VIRGINIA:
In the Supreme Court of Virginia held at the Supreme Court
Building in the City of Richmond, on Thursday, the 7th day of June,
2012.
John Lombe Rives, Appellant,
against Record No. 111492
Court of Appeals No. 2191-10-1
Commonwealth of Virginia, Appellee.
Upon an appeal from a judgment rendered
by the Court of Appeals of Virginia
Upon consideration of the record, briefs, and the argument of
counsel for the appellant, the Court is of opinion that there is no
reversible error in the judgment of the Court of Appeals.
John Lombe Rives was arrested in Virginia Beach in June 2010
for a violation of Code § 18.2-427, "Use of profane, threatening or
indecent language over public airways," a Class 1 misdemeanor.
Convicted in the general district court, he appealed to the Circuit
Court of the City of Virginia Beach where he was again convicted
and sentenced to 12 months in jail with 11 months suspended.
The facts pertinent to this appeal are undisputed. Rives was
married but engaged in an adulterous affair with another woman,
V.L. Rives broke off the relationship, angering V.L., who
responded by calling Rives' wife. That call caused "a great deal
of animosity." Rives then called V.L. and left a series of
telephone messages for her, using angry, vulgar, and threatening
language. In an agreed statement of facts, the parties agreed to
the accuracy of the Commonwealth's evidence of the language
employed, and agreed that the only issue before the court was a
legal one: whether Rives' language was both obscene and harassing,
such as would violate Code § 18.2-427.
The transcripts introduced by the Commonwealth showed that
Rives made ten telephone calls to V.L. between 5:00 p.m. on May 28,
2010 and 2:15 a.m. on May 29, 2010, and that he left four messages
on V.L.'s voicemail during that period. All were similar in tone
and in the language used and it will suffice, for the purposes of
this appeal, to quote only two of them:
Hey bitch! You want to wonder why you don't have any friends?
Bitch! I'm going to fuck you in the worst fucking way. You
understand me? . . . .
Hope you're having a good time with this shit. And what's
going to happen is not going to be pretty. . . .
Rives appealed to the Court of Appeals. A single judge denied
his appeal by a per curiam order. His appeal was again denied by a
three-judge panel. Both opinions were unpublished. The Court of
Appeals recognized that its precedents on the subject of obscene
telephone calls, Allman v. Commonwealth, 43 Va. App. 104, 596
S.E.2d 531 (2004) and Lofgren v. Commonwealth, 55 Va. App. 116, 684
S.E.2d 223 (2009), applied the "Miller test" * for the definition of
*
Taken from Miller v. California, 413 U.S. 15, 24 (1973)
(setting a standard whereby state laws regulating pornography may
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obscenity, requiring the Commonwealth to prove that the content of
the communication has as its dominant theme an appeal to the
prurient interest in sex and is not mere angry name-calling. The
Court held that Rives' calls met the Miller test for obscenity
because the evidence was sufficient to permit a rational fact-
finder to conclude that Rives' language indeed had such a dominant
theme and was therefore obscene within the meaning of the statute.
We awarded Rives an appeal.
In Barson v. Commonwealth, 58 Va. App. 451, 711 S.E.2d 220
(2011), the Court of Appeals expressly overruled its earlier
decision in Allman and adopted a broader definition of obscenity.
We reversed Barson in Barson v. Commonwealth, 284 Va. 67, 726
S.E.2d 292 (2012) (this day decided), but at the time Rives made
his telephone calls in 2010, Allman was the precedent governing the
definition of obscenity for the purposes of Code § 18.2-427 and the
Court of Appeals did not err in applying it to the present case.
We agree with the Court of Appeals' holding that the language
Rives used violated Code § 18.2-427, even if the Miller test
applies to the definition of obscenity, but for a slightly
different reason.
An appellate court may properly affirm a judgment appealed
from where the court from which the appeal was taken reached the
correct result but assigned a different reason for its holding.
pass muster under the First Amendment).
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Perry v. Commonwealth, 280 Va. 572, 579, 701 S.E.2d 431, 435-36
(2010). This "right result for the wrong reason" doctrine is
inapplicable where the "right reason" cannot be fully supported by
the evidence in the record, where the development of additional
facts would be necessary to support it, or where the appellant was
not on notice in the trial court that he might be required to
present evidence to rebut it. Whitehead v. Commonwealth, 278 Va.
105, 115, 677 S.E.2d 265, 270 (2009). The doctrine is applicable
here because the case went to trial on stipulated facts, the record
fully supports the reasoning we adopt, and Rives was on notice at
trial that he was charged with violation of Code § 18.2-427. We
decide the case entirely on our interpretation of that statute.
At the time of the defendant's acts in this case, the statute
provided as follows:
§ 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.
The General Assembly, by this statute, proscribed three
separate species of conduct in the use of telephone and radio
communications, when accompanied by the intent to coerce,
intimidate or harass: (1) obscene language, (2) obscene
suggestions or proposals, and (3) threats of illegal or immoral
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acts. These three offenses are stated in the disjunctive,
separated by "or." The first and second offenses are qualified by
the word "obscene." The third offense, proscribing threats, is not
so limited. We conclude that the General Assembly, having required
that the first two offenses must meet the test of obscenity,
deliberately chose to omit that limitation in the case of
threatening language. See Zinone v. Lee's Crossing Homeowners
Ass'n, 282 Va. 330, 337, 714 S.E.2d 922, 925 (2011) (explaining
that the Court "presume[s] that the legislature chose, with care,
the words it use[s]" when it enacts a statute and that "when the
General Assembly has used specific language in one instance, but
omits that language or uses different language when addressing a
similar subject elsewhere in the Code, we must presume that the
difference in the choice of language was intentional") (citing
Addison v. Jurgelsky, 281 Va. 205, 208, 704 S.E.2d 402, 404 (2011),
Hollingsworth v. Norfolk S. Ry., 279 Va. 360, 366-67 & n.2, 689
S.E.2d 651, 654-55 & n.2 (2010), and Halifax Corp. v. First Union
National Bank, 262 Va. 91, 100, 546 S.E.2d 696, 702 (2001)).
We conclude that the question whether language used in
telephonic communications is obscene is immaterial in cases
involving threats to commit illegal or immoral acts, where the
threat is made with the intent to coerce, intimidate or harass any
person. Rives' language, quoted above, was clearly sufficient to
enable a rational fact-finder to conclude that he was threatening
5
V.L. with physical injury in the form of a sexual offense, with the
obvious intent to intimidate and harass her. Speech of that kind
falls outside the protection of the First Amendment. Thorne v.
Bailey, 846 F.2d 241, 243 (4th Cir. 1988). State law may proscribe
it, obscene or not.
Accordingly, we affirm the conviction. The appellant shall
pay to the Commonwealth of Virginia two hundred and fifty dollars
damages.
Justices McClanahan and Powell took no part in the
consideration of this case.
This order shall be certified to the Court of Appeals of
Virginia and to the Circuit Court of the City of Virginia Beach and
shall be published in the Virginia Reports.
_______________
CHIEF JUSTICE KINSER, with whom JUSTICE LEMONS joins, dissenting.
The "right result for the wrong reason" doctrine cannot be
utilized when a defendant is not on notice at trial to present
evidence to rebut a particular method of proof articulated by the
Commonwealth. Whitehead v. Commonwealth, 278 Va. 105, 115, 677
S.E.2d 265, 270 (2009). In the case before us, the parties
stipulated that "the only issue presented at trial was a legal one,
namely whether or not the language used by [John Lombe] Rives was
both obscene and harassing, such that it would violate" Code
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§ 18.2-372. Based on that stipulation, the trial court found the
language used by Rives "both obscene and harassing."
I agree with the majority that Rives was on notice that he was
charged with violating Code § 18.2-427 by virtue of the indictment.
But, as the majority recognizes, that statute "proscribe[s] three
separate species of conduct." The stipulation makes clear that the
Commonwealth was not pursuing a theory of guilt predicated on that
portion of the statute making it illegal for a person to "threaten
any illegal or immoral act with the intent to coerce, intimidate,
or harass . . . over any telephone." Code § 18.2-427. ** Instead
the Commonwealth's theory was that Rives had used "obscene . . .
language . . . with the intent to . . . harass." Id. Thus, Rives
was not on notice to present evidence to rebut the charge of
"threaten[ing] any illegal or immoral act" with the intent to
harass. Id. It is inappropriate, therefore, to apply the "right
result for the wrong reason" doctrine to affirm the trial court's
judgment. See Whitehead, 278 Va. at 115, 677 S.E.2d at 270.
For the reasons stated in Barson v. Commonwealth, 284 Va. 67,
726 S.E.2d 292 (2012) (this day decided), I conclude that the
statutory definition of the term "obscene" set forth in Code
§ 18.2-372 applies to the offense proscribed in Code § 18.2-427.
Although the language Rives used in the telephone messages at issue
**
As in effect prior to the amendment by 2010 Acts ch. 565.
The statute currently features substantially similar language.
7
was rude, vulgar, and disgusting, I also conclude that it does not
satisfy that definition.
Thus, I respectfully dissent and would reverse the judgment of
the Court of Appeals of Virginia affirming the conviction.
A Copy,
Teste:
Patricia L. Harrington, Clerk
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