Criminal – Solicitation of minor conviction is reversed and dismissed

Where the defendant was convicted of using a communications device to solicit a minor for sexual activities, but the statutory subsection applied only if the victim is less than 15 years old, and the victim here was 16 years old at the time of the incident, his conviction was reversed and dismissed.

Background

Following a bench trial, Darius Holley was convicted of using a communications device to solicit a minor for sexual activities.

Amendment

During his renewed motion to strike/closing argument, Holley noted that none of the evidence presented at trial indicated that he attempted to solicit V.S. to produce child pornography in violation of Code § 18.2-374.1, as specified in the indictment. The Commonwealth responded by requesting leave to amend the indictment to change the underlying criminal conduct to indicate a violation of Code § 18.2-370, as originally specified in the warrant. The court granted the Commonwealth’s request.

Holley argues that the trial court erred by granting the Commonwealth’s request to amend the indictment. Although both the original and amended indictments charged Holley with violating Code § 18.2-374.3(B), Holley contends that the nature of the offense was altered when the underlying criminal conduct was changed from Code § 18.2-374.1 to Code § 18.2-370, rendering the amendment improper.

“In determining whether the amended charge changes the nature or character of the offense charged, we examine the conduct or overt acts proscribed in each statute.” Where there is “similarity of purpose and subject matter” of the statutes involved, an amendment that merely changes the statute under which a defendant is charged does not change the “nature or character of the offense charged” and is permissible under Code § 19.2-231.

Here, there is more than a mere “similarity of purpose and subject matter,” because in both instances the Commonwealth was required to prove the same thing: that Holley used a communications device to procure a minor. The difference is whether that procurement violated Code § 18.2-370 or Code § 18.2-374.1, and Holley rightly notes that there are distinctions in the types of conduct those sections prohibit.

However, both sections prohibit the use of a communications system to procure or promote illicit sexual activity with a minor, and simply define the underlying criminal conduct necessary to support Holley’s conviction. The amendment made no change to the statute Holley violated as alleged in the indictment; the amendment only changed the type of illicit sexual conduct Holley allegedly tried to procure with a communications device.

Ultimately, the nature of the charged offense was not altered because there is sufficient similarity of purpose between the original indictment and amended indictment; therefore, the trial court did not err in granting the Commonwealth’s request.

Age

Holley next argues that Code § 18.2-374.3(B) required the Commonwealth to show that Holley violated Code § 18.2-370(A), which can only occur if the victim is less than 15 years old. Because V.S. was 16 years old at the time of the incident, Holley claims that he could not have violated Code § 18.2-370(A), and thus could not have been convicted under Code § 18.2-374.3(B).

The court finds that an individual violates Code § 18.2-370(A) (the subsection at issue here) only if that individual is at least 18 years old and the victim is less than 15 years old. It is uncontested that V.S. was 16 years old when she received the text from Holley’s cellphone number proposing the act of cunnilingus. Therefore, as a matter of law, Holley could not have violated Code § 18.2-370(A) and the trial court erred when it convicted Holley under Code § 18.2-374.3(B).

Conclusion

The trial court’s decision to grant the Commonwealth’s request to amend Holley’s indictment is affirmed, but the trial court’s judgment is reversed and Holley’s conviction is dismissed.

Affirmed in part, and reversed and dismissed in part.

Holley v. Commonwealth, Record No. 1336-24-1, Nov. 18, 2025. CAV (Fulton III). From the Circuit Court of the City of Hampton (Shaw III). Lauren E. Brice, Assistant Public Defender (Virginia Indigent Defense Commission, on briefs), for appellant. Matthew J. Beyrau, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee. VLW 025-7-331. 9 pp.