Coleman v. City of Richmond

• Decision Date: 19 January 1988
• Docket Number: No. 0646-86-2,0646-86-2
• Citation: 364 S.E.2d 239,5 Va.App. 459
• Parties: Curtis L. COLEMAN, a/k/a Wayne Anthony Harris v. CITY OF RICHMOND. Record
• Court: Virginia Court of Appeals

Page 239

364 S.E.2d 239

5 Va.App. 459

Curtis L. COLEMAN, a/k/a Wayne Anthony Harris v. CITY OF RICHMOND.

Record No. 0646-86-2.

Court of Appeals of Virginia.

Jan. 19, 1988.

Alexander Z. Matzanias, Richmond, on brief, for appellant.

James C. Wicker, Jr., Chief Deputy Commonwealth's Atty. for the City of Richmond, on brief, for appellee.

Present: COLEMAN, HODGES and KEENAN, JJ.

COLEMAN, Judge.

A Richmond ordinance prohibits loitering in a public place "under circumstances manifesting the purpose of engaging in prostitution." Curtis Coleman appeals his conviction under that ordinance and argues that the statute is overbroad, unconstitutionally vague, and violative of his fifth amendment rights. He also argues that even if the ordinance is constitutional, the evidence was insufficient to support the conviction.

Two detectives from the Vice Division of the Richmond Police Department testified that they were conducting a surveillance on November 9, 1985, at Madison and Broad Streets in Richmond. There they saw the appellant who was dressed in "female type clothing" and who wore a wig and makeup. Det. Van Buren testified that they observed the appellant approach six stopped cars, engage in short conversation with the occupants of each car and then walk away. He further testified that after a short conversation through the window with the driver of a seventh car, appellant got into that car and rode off with the driver. Neither Detective Van Buren nor his colleague heard any of the conversations.

The detectives followed the appellant and arrested both the appellant and the driver when the car stopped. The appellant told the officers and later testified that he had asked Mr. Eckton, the driver of the seventh car, for a ride home.

Mr. Eckton testified that the appellant asked him if he "wanted a date" and that the appellant "unbuckled my pants." On cross-examination, however, Mr. Eckton testified that appellant asked him for a ride, never discussed any sexual activity with him and never discussed anything about money with him.

A jury found the appellant guilty of loitering for the purpose of prostitution in violation of § 20-83 of Ordinances of the City of Richmond and recommended a sentence of twelve months in jail and a $500 fine.

Because we pass on the constitutionality of a statute only when it is necessary to the determination of the case, Bissell v. Commonwealth, 199 Va. 397, 400, 100 S.E.2d 1, 3 (1957) (citations omitted), we first address the sufficiency issue. Appellant argues that the city failed to prove the requisite specific intent and that it did not exclude every reasonable hypothesis of innocence. This court has previously addressed the question of sufficiency with respect to this ordinance. In Dickerson v. City of Richmond, 2 Va.App. 473, 346 S.E.2d 333 (1986), we held that the city failed to prove the defendant's specific intent. The Dickerson case presented a number of circumstances which were consistent with a suspicion of guilt: the incident was late at night, Dickerson's dress was suggested to be "female," he waved at passing cars, he engaged in conversation with three male drivers, and he withdrew from the street corner when an unmarked police car approached. Id. at 475-76, 346 S.E.2d at 334-35. The suspicious conduct, however, without more did not prove beyond a reasonable doubt that Dickerson's intent was to engage in prostitution or other unlawful behavior. In the present case, the city presented evidence that appellant asked Mr. Eckton if he "wanted a date," that a "date" in street terms meant "to have sex," and that appellant "unbuckled" Mr. Eckton's pants. This evidence plainly supports a finding of specific intent to engage in prostitution or to solicit for unlawful acts. ¹ Therefore, we find that the evidence is sufficient to support a conviction under the ordinance. Cf. Pedersen v. City of Richmond, 219 Va. 1061, 1067-68, 254 S.E.2d 95, 99-100 (1979).

Having found sufficient evidence to support a conviction, we must now consider whether that conviction rests upon an unconstitutional ordinance. In assessing the constitutionality of a statute or ordinance, courts must presume that the legislative action is valid. Consequently, the burden is on the challenger to demonstrate the constitutional defect. See Working Waterman's Association of Virginia, Inc. v. Seafood Harvesters, Inc., 227 Va. 101, 110, 314 S.E.2d 159, 164 (1984). Further, as a state court, we may construe our statutes to have a limited application if such a construction will tailor the statute to a constitutional fit. Gooding v. Wilson, 405 U.S. 518, 520, 92 S.Ct. 1103, 1105, 31 L.Ed.2d 408 (1972). If the statute or ordinance violates the federal or the Virginia constitution, however, and judicial severance of the invalid sections is impossible, it will fail and any conviction based thereon must also fail. See Chesapeake & Ohio Canal Co. v. Great Falls Power Co., 143 Va. 697, 705, 129 S.E. 731, 734 (1925).

Appellant argues that the Richmond ordinance implicates rights protected under the first and fifth amendments, made applicable to the states by the fourteenth amendment, and on separate fourteenth amendment grounds. Specifically, he argues that because the ordinance is overbroad, it impinges on first amendment guarantees of free speech and the implied guarantee of free association. He asserts that the provision requiring an officer to ask for an explanation violates his right to remain silent under the fifth amendment. Finally, he argues that the ordinance is unconstitutionally vague and thus violates the fourteenth amendment's due process protections.

Before considering these arguments, we note that generally, a litigant may challenge the constitutionality of a law only as it applies to him or her. Grosso v Commonwealth, 177 Va. 830, 839, 13 S.E.2d 285, 288 (1941). That the statute may apply unconstitutionally to another is irrelevant; one cannot raise third party rights. An exception to this rule is in the area of first amendment challenges. Broadrick v. Oklahoma, 413 U.S. 601, 611-12, 93 S.Ct. 2908, 2915-16, 37 L.Ed.2d 830 (1973). The Broadrick court held that the danger of chilling protected speech and conduct outweighs the danger of wrongful unprotected speech going unpunished and, therefore, litigants may challenge a statute on first amendment grounds even when their own speech is unprotected. Id. at 612, 93 S.Ct. at 2916; accord Stanley v. City of Norfolk, 218 Va. 504, 508-09, 237 S.E.2d 799, 801 (1977). The United States Supreme Court has recently allowed a facial attack on the ground of vagueness, as well, when the statute at issue touched first amendment concerns. Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). We hold that appellant in the present case has standing to raise the question of first amendment protections and of vagueness although his own first amendment rights were not compromised since solicitation for prostitution is not protected speech or conduct.

The ordinance at issue provides:

(a) It shall be unlawful for any person, within the city limits, to loiter, lurk, remain, or wander about in a public place, or in any place within view of the public or open to the public, in a manner or under circumstances manifesting the purpose of engaging in prostitution, or of patronizing a prostitute, or of soliciting for or engaging in any other act which is lewd, lascivious or indecent. Among the circumstances which may be considered in determining whether any such purpose is manifested by a particular individual are the following: (i) that, to the knowledge of the arresting officer at the time of arrest, such individual has within one year prior to the date of arrest been convicted of any offense chargeable under this section, or under any other section of this Code or the Code of Virginia, relating to prostitution, pandering, or any act proscribed as lewd, lascivious or indecent; (ii) that such individual repeatedly beckons to, stops, attempts to stop, or interferes with the free passage of other persons, or repeatedly attempts to engage in conversation with passersby or individuals in stopped or passing vehicles; or (iii) that such individual repeatedly stops or attempts to stop motor vehicle operators by hailing, waving arms, or other bodily gestures. No arrest shall be made for a violation of this section unless the arresting officer first affords such person an opportunity to explain the conduct in question, and no one shall be convicted of violating this section if it appears at trial that the explanation given was true and disclosed a lawful purpose.

(b) For the purposes of this section, a "public place" means any street, sidewalk, bridge, alley or alleyway, plaza, park, driveway, parking lot or transportation facility, or the doorways and entrance ways to any building which fronts on any of the aforesaid places, or a motor vehicle in or on any such place.

(c) Any person, upon conviction of an offense charged under this section, shall be guilty of a Class 1 misdemeanor.

Richmond City Code § 20-83.

Loitering, wandering, idling, and lurking are not, by themselves unlawful, despite attempts of many municipalities to make them so. To the contrary, Justice Douglas has proclaimed them to be amenities which "have dignified the right of dissent" and "encouraged lives of high spirits rather than hushed, suffocating silence." Papachristou v. City of Jacksonville, 405 U.S. 156, 164, 92 S.Ct. 839, 844, 31 L.Ed.2d 110 (1972). To reach those lurkers who might pose a threat, the Richmond ordinance prohibits loitering with the intent to engage in prostitution or to solicit for purposes of indecent acts. The intent is an essential element of the offense. Dickerson, 2 Va.App. at [5 Va.App. 465] 477, 346 S.E.2d at 335.

Besides prohibiting loitering with such an intent, the ordinance provides that among the circumstances which may be considered in determining whether...