Ford v. Com., 1276-87-2

• Decision Date: 24 April 1990
• Docket Number: No. 1276-87-2,1276-87-2
• Citation: 10 Va.App. 224,391 S.E.2d 603
• Parties: Darnell FORD v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 603

391 S.E.2d 603

10 Va.App. 224

Darnell FORD v. COMMONWEALTH of Virginia.

Record No. 1276-87-2.

Court of Appeals of Virginia.

April 24, 1990.

Gary A. Hicks, for appellant.

David A. Rosenberg, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BARROW, COLEMAN and KEENAN, JJ.

KEENAN, Judge.

Darnell Ford was convicted in a bench trial of solicitation of oral sodomy in violation of Code § 18.2-29. On appeal, he argues that the evidence was insufficient to sustain his conviction. We agree and therefore, we reverse the decision of the trial court. ¹

At trial, the evidence showed that in the early afternoon of April 13, 1987, Sydney Wilson and Patricia Weiss were in Weiss' car at the McDonald's drive-through restaurant in Ashland. Both Wilson and Weiss were students at Randolph-Macon College. They had returned to the drive-through lane of the restaurant to correct a mistake in their order. While waiting at the drive-through window, they saw Darnell Ford, a McDonald's employee, walk toward the driver's side of the car where Weiss was seated. The car windows were open. Ford leaned against the car, behind the driver, and asked Weiss and Wilson if they went to Randolph-Macon. They said "yes," and resumed their conversation. They then heard Ford mumble something. Weiss turned and asked him what he wanted. Ford replied that he wanted sex and then stated: "I want to lick your pussy." Wilson and Weiss immediately rolled up the car windows. They remained inside the car with the windows up until a woman returned with their food. Weiss rolled down her window and asked the woman for Ford's name but she did not respond. Ford then volunteered his name.

Weiss and Wilson pulled their car over to the front of the McDonald's and went inside and spoke with the manager. As they returned to their car, Ford said from approximately ten feet away: "I will get you, I will find you." Wilson and Weiss got back in the car and drove off. During both of the exchanges between Ford and the women, Ford made no movement toward the car after initially walking up to it, nor did he offer the women money or ask them to get out of the car.

Ford was convicted pursuant to Code § 18.2-29, which reads: "Any person who commands, entreats or otherwise attempts to persuade another person to commit a felony, shall be guilty of a Class 6 felony." Ford argues that his conduct did not amount to criminal solicitation as governed by Code § 18.2-29. Rather, he contends that he simply was expressing his own desire in response to a question posed by the women. He alleges that this conduct was not intended to incite anyone to commit a crime nor was it understood by the women as such.

The Commonwealth argues that the evidence was sufficient to sustain a conviction under Code § 18.2-29, since solicitation requires merely an attempt to persuade another to commit a felony, not the performance of an overt act. Thus, the Commonwealth contends that Ford's statements, standing alone, constituted an attempt on his part to persuade the driver of the car to commit oral sodomy. We disagree.

In defining the common law crime of solicitation, the Supreme Court has stated: "[T]o invite or solicit one to commit crime, where no attempt is actually made to commit it, at least in some cases, is indictable at common law as solicitation. Solicitation, or inciting to crime, does not proceed to the point of some overt act in the commission of crime." Wiseman v. Commonwealth, 143 Va. 631, 637-38, 130 S.E. 249, 251 (1925). Indeed, the act of solicitation may be completed before any attempt is made to commit the solicited crime, Pedersen v. Richmond, 219 Va. 1061, 1067-68, 254 S.E.2d 95, 99 (1979), and it is "immaterial whether the solicitation is of any effect and whether the crime solicited is in fact committed.... [since] [t]he gist of this offense is incitement." Huffman v. Commonwealth, 222 Va. 823, 827, 284 S.E.2d 837, 840 (1981) (quoting Cherry v. State, 18 Md.App. 252, 306 A.2d 634 (1973)). The conduct constituting the act of solicitation must, however, be done with the intent "to induce another to act." Pedersen, 219 Va. at 1067, 254 S.E.2d at 99. In the case before us, we conclude that the words uttered by Ford did not rise to the level of incitement to criminal activity and, therefore, standing alone, are insufficient to sustain a conviction for criminal solicitation.

We find that the case presented here is distinguishable from both Huffman and Pedersen, cases in which solicitation convictions were upheld. In Huffman, the defendant contacted Thomas Burton, a restaurant manager, telling him she needed to hire someone to kill a housewife. She had two phone conversations with Burton and then met with him. During the meeting, she discussed various methods which could be used to kill the victim. The Supreme Court concluded that the...