Thornton v. Commonwealth

78 Va.App. 321

890 S.E.2d 861

Darren THORNTON, Sometimes Known as Darren Lamar Thornton v. COMMONWEALTH of Virginia

Record No. 0652-22-2

Court of Appeals of Virginia.

August 22, 2023

Susan E. Allen (The Law Office of Susan E. Allen, Attorney at Law, PLLC, on brief), Henrico, for appellant.

Mason D. Williams, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Present: Judges Ortiz, Chaney and Senior Judge Haley

OPINION BY JUDGE VERNIDA R. CHANEY

Darren Thornton appeals his felony conviction for soliciting prostitution from a minor. Thornton contends that the trial court erred in finding that he (i) completed the required element of "a substantial act in furtherance" of an offer for prostitution and (ii) solicited prostitution from a minor. For the following reasons, this Court affirms the trial court's judgment.

BACKGROUND

"In accordance with familiar principles of appellate review, we state the facts ‘in the light most favorable to the Commonwealth, the prevailing party at trial.’ " Aley v. Commonwealth , 75 Va. App. 54, 57, 873 S.E.2d 89 (2022) (quoting Gerald v. Commonwealth , 295 Va. 469, 472, 813 S.E.2d 722 (2018) ).

On November 19, 2020, Thornton responded to an online advertisement for sexual services by a "female escort" called "Emma." The ad stated that Emma was 19 years old. The ad included a menu of sexual services and indicated that "[g]irlfriend experience (GFE)" was available for an extra fee. The ad also stated, "LOLLIPOPS and candy canes ..., ill b ur sweet bb girl."

At 3:45 p.m., Thornton initiated a conversation with "Emma" by sending a text message to her advertised phone number. After "Emma" texted in response that she was available and located in an apartment in South Richmond, Thornton replied, "I can be there around 5:30." When asked, "what are you looking for so I can give you the price," Thornton answered, "GFE hour." ¹ "Emma" responded with a price of $80, including fellatio. Thornton then inquired, "You smoke?" "Emma" responded, "I do. [B]ring me some and I'll take some $ off." Thornton replied, "Okay I will bring some."

At 4:02 p.m., "Emma" sent Thornton a text message asking, "Can you bring me a beer? I'm too young to buy it." Then "Emma" and Thornton exchanged the following text messages about "Emma's" age:

Emma: I'm almost 18 and can't buy it.

Thornton: You not 18?

Emma: [A]lmost am, I will be soon.

Thornton: What is soon?

Emma: February.

Thornton: I will need a pic!!! I don't do under 18.

Emma: I mean I get what you're saying, but it's just between us.

Thornton: How did you get an apartment under 18? Your ad says 19.

Emma: I stay at a friend's place who is out of town working. The site doesn't allow ads younger.

After this discussion and some sexual banter, "Emma" texted, "[Y]ou coming or what? I'm free right now." Thornton replied, "Okay I will come through to check you out." A couple of minutes later, "Emma" texted that she would provide her address if Thornton was really coming. Thornton replied, "I am coming." Then "Emma" asked whether Thornton wanted to have sex without using a condom—one of her advertised services. Thornton replied that he would bring condoms. Then "Emma" provided her address, and they agreed to meet around 5:30 p.m.

At 4:16 p.m., "Emma" texted Thornton an address on Meadowdale Boulevard in Chesterfield County. Thornton replied that he would "stop by the store and stuff" and "should be there by 5:30." Thornton added, "I am serious about coming with weed and beer too[.] It takes a little time." At 4:49 p.m., Thornton texted, "[O]n the way, should be there in 20 minutes." At 5:15 p.m., Thornton texted, "Here." A few seconds later, "Emma" responded, "[C]ome to the door, I'm ready for you."

After Thornton parked and texted "Emma" that he had arrived at her address, the police blocked his car with police vehicles to prevent him from leaving. The police arrested and searched Thornton after he stepped out of his car. Thornton was holding a beer in a brown paper bag. Thornton also had over $160 in cash, a cell phone, several condoms, cigarettes, and a pouch containing a leafy green substance.

Unbeknownst to Thornton, his text communications with "Emma" were actually with Detective Joanna Hartsook, who was posing as an underage minor prostitute in a sting operation with the Chesterfield County Police Department's Special Victims Unit and Vice and Narcotics Section. Detective Hartsook initiated the sting operation by placing "Emma's" ad on a known prostitution website. The detective testified that "BB girl," as used in the online ad, is slang for "baby girl" and the word "LOLLIPOPS" in capital letters identified "Emma" as a minor. The detective also explained that "Girlfriend experience" or "GFE" is "a transactional sex act between two people that includes kissing or cuddling."

After Thornton was advised of his Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), rights, he agreed to speak with Detectives Frazier and Kay. Thornton admitted sending text messages to "Emma," but he claimed that he was acting as a counselor for troubled young women. Thornton contended that his reason for meeting such young women was to try to convince them not to participate in "human trafficking." Thornton claimed that he engaged in "sexual talk" with such women to connect with them and keep them interested in meeting with him. Thornton told the detectives that he should not have continued to "Emma's" location when he became aware that she was 17 years old. Although Thornton claimed that he only intended to get to know "Emma," he also said that he was open to developing a sexual relationship with her.

At the close of the Commonwealth's case-in-chief, Thornton moved to strike the evidence due to the Commonwealth's alleged failure to prove that he committed any substantial act in furtherance of an offer of money in exchange for sex. The trial court initially took Thornton's motion to strike under advisement. Thornton presented no evidence and renewed his motion to strike. The trial court found that the evidence was sufficient to prove the requisite "substantial act in furtherance" and denied the renewed motion to strike. Following closing arguments, the trial court pronounced that Thornton was guilty as charged of solicitation of prostitution from a minor, age 16 or older, in violation of Code § 18.2-346.

Thornton moved the trial court to reconsider and vacate its finding of guilt because the evidence allegedly failed to prove beyond a reasonable doubt that Thornton (1) did a substantial act in furtherance of an offer of money in exchange for sex and (2) solicited prostitution from a minor. Following a hearing, the trial court denied Thornton's motion to reconsider. The trial court sentenced Thornton to incarceration for five years, with all five years suspended. This appeal followed.

ANALYSIS

A. Standard of Review

Thornton contends that the evidence is insufficient to sustain his conviction for solicitation of a minor in violation of former Code § 18.2-346(B) because the evidence is insufficient to support the trial court's findings that he (1) committed a substantial act in furtherance of an offer of money for sex and (2) solicited prostitution from a minor. ² On appellate review of the sufficiency of the evidence to support a criminal conviction, this Court "reviews the evidence in the light most favorable to the Commonwealth, as the prevailing party at trial, and considers all inferences fairly deducible from that evidence." Commonwealth v. Herring , 288 Va. 59, 66, 758 S.E.2d 225 (2014) (quoting Allen v. Commonwealth , 287 Va. 68, 72, 752 S.E.2d 856 (2014) ). At issue on appeal is "whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Cady , 300 Va. 325, 329, 863 S.E.2d 858 (2021) (quoting Sullivan v. Commonwealth , 280 Va. 672, 676, 701 S.E.2d 61 (2010) ). The circuit court's judgment will be affirmed "unless it is plainly wrong or without evidence to support it." Sarka v. Commonwealth , 73 Va. App. 56, 62, 854 S.E.2d 204 (2021) (quoting Austin v. Commonwealth , 60 Va. App. 60, 65, 723 S.E.2d 633 (2012) ); see also Code § 8.01-680.

To the extent that our sufficiency analysis involves issues of statutory construction, our appellate review is de novo. See Miller v. Commonwealth , 64 Va. App. 527, 537, 769 S.E.2d 706 (2015). As a penal statute, former Code § 18.2-346(B) "must be strictly construed against the state and limited in application to cases falling clearly within the language of the statute." Bakran v. Commonwealth , 57 Va. App. 197, 202, 700 S.E.2d 471 (2010) (quoting Fine v. Commonwealth , 31 Va. App. 636, 640, 525 S.E.2d 69 (2000) ), aff'd , 282 Va. 344, 718 S.E.2d 463 (2011).

B. Sufficient Evidence of a Substantial Act in Furtherance of an Offer of Money for Sex

When Thornton offered money in exchange for sex in November 2020, Code § 18.2-346 provided:

A. Any person who, for money or its equivalent, (i) commits any act in violation of § 18.2-361; performs cunnilingus, fellatio, or anilingus upon or by another person; engages in sexual intercourse or anal intercourse; touches the unclothed genitals or anus of another person with the intent to sexually arouse or gratify; or allows another to touch his unclothed genitals or anus with the intent to sexually arouse or gratify or (ii) offers to commit any act in violation of § 18.2-361; perform cunnilingus, fellatio, or anilingus upon or by another person; engage in sexual intercourse or anal intercourse; touch the unclothed genitals or anus of another person with the intent to sexually arouse or gratify; or allow another to touch his unclothed genitals or anus with the intent to sexually arouse or gratify and thereafter does any substantial act in furtherance thereof is guilty of prostitution, which is punishable as a Class 1 misdemeanor.

B. Any person who

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