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From the Court of Appeals of Virginia

In this appeal we determine whether the evidence adduced in a criminal trial was sufficient to sustain a conviction under Code § 18.2-374.3(D), which prohibits the use of “a communications system . . . for the purposes of soliciting, with lascivious intent,” an adolescent between the ages of 15 and 18 to commit certain sexual acts as specified by Code § 18.2-374.3(C).

Procedural History:

This case is before us following an appeal and remand to the Court of Appeals of Virginia, which originally decided the issue in an unpublished opinion. Murgia v. Commonwealth, Record No. 0788-16-1 (May 30, 2017). In that opinion, a divided panel of the Court of Appeals reversed the conviction of Mark David Murgia, in the Circuit Court of the City of Chesapeake, for the criminal solicitation of a sixteen-year-old female high school student (“A.L.”) using a communications system in violation of Code § 18.2-374.3(D). Relying on Ford v. Commonwealth, 10 Va. App. 224 (1990), the panel majority concluded that the words used in Murgia’s text messages to A.L. “standing alone” were merely expressions of his own sexual desire and did not constitute an entreaty or effort to persuade A.L. to engage in any illegal sexual conduct as required to support a conviction for a violation of Code § 18.2-374.3(D). The dissenting member of the panel concluded that the panel majority had disregarded the standard of review by failing to defer to the findings of fact made by the trial judge in Murgia’s bench trial.

The Commonwealth sought a review of the Court of Appeals’ decision in this Court. While that appeal was pending, this Court issued its opinion in Dietz v. Commonwealth, 294 Va. 123 (2017). Dietz involved the application of Code § 18.2-374.3(B), which prohibits the use of “a communications system . . . for the purposes of procuring or promoting the use of a minor” for taking indecent liberties with a child or for the production of child pornography. In affirming Dietz’s conviction, we concluded that the gravamen of the offense was whether “the purpose of Dietz’s communication was to move forward with a scheme of taking indecent liberties with [the minor] as proscribed under Code § 18.2-370, though such crime under Code § 18.2-370 may not have yet been completed.” Id. at 137.

Although Dietz involved the application of a different subsection of Code § 18.2-374.3, the rationale of our opinion upholding the conviction was potentially applicable to any act of sexual solicitation under the general scheme of that statute. Accordingly, by order entered on March 22, 2018, we granted the Commonwealth’s appeal and remanded the case to the Court of Appeals to reconsider its ruling in light of our decision in Dietz.

Upon remand, the Court of Appeals received the parties’ briefs regarding the potential application of Dietz. Thereafter, the Court issued an order dated June 19, 2018 stating that it “does not believe Dietz is applicable to this case” and again reversed Murgia’s conviction for the reasons stated in the panel’s original opinion of May 30, 2017.

We now consider the merits of the Commonwealth’s appeal. The Commonwealth appeals from the Court of Appeals’ decision reversing Murgia’s conviction by its May 30, 2017 opinion and its June 19, 2018 order. The Commonwealth has assigned four errors to the decision of the Court of Appeals. However, these may be reduced to the composite issue of whether the Court of Appeals erred in finding that the evidence adduced at trial, and the reasonable inferences that the factfinder could draw therefrom, was insufficient to support Murgia’s conviction for violating Code § 18.2-374.3(D). For the reasons that follow, we hold that the evidence was sufficient to establish beyond a reasonable doubt that Murgia’s communications with A.L., when viewed in the overall context of his relationship with A.L., constituted a violation of the statute...

Source Document: http://www.courts.state.va.us/opinions/opnscvwp/1180946.pdf