                                            COURT OF APPEALS OF VIRGINIA


            Present: Judges Petty, Beales and Athey
            Argued at Lexington, Virginia
PUBLISHED




            MICHAEL DWAYNE FERGUSON
                                                                                   OPINION BY
            v.      Record No. 0060-19-3                                    JUDGE RANDOLPH A. BEALES
                                                                                FEBRUARY 25, 2020
            COMMONWEALTH OF VIRGINIA


                             FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
                                           Stacey W. Moreau, Judge

                            Michael A. Nicholas (Daniel, Medley & Kirby, P.C., on brief), for
                            appellant.

                            Victoria Johnson, Assistant Attorney General (Mark R. Herring,
                            Attorney General, on brief), for appellee.


                    Appellant Michael Dwayne Ferguson pled guilty to committing incest by having sexual

            intercourse with his eighteen-year-old stepdaughter in violation of Code § 18.2-366. With the

            consent of the Commonwealth and the approval of the circuit court, he conditioned his guilty plea

            on his right to appeal the conviction on the sole basis that the circuit court erred “when it refused to

            find that Virginia Code § 18.2-366 is unconstitutional when it criminalizes sexual relations between

            adults not related by blood.”
                                          I. BACKGROUND

       Ferguson was indicted on the charge of unlawfully having sexual intercourse with his

stepdaughter, “C.M.,” who at the time was eighteen, in violation of Code § 18.2-366.1

       Ferguson filed a motion to dismiss the indictment on the basis that the statute was

unconstitutional “when applied to sexual relations between adults not related by blood.”2 The

motion requested a hearing on the matter. The Commonwealth filed a written response to the

motion requesting that it be denied and alleging that Ferguson began having oral sex with his

wife’s daughter, C.M., when C.M. was sixteen years old and living in Campbell County. It

alleged that Ferguson intimidated C.M. by threatening to kill her mother, her brother, and her

grandfather if she did not comply with his demands and that when C.M. turned seventeen,

Ferguson also began demanding sexual intercourse with C.M. The Commonwealth’s response




       1
          We use initials, instead of the stepdaughter’s name, in an attempt to better protect her
privacy. In addition, part of the record in this case was sealed. In order to appropriately address
the assignment of error raised by Ferguson, this opinion includes some limited portions of the
record that were sealed. Consequently, “[t]o the extent that this opinion mentions facts found in
the sealed record, we unseal only those specific facts, finding them relevant to the decision in
this case. The remainder of the previously sealed record remains sealed.” Levick v.
MacDougall, 294 Va. 283, 288 n.1 (2017).
       2
          While Ferguson may have implied to the trial court that he was challenging the statute’s
constitutionality on its face and as applied to the specific facts of this case, on appeal to this
Court, Ferguson abandoned the facial challenge. In his brief to this Court, Ferguson presented
the issue as to whether Code § 18.2-366 was unconstitutional “when applied, as in Appellant’s
case: to sexual conduct between adults not related by blood?” (Emphasis added). In addition, at
oral argument before this Court, Ferguson agreed that his argument was that the statute is
unconstitutional as it applied to him. Furthermore, Ferguson could not actually present a
challenge to the statute on its face if he could not first show that the statute was unconstitutional
as applied to him. See Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973) (“Embedded in the
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.”); Toghill v. Commonwealth, 289 Va. 220, 228 (2015) (“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.”).
                                                  -2-
also alleged that Ferguson forced himself on C.M. numerous times while the family lived in

Campbell County, in the City of Danville, and in Pittsylvania County and that after C.M turned

eighteen, Ferguson got her pregnant. Results of a paternity test filed with the Danville Juvenile

and Domestic Relations District Court concluded that the probability of Ferguson being the

father of C.M.’s child was 99.99%. The Commonwealth’s response also alleged that the

incestuous sexual relationship between Ferguson and C.M. caused C.M. and her mother to

become estranged and caused C.M.’s mother to file for a divorce from Ferguson.3

       At a hearing on Ferguson’s motion to dismiss, Ferguson’s sole argument for dismissing

the indictment was that Code § 18.2-366 was unconstitutional as applied to Ferguson because it

“criminalizes constitutionally protected sexual activity, specifically when that sexual activity is

between adults where no allegation is contained in the indictment that there was force or lack of

consent.” He argued that the trial court should rely on Lawrence v. Texas, 539 U.S. 558 (2003),

and Martin v. Ziherl, 269 Va. 35 (2005), to find that his sexual relationship with his

eighteen-year-old stepdaughter was constitutionally protected. In response, the Commonwealth

argued that the relationships discussed in Lawrence and in Martin are distinguishable because

this case involves “a relationship where consent was not easily refused.” The trial court denied

Ferguson’s motion to dismiss, finding that Code § 18.2-366 is constitutional.

       After the motion was denied, Ferguson, through his counsel, stated his intention to make

a conditional guilty plea, and the Commonwealth informed the trial court of its consent to his

doing so. Ferguson’s counsel stated, “And for the record, the specified pretrial ruling is the one

we just did this morning, the motion to dismiss the indictment on constitutional grounds.” The



       3
          The concurrence criticizes our recitation of the allegations contained in the
Commonwealth’s written response to Ferguson’s motion to dismiss. The purpose of including
these statements in our opinion is to describe what both parties argued in their motions to the
trial court at the time it made its decision on the motion to dismiss Ferguson’s indictment.
                                                  -3-
trial judge then engaged in a plea colloquy with Ferguson to ensure that his plea was being

entered intelligently, knowingly, and voluntarily. As part of this colloquy, the trial judge asked,

“And is that your understanding, that you’re entering your guilty plea, and I’ll go through

everything, waiving all except your right to challenge the motion on the, motion to dismiss the

indictment that the Court just ruled on the constitutionality?” Ferguson responded, “Yes,

ma’am.” Later in the colloquy, Ferguson again affirmed that he understood that he was waiving

his right, “except for the motion to dismiss, to appeal this Court’s decision.” The trial judge

concluded that Ferguson’s guilty plea, conditioned only on his right to appeal the trial court’s

ruling that the statute is constitutional as applied to him, was made intelligently, knowingly, and

voluntarily.

       The Commonwealth proffered the following as a summary of the evidence in the case:

               Your Honor, the Commonwealth’s case alleges that between
               January 1st, 2017 and March 1st, 2017, in Pittsylvania County, the
               defendant had sexual relations with his step-daughter, C.M., when,
               while they lived in Pittsylvania County. The Commonwealth
               states that on September 9th, 2012, Mr. Ferguson married C.M.’s
               mother Kathy Yates (Phonetic), and that at the time C.M. was a
               juvenile and they lived in Campbell County. Later they moved
               into Pittsylvania County where they continued to reside during the
               timeframe alleged in the indictment, and during that time an
               ongoing sexual relationship took place between the two of them
               and a child was born from that relationship. We would submit to
               the Court a copy of a court order determining parentage and ask
               that it be sealed.

       The Commonwealth offered as an exhibit a court order determining that Ferguson is the

father of C.M.’s child. This appeal followed.

                                           II. ANALYSIS

       On appeal, Ferguson assigned error to the same issue as the one upon which he

conditioned his guilty plea. His assignment of error states, “The Circuit Court of Pittsylvania

County erred when it refused to find that Virginia Code § 18.2-366 is unconstitutional when it

                                                -4-
criminalizes sexual relations between adults not related by blood.” Before oral argument in this

case, however, this Court alerted the parties to be prepared to respond to questions about the

language of Code § 18.2-366 and whether that statute criminalizes sexual intercourse generally

between stepparents and stepchildren – or only sexual intercourse between stepparents and minor

stepchildren.4

       At oral argument before this Court, Ferguson stated for the very first time that the statute

did not apply to him while the Commonwealth disagreed, stating that it did indeed apply to him.

Nevertheless, this Court is prohibited from reaching the merits of this statutory interpretation

issue for two reasons. First, Ferguson’s guilty plea was conditioned on his right to appeal the

trial court’s decision on the sole grounds that the statute was unconstitutional because it did

criminalize his relationship with his eighteen-year-old stepdaughter. Second, Ferguson did not

ever argue below or on brief on appeal – or even assign error to the trial court’s implicit decision

– that Code § 18.2-366 prohibits sexual intercourse between a stepparent and an adult stepchild,

such as the recently turned eighteen-year-old C.M. in this case.




       4
           Code § 18.2-366 states:

                 A. Any person who commits adultery or fornication with any
                    person whom he or she is forbidden by law to marry shall be
                    guilty of a Class 1 misdemeanor except as provided by
                    subsection B.
                 B. Any person who commits adultery or fornication with his
                    daughter or granddaughter, or with her son or grandson, or her
                    father or his mother, shall be guilty of a Class 5 felony.
                    However, if a parent or grandparent commits adultery or
                    fornication with his or her child or grandchild, and such child
                    or grandchild is at least thirteen years of age but less than
                    eighteen years of age at the time of the offense, such parent or
                    grandparent shall be guilty of a Class 3 felony.
                 C. For the purposes of this section, parent includes step-parent,
                    grandparent includes step-grandparent, child includes a
                    step-child, and grandchild includes a step-grandchild.
                                                   -5-
             Conditional Guilty Plea Subject Only to the Statute’s Unconstitutionality

        Code § 19.2-254 states,

                With the approval of the court and the consent of the
                Commonwealth, a defendant may enter a conditional plea of guilty
                in a misdemeanor or felony case in circuit court, reserving the
                right, on appeal from the judgment, to a review of the adverse
                determination of any specified pretrial motion. If the defendant
                prevails on appeal, he shall be allowed to withdraw his plea.

Under Code § 19.2-254, the only issue that the defendant may appeal after entering a conditional

guilty plea is the issue that he specified in the trial court as the issue he intends to appeal – and to

which the Commonwealth and the trial court give their consent and approval. The defendant

waives his right to appeal any non-jurisdictional issue other than any issue specified and agreed

upon as part of his conditional guilty plea. See Brown v. Commonwealth, 68 Va. App. 58, 70-71

(2017) (holding appellant waived right to appeal alleged Sixth Amendment violation as part of

his conditional guilty plea where he did not specify that ground in his plea agreement, and he did

not obtain the permission of the Commonwealth and the trial court to that condition of the guilty

plea); see also Johnson v. Commonwealth, 38 Va. App. 137, 143-44 (2002) (recognizing that

when a defendant pleads guilty, he waives all non-jurisdictional defenses unless the trial court

and Commonwealth agree that defendant may appeal a specific issue); Davis v. Commonwealth,

No. 0215-15-3, at *2 (Va. Ct. App. May 3, 2016) (“Because appellant entered a conditional

guilty plea, his basis for appeal is limited to ‘a review of the adverse determination of any

specified pretrial motion.’” (quoting Code § 19.2-254)).

        When Ferguson entered a conditional guilty plea, his counsel told the trial court that “the

specified pretrial ruling [under Code § 19.2-254] is the one we just did this morning, the motion

to dismiss the indictment on constitutional grounds.” The Commonwealth consented to

Ferguson’s taking the guilty plea conditioned on his right to appeal solely on the grounds that,

while the statute applied to Ferguson, the statute was nevertheless unconstitutional – and on no
                                                 -6-
other grounds. The trial court approved the conditional guilty plea based on this agreed-upon

condition. During the plea colloquy, the trial court confirmed with Ferguson that he understood

that he was “waiving all except [his] right to challenge the . . . motion to dismiss the indictment

that the Court just ruled on the constitutionality.” Indeed, it was a guilty plea, from which a

defendant, of course, cannot appeal, unless there is a conditional guilty plea. Johnson, 38 Va.

App. at 143. Therefore, because Ferguson did not condition his guilty plea on the basis that he

be permitted to appeal the trial court’s decision that the statute criminalized his conduct, we

cannot reach that argument on appeal.5

                                      Failure to Assign Error

       This Court is also precluded from addressing the argument that the statute’s language

does not criminalize Ferguson’s conduct because Ferguson did not even assign error to that

issue. Pursuant to Rule 5A:12, “Only assignments of error assigned in the petition for appeal

will be noticed by this Court.” The Supreme Court and this Court have interpreted Rule 5A:12

as prohibiting this Court from addressing issues to which the appellant did not assign error.

Commonwealth v. Brown, 279 Va. 235, 241 (2010); see also McLean v. Commonwealth, 30

Va. App. 322, 329 (1999) (en banc) (“Only those arguments presented in the petition for appeal

and granted by this Court will be considered on appeal.”). In Brown, the Supreme Court actually


       5
          Rather than reviewing the assignment of error that was the basis of the conditional
guilty plea (and that was granted by this Court), Judge Petty’s concurrence seeks to broaden this
Court’s scope of review by examining whether the statute even applies to Ferguson. Ferguson’s
conditional guilty plea was conditioned on his right to argue to this Court that “Code § 18.2-366
is unconstitutional when it criminalizes sexual relations between adults not related by blood.”
(Emphasis added). Judge Petty’s concurrence considers the converse of Ferguson’s actual
assignment of error and his conditional guilty plea by deciding this case on the basis that Code
§ 18.2-366 does not prohibit sexual relations between adults not related by blood – and,
therefore, does not apply to Ferguson’s conduct here. Because this argument was not ever made
to the trial court, was not the subject of the conditional guilty plea agreement between Ferguson,
the Commonwealth, and the trial court, and was never argued on brief to this Court, we cannot
reach it on appeal. Doing so would require us to violate Rules 5A:18, 5A:12, and 5A:20, and the
latter two Rules have no “ends of justice” exception.
                                                  -7-
reversed the decision of the Court of Appeals where the Court of Appeals had restated

appellant’s question presented, broadening it to encompass the grounds on which this Court

ultimately relied to reverse the judgment of the circuit court. Brown, 279 Va. at 241. The

Supreme Court held that the Court of Appeals was prohibited from rephrasing or recasting an

appellant’s questions presented (now assignments of error) in order to address arguments not

made to it by the appellant. Id. at 241-42.

       In this case, Ferguson did not assign error to the argument that the statute does not

criminalize his conduct. He also did not brief it, therefore, also violating Rule 5A:20. In fact,

Ferguson’s assignment of error actually assumes that the statute does criminalize his behavior

(i.e., prohibiting fornication between a stepfather and adult stepdaughter) when his assignment of

error states that Code § 18.2-366 “criminalizes sexual relations between adults not related by

blood.” Therefore, the statutory interpretation issue is not properly before this Court, and we

cannot consider it. Furthermore, unlike Rule 5A:18, neither Rule 5A:12 nor Rule 5A:20 contains

an “ends of justice” exception that might permit us to consider the matter.

       Until the parties received notice from this Court asking them to address the interpretation

of the statute, the only argument repeatedly made throughout this litigation was that the statute

does criminalize incest between a stepfather and his eighteen-year-old stepdaughter and that,

because it criminalizes this relationship, it is unconstitutional. Therefore, for the purposes of this

appeal, in order to address the sole matter on which Ferguson conditioned his appeal, we assume

without deciding that Code § 18.2-366 criminalizes sexual intercourse between an adult




                                                 -8-
stepfather and his eighteen-year-old stepdaughter,6 and we consider the arguments presented by

the parties regarding Ferguson’s assertion that he has a constitutional right to engage in sexual

intercourse with his eighteen-year-old stepdaughter.

                               Constitutionality of Code § 18.2-366

       “We review questions of statutory constitutionality de novo.” Toghill v. Commonwealth,

289 Va. 220, 227 (2015). “The party challenging an enactment has the burden of proving that

the statute is unconstitutional, and every reasonable doubt regarding the constitutionality of a

legislative enactment must be resolved in favor of its validity.” Vesilind v. Virginia State Bd. of

Elections, 295 Va. 427, 444 (2018). “All legislative acts are ‘presumed to be constitutional.’”

Boyd v. Cty. of Henrico, 42 Va. App. 495, 506 (2004) (en banc) (quoting In re Phillips, 265 Va.

81, 85 (2003)). “This presumption is ‘one of the strongest known to the law.’” Id. at 507

(quoting Harrison v. Day, 200 Va. 764, 770 (1959)).

       Ferguson argues that Code § 18.2-366 unconstitutionally criminalizes consensual sexual

relations between two consenting adults. He contends that the United States Supreme Court’s

decision in Lawrence v. Texas, 539 U.S. 558 (2003), and the Virginia Supreme Court’s decision

in Martin v. Ziheri, 269 Va. 35 (2005), recognized a liberty interest in private sexual conduct

between two consenting adults not related by blood. He claims that this liberty interest

encompasses his right to have sexual intercourse with his eighteen-year-old stepdaughter.


       6
          Although Judge Petty’s concurrence expresses a concern that our analysis is advisory,
that concern is unfounded. We do not opine on the actual meaning of the statute but rather we
only assume without deciding in order to answer the only question presented to us (i.e., whether
the statute is constitutional when criminalizing sexual relations between a stepfather and a
stepdaughter who has reached the age of majority). Because this appeal arises from a conditional
guilty plea, we fear that deciding this appeal on a basis other than that upon which Ferguson
conditioned his guilty plea would actually be an advisory opinion. “Because the very ‘nature of
judicial review constrains us to consider the case that is actually before us,” we decline to decide
this case by offering an advisory opinion. Tucek v. Commonwealth, 44 Va. App. 613, 616
(2004) (quoting Boyd v. Cty. of Henrico, 42 Va. App. 495, 520 (2004) (en banc)). See also
Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 760 (1995).
                                                -9-
       Contrary to Ferguson’s argument, there is no constitutional right for a stepfather to

engage in sexual intercourse with his eighteen-year-old stepdaughter, and a statute prohibiting it

that is enacted by the people’s elected representatives in the General Assembly is constitutional.7

In Lawrence, the United States Supreme Court held that a Texas statute that criminalized

homosexual conduct was unconstitutional because it prohibited two unrelated adult males from

engaging in private, consensual sodomy. Lawrence, 539 U.S. at 578. The Supreme Court stated

that the “right to liberty under the Due Process Clause gives [the petitioners] the full right to

engage in their conduct without intervention of the government.” Id. However, the Supreme

Court was careful to note that Lawrence was a case involving “two adults who, with full and

mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle”

and that the case did not “involve minors[,] . . . persons who might be injured or coerced or who

are situated in relationships where consent might not easily be refused . . . [or] public conduct or

prostitution.” Id. The United States Supreme Court, employing a rational basis review,

concluded that the Texas statute “furthers no legitimate state interest which can justify its

intrusion into the personal and private life of the individual.” Id.

       Both this Court and the Supreme Court have addressed the limiting language in Lawrence

and found that certain categories of relationships do not fall within the protections of the liberty

interest discussed by the United States Supreme Court in that case. See Toghill v.

Commonwealth, 289 Va. 220, 230 (2015) (rejecting argument that Lawrence afforded

constitutional right for adults to engage in sodomy with minors); Warren v. Commonwealth, 69



       7
          The question before this Court is not whether sexual intercourse between stepparents
and adult stepchildren is an activity that should be criminalized. That is the question before the
members of the legislative branch who make the laws and are elected by the people. The
question before the courts is whether it is constitutional for the popularly elected members of the
General Assembly to enact a statute prohibiting this conduct. We can only judge whether a
statute violates the words and provisions of the Constitution.
                                                - 10 -
Va. App. 659, 669 (2019) (providing that Lawrence did not invalidate Virginia’s statutory

prohibition against bestiality). Similarly, we hold that Ferguson’s sexual relationship with his

eighteen-year-old stepdaughter is not protected by the liberty interest recognized in Lawrence or

Martin8 because it falls into one of the categories of relationships specifically excluded by

Lawrence – relationships where one party “might be injured or coerced” or “where consent

might not easily be refused.” See Lawrence, 539 U.S. at 578.

       The United States Court of Appeals for the Sixth Circuit reached this same conclusion

when it considered the habeas petition of a stepfather imprisoned, under Ohio’s statute

prohibiting incest, for engaging in sexual intercourse with his twenty-two-year-old stepdaughter.

Lowe v. Swanson, 663 F.3d 258, 264 (6th Cir. 2011). Like Ferguson, Lowe relied on Lawrence

and argued that Ohio’s statute was unconstitutional because he had a constitutionally protected

right to engage in private sexual conduct with his adult stepdaughter. The Sixth Circuit

disagreed, stating that “[u]nlike sexual relationships between unrelated same-sex adults, the

stepparent-stepchild relationship is the kind of relationship in which a person might be injured or

coerced or where consent might not easily be refused, regardless of age, because of the inherent

influence of the stepparent over the stepchild.” Id.

       The specific facts of this case now before us illustrate the inherent coercion involved with

a sexual relationship between a stepparent and an eighteen-year-old stepchild. Although C.M.

had reached the age of majority just prior to the date of the incest alleged in the indictment, the



       8
          In Martin, the Supreme Court of Virginia held that Code § 18.2-344, which prohibited
sexual intercourse between two unmarried adults, was unconstitutional. Martin, 269 Va. at 42.
The Court relied on Lawrence to find that the statute was “unconstitutional because by subjecting
certain private sexual conduct between two consenting adults to criminal penalties it infringes on
the rights of adults to ‘engage in the private conduct in the exercise of their liberty under the Due
Process Clause of the Fourteenth Amendment to the Constitution.’” Id. (quoting Lawrence, 539
U.S. at 564). Like the Court in Lawrence, the Virginia Supreme Court likewise noted similar
limitations in its holding. Id. at 42-43.
                                                 - 11 -
undisputed portion of the proffer of facts from the Commonwealth to the trial court established

that Ferguson married C.M.’s mother and lived with C.M. for years while C.M. was a minor.

The inference created by this undisputed portion of the proffer of facts is that Ferguson was in a

position of authority and influence over C.M. before she reached adulthood and that this

influence did not vanish the moment C.M. turned eighteen. See State v. Lowe, 861 N.E.2d 512,

517-18 (Ohio 2007) (“[P]arents do not cease being parents – whether natural parents,

stepparents, or adoptive parents – when their minor child reaches the age of majority.”).

       In addition, unlike the Texas statute in Lawrence, which did not pass even rational basis

review because it did not further a legitimate state interest, Code § 18.2-366’s prohibition against

incest between stepparents and stepchildren is rationally related to the Commonwealth’s

legitimate state interest in protecting the family unit9 and the marriage.10 “A sexual relationship

between a parent and child or a stepparent and stepchild is especially destructive to the family

unit.” Lowe, 861 N.E.2d at 517. A statute prohibiting stepparents and stepchildren from

engaging in sexual intercourse serves the legitimate state purpose of “protecting the family from

the destructive influence of intra-family, extra-marital sexual contact.” Lowe, 663 F.3d at 264.

In this particular case, the relationship between Ferguson and C.M. caused the exact destruction

that the statute was intended to prevent; C.M.’s mother filed for divorce from Ferguson, and




       9
          “The generally accepted definition of a ‘family’ is ‘a group of persons connected by
blood, by affinity, or by law.’” Damon v. York, 54 Va. App. 544, 553 (2009) (emphasis added)
(quoting Surles v. Mayer, 48 Va. App. 146, 164 n.6 (2006)). “[A] stepparent is related to the
child by affinity, that is, ‘by virtue of a marriage subsequent to that of which the person spoken
of is the offspring.’” Id. (quoting Kogon v. Ulerick, 12 Va. App. 595, 598-99 (1991)) (internal
citation omitted).
       10
          Both parties agree that no fundamental right is implicated by Code § 18.2-366 and that
this Court should use the rational basis test in deciding the statute’s constitutionality.
                                                 - 12 -
C.M. and her mother became estranged.11 Consequently, because the statute is rationally related

to a legitimate state interest, it is clearly constitutional.

                                             III. CONCLUSION

        In short, the only issue this Court is permitted to review on appeal is the one that

Ferguson asserted as a condition of his guilty plea – and to which he assigned error in his petition

for appeal.12 Because that sole issue assigned as error on appeal assumes that Code § 18.2-366

criminalizes incest between stepparents and adult stepchildren, we assume without deciding for

the purposes of handling this particular appeal that Code § 18.2-366 criminalizes that conduct

regardless of the age of the stepchild. Even with that assumption, the statute is not

unconstitutional.

        Ferguson has no constitutional right to engage in sexual intercourse with his

eighteen-year-old stepdaughter. This relationship between a thirty-eight-year-old stepfather and

his young stepdaughter, who just turned eighteen, is inherently coercive, even if she did just

recently attain majority age, because of the influence a stepparent can exert in that role. The

coercive nature of this relationship distinguishes this stepparent-stepchild relationship from the

wholly consensual relationship of two adults who hold no sway over each other that was the

situation in Lawrence (and in Martin).

        Furthermore, while the United States Supreme Court found that the statute in Lawrence

furthered no legitimate state interest, the statute in this case furthers the legitimate state interest

of both protecting the marriage and protecting the integrity of the family unit. Sexual



        11
          Because Ferguson impregnated C.M., their child (to whom Ferguson was both the
father and the stepgrandfather) was also affected by the disintegrated family unit.
        12
          To decide this question based on appellant’s truly eleventh-hour argument that the
statute does not cover his actions here would require us to violate Rules 5A:18, 5A:12, and
5A:20, and the latter two Rules have no “ends of justice” exception.
                                               - 13 -
relationships between stepparents and stepchildren are highly destructive to the stepparent’s

relationship with his or her spouse and to the maintenance of the broader family unit as a whole.

Therefore, Code § 18.2-366 is rationally related to a legitimate state interest and, consequently, is

constitutional as applied to Ferguson.

       For all of these reasons, we uphold Ferguson’s conviction for engaging in incest with his

eighteen-year-old stepdaughter.

                                                                                          Affirmed.




                                               - 14 -
Athey, J., concurring.

       While I concur with Judge Beales’ opinion for the reasons outlined in the majority

opinion, I write separately simply to note that I believe there is merit to Judge Petty’s statutory

interpretation if this case were in a posture that would allow us to construe Code § 18.2-366.

       As Judge Beales correctly notes in the majority opinion, we are prohibited from

overturning this conditional guilty plea as a result of the statutory issue not being preserved in

the trial court under Code § 19.2-254. In addition, neither Rule 5A:12 nor 5A:20 provides us

with an “ends of justice” exception to use as a tool to prevent Ferguson’s conviction in this case,

under these circumstances. Thus, we are limited to the argument Ferguson preserved during his

plea colloquy before the circuit court since “[o]nly those arguments presented in the petition for

appeal and granted by this Court will be considered on appeal.” McLean v. Commonwealth, 30

Va. App. 322, 329 (1999) (en banc). For these reasons, I join in the majority opinion affirming

the conviction.

       However, if we could reach the statutory interpretation issue, I would agree with Judge

Petty’s interpretation of Code § 18.2-366. The first sentence of Code § 18.2-366(B) criminalizes

sexual intercourse between a parent and their natural born child. It is not until the second

sentence of Code § 18.2-366(B) that sexual behavior between stepparents and stepchildren is

addressed. The prohibited criminal behavior in the second sentence is limited to sexual activity

between a stepparent and stepchild when the child is between the ages of thirteen and eighteen.

The disjunctive portion of this statute: criminalizing incest between parents and/or grandparents

and their natural children and/or grandchildren; as well as sexual intercourse between parents

and grandparents (natural or by affinity), and any child between the ages of thirteen and

eighteen, clearly passes a rational basis test under Lawrence v. Texas, 539 U.S. 558 (2003), and

thus would be constitutional. As a result, the plain meaning of the second sentence of Code

                                                - 15 -
§ 18.2-366(B) would only apply to Ferguson, as a stepparent, if his stepchild was under the age

of eighteen. In this case, however, Ferguson entered a conditional guilty plea for violating the

first sentence of Code § 18.2-366(B), which does not apply to a stepparent engaging in sexual

relations with an adult stepchild. Therefore, Ferguson could not have violated the portion of the

statute for which he was found guilty. However, as noted above, this case is not in a posture that

allows us the opportunity to analyze Code § 18.2-366, and thus the conviction must be affirmed.




                                              - 16 -
Petty, J., concurring in the judgment.

        I concur with the majority that we must affirm Ferguson’s conviction. I write separately,

however, because I cannot concur with its reasoning. I believe the issue, the only issue, we must

address is precisely the issue Ferguson reserved in his conditional guilty plea—namely, “whether

the trial court erred in not dismissing the indictment on the basis that Code § 18.2-366 is

unconstitutional because it criminalizes sexual relations between adults not related by blood.”13

Ferguson’s argument is based upon the premise that the statute criminalizes sexual relations

between adults not related by blood. This premise is false; therefore, the statute is constitutional.

        Ferguson concedes he had sexual relations with his adult stepdaughter.14 Ferguson argued

to the trial court that the indictment should be dismissed on the basis that pursuant to Lawrence

v. Texas, 539 U.S. 558 (2003), and Martin v. Ziherl, 269 Va. 35 (2005), a statute criminalizing

fornication between consenting adults not related by blood is unconstitutional. I conclude the

plain language of the statute does not criminalize such behavior, and Ferguson’s argument is

therefore meritless.

        I begin with the lens through which we interpret statutes. “The Virginia Supreme Court

has long held that ‘when analyzing a statute, we must assume that “the legislature chose, with

care, the words it used . . . and we are bound by those words as we [examine] the statute.”’”

Eley v. Commonwealth, 70 Va. App. 158, 163 (2019) (alterations in original) (quoting

Doulgerakis v. Commonwealth, 61 Va. App. 417, 420 (2013)). “When the language of a statute


        13
          Because Ferguson pled guilty, and there is no assignment of error challenging the
sufficiency of the evidence, we are precluded from addressing whether his actions violated the
statute.
        14
           Many of the facts contained in the background section of the majority’s opinion were
taken from the Commonwealth’s response to Ferguson’s motion to dismiss. Those facts were
neither proven in court nor made a part of the Commonwealth’s proffer of evidence. Thus, I do
not consider those facts to be before us, and, as the majority virtually concedes by ignoring them
in its analysis, I do not consider them relevant to the issue before us.
                                                - 17 -
is unambiguous, we are bound by the plain meaning of that language. Furthermore, we must

give effect to the legislature’s intention as expressed by the language used unless a literal

interpretation of the language would result in a manifest absurdity.” Hines v. Commonwealth,

59 Va. App. 567, 574 (2012) (emphasis added) (quoting Kozmina v. Commonwealth, 281 Va.

347, 349-50 (2011)). “It is not the function of the courts to add to or amend clear statutory

language.” Gilliam v. McGrady, 279 Va. 703, 709 (2010). “In sum, ‘[c]ourts are not permitted

to rewrite statutes. This is a legislative function. The manifest intention of the legislature,

clearly disclosed by its language, must be applied. There can be no departure from the words

used where the intention is clear.’” Epps v. Commonwealth, 47 Va. App. 687, 707 (2006) (en

banc) (quoting Barr v. Town & Country Properties, Inc., 240 Va. 292, 295 (1990)). Finally,

“when different words are used in a statute, each must be given its own meaning if possible.”

Johnson v. Commonwealth, 53 Va. App. 608, 613 (2009).

       As applicable to this case Code § 18.2-366(B) creates two separate offenses. The first

sentence of that subsection makes it a Class 5 felony for “[a]ny person to commit fornication

with his daughter . . . .” The second sentence makes it a Class 3 felony if “a parent . . . commits

. . . fornication with his or her child . . . .” Code § 18.2-366(C) then defines the term “parent” to

include “step-parent” and “child” to include “step-child.” Subsection C does not include the

term “daughter” in its definition.

       The words used in Code § 18.2-366 are clear and unambiguous. The two sentences in

subsection B contain different terminology; the first uses the term “daughter” and the second

uses the term “child.” The first sentence uses the term “father”; the second uses “parent.” The

definitions in subsection C only reference the terminology used in subsection B’s second

sentence. Specifically, subsection C defines the terms parent, grandparent, and child in the

second sentence to include their step counterparts. The subsection does not include definitions

                                                - 18 -
for any of the terms listed in subsection B’s first sentence: daughter, granddaughter, son,

grandson, father, mother. Accepting that the legislature chose the section’s wording with care,

Eley, 70 Va. App. at 163, I conclude that “the manifest intention of the legislature, clearly

disclosed by its language, must be applied,” Epps, 47 Va. App. at 707. The legislature clearly

identified two separate circumstances of conduct as two separate classes of felony. The first

sentence of subsection B criminalizes the conduct of “[a]ny person who commits adultery or

fornication with a daughter, granddaughter . . . son, grandson . . . father or mother.” Code

§ 18.2-366(B) (emphasis added). Thus, under the first sentence of subsection B, a daughter

could be convicted of fornication with her father, or vice versa, and there is no age component to

the conduct. In contrast, the second sentence of subsection B criminalizes only the conduct of a

“parent or grandparent” and specifies that the child or grandchild involved is between thirteen

and eighteen years of age. Id. In this circumstance, then, the child involved is not subject to

prosecution and must be a minor.15

       Simply put, “we must give effect to the legislature’s intention as expressed by the

language used unless a literal interpretation of the language would result in a manifest

absurdity.” Hines, 59 Va. App. at 574 (emphasis added). Far from being a manifest absurdity, I

would “presume the legislature acted with full knowledge of the law as it stood bearing on the

subject,” Cape Henry Towers, Inc. v. National Gypsum Co., 229 Va. 596, 600 (1985), including

Lawrence and Martin, and by its word choice intended to prohibit sexual relations between a

stepparent and stepchild only when the child was a minor. To construe the statute otherwise is to

impermissibly “add to or amend the clear statutory language” of the statute. Gilliam, 279 Va. at

709.


       15
          I note that the interpretation of the statute that the majority has “assume[d] without
deciding,” supra at 13, would lead to the absurd result of making criminal the actions of
Ferguson’s stepdaughter, as she would clearly be included in the term “any person.”
                                                  - 19 -
       Thus, Code § 18.2-366(B) did not unconstitutionally prohibit Ferguson’s conduct with

his adult stepdaughter. That is the only question before us. I understand the majority’s desire to

address what Ferguson thought the statute proscribed when he pled guilty, but that analysis is, at

best, advisory because the statute does not criminalize that behavior. At worst, the majority’s

analysis impermissibly rewrites the statute so that “father” and “daughter” in subsection B’s first

sentence include “step-father” and “step-daughter,” thus significantly altering the statute’s

meaning and scope.

       The only question before this Court on appeal is whether the trial court erred in refusing

to dismiss the indictment against Ferguson on the basis that Code § 18.2-366 unconstitutionally

prohibits sexual relations between adult step-relations. Code § 18.2-366 does not prohibit the

conduct. Ferguson’s assignment of error is therefore without merit. Accordingly, I would affirm

the conviction.




                                               - 20 -
