VIRGINIA:
       In the Supreme Court of Virginia held at the Supreme Court building in the
City of Richmond on Thursday the 1st day of August 2019.
Present: All the Justices

Robert Leigh Stoltz,                                                                 Appellant,

against                Record No. 181033
                       Court of Appeals No. 0352-17-4

Commonwealth of Virginia,                                                            Appellee.

                                                             Upon appeal from a judgment
                                                      rendered by the Court of Appeals of
                                                      Virginia.


       Robert Leigh Stoltz challenges his conviction for violating Code § 18.2-374.3(C) by
using a computer for the purpose of soliciting a minor. Stoltz claims that the statute is both
vague and overbroad, thus violating his freedom of speech and his due process rights under the
First and Fourteenth Amendments of the United States Constitution. The trial court and the
Court of Appeals disagreed with Stoltz, as do we.
                                                 I.
       “On appeal, we review the evidence in the ‘light most favorable’ to the Commonwealth,
the prevailing party in the trial court.” Commonwealth v. Perkins, 295 Va. 323, 323 (2018) (per
curiam) (citation omitted). “Viewing the record through this evidentiary prism requires us to
‘discard the evidence of the accused in conflict with that of the Commonwealth, and regard as
true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn
therefrom.’” Id. at 323-24 (citation omitted).
       So viewed, the record shows that in 2014, the Fairfax County Police Department operated
a Child Exploitation Unit (“CEU”) dedicated to, among other things, investigating “solicitations
of minors by adults using the [I]nternet as the main source of that solicitation.” 1 J.A. at 272-73.
Working in an “undercover capacity,” CEU detectives would pose as minors and appear on
websites “looking for potential child predators.” Id. at 273-74. In November 2014, a CEU
detective posed as a 13-year-old girl named Annie and accessed the Casual Encounters webpage
of Craigslist. At that time, the Casual Encounters webpage allowed individuals to post
advertisements seeking casual, anonymous sex. A notification on that webpage stated that only
adults could use it, but, as the detective testified, “there’s no verification of any kind” because
the user does not “have to provide a name, an email address, [or] an identification. So it’s open
to everybody.” Id. at 275-76. Based upon his prior “training and experience with child
exploitation investigations,” the detective knew that minors accessed the Casual Encounters
webpage of Craigslist. Id. at 276-77. 1
       The detective scanned through the advertisements on the Casual Encounters webpage and
discovered an advertisement, later confirmed to have been posted by Stoltz, entitled: “Can I
CUM on you? Quick shot and heavy load! - m4w - 34 (northern va).” Commonwealth’s Ex.
1 (emphasis in original). 2 Accompanied by a picture of an erect penis, the pertinent part of
Stoltz’s advertisement stated:
               Sorry for the repost - but too many flakes...
               Still so horny - blue balls type weekend. I really really need to
               shoot my load and would love to shoot it on someone who is
               turned on by cum shots, cum fetishes, or just loves to get cummed
               on. Also anyone that is curious about it too... I can be quick - or
               not - your call.
               I will cum wherever you want me to -->
               ass/chest/face/mouth/pussy/stomach/feet, etc. You will need to
               host at your place -- or your office -- car.




       1
          This webpage on the Craigslist website has been the source of numerous child-
solicitation cases. See, e.g., United States v. Rocha, No. 2:13-cr-00269-LDG (GWF), 2014 WL
6983311, at *3-4 (D. Nev. Dec. 10, 2014) (unpublished); Lee v. State, 258 So. 3d 1297, 1299-
1300 (Fla. 2018); State v. Shelley, 176 So. 3d 914, 916-17 (Fla. 2015); State v. Keller, No.
COA17-1318, ___ S.E.2d ___, ___, 2019 WL 2180368, at *1-2 (N.C. Ct. App. May 21, 2019);
State v. Racus, 433 P.3d 830, 832-33 (Wash. Ct. App.), review denied, 441 P.3d 828 (Wash.
2019) (unpublished table decision); State v. Solomon, 419 P.3d 436, 438-40 (Wash. Ct. App.
2018). Responding to this fact, Congress recently passed the “Allow States and Victims to Fight
Online Sex Trafficking Act of 2017.” See Pub. L. No. 115-164, 132 Stat. 1253 (2018) (codified
as amended at 18 U.S.C. §§ 1591(e), 1595, 2421A and 47 U.S.C. § 230(e)). In 2018, Craigslist
removed the entire “personals” section, which included the Casual Encounters webpage, from its
website. See Green v. Commonwealth, No. 2017-CA-000663-MR, 2018 WL 4847083, at *1 n.2
(Ky. Ct. App. Oct. 5, 2018) (unpublished).
       2
        Quotations from Stoltz’s advertisement and from the messages between Stoltz and
Annie are repeated verbatim herein without alterations.

                                                  2
                Safe, VERY clean, normal, and cute white-guy here. Athletic
                physique with a good sized and very cum filled cock. Discrete.

Id. (alterations in original).
        Stoltz’s advertisement caught the detective’s eye because some advertisements on that
webpage (he did not specify what percentage) would expressly say: “I’m looking for an adult, or
I’m looking for an age range . . . twenty to twenty-five, or eighteen and over.” 1 J.A. at 329.
The “vagueness” of Stoltz’s advertisement drew the detective’s attention based on his
“experience working these types of investigations” and the fact that “[t]here was nothing
specifically asking for an adult.” Id. Having “responded and looked at thousands” of
advertisements on Craigslist and similar websites, the detective had “never seen” an
advertisement that explicitly said an adult was looking for sex with a minor. Id. at 329-30.
Pedophiles are never that direct, the detective explained, because “Craigslist would remove the
ad immediately” if it expressly sought out a minor. Id. at 330.
        The detective responded to Stoltz’s advertisement posing as 13-year-old Annie, stating
that she was not in school that day. When Annie offered to send a photograph of herself, Stoltz
responded that he would love to see one. The detective sent Stoltz a picture of the face of an
adult Fairfax County animal control officer. Pictures of the animal control officer, a 25-year-old
with a youthful face, had been used in prior undercover investigations. The email conversation
through Craigslist continued with Annie asking what Stoltz wanted to do. Annie also asked
Stoltz whether it was okay that she could not drive. Stoltz responded that he would “like to do
what I said in my post, but am open. What do you have in mind?” Commonwealth’s Ex. 2.
Regarding Annie not being able to drive, he stated, “I can drive to you so no worries.” Id.
        The conversation moved from the Craigslist emails to Yahoo Messenger when Stoltz
provided Annie with his Yahoo email address. During that portion of the conversation, Annie
further explained that her parents were out of town and that she was home alone and out of
school. When Stoltz asked her why she had looked on Craigslist, Annie responded that she was
“curious and stuff,” to which Stoltz responded, “I hear taht.” Commonwealth’s Ex. 3. When
Annie asked Stoltz again what he was planning, Stoltz responded, “I’m really open - but if
you’re curious maybe I can help?” Id. Stoltz asked Annie, “do you like kissing?” and “have you
kissed a boy before?,” to which Annie responded in the affirmative. Id. Annie then asked Stoltz
“wut else” he had in mind, and Stoltz asked Annie if she “like[d] being touched,” to which Annie
responded, “i haven’t been touched b4 sorry.” Id. Annie asked again what the two were “going

                                                 3
to do,” and Stoltz responded, “well - i like kissing and touching - would you be interested in
touching me?” Id. When Annie asked Stoltz for further clarification, Stoltz responded, “i’d like
to kiss you and get naked with you. then touch your body all over and you can touch me all over
too.” Id.
       Annie then asked for a phone call with Stoltz to ensure that he was real. Stoltz was
initially reluctant to give out his phone number but eventually gave Annie an anonymous phone
number through Google Voice that could not be traced back to his phone. The detective had a
female colleague, mimicking the voice of a young female, talk to Stoltz on the phone while
posing as Annie. The two agreed to meet at a Walmart near where Annie supposedly lived.
       Stoltz arrived at Walmart at the appointed time, and the detective and his team observed
Stoltz walking near the area where Stoltz had arranged to meet Annie. Stoltz also appeared to be
on his phone, and the detective, still posing as Annie, was continuing to receive text messages
from Stoltz during this time. When Stoltz eventually left the Walmart parking lot, the detective
and his team initiated a traffic stop. When the detective told Stoltz why he was there, Stoltz said
that he knew nothing about any contact with Annie and that he was not there to meet anybody.
Stoltz gave the detective permission to look through his phone, but the detective found nothing
relevant and concluded that the phone’s browsing history had been deleted. The detective did
not arrest Stoltz at that time. Shortly thereafter, the detective sent an administrative subpoena to
Craigslist, which confirmed that the IP address associated with the original advertisement was
tied to Stoltz’s home. The detective then obtained a search warrant for Stoltz’s home and
eventually arrested Stoltz.
       Stoltz was charged with one count of computer solicitation of a minor and one count of
attempted indecent liberties with a child. His first trial ended in a hung jury. At Stoltz’s second
trial the court gave, at Stoltz’s request and over the Commonwealth’s objection, an instruction
explaining the reason-to-believe concept found in the computer-solicitation statute. The
instruction defined “[r]eason” as “a faculty of the mind by which it distinguishes truth from
falsehood, good from evil, and which enables the possessor to deduce inferences from facts or
from propositions.” R. at 234. During its deliberations, the jury asked for clarification as to
whether the phrase “reason to believe” in the statute meant that Stoltz had to “find the reason
credible.” Id. at 218 (emphasis in original). The trial court referred the jury to the instructions.




                                                  4
See id. The jury thereafter convicted Stoltz of computer solicitation of a minor but found him
not guilty of attempted indecent liberties with a child.
       Stoltz moved for a new trial. He claimed that the jury’s question, along with post-verdict
conversations with a juror, had revealed that the statute’s use of the phrase “reason to believe,”
Code § 18.2-374.3(C), was unconstitutionally vague in violation of his Fourteenth Amendment
rights and overbroad in violation of his First Amendment rights. The trial court denied the
motion, and Stoltz appealed to the Court of Appeals raising the same constitutional arguments.
In an unpublished opinion, the Court of Appeals found that Stoltz had waived any facial
challenge to the statute at oral argument and that his remaining as-applied challenges were
meritless. See Stoltz v. Commonwealth, Record No. 0352-17-4, 2018 WL 3027015, at *1 n.1,
*3-5 (Va. Ct. App. June 19, 2018). Stoltz now appeals to us.
                                                 II.
       Stoltz argues that the Court of Appeals erred in not finding Code § 18.2-374.3(C)
unconstitutional, both facially and as applied, under the First and Fourteenth Amendments of the
United States Constitution. The challenged statute states, in relevant part:
               It is unlawful for any person 18 years of age or older to use a
               communications system . . . for the purposes of soliciting, with
               lascivious intent, any person he knows or has reason to believe is a
               child younger than 15 years of age to knowingly and intentionally
               [engage in various sexual acts].

Code § 18.2-374.3(C) (emphasis added). Stoltz argues that the phrase “reason to believe,” id.,
renders this statute unconstitutionally vague and overbroad. We disagree.
                                                 A.
       The Court of Appeals found that Stoltz had “abandoned” any argument regarding facial
unconstitutionality in his oral argument before that court and had thus limited himself to an as-
applied challenge to the statute. See Stoltz, 2018 WL 3027015, at *1 n.1. Although Stoltz claims
that he did not abandon his facial challenge, he does not assign error to the abandonment finding
of the Court of Appeals. See Rule 5:17(c)(1)(i). As we have recently emphasized, “[a]n
assignment of error is not a mere procedural hurdle an appellant must clear in order to proceed
with the merits of an appeal. Assignments of error are the core of the appeal.” Forest Lakes
Cmty. Ass’n v. United Land Corp. of Am., 293 Va. 113, 122 (2017) (emphasis in original).
“With the assignment of error, an appellant should ‘lay his finger’ on the alleged misjudgment of
the court below.” Id. at 122-23 (quoting Martin P. Burks, Common Law and Statutory Pleading

                                                  5
and Practice § 425, at 827 (T. Munford Boyd ed., 4th ed. 1952)). In this way, “[a] properly
aimed assignment of error must ‘point out’ the targeted error and not simply take ‘a shot into the
flock’ of issues that cluster around the litigation.” Id. at 123 (citation omitted).
       To mount a successful facial challenge, “the challenger must establish that no set of
circumstances exists under which the [statute in question] would be valid,” as opposed to an as-
applied challenge, in which the challenger alleges “that the [statute in question] is
unconstitutional because of the way it was applied to the particular facts of [his] case.” United
States v. Salerno, 481 U.S. 739, 745 & n.3 (1987). Given Stoltz’s comingling of facial and as-
applied concepts, however, we will assume without deciding that both theories are subsumed in
his assignment of error. Doing so, however, does not change the result. Neither his void-for-
vagueness challenge nor his overbreadth challenge has any legal merit.
                                                  B.
       “[T]he void-for-vagueness doctrine requires that a penal statute define the criminal
offense with sufficient definiteness that ordinary people can understand what conduct is
prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.”
Beckles v. United States, 137 S. Ct. 886, 892 (2017); see also Johnson v. United States, 135 S.
Ct. 2551, 2556 (2015). “Void for vagueness simply means that criminal responsibility should
not attach where one could not reasonably understand that his contemplated conduct is
proscribed.” United States v. National Dairy Prods. Corp., 372 U.S. 29, 32-33 (1963) (emphasis
added). When considering a vagueness challenge, a court will assess whether the statute at issue
               is vague “not in the sense that it requires a person to conform his
               conduct to an imprecise but comprehensible normative standard,
               but rather in the sense that no standard of conduct is specified at
               all.” Such a provision simply has no core. This absence of any
               ascertainable standard for inclusion and exclusion is precisely what
               offends the Due Process Clause.

Smith v. Goguen, 415 U.S. 566, 578 (1974) (citation omitted). The general requirement that a
criminal statute contain a mens rea element “is not to say that a defendant must know that his
conduct is illegal before he may be found guilty” because all he really must know are “‘the facts
that make his conduct fit the definition of the offense,’ even if he does not know that those facts
give rise to a crime.” Elonis v. United States, 135 S. Ct. 2001, 2009 (2015) (citation omitted).
Nor does a statutory standard lose its constitutional moorings by drawing some rather fine lines.
After all, “the law is full of instances where a man’s fate depends on his estimating rightly . . .


                                                   6
some matter of degree.” Johnson, 135 S. Ct. at 2561 (quoting Nash v. United States, 229 U.S.
373, 377 (1913)).
       Code § 18.2-374.3(C) does not run afoul of these settled vagueness principles. The
phrase “knows or has reason to believe,” Code § 18.2-374.3(C), is not ambiguous. A multitude
of federal courts have found similar language impervious to vagueness challenges. 3 Moreover,
many similar provisions appear in the Virginia Code, 4 and we have never questioned their
constitutionality. We similarly find no fault with Code § 18.2-374.3(C). The statute advances its
goal of combating the sexual exploitation of children by unmistakably saying that no adult may
use a communications system for the purpose of soliciting an individual that “he knows or has
reason to believe is a child younger than 15 years of age,” id. We believe that an ordinary person
would understand what conduct this statute prohibits. This conclusion effectively ends the
matter. Only if people of “common intelligence must necessarily guess at [the statute’s]
meaning and differ as to its application” will a statute be deemed void for vagueness. Connally
v. General Constr. Co., 269 U.S. 385, 391 (1926).
       Stoltz had reason to believe that Annie was younger than 15. After openly soliciting a
sexual encounter without expressing or even implying any disinterest in juveniles, Stoltz


       3
          See, e.g., Gorin v. United States, 312 U.S. 19, 27-28 (1940) (“intent or reason to
believe”); United States v. Mena, 342 Fed. Appx. 656, 658 (2d Cir. 2009) (“reason to believe”);
United States v. Bewig, 354 F.3d 731, 737-38 (8th Cir. 2003) (“knowing, or having reason to
know”); Rojas-Garcia v. Ashcroft, 339 F.3d 814, 822-23 (9th Cir. 2003) (“reason to believe”);
United States v. Saffo, 227 F.3d 1260, 1268-70 (10th Cir. 2000) (“knowing or having reasonable
cause to believe” and other “essentially identical” mens rea requirements in federal statutes);
United States v. Biro, 143 F.3d 1421, 1429-30 (11th Cir. 1998) (“having reason to know”);
United States v. Wuliger, 981 F.2d 1497, 1503-04 (6th Cir. 1992) (“reason to know”); United
States v. Featherston, 461 F.2d 1119, 1120-23 & n.1 (5th Cir. 1972) (“knowing or having reason
to know”).
       4
         Many Virginia criminal statutes use the phrase “reason to believe.” See Code §§ 3.2-
3214, -6588, 4.1-304(A), -306(A), 18.2-64.1, -109, -180, -308.2:2(M), -331, -348, -349, -371.2, -
371.3, 44-110, 46.2-616, 54.1-2967, -4103, 57-57(B). Others use the similar phrase “reason to
know.” See Code §§ 2.2-3103.1, 4.1-306(A1), -332(A), 18.2-46.2(A), -51.1, -55(B), -57(C)-(E),
-57.01, -57.02, -186.4, -190.3, -192, -370.2, -370.3(A), -370.4(A), -370.5(A), -371.4, -386.2(A),
-391(A), -433.2(1), 19.2-62(A)(3)-(4), -63, 23.1-225(C)(1), 58.1-3(F), -1033(1), -1036(B),
-2273, -2299.10(6), 59.1-293.11(C), -332(B). A multitude of criminal statutes in the United
States Code also use these phrases. See, e.g., 10 U.S.C. § 894 art. 94(a)(3); 15 id. §§ 158, 2614;
16 id. §§ 63, 98, 117c, 127, 170, 204c, 374, 395c, 404c-3, 408k, 4306(a)(2); 18 id. §§ 48, 231,
491, 793, 1039, 1384, 1521, 1992(a)(4), 2251, 2511(1), 2512; 42 id. §§ 1320c-6(a)(2), 2277; 47
id. § 605(e)(4); 49 id. § 60123(d)(2)(B); 50 id. § 783(a).

                                                7
received a response from Annie, who informed him that she was “only 13” and was “off of
school” that day. Commonwealth’s Ex. 2. She immediately followed with, “if i’m 2 young tahts
ok and i wont’ bother u.” Id. When Stoltz responded, “23 isn’t too young,” Annie reaffirmed:
“13 not 23 hehe.” Id. Annie further informed Stoltz that she was “home alone” because her
parents were out of town. Id. She stated that it was the “first time they’ve let me stay alone” and
that there had been “no school today” “or yestreday.” Commonwealth’s Ex. 3. When Annie
sent Stoltz the picture of the animal control officer, Stoltz replied, “you’re very cute! :),”
Commonwealth’s Ex. 2, not “you’re cute but you look too old to be 13.” The jury saw this
picture, along with all of the communications between Stoltz and Annie, and heard the animal
control officer testify in person. These facts, in aggregate, do not prove that Stoltz actually knew
that Annie was underage. But they amply demonstrate that he had reason to believe that she
was. 5 At the moment that Stoltz obtained such reason to believe, his use of the Internet for the
purpose of solicitation became a crime. 6
                                                  C.
       We also find no merit in Stoltz’s First Amendment challenge to the statute. Overbreadth
under the First Amendment is a doctrine of “last resort,” and its “limited” function
               attenuates as the otherwise unprotected behavior that it forbids the
               State to sanction moves from ‘pure speech’ toward conduct and
               that conduct — even if expressive — falls within the scope of
               otherwise valid criminal laws that reflect legitimate state interests
               in maintaining comprehensive controls over harmful,
               constitutionally unprotected conduct. Although such laws, if too
               broadly worded, may deter protected speech to some unknown
               extent, there comes a point where that effect — at best a
               prediction — cannot, with confidence, justify invalidating a statute


       5
         Though it was unnecessary for the trial court to give a specific instruction on the reason-
to-believe concept, the court did just that at Stoltz’s insistence and over the Commonwealth’s
objection. The jury was instructed that, under Virginia law, “[r]eason is a faculty of the mind by
which it distinguishes truth from falsehood, good from evil, and which enables the possessor to
deduce inferences from facts or from propositions.” R. at 234. Given our holding, we need not
address the trial court’s decision to give this instruction.
       6
          We survey the factual circumstances of Stoltz’s case not to imply that Code § 18.2-
374.3(C) is free from fatal constitutional vagueness “merely because there is some conduct
[Stoltz’s in particular] that clearly falls within the provision’s grasp,” Johnson, 135 S. Ct. at
2561. Instead, we believe that the linguistic range of the reason-to-believe standard in the statute
is understandable to ordinary people, including Stoltz, and that his specific reasons to believe
that Annie was underage were plainly evident from the record.

                                                   8
               on its face and so prohibiting a State from enforcing the statute
               against conduct that is admittedly within its power to proscribe.

Broadrick v. Oklahoma, 413 U.S. 601, 613-15 (1973). “[I]t has never been deemed an
abridgement of freedom of speech or press to make a course of conduct illegal merely because
the conduct was in part initiated, evidenced, or carried out by means of language, either spoken,
written, or printed.” Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502 (1949). Thus,
“particularly where conduct and not merely speech is involved, we believe that the overbreadth
of a statute must not only be real, but substantial as well, judged in relation to the statute’s
plainly legitimate sweep.” Broadrick, 413 U.S. at 615.
       Code § 18.2-374.3(C) does not target speech, but conduct — specifically the use of a
communications system (in this case, the Internet) for the purpose of soliciting a minor. The act
of using a communications system is the actus reus of the crime, while the purpose of soliciting
the child is the mens rea. See Commonwealth v. Murgia, ___ Va. ___, ___, 827 S.E.2d 377, 383
(2019) (addressing subsection D of the same statute); Dietz v. Commonwealth, 294 Va. 123, 134-
35 (2017) (addressing subsection B of the same statute). The fact that Stoltz engaged in this
conduct through the means of speech is only relevant if the statute sweeps in substantial amounts
of protected speech in comparison to its legitimate proscription. Nothing in the statute
criminalizes a substantial amount of protected speech when “judged in relation to the statute’s
plainly legitimate sweep,” Broadrick, 413 U.S. at 615. Nor do any of Stoltz’s arguments “justify
invalidating a statute on its face and so prohibiting a State from enforcing the statute against
conduct that is admittedly within its power to proscribe,” id. Thus, Stoltz’s facial overbreadth
challenge must also fail.
                                                  III.
       Finding no merit in Stoltz’s vagueness or overbreadth challenges to Code § 18.2-
374.3(C), we affirm the judgment of the Court of Appeals. This order shall be published in the
Virginia Reports and certified to the Court of Appeals of Virginia and the Circuit Court of
Fairfax County.
                                               A Copy,

                                                  Teste:


                                                           Douglas B. Robelen, Clerk


                                                   9
