White v. United States

300 Va. 269

863 S.E.2d 483

Terry Antonio WHITE

v.UNITED STATES of America

Record No. 210168

Supreme Court of Virginia.

OCTOBER 14, 2021

Mark A. Jones (David B. Hargett, Glen Allen; Bell, Davis & Pitt, on briefs), for defendant-appellant.

Michael F. Joseph, Assistant United States Attorney (Daniel T. Young, Assistant United States Attorney, on brief), for plaintiff-appellee.

Amicus Curiae: Commonwealth of Virginia (Mark R. Herring, Attorney General of Virginia; A. Anne Lloyd, Assistant Attorney General, on brief) in support of plaintiff-appellee.

PRESENT: All the Justices

OPINION BY JUSTICE D. ARTHUR KELSEY

The United States Court of Appeals for the Fourth Circuit entered a certification order asking this Court to answer a determinative question of Virginia law presented in United States v. White , 987 F.3d 340, 341 (4th Cir. 2021). Pursuant to Article VI, Section 1 of the Constitution of Virginia and Rule 5:40, we accepted the following question: "Under Virginia common law, can an individual be convicted of robbery by means of threatening to accuse the victim of having committed sodomy?" The answer is yes if the accusation of "sodomy" involves a crime against nature under extant criminal law. We have four prior opinions recognizing this English common-law doctrine, and upon further reflection and research, we find no convincing historical arguments demonstrating that our view was mistaken.

I.

In federal district court, Terry Antonio White pleaded guilty to being a felon in possession of a firearm in violation of a federal statute. The United States requested that he receive an enhanced sentence under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(1), based on his prior convictions for three predicate violent felonies, which included a robbery conviction in Virginia. White objected to the proposed sentencing enhancement, arguing that under the ACCA, a felony is defined as a violent felony only if it categorically requires a showing of some "use, attempted use, or threatened use of physical force against the person of another," 18 U.S.C. § 924(e)(2)(B)(i).¹ Relying on a common-law principle that is little known yet not forgotten, White argued that the physical force element is not always required to prove robbery in Virginia. In our opinion, he is correct.

II.

A.

"There is in Virginia no such crime as statutory robbery." Falden v. Commonwealth , 167 Va. 542, 545, 189 S.E. 326 (1937). Virginia's robbery statute prescribes the degrees of punishments for robbery, but not its elements. In Virginia, robbery is a common-law crime. Durham v. Commonwealth , 214 Va. 166, 168, 198 S.E.2d 603 (1973). On four occasions, each with unanimous opinions, we have recognized under Virginia common law that

[t]o constitute [a robbery] offense, there must be (1) violence, but it need only be slight, for anything which calls out resistance is sufficient; or, what will answer in place of actual violence, there must be such demonstrations as put the person robbed in fear. The demonstrations or fear must be of a physical nature, with the single exception that, if one parts with his goods through fear of a threatened charge of sodomy, the taking is robbery.

Houston v. Commonwealth , 87 Va. 257, 264, 12 S.E. 385 (1890) (emphasis added), quoted with approval in Fleming v. Commonwealth , 170 Va. 636, 639, 196 S.E. 696 (1938), Falden , 167 Va. at 546, 189 S.E. 326, and Maxwell v. Commonwealth , 165 Va. 860, 864-65, 183 S.E. 452 (1936).

Virginia's earliest legal treatises confirm our understanding of this common-law robbery doctrine. They recognize that threatening to accuse someone of committing a crime against nature can be constructive violence. William Hening, one of Virginia's leading legal scholars after the Revolution, explained:

And to obtain property, by threatening to accuse another of having been guilty of an unnatural crime, has been held, upon the solemn opinion of all the judges, to be an act sufficient to raise in the mind of the party menaced such a terror and apprehension of mischief, as to constitute the offence by putting in fear ; for the law, in odium spoliatoris, will presume fear where there appears to be so just a ground for it.

William Waller Hening, The New Virginia Justice 510 (2d ed. 1810) (emphases added) (quoting 1 William Hawkins, A Treatise of the Pleas of the Crown 236 (Thomas Leach ed., 7th ed. 1795)).² Other early Virginia treatise authors also confirm this doctrine:

The cases of robbery effected by fear of injury to the character, have been those in which alarm has been excited by imputing to the party robbed, or by threatening to accuse him of, sodomitical practices. The imputation of so odious and detestable a crime, productive as it might be of so much injury to the person charged, may naturally, especially on the accusation being first made and before the person has had time to reflect on the protection which the law affords to innocence, inspire as great a degree of fear as the threat of personal violence.

John A.G. Davis, A Treatise on Criminal Law 205 (1838) (emphasis added); see also Joseph Mayo, A Guide to Magistrates 593-95 (2d ed. 1860) (recognizing that in Virginia, based upon English common-law authorities, an accusation of an "unnatural crime" is a sufficient form of constructive force for a robbery conviction).

No Virginia judicial opinion or legal scholar has ever challenged the historicity of this common-law doctrine. Nor do leading modern legal scholars. See 4 Charles E. Torcia, Wharton's Criminal Law § 462, at 21 (15th ed. 1996) ("At common law ... a threat to accuse a person of sodomy was sufficient, and it was immaterial whether the person was or was not guilty of such offense." (footnote omitted)); 3 Wayne R. LaFave, Substantive Criminal Law § 20.3(d)(2), at 242 (3d ed. 2018) ("A mere threat, unaccompanied by physical force, to accuse the property owner of the crime of sodomy (but not of other crimes) has been held a sufficient threat for robbery."); 7 Ronald J. Bacigal & Corinna Barrett Lain, Virginia Practice Series: Criminal Offenses and Defenses 274 n.8 (2020-2021 ed.) (agreeing that "[a]t common law obtaining money by a threat to expose another as a sodomite was sufficient to convict of robbery" while correctly pointing out that under Code § 18.2-59 this conduct would be "clearly sufficient for extortion").³

The scope of this common-law doctrine turns on the criminal not colloquial sense of the word "sodomy" — a term describing a broad range of "sodomitical practices," Davis, supra , at 205, and generically called a "crime against nature," a "crimen innominatum," or an "unspeakable crime," Black's Law Dictionary 1675 (11th ed. 2019). Broadly speaking, sodomitical practices included pederasty, bestiality, and other sexual offenses subject to criminal punishment. Blackstone called all such sodomitical practices "crime[s] against nature." 4 William Blackstone, Commentaries *215. See generally Henry Finch, Law, or, a Discourse Thereof 219 (1759); Bryan A. Garner, A Dictionary of Modern Legal Usage 815 (2d ed. 1995); Perkins & Boyce, supra note 3, at 465; Arthur Allen Leff, The Leff Dictionary of Law: A Fragment , 94 Yale L.J. 1855, 1866 (1985).

None of these offenses were common-law crimes under English common law. Instead, they were first treated as "ecclesiastical offense[s]" that were later deemed to be crimes by penal statutes. Perkins & Boyce, supra note 3, at 465; see also Garner, supra , at 815 ("Sodomy was not a common-law offense, though an early statute criminalizing it became a part of the common law of many American jurisdictions, most of which now have anti-sodomy statutes."); Ephraim Heiliczer, Dying Criminal Laws: Sodomy and Adultery from the Bible to Demise , 7 Va. J. Crim. L. 48, 57-59 (2019) (surveying the historical record of criminalizing sodomitical practices beginning with the 1533 Act of Parliament criminalizing the "Vice of Buggery"⁴ ). For our purposes, this is a crucial aspect of the crime-against-nature doctrine. English common law predicated the crime-against-nature doctrine on an accusation of an illicit sexual practice that was deemed to be a crime punishable under applicable criminal statutes at the time of the alleged robbery. Properly applied, therefore, the doctrine does not reach sexual acts that do not implicate criminal liability.

Under modern Virginia law, statutory crimes against nature continue to exist. As we observed in Toghill v. Commonwealth , "[c]rimes against nature" include "any person" having "carnal knowledge" with a "brute animal" or "cunnilingus, fellatio, anilingus, or anal intercourse" with a daughter, granddaughter, son, grandson, brother, sister, father, or mother. 289 Va. 220, 231, 768 S.E.2d 674 (2015) ; see Code § 18.2-361 (imposing enhanced punishment for crimes against nature involving juvenile victims). Other Virginia statutes specifically criminalize "forcible sodomy" involving "cunnilingus, fellatio, anilingus, or anal intercourse" by an adult with a child or with any victim against his or her will. Code § 18.2-67.1 ; see also Code § 18.2-63 (prohibiting any person from "carnally know[ing], without the use of force, a child" between the ages of 13 and 15, which includes "cunnilingus, fellatio, anilingus, anal intercourse, and animate and inanimate object sexual penetration"); Code § 18.2-67.5(A) (prohibiting "[a]n attempt to commit ... forcible sodomy"); Code § 18.2-370(A), (D) (prohibiting any adult "with lascivious intent" from "knowingly and intentionally" proposing to a child under 15 years of age the performance of "anal intercourse, cunnilingus, fellatio, or anilingus" and prohibiting any parent, step-parent, grandparent, or step-grandparent from proposing the same with a child, step-child, grandchild, or step-grandchild who is between 15 and 18); Code § 18.2-370.1(A) (prohibiting an adult with a custodial or supervisory relationship over a child under 18 from proposing to such child the performance of "anal...