Criminal: Child solicitation conviction reversed

Where a man was charged with using a communication system to solicit a child under the age of 15 to engage in sexual acts, and the commonwealth introduced testimony from a police detective about his statement admitting committing acts proving some of the elements of the crime, the trial court erred by refusing to admit the exculpatory portions of that same statement during cross-examination.

Background

James Thomas Curry appeals his conviction for using a communication system to solicit a child under the age of 15 to engage in sexual acts. At his jury trial, the commonwealth introduced testimony from a police detective about Curry’s inculpatory post-arrest statement in which he admitted committing acts proving some of the elements of the crime. On appeal, Curry argues that the trial court erred by refusing to admit the exculpatory portions of that same statement during cross-examination.

Analysis

The trial court determined that the proffered exculpatory portions of Curry’s statement were offered to prove that Curry did not have lascivious intent and not only to provide context for the portions of his statement that were admitted. This court agrees with the trial court. Under these circumstances, the trial court reasonably concluded that the purpose for which Curry sought to admit the excluded portions of his statement was to prove the truth of the matter asserted and, consequently, they were hearsay.

The next question is whether, despite being hearsay, the exculpatory parts of Curry’s statement nonetheless should have been admitted under the common-law rule of completeness. “To be admissible, . . . it must clearly appear that the exculpatory statements were made in the same confession or conversation sought to be introduced in evidence, and not upon other or separate occasions.” It is undisputed that the excluded portions of Curry’s statement were made at the same time and to the same person as the admitted portions.

Strickland testified that Curry admitted that “he met the girl on MeetMe” and described it as a social media platform which was “essentially the same platform as Skout.” In light of the detective’s testimony that people use Skout specifically to find minors and “solicit them online for sex,” Curry’s statement that he also used other dating and social networking platforms was relevant to the fact-finder’s determination of his intent in using MeetMe.

In addition, Curry suggests that the portions of his statement relating to his intent were particularly relevant because Strickland testified that Curry implied that he planned to have sex with Kate. The unobjected-to written summary, proffered only to the court, in contrast to Strickland’s testimony, reflects that Curry said to her that he “did not have any intentions on being with her in a sexual manner,” he was “trying to [be a] white knight” and he intended “to let her know . . . there were bad people.”

This evidence was exculpatory and supported Curry’s theory of the case that he did not send the electronic communications with the lascivious intent. Yet, this evidence was not permitted to go before the jury during cross-examination. For these reasons, the trial court abused its discretion by excluding the exculpatory portions of Curry’s statement to Strickland.

Harmless error

The commonwealth suggests that any error in excluding the exculpatory portions of Curry’s statement to Strickland was harmless because they were cumulative of the exculpatory electronic messages, which were before the jury. The court disagrees. Although the excluded evidence and exculpatory messages were similar in “effect to be produced,” they were not cumulative.

Reversed and remanded.

Concurring opinion

Raphael, J., concurring.

I am pleased to join the court’s opinion in full. I write separately to further explore three significant misconceptions about Virginia Rule of Evidence 2:106 advanced by the commonwealth in this case.

Curry v. Commonwealth, Record No. 1947-23-2, Apr. 1, 2025. CAV (Decker) (Raphael concurs). From the Circuit Court of Henrico County (Marshall). Meghan S. Skelton (Jonathan P. Sheldon; Sheldon & Flood, PLC, on briefs), for appellant. Allison M. Mentch, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee. VLW 025-7-076. 26 pp.