Stoltz v. Commonwealth, Record No. 181033
| Decision Date | 01 August 2019 |
| Docket Number | Record No. 181033 |
| Citation | 831 S.E.2d 164 |
| Court | Virginia Supreme Court |
| Parties | Robert Leigh STOLTZ, Appellant, v. COMMONWEALTH of Virginia, Appellee. |
Robert Leigh Stoltz challenges his conviction for violating Code § 18.2-374.3(C) by using a computer for the purpose of soliciting a minor. Stoltz claims that the statute is both vague and overbroad, thus violating his freedom of speech and his due process rights under the First and Fourteenth Amendments of the United States Constitution. The trial court and the Court of Appeals disagreed with Stoltz, as do we.
"On appeal, we review the evidence in the ‘light most favorable’ to the Commonwealth, the prevailing party in the trial court." Commonwealth v. Perkins , 295 Va. 323, 323, 812 S.E.2d 212 (2018) (per curiam) (citation omitted). "Viewing the record through this evidentiary prism requires us to ‘discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.’ " Id. at 323-24, 812 S.E.2d 212 (citation omitted).
So viewed, the record shows that in 2014, the Fairfax County Police Department operated a Child Exploitation Unit ("CEU") dedicated to, among other things, investigating "solicitations of minors by adults using the [I]nternet as the main source of that solicitation." 1 J.A. at 272-73. Working in an "undercover capacity," CEU detectives would pose as minors and appear on websites "looking for potential child predators." Id. at 273-74. In November 2014, a CEU detective posed as a 13-year-old girl named Annie and accessed the Casual Encounters webpage of Craigslist. At that time, the Casual Encounters webpage allowed individuals to post advertisements seeking casual, anonymous sex. A notification on that webpage stated that only adults could use it, but, as the detective testified, "there’s no verification of any kind" because the user does not Id. at 275-76. Based upon his prior "training and experience with child exploitation investigations," the detective knew that minors accessed the Casual Encounters webpage of Craigslist.
The detective scanned through the advertisements on the Casual Encounters webpage and discovered an advertisement, later confirmed to have been posted by Stoltz, entitled: Commonwealth’s Ex. 1 (emphasis in original).2 Accompanied by a picture of an erect penis, the pertinent part of Stoltz’s advertisement stated:
Id. (alterations in original).
Stoltz’s advertisement caught the detective’s eye because some advertisements on that webpage (he did not specify what percentage) would expressly say: "I’m looking for an adult, or I’m looking for an age range ... twenty to twenty-five, or eighteen and over." 1 J.A. at 329. The "vagueness" of Stoltz’s advertisement drew the detective’s attention based on his "experience working these types of investigations" and the fact that "[t]here was nothing specifically asking for an adult." Id. Having "responded and looked at thousands" of advertisements on Craigslist and similar websites, the detective had "never seen" an advertisement that explicitly said an adult was looking for sex with a minor. Id. at 329-30. Pedophiles are never that direct, the detective explained, because "Craigslist would remove the ad immediately" if it expressly sought out a minor. Id. at 330.
The detective responded to Stoltz’s advertisement, posing as 13-year-old Annie and stating that she was not in school that day. When Annie offered to send a photograph of herself, Stoltz responded that he would love to see one. The detective sent Stoltz a picture of the face of an adult Fairfax County animal control officer. Pictures of the animal control officer, a 25-year-old with a youthful face, had been used in prior undercover investigations. The email conversation through Craigslist continued with Annie asking what Stoltz wanted to do. Annie also asked Stoltz whether it was okay that she could not drive. Stoltz responded that he would Commonwealth’s Ex. 2. Regarding Annie not being able to drive, he stated, "I can drive to you so no worries." Id.
The conversation moved from the Craigslist emails to Yahoo Messenger when Stoltz provided Annie with his Yahoo email address. During that portion of the conversation, Annie further explained that her parents were out of town and that she was home alone and out of school. When Stoltz asked her why she had looked on Craigslist, Annie responded that she was "curious and stuff," to which Stoltz responded, "I hear taht." Commonwealth’s Ex. 3. When Annie asked Stoltz again what he was planning, Stoltz responded, "I’m really open - but if you’re curious maybe I can help?" Id. Stoltz asked Annie, "do you like kissing?" and "have you kissed a boy before?," to which Annie responded in the affirmative. Id. Annie then asked Stoltz "wut else" he had in mind, and Stoltz asked Annie if she "like[d] being touched," to which Annie responded, "i haven’t been touched b4 sorry." Id. Annie asked again what the two were "going to do," and Stoltz responded, "well - i like kissing and touching - would you be interested in touching me?" Id. When Annie asked Stoltz for further clarification, Stoltz responded, "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." Id.
Annie then asked for a phone call with Stoltz to ensure that he was real. Stoltz was initially reluctant to give out his phone number but eventually gave Annie an anonymous phone number through Google Voice that could not be traced back to his phone. The detective had a female colleague, mimicking the voice of a young female, talk to Stoltz on the phone while posing as Annie. The two agreed to meet at a Walmart near where Annie supposedly lived.
Stoltz arrived at Walmart at the appointed time, and the detective and his team observed Stoltz walking near the area where Stoltz had arranged to meet Annie. Stoltz also appeared to be on his phone, and the detective, still posing as Annie, was continuing to receive text messages from Stoltz during this time. When Stoltz eventually left the Walmart parking lot, the detective and his team initiated a traffic stop. When the detective told Stoltz why he was there, Stoltz said that he knew nothing about any contact with Annie and that he was not there to meet anybody. Stoltz gave the detective permission to look through his phone, but the detective found nothing relevant and concluded that the phone’s browsing history had been deleted. The detective did not arrest Stoltz at that time. Shortly thereafter, the detective sent an administrative subpoena to Craigslist, which confirmed that the IP address associated with the original advertisement was tied to Stoltz’s home. The detective then obtained a search warrant for Stoltz’s home and eventually arrested Stoltz.
Stoltz was charged with one count of computer solicitation of a minor and one count of attempted indecent liberties with a child. His first trial ended in a hung jury. At Stoltz’s second trial the court gave, at Stoltz’s request and over the Commonwealth’s objection, an instruction explaining the reason-to-believe concept found in the computer-solicitation statute. The instruction defined "[r]eason" as "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." R. at 234. During its deliberations, the jury asked for clarification as to whether the phrase "reason to believe" in the statute meant that Stoltz had to "find the reason credible." Id. at 218 (emphasis in original). The trial court referred the jury to the instructions. See id. The jury thereafter convicted Stoltz of computer solicitation of a minor but found him not guilty of attempted indecent liberties with a child.
Stoltz moved for a new trial. He claimed that the jury’s question, along with post-verdict conversations with a juror, had revealed that the statute’s use of the phrase "reason to believe," Code § 18.2-374.3(C), was unconstitutionally vague in violation of his Fourteenth Amendment rights and overbroad in violation of his First Amendment rights. The trial court denied the motion, and Stoltz appealed to the Court of Appeals, raising the same constitutional arguments. In an unpublished opinion, the Court of Appeals found that Stoltz had waived any facial challenge to the statute at oral argument and that his remaining as-applied challenges were meritless. See Stoltz v. Commonwealth , Record No. 0352-17-4, 2018 WL 3027015, at *1 n.1, *3-5 (Va. Ct. App. June 19, 2018). Stoltz now appeals to us.
Stoltz argues that the Court of Appeals erred in not finding Code § 18.2-374.3(C) unconstitutional, both facially and as applied, under the First and Fourteenth Amendments of the United States Constitution. The challenged statute states, in relevant part:
It is unlawful for any person 18 years of age or older to use a communications system ... for the purposes of soliciting, with lascivious intent, any person he knows or has reason to believe is a child younger than...
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