebecca K. Glenberg;
Stephen R. Scarborough; Hirschkop &
Associates, P.C., on brief), for appellants.

These ten consolidated appeals are from judgments of

conviction in the Circuit Court of the City of Roanoke for

solicitation to commit oral sodomy in violation of Code

§§ 18.2-29 and 18.2-361. 1 The appellants contend that the trial

court erred in ruling that Code § 18.2-361: (1) does not

violate the fundamental right to privacy guaranteed by Article I

of the Constitution of Virginia; (2) does not violate the

prohibitions against cruel and unusual punishment contained in

Article I, Section 9, of the Constitution of Virginia and in the

Eighth Amendment to the Constitution of the United States; and

(3) does not violate the prohibitions against an establishment

of religion contained in Article I, Section 16, of the

Constitution of Virginia and in the First Amendment to the

Constitution of the United States. The Commonwealth contends

that the appellants lack standing to attack the

constitutionality of Code § 18.2-361 facially and that each may

assert the statute's constitutional invalidity only as the

1
Code § 18.2-29 provides, "[a]ny person who commands,
entreats, or otherwise attempts to persuade another person to
commit a felony, shall be guilty of a Class 6 felony."
Code § 18.2-361, in relevant part, makes it a Class 6
felony "[i]f any person . . . carnally knows any male or female
person by the anus or by or with the mouth, or voluntarily
submits to such carnal knowledge."

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statute applies to him in his respective case. We affirm the

judgments of the trial court.

I. BACKGROUND

Each appellant moved to dismiss the indictment against him,

contending that Code § 18.2-361 is unconstitutional on its face.

Each argued, inter alia, that the statute denies the fundamental

right to privacy guaranteed by the Constitution of Virginia,

that it violates the prohibition against an establishment of

religion contained in the First Amendment to the Constitution of

the United States and in Article I, Section 16, of the

Constitution of Virginia, and that it violates the prohibition

against cruel and unusual punishment contained in Article I,

Section 9, of the Constitution of Virginia and the Eighth

Amendment to the Constitution of the United States. After

conducting a joint evidentiary hearing and receiving

post-hearing briefs, the trial court denied the motions. This

appeal addresses the trial court's ruling.

At the hearing on their respective motions to dismiss,

appellants called as a witness Roanoke City Police Lieutenant

R.E. Carlisle, commander of the police Vice Bureau. Lieutenant

Carlisle testified that the police had received numerous

complaints of sexual activities in public places, including

complaints that members of the public found used condoms

littering the ground in city public parks. He testified that

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children had found condoms, in some cases thinking they were

balloons.

Responding to the foregoing complaints, Lieutenant Carlisle

sent plainclothes police officers to surveil the public parks.

They observed homosexual "cruising" occurring in and between

Smith Park and Wasena Park and in the public restroom in Wasena

Park. Based on this information, Lieutenant Carlisle sent

several male undercover officers into the parks to investigate

solicitation to commit sodomy. He instructed the officers:

(1) they were not to entrap anyone; (2) they were to investigate

"based on their training and see if anyone would offer to commit

an act against them, or pay to commit an act against them"; and

(3) to be charged, a person "had to show a willingness to carry

out the act in the park." The charges that led to these appeals

were made pursuant to those guidelines. One person proposed

committing oral sodomy in a private place. That person was not

charged.

The appellants also called as witnesses a number of sex

therapists, clergymen and lay people, who testified to the

prevalence, popularity and harmlessness of oral sex between

consenting adults, married and unmarried, "gay" and "straight,"

in their own lives and in modern American culture.

The trial court issued a memorandum opinion explaining its

denial of the motions to dismiss. The court first held that

Code § 18.2-361 did not constitute an establishment of religion

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or impose cruel and unusual punishment. It further held that,

as applied to the appellants in these cases, Code § 18.2-361

violated no right to privacy recognized by the United States or

Virginia Constitutions. It ruled that the appellants lacked

standing to complain of the potential application of the statute

to other persons or to their private activities.

After the motions to dismiss were denied, nine of the

appellants pled guilty and were tried jointly. The evidence in

each case, as summarized by the assistant Commonwealth's

attorney, disclosed that the respective appellant and an

undercover police officer met in a public park and struck up a

conversation that led to the appellant's proposing to engage in

oral sodomy with the officer. In no case did the appellant

specify that the act would occur other than in the public park.

In four cases, the appellants reached for and fondled the

officers' crotch areas while engaging in those discussions. In

another case, the appellant exposed himself to the officer while

masturbating in a public restroom. In one case, the appellant

suggested "find[ing] a place where no one would see us" before

performing fellatio on the officer.

In appellant Waller's jury trial, the arresting officer

testified that he struck up a casual conversation with Waller

while both were standing by the river in Wasena Park. Waller

then "grabbed" the officer's genitals and fondled him while

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discussing sex acts and proposing that they commit oral sodomy

at a different spot in the park.

The appellants contend that they have standing to challenge

the constitutionality of Code § 18.2-361 on its face rather than

only as applied to them. They further contend that Code

§ 18.2-361 imposes cruel and unusual punishment and constitutes

an establishment of religion. Because the appellants lack

standing to attack Code § 18.2-361 on its face and because the

statute neither imposes cruel and unusual punishment nor

constitutes an establishment of religion, we affirm the

judgments of the trial court.

II. STANDING

Appellants first contend that Code § 18.2-361 violates the

right to privacy as guaranteed by Article I, Section 1, of the

Constitution of Virginia, which provides:

Equality and rights of men -- That all men
are by nature equally free and independent
and have certain inherent rights, of which,
when they enter into a state of society,
they cannot, by any compact, deprive or
divest their posterity; namely, the
enjoyment of life and liberty, with the
means of acquiring and possessing property,
and pursuing and obtaining happiness and
safety.

In Young v. Commonwealth, 101 Va. 853, 45 S.E. 327 (1903),

the Supreme Court explained the meaning of the liberty guarantee

as follows:

The word "liberty," as used in the
Constitution of the United States and the

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 several States, has frequently been
construed, and means more than mere freedom
from restraint. It means not merely the
right to go where one chooses, but to do
such acts as he may judge best for his
interest, not inconsistent with the equal
rights of others; that is, to follow such
pursuits as may be best adapted to his
faculties, and which will give him the
highest enjoyment. The liberty mentioned is
deemed to embrace the right of the citizen
to be free in the enjoyment of all his
faculties; to be free to use them in all
lawful ways; to live and work where he will;
to earn his livelihood by any lawful
calling, and for that purpose to enter into
all contracts which may be proper,
necessary, and essential to his carrying out
to a successful conclusion the purpose above
mentioned. These are individual rights,
formulated as such under the phrase "pursuit
of happiness" in the Declaration of
Independence, which begins with the
fundamental proposition that all men are
created equal; that they are endowed by
their Creator with certain inalienable
rights; that among these are life, liberty
and the pursuit of happiness.

Id. at 862-63, 45 S.E. at 328-29 (citations omitted) (emphasis

added). The constitutional right to liberty is not an unlimited

license. Liberty must be enjoyed and exercised lawfully and in

a manner not inconsistent with the equal rights of others.

An individual may challenge the constitutionality of a law

only as it applies to him or her. See Coleman v. City of

Richmond, 5 Va. App. 459, 463, 364 S.E.2d 239, 241-42 (citation

omitted), reh'g denied, 6 Va. App. 296, 368 S.E.2d 298 (1988).

"That the statute may apply unconstitutionally to another is

irrelevant; one cannot raise third party rights." Id. at 463,

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364 S.E.2d at 242. See also Pederson v. Richmond, 219 Va. 1061,

1066, 254 S.E.2d 95, 98 (1979) (finding one lacks standing to

assert the privacy rights of third parties).

The appellants contend that they fall within an exception

to the general standing rule.

In the past, the [United States Supreme
Court] has recognized some limited
exceptions to these principles, but only
because of the most "weighty, countervailing
policies." One such exception is where
individuals not parties to a particular suit
stand to lose by its outcome and yet have no
effective avenue of preserving their rights
themselves. Another exception has been
carved out in the area of the First
Amendment.

Broadrick v. Oklahoma, 413 U.S. 601, 611 (1973) (citations

omitted); see also Santillo v. Commonwealth, 30 Va. App. 470,

477 n.3, 517 S.E.2d 733, 736 n.3 (1999) (stating an exception to

the general standing rule is in the area of First Amendment

challenges).

This is not a First Amendment case. See Pederson, 219 Va.

at 1066, 254 S.E.2d at 98. Contrary to the appellants'

argument, sex therapists, married persons, and consenting adults

engaging privately in sexual conduct (persons not involved in

this case) do not stand to lose by the outcome of this case.

They retain an "effective avenue of preserving their rights

themselves." Any such person proposing or engaging in sodomy

under circumstances supporting a claim of privacy may, upon

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discovery and accusation, assert, in his defense, those

circumstances and that claim.

We conclude, therefore, that appellants fall within the

general rule that a party attacking the constitutionality of a

statute must demonstrate that his own, rather than a third

party's, rights are unconstitutionally infringed. Accordingly,

appellants lack standing to challenge facially the

constitutionality of Code § 18.2-361. Thus, we consider the

constitutionality of the statute only as it applies to the

appellants in this case and to their conduct that underlay their

convictions.

III. PRIVACY

Appellants contend that by inhibiting their ability to

engage in homosexual conduct with other similarly disposed

persons, Code § 18.2-361 infringes their right to privacy. In

so arguing, they assert the privacy rights of married persons

and of persons who, unlike them, may engage in such conduct in

private. But the appellants' conduct was not private. Whatever

may be the constitutional privacy rights of one who engages in

sodomy in private, those rights do not attach to one who does

the same thing in public. See Lovisi v. Slayton, 363 F. Supp.

620 (E.D. Va. 1973), aff'd, 539 F.2d 349 (4th Cir.), cert.

denied, 429 U.S. 977 (1976).

Lovisi involved a challenge to the constitutionality of the

predecessor to Code § 18.2-361. Mr. and Mrs. Lovisi engaged in

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sodomy with a third person in their home. They permitted

themselves to be photographed committing those acts. The

pictures fell into the hands of their children and became

public. Lovisi claimed the statute unconstitutionally invaded

his right of privacy. The court held that through publication

Lovisi's acts ceased to be "private." The court said:

The Court is faced with the . . . question
of whether, if the Lovisis' conduct was not
constitutionally protected, they may attack
the constitutionality of [the statute] on
the basis of the rights of third persons.
. . . The Court . . . holds that they do not
have standing to assert the constitutional
rights of other persons and thus may not
attack the constitutionality of statutes
underlying their conviction on this basis.

Id. at 623-24.

The activities underlying the charges against the

appellants were not conducted in private. Their solicitations

were made to strangers in public parks. They proposed to commit

sodomy in the public parks. The appellants' acts and their

proposed conduct were clothed with no circumstance giving rise

to a supportable claim of privacy. Those acts and proposed

conduct fall squarely within the rule of Lovisi.

IV. CRUEL AND UNUSUAL PUNISHMENT

The appellants next contend that Code § 18.2-361 violates

the prohibitions against "cruel and unusual punishment"

contained in Article I, Section 9, of the Constitution of

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Virginia 2 and the Eighth Amendment to the Constitution of the

United States. 3 They argue that the disparity between the

punishment provided for sodomy and that provided for adultery or

fornication effects the imposition of cruel and unusual

punishment upon those convicted of sodomy. We disagree.

It lies within the province of the legislature to define

and classify crimes and to determine the punishments for those

crimes. Hart v. Commonwealth, 131 Va. 726, 109 S.E. 582 (1921).

No punishment authorized by statute, even though severe, is

cruel and unusual unless it is one "prescribing a punishment in

quantum so severe for a comparatively trivial offense that it

would be so out of proportion to the crime as to shock the

conscience . . . ." Id. at 745, 109 S.E. at 588. We find our

consciences shocked neither by appellants' sentences 4 nor by the

five-year maximum sentence provided by the statute. Therefore,

we find no imposition of cruel or unusual punishment.

2
"[E]xcessive bail ought not to be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted
. . . ." Va. Const. art. I, § 9.
3
"Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted." U.S.
Const. amend. VIII.
4
In nine of the ten cases, the defendants entered
conditional pleas of guilty with plea agreements that the
appropriate sentences would be twelve months in jail suspended
and a $1,000 fine. In the tenth case, the defendant was tried
and convicted by a jury, and sentenced to serve sixty days in
jail and a fine of $1,500.

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 V. ESTABLISHMENT OF RELIGION

Finally, the appellants contend that Code § 18.2-361

violates the prohibition against an "Establishment of Religion"

contained in Article I, Section 16, of the Constitution of

Virginia 5 and the First Amendment to the Constitution of the

United States. 6 We disagree.

The appellants produced testimony concerning the religious

origins and development of the law against sodomy. They argue

that its religious origin renders Code § 18.2-361

unconstitutional.

Although Code § 18.2-361 may have a basis in religious

values, this alone is not dispositive of the constitutional

issue. In rejecting a constitutional challenge to Maryland's

Sunday closing laws, the Supreme Court held in McGowan v.

Maryland, 366 U.S. 420 (1961):

However, it is equally true that the
"Establishment" Clause does not ban federal
or state regulation of conduct whose reason
or effect merely happens to coincide or
harmonize with the tenets of some or all
religions. In many instances, the Congress
or state legislatures conclude that the
general welfare of society, wholly apart
from any religious considerations, demands
such regulation. Thus, for temporal
purposes, murder is illegal. And the fact

5
"[T]he General Assembly shall not . . . confer any peculiar
privileges or advantages on any sect or denomination . . . ."
Va. Const. art. I, § 16.
6
"Congress shall make no law respecting an establishment of
religion . . . ." U.S. Const. amend. I.

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 that this agrees with the dictates of the
Judaeo-Christian religions while it may
disagree with others does not invalidate the
regulation. So too with the questions of
adultery and polygamy. The same could be
said of theft, fraud, etc., because those
offenses were also proscribed in the
Decalogue.

Id. at 442 (citations omitted).

The Supreme Court has defined a three-pronged test to

determine whether a statute effects an establishment of

religion. To be found free of such an establishment, "first,

the statute must have a secular legislative purpose; second, its

principal or primary effect must be one that neither advances

nor inhibits religion; finally, the statute must not foster 'an

excessive government entanglement with religion.'" Lemon v.

Kurtzman, 403 U.S. 602, 612-13 (1971) (citations omitted).

The appellants have failed to prove that the primary effect

of Code § 18.2-361 is to advance or inhibit religion. Nor have

they proved that Code § 18.2-361 fosters "excessive governmental

entanglement with religion." Id. To the contrary, the statute

rests plainly on long established secular values concerning

sexual conduct.

Thus, the appellants have failed to demonstrate that Code

§ 18.2-361 effects an establishment of religion.

We affirm the judgments of the trial court.

Affirmed.

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