COURT OF APPEALS OF VIRGINIA
Present: Judge s Beales, Chafin and O’Brien Argued at Fredericksburg, Virginia

ROBERT LEIGH STOLTZ MEMORANDUM OPINION * BY v. Record No . 0352-17-4 JUDGE MAR Y GRACE O’BRIEN JUNE 19, 2018 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF FAIRFAX COUNTY Penney S. Azcarate, Judge Jonathan P. Sheldon (Thomas Wal sh; Sheldon, Fl ood & Haywood, PLC; Petrovich & Walsh, PLC, on briefs), for appellant. Robert H. Anderson, III, Senior A ssistant Attorney General (Mar k R. Herring, Attorney General, on brief), for appellee.
A jury convicted Rob ert Leigh Stoltz (“appellant”) of using a computer to solicit a minor, in violation of Code § 18.2-374.3. Appellant contends that Code § 18.2-374.3 is unconstitutional as applied to him. 1 We disagree and affirm his conviction.
BACKGROUND On the afternoon of November 4, 2014, appellant placed an adve rtisement for sexual companionship in the “casual encounters” section of Craigslist. 2 The advertisem ent was entitled, “Can I CUM on you? Quick shot an d heavy load! – m4w – 34 (nort hern va)” and stated:

* Pursuant to Code § 17.1-413, th is opinion is not designated fo r publication.

1 Appellant initially als o asserted that Code § 18.2-374.3 was f acially unconstitutional, but he abandoned thi s position at oral argument.

2 Craigslist, an online classifi ed advertisement website, has si nce removed this section.UNPUBLISHED- 2 - Sorry for the repost – but too many flakes... Still so horny-blue ba lls type weeke nd. I really really need t o shoot my load and would love to shoot it on someone who is turn ed on by cum shots, cum fetishes, or just loves to get cummed on. Also anyone that is curious about it too . . . I can be quick-or not -your call. I will cum wherever you want me to--> ass/chest/face/mouth/pussy/stomach/feet, etc. You will need to host at your place-or your office-car. Safe, VERY clean, normal and cute white-g uy here. Athletic physique with a good sized and very cum filled cock. Discrete. The advertisement included a ph otograph of an erect penis. Detective Blake Albritton of the Fairfax County Police Departm ent’s Child Exploitation Unit saw appellant’s advertisemen t and responded, posing as a t hirteen-year-old girl. Craigslist does not ve rify the identity or age of anyone who po sts, responds to, or simply views advertisements. Users can request anonymous email accounts to avoid revealing their contact information. Using the pseudonym “Annie,” Detective Albritton sent the foll owing email to appellant: hi, I’m bored and off of school today, but i’m on ly 13...i knwo I hsouldn’t be in there but i thought ur ad was umm like cool and stuff so i thought i’d say hi. i have a pic if you want but if i’m 2 young tahts o.k. and i wont’ bother u. i can’t believe i’m sending this email!!! annie. Appellant responded from the an onymous email account: “Hi – th anks for replying – I’d love to see a picture . . . I am definitel y interested and 23 isn’t too you ng . . . :).” Detect ive Albritton emailed back several minutes later stati ng, “13 not 23 hehe...” Appellan t asked to see a picture of “Annie.” Detective Albritton, who is male, sent appellant a picture of a twenty-five-year-old female officer. Appellant replied: “No worries. Thanks for send ing – you’re v ery cute! So what did you like about my ad? Where about do you l ive?” “Annie” asked appellan t to send his picture, and upon receiving it, “Annie” responded that he “look[ed] like [the] gu y from [M]ighty [D]ucks.”- 3 - “Annie” and appellant continued exchanging emails. “Annie” to ld appellant that she lived near the Walmart in Burke. She was home alone because her pare nts were out of town and she did not have school that day. In one email, “Annie” asked appellan t what he wanted to do and mentioned that she did not drive. Appellant responded, “I’d li ke to do what I said in my post, but am open. What do you have in min d? And when wou ld you be avai lable? I can driv e to you so no worries.” Later that afternoon, appellant began to communicate with “Ann ie” on Yahoo messenger. “Annie” again asked what appellant wanted to do with her, and h e replied: “I’m really open-but if you’re curious maybe I can help? I’m fairly horn y tho . . . lo l.” Appellant later specified: “i’d like to kiss you and get naked with y ou. then touch your body all o ver and you can touch me all over too.” He asked “Annie ” if she had kissed a boy before and if s he liked being touched. “Annie” asked appellant if she could call him to ascertain if he was “real.” Appellant was initially reluctant but he eventu ally provided hi s phone number . A female detectiv e, also posing as “Annie,” called him. During the telephone conversation, appell ant truthfully identified himself as Robert. “Annie” reiterated that she was thirteen years old, an d appellant asked if that was “really” her age. “Annie” responded affir matively and then asked if her age was “okay” with appellant. Appellant stated, “Uhhh, you know . Once I meet you maybe it wi ll be better.” He indicated that initially he wanted to “just talk” with Annie, but she had resp onded to his Craigslist post and he was “kind of in the mood t o . . . you know.” T hey agreed to meet o utside the Burke Walmart near “Annie’s” house around 7:30 p.m ., and “Annie” requested that ap pellant “bring protection” with him. Appellant stated that he w ould be driving a “blue Explore r SUV.” At 7:32 p.m. that evening, appellant texted “Annie” that he was at Walmart. “Annie” told him to meet her “on [the] side of [the] garden center” at the s tore and asked him what he was wearing. Appellant r esponded, “Black shir t/jeans. Went back t o the car. Too many people looking- 4 - at me funny.” From the Walmart parking l ot, Detective Albritto n observed appellant respond to “Annie’s” text messages and the n walk toward a white BMW SUV. Appellant went into a nearby Dairy Queen, returned to the BMW, and left the parking lot. Detective Albritton st opped the BMW a few m inutes later and ex plained to appellant “why [he] was there, and what [he] was looking for.” Appellant, who was wearing black pants and a white sweater, denied going to W almart to meet anyone. Instead , appellant said he was in the area to play golf at a nearby course, and then decided to buy fertil izer at Walmart and ice cream at Dairy Queen. Appellant allow ed Detective Albritto n to examine his ph one, but Detectiv e Albritton did not see any evidence of the messages between “Annie” and appell ant. Because he could not positively identify appellant as the man who solicited a sexual encounter from “Annie,” Detective Albritton did not arrest appellant at that time. Detective Albritto n obtained Craigslist re cords identifying th e IP address for the computer that was used to post the initial advertisement. Based on this information, Detec tive Albritton was able to trace the advertisement back to a computer located at a ppellant’s residence in Falls Church. The police executed a search warrant at appellant’s home and r ecovered his personal laptop. On November 11, 2014, Detective Albritto n arrested appellant an d interviewed him. Initially, appellant maintained that he was in Burke to play golf and then decided to stop at Walmart for fertilizer. Eventually, however, he admitted t hat he placed th e Craigslist advertisement, sent the subsequent messages to “Annie,” and went to Walmart to determin e if she “was real.” At trial, appellant, w ho is the CEO of a web design company, a cknowledged that he placed the advertisement in the “casual encounters” section of Craigsl ist. He stated that he thought “Annie” was “playing a round” about her age a nd that she might b e interested in “fantasy, role playing...[or] looking for informa tion.” Appellant also testifie d that he suspected “Annie” was an adult because she sounded like a mature woman when they spoke b y telephone and she recognized- 5 - an actor from a 1990s- era movie. However, he also testified th at he did not believe he was communicating with the actual wo man in the picture “Annie” had sent him. Instead, he thought the individual posing as “Annie” was trying to “scam ” him, and he c ontinued to engag e online because he was “just curious to see what they were going for.” Appella nt also testified that he had no intention of actually meeting someone at Walmart, which is why he provided “Annie” with false information about the type of car he was dri ving and what he wa s wearing. At the conclusion of the evidence, the court instructed the ju ry on the elements of the crime. One instruction included the lan guage, “[t]he Commonwealth must prove beyond a reasonable doubt each of the following elem ents of th[e] crime . . . (3) T hat [appellant] knew, or had reason to believe, that such minor was less than fifteen (15) years of ag e at the time.” 3 The court denied appellant’s request for an altern ative instruction that would h ave required the Commonwealth to prove beyond a reasonable doubt “that [appellant] knew, or beli eved, that such ch ild was less than fifteen (15) years of age at the time.” The court further inst ructed the jury that “[r]eason is a faculty of the mind by which it distingui shes truth from falsehood, goo d from evil, and which enables the possessor to deduce inferences fro m facts or from propositions. ” During deliberations, the jury asked the court for “clarificat ion about the ex act meaning of [‘]had reason to belie ve[’] in the context of minor or not. Sp ecifically, does he have to find the reason credible in order to have [‘]reason to believe.[’]” The court did not specifically answer the question but directed the jury to review the instructions of la w. The jury found appellant guilty. Following his conviction, ap pellant moved to set aside the jury verdict. The court denied h is motion and imposed the jury ’s sentence.

3 This instruction accurately tra cked the wording of Code § 18.2 -374.3.- 6 - DISCUSSION We review a challenge to the constitutionality of a statute de novo . Shivaee v. Commonwealth, 270 Va. 112, 119, 61 3 S.E.2d 570, 5 74 (2005). “[ A]ll acts of the General Assembly are presumed to be cons titutional,” Yamaha Motor Corp. v. Quillian, 264 V a. 656, 665, 571 S.E.2d 122, 126 (2002), and “we are required to resolve any reasonable doubt regarding the constitutionality of a statute i n favor of its validity,” In re Phillips, 265 Va. 81, 85-86, 574 S.E.2d 270, 272 (2003). The burden rests on the party challenging the enactment to prove that the statute is unconstitutional. Mar shall v. N. Va. Trans p. Auth., 275 Va. 41 9, 428, 657 S.E.2d 71, 7 5 (2008). See also Webb v. Commonwealth, 32 Va. App. 337, 347, 528 S.E.2d 138, 143 (2000) (noting that a “heavy burden of proof is thrust upon the party” challenging th e constitutiona lity of a statute (quoting Harrison v. Da y, 200 Va. 764, 770, 107 S.E.2d 594, 598 (1959))). Code § 18.2-374.3(C)(1 ) and (2) provide: It is unlawful for any person 1 8 years of age or older to use a communications system, including but not limited to computers o r computer networks or bulletin boa rds, or any other electronic m eans, for the purposes of s oliciting, with lascivious intent, any per son he knows or has reason to believe is a child younger than 15 years of age to knowingly and intentionally: Expose his sexual or genital pa rts to any child to whom he is not legally married or propose th at any such child expose his s exual or genital parts to such person; Propose that any such child fee l or fondle his own sexual or genital parts or 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. (Emphasis added). Appellant contends that Code § 1 8.2-374.3 is unconstitutional as applied to h im because it criminalizes conduct that is prot ected by the First Amendment, and this overbreadth violates his right to due process. He asserts that he was convicted for inn ocent conduct because no child was- 7 - involved and he “reasonably, obj ectively and correctly believed ” that he was communicating with an adult. Appellant relies on Reno v. Am . Civil Liberties Union, 521 U.S . 844 (1997). I n Reno, the United States Supreme Court struck down two provisions of the C ommunications Decency Act (“the CDA”) that impermissibly restricted protected Internet co mmunication between adults. 521 U.S. at 885. The Court found tha t the contested provisions of the CDA placed an undue burden on protected speech by requiring a p erson sending an online messag e to determine whether a minor was likely to view it. Id. at 876. As the Court reasoned, “[k ]nowledge that, for instance, one or more members of a 100 -person chat group w ill be minor – and the refore that it would be a crime to send the group an indecent messa ge – would surely burden commun ication among adults.” Id. However, Code § 18.2- 374.3 differs significantly from the CDA. Nothing in the Virginia statute restricts co nstitutionally safeguar ded communication be tween adults. Rather, it proscribes the non-constitutionally protect ed solicitation of minors. See , e.g., Podracky v . Commonwealth, 52 Va. App. 130, 139, 662 S.E.2d 81 , 86 (2008) (“[T]he defendant s imply does not have a First Amendment right to pers uade minors to engag e in illegal sex act s.” (quoting United States v. Bailey, 228 F.3d 637, 639 (6th Cir. 2000 ))). A statute crimina lizing the solicitatio n of a minor for sex is different from a statute punishing distribution of indec ent materials. We addressed this precise issue and upheld the constitutionality of Code § 18.2-3 74.3 in Podracky, 5 2 Va. App. at 143, 662 S.E.2d at 88. There, we dis tinguished Reno by noting that Code § 18.2-374.3 only punishes speech that is made “with the i ntent to persuade, induce, entic e or coerce a minor into illegal sexual activity.” Id. at 137 , 662 S.E.2d at 85 (q uoting United States v. Dhingra, 371 F .3d 557, 562 (9th Cir. 2004)). Appellant asserts as a foregone conclusion that he “reasonably [and] objectively” believed that “Annie” was an a dult. However, the credibilit y of his ass ertion was a factual determination,- 8 - properly made by the jury. See, e.g., Stern v. M eisner, 812 F. 3d 606, 611 (7th Cir. 2016) (rejecting defendant’s argument that a similar statut e was unconstitutiona l because it allo wed the jury to convict him where he subjectively believed the victim was an ad ult: “[The defendant’s] argument is not one of legal construction. Rather, it is one based on evid ence and credibility, w hich is the jury’s charge. The jury chose to rejec t his defense.”). The fact fin der is “entitled t o evaluate the reasonableness of [a] defendant’s story.” Pease v. Commonwealt h, 39 Va. App. 342, 357, 573 S.E.2d 272, 279 (2002) ( en banc ). Here, the jury rejected appellant’s explanation that he tho ught he was communicating with an adult, not a minor. Further, the jur y also was entitled to reject appellant’s explanation that he was at Walmart not to meet a th irteen-year-old girl with whom he had been communicating, but to d iscover the identity of an adul t who had tried to “scam” him. “[T]he jury was not required to be lieve the defend ant’s explana tion, and if that explanation is not believed, the jury may infer th at the accused is lying to conce al his guilt.” Id. (citing Black v. Commonwealth, 222 Va. 838, 842, 284 S.E.2d 608 , 610 (1981)). To find appellant gu ilty, the jury was required to determine th at appellant “knew, or had reason to believe” that he was communicating with a minor. The record is replete with evidence supporting the jury’s conclusion . Detective Albritton unequivo cally held himself out to appellant as a thirteen-year-old girl, “Annie.” On three different occasion s, in emails and a telephone conversation, “Annie” reiterate d that she was thirteen years ol d. Appellant never communicated to “Annie” that he would not be interested in someone who was actu ally thirteen years old; instead, he continued to solicit her for se xual activities by stating that he was “horny” and wanted to engage with her in the activities he ref erenced in his advertisement. Appellant also told her that he wanted to “kiss [her] and get naked with [her,] then touch [her] body all over and [she] c an touch [him] all over too.” Further, appellant drove some distance from his hom e in Falls Church to the Burke Walmart near “Annie’s” house whe re they arranged to meet. Base d on appellant’s continued- 9 - conversation with “Annie,” and his attempt to meet her in perso n, the jury was entitled to conclude that he knew or had reason to believe he was soliciting a minor

. Appellant’s reliance on Sandstrom v. Montana, 442 U.S. 510 (197 9), is misplaced. In Sandstrom, the United States Supr eme Court ruled that a jury in struction advising that “a person intends the ordinary consequence s of his voluntary acts” violat ed the constitutiona l requirement that the prosecution prove every element of the offense beyond a rea sonable doubt. 442 U.S. at 517-19. The Court held that based on the instruction, a “reasonable jur or could have given the presumption conclusive or persuasion-shifting effect.” Id. at 519. Here, the jury instructions did not involve any burden-shifting presumptions. The court properly instructed th e jury that it was the Commonwealth’s burden to prove bey ond a reasonable doubt every element of the crime of using a computer to solicit a minor. Further, the statute was constitu tional as applied to appellant because in convicting him, the jury was gui ded by the instruction that “re ason” is the capacity to distinguish truth from falsehood. Finally, this case differs from McDonnell v. United States, 136 S. Ct. 2355 (2016), also relied upon by appellant. In McDonnell, the United States Supr eme Court held that the jury instruction defining “official act” in a bribery prosecution wa s legally erroneous and “raise[d] significant constitutional concerns.” Id. at 2372. The Suprem e Court determined that the government’s overbroad definition of “official act” “would like ly chill federal offi cials’ interactions with the people they s erve and thus damage their ability effect ively to perform the ir duties.” Id. Here, however, the jury determined that appellant knew or had r eason to believe he was communicating with a minor, and therefore , no constitutional ri ght was implicated. Appellant’s contention that the statute is unconstituti onal as applied to h im requires us to find the jury’s factual determination concerni ng his credibility was “plainly w rong or without evidence to support it.” See- 10 - Lynn v. Commonwealth, 27 Va. App . 336, 351, 499 S.E.2d 1, 8 (19 98). We decline to make that finding. By enacting Code § 18.2 -374.3, the General Assembly “clearly intended to protect children from people who would t ake advantage of them before the perpetrator could commit a sexual assault on an actual child.” Gra fmuller v. Commonwealth, 57 Va . App. 58, 65, 698 S.E.2d 276, 280 (2010). The legislature’s atte mpt at preventing child sexual a buse “reflects legitima te state interests in maintaining comprehensive cont rols over harmful, constitutio nally unprotected conduct.” Broadrick v. Oklahoma, 4 13 U.S. 601, 615 (1973). Accordingly, we affirm appellant’ s conviction for using a compu ter to solicit a minor, in violation of Code § 18.2-374.3. Affirmed.