COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Senior Judge Overton
Argued at Richmond, Virginia
JAMES GANGGA BROOKER
OPINION BY
v. Record No. 2259-02-2 JUDGE NELSON T. OVERTON
OCTOBER 28, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Cleo E. Powell, Judge
William P. Irwin, V (Bowen, Champlin, Carr & Rockecharlie, on
brief), for appellant.
Amy L. Marshall, Assistant Attorney General (Jerry W. Kilgore,
Attorney General, on brief), for appellee.
James Gangga Brooker, appellant, was convicted of two counts of attempting to take
indecent liberties with a child in violation of Code §§ 18.2-26 and 18.2-370. He was also convicted
of three counts of the use of a communications system for soliciting a minor in a sex crime in
violation of Code § 18.2-374.3(B)(i). On appeal, he contends the evidence was insufficient to prove
he committed the offenses. We disagree and affirm the convictions.
FACTS
Detective Rick Meadows posed as a twelve-year-old girl named "Kim" while conducting
computer on-line investigations. Meadows, as "Kim," had three separate text message
conversations with appellant via an instant message internet chat room called "Romance
Virginia."1 On October 30, 2001, in his first "chat" with appellant, Meadows wrote that "Kim"
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
was twelve years old and lived in Virginia. Appellant replied that he was twenty-four years old,
and he asked if "Kim" had ever kissed "an older guy." Appellant also sent Meadows two
photographs of himself in which his genitals were exposed. Appellant wrote, "Don't you want to
see and feel the real thing?" Meadows replied, "Yes" and asked, "What would you do with me?"
Appellant wrote, "Anything you want me to do. Do you want to cumm [sic] in my mouth?" and
he referred to licking "Kim" "you know where" and "everywhere on [her] body." He asked if
"Kim" wished she lived closer to him and if she would "come over." Appellant also gave "Kim"
his home telephone number.
On October 31, 2001, appellant and Meadows had another on-line conversation.
Appellant told "Kim" not to tell her parents about their communication. He also asked if "Kim"
wanted to see him and if she wanted him to remove his pants. Appellant removed his pants and
transmitted by means of a web camera live pictures of himself, exposing his penis and holding
his erect penis. Detective Meadows testified that appellant's web camera allowed Meadows to
"see what [appellant] was doing" at that time. Detective Meadows produced snapshots of his
computer screen and screen captures which were introduced into evidence. The images clearly
showed appellant's penis. Appellant wrote that he wished "Kim" was there with him and that he
would "make love to" her if she was there. He further stated he would "be gentle" with her and
"teach" her. Appellant and "Kim" discussed meeting each other, and appellant said he would
"pick [her] up" somewhere, although he was "not too familiar with Richmond."
On November 26, 2001, appellant and Meadows, as "Kim," had a third on-line exchange.
Appellant asked if "Kim" wanted him to remove his clothes, and he activated his web camera.
Appellant removed his pants and exposed his penis to the camera. He then asked if "Kim"
immediate." Bloom v. Commonwealth, 34 Va. App. 364, 368 n.1, 542 S.E.2d 18, 20 n.1, aff'd,
262 Va. 814, 554 S.E.2d 84 (2001).
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wanted to see him masturbate. Appellant masturbated to ejaculation in front of the web camera.
Snapshots of Detective Meadows' computer screen taken during this exchange showing
appellant's penis were admitted into evidence. "Kim" asked appellant if he thought she was too
young for him, and he replied, "No, but we have to be very careful." He also asked, "Are you
going to lose your virginity to me?"
ANALYSIS
Appellant admits that he made the communications with "Kim" over the internet.
However, he contends that the evidence was insufficient to prove he used a communication
device to solicit a minor in violation of Code § 18.2-374.3(B). He argues that the evidence failed
to show he intended the minor to act upon the content of the on-line conversations.
"On appeal, 'we review the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible therefrom.'" Archer v. Commonwealth,
26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted).
Code § 18.2-374.3(B) provides:
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, 18.2-358, 18.2-361 or § 18.2-370, (ii) any
activity in violation of § 18.2-374.1, or (iii) a violation of
§ 18.2-374.1:1.
"Criminal solicitation involves the attempt of the accused to incite another to commit a
criminal offense. 'It is immaterial whether the solicitation has 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). "[T]he
act of solicitation may be completed before any attempt is made to commit the solicited crime."
Ford v. Commonwealth, 10 Va. App. 224, 226, 391 S.E.2d 603, 604 (1990).
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The specific intent to commit [a crime] may be inferred from the
conduct of the accused if such intent flows naturally from the
conduct proven. Where the conduct of the accused under the
circumstances involved points with reasonable certainty to a
specific intent to commit [the crime], the intent element is
established.
Wilson v. Commonwealth, 249 Va. 95, 101, 452 S.E.2d 669, 674 (1995) (citations omitted).
Appellant's actions and statements to "Kim" were not simply "words alone." See Bloom
v. Commonwealth, 34 Va. App. 364, 373, 542 S.E.2d 18, 22, aff'd, 262 Va. 814, 554 S.E.2d 84
(2001). In the October 30, 2001 conversation, appellant discussed kissing "Kim," whom he
believed was twelve years old, and he sent her photographs of himself in which his genitals were
exposed. He inquired if she wanted to "see and feel the real thing," and he discussed "Kim"
"cumm[ing] [sic] in his mouth." In addition, appellant expressed a desire to lick "Kim"
"everywhere on [her] body," and he asked if she would "come over."
In the October 31, 2001 communication, appellant transmitted to "Kim" images of his
erect penis using a web camera allowing the recipient to view live images of him. During this
communication, appellant wrote that he would have sexual intercourse with the minor if she was
present, stating that he would be "gentle" with her. Furthermore, appellant discussed meeting
"Kim" and offered to pick her up "somewhere." "Kim" responded, "I'm not far," and appellant
wrote back, "I know. That's good, but I'm not too familiar with Richmond."
During the November 26, 2001 conversation, appellant asked if "Kim" would lose her
virginity to him. He activated his web camera, removed his pants, and masturbated to
ejaculation.
From the content of the three conversations and from the evidence of the images
appellant transmitted to the minor, the trial judge could infer that appellant intended to solicit a
minor to commit illegal sexual acts in violation of the statute and via a communications device.
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Accordingly, the evidence was sufficient to prove beyond a reasonable doubt that, on three
separate occasions, appellant violated Code § 18.2-374.3(B).
The fact that appellant and "Kim" were located in different cities while they exchanged
communications is of no consequence. "[T]the separate crime of solicitation may be completed
before an attempt is made to commit the solicited crime." Pederson v. City of Richmond, 219
Va. 1061, 1067-68, 254 S.E.2d 95, 99 (1979). Appellant's "principal objective was to persuade"
the minor to engage in criminal sexual acts. See id. at 1068, 254 S.E.2d at 100. Proof of any
overt act toward committing the crimes, such as meeting the minor at a specified location, was
not required.
In addition, appellant's argument that his actions constituted a single continuing offense is
without merit. Evidence of separate, discrete conduct by appellant supported each of the three
offenses. See, e.g., Slater v. Commonwealth, 15 Va. App. 593, 596, 425 S.E.2d 816, 817-18
(1993); Johnson v. Commonwealth, 13 Va. App. 515, 518, 412 S.E.2d 731, 732 (1992). The
offenses occurred on three different dates, involved three distinct and separate communications,
and, in each conversation appellant incited the minor to commit a crime. Therefore, the evidence
proved that appellant violated the statute on three separate occasions.
Appellant contends the evidence was insufficient to prove that he attempted to expose
himself to a minor in violation of Code § 18.2-370 because the parties were located in separate
cities at the time of the incidents. He also contends that he could not have committed these
offenses because he exposed his genitals by means of the internet and not in a public location.
Code § 18.2-370 provides, in part, that a person who knowingly and intentionally
"[e]xpose[s] his . . . sexual or genital parts to any child" under the age of fourteen years shall be
guilty of a Class 5 felony.
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Expose has been defined as "'to put on show or display,'" "'to lay open to view,'" "'to
display,'" "'to offer to the public view.'" Siquina v. Commonwealth, 28 Va. App. 694, 698, 508
S.E.2d 350, 352 (1998) (citations omitted). "'Exposure of [a] person becomes indecent when it
occurs at such time and place where [a] reasonable person knows or should know his act will be
open to observation of others.'" Id. (citing Black's Law Dictionary 768 (6th ed. 1990)). "'[A]n
indecent exposure must be either in the actual presence and sight of others, or in such a place or
under such circumstances that the exhibition is liable to be seen by others.'" Holley v.
Commonwealth, 38 Va. App. 158, 164, 562 S.E.2d 351, 354 (2002) (citation omitted).
The evidence showed that appellant twice transmitted to someone, whom he believed was
a minor, live images of his genital parts by means of a computer and a web camera so that the
minor could see appellant's genital parts at the time of the exposure. In addition, on both
occasions, prior to exposing his penis, appellant asked via instant messaging whether the minor
wanted him to remove his pants or clothing. In both instances, Meadows indicated that "Kim"
wanted appellant to remove his pants. From appellant's words and conduct, the trial judge could
infer that appellant knowingly and intentionally exposed his genitals to a person whom he
believed to be a minor.
Furthermore, the trial judge admitted evidence showing Meadows' computer screen at the
time appellant sent the transmissions to "Kim." Several of the pictures received on October 31
and November 26, 2001 clearly show appellant's genitals. From this evidence, the trial judge
could conclude that appellant knew that the exposure of his genitals in front of his activated web
camera was "liable to be seen" by the minor at the time of the exhibition because "Kim" was
engaged in an instant message internet conversation with appellant at the time of the displays.
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Accordingly, the evidence was sufficient to prove beyond a reasonable doubt that appellant
violated Code §§ 18.2-26 and 18.2-370.
For the reasons stated, we affirm the convictions.
Affirmed.
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