Bloom v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Annunziata, Bumgardner and Frank
Argued at Salem, Virginia

GREGORY MICHAEL BLOOM
OPINION BY
v. Record No. 2286-99-3 JUDGE RUDOLPH BUMGARDNER, III
FEBRUARY 27, 2001
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ROANOKE COUNTY
Diane McQ. Strickland, Judge

Christopher K. Kowalczuk for appellant.

Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.

A jury convicted Gregory Michael Bloom of attempting to

take indecent liberties with a child under the age of fourteen

and solicitation to commit sodomy, in violation of Code

§§ 18.2-370(5) and 18.2-29. On appeal, he contends the trial

court erred in admitting statements as party admissions and in

finding the evidence sufficient to convict. Finding no error,

we affirm.

The Commonwealth introduced internet communications between

the thirteen-year-old victim and someone identified as

"Philter425." The defendant contends the trial court erred in

permitting the victim to state the contents of communications

made to her by Philter425. The defendant argues the statements

were hearsay because no evidence proved he made them. The issue
is whether the evidence sufficiently identifies "Philter425" as

an alias the defendant used to make the communications.

The victim's mother complained to the police that an adult

male was communicating with her daughter over the internet. She

reported the man identified himself as Philter425 and had asked

the thirteen-year-old girl to meet him. On February 5, 1999

Detective Scott Smith began investigating the complaint by

logging on the internet using the victim's internet

identification, "Nikki4403." He addressed an "instant message" 1

to Philter425. Approximately fifteen minutes later Philter425

responded, and Smith, posing as Nikki4403, corresponded with

Philter425 by instant exchange of messages over the internet.

During the exchange, 2 the topic turned to sex, and

Philter425 proposed that they meet and have sexual relations.

1
An instant message permits parties to connect
simultaneously over the internet. As the party sending a
message types the message, it instantaneously appears on the
computer screen of the addressee. The communications link is
continuous, and the exchange of messages is immediate.
2
That conversation, which was admitted into evidence,
provided, in part, as follows:

Philter425: hey, baby . . . what's the
scoop?
Nikki4403: just chillin
Philter425: are you ungrounded now
Nikki4403: yea kinda
Philter425: kinda?
Nikki4403: can get out tonight
Philter425: you can :0)
Nikki4403: what ya have in mind
Philter425: letting you meet my daughter
so you can babysit tomorrow

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They arranged to meet at a specific pay phone of a particular

Burger King restaurant at 10:30 p.m. Philter425 advised he

would be driving a silver Toyota Tercel. The police went to the

designated place, and just after 10:30 p.m., the defendant drove

his silver Toyota Tercel into the Burger King parking lot. A

young child rode in the back of the car. The defendant paused

near the pay phone but then drove off. The police stopped him a

short distance away.

Detective Smith questioned the defendant about the

communications with Nikki4403. Smith showed the defendant a

verbatim printout of those communications, and the defendant

for me :0) or whatever you
want to do
Nikki4403: not babysit
I'm alone its cool
Philter425: getting drunk and having wild
monkey sex
Nikki4403: sounds like a plan
Philter425: cool
Nikki4403: what sex do you like
Philter425: good sex
what do you mean
Nikki4403: how do you like it
Philter425: we'll play that part as it
comes . . . I like what you
said before about just
chillin
Is that cool?
Nikki4403: I'm for anything but up the
ass
Philter425: ok . . . as long as I can
lick and suck your pussy
Nikki4403: cool
where
Philter425: you like that
Nikki4403: oh yeah

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admitted he had sent the messages attributed to Philter425

earlier that evening.

The defendant concedes he was Philter425 and does not

challenge the admissibility of communications made the night he

was arrested. He objects to the victim testifying about earlier

communications she had with Philter425. The victim testified

she communicated with Philter425 from November 1998 using the

name Nikki4403. She stated that Philter425 revealed he was a

male, twenty-eight years old, named Greg, and the father of a

three-year-old girl. The victim testified that Philter425

offered to buy her alcohol, to take her on dates, and to give

her $100 if she would sneak out of her house. The victim

testified she told Philter425 that she was fifteen years old,

and on one occasion, she mentioned that she was grounded.

Conversations over the internet are analogous to telephone

conversations. Conversations overheard on a telephone are

admissible if direct or circumstantial evidence establishes the

identity of the parties to the conversation. Snead v.

Commonwealth, 4 Va. App. 493, 496, 358 S.E.2d 750, 752 (1987).

Messages received over the internet are admissible against the

sender if the evidence establishes the identity of the sender.

The defendant admitted he used the name Philter425 to

communicate with Nikki4403 on February 5, 1999. Remarks made in

that conversation linked it to the earlier communications

between Philter425 and Nikki4403. In an earlier communication,

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the victim told Philter425 that she was grounded. The defendant

began the communication on February 5 by asking, "Are you

ungrounded now?" Internal links between the earlier and later

conversations support the inference that Philter425 was the same

person both times.

External facts verified personal information that

Philter425 revealed during the communications. Personal details

such as age, name, gender, and offspring matched the defendant.

No evidence suggested that anyone else could impersonate the

defendant by appropriating his internet identification name and

use it to establish a communication link with the victim. The

evidence sufficiently identified the defendant as the person

using the alias Philter425 when the communications were made to

the victim. The trial court could admit the statements as

admissions by the defendant. "The admissibility of evidence is

within the broad discretion of the trial court, and a ruling

will not be disturbed on appeal in the absence of an abuse of

discretion." Blain v. Commonwealth, 7 Va. App. 10, 16, 371

S.E.2d 838, 842 (1988).

The defendant challenges the sufficiency of the evidence of

attempting to take indecent liberties with a minor and

solicitation to commit sodomy. The defendant contends the

evidence was insufficient to prove: (1) he was over eighteen

years old, (2) he made an attempt, (3) he enticed, allured,

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persuaded, or invited the victim, (4) he intended to commit

sodomy, or (5) he had lascivious intent.

The defendant told the victim he was twenty-eight years

old. The defendant's presence at trial corroborated this

statement. The judge noted, "I do not believe any reasonably

minded juror could conclude that [the defendant] is under the

age of 18." A person's physical appearance may be considered as

proof that he is older than a given age. Jewell v.

Commonwealth, 8 Va. App. 353, 356, 382 S.E.2d 259, 261 (1989).

If a criminal defendant's physical
appearance indicates an age well above that
required to be proven and the trial court
determines that the fact finder is able to
conclude beyond a reasonable doubt from the
defendant's physical appearance that he
exceeds the age required to be proven, then
the defendant's physical appearance alone is
sufficient evidence of his age, and the fact
finder may resolve that issue based only on
the defendant's physical appearance.

Id. The evidence proved the defendant was over eighteen years

old.

"An 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. The act must reach far enough

towards the accomplishment of the desired result to amount to

the commencement of the consummation." Barrett v. Commonwealth,

210 Va. 153, 156, 169 S.E.2d 449, 451 (1969) (citations

omitted). In the February 5 communication, which the defendant

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admitted making, he clearly stated an intention to have the

victim come to his house and engage in sexual acts.

"[W]here intent has been shown, any slight act done in

furtherance of this intent will constitute an attempt." Fortune

v. Commonwealth, 14 Va. App. 225, 229, 416 S.E.2d 25, 28 (1992).

The defendant established a plan to meet the victim and take her

to his house. He began executing his plan by fixing a time and

place to meet her. He then went there at the designated time

driving the vehicle that he had identified for the victim. The

crime must be "'in such progress that it will be consummated

unless interrupted by circumstances independent of the will of

the attempter, and the act must not be equivocal in nature.'"

Lewis v. Commonwealth, 15 Va. App. 337, 340, 423 S.E.2d 371, 373

(1992) (citation omitted). The defendant failed to carry out

his plan because the police were waiting for him at the meeting

place rather than the victim. The defendant's actions in

furtherance of his statement of intent went beyond preparation

and constituted an attempt.

The defendant contends he cannot be convicted because it

was impossible to entice a child to engage in sexual acts when

he communicated with Detective Smith, not the victim. Legal

impossibility is a defense; factual impossibility is not.

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

173-74 (1986).

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 "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." Id. at 636, 347 S.E.2d at

174. The defendant thought he was communicating with a young

girl with whom he intended to have sexual relations. The

defendant did not know the police had replaced the victim as

Nikki4403. 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 637, 347 S.E.2d at 174.

The defendant also contends the evidence was not sufficient

to prove he intended to commit sodomy. The defendant maintains

Ford v. Commonwealth, 10 Va. App. 224, 227, 391 S.E.2d 603, 604

(1990), controls because he only expressed a desire to engage in

sexual acts. In Ford, the defendant approached the victims'

car, and they asked what he wanted. He stated he wanted to have

sex and said he wanted to perform a particular sexual act. The

defendant made no more movements toward the car, offered no

money, and did not ask the victims to get out. The court ruled

that his words alone "did not rise to the level of incitement to

criminal activity" required to convict of solicitation.

In his February 5 communication with Nikki4403, the

defendant stated he wanted to perform sodomy on the victim. He

arranged to meet her, take her to his house, and went to meet

her. "Criminal solicitation involves the attempt of the accused

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to incite another to commit a criminal offense. '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.'" Branche v. Commonwealth, 25 Va.

App. 480, 490, 489 S.E.2d 692, 697 (1997) (citation omitted).

The defendant's actions and statements to Nikki4403 were not

just "words alone." The evidence supports a finding beyond a

reasonable doubt that the defendant solicited the crime.

Finally, the statements made in the February 5

communication permit a finding that the defendant acted with

lascivious intent. "[T]he word 'lascivious' describes a state

of mind that is eager for sexual indulgence, desirous of

inciting to lust or of inciting sexual desire and appetite."

McKeon v. Commonwealth, 211 Va. 24, 27, 175 S.E.2d 282, 284

(1970). The factors that can prove lascivious intent include

whether the defendant made any improper remarks to the victim,

and whether he asked her to do anything improper. Campbell v.

Commonwealth, 227 Va. 196, 199, 313 S.E.2d 402, 404 (1984)

(indecent exposure).

For the reasons stated, we affirm the convictions.

Affirmed.

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