An elementary school teacher who acquired an 11-year-old student’s cell phone number, and then sent texts stating he was “cute” and she wanted to kiss him and wished he was 18 years old, and who sent him photos of herself in the bathtub and of her legs and breasts, properly was convicted of using a communications system to procure or promote the use of a minor for an illicit purpose; the Court of Appeals affirms her conviction under Va. Code § 18.2-374.3(B).
The plain language of Va. Code § 18.2- 374.3(B), the terms “procure” and “promote,” contains no requirement that the person with whom defendant communicates be someone other than the minor he or she seeks to involve in the illicit activity. We decline to inject a requirement of the involvement of a third party to Code § 18.2-374.3(B) where none exists in the statute as enacted. Finding no requirement of the involvement of a third party is consistent with the statute’s purpose of protecting minors from predators who use electronic means to involve children in harmful conduct. The commonwealth was not required to prove that defendant used an electronic device to communicate with a person other than the student, or a person posing as a student, to engage in illicit activity.
Defendant argues that to satisfy the requirements of Code § 18.2-374.3(B), the commonwealth was required to prove an actual violation of Code § 18.2-370(A)(1). She claims the commonwealth’s evidence was insufficient because the photograph of defendant’s breasts did not show them completely exposed and that such compete exposure is necessary for a breast to be a “sexual part.” As discussed in Moyer v. Commonwealth, 33 Va. App. 8 (2000), the female breast may be considered a “sexual part” for purposes of Code § 18.2-370 if the exposure was accompanied by lascivious intent.
The word “lascivious” describes a state of mind that is eager for sexual indulgence, desirous of inciting to lust or of inciting sexual desire and appetite.
Considering the photographic images and the context within which defendant transmitted them, the evidence clearly demonstrated that she was acting with lascivious intent. Defendant instigated the contact with her 11-year-old student by obtaining his cell phone number through a ruse. The contact was clearly inappropriate between a teacher and an elementary-school-aged student. Defendant admitted she knew what she was doing was wrong and that she could be subjected to criminal or professional consequences from it.
Although the parties stipulated that the actual text of the messages did not rise to the level of explicit or lascivious, the trial court, sitting as fact finder, reasonably found that the photographic images, coupled with other evidence, demonstrated defendant’s lascivious intent. While in the bathtub, defendant sent a photo to the student of her legs. She then asked him if he had ever seen a woman’s “boobs.” She sent him a photo of her breasts. Then, after some discussion about what could be seen in the photo, she told the student to delete it. It is hard to imagine such conduct being motivated by something other than lascivious intent.
The text of the messages does provide background and context for the photographic images. The transmission of the images occurred against a backdrop of defendant admitting to having a romantic interest in the student, that she wanted to kiss him and wishing he was 18 so they could be together.
The only reasonable conclusion to be drawn from defendant’s course of conduct was that she was attempting to entice sexually an 11-year-old boy when she sent him the photograph of her breasts. The trial court did not err in finding that defendant acted with lascivious intent and that she exposed a sexual part to a child as prohibited by Code § 18.2-370.
Dietz v. Commonwealth (Felton) No. 0861-15-1, May 3, 2016; Hampton Cir.Ct. (Taylor) Timothy G. Clancy for appellant; Lauren C. Campbell, AAG, for appellee. VLW 016-7-126(UP), 10 pp.