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COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Senior Judge Overton
Argued at Richmond, Virginia
Record No. 2259-02-2
JAMES GANGGA BROOKER
COMMONWEALTH OF VIRGINIA
OPINION BY JUDGE NELSON T. OVERTON
OCTOBER 28, 2003
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Cleo E. Powell, Judge
William P. Irwin, V (Bowen, Champlin, Carr & Rockecharlie,
brief), for appellant.
Amy L. Marshall, Assistant Attorney General (Jerry W. Kilgore,
Attorney General, on brief), for appellee.
James Gangga Brooker, appellant, was convicted of two counts of
attempting to take
indecent liberties with a child in violation of Code ??
18.2-26 and 18.2-370. He was also convicted
of three counts of the use of a communications system for
soliciting a minor in a sex crime in
violation of Code ? 18.2-374.3(B)(i). On appeal, he contends
the evidence was insufficient to prove
he committed the offenses. We disagree and affirm the
Detective Rick Meadows posed as a twelve-year-old girl named
"Kim" while conducting
computer on-line investigations. Meadows, as "Kim,"
had three separate text message
conversations with appellant via an instant message internet
chat room called "Romance
On October 30, 2001, in his first "chat" with appellant, Meadows wrote
was twelve years old and lived in Virginia. Appellant replied
that he was twenty-four years old,
and he asked if "Kim" had ever kissed "an older
guy." Appellant also sent Meadows two
photographs of himself in which his genitals were exposed.
Appellant wrote, "Don’t you want to
see and feel the real thing?" Meadows replied,
"Yes" and asked, "What would you do with me?"
Appellant wrote, "Anything you want me to do. Do you want
to cumm [sic] in my mouth?" and
he referred to licking "Kim" "you know
where" and "everywhere on [her] body." He asked if
"Kim" wished she lived closer to him and if she would
"come over." Appellant also gave "Kim"
his home telephone number.
On October 31, 2001, appellant and Meadows had another on-line
Appellant told "Kim" not to tell her parents about
their communication. He also asked if "Kim"
wanted to see him and if she wanted him to remove his pants.
Appellant removed his pants and
transmitted by means of a web camera live pictures of himself,
exposing his penis and holding
his erect penis. Detective Meadows testified that appellant’s
web camera allowed Meadows to
"see what [appellant] was doing" at that time.
Detective Meadows produced snapshots of his
computer screen and screen captures which were introduced into
evidence. The images clearly
showed appellant’s penis. Appellant wrote that he wished
"Kim" was there with him and that he
would "make love to" her if she was there. He further
stated he would "be gentle" with her and
"teach" her. Appellant and "Kim" discussed
meeting each other, and appellant said he would
"pick [her] up" somewhere, although he was "not
too familiar with Richmond."
On November 26, 2001, appellant and Meadows, as "Kim,"
had a third on-line exchange.
Appellant asked if "Kim" wanted him to remove his
clothes, and he activated his web camera.
Appellant removed his pants and exposed his penis to the camera.
He then asked if "Kim"
wanted to see him masturbate. Appellant masturbated to
ejaculation in front of the web camera.
Snapshots of Detective Meadows’ computer screen taken during
this exchange showing
appellant’s penis were admitted into evidence. "Kim"
asked appellant if he thought she was too
young for him, and he replied, "No, but we have to be very
careful." He also asked, "Are you
going to lose your virginity to me?"
Appellant admits that he made the communications with
"Kim" over the internet.
However, he contends that the evidence was insufficient to prove
he used a communication
device to solicit a minor in violation of Code ? 18.2-374.3(B).
He argues that the evidence failed
to show he intended the minor to act upon the content of the
"On appeal, ‘we review the evidence in the light most
favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
therefrom.’" Archer v. Commonwealth,
26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation
Code ? 18.2-374.3(B) provides:
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
violation of ?? 18.2-355, 18.2-358, 18.2-361 or ? 18.2-370,
activity in violation of ? 18.2-374.1, or (iii) a violation of
"Criminal solicitation involves the attempt of the accused
to incite another to commit a
criminal offense. ‘It is immaterial whether the solicitation has
any effect and whether the crime
solicited is in fact committed. . . . The gist of [the] offense
is incitement.’" Branche v.
Commonwealth, 25 Va. App. 480, 490, 489 S.E.2d 692, 697 (1997)
(citation omitted). "[T]he
act of solicitation may be completed before any attempt is made
to commit the solicited crime."
Ford v. Commonwealth, 10 Va. App. 224, 226, 391 S.E.2d 603, 604
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
Wilson v. Commonwealth, 249 Va. 95, 101, 452 S.E.2d 669, 674
(1995) (citations omitted).
Appellant’s actions and statements to "Kim" were not
simply "words alone." See Bloom
v. Commonwealth, 34 Va. App. 364, 373, 542 S.E.2d 18, 22, aff’d,
262 Va. 814, 554 S.E.2d 84
(2001). In the October 30, 2001 conversation, appellant
discussed kissing "Kim," whom he
believed was twelve years old, and he sent her photographs of
himself in which his genitals were
exposed. He inquired if she wanted to "see and feel the
real thing," and he discussed "Kim"
"cumm[ing] [sic] in his mouth." In addition, appellant
expressed a desire to lick "Kim"
"everywhere on [her] body," and he asked if she would
In the October 31, 2001 communication, appellant transmitted to
"Kim" images of his
erect penis using a web camera allowing the recipient to view
live images of him. During this
communication, appellant wrote that he would have sexual
intercourse with the minor if she was
present, stating that he would be "gentle" with her.
Furthermore, appellant discussed meeting
"Kim" and offered to pick her up
"somewhere." "Kim" responded, "I’m not far," and
wrote back, "I know. That’s good, but I’m not too familiar
During the November 26, 2001 conversation, appellant asked if
"Kim" would lose her
virginity to him. He activated his web camera, removed his
pants, and masturbated to
From the content of the three conversations and from the
evidence of the images
appellant transmitted to the minor, the trial judge could infer
that appellant intended to solicit a
minor to commit illegal sexual acts in violation of the statute
and via a communications device.
Accordingly, the evidence was sufficient to prove beyond a
reasonable doubt that, on three
separate occasions, appellant violated Code ? 18.2-374.3(B).
The fact that appellant and "Kim" were located in
different cities while they exchanged
communications is of no consequence. "[T]the separate crime
of solicitation may be completed
before an attempt is made to commit the solicited crime."
Pederson v. City of Richmond, 219
Va. 1061, 1067-68, 254 S.E.2d 95, 99 (1979). Appellant’s
"principal objective was to persuade"
the minor to engage in criminal sexual acts. See id. at 1068,
254 S.E.2d at 100. Proof of any
overt act toward committing the crimes, such as meeting the
minor at a specified location, was
In addition, appellant’s argument that his actions constituted a
single continuing offense is
without merit. Evidence of separate, discrete conduct by
appellant supported each of the three
offenses. See, e.g., Slater v. Commonwealth, 15 Va. App. 593,
596, 425 S.E.2d 816, 817-18
(1993); Johnson v. Commonwealth, 13 Va. App. 515, 518, 412
S.E.2d 731, 732 (1992). The
offenses occurred on three different dates, involved three
distinct and separate communications,
and, in each conversation appellant incited the minor to commit
a crime. Therefore, the evidence
proved that appellant violated the statute on three separate
Appellant contends the evidence was insufficient to prove that
he attempted to expose
himself to a minor in violation of Code ? 18.2-370 because the
parties were located in separate
cities at the time of the incidents. He also contends that he
could not have committed these
offenses because he exposed his genitals by means of the
internet and not in a public location.
Code ? 18.2-370 provides, in part, that a person who knowingly
"[e]xpose[s] his . . . sexual or genital parts to any
child" under the age of fourteen years shall be
guilty of a Class 5 felony.
Expose has been defined as "’to put on show or
display,’" "’to lay open to view,’" "’to
display,’" "’to offer to the public view.’"
Siquina v. Commonwealth, 28 Va. App. 694, 698, 508
S.E.2d 350, 352 (1998) (citations omitted). "’Exposure of
[a] person becomes indecent when it
occurs at such time and place where [a] reasonable person knows
or should know his act will be
open to observation of others.’" Id. (citing Black’s Law
Dictionary 768 (6th ed. 1990)). "'[A]n
indecent exposure must be either in the actual presence and
sight of others, or in such a place or
under such circumstances that the exhibition is liable to be
seen by others.’" Holley v.
Commonwealth, 38 Va. App. 158, 164, 562 S.E.2d 351, 354 (2002)
The evidence showed that appellant twice transmitted to someone,
whom he believed was
a minor, live images of his genital parts by means of a computer
and a web camera so that the
minor could see appellant’s genital parts at the time of the
exposure. In addition, on both
occasions, prior to exposing his penis, appellant asked via
instant messaging whether the minor
wanted him to remove his pants or clothing. In both instances,
Meadows indicated that "Kim"
wanted appellant to remove his pants. From appellant’s words and
conduct, the trial judge could
infer that appellant knowingly and intentionally exposed his
genitals to a person whom he
believed to be a minor.
Furthermore, the trial judge admitted evidence showing Meadows’
computer screen at the
time appellant sent the transmissions to "Kim."
Several of the pictures received on October 31
and November 26, 2001 clearly show appellant’s genitals. From
this evidence, the trial judge
could conclude that appellant knew that the exposure of his
genitals in front of his activated web
camera was "liable to be seen" by the minor at the
time of the exhibition because "Kim" was
engaged in an instant message internet conversation with
appellant at the time of the displays.
Accordingly, the evidence was sufficient to prove beyond a
reasonable doubt that appellant
violated Code ?? 18.2-26 and 18.2-370.
For the reasons stated, we affirm the convictions.
instant message permits parties to connect simultaneously over the internet. As
party sending a message types the message, it instantaneously
appears on the computer screen
of the addressee. The communications link is continuous, and the
exchange of messages is
immediate." Bloom v. Commonwealth, 34 Va. App. 364, 368
n.1, 542 S.E.2d 18, 20 n.1, aff’d,
262 Va. 814, 554 S.E.2d 84 (2001).