Opinion
Record No. 0078-94-1
Decided: April 4, 1995
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS, J. Warren Stephens, Judge
Thomas W. Carpenter (Overman, Cowardin Martin, P.L.C., on brief), for appellant.
Steven Andrew Witmer, Assistant Attorney General (James S. Gilmore, III, Attorney General; Leah A. Darron, Assistant Attorney General, on brief), for appellee.
Present: Judges Baker, Benton and Willis
A Rehearing En Banc was granted in this case on May 16, 1995.
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
In this appeal by Aaron Augustis Witts (appellant), the sole issue presented is whether the evidence is sufficient to support appellant's conviction by the Circuit Court of the City of Newport News (trial court) for violation of Code Sec. 18.2-427, which provides:
Sec. 18.2-427. Use of profane, threatening or indecent language over public airways. — If any person shall use 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 with the intent to coerce, intimidate, or harass any person, over any telephone or citizens band radio, in this Commonwealth, he shall be guilty of a Class 1 misdemeanor.
In lieu of a transcript of the trial evidence, the trial court certified a statement of facts. The following is the entire statement that is relevant to this appeal:
On March 12, 1993, Mr. Zack Christian, an employee of the Newport News Public School Systems in charge of personnel management, received a telephone call from the Defendant Aaron Witts. Mr. Witts had been involved in a personnel dispute with the Newport News Public School System and, as a result of that dispute, the determination had been made to terminate Mr. Witts. A certified letter was sent to him to that effect.
Mr. Witts called on March 12, 1993 to inquire as to his job status, having not yet received a copy of the termination letter. Mr. Christian testified that Mr. Witts stated "I have some fireworks for you" and . . . [he was going to] "bring all three down." Mr. Witts testified that he spoke with Mr. Christian and, upon being informed of his termination, stated that "you, Wayne Lett, Mr. Haney and all of you, you are all gonna fall". Mr. Witts had once grieved an earlier termination by the City and was planning to grieve this one as well. Mr. Witts testified that the context in which this above statement was made was that he was going to get an attorney and fight his termination and that this statement was not intended as a threat of bodily injury against any of the named individuals. Mr. Christian testified that he interpreted Mr. Witts' statement as a threat.
We have reviewed the record and find the evidence in the record supports the trial court's judgment. The Commonwealth cites Perkins v. Commonwealth, 12 Va. App. 7, 402 S.E.2d 229 (1991), in support of appellant's conviction. Among other contentions, Perkins challenged the constitutionality of Code Sec. 18.2-427. That challenge was denied. In the Perkins opinion, this Court noted that the legislative intent shown by the statute was to address "harassing conduct." Id. at 14, 402 S.E.2d at 233. Whereas the threat made by Perkins was more explicit as to his intent than that made by Witts, nevertheless Witts's statement was found by the fact finder to be violative of Code Sec. 18.2-427.
A case with facts more similar to the case before us is United States v. Maisonet, 484 F.2d 1356 (4th Cir. 1973). In Maisonet, the defendant wrote the trial judge stating, "I may have to do all my ten (10) years, but if I ever get out of here and nothing happen to me while I am in here, you will never be able to be prejudice and racist against another Puerto Rican like me." Id. at 1357. Maisonet, as appellant here, argued the statement was subject to two interpretations. Judge Butzner's finding in Maisonet is applicable here:
When a motion for a directed verdict of acquittal is made in a criminal case, the sole duty of the trial judge is to determine whether there is substantial evidence which, taken in the light most favorable to the United States, tends to show that the defendant is guilty beyond a reasonable doubt. The possibility that a jury may have a reasonable doubt upon the evidence as to the guilt of the defendant is not the criterion which determines the action of the trial judge. The decision on that question is for the jury to make and the rule is the same whether the evidence is direct or circumstantial.
Id. at 1358. Thus, when a statement is made over a telephone that is subject to being interpreted as harassment or an illegal threat, even though the sender claims a different meaning was intended, a question for the fact finder is presented as to which is applicable considering the particular circumstances.
We find that the statement that "I have some fireworks for you" followed by a statement that "I am going to bring all three down," made under the circumstances shown here, support the finding of the trial court that appellant violated Code Sec. 18.2-427.
Accordingly, the judgment of the trial court is affirmed.
Affirmed.
"There is a well recognized canon of construction that when a statute or an ordinance is susceptible of two constructions, one of which is within the legislative power and the other without, the courts are required to adopt the former construction." Ocean View Improvement Corp. v. Norfolk and Western Ry., 205 Va. 949, 955, 140 S.E.2d 700, 704 (1965). Thus, in reviewing a conviction, a court may not adopt an application or construction of a statute that render the statute unconstitutional. Jeffress v. Stith, 241 Va. 313, 317, 402 S.E.2d 14, 16 (1991). The decision to affirm this conviction places a gloss on the statute that renders it unconstitutional because it construes Code Sec. 18.2-427 in a manner so as to encompass and to punish speech protected by the First Amendment.
Nothing in Witts's telephone conversation was "obscene, vulgar, profane, lewd, lascivious, or indecent," the language proscribed by Code Sec. 18.2-427. Witts also did not "threaten any illegal or immoral act," the other prohibition contained in Code Sec. 18.2-427. The majority permits this conviction to stand, however, because it concludes that the fact finder could have found that Witts intended to harass a supervisor. That interpretation intrudes upon the First Amendment protection of free speech because it impermissibly vests in the trier of fact the unfettered discretion to enforce an amorphous, "suitable" level of discourse. Gooding v. Wilson, 405 U.S. 518, 528 (1972). It is impermissible to leave to the trier of fact the discretion to interpret the words of the statute in a way that punishes protected speech. Watts v. United States, 394 U.S. 705 (1969).
Nothing in Perkins v. Commonwealth, 12 Va. App. 7, 402 S.E.2d 229 (1991), supports the result that the majority reaches in this appeal. In Perkins, we narrowly construed Code Sec. 18.2-427 to " 'tailor the statute to a constitutional fit,' " id. at 14, 402 S.E.2d at 233 (quoting Coleman v. City of Richmond, 5 Va. App. 459, 462, 364 S.E.2d 239, 241, reh'g denied, 6 Va. App. 296, 368 S.E.2d 298 (1988)), and to avoid the vice the majority upholds in this appeal. We held in Perkins that "the legislature intended to address harassing conduct . . . and intended to narrow the scope of the speech phrases . . . [in order to] remove protected speech from within the statute's sweep." 12 Va. App. at 14, 402 S.E.2d at 233. Thus, Perkins does not absolve the Commonwealth of proving that the accused both used the language and had the requisite intent, as proscribed by Code Sec. 18.2-427.
In finding unconstitutional former Code Sec. 18.1-238, the predecessor to Code Sec. 18.2-427, the United States Court of Appeals for the Fourth Circuit condemned the reach of that statute because it criminalized "[a]n intemperate expression of understandable and wholesome indignation." Walker v. Dillard, 523 F.2d 3, 5 (4th Cir.), cert. denied, 423 U.S. 906 (1975). The majority's construction of the current statute to include within its proscription the words that Witts spoke to his supervisor in this case "impermissibly delegates basic policy matters [abutting upon sensitive areas of First Amendment freedoms] to . . . judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application . . . [that] 'operates to inhibit the exercise of [those] freedoms.' " Grayned v. City of Rockford, 408 U.S. 104, 109 (1972). It is fundamental that a law that attempts to proscribe speech under the guise of regulating conduct must be delimited so as to avoid uncertainty in its meaning and in its application. Baggett v. Bullett, 377 U.S. 360, 367 (1964).
I would hold that the words Witts spoke in this case were insufficient to prove that Witts "threaten[ed] any illegal act" or made any other communication in violation of Code Sec. 18.2-427. Thus, I would reverse the conviction.