Hix v. Commonwealth

619 S.E.2d 80 (2005)

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Nature of the Case

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Facts

D engaged in several electronic communications in an Internet 'chat room' with a person claiming to be a thirteen-year-old girl but was State Police Special Agent C.D. Wells (Heather). When D learned 'Heather's' age, he terminated the internet conversation saying that she was too young. Five minutes later, D contacted Heather again and wrote that he worked in Fredericksburg, lived in Manassas, and worked for the government. The conversation ended with D saying again that Heather was too young. On November 27, 2001, Heather observed that D was online and contacted him. D suggested that he and Heather meet at a local McDonald's restaurant. Heather refused claiming the flu. D asked Heather's age and she again told him she was 13. He repeated his desire to engage in certain sexual acts with her. Heather ended the conversation when D was no longer responding. D was using a computer located at the National Guard Armory in Fredericksburg, and Heather initiated a third contact with D. Heather reminded D that he had previously 'wanted 2 [sic] go to lunch.' D responded that they could 'just ride and mess around.' Heather reminded D that she was 13 years old, and D replied, 'See, I'm messed up . . . . They would put me under the jail for messen [sic] with you[,] girl.' D told Heather he would be at the McDonald's restaurant driving a red Ford Thunderbird coupe. A vehicle matching the description arrived at the McDonald's restaurant about 20 minutes later. D was driving and spoke to officers. D said he was there to meet a thirteen-year-old girl that he had met on the Internet, that the girl's name was Heather Boone and that she was having problems and he was there to see if he could help her. At trial, D testified that Agent Wells' recollection of their conversation at the McDonald's was incorrect and that he, in fact, informed Wells and the other officers that he 'was there to meet somebody who said that they were a thirteen-year-old that he didn't believe.' D's own signed statement affirmed that he agreed to lunch with Heather at her invitation, that he 'felt uncomfortable' but 'thought that she may be in some kinda [sic] trouble as she [said] she was skipping school.' D claimed he was adult 'role-playing' and alternately that he was afraid she was in some kind of trouble and needed his help. D moved to strike the attempted indecent liberties charge on grounds the crime was a 'legal impossibility' as there was no actual 13-year-old girl with whom the taking of indecent liberties could have been accomplished. It was denied and the jury found D guilty of attempted indecent liberties with a child and use of a communication system for soliciting sex with children for his conduct on November 14, 2001. The Court of Appeals denied D's petition for appeal. D appealed.