Tjan v. Com.

Page 669

621 S.E.2d 669

46 Va. App. 698

Andy Joe TJAN v. COMMONWEALTH of Virginia.

Record No. 3221-03-1.

Court of Appeals of Virginia, Chesapeake.

November 8, 2005.

COPYRIGHT MATERIAL OMITTED

(James O. Broccoletti, Norfolk; Zoby & Broccoletti, P.C., on brief), for appellant.¹

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

Present: HUMPHREYS and KELSEY, JJ., and OVERTON, S.J.

HUMPHREYS, Judge.

Appellant Andy Joe Tjan ("Tjan") appeals his conviction, following a conditional guilty plea, for solicitation to commit oral sodomy, in violation of Code §§ 18.2-29 and 18.2-361. Based on the holding of the United States Supreme Court in Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), Tjan contends that Code § 18.2-361 is facially invalid because it violates his Fourteenth Amendment rights to equal protection and due process of law. And, because the statute is facially unconstitutional, Tjan concludes that he cannot be convicted for attempting, through solicitation, to violate that statute. In the alternative, Tjan contends that Code § 18.2-361 is unconstitutional because it is both overbroad and void for vagueness. For the reasons that follow, we hold that Tjan lacks standing to argue that Code § 18.2-361 is facially unconstitutional because it violates the Due Process Clause of the Fourteenth Amendment and that he also lacks standing to contend that the statute is constitutionally overbroad. We further hold that the statute does not violate the Equal Protection Clause and is not void for vagueness. Accordingly, we affirm the judgment below.

I. BACKGROUND

The relevant facts are not in dispute.² On March 19, 2003, Tjan walked into a public restroom located in a department store. As Tjan was washing his hands, he looked into one of the restroom stalls and saw an undercover police officer. Tjan began tapping his foot against the bathroom stall "in a covert effort to solicit sexual favors." The officer asked Tjan what he wanted, and Tjan responded, "I want you" and pretended to suck one of his fingers. Tjan "then acknowledged affirmatively to the officer that he wanted to suck the officer's penis and that he wanted to do this in one of the stalls of the restroom right there and then."

On April 21, 2003, a grand jury indicted Tjan for "command[ing], entreat[ing] or otherwise attempt[ing] to persuade another to commit a felony," specifically, "Crimes Against Nature," in violation of Code §§ 18.2-361 and 18.2-29. At the arraignment hearing, conducted on November 24, 2003, Tjan moved to dismiss the indictment, arguing that Code § 18.2-361 is facially unconstitutional, "is overbroad and [contains] within its prohibitions activities that are constitutionally protected," "is void for vagueness under the due process clause," "encourages arbitrary and discriminatory enforcement of the law," and "violates the equal protection clause of the Unites States [C]onstitution" because the Commonwealth "only prosecutes that conduct which occurs in privacy between homosexuals." The trial court, relying on the reasons advanced in its earlier decision in a similar case, see Singson v. Commonwealth, 46 Va.App. 724, 621 S.E.2d 682, 2005 WL 2977779 (2005) (this day decided), denied the motion to dismiss.³ Tjan entered a conditional guilty plea, and he now appeals.

II. ANALYSIS

Tjan contends that Code § 18.2-361 is facially invalid because it violates his Fourteenth Amendment rights to equal protection and due process of law. In the alternative, Tjan contends that Code § 18.2-361 is unconstitutionally overbroad and void for vagueness. For the reasons that follow, we affirm the judgment below.

A. Whether Code § 18.2-361 Is Facially Unconstitutional Because It Violates the Due Process Clause of the Fourteenth Amendment

Citing Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), Tjan initially contends that Code § 18.2-361 is facially unconstitutional because it criminalizes private acts of consensual sodomy, thus offending the Due Process Clause of the Fourteenth Amendment. Tjan reasons that, because Code § 18.2-361 is facially unconstitutional, he cannot be prosecuted for violating the terms of the statute even though his attempted conduct falls within the scope of that statute. However, for the reasons advanced in Singson, 46 Va.App. 724, 621 S.E.2d 682, we hold that Tjan lacks standing to assert this claim. And, because application of Code § 18.2-361 to public sexual conduct does not implicate the more narrow liberty interest upheld in Lawrence, see Singson, 46 Va.App. at 735, 621 S.E.2d at 687, we further hold that application of Code § 18.2-361 under the circumstances of this case does not violate the Due Process Clause of the Fourteenth Amendment.

B. Whether Code § 18.2-361 Is Unconstitutionally Overbroad

In the alternative, Tjan contends that Code § 18.2-361 is unconstitutionally overbroad, reasoning that the statute "contains within its provisions prohibitions against activities that are constitutionally protected." That is, because Code § 18.2-361 encompasses "constitutionally protected conduct between consenting adults," Tjan reasons that the statute is facially unconstitutional.

However, outside the context of a First Amendment challenge,⁴ when a statute is constitutional as applied to a litigant, the litigant has no standing to challenge the statute on the ground that it may be unconstitutional on its face—that is, as applied to a third person in a hypothetical situation. County Court of Ulster County v. Allen, 442 U.S. 140, 154-55, 99 S.Ct. 2213, 2223-24, 60 L.Ed.2d 777 (1979). And, as noted by the Virginia Supreme Court, "`[w]hen overbreadth has only due process implications, [a defendant] has no standing to make a facial attack but only standing to challenge the statute as applied to his own conduct.'" Evans & Smith v. Commonwealth, 226 Va. 292, 296, 308 S.E.2d 126, 129 (1983) (quoting Stanley v. City of Norfolk, 218 Va. 504, 508, 237 S.E.2d 799, 802 (1977)).

As Tjan concedes, his attempted conduct falls within the scope of Code § 18.2-361. See Santillo v. Commonwealth, 30 Va.App. 470, 483, 517 S.E.2d 733, 740 (1999). And, because of its public nature, that conduct is not constitutionally protected. See Singson, 46 Va.App. at 730, 621 S.E.2d at 684. Because the statute is constitutional as applied to Tjan, and because Code § 18.2-361 does not implicate the First Amendment,⁵ we hold that Tjan lacks standing to mount a facial overbreadth challenge to Code § 18.2-361. See Stanley, 218 Va. at 508, 237 S.E.2d at 802 (holding that the appellant lacked standing to mount a facial overbreadth challenge to an ordinance where he did not "contend that his own conduct was constitutionally protected or that the ordinance [was] void for First Amendment overbreadth"); see also County Court of Ulster, 442 U.S. at 154-55, 99 S.Ct. at 2223-24; Evans & Smith, 226 Va. at 296, 308 S.E.2d at 129.

C. Whether Code § 18.2-361 Is Void for Vagueness

Tjan also contends that Code § 18.2-361 is unconstitutional because it is void for vagueness. A criminal statute is deemed unconstitutionally vague if it "`fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute.'" Bouie v. Columbia, 378 U.S. 347, 351, 84 S.Ct. 1697, 1701, 12 L.Ed.2d 894 (1964) (quoting United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954)); see also Gray v. Commonwealth, 260 Va. 675, 681, 537 S.E.2d 862, 865 (2000) ("[A] `penal statute is void for vagueness if it fails to give a person of ordinary intelligence notice that his contemplated conduct is forbidden by the statute . . . .'" (quoting Woodfin v. Commonwealth, 236 Va. 89, 92, 372 S.E.2d 377, 379 (1988)) (omission in original)). The void-for-vagueness rule is premised on the concept that "`no man [should] be held criminally responsible for conduct which he could not reasonably understand to be proscribed.'" Bouie, 378 U.S. at 351, 84 S.Ct. at 1701 (quoting Harriss, 347 U.S. at 617, 74 S.Ct. at 812). Thus, the doctrine "`protects two due process interests,'" first, requiring "`that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly,'" and second, "prevent[ing] arbitrary and discriminatory enforcement by requiring that laws . . . provide explicit standards to those who apply them.'" Parker v. Commonwealth, 24 Va.App. 681, 687, 485 S.E.2d 150, 153 (1997) (quoting Coleman v. City of Richmond, 5 Va.App. 459, 466, 364 S.E.2d 239, 243 (1988)) (internal quotations omitted) (omission in original).

As we have held, Code § 18.2-361 satisfies the void-for-vagueness test because the statutory text clearly identifies the specific, prohibited conduct in a manner that no reasonable person could misunderstand. See Santillo, 30 Va.App. at 483, 517 S.E.2d at 740 ("We hold that Code § 18.2-361 is not unconstitutionally vague either on its face or as applied to appellant."). As we noted in Santillo, "Code § 18.2-361 is sufficiently clear to inform both citizens and law enforcement officers of what acts constitute carnal knowledge `by or with the mouth.'" Id. at 484, 517 S.E.2d at 740. And, because "`the terms of the statute, when measured by common understanding and practices, sufficiently warns a person as to what behavior is prohibited, [] the statute is not unconstitutionally vague.'" Id. (quoting Stein v. Commonwealth, 12 Va.App. 65, 69, 402 S.E.2d 238, 241 (1991)); see also Pedersen v. Richmond, 219 Va. 1061, 1066, 254 S.E.2d 95, 98 (1979) (upholding an ordinance prohibiting solicitation of "any act which is lewd, lascivious, or indecent," reasoning that "[a] person of even limited intelligence is on notice from the provisions of [the ordinance] that solicitation of sodomy is thereby forbidden").

Tjan argues,...