Barson v. Commonwealth

711 S.E.2d 220 (2011) 58 Va. App. 451 Dennis B. BARSON, Jr. v. COMMONWEALTH of Virginia. Record No. 2464-09-1. Court of Appeals of Virginia, Richmond. July 5, 2011. *221 Samuel R. Brown, II, for appellant. John W. Blanton, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee. Present: FELTON, C.J., and ELDER, HUMPHREYS, KELSEY, McCLANAHAN, PETTY, BEALES, POWELL and ALSTON, JJ. HUMPHREYS, Judge. Dennis Barson ("Barson") was convicted in the Circuit Court of the City of Virginia Beach ("trial court") on one count of harassment by computer, in violation of Code § 18.2-152.7:1.[1] Barson contends on appeal that the evidence presented at trial was insufficient as a matter of law to support his conviction. A divided panel of this Court agreed with Barson and reversed his conviction. See Barson v. Commonwealth, No. 2464-09-1, 2010 WL 4284631 (Va.Ct.App. Nov. 2, 2010). We granted the Commonwealth's petition for rehearing en banc and stayed the mandate of the panel decision.[2]*222 Upon rehearing en banc, we affirm the trial court. I. Background Barson and his wife "A.B." had been married for eight years at the end of April 2009. At that time, Barson lived in Austin, Texas, while completing his medical subspecialty training in neurology, and A.B. lived in Virginia Beach with their children. On May 1, 2009, Barson received a phone call from a friend that alerted him to a "Craigslist" advertisement for sex. Barson visited the site and reviewed the posted advertisements. Upon seeing the advertisements, Barson became very angry and embarrassed and tried to call his wife. When his calls went unanswered, Barson began to send e-mail messages to A.B., her friends, and family members. Whenever a friend or family member responded to an e-mail, Barson forwarded the response to A.B. A.B. testified that she received eighty-seven e-mails between May 1, 2009 and May 14, 2009, and she received hundreds more over the span of the next six months. The subject lines of the e-mails included phrases such as, "[A.B.] has sex with anonymous strangers on Craigs [sic] List Ads while husband lives in hotel working 3 jobs," "I wanted [D] and your cousins to know about your new hobby of soliciting sex on CL," and "Coke Whore Baby Killer Mom's Club Needs to Know." In the e-mails themselves, appellant wrote such things as "[You have] BORDERLINE PERSONALITY DISORDER look it up when you get off your knees from CL," and "I work my ass off and you suck off and fuck strangers on Craigs [sic] List," and "I told [M] ... how you sucked off [D's] roommate 3 days in AZ ... wanted to jump [D's] bones after 10 years killing your baby because it was a bother to you both and then picked [C] the coke dealer up at Rio fucked his brains out and vacuumed his baby to death for an eight ball." The messages contained phrases such as, "my dad said you had a job ... or blowjob? Which one do you get paid for and which is free? Not like you didn't suck off [J.L.] or looney [R] for an eightball!!!! If you didn't have crooked teeth and huge thighs you might be able to make money spreading your legs and sucking off Joe Pintos (strangers) [sic]." Appellant also sent a couple of messages from his cell phone along those same lines, alleging "STD['s] from risky gutter sex," and stating its "time to put your big girl pants on and get a job not take them off and give a blowjob." On May 14, 2009, A.B. filed a criminal complaint for computer harassment in the General District Court for the City of Virginia Beach. On July 30, 2009, that court found Barson guilty as charged. Barson then appealed the matter to the trial court, which conducted a bench trial de novo on October 8, 2009. At trial, Barson testified that he sent the e-mails because he was angry, hurt, and embarrassed. He was also trying to "get a response" from A.B. Barson additionally testified he assumed that by forwarding the e-mails to her friends and family members, A.B. would be embarrassed. Upon the conclusion of the evidence, the trial court found Barson guilty and imposed a fine of $250. When Barson asked the court to reconsider, the court responded, "No. He did it over and over and over again. It's disgusting. See the clerk." II. Analysis Barson argues on appeal that the evidence presented at trial was insufficient as a matter of law to support his conviction for computer harassment. Barson concedes the language used in the e-mails he sent to his wife was "offensive and course," but, relying on our holding in Allman v. Commonwealth, 43 Va. App. 104, 596 S.E.2d 531 (2004), maintains the language contained in his e-mails does not meet the definition of "obscene" for purposes of his conviction under Code § 18.2-152.7:1. Barson also argues that in the event we reject his argument, due process principles prevent affirmance of his conviction in light of his reliance on our holding in Allman. Standard of Review When the sufficiency of the evidence is challenged on appeal, we view the evidence and all reasonable inferences fairly deducible therefrom in the light most favorable to the party prevailing below to determine whether the evidence presented at trial *223 supports each and every element of the offense charged. Haskins v. Commonwealth, 31 Va.App. 145, 149-50, 521 S.E.2d 777, 779 (1999). "[W]hen we consider the sufficiency of the evidence we do not consider each piece of evidence in isolation. Instead, we review the totality of the evidence to determine whether it was sufficient to prove an offense." Bowling v. Commonwealth, 51 Va. App. 102, 107, 654 S.E.2d 354, 356 (2007). "The judgment of the trial court is presumed to be correct and will be reversed only upon a showing that it is plainly wrong or without evidence to support it." Goble v. Commonwealth, 57 Va.App. 137, 153, 698 S.E.2d 931, 939 (2010) (citation omitted). Thus, our review is limited to the narrow issue of whether "`any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). That is, [i]n practical terms, a reviewing court does not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.... We ask only whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.... This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.... Thus, we do not substitute our judgment for that of the trier of fact even if our opinion were to differ. Atkins v. Commonwealth, 57 Va.App. 2, 21, 698 S.E.2d 249, 258 (2010) (emphasis in original) (internal quotations omitted). Discussion Barson focuses his argument on the single question of whether the evidence was sufficient to permit a reasonable fact finder to conclude that the content of Barson's e-mails contained "obscene, vulgar, profane, lewd, lascivious, or indecent language," or that he made "any suggestion or proposal of an obscene nature, or threaten[ed] any illegal or immoral act." Barson specifically argues that since the content of the e-mails in question does not meet the definition of "obscene," the evidence is insufficient as a matter of law to support his conviction for violating Code § 18.2-152.7:1.[3] Although this issue has not previously been addressed by this Court with respect to this particular statute, there are several other statutes in the Code containing similar language prohibiting conduct or communications of a similar nature. Accordingly, any analysis of this issue must historically begin with Code § 18.1-238, the predecessor to current Code § 18.2-427. Code § 18.1-238 provided, "if any person shall curse or abuse anyone, or use vulgar, profane, threatening or indecent language over any telephone in this state, he shall be guilty of a misdemeanor." In Walker v. Dillard, 523 F.2d 3, 5 (4th Cir.1975), the United States Court of Appeals for the Fourth Circuit ("Fourth Circuit") held that Code § 18.1-238, which "regulate[d] only speech" was unconstitutionally overbroad. Starting "from the proposition that the state has a legitimate interest in prohibiting obscene, threatening, and harassing phone calls, none of which are generally thought of as protected by the First Amendment," id. at 4, the Fourth Circuit found "nevertheless, [that] while such activity may permissibly be punished, the proscription must not be one that unduly impinges on protected expression." Id. The Fourth Circuit found that while the language Mrs. Walker used over the telephone in that case might be "constitutionally prohibited under a narrowly and precisely drawn statute," id. at 4 (emphasis added), the words "vulgar," "profane," and "indecent" in the statute, standing alone, were unconstitutionally overbroad. The court specifically observed that such words are protected speech because they amount to "neither obscenity nor fighting words." Id. at 5 (emphasis added). The court then noted that *224 words like "vulgar," "profane," and "indecent" are only ever permissibly prohibited as "obscene" when they have been used in conjunction with other, more specific adjectives like "obscene," "lewd," and "lascivious." Id. at 6. In 1976, in response to Walker, the General Assembly amended Code § 18.1-238 and re-codified it as Code § 18.2-427. That code section now provides: Any person who uses obscene, vulgar, profane, lewd, lascivious, or indecent language, or makes any suggestion or proposal of an obscene nature, or threatens any illegal or immoral act with the intent to coerce, intimidate, or harass any person, over any telephone or citizens band radio, in this Commonwealth, is guilty of a Class 1 misdemeanor. See 1976 Va. Acts ch. 312. See also 1984 Va. Acts ch. 592 (amending the statute to include use of such language over citizens band radio); 2010 Va. Acts ch. 565 (amending the verb tenses within the statute). This Court had its first opportunity to consider the constitutionality of the new statute in Perkins v. Commonwealth, 12 Va.App. 7, 402 S.E.2d 229 (1991). In that case, Clinton Perkins challenged, among other things, his conviction under Code § 18.2-427. Relying on Walker, Perkins argued that Code § 18.2-427, even as currently written, is unconstitutionally overbroad and vague. This Court disagreed, explaining An ordinance is overbroad if it deters constitutionally protected conduct. A challenge of overbreadth is based on the ground that legislation, even if lacking neither clarity nor precision, ... offends the constitutional principle that a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. Id. at 12, 402 S.E.2d at 232 (quotations omitted). This Court further explained, "in view of the legislature's amendments to the statute following the decision in Walker ... the legislature intended to address harassing conduct as the evil to be proscribed and intended to narrow the scope of the speech phrases to that which is obscene." Id. at 14, 402 S.E.2d at 233 (emphasis added). In affirming Perkins's conviction for violating Code § 18.2-427, this Court concluded, "this construction is not strained and removes protected speech from within the statute's sweep." Id. Subsequently, in Allman v. Commonwealth, 43 Va.App. 104, 596 S.E.2d 531 (2004), Brian Allman challenged the sufficiency of the evidence supporting his conviction for violating Code § 18.2-427.[4] The evidence in that case proved that Allman left a six-minute message on an attorney's voice mail, referring to him as "a pussy" or "puss" 20 times, indicating his belief that the attorney was "squatting to pee" in "the ladies room" of his law firm, and alleging that the attorney needed to "(grow) a set of balls." Id. at 106-07, 596 S.E.2d at 532. Allman argued on appeal that the evidence was insufficient to prove his language was obscene or that he acted with the requisite intent. Because neither Code § 18.2-427, nor the chapter or article of the Code in which it appeared, contained a definition for the word "obscene," id. at 109, 596 S.E.2d at 534, this Court applied to Code § 18.2-427 the definition of "obscene" contained in Code § 18.2-372, which specifically provides, The word "obscene" where it appears in this article shall mean that which, considered as a whole, has as its dominant theme or purpose an appeal to the prurient interest in sex, that is, a shameful or morbid interest in nudity, sexual conduct, sexual excitement, excretory functions or products thereof or sadomasochistic abuse, and which goes substantially beyond customary limits of candor in description or representation of such matters and which, taken as a whole, does not have serious literary, artistic, political or scientific value. Code § 18.2-372 (emphasis added). This statutory definition of obscenity, in actuality, mirrors the three-part pornography *225 test promulgated in Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2614-15, 37 L.Ed.2d 419 (1973), which enunciated the standard by which a statute prohibiting the distribution of pornographic materials might pass constitutional muster for purposes of the First Amendment. See Allman, 43 Va. App. at 110 n. 3, 596 S.E.2d at 534 n. 3. While the terms "obscene/obscenity" and "pornographic/pornography" are occasionally used interchangeably, they are not actually interchangeable. In fact, as the United States Supreme Court expressly noted, the Miller test applies, not to obscenity or obscene materials, but "more accurately" to "pornography" or "pornographic material." Miller, 413 U.S. at 18 n. 2, 93 S.Ct. at 2612 n. 2. Applying the Miller "pornography" standard to the language used by Allman in his voice mail, this Court concluded that Allman's "repeated references to [the attorney] as a pussy, even taken in context, were, as a matter of law, insufficient to permit a reasonable trier of fact to conclude the references were obscene" under the definition set forth in Code § 18.2-372, Allman, 43 Va.App. at 111-12, 596 S.E.2d at 535, because the evidence "[did] not establish that the message, `considered as a whole,' either (1) '[had] as its dominant theme ... an appeal to the prurient interest in sex, that is, a shameful or morbid interest in nudity, sexual content, ... excretory functions or products thereof' or (2) went `substantially beyond the customary limits of candor in description or representation of such matters,'" id. at 113, 596 S.E.2d at 535 (emphasis in original) (quoting Code § 18.2-372). Rather, this Court found that Allman's references to the attorney's purported "excretory functions or products thereof, though utterly tasteless and rude, merely served to emphasize [Allman's] belief in [the attorney's] cowardice," and his use of the word "pussy" was merely used to characterize the attorney as "a weak, cowardly or... effeminate man." Id. at 112, 596 S.E.2d at 535. Because Allman's language did not meet the definition of obscenity contained in Code § 18.2-372, this Court found Allman did not violate Code § 18.2-427 and reversed his conviction. Id. at 113, 596 S.E.2d at 536. Barson argues that, as in Allman, the language Barson used in his e-mails to A.B. does not meet the definition of obscenity set forth in Code § 18.2-372, because considered as a whole, it does not have "as its dominant theme or purpose an appeal to the prurient interest in sex" that "goes substantially beyond the customary limits of candor in description or representation of such matters." Barson reasons that because his language was merely "offensive and coarse" rather than "erotic," no reasonable fact finder could conclude it was obscene. Applying Allman, the panel majority agreed. However, we note that while "[p]ornographic material which is obscene [or erotic] forms a sub-group of all `obscene' expression," it does not form "the whole, at least as the word `obscene' is now used in our language." Miller, 413 U.S. at 18 n. 2, 93 S.Ct. at 2612 n. 2 (emphasis added). In fact, Code § 18.2-372 by its own terms limits the definition of the word "obscene" to Title 18.2, Chapter 8, Article 5, which addresses "crimes involving morals and decency" and "obscenity and related offenses." On its face, Code § 18.2-372 does not address crimes proscribing harassing conduct or speech. Thus, notwithstanding the sweeping comment contained in Perkins, Allman's application of the definition for the word "obscene" contained in Code § 18.2-372 to other sections of the Code outside of that Article, such as Code § 18.2-427, resulted in a statute too "narrowly tailored" for its purpose. Indeed, since Allman, only communications which are essentially "pornographic" could ever be considered obscene for purposes of any statute prohibiting harassing conduct. Such a result clearly contravenes the stated intent of the legislature, found in the specific language of these statutes. In this case, Barson was convicted under Code § 18.2-152.7:1, which, unlike Code § 18.2-372, does not reference a statutory definition for the word "obscene." Setting Allman briefly aside, we note that in cases where no statutory definition applies, courts normally assign a term its "`ordinary and usually accepted meaning....'" Williams v. Commonwealth, 50 Va.App. 337, 341, 649 S.E.2d 717, 719 (2007) (quoting Woolfolk v. Commonwealth, *226 18 Va.App. 840, 847, 447 S.E.2d 530, 534 (1994)). Moreover, [t]he language of a penal statute should be given a reasonable or common sense construction, consonant with the objects of the legislation.... Indeed, when determining the boundaries of such a statute, the plain, obvious, and rational meaning of a statute is always preferred to any curious, narrow or strained construction.... [T]his general rule applies except when the language of the statute is ambiguous or would lead to an absurd result.... In such an instance, the meaning of doubtful words in a statute may be determined by reference to their association with related words and phrases.... Thus, when general words and specific words are grouped together, the general words are limited and qualified by the specific words and will be construed to embrace only objects similar in nature to those objects identified by the specific words. Williams v. Commonwealth, 50 Va.App. 337, 341-42, 649 S.E.2d 717, 719 (2007) (emphasis added) (internal quotations and alterations omitted). Put another way, "`a word is known by the company it keeps.'" Edwards v. Commonwealth, 53 Va.App. 402, 411, 672 S.E.2d 894, 898 (2009) (quoting S.D. Warren Co. v. Maine Bd. of Envtl. Prot., 547 U.S. 370, 378, 126 S.Ct. 1843, 1849, 164 L.Ed.2d 625 (2006)). "`[T]he meaning of a word takes color and expression from the purport of the entire phrase of which it is a part, and it must be read in harmony with its context.'" Id. (quoting Turner v. Commonwealth, 226 Va. 456, 460, 309 S.E.2d 337, 339 (1983)). To that end, "[w]e `assume that the legislature chose, with care, the words it used when it enacted the relevant statute.'" Alger v. Commonwealth, 267 Va. 255, 261, 590 S.E.2d 563, 566 (2004) (quoting Barr v. Town & Country Properties, Inc., 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990)). Code § 18.2-152.7:1 makes it a misdemeanor to "use a computer ... to communicate obscene, vulgar, profane, lewd, lascivious, or indecent language," when accompanied by a specific intent to harass. There is no dispute in this case that the evidence presented was sufficient to show Barson intended to harass A.B.; Barson merely contends his language was not obscene.[5] We do not agree. As noted by the Supreme Court of the United States in Miller, "[d]erived from the Latin obscaenus, ob, to, plus caenum, filth, `obscene' is defined in the Webster's Third New International Dictionary [1557 (3rd ed.1993)] as `1: disgusting to the senses... 2: offensive or revolting as countering or violating some ideal or principle.'" 413 U.S. at 18 n. 2, 93 S.Ct. at 2612 n. 2. This definition more accurately encompasses the type of communicative conduct proscribed by the statute, namely, that which is obscene, vulgar, profane, lewd, lascivious, or indecent. Thus, while Barson's language may or may not be "pornographic," utilizing the definition of the word "obscene" as commonly understood, a reasonable fact finder could certainly conclude that the language Barson used in his e-mails to A.B. is "obscene." We, thus, hold that the application of the ordinary meaning of the word "obscene" to the conduct prohibited by Code § 18.2-152.7:1 is more consistent with the stated intent of the legislature than the ad hoc definition crafted in Allman. To the extent Allman requires that a different meaning of the word "obscene" be applied to the conduct prohibited in this case, we expressly overrule it. Applying the appropriate standard of review and assigning the plain and ordinary meaning to the nature of the conduct prohibited by this statute, namely using a computer network to communicate obscene speech or *227 threatening language with the specific intent to harass, we conclude the trial court did not err in finding the evidence sufficient to convict Barson of the offense for which he was charged. The messages Barson sent are replete with explicitly obscene accusations. The sheer number of messages sent, coupled with their content, adequately supports the trial court's finding that the evidence was sufficient to a support a conviction for computer harassment. We, thus, affirm. Due Process Barson also contends that if we overrule Allman, due process principles require that we apply any new rule prospectively, rather than retroactively. Relying on Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964), Barson suggests this Court's adoption of a new definition for "obscenity" for purposes of Code § 18.2-152.7:1 would result in "an unforeseeable judicial enlargement of a criminal statute, applied retroactively, [which] operates precisely like an ex post facto law," in violation of his due process rights. Id. at 353, 84 S.Ct. at 1702. Barson contends that even if this Court, in Allman, erred in applying the definition of obscenity contained in Code § 18.2-372 to criminal harassment statutes, at the time of his trial that was the state of the law, and any change in the law, therefore, should not be applied in his case. We hold that the Virginia Supreme Court's decision in Armstrong v. Commonwealth, 263 Va. 573, 581, 562 S.E.2d 139, 143 (2002) controls our disposition of this issue. In Armstrong, the Virginia Supreme Court explained, "Bouie applies to changes in the interpretation of a criminal statute that are `indefensible by reference to the law that had been expressed prior to the conduct in issue.'" Armstrong at 581, 562 S.E.2d at 143 (quoting Bouie, at 354, 84 S.Ct. at 1703) (emphasis in original). The principle expressed in Bouie applies when a court of last resort has altered the law in a manner that would operate to punish an individual for conduct not criminal at the time the conduct was engaged in. The criminalization of the conduct which resulted in Barson's conviction under Code § 18.2-152.7:1 predates this Court's decision in Allman, which dealt with a different criminal statute and, in any event, remained "subject to review by [this Court] sitting en banc and [by] the [the Virginia Supreme Court] on appeal." Id. (citation omitted). Accordingly, our decision today does not impinge on Barson's due process rights. See id. at 581, 562 S.E.2d at 144. III. Conclusion For the foregoing reasons, we conclude that the trial court did not err in finding the evidence sufficient to convict Barson of violating Code § 18.2-152.7:1, and we further hold that principles of due process do not require that we relieve Barson from accountability under the statute. Affirmed. ELDER, J., dissenting. Without doubt, as the majority concludes, the record supports the trial court's finding that appellant acted with the requisite intent to harass his wife. In addition to proving this intent, however, the Commonwealth also was required to establish that appellant's language was "obscene" as that term is used in Code § 18.2-152.7:1. Contrary to the view of the majority, I would retain the definition of "obscene" set out in Allman v. Commonwealth, 43 Va.App. 104, 109-11, 596 S.E.2d 531, 534-35 (2004) (interpreting Code § 18.2-427), as the appropriate definition for use under Code § 18.2-152.7:1, as well. For the reasons set out in the panel majority opinion, I would conclude appellant's language here, like the language at issue in Allman, was "utterly tasteless and rude" but did not rise to the level of being "obscene." Allman, 43 Va.App. at 112, 596 S.E.2d at 535. Thus, I respectfully dissent. NOTES [1] Code § 18.2-152.7:1 is contained in Title 18.2, Chapter 5 ("crimes against property"), Article 7.1 ("computer crimes") and provides: If any person, with the intent to coerce, intimidate, or harass any person, shall use a computer or computer network to communicate obscene, vulgar, profane, lewd, lascivious, or indecent language, or make any suggestion or proposal of an obscene nature, or threaten any illegal or immoral act, he shall be guilty of a Class 1 misdemeanor. [2] Neither party requested rehearing with respect to the panel's holding that venue for the conviction rested properly in the Virginia Beach Circuit Court. That issue is, therefore, not before this Court en banc. [3] Barson concedes that the sheer number and tenor of the e-mails was sufficient to establish the requisite intent to coerce, intimidate, or harass his wife. Indeed, proof of this element of the offense is necessary to elevate the mere boorish use of obscene or vulgar language to a criminal offense. [4] We note that, as here, the constitutionality of the statute was not at issue in Allman. The sole issue was the sufficiency of the evidence. [5] While Barson's intent to harass A.B. is not at issue in this case, we note that the Commonwealth is required, in cases implicating harassment statutes of the type we have here, to prove the defendant communicated the prohibited language with the specific "intent to coerce, intimidate, or harass any person." Code § 18.2-152.7:1. Thus, since the Commonwealth must prove the presence of both harassing conduct and obscene speech in obtaining a conviction under the code sections implicated by this opinion, we note the actual reach of the statute is limited to the more narrow subset of harassing conduct which utilizes obscene speech. Perkins, 12 Va.App. at 14, 402 S.E.2d at 233.