768 S.E.2d 674 (Va. 2015), 140414, Toghill v. Commonwealth

Docket Nº:Record 140414
Citation:768 S.E.2d 674, 289 Va. 220
Judge Panel:PRESENT: Lemons, C.J., Goodwyn, Millette, Mims, and McClanahan, JJ., and Lacy and Koontz, S.JJ. OPINION BY JUSTICE S. BERNARD GOODWYN. JUSTICE MIMS, concurring. JUSTICE McCLANAHAN, concurring. MIMS, JUSTICE concurring. McCLANAHAN, JUSTICE concurring.
Case Date:February 26, 2015
Court:Supreme Court of Virginia

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768 S.E.2d 674 (Va. 2015)

289 Va. 220




Record No. 140414

Supreme Court of Virginia

February 26, 2015


PRESENT: Lemons, C.J., Goodwyn, Millette, Mims, and McClanahan, JJ., and Lacy and Koontz, S.JJ. OPINION BY JUSTICE S. BERNARD GOODWYN. JUSTICE MIMS, concurring. JUSTICE McCLANAHAN, concurring.


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In this appeal, we consider whether Code § 18.2-361(A)1 is facially unconstitutional in light of the decision of the United States Supreme Court in Lawrence v. Texas, 539 U.S. 558,

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123 S.Ct. 2472, 156 L.Ed.2d 508 (2003).


Adam Darrick Toghill (Toghill), an adult, engaged in an email exchange with a law enforcement officer posing as a minor wherein Toghill proposed that the two engage in oral sex. Subsequently, Toghill was indicted on charges of Internet solicitation of a minor in violation of Code § 18.2-374.3. The Circuit Court of Louisa County and both parties agreed that Toghill was accused of soliciting oral sex from a minor, and that oral sex between an adult and a minor is an act forbidden by Code § 18.2-361(A). Toghill was found guilty after a jury trial, and the court sentenced him to five years' imprisonment. Notably, at trial, Toghill did not argue that Code § 18.2-361(A) was unconstitutional.

Toghill appealed to the Court of Appeals of Virginia (Court of Appeals), arguing that his conviction was invalid because Code § 18.2-361(A) was unconstitutional. To support his position, he cited a recently decided case from the United States Court of Appeals for the Fourth Circuit, MacDonald v. Moose, 710 F.3d 154 (4th Cir. 2013) (Moose), in which the Fourth Circuit ruled that Code § 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 adult with a minor. Toghill v. Commonwealth, Record No. 2230-12-2 (February 11, 2014). It held that Code § 18.2-361(A) was constitutional as applied to Toghill because the Lawrence decision did not prevent a state from criminalizing sodomy2 between an [289 Va. 225] adult and a minor. Id. Toghill appeals. Toghill assigns error as follows:

The Court of Appeals erred in holding that Virginia's anti-sodomy law was constitutional, with the result that Toghill was convicted of soliciting a minor to commit an act that was not, in actuality, a violation of Virginia law.


Toghill argues that Code § 18.2-361(A) is facially unconstitutional and invalid, and thus his conviction, for soliciting an activity deemed illegal because it violated Code § 18.2-361(A), was void ab initio. The Commonwealth argues that the Lawrence decision did not facially invalidate Code § 18.2-361(A), because the Supreme Court of the United States implied in its holding that a state could criminalize sodomy in some circumstances, including sodomy involving adults with minors.

As a preliminary matter, the Commonwealth asserts that Toghill's claim is procedurally barred because Toghill failed to raise the issue of the constitutionality of Code § 18.2-361(A) at trial. Toghill has conceded that he presented this argument for the first time on appeal.

Rule 5:25 states: " No ruling of the trial court . . . will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling." Our Court has stated that " an appellate court may not reverse a judgment of the trial court based . . . upon an issue that was not presented." McDonald, 274 Va. at 255, 645 S.E.2d at 921 (holding that the Court could not evaluate a facial challenge to Code § 18.2-361(A) because the appellant never raised a facial challenge in the trial court). However, Rule 5:25 also states that this Court can review a ruling that was not objected to at trial " for good cause shown or to

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enable this Court to attain the ends of justice."

[289 Va. 226] Following the Supreme Court decision in Lawrence, this Court had the opportunity in McDonald to consider the continuing constitutionality of Code § 18.2-361(A) in light of Lawrence. This Court held the statute to be constitutional as applied to oral sex between an adult and a minor. McDonald, 274 Va. at 260, 645 S.E.2d at 924.

Toghill's trial in the instant case occurred on November 26, 2012. On March 12, 2013, the Fourth Circuit issued its published opinion in Moose, holding that Code § 18.2-361(A) is facially unconstitutional because it does not pass muster under the standards set by the Supreme Court in Lawrence. 710 F.3d at 166.

Despite Toghill's failure to raise the issue at trial, we hold that the conflict created by the Fourth Circuit's subsequent opinion is good cause under Rule 5:25 to consider the error alleged by Toghill regarding the constitutionality of Code § 18.2-361(A). Our prior cases have not applied the " good cause shown" exception contained in Rule 5:25, but we believe that exception to be applicable in this narrow instance and will apply it sua sponte as has been done with the ends of justice exception. See Ball v. Commonwealth, 221 Va. 754, 758-59, 273 S.E.2d 790, 793 (1981) (applying the ends of justice exception despite the fact that appellant did not request the Court to consider that issue in his brief); Cooper v. Commonwealth, 205 Va. 883, 889-90, 140 S.E.2d 688, 692-93 (1965) (same). Thus, we will examine whether, under our jurisprudence, Toghill's conviction is invalid premised on the theory that Code § 18.2-361(A) is facially unconstitutional as a result of the Supreme Court's ruling in Lawrence.

The statute under which Toghill was convicted, former Code § 18.2-374.3(C), stated at the time of the offense that it was a Class 5 felony for an adult to knowingly and intentionally propose to a child under 15 years of age " an act of sexual intercourse or any act constituting an offense under § 18.2-361" using a computer. Also at that time, former Code § 18.2-361(A) stated " If any person . . . carnally knows any male or female person by the anus or by or with the mouth, or voluntarily submits to such carnal knowledge, he or she shall be guilty of a Class 6 felony." 3

[289 Va. 227] It is undisputed that Toghill's conviction is based upon the fact that he, using a computer, proposed oral sex to a person he believed to be a child under 15 years old, and that the circuit court ruled that oral sex between an adult and a child under 15 was a criminal offense under Code § 18.2-361(A). In Moose, the Fourth Circuit ruled that Code § 18.2-361(A) does not outlaw oral sex between an adult and a child under 15 because the statute is facially unconstitutional, and thus invalid. 710 F.3d at 166.

While this Court considers Fourth Circuit decisions as persuasive authority, such decisions are not binding precedent for decisions of this Court. See, e.g., Lockhart v. Fretwell, 506 U.S. 364, 376, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993) (Thomas, J., concurring) (" [N]either federal supremacy nor any other principle of federal law requires that a state court's interpretation of federal law give way to a (lower) federal court's interpretation." ); Owsley v. Peyton, 352 F.2d 804, 805 (4th Cir. 1965) (denying that a Fourth Circuit decision alters existing Virginia law and acknowledging that " [t]hough state courts may for policy reasons follow the decisions of the Court of Appeals whose circuit includes their state . . . they are not obligated to do so" ); United States ex rel. Lawrence v. Woods, 432 F.2d 1072, 1076 (7th Cir. 1970) (" [B]ecause lower federal courts exercise no appellate jurisdiction over state tribunals, decisions of lower federal courts are not conclusive on state courts." ); Ace Prop. & Cas. Ins. Co. v. Commissioner of Revenue, 437 Mass. 241, 770 N.E.2d 980, 986 n.8 (Mass. 2002) (citing

Commonwealth v. Hill, 377 Mass. 59, 385 N.E.2d 253, 255 (Mass. 1979)) (" Although we are not bound by decisions of Federal courts (other than the United States Supreme Court) on matters of Federal law . .., 'we give respectful consideration to such lower Federal court decisions as seem persuasive.'" ); State v. Coleman,

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46 N.J. 16, 214 A.2d 393, 402, 403 (N.J. 1965) (" In passing on federal constitutional questions, the state courts and the lower federal courts have the same responsibility and occupy the same position; there is a parallelism but not paramountcy for both sets of courts are governed by the same reviewing authority of the Supreme Court." ).

Toghill presents a facial constitutional challenge to Code § 18.2-361(A). We review questions of statutory constitutionality de novo. Montgomery Cnty. v. Virginia Dep't of Rail & Pub. Transp., 282 Va. 422, 435, 719 S.E.2d 294, 300 (2011); Covel v. Town of Vienna, 280 Va. 151, 163, 694 S.E.2d 609, 617 (2010). Facial [289 Va. 228] challenges are disfavored because they create a risk of " 'premature interpretation of statutes on the basis of factually barebones records'" ; they " run contrary to the fundamental principle of judicial restraint that courts should neither 'anticipate a question of constitutional law in advance of the necessity of deciding it' nor 'formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied,'" and they invalidate an entire law that was passed through the democratic process. Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 450, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008) (citing Ayotte v. Planned Parenthood, 546 U.S. 320, 329, 126 S.Ct. 961, 163 L.Ed.2d 812 (2006)...

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