Warren v. Commonwealth

69 Va.App. 659

822 S.E.2d 395

Arthur Anderson WARREN

v.COMMONWEALTH of Virginia

Record No. 2086-17-3

Court of Appeals of Virginia, Lexington.

JANUARY 15, 2019

Glenn L. Berger (Berger & Thornhill, on brief), Altavista, for appellant.

Eugene Murphy, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Petty, O’Brien and Russell

OPINION BY JUDGE WESLEY G. RUSSELL, JR.

Arthur Anderson Warren was convicted in a bench trial of soliciting another person "to carnally know a brute animal or to submit to carnal knowledge with a brute animal" in violation of Code §§ 18.2-29¹ and 18.2-361(A). He asserts on appeal that the trial court erred in failing to dismiss the indictment because Code § 18.2-361(A) is unconstitutional in that it criminalizes "private sexual conduct of consenting adults." For the reasons that follow, we disagree and affirm the judgment of the trial court.

BACKGROUND

We view the evidence in the light most favorable to the Commonwealth as the prevailing party below. Tucker v. Commonwealth, 268 Va. 490, 492, 604 S.E.2d 66 (2004). So viewed, the evidence established that, in October of 2016, Warren videotaped on his cellphone encounters he had with K.H. and her dog. The videos were sexual in nature and showed, among other things, the dog’s tongue penetrating K.H.’s vagina while K.H. performed oral sex on Warren.² Warren can be heard on the videos encouraging the dog and directing K.H. to position her legs so as to give the dog improved access to her body. The videos were played at trial.

In March of 2017, Deputy Sheriff Adam Reynolds spoke with Warren on an unrelated matter. Unprompted, Warren asked Reynolds if "bestiality type stuff" was "legal or illegal," described the cellphone videos, and offered to show them to Reynolds. Reynolds did not view the videos, but contacted Investigator Janet Sergeant. Although Warren volunteered to show the videos to the officers, they obtained a search warrant before removing the videos from Warren’s cellphone. Sergeant testified that she viewed the videos and recognized the voices of K.H. and Warren.

Warren moved to dismiss the indictment on constitutional grounds. Specifically, he argued that Code § 18.2-361(A) was both facially unconstitutional and unconstitutional as applied to him after the United States Supreme Court’s decision in Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). He argued that the conduct depicted in the videos could not be subject to criminal sanction because it amounted to nothing more than consensual sexual conduct involving adults.

The trial court held a hearing on the motion on August 14, 2017. After hearing the arguments of the parties, the trial court denied the motion.

The matter proceeded to trial. Warren did not offer any evidence. Instead, in addition to his constitutional arguments, he argued that the activities depicted in the videos were insufficient to establish a violation of Code §§ 18.2-29 and 18.2-361(A). The trial court rejected his arguments, finding that the videos demonstrated that Warren had solicited K.H. to engage in sexual conduct with an animal and that she had done so. Accordingly, the trial court convicted Warren of the charged offense.

On appeal, Warren does not challenge the sufficiency of the evidence to support his conviction. Rather, he limits his challenge to the constitutionality of Code § 18.2-361(A), asserting that it violates his due process rights. He argues that the statute is both facially unconstitutional and unconstitutional as applied to his conduct depicted in the videos, which he contends is nothing more than "private sexual conduct of consenting adults."

ANALYSIS

I. Standard of Review

In challenging the constitutionality of Code § 18.2-361(A), Warren raises a question of law subject to de novo review.

Shivaee v. Commonwealth, 270 Va. 112, 119, 613 S.E.2d 570 (2005). Our review of such questions begins with the presumption that the enactments of the General Assembly are constitutional. Marshall v. N. Va. Transp. Auth., 275 Va. 419, 427, 657 S.E.2d 71 (2008). "[E]very reasonable doubt regarding the constitutionality of a legislative enactment must be resolved in favor of its validity." Id. at 428, 657 S.E.2d 71. Although Congress may act only pursuant to a grant of enumerated power, United States v. Comstock, 560 U.S. 126, 133, 130 S.Ct. 1949, 1956, 176 L.Ed.2d 878 (2010), the General Assembly is not so limited, Harrison v. Day, 201 Va. 386, 396, 111 S.E.2d 504 (1959) ("The Constitution of the State is not a grant of legislative powers to the General Assembly, but is a restraining instrument only, and, except as to matters ceded to the federal government, the legislative powers of the General Assembly are without limit."). Thus, "unless [a] statute clearly violates a provision of the United States or Virginia Constitutions[,]" the General Assembly has the power to enact it. Marshall, 275 Va. at 427, 657 S.E.2d 71.

II. Code § 18.2-361(A)

At the time of the offense, Code § 18.2-361(A) provided that "[i]f any person carnally knows in any manner any brute animal or voluntarily submits to such carnal knowledge, he is guilty of a Class 6 felony." This version, which is currently in force, was adopted by the General Assembly in 2014. 2014 Va. Acts 794.

Although Warren was charged under the 2014 version of the statute, his constitutional challenge partially turns on cases dealing with an earlier version. Because it is necessary to fully explain the issues and authorities raised by Warren, we note that, prior to the 2014 amendment, Code § 18.2-361(A) was broader, providing that "[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 ... is guilty of a Class 6 felony ...." See id.

III. Warren’s constitutional challenge to Code § 18.2-361(A)

Warren argues that both the prior version of Code § 18.2-361(A) and the 2014 version are unconstitutional in light of the United States Supreme Court’s decision in Lawrence, which addressed a constitutional challenge to a Texas statute that criminalized acts of same-sex sodomy. 539 U.S. at 563, 123 S.Ct. at 2476. Although the petitioners in Lawrence raised multiple constitutional arguments, the Lawrence majority decided that "the case should be resolved" on whether the sexual conduct at issue was a protected "liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution." Id. at 564, 123 S.Ct. at 2476.

After noting that there was "no longstanding history in this country of laws directed at homosexual conduct as a distinct matter[,]" id. at 568, 123 S.Ct. at 2478, the majority concluded that the conduct at issue, "two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle[ ]" in private, id. at 578, 123 S.Ct. at 2484, was protected by the due process clause. In so holding, the majority wrote that the "State cannot demean [the petitioners’] existence or control their destiny by making their private sexual conduct a crime." Id.

Although the Lawrence majority made clear its view that the liberty interests protected by the due process clause prevented a state from criminalizing private, noncommercial, consensual acts of sodomy, whether heterosexual or same-sex, id. at 575, 123 S.Ct. at 2482, it did not address the extent to which those liberty interests might protect other sexual conduct. Specifically, the opinion does not explicitly address whether longstanding prohibitions on other activities with a sexual component, such as bestiality or prostitution, similarly violate the liberty interests protected by the due process clause.³

Warren argues that the reasoning of the Lawrence majority applies with equal force to his case, analogizing private acts of sodomy between consenting adults to private sexual activity by adults involving animals. He contends that, after Lawrence, the Commonwealth simply may not criminalize such sexual activities, and therefore, Code § 18.2-361(A) is both facially unconstitutional and unconstitutional as applied to him. We address each argument in turn.

A. Warren’s facial challenge

"A facially unconstitutional statute is invalid." Toghill v. Commonwealth, 289 Va. 220, 231, 768 S.E.2d 674 (2015). Thus, a litigant challenging the constitutionality of a statute "can only succeed in a facial challenge by ‘establish[ing] that no set of circumstances exists under which the Act would be valid,’ i.e. , that the law is unconstitutional in all of its applications." Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449, 128 S.Ct. 1184, 1190, 170 L.Ed.2d 151 (2008) (alteration in original) (quoting United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987) ).

In support of his argument that, after Lawrence, Code § 18.2-361(A) is facially unconstitutional, Warren cites to the decision of the United States Court of Appeals for the Fourth Circuit in MacDonald v. Moose, 710 F.3d 154 (4th Cir. 2013), a federal habeas corpus proceeding challenging the constitutionality of the pre-2014 version of Code § 18.2-361(A).

Like Warren, MacDonald was charged with violating Code § 18.2-29 by soliciting someone to violate Code § 18.2-361(A). Unlike Warren, MacDonald was not charged for soliciting someone to commit bestiality, but rather, the underlying "predicate felony for MacDonald’s criminal solicitation offense was the Commonwealth’s ‘Crimes Against Nature’ statute, which criminalizes, inter alia , ‘carnal knowledge’ by one person of another by the anus or mouth, an act commonly known as sodomy." Moose, 710 F.3d at 156. Specifically, MacDonald was convicted as a result of using a telephone to solicit a minor to meet him in a Home Depot parking lot and, after further discussions and travel, seeking to have her perform oral sex on him. Id. at...