Podracky v. Com., Record No. 0113-07-1.

• Decision Date: 10 June 2008
• Docket Number: Record No. 0113-07-1.
• Citation: 662 S.E.2d 81,52 Va. App. 130
• Parties: Dean Robert PODRACKY v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

662 S.E.2d 81

52 Va. App. 130

Dean Robert PODRACKY v. COMMONWEALTH of Virginia.

Record No. 0113-07-1.

Court of Appeals of Virginia, Chesapeake.

June 10, 2008.

James O. Broccoletti (Peter D. Greenspun; Zoby & Broccoletti, P.C.; Greenspun, Davis & Leary, P.C., on brief), Fairfax, for appellant.

Robert H. Anderson, III, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: Judges KELSEY, HALEY and BEALES.

HALEY, JR., Judge.

Dean Robert Podracky ("Podracky") appeals his conviction for using a communications system to solicit a person, he knew or had reason to believe was a minor, for certain sexual offenses in violation of Code § 18.2-374.3(B). The only question presented in this appeal is whether the statute is facially overbroad because it prohibits free speech in violation of the First Amendment to the United States Constitution. Finding that Code § 18.2-374.3(B) does not prohibit speech protected by the First Amendment, we affirm his conviction.

FACTS

A.M. telephoned the police in January of 2005 after receiving electronic mail from Podracky. A.M. had known Podracky for more than five years and had a sexual relationship with him. Podracky's e-mail to A.M. was introduced into evidence at trial. The message suggested that A.M. have a sexual encounter with a sixteen-year-old girl. Again via e-mail, Podracky also sent A.M. photographs of L.H., a sixteen-year-old girl Podracky met over the internet.

Before 2005, both A.M. and L.H. often communicated with Podracky by computer using a simultaneous text message program provided by America Online ("AOL"). After A.M. called the police, investigating officers identified L.H. from the photographs Podracky had sent A.M. Detective Lisa Krisik of the Virginia Beach Police Department received permission from the parents of L.H. for Detective Krisik to pretend to be L.H. while communicating with Podracky over the internet. Using L.H.'s AOL instant messenger identity, Detective Krisik engaged Podracky in several online conversations over the next few weeks. A.M. participated in these conversations as well. On January 17, Podracky suggested that the three of them meet at his hotel room and that the three of them also have sex with each other at the same time. On January 25, Podracky suggested to Detective Krisik that he would use a sex toy on L.H. and that he would teach her to perform fellatio on him. On January 27, Podracky sent messages to A.M. and Detective Krisik through an internet "chat room" that was only accessible by invitation. A.M. asked Detective Krisik, still pretending to be L.H., if she was really sixteen. Detective Krisik responded that she was. During the conversation, Podracky stated that he would bring a camera to take sexually explicit photographs of L.H. with A.M.

On January 27, and again on February 1, Podracky arranged that L.H. and A.M. meet him at the Crown Plaza Hotel on Monday, February 7, 2005. Again using AOL, Podracky confirmed these arrangements with A.M. and Detective Krisik on February 6 and 7. Detective Krisik, accompanied by other police officers, went to meet Podracky and saw him at the hotel. She recognized him from a photograph that he had sent to L.H. Podracky made statements to the police confirming that he was the person who sent the messages to L.H. Police also served a search warrant on Podracky's hotel room. They found a laptop computer, a camera, a sex toy, and some condoms.

ANALYSIS

At the time Podracky sent the messages that formed the basis of his conviction in the trial court, Code § 18.2-374.3(B) read as follows:

It shall be unlawful for any person over the age of eighteen 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 soliciting any person he knows or has reason to believe is a minor for (i) any activity in violation of § 18.2-355 or § 18.2-361, (ii) any activity in violation of § 18.2-374.1, (iii) a violation of § 18.2-374.1:1 or (iv) any activity in violation of subsection A of § 18.2-370. As used in this subsection "use a communications system" means making personal contact or direct contact through any agent or agency, any print medium, the United States mail, any common carrier or communication common carrier, any electronic communication system, or any telecommunications, wire, computer or radio communications system.¹

Relying on our Supreme Court's recent decision in Jaynes v. Commonwealth, 275 Va. 341, 657 S.E.2d 478 (2008), the Commonwealth argues that Podracky does not have standing to present a facial challenge to the statute. We do not address this argument. "[A]n appellate court decides cases `on the best and narrowest ground available.' ... Coupled with these principles of judicial prudence is the proposition that an appellate court may structure a decision on an `assuming but not deciding' basis." Luginbyhl v. Commonwealth, 48 Va.App. 58, 64, 628 S.E.2d 74, 77 (2006) (quoting Air Courier Conference v. American Postal Workers Union, 498 U.S. 517, 531, 111 S.Ct. 913, 921, 112 L.Ed.2d 1125 (1991) (Stevens, J., concurring)). Accordingly, we assume without deciding that Podracky has standing to offer a First Amendment challenge to Code § 18.2-374.3(B). We, nonetheless, conclude that the statute does not prohibit constitutionally protected speech.

FIRST AMENDMENT OVERBREADTH

"As a general principle, the First Amendment bars the government from dictating what we see or read or speak or hear." Ashcroft v. Free Speech Coalition, 535 U.S. 234, 245-46, 122 S.Ct. 1389, 1399, 152 L.Ed.2d 403 (2002). However, not all words are entitled to the protection of the First Amendment, and the weight of authorities in Virginia and elsewhere clearly permit the state to prohibit the solicitation of a crime.

Although agreements to engage in illegal conduct undoubtedly possess some element of association, the State may ban such illegal agreements without trenching on any right of association protected by the First Amendment. The fact that such an agreement necessarily takes the form of words does not confer upon it, or upon the underlying conduct, the constitutional immunities that the First Amendment extends to speech. Finally, while a solicitation to enter into an agreement arguably crosses the sometimes hazy line distinguishing conduct from pure speech, such a solicitation, even though it may have an impact in the political arena, remains in essence an invitation to engage in an illegal exchange for private profit, and may properly be prohibited.

Brown v. Hartlage, 456 U.S. 45, 55, 102 S.Ct. 1523, 1529, 71 L.Ed.2d 732 (1982). "The government, of course, may punish adults who provide unsuitable materials to children, and it may enforce criminal penalties for unlawful solicitation." Free Speech Coalition, 535 U.S. at 251-52, 122 S.Ct. at 1402 (citing Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968)) (emphasis added). "Criminal solicitation involves the attempt of the accused to incite another to commit a criminal offense." Branche v. Commonwealth, 25 Va.App. 480, 490, 489 S.E.2d 692, 697 (1997).

As the United States Supreme Court recently reaffirmed: "Offers to engage in illegal transactions are categorically excluded from First Amendment protection." United States v. Williams, ___ U.S. ___, 128 S.Ct. 1830, ___ L.Ed.2d ___, 2008 U.S. LEXIS 4314, at *24 (May 19, 2008) (holding that "offers to provide or requests to obtain child pornography are categorically excluded from the First Amendment"); see also Pedersen v. City of Richmond, 219 Va. 1061, 1066, 254 S.E.2d 95, 98 (1979). See also Singson v. Commonwealth, 46 Va.App. 724, 742-43, 621 S.E.2d 682, 690-91 (2005). "We know of no authoritative holding which extends First Amendment protection to a solicitation to commit an act lawfully prohibited by statute." Riley v. United States, 298 A.2d 228, 233 (D.C.1972). "Reasonable prohibitions against soliciting unlawful acts do not violate free speech rights. Because First Amendment protection does not extend to statements made in the solicitation of criminal acts, [Georgia statute forbidding solicitation of sodomy] does not reach protected speech." Christensen v. State, 266 Ga. 474, 468 S.E.2d 188, 190 (1996).

In arguing that Code § 18.2-374.3(B) prohibits constitutionally protected free speech, Podracky relies on Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997). In Reno, the United States Supreme Court struck down two provisions of the Communications Decency Act ("CDA"), provisions that prohibited the knowing transmission of obscene or indecent messages to persons under eighteen. Id. at 859-60, 117 S.Ct. at 2338. The Court struck down the disputed provisions of the CDA because they prohibited constitutionally protected communications between adults over the internet. Id. at 876, 117 S.Ct. at 2346-47.

In arguing that the CDA does not so diminish adult communication, the Government relies on the incorrect factual premise that prohibiting a transmission whenever it is known that one of its recipients is a minor would not interfere with adult-to-adult communication. The findings of the District Court make clear that this premise is untenable. Given the size of the potential audience for most messages, in the absence of a viable age verification process, the sender must be charged with knowing that one or more minors will likely view it. Knowledge that, for instance, one or more members of a 100-person chat group will be minor — and therefore that it would be a crime to send the group an indecent message — would surely burden communication among adults.

Id. Podracky argues that, in light of the language quoted above, the knowledge element of Code § 18.2-374.3(B) as to the age of the person solicited ("for the purposes of soliciting any person he knows or has reason to believe is a minor")...