                     COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judge Elder and
          Senior Judge Overton
Argued at Alexandria, Virginia


FRED LESLIE FISHER
                                           MEMORANDUM OPINION * BY
v.   Record No. 0278-00-4         CHIEF JUDGE JOHANNA L. FITZPATRICK
                                                JUNE 19, 2001
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF FREDERICK COUNTY
                      John R. Prosser, Judge

           William A. Crane, Public Defender (Office of
           the Public Defender, on briefs), for
           appellant.

           Richard B. Smith, Senior Assistant Attorney
           General (Mark L. Earley, Attorney General,
           on brief), for appellee.

           Amicus Curiae: Virginians For Justice, Inc.
           (Joseph Price, General Counsel; Stephen R.
           Scarborough; Arent, Fox, Kintner, Plotkin &
           Kahn, PLLC; Lambda Legal Defense and
           Education Fund, on brief), for appellant.


     Fred Leslie Fisher (appellant) was indicted by the

Frederick County grand jury on (1) three counts of forcible

sodomy; (2) one count of object sexual penetration; and (3) one

count of rape for conduct that occurred on May 31, 1999.    At

trial he was found guilty of three counts of carnal knowledge as

a lesser-included offense of the three counts of forcible


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
sodomy, not guilty of object sexual penetration, and guilty of

aggravated sexual battery as a lesser-included offense of rape

under Code § 18.2-61. 1   On appeal, he contends Code § 18.2-361 2

as applied in this case contravenes his rights under both the

Virginia and the United States Constitutions.    We disagree and

affirm his convictions for carnal knowledge pursuant to Code

§ 18.2-361.

                            I. BACKGROUND

     Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

the prevailing party below, granting to its evidence all

reasonable inferences fairly deducible therefrom.     See Juares v.

Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).

The credibility of witnesses and the weight assigned their

testimony are matters exclusively for the [fact finder].     Hills

v. Commonwealth, 33 Va. App. 442, 456, 534 S.E.2d 337, 344




     1
       The Commonwealth conceded on brief and in oral argument
that aggravated sexual battery is not a lesser-included offense
of rape under Code § 18.2-61. On that conviction, this case is
reversed and remanded for new proceedings if the Commonwealth so
chooses.
     2
         Code § 18.2-361(A) provides in relevant part as follows:

            If any person carnally knows in any manner
            any brute animal, or carnally knows 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 . . . .

                                - 2 -
(2000) (citing Lynn v. Commonwealth, 27 Va. App. 336, 351, 499

S.E.2d 1, 8 (1998)).

     So viewed, the evidence established that Mary Fansler

(Fansler) met appellant at work.   She acknowledged a consensual

sexual relationship with him during the three days prior to May

31, 1999.   On May 31, 1999, Fansler returned to appellant's

motel room where she drank beer and smoked pot until appellant's

friend, Jimmy Weatherholtz (Weatherholtz), arrived with a clear

liquid he claimed was LSD.

     Fansler testified she refused the LSD but appellant forced

a small piece of cardboard containing the liquid into her mouth.

She testified "she didn't remember much after that" and was in

and out of consciousness throughout the night.   Fansler said she

was clothed when appellant gave her the drug but was naked when

she regained consciousness.   She remembered appellant performing

cunnilingus and anallingus on her and inserting a cigar case and

his fingers into her vagina, his fingers into her rectum and

forcing his penis into her mouth and vagina.    Fansler testified

"Off and on that night . . . I remember having a lot of pain

. . . and just telling him to stop it."    She consented to "none

of it" that day.   Later, she left the motel, called her sister

and went to a women's shelter that directed her to the hospital

where she was examined by a "forensic nurse."    She was treated,

and pictures of her injuries were taken.   Appellant testified



                               - 3 -
all sexual activity on May 31, 1999 was consensual and that

Weatherholtz gave Fansler the LSD.

                               II.

     Appellant contends the prohibition of "consensual"

heterosexual sodomy under Code § 18.2-361 abridges his right to

privacy and religion guaranteed by Article 1, Sections 1, 11 and

16 of the Virginia Constitution and the Fifth Amendment

protections of the United States Constitution. 3   "Before

considering these arguments, we note that generally, a litigant

may challenge the constitutionality of a law only as it applies




     3
       Article 1, Section 1 of the Virginia Constitution provides
as follows:

               That all men are by nature equally free
          and independent and have certain inherent
          rights, of which, when they enter into a
          state of society, they cannot, by any
          compact, deprive or divest their posterity;
          namely, the enjoyment of life and liberty,
          with the means of acquiring and possessing
          property, and pursuing and obtaining
          happiness and safety.

Article 1, Section 11 provides in pertinent part as follows:

          That no person shall be deprived of his
          life, liberty, or property without due
          process of law . . . . [T]o be free from
          any governmental discrimination upon the
          basis of religious conviction . . . .

Article 1, Section 16 provides in pertinent part as follows:

          [A]ll men are equally entitled to the free
          exercise of religion . . . .

                              - 4 -
to him or her."   Coleman v. City of Richmond, 5 Va. App. 459,

463, 364 S.E.2d 239, 241-42 (1988) (citing Grosso v.

Commonwealth, 177 Va. 830, 839, 13 S.E.2d 285, 288 (1941)).

"That the statute may apply unconstitutionally to another is

irrelevant.   One cannot raise third party rights."    Id. at 463,

364 S.E.2d at 242.

     In the recently decided case of Paris v. Commonwealth, 35

Va. App. 377, 545 S.E.2d 577 (2001), we addressed the scope of

Article 1, Section 1 protections in the context of a challenge

to Code § 18.2-361.   In that case we held that neither the

guaranties of Article 1, Section 1 or Section 11 of the Virginia

Constitution nor the United States Constitution extend the right

to privacy or the right to "happiness" to cover sodomy between

an uncle and his nephew.   See also Santillo v. Commonwealth, 30

Va. App. 470, 517 S.E.2d 733 (1999) (no constitutional violation

when statute was applied to godfather and minor victim).

     In the instant case, appellant seeks to extend the right to

privacy and freedom of religion to cover an individual who

engages in consensual heterosexual sodomy.   However, we do not

reach these issues because the facts show appellant's actions

did not involve sexual relations between two consenting adults.

     Viewed in the light most favorable to the Commonwealth, the

evidence established Fansler did not consent to the acts of

sodomy which form the basis of the charges in this case.

Specifically, Fansler testified that appellant forced LSD in her

                               - 5 -
mouth and then performed various sexual acts on her without her

permission.       The trial court found that the injuries depicted in

the photographs admitted into evidence were sufficient to rise

to the level of the "severe injury" element of aggravated sexual

battery. 4

     Brenda Adams (Adams), the sexual assault nurse examiner,

described Fansler's injuries as follows:

             She complained of whole body discomfort.
             She complained of pain over the areas of her
             bruising. She complained of pain in her
             genital area, in her anus.

              *        *      *      *      *      *      *

             All of the bruising that she had from her
             head down to her legs was all consistent
             with color and consistent with time frame.

              *        *      *      *      *      *      *

             There were puncture wounds on her breasts.

              *        *      *      *      *      *      *

             [These injuries were] consistent with blunt force
             penetrating trauma.

     Under these circumstances, the evidence supports the trial

judge's finding that the victim did not consent to appellant's

actions and thus, do not reach the level of constitutional

protection.       Like Santillo and Paris, the appellant has failed




     4
       While we reverse and remand the rape charge, the facts
adduced therein are part of the continuing course of events of
that day.


                                   - 6 -
to establish that Code § 18.2-361, as applied to him, is

unconstitutional.

     For the foregoing reasons, we affirm appellant's

convictions under Code § 18.2-361 and reverse and remand

appellant's conviction for aggravated sexual battery as a

lesser-included offense of rape pursuant to Code § 18.2-61.

                                      Affirmed in part, and
                                      reversed and remanded in
                                      part.




                              - 7 -
