THE CIRCUIT COURT OF PITTSYLVANIA COUNTY Stacey W. Moreau,
L. Berger (Berger & Thornhill, on brief), for appellant.
Murphy, Senior Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Present: Judges Petty, O'Brien and Russell Argued at
G. RUSSELL, JR. JUDGE
Anderson Warren was convicted in a bench trial of soliciting
another person "to carnally know a brute animal or to
submit to carnal knowledge with a brute animal" in
violation of Code §§ 18.2-29 and 18.2-361(A).
He asserts on appeal that the trial court erred in failing to
dismiss the indictment because Code § 18.2-361(A) is
unconstitutional in that it criminalizes "private sexual
conduct of consenting adults." For the reasons that
follow, we disagree and affirm the judgment of the trial
the evidence in the light most favorable to the Commonwealth
as the prevailing party below. Tucker v.
Commonwealth, 268 Va. 490, 492 (2004). So viewed, the
evidence established that, in October of 2016, Warren
videotaped on his cellphone encounters he had with K.H. and
her dog. The videos were sexual in nature and showed, among
other things, the dog's tongue penetrating K.H.'s
vagina while K.H. performed oral sex on Warren. Warren can be
heard on the videos encouraging the dog and directing K.H. to
position her legs so as to give the dog improved access to
her body. The videos were played at trial.
March of 2017, Deputy Sheriff Adam Reynolds spoke with Warren
on an unrelated matter. Unprompted, Warren asked Reynolds if
"bestiality type stuff" was "legal or
illegal," described the cellphone videos, and offered to
show them to Reynolds. Reynolds did not view the videos, but
contacted Investigator Janet Sergeant. Although Warren
volunteered to show the videos to the officers, they obtained
a search warrant before removing the videos from Warren's
cellphone. Sergeant testified that she viewed the videos and
recognized the voices of K.H. and Warren.
moved to dismiss the indictment on constitutional grounds.
Specifically, he argued that Code § 18.2-361(A) was both
facially unconstitutional and unconstitutional as applied to
him after the United States Supreme Court's decision in
Lawrence v. Texas, 539 U.S. 558 (2003). He argued
that the conduct depicted in the videos could not be subject
to criminal sanction because it amounted to nothing more than
consensual sexual conduct involving adults.
trial court held a hearing on the motion on August 14, 2017.
After hearing the arguments of the parties, the trial court
denied the motion.
matter proceeded to trial. Warren did not offer any evidence.
Instead, in addition to his constitutional arguments, he
argued that the activities depicted in the videos were
insufficient to establish a violation of Code §§
18.2-29 and 18.2-361(A). The trial court rejected his
arguments, finding that the videos demonstrated that Warren
had solicited K.H. to engage in sexual conduct with an animal
and that she had done so. Accordingly, the trial court
convicted Warren of the charged offense.
appeal, Warren does not challenge the sufficiency of the
evidence to support his conviction. Rather, he limits his
challenge to the constitutionality of Code §
18.2-361(A), asserting that it violates his due process
rights. He argues that the statute is both facially
unconstitutional and unconstitutional as applied to his
conduct depicted in the videos, which he contends is nothing
more than "private sexual conduct of consenting
Standard of Review
challenging the constitutionality of Code § 18.2-361(A),
Warren raises a question of law subject to de novo
review. Shivaee v. Commonwealth, 270 Va. 112, 119
(2005). Our review of such questions begins with the
presumption that the enactments of the General Assembly are
constitutional. Marshall v. N. Va. Transp. Auth.,
275 Va . 419, 427 (2008). "[E]very reasonable doubt
regarding the constitutionality of a legislative enactment
must be resolved in favor of its validity." Id.
at 428. Although Congress may act only pursuant to a grant of
enumerated power, United States v. Comstock, 560
U.S. 126, 133 (2010), the General Assembly is not so limited,
Harrison v. Day, 201 Va. 386, 396 (1959) ("The
Constitution of the State is not a grant of legislative
powers to the General Assembly, but is a restraining
instrument only, and, except as to matters ceded to the
federal government, the legislative powers of the General
Assembly are without limit."). Thus, "unless [a]
statute clearly violates a provision of the United States or
Virginia Constitutions[, ]" the General Assembly has the
power to enact it. Marshall, 275 Va. at 427.
Code § 18.2-361(A)
time of the offense, Code § 18.2-361(A) provided that
"[i]f any person carnally knows in any manner any brute
animal or voluntarily submits to such carnal knowledge, he is
guilty of a Class 6 felony." This version, which is
currently in force, was adopted by the General Assembly in
2014. 2014 Va. Acts 794.
Warren was charged under the 2014 version of the statute, his
constitutional challenge partially turns on cases dealing
with an earlier version. Because it is necessary to fully
explain the issues and authorities raised by Warren, we note
that, prior to the 2014 amendment, Code § 18.2-361(A)
was broader, providing that "[i]f any person carnally
knows in any manner any brute animal, or carnally knows any
male or female person by the anus or by or ...