Holcomb v. Commonwealth of Va..

Decision Date07 June 2011
Docket NumberRecord No. 0546–10–1.
Citation709 S.E.2d 711,58 Va.App. 339
PartiesJohn Andrew–Collins HOLCOMBv.COMMONWEALTH of Virginia.
CourtVirginia Court of Appeals

OPINION TEXT STARTS HERE

Afshin Farashahi (Afshin Farashahi, P.C., on brief), Virginia Beach, for appellant.Leah A. Darron, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.Present: ELDER, PETTY and ALSTON, JJ.ELDER, Judge.

John Andrew–Collins Holcomb (appellant) challenges the sufficiency of the evidence supporting his conviction for knowingly communicating a written threat in violation of Code § 18.2–60(A)(1). Specifically, appellant argues 1) his MySpace posts are not the type of communication contemplated or prohibited by the statute, and 2) the posted lyrics do not constitute a threat. Because the evidence supports a finding that appellant posted a threat on his MySpace profile that placed the recipient in reasonable apprehension of death or bodily injury, we affirm appellant's conviction.

I.BACKGROUND

Appellant and the victim, Miranda Rollman, were previously involved in a romantic relationship that produced a daughter. After the relationship dissolved, a custody battle ensued over their child. During this time and prior to appellant's arrest for the current offense, he began posting incendiary messages on his MySpace profile,1 resulting in his arrest.

At trial, the court admitted into evidence several printouts from appellant's MySpace profile. One of the blog entries—titled “Unfinished Bizness God, I Give You the ‘woodroll’ family. Tell them to ‘F the F OFF and GET OFF ME,’—read:

Poof! Make ya daughter disappear like 2pac!

He knew now what he do like 2 cops

With no vest, off'd with 2 shots

Thru the chest from 2 blocks!

Another post dated August 22, 2009, read:

Custody battles, restraining orders

Bitch made me go mad I just had to stab her

Blind now I see her true colors

On the front cover of The World's Most Murdered Mothers

By Americas Most Wanted Fathers

The post continued, “Ain't nobody playin' bitch[,] slit your neck into a fountain drink,” “This is your pre-accident announcing[.] Fuck your fliers [,] I already put the word out for the crowd 2 see[,] “No one hearing your screams from the knife cut sounds,” and “See you with my daughter I'm a snatch her.” A final post dated August 24, 2009, read:

Still psychotic runnin' wit the hatchet

Never lettin' go ya throat becomes my obsession

Slit throats, blood flows, forever dead and never woke

Bitch don't get choked, sit down ho, don't provoke

This entry concluded with, “Still labeled psychotic just in case you're not worried; murder makes me happy so don't believe I'm nervous.”

Upon being alerted by family members, Rollman testified that she used her mother's computer to access her MySpace account and view appellant's posts. After reading them, she “was scared that [she] was going to be killed, maimed; [her] daughter was going to be kidnapped by [appellant] due to “the extent of the details of exactly what [appellant] wanted to do to [her].” Rollman explained she believed these threats were directed toward her and her family because the blog entry addressed “the ‘woodroll’ family,” and “Woodroll is my maiden name.” Rollman further testified that one of the posts referenced an incident involving two police officers being called to her house, and the other post referred to a time when her mother passed out flyers with appellant's picture at Rollman's place of employment. Rollman acknowledged she and appellant were going through a custody battle and restraining orders had been issued. Taking these posts seriously, Rollman moved into her parents' home because they have a security system and cameras.”

On cross-examination, Rollman admitted that appellant's MySpace profile contained [p]lenty of different things” in addition to the posts. Rollman confirmed that appellant described himself as a “juggalo,” which is part of “a big family” that “play[s] the same kind of music, listen[s] to the same kind of music.” Appellant “considers himself to be something of a lyricist of [rap] music,” though he didn't write demented things” during the course of his relationship with Rollman. Rollman speculated that appellant considered the posts “one long song,” and it was “all on the front page for the world to see.”

Appellant testified in his own defense. He characterized the compilations of words he composed and posted as “art,” “meant to be songs” and “just clever limericks.” Appellant testified he had “been writing songs since [he] was eleven years old, and they're on [his] MySpace profile because it's there to express who you are.” He acknowledged he knew Rollman had a MySpace profile but maintained he did not invite her or her family to view his profile. However, he agreed that he put the material on his profile “for the express purpose of it being seen by other people.” Appellant knew he had posted material in April that caused Rollman to be in fear. He denied ever intending for Rollman to read his posts and feel threatened, but acknowledged the posts “if [they] were reality ... that would be very horrifying; and to think that I think it just to write it is—you know, could just be as horrifying.” Appellant testified that he attempted to block Rollman's access to his profile sometime in September 2009 and later deleted his profile altogether.

The trial court found that appellant's ongoing custody dispute involving his daughter created a “connection or [a] nexus” between his posts and Rollman's “individual situation” such that the posts constituted “very veiled threats.” The trial court accordingly found appellant guilty of communicating a threat in violation of Code § 18.2–60, and this appeal followed.

II.ANALYSIS

Appellant challenges the sufficiency of the evidence supporting his conviction for communicating a written threat in violation of Code § 18.2–60(A)(1).2 When the sufficiency of the evidence is challenged on appeal, the court views the evidence in the light most favorable to the prevailing party and draws all reasonable inferences in its favor. See Dunbar v. Commonwealth, 29 Va.App. 387, 393, 512 S.E.2d 823, 826 (1999). ‘The judgment of the trial court sitting without a jury is entitled to the same weight as a jury verdict and will not be set aside unless it appears from the evidence that the judgment is plainly wrong or without evidence to support it.’ Wilkins v. Commonwealth, 18 Va.App. 293, 295, 443 S.E.2d 440, 442 (1994) (en banc) (quoting Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987)). We “must discard all evidence of the accused that conflicts with that of the Commonwealth and regard as true all credible evidence favorable to the Commonwealth and all fair inferences reasonably deducible therefrom.” Lea v. Commonwealth, 16 Va.App. 300, 303, 429 S.E.2d 477, 479 (1993). “The weight which should be given to evidence and whether the testimony of a witness is credible are questions which the fact finder must decide.” Bridgeman v. Commonwealth, 3 Va.App. 523, 528, 351 S.E.2d 598, 601 (1986).

A.COMMUNICATION

Appellant first argues the evidence fails to establish that he knowingly communicated the posts within the meaning of the statute. Appellant suggests that because his chosen medium was “available for everyone to view” on a public website and he did not specifically send the posts to Rollman or direct her to view his posts, he cannot be convicted. We disagree.

In 1998, the General Assembly amended Code § 18.2–60 to criminalize threats contained in “electronically transmitted communication[s] producing a visual or electronic message.” 1998 Va. Acts ch. 687. Code § 18.2–60(A)(1) contains no requirement that the accused must communicate the written threat directly to the intended victim. Instead, [p]roof that [the accused] intended to make and communicate the [alleged] threat and that the [alleged] threat was made and communicated satisfies the statutory requirement.” Summerlin v. Commonwealth, 37 Va.App. 288, 298, 557 S.E.2d 731, 736 (2002). The statute is concerned with neither the mode of communication nor the number of recipients of the alleged threatening communication. E.g., Keyes v. Commonwealth, 39 Va.App. 294, 298, 572 S.E.2d 512, 514 (2002) (affirming the defendant's conviction under former Code § 18.2–60(A) even though his threatening letter had been intercepted in the mail before it reached its intended victim); see also United States v. Morales, 272 F.3d 284, 288 (5th Cir.2001) (rejecting the defendant's argument that his online statements could not constitute a true threat under 18 U.S.C. § 875(c) because they were made to a random third party who had no connection with” the intended victim).

In interpreting 18 U.S.C. § 875(c),3 the Second Circuit rejected a similar argument “that the broadcast of the threat to an indefinite and unknown audience is not a ‘communication’ of that threat.” United States v. Kelner, 534 F.2d 1020, 1023 (2d Cir.1976). The court reasoned that if this argument were taken to its logical conclusion, “any would-be threatener could avoid the statute by seeking the widest possible means of disseminating his threat.” Id. Rather, the proper inquiry was whether the accused “intended to communicate a threat of injury through means reasonably adapted to that purpose.” Id.

As applied to this case, posting a message on a MySpace profile plainly falls into the category of an “electronically transmitted communication” because it produces a “visual or electronic message” that can be viewed by anyone who has access to that person's MySpace profile. In fact, the Commonwealth was readily able to print out the posts from appellant's MySpace profile and enter them into evidence at his trial. Appellant further concedes that he knowingly posted the messages on his MySpace profile. If these messages constituted threats, then nothing more is required. Cf. Wise v. Commonwealth, 49 Va.App. 344, 355, ...

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