Harry Garfield Chadderton v. Commonwealth of Virginia ( 2014 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Beales and Chafin
UNPUBLISHED
Argued at Richmond, Virginia
HARRY GARFIELD CHADDERTON
MEMORANDUM OPINION* BY
v. Record No. 0827-13-2 JUDGE TERESA M. CHAFIN
FEBRUARY 11, 2014
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
Buford M. Parsons, Jr., Judge Designate
Russell N. Allen for appellant.
Steven A. Witmer, Senior Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on briefs), for appellee.
Harry Garfield Chadderton (“Chadderton”) was convicted of solicitation of prostitution in
violation of Code § 18.2-346 in the Circuit Court of Henrico County (“circuit court”). On
appeal, Chadderton contends that the evidence presented by the Commonwealth was insufficient
to support his conviction. Specifically he argues that his statements and offer of forty dollars to
an undercover police officer posing as a prostitute were insufficient to establish that he was
soliciting anilingus. We disagree, and affirm the circuit court’s decision.
I. BACKGROUND
“On appeal, ‘we review the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth,
26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App.
438, 443, 358 S.E.2d 415, 418 (1987)). So viewed, the evidence establishes that on August 28,
2012, Chadderton approached Detective Wallace (“Wallace”), an undercover detective posing as
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
a prostitute, and stated that he wanted to “lick [her] ass.” Wallace asked Chadderton how much
money he had, and Chadderton responded that he had forty dollars. Wallace asked Chadderton
to show her the money, and he did. She then told him that she had a room at a nearby hotel.
Chadderton followed Wallace to her hotel room, where he was arrested by a team of police
officers. During his encounter with Wallace, Chadderton requested to “lick her ass” twice. He
admitted to the arresting police officers that he offered Wallace forty dollars in exchange for that
sexual act.
II. ANALYSIS
When reviewing the sufficiency of evidence, this Court “must . . . ask whether ‘any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.’” Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384, 387 (2003)
(emphasis in original) (quoting Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444,
447 (2003) (en banc)). In the present case, Chadderton argues that the Commonwealth failed to
prove that he was soliciting a sexual act listed in Code § 18.2-346, and thus failed to prove an
element of the offense for which he was convicted. We disagree.
Code § 18.2-346(B) states that “[a]ny person who offers money or its equivalent to
another for the purpose of engaging in sexual acts as enumerated [in subsection A] and thereafter
does any substantial act in furtherance thereof shall be guilty of solicitation of prostitution and
shall be guilty of a Class 1 misdemeanor.” Code § 18.2-346(A) enumerates the following acts:
“adultery, fornication or any act in violation of [Code] § 18.2-361.”1 Code § 18.2-361(A) is
1
Recently, the Fourth Circuit held that Code § 18.2-361 was facially unconstitutional in
MacDonald v. Moose, 710 F.3d 154 (4th Cir. 2013). In light of this decision, we requested
additional briefing from the parties on the following issues: “1) Does a decision from the U.S.
Court of Appeals for the Fourth Circuit stemming from a federal habeas petition create binding
precedent on this Court if that decision holds that a Virginia statute is facially unconstitutional?
Specifically, does the decision in MacDonald v. Moose, 710 F.3d 1154 (2013), overturn
McDonald v. Commonwealth, 274 Va. 249, 645 S.E.2d 918 (2007), as binding precedent on this
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violated if a person “carnally knows any male or female person by the anus or by or with the
mouth.” The term “carnal knowledge” has been construed to refer to “any sexual bodily
connection . . . .” Shull v. Commonwealth, 16 Va. App. 667, 669, 431 S.E.2d 924, 925 (1993).
“Cunnilingus, fellatio, anilingus, and anal intercourse are acts of carnal knowledge of any male
or female person by the anus or by or with the mouth” in violation of Code § 18.2-361(A).
Chaine v. Commonwealth, 17 Va. App. 179, 185, 436 S.E.2d 187, 190-91 (1993) (emphasis
added), aff’d upon reh’g en banc, 18 Va. App. 301, 443 S.E.2d 924 (1994). Anilingus is defined
as “erotic stimulation achieved by contact between [the] mouth and anus.” Webster’s Third New
International Dictionary 85 (1981).
Chadderton claims that his request to “lick [Wallace’s] ass” does not constitute a request
to perform the prohibited act of anilingus described in Code § 18.2-361(A). A reasonable fact
finder, however, could have reached the opposite conclusion. Chadderton approached a woman
posing as a prostitute and offered her forty dollars for a sex act involving the licking of her anal
region. Although Chadderton did not solicit anilingus by using that specific term, a reasonable
fact finder could have concluded that his statements were made for the purpose of engaging in
anilingus. “Slang expressions, including vernacular for sexual activity, are well known and
matters of common knowledge.” Branche v. Commonwealth, 25 Va. App. 480, 491, 489 S.E.2d
692, 697 (1997) (upholding conviction for the solicitation of fellatio based on defendant’s use of
Court?” and “2) If MacDonald v. Moose, 710 F.3d 1154 (2013), does overturn McDonald v.
Commonwealth, 274 Va. 249, 645 S.E.2d 918 (2007), what impact does that have on Code
§ 18.2-346?” Following our request for additional briefing, this Court addressed the same issues
in Saunders v. Commonwealth, ___ Va. App. ___, ___ S.E.2d ___ (Feb. 4, 2014), and concluded
that the Fourth Circuit’s decision in MacDonald did not create binding precedent on this Court.
See also 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.”); Anderson v.
Commonwealth, 48 Va. App. 704, 712-13 n.2, 634 S.E.2d 372, 376 n.2 (2006) (“Only decisions
of the United States Supreme Court can supersede binding precedent from the Virginia Supreme
Court.”).
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the term “blowing”). “‘It would be completely unrealistic to require . . . [the description of] the
acts constituting the commission of crimes in statutory or technical language in order to prove
the commission of such acts.’” Id. (quoting Anderson v. State, 235 S.E.2d 675, 676-77
(Ga. Ct. App. 1977)).
The Commonwealth’s evidence was competent, was not inherently incredible, and was
sufficient to prove beyond a reasonable doubt that appellant was guilty of soliciting a prostitute
in violation of Code § 18.2-346. Accordingly, the judgment of the circuit court is affirmed.
Affirmed.
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