PRESENT: Kinser, C.J., Lemons, Goodwyn, Millette, and Mims,
JJ., and Carrico and Russell, S.JJ.
DENNIS B. BARSON, JR.
OPINION BY
v. Record No. 111406 JUSTICE DONALD W. LEMONS
June 7, 2012
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal from a misdemeanor conviction of
"harassment by computer" pursuant to Code § 18.2-152.7:1, we
consider whether the Court of Appeals erred in holding that the
language utilized by Dennis B. Barson, Jr. ("Barson") in his
emails was "obscene."
I. Facts and Proceedings Below
The facts material to this appeal are undisputed. In
April 2009, Barson and his wife had been married eight years.
By that time they had become estranged. Barson lived in
Austin, Texas, completing his medical specialty training in
neurology while his wife lived in Virginia Beach with their
children.
On May 1, 2009, Barson received a telephone call from a
friend informing him of an advertisement for sex appearing on
"Craigslist," an online advertising website. After visiting
the website, Barson became embarrassed and angry. He tried to
call his wife but she failed to respond to any of his telephone
calls. He then began sending emails to his wife, her family
and friends. When he received replies from friends and family
members, he forwarded them to his wife. His wife received 87
of these emails in the first 14 days of May 2009, and hundreds
more during the next six months.
Barson's emails contained language accusing his wife of
having "sex with anonymous strangers" on Craigslist, of having
a "new hobby of soliciting sex on CL," of having "risky gutter
sex," of "vacuum[ing] his baby to death" and of being a "coke
whore baby killing prostitute." He also accused her of
engaging in sexual acts with identified men. The defendant
admitted at trial that he was angry when he sent the emails and
that he intended to embarrass his wife, but he testified that
his original motive in sending them was to compel her to
respond to his telephone calls. He has not, however, assigned
error to the trial court's finding, or the Court of Appeals'
holding, that he sent the emails with the intent to harass his
wife.
On his wife's complaint, Barson was arrested and tried on
a misdemeanor warrant in the Juvenile and Domestic Relations
District Court of the City of Virginia Beach. He was convicted
and appealed to the Circuit Court of the City of Virginia
Beach. At a bench trial, the court found Barson guilty and
imposed a $250 fine. Barson appealed the conviction to the
Court of Appeals.
2
A divided panel of the Court of Appeals reversed the
conviction on the ground that the content of Barson's emails
was not obscene under the definition of obscenity the Court of
Appeals had adopted in Allman v. Commonwealth, 43 Va. App. 104,
596 S.E.2d 531 (2004). Barson v. Commonwealth, Record No.
2464-09-1, slip op. at 18-19 (Nov. 2, 2010) (unpublished). The
Court granted the Commonwealth's petition for a rehearing en
banc.
In its decision en banc, the Court of Appeals decided that
its earlier definition of obscenity expressed in Allman
rendered the statute under consideration "too narrowly tailored
for its purpose." The Court expressly overruled its decision
in Allman and adopted a broader definition of obscenity derived
from a dictionary. The Court ultimately held that Barson's
emails were obscene within its newly-adopted definition,
reversed the panel's decision, and affirmed Barson's
conviction. Barson v. Commonwealth, 58 Va. App. 451, 461-64,
711 S.E.2d 220, 225-27 (2011). We awarded Barson an appeal.
II. Analysis
A. Standard of Review
This appeal presents questions of law, to which we apply a
de novo standard of review. Phelps v. Commonwealth, 275 Va.
139, 141, 654 S.E.2d 926, 927 (2008).
3
B. The Statute
Code § 18.2-152.7:1 provides:
Harassment by computer; penalty. . . . If any
person, with the intent to coerce, intimidate, or
harass any person, shall use a computer or
computer network to communicate 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,
he shall be guilty of a Class 1 misdemeanor.
The statute does not merely proscribe harassment; rather, it
enumerates specific elements of the offense that must be
proved. Accordingly, in the context of this case, in order to
support a conviction under Code § 18.2-152.7:1, the
Commonwealth must prove the following elements:
1. The accused used a computer or computer network;
2. To communicate obscene language;
3. With the intent to coerce, intimidate or harass.
Significantly, Barson does not argue on appeal that the
evidence was insufficient to establish that he intended to
"coerce, intimidate, or harass" his wife. As the Court of
Appeals recognized in its en banc opinion, "[t]here is no
dispute in this case that the evidence presented was sufficient
to show Barson intended to harass [his wife]; Barson merely
contends his language was not obscene." Barson v.
Commonwealth, 58 Va. App. 451, 462-63, 711 S.E.2d 220, 226
(2011). Barson testified at trial "that he sent the e-mails
4
because he was angry, hurt, and embarrassed. He was also
trying to 'get a response' from [his wife]. Barson
additionally testified he assumed that by forwarding the e-
mails to her friends and family members, [his wife] would be
embarrassed." Id. at 455, 711 S.E.2d at 222.
There is no dispute about satisfaction of the required
elements for the use of a computer or the intent to harass.
This case is about the statutory elements of the offense as
specified by the General Assembly that require the speech at
issue be "obscene." The dispositive question before us is what
definition of "obscene" should apply. To be more precise, the
question before us is whether the statutory definition of
"obscene" found in Code § 18.2-372 should apply or whether the
dictionary's definition utilized by the Court of Appeals should
apply. In arriving at an answer to that question, it is
helpful to trace the history and the Court of Appeals' cases
that deal with this definition.
Following the United States Supreme Court decision in
Miller v. California, 413 U.S. 15 (1973), the General Assembly
enacted a statutory definition of obscenity:
§ 18.2-372. "Obscene" defined. – The word
"obscene" where it appears in this article shall
mean that which, considered as a whole, has as
its dominant theme or purpose an appeal to the
prurient interest in sex, that is, a shameful or
morbid interest in nudity, sexual conduct, sexual
excitement, excretory functions or products
5
thereof or sadomasochistic abuse, and which goes
substantially beyond customary limits of candor
in description or representation of such matters
and which, taken as a whole, does not have
serious literary, artistic, political or
scientific value.
The definition expressly applies the "Miller test" definition
to Article 5 ("Obscenity and Related Offenses") of Chapter 8
("Crimes Involving Morals and Decency") of Title 18.2 of the
Code. However, Code § 18.2-152.7:1 concerning harassment by
computer, and Code § 18.2-427 concerning obscene telephone
calls, do not appear in Article 5 or in any other part of
Chapter 8. Instead, the computer statute appears in Chapter 5,
"Crimes Against Property" and the telephone statute appears in
Chapter 9, "Crimes Against Peace and Order." The General
Assembly did not expressly provide a statutory definition of
"obscene" that applied to either the computer or the telephone
statutes.
Nevertheless, in deciding Allman in 2004, the Court of
Appeals held that the statutory definition of obscenity as
expressed in Code § 18.2-372 should apply to a prosecution
under Code § 18.2-427 for making obscene telephone calls. The
Court's conclusion was based upon the premise that the Code of
Virginia "constitutes a single body of law and other sections
can be looked to where the same phraseology is employed."
6
Allman, 43 Va. App. at 109, 596 S.E.2d at 534 (internal
quotation marks omitted).
In Allman, the defendant made telephone calls to an
attorney, reviling him for his conduct in a civil case. The
defendant used a term having a strong sexual connotation but
employed it in a sense that it merely accused the attorney of
cowardice or effeminacy. Applying Code § 18.2-372, the Court
held that the defendant's language was not such as to create a
jury issue whether, considered as a whole, it had as its
dominant theme or purpose an appeal to the prurient interest in
sex. Id. at 113, 596 S.E.2d at 535. The Court of Appeals
therefore held that Allman's telephone calls were not obscene
and reversed his conviction. Id. at 113, 596 S.E.2d at 536.
The Court of Appeals followed Allman in Lofgren v.
Commonwealth, 55 Va. App. 116, 684 S.E.2d 223 (2009), a similar
case of telephone calls employing words having explicit sexual
connotations that were used to express anger or contempt. The
Court reversed the conviction, holding that, in context, the
words lacked an appeal to the prurient interest in sex. Id. at
121-22, 684 S.E.2d at 226.
In Airhart v. Commonwealth, Record No. 1219-05-2 (Jan. 16,
2007) (unpublished), the Court of Appeals considered obscenity
in the context of the statute with which we are concerned in
7
the present case, harassment by computer under Code § 18.2-
152.7:1.
Noting the parallel language employed by the General
Assembly in Code §§ 18.2-152.7:1 and 18.2-427, and the fact
that both sections lacked an express statutory definition of
"obscene," the Court of Appeals applied the definition in Code
§ 18.2-372 and followed in Allman, to a prosecution for
harassment by computer. Although the words used by Airhart had
explicit sexual connotations, they were used to express anger,
contempt and disgust and were not used in an erotic sense.
Because Airhart's language did not appeal to the prurient
interest in sex, the Court of Appeals held that it was not
obscene and reversed Airhart's conviction. Id., slip op. at 4-
5.
As previously observed, the statute in this case does not
fall within Article 5 ("Obscenity and Related Offenses") of
Chapter 8 ("Crimes Involving Morals and Decency") of Title 18.2
of the Code. Also as previously observed, the Court of Appeals
has utilized the definition provided by Code § 18.2-372 outside
of Article 5 of Chapter 8 of the Code.
In this case, however, the Court of Appeals abruptly
changed course, overruled Allman to the extent that decision
"requires . . . a different meaning of the word 'obscene,' "
and held that "the application of the ordinary meaning of the
8
word 'obscene' to the conduct prohibited by Code § 18.2-152.7:1
is more consistent with the stated intent of the legislature
than the ad hoc definition crafted in [Allman]." * Barson, 58
Va. App. at 463, 711 S.E.2d at 226. Applying its newly adopted
"plain and ordinary meaning" of the term "obscene," the Court
of Appeals concluded that Allman's "application of the
definition for the word 'obscene' contained in Code § 18.2-372
to other sections of the Code outside of that [a]rticle, such
as Code § 18.2-427, resulted in a statute too 'narrowly
tailored' for its purpose." Id. at 461, 711 S.E.2d at 225.
Accordingly, the Court of Appeals concluded that the trial
court did not err in finding the evidence sufficient to support
Barson's conviction under Code § 18.2-152.7:1, and affirmed his
conviction. Id. at 463-64, 711 S.E.2d at 226-27.
"It is a common canon of statutory construction that when
the legislature uses the same term in separate statutes, that
term has the same meaning in each unless the General Assembly
indicates to the contrary." Jenkins v. Mehra, 281 Va. 37, 48,
704 S.E.2d 577, 583 (2011) (quoting Commonwealth v. Jackson,
276 Va. 184, 194, 661 S.E.2d 810, 814 (2008)).
*
The Court of Appeals adopted the definition of "obscene"
contained in Webster's Third New International Dictionary 1557
(3rd ed. 1993), which defines "obscene" as "1: disgusting to
the senses . . . 2: offensive or revolting as countering or
violating some ideal or principle." Barson, 58 Va. App. at
463, 711 S.E.2d at 226.
9
The General Assembly provided a definition of "obscene" in
Code § 18.2-372 to comport with the constitutional requirements
articulated in Miller. Accordingly, there is no suggestion
that this definition is constitutionally infirm. The Court of
Appeals has for the last eight years utilized this definition
outside of Article 5, Chapter 8 of Title 18.2. The legislature
is presumed to be aware of this usage. Its acquiescence is
deemed to be approval. Tazewell County School Board v. Brown,
267 Va. 150, 163-64, 591 S.E.2d 671, 678 (2004).
III. Conclusion
The definition of "obscene" provided by the General
Assembly in Code § 18.2-372, and previously adopted by the
Court of Appeals controls this case. Accordingly, the Court of
Appeals erred in substituting a dictionary definition for that
provided by the General Assembly.
Additionally, upon review of the record we hold that
Barson's emails to his wife, as offensive, vulgar, and
disgusting as their language may have been, did not meet the
standard of obscenity provided by Code § 18.2-372.
Accordingly, we will reverse the judgment of the Court of
Appeals and enter final judgment vacating Barson's conviction.
Reversed and final judgment.
SENIOR JUSTICE RUSSELL, with whom JUSTICE GOODWYN and JUSTICE
MILLETTE join, concurring.
10
We join in the majority opinion and concur in the result
but write separately to emphasize two matters we consider
significant.
A. Obscenity
Because the interpretation of Code § 18.2-152.7:1 presents
a question of first impression to this Court, it is helpful to
begin our analysis with a consideration of the history of Code
§ 18.2-427, which contains parallel language, is directed to
the closely related subject of obscene telephone calls, and
which has received considerable judicial attention.
Former Code § 18.1-238 made it a misdemeanor to "curse or
abuse anyone, or use vulgar, profane, threatening or indecent
language over any telephone in this State." In Walker v.
Dillard, 523 F.2d 3, 6 (4th Cir. 1975), the United States Court
of Appeals for the Fourth Circuit held that section
unconstitutionally overbroad because the imprecision of its
language had the potential of criminalizing speech protected by
the First Amendment.
In response to Walker, the General Assembly amended and
reenacted the former statute as Code § 18.2-427, which at the
time of the underlying offense in this case provided as
follows:
§ 18.2-427. Use of profane, threatening or indecent
language over public airways. – If any person shall use
11
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 Court of Appeals of Virginia was thereafter called
upon to determine whether the new statute was constitutionally
overbroad on its face. The Court resolved that question by
construing the statute to read the phrase "with the intent to
coerce, intimidate, or harass" as a limitation applying to the
words "obscene, vulgar, profane, lewd, lascivious, or indecent
language." That construction "removes protected speech from
within the statute's sweep." The Court further concluded that
the legislature intended to address harassing conduct as the
evil to be proscribed and to narrow the scope of the statutory
language under consideration to that which is obscene. Perkins
v. Commonwealth, 12 Va. App. 7, 14, 402 S.E.2d 229, 233 (1991).
We agree with the Court of Appeals' reasoning in Perkins.
When constitutionally protected speech is placed beyond the
reach of the statute, the statute remains as a proscription of
assaultive or harassing conduct, not a limitation on
constitutionally protected speech. As the Walker court
recognized, the state has a legitimate interest in prohibiting
obscene, threatening and harassing telephone calls. Generally,
these fall outside the protection of the First Amendment.
12
Walker, 523 F.2d at 4. United States v. Eckhardt, 466 F.3d
938, 944 (11th Cir. 2006); Gilbreath v. State, 650 So.2d 10, 12
(Fla. 1995); State v. Richards, 896 P.2d 357, 362 (Idaho Ct.
App. 1995); State v. Dyson, 872 P.2d 1115, 1120 (Wash. Ct. App.
1994); State v. Kipf, 450 N.W.2d 397, 409 (Neb. 1990); Thorne
v. Bailey, 846 F.2d 241, 243 (4th Cir. 1988); People v.
Taravella, 350 N.W.2d 780, 783 (Mich. 1984); Gormley v.
Director, Connecticut State Dep’t of Probation, 632 F.2d 938,
941 (2nd Cir. 1980); People v. Weeks, 591 P.2d 91, 96 (Colo.
1979); State v. Hagen, 558 P.2d 750, 753 (Ariz. Ct. App. 1976).
The Supreme Court of the United States has not disturbed those
decisions on appellate review or on certiorari.
As the majority opinion points out, the General Assembly
had an opportunity to apply its statutory definition of
obscenity, expressed in Code § 18.2-372, to its laws regulating
telephone calls and harassment by computer, but chose not to do
so by expressly restricting the application of § 18.2-372 to
other parts of the Code. Thus, as late as 2004, there was
neither a legislative nor a judicial interpretation of the term
"obscene," as it appears in those statutes in Virginia.
In Allman v. Commonwealth, 43 Va. App. 104, 596 S.E.2d 531
(2004), the Court of Appeals reasoned that the Miller
definition of obscenity as expressed in Code § 18.2-372 should
apply to a prosecution under Code § 18.2-427 for making obscene
13
telephone calls. As the majority opinion states, the Court's
conclusion was based upon the premise that the Code of Virginia
"constitutes a single body of law and other sections can be
looked to where the same phraseology is employed." Allman, 43
Va. App. at 109, 596 S.E.2d at 534 (internal quotation marks
omitted).
The Court of Appeals then followed Allman with its
decisions in Lofgren v. Commonwealth, 55 Va. App. 116, 684
S.E.2d 223 (2009), and Airhart v. Commonwealth, Record No.
1219-05-2 (Jan. 16, 2007) (unpublished), making abundantly
clear that it had decided that the Miller test was applicable
to all prosecutions in Virginia for violations of the obscene
telephone calls statute or the harassment by computer statute.
The Court of Appeals panel decision held, in the present
case, that Barson's emails to his wife "unquestionably
contained vulgar, offensive, and sexually explicit language"
but were used to express anger and contempt and did not support
a finding that they had as their " 'dominant theme or purpose
an appeal to the prurient interest in sex.' " We agree with
the panel's decision that at the time Barson sent his emails to
his wife, they failed, for that reason, to meet the Miller test
of obscenity that had been adopted by the Court of Appeals in
Allman.
14
It is beyond question that in 2009, Allman contained the
only published appellate interpretation of "obscene" as used in
statutes governing electronic communications in Virginia. For
the reasons expressed above, we do not consider the Miller test
to be constitutionally mandated when applied to statutes
regulating harassing conduct, rather than speech protected by
the First Amendment. We agree, however, with the majority's
reasoning that the General Assembly has tacitly approved the
Allman holding by leaving the relevant statutes unamended for
the eight years that have passed since Allman was decided.
B. Due Process
The Court of Appeals en banc, in reversing the panel
decision in Barson's case, did not disagree with the panel's
decision that Allman expressed the governing law at the time of
Barson's offense, but simply overruled Allman, substituted a
broader definition of obscenity that had the effect of
criminalizing Barson's conduct, and reversed the panel's
decision.
Barson argues that this change of the definition of
obscenity in 2011, if retroactively applied to his conduct in
2009, infringes his right to due process of law, citing Bouie
v. City of Columbia, 378 U.S. 347, 353 (1964) ("An
unforeseeable judicial enlargement of a criminal statute,
15
applied retroactively, operates precisely like an ex post facto
law, such as Art. 1, § 10 of the Constitution forbids").
In response, the Commonwealth contends that the decision
in Allman was not binding precedent, citing our observation in
Armstrong v. Commonwealth, 263 Va. 573, 562 S.E.2d 139 (2002):
"[W]hile published panel decisions of the Court of Appeals are
precedent binding on other panels of that Court, the precedent
remains subject to review by the Court of Appeals sitting en
banc and by this Court on appeal." Id. at 581, 562 S.E.2d at
143 (citation omitted).
We do not agree with the Commonwealth. While it is true
that published panel decisions of the Court of Appeals, within
the time periods prescribed by the Rules of Court, are subject
to review by that Court en banc and by this Court on appeal,
nothing we said in Armstrong supports a conclusion that such
panel decisions, after the times for review en banc and for
appeal have expired without any modification by either
appellate court, are anything less than binding legal
precedent. The Court of Appeals is a court of statewide
appellate jurisdiction. Its published decisions in cases
within its jurisdiction, whether en banc or by a panel acting
for the Court, are, when final, precedents binding all who are
subject to the laws of Virginia.
16
It is also true that an appellate court may at some time
after establishing a precedent, revisit the issue in a later
case and modify or expressly overrule its earlier decision, as
the Court of Appeals did here with its earlier decision in
Allman. This Court may also expressly overrule an earlier
decision of the Court of Appeals that was not disturbed on
direct appeal, but unless and until such an overruling occurs,
the earlier decision of the Court of Appeals stands as
precedent.
An ancient maxim of the common law is ignorantia legis
neminem excusat. See, e.g., Wimbish v. Commonwealth, 75 Va.
839, 844 (1880). But if ignorance of the law excuses no one,
then all who are subject to the law are presumed to know what
the law requires and to conduct themselves accordingly. They
cannot be expected to conform their actions to laws that are
not announced until after they have acted. Therefore, Barson's
emails to his wife, as offensive, vulgar and disgusting as
their language may have been, did not meet the standard of
obscenity that prevailed in Virginia at the time they were
sent. His conviction under a broader standard of obscenity
that retroactively criminalized his conduct violated his
constitutional right to due process of law. That is, in
itself, sufficient ground for reversing the judgment of the
Court of Appeals and vacating Barson's conviction.
17