Mcdonald v. Com.

Decision Date08 June 2007
Docket NumberRecord No. 061456.
Citation645 S.E.2d 918
PartiesWilliam S. McDONALD, a/k/a William S. MacDonald v. COMMONWEALTH of Virginia.
CourtVirginia Supreme Court

Erwin Chemerinsky (Terry Driskill, on brief), Prince George, for appellant.

William E. Thro, State Sol. Gen. (Robert F. McDonnell, Atty. Gen.; Stephen R. McCullough, Deputy State Sol. Gen.; William C. Mims, Chief Deputy Atty. Gen., on brief), for appellee.

Professor Erwin Chemerinsky (John L. Squires; Nachman & Squires, on brief), amicus curiae, in support of appellant.

Present: HASSELL, C.J., KEENAN, KOONTZ, KINSER, LEMONS, and AGEE, JJ., and RUSSELL, Senior Justice.

OPINION BY Justice DONALD W. LEMONS.

In this appeal, we consider a constitutional challenge to Code § 18.2-361 prohibiting sodomy.

I. Facts

The facts of this case are not in dispute. William S. McDonald ("McDonald"), a man who was 45 to 47 years old during the years when the subject events took place, engaged in private, sexual intercourse and oral sodomy with a 16-year-old female, L.F., on two occasions. McDonald also had private, sexual intercourse and engaged in oral sodomy with a different female, A.J., who was 17 years of age at the time. In a non-jury trial, McDonald was found guilty of one count of contributing to the delinquency of a minor under Code § 18.2-371 and four counts of sodomy under Code § 18.2-361. Only the sodomy convictions are before this Court on appeal.

II. Proceedings
a. Trial Court

Prior to trial, a written "Motion to Dismiss on Due Process Grounds" was filed asserting that "Code Section 18.2-361 violates the Due Process Clause of the Fourteenth Amendment of the United States Constitution" and further citing to this Court's opinion in Martin v. Ziherl, 269 Va. 35, 607 S.E.2d 367 (2005). Significantly, the written motion did not state whether the constitutional challenge was facial or as applied to McDonald. There were no memoranda of law or briefs filed in support of the motion to dismiss. Additionally, the Commonwealth filed no written response.

The record does not reveal whether this written motion was the subject of a pre-trial consideration; however, the matter was brought to the trial court's attention at the conclusion of the Commonwealth's case-in-chief. In the oral motion to dismiss, McDonald and the trial court made reference to the written motion previously filed. McDonald's argument at this time was entirely predicated upon his contention that the victims were both "of the age of consent." Counsel for McDonald stated:

My argument would be you have testimony from these two girls they consented, they were not forced, they were not threatened, they were not paid. These were not public acts, they were private, concealed from other people. My argument would be that I believe that the age of consent in Virginia would be sixteen.

Continuing, in an apparent reference to the only case that had been mentioned, Martin, counsel stated:

My argument here would be based on the testimony that you heard thus far that these are two people who are old enough to consent, who have consented, who have not been forced to do anything, who have not been threatened in any way and who are willing participants in these activities. And my argument is that because they are of the age of consent—the court there doesn't say specifically if they are minors this ruling wouldn't apply. It says it may—state regulation of this type of activity might support a different result. But, at the same time we do not have people who are under the age of consent, we have people who are of the age of consent. One girl being seventeen-and-a-half years old at the time and one girl being sixteen at the time. They have not detailed that they have been forced to commit any of these acts. In fact, what Mr. McDonald is accused of is consensual sodomy. And so what I would argue is that because they are of the age of consent and they're old enough to give that consent, there is no crime here, and to punish him would be in violation of the due-process clause of the 14th Amendment, just taking the Commonwealth at its evidence.

At no point in this argument to the trial court did McDonald claim that Code § 18.2-361 was facially unconstitutional nor did he expressly argue that the statute was unconstitutional as applied to him. By implication, McDonald makes an as-applied argument maintaining that on the facts of this case, because the victims were of the age of consent, it would violate the Due Process Clause of the 14th Amendment to find him guilty of the offenses charged. In an apparent reference to Martin wherein we stated, "It is important to note that this case does not involve minors, nonconsensual activity, prostitution, or public activity," 269 Va. at 42, 607 S.E.2d at 371, McDonald sought to bring his case within the scope of our decision in Martin by arguing that the specific exceptions we noted did not apply in this case because the age of consent for sodomy was sixteen-years-old and both victims were "of age." As presented to the trial court, McDonald's objections were quite narrowly stated.

Addressing the only argument made by McDonald, the trial court stated:

I don't find that the due-process clause or the case that you cite would abrogate the law as it relates to juveniles and the code section that they're charged under, and I don't find any constitutional violation.

The trial court denied the motion to dismiss. After presentation of McDonald's evidence, counsel for McDonald stated, "Your Honor, the defense at this time will rest and renew its motion to dismiss on the grounds previously stated." No additional arguments were offered in support of the motion to dismiss on constitutional grounds, and the trial court ruled as follows: "I would overrule your motions at the conclusion of all the evidence and hear argument at this point." The court then heard closing arguments on the merits of the case.

b. Court of Appeals

After conviction, McDonald noted his appeal to the Court of Appeals of Virginia and in his petition stated the Question Presented as follows:

Did the trial court err in finding that Virginia Code § 18.2-361 Section A remains a valid exercise of the police power of the state, surviving a substantive due process constitutional challenge?

For the first time, McDonald included in his argument: "Virginia Code Section 18.2-361 Section A, insofar as it relates to consensual sodomy between unrelated individuals who have reached the age of consent is facially unconstitutional, as a violation of the Due Process Clause of the Fourteenth Amendment." At the petition stage in the Court of Appeals, McDonald also argued that "the statute is also unconstitutional as applied to the Defendant, as it prohibits constitutionally protected conduct between individuals who have reached the age of consent for such acts." Once again, McDonald's argument was predicated upon the age of consent. Upon grant of the petition for appeal, McDonald filed his opening brief reciting the same question presented and making arguments identical to those contained in his petition.

The Court of Appeals in a published decision, McDonald v. Commonwealth, 48 Va. App. 325, 630 S.E.2d 754 (2006), affirmed the judgment and conviction of the trial court. The Court of Appeals appeared to hold that McDonald lacked standing to mount a facial challenge to the constitutionality of a statute because a party "has standing to challenge the constitutionality of a statute only insofar as it has an adverse impact on his own rights." Id. at 329, 630 S.E.2d at 756 (quoting County Court of Ulster County v. Allen, 442 U.S. 140, 154-55, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979)). The Court of Appeals appeared to hold that "only an as-applied challenge was appropriate." Id. Nonetheless, the Court of Appeals also appeared to decide the facial challenge to the statute by holding that "nothing in Lawrence or the Supreme Court of Virginia's opinion in Martin . . . facially invalidates Code § 18.2-361(A)." Id.

The Court of Appeals then considered an as-applied challenge to the constitutionality of Code § 18.2-361(A). Recognizing that McDonald predicates his argument upon his contention that the victims had reached the "age of consent," the Court of Appeals concluded that the statute "is constitutional as applied to McDonald because his violations involved minors and therefore merit no protection under the Due Process Clause." Id. at 332, 630 S.E.2d at 758.

c. Supreme Court of Virginia

Upon appeal to this Court, McDonald assigns error as follows:

Mr. McDonald assigns as error Judge Haley's decision denying his appeal, and specifically his findings that:

1. That Mr. McDonald did not have standing to mount a facial attack on the constitutionality of Virginia Code § 18.2-361(A).

2. That Virginia Code § 18.2-361(A) survives an as applied constitutional attack where the conduct alleged involved an adult and a minor who is above the age of consent in Virginia.

While assignment of error 2 is worded somewhat differently than the content of McDonald's Question Presented in the Court of Appeals, it nonetheless fairly encompasses his argument to that court. Assignment of error 1 is directed to the judgment of the Court of Appeals. In his brief before this Court, McDonald makes the same arguments he did in the Court of Appeals. He is aided in his arguments by a brief amicus curiae.

But the efforts of the amicus are to no avail because the arguments of the parties on appeal and thus the aid of amicus must be limited to issues preserved in the trial court, Rule 5:25, and to issues presented before the appellate courts, Rule 5A:12, Rule 5:17 and Rule 5:30(c). Of course, an appellate court may not reverse a judgment of the trial court based upon an alleged error in a decision that was not made or upon an issue that was not presented. The trial court in this case never had before it a claim of facial invalidity of Code § 18.2-361(A). Consequently, we...

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24 cases
  • Kellermann v. McDonough
    • United States
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    • 5 Noviembre 2009
    ...court based upon an alleged error in a decision that was not made or upon an issue that was not presented." McDonald v. Commonwealth, 274 Va. 249, 255, 645 S.E.2d 918, 921 (2007). Thus, I respectfully disagree with the majority's conclusion that Kellermann pled a common law duty on the part......
  • Toghill v. Commonwealth
    • United States
    • Virginia Supreme Court
    • 26 Febrero 2015
    ...§ 18.2–361(A) was facially unconstitutional. The Court of Appeals affirmed the circuit court's decision, citing McDonald v. Commonwealth, 274 Va. 249, 645 S.E.2d 918 (2007), in which this Court ruled that Code § 18.2–361(A) was not unconstitutional as applied to sodomy cases involving an ad......
  • Jones v. Commonwealth
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    • Virginia Supreme Court
    • 2 Febrero 2017
    ...claim can be immunized from waiver principles that govern all other constitutional challenges. See, e.g. , McDonald v. Commonwealth , 274 Va. 249, 255, 645 S.E.2d 918, 921 (2007) (holding that appellant had waived his facial constitutional challenge under Rule 5:25); Powell v. Commonwealth ......
  • Toghill v. Clarke, 16-6452
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • 15 Diciembre 2017
    ...statute"), and for solicitation of sodomy under Va. Code §§ 18.2-29 and 18.2-361(A). The defendant in both cases was the same—William Scott McDonald a/k/a William Scott MacDonald.2 In the first case, McDonald v. Commonwealth , 274 Va. 249, 645 S.E.2d 918 (2007), McDonald challenged his conv......
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1 books & journal articles
  • Pope John Paul II, freedom, and constitutional law.
    • United States
    • Ave Maria Law Review Vol. 6 No. 1, September 2007
    • 22 Septiembre 2007
    ...Constitution.'" Id. (quoting Lawrence, 539 U.S. at 564). This view has not extended to cases involving minors. McDonald v. Commonwealth, 645 S.E.2d 918, 924 (Va. 2007) (upholding the constitutionality of Virginia's sodomy statute as applied to an adult who committed sodomy with minors). Cou......

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