Barson v. Commonwealth

• Decision Date: 07 June 2012
• Docket Number: Record No. 111406.
• Citation: 726 S.E.2d 292
• Parties: Dennis B. BARSON, Jr. v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

726 S.E.2d 292

Dennis B. BARSON, Jr.

v.COMMONWEALTH of Virginia.

Record No. 111406.

Supreme Court of Virginia.

June 7, 2012.

Samuel R. Brown, II, for appellant.

John W. Blanton, Assistant Attorney General (Kenneth T. Cuccinelli, Attorney General, on brief), for appellee.

Present: KINSER, C.J., LEMONS, GOODWYN, MILLETTE, and MIMS, JJ., and CARRICO and RUSSELL, S.JJ.

Opinion by Justice DONALD W. LEMONS.

In this appeal from a misdemeanor conviction of “harassment by computer” pursuant to Code § 18.2–152.7:1, we consider whether the Court of Appeals erred in holding that the language utilized by Dennis B. Barson, Jr. (“Barson”) in his emails was “obscene.”

I. Facts and Proceedings Below

The facts material to this appeal are undisputed. In April 2009, Barson and his wife had been married eight years. By that time they had become estranged. Barson lived in Austin, Texas, completing his medical specialty training in neurology while his wife lived in Virginia Beach with their children.

On May 1, 2009, Barson received a telephone call from a friend informing him of an advertisement for sex appearing on “Craigslist,” an online advertising website. After visiting the website, Barson became embarrassed and angry. He tried to call his wife but she failed to respond to any of his telephone calls. He then began sending emails to his wife, her family and friends. When he received replies from friends and family members, he forwarded them to his wife. His wife received 87 of these emails in the first 14 days of May 2009, and hundreds more during the next six months.

Barson's emails contained language accusing his wife of having “sex with anonymous strangers” on Craigslist, of having a “new hobby of soliciting sex on CL,” of having “risky gutter sex,” of “vacuum[ing] his baby to death” and of being a “coke whore baby killing prostitute.” He also accused her of engaging in sexual acts with identified men. The defendant admitted at trial that he was angry when he sent the emails and that he intended to embarrass his wife, but he testified that his original motive in sending them was to compel her to respond to his telephone calls. He has not, however, assigned error to the trial court's finding, or the Court of Appeals' holding, that he sent the emails with the intent to harass his wife.

On his wife's complaint, Barson was arrested and tried on a misdemeanor warrant in the Juvenile and Domestic Relations District Court of the City of Virginia Beach. He was convicted and appealed to the Circuit Court of the City of Virginia Beach. At a bench trial, the court found Barson guilty and imposed a $250 fine. Barson appealed the conviction to the Court of Appeals.

A divided panel of the Court of Appeals reversed the conviction on the ground that the content of Barson's emails was not obsceneunder the definition of obscenity the Court of Appeals had adopted in Allman v. Commonwealth, 43 Va.App. 104, 596 S.E.2d 531 (2004). Barson v. Commonwealth, Record No. 2464–09–1, slip op. at 18–19, 2010 WL 4284631 (Nov. 2, 2010) (unpublished). The Court granted the Commonwealth's petition for a rehearing en banc.

In its decision en banc, the Court of Appeals decided that its earlier definition of obscenity expressed in Allman rendered the statute under consideration “too narrowly tailored for its purpose.” The Court expressly overruled its decision in Allman and adopted a broader definition of obscenity derived from a dictionary. The Court ultimately held that Barson's emails were obscene within its newly-adopted definition, reversed the panel's decision, and affirmed Barson's conviction. Barson v. Commonwealth, 58 Va.App. 451, 461–64, 711 S.E.2d 220, 225–27 (2011). We awarded Barson an appeal.

II. Analysis

A. Standard of Review

This appeal presents questions of law, to which we apply a de novo standard of review. Phelps v. Commonwealth, 275 Va. 139, 141, 654 S.E.2d 926, 927 (2008).

B. The Statute

Code § 18.2–152.7:1 provides:

Harassment by computer; penalty.... If any person, with the intent to coerce, intimidate, or harass any person, shall use a computer or computer network to communicate obscene, vulgar, profane, lewd, lascivious, or indecent language, or make any suggestion or proposal of an obscene nature, or threaten any illegal or immoral act, he shall be guilty of a Class 1 misdemeanor.

The statute does not merely proscribe harassment; rather, it enumerates specific elements of the offense that must be proved. Accordingly, in the context of this case, in order to support a conviction under Code § 18.2–152.7:1, the Commonwealth must prove the following elements:

1. The accused used a computer or computer network;

2. To communicate obscene language;

3. With the intent to coerce, intimidate or harass.

Significantly, Barson does not argue on appeal that the evidence was insufficient to establish that he intended to “coerce, intimidate, or harass” his wife. As the Court of Appeals recognized in its en banc opinion, “[t]here is no dispute in this case that the evidence presented was sufficient to show Barson intended to harass [his wife]; Barson merely contends his language was not obscene.” Barson v. Commonwealth, 58 Va.App. 451, 462–63, 711 S.E.2d 220, 226 (2011). Barson testified at trial “that he sent the e-mails because he was angry, hurt, and embarrassed. He was also trying to ‘get a response’ from [his wife]. Barson additionally testified he assumed that by forwarding the e-mails to her friends and family members, [his wife] would be embarrassed.” Id. at 455, 711 S.E.2d at 222.

There is no dispute about satisfaction of the required elements for the use of a computer or the intent to harass. This case is about the statutory elements of the offense as specified by the General Assembly that require the speech at issue be “obscene.” The dispositive question before us is what definition of “obscene” should apply. To be more precise, the question before us is whether the statutory definition of “obscene” found in Code § 18.2–372 should apply or whether the dictionary's definition utilized by the Court of Appeals should apply. In arriving at an answer to that question, it is helpful to trace the history and the Court of Appeals' cases that deal with this definition.

Following the United States Supreme Court decision in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), the General Assembly enacted a statutory definition of obscenity:

§ 18.2–372. “Obscene” defined.—The word “ obscene ” where it appears in this article shall mean that which, considered as a whole, has as its dominant theme or purpose an appeal to the prurient interest in sex, that is, a shameful or morbid interest in nudity, sexual conduct, sexual excitement, excretory functions or products thereof or sadomasochistic abuse, and which goes substantially beyond customary limits of candor in description or representation of such matters and which, taken as a whole, does not have serious literary, artistic, political or scientific value.

The definition expressly applies the “Miller test” definition to Article 5 (“Obscenity and Related Offenses”) of Chapter 8 (“Crimes Involving Morals and Decency”) of Title 18.2 of the Code. However, Code § 18.2–152.7:1 concerning harassment by computer, and Code § 18.2–427 concerning obscene telephone calls, do not appear in Article 5 or in any other part of Chapter 8. Instead, the computer statute appears in Chapter 5, “Crimes Against Property” and the telephone statute appears in Chapter 9, “Crimes Against Peace and Order.” The General Assembly did not expressly provide a statutory definition of “obscene” that applied to either the computer or the telephone statutes.

Nevertheless, in deciding Allman in 2004, the Court of Appeals held that the statutory definition of obscenity as expressed in Code § 18.2–372 should apply to a prosecution under Code § 18.2–427 for making obscene telephone calls. The Court's conclusion was based upon the premise that the Code of Virginia “constitutes a single body of law and other sections can be looked to where the same phraseology is employed.” Allman, 43 Va.App. at 109, 596 S.E.2d at 534 (internal quotation marks omitted).

In Allman, the defendant made telephone calls to an attorney, reviling him for his conduct in a civil case. The defendant used a term having a strong sexual connotation but employed it in a sense that it merely accused the attorney of cowardice or effeminacy. Applying Code § 18.2–372, the Court held that the defendant's language was not such as to create a jury issue whether, considered as a whole, it had as its dominant theme or purpose an appeal to the prurient interest in sex. Id. at 113, 596 S.E.2d at 535. The Court of Appeals therefore held that Allman's telephone calls were not obscene and reversed his conviction. Id. at 113, 596 S.E.2d at 536.

The Court of Appeals followed Allman in Lofgren v. Commonwealth, 55 Va.App. 116, 684 S.E.2d 223 (2009), a similar case of telephone calls employing words having explicit sexual connotations that were used to express anger or contempt. The Court reversed the conviction, holding that, in context, the words lacked an appeal to the prurient interest in sex. Id. at 121–22, 684 S.E.2d at 226.

In Airhart v. Commonwealth, Record No. 1219–05–2, 2007 WL 88747 (Jan. 16, 2007) (unpublished), the Court of Appeals considered obscenity in the context of the statute with which we are concerned in the present case, harassment by computer under Code § 18.2–152.7:1.

Noting the parallel language employed by the General Assembly in Code §§ 18.2–152.7:1 and 18.2–427, and the fact that both sections lacked an express statutory definition of “obscene,” the Court of Appeals applied the definition in Code § 18.2–372 and followed in Allman, to a prosecution for harassment by computer. Although the words used by Airhart had explicit sexual connotations, they were used to express anger, contempt and disgust and were not used in an erotic sense....