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Commonwealth v. Murgia

Supreme Court of Virginia

May 16, 2019





         In this appeal we determine whether the evidence adduced in a criminal trial was sufficient to sustain a conviction under Code § 18.2-374.3(D), which prohibits the use of "a communications system . . . for the purposes of soliciting, with lascivious intent," an adolescent between the ages of 15 and 18 to commit certain sexual acts as specified by Code § 18.2-374.3(C).


         This case is before us following an appeal and remand to the Court of Appeals of Virginia, which originally decided the issue in an unpublished opinion. Murgia v. Commonwealth, Record No. 0788-16-1 (May 30, 2017). In that opinion, a divided panel of the Court of Appeals reversed the conviction of Mark David Murgia, in the Circuit Court of the City of Chesapeake, for the criminal solicitation of a sixteen-year-old female high school student ("A.L.") using a communications system in violation of Code § 18.2-374.3(D). Relying on Ford v. Commonwealth, 10 Va.App. 224 (1990), the panel majority concluded that the words used in Murgia's text messages to A.L. "standing alone" were merely expressions of his own sexual desire and did not constitute an entreaty or effort to persuade A.L. to engage in any illegal sexual conduct as required to support a conviction for a violation of Code § 18.2-374.3(D). The dissenting member of the panel concluded that the panel majority had disregarded the standard of review by failing to defer to the findings of fact made by the trial judge in Murgia's bench trial.

         The Commonwealth sought a review of the Court of Appeals' decision in this Court. While that appeal was pending, this Court issued its opinion in Dietz v. Commonwealth, 294 Va. 123 (2017). Dietz involved the application of Code § 18.2-374.3(B), which prohibits the use of "a communications system . . . for the purposes of procuring or promoting the use of a minor" for taking indecent liberties with a child or for the production of child pornography. In affirming Dietz's conviction, we concluded that the gravamen of the offense was whether "the purpose of Dietz's communication was to move forward with a scheme of taking indecent liberties with [the minor] as proscribed under Code § 18.2-370, though such crime under Code § 18.2-370 may not have yet been completed." Id. at 137.

         Although Dietz involved the application of a different subsection of Code § 18.2-374.3, the rationale of our opinion upholding the conviction was potentially applicable to any act of sexual solicitation under the general scheme of that statute. Accordingly, by order entered on March 22, 2018, we granted the Commonwealth's appeal and remanded the case to the Court of Appeals to reconsider its ruling in light of our decision in Dietz.

         Upon remand, the Court of Appeals received the parties' briefs regarding the potential application of Dietz. Thereafter, the Court issued an order dated June 19, 2018 stating that it "does not believe Dietz is applicable to this case" and again reversed Murgia's conviction for the reasons stated in the panel's original opinion of May 30, 2017.

         We now consider the merits of the Commonwealth's appeal. The Commonwealth appeals from the Court of Appeals' decision reversing Murgia's conviction by its May 30, 2017 opinion and its June 19, 2018 order. The Commonwealth has assigned four errors to the decision of the Court of Appeals. However, these may be reduced to the composite issue of whether the Court of Appeals erred in finding that the evidence adduced at trial, and the reasonable inferences that the factfinder could draw therefrom, was insufficient to support Murgia's conviction for violating Code § 18.2-374.3(D). For the reasons that follow, we hold that the evidence was sufficient to establish beyond a reasonable doubt that Murgia's communications with A.L., when viewed in the overall context of his relationship with A.L., constituted a violation of the statute.


         This case, which presents an issue of first impression with respect to the quantum of evidence required to sustain a conviction under Code § 18.2-374.3(D), necessarily involves the use of a communication system conveying sexually explicit language between an adult and an adolescent. It is axiomatic that the nature of such communications is "inappropriate," which Murgia's counsel conceded at trial. Indeed, such communications are repugnant to persons of common sensibilities. We stress, however, that the issue at trial and in this appeal is not whether the communications between Murgia and A.L. were merely inappropriate and repugnant. Rather, the issue is whether the language used, without more, would permit the trier of fact to conclude beyond a reasonable doubt that Murgia used a communications system "for the purposes of soliciting, with lascivious intent" A.L. to commit a sexual act as defined by Code § 18.2-374.3(C).

         Murgia, who was forty years old, once served as a "specialty coach" for A.L.'s high school track team. A.L. was sixteen years old, a member of that team and a cheerleader. Murgia and A.L. had exchanged cell phone numbers and began communicating by "text messages" in October 2014 concerning her efforts to improve her skills in the high jump.[1] As relevant to this appeal, the Commonwealth introduced text messages recovered from A.L.'s phone involving three separate conversations on March 9, 2015, March 20, 2015, and March 21, 2015 respectively.

         On the evening of March 9, 2015, A.L. texted Murgia to advise him that she had "jumped today and cleared 5'0 which was starting height . . . I would really love to work with you sometime soon bc I have to jump 5'4 by the end of outdoor cause I know I can do it." A.L. indicated that she would likely not be able to meet with Murgia until after an upcoming track meet. Shortly thereafter, Murgia responded, "ok sweet, we need to meet on our own also…if u can." A.L. responded, "Yess, we do.. That's not a problem." A.L. told Murgia that they could schedule a therapy session at the school after the track meet. Murgia responded, "ok cool … I'm gonna stretch your tight ass legs out and loosen them hips up too," to which A.L. replied, "Okay lol that's fine. I'm willing to do whatever I gotta do." Murgia then told A.L. that he would work with her so long as it wasn't "too much" for her. She responded, "It will never be too much, I know what I want and it's to clear 5'4."

         A.L. texted Murgia again asking Murgia if he could be available to coach her "all the time." Murgia responded, "Yeah I can do that boo … ill b ur secret." A.L. responded, "I have to get better and you're the only person I know that can focus their time just on me." Murgia responded, "I like it when u get possessive," further saying that "I like working with yo sexy self[.] Sorry if I'm blunt ...

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