A statute criminalizing an adult’s use of a computer to solicit sex from a child who the adult “knows or has reason to believe” is less than 15 years old is not unconstitutionally vague or overbroad.
Robert Leigh Stolz challenges his conviction under Code § 18.2-374.3(C). A police detective posing as “Annie,” a 13-year-old girl, responded to Stolz’s online ad for sexual activity. Annie offered to send a picture. When Stolz said he would like that, Annie sent him a picture of a 25-year-old animal control officer who had a youthful appearance. Eventually, Annie asked for a phone conversation with Stolz. The detective’s female colleague played the part of Annie.
A meeting time and place was arranged. Stolz arrived. Annie was receiving text messages from Stolz at this time. Stolz eventually left. The police stopped his car. Stolz invited them to look at his cellphone. There was no evidence on it. The detective got an administrative subpoena, received Stolz’s IP address, traced his home address, obtained a search warrant and eventually arrested him.
Stolz’s first trial ended in a hung jury. “At Stoltz’s second trial the court gave, at Stoltz’s request and over the Commonwealth’s objection, an instruction explaining the reason-to-believe concept found in the computer-solicitation statute. The instruction defined ‘[r]eason’ as ‘a faculty of the mind by which it distinguishes truth from falsehood, good from evil, and which enables the possessor to deduce inferences from facts or from propositions.’ …
“During its deliberations, the jury asked for clarification as to whether the phrase ‘reason to believe’ in the statute meant that Stoltz had to ‘find the reason credible.’ … (emphasis in original). The trial court referred the jury to the instructions. … The jury thereafter convicted Stoltz of computer solicitation of a minor but found him not guilty of attempted indecent liberties with a child.”
In the Court of Appeals, Stolz argued the statute was vague, overbroad and violated his First Amendment rights. The Court of Appeals affirmed.
“‘[T]he void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.’ … Code § 18.2-374.3(C) does not run afoul of these settled vagueness principles.
“The phrase ‘knows or has reason to believe,’ … is not ambiguous. A multitude of federal courts have found similar language impervious to vagueness challenges. Moreover, many similar provisions appear in the Virginia Code, and we have never questioned their constitutionality. …
“Stoltz had reason to believe that Annie was younger than 15. After openly soliciting a sexual encounter without expressing or even implying any disinterest in juveniles, Stoltz received a response from Annie, who informed him that she was ‘only 13’ and was ‘off of school’ that day. … She immediately followed with, ‘if i’m 2 young tahts ok and i wont’ bother u.’ … When Stoltz responded, ‘23 isn’t too young,’ Annie reaffirmed: ‘13 not 23 hehe’ …
“Annie further informed Stoltz that she was ‘home alone’ because her parents were out of town. … She stated that it was the ‘first time they’ve let me stay alone’ and that there had been ‘no school today’ ‘or yestreday.’ … When Annie sent Stoltz the picture of the animal control officer, Stoltz replied, ‘you’re very cute! :),’ … not ‘you’re cute but you look too old to be 13.’ The jury saw this picture, along with all of the communications between Stoltz and Annie, and heard the animal control officer testify in person.
“These facts, in aggregate, do not prove that Stoltz actually knew that Annie was underage. But they amply demonstrate that he had reason to believe that she was. At the moment that Stoltz obtained such reason to believe, his use of the Internet for the purpose of solicitation became a crime.”
Stolz’s First Amendment argument lacks merit. “Code § 18.2-374.3(C) does not target speech, but conduct — specifically the use of a communications system (in this case, the Internet) for the purpose of soliciting a minor. The act of using a communications system is the actus reus of the crime, while the purpose of soliciting the child is the mens rea. …
“The fact that Stoltz engaged in this conduct through the means of speech is only relevant if the statute sweeps in substantial amounts of protected speech in comparison to its legitimate proscription. Nothing in the statute criminalizes a substantial amount of protected speech when ‘judged in relation to the statute’s plainly legitimate sweep[.]’ … Nor do any of Stoltz’s arguments ‘justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe[.]’ … Thus, Stoltz’s facial overbreadth challenge must also fail.”
Stolz v. Commonwealth. Record No. 181033 (Published Order) Aug. 1, 2019 (Court of Appeals). Jonathan Paul Sheldon, Thomas Brian Walsh for Appellant, Robert Homer Anderson III, Toby Jay Heytens, Matthew Robert McGuire, Michelle Shane Kallen, Brittany Marie Jones, Victoria Nathalie Pearson for the Commonwealth. VLW 019-6-055, 9 pp.