PRESENT: Lemons, C.J., Goodwyn, Millette, Mims, and McClanahan, JJ., and Lacy and Koontz, S.JJ.
ADAM DARRICK TOGHILL OPINION BY v. Record No. 140414 JUSTICE S. BERNARD GOODWYN February 26, 2015 COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether Code § 18.2-361(A) 1 is
facially unconstitutional in light of the decision of the
United States Supreme Court in Lawrence v. Texas, 539 U.S. 558
(2003).
Background
Adam Darrick Toghill (Toghill), an adult, engaged in an
email exchange with a law enforcement officer posing as a minor
wherein Toghill proposed that the two engage in oral sex.
Subsequently, Toghill was indicted on charges of Internet
solicitation of a minor in violation of Code § 18.2-374.3. The
Circuit Court of Louisa County and both parties agreed that
Toghill was accused of soliciting oral sex from a minor, and
that oral sex between an adult and a minor is an act forbidden
by Code § 18.2-361(A). Toghill was found guilty after a jury
1 The General Assembly amended Code § 18.2-361(A) in 2014 to remove the general provisions forbidding sodomy. 2014 Acts ch. 794. However, when this opinion refers to Code § 18.2- 361(A), it is referring to the statute as it existed on March 10, 2011, when the alleged crime was committed, unless denoted otherwise. trial, and the court sentenced him to five years’ imprisonment.
Notably, at trial, Toghill did not argue that Code § 18.2-
361(A) was unconstitutional.
Toghill appealed to the Court of Appeals of Virginia
(Court of Appeals), arguing that his conviction was invalid
because Code § 18.2-361(A) was unconstitutional. To support
his position, he cited a recently decided case from the United
States Court of Appeals for the Fourth Circuit, MacDonald v.
Moose, 710 F.3d 154 (4th Cir. 2013) (Moose), in which the
Fourth Circuit ruled that Code § 18.2-361(A) was facially
unconstitutional. The Court of Appeals affirmed the circuit
court’s decision, citing McDonald v. Commonwealth, 274 Va. 249,
645 S.E.2d 918 (2007), in which this Court ruled that Code §
18.2-361(A) was not unconstitutional as applied to sodomy cases
involving an adult with a minor. Toghill v. Commonwealth,
Record No. 2230-12-2, 2014 Va. App. LEXIS 42, at *6-7 (February
11, 2014). It held that Code § 18.2-361(A) was constitutional
as applied to Toghill because the Lawrence decision did not
prevent a state from criminalizing sodomy 2 between an adult and
2 For simplicity, the term “sodomy,” as utilized in this opinion, encapsulates all forms of homosexual and heterosexual non-coital sexual activity between humans, including anal and oral sex. See MacDonald v. Moose, 710 F.3d 154, 156, 163 (4th Cir. 2013) (citing Lawrence, 539 U.S. at 563) (“We herein use the term ‘anti-sodomy provision’ to refer to the [non- bestiality] portion[s] of section 18.2-361(A) . . . . The conduct for which the Lawrence defendants were prosecuted
2 a minor. Id. Toghill appeals. Toghill assigns error as
follows:
The Court of Appeals erred in holding that Virginia's anti-sodomy law was constitutional, with the result that Toghill was convicted of soliciting a minor to commit an act that was not, in actuality, a violation of Virginia law.
Analysis
Toghill argues that Code § 18.2-361(A) is facially
unconstitutional and invalid, and thus his conviction, for
soliciting an activity deemed illegal because it violated Code
§ 18.2-361(A), was void ab initio. The Commonwealth argues
that the Lawrence decision did not facially invalidate Code
§ 18.2-361(A), because the Supreme Court of the United States
implied in its holding that a state could criminalize sodomy in
some circumstances, including sodomy involving adults with
minors.
As a preliminary matter, the Commonwealth asserts that
Toghill’s claim is procedurally barred because Toghill failed
to raise the issue of the constitutionality of Code § 18.2-
361(A) at trial. Toghill has conceded that he presented this
argument for the first time on appeal.
qualified as ‘deviate sexual intercourse’ in that it amounted to ‘contact’ between any part of the genitals of one person and the mouth or anus of another person, that is, sodomy.”); Webster’s Third New International Dictionary 2165 (1993) (providing that the term “sodomy” can be used to mean homosexual and heterosexual non-coital sexual activity broadly).
3 Rule 5:25 states: “No ruling of the trial court . . .
will be considered as a basis for reversal unless an objection
was stated with reasonable certainty at the time of the
ruling.” Our Court has stated that “an appellate court may not
reverse a judgment of the trial court based . . . upon an issue
that was not presented.” McDonald, 274 Va. at 255, 645 S.E.2d
at 921 (holding that the Court could not evaluate a facial
challenge to Code § 18.2-361(A) because the appellant never
raised a facial challenge in the trial court). However, Rule
5:25 also states that this Court can review a ruling that was
not objected to at trial “for good cause shown or to enable
this Court to attain the ends of justice.”
Following the Supreme Court decision in Lawrence, this
Court had the opportunity in McDonald to consider the
continuing constitutionality of Code § 18.2-361(A) in light of
Lawrence. This Court held the statute to be constitutional as
applied to oral sex between an adult and a minor. McDonald,
274 Va. at 260, 645 S.E.2d at 924.
Toghill’s trial in the instant case occurred on November
26, 2012. On March 12, 2013, the Fourth Circuit issued its
published opinion in Moose, holding that Code § 18.2-361(A) is
facially unconstitutional because it does not pass muster under
the standards set by the Supreme Court in Lawrence. 710 F.3d
at 166.
4 Despite Toghill’s failure to raise the issue at trial, we
hold that the conflict created by the Fourth Circuit’s
subsequent opinion is good cause under Rule 5:25 to consider
the error alleged by Toghill regarding the constitutionality of
Code § 18.2-361(A). Our prior cases have not applied the “good
cause shown” exception contained in Rule 5:25, but we believe
that exception to be applicable in this narrow instance and
will apply it sua sponte as has been done with the ends of
justice exception. See Ball v. Commonwealth, 221 Va. 754, 758-
59, 273 S.E.2d 790, 793 (1981) (applying the ends of justice
exception despite the fact that appellant did not request the
Court to consider that issue in his brief); Cooper v.
Commonwealth, 205 Va. 883, 889-90, 140 S.E.2d 688, 692-93
(1965) (same). Thus, we will examine whether, under our
jurisprudence, Toghill’s conviction is invalid premised on the
theory that Code § 18.2-361(A) is facially unconstitutional as
a result of the Supreme Court’s ruling in Lawrence.
The statute under which Toghill was convicted, former Code
§ 18.2-374.3(C), stated at the time of the offense that it was
a Class 5 felony for an adult to knowingly and intentionally
propose to a child under 15 years of age “an act of sexual
intercourse or any act constituting an offense under § 18.2-
361” using a computer. Also at that time, former Code § 18.2-
361(A) stated “If any person . . . carnally knows any male or
5 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.” 3
It is undisputed that Toghill’s conviction is based upon
the fact that he, using a computer, proposed oral sex to a
person he believed to be a child under 15 years old, and that
the circuit court ruled that oral sex between an adult and a
child under 15 was a criminal offense under Code § 18.2-361(A).
In Moose, the Fourth Circuit ruled that Code § 18.2-361(A) does
not outlaw oral sex between an adult and a child under 15
because the statute is facially unconstitutional, and thus
invalid. 710 F.3d at 166.
While this Court considers Fourth Circuit decisions as
persuasive authority, such decisions are not binding precedent
for decisions of this Court. See, e.g., Lockhart v. Fretwell,
506 U.S. 364, 376 (1993) (Thomas, J., concurring) (“[N]either
federal supremacy nor any other principle of federal law
requires that a state court’s interpretation of federal law
give way to a (lower) federal court’s interpretation.”); Owsley
v. Peyton, 352 F.2d 804, 805 (4th Cir. 1965) (denying that a
Fourth Circuit decision alters existing Virginia law and
acknowledging that “[t]hough state courts may for policy
3 Both former Code § 18.2-374(C) and former Code § 18.2- 361(A), in effect at the time of the offense at issue, appear in the 2009 Replacement Volume containing Title 18.2.
6 reasons follow the decisions of the Court of Appeals whose
circuit includes their state . . . they are not obligated to do
so”); United States ex rel. Lawrence v. Woods, 432 F.2d 1072,
1076 (7th Cir. 1970) (“[B]ecause lower federal courts exercise
no appellate jurisdiction over state tribunals, decisions of
lower federal courts are not conclusive on state courts.”); Ace
Prop. & Cas. Ins. Co. v. Commissioner of Revenue, 770 N.E.2d
980, 986 n.8 (Mass. 2002) (citing Commonwealth v. Hill, 385
N.E.2d 253, 255 (Mass. 1979)) (“Although we are not bound by
decisions of Federal courts (other than the United States
Supreme Court) on matters of Federal law . . . , ‘we give
respectful consideration to such lower Federal court decisions
as seem persuasive.’”); State v. Coleman, 214 A.2d 393, 402,
403 (N.J. 1965) (“In passing on federal constitutional
questions, the state courts and the lower federal courts have
the same responsibility and occupy the same position; there is
a parallelism but not paramountcy for both sets of courts are
governed by the same reviewing authority of the Supreme
Court.”).
Toghill presents a facial constitutional challenge to Code
§ 18.2-361(A). We review questions of statutory
constitutionality de novo. Montgomery Cnty. v. Virginia Dep’t
of Rail & Pub. Transp., 282 Va. 422, 435, 719 S.E.2d 294, 300
(2011); Covel v. Town of Vienna, 280 Va. 151, 163, 694 S.E.2d
7 609, 617 (2010). Facial challenges are disfavored because they
create a risk of “‘premature interpretation of statutes on the
basis of factually barebones records’”; they “run contrary to
the fundamental principle of judicial restraint that courts
should neither ‘anticipate a question of constitutional law in
advance of the necessity of deciding it’ nor ‘formulate a rule
of constitutional law broader than is required by the precise
facts to which it is to be applied,’” and they invalidate an
entire law that was passed through the democratic process.
Washington State Grange v. Washington State Republican Party,
552 U.S. 442, 450 (2008) (citing Ayotte v. Planned Parenthood,
546 U.S. 320, 329 (2006); Sabri v. United States, 541 U.S. 600,
609 (2004); Ashwander v. TVA, 297 U.S. 288, 346-47 (1936)
(Brandeis, J., concurring)).
An appellant can only mount a successful facial challenge
to a statute by showing first that the statute in question is
unconstitutional as applied to him and that the statute in
question would not be constitutional in any context. County
Ct. of Ulster Cnty. v. Allen, 442 U.S. 140, 154-55 (1979) (“As
a general rule, if there is no constitutional defect in the
application of the statute to a litigant, he does not have
standing to argue that it would be unconstitutional if applied
to third parties in hypothetical situations.”); Broadrick v.
Oklahoma, 413 U.S. 601, 610 (1973) (“Embedded in the
8 traditional rules governing constitutional adjudication is the
principle that a person to whom a statute may constitutionally
be applied will not be heard to challenge that statute on the
ground that it may conceivably be applied unconstitutionally to
others, in other situations not before the court.”); Woollard
v. Gallagher, 712 F.3d 865, 882 (4th Cir. 2013) (applying the
rule from Broadrick that a law must be unconstitutional as
applied to a party in order for that party to facially
challenge the law); Washington State Grange, 552 U.S. at 449.
Thus, if a statute is constitutional as applied to a litigant,
he or she lacks standing to assert a facial constitutional
challenge to it, and the statute is not facially
unconstitutional because it has at least one constitutional
application.
We begin by determining whether Toghill meets the first
element that must be shown to raise a claim of facial
unconstitutionality, that is, that the statute is
unconstitutional as applied to him. Toghill alleges that
enforcement of Code § 18.2-361(A) is unconstitutional as
applied to him because enforcement of that criminal statute
infringes upon his substantive due process rights articulated
by the Supreme Court in Lawrence.
In Lawrence, the Supreme Court of the United States
invalidated the convictions of two men observed engaging in
9 anal sex in a private residence. 539 U.S. at 562-63, 579. A
Texas statute made it illegal for two people of the same sex to
engage in such “deviate sexual intercourse.” Id. at 563.
In deciding Lawrence, the Supreme Court overturned its
precedent in Bowers v. Hardwick, 478 U.S. 186 (1986), which had
stated that a Georgia law that prohibited sodomy was not
unconstitutional as applied to a male engaged in sodomy with
another male in private because there was no fundamental right
for homosexuals to engage in sodomy. Lawrence, 539 U.S. at
566-67, 577-78. The Court in Lawrence discussed how, in
Bowers, it had not “appreciate[d] the extent of the liberty at
stake” because penalizing such homosexual sodomy would impact
“the most private human conduct, sexual behavior, and in the
most private of places, the home.” Id. at 567. The Court
cautioned that a State cannot “define the meaning” of a
homosexual relationship or “set its boundaries absent injury to
a person or abuse of an institution the law protects.” Id. It
stated: “[A]dults may choose to enter upon this relationship
in the confines of their homes and their own private lives and
still retain their dignity as free persons.” Id.
The Supreme Court held that the Texas statute violated the
Due Process Clause because it regulated the private, non-
commercial and consensual sexual conduct of adults and
10 furthered no legitimate state interest. Id. at 578. However,
the Court in Lawrence was clear that
[t]he present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.
Id. (emphasis added).
Considering this limiting language, Lawrence simply does
not afford adults with the constitutional right to engage in
sodomy with minors. We held in McDonald, 274 Va. at 260, 645
S.E.2d at 924, and we reaffirm this day that the Supreme
Court’s decision in Lawrence did not prevent Code § 18.2-361(A)
from being constitutional and enforceable as applied to sodomy
between adults and minors. This Court recognized then and
recognizes in this case that “[t]he Court in Lawrence was
explicit in its declaration of the scope of its opinion: ‘The
present case does not involve minors.’” Id. (citing Lawrence,
539 U.S. at 578). “Nothing in Lawrence . . . prohibits the
application of the sodomy statute to conduct between adults and
11 minors.” Id. Thus, we hold that Code § 18.2-361(A) was
constitutional as applied to Toghill. Toghill therefore does
not have standing to successfully assert a facial
constitutional challenge to Code § 18.2-361(A).
There is no Supreme Court precedent to support a ruling
that Code § 18.2-361(A) is unconstitutional on its face. It is
claimed that the Supreme Court in Lawrence signaled that sodomy
statutes were facially unconstitutional because it overturned
Bowers, which involved a facial challenge to a Georgia statute
criminalizing all sodomy. This is factually incorrect. Bowers
did not involve a facial challenge to a Georgia statute, but
rather the issue of whether the federal Constitution confers
fundamental rights upon homosexuals to engage in sodomy. 478
U.S. at 188 n.2, 190. In fact, the majority stated in footnote
2 that “[t]he only claim properly before the Court is
Hardwick’s challenge to the Georgia statute as applied to
consensual homosexual sodomy. We express no opinion on the
constitutionality of the Georgia statute as applied to other
acts of sodomy.” Id. at 188 n.2. Thus, the fact that the
Supreme Court’s decision in Bowers was overruled in Lawrence is
not helpful in discerning whether a particular state statute is
unconstitutional on its face. 4
4 We concur with the sentiment expressed in Judge Diaz’s dissent to the Moose decision that although the Court in
12 In Lawrence itself, the Supreme Court did not explicitly
indicate whether it was concerned with a facial, as opposed to
an as-applied challenge to the statute at issue in the case.
However, the Lawrence opinion clearly states that individuals
are entitled to respect for their private lives such that
adults are entitled to engage in private, consensual,
noncommercial sexual conduct without intervention of the
government. 539 U.S. at 578.
We noted in Martin v. Ziherl, 269 Va. 35, 42, 607 S.E.2d
367, 370-71 (2005), that the Virginia statute criminalizing
intercourse between unmarried persons improperly abridged a
personal relationship that was within the liberty interest of
persons to choose. However, unlike Martin, which involved sex
between consenting adults, the instant case involves oral sex
with a minor which is not “within the liberty interests of
persons to choose,” as specifically stated by the Supreme Court
in Lawrence. 539 U.S. at 567, 578; see also Martin, 269 Va. at
43, 607 S.E.2d at 371 (emphasizing that the case did “not
involve minors, non-consensual activity, prostitution or public
activity[,]” which are activities that Lawrence indicated could
be regulated by the state).
Lawrence overturned Bowers, to infer that Lawrence intended sodomy statutes to be facially invalid from this factor would be a logical “bridge too far.” 710 F.3d at 169 (Diaz, J., dissenting).
13 Toghill, an adult, was charged with soliciting oral sex
from a person he believed was a minor in violation of Code §
18.2-374.3(C) because oral sex is prohibited by Code § 18.2-
361(A), a generally-worded anti-sodomy statute. Because he
solicited sodomy with a person whom he thought was a minor,
Toghill does not have standing to assert a facial challenge to
the anti-sodomy provisions of Code § 18.2-361(A) because
enforcement of the sodomy prohibition law is constitutional as
applied to him in this instance. There are constitutional
applications of Code § 18.2-361(A), and Toghill’s facial
challenge to the statute therefore fails.
A facially unconstitutional statute is invalid. However,
courts can also order statutes that are unconstitutional only
in certain applications to be totally invalidated in rare
circumstances. Thus, even though Code § 18.2-361(A) is not
unconstitutional on its face, that is not dispositive of the
issue of whether it was error to rule that the statute was
enforceable.
The Supreme Court’s decision in Ayotte, 546 U.S. at 328-
32, recognized that in rare circumstances, it may be proper to
totally invalidate a statute even if it is merely
unconstitutional as applied in some circumstances and
constitutional in others. Ayotte does not condemn the failure
to totally invalidate a statute that is unconstitutional as
14 applied in certain instances. Id. at 328-29. Instead, it
provides an analytical framework for discerning the proper
remedy to be applied when a statute is unconstitutional as
applied.
Ayotte involved a New Hampshire abortion law that
prohibited physicians from performing an abortion on a pregnant
minor without notifying her parents in advance, a restriction
allowed by the Constitution. Id. at 323-24, 326-27. However,
the Supreme Court held that the law failed to provide
constitutionally sufficient access to abortions necessary to
protect the mother’s life or health. Id. at 326-28. The
Supreme Court remanded the case to the lower courts for them to
determine whether the proper remedy was for them to forbid the
unconstitutional applications of the statute only or to
invalidate the statute facially. 546 U.S. at 331-32.
The Supreme Court instructed the lower courts that
[g]enerally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem. We prefer, for example, to enjoin only the unconstitutional applications of the statute while leaving other applications in force . . . or to sever its problematic portions while leaving the remainder intact[.]
Id. at 328.
The Supreme Court in Ayotte provided that three
interrelated principles should inform a court’s approach to
remedies when confronting a statute that may be applied in a
15 manner that violates constitutional rights. Id. at 329-30.
First, it affirmed again that the “‘normal rule’ is that
‘partial, rather than facial, invalidation is the required
course,’ such that a ‘statute may . . . be declared invalid to
the extent that it reaches too far, but otherwise left
intact.’” Id. at 329 (citing Brockett v. Spokane Arcades,
Inc., 472 U.S. 491, 504 (1985); Tennessee v. Garner, 471 U.S. 1
(1985); United States v. Grace, 461 U.S. 171, 180-83 (1983)).
The Court noted that “we try not to nullify more of a
legislature’s work than is necessary, for we know that ‘[a]
ruling of unconstitutionality frustrates the intent of the
elected representatives of the people.’” Id. (quoting Regan v.
Time, Inc., 468 U.S. 641, 652 (1984) (plurality opinion)).
Second, the Supreme Court instructed that a court should
not supplant the legislature by “rewriting state law to conform
it to constitutional requirements even as we strive to salvage
it.” Id. at 329 (alteration and internal quotation marks
omitted). The Court noted that “[o]ur ability to devise a
judicial remedy that does not entail quintessentially
legislative work often depends on how clearly we have already
articulated the background constitutional rules at issue and
how easily we can articulate the remedy.” Id. The Court
cautioned that “making distinctions in a murky constitutional
context, or where line-drawing is inherently complex, may call
16 for a ‘far more serious invasion of the legislative domain’
than we ought to undertake.” Id. at 330 (quoting United States
v. Treasury Employees, 513 U.S. 454, 479 n.26 (1995)).
Third, the Supreme Court emphasized that “the touchstone
for any decision is legislative intent, for a court cannot ‘use
its remedial powers to circumvent the intent of the
legislature.’” Id. (quoting Califano v. Westcott, 443 U.S. 76,
94 (1979)(Powell, J., concurring in part and dissenting in
part); Dorchy v. Kansas, 264 U.S. 286, 289-90 (1924)). The
Court stated that “after finding an application or portion of a
statute unconstitutional,” courts must “ask: Would the
legislature have preferred what is left of its statute to no
statute at all?” Id. Moreover, the Court cautioned against
allowing legislatures to rely on a court’s intervention by
crafting a statute that applies broadly and having the courts
carve out provisions from it that are unconstitutional. Id.
In fashioning a remedy in this instance, we will attempt
to nullify no more of the legislature’s work than is necessary.
This is consistent with Virginia jurisprudence, which requires
that we “‘construe the plain language of a statute to have
limited application if such a construction will tailor the
statute to a constitutional fit.’” McDonald, 274 Va. at 260
(quoting Virginia Soc. for Human Life v. Caldwell, 256 Va. 151,
157 n.3, 500 S.E.2d 814, 817 n.3 (1998)). The “as-applied”
17 remedy is simple to fashion in this case, given the Lawrence
decision’s articulation of the contexts in which a state can
criminalize sodomy. See Lawrence, 539 U.S. at 578. In
accordance with the Lawrence decision, Code § 18.2-361(A)
cannot criminalize private, noncommercial sodomy between
consenting adults, but it can continue to regulate other forms
of sodomy, such as sodomy involving children, forcible sodomy,
prostitution involving sodomy and sodomy in public. The easy
to articulate remedy is that Code § 18.2-361(A) is invalid to
the extent its provisions apply to private, noncommercial and
consensual sodomy involving only adults.
It should be noted that this is not the instance about
which the Supreme Court cautioned in Ayotte, in which a
legislature drafts a broad statute and relies upon the courts
for intervention. Rather, this is an instance when a statute
was considered constitutional when it was passed, but certain
applications of the statute were declared unconstitutional by a
subsequent Supreme Court opinion. The intent of the
legislature was to prohibit all sodomy, which it could do
constitutionally at the time Code § 18.2-361(A) was originally
passed by the legislature.
Although the General Assembly removed certain anti-sodomy
language from Code § 18.2-361(A) in 2014, in the same act it
amended other statutes to ensure that sodomy with a minor or
18 solicitation of sodomy with a minor would be a crime. 2014
Acts ch. 794. Currently, the Code of Virginia criminalizes
sodomy involving adults and minors in numerous ways and thus
shows clearly that our upholding convictions under the instant
version of Code § 18.2-361(A) for offenses involving children
is consistent with legislative intent. See, e.g., Code § 18.2-
63 (stating that an adult who engages in “sexual intercourse,
cunnilingus, fellatio, anilingus, anal intercourse, and animate
and inanimate object sexual penetration” with a minor between
13 years of age and 15 years of age is guilty of a Class 4
felony); Code § 18.2-370 (stating that an adult “who, with
lascivious intent, knowingly and intentionally” “propose[s]” to
a child under the age of 15 “the performance of an act of
sexual intercourse, anal intercourse, cunnilingus, fellatio, or
anilingus” is guilty of a Class 5 felony); Code § 18.2-371
(stating that any adult who “engages in consensual sexual
intercourse or anal intercourse with or performs cunnilingus,
fellatio, or anilingus upon or by a child 15 or older not his
spouse, child, or grandchild is guilty of a Class 1
misdemeanor”); Code § 18.2-374.3 (stating that it is a Class 5
felony for an adult to use a communications system to
“[p]ropose to [a minor under 15 years of age] the performance
of an act of sexual intercourse, anal intercourse, cunnilingus,
fellatio, or anilingus”). Moreover, the Code criminalizes
19 prostitution involving sodomy, Code § 18.2-346, sodomy in
public, Code § 18.2-387, and forcible sodomy, Code § 18.2-
67.1(A). Given the General Assembly’s decision to criminalize
sodomy in these contexts, upholding the portions of Code §
18.2-361(A) that are constitutional clearly follows legislative
intent.
After consideration of the factors articulated by the
Supreme Court in Ayotte, we hold that it is proper to apply the
“normal rule” by prohibiting those applications of Code § 18.2-
361(A) that are unconstitutional and leaving the constitutional
applications of Code § 18.2-361(A) to be enforced. This remedy
is an exercise in judicial restraint because it allows the
constitutional portions of a statute passed by the General
Assembly to remain in effect and reflects the legislative
preferences exhibited by the Code and the subsequent acts of
the General Assembly.
Conclusion
Accordingly, for the reasons stated, we will affirm the
judgment of the Court of Appeals.
Affirmed.
JUSTICE MIMS, concurring.
I concur with the majority’s conclusion that former Code §
18.2-361(A) was not facially unconstitutional and was
20 enforceable under the facts of this case. I write separately
because I do not agree that the Court should reach this issue
(raised for the first time on appeal) under the good cause
exception provided by Rule 5:25. I also write to explain why I
find the Fourth Circuit panel majority’s opinion in MacDonald
v. Moose, 710 F.3d 154 (4th Cir. 2013), unpersuasive.
Toghill raised the issue presented here for the first time
to the Court of Appeals. He invited that court to reach it
under the ends of justice exception provided by Rule 5A:18.
The court declined his invitation. Rather, it addressed the
issue on the ground that it raised a question of subject matter
jurisdiction. 1 Toghill v. Commonwealth, Record No. 2230-12-2,
slip op. at 3-4 (February 11, 2014) (unpublished). The Court
of Appeals then determined that former Code § 18.2-361(A) was
not facially unconstitutional and declined to “disturb the
ruling of the trial court.” Id. at 4.
Unlike the Court of Appeals, the majority opinion finds
good cause to reach the issue under Rule 5:25 because the
Fourth Circuit decided Moose between the time of Toghill’s
trial and his appeal. It creates the precedent that an
appellant may raise an issue for the first time on appeal
1 See Saunders v. Commonwealth, 62 Va. App. 793, 803, 753 S.E.2d 602, 607 (2014) (opining that courts lack jurisdiction to enter a criminal judgment upon a statute that is facially unconstitutional).
21 simply because a federal court addressed it in a non-binding
opinion after the state court has concluded its proceedings,
even though the appellant could have raised the issue there.
I believe that such a precedent weakens Rule 5:25.
Rule 5:25 provides that “No ruling of the trial court . .
. will be considered as a basis for reversal unless an
objection was stated with reasonable certainty at the time of
the ruling, except for good cause shown or to enable this Court
to attain the ends of justice.”
The purpose of the rule is to “afford the trial court an opportunity to rule intelligently on the issues presented, thus avoiding unnecessary appeals and reversals.” Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991). . . . Thus, the provisions of Rule 5:25 “protect the trial court from appeals based upon undisclosed grounds.” Fisher v. Commonwealth, 236 Va. 403, 414, 374 S.E.2d 46, 52 (1988). . . . The rule is not intended . . . “to obstruct petitioners in their efforts to secure writs of error, or appeals, but to put the record in such shape that the case may be heard in this Court upon the same record upon which it was heard in the trial court.” Kercher v. Richmond, Fredericksburg & Potomac R.R. Co., 150 Va. 108, 115, 142 S.E. 393, 395 (1928).
In analyzing whether a litigant has satisfied the requirements of Rule 5:25, this Court has consistently focused on whether the trial court had the opportunity to rule intelligently on the issue. “If [the] opportunity [to address an issue] is not presented to the trial court, there is no ruling by the trial court on the issue,
22 and thus no basis for review or action by this Court on appeal.” Riverside Hosp., Inc. v. Johnson, 272 Va. 518, 526, 636 S.E.2d 416, 420 (2006). An appellate court can only “determine whether or not the rulings and judgment of the court below . . . were correct.” Jackson [v. Chesapeake & Ohio Ry. Co.], 179 Va. [642,] 651, 20 S.E.2d [489,] 493 [(1942)].
Scialdone v. Commonwealth, 279 Va. 422, 437, 689 S.E.2d 716,
724 (2010) (internal alterations omitted).
Toghill could have presented the question at issue in this
appeal to the circuit court for its consideration. By
declining to do so, he prevented the circuit court from
reaching its own conclusion on the matter. We and the Court of
Appeals were able to consider the question because of its
jurisdictional implications. It is not necessary to open the
door for parties in future cases to take advantage of the good
cause exception to Rule 5:25 simply because a federal court has
decided an issue that was not submitted for the state court’s
consideration. We have previously held that the exception does
not apply when an appellant fails to raise an argument to a
circuit court for its consideration simply because the law, as
it stood when the case was pending there, was unfavorable to
the argument. Gheorghiu v. Commonwealth, 280 Va. 678, 688-89,
701 S.E.2d 407, 413 (2010). The majority opinion does not
distinguish that case.
23 With regard to the persuasive value of the Fourth Circuit
panel majority’s opinion in Moose, I agree with the majority’s
conclusion that it is wrongly decided insofar as it declares
former Code § 18.2-361(A) to be facially unconstitutional.
However, I also observe that the Fourth Circuit was in no
position to rule on that question at all. It arose there upon
a petition for review under 28 U.S.C. § 2254, following the
petitioner’s unsuccessful efforts on appellate and state habeas
review. 710 F.3d at 156.
As capably explained by Judge Diaz in his dissenting
opinion,
the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), [Pub. L. 104-132, §104, 110 Stat. 1214, 1218-19 (1996)], “limits the federal courts’ power to issue a writ to exceptional circumstances” where the state court decision on the merits “‘resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established [f]ederal law, as determined by the Supreme Court of the United States.’” Richardson v. Branker, 668 F.3d 128, 138 (4th Cir. 2012) (quoting 28 U.S.C § 2254(d)).
Id. at 167 (Diaz, J., dissenting) (alteration omitted).
Although the panel majority recited the relevant statutory
provision, it undertook no AEDPA analysis of either our opinion
deciding the petitioner’s direct appeal, McDonald v.
Commonwealth, 274 Va. 249, 645 S.E.2d 918 (2007), or Martin v.
24 Ziherl, 269 Va. 35, 607 S.E.2d 367 (2005), on which it was
principally grounded. It did not conclude, as AEDPA required,
that our decision in either case “was contrary to, or an
unreasonable application of” Lawrence v. Texas, 539 U.S. 558
(2003), or any other decision of the Supreme Court of the
United States.
Consequently, the Fourth Circuit panel majority decided an
issue without authority. 2 Fundamental principles of comity and
federalism are offended when a federal court’s reach exceeds
its statutory grasp.
Accordingly, I find the Fourth Circuit panel majority’s
opinion wholly unpersuasive and reject its application in
Virginia courts.
JUSTICE McCLANAHAN, concurring.
On appeal to this Court, Toghill challenges Code § 18.2-
361(A) as unconstitutional. Toghill did not, however,
challenge the constitutionality of Code § 18.2-361(A) at any
point during the circuit court proceedings. Faced with exactly
2 While the United States Supreme Court declined to review the Fourth Circuit’s decision, Moose v. MacDonald, U.S., 134 S.Ct. 200 (2013), “the denial of a writ of certiorari imports no expression of opinion upon the merits of the case. The variety of considerations that underlie denials of the writ counsels against according denials of certiorari any precedential value.” Teague v. Lane, 489 U.S. 288, 296 (1989) (internal citations, quotation marks, and alteration omitted).
25 this circumstance in McDonald v. Commonwealth, 274 Va. 249, 645
S.E.2d 918 (2007), this Court held that Rule 5:25 barred
consideration of the petitioner's constitutional challenge on
appeal. Id. at 255, 645 S.E.2d at 921; Riner v. Commonwealth,
268 Va. 296, 325 n.11, 601 S.E.2d 555, 571 n.11 (2004) ("Under
this Court's contemporaneous objection rule, see Rule 5:25, we
do not consider a constitutional argument raised for the first
time on appeal.") That the Fourth Circuit issued a non-binding
opinion that Code § 18.2-361(A) is unconstitutional after the
circuit court proceedings concluded does not excuse Toghill's
failure to himself challenge the constitutionality of the
statute during the proceedings. Commonwealth v. Jerman, 263
Va. 88, 94, 556 S.E.2d 754, 757 (2002); McGhee v. Commonwealth,
280 Va. 620, 625, 701 S.E.2d 58, 60-61 (2010). Even if Toghill
believed a constitutional challenge would fail given the
authority available at that time, "[t]he perceived futility of
an [argument] does not excuse a defendant's procedural default
at trial." Id., 701 S.E.2d at 61. Consistent with our
precedent, I would hold that Rule 5:25 bars the Court's
consideration of Toghill's appeal. McDonald, 274 Va. at 255,
645 S.E.2d at 921; id.; see also Brandon v. Cox, 284 Va. 251,
254–56, 736 S.E.2d 695, 696–97 (2012); Edmonds v. Coldwell
Banker Residential Real Estate Servs., Inc., 237 Va. 428, 433,
377 S.E.2d 443, 446 (1989). Rule 5:25 does provide an exception for good cause, but
Toghill has not at any point attempted to even allege good
cause. The majority asserts it may raise sua sponte the good
cause exception, citing as support the Court's invocation sua
sponte of the ends of justice exception. While "this Court [is
able] to attain the ends of justice," the Court may apply the
good cause exception only "for good cause shown" by a party,
not for good cause discovered by this Court. Rule 5:25
(emphasis added); see Rule 5:9(d) (distinguishing between a
"motion for good cause shown" and a "sua sponte order of this
Court"). * Indeed, this Court has declined to sua sponte invoke
the good cause exception where the law changed under binding
decisions by this Court and by the Supreme Court of the United
States, in stark contrast to the merely persuasive Fourth
Circuit opinion. Jerman, 263 Va. at 94, 556 S.E.2d at 757;
McGhee, 280 Va. at 625, 701 S.E.2d at 60-61. And to be sure,
the Fourth Circuit's issuance of a non-binding opinion cannot,
and did not, carry Toghill's burden to show good cause to this
Court.
Finding the appeal barred under 5:25, I would affirm the
* This is analogous to, for example, a show cause order, which creates a burden on the party to whom the order is directed to present the Court with evidence establishing good cause. See, e.g., Rule 5:1(A) (show cause order issued "to counsel or a party not represented by an attorney").