THE COURT OF APPEALS OF VIRGINIA
ELIZABETH A. McCLANAHAN, JUDGE
circuit court found Kimberlee Dietz, an elementary school
teacher, guilty under Code § 18.2-374.3(B)
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). 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.
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
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
• "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 ...