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Teacher’s Sexting Conviction Upheld

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.

Sender’s 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.

Conviction affirmed.

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.

VLW 016-7-126

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