Santillo v. Com.

Decision Date17 August 1999
Docket NumberRecord No. 0496-98-4.
CourtVirginia Court of Appeals
PartiesGiulio SANTILLO v. COMMONWEALTH of Virginia.

James W. Hundley (Briglia & Hundley, P.C., on briefs), Fairfax, for appellant.

Eugene Murphy, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., LEMONS, J., and DUFF, Senior Judge.

FITZPATRICK, Chief Judge.

Giulio Santillo (appellant) was convicted of sodomy involving a sixteen-year-old victim, in violation of Code § 18.2-361. On appeal, he contends the trial court erred in denying his pretrial motion to dismiss the indictment because (1) the statute violates his constitutional right to privacy and must be narrowly construed to exclude private acts of consensual heterosexual sodomy and (2) the statute is unconstitutionally vague. For the following reasons, we affirm his conviction.

I. BACKGROUND

Under familiar principles of appellate review, we examine the evidence in the light most favorable to the Commonwealth, the prevailing party below, granting to it all reasonable inferences fairly deducible therefrom. See Juares v. Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997)

. Appellant was charged with carnal knowledge of the victim, C.L., on or about March 2, 1997.1 The evidence established that C.L. was sixteen years old in March 1997 and had known appellant, a close family friend, for eight years. She considered appellant her "godfather." Appellant, fifty-nine years old at the time of the offense, lived in Florida but stayed in the guestroom of the victim's home when he was in town on business.

On February 24, 1997, appellant was visiting the victim's family and he picked up C.L. from school, bought lunch for her and took her home. While C.L. was doing schoolwork at her desk, appellant first gave her a back massage and later told her to lie on the bed where he rubbed her lower back inside her pants. Appellant suggested that the child pull down her pants so that he could massage her legs, and the victim complied. Appellant eventually placed his fingers in the victim's vagina. The victim remained still because appellant had "never done anything bad" to her. The episode ended when C.L. pulled her pants up quickly and appellant left to go to work. Appellant instructed her not to tell anyone about what happened.

On March 2, 1997, appellant again returned to the victim's home and entered her bedroom while she was doing her homework. Appellant offered to give C.L. a back massage. The victim laid down on the bed and appellant rubbed her back, moving his hands lower and lower. The victim left the room and put on her pajamas. When she returned, appellant again rubbed her back. The victim said she was cold, got into bed under the covers and picked up a book. Appellant sat beside the victim for awhile, then began tickling her feet. He moved his hands upwards inside the victim's "boxers." Appellant again told C.L. to relax and that he was not going to hurt her. Appellant placed a stuffed animal in the victim's lap. He leaned down and put his tongue in her vagina. He tried to kiss the victim on the mouth, but she turned away.

Appellant left the room briefly. When he returned, he had changed clothes. He took C.L.'s hand and placed it on his penis. She did not react. With a "mean" facial expression, appellant walked away. He told the victim not to tell anyone.

Appellant filed a pretrial motion to dismiss the indictment, alleging that Code § 18.2-361 was unconstitutional as applied to him. The trial court denied appellant's motion and ruled as follows:

[A]s you have originally said, you're not asking me to find the statute unconstitutional on its face, and I wouldn't do that.
So, I think to some degree you've put this case in terms of consensual heterosexual sodomy and I'm not sure that that's what it is ... based on the facts that the Commonwealth has proffered that their evidence would show. I think there's a big difference between the Commonwealth not being able to show force and a party being able to show consent.
And based on the facts that the Commonwealth contends it would prove, I just don't find that to be consensual heterosexual conduct, for one thing.... I don't find the statute to be unconstitutional for the purposes of this case.

Following the presentation of evidence at trial by the Commonwealth, appellant renewed his motion to dismiss the charges on constitutional grounds and additionally alleged that the evidence was insufficient for conviction. Denying appellant's motion, the trial judge ruled as follows:

As to the second part of the motion to strike is [sic] that the statute as applied here is unconstitutional and that the statute abridges the constitutionally protected right to privacy. A motion was previously heard on this matter ... and was denied, and the argument today is that the evidence reveals at best consensual sexual contact between two individuals, that the state has no interest in that and that she, the victim, may have consented to this contact, and therefore that there is no overriding state interest in the activity which occurred here in terms of heterosexual consensual contact.
Again, I think that the Court is not to strain to reach constitutional questions. I don't think that a constitutional question is presented here where the evidence, taken in the light most favorable to the Commonwealth is that there was unwanted, nonconsensual contact which occurred between these two individuals and that the crime charged, the sodomy statute, has been upheld as constitutional in the Commonwealth and has been applied even as to the context involving married individuals.
This is not such a case. This is a case involving a 59-year-old man and a 16-year-old victim. She has said it was nonconsensual. I think the state would have an overriding interest in public safety to protect a woman from unwanted contact of that kind ....

(Emphasis added).

II. CONSTITUTIONALITY

Code § 18.2-361(A), the statute under which appellant was convicted, provides in relevant part as follows:

If any person carnally knows in any manner any brute animal, or 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...

In assessing the constitutionality of a statute, "the burden is on the challenger to prove the alleged constitutional defect." Woolfolk v. Commonwealth, 18 Va.App. 840, 848, 447 S.E.2d 530, 534 (1994). "`Every act of the legislature is presumed to be constitutional, and the Constitution is to be given a liberal construction so as to sustain the enactment in question, if practicable.'" Moses v. Commonwealth, 27 Va.App. 293, 298-99, 498 S.E.2d 451, 454 (1998) (quoting Bosang v. Iron Belt Bldg. & Loan Ass'n, 96 Va. 119, 123, 30 S.E. 440, 441 (1898)). "`When the constitutionality of an act is challenged, a heavy burden of proof is thrust upon the party making the challenge. All laws are presumed to be constitutional and this presumption is one of the strongest known to the law.'" Id. at 299, 498 S.E.2d at 454 (quoting Harrison v. Day, 200 Va. 764, 770, 107 S.E.2d 594, 598 (1959)). "It has long been established that every presumption is to be made in favor of an act of the legislature, and it is not to be declared unconstitutional except where it is clearly and plainly so. Courts uphold acts of the legislature when their constitutionality is debatable, and the burden is upon the assailing party to prove the claimed invalidity." Peery v. Virginia Board of Funeral Directors and Embalmers, 203 Va. 161, 165, 123 S.E.2d 94, 97 (1961).

A. Right to Privacy

Appellant first contends the prohibition of consensual heterosexual sex under Code § 18.2-361 abridges his constitutional right to privacy.2 Before considering this argument, we note that generally, a litigant may challenge the constitutionality of a law only as it applies to him or her. See Coleman v. City of Richmond, 5 Va.App. 459, 463, 364 S.E.2d 239, 241-42 (1988)

(citing Grosso v. Commonwealth, 177 Va. 830, 839, 13 S.E.2d 285, 288 (1941)), reh'g denial 6 Va.App. 296, 368 S.E.2d 298 (1988). "That the statute may apply unconstitutionally to another is irrelevant; one cannot raise third party rights." Id. at 463, 364 S.E.2d at 242.3 It is in this light that we review appellant's constitutional challenge to Code § 18.2-361.4

The Supreme Court has recognized that the Due Process Clause of the Fourteenth Amendment protects individuals from state governmental interference with specific liberty interests. Substantive due process "protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation's history and tradition, ... and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed." Washington v. Glucksberg, 521 U.S. 702, 721, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (citations and internal quotations omitted). Additionally, substantive due process claims require "a careful description of the asserted fundamental liberty interest." Id. (citations and internal quotations omitted). Therefore, in a due process case, the Court looks to the "Nation's history, legal traditions, and practices." Id. at 710, 117 S.Ct. 2258.

While the Supreme Court has spoken in terms of "substantive due process" and "fundamental rights" in determining whether there exists a right to privacy in a specific case, it has consistently expressed its reluctance to expand these notions and, therefore, the protection of the Due Process Clause.

[W]e have] always been reluctant to expand the concept of substantive due process because guideposts for responsible decision-making in this unchartered area are scarce and open-ended. By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside
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