Hix v. Com.

PRESENT: Hassell, C.J., Lacy, Koontz, Kinser, Lemons, and Agee,
JJ., and Russell, S.J.

THOMAS EDWARD HIX
OPINION BY
v. Record No. 042717 JUSTICE G. STEVEN AGEE
September 16, 2005
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

Thomas Edward Hix was convicted by a jury in the Circuit

Court of Stafford County of attempted indecent liberties with a

minor, Code § 18.2-370 (the "attempted indecent liberties

statute"), and the use of a computer to solicit a minor, Code

§ 18.2-374.3 (the "communications statute").1 The Court of

Appeals denied Hix' petition for appeal, and he timely appealed

to this Court. For the reasons set forth, we will affirm the

judgment of the Court of Appeals.

I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW

Hix, using the screen name “happyone345,” engaged in

several electronic communications in an Internet “chat room”

with a person using the screen name “heather_boon” ("Heather").

Heather claimed to be a 13-year-old girl2 but was, in fact, State

Police Special Agent C.D. Wells.

1
Hix was indicted on two counts of each charge. He was
found guilty of one count of each charge for his conduct on
November 14, 2001, and acquitted of the remaining two counts
based upon his conduct on November 27, 2001.
2
Excerpts from the chatroom transcript read as follows:
happyone345: your not a bad girl are you . . . sex and messin
around

1
 On November 14, 2001, Hix contacted Heather, but when Hix

learned Heather’s age, he terminated the internet conversation

saying that she was too young. Five minutes later, Hix

contacted Heather again and wrote that he worked in

Fredericksburg, lived in Manassas, and worked for the

government. The conversation ended with Hix saying again that

Heather was too young.

Just minutes later, Hix contacted Heather for a third time.

Agent Wells "captured"3 this third conversation, in which Hix

asked Heather about her prior sexual experiences and asked her

to describe her body, with particular reference to her sexual

characteristics. Hix also described particular sexual acts that

he wanted to engage in with her, invited her to "hook up," and

admitted that he "[could] get 30 years in prison." Hix ended

the conversation by instructing Heather to add his contact

information to her computer "friends" list, and asked her to

contact him again later.

heather_boon: some times i guess but it is hard at 13
. . . .
happyone345: how old are you
heather_boon: 13 u don’t remember me do ya
happyone345: yes you are the girl that said you where a bad
girl
. . . .
happyone345: tell me about you []again . . .
heather_boon: i am 13
happyone345: oh yea
[sic]

2
 On November 27, 2001, Heather observed that Hix was online

and contacted him. Hix suggested that he and Heather meet at a

local McDonald's restaurant, but Heather replied, "today is not

good I don’t want 2 give u the flu [sic]." Agent Wells

testified that he did not have enough information on Hix'

location to arrange a meeting at that time. Hix asked Heather's

age and she again told him she was 13. He repeated his desire

to engage in certain sexual acts with her. Heather ended the

conversation when Hix was no longer responding.

By March 28, 2002, Agent Wells had determined that Hix was

using a computer located at the National Guard Armory in

Fredericksburg, and Heather initiated a third contact with Hix.

Heather reminded Hix that he had previously "wanted 2 [sic] go

to lunch." Hix responded that they could "just ride and mess

around." Heather reminded Hix that she was 13 years old, and

Hix replied, "[S]ee, I'm messed up . . . . [T]hey would put me

under the jail for messen [sic] with you[,] girl."

Nevertheless, Hix told Heather he would be at the McDonald’s

restaurant near the intersection of Routes 3 and 1, driving a

red Ford Thunderbird coupe.

The police observed a vehicle matching the description Hix

gave to Heather arrive at the McDonald’s restaurant about 20

3
When a chat room conversation is "captured," it is saved
verbatim as a text file.

3
minutes later. Hix was driving and parked the car near the back

of the restaurant. Hix told Lieutenant Bowler, the first law

enforcement officer to approach him that he was there to meet a

13 year old girl that he had met on the Internet, that the

girl's name was Heather Boone and that she was having problems

and he was there to see if he could help her. Wells then

approached Hix and introduced himself as “Special Agent Wells

with the Virginia State Police . . . also known as Heather

Boone.” Hix admitted to the police officers that he had

participated in the conversations with heather_boon/Agent Wells,

and further admitted that he believed that the girl he was going

to meet at the McDonald's was, in fact, 13 years old. Hix

identified the computer located in the Bravo Company orderly

room at the Fredericksburg National Guard Armory as the one he

used to communicate with Heather.

At trial, however, Hix testified that Agent Wells'

recollection of their conversation at the McDonald's was

incorrect and that he, in fact, informed Wells and the other

officers that he "was there to meet somebody who said that they

were a thirteen year old that [he] didn't believe." Hix' own

signed statement affirmed that he agreed to lunch with Heather

at her invitation, that he "felt uncomfortable" but "thought

that she may be in some kinda [sic] trouble as she [said] she

was skipping school."

4
 In his own case-in-chief, Hix testified variously that he

was just curious, that he thought that Heather was not really 13

years old, but was an adult "role-playing" and alternately that

he was afraid she was in some kind of trouble and needed his

help.

At the conclusion of the Commonwealth’s evidence, Hix moved

to strike the attempted indecent liberties charge on grounds the

crime was a "legal impossibility" as there was no actual 13-

year-old girl with whom the taking of indecent liberties could

have been accomplished. He contended that the communications

statute charge should be struck because the “or has reason to

believe” standard under Code § 18.2-374.3(B) is an improper

standard because "[a]ctual knowledge should be the standard."

The Court denied the motion to strike at that time and when

later renewed. The jury found Hix guilty of attempted indecent

liberties with a child and use of a communication system for

soliciting sex with children for his conduct on November 14,

2001. The jury fixed Hix' punishment at two and one-half years

imprisonment for each offense, and the trial court set the

sentences to run concurrently.

On appeal to the Court of Appeals, Hix argued that the

evidence was insufficient to support a conviction on either

charge. First, he contended it was legally impossible under

these circumstances to commit the crime of attempted indecent

5
liberties with a child under Code § 18.2-370 because Heather was

not a real child. Further, Hix argued that his indictment and

conviction under the communications statute as it existed at the

time of the offenses was a conviction under only subsection A of

that statute: "use [of] a communications system . . . [to]

procur[e] or promot[e] the use of a minor for any activity in

violation of § 18.2-370" and not subsection B: "use [of] a

communications system . . . [to] solicit[] any person he knows

or has reason to believe is a minor for . . . any activity in

violation of . . . § 18.2-370." Hix argued that conviction

under Former Code § 18.2-374.3(A) (1996 & Supp. 2001),

necessitated the existence of a "real minor" and thus the

evidence did not support his conviction under the communications

statute.

The Court of Appeals denied Hix' petition for appeal,

rejecting Hix' first argument and ruling that his second

argument was procedurally barred as he did not raise it in the

trial court.

On appeal to this Court, Hix contends that the trial court

erred in denying his motion to strike because the evidence was

insufficient to prove the charges under either statute.

Additionally, he argues that the Court of Appeals erred in

deciding that the language of the indictment under the

communications statute allowed conviction under either

6
subsection of Code § 18.2-374.3, and that Hix had conceded that

he believed he was communicating with a minor. Further, Hix

assigns error to the Court of Appeals' judgment that he was

procedurally barred from raising the following arguments: (1)

conviction under the Communications statute required the

existence of a "real minor," (2) the difference between

preparation and attempt, and (3) the logical similarity between

the role of an undercover police officer in certain attempted

sex crimes and the role of an undercover officer in a drug

conspiracy.

II. ANALYSIS

A verdict of the jury, upon which the trial court enters

judgment, settles all conflicts of testimony in favor of the

prevailing party and entitles that party to all just inferences

deducible therefrom. Pugsley v. Privette, 220 Va. 892, 901, 263

S.E.2d 69, 76 (1980). We view the evidence in the light most

favorable to the Commonwealth, as the prevailing party, and will

not set aside the verdict unless it is plainly wrong or without

evidence to support it. Beavers v. Commonwealth, 245 Va. 268,

281-82, 427 S.E.2d 411, 421 (1993). We review questions of law

de novo. Simon v. Forer, 265 Va. 483, 487, 578 S.E.2d 792, 794

(2003).

A. Code § 18.2-370: Attempted
Indecent Liberties with a Child

7
 Hix argues that the crimes described by Code § 18.2-3704,

whether the completed crime or an attempt, require acts directed

toward an actual child. Because the evidence showed that

Heather was not an actual child, but an adult law enforcement

officer posing as a child, Hix contends the evidence cannot

support his conviction for the attempted crime as a matter of

law.

Although the issue is framed as one of sufficiency of the

evidence, Hix' arguments center on the applicability of the

defense of impossibility. In considering such a defense, a

4
Code § 18.2-370 provides in pertinent part as follows:
A. Any person eighteen years of age or over, who, with
lascivious intent, shall knowingly and intentionally commit
any of the following acts with any child under the age of
fourteen years shall be guilty of a Class 5 felony:
(1) Expose his or her sexual or genital parts to any child
. . . or propose that any such child expose his or her
sexual or genital parts to such person; or
. . . .
(3) Propose that any such child feel or fondle the sexual
or genital parts of such person or propose that such person
feel or fondle the sexual or genital parts of any such
child; or
(4) Propose to such child the performance of an act of
sexual intercourse or any act constituting an offense
under § 18.2-361; or
(5) Entice . . . or invite any such child to enter any
vehicle . . . or other place, for any of the purposes set
forth in the preceding subdivisions of this section.

8
distinction must be made between legal impossibility and factual

impossibility.5

Legal impossibility occurs when a defendant's actions,
even if fully carried out exactly as he intends, would
not constitute a crime. Factual impossibility occurs
when the actions intended by a defendant are
proscribed by the criminal law, but a circumstance or
fact unknown to the defendant prevents him from
bringing about the intended result.

Parham v. Commonwealth, 2 Va. App. 633, 636, 347 S.E.2d 172,

173-74 (1986) (citing United States v. Oviedo, 525 F.2d 881, 883

(5th Cir. 1976)).

Hix' explicit communications with Heather and his proposal

that they "hook up," if fully carried out exactly as he

intended, would constitute a crime under the indecent liberties

statute. Id. Only the fact that Agent Wells impersonated a 13-

year-old girl "prevent[ed] [Hix] from bringing about his

intended result." Id. Thus, we find that Hix' defense is one

of factual, not legal impossibility. As Professor LaFave points

out, this is an important distinction because

5
Hix urges this Court to adopt a third kind of
impossibility defense: "hybrid legal impossibility." Under this
theory, a mistake of fact about the legal status of some
necessary element of the crime nullifies a crime of attempt. In
accordance with the large majority of jurisdictions, we decline
to adopt this position. See, e.g., United States v. Farner, 251
F.3d 510, 513 (5th Cir. 2001); United States v. Darnell, 545
F.2d 595, 598 (8th Cir. 1976); People v. Rojas, 358 P.2d 921,
923-24 (Cal. 1961); State v. Moretti, 244 A.2d 499, 503 (N.J.
1968).

9
 what is usually referred to as "factual impossibility"
is no defense to a charge of attempt. That is, if
what the defendant intends to accomplish is proscribed
by the criminal law, but he is unable to bring about
that result because of some circumstances unknown to
him when he engaged in the attempt, then he may be
convicted.

2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal

Law, § 11.5(a)(2), at 233 (2d ed. 2003). While the distinction

between factual and legal impossibility is not always

susceptible to a bright line of demarcation, our precedent

provides guidance.

Hix argues that the Court of Appeals incorrectly

characterized his defense as one of factual impossibility and

contends it is one of legal impossibility. He cites Collins v.

Radford, 134 Va. 518, 536, 113 S.E. 735, 741 (1922), and Trent

v. Commonwealth, 155 Va. 1128, 1136, 156 S.E. 567 (1931), for

the proposition that "[i]f there is some factual condition

necessary to the completion of the crime, then the non-existence

of that factual condition makes the crime impossible." Hix

misreads our decisions.

In Collins, the defendant was charged with attempting to

transfer "ardent spirits." Collins, 134 Va. at 523, 113 S.E. at

737. He made arrangements with another to hide a gallon of

whiskey in a haystack for him, but before the defendant could

retrieve it, a farmer found the whiskey and turned it over to

10
the police. Id. at 532-33, 113 S.E. at 740. When the defendant

returned to retrieve the whiskey, he was arrested. Id.

We rejected the defendant's defense of impossibility because

"the impossibility of performance was not of a kind to rob his

act of its criminal character." Id. at 536, 113 S.E. at 740.

We held that a defense of impossibility is applicable only in

those situations where the impossibility is "inherent . . . and

not to cases where the impossibility has been brought about by

outside interference, or grows out of extraneous facts not

within the knowledge and control of the accused." Id. In the

defendant's case, he did not know that the farmer had removed

the whiskey from the haystack. It was only this extraneous

event not within the defendant's knowledge and control, that

prevented him from completing the illegal transaction. As such,

the transaction was not inherently or legally impossible, but

only factually impossible. Had the facts been as the defendant

intended them to be, he would have completed the criminal act of

transporting ardent spirits. Thus, he was guilty of the

attempted act.

In Trent, the police discovered an illegal still where the

defendant and others were preparing to manufacture illegal

spirits. Trent, 155 Va. at 1130, 156 S.E. at 567. Before the

men could complete the process, the police raided the still and

11
apprehended the defendant. Id. He argued that because a "worm"6

was never found, "it [was] impossible to carry out the processes

of distillation" and that this impossibility was a defense. Id.

at 1136, 156 S.E. at 569. We agreed that if the "worm" were

proven not to exist, the defendant's defense could stand,

because consummation of the crime would be "inherently

impossible." Id. While we found that "the conclusion is

inevitable that [the] 'worm' was . . . immediately available"

and thus, not proven absent, we rejected the reasoning that the

absence of the "worm" would justify an impossibility defense as

an "extraneous fact not within the knowledge or control of [the

defendant]." Id. at 1136-37, 156 S.E. at 569, 570. Read in

context, a defense of impossibility could only be viable for the

defendant had he specifically intended to go through the motions

of working the still without the "worm." However, if his plans

to manufacture the spirits were carried out exactly as he

intended, with the "worm" in place, the defendant could be

charged with attempting to manufacture illegal spirits, even if

the "worm" was not currently present. The fact that his plan

was interrupted by law enforcement officers could therefore not

bolster the defendant's effort to assert an impossibility

defense.

6
A "worm" is "a spiral condensing tube used in distilling."
Webster's Third New International Dictionary 2636 (1993).

12
 Our decisions in Collins and Trent differentiate between

legal and factual impossibility to the effect that while legal

or "inherent impossibility" may be a defense, factual

impossibility based upon "some extraneous fact not within the

knowledge or control of the accused" is not. The defendant in

Collins had no knowledge of or control over the farmer's

retrieval of the whiskey, and the defendant in Trent did not

know that the police raid would interrupt the manufacturing

process at the still. These cases undergird later decisions of

the Court of Appeals which plainly state, "[L]egal impossibility

is a defense; factual impossibility is not." See, e.g., Bloom

v. Commonwealth, 34 Va. App. 364, 372, 542 S.E.2d 18, 21, aff'd,

262 Va. 84, 554 S.E.2d 84 (2001).

The Court of Appeals first made this distinction in Parham

in 1986. Since that time, the Court of Appeals has continued to

cite the language in Parham to distinguish between legal and

factual impossibility.

In Bloom, the Court of Appeals decided a case nearly

identical to the case at bar. The defendant was communicating

over the internet with an undercover police officer posing as a

13-year-old girl, and "proposed that [he and the girl] meet and

have sexual relations." Id. at 368, 542 S.E.2d at 20. The

defendant was apprehended by police when he went to the

designated meeting place, but contended at trial that he could

13
not "be convicted because it was impossible to entice a child to

engage in sexual acts when he communicated with [a police

officer]." Id. at 369, 372, 542 S.E.2d at 20. The Court of

Appeals rejected this argument, stating that

[t]he defendant thought he was communicating with a
young girl with whom he intended to have sexual
relations. . . . If the defendant intends to violate
the law and, but for some impediment, would complete
the unlawful act, then he is guilty of the attempted
crime.

Id. at 372, 542 S.E.2d at 22.

The Court of Appeals correctly determined that a police

officer posing as a child in an internet chat room is only an

impediment to the commission of the crime, an extraneous fact

outside of the knowledge and control of the defendant. The non-

existence of a "real child" does not make the crime of attempted

indecent liberties inherently or legally impossible, but only

factually impossible. Thus, the fact that Hix and the defendant

in Bloom were communicating with adult law enforcement officers

is not a defense to the attempted crime.

The District of Columbia Court of Appeals reached a similar

conclusion in In re Doe, 855 A.2d 1100 (D.C. 2004). The Court

determined that a defendant who solicited over the internet and

arranged to meet a person whom he believed to be 14 years old

for sex, could be convicted for attempted enticement of a child

in violation of a District of Columbia statute, even though in

14
fact, he communicated with a law enforcement officer posing as a

child. The Court rejected the defendant's impossibility

defense.

First, S.D. argues that it is "legally impossible" to
commit the D.C. offense of attempted enticement of a
child when . . . the intended victim is (unbeknownst
to the perpetrator) not a child. This argument
confuses "legal impossibility" with "factual
impossibility." Legal impossibility as a defense to an
attempt offense arises only when the defendant's
objective is to do something that is not a crime.
That was not the case here. S.D.'s objective, to have
sex with a child, was criminal. He made a substantial
effort to achieve that criminal objective. As it
turned out, S.D. unwittingly aimed his effort at the
wrong target – since Ashley5665 was an undercover
agent, it was factually impossible for S.D. to
accomplish his objective with "her." But . . . [it is
not] a defense . . . to a charge of attempted
enticement of a child that the defendant was fooled
because his target was in reality an undercover law
enforcement officer. Whether the targeted victim is a
child or an undercover agent, the defendant's conduct,
intent, culpability, and dangerousness are all exactly
the same. Hence . . . impossibility is not a defense
to a charge of criminal attempt when the defendant's
actual intent[,] not limited by the true facts unknown
to him[,] was to do an act or bring about a result
proscribed by law.

Id. at 1106 (citations and internal quotation marks omitted).

Hix solicited and intended to have sex with a 13-year-old

girl and went to meet her but "was fooled because his target was

in reality an undercover law enforcement officer," id., an

extraneous circumstance unknown to him and beyond his control.

15
In such a case, the defense of impossibility is not available

for a charge of criminal attempt.7 As Professor LaFave notes:

[I]t is clear as a matter of policy that no reason
exists for exonerating the defendant because of facts
unknown to him which made it impossible for him to
succeed. . . . [T]he defendant's mental state was the
same as that of a person guilty of the completed
crime, and by committing the acts in question he has
demonstrated his readiness to carry out his illegal
venture.

2 LaFave, Substantive Criminal Law § 11.5(a)(2), at 234. The

Court of Appeals did not err in its judgment that Hix' claim of

impossibility was not a defense to the crime of attempted

indecent liberties.8

7
Hix also failed to object to jury instruction 5, based on
Instruction 8.180 of the Virginia Model Jury Instructions–
Criminal and clearly provides factual impossibility is not a
defense:
It is no defense that it was impossible for the
defendant to have committed the intended crime because
of circumstances unknown to him. It is sufficient if
the defendant's actions would have resulted in the
completed crime if the circumstances had been as he
believed them to be.
8
Hix also contends the Court of Appeals erred in holding
that he conceded in his petition for appeal that he believed he
was communicating with an actual minor. Even if we assume the
Court of Appeals erred in this instance, it is of no effect as
to the merits of Hix' appeal. The evidence in the record is
clearly sufficient to prove that Hix thought he was
communicating with a minor. In each conversation with Hix,
Heather told him she was 13. Hix' questions and comments to
Heather show he understood that Heather was a minor: "[W]hat do
you look like at 13;" "[I']d get 30 years in prison;" "[I]'m
like 36 . . . they would put me under the jail for messen [sic]
with you."

16
 Hix also assigned error to the Court of Appeals'

determination that he was procedurally barred from arguing (1)

the difference between preparation and attempt and (2) the

similarity between an undercover police officer pretending to be

a minor in the crimes of conspiracy and attempt. Even if we

assumed the Court of Appeals erred, it would be of no effect as

to the merits of Hix' appeal.

By definition, the crime of attempted indecent liberties

requires only that Hix make certain proposals or invitations to

the victim. The completed crime of attempt does not require any

sexual touching of or by the victim, nor need the victim agree

to perform any of the acts. The simple act of proposing or

inviting constitutes the completed crime if the offender is over

the age of 18, the act is done with lascivious intent and the

victim is under the age of 14.

Hix fully intended, based upon the evidence in the record,

to solicit sex from a 13-year-old girl. In his chat room

conversation with Heather on November 27, 2001, Hix proposed

oral sex to Heather after she reminded him of her age, and he

tried to set up a meeting. This evidence is sufficient to

support the jury's verdict and the judgment of the Court of

Appeals.

Hix' comparison of an attempt defense to that in a

conspiracy case is not convincing. Conspiracy requires a shared

17
intent and joint action, whereas attempt does not.

"[C]onspiracy requires . . . (1) an agreement between two or

more persons, which constitutes the act; and (2) an intent

thereby to achieve a certain objective[,] either an unlawful act

or a lawful act by unlawful means." Wayne R. LaFave, Criminal

Law § 12.2, at 621 (4th ed. 2003). On the other hand, "[a]n

attempt to commit a crime is composed of two elements: (1) the

intent to commit it; and (2) a direct, ineffectual act done

toward its commission." Barrett v. Commonwealth, 210 Va. 153,

156, 169 S.E.2d 449, 451 (1969). The absence of the actual

child in this case thus has no bearing on the crime of attempt.

B. Code § 18.2-374.3: The Communications Statute

We next review Hix' conviction under the communications

statute.9 The indictment upon which Hix was convicted, charged

him with "us[ing] a communication system . . . for the purposes

9
Code § 18.2-374.3 provides in pertinent part, as
follows:
A. It shall be unlawful for any person to use a
communications system, . . . or any other electronic
means for the purposes of procuring or promoting the
use of a minor for any activity in violation of
§ 18.2-370 . . . .

18
of procuring or promoting the use of a minor for any activity in

violation of Section 18.2-370, in violation of § 18.2-374.3 of

the Code of Virginia." The indictment does not cite to either

subsection A or B, but to Code § 18.2-374.3 as a whole. Hix

argues, however, he could have been convicted only under

subsection A of the statute, because the language of the

indictment tracks only that subsection which requires the

presence of an actual minor. He contends that his conduct, if

proven, could only sustain a conviction under Code § 18.2-

374.3(B) and thus there is an impermissible variance between the

indictment and the statute under which he was convicted.

The Court of Appeals determined that (1) Hix was

procedurally barred from raising this argument for the first

time on appeal, and (2) the indictment's language was sufficient

as it "did not allege that the Commonwealth was prosecuting

[Hix] solely under subsection (A)." We agree.

At trial, Hix did not argue that his prosecution was

limited to subsection A of Code § 18.2-374.3. Rather, he argued

B. It shall be unlawful for any person 18 years of age
or older to use a communications system, . . . or any
other electronic means, for the purposes of soliciting
any person he knows or has reason to believe is a
child less than 18 years of age for . . . (iv) any
activity in violation of subsection A of § 18.2-370.
As used in this subsection, "use a communications
system" means making personal contact or direct
contact through . . . any electronic communications
system, or . . . computer . . . system.

19
the language "knows or has reason to believe," found in

subsection B, "should not be upheld by this Court," but never

contended that subsection B did not apply. Instead, he argued

the court should ignore the "reason to believe" language of

subsection B and apply an actual knowledge standard because

"should have known ain't enough . . . . Reason to believe. The

statute says it. The statute shouldn't say it." Further, Hix

failed to object to jury instruction 6, which tracks the

language of subsection B:

The defendant is charged with the crime of Use of a
Communications System for Soliciting Sex with
Children. The Commonwealth must prove beyond a
reasonable doubt each of the following elements of
that crime:
1) That the defendant was over the age of 18;
and
2) That the defendant did use a communication
system for the purpose of soliciting a
person who he had reason to believe was a
minor to engage in sexual acts . . . .

In sum, Hix did nothing to alert the trial court to his current

position on appeal that the prosecution was limited to Code

§ 18.2-374.3(A).

Because Hix' arguments at trial regarding subsection B were

wholly different from what he argues on appeal, he is barred by

Rule 5:25 from raising this argument on appeal. Hix asks us to

consider this "issue under the ends of justice exception to Rule

5:25," but we see no basis for its application.

20
 Thus, we agree with the Court of Appeals that Hix is

procedurally barred from challenging his conviction under the

communications statute based upon the language of the

indictment. Having determined that Hix waived his argument on

variance in the indictment, we find that the evidence is

sufficient to sustain his conviction under the communications

statute.

III. CONCLUSION

For the reasons stated above, we will affirm the judgment

of the Court of Appeals.

Affirmed.

21