                                 COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Kelsey and Petty
Argued by teleconference


MATTHEW DAVID DETZLER
                                                                 MEMORANDUM OPINION * BY
v.       Record No. 1779-08-4                                   JUDGE ROBERT J. HUMPHREYS
                                                                       APRIL 6, 2010
COMMONWEALTH OF VIRGINIA


                      FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                                William T. Newman, Jr., Judge 1

                   Matthew David Detzler, pro se (Calvin Steinmetz; Law Offices of
                   Calvin Steinmetz, on briefs), for appellant. 2

                   Erin M. Kulpa, Assistant Attorney General (William C. Mims,
                   Attorney General, on brief), for appellee.


         Matthew David Detzler (“Detzler”) appeals his convictions for using electronic means to

solicit sex with a minor (two counts), in violation of Code § 18.2-374.3(B), and his convictions for

attempted indecent liberties (two counts), in violation of Code § 18.2-370. Detzler makes two

principal arguments on appeal. First, Detzler contends that the trial court abused its discretion in

allowing the Commonwealth to introduce evidence of prior bad acts. Second, Detzler argues that

the circuit court abused its discretion in refusing to allow him to present expert testimony

concerning Internet chat rooms, Internet behavior, Internet sex, role-playing, grooming, and

fantasies on the Internet. For the following reasons, we affirm all of Detzler’s convictions.


         *
             Pursuant to Code § 17.1-413, this opinion is not designated for publication.
         1
             The Honorable Benjamin N. A. Kendrick presided over the motion in limine.
         2
             Detzler dismissed his counsel prior to oral argument, but after the filing of his opening
brief.
       As the parties are fully conversant with the record in this case, and because this

memorandum opinion carries no precedential value, we recite only those facts and incidents of

the proceedings as are necessary to the parties’ understanding of this appeal. We view those

facts “‘in the light most favorable to the Commonwealth, granting to it all reasonable inferences

fairly deducible therefrom.’” Caison v. Commonwealth, 52 Va. App. 423, 428, 663 S.E.2d 553,

555 (2008) (quoting Zoretic v. Commonwealth, 13 Va. App. 241, 242, 409 S.E.2d 832, 833

(1991)).

       “‘The admissibility of evidence is within the broad discretion of the trial court, and a ruling

will not be disturbed on appeal in the absence of an abuse of discretion.’” Bell v. Commonwealth,

49 Va. App. 570, 576, 643 S.E.2d 497, 500 (2007) (quoting Blain v. Commonwealth, 7 Va. App.

10, 16, 371 S.E.2d 838, 842 (1988)). “However, ‘[a] trial court has no discretion to admit clearly

inadmissible evidence because admissibility of evidence depends not upon the discretion of the

court but upon sound legal principles.’” Commonwealth v. Wynn, 277 Va. 92, 98, 671 S.E.2d 137,

139 (2009) (quoting Norfolk & Western Ry. Co. v. Puryear, 250 Va. 559, 563, 463 S.E.2d 442, 444

(1995)).

                              I. Evidence of Other Crimes or Bad Acts

       Detzler argues that the trial court abused its discretion in admitting evidence of his prior

sexual relationship with C. Smith (“Smith”) in Washington, D.C. Detzler makes four distinct

arguments as to why the admission of this evidence was improper. First, Detzler argues that his

actions with Smith were legal in the District of Columbia at the time and thus did not constitute

proper other crimes or bad acts evidence.3 Second, Detzler contends that his relationship with


       3
          Contrary to his contention, Detzler’s relationship with Smith arguably violated several
federal laws. Regardless, the issue in this case is not whether Detzler’s relationship with Smith
constituted a separate criminal offense, but whether evidence of that relationship is relevant to
prove elements of the instant offenses, as discussed more fully below. See Ortiz v.
Commonwealth, 276 Va. 705, 714, 667 S.E.2d 751, 757 (2008).
                                                 -2-
Smith was “substantially separate and unique” from his relationship with Brooke, 4 and therefore,

those activities were not relevant to prove intent, knowledge or motive. Third, Detzler claims that,

since his identity was not at issue at trial, the evidence of his relationship with Smith was offered

only to show a propensity to commit the offense. Finally, Detzler contends that the prejudice he

suffered as a result of the admission of this evidence outweighed any probative value. We disagree

with all of Detzler’s contentions.

        Generally speaking, “evidence that shows or tends to show crimes or other bad acts

committed by the accused is incompetent and inadmissible for the purpose of proving that the

accused committed or likely committed the particular crime charged.” Morse v. Commonwealth,

17 Va. App. 627, 631, 440 S.E.2d 145, 148 (1994). That said, “[w]ell established exceptions to the

general rule of exclusion of other bad acts evidence apply where the evidence is relevant to show

some element of the crime charged.” Id. This Court has previously held that evidence of a

defendant’s other crimes or bad acts may be admissible when offered:

                “(1) to prove motive to commit the crime charged; (2) to establish
                guilty knowledge or to negate good faith; (3) to negate the possibility
                of mistake or accident; (4) to show the conduct and feeling of the
                accused toward his victim, or to establish their prior relations; (5) to
                prove opportunity; (6) to prove identity of the accused as the one
                who committed the crime where the prior criminal acts are so
                distinctive as to indicate a modus operandi; or (7) to demonstrate a
                common scheme or plan where the other crime or crimes constitute a
                part of a general scheme of which the crime charged is a part.”

Reynolds v. Commonwealth, 24 Va. App. 220, 224, 481 S.E.2d 479, 481 (1997) (quoting Lockhart

v. Commonwealth, 18 Va. App. 254, 258-59, 443 S.E.2d 428, 429 (1994)). Evidence of other


        4
           On June 28, 2006, Detzler entered a chat room designed for adults living in and around
Washington, D.C. In the chat room, Detzler contacted “Brooke Angelo.” Brooke identified herself
as a thirteen-year-old female and entered the chat room under the screen name “dreamin2cheer.” In
fact, Brooke was a persona created by Officer Chris Feltman (“Officer Feltman”) of the Arlington
County Police Department Special Victims Unit. Officer Feltman received special training in the
investigation of Internet crimes against children.

                                                  -3-
crimes or bad acts is also admissible to show intent or “any other relevant element of the offense on

trial.” Ortiz v. Commonwealth, 276 Va. 705, 714, 667 S.E.2d 751, 757 (2008).

       Detzler was charged with violations of Code § 18.2-374.3(B) and Code § 18.2-370. As the

plain language of each section makes clear, the defendant’s knowledge and intent are elements of

both offenses.

       The version of Code § 18.2-374.3(B) under which Detzler was convicted provides:

                 It shall be unlawful for any person 18 years of age or older to use a
                 communications system, including but not limited to computers or
                 computer networks or bulletin boards, or any other electronic means,
                 for the purposes of soliciting any person he knows or has reason to
                 believe is a child less than 18 years of age for . . . (iv) any activity in
                 violation of subsection A of § 18.2-370. As used in this subsection,
                 “use a communications system” means making personal contact or
                 direct contact through any agent or agency, any print medium, the
                 United States mail, any common carrier or communication common
                 carrier, any electronic communications system, or any
                 telecommunications, wire, computer, or radio communications
                 system.

(Emphasis added). 5

       Code § 18.2-370 provides, in pertinent part:

                 A. Any person 18 years of age or over, who, with lascivious
                 intent, knowingly and intentionally commits any of the following
                 acts with any child under the age of 15 years is guilty of a Class 5
                 felony:

                     (1) Expose his or her sexual or genital parts to any child to
                     whom such person is not legally married or propose that any
                     such child expose his or her sexual or genital parts to such
                     person; or


       5
           The current version of Code § 18.2-374.3(B) provides:

                 It shall be unlawful for any person to use a communications
                 system, including but not limited to computers or computer
                 networks or bulletin boards, or any other electronic means for the
                 purposes of procuring or promoting the use of a minor for any
                 activity in violation of § 18.2-370 or § 18.2-374.1.

                                                    -4-
                    (2) [Repealed.]

                    (3) Propose that any such child feel or fondle 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; or

                    (4) Propose to such child the performance of an act of sexual
                    intercourse or any act constituting an offense under § 18.2-361;
                    or

                    (5) Entice, allure, persuade, or invite any such child to enter
                    any vehicle, room, house, or other place, for any of the
                    purposes set forth in the preceding subdivisions of this section.

(Emphasis added).

        “The simple act of proposing or inviting constitutes the completed crime [of indecent

liberties] if the offender is over the age of 18, the act is done with lascivious intent and the victim is

under the age of [15].” Hix v. Commonwealth, 270 Va. 335, 347, 619 S.E.2d 80, 87 (2005)

(emphasis added). Similarly, in order to sustain a conviction under Code § 18.2-374.3(B), the

Commonwealth must prove that the defendant knew or had reason to believe that the person he

solicited was a minor. See Podracky v. Commonwealth, 52 Va. App. 130, 140, 662 S.E.2d 81, 86

(2008) (noting that “[t]he statute applies only to an adult who uses a communications system ‘for

the purposes of soliciting any person he knows or has reason to believe is a minor’”). As Hix and

Podracky demonstrate, Detzler’s knowledge of Brooke’s age was an essential element of each

offense that the Commonwealth was required to prove beyond a reasonable doubt, as was his intent.

        In this case, the Commonwealth sought to introduce evidence of Detzler’s prior relationship

with Smith to prove: (1) that Detzler knew Brooke was under fifteen years of age, (2) that Detzler

acted with the specific intent to commit the underlying crime of indecent liberties,6 and (3)

Detzler’s identity as the perpetrator. Contrary to Detzler’s contention, his relationship with Smith


        6
        To constitute an attempt to commit a crime, an act must be done with the specific intent
to commit that particular crime. See Thacker v. Commonwealth, 134 Va. 767, 114 S.E. 504
(1922).
                                              -5-
was highly relevant to all of these issues. Like Brooke, Detzler met Smith in a chat room designed

for adults. Like Brooke, Smith told Detzler that she was a minor soon after meeting him. In these

conversations, Detzler expressed his desire to teach both Brooke and Smith how to perform certain

sexual acts. Detzler also sent Brooke and Smith videos of himself masturbating.

        Perhaps most significantly, Detzler introduced both Brooke and Smith to his alternate

persona “Annie.” Detzler claimed that Annie was an eighteen-year-old student with whom he had

had a prior sexual relationship. Annie encouraged both Brooke and Smith to have a sexual

relationship with Detzler. Annie stated that Detzler was a “good guy” and a “war hero.” Annie

explained that she was sexually inexperienced prior to meeting Detzler, but Detzler was a good

teacher and put her at ease. 7

        On two separate occasions, Smith met Detzler at his office building where they engaged in

certain sexual acts. Detzler told Smith that “he liked the fact that [Smith] was a lot younger than

most of the girls he had been with.” Detzler’s relationship with Smith demonstrated not only his

knowledge that minors were present in the adult chat rooms, but also his intent to engage in sexual

acts with Brooke, just as he had done with Smith. This evidence also established Detzler’s identity

as the perpetrator. Although Detzler maintains that “identity was not in dispute” at trial, the

Commonwealth was still required to prove Detzler’s identity as the perpetrator of these offenses

beyond a reasonable doubt. The many similarities that exist between Detzler’s conversations with

Smith and his conversations with Brooke do just that, especially Detzler’s use of the “Annie”

persona. Accordingly, we hold that the evidence of Detzler’s relationship with Smith falls within

the “[w]ell established exceptions to the general rule of exclusion of other bad acts evidence,” as it




        7
         At trial, Officer Feltman testified that be believed Detzler used Annie to gain his
victim’s trust. Officer Feltman testified that this type of behavior is referred to as “grooming.”

                                                 -6-
was “relevant to show some element of the crime[s] charged.”8 Morse, 17 Va. App. at 631, 440

S.E.2d at 148.

        Finally, Detzler contends that, even if evidence of his relationship with Smith constitutes

proper other crimes or bad acts evidence, the probative value of such evidence is outweighed by its

prejudicial effect. Again, we disagree.

        Detzler is correct in his assertion that other crimes or bad acts evidence “must meet an

additional requirement: its legitimate probative value must exceed its incidental prejudice to the

defendant.” Ortiz, 276 Va. at 715, 667 S.E.2d at 757. However, “‘[t]he responsibility for balancing

the competing considerations of probative value and prejudice rests in the sound discretion of the

trial court. The exercise of that discretion will not be disturbed on appeal in the absence of a clear

abuse.’” Id. at 715, 667 S.E.2d at 757-58 (quoting Spencer v. Commonwealth, 240 Va. 78, 90, 393

S.E.2d 609, 617 (1990)). 9

        After reviewing the record in this case, we cannot say that the trial court abused its

discretion in admitting evidence of Detzler’s relationship with Smith. This evidence had legitimate

probative value in that it illustrated Detzler’s knowledge that the victim was under fifteen years of

age. In addition, this evidence established both Detzler’s identity as the perpetrator and his specific

intent to commit the underlying crime of indecent liberties. Furthermore, the trial court specifically

instructed the jury to consider this evidence only as relevant to Detzler’s intent, knowledge or


        8
         Furthermore, throughout the trial, Detzler maintained that he believed Brooke was an adult
female “role-playing” as a thirteen-year-old girl. Though the Commonwealth did not offer it for
this purpose, evidence of Detzler’s relationship with Smith would have been highly relevant to rebut
his theory of the case.
        9
         During the motion in limine, Detzler argued that any probative value of his relationship
with Smith was “fully outweighed and totally outweighed by the prejudice” that he would suffer.
After hearing argument from both Detzler and the Commonwealth, the trial court admitted the
evidence. Although the trial court did not make an explicit finding that the probative value of
this evidence outweighed any incidental prejudice to Detzler, we can infer that such a finding
was implicit in its ruling.
                                              -7-
identity, thus dissipating its incidental prejudice to Detzler. See United States v. Hadaway, 681 F.2d

214, 219 (4th Cir. 1982) (“Any such [prejudicial] impact of the evidence was largely dissipated by

the court’s repeated instructions to the jury to consider the evidence only as relevant to intent,

knowledge, motive, plan and preparation with regard to the charged crime.”). That is because the

jury is “presumed to follow prompt, explicit, and curative instructions.” Beavers v.

Commonwealth, 245 Va. 268, 280, 427 S.E.2d 411, 420 (1993). Accordingly, the trial court did not

abuse its discretion in admitting evidence of Detzler’s relationship with Smith.

                                         II. Expert Testimony

        Detzler further contends that the trial court abused its discretion in not allowing him to

present expert testimony from Elizabeth Griffin (“Griffin”), concerning Internet chat rooms, Internet

behavior, Internet sex, role-playing, grooming, and fantasies on the Internet. Again, we disagree.

        “‘The admission of expert testimony is committed to the sound discretion of the trial judge,

and we will reverse a trial court’s decision only where that court has abused its discretion.’” Utz v.

Commonwealth, 28 Va. App. 411, 424, 505 S.E.2d 380, 386 (1998) (quoting Brown v. Corbin, 244

Va. 528, 531, 423 S.E.2d 176, 178 (1992)). “‘It is settled law in Virginia that expert testimony is

inadmissible on matters of common knowledge or those as to which the jury are as competent to

form an intelligent and accurate opinion as is the witness.’” Charles E. Friend, The Law of

Evidence in Virginia § 17-14(a), at 662 (6th ed. 2003) (quoting Grasty v. Tanner, 206 Va. 723,

726, 146 S.E.2d 252, 254 (1966)). However, it is for the trial court to “determine whether the

subject matter of the testimony is beyond a lay person’s common knowledge and whether it will

assist the trier of fact in understanding the evidence or in determining a fact in issue.” Utz, 28

Va. App. at 423, 505 S.E.2d at 386.

        Here, the Commonwealth made a motion to exclude the expert testimony of Griffin.

Detzler proffered that Griffin would testify “that it is not abnormal for an adult heterosexual

                                                  -8-
male to have any type of sexual attraction to post-pubescent [] 16- and 17-year-olds.” In

granting the Commonwealth’s motion to exclude Griffin’s testimony, the trial court specifically

found that the subject matter of the trial testimony was “within the knowledge of the average

juror” and therefore, did not require expert testimony. After examining the record in this case,

we cannot say that the trial court abused its discretion in so finding. Contrary to Detzler’s

contention, Officer Feltman was not “presented to the jury as an expert.” Though Officer

Feltman testified on “grooming,” he was never offered as an expert on the topic. Simply put,

nothing in the record of this case demonstrates that these topics were beyond the knowledge of

the average juror, as the trial court explicitly stated in its ruling. Thus, we hold that the trial

court did not abuse its discretion in refusing to allow Detzler to present expert testimony in this

case.

                                                                                              Affirmed.




                                                  -9-
