Colbert v. Com.

• Decision Date: 10 January 2006
• Docket Number: Record No. 0154-05-3.
• Parties: James Warren COLBERT v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

624 S.E.2d 108

47 Va. App. 390

James Warren COLBERT v. COMMONWEALTH of Virginia.

Record No. 0154-05-3.

Court of Appeals of Virginia, Salem.

January 10, 2006.

Darren Shoen, for appellant.

Kathleen B. Martin, Assistant Attorney General (Judith Williams Jagdmann, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., and McCLANAHAN and HALEY, JJ.

McCLANAHAN, Judge.

James Warren Colbert was convicted on five charges of computer solicitation for sex with a minor, in violation of Code § 18.2-374.3(B). As part of his sentence, Colbert was required to register as a sex offender, pursuant to Code § 9.1-902(A)(2). On appeal, Colbert contends that the trial court erred by imposing the registration requirement because his solicitations were not directed to an actual minor, but rather to an undercover police officer posing as a minor. For the reasons that follow, we affirm the trial court.

I. BACKGROUND

On five separate occasions, Colbert used his computer to solicit sex with someone he thought was a thirteen-year-old girl. Colbert asked to engage in sexual intercourse or oral sodomy on each occasion. The person with whom Colbert corresponded on the Internet was, in fact, an undercover police officer posing as a thirteen-year-old girl. When the police confronted him, Colbert admitted to committing the offenses and subsequently pled guilty to five charges of computer solicitation for sex with a minor, in violation of Code § 18.2-374.3(B).¹

Upon Colbert's conviction of the five charges, the trial court sentenced Colbert to four years on each charge, with the sentences to run concurrently, suspended after serving six months in jail. The conditions of Colbert's suspended sentences were, inter alia, that he be placed on supervised probation for four years after his release from jail; have no unsupervised contact with any juvenile except his own children; have no access to the Internet except for business purposes; and register as a sex offender, pursuant to Code § 9.1-902(A)(2). Colbert objected to the sex offender registration requirement, which the court imposed.

II. ANALYSIS

The sole issue presented on appeal is whether Colbert was required to register as a sex offender, pursuant to subsection (A)(2) of Code § 9.1-902, because his computer solicitations for sex were directed to an undercover police officer posing as a minor, rather than an actual minor. More specifically, even though Colbert was guilty of computer solicitation for sex with a minor under Code § 18.2-374.3(B) because he had reason to believe he was soliciting a thirteen-year-old girl, see Hix v. Commonwealth, 270 Va. 335, 619 S.E.2d 80 (2005) (discussed supra), Colbert asserts that the offender registration requirement is only triggered where there was an actual minor victim, pursuant to the prefatory language of Code § 9.1-902(A)(2). This is a question of law that involves the interpretation and application of Code § 9.1-902(A)(2), and, thus, we review the trial court's judgment de novo. See Rollins v. Commonwealth, 37 Va.App. 73, 79, 554 S.E.2d 99, 102 (2001) ("`We review the trial court's statutory interpretations and legal conclusions de novo.'" (quoting Timbers v. Commonwealth, 28 Va.App. 187, 193, 503 S.E.2d 233, 236 (1998))).

As always in such cases, we are guided by well-established principles of statutory construction. "`The proper course [in] all these cases is to search out and follow the true intent of the legislature, and to adopt that sense of the words which harmonizes best with the context, and promotes in the fullest manner the apparent policy and objects of the legislature.'" Jones v. Rhea, 130 Va. 345, 372, 107 S.E. 814, 823 (1921) (quoting United States v. Winn, 28 F. Cas. 733, 734 (D.Mass.1838)); see also Last v. Virginia State Bd. of Med., 14 Va.App. 906, 910, 421 S.E.2d 201, 205 (1992) (explaining that statutory construction's main purpose is determining legislative intent, "`which, absent constitutional infirmity, must always prevail'" (quoting Bd. of Supervisors v. King Land Corp., 238 Va. 97, 103, 380 S.E.2d 895, 897 (1989))).

Thus, while legislative intent "must be gathered from the words used, . . . unreasonable or absurd results must not be reached by too strict adherence to literal interpretation." Buzzard v. Commonwealth, 134 Va. 641, 653, 114 S.E. 664, 667 (1922). In addition, statutes in pari materia must be considered together in construing their various material provisions. Id. This requires that "[t]he literal meaning of separate provisions, if in apparent conflict[,]. . . must yield to a reasonable and fair interpretation to be gathered from the context, the subject matter and the reason and spirit of the law." Id. Similarly, "`[a] provision of a section of a statute ought not to receive a mere literal interpretation, when it would contravene the intention of the Legislature apparent from the other sections and provisions thereof. . . .'" Pound v. Dep't of Game and Inland Fisheries, 40 Va.App. 59, 68, 577 S.E.2d 533, 537 (2003) (quoting Tabb v. Commonwealth, 98 Va. 47, 56-57, 34 S.E. 946, 949 (1900)). We do not isolate particular words or phrases but rather examine a statute in its entirety. Altice v. Roanoke County Dep't of Soc. Servs., 45 Va.App. 400, 406, 611 S.E.2d 628, 631 (2005). In doing so, we have a "duty to interpret the several parts of a statute as a consistent and harmonious whole so as to effectuate the legislative goal." Virginia Elec. & Power Co. v. Bd. of County Supervisors, 226 Va. 382, 387-88, 309 S.E.2d 308, 311 (1983) (citation omitted). Furthermore, where applicable, as here, we must keep in mind "the evil sought to be corrected by the legislature." Southern Ry. Co. v. Commonwealth, 205 Va. 114, 117, 135 S.E.2d 160, 164 (1964).

We must begin our analysis with the statutory scheme under which Colbert was required to register as a sex offender. See Sex Offender and Crimes Against Minors Registry Act (Code §§ 9.1-900 to 9.1-920). The express purpose of the Act is "to assist the efforts of law-enforcement agencies and others to protect their communities and families from repeat sex offenders and to protect children from becoming victims of criminal offenders by helping to prevent such individuals from being allowed to work directly with children." Code § 9.1-900. The Act also expressly states that it shall be liberally construed to effect its stated purpose. Code § 9.1-920.²

To provide such assistance, the Act creates a registry in the Commonwealth that requires registration with the Virginia State Police by those convicted of certain sex-related crimes (against both minors and adults) and certain other non-sexual crimes specifically targeted against minors, or those otherwise physically helpless or mentally incapacitated. All of these criminal offenses—the violation or attempted violation of which trigger the registration requirement upon conviction—are listed under Code § 9.1-902, consisting of non-violent (both sexual and non-sexual) offenses under subsections (A)(1), (2) and (3); "sexually violent offenses" under subsection (A)(4), as defined therein; and murder, where the victim is a minor, under subsection (A)(5).³

Code § 18.2-374.3(B)(iv), under which Colbert was convicted, is listed under subsection (A)(2) of Code § 9.1-902, which provides as follows:

A. For purposes of this chapter:

"Offense for which registration is required" means:

* * * * * * *

2. Where the victim is a minor or is physically helpless or mentally incapacitated as defined in § 18.2-67.10, a violation or attempted violation of subsection A of § 18.2-47, clause (i) or (iii) of § 18.2-48, § 18.2-67.4, subsection C of § 18.2-67.5, 18.2-361, 18.2-366, or clause (iv) of subsection B of § 18.2-374.3;. . . .

(Emphasis in original.)

Colbert points to the prefatory language in this subsection—"[w]here the victim is a minor" —in support of his contention that he is not subject to the Act's offender registration requirement. Colbert argues that, based on the plain meaning of that language, there had to be an actual minor victim in order for the registration requirement to have applied to him upon his conviction. Thus, even though Colbert believed that the undercover law-enforcement officer whom he solicited was a thirteen-year-old girl, and, in doing so, committed five separate criminal offenses of computer solicitation for sex with a minor, in violation of Code § 18.2-374.3(B)(iv), Colbert nevertheless contends that he is exempt from the Act. We disagree.

Upon a review of Code § 9.1-902(A)(2)'s prefatory language in its proper context, not in isolation as Colbert would have us view it, and in light of the Act's explicit statement of legislative purpose, we find that Colbert's interpretation of that language is without merit. First, under subsection (A)(1) of Code § 9.1-902, all of the listed substantive offenses are non-violent sexual offenses, some of which pertain only to offenses against minors, e.g., Code § 18.2-63 (carnal knowledge of a child between thirteen and fifteen years old), while the other offenses are non-specific in terms of the age of the victim, e.g., Code § 18.2-90 (unauthorized entry in a dwelling house with intent to commit rape). In proscribing sex-related criminal conduct, each of the offenses listed under this subsection falls squarely within the scope of the Act. In contrast, the non-violent offenses listed under subsection (A)(2) consist of both sexual and non-sexual offenses. Only Code §§ 18.2-374.3(B)(iv) and 18.2-48(iii) (kidnapping a child under the age of sixteen for the purpose of concubinage or prostitution) are limited, by their own terms, to offenses against minors. The other six offenses are non-specific in terms of the victim's age. Two of these are kidnapping offenses: Code §§ 18.2-47(A) (kidnapping), and 18.2-48(i) (kidnapping with the intent to extort money or pecuniary benefit). The other four are sexual offenses: Code §§ 18.2-67.4 (sexual battery), 18.2-67...