COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Alston and Senior Judge Clements
Argued at Richmond, Virginia
JON ERIC LOFGREN
OPINION BY
v. Record No. 1349-08-2 JUDGE JEAN HARRISON CLEMENTS
NOVEMBER 3, 2009
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Ernest P. Gates, Judge Designate
Angela D. Whitley (Boone Beale, on brief), for appellant.
Richard B. Smith, Special Assistant Attorney General (William C.
Mims, Attorney General, on brief), for appellee.
Jon Eric Lofgren (appellant) appeals his conviction for violating Code § 18.2-427, use of
profane, threatening or indecent language over the telephone. 1 Appellant argues the evidence was
insufficient to support the conviction. For the reasons stated, we agree with appellant and reverse
his conviction.
Background
“When considering a challenge to the sufficiency of evidence on appeal, we review the
evidence in the light most favorable to the prevailing party at trial and consider all inferences fairly
deducible from that evidence.” Jones v. Commonwealth, 276 Va. 121, 124, 661 S.E.2d 412, 414
(2008).
1
Appellant was also convicted of destruction of property and two counts of assault and
battery. He does not challenge the former. We denied his petition for appeal to the latter. See
Lofgren v. Commonwealth, Record No. 1349-08-2 (Va. Ct. App. Apr. 24, 2009).
The evidence showed that appellant and the victim had previously dated. On December 18,
2007, the victim was at her home with her then boyfriend when appellant arrived at her back door
uninvited. The victim told appellant she had company and she would not allow appellant into her
residence. Appellant tried to get the victim to speak with him outside the residence, asserting that
they had plans together for that evening. The victim repeatedly told appellant she did not want to
speak with him, and appellant became angry.
The victim stated that after a brief altercation with her then boyfriend, appellant “stormed
out” to his vehicle and cursed at her as he walked. The victim testified that appellant later
telephoned her and said, “I can’t believe you fucking cunt . . . . You’re a fucking bitch . . . . I hate
you. . . . I can’t believe you’re doing this. [W]e had plans.” The victim went to the magistrate’s
office and swore out warrants against appellant. When she returned home, she discovered a voice
mail message in which appellant again called her a “fucking cunt” and said, “you fucking suck.”
At trial, appellant admitted that he “probably” used the language the victim described in the
telephone conversation. Appellant also testified he was “upset” and “I did say something to her
when I was very mad. I couldn’t believe she did what she did.” He later elaborated that he was
upset “[b]ecause of the way she behaved. I’m coming over there. We had plans. And she is acting
like she doesn’t even know who I am, like I’m not even her boyfriend.”
The trial court found appellant guilty, stating, “I think he was a disgruntled lover who was
upset and got out of control.”
Analysis
Appellant was convicted of violating Code § 18.2-427, which provides:
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.
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Appellant argues the language he used, while arguably offensive, was not obscene and he
did not intend to coerce, intimidate or harass the victim. He further asserts that his remarks were not
sexually explicit, but were expressions of his disapproval of the victim’s conduct.
In Perkins v. Commonwealth, 12 Va. App. 7, 14-15, 402 S.E.2d 229, 233-34 (1991), we
considered a claim that Code § 18.2-427 was unconstitutionally overbroad. The Court concluded
that the legislature “intended to address harassing conduct as the evil to be proscribed and intended
to narrow the scope of the speech phrases to that which is obscene.” Id. at 14, 402 S.E.2d at 233.
Neither Code § 18.2-427 nor the chapter or article in which it is codified defines “obscene.”
However, when addressing a violation of Code § 18.2-427, this Court has adopted the definition of
obscenity found in Code § 18.2-372. See Allman v. Commonwealth, 43 Va. App. 104, 109, 596
S.E.2d 531, 534 (2004) (reasoning that the Code of Virginia is one body of law and other sections of
the Code may be referenced where the same phraseology is used).
Code § 18.2-372 defines obscene as
that [1] 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 thereof or sadomasochistic abuse,
and [2] which goes substantially beyond the customary limits of
candor in description or representation of such matters and
[3] which, taken as a whole, does not have serious literary, artistic,
political or scientific value.
“‘To be obscene, conduct must violate contemporary community standards of sexual
candor.’” Allman, 43 Va. App. at 109-10, 596 S.E.2d at 534 (quoting Copeland v.
Commonwealth, 31 Va. App. 512, 515, 525 S.E.2d 9, 10 (2000)). “On appeal, we ‘must make
an independent determination of the constitutional issue of obscenity, which is a mixed question
of law and fact.’” Id. at 110, 596 S.E.2d at 534 (quoting Price v. Commonwealth, 213 Va. 113,
118, 189 S.E.2d 324, 328 (1972), vacated on other grounds and remanded by 413 U.S. 912
(1973)). The first two prongs of the obscenity test codified in Code § 18.2-372 “involve
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‘primarily factual issues, to be measured by “contemporary community standards.”’” Id. at 111,
596 S.E.2d at 534-35 (quoting State v. Harrold, 593 N.W.2d 299, 312 (Neb. 1999)). “As to the
third prong . . . ‘the appellate court should apply a de novo review . . . since this determination
does not depend upon community standards.’” Id. at 111, 596 S.E.2d at 535 (quoting Harrold,
593 N.W.2d at 313).
The word “fuck” is defined as “to engage in coitus with--sometimes used interjectionally
with an object (as a personal or reflexive pronoun) to express anger, contempt, or disgust.”
Merriam-Webster’s Collegiate Dictionary 505 (11th ed. 2004) (emphasis added). It is also
defined as “to deal with unfairly or harshly.” Id. The word “fucking” is defined as “damned--
used as an intensive.” Id. “Cunt” is defined as “the female genital organ; also: sexual
intercourse with a woman.” Id. at 305. In addition to being a female dog, “bitch” is defined as
“a malicious, spiteful, or overbearing woman--sometimes used as a generalized term of abuse.”
Id. at 126.
In Allman, the defendant was charged with violating Code § 18.2-427 when he
repeatedly referred to an attorney as a “pussy” and referenced female excretory functions in a
telephone message left for the attorney who had represented a party in a civil suit against the
defendant. Allman, 43 Va. App. at 106-07, 596 S.E.2d at 532. Similar to “cunt,” the word,
“pussy” “is defined by Webster’s Unabridged Dictionary as “‘vulg[ar] slang’ for either (1) the
female genitals or (2) sexual intercourse.” Id. at 112, 596 S.E.2d at 535 (quoting Random House
Webster’s Unabridged Dictionary 1571 (2d ed.1998)). The Court found that the defendant used
the word “pussy” to characterize the attorney as weak or cowardly and that his use of the word
did not reference a sexual act and had no sexual connotations. Id. The Court also held that
appellant’s repeated references to female excretory functions
d[id] not establish that the message, “considered as a whole,”
either (1) “[had] as its dominant theme . . . an appeal to the
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prurient interest in sex, that is, a shameful or morbid interest in
nudity, sexual conduct, . . . excretory functions or products
thereof” or (2) went “substantially beyond the customary limits of
candor in description or representation of such matters.” Code
§ 18.2-372 (emphases added).
Id. at 113, 596 S.E.2d at 535.
Under the circumstances of this case, using the definition of obscene set forth in Code
§ 18.2-372, and the requisite standard of review, we hold that appellant’s use of the phrases
“fucking cunt” and “fucking bitch” was insufficient to permit a reasonable trier of fact to
conclude the references were obscene. Although the words “fucking” and “cunt” can have
sexual connotations when utilized in certain contexts, appellant’s use of these words “considered
as a whole” and in the context in which they were spoken, did not establish that the
communication had “as its dominant theme or purpose an appeal to the prurient interest in sex
. . . [or] w[ent] substantially beyond the customary limits of candor in description or
representation of such matters.” Code § 18.2-372. Rather, the evidence showed that appellant
became angry and upset with the victim when she refused to talk with him and when she did not
agree with his assertion that they had plans to spend the evening together. He expressed his
hatred for the victim in the conversation. In addition, appellant admitted that he was “upset” and
“very mad” at the victim when she acted like he was “not even her boyfriend.” Furthermore,
appellant had had a physical altercation with the victim’s then boyfriend just prior to making the
telephone call. Appellant used the offensive words as vulgar curse or swear words to
communicate his frustration, anger, contempt or disgust with the victim after the incident. See
United States v. Landham, 251 F.3d 1072, 1087 (6th Cir. 2001) (holding statement made via
telephone using the term “cuntless fuck” was not obscene for purposes of violating 47 U.S.C.
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§ 223(a) 2 but was an invective where husband swore vulgarly at wife because he was frustrated
with their relationship).
Accordingly, appellant’s language failed to meet the definition of obscene as required by
Allman and Code § 18.2-372. “Because the language was not obscene, it did not violate the
statute, and we need not consider whether appellant acted with the intent ‘to coerce, intimidate,
or harass.’” Allman, 43 Va. App. at 113, 596 S.E.2d at 536. For these reasons, appellant’s
conviction for violating Code § 18.2-427 is reversed and the charge is dismissed.
Reversed and dismissed.
2
47 U.S.C. § 223(a) “makes it a crime to make, create, or solicit and initiate the
transmission in interstate commerce ‘any comment, request, suggestion, proposal, image, or
other communication which is obscene, lewd, lascivious, filthy, or indecent, with intent to annoy,
abuse, threaten, or harass another person.’” Landham, 251 F.3d at 1085 (quoting 42 U.S.C.A.
§ 223(a) (Supp. 2000)).
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