Santillo v. Com.
Decision Date | 17 August 1999 |
Docket Number | Record No. 0496-98-4. |
Court | Virginia Court of Appeals |
Parties | Giulio 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.
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.
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:
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:
(Emphasis added).
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)). "" Id. at 299, 498 S.E.2d at 454 (quoting Harrison v. Day, 200 Va. 764, 770, 107 S.E.2d 594, 598 (1959)). Peery v. Virginia Board of Funeral Directors and Embalmers, 203 Va. 161, 165, 123 S.E.2d 94, 97 (1961).
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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