Grafmuller v. Commonwealth Of Va.

• Decision Date: 31 August 2010
• Docket Number: Record No. 1327-09-1.
• Citation: 57 Va.App. 58,698 S.E.2d 276
• Parties: Michael GRAFMULLERv.COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

57 Va.App. 58

698 S.E.2d 276

Michael GRAFMULLERv.COMMONWEALTH of Virginia.

Record No. 1327-09-1.

Court of Appeals of Virginia.

Aug. 31, 2010.

Charles E. Haden, Hampton, for appellant.

Susan M. Harris, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: FRANK and BEALES, JJ., and BUMGARDNER, Senior Judge.

BEALES, Judge.

Michael Grafmuller (appellant) pled guilty via an Alford plea ¹ to violating Code § 18.2-374.3,² use of a communication system to solicit, with lascivious intent, a person he knows or has reason to believe is under the age of fifteen. On appeal, he contends the trial court erred in sentencing him pursuant to the mandatory minimum provisions contained in Code § 18.2-374.3(C).³ For the following reasons, we find that the trial court did not err.

I. Background

The underlying facts are not in controversy. Appellant contacted a person that he believed was thirteen years old, via both a telephone and an email address, to arrange sexual intercourse at the home of the person's alleged aunt. This person in reality, however, was a policewoman. He was charged with four offenses arising out of this incident, including one count of violating Code § 18.2-374.3.

After appellant pled guilty via an Alford plea to these offenses,⁴ the trial court continued the case for a sentencing hearing. At that hearing, appellant objected to sentencing under Code § 18.2-374.3(C), which contains a mandatory minimum sentence of five years “if the [defendant] is at least seven years older than the child he knows or has reason to believe is less than 15 years of age.” He argued that, because the actual “child” in this case was not less than fifteen years old, the mandatory minimum sentence should not be imposed.

The trial court disagreed and sentenced appellant to ten years with five years suspended, consistent with the mandatory minimum sentence provision in the Code.⁵

II. Analysis

Under Code § 18.2-374.3(C), a defendant is guilty of illegally using a communication system if he contacts “any person he knows or has reason to believe is a child less than 15 years of age” with lascivious intent for the purpose of soliciting that person's involvement in any of several sexual encounters. While generally this crime is treated as a Class 5 felony, if a defendant was “at least seven years older than the child he knows or has reason to believe is less than 15 years of age,” then he shall be sentenced to “a term of imprisonment of not less than five years nor more than 30 years in a state correctional facility, five years of which shall be mandatory minimum term of imprisonment.” Code § 18.2-374.3(C).

Appellant, who was thirty-two years old at the time of the offense, contends that the trial court misinterpreted this statute. Specifically, he argues that the use of “the child” in the sentencing portion of Code § 18.2-374.3(C) should be interpreted to mean that the mandatory minimum sentence applies only when the victim is actually a child. As the recipient of his email and telephone communications in this case was a policewoman, not an actual child, appellant contends that the trial court erred in applying the five-year minimum in this case.

A. Statutory Interpretation Principles

“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). This Court must avoid interpretations that would “violate the settled principle of statutory construction that every part of a statute is presumed to have some effect and no part will be considered meaningless unless absolutely necessary.” Id. In this analysis, we are guided by the principles expressed in Harris v. Commonwealth, 142 Va. 620, 625, 128 S.E. 578, 579 (1925):

When we know the object of a statute and are called upon to construe a phrase or a sentence which, standing alone, may be susceptible of different interpretations, we know of no safer rule than to take the statute by its four corners and critically examine it as a whole to ascertain the legislative intent, as manifested by its different provisions. If, upon such an examination, an interpretation can be made, consistent with the language used, which will carry into effect the object sought to be accomplished by the statute, that interpretation should be adopted, in preference to one which would be equally consistent with the language used, standing alone, but which would defeat, or tend to defeat, the manifest intent of the legislature.

In short, courts must defer to the clear language enacted by the General Assembly and its clear purpose for enacting or amending a statute.

B. Use of “the child” in Code § 18.2-374.3(C)

In order to convict a defendant of a violation of Code § 18.2-374.3(C), the trial court must find inter alia, that the defendant was communicating with “any person” that he “knows or has reason to believe is a child less than 15 years of age.” ⁶ Appellant conceded that he communicated with the police officer believing that she was a child less than fifteen years old. The sentencing language then requires that a perpetrator receive at least a five-year sentence if he “is at least seven years older than the child he knows or has reason to believe is less than 15 years of age.” Code § 18.2-374.3(C) (emphasis added). Appellant argues that his crime did not actually involve a child, so “the child” is nonexistent in this case. Therefore, he contends, the mandatory minimum provision in the statute does not apply here. We disagree.

This Court has previously noted that the purpose behind this portion of Code § 18.2-374.3 is to criminalize “the knowing use of a communications system to solicit a minor for certain criminal acts,” but “does not require the solicitation of an actual minor.” Podracky v. Commonwealth, 52 Va.App. 130, 138, 141, 662 S.E.2d 81, 85, 87 (2008). Code § 18.2-374.3(C) creates a crime that involves the incitement to act illegally rather than actually committing the illegal act. Thus, the legislature clearly did not intend that the victim must be an actual child; the defendant's solicitation of sexual behavior from a person that he believes is a child constitutes the behavior that the legislature intended to prohibit. Id. at 142, 662 S.E.2d at 88 (noting that “ Hix also establishes that Podracky was guilty of criminal solicitation despite the fact that he mistakenly addressed his solicitations to an adult police officer.” (citing Hix v. Commonwealth, 270 Va. 335, 619 S.E.2d 80 (2005))); see Huffman v. Commonwealth, 222 Va. 823, 826-27, 284 S.E.2d 837, 839-40 (1981) (discussing solicitation as an inchoate crime, universally recognized under the common law of the United States). The legislature crafted the language that establishes this offense, and the punishment for it, in a manner that makes proof of the actual age of the recipient of the offending communication irrelevant. A trial court may convict a defendant upon proof that he believed the person that he solicited was a child. Thus, in every case of a conviction under Code § 18.2-374.3(C), if the defendant communicates with the victim of his solicitations and that person is held out to the defendant as being a child under the age of fifteen, then the person solicited is “a child”-whether the actual person contacted is a child or not-for the purposes of this statute.⁷

With this manifest intent of the General Assembly in mind Harris, 142 Va. at 625, 128 S.E. at 579, we turn to the sentencing portion of Code § 18.2-374.3(C). In order for the mandatory minimum to apply to appellant's sentencing, the evidence needed to prove that he was “at least seven years older than the child he knows or has reason to believe is less than 15 years of age.” (Emphasis added.) Appellant claims that the use of “the child” indicates that the legislature intended that, for purposes of the mandatory minimum, the victim must be an actual child.

Although to convict a defendant under Code § 18.2-374.3 the Commonwealth does not need to prove that the defendant contacted an actual child, the General Assembly, by enacting this statute, 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. See Colbert v. Commonwealth, 47 Va.App. 390, 398-99, 624 S.E.2d 108, 112-13 (2006) (noting that the provisions of what is now Code § 18.2-374.3(C) are intended to protect children). The lack of a requirement that the Commonwealth prove any assault occurred and the lack of a requirement that an actual child be contacted clearly indicate this intent. See Hubbard, 255 Va. at 340, 497 S.E.2d at 338 (“[T]he general rule of statutory construction is to infer the legislature's intent from the plain meaning of the language used.”). Applying the mandatory minimum sentencing provisions only to circumstances where a defendant contacted an actual child would undermine this purpose, allowing defendants who have the same purpose and take the same actions to avoid mandatory prison terms and continue their attempts to solicit children.

Code § 18.2-374.3(C) requires that the trial court sentence a defendant to at least five years if “the person,” i.e., the defendant, is seven years or more older than “ the child he...