Dietz v. Commonwealth
| Decision Date | 07 September 2017 |
| Docket Number | Record No. 160857. |
| Citation | 804 S.E.2d 309,294 Va. 123 |
| Parties | Kimberlee DIETZ v. COMMONWEALTH of Virginia |
| Court | Virginia Supreme Court |
Timothy G. Clancy (Clancy & Walter, on briefs), Hampton, for appellant.
Lauren C. Campbell, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
The circuit court found Kimberlee Dietz, an elementary school teacher, guilty under Code § 18.2–374.3(B)1 of the crime of using a cell phone for "purposes of procuring or promoting" one of her 11–year–old students for activity that would violate Code § 18.2–370 ().2 Upholding the conviction, the Court of Appeals of Virginia rejected Dietz's argument that the Commonwealth's evidence was insufficient to prove she committed the offense. We affirm the judgment of the Court of Appeals.
Dietz and the Commonwealth stipulated to the following evidence at the beginning of her bench trial on the charge of violating Code § 18.2–374.3(B). Dietz was a teacher at an elementary school in the City of Hampton and the victim, G.S., an 11–year–old boy, was one of her students. G.S. gave Dietz the number to his cell phone at Dietz's request, claiming that another student wanted it. Dietz then began texting messages to G.S., stating among other things that he was "cute" and she wished he was 18 years old so they could "be together." None of those text messages to G.S. that had been saved on his phone at that time were "lascivious" in nature. However, G.S. deleted other text messages from Dietz at her request. G.S.'s parents subsequently discovered that Dietz and G.S. were texting each other during one such exchange of messages and contacted the City of Hampton Police Department ("CHPD"). G.S.'s cell phone was then turned over to Detective Randy Mayer. In light of these stipulations, the Commonwealth did not deem it necessary to call either G.S. or his parents as witnesses to testify at Dietz's trial.
The remainder of the Commonwealth's case was presented through the testimony of Detective Mayer and Karyn Buhrman, a CHPD forensic specialist. As they explained, while posing as G.S., Mayer, with Buhrman's assistance, texted Dietz on G.S.'s cell phone in continuation of the text messaging between Dietz and G.S. earlier that day. During this exchange, Dietz sent five pictures from her phone to G.S.'s phone, believing she was sending them to G.S. Four of the pictures were of Dietz's legs, face, lips, and a portion of her breasts, while she was lying in a bathtub. The Commonwealth introduced these pictures at trial through Mayer and Buhrman, along with a five-page transcript of their text-message conversation with Dietz. Believing she was texting G.S., Dietz made the following series of statements as reported in the transcript:
This exchange came to a close when Dietz was told that G.S.'s cell phone was "dying," to which Dietz concluded:
As Detective Mayer further testified, that same day, he executed a search warrant of Dietz's home, where he confronted her and explained that he had actually been the one text messaging with her for the last several hours. Dietz began crying and admitted to Mayer that she thought she had been communicating with G.S., even though she suspected something was wrong because G.S. had "never talked to [her] like that before." Acknowledging that the communications were inappropriate, she explained that her husband had moved out and she liked the attention she received from G.S.
Dietz presented no evidence in her own defense, but moved to strike the Commonwealth's evidence on sufficiency grounds. She argued that use of the words "procure" and "promote" in Code § 18.2–374.3(B) involve communicating through some communications system, as defined in the statute, with a third party in an attempt to obtain a child or promote a child for the prohibited enumerated sexual offenses under Code § 18.2–370, and no such evidence was offered by the Commonwealth. Alternatively, Dietz argued that absent such interpretation of Code § 18.2–374.3(B) requiring a third-party communication, the evidence was still insufficient to prove a violation of this provision. She argued in particular that the Commonwealth failed to prove its case because none of the pictures she sent to G.S.'s cell phone depicted the exposure of "her sexual or genital parts" as specifically proscribed under Code § 18.2–370(A)(1).3 With regard to the picture of her partially exposed breasts, in which her nipples were covered by her arm, she argued that the picture was not proscribed under subsection (A)(1) because it did not constitute nudity as defined in Code § 18.2–390 (). She also argued there was no evidence of lascivious intent as required under Code § 18.2–370(A)(1). The circuit court denied Dietz's motion to strike and found her guilty of violating Code § 18.2–374.3(B)"based on all of the evidence."
Dietz appealed her conviction to the Court of Appeals, arguing, as she did at trial, that the Commonwealth's evidence was insufficient to prove she committed the offense. The Court of Appeals affirmed her conviction in an unpublished opinion. Dietz v. Commonwealth, Record No. 0861–15–1, 2016 WL 1741611, at *6, 2016 Va. App. LEXIS 146, at *16 (May 3, 2016) (unpublished). First, the Court of Appeals rejected Dietz's contention that the trial court erred in refusing (i) to hold that a conviction under Code § 18.2–374.3(B) requires a defendant to use an electronic device to communicate with a third person, not the minor himself, in the form of a solicitation to procure or promote illegal activity under Code § 18.2–370, and (ii) to then find that the Commonwealth offered no such evidence. Id. at *3–4, 2016 Va. App. LEXIS 146, at *7–9. The Court of Appeals held that the plain language of Code § 18.2–374.3(B)"contains no requirement that the person with whom the defendant communicates be someone other than the minor he or she seeks to involve in the illegal activity." Id. at *4, 2016 Va. App. LEXIS 146, at*8.4
Second, the Court of Appeals rejected Dietz's argument that the evidence against her was insufficient on the grounds that no purported predicate violation of Code § 18.2–370(A)(1) occurred because the picture of her partially covered breasts did not constitute exposure of a "sexual part." Id. at *4, 2016 Va. App. LEXIS 146, at *9. The Court of Appeals determined that ...
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