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BROOKER v. COMMONWEALTH




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BROOKER

v.

COMMONWEALTH


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

v.

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,
on

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
convictions.

FACTS

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

Virginia."[1]
On October 30, 2001, in his first "chat" with appellant, Meadows wrote
that "Kim"

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
conversation.

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?"

ANALYSIS

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-line conversations.

"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
omitted).

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
in

violation of ?? 18.2-355, 18.2-358, 18.2-361 or ? 18.2-370,
(ii) any

activity in violation of ? 18.2-374.1, or (iii) a violation of

? 18.2-374.1:1.

"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
(1990).

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

established.

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
"come over."

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
appellant

wrote back, "I know. That’s good, but I’m not too familiar
with Richmond."

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

ejaculation.

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

not required.

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
occasions.

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
and intentionally

"[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)
(citation omitted).

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.

Affirmed.

 

FOOTNOTES:

[1]"An
instant message permits parties to connect simultaneously over the internet. As
the

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).


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