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Dietz v. Commonwealth

Supreme Court of Virginia

September 7, 2017

KIMBERLEE DIETZ
v.
COMMONWEALTH OF VIRGINIA

         FROM THE COURT OF APPEALS OF VIRGINIA

          OPINION

          ELIZABETH A. McCLANAHAN, JUDGE

         The circuit court found Kimberlee Dietz, an elementary school teacher, guilty under Code § 18.2-374.3(B) [1] of the crime of using a cell phone for "purposes of procuring or promoting" one of her 11-year-old students for activity that would violate Code § 18.2-370 (taking indecent liberties with children).[2] Upholding the conviction, the Court of Appeals of Virginia rejected Dietz's argument that the Commonwealth's evidence was insufficient to prove she committed the offense. We affirm the judgment of the Court of Appeals.

         I. BACKGROUND

         Dietz and the Commonwealth stipulated to the following evidence at the beginning of her bench trial on the charge of violating Code § 18.2-374.3(B). Dietz was a teacher at an elementary school in the City of Hampton and the victim, G.S., an 11-year-old boy, was one of her students. G.S. gave Dietz the number to his cell phone at Dietz's request, claiming that another student wanted it. Dietz then began texting messages to G.S., stating among other things that he was "cute" and she wished he was 18 years old so they could "be together." None of those text messages to G.S. that had been saved on his phone at that time were "lascivious" in nature. However, G.S. deleted other text messages from Dietz at her request. G.S.'s parents subsequently discovered that Dietz and G.S. were texting each other during one such exchange of messages and contacted the City of Hampton Police Department ("CHPD"). G.S.'s cell phone was then turned over to Detective Randy Mayer. In light of these stipulations, the Commonwealth did not deem it necessary to call either G.S. or his parents as witnesses to testify at Dietz's trial.

         The remainder of the Commonwealth's case was presented through the testimony of Detective Mayer and Karyn Buhrman, a CHPD forensic specialist. As they explained, while posing as G.S., Mayer, with Buhrman's assistance, texted Dietz on G.S.'s cell phone in continuation of the text messaging between Dietz and G.S. earlier that day. During this exchange, Dietz sent five pictures from her phone to G.S.'s phone, believing she was sending them to G.S. Four of the pictures were of Dietz's legs, face, lips, and a portion of her breasts, while she was lying in a bathtub. The Commonwealth introduced these pictures at trial through Mayer and Buhrman, along with a five-page transcript of their text-message conversation with Dietz. Believing she was texting G.S., Dietz made the following series of statements as reported in the transcript:

• "[N]o one is as cute as you!!!!"
• When told she was "hot, " Dietz said: "it makes me feel like I'm on one of those cop shows when they catch teachers texting with students[.]"
• "[T]ak[ing] a picture of myself in a bubble bath . . . is soooo inappropriate! . . . It's illegal-if it wasn't this would be sooo different but it is!"
• "I like you a lot but I shouldn't."
• "You're so smart and funny and cute and in a few years you are gonna be so sexy and girls will be all over you!"
• "What do you want [G.S.]? You want me? I like you too but . . . as far as any one in the world is concerned I can't do anything with you-I can't even kiss you. I'd be a pervert and lose my job! You need to be with girls your age. Prove me wrong though PLEASE!! Come knocking on my door in 6 more years when you turn 18 and I'll do whatever you want! I could probably lose my job for saying that but I'm serious!"
• "You are so sweet to me and give me attention that my husband didn't even give me."
• "[A]s much as you might think you want to do something with me it would make me a bad person."
• After sending the picture of her legs in the bathtub, Dietz said: "The guy I went on a date with liked my legs. He said they were long and sexy! . . . What do you wanna see[?] I could go to jail ...

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