McFadden v. Com., 0470-85

• Citation: 348 S.E.2d 847,3 Va.App. 226
• Decision Date: 07 October 1986
• Docket Number: No. 0470-85,0470-85
• Parties: Marion McFADDEN v. COMMONWEALTH of Virginia. Record
• Court: Court of Appeals of Virginia

Page 847

348 S.E.2d 847

3 Va.App. 226

Marion McFADDEN v. COMMONWEALTH of Virginia.

Record No. 0470-85.

Court of Appeals of Virginia.

Oct. 7, 1986.

Thomas W. Moss, Jr. (Charles E. Sizemore, Jr.; Moss, Sizemore & Callahan, Norfolk, on brief), for appellant.

Marla Lynn Graff, Asst. Atty. Gen. (William G. Broaddus, Atty. Gen., on brief), for appellee.

Present: KEENAN, BENTON and HODGES, JJ.

HODGES, Judge.

Marion McFadden appeals her conviction in the Circuit Court of the City of Norfolk for attempted oral sodomy. Prior to that conviction she was found guilty by the General District Court of the City of Norfolk of prostitution, and claims that her right to be free from being twice placed into jeopardy for the same crime was violated. She was convicted of prostitution under Norfolk City Ordinance § 29-23 ¹ while her subsequent conviction was based upon Code §§ 18.2-361 ² and 18.2-26³. Both parties agree that the two convictions were based on a single incident.

The only witness for the Commonwealth was Officer Brent Boone of the Norfolk Police Department's vice and narcotics squad, who testified that on the date of the offense he was assigned to downtown Norfolk. On the night of May 12, 1984, he was working near the intersection of Virginia Beach Boulevard and Church Street. When he stopped his vehicle at the intersection, the defendant approached his car and asked him if he was "dating," which Boone said was the term used to inquire whether a person was available for sex. When he said he was, she asked how much he wanted to spend and he told her $40.00. The defendant then entered the vehicle, directed him to a different intersection, and said she wanted to find a cool place for a "f**k and a s**k." After the officer stopped his car and gave the defendant $40.00, she put her hand in his genital region and attempted to put her mouth on his penis. Officer Boone excused himself and got out of the car. Shortly thereafter other officers of the vice squad arrived at the scene and arrested the defendant.

McFadden was convicted of prostitution under the Norfolk City Code ⁴ and of attempted oral sodomy under the state statute. She raises two arguments to support her contention that the second prosecution was barred: (1) that when the General Assembly of Virginia amended Code § 18.2-346 in 1980 to include within its proscription an act of sodomy for money, it evidenced its intent that a person guilty of prostitution based upon an act of sodomy should only be prosecuted for a misdemeanor offense and not a felony; and (2) that her conviction for prostitution barred her subsequent prosecution for attempted oral sodomy because the same evidence was used to convict her on that charge as on the prostitution charge ⁵. We believe the dispositive question is whether the General Assembly, by its amendment of the prostitution statute, precluded prosecution under the general statutory scheme under which attempts to commit felonies are prosecuted. Finding that it has, we reverse the appellant's conviction.

The appellant argues that the General Assembly's amendment in 1980 of Code § 18.2-346 excepted her actions from the general statutory scheme embodied in Code § 18.2-26, and that the Commonwealth was therefore precluded from prosecuting her for any greater offense than prostitution, which is a misdemeanor.

The Commonwealth's response is that it has the discretion to prosecute under either a felony or misdemeanor statute when a criminal act violates both and that, while the prosecution in general district court had to prove that the defendant offered to engage in fornication for money, or its equivalent, there was no need to prove the monetary element to convict her for attempted oral sodomy. Therefore, the second prosecution was not barred by double jeopardy considerations. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed.3d 306 (1932).

We agree with the Commonwealth that the two statutes the defendant was convicted under would pass the double jeopardy test set forth in Blockburger. However, the dispositive issue is not one of double jeopardy but whether the General Assembly precluded the state from prosecuting the defendant for the felony of attempted oral sodomy for money under Code § 18.2-26.

In 1974, the Supreme Court of Virginia addressed the prostitution statute as it then existed and interpreted the language used therein. Adams v. Commonwealth, 215 Va. 257, 208 S.E.2d 742 (1974). The court said Attempted prostitution, unlike attempts to commit crimes generally, is defined solely by Code § 18.1-194 ⁶ and, as so defined, is incorporated within the offense of prostitution itself. An attempt to commit prostitution requires an offer to engage in sexual intercourse for pay and a substantial act performed in furtherance of the offer.

Id. at 258, 208 S.E.2d at 743-44.

The amendment of the prostitution statute to include acts of, or offers to commit, crimes against nature for money did not affect the interpretation the Supreme Court gave the statutory language; adding crimes against nature to the prostitution statute removed such acts or offers to commit such acts for money or its equivalent from the general statutory scheme under which attempts to commit crimes may be generally prosecuted. We agree with the appellant that she could not have been indicted, tried and convicted for attempted oral sodomy under Code §§ 18.2-26 and 18.2-361.

We cannot agree with the Commonwealth's contention that the determination whether to prosecute the defendant for the felony of attempted oral sodomy or the misdemeanor of prostitution was at the discretion of the prosecution since the General Assembly effectively removed her actions from the sodomy statute. Further, we reject the notion that the prosecution for attempted oral sodomy was proper since no proof of the financial aspect of the defendant's offer to Officer Boone was required. We cannot ignore the totality of the evidence in order to split the transaction into two crimes. Officer Boone testified to the entire incident and the offer made by the defendant encompassed an offer to commit acts which the ...