Singson v. Com.

• Decision Date: 08 November 2005
• Docket Number: Record No. 0646-04-1.
• Citation: 621 S.E.2d 682,46 Va. App. 724
• Parties: Joel Dulay SINGSON v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

Page 682

621 S.E.2d 682

46 Va. App. 724

Joel Dulay SINGSON v. COMMONWEALTH of Virginia.

Record No. 0646-04-1.

Court of Appeals of Virginia.

November 8, 2005.

COPYRIGHT MATERIAL OMITTED

From the Circuit Court of the City of Virginia Beach, Frederick B. Lowe, Judge.¹

Gregory R. Nevins (John L. Squires; Lambda Legal Defense and Education Fund, Inc.; Dan Miller & Associates, on briefs, Norfolk), for appellant.

William E. Thro, State Solicitor General (Judith Williams Jagdmann, Attorney General; Matthew M. Cobb, Associate State Solicitor General; Ronald N. Regnery, Associate State Solicitor General, on brief), for appellee.

Present: HUMPHREYS and KELSEY, JJ, and OVERTON, Senior Judge.

ROBERT J. HUMPHREYS, Judge.

Appellant Joel Dulay Singson ("Singson") appeals his conviction, following a conditional guilty plea, for solicitation to commit oral sodomy, in violation of Code §§ 18.2-29 (criminal solicitation) and 18.2-361 (crimes against nature). Based on the holding of the United States Supreme Court in Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), Singson contends that Code § 18.2-361 is facially unconstitutional because it prohibits private acts of consensual sodomy, in violation of the Due Process Clause of the Fourteenth Amendment. Thus, Singson argues that he cannot be convicted for attempting, through solicitation, to violate that statute. In the alternative, Singson contends that Code § 18.2-361 is unconstitutionally overbroad because it, in conjunction with Code § 18.2-29, chills constitutionally protected speech, also arguing that the sentence imposed by the trial court constitutes cruel and unusual punishment, in violation of the Eighth Amendment to the United States Constitution. For the reasons that follow, we hold that Singson lacks standing to facially challenge the constitutionality of Code § 18.2-361 pursuant to the Due Process Clause of the Fourteenth Amendment. We also hold that Code § 18.2-361 is not unconstitutionally overbroad under the First Amendment and that Singson is procedurally barred from arguing that the sentence imposed by the trial court constitutes cruel and unusual punishment. Accordingly, we affirm his conviction for solicitation to commit oral sodomy.

I. BACKGROUND

The relevant facts are not in dispute. At approximately 4:00 p.m. on March 20, 2003, Singson walked into a men's restroom located in a department store. The restroom is freely accessible to members of the public, including children. Once in the restroom, Singson entered the handicapped bathroom stall and remained in that stall for approximately thirty minutes. Singson then left the handicap bathroom stall and approached a stall occupied by an undercover police officer. Singson "stopped in front of the stall, leaned forward," and "peered into [the] stall through the crack in the stall door." The undercover police officer, who was in "a state of undress," asked Singson "What's up?" and "What are you looking for?" Singson replied, "Cock." The officer then asked "What do you want to do," and Singson replied, "I want to suck cock." The undercover officer asked if Singson wanted to suck his penis, and Singson responded, "Yes." When the officer asked, "Do you want to do it in here," Singson nodded towards the handicap stall. The officer then asked if Singson wanted to suck his penis in the handicap stall, and Singson responded, "Yes."

A grand jury indicted Singson for "command[ing], entreat[ing] or otherwise attempt[ing] to persuade another to commit a felony other than murder," specifically, "Crimes Against Nature," in violation of Code §§ 18.2-29 and 18.2-361. Singson moved to dismiss the indictment, arguing that Code § 18.2-361 "is overbroad and vague, [and] violates the defendant's rights to Due Process under the United States Constitution as outlined in the recent U.S. Supreme Court opinion in [Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003)]."

The trial court overruled the motion to dismiss, reasoning that Lawrence did not apply because "the restrooms within [s]tores open to the public are not within the zone of privacy as contemplated by the United States Supreme Court." The court further noted that it could not "imagine too much more [of a] public place than a restroom in a shopping mall." Singson entered a conditional guilty plea, and the trial court, noting Singson's extensive criminal history of prior, similar behavior, imposed a sentence of three years in prison. The court suspended two and one-half years of Singson's sentence, resulting in a total active sentence of six months.

II. ANALYSIS

On appeal, Singson raises three assignments of error. First, he contends that his conviction should be reversed because, in light of the Supreme Court's decision in Lawrence, Code § 18.2-361 is facially unconstitutional. Second, Singson argues, in the alternative, that his conviction should be reversed because Code § 18.2-361 is unconstitutionally overbroad. Third, Singson contends that the sentence imposed by the trial court constitutes cruel and unusual punishment, in violation of the Eighth Amendment. For the reasons that follow, we find no merit in any of these contentions. Accordingly, we affirm.

A. Whether Code § 18.2-361 is Facially Unconstitutional Because it Encompasses Conduct Protected Under the Due Process Clause of the Fourteenth Amendment

Citing the United States Supreme Court's decision in Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), Singson initially contends that Code § 18.2-361 is facially unconstitutional because it encompasses private acts of consensual sodomy, thus offending the Due Process Clause of the Fourteenth Amendment. However, because Singson's conduct occurred in a public place—not a private location—we hold that he lacks standing to challenge the constitutionality of Code § 18.2-361 on this ground. Accordingly, we do not reach the issue of whether, applying Lawrence, Code § 18.2-361 is facially unconstitutional under the Fourteenth Amendment because it encompasses private—as well as public—acts of consensual sodomy. And, because application of Code § 18.2-361 under the circumstances of this case neither implicates nor violates Singson's constitutional right to due process of law, we conclude that this assignment of error has no merit.

1. Whether Public Sexual Conduct is Encompassed by Code § 18.2-361

Code § 18.2-361 provides, in relevant part, as follows:

If any person carnally knows in any manner . . . 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. . . .

Code § 18.2-361(A). As we have noted, "[t]he term `carnal knowledge' has been construed to include `any sexual bodily connection, not simply sexual intercourse.'" Santillo v. Commonwealth, 30 Va.App. 470, 483, 517 S.E.2d 733, 740 (1999) (quoting Shull v. Commonwealth, 16 Va.App. 667, 669, 431 S.E.2d 924, 925 (1993), aff'd, 247 Va. 161, 440 S.E.2d 133 (1994)). Because "[c]arnal knowedge `with the mouth' is another term for cunnilingus, and carnal knowledge `by the mouth' includes fellatio," id. (citation omitted), Code § 18.2-361 prohibits any sexual act "involv[ing] contact between the mouth and genitals, including. . . oral sex." Id. at 484, 517 S.E.2d at 740.

Here, Singson solicited fellatio from an undercover officer in a public restroom. In other words, Singson sought to engage in conduct "involv[ing] contact between the mouth and genitals," specifically, "oral sex." Id. Thus, Singson's attempted conduct falls squarely within the scope of Code § 18.2-361(A). See id.; see also Lankford v. Foster, 546 F.Supp. 241, 249 n. 11 (W.D.Va.1982) (defining fellatio as "sodomy by the mouth"), aff'd, 716 F.2d 896 (4th Cir.1983).

2. Appellant's Standing to Mount a Facial Challenge on Due Process Grounds

Singson argues, however, that Code § 18.2-361 is facially unconstitutional because, in light of the United States Supreme Court's holding in Lawrence, the statute—as applied to private, consensual acts of sodomy—violates the Due Process Clause of the Fourteenth Amendment. Because the statute is facially unconstitutional, Singson reasons that, even though his public conduct falls within the ambit of Code § 18.2-361, the statute cannot be enforced against him.

However, a litigant "has standing to challenge the constitutionality of a statute only insofar as it has an adverse impact on his own rights." County Court of Ulster County v. Allen, 442 U.S. 140, 154-55, 99 S.Ct. 2213, 2223, 60 L.Ed.2d 777 (1979). Thus, "[a]s a general rule, if there is no constitutional defect in the application of the statute to the litigant, he does not have standing to argue that it would be unconstitutional if applied to third parties in hypothetical situations." Id. at 155, 99 S.Ct. at 2223.²

For example, in DePriest v. Commonwealth, 33 Va.App. 754, 537 S.E.2d 1 (2000), the appellants challenged their convictions for solicitation to commit oral sodomy, in violation of the exact statutes at issue in this appeal. The appellants contended—as does Singson—that Code § 18.2-361 was "unconstitutional on its face," reasoning that the statute, inter alia, "denies the fundamental right to privacy guaranteed by the Constitution of Virginia." 33 Va.App. at 758, 537 S.E.2d at 3. We held, however, that appellants lacked standing to mount a facial challenge to Code § 18.2-361, reasoning that the appellants fell "within the general rule that a party attacking the constitutionality of a statute must demonstrate that his own, rather than a third party's, rights are constitutionally infringed." Id. at 762, 537 S.E.2d at 5. Thus, we addressed the constitutionality of Code § 18.2-361 "only as it applie[d] to the appellants in [that] case and to the[] conduct that underlay their convictions." Id.

Similarly, in Santillo, the appellant challenged the constitutionality of Code § 18.2-361 on...