Murgia v. Commonwealth
| Decision Date | 30 May 2017 |
| Docket Number | Record No. 0788-16-1 |
| Court | Virginia Court of Appeals |
| Parties | MARK DAVID MURGIA v. COMMONWEALTH OF VIRGINIA |
UNPUBLISHED
Present: Judges Beales, AtLee and Senior Judge Bumgardner
Argued at Richmond, Virginia
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Charles B. Lustig for appellant.
Lauren C. Campbell, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Mark D. Murgia appeals his conviction for computer solicitation of a minor in violation of Code § 18.2-374.3(D). He argues the evidence was insufficient to prove he solicited, proposed, or incited the victim to commit any of the acts proscribed by Code § 18.2-374.3(C). We agree the evidence was insufficient and reverse the conviction.
The victim was a sixteen-year-old female high school student. She ran track, and the defendant was a specialty coach for her track team. The victim worked with the defendant on four or five occasions, and they had exchanged cell phone numbers. In March of 2015, when preparing for a track meet, the victim exchanged text messages with the defendant to schedule stretching sessions. In one message, the victim asked for help in the high jump event. The defendant responded, "Ok, cool...I'm gonna stretch your tight ass legs out and loosen them hips up too." Thedefendant also sent messages stating, and
Another message exchange began with the victim texting, "I have to get better and you're the only person I know that can actually focus their time just on me." The defendant responded, She responded, "It's true lol coach stan has like 30 other girls to focus on plus the boys too." He wrote back,
At one point, the defendant told the victim he had had a "crazy" dream about her. When she asked about the dream, he texted back:
Lol ok u asked for it... Don't know where we were but we were watching TV like u said last night but we were hugged up cuddling like it was normal lol...that quickly escalated to a body message [sic] but we were both naked as the day born (awkward but strangely comfortable) ...u were on your stomach and the message [sic] turned into my lips on the back of your thighs and butt... I spread your legs from behind and started slowly sucking on your kitty lips and working your clit in my mouth...u turned over and I kissed up your stomach to your breasts and gently sucked your nipples while I worked my incredibly hard dick up your thigh...I put the head against your kitty lips and slowly pushed inside you little by little until I was deep inside you...slowly long stroked that kitty, I could feel you wrapped tight around me taking me deep inside you...I was kissing your neck and you flipped me over bent over to kiss me and started slow dragging that pussy up and down my shaft like it was yours until I felt your warm cum run down my dick and I let go inside of you filling you with hot me...yeah needless to say I woke up like wtf??
The defendant also texted, "[d]ream came out of nowhere, sorry if that hurt your eyes while readin," and
The victim testified she "didn't think anything of" the defendant's text message about his dream, but after she sent the message to a friend, the police became involved. On cross-examination, the victim testified that when the defendant worked with her as a coach, theyalways met in public places, and other people were always present. She testified the defendant never touched her or said anything inappropriate to her. He never asked her to meet him alone, even after sending the message about the dream.
When interviewed by Officer Perry M. Bossuot, the defendant denied having contact by phone or text message with any of the students he coached. He specifically denied having contact with any students at the victim's school, stating that such contact would be inappropriate. The officer asked about possible "racy" text messages the defendant may have sent. The defendant stated it was "possible" he sent such messages "mainly because he was a physical therapy person."
In finding appellant guilty, the trial court stated it considered the conduct of the accused, "whatever intent flows naturally from that conduct," and the context in which the communications took place. It noted that the victim was a sixteen-year-old high school student, and the defendant was her track coach. The trial court based its finding of guilt on the extremely graphic nature of the messages and the relationship of the victim and the defendant.
"On appeal, we will consider the evidence in the light most favorable to the Commonwealth, as it prevailed in the trial court." Whitehurst v. Commonwealth, 63 Va. App. 132, 133, 754 S.E.2d 910, 910 (2014). Code § 18.2-374.3(D) provides:
Any person who uses a communications system, including but not limited to computers or computer networks or bulletin boards, or any other electronic means, for the purposes of soliciting, with lascivious intent, any child he knows or has reason to believe is at least 15 years of age but younger than 18 years of age to knowingly and intentionally commit any of the activities listed in subsection C if the person is at least seven years older than the child is guilty of a Class 5 felony.
The activities listed in Code § 18.2-374.3(C) are:
"[T]he gravamen of [the crime of solicitation lies] in counselling, enticing or inducing another to commit a crime." Huffman v. Commonwealth, 222 Va. 823, 827, 284 S.E.2d 837, 840 (1981) (quoting Cherry v. State, 306 A.2d 634, 637-38 (Md. Ct. Spec. App. 1973)).
Id. (quoting Cherry, 306 A.2d at 638).
The offense is complete at the time of the actual solicitation; there is no requirement that the accused "proceed to the point of some overt act in the commission of crime." Wiseman v. Commonwealth, 143 Va. 631, 638, 130 S.E. 249, 251 (1925). "The act of solicitation may be completed before any attempt is made to commit the solicited crime." Brooker v. Commonwealth, 41 Va. App. 609, 614, 587 S.E.2d 732, 734 (2003) (quoting Ford v. Commonwealth, 10 Va. App. 224, 226, 391 S.E.2d 603, 604 (1990)).
The specific intent to commit [a crime] may be inferred from the conduct of the accused if such intent flows naturally from the conduct proven. Where the conduct of the accused under the circumstances involved points with reasonable certainty to a specific intent to commit [the crime], the intent element is established.
Id. at 614, 587 S.E.2d at 734-35 (quoting Wilson v. Commonwealth, 249 Va. 95, 101, 452 S.E.2d 669, 674 (1995)). "[I]ntent is 'a secret operation of the mind.'" Riegert v. Commonwealth, 218 Va. 511, 518-19, 237 S.E.2d 803, 807-08 (1977) ).
While the defendant does not deny that he sent the messages to the victim, he maintains that the evidence was insufficient to prove that he encouraged or incited the victim to commit any of the acts enumerated in the statute. The defendant contends that the holding in Ford controls this case.
Ford was convicted of violating Code § 18.2-29, Criminal solicitation.1 In Ford, two female students from Randolph-Macon College were waiting in the drive-through lane at a McDonald's restaurant. Ford, 10 Va. App. at 225, 391 S.E.2d at 603-04. Ford, a McDonald's employee, walked to their car, leaned against the driver's side of the car and asked the women if they attended Randolph-Macon. Id. at 225, 391 S.E.2d at 604. The women answered affirmatively and resumed their conversation. Id. Ford mumbled something. Id. One of the women asked Ford what he wanted. Id. Ford replied that he wanted sex, and he stated, "'I want to lick your pussy.'" Id. The women rolled up their car windows and reported Ford's behavior to the manager.
This Court reversed Ford's conviction, finding that Ford's statements "were no more than the expression of his own desire and did not constitute a command, entreaty or attempt to persuade either" woman to engage in oral sodomy. Id. at 228, 391 S.E.2d at 605. The trial court was "plainly wrong in concluding that the Commonwealth had sustained its burden of proving that Ford spoke to [either woman] with the intent 'to induce' either of them to act." Id.
In this case, the messages sent to the victim did not show the defendant intended to induce the victim to commit a criminal offense, though one message contained graphic descriptions of sexual conduct with the victim. "The conduct...
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