Pedersen v. City of Richmond, 780831

• Decision Date: 20 April 1979
• Docket Number: No. 780831,780831
• Citation: 219 Va. 1061,254 S.E.2d 95
• Parties: Kenneth M. PEDERSEN, Jr. v. CITY OF RICHMOND. Record
• Court: Virginia Supreme Court

Page 95

254 S.E.2d 95

219 Va. 1061

Kenneth M. PEDERSEN, Jr. v. CITY OF RICHMOND.

Record No. 780831.

Supreme Court of Virginia.

April 20, 1979.

Stephen W. Bricker, Richmond (Victor M. Glasberg, Hirschkop & Grad, Alexandria, on brief), for appellant.

Stacy F. Garrett, III, Deputy Commonwealth's Atty. (Aubrey M. Davis, Jr., Commonwealth's atty., on brief), for appellee.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, POFF and COMPTON, JJ.

COCHRAN, Justice.

Arrested on a warrant charging him with violation of an ordinance, Section 22-34.1 of the Code of the City of Richmond, ¹ Kenneth M. Pedersen, Jr., was tried in the General District Court, found guilty as charged, and sentenced to pay a fine and serve 30 days in jail, the jail sentence being suspended. Appealing his conviction, Pedersen moved to dismiss the charge on the ground that the ordinance was unconstitutional. The trial court, sitting without a jury, overruled the motion, heard the City's evidence, and overruled Pedersen's motion to strike the evidence. Pedersen introduced no evidence in his own behalf. The trial court found him guilty as charged, and sentenced him to pay a fine of $50. In the present appeal, Pedersen again challenges the constitutionality of the ordinance and the sufficiency of the evidence against him.

The only witness who testified in the trial court was Patrolman Kenneth L. Palmer, of the Richmond Bureau of Police, whose testimony, in accordance with familiar principles, will be taken in the light most favorable to the City.

On the night of January 4, 1978, Palmer was working in plainclothes as part of a Selective Enforcement Unit in the downtown Richmond block bounded by Main, First, Franklin, and Foushee Streets, "a known area for homosexuals". The officer was standing on the sidewalk on Foushee Street at approximately 11:35 p. m. when Pedersen drove up and stopped his car at the curb. Palmer related the events that transpired.

"He rolled his window down and asked me if I would like to have a seat in his car because it was cold outside, and I had a seat in his automobile, at which time he started to drive off. I asked him where he was going and he stated he was just riding.

"He stated that he had picked me up because that I looked nice in my blue jeans and that he would like to see me naked. He drove over across Belvidere Street and went down Holly Street to south on Holly to the dead end and took a right, I believe it's Riverside Park Drive, if I'm not mistaken.

"He pulled down to the dead end of the street and cut the car off and he was asking me what type of things did I like and I just repeated the question back to him. I'd say, you know, different type of things, all types of things, nothing specifically.

"I asked him and he stated that he liked, you know, different experiences and he would, you know, do almost anything and he said he would like to have sex.

"He had also had stated and told me about his roommate, which is another male companion, and he told me that he had had sex with him several times.

"I asked him if that's what he wanted me to do, to see me naked and to have sex with me and he stated yes, at which time I placed the defendant under arrest for solicitation and he was advised of his rights."

Palmer estimated that he was in the car for approximately 30 minutes before arresting Pedersen at 12:05 a. m. on January 5.

We first consider Pedersen's arguments that the ordinance is unconstitutionally vague in violation of the Due Process Clause of the Fourteenth Amendment and unconstitutionally overbroad in violation of the First Amendment. Contrary to the City's contention, we did not resolve these constitutional questions in Hensley v. City of Norfolk, 216 Va. 369, 218 S.E.2d 735 (1975). The Norfolk ordinance, similar in language to the Richmond ordinance under consideration, made it unlawful for any person to "solicit another, by word, sign or gesture, to commit any act which is lewd, lascivious, indecent or prostitute . . . ." Finding it unnecessary to analyze all the language of the Norfolk ordinance, we held that the words prohibiting solicitation of another "to commit any act which is . . . prostitute . . ." sufficiently stated the offense of solicitation for prostitution, and was not unconstitutionally vague. We expressed no opinion as to the constitutionality of the ordinance insofar as it prohibited solicitation to commit any act that is "lewd", "lascivious", or "indecent", but not "prostitute".

We agree with Pedersen that the Richmond ordinance must be narrowly construed to proscribe the solicitation of only those acts which, if consummated, would constitute criminal offenses. If a statute can be made constitutionally definite by a reasonable construction, the court is under a duty to give it that construction. United States v. Harriss, 347 U.S. 612, 618, 74 S.Ct. 808, 98 L.Ed. 989 (1954); Thomes v. Commonwealth, 355 Mass. 203, 207, 243 N.E.2d 821, 824 (1969). It would be illogical and untenable to make solicitation of a non-criminal act a criminal offense. We will follow the common law principle that the acts encompassed by the solicitation ordinance must be criminal in nature. See District of Columbia v. Garcia, 335 A.2d 217, 221 (D.C.App.), Cert. denied, 423 U.S. 894, 96 S.Ct. 192, 46 L.Ed.2d 125 (1975); Riley v. United States, 298 A.2d 228, 230-31 (D.C.App.), Cert. denied, 414 U.S. 840, 94 S.Ct. 96, 38 L.Ed.2d 77 (1973); Cherry v. State, 18 Md.App. 252, 306 A.2d 634 (1973).

Pedersen concedes that this restrictive interpretation will defeat his due process attack on the constitutionality of the ordinance to the extent that the definition and scope of the crimes solicited are specific and constitutional. The ordinance is concerned with the solicitation of sexual acts which are crimes, and, in respect to Pedersen, since prostitution is not involved, solicitation of a crime that is "lewd, lascivious, or indecent . . . ." These words have meanings that are generally understood. We have defined "lascivious" to mean "a state of mind that is eager for sexual indulgence, desirous of inciting to lust or of inciting sexual desire and appetite". McKeon v. Commonwealth, 211 Va. 24, 27, 175 S.E.2d 282, 284 (1970). "Lewd" is a synonym of "lascivious" and "indecent". Webster's Third New International Dictionary, 1301 (1969). As used in the ordinance, the terms refer to sexual conduct that is contrary to community standards of morality. See Everett and Wright v. Commonwealth, 214 Va. 325, 327, 200 S.E.2d 564, 566 (1973). An act of sodomy, made unlawful by Code § 18.2-361, ² is one within the purview of the ordinance.

An ordinance is void for vagueness if it fails to give a reasonably intelligent person fair notice that his contemplated conduct is forbidden. Flannery v. City of Norfolk, 216 Va. 362, 366, 218 S.E.2d 730, 733 (1975), Appeal dismissed, 424 U.S. 936, 96 S.Ct. 1404, 47 L.Ed.2d 345 (1976). A person of even limited intelligence is on notice from the provisions of Sec. 22-34.1 that solicitation of sodomy is thereby forbidden. The vagueness argument, therefore, fails.

Pedersen says that the ordinance is overbroad because it restricts constitutionally protected speech. He also states that it unconstitutionally intrudes upon familial rights of privacy because it sweeps so broadly as to include requests made for abnormal sexual activities by one spouse to another in the privacy of their home. We reject both contentions.

First Amendment protection is not afforded statements made in the solicitation of criminal acts. Riley v. United States, supra, 298 A.2d at 233. Laws prohibiting solicitation are not directed against words but against acts. A solicitation is, in itself, an act. It is an incitement to unlawful activity which goes beyond the permissible limits of the right of free expression. The social purposes underlying the First Amendment do not extend the protection of that amendment to verbal acts soliciting crimes. Cherry v. States, supra, 18 Md.App. at 261, 306 A.2d at 639. See Annot., 77 A.L.R.3d 519 (1977).

Furthermore,...