630 S.E.2d 754 (Va.App. 2006), 1180-05-2, McDonald v. Commonwealth

Docket Nº:1180-05-2.
Citation:630 S.E.2d 754, 48 Va.App. 325
Opinion Judge:HALEY, Judge.
Party Name:William Scott McDONALD, a/k/a William Scott MacDonald v. COMMONWEALTH of Virginia.
Attorney:Terry Driskill, Prince George, for appellant., William E. Thro, State Solicitor General (Judith Williams Jagdmann, Attorney General; D. Mathias Roussy, Jr., Associate State Solicitor General, on brief), for appellee.
Case Date:June 13, 2006
Court:Court of Appeals of Virginia
 
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Page 754

630 S.E.2d 754 (Va.App. 2006)

48 Va.App. 325

William Scott McDONALD, a/k/a William Scott MacDonald

v.

COMMONWEALTH of Virginia.

No. 1180-05-2.

Court of Appeals of Virginia, Richmond.

June 13, 2006

FROM THE CIRCUIT COURT OF PRINCE GEORGE COUNTY James F. D'Alton, Jr., Judge

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Terry Driskill, Prince George, for appellant.

William E. Thro, State Solicitor General (Judith Williams Jagdmann, Attorney General; D. Mathias Roussy, Jr., Associate State Solicitor General, on brief), for appellee.

Present: Judges Clements, Haley and Senior Judge Overton Argued at Richmond, Virginia

HALEY, Judge.

[48 Va.App. 327] William Scott McDonald (appellant) appeals his conviction in a bench trial of four counts of sodomy in violation of Code § 18.2-361(A). His only contention is that Code § 18.2-361(A) is unconstitutional because it violates the Due Process Clause of the Fourteenth Amendment.1Finding that the statute, as applied, does not violate the Constitution, we affirm.

I. Facts

As appellant does not challenge the sufficiency of the evidence against him, only a brief discussion of the facts is necessary. On December 31, 2002 and again on April 27, 2003, appellant and L.F. engaged in private, consensual sexual intercourse and oral sodomy, as defined by Code § 18.2-361(A). Appellant was forty-five years old at the time of the first encounter and forty-six at the time of the second, and L.F. was sixteen years old at the time of both encounters. Then, in June 2004 and again in August 2004, appellant participated in private, consensual sexual intercourse and oral sodomy with A.J. A.J. was seventeen years old at the time of both

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encounters, while appellant was forty-seven. After the prosecution rested its case and again after the defense rested, [48 Va.App. 328] appellant moved to strike, claiming that Code § 18.2-361(A) is unconstitutional. The trial court denied both motions and convicted appellant of all counts. Appellant then appealed to this Court.

II. Analysis

Neither party disputes the timing of these encounters; what acts took place then; that the female participants were ages sixteen and seventeen, respectively; or that Code § 18.2-361(A) clearly prohibits the conduct. The only question presented on appeal is if Code § 18.2-361(A) violates the Due Process Clause of the Fourteenth Amendment. Appellant challenges the constitutionality of the statute both on its face and as applied to him.

We review arguments regarding the constitutionality of a statute de novo. Shivaee v. Commonwealth, 270 Va. 112, 119, 613 S.E.2d 570, 574 (citing Wilby v. Gostel, 265 Va. 437, 440, 578 S.E.2d 796, 798 (2003); Eure v. Norfolk Shipbuilding & Drydock Corp., 263 Va. 624, 631, 561 S.E.2d 663, 667 (2002)), cert. denied, --- U.S. ----, 126 S.Ct. 626, 163 L.Ed.2d 509 (2005). Furthermore,

We are guided by the established principle that all acts of the General Assembly are presumed to be constitutional. In applying this principle, we are required to resolve any reasonable doubt regarding the constitutionality of a statute in favor of its validity.... [W]e will declare a statute null and void only when it is plainly repugnant to a state or federal constitutional provision.

In re Phillips, 265 Va. 81, 85-86, 574 S.E.2d 270, 272 (2003) (internal citations omitted).

A.

Facial Challenge

Appellant contends...

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