Dietz v. Commonwealth
294 Va. 123
| Va. | 2017Background
- Kimberlee Dietz, a Hampton elementary school teacher, was charged under Va. Code § 18.2-374.3(B) for using a cell phone to "procure or promote" a minor for activity violating § 18.2-370 (taking indecent liberties).
- An 11-year-old student, G.S., gave Dietz his phone number; Dietz sent flirtatious texts and, believing she was texting G.S., later sent five photos (legs, face, lips, partial breasts) and numerous sexualized messages.
- After G.S.’s parents discovered the texting, police obtained the phone; Detective Mayer (posing as G.S.) continued the exchange, during which Dietz sent the photos and made explicitly sexual remarks and invitations to be alone with the child.
- At trial parties stipulated to earlier texts between Dietz and G.S.; police testimony and the continuation of messages with Mayer (while he posed as G.S.) provided the substantive evidence. Dietz admitted she thought she was communicating with G.S. and acknowledged the communications were inappropriate.
- Dietz moved to strike, arguing § 18.2-374.3(B) requires communication with a third party (not the minor) to procure/promote, and alternatively that the photos did not show "sexual or genital parts" or lascivious intent as required by § 18.2-370(A)(1).
- The trial court convicted; the Court of Appeals affirmed. The Supreme Court of Virginia affirmed, holding no third-party communication is required and that proving an actual § 18.2-370 conviction is unnecessary when the communication itself shows purpose to procure/promote indecent liberties.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 18.2-374.3(B) requires communicating with a third party (someone other than the minor) to procure/promote illegal activity | Commonwealth: statute's plain text does not require a third party; communication with minor suffices | Dietz: provision requires using a communications system to procure/promote a minor through a third-party solicitation or promotion | Held: No third-party communication required; direct communication with the minor can violate § 18.2-374.3(B) |
| Whether conviction under § 18.2-374.3(B) requires proof that defendant actually committed a § 18.2-370 offense (taking indecent liberties) | Commonwealth (alternative): conviction under § 18.2-374.3(B) can be based on purpose to procure/promote indecent liberties without proof that § 18.2-370 was completed | Dietz: Commonwealth had to prove an actual § 18.2-370 violation (e.g., exposure of sexual parts) and lascivious intent tied to that statutory definition | Held: Proof of the defendant’s purpose (mens rea) to procure/promote indecent liberties is sufficient; actual commission of § 18.2-370 not required |
| Whether the photographs and messages showed exposure of a "sexual part" or lascivious intent as required under § 18.2-370(A)(1) | Dietz: partial coverage of breasts meant no statutory "nudity" and no lascivious intent shown | Commonwealth: the images and explicit messages demonstrate lascivious intent and a scheme to entice the child | Held: Court did not need to decide whether the image alone met § 18.2-370(A)(1); regardless, messages and photos established lascivious intent and purpose to move forward with scheme in violation of § 18.2-374.3(B) |
| Sufficiency of the evidence to sustain conviction under § 18.2-374.3(B) | Dietz: evidence insufficient as to statutory elements | Commonwealth: messages, images, and admission provided ample proof of actus reus and mens rea | Held: Evidence was sufficient; a rational factfinder could find purpose to procure/promote indecent liberties beyond a reasonable doubt |
Key Cases Cited
- Commonwealth v. Moseley, 293 Va. 455 (standard that convictions will not be disturbed unless plainly wrong)
- Hilton v. Commonwealth, 293 Va. 293 (apply plain meaning to statutes; de novo review of statutory interpretation)
- Grimes v. Commonwealth, 288 Va. 314 (statutory interpretation; give ordinary meaning to undefined terms)
- Viney v. Commonwealth, 269 Va. 296 (definition and proof of lascivious intent)
- Burton v. Commonwealth, 281 Va. 622 (intent required where statute combines act and particular intent)
- Commonwealth v. White, 293 Va. 411 (judicial restraint; decide on narrowest grounds)