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MySpace lyric post prompts conviction

A Norfolk man who posted menacing lyrics on his MySpace page can be convicted of communicating written threats, even if the alleged victim didn’t have a computer, the Court of Appeals ruled last Tuesday.

John Holcomb used online rhythm and rhyme to broadcast his animosity toward his former girlfriend during a custody battle over the couple’s daughter. Charged with making threats, he argued his MySpace lyrics were not “communicated,” in part because the ex-girlfriend did not even have a computer to view his lyrical bile.

No matter, said the appeals court panel, since Holcomb knew the girlfriend had access to her mother’s computer where she viewed the hostile messages.

The court also rejected Holcomb’s argument that his lyrics should not be considered “threats” in the context of other violent hip-hop rhymes.

The court affirmed the man’s Virginia Beach felony conviction in Holcomb v. Commonwealth, VLW 011-7-195.
The case arose from Holcomb’s ill-fated relationship with Miranda Rollman. Custody issues put Holcomb at odds with both Rollman and her family, and Holcomb offered online commentary in verse form:

Poof! Make ya daughter disappear like 2pac!
He knew now what he do like 2 cops
With no vest, off’d with 2 shots
Thru the chest from 2 blocks!

Later, Holcomb referenced his legal situation:

Custody battles, restraining orders
Bitch made me go mad I just had to stab her
Blind now I see her true colors
On the front cover of The World’s Most Murdered Mothers
By Americas Most Wanted Fathers

Other comments were equally ominous: “No one hearing your screams from the knife cut sounds,” and “See you with my daughter I’m a snatch her.”

Without her own computer, Rollman did not see these posts immediately. When she later viewed Holcomb’s MySpace page on her mother’s computer, however, she moved into her parents’ home, to be protected by a security system with cameras.

At a 2010 bench trial, Holcomb testified he considered his words to be “art,” and said they were meant to be songs and “just clever limericks.”

In the context of the custody dispute with Rollman, however, Holcomb’s posts constituted “very veiled threats,” according to Circuit Judge Frederick B. Lowe. He convicted Holcomb of communicating threats under Virginia Code § 18.2-60, a felony, and sentenced him to a 12-month sentence, suspended conditioned upon three years good behavior and no contact with the victim.

Because his postings were available for all to view on a public website, with no effort to direct Rollman’s attention to them, Holcomb argued on appeal he did not “communicate” his words to the victim within the meaning of the statute. The appeals court panel, however, found Holcomb’s MySpace postings met the definition of “electronically transmitted communication” under the statute.

“If these messages constituted threats, then nothing more is required,” wrote Judge Larry G. Elder for the panel.

The messages were not threats at all, Holcomb countered. He claimed they were musical lyrics and pointed to his history of involvement with “that particular style of music.”

“We were just saying this was not a threat to begin with,” said Holcomb’s appellate counsel, Afshin Farashahi of Virginia Beach. “Obviously, you can have a threat made through email, MySpace, Facebook, etc. This was not one of them.”

Nevertheless, the panel noted the specific references to Holcomb’s ongoing legal struggle with Rollman, finding his posts were targeted towards his alleged victim. “To the casual observer, the posts may have seemed somewhat innocuous, but the specificity of the posts relating to appellant’s tumultuous history with Rollman and her family makes clear that appellant’s posts were directed towards Rollman and not meant to be mere expression,” wrote Elder.

Despite the “cybercrime” novelty of social media threats, a spokesman for Attorney General Ken Cuccinelli suggested the case doesn’t break new ground.

“While there have not been many cases in Virginia construing this statute, the Holcomb case falls well within the language of the code section regarding electronic communication,” said Brian Gottstein of the attorney general’s office.

Farashahi said a petition for appeal to the Supreme Court of Virginia might be the next step for Holcomb.

VLW 011-7-195


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