Stoltz v. Commonwealth
| Decision Date | 19 June 2018 |
| Docket Number | Record No. 0352-17-4 |
| Court | Virginia Court of Appeals |
| Parties | ROBERT LEIGH STOLTZ v. COMMONWEALTH OF VIRGINIA |
UNPUBLISHED
Present: Judges Beales, Chafin and O'Brien
Argued at Fredericksburg, Virginia
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jonathan P. Sheldon (Thomas Walsh; Sheldon, Flood & Haywood, PLC; Petrovich & Walsh, PLC, on briefs), for appellant.
Robert H. Anderson, III, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
A jury convicted Robert Leigh Stoltz ("appellant") of using a computer to solicit a minor, in violation of Code § 18.2-374.3. Appellant contends that Code § 18.2-374.3 is unconstitutional as applied to him.1 We disagree and affirm his conviction.
On the afternoon of November 4, 2014, appellant placed an advertisement for sexual companionship in the "casual encounters" section of Craigslist.2 The advertisement was entitled, and stated:
The advertisement included a photograph of an erect penis.
Detective Blake Albritton of the Fairfax County Police Department's Child Exploitation Unit saw appellant's advertisement and responded, posing as a thirteen-year-old girl. Craigslist does not verify the identity or age of anyone who posts, responds to, or simply views advertisements. Users can request anonymous email accounts to avoid revealing their contact information.
Using the pseudonym "Annie," Detective Albritton sent the following email to appellant:
hi, I'm bored and off of school today, but i'm only 13...i knwo I hsouldn't be in there but i thought ur ad was umm like cool and stuff so i thought i'd say hi. i have a pic if you want but if i'm 2 young tahts o.k. and i wont' bother u. i can't believe i'm sending this e-mail!!! annie.
Appellant responded from the anonymous email account: "Hi - thanks for replying - I'd love to see a picture . . . I am definitely interested and 23 isn't too young . . . :)." Detective Albritton emailed back several minutes later stating, "13 not 23 hehe..." Appellant asked to see a picture of "Annie." Detective Albritton, who is male, sent appellant a picture of a twenty-five-year-old female officer. Appellant replied: "Annie" asked appellant to send his picture, and upon receiving it, "Annie" responded that he "look[ed] like [the] guy from [M]ighty [D]ucks."
"Annie" and appellant continued exchanging emails. "Annie" told appellant that she lived near the Walmart in Burke. She was home alone because her parents were out of town and she did not have school that day. In one email, "Annie" asked appellant what he wanted to do and mentioned that she did not drive. Appellant responded,
Later that afternoon, appellant began to communicate with "Annie" on Yahoo messenger. "Annie" again asked what appellant wanted to do with her, and he replied: Appellant later specified: "i'd like to kiss you and get naked with you. then touch your body all over and you can touch me all over too." He asked "Annie" if she had kissed a boy before and if she liked being touched.
"Annie" asked appellant if she could call him to ascertain if he was "real." Appellant was initially reluctant but he eventually provided his phone number. A female detective, also posing as "Annie," called him. During the telephone conversation, appellant truthfully identified himself as Robert. "Annie" reiterated that she was thirteen years old, and appellant asked if that was "really" her age. "Annie" responded affirmatively and then asked if her age was "okay" with appellant. Appellant stated, He indicated that initially he wanted to "just talk" with Annie, but she had responded to his Craigslist post and he was "kind of in the mood to . . . you know." They agreed to meet outside the Burke Walmart near "Annie's" house around 7:30 p.m., and "Annie" requested that appellant "bring protection" with him. Appellant stated that he would be driving a "blue Explorer SUV."
At 7:32 p.m. that evening, appellant texted "Annie" that he was at Walmart. "Annie" told him to meet her "on [the] side of [the] garden center" at the store and asked him what he was wearing. Appellant responded, From the Walmart parking lot, Detective Albritton observed appellant respond to "Annie's" text messages and then walk toward a white BMW SUV. Appellant went into a nearby Dairy Queen, returned to the BMW, and left the parking lot.
Detective Albritton stopped the BMW a few minutes later and explained to appellant "why [he] was there, and what [he] was looking for." Appellant, who was wearing black pants and a white sweater, denied going to Walmart to meet anyone. Instead, appellant said he was in the area to play golf at a nearby course, and then decided to buy fertilizer at Walmart and ice cream at Dairy Queen. Appellant allowed Detective Albritton to examine his phone, but Detective Albritton did not see any evidence of the messages between "Annie" and appellant. Because he could not positively identify appellant as the man who solicited a sexual encounter from "Annie," Detective Albritton did not arrest appellant at that time.
Detective Albritton obtained Craigslist records identifying the IP address for the computer that was used to post the initial advertisement. Based on this information, Detective Albritton was able to trace the advertisement back to a computer located at appellant's residence in Falls Church.
The police executed a search warrant at appellant's home and recovered his personal laptop. On November 11, 2014, Detective Albritton arrested appellant and interviewed him. Initially, appellant maintained that he was in Burke to play golf and then decided to stop at Walmart for fertilizer. Eventually, however, he admitted that he placed the Craigslist advertisement, sent the subsequent messages to "Annie," and went to Walmart to determine if she "was real."
At trial, appellant, who is the CEO of a web design company, acknowledged that he placed the advertisement in the "casual encounters" section of Craigslist. He stated that he thought "Annie" was "playing around" about her age and that she might be interested in Appellant also testified that he suspected "Annie" was an adult because she sounded like a mature woman when they spoke by telephone and she recognizedan actor from a 1990s-era movie. However, he also testified that he did not believe he was communicating with the actual woman in the picture "Annie" had sent him. Instead, he thought the individual posing as "Annie" was trying to "scam" him, and he continued to engage online because he was "just curious to see what they were going for." Appellant also testified that he had no intention of actually meeting someone at Walmart, which is why he provided "Annie" with false information about the type of car he was driving and what he was wearing.
At the conclusion of the evidence, the court instructed the jury on the elements of the crime. One instruction included the language, 3 The court denied appellant's request for an alternative instruction that would have required the Commonwealth to prove beyond a reasonable doubt "that [appellant] knew, or believed, that such child was less than fifteen (15) years of age at the time." The court further instructed the jury that "[r]eason is a faculty of the mind by which it distinguishes truth from falsehood, good from evil, and which enables the possessor to deduce inferences from facts or from propositions."
During deliberations, the jury asked the court for [']" The court did not specifically answer the question but directed the jury to review the instructions of law.
The jury found appellant guilty. Following his conviction, appellant moved to set aside the jury verdict. The court denied his motion and imposed the jury's sentence.
We review a challenge to the constitutionality of a statute de novo. Shivaee v. Commonwealth, 270 Va. 112, 119, 613 S.E.2d 570, 574 (2005). "[A]ll acts of the General Assembly are presumed to be constitutional," Yamaha Motor Corp. v. Quillian, 264 Va. 656, 665, 571 S.E.2d 122, 126 (2002), and "we are required to resolve any reasonable doubt regarding the constitutionality of a statute in favor of its validity," In re Phillips, 265 Va. 81, 85-86, 574 S.E.2d 270, 272 (2003). The burden rests on the party challenging the enactment to prove that the statute is unconstitutional. Marshall...
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