Dietz v. Commonwealth
| Decision Date | 03 May 2016 |
| Docket Number | Record No. 0861-15-1 |
| Court | Virginia Court of Appeals |
| Parties | KIMBERLEE DIETZ v. COMMONWEALTH OF VIRGINIA |
UNPUBLISHED
Present: Judges Decker, Russell and Senior Judge Felton
Argued at Norfolk, Virginia
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Timothy G. Clancy (Moschel, Clancy & Walter, P.L.L.C.; Clancy & Walter, P.L.L.C, on briefs), for appellant.
Lauren C. Campbell, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
In a bench trial, Kimberlee Dietz (appellant) was convicted of using a communications system for purposes of procuring or promoting the use of a minor for an illicit purpose, in violation of Code § 18.2-374.3(B). Code § 18.2-374.3(B) provides, in pertinent part:
It is unlawful for any person to use a communications system, including but not limited to computers or computer networks or bulletin boards, or any other electronic means for the purposes of procuring or promoting the use of a minor for any activity in violation of § 18.2-370 or 18.2-374.1.
Under Code § 18.2-370(A)(1), it is unlawful for any person eighteen years of age or more, "with lascivious intent, [to] knowingly and intentionally . . . [e]xpose his or her sexual or genital parts to any child to whom such person is not legally married . . . ."1
On appeal, appellant contends the evidence was insufficient to sustain her conviction because she engaged only in inappropriate texting with a person she believed was a minor.2 She maintains the trial court erred in failing to find that a conviction under Code § 18.2-374.3(B) requires the defendant to have used an electronic device to communicate with a third party, not merely the minor himself, to procure or promote the illegal activity with the minor. She further argues that the photograph she sent the police officer who was posing as a minor did not contain an exposure of a sexual or genital part, as set forth in Code § 18.2-370(A)(1). We reject appellant's arguments on appeal, find the evidence sufficient to support the conviction, and affirm the judgment of the trial court.
"When the sufficiency of the evidence is challenged on appeal, we determine whether the evidence, viewed in the light most favorable to the prevailing party, the Commonwealth, and the reasonable inferences fairly deducible from that evidence support each and every element of the charged offense." Slade v. Commonwealth, 43 Va. App. 61, 69, 596 S.E.2d 90, 94 (2004) (quoting Haskins v. Commonwealth, 31 Va. App. 145, 149-50, 521 S.E.2d 777, 779 (1999)).
When considering on appeal the sufficiency of the evidence presented below, we "presume the judgment of the trial court to be correct" and reverse only if the trial court's decision is "plainly wrong or without evidence to support it." Davis v. Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002) . . . . Thus, we do not "substitute our judgment for that of the trier of fact." Wactor v. Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002). "Instead, the relevant question iswhether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). "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." Id.
Kelly v. Commonwealth, 41 Va. App. 250, 257-58, 584 S.E.2d 444, 447 (2003) (en banc).
So viewed, the evidence proved that on March 2, 2014, appellant was a teacher employed at a public elementary school in the city of Hampton. G.S., who was then eleven years old, was one of appellant's students.
A few weeks before March 2, 2014, appellant asked G.S. for the number to his cellular telephone. Appellant told G.S. she was asking for the number because a female student wanted it. G.S. provided appellant the number to his cell phone. Thereafter, G.S. received text messages from an unknown source. Ultimately, G.S. determined that the text messages he was receiving were from appellant.
One evening, G.S. was watching a movie at home with his father, Ronald Simon, and his brother. Simon became concerned about text messages G.S. was receiving, and asked who was sending them. G.S. responded that appellant was sending the messages. Simon took G.S.'s phone and reported the matter to the police.
G.S.'s parents surrendered the child's phone to the police. Using G.S.'s phone, and following the thread of prior text messages between appellant and G.S., Officer Randy Mayer then posed as G.S. in a further exchange of text messages with appellant. During the exchange, appellant sent G.S. four photographs of herself. The photographs were taken while appellant was in the bathtub. One of the photographs was of appellant's unclothed shoulders and a large portion of her breasts. In the photograph, appellant's arm shields from view her nipples and theportions of her breasts below that level. Other photographs were of appellant's legs and lips. One of them showed appellant's legs, in the bathtub and surrounded by soap suds, with one leg raised above the edge of the tub.
In the exchange of messages during which appellant sent the photographs of herself, appellant expressed guilt about her interactions with G.S., that she knew what she was doing was "inappropriate," and that she knew her actions could subject her to criminal prosecution or termination from her job. She asked G.S. if he wanted her to send pictures of herself in the bathtub. When he responded yes, she sent the photograph of her legs, then told G.S. to delete it. She asked if G.S. had seen a woman's "boobs" before, and he said he had, but only on television. She then sent him the photograph of her breasts. Afterward, appellant told G.S. to delete the photo. Appellant then sent a photo of her lips in a kissing motion. Appellant advised G.S. to hide her contact information on his phone from his parents. She also said she wanted to kiss G.S. and that she wished he was eighteen so that they could be together. The exchange of messages ended because G.S.'s phone was losing power.
After the exchange of messages, the police arrived at appellant's home with a search warrant. Mayer explained to appellant that he was the person with whom she had been texting. She admitted that she thought she had sent the photos to G.S., not Mayer.
At trial, the parties stipulated: "[N]one of the messages sent to [G.S.] were [sic] sexually explicit nor did they contain anything that would rise to the level of explicit or lascivious intent." The parties further stipulated that appellant sent G.S. messages that "she wished that [G.S.] was 18 years old so that they could be together," and indicating she thought G.S. "was cute." G.S. had received text messages that he later deleted from his phone because appellant asked him to do so.
Consideration of both issues raised by appellant on appeal requires us to review the trial court's interpretation of the statutory language contained in Code § 18.2-374.3 and Code § 18.2-370(A)(1) and its determination of the required elements of the crime of which appellant was convicted.
"Statutory interpretation is a question of law which we review de novo, and we determine the legislative intent from the words used in the statute, applying the plain meaning of the words unless they are ambiguous or would lead to an absurd result." Wright v. Commonwealth, 278 Va. 754, 759, 685 S.E.2d 655, 657 (2009). In addition, we should avoid interpretations that "would negate the legislative intent and would require an unreasonably restrictive interpretation of the statute." Ansell v. Commonwealth, 219 Va. 759, 763, 250 S.E.2d 760, 763 (1979). When "a statute contains no express definition of a term, the general rule of statutory construction is to infer the legislature's intent from the plain meaning of the language used." Hubbard v. Henrico Ltd. Pshp., 255 Va. 335, 340, 497 S.E.2d 335, 338 (1998).
Grafmuller v. Commonwealth, 57 Va. App. 58, 61-62, 698 S.E.2d 276, 278 (2010). "In short, courts must defer to the clear language enacted by the General Assembly and its clear purpose for enacting or amending a statute." Id. at 62, 698 S.E.2d at 278.
As her assignment of error, appellant asserts:
The trial court erred in finding the evidence sufficient as a matter of law to prove the required element of procuring or promoting the use of a minor under Virginia Code § 18.2-374.3(B) where the evidence showed only that the Defendant/Appellant engaged in inappropriate texting directly with the "minor."
She argues the statute was intended to target those who use electronics to "troll" for a minor for an illicit purpose.
Although not defined within Code § 18.2-374.3, this Court has found the term "procure" means "'to take care of, bring about, obtain: achieve.'" Bakran v. Commonwealth, 57 Va. App.197, 204, 700 S.E.2d 471, 474 (2010) (quoting Fine v. Commonwealth, 31 Va. App. 636, 641, 525 S.E.2d 69, 71 (2000)), aff'd, 282 Va. 344, 718 S.E.2d 463 (2011). We find no definition of "promote" either in Virginia statutes or case law. But see 21A Michie's Jurisprudence of Virginia and West Virginia, Words and Phrases, Part 3 ().
By enacting Code § 18.2-374.3, "the General Assembly . . . clearly intended to protect children from people who would take advantage of them before the perpetrator could commit a sexual assault on an actual child." Grafmuller, 57 Va. App. at 65, 698 S.E.2d at 280 ( Code § 18.2-374.3(C)).
The plain language of Code § 18.2-374.3(B), including the terms "procure" and "promote," contains no requirement that the person with whom the defendant communicates be someone...
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