Branche v. Com.

• Decision Date: 02 September 1997
• Docket Number: No. 0780-96-1,0780-96-1
• Parties: Earl Valentine BRANCHE, S/K/A Earl Valentine Branch v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 692

489 S.E.2d 692

25 Va.App. 480

Earl Valentine BRANCHE, S/K/A Earl Valentine Branch v. COMMONWEALTH of Virginia.

Record No. 0780-96-1.

Court of Appeals of Virginia Norfolk.

Sept. 2, 1997.

James O. Broccoletti (Zoby & Broccoletti, on brief), Norfolk, for appellant.

Monica S. McElyea, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Present: COLEMAN and WILLIS, JJ., and HODGES, Senior Judge.

COLEMAN, Judge.

In this criminal appeal, the defendant challenges the constitutionality of the statutory scheme found in Code §§ 18.2-29 and 18.2-346.Code § 18.2-29 provides that a person who solicits another to commit a felony, in this case oral sodomy, ¹ is guilty of a Class 6 felony. Under Code § 18.2-346, a person who solicits another to commit oral sodomy

for money or its equivalent is guilty of a Class 1 misdemeanor. The defendant contends that this statutory scheme violates the Equal Protection Clause of the Fourteenth Amendment because it classifies those instances of oral sodomy that are typically engaged in by homosexual males as a felony where the same conduct undertaken by a female prostitute is classified as a misdemeanor. He further contends that the City of Virginia Beach Police Department has selectively enforced the criminal solicitation statute against male homosexuals in violation of the [25 Va.App. 484] Equal Protection Clause. Lastly, he asserts that the evidence was insufficient to support his conviction. For the reasons that follow, we affirm.

BACKGROUND

On December 28, 1994, Detective Edgar M. Cruz was investigating criminal solicitations at Redwing Park in Virginia Beach. As Detective Cruz, who was working undercover, drove into the park, he saw the defendant sitting in a vehicle facing the men's restroom. Cruz made eye contact with the defendant, who then went into the restroom. When the detective entered the restroom, he observed the defendant seated in a doorless stall on the far side of the restroom. As Cruz stood in front of the urinal, the defendant peered around the stall and made eye contact with Cruz.

Cruz left the restroom when another man entered, but returned later and found the defendant still seated in the stall area. When Cruz re-entered the restroom, the defendant stood and "began [pointing] toward his groin area while he was looking at [Cruz's] groin area." The defendant whispered "show it to me" to the detective while staring at the detective's groin area. Cruz told the defendant that he was afraid someone would come into the restroom and suggested that they go outside. The defendant agreed and followed Cruz into the woods surrounding the restroom.

Once outside, Detective Cruz sat down on a bench, but the defendant motioned for Cruz to go further into the woods. After they stopped, the defendant "reached down and touched the outside of [Cruz's] pants on the groin area and rubbed [him] once there." At that time, Cruz told the defendant that "there were a few things [he] did not want to do." When the defendant asked what Cruz did not want to do, Cruz said he did not like anal sex; the defendant said that he did not like it either. Detective Cruz then asked the defendant what he wanted to do, and the defendant said, "How about blowing?" Cruz asked, "Who? Me to you or you to me?" The defendant replied, "How about both?" and immediately reached for Cruz's groin area. Before the defendant touched him, Cruz identified himself as a police officer and arrested the defendant. After Cruz advised the defendant of his Miranda rights, he asked the defendant if he would have requested money in return for oral sex. The defendant said that he would not have done so. The defendant was charged and convicted of criminal solicitation, a Class 6 felony, in violation of Code § 18.2-29.

STATUTORY SCHEME

Under Code § 18.2-29, soliciting an individual to commit a felony is a Class 6 felony. ² Under Code § 18.2-361, oral sodomy is a Class 6 felony. See Code § 18.2-361(A) ("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 ...."). Code § 18.2-346, the statute prohibiting prostitution, states that:

[a]ny person who, for money or its equivalent, commits ... any act in violation of Code § 18.2-361 [the sodomy statute], or offers to commit ... any act in violation of § 18.2-361 and thereafter does any substantial act in furtherance thereof, shall be guilty of being a prostitute, or prostitution, which shall be punishable as a Class 1 misdemeanor.

The appellant contends that the statutory scheme outlined in Code §§ 18.2-29 and 18.2-346 irrationally discriminates between women who engage in prostitution and homosexual The Equal Protection Clause of the Fourteenth Amendment provides that no state shall "deny to any person ... the equal protection of the laws." U.S. Const. Amend. XIV, § 1. This "is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985). However, the United States Supreme Court "has consistently recognized that the Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways." Reed v. Reed, 404 U.S. 71, 75, 92 S.Ct. 251, 253, 30 L.Ed.2d 225 (1971). See also Rostker v. Goldberg, 453 U.S. 57, 80, 101 S.Ct. 2646, 2659-60, 69 L.Ed.2d 478 (1981) ("The Constitution requires that Congress treat similarly situated persons similarly, not that it engage in gestures of superficial equality."); Rinaldi v. Yeager, 384 U.S. 305, 309, 86 S.Ct. 1497, 1499-1500, 16 L.Ed.2d 577 (1966) (" 'The Constitution does not require things which are different in fact ... to be treated in law as though they were the same.' ") (quoting Tigner v. Texas, 310 U.S. 141, 147, 60 S.Ct. 879, 882, 84 L.Ed. 1124 (1940)). Where individuals are not similarly situated, courts need not engage in the traditional equal protection analysis by applying either strict scrutiny, intermediate scrutiny, or the rational basis test. See, e.g., Schweiker v. Hogan, 457 U.S. 569, 590, 102 S.Ct. 2597, 2610, 73 L.Ed.2d 227 (1982) (holding that, for purposes of Medicaid benefits, "the wealthy and the poor are not similarly situated and need not be treated the same"); Rostker, 453 U.S. at 80, 101 S.Ct. at 2659-60 (holding that men and women are not similarly situated for purposes of military draft registration); Schlesinger v. Ballard, 419 U.S. 498, 508-09, 95 S.Ct. 572, 577-78, 42 L.Ed.2d 610 (1975) (holding that men and women are not similarly situated for purposes of military promotions); Gunter v. Virginia State Bar, 241 Va. 186, 191, 399 S.E.2d 820, 823 (1991) (finding that accused was not similarly situated with other members of his class); Carter v. Carter, 232 Va. 166, 170-71, 349 S.E.2d 95, 98 (1986) (holding that foreign judgment creditors are not similarly situated with domestic judgment creditors).

men. The unfairness in the scheme, according to the appellant, is that females who solicit another to commit an act of oral sodomy for money can be convicted only of a misdemeanor, see McFadden v. Commonwealth, 3 Va.App. 226, 230, 348 S.E.2d 847, 849 (1986), whereas men who solicit another to commit an act of oral sodomy, not for money, may be convicted of a felony.

By enacting a statute that forbids prostitution and another which forbids solicitation to commit a felony, the General Assembly has not drawn a distinction or made a classification between individuals who are similarly situated. The statutes classify or draw distinctions between two types of behavior. The statutes do not classify or draw distinctions between people of the same or a similar group or class who commit the same or similar acts. Under the statutory scheme, all persons, male or female whether heterosexual or homosexual, who solicit another to commit an act of sodomy are guilty of a Class 6 felony. Similarly, all persons, males or females, whether heterosexual or homosexual, who solicit a person to engage in certain sexual acts for money, including oral sodomy, are guilty of a misdemeanor. Both heterosexual males and females and homosexual males and females may violate either statute and, under both statutes, all persons, regardless of sexual orientation, are treated in the same fashion.

The fact that solicitation to commit prostitution is a misdemeanor and is, therefore, considered a less serious crime than solicitation to commit a felony, which includes solicitation to commit sodomy, does not create an impermissible classification between groups of people similarly situated.

A belief that an [act of the General Assembly] may be inequitable or unwise is of course an insufficient basis on which to conclude that it is unconstitutional. Moreover, the validity of a broad legislative classification is not properly judged by focusing solely on the portion of the disfavored class that is affected most harshly by its terms.

Schweiker, 457 U.S. at 589, 102 S.Ct. at 2609. The General Assembly, to whose judgment Because the two groups of individuals proscribed by the statute are not engaged in the same activity, the General Assembly's decision to punish one group more severely than the other does not violate our constitutional principle of equality. Thus, we reject the defendant's claim that the statutory scheme violates the Equal Protection Clause.

such matters are committed, has provided that persons who solicit others to commit a felony, including sodomy, are guilty of a felony. However, the criminal solicitation statute also covers offenses other than solicitation to commit oral sodomy. The General Assembly has also determined that those persons who engage in prostitution, including persons who solicit others to engage in oral sodomy for money, are guilty of only a misdemeanor. The [25...