Barson v. Commonwealth of Va..

• Decision Date: 05 July 2011
• Docket Number: Record No. 2464–09–1.
• Citation: 58 Va.App. 451,711 S.E.2d 220
• Parties: Dennis B. BARSON, Jr.v.COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

58 Va.App. 451

711 S.E.2d 220

Dennis B. BARSON, Jr.

v.COMMONWEALTH of Virginia.

Record No. 2464–09–1.

Court of Appeals of Virginia, Richmond.

July 5, 2011.

Samuel R. Brown, II, for appellant.John W. Blanton, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.Present: FELTON, C.J., and ELDER, HUMPHREYS, KELSEY, McCLANAHAN, PETTY, BEALES, POWELL and ALSTON, JJ.HUMPHREYS, Judge.

Dennis Barson (“Barson”) was convicted in the Circuit Court of the City of Virginia Beach (“trial court”) on one count of harassment by computer, in violation of Code § 18.2–152.7:1.¹ Barson contends on appeal that the evidence presented at trial was insufficient as a matter of law to support his conviction. A divided panel of this Court agreed with Barson and reversed his conviction. See Barson v. Commonwealth, No. 2464–09–1, 2010 WL 4284631 (Va.Ct.App. Nov. 2, 2010). We granted the Commonwealth's petition for rehearing en banc and stayed the mandate of the panel decision. ² Upon rehearing en banc, we affirm the trial court.

I. Background

Barson and his wife “A.B.” had been married for eight years at the end of April 2009. At that time, Barson lived in Austin, Texas, while completing his medical subspecialty training in neurology, and A.B. lived in Virginia Beach with their children. On May 1, 2009, Barson received a phone call from a friend that alerted him to a “Craigslist” advertisement for sex. Barson visited the site and reviewed the posted advertisements. Upon seeing the advertisements, Barson became very angry and embarrassed and tried to call his wife. When his calls went unanswered, Barson began to send e-mail messages to A.B., her friends, and family members. Whenever a friend or family member responded to an e-mail, Barson forwarded the response to A.B. A.B. testified that she received eighty-seven e-mails between May 1, 2009 and May 14, 2009, and she received hundreds more over the span of the next six months.

The subject lines of the e-mails included phrases such as, “[A.B.] has sex with anonymous strangers on Craigs [sic] List Ads while husband lives in hotel working 3 jobs,” “I wanted [D] and your cousins to know about your new hobby of soliciting sex on CL,” and “Coke Whore Baby Killer Mom's Club Needs to Know.” In the e-mails themselves, appellant wrote such things as “[You have] BORDERLINE PERSONALITY DISORDER look it up when you get off your knees from CL,” and “I work my ass off and you suck off and fuck strangers on Craigs [sic] List,” and “I told [M] ... how you sucked off [D's] roommate 3 days in AZ ... wanted to jump [D's] bones after 10 years killing your baby because it was a bother to you both and then picked [C] the coke dealer up at Rio fucked his brains out and vacuumed his baby to death for an eight ball.” The messages contained phrases such as, “my dad said you had a job ... or blowjob? Which one do you get paid for and which is free? Not like you didn't suck off [J.L.] or looney [R] for an eightball!!!! If you didn't have crooked teeth and huge thighs you might be able to make money spreading your legs and sucking off Joe Pintos (strangers) [sic].” Appellant also sent a couple of messages from his cell phone along those same lines, alleging “STD['s] from risky gutter sex,” and stating its “time to put your big girl pants on and get a job not take them off and give a blowjob.”

On May 14, 2009, A.B. filed a criminal complaint for computer harassment in the General District Court for the City of Virginia Beach. On July 30, 2009, that court found Barson guilty as charged. Barson then appealed the matter to the trial court, which conducted a bench trial de novo on October 8, 2009. At trial, Barson testified that he sent the e-mails because he was angry, hurt, and embarrassed. He was also trying to “get a response” from A.B. Barson additionally testified he assumed that by forwarding the e-mails to her friends and family members, A.B. would be embarrassed.

Upon the conclusion of the evidence, the trial court found Barson guilty and imposed a fine of $250. When Barson asked the court to reconsider, the court responded, “No. He did it over and over and over again. It's disgusting. See the clerk.”

II. Analysis

Barson argues on appeal that the evidence presented at trial was insufficient as a matter of law to support his conviction for computer harassment. Barson concedes the language used in the e-mails he sent to his wife was “offensive and course,” but, relying on our holding in Allman v. Commonwealth, 43 Va.App. 104, 596 S.E.2d 531 (2004), maintains the language contained in his e-mails does not meet the definition of “obscene” for purposes of his conviction under Code § 18.2–152.7:1. Barson also argues that in the event we reject his argument, due process principles prevent affirmance of his conviction in light of his reliance on our holding in Allman.

Standard of Review

When the sufficiency of the evidence is challenged on appeal, we view the evidence and all reasonable inferences fairly deducible therefrom in the light most favorable to the party prevailing below to determine whether the evidence presented at trial supports each and every element of the offense charged. Haskins v. Commonwealth, 31 Va.App. 145, 149–50, 521 S.E.2d 777, 779 (1999). “[W]hen we consider the sufficiency of the evidence we do not consider each piece of evidence in isolation. Instead, we review the totality of the evidence to determine whether it was sufficient to prove an offense.” Bowling v. Commonwealth, 51 Va.App. 102, 107, 654 S.E.2d 354, 356 (2007). “The judgment of the trial court is presumed to be correct and will be reversed only upon a showing that it is plainly wrong or without evidence to support it.” Goble v. Commonwealth, 57 Va.App. 137, 153, 698 S.E.2d 931, 939 (2010) (citation omitted). Thus, our review is limited to the narrow issue of whether “ ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). That is,

[i]n practical terms, a reviewing court does not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.... We ask only whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.... This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.... Thus, we do not substitute our judgment for that of the trier of fact even if our opinion were to differ.

Atkins v. Commonwealth, 57 Va.App. 2, 21, 698 S.E.2d 249, 258 (2010) (emphasis in original) (internal quotations omitted).

Discussion

Barson focuses his argument on the single question of whether the evidence was sufficient to permit a reasonable fact finder to conclude that the content of Barson's e-mails contained “obscene, vulgar, profane, lewd, lascivious, or indecent language,” or that he made “any suggestion or proposal of an obscene nature, or threaten[ed] any illegal or immoral act.” Barson specifically argues that since the content of the e-mails in question does not meet the definition of “obscene,” the evidence is insufficient as a matter of law to support his conviction for violating Code § 18.2–152.7:1. ³

Although this issue has not previously been addressed by this Court with respect to this particular statute, there are several other statutes in the Code containing similar language prohibiting conduct or communications of a similar nature. Accordingly, any analysis of this issue must historically begin with Code § 18.1–238, the predecessor to current Code § 18.2–427. Code § 18.1–238 provided, “if any person shall curse or abuse anyone, or use vulgar, profane, threatening or indecent language over any telephone in this state, he shall be guilty of a misdemeanor.” In Walker v. Dillard, 523 F.2d 3, 5 (4th Cir.1975), the United States Court of Appeals for the Fourth Circuit (“Fourth Circuit”) held that Code § 18.1–238, which “regulate[d] only speech” was unconstitutionally overbroad. Starting “from the proposition that the state has a legitimate interest in prohibiting obscene, threatening, and harassing phone calls, none of which are generally thought of as protected by the First Amendment,” id. at 4, the Fourth Circuit found “nevertheless, [that] while such activity may permissibly be punished, the proscription must not be one that unduly impinges on protected expression.” Id.

The Fourth Circuit found that while the language Mrs. Walker used over the telephone in that case might be “constitutionally prohibited under a narrowly and precisely drawn statute,” id. at 4 (emphasis added), the words “vulgar,” “profane,” and “indecent” in the statute, standing alone, were unconstitutionally overbroad. The court specifically observed that such words are protected speech because they amount to “neither obscenity nor fighting words.” Id. at 5 (emphasis added). The court then noted that words like “vulgar,” “profane,” and “indecent” are only ever permissibly prohibited as “obscene” when they have been used in conjunction with other, more specific adjectives like “obscene,” “lewd,” and “lascivious.” Id. at 6.

In 1976, in response to Walker, the General Assembly amended Code § 18.1–238 and re-codified it as Code § 18.2–427. That code section now provides:

Any person who uses obscene, vulgar, profane, lewd, lascivious, or indecent language, or makes any suggestion or proposal of an obscene nature, or threatens any illegal or immoral act with the intent to coerce, intimidate, or harass any person, over any telephone or citizens band radio, in this Commonwealth, is guilty of a Class 1 misdemeanor.

See 1976 Va. Acts ch. 312. See also 1984 Va. Acts ch. 592 (amending the statute to...