Commonwealth v. Murgia

827 S.E.2d 377

COMMONWEALTH of Virginia

v.Mark David MURGIA

Record No. 180946

Supreme Court of Virginia.

May 16, 2019

Lauren C. Campbell, Assistant Attorney General (Mark R. Herring, Attorney General; Virginia B. Theisen, Senior Assistant Attorney General, on briefs), for appellant.

Charles B. Lustig, Virginia Beach, for appellee.

Present: Lemons, C.J., Goodwyn, Mims, McClanahan, Powell, and Kelsey, JJ., and Koontz, S.J.

OPINION BY SENIOR JUSTICE LAWRENCE L. KOONTZ, JR.

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before us following an appeal and remand to the Court of Appeals of Virginia, which originally decided the issue in an unpublished opinion.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, 2017 WL 2332819 (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, 391 S.E.2d 603 (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, 804 S.E.2d 309 (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, 804 S.E.2d 309.

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.

BACKGROUND

This case, which presents an issue of first impression with respect to the quantum of evidence required to sustain a conviction under Code § 18.2-374.3(D), necessarily involves the use of a communication system conveying sexually explicit language between an adult and an adolescent. It is axiomatic that the nature of such communications is "inappropriate," which Murgia’s counsel conceded at trial. Indeed, such communications are repugnant to persons of common sensibilities. We stress, however, that the issue at trial and in this appeal is not whether the communications between Murgia and A.L. were merely inappropriate and repugnant. Rather, the issue is whether the language used, without more, would permit the trier of fact to conclude beyond a reasonable doubt that Murgia used a communications system "for the purposes of soliciting, with lascivious intent" A.L. to commit a sexual act as defined by Code § 18.2-374.3(C).

Murgia, who was forty years old, once served as a "specialty coach" for A.L.’s high school track team. A.L. was sixteen years old, a member of that team and a cheerleader. Murgia and A.L. had exchanged cell phone numbers and began communicating by "text messages" in October 2014 concerning her efforts to improve her skills in the high jump.¹ As relevant to this appeal, the Commonwealth introduced text messages recovered from A.L.’s phone involving three separate conversations on March 9, 2015, March 20, 2015, and March 21, 2015 respectively.

On the evening of March 9, 2015, A.L. texted Murgia to advise him that she had "jumped today and cleared 5’0 which was starting height ... I would really love to work with you sometime soon bc I have to jump 5’4 by the end of outdoor cause I know I can do it." A.L. indicated that she would likely not be able to meet with Murgia until after an upcoming track meet. Shortly thereafter, Murgia responded, "ok sweet, we need to meet on our own also...if u can." A.L. responded, "Yess, we do.. That’s not a problem." A.L. told Murgia that they could schedule a therapy session at the school after the track meet. Murgia responded, "ok cool ... I'm gonna stretch your tight ass legs out and loosen them hips up too," to which A.L. replied, "Okay lol that’s fine. I'm willing to do whatever I gotta do." Murgia then told A.L. that he would work with her so long as it wasn't "too much" for her. She responded, "It will never be too much, I know what I want and it’s to clear 5’4."

A.L. texted Murgia again asking Murgia if he could be available to coach her "all the time." Murgia responded, "Yeah I can do that boo ... ill b ur secret." A.L. responded, "I have to get better and you're the only person I know that can focus their time just on me." Murgia responded, "I like it when u get possessive," further saying that "I like working with yo sexy self[.] Sorry if I'm blunt just keeping it real." This was the last message sent on March 9, 2015.

After competing in the track meet, A.L. again texted Murgia on March 20, 2015, seeking advice on whether she should purchase specialized high jump shoes. A.L. and Murgia exchanged five texts on this topic for just over an hour. Later that evening Murgia inquired what A.L. was doing, telling her "Im getting my sip on... Buzzin...Wish we could chill right now....Is that weird[?]lol." A.L. attempted to redirect the conversation back to her goal of jumping five feet four inches, but Murgia persisted and, in response to learning that she was watching a particular television program, texted "Wow.. So u an under cover lover lol mmmm-mmm."

The following morning, March 21, 2015, Murgia sent a text to A.L., which in relevant part read, "right b4 I went to sleep, had a CRAZY dream with u in it." Five minutes later, A.L. replied, "I wanna know details lol." Murgia then sent the following text:

... ok u asked for it... Don't know where we were but we were watching TV like u said last night but we were hugged up cuddling like it was normal lol...that quickly escalated to a body message [sic] but we were both naked as the day born (awkward but strangely comfortable) ...u were on your stomach and the message [sic] turned into my lips on the back of your thighs and butt... I spread your legs from behind and started slowly sucking on your kitty lips and working your clit in my mouth...u turned over and I kissed up your stomach to your breasts and gently sucked your nipples while I worked my incredibly hard dick up your thigh...I put the head against your kitty lips and slowly pushed inside you little by little until I was deep inside you...slowly long stroked that kitty, I could feel you wrapped tight around me taking me deep inside you...I was kissing your neck and you flipped me over bent over to kiss me and started slow dragging that pussy up and down my shaft like it was yours until I felt your warm cum run down my dick and I let go inside of you filling you with hot me...yeah needless to say I woke up like wtf??

When A.L. did not respond to this text, Murgia texted, "U prob like coach is a freak! ... [D]ream came out of nowhere, sorry if that hurt your eyes while readin."

Although A.L. "didn't think anything of" Murgia’s text message about his "dream" at the time, she subsequently showed the message to a friend after which "the police department got involved."² A.L. voluntarily turned her phone over to the police who used a forensic examination tool that allowed them to recover some, but not all, messages between her and Murgia from the phone in an "extraction report." Other messages, including the...