Grafmuller v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Frank, Beales and Senior Judge Bumgardner
Argued by teleconference

MICHAEL GRAFMULLER
OPINION BY
v. Record No. 1327-09-1 JUDGE RANDOLPH A. BEALES
AUGUST 31, 2010
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Louis R. Lerner, Judge

Charles E. Haden for appellant.

Susan M. Harris, Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.

Michael Grafmuller (appellant) pled guilty via an Alford plea 1 to violating Code

§ 18.2-374.3, 2 use of a communication system to solicit, with lascivious intent, a person he

knows or has reason to believe is under the age of fifteen. On appeal, he contends the trial court

erred in sentencing him pursuant to the mandatory minimum provisions contained in Code

§ 18.2-374.3(C). 3 For the following reasons, we find that the trial court did not err.

1
North Carolina v. Alford, 400 U.S. 25, 37-38 (1970) (acknowledging that a trial court
can accept a guilty plea even if the defendant will only agree that the evidence is sufficient to
convict him, but he will not admit his guilt).
2
Periodically throughout the proceedings, the trial court and the parties referred to this
offense as the “pornography” charge. This inaccurate description of the offense does not affect
our analysis in this case, and no party has raised any issue regarding this mischaracterization.
3
On brief, appellant also contends that the trial court may have convicted him under
subsection (B), not subsection (C) of Code § 18.2-374.3, and, therefore, the trial court erred in
applying the mandatory minimum sentence. However, the record indicates that appellant seemed
to believe he was convicted under subsection (C), and, most importantly, he did not raise any
issue regarding subsection (B) prior to his appeal to this Court. As he did not raise this argument
in the trial court, it is barred from consideration on appeal by Rule 5A:18.
 I. Background

The underlying facts are not in controversy. Appellant contacted a person that he

believed was thirteen years old, via both a telephone and an email address, to arrange sexual

intercourse at the home of the person’s alleged aunt. This person in reality, however, was a

policewoman. He was charged with four offenses arising out of this incident, including one

count of violating Code § 18.2-374.3.

After appellant pled guilty via an Alford plea to these offenses, 4 the trial court continued

the case for a sentencing hearing. At that hearing, appellant objected to sentencing under Code

§ 18.2-374.3(C), which contains a mandatory minimum sentence of five years “if the [defendant]

is at least seven years older than the child he knows or has reason to believe is less than 15 years

of age.” He argued that, because the actual “child” in this case was not less than fifteen years

old, the mandatory minimum sentence should not be imposed.

The trial court disagreed and sentenced appellant to ten years with five years suspended,

consistent with the mandatory minimum sentence provision in the Code. 5

II. Analysis

Under Code § 18.2-374.3(C), a defendant is guilty of illegally using a communication

system if he contacts “any person he knows or has reason to believe is a child less than 15 years

of age” with lascivious intent for the purpose of soliciting that person’s involvement in any of

4
Appellant was convicted and sentenced for violating four different statutes. In this
appeal, he argues only that the trial court erred when it sentenced him to a mandatory minimum
term of incarceration in relation to his conviction under Code § 18.2-374.3.
5
The final sentencing order contains a clerical error. The transcript and sentencing order
clearly state that appellant was sentenced to a total of thirty-five years and that twenty-five years
of that sentence would be suspended. However, at the conclusion of the sentencing order entered
on May 18, 2009, the order lists the “total time suspended” as “26 years.” Therefore, we remand
this case for the trial court to correct this conclusion of the sentencing order. See Code
§ 8.01-428.

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several sexual encounters. While generally this crime is treated as a Class 5 felony, if a

defendant was “at least seven years older than the child he knows or has reason to believe is less

than 15 years of age,” then he shall be sentenced to “a term of imprisonment of not less than five

years nor more than 30 years in a state correctional facility, five years of which shall be

mandatory minimum term of imprisonment.” Code § 18.2-374.3(C).

Appellant, who was thirty-two years old at the time of the offense, contends that the trial

court misinterpreted this statute. Specifically, he argues that the use of “the child” in the

sentencing portion of Code § 18.2-374.3(C) should be interpreted to mean that the mandatory

minimum sentence applies only when the victim is actually a child. As the recipient of his email

and telephone communications in this case was a policewoman, not an actual child, appellant

contends that the trial court erred in applying the five-year minimum in this case.

A. Statutory Interpretation Principles

“Statutory interpretation is a question of law which we review de novo, and we determine

the legislative intent from the words used in the statute, applying the plain meaning of the words

unless they are ambiguous or would lead to an absurd result.” Wright v. Commonwealth, 278

Va. 754, 759, 685 S.E.2d 655, 657 (2009). In addition, we should avoid interpretations that

“would negate the legislative intent and would require an unreasonably restrictive interpretation

of the statute.” Ansell v. Commonwealth, 219 Va. 759, 763, 250 S.E.2d 760, 763 (1979). When

“a statute contains no express definition of a term, the general rule of statutory construction is to

infer the legislature’s intent from the plain meaning of the language used.” Hubbard v. Henrico

Ltd. Pshp., 255 Va. 335, 340, 497 S.E.2d 335, 338 (1998). This Court must avoid interpretations

that would “violate the settled principle of statutory construction that every part of a statute is

presumed to have some effect and no part will be considered meaningless unless absolutely

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necessary.” Id. In this analysis, we are guided by the principles expressed in Harris v.

Commonwealth, 142 Va. 620, 625, 128 S.E. 578, 579 (1925):

When we know the object of a statute and are called upon to
construe a phrase or a sentence which, standing alone, may be
susceptible of different interpretations, we know of no safer rule
than to take the statute by its four corners and critically examine it
as a whole to ascertain the legislative intent, as manifested by its
different provisions. If, upon such an examination, an
interpretation can be made, consistent with the language used,
which will carry into effect the object sought to be accomplished
by the statute, that interpretation should be adopted, in preference
to one which would be equally consistent with the language used,
standing alone, but which would defeat, or tend to defeat, the
manifest intent of the legislature.

In short, courts must defer to the clear language enacted by the General Assembly and its clear

purpose for enacting or amending a statute.

B. Use of “the child” in Code § 18.2-374.3(C)

In order to convict a defendant of a violation of Code § 18.2-374.3(C), the trial court

must find, inter alia, that the defendant was communicating with “any person” that he “knows or

has reason to believe is a child less than 15 years of age.” 6 Appellant conceded that he

6
The entirety of Code § 18.2-374.3(C) reads:

It shall be unlawful for any person 18 years of age or older to use a
communications system, including but not limited to computers or
computer networks or bulletin boards, or any other electronic
means, for the purposes of soliciting, with lascivious intent, any
person he knows or has reason to believe is a child less than 15
years of age to knowingly and intentionally:

1. Expose his sexual or genital parts to any child to whom he is
not legally married or propose that any such child expose his
sexual or genital parts to such person;

2. 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;

3. Propose to such child the performance of an act of sexual
intercourse or any act constituting an offense under § 18.2-361; or
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communicated with the police officer believing that she was a child less than fifteen years old.

The sentencing language then requires that a perpetrator receive at least a five-year sentence if he

“is at least seven years older than the child he knows or has reason to believe is less than 15

years of age.” Code § 18.2-374.3(C) (emphasis added). Appellant argues that his crime did not

actually involve a child, so “the child” is nonexistent in this case. Therefore, he contends, the

mandatory minimum provision in the statute does not apply here. We disagree.

This Court has previously noted that the purpose behind this portion of Code

§ 18.2-374.3 is to criminalize “the knowing use of a communications system to solicit a minor

for certain criminal acts,” but “does not require the solicitation of an actual minor.” Podracky v.

Commonwealth, 52 Va. App. 130, 138, 141, 662 S.E.2d 81, 85, 87 (2008). Code

§ 18.2-374.3(C) creates a crime that involves the incitement to act illegally rather than actually

committing the illegal act. Thus, the legislature clearly did not intend that the victim must be an

actual child; the defendant’s solicitation of sexual behavior from a person that he believes is a

child constitutes the behavior that the legislature intended to prohibit. Id. at 142, 662 S.E.2d at

4. Entice, allure, persuade, or invite any such child to enter any
vehicle, room, house, or other place, for any purposes set forth in
the preceding subdivisions.

Any person who violates this subsection is guilty of a Class 5
felony. However, if the person is at least seven years older than
the child he knows or has reason to believe is less than 15 years of
age, the person shall be punished by a term of imprisonment of not
less than five years nor more than 30 years in a state correctional
facility, five years of which shall be mandatory minimum term of
imprisonment. Any person who commits a second or subsequent
violation of this subsection when the person is at least seven years
older than the child he knows or has reason to believe is less than
15 years of age shall be punished by a term of imprisonment of not
less than 10 years nor more than 40 years, 10 years of which shall
be a mandatory minimum term of imprisonment.

(Emphasis added.)

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88 (noting that “Hix also establishes that Podracky was guilty of criminal solicitation despite the

fact that he mistakenly addressed his solicitations to an adult police officer.” (citing Hix v.

Commonwealth, 270 Va. 335, 619 S.E.2d 80 (2005))); see Huffman v. Commonwealth, 222 Va.

823, 826-27, 284 S.E.2d 837, 839-40 (1981) (discussing solicitation as an inchoate crime,

universally recognized under the common law of the United States). The legislature crafted the

language that establishes this offense, and the punishment for it, in a manner that makes proof of

the actual age of the recipient of the offending communication irrelevant. A trial court may

convict a defendant upon proof that he believed the person that he solicited was a child. Thus, in

every case of a conviction under Code § 18.2-374.3(C), if the defendant communicates with the

victim of his solicitations and that person is held out to the defendant as being a child under the

age of fifteen, then the person solicited is “a child” – whether the actual person contacted is a

child or not – for the purposes of this statute. 7

With this manifest intent of the General Assembly in mind, Harris, 142 Va. at 625, 128

S.E. at 579, we turn to the sentencing portion of Code § 18.2-374.3(C). In order for the

mandatory minimum to apply to appellant’s sentencing, the evidence needed to prove that he

was “at least seven years older than the child he knows or has reason to believe is less than 15

years of age.” (Emphasis added.) Appellant claims that the use of “the child” indicates that the

legislature intended that, for purposes of the mandatory minimum, the victim must be an actual

child.

7
Although the evidence in this case established that the person that appellant believed
was thirteen years old was actually a police officer, the Commonwealth was not required to
prove anything about the actual person who was contacted by appellant. Code § 18.2-374.3
requires that the Commonwealth prove that the defendant knew or had reason to believe that the
person he contacted was under the age of fifteen--not the actual age or identity of that person.
We note that the Commonwealth did not include the age of the police officer that appellant
contacted in its proffer of the facts at the time of the guilty plea, but did include information on
the age of the person that appellant believed he was contacting and why appellant believed that
she was under the age of fifteen.
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 Although to convict a defendant under Code § 18.2-374.3 the Commonwealth does not

need to prove that the defendant contacted an actual child, the General Assembly, by enacting

this statute, clearly intended to protect children from people who would take advantage of them

before the perpetrator could commit a sexual assault on an actual child. See Colbert v.

Commonwealth, 47 Va. App. 390, 398-99, 624 S.E.2d 108, 112-13 (2006) (noting that the

provisions of what is now Code § 18.2-374.3(C) are intended to protect children). The lack of a

requirement that the Commonwealth prove any assault occurred and the lack of a requirement

that an actual child be contacted clearly indicate this intent. See Hubbard, 255 Va. at 340, 497

S.E.2d at 338 (“[T]he general rule of statutory construction is to infer the legislature’s intent

from the plain meaning of the language used.”). Applying the mandatory minimum sentencing

provisions only to circumstances where a defendant contacted an actual child would undermine

this purpose, allowing defendants who have the same purpose and take the same actions to avoid

mandatory prison terms and continue their attempts to solicit children.

Code § 18.2-374.3(C) requires that the trial court sentence a defendant to at least five

years if “the person,” i.e., the defendant, is seven years or more older than “the child he knows or

has reason to believe is less than 15 years of age.” (Emphasis added.) The word “the” is used

grammatically in the statute as a definite article – a word that, when used before a noun, specifies

or particularizes the meaning of the noun that follows, as opposed to the indefinite article “a.”

See American Bus Ass’n v. Slater, 231 F.3d 1, 4-5 (D.C. Cir. 2000) (explaining that “[i]t is a rule

of law well established that the definite article ‘the’ particularizes the subject which it precedes.

It is a word of limitation as opposed to the indefinite or generalizing force of ‘a’ or ‘an.’” (citing

Black’s Law Dictionary 1477 (6th ed. 1990))). The legislature used the definite article “the”

before “child” in the sentencing portion of the statute, instead of the indefinite article “a” that it

used before “child” in the offense portion of the statute. “The child” clearly refers to the one,

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particular subject who was the victim and target of the offense – whether that “child” was

actually an adult or not. See Allstate Ins. Co. v. Smiley, 659 N.E.2d 1345, 1352 (Ill. App. Ct.

1995) (“The word ‘the’ is ‘an article which particularizes the subject spoken of’ (Black’s Law

Dictionary 1477 (6th ed. 1990)); thus, use of the term ‘the insured’ in an exclusionary clause is

meant to refer to a definite, specific insured.”); Lydon v. Sprinkler Servs., 841 A.2d 793, 797

(Me. 2004) (“In this context, because ‘the employee’ certainly refers to the specific employee

whose case is at issue, the evident change from the definite article to the use of the indefinite

article ‘an employee’ in the final prohibition must reflect a legislative intent to refer not to the

employee at issue, but to ‘any’ employee.”); Stephan v. Pennsylvania Gen. Ins. Co., 621 A.2d

258, 261 (Conn. 1993) (“As a definite article, the word ‘the’ refers to a specific object whereas

the indefinite articles ‘a’ and ‘an’ refer to unlimited objects.”). The mandatory minimum

provision in Code § 18.2-374.3(C) clearly references the victim or target who is the subject of

this crime, and who may or may not be an actual child.

In addition, the repetition of the phrase, “he knows or has reason to believe is less than

15 years of age,” in Code § 18.2-374.3(C) (emphasis added) supports the trial court’s

interpretation of the statute as applying even if the victim is not actually a child. If the

legislature had intended “the child” to refer to an actual child, as appellant contends, then the

legislature would have left the phrase, “he knows or has reason to believe,” out of the sentencing

provision and added language to clarify that “child,” as used in this portion of the statute, no

longer referred to any person that a defendant believed was under the age of fifteen. Instead, the

General Assembly repeated the phrase, “he knows or has reason to believe is less than 15 years

of age,” in the sentencing portion of the statute, strongly suggesting that the actual age of “the

child” is unimportant – just as it is unimportant in the guilt phase. In addition, we note that

appellant’s interpretation of this statute would have us simply ignore this phrase, which is

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completely contrary to the principles of statutory interpretation and completely contrary to a

common sense interpretation of the legislature’s purpose in enacting this statute. Wright, 278

Va. at 759, 685 S.E.2d at 657; Hubbard, 255 Va. at 340, 497 S.E.2d at 338; Harris, 142 Va. at

625, 128 S.E. at 579.

For the foregoing reasons, we find that the mandatory minimum sentencing provision in

Code § 18.2-374.3(C) applied in this case. The victim of the crime need not be an actual child

for the mandatory minimum sentence to apply.

III. Conclusion

As the mandatory minimum sentencing provision applies here, the trial court did not err

in sentencing appellant to an active sentence of five years in prison (i.e., ten years in prison, with

five years suspended) upon his conviction of using a communication system to solicit a sexual

encounter with a person he believed was under the age of fifteen. Therefore, we affirm his

conviction and sentence, but remand for correction of a clerical error in the final sentencing

order.

Affirmed and remanded.

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