Opinion
Record No. 2464-09-1.
November 2, 2010.
Appealed from the Circuit Court of the City of Virginia Beach Edward W. Hanson, Jr., Judge.
Samuel R. Brown, II, for appellant.
John W. Blanton, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
Present: Judges Elder, Humphreys and Senior Judge Coleman.
MEMORANDUM OPINION BY
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Dennis B. Barson appeals his conviction of harassment by computer in violation of Code § 18.2-152.7:1. He argues that the trial court erred in finding that Virginia Beach was the proper venue. Barson also argues that the evidence was insufficient to prove the e-mails he sent were obscene. We disagree with Barson that Virginia Beach was not the proper venue, but agree with him that the e-mails were not obscene. Therefore, we reverse and dismiss.
"On appeal, 'we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.'" Archer v. Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quotingMartin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)). So viewed, the evidence proved that over the span of six months Barson sent hundreds of e-mails to Amanda Barson, his estranged wife, including eighty-seven e-mails in the span of sixteen days. Barson sent the e-mails to Ms. Barson's e-mail account while she was living in Virginia Beach. Barson was living in Texas when he sent the e-mails.
According to Barson, as a result of a phone call on May 1, 2009, he visited "Craigslist," an online classified ad website, and reviewed posted advertisements. As a result of what he saw on the website, Barson testified that he became angry and embarrassed. When Ms. Barson failed to respond to his phone calls, he sent e-mails to her, her friends, and family members. When a friend or family member responded to an e-mail, Barson forwarded the response to Ms. Barson. The subject line of the e-mails included phrases such as, "Amanda Barson has sex with anonymous strangers on Craigs [sic] List Ads while husband lives in hotel working 3 jobs," "I wanted Deb and your cousins to know about your new hobby of soliciting sex on CL," and "Coke Whore Baby Killer Mom's Club Needs to Know." The e-mails alleged that Ms. Barson had a "personality disorder" and "suck[ed] and fuck[ed] strangers on Craigs [sic] List" while he "work[ed] his ass off." Barson also called her a "baby killing coke whore," accusing her of "vacuum[ing] his baby to death." Barson wrote that he told his mother "how you sucked off Dave's roommate 3 days in AZ," that Ms. Barson had "gutter sex with losers," that he could not "believe I married a coke whore baby killing prostitute," and that if she "didn't have crooked teeth and huge thighs [she] might be able to make money spreading [her] legs and sucking off Joe Pintos (strangers) [sic]." In one e-mail, Barson told Ms. Barson that she could be a "concubine" for a band she liked or the "guys she screwed" could pay her for what she "give[s] away for free." In the final e-mail admitted into evidence, Barson wrote that Ms. Barson needed to get a job and stop giving "blowjob[s]."
Barson testified at trial, admitting that he was angry when he sent the e-mails. Barson explained that he sent the e-mails to prompt Ms. Barson to respond to his allegations of adultery and explain her actions. Barson also admitted that he assumed by forwarding the e-mails to her friends and family members, she would be embarrassed.
Barson argues that the Commonwealth failed to prove venue was proper in Virginia Beach as provided by Code § 19.2-249.2. He contends that the evidence was insufficient to prove Ms. Barson's computer was located in Virginia Beach or that Virginia Beach was a place to which access to a computer for Barson's e-mails was made.
"When venue is challenged on appeal, we determine 'whether the evidence, when viewed in the light most favorable to the Commonwealth, is sufficient to support the [trial court's] venue findings.'" Morris v. Commonwealth, 51 Va. App. 459, 464-65, 658 S.E.2d 708, 710-11 (2008) (quotingCheng v. Commonwealth, 240 Va. 26, 36, 393 S.E.2d 599, 604 (1990)). "To prove venue, the Commonwealth must 'produce evidence sufficient to give rise to a "strong presumption" that the offense was committed within the jurisdiction of the court, and this may be accomplished by either direct or circumstantial evidence.'" Foster-Zahid v. Commonwealth, 23 Va. App. 430, 442, 477 S.E.2d 759, 765 (1996) (quotingCheng, 240 Va. at 36, 393 S.E.2d at 604), aff'd, 254 Va. 168, 489 S.E.2d 687 (1997).
Code § 19.2-249.2 provides:
For the purpose of venue under the Virginia Computer Crimes Act (§ 18.2-152.1 et seq.), any violation of the article shall be considered to have been committed in any county or city:
1. In which any act was performed in furtherance of any course of conduct that violated this article;
2. In which the owner has his principal place of business in the Commonwealth;
3. In which any offender had control or possession of any proceeds of the violation or of any books, records, documents, property, financial instrument, computer software, computer program, computer data, or other material or objects that were used in furtherance of the violation;
4. From which, to which, or through which any access to a computer or computer network was made whether by wires, electromagnetic waves, microwaves, optics or any other means of communication;
5. In which the offender resides; or
6. In which any computer that is an object or an instrument of the violation is located at the time of the alleged offense.
The Commonwealth's evidence showed that Ms. Barson lived in Virginia Beach. Ms. Barson testified that all the offensive e-mails were "sent to [her] e-mail account here in the City of Virginia Beach." There was no evidence that Ms. Barson visited or lived outside of Virginia Beach during the time in question or that she accessed her e-mail outside of Virginia Beach. The evidence was sufficient to prove a "strong presumption" that Ms. Barson received the e-mails while she resided in Virginia Beach, on a computer located within Virginia Beach. Thus, the Commonwealth established venue under subsections 4 and 6 of Code § 19.2-249.2.
Barson argues that the evidence was insufficient to prove the e-mails were obscene because they demonstrated anger and did not have as their dominant theme an appeal to the prurient interest in sex. "When faced with a challenge to the sufficiency of the evidence, we 'presume the judgment of the trial court to be correct' and reverse only if the trial court's decision is 'plainly wrong or without evidence' to support it." Crowder v. Commonwealth, 41 Va. App. 658, 662, 588 S.E.2d 384, 386 (2003) (quotingKelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) ( en banc)). Therefore, we do not "substitute our judgment for that of the trier of fact." Wactor v. Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002). "'Instead the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Kelly, 41 Va. App. at 257, 584 S.E.2d at 447 (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
Barson does not challenge the trial court's determination that the e-mails were intended to "coerce, intimidate, or harass" Ms. Barson.
Code § 18.2-152.7:1 provides:
If any person, with the intent to coerce, intimidate, or harass any person, shall use a computer or computer network to communicate obscene, vulgar, profane, lewd, lascivious, or indecent language, or make any suggestion or proposal of an obscene nature, or threaten any illegal or immoral act, he shall be guilty of a Class 1 misdemeanor.
The evidence abundantly establishes Barson's intent to harass his estranged wife. At issue in this case is whether the statute's prohibition on obscene content encompasses the language contained in the e-mails.
This Court has interpreted the parallel language in Code § 18.2-427 as restricted to the definition of obscene, in order to avoid constitutional concerns. Allman v. Commonwealth, 43 Va. App. 104, 108-09, 596 S.E.2d 531, 533-34 (2004) (citingWalker v. Dillard, 523 F.2d 3 (4th Cir. 1975) (finding the predecessor to Code § 18.2-427 was facially overbroad)). We noted that Code § 18.2-427 did not define obscenity, but reasoned the Code of Virginia is one body of law and other sections may be referenced in which the same phraseology is used. On that basis, we adopted the definition of obscenity found in Code § 18.2-372.Allman, 43 Va. App. at 109, 596 S.E.2d at 534.
Code § 18.2-427 is similarly worded to Code § 18.2-152.7:1 and provides:
Any person who uses obscene, vulgar, profane, lewd, lascivious, or indecent language, or makes any suggestion or proposal of an obscene nature, or threatens any illegal or immoral act with the intent to coerce, intimidate, or harass any person, over any telephone or citizens band radio, in this Commonwealth, is guilty of a Class 1 misdemeanor.
Material is obscene when it (1) '"has as its dominant theme or purpose an appeal to the prurient interest in sex, that is, a shameful or morbid interest in nudity, sexual conduct, sexual excitement, excretory functions or products thereof or sadomasochistic abuse,'" (2) substantially exceeds '"the customary limits of candor in description or representation of such matters,'" and (3) '"taken as a whole, does not have serious literary, artistic, political or scientific value.'" Id. (quoting Code § 18.2-372). The first two prongs of the obscenity test codified in Code § 18.2-372 "involve 'primarily factual issues, to be measured by "contemporary community standards."'"Allman, 43 Va. App. at 111, 596 S.E.2d at 534-35 (quotingState v. Harrold, 593 N.W.2d 299, 312 (Neb. 1999)).
However, "the [appellate] court . . . functions as a constitutional gatekeeper," by determining whether the speech "qualifies as possibly obscene. . . . In other words, the appellate court must make an independent review of the first two prongs, but the question to be asked is not whether the materials are obscene, but rather, whether the materials create a jury issue as to obscenity."
Id. at 111, 596 S.E.2d at 535 (quoting Harrold, 593 N.W.2d at 312) (alterations in original). "As to the third prong [which is not at issue here] . . . the appellate court should apply a de novo review . . . since this determination does not depend upon community standards.'" Id. (quoting Harrold, 593 N.W.2d at 313).
"Prurient" means "marked by or arousing an immoderate or unwholesome interest or desire; esp.: marked by, arousing, or appealing to sexual desire." Merriam-Webster's Collegiate Dictionary 1002 (11th ed. 2004). Prurient is "[c]haracterized by or arousing inordinate or unusual sexual desire."Black's Law Dictionary 1347 (9th ed. 2009). In making the factual determination as to the material's dominant theme or purpose, the "motivation in creating the sexually explicit material . . . [is] relevant to that element of the offense." Freeman v. Commonwealth, 223 Va. 301, 314, 388 S.E.2d 461, 468 (1982).
In Allman, the defendant was convicted of violating Code § 18.2-427 when he telephoned an attorney who had represented a party in a civil suit against him and referred to the attorney as a "pussy" twenty times over the course of a six-minute message.Allman, 43 Va. App. at 106, 596 S.E.2d at 532. The defendant stated that the attorney "must be 'squatting to pee' in 'the ladies room' '[be]cause [the attorney] is such a pussy.'"Id. at 112, 596 S.E.2d at 535. The defendant further stated his intention to send the attorney mail "to the attention of the ladies' room" at the law firm, because "I know that's where you hang out all the time, because you are such a big pussy." Id. The defendant said that the attorney should "'grow[] a set of balls." Id. We found that the defendant used this language to express his opinion of the attorney's cowardice and that the message did not establish as a dominate theme an appeal to the prurient interest in sex, or that it went beyond the customary limits of candor in description of such matters.Id. at 112-13, 596 S.E.2d at 535. Thus finding the language was not obscene, we reversed and dismissed the conviction.Id. at 113, 596 S.E.2d at 536; see also Lofgren v. Commonwealth, 55 Va. App. 116, 121, 684 S.E.2d 223, 226 (2009) (finding that the invectives "fucking cunt" and "fucking bitch" from a spurned suitor did not meet the definition of obscene).
Barson's e-mails to Ms. Barson unquestionably contained vulgar, offensive, and sexually explicit language. However, his use of these words "considered as a whole," and in the context of the marital discord and the angry, offensive tone and purpose of the e-mails, did not establish or support a factual or legal determination that Barson intended or had "as its dominant theme or purpose an appeal to the prurient interest in sex." The e-mails were not in any way intended to arouse or appeal to sexual desire, either Barson's own or any other individual's to whom he sent the e-mails. Rather, the evidence showed that Barson wrote the e-mails solely to convey his anger and disgust and that he forwarded them to his family and friends to embarrass Ms. Barson. Under these circumstances, we hold, using the definition of obscene set forth in Code § 18.2-372 and the requisite standard of review, that the evidence was insufficient to permit a reasonable trier of fact to conclude the e-mails were obscene. The dissent seems to conclude that Barson's e-mails were prurient because he referenced his wife's alleged sexual conduct and the e-mails were "replete with 'sexual connotations.'" Although the dissent reasons that Allman is easily distinguishable from the facts of this case, it is difficult to perceive how the dissent's analysis reconciles withAllman's holding. The defendant in Allman used numerous references to excretory functions in a graphic, albeit metaphorical, manner. The logic of the dissent would seem to require the question in Allman of whether these references demonstrated a shameful or morbid interest in excretory functions to be determined by the fact finder. In contrast, in Allman we found as a matter of law that the language at issue was not obscene. FollowingAllman, we are compelled to likewise find here that the e-mails were not obscene as a matter of law.
The Commonwealth itself notes in brief that Barson used the explicit language to embarrass Ms. Barson.
For these reasons, Barson's conviction for violating Code § 18.2-152.7:1 is reversed and the charge is dismissed.
Reversed and dismissed.
I concur in that part of the majority's opinion that holds the Commonwealth established venue in this case for Barson's violation of Code § 18.2-152.7:1, but I respectfully dissent from its holding that the evidence was insufficient as a matter of law to prove the e-mails that he sent to his wife were obscene. I dissent because I believe the majority not only ignores our standard of review, but also because I believe the majority misconstrues the statutory requirements for a finding of guilt under Code § 18.2-152.7:1.
Code § 18.2-152.7:1 provides
If any person, with the intent to coerce, intimidate, or harass any person, shall use a computer or computer network to communicate obscene, vulgar, profane, lewd, lascivious, or indecent language, or make any suggestion or proposal of an obscene nature, or threaten any illegal or immoral act, he shall be guilty of a Class 1 misdemeanor.
Barson does not dispute that he sent the e-mails to harass his wife; thus, with respect to whether the evidence was sufficient as a matter of law, the only issue we need resolve is whether the e-mails and text messages which Barson sent to his wife, her friends, and family are "obscene, vulgar, profane, lewd, lascivious, or indecent."
As the majority correctly notes, in Allman v. Commonwealth, 43 Va. App. 104, 596 S.E.2d 531 (2004), this Court interpreted similar language found in Code § 18.2-427 as restricted to the definition of "obscene" in order to avoid constitutional concerns. However, in Allman we also found that in enacting Code § 18.2-427, '"the legislature [ both (1)] intended to address harassing conduct as the evil to be proscribed and [(2)] intended to narrow the scope of the speech phrases to that which is obscene.'"Id. at 108, 596 S.E.2d at 533 (quoting Perkins v. Commonwealth, 12 Va. App. 7, 14-15, 402 S.E.2d 229, 233-34 (1991) (alterations in original)) (emphasis added). Although at the time Allman was written, this Court had already ascertained that Code § 18.2-427 is "neither unconstitutionally overbroad nor vague" as currently written,Perkins, 12 Va. App. at 16, 402 S.E.2d at 235, Allman narrowed the scope of the statute to encompass merely obscene language, purportedly in response to the Walker court's assertion that the state must place a "narrowing construction" on such sweeping language as that contained in former Code § 18.2-238.See Allman, 43 Va. App. at 109, 596 S.E.2d at 533 ("noting words 'vulgar,' 'profane' and 'indecent' are 'capable of overbroad interpretation' but that when used with 'more specific adjectives' like 'obscene,' 'lewd,' and 'lascivious,' rules of statutory construction allow the overbroad 'general words [to be] restricted to [meanings] that are analogous to the more specific words'" (quoting Walker, 523 F.2d at 5-6) (alterations in original)).
In Walker v. Dillard, 523 F.2d 3 (4th Cir. 1975), the United States Court of Appeals for the Fourth Circuit held that Code § 18.2-238, the predecessor to Code § 18.2-427, was unconstitutionally overbroad. Code § 18.2-238 provided "if any person shall curse or abuse anyone, or use vulgar, profane, threatening or indecent language over any telephone in this state, he shall be guilty of a misdemeanor." The General Assembly subsequently amended Code § 18.2-238 to what is currently Code § 18.2-427, which provides that
[a]ny person who uses obscene, vulgar, profane, lewd, lascivious, or indecent language, or makes any suggestion or proposal of an obscene nature, or threatens any illegal or immoral act with the intent to coerce, intimidate, or harass any person, over any telephone or citizens band radio, in this Commonwealth, is guilty of a Class 1 misdemeanor.
Code § 18.2-427, like Code § 18.2-152.7:1, is contained in Chapter 9 of Title 18.2, which addresses "crimes against peace and order."
This Court, thus, borrowed the definition of "obscene" contained in Code § 18.2-372, and applied it to Allman's repeated use of the words "puss" and "pussy" in a six-minute phone message left on an attorney's answering machine. We noted inAllman that the first two prongs of the obscenity test codified in Code § 18.2-372 "involve 'primarily factual issues, to be measured by "contemporary community standards,"'"id. at 111, 596 S.E.2d at 534-35 (quoting State v. Harrold, 593 N.W.2d 299, 312 (Neb. 1999)), and held that "'the question to be asked is not whether the materials are obscene, but, rather, whether the materials create a jury issue as to obscenity.'" Id. at 111, 596 S.E.2d at 535 (quotingHarrold, 593 N.W.2d at 312) (emphasis in original). We also said "'to be obscene, conduct must violate contemporary community standards of sexual candor,' and that 'expert testimony regarding community standards is not required[;] the fact finder may apply his or her knowledge in ascertaining the acceptable standard in the community.'" Id. at 109-10, 596 S.E.2d at 534 (quotingCopeland v. Commonwealth, 31 Va. App. 512, 515, 525 S.E.2d 9, 10 (2000)) (alteration in original). Because the third prong of the test "does not depend upon community standards," we apply a de novo standard of review on that prong.Id. at 111, 596 S.E.2d at 535 (citing Harrold, 593 N.W.2d at 313).
Chapter 8, Article 5 of Title 18.2 addresses "crimes involving morals and decency" and defines the word "obscene" as follows:
The word "obscene" where it appears in this article shall mean that which, considered as a whole, has as its dominant theme or purpose an appeal to the prurient interest in sex, that is, a shameful or morbid interest in nudity, sexual conduct, sexual excitement, excretory functions or products thereof or sadomasochistic abuse, and which goes substantially beyond customary limits of candor in description or representation of such matters and which, taken as a whole, does not have serious literary, artistic, political or scientific value.
Code § 18.2-372.
As correctly noted by the majority, Barson does not dispute that the e-mails he sent to his wife do not have any serious literary, artistic, political or scientific value.
On the facts contained in Allman, we ultimately concluded that "[u]nder any 'contemporary community standards of sexual candor,' Allman's words, 'considered as a whole,' did not appeal to the prurient interest in sex or go 'substantially beyond the customary limits of candor in [the] description or representation of such matters.'"Id. at 112, 596 S.E.2d at 535 (quoting Code § 18.2-372). Although we defined the word "pussy" as "vulgar slang" for "either (1) the female genitals or (2) sexual intercourse," we held that they were not obscene in Allman because, in context, they were merely used to characterize the recipient of the phone call as "a weak, cowardly or . . . effeminate man." Id. In other words, the "utterly tasteless and rude" comments uttered by Allman did not meet the definition of obscenity because Allman's "use of the word 'pussy,' never made any reference to a sexual act" and had "no sexual connotations attached to it." Id. Because his words were not obscene, we did not decide whether Allman intended to harass the attorney by leaving the offensive voice message.
This Court again addressed the issue of criminally obscene language in Lofgren v. Commonwealth, 55 Va. App. 116, 684 S.E.2d 223 (2009). In Lofgren, the victim testified that after an altercation with her then boyfriend, Jon Lofgren, he telephoned her and said, "I can't believe you fucking cunt. . . . You're a fucking bitch. . . . I hate you. . . . I can't believe you're doing this. [W]e had plans."Id. at 118, 684 S.E.2d at 224. The victim went to the magistrate and swore out an arrest warrant, and upon her return home she discovered a voice mail message in which Lofgren called her a "fucking cunt" and said, "you fucking suck." Id. Lofgren was later convicted of violating Code § 18.2-472, and appealed his conviction to this Court.
This Court reversed, finding that Lofgren's "use of the phrases 'fucking cunt' and 'fucking bitch' was insufficient to permit a reasonable trier of fact to conclude the references were obscene."Id. at 121, 684 S.E.2d at 226. This Court defined the word "fuck" as "to engage in coitus with — sometimes used interjectionally with an object (as a personal or reflexive pronoun) to express anger, contempt, or disgust" or "to deal with unfairly or harshly."Id. at 121, 684 S.E.2d at 225 (emphasis in original). We also defined the word "cunt" as "the female genital organ" or "sexual intercourse with a woman." Id. A bitch was defined as "a female dog" or "a malicious, spiteful, or overbearing woman — sometimes used as generalized term of abuse." Id. We opined that,
[a]lthough the words "fucking" and "cunt" can have sexual connotations when utilized in certain contexts, appellant's use of these words "considered as a whole" and in the context in which they were spoken, did not establish that the communication had "as its dominant theme or purpose an appeal to the prurient interest in sex . . . [or] w[ent] substantially beyond the customary limits of candor in description or representation of such matters." Code § 18.2-372. Rather . . . [Lofgren] used the offensive words as vulgar curse or swear words to communicate his frustration, anger, contempt or disgust with the victim after the incident.
Id. at 121, 684 S.E.2d at 226. Accordingly, we concluded that Lofgren's language "failed to meet the definition of obscene as required by Allman and Code § 18.2-372."Id. at 122, 684 S.E.2d at 226. Again, because the language was not obscene, we did not consider whether Lofgren acted with the requisite intent "to coerce, intimidate, or harass" his victim.Id.
The instant case is readily distinguishable from Allman andLofgren. Unlike the language used in those cases to harass the unwilling recipients, I believe a reasonable fact finder could conclude, as it did here, that the eighty-seven e-mails Barson sent to his wife between May 1, 2009, and May 14, 2009, contained language of such a graphic and explicit sexual nature as to manifest a "shameful or morbid" interest in his wife's sexual conduct, or in other words, a prurient interest in sex that "substantially exceeds the customary limits of candor in description or representation of such matters." Code § 18.2-372. Unlike in Allman, Barson's correspondence made repeated references to his wife's "sexual acts" and were replete with "sexual connotations." See Allman, 43 Va. App. at 112, 596 S.E.2d at 535.
Indeed, in the e-mails, Barson wrote such things as "[You have] BORDERLINE PERSONALITY DISORDER look it up when you get off your knees from CL ["Craigslist"]," "I work my ass off and you suck off and fuck strangers on Craigs List [sic]," and "I told Mon . . . how you sucked off Dave's roommate 3 days in AZ . . . wanted to jump Dave's bones after 10 years killing your baby because it was a bother to you both and then picked Cameron the coke dealer up at Rio fucked his brains out and vacuumed his baby to death for an eight ball." (Emphasis added). The messages were both voluminous and replete with phrases describing sexual acts such as, "my dad said you had a job . . . or blowjob? Which one do you get paid for and which is free? Not like you didn't suck off Jimmy Lawler or looney Rooney for an eightball!!!! If you didn't have crooked teeth and huge thighs you might be able to make money spreading your legs and sucking off Joe Pintos (strangers) [sic]." Appellant also sent a couple of text messages from his cell phone, alleging "STD['s] from risky gutter sex," and stating its "time to put your big girl pants on and get a job not take them off and give a blowjob." The trial court found such language was "sick," and in convicting Barson, inferentially found as a fact that the messages when "considered as a whole, has as [their] dominant theme or purpose an appeal to the prurient interest in sex, . . . and which goes substantially beyond customary limits of candor in description or representation of such matters and which, taken as a whole, does not have serious literary, artistic, political or scientific value."
The majority seems to think the definition of "obscene" requires a finding on the record that the individual doing the harassing is himself sexually excited by the nature of the language or conduct he is using to harass another. I do not believe Allman stands for this proposition. If it does, virtually nothing will meet the definition of "obscenity" for purposes of these criminal statutes. A statute should never be interpreted so as to lead to such absurd results. Commonwealth v. Doe, 278 Va. 223, 230, 682 S.E.2d 906, 908-09 (2009). Moreover, "[i]t is a necessary concomitant of the doctrine of stare decisis that a precedent is not always expanded to the limit of its logic."Hein v. Freedom from Religion Found., Inc., 551 U.S. 587, 615 (2007). While the majority correctly notes that the "motivation in creating the sexually explicit material . . . is relevant to" the definition of "obscenity,"Freeman v. Commonwealth, 223 Va. 301, 314, 388 S.E.2d 461, 468 (1982), I fail to see anywhere in the Allman analysis where it is dispositive of the inquiry. Indeed, in Allman we noted that the harassing conduct is the evil to be proscribed, along with the obscene nature of the language used to engage in that conduct. Allman, 43 Va. App. at 108, 596 S.E.2d at 533.
More importantly, we said in Allman that whether or not language used to harass meets the definition of obscenity for purposes of these criminal harassment statutes is a factual inquiry, to be measured by contemporary community standards as determined by the fact finder. Id. at 110-11, 596 S.E.2d at 534-35. In this case, although the majority correctly states our standard of review, it fails to follow it. We said in Allman that Allman's use of the words "puss" and "pussy" could not create a jury question as to its characterization as obscenity. I agree. However, I believe the language utilized by Barson in these e-mails to harass his wife does create such a jury issue because, as a whole, they clearly have as their dominant theme or purpose a shameful and morbid interest in his wife's sexual conduct that goes beyond customary limits of candor in describing or representing those matters. Barson repeatedly and unceasingly makes reference to his wife's sexual behavior, i.e. her "fucking and sucking off" men whom she meets on Craigslist, the spreading of her legs, and the blowjobs she apparently gives strangers. It was simply within the fact finder's purview to render a decision on the obscene nature of the correspondence. The trial court, as the fact finder, considered the language used in the e-mails, in light of its own community standards, and concluded that the statements made by Barson to his wife were obscene. Unlike the majority, I do not find that factual determination to be plainly wrong or without evidence to support it. In fact, if the graphic content of these e-mails does not meet the definition of "obscenity" as applied to these criminal harassment statutes, I am hard-pressed to conceive of any that could and this statute, for all practical purposes, has today been rendered a nullity.
Unlike in Allman and Lofgren, Barson's e-mails go beyond mere name-calling. Instead, they manifest a morbid or shameful interest in his wife's purported sexual conduct, make continuous references to the sexual act, and carry substantial sexual connotations. Barson's wife received eighty-seven of these e-mails over fourteen short days. The trial court reviewed the e-mails and expressly found they were "sick" and, at least implicitly, concluded that they went "substantially beyond the customary limits of candor in description or representation of such matters." Although Barson's reason for sending these harassing e-mails — anger and disgust — is relevant to the analysis, it is not dispositive of the issue. In short, the e-mails Barson sent to his wife far exceeded the "utterly tasteless and rude" language of Allman, or the mere vulgar curse or swear words used to communicate frustration, anger, contempt, or disgust in Lofgren. The trial court, thus, did not err in concluding that the e-mails Barson sent to his wife, which he also sent to her friends and family members, were obscene and that he intended to harass her with them.
Because I would find that the evidence presented at trial was sufficient to find Barson guilty of using a computer to communicate obscene language to his wife and others with the intent to coerce, intimidate, or harass her, I would affirm Barson's conviction for violating Code § 18.2-152.7:1.