Podracky v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Kelsey, Haley and Beales
Argued at Chesapeake, Virginia

DEAN ROBERT PODRACKY
OPINION BY
v. Record No. 0113-07-1 JUDGE JAMES W. HALEY, JR.
JUNE 10, 2008
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
A. Bonwill Shockley, Judge

James O. Broccoletti (Peter D. Greenspun; Zoby & Broccoletti, P.C.;
Greenspun, Davis & Leary, P.C., on brief), for appellant.

Robert H. Anderson, III, Senior Assistant Attorney General
(Robert F. McDonnell, Attorney General, on brief), for appellee.

Dean Robert Podracky (“Podracky”) appeals his conviction for using a communications

system to solicit a person, he knew or had reason to believe was a minor, for certain sexual

offenses in violation of Code § 18.2-374.3(B). The only question presented in this appeal is

whether the statute is facially overbroad because it prohibits free speech in violation of the First

Amendment to the United States Constitution. Finding that Code § 18.2-374.3(B) does not

prohibit speech protected by the First Amendment, we affirm his conviction.

FACTS

A.M. telephoned the police in January of 2005 after receiving electronic mail from

Podracky. A.M. had known Podracky for more than five years and had a sexual relationship

with him. Podracky’s e-mail to A.M. was introduced into evidence at trial. The message

suggested that A.M. have a sexual encounter with a sixteen-year-old girl. Again via e-mail,
Podracky also sent A.M. photographs of L.H, a sixteen-year-old girl Podracky met over the

internet.

Before 2005, both A.M. and L.H. often communicated with Podracky by computer using

a simultaneous text message program provided by America Online (“AOL”). After A.M. called

the police, investigating officers identified L.H. from the photographs Podracky had sent A.M.

Detective Lisa Krisik of the Virginia Beach Police Department received permission from the

parents of L.H. for Detective Krisik to pretend to be L.H. while communicating with Podracky

over the internet. Using L.H.’s AOL instant messenger identity, Detective Krisik engaged

Podracky in several online conversations over the next few weeks. A.M. participated in these

conversations as well. On January 17, Podracky suggested that the three of them meet at his

hotel room and that the three of them also have sex with each other at the same time. On January

25, Podracky suggested to Detective Krisik that he would use a sex toy on L.H. and that he

would teach her to perform fellatio on him. On January 27, Podracky sent messages to A.M. and

Detective Krisik through an internet “chat room” that was only accessible by invitation. A.M.

asked Detective Krisik, still pretending to be L.H., if she was really sixteen. Detective Krisik

responded that she was. During the conversation, Podracky stated that he would bring a camera

to take sexually explicit photographs of L.H. with A.M.

On January 27, and again on February 1, Podracky arranged that L.H. and A.M. meet him

at the Crown Plaza Hotel on Monday, February 7, 2005. Again using AOL, Podracky confirmed

these arrangements with A.M. and Detective Krisik on February 6 and 7. Detective Krisik,

accompanied by other police officers, went to meet Podracky and saw him at the hotel. She

recognized him from a photograph that he had sent to L.H. Podracky made statements to the

police confirming that he was the person who sent the messages to L.H. Police also served a

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search warrant on Podracky’s hotel room. They found a laptop computer, a camera, a sex toy,

and some condoms.

ANALYSIS

At the time Podracky sent the messages that formed the basis of his conviction in the trial

court, Code § 18.2-374.3(B) read as follows:

It shall be unlawful for any person over the age of eighteen 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 any person he knows or has
reason to believe is a minor for (i) any activity in violation of
§ 18.2-355 or § 18.2-361, (ii) any activity in violation of
§ 18.2-374.1, (iii) a violation of § 18.2-374.1:1 or (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 agent or agency, any print
medium, the United States mail, any common carrier or
communication common carrier, any electronic communication
system, or any telecommunications, wire, computer or radio
communications system. 1

Relying on our Supreme Court’s recent decision in Jaynes v. Commonwealth, 275 Va.

341, 657 S.E.2d 478 (2008), the Commonwealth argues that Podracky does not have standing to

present a facial challenge to the statute. We do not address this argument. “[A]n appellate court

decides cases ‘on the best and narrowest ground available.’ . . . Coupled with these principles of

judicial prudence is the proposition that an appellate court may structure a decision on an

1
Amendments to Code § 18.2-374.3 became effective on July 1, 2007. Former
subsection A was designated subsection B without substantive changes to the text. Former
subsection B, the statute we address in this opinion, was divided into new subsections C, D, and
E. New subsection C makes it unlawful to solicit with lascivious intent a person the defendant
knows or has reason to believe is under the age of 15 for specific sexual acts. New subsection D
essentially establishes a less severe penalty for violations of new subsection C when the
defendant knows or has reason to believe the persons solicited is under 18. New subsection D
prohibits solicitation of any person the defendant knows or has reason to believe is a minor for
the offenses listed in former subsection B, the statute in this case, except that new subsection D
does not cover solicitations to violate subsection A of Code § 18.2-370. However, the acts
mentioned in new subsection C are the acts that are prohibited by subsection A of
Code § 18.2-370.

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‘assuming but not deciding’ basis.” Luginbyhl v. Commonwealth, 48 Va. App. 58, 64, 628

S.E.2d 74, 77 (2006) (quoting Air Courier Conference v. American Postal Workers Union, 498

U.S. 517, 531 (1991) (Stevens, J., concurring)). Accordingly, we assume without deciding that

Podracky has standing to offer a First Amendment challenge to Code § 18.2-374.3(B). We,

nonetheless, conclude that the statute does not prohibit constitutionally protected speech.

FIRST AMENDMENT OVERBREADTH

“As a general principle, the First Amendment bars the government from dictating what

we see or read or speak or hear.” Ashcroft v. Free Speech Coalition, 535 U.S. 234, 245-46

(2002). However, not all words are entitled to the protection of the First Amendment, and the

weight of authorities in Virginia and elsewhere clearly permit the state to prohibit the solicitation

of a crime.

Although agreements to engage in illegal conduct undoubtedly
possess some element of association, the State may ban such
illegal agreements without trenching on any right of association
protected by the First Amendment. The fact that such an
agreement necessarily takes the form of words does not confer
upon it, or upon the underlying conduct, the constitutional
immunities that the First Amendment extends to speech. Finally,
while a solicitation to enter into an agreement arguably crosses the
sometimes hazy line distinguishing conduct from pure speech,
such a solicitation, even though it may have an impact in the
political arena, remains in essence an invitation to engage in an
illegal exchange for private profit, and may properly be prohibited.

Brown v. Hartlage, 456 U.S. 45, 55 (1982). “The government, of course, may punish adults who

provide unsuitable materials to children, and it may enforce criminal penalties for unlawful

solicitation.” Free Speech Coalition, 535 U.S. at 251-52 (citing Ginsberg v. New York, 390 U.S.

629 (1968)) (emphasis added). “Criminal solicitation involves the attempt of the accused to

incite another to commit a criminal offense.” Branche v. Commonwealth, 25 Va. App. 480, 490,

489 S.E.2d 692, 697 (1997).

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 As the United States Supreme Court recently reaffirmed: “Offers to engage in illegal

transactions are categorically excluded from First Amendment protection.” United States v.

Williams, 128 S. Ct. 1830, 2008 U.S. LEXIS 4314, at *24 (May 19, 2008) (holding that “offers to

provide or requests to obtain child pornography are categorically excluded from the First

Amendment”); see also Pederson v. City of Richmond, 219 Va. 1061, 1066, 254 S.E.2d 95, 98

(1979). See also Singson v. Commonwealth, 46 Va. App. 724, 742-43, 621 S.E.2d 682, 690-91

(2005). “We know of no authoritative holding which extends First Amendment protection to a

solicitation to commit an act lawfully prohibited by statute.” Riley v. United States, 298 A.2d

228, 233 (D.C. 1972). “Reasonable prohibitions against soliciting unlawful acts do not violate

free speech rights. Because First Amendment protection does not extend to statements made in

the solicitation of criminal acts, [Georgia statute forbidding solicitation of sodomy] does not

reach protected speech.” Christensen v. State, 468 S.E.2d 188, 190 (Ga. 1996).

In arguing that Code § 18.2-374.3(B) prohibits constitutionally protected free speech,

Podracky relies on Reno v. American Civil Liberties Union, 521 U.S. 844 (1997). In Reno, the

United States Supreme Court struck down two provisions of the Communications Decency Act

(“CDA”), provisions that prohibited the knowing transmission of obscene or indecent messages

to persons under eighteen. Id. at 859-60. The Court struck down the disputed provisions of the

CDA because they prohibited constitutionally protected communications between adults over the

internet. Id. at 876.

In arguing that the CDA does not so diminish adult
communication, the Government relies on the incorrect factual
premise that prohibiting a transmission whenever it is known that
one of its recipients is a minor would not interfere with
adult-to-adult communication. The findings of the District Court
make clear that this premise is untenable. Given the size of the
potential audience for most messages, in the absence of a viable
age verification process, the sender must be charged with knowing
that one or more minors will likely view it. Knowledge that, for
instance, one or more members of a 100-person chat group will be

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 minor – and therefore that it would be a crime to send the group an
indecent message – would surely burden communication among
adults.

Id. Podracky argues that, in light of the language quoted above, the knowledge element of Code

§ 18.2-374.3(B) as to the age of the person solicited (“for the purposes of soliciting any person

he knows or has reason to believe is a minor”) does not save the constitutionality of the statute

because an internet user cannot know whether the person they are soliciting is a minor.

We disagree. Under the statute in Reno, someone could commit a crime by publishing

indecent materials on the internet, materials that adults have a constitutional right to send and to

see. Because the number of potential recipients is enormous, given the size of the internet, a

person publishing such materials would still be guilty of a crime because he could be charged

with constructive knowledge of the near certainty that at least one minor would view the

materials. We believe this view of Reno’s assessment of the significance of the CDA’s

knowledge element explains Reno’s emphasis on the unavailability of cheap, reliable

age-verification technology for the screening of visitors to sexually explicit websites.

As a practical matter, the Court also found that it would be
prohibitively expensive for noncommercial--as well as some
commercial--speakers who have Web sites to verify that their users
are adults. [ACLU v. Reno, 929 F. Supp. 824,] 845-848 [(E.D. Pa.
1996)] (findings 95-116). These limitations must inevitably curtail
a significant amount of adult communication on the Internet. By
contrast, the District Court found that “despite its limitations,
currently available user-based software suggests that a reasonably
effective method by which parents can prevent their children from
accessing sexually explicit and other material which parents may
believe is inappropriate for their children will soon be widely
available.” Id., at 842 (finding 73).

Id.

Unlike the statute in Reno, Code § 18.2-374.3(B) proscribes, not the knowing

communication of indecent materials to minors, but only the knowing use of a communications

system to solicit a minor for certain criminal acts. In United States v. Dhringa, 371 F.3d 557 (9th

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Cir. 2004), the Court of Appeals for the Ninth Circuit upheld the constitutionality of 18 U.S.C.

§ 2422(b), which forbids the knowing inducement of a minor to engage in sexual activity that is

a criminal offense. Id. at 562. Like Podracky, the defendant relied on Reno, and the Court

distinguished the unconstitutional CDA provisions from 18 U.S.C. § 2422(b). We believe the

meaningful difference between the statutes analyzed in Dhringa is also obvious to anyone

comparing the terms of the unconstitutional CDA provisions with Code § 18.2-374.3(B).

For example, [§ 2422(b)] would not criminalize speech that is
received by minors but is not spoken with the intent to persuade,
induce, entice or coerce a minor into illegal sexual activity. In this
delineation between criminal and lawful behavior lies a key
distinction between the CDA provision considered in Reno and
§ 2422(b). The CDA criminalized speech – even if directed to a
general audience – once it became known to the speaker that a
minor was accessing the information. Because the speaker’s
burden of restricting minors’ access to otherwise legitimate speech
would be so great, the statute effectively silenced the speaker
altogether, imposing an impermissible content-based blanket
restriction that included legitimate adult communication. In
comparison, as a functional matter, § 2422(b) requires that an adult
cease inducement for sex once he becomes aware that the object of
his inducement is a minor – hardly a burden to legitimate speech,
as the statute does not prevent the speaker from communicating
with other adults.

Id. (internal citation omitted). Accordingly, we reject Podracky’s argument that the United

States Supreme Court’s decision in Reno controls the outcome of this case.

While there is no Virginia case expressly deciding whether Code § 18.2-374.3(B) is

unconstitutionally overbroad, several other jurisdictions have upheld similar statutes in cases

involving the solicitation of minors for sexual offenses using the internet. State v. Colosimo, 142

P.3d 352, 355 (Nev. 2006); People v. Cervi, 717 N.W.2d 356, 366-68 (Mich. Ct. App. 2006);

State v. Snyder, 801 N.E.2d 876, 882-83 (Ohio Ct. App. 2003); State v. Backlund, 672 N.W.2d

431, 442 (N.D. 2003); Laughner v. State, 769 N.E.2d 1147 (Ind. App. 2002); State v.

Ruppenthal, 771 N.E.2d 1002, 1006 (Ill. App. Ct. 2002); State v. Robins, 646 N.W.2d 287,

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319-20 (Wi. 2002); People v. Foley, 731 N.E.2d 123, 128 (N.Y. 2000); Hatch v. Superior Court,

94 Ca. Rptr. 2d 453, 475 (Cal. Ct. App. 2000).

Federal decisions addressing the sexual solicitation of minors over the internet also hold

that such solicitations are not protected by the First Amendment. “[T]he defendant simply does

not have a First Amendment right to persuade minors to engage in illegal sex acts.” United

States v. Bailey, 228 F.3d 637, 639 (6th Cir. 2000). See also United States v. Tykarsky, 446

F.3d 458, 472-73 (3d Cir. 2006); United States v. Thomas, 410 F.3d 1235, 1243-44 (10th Cir.

2005); United States v. Johnson, 376 F.3d 689, 694-95 (7th Cir. 2004); Dhingra, 371 F.3d at

561-63; United States v. Meek, 366 F.3d 705, 721-22 (9th Cir. 2004); United States v. Panfil,

338 F.3d 1299, 1300-01 (11th Cir. 2003). “Speech attempting to arrange the sexual abuse of

children is no more constitutionally protected than speech attempting to arrange any other type of

crime.” United States v. Hornaday, 392 F.3d 1306, 1311 (11th Cir. 2004).

Podracky attempts to distinguish only one of these cases, the decision of the Court of

Appeals of New York in Foley, 731 N.E.2d at 128. He argues that the statute affirmed by Foley

was constitutional, but that Code § 18.2-374.3(B) is not, because, unlike the New York statute,

Code § 18.2-374.3(B) prohibits the solicitation of a child to commit offenses that can occur

between consenting adults, specifically prostitution 2 and crimes against nature. Podracky

suggests that this means that Code § 18.2-374.3(B) prohibits the constitutionally protected right

of adults to send and receive messages regarding prostitution and crimes against nature, and is,

therefore, unconstitutionally overbroad.

2
Podracky is incorrect that Code § 18.2-374.3(B), at the time of appellant’s conviction,
prohibited the use of a communications system to solicit a minor for prostitution. The statute
does prohibit solicitation of a person the defendant knows or has reason to believe is a minor for
any activity in violation of Code § 18.2-355 (taking or detaining a person for the purposes of
prostitution). However, the statute that prohibits prostitution, Code § 18.2-346, is not mentioned
in either the former or amended version of Code § 18.2-374.3.

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 Podracky’s argument is wrong for two reasons. First, it ignores the text of Code

§ 18.2-374.3(B). The statute applies only to an adult who uses a communications system “for

the purposes of soliciting any person he knows or has reason to believe is a minor” for certain

criminal offenses. By its terms, the statute does not apply to an adult’s solicitation of anyone he

does not have reason to believe is a minor for any offense.

Second, “solicitation” is a legal term that has long been understood to exclude the sort of

constitutionally protected speech Podracky incorrectly suggests is prohibited by Code

§ 18.2-374.3(B).

However there is a significant distinction between advocacy and
solicitation of law violation in the context of freedom of
expression. Advocacy is the act of “pleading for, supporting, or
recommending active espousal” and, as an act of public
expression, is not readily disassociated from the arena of ideas and
causes, whether political or academic. Solicitation, on the other
hand, implies no ideological motivation but rather is the act of
enticing or importuning on a personal basis for personal benefit or
gain. Thus advocacy of sodomy as socially beneficial and
solicitation to commit sodomy present entirely distinguishable
threshold questions in terms of the First Amendment freedom of
speech. The latter, we hold, is not protected speech.

District of Columbia v. Garcia, 335 A.2d 217, 224 (D.C. 1975) (internal citations omitted). The

general discussion of crimes against nature or the advocacy of their legalization through the

political process, while protected by the First Amendment, simply is not “solicitation” as that

term is understood in our First Amendment jurisprudence. Code § 18.2-374.3(B), which

prohibits only certain kinds of criminal solicitation using a communications system, cannot

plausibly be read to proscribe speech of this kind.

Finally, Podracky argues that Code § 18.2-374.3(B) is unconstitutional because it

prohibits an adult from soliciting another adult when, as in this case, he mistakenly believes the

person solicited is a minor when, in fact, the person solicited is both an adult and an undercover

police officer. We agree that, by its terms, the statute forbids this kind of solicitation. The text

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of Code § 18.2-374.3(B) does not require the solicitation of an actual minor, only the use of a

communications system “for the purposes of soliciting any person he knows or has reason to

believe is a minor” for specified criminal offenses. However, we do not believe Podracky’s

solicitations of the undercover police officer were protected speech for the purposes of the First

Amendment.

The United States Supreme Court in Williams, 128 S. Ct. 1830, 2008 U.S. LEXIS 4314,

rejected a similar argument challenging the constitutionality of the federal child pornography

statute:

Offers to deal in illegal products or otherwise engage in illegal
activity do not acquire First Amendment protection when the
offeror is mistaken about the factual predicate of his offer. The
pandering and solicitation made unlawful by the Act are sorts of
inchoate crimes — acts looking toward the commission of another
crime, the delivery of child pornography. As with other inchoate
crimes — attempt and conspiracy, for example — impossibility of
completing the crime because the facts were not as the defendant
believed is not a defense. “All courts are in agreement that what is
usually referred to as ‘factual impossibility’ is no defense to a
charge of attempt.”

Id. at *27 (citations omitted).

Podracky’s argument is also similar to the argument rejected by our Supreme Court in

Hix v. Commonwealth, 270 Va. 335, 619 S.E.2d 80 (2005). In Hix, the defendant had internet

conversations with an undercover police officer, and the officer deceived the defendant into

believing that “she” was a thirteen-year-old girl. Id. at 338, 619 S.E.2d at 81. The defendant

was convicted of violating Code § 18.2-374.3 (the indictment did not specify the subsection); he

was also convicted of an attempted violation of Code § 18.2-370 (indecent liberties with a

minor). Id. at 337, 619 S.E.2d at 81. The defendant appealed, arguing that the evidence was

insufficient for a conviction as a matter of law because the person solicited was an adult police

officer and not a child. Id. at 341-42, 619 S.E.2d at 84. After analyzing the distinction between

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“legal” and “factual” impossibility in prior decisions, our Supreme Court affirmed the

defendant’s conviction.

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 a crime, an extraneous fact outside of the
knowledge and control of the defendant. The non-existence of the
“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 [v.
Commonwealth, 34 Va. App. 364, 542 S.E.2d 18, aff’d, 262 Va.
814, 554 S.E.2d 84 (2001),] were communicating with adult law
enforcement officers is not a defense to the attempted crime.

Id. at 345, 619 S.E.2d at 86.

Hix does not discuss the First Amendment. Yet the case does establish that Podracky’s

messages to Detective Krisik were criminal solicitations, a form of communication not protected

by the First Amendment according to our Supreme Court’s decision in Pederson. “First

Amendment protection is not afforded statements made in the solicitation of criminal acts.”

Pederson, 219 Va. at 1066, 254 S.E.2d at 98. Hix also establishes that Podracky was guilty of

criminal solicitation despite the fact that he mistakenly addressed his solicitations to an adult

police officer. See also Huffman v. Commonwealth, 222 Va. 823, 827, 284 S.E.2d 837, 840

(1981) (“It is immaterial whether the solicitation is of any effect and whether the crime solicited

is in fact committed. . . . The gist of [the] offense is incitement.”).

Podracky’s argument that Code § 18.2-374.3(B) is unconstitutional therefore depends on

the existence of a constitutional factual impossibility exception to the general rule that criminal

solicitation is not constitutionally protected speech. We can find no such exception in the text of

the Constitution or the cases interpreting it. “[The defendant] cites no authority for the

proposition that the legal or factual impossibility defense is constitutionally protected, and we

have found none.” German v. United States, 525 A.2d 596, 606 (D.C. 1987).

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 Chief Justice Marshall wrote that “[t]he power of punishment is vested in the legislative,

not in the judicial department. It is the legislature, not the Court, which is to define a crime, and

ordain its punishment.” United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820). See also

Dowling v. United States, 473 U.S. 207, 213-14 (1985). There may be limits to what the

legislature may punish as criminal solicitation; for example, “it would be illogical and untenable

to make solicitation of a non-criminal act a criminal offense.” Pederson, 219 Va. at 1065, 254

S.E.2d at 98. However, each of the acts mentioned in Code § 18.2-374.3(B) is defined by statute

as a crime, and Podracky makes no argument that he has a substantive due process right to

violate Code §§ 18.2-355; 18.2-361; 18.2-374.1; 18.2-374.1:1; or 18.2-370. Indeed, we rejected

similar arguments in McDonald v. Commonwealth, 48 Va. App. 325, 630 S.E.2d 754 (2006)

(holding that there is no constitutional right to engage in consensual sodomy with a person under

eighteen), and Singson, 46 Va. App. at 739, 621 S.E.2d at 688 (holding there is no constitutional

right to engage in consensual sodomy in public).

Podracky has not shown that Code § 18.2-374.3(B) prohibits speech protected by the

First Amendment. We therefore affirm his conviction.

Affirmed.

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