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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CODI LEE MICHAEL VEITE,                    :
                                               :
                       Appellant.              :   No. 434 WDA 2018


            Appeal from the Judgment of Sentence, March 8, 2018,
               in the Court of Common Pleas of McKean County,
             Criminal Division at No(s): CP-42-CR-0000254-2017.


BEFORE: BOWES, J., OTT, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.:                        FILED NOVEMBER 13, 2018

        Codi Lee Michael Veite appeals from his judgment of sentence,

contending that the Commonwealth presented insufficient evidence at trial to

establish that he had “contact” with a minor to support his conviction of

unlawful contact with a minor.1           Upon review of the facts and evidence

summarized from the record, we affirm.

        On Easter Sunday 2017, Veite was at a family gathering. Shortly after

he arrived, Veite, then eighteen (18) years old, told C.R., his seventeen (17)

year old female cousin, one of the victim’s in this case, that he needed to talk

to her; they went outside. Two other male cousins, G.N., 13 years old, and

K.N., 15 years old, followed them. They all were hanging out, talking when

Veite said, “My balls are shaved.” and “I could be a porn star.” Veite then
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1   18 Pa.C.S.A. §6318(a)
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pulled his shorts down, exposing his penis. While his shorts were down, he

made no gestures, said nothing, and did not ask anyone to touch him.

However, the minors saw his penis. Veite then quickly pulled his shorts up.2

C.R. told her father what happened, and he called the police.

       Veite admitted to the investigating officer that he pulled his shorts down.

He explained that he had a burning sensation and thought it was a pimple.

He pulled his shorts down to pop it, and his penis fell out. He immediately

pulled up his shorts.

       Veite was charged with Unlawful Contact with a Minor (18 Pa.C.S.A.

section 6318(a)(1) – Felony 3rd Degree, Indecent Exposure (18 Pa.C.S.A.

section 3127(a) – Misdemeanor 1st Degree), and Open Lewdness (18

Pa.C.S.A. section 5901) – Misdemeanor 3rd Degree).

       Following a jury trial, Veite was convicted of all charges. At the original

sentencing hearing, Veite made a motion for extraordinary relief, pursuant to

Pa.R.Crim.P. 704, and asked the court to enter a judgment of acquittal as to

the unlawful contact with a minor conviction on the grounds that the

Commonwealth failed to establish that Veite engaged in “contact” as required

under the statute. The trial court rescheduled Veite’s sentencing hearing, and

directed Veite to file a brief in support of his motion.             The trial court

subsequently denied Veite’s motion.            On March 8, 2018, the trial court, in

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2At some point during this incident Veite also made comments about having
sexual intercourse with C.R. The Commonwealth, however, did not base the
charge of unlawful contact with a minor on those comments.

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relevant part, sentenced Veite to twenty-five (25) days to twelve (12) months

in the county jail, and required him to register under Megan’s Law/SORNA for

twenty-five (25) years as a result of his felony conviction for unlawful contact

with a minor.3

       Veite timely appealed. The trial court directed Veite to file a statement

of errors complained of on appeal, which Veite did. The trial court relied on

its opinion and order issued in response to Veite’s motion to comply with Rule

1925(a).

       On appeal Veite raises one issue, solely related to his conviction of

unlawful contact with a minor:

       (1)    Whether the evidence presented on the record at the trial of
              this matter on December 13, 2017 was sufficient to
              establish each element of the charge of Unlawful Contact
              with a Minor, 18 Pa.C.S § 6318(a)(1), thereby justifying a
              verdict of Guilty for that offense?

Veite’s Brief at 6.

       In reviewing a sufficiency claim, we must consider “‘whether the

evidence, admitted at trial, and all the reasonable inferences derived

therefrom viewed in favor of the Commonwealth as verdict winner, supports

the jury's finding of all the elements of the offense beyond a reasonable

doubt.’” Commonwealth v. Cash, 137 A.3d 1262, 1269 (2016) (quoting
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3 In its order, the trial court indicated that Veite was also convicted of
corruption of a minor, and that based upon that conviction and his conviction
for unlawful contact with a minor, he was required to register as a sex
offender. However, nowhere in the record is there any indication that Veite
was charged and convicted with corruption of a minor in this case.

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Commonwealth v. Smith, 985 A.2d 886, 894-95 (Pa. 2009)). Only “where

the evidence offered to support the verdict is in contradiction to the physical

facts, in contravention to human experience and the laws of nature, then the

evidence is insufficient as a matter of law.” Commonwealth v. Widmer,

744 A.2d 745, 751 (Pa. 2000).

       In his appeal, Veite argues that the Commonwealth failed to present

sufficient evidence to establish the elements of unlawful contact with a minor,

specifically the “contact” requirement. Veite’s Brief at 20. Veite disputes that

the contact with the minors was undertaken for the purpose of furthering a

criminal act. Neither of the minors who testified indicated that Veite “asked

them to perform any sexual acts, to enter into any state of undress, attempted

to touch them sexually, attempted to take any type of photographs, asked

them    to   position   their   bodies   in   any   particular   way,   or   otherwise

communicated in a way that would have allowed the jury to conclude that his

communication was for the purpose of engaging in a sexual criminal act.”

Veite’s Brief at 26.     Veite made no comments or gestures while he was

exposed, “which would allow for the inference that the purpose of the

communication was for the purpose of furthering his indecent exposure.” Id.

at 26-27.     Thus, according to Veite, the evidence was insufficient.             We

disagree.

        The Pennsylvania Crimes Code defines the offense of unlawful contact

of a minor as:




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        Offense defined.--A person commits an offense if he is
        intentionally in contact with a minor, or a law enforcement officer
        acting in the performance of his duties who has assumed the
        identity of a minor, for the purpose of engaging in an activity
        prohibited under any of the following, and either the person
        initiating the contact or the person being contacted is within this
        Commonwealth:

        (1) Any of the offenses enumerated in Chapter 31 (relating to
        sexual offenses). [These offenses include rape, statutory sexual
        assault, involuntary deviate sexual intercourse, sexual assault,
        institutional sexual assault, aggravated indecent assault, indecent
        assault, and indecent exposure]. 4

18 Pa.C.S.A. § 6318; 18 Pa.C.S.A. § 3100 et seq.; Commonwealth v. Rose,

960 A.2d 149, 152 (Pa. Super. 2008). 5 For the crime of unlawful contact with

a minor, “contacts” is defined as:

        Direct or indirect contact or communication by any means,
        method or device, including contact or communication in person
        or through an agent or agency, through any print medium, the
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4   18 Pa.C.S 3127 provides:

        (a)   Offense defined. – A person commits indecent exposure if
              that person exposes his or her genitals in any public place
              or any place where there are present other persons under
              circumstances in which he or she knows or should know that
              this conduct is likely to offend, affront or alarm.

5 The jury found that Veite’s contact was for the purpose of engaging in both
the unlawful act of indecent exposure and the unlawful act of open lewdness.
Open lewdness, however, is not a crime set forth in Chapter 31 of the Crimes
Code. The open lewdness charge was therefore improperly considered for
purposes of convicting Veite on the unlawful contact with a minor charge.
Notwithstanding this, we conclude that this was harmless error because the
jury also concluded that Veite made contact with a minor to engage in the
unlawful act of indecent exposure.




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       mails, a common carrier or communication common carrier, any
       electronic communication system and any telecommunications,
       wire, computer or radio communications device or system.

18 Pa.C.S. § 6318(c).

       Initially, Veite’s argument fails to recognize that the crime of unlawful

contact with a minor focuses on communication, verbal or non-verbal, and not

physical contact.6      “Although the statute is titled ‘unlawful contact with a

minor,’ it is best understood as ‘unlawful communication with a minor.’”

Commonwealth v. Rose, 960 A.2d 149, 152 (Pa. Super. 2008) (emphasis

added). By its plain terms, the statute prohibits communication with a minor

for the purpose of carrying out certain sex acts, including indecent exposure.

Id. at 152-53. Therefore, the focus must be on Veite’s statements to the

minors and why he would have said them.

       In reviewing this upon Veite’s motion for extraordinary relief, the trial

court reasoned:

       [T]here is no dispute that [Veite], before exposing his penis and
       genitals, made statements including that he ‘had shaved his balls,’
       and, ‘he could be a porn star.’ If the statements [Veite] made
       when he exposed himself were not part of the record then his
       assertion that he exposed his penis and genitals in public due to
       an overwhelming itch or pain due to a pimple, that he had the
       immediate and overwhelming urge to expose and address that
       area of his body, would have more merit. Further, there would be
       a greater chance that the focus of those around him would not
       have been drawn to his penis / pelvic area. However, [Veite’s]
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6 Although many of the crimes listed in Chapter 31 of the Crimes Code involve
physical contact, physical contact is not an element of the crime of unlawful
contact with a minor. It is not even necessary that the intended sex act even
ultimately occur. Once the communicative message is made to a minor, the
crime of unlawful contact is complete. Id. at 153.

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      statements about ‘shaving his balls’ and ‘being a porn star’ with
      his actions of pulling his shorts down were intended to draw
      attention to his penis / genital / pelvic area. He made that
      communication to get the attention of the minors around him and
      to get them to look exactly where he wanted them to look and it
      worked.

Trial Court Opinion, 3/8/18 at 4. We agree. Veite’s statements were directly

related to his private area. Had Veite not made those statements, the minors

may not have paid any attention to him or be inclined to look towards his

private area. Moreover, contrary to Veite’s contention, the statements did not

need to be contemporaneous with the exposure for unlawful contact to occur.

Unlawful contact has been found where the communication occurred

sometime prior to the underlying sex act. See Commonwealth v. Rose, 960

A.2d at 149; Commonwealth v. Craybill, 926 A.2d488 (Pa. Super. 2007);

Commonwealth v. Morgan, 913 A.2d 906 (Pa. Super. 2006). Regardless

Veite made these statements sufficiently close in time to him exposing himself

that the jury could find he made them for that purpose.

      Based upon the foregoing, we find that the evidence was sufficient for

the jury, sitting as the finder of fact and examining the evidence in its totality,

to conclude that Veite made statements to C.R. and her cousins for the

purpose of enticing them to look at his exposed penis. Thus, we conclude that

the evidence, as well as all reasonable inferences drawn therefrom, viewed in

the light most favorable to the Commonwealth as the verdict winner, was

sufficient to sustain Veite’s conviction for unlawful contact with a minor.

      Judgment of sentence affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/13/2018




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