COURT OF APPEALS OF VIRGINIA 

Present: Judges Humphreys, Kelsey and Senior Judge Overton 

Argued at Chesapeake, Virginia 

ANDY JOE TJAN 

 OPINION BY 

v. Record No. 3221-03-1 JUDGE ROBERT J. HUMPHREYS 

 NOVEMBER 8, 2005 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

Edward W. Hanson, Jr., Judge 

 (James O. Broccoletti; Zoby & Broccoletti, P.C., on brief), for 

appellant.1

 William E. Thro, State Solicitor General (Judith Williams Jagdmann, 

Attorney General; Matthew M. Cobb, Associate State Solicitor 

General, on brief), for appellee. 

 Appellant Andy Joe Tjan (“Tjan”) appeals his conviction, following a conditional guilty 

plea, for solicitation to commit oral sodomy, in violation of Code §§ 18.2-29 and 18.2-361. 

Based on the holding of the United States Supreme Court in Lawrence v. Texas, 539 U.S. 558 

(2003), Tjan contends that Code § 18.2-361 is facially invalid because it violates his Fourteenth 

Amendment rights to equal protection and due process of law. And, because the statute is 

facially unconstitutional, Tjan concludes that he cannot be convicted for attempting, through 

solicitation, to violate that statute. In the alternative, Tjan contends that Code § 18.2-361 is 

unconstitutional because it is both overbroad and void for vagueness. For the reasons that 

follow, we hold that Tjan lacks standing to argue that Code § 18.2-361 is facially 

 1

 This case was consolidated with Singson v. Commonwealth, ___ Va. App. ___, ___ 

S.E.2d ___ (2005) (this day decided), for purposes of oral argument. Gregory R. Nevins, 

counsel of record in Singson, presented a single oral argument encompassing both cases. 
- 2 - 

unconstitutional because it violates the Due Process Clause of the Fourteenth Amendment and 

that he also lacks standing to contend that the statute is constitutionally overbroad. We further 

hold that the statute does not violate the Equal Protection Clause and is not void for vagueness. 

Accordingly, we affirm the judgment below. 

I. BACKGROUND 

The relevant facts are not in dispute.2

 On March 19, 2003, Tjan walked into a public 

restroom located in a department store. As Tjan was washing his hands, he looked into one of 

the restroom stalls and saw an undercover police officer. Tjan began tapping his foot against the 

bathroom stall “in a covert effort to solicit sexual favors.” The officer asked Tjan what he 

wanted, and Tjan responded, “I want you” and pretended to suck one of his fingers. Tjan “then 

acknowledged affirmatively to the officer that he wanted to suck the officer’s penis and that he 

wanted to do this in one of the stalls of the restroom right there and then.” 

On April 21, 2003, a grand jury indicted Tjan for “command[ing], entreat[ing] or 

otherwise attempt[ing] to persuade another to commit a felony,” specifically, “Crimes Against 

Nature,” in violation of Code §§ 18.2-361 and 18.2-29. At the arraignment hearing, conducted 

on November 24, 2003, Tjan moved to dismiss the indictment, arguing that Code § 18.2-361 is 

facially unconstitutional, “is overbroad and [contains] within its prohibitions activities that are 

 2

 Rather than orally proffering the facts of the case during the arraignment hearing, the 

parties submitted a written “Stipulation of Facts.” This stipulation, which was not included in 

the appendix filed on appeal, is the only part of the record detailing the specific facts of this case. 

According to Rule 5A:25(c), the appendix “shall include” all “incidents of the case germane to 

the questions presented.” By neglecting to include the “Stipulation of Facts” in the appendix, 

Tjan failed to comply with Rule 5A:25 because he omitted vital “incidents of the case” that are 

“germane to the questions presented.” However, according to Rule 5A:25(h), this Court “may” 

consider parts of the record other than the appendix when ruling on the merits of an appeal. 

Because the relevant facts are undisputed, we will exercise our discretion to consider the 

“Stipulation of Facts” and, thus, to decide the merits of this appeal. But see Patterson v. City of 

Richmond, 39 Va. App. 706, 717, 576 S.E.2d 759, 764-65 (2003) (declining to reach merits of an 

assignment of error where “the appendix filed in [the] case [did] not contain parts of the record 

that [were] essential to the resolution of the issue before us”). 
- 3 - 

constitutionally protected,” “is void for vagueness under the due process clause,” “encourages 

arbitrary and discriminatory enforcement of the law,” and “violates the equal protection clause of 

the Unites States [C]onstitution” because the Commonwealth “only prosecutes that conduct 

which occurs in privacy between homosexuals.” The trial court, relying on the reasons advanced 

in its earlier decision in a similar case, see Singson v. Commonwealth, ___ Va. App. ___, ___ 

S.E.2d ___ (2005) (this day decided), denied the motion to dismiss.3

 Tjan entered a conditional 

guilty plea, and he now appeals. 

II. ANALYSIS 

Tjan contends that Code § 18.2-361 is facially invalid because it violates his Fourteenth 

Amendment rights to equal protection and due process of law. In the alternative, Tjan contends 

that Code § 18.2-361 is unconstitutionally overbroad and void for vagueness. For the reasons 

that follow, we affirm the judgment below. 

A. Whether Code § 18.2-361 Is Facially Unconstitutional Because It Violates the Due Process 

Clause of the Fourteenth Amendment 

Citing Lawrence v. Texas, 539 U.S. 558 (2003), Tjan initially contends that Code 

§ 18.2-361 is facially unconstitutional because it criminalizes private acts of consensual sodomy, 

thus offending the Due Process Clause of the Fourteenth Amendment. Tjan reasons that, 

because Code § 18.2-361 is facially unconstitutional, he cannot be prosecuted for violating the 

terms of the statute even though his attempted conduct falls within the scope of that statute. 

However, for the reasons advanced in Singson, ___ Va. App. ___, ___ S.E.2d ___, we hold that 

Tjan lacks standing to assert this claim. And, because application of Code § 18.2-361 to public 

 3

 In Singson, the trial court reasoned 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, ___ Va. App. at ___, ___ 

S.E.2d at ___. 
- 4 - 

sexual conduct does not implicate the more narrow liberty interest upheld in Lawrence, see

Singson, ___ Va. App. at ____, ____ S.E.2d at ___, we further hold that application of Code 

§ 18.2-361 under the circumstances of this case does not violate the Due Process Clause of the 

Fourteenth Amendment. 

B. Whether Code § 18.2-361 Is Unconstitutionally Overbroad

In the alternative, Tjan contends that Code § 18.2-361 is unconstitutionally overbroad, 

reasoning that the statute “contains within its provisions prohibitions against activities that are 

constitutionally protected.” That is, because Code § 18.2-361 encompasses “constitutionally 

protected conduct between consenting adults,” Tjan reasons that the statute is facially 

unconstitutional. 

However, outside the context of a First Amendment challenge,4

 when a statute is 

constitutional as applied to a litigant, the litigant has no standing to challenge the statute on the 

ground that it may be unconstitutional on its face—that is, as applied to a third person in a 

hypothetical situation. County Court of Ulster County v. Allen, 442 U.S. 140, 154-55 (1979). 

And, as noted by the Virginia Supreme Court, “‘[w]hen overbreadth has only due process 

implications, [a defendant] has no standing to make a facial attack but only standing to challenge 

the statute as applied to his own conduct.’” Evans & Smith v. Commonwealth, 226 Va. 292, 

296, 308 S.E.2d 126, 129 (1983) (quoting Stanley v. City of Norfolk, 218 Va. 504, 508, 237 

S.E.2d 799, 802 (1977)). 

As Tjan concedes, his attempted conduct falls within the scope of Code § 18.2-361. See

Santillo v. Commonwealth, 30 Va. App. 470, 483, 517 S.E.2d 733, 740 (1999). And, because of 

its public nature, that conduct is not constitutionally protected. See Singson, ___ Va. App. at 

 4

 Tjan does not challenge the constitutionally of Code § 18.2-361 on the ground that the 

statute prohibits or chills expression protected by the First Amendment. Cf. Singson, ___ 

Va. App. at ___, ___ S.E.2d at ___. 
- 5 - 

___, ___ S.E.2d at ___. Because the statute is constitutional as applied to Tjan, and because 

Code § 18.2-361 does not implicate the First Amendment,5

 we hold that Tjan lacks standing to 

mount a facial overbreadth challenge to Code § 18.2-361. See Stanley, 218 Va. at 508, 237 

S.E.2d at 802 (holding that the appellant lacked standing to mount a facial overbreadth challenge 

to an ordinance where he did not “contend that his own conduct was constitutionally protected or 

that the ordinance [was] void for First Amendment overbreadth”); see also County Court of 

Ulster, 442 U.S. at 154-55; Evans & Smith, 226 Va. at 296, 308 S.E.2d at 129. 

C. Whether Code § 18.2-361 Is Void for Vagueness

Tjan also contends that Code § 18.2-361 is unconstitutional because it is void for 

vagueness. A criminal statute is deemed unconstitutionally vague if it “‘fails to give a person of 

ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute.’” 

Bouie v. Columbia, 378 U.S. 347, 351 (1964) (quoting United States v. Harriss, 347 U.S. 612, 

617 (1954)); see also Gray v. Commonwealth, 260 Va. 675, 681, 537 S.E.2d 862, 865 (2000) 

(“[A] ‘penal statute is void for vagueness if it fails to give a person of ordinary intelligence 

notice that his contemplated conduct is forbidden by the statute . . . .’” (quoting Woodfin v. 

Commonwealth, 236 Va. 89, 92, 372 S.E.2d 377, 379 (1988) (omission in original)). The 

void-for-vagueness rule is premised on the concept that “‘no man [should] be held criminally 

responsible for conduct which he could not reasonably understand to be proscribed.’” Bouie, 

378 U.S. at 351 (quoting Harriss, 347 U.S. at 617). Thus, the doctrine “‘protects two due process 

interests,’” first, requiring “‘that laws give the person of ordinary intelligence a reasonable 

 5

 See Singson, ___ Va. App. at ___, ___ S.E.2d at ___ (holding that Code § 18.2-361 

neither directly prohibits nor chills a substantial amount of constitutionally-protected speech); 

see also United States v. Dhingra, 371 F.3d 557, 561 (9th Cir. 2004) (holding that a statute 

prohibiting individuals from inducing a minor “to engage in prostitution or any sexual activity” 

does not jeopardize speech because it “only criminalizes conduct,” noting that “speech is merely 

the vehicle through which a pedophile ensnares the victim” (internal quotations omitted)). 
- 6 - 

opportunity to know what is prohibited, so that he may act accordingly,’” and second, 

“prevent[ing] arbitrary and discriminatory enforcement by requiring that laws . . . provide 

explicit standards to those who apply them.’” Parker v. Commonwealth, 24 Va. App. 681, 687, 

485 S.E.2d 150, 153 (1997) (quoting Coleman v. City of Richmond, 5 Va. App. 459, 466, 364 

S.E.2d 239, 243 (1988)) (internal quotations omitted) (omission in original). 

As we have held, Code § 18.2-361 satisfies the void-for-vagueness test because the 

statutory text clearly identifies the specific, prohibited conduct in a manner that no reasonable 

person could misunderstand. See Santillo, 30 Va. App. at 483, 517 S.E.2d at 740 (“We hold that 

Code § 18.2-361 is not unconstitutionally vague either on its face or as applied to appellant.”). 

As we noted in Santillo, “Code § 18.2-361 is sufficiently clear to inform both citizens and law 

enforcement officers of what acts constitute carnal knowledge ‘by or with the mouth.’” Id. at 

484, 517 S.E.2d at 740. And, because “‘the terms of the statute, when measured by common 

understanding and practices, sufficiently warns a person as to what behavior is prohibited, [] the 

statute is not unconstitutionally vague.’” Id. (quoting Stein v. Commonwealth, 12 Va. App. 65, 

69, 402 S.E.2d 238, 241 (1991)); see also Pedersen v. Richmond, 219 Va. 1061, 1066, 254 

S.E.2d 95, 98 (1979) (upholding an ordinance prohibiting solicitation of “any act which is lewd, 

lascivious, or indecent,” reasoning that “[a] person of even limited intelligence is on notice from 

the provisions of [the ordinance] that solicitation of sodomy is thereby forbidden”). 

Tjan argues, however, that upholding the statute in the context of “public” acts of sodomy 

renders the statute void for vagueness because “the precise definition of what constitutes ‘public’ 

conduct and what is ‘private’ conduct is not an easy task.” Initially, we note that—contrary to 

Tjan’s assertion—this Court is not “rewriting” the statute and adding “a locational (i.e., ‘public’) 

element to the offense.” Rather, we are merely conducting an as-applied analysis, considering 

whether application of the statute was constitutional under the circumstances of this case. See 
- 7 - 

generally Broadrick v. Oklahoma, 413 U.S. 601, 610-11 (1973) (noting that the principle that 

“constitutional rights are personal and may not be asserted vicariously” “reflect[s] the conviction 

that under our constitutional system courts are not roving commissions assigned to pass 

judgment on the validity of the Nation’s laws”). 

Nevertheless, as we have noted, “[t]he term ‘in public’ is an ordinary, everyday 

expression with a plain meaning.” Crislip v. Commonwealth, 37 Va. App. 66, 71, 554 S.E.2d 

96, 98 (2001). Specifically, a “public” location “is a place in open view, visible to the 

community.” Id. Because a “person of ordinary intelligence,” Bouie, 378 U.S. at 351, would 

understand that Code § 18.2-361 prohibits individuals from engaging in the proscribed acts in “a 

place in open view, visible to the community,” Crislip, 37 Va. App. at 71, 554 S.E.2d at 98, we 

hold that applying Code § 18.2-361 to public acts of sodomy does not render the statute void for 

vagueness. 

Moreover, as noted by the Virginia Supreme Court “[o]ne to whose conduct a statute 

clearly applies may not successfully challenge it for vagueness.” Commonwealth v. Hicks, 267 

Va. 573, 581, 596 S.E.2d 74, 78 (2004). In this case, as discussed above, Tjan’s conduct clearly 

falls within the scope of the statute. Accordingly, he “may not successfully challenge it for 

vagueness.” Id.; see also Muhammad v. Commonwealth, 269 Va. 451, 501, 611 S.E.2d 537, 

565-66 (2005) (“One who engages in conduct that is clearly proscribed and not constitutionally 

protected may not successfully attack a statute as void for vagueness based upon the hypothetical 

conduct of others.”); Boyd v. County of Henrico, 42 Va. App. 495, 519, 592 S.E.2d 768, 780 

(2004) (en banc) (“[O]ne who engages in some conduct that is clearly proscribed cannot 

complain of the vagueness of the law as applied to the conduct of others.” (internal quotations 

omitted)). 
- 8 - 

Tjan also argues, however, that Code § 18.2-361 is void for vagueness because the statute 

“is subjectively enforced only against homosexuals.” In the context of a void-for-vagueness 

challenge, however, a statute will be declared unconstitutional only if the statutory language 

“‘authorizes or encourages arbitrary and discriminatory enforcement.’” Boyd, 42 Va. App. at 

520, 592 S.E.2d at 780-81 (quoting Hill v. Colorado, 530 U.S. 703, 732 (2000)). Although 

actual selective enforcement of a statute might give rise to an equal protection challenge, see id.

at 522, 592 S.E.2d at 781, the statute itself will not be struck down as unconstitutionally vague 

“unless its clarity has been ‘designedly avoided so as to allow the net to be cast at large.’” Id. at 

520, 592 S.E.2d at 781 (quoting Papachriston v. City of Jacksonville, 405 U.S. 156, 166 

(1972)).6 

Put simply, the void-for-vagueness test “forbids [] a law that, by its expansive sweep of 

language, enacts an elastic definition of illegality—one that authorizes an officer to define for 

himself what is and is not legal.” Id. at 521, 592 S.E.2d at 781. Nothing in the language of Code 

§ 18.2-361 “goes that far.” Id. Because the language of Code § 18.2-361 does not “authorize[] 

an officer to define for himself what is and is not legal,” id., we hold that the statute is not void 

for vagueness. Cf. Coleman, 5 Va. App. at 466, 364 S.E.2d at 244 (invalidating statute 

prohibiting individuals from loitering “in a manner or under circumstances manifesting the 

purpose of engaging in prostitution,” reasoning that “the ordinance vests too much discretion in 

the officers who enforce the ordinance” because “people are permitted to wander or stand idly at 

the whim of whichever police officer is on the beat”). 

 6

 Said differently, in an equal protection challenge, the overriding inquiry is whether the 

statute is, in fact, being selectively enforced. In a void-for-vagueness challenge, the overriding 

inquiry is whether the statutory language is so vague that, of necessity, police must use their 

discretion when determining whether the statue is being violated, thus creating an unacceptable 

risk of selective enforcement. 
- 9 - 

D. Whether Code § 18.2-361 Violates the Equal Protection Clause

Finally, Tjan argues that the sodomy statute is facially unconstitutional because it violates 

the Equal Protection Clause of the Fourteenth Amendment. For the reasons that follow, we 

disagree. 

The Equal Protection Clause proclaims that “[n]o State shall . . . deny to any person 

within its jurisdiction the equal protection of laws.” U.S. Const. amend. XIV, § 1. The central 

mandate of the equal protection guarantee is that “the sovereign may not draw distinctions 

between individuals based solely on differences that are irrelevant to a legitimate governmental 

objective.” Lehr v. Robertson, 463 U.S. 248, 265 (1983). 

Code § 18.2-361 does not, on its face, draw distinctions between homosexual and 

heterosexual individuals. As the Commonwealth notes, the statute applies equally to all citizens, 

regardless of sexual orientation. That is, a man and a woman who engage in public sodomy are 

subject to prosecution, as are two men who engage in public sodomy. See Branche v. 

Commonwealth, 25 Va. App. 480, 487, 489 S.E.2d 692, 695 (1997) (“Under the statutory 

scheme, all persons, male or female[,] whether heterosexual or homosexual, who solicit another 

to commit an act of sodomy are guilty of a Class 6 felony.”). 

Tjan argues, however, that Code § 18.2-361 violates the Equal Protection Clause because 

“public sodomy is the only public sexual conduct that is punished as a felony,” and “[n]o law 

directly prohibits [public] heterosexual intercourse.” Because “public oral sex is a felony, while 

public heterosexual copulation is, at most, a misdemeanor,” Tjan concludes that “[t]he 

differences in punishment” are “something the Equal Protection Clause does not permit.”7

 7

 Although Tjan raises the issue of selective enforcement in the context of his 

void-for-vagueness challenge, Tjan does not argue that Code § 18.2-361 violates the Equal 

Protection Clause because it constitutes a “facially neutral law [that] is being applied in 

discriminatory manner.” Branche, 25 Va. App. at 488, 489 S.E.2d at 696. 
- 10 - 

However, in Branche—a case not cited by either party—we disposed of a virtually 

identical argument. In Branche, the appellant argued that Code § 18.2-361 violates the Equal 

Protection Clause because “females who solicit another to commit an act of oral sodomy for 

money can be convicted only of a misdemeanor, whereas men who solicit another to commit an 

act of oral sodomy, not for money, can be convicted of a felony.” Id. at 485, 489 S.E.2d at 695. 

We found no merit in this argument, noting that, “[b]y enacting a statute that forbids prostitution 

and another which forbids solicitation to commit a felony, the General Assembly has not drawn a 

distinction or made a classification between individuals who are similarly situated.” Id. at 487, 

489 S.E.2d at 695. Rather, “[b]ecause the two groups of individuals proscribed by the statute are 

not engaged in the same activity,” we held that “the General Assembly’s decision to punish one 

group more severely than the other does not violate our constitutional principle of equality.” Id.

at 488, 489 S.E.2d at 696; see also State v. Limon, 83 P.3d 229, 233 (Kan. Ct. App. 2004) 

(noting that “[s]tatutes by necessity are directed to less than universal situations,” further 

observing that, “[i]f this were not so, statutes would be ineffective because they would fail to 

take into account factual differences”). 

Similarly, by enacting separate statutes, each forbidding a different type of sexual 

conduct, the General Assembly established classifications of behavior, not classifications of 

people. Specifically, individuals who participate in an obscene display or otherwise engage in 

public acts of indecent exposure, masturbation, or cohabitation are guilty of a misdemeanor. See

Code §§ 18.2-387 (prohibiting indecent exposure); 18.2-387.1 (prohibiting public acts of 

masturbation); 18.2-375 (prohibiting obscene exhibitions and performances); 18.2-345 

(prohibiting lewd and lascivious cohabitation). Individuals who engage in public sodomy are 

guilty of a Class 6 felony. See Code § 18.2-361. As in Branche, “[b]oth heterosexual males and 

females and homosexual males and females may violate [any of these] statute[s] and, under 
- 11 - 

[each] statute[], all persons, regardless of sexual orientation, are treated in the same fashion.” 

Branche, 25 Va. App. at 487, 489 S.E.2d at 695. 

Accordingly, the General Assembly’s decision to punish one type of behavior (public 

acts of sodomy) more severely than the other (public sexual acts other than sodomy) does not 

violate our constitutional principle of equality. See id. Thus, we hold that Code § 18.2-361 

“does not create an impermissible classification between groups of people similarly situated.” 

Id. (“The fact that solicitation to commit prostitution is a misdemeanor and is, therefore, 

considered a less serious crime than . . . solicitation to commit sodomy, does not create an 

impermissible classification between groups of people similarly situated.”); cf. Limon, 83 P.3d at 

237 (holding that the establishment of a statutory scheme resulting in “the penalty for 

heterosexual sodomy with a child . . . [being] less severe that the penalty for homosexual sodomy 

with a child” did not constitute an equal protection violation). 

III. CONCLUSION 

For these reasons, we hold that Tjan lacks standing to mount a facial challenge to Code 

§ 18.2-361 and also lacks standing to contend that the statute is unconstitutionally overbroad. 

We also hold that Code § 18.2-361 does not violate the Equal Protection Clause and is not void 

for vagueness. Accordingly, we affirm Tjan’s conviction for solicitation of oral sodomy. 

Affirmed.