                       COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Bumgardner and Lemons
Argued at Salem, Virginia


JOHN RUSSELL HARTMAN
                                          MEMORANDUM OPINION * BY
v.   Record No. 0569-98-3                JUDGE SAM W. COLEMAN III
                                               MARCH 30, 1999
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
                  Porter R. Graves, Jr., Judge

          James N. Dickson, III, for appellant.

          Eugene Murphy, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     John Russell Hartman was convicted in a bench trial of three

counts of stalking in violation of Code § 18.2-60.3, four counts

of contributing to the delinquency of a minor in violation of Code

§ 18.2-371, two counts of distributing obscene material in

violation of Code § 18.2-374, and three counts of possessing

obscene material with the intent to distribute in violation of

Code § 18.2-374.   Upon review, we reverse one count of possession

with the intent to distribute obscene items in violation of Code

§ 18.2-374, and one count of contributing to the delinquency of a

minor in violation of Code § 18.2-371 because the evidence was




    *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
insufficient to prove that the magazine that the defendant

distributed was obscene.   We affirm the remaining ten convictions.

                              BACKGROUND

     On an appeal challenging the sufficiency of the evidence, we

view the facts in the light most favorable to the Commonwealth,

and grant to it all reasonable inferences fairly deducible

therefrom.   See Higginbotham v. Commonwealth, 216 Va. 349, 352,

218 S.E.2d 534, 537 (1975).

     Over the course of two days, Hartman drove through

residential neighborhoods throwing allegedly obscene material out

his car window at, or in the direction of, five juvenile girls.

The juveniles who received the material were K.T. (eleven years

old), H.H. (eight years old), and A.L. (ten years old).   The

allegedly obscene material consisted of several pages of glossy

advertisements for “telephone sex lines” that contained sexually

explicit photographs and writing, which were designated at trial

as exhibits one, two, and six. 1




     1
      The photographs are of women and men with genitalia and
breasts exposed, all or most of which depict or suggest acts of
fellatio, cunnilingus, masturbation, and sexual intercourse.
Although the writing on the advertisements literally invites the
reader to engage in fellatio, cunnilingus, anal intercourse, and
sadomasochistic acts with the depicted models, the
advertisements clearly intend to solicit patrons for the
telephone sex industry rather than for the actual described
sexual liaisons.



                                - 2 -
     On the first day, Hartman threw the advertisements designated

as exhibit one 2 out the window of his vehicle “right by where”

K.T. was standing.   K.T. retrieved the advertisement, which she

described as “really gross,” and gave it to her mother, Sara,

who testified that K.T. was upset by its content.   Sara

immediately called across the street for her other daughter to

return home.   As H.H., who had accompanied Sara’s daughter

across the street, returned to her home, Hartman returned and

threw the advertisements designated as exhibit two 3 in the

vicinity of H.H.   Sara intercepted the advertisements before

H.H. could retrieve them.   Shortly thereafter, when Hartman




     2
      Exhibit one is a double-sided eight by ten inch page of
glossy photos and text advertising six telephone sex lines. The
photographs depict exposed genitalia, acts of fellatio, and
cunnilingus. In at least one example the male genitalia appears
erect. The text invites the reader to engage in acts of
sadomasochism and fellatio. An example of text is, “I’ll suck
you ‘til you’re limp. Call me, you stud!” Examples of the
telephone numbers are 1-800-***-ORGY, and 1-800-***-SUCK.
     3
      Exhibit two is a pamphlet of eight five and one-half inch
by eight inch pages advertising twenty-six telephone sex
numbers. The photographs include exposed genitalia of men,
women, and one alleged hermaphrodite. In several instances male
genitalia appears erect. Models are depicted masturbating,
performing acts of fellatio, and having sexual intercourse. The
text, among other things, invites the reader to engage in acts
of sadomasochism, anal intercourse, fellatio, cunnilingus and
masturbation. One of the tamer examples of text exclaims, “Lets
masturbate together now.” Examples of the telephone lines are,
1-888-***-WHIP and 1-888-*WETSEX.



                               - 3 -
drove through that neighborhood again, Sara noted and relayed to

the police Hartman’s description, his license plate number, and

that he was driving a blue car.

     On that same day, a person in a light blue car drove by

A.L. while she was riding her bicycle.   From about fifty feet

away, the driver threw a magazine from his vehicle which A.L.

retrieved.   The mother of one of A.L.’s friends destroyed the

magazine, which was unavailable as evidence for trial.   A.L.

recalled that the magazine contained photographs of “dirty

stuff,” but she could not recall specifics.

     Later, on the same day that Hartman drove past A.L., he

also drove beside A.E. and M.S. as they walked along the street.

Although unacquainted with the children, Hartman asked A.E. and

M.S. if they wanted a ride, which they declined.   He then told

them that they were very pretty and that he could get them

modeling careers in New York if they would provide their

addresses.   Again, they declined.   When they tried to cross the

street, Hartman blocked their way with his car.    He called to

them again asking them about prospective modeling careers.   When

they again refused, Hartman drove off.

     The next day, Hartman again drove by A.E. and M.S. but this

time he threw out advertisements, designated exhibit six, 4 in the


     4
      Exhibit six is a double-sided eight-inch by ten-inch glossy
page advertising six different telephone sex lines. It includes



                               - 4 -
vicinity of A.E. and M.S.   He then slowed his vehicle and looked

in his rear view mirror “to see if [A.E. and M.S.] had picked

[the advertisements] up.”   A.E. picked it up and gave it to

M.S.’s mother who delivered it to the police.   Later that day,

Hartman drove by A.E. and M.S. again.    This time A.E. and M.S.

engaged an adult acquaintance in conversation so that Hartman

would not stop again.    Hartman drove past and looked at them.

       M.S. testified that when she saw the advertisements, she

“did not like [them].”   The second and third encounters with

Hartman made her “scared and nervous.”   Asked how she felt about

any of the encounters, A.E. stated that “it kind of frightened”

her.

       As a result of these events, the Commonwealth charged

Hartman with twelve misdemeanors.   Hartman’s three counts of

stalking in violation of Code § 18.2-60.3 arise from the

repetitive acts of driving by and throwing sexually explicit

material toward K.T., A.E., and M.S. and from approaching A.E.

and M.S. and making unsolicited comments to them which any

reasonable person would consider threatening.   Hartman’s four

counts of contributing to the delinquency of a minor in


photographs of women and men with exposed genitalia and breasts.
Among other things, the photographs depict fellatio and
masturbation. The text invites the reader to engage in similar
acts with language such as “hard and waiting for you,” and “I’ll
suck you ‘til you’re limp.” A representative telephone number
is 1-800-***-HUNG.



                                - 5 -
violation of Code § 18.2-371 resulted from his throwing sexually

explicit material toward K.T., A.L., A.E., and M.S.   Hartman’s

two counts of distributing obscene material in violation of Code

§ 18.2-374 arise from his throwing sexually explicit material

toward A.E. and M.S.   Finally, Hartman’s three charges of

possession of obscene materials with intent to distribute in

violation of Code § 18.2-374 arise from his possession of the

sexually explicit material, including the advertisements and the

unavailable but allegedly “dirty” magazine, which he later

distributed to K.T., A.L., and H.H.

                             ANALYSIS

      A.   DISTRIBUTION AND POSSESSION OF OBSCENE MATERIALS

     We affirm two counts of distributing obscene material in

violation of Code § 18.2-374 and two of the three counts of

possession of obscene material with intent to distribute in

violation of Code § 18.2-374.   We reverse the possession of

obscene material with the intent to distribute that was based

upon evidence of a “dirty” magazine that Hartman threw at A.L.,

which had been destroyed before trial.

     It is well established that in determining whether an item

is obscene, the trier of fact must apply the “community

standards” test in evaluating whether the material exceeds that

which the community deems acceptable.    See Miller v. California,

413 U.S. 15, 24 (1973); Roth v. United States, 354 U.S. 476, 489



                                - 6 -
(1957); Price v. Commonwealth, 214 Va. 490, 491, 201 S.E.2d 798,

799 (1974). 5   Expert testimony establishing a community’s

standards is not required.    See Price, 214 Va. at 492, 201

S.E.2d at 800.    Instead, a fact finder may draw on his or her

knowledge of what is an acceptable standard for sexually

explicit material in his or her community, or what is considered

obscene, in much the same way as a fact finder applies the

standard of a reasonable person in other areas of the law.     See

Hamling v. United States, 418 U.S. 87, 105-07 (1974).

           To arrive at a measure of community
           tolerance of pornographic material the trial
           judge may rely upon his own experience in
           the community and decide as best he can what
           most people seem to think about such
           materials. If, on the other hand, he has
           little or no knowledge of their views, he
           may turn to opinion proof and, if the
           government fails to offer such proof, he may

     5
      In Price, the Virginia Supreme Court reproduced the
following test for obscenity as established in Miller:

           (a) whether the average person, applying
           contemporary community standards would find
           that the work, taken as a whole, appeals to
           the prurient interest, . . .

           (b) whether the work depicts or describes,
           in a patently offensive way, sexual conduct
           specifically defined by the applicable state
           law, and

           (c) whether the work, taken as a whole,
           lacks serious literary, artistic, political,
           or scientific value.

           413 U.S. at 24.




                                - 7 -
            be relegated to finding that it has failed
            to sustain its burden.

United States v. Various Articles of Obscene Merchandise, 709

F.2d 132, 136 (2d Cir. 1983).

     Therefore, accepting Hartman’s contention that the

Commonwealth failed to put on evidence establishing the

community’s standards, the trial judge nevertheless had

authority to determine the community’s standards and to find

that the sexually explicit exhibits are obscene in violation of

the local community standards as he understood them.

     In concluding that the material qualified as obscene, the

trial judge relied upon a finding that the exhibits each

included written statements and depictions that propose acts of

sodomy in violation of Code § 18.2-361 (“Crimes against

nature”).   We decline to adopt a standard making it a per se

violation of community standards for a writing to propose an act

of sexual conduct that is in violation of the law.   A fact

finder is entitled to conclude that literature, art, or

photography, which may depict sexual acts that are illegal in

Virginia, is not obscene where the works of literature, art, or

photography have serious literary, artistic, political, or

scientific value.   However, where the material “has as its

dominant theme or purpose an appeal to the prurient interest in

sex,” Code § 18.2-372, the fact finder may rely upon a finding




                                - 8 -
that the material proposes unlawful sexual acts in determining

whether that material violates community standards of decency.

The trial judge correctly ruled that he could determine the

community’s standards in deciding whether the material was

obscene and did not err in giving consideration to the fact that

the material depicted sexual acts that are illicit and illegal

in Virginia.   Accordingly, we affirm the two convictions for

distribution of obscene materials (arising from distribution of

sexually explicit material which is exhibit six, to A.E. and

M.S.) and the two convictions for possession with the intent to

distribute obscene materials (specifically, one count of

possession with intent to distribute the sexually explicit

material which is exhibit one to K.T., and one count of

possession with intent to distribute the material designated as

exhibit two to H.H.).

     Regarding the conviction for possession of obscene material

with intent to distribute arising from Hartman’s possession of a

“dirty” magazine that he threw toward A.L., we reverse because

the evidence is insufficient to prove that the magazine was

obscene.   The evidence established that Hartman threw a magazine

out his window that A.E. thought was a Playboy and had

photographs of “like dirty stuff.”      The magazine was destroyed

and was unavailable at trial.   In the light most favorable to

the Commonwealth, the evidence is insufficient to support the



                                - 9 -
conclusion that the magazine, described only as a Playboy or

containing “dirty stuff,” was obscene.   The trial judge had

insufficient evidence to determine whether the contents of the

magazine violated community standards.

         B.    CONTRIBUTING TO THE DELINQUENCY OF A MINOR

     Code § 18.2-371 states in pertinent part:   “Any person

eighteen years of age or older . . . who (i) willfully

contributes to, encourages, or causes any act, omission, or

condition which renders a child delinquent . . . shall be guilty

of a Class 1 misdemeanor.”   Code § 16.1-228 defines delinquent

child as “a child who has committed a delinquent act.”      That

code section defines delinquent act as “(i) an act designated a

crime under the law of this Commonwealth, or an ordinance of any

city, county, town or service district, or under federal law,

(ii) a violation of § 18.2-308.7 [(“Possession and

transportation of certain firearms by persons under the age of

eighteen”)] or (iii) a violation of a court order as provided in

§ 16.1-292.”

     Encouraging a juvenile to engage in a delinquent act, where

the juvenile actually engages in the proposed delinquent act,

clearly constitutes contributing to the delinquency of a minor.

However, encouraging a juvenile to commit a delinquent act,

whether the juvenile does so or not, is sufficient to contribute

to the delinquency of a minor in violation of the statute.         See



                               - 10 -
Hubbard v. Commonwealth, 207 Va. 673, 677, 152 S.E.2d 250, 253

(1967); Bibbs v. Commonwealth, 129 Va. 768, 771, 106 S.E. 363,

364 (1921).   The sexually explicit material, identified as

exhibits one, two, and six, have as their primary purpose to

advertise “telephone sex.”   The obscene literature invites the

reader to engage in unlawful sexual acts with the pictured

models.   Obviously, we recognize these invitations to be

fantasies designed to market the telephone sex lines.    Although

the fact finder could conclude that Hartman was distributing the

sexually explicit material for the purpose of encouraging the

children to call the telephone sex lines, under the

circumstances here, the fact finder was entitled to conclude

that Hartman distributed the obscene material to these young

girls for the additional purpose of encouraging them to engage

in unlawful sexual acts.   Thus, we affirm Hartman’s convictions

for contributing to the delinquency of K.T., A.E., and M.S. by

exposing them to obscene material for the purpose of encouraging

them to engage in unlawful sexual activities.

     We find the evidence insufficient to support Hartman’s

conviction for contributing to the delinquency of A.L.   The

Commonwealth showed only that Hartman exposed A.L. to a magazine

that A.L. described as “dirty.”   For essentially the same

reasons that the evidence failed to prove the magazine was




                              - 11 -
obscene, the evidence was insufficient to support a conclusion

that Hartman encouraged A.L. to engage in a delinquent act.

                           C.   STALKING

     The trial judge did not err in convicting Hartman of three

counts of stalking for repeated episodes of returning and

throwing sexually explicit material toward K.T., A.E., and M.S.,

and for his repeated conduct of driving by A.E. and M.S. and

engaging in conversation that would reasonably frighten young

girls.   To support a conviction of stalking, the Commonwealth

had to prove that Hartman, “on more than one occasion engage[d]

in conduct directed at another person with the intent to place,

or with the knowledge that the conduct place[d], that other

person in reasonable fear of death, criminal sexual assault, or

bodily injury to that other person.”     Code § 18.2-60.3.

     Hartman threw obscene material at or in the direction of

K.T. on two separate occasions.    Although unable to positively

identify Hartman at trial, K.T.’s testimony was that a man drove

by in a blue vehicle and threw out printed material that

consisted of sexually explicit advertisements.    Moments later

K.T.’s mother, Sara, saw a blue car pass through the

neighborhood and throw out more sexually explicit material.

Sara positively identified Hartman as the driver of the vehicle.

From this testimony, the fact finder reasonably could conclude




                                - 12 -
that Hartman was the individual that threw out the explicit

material in K.T.’s direction.

       After the foregoing incident, Hartman returned to the same

neighborhood, and threw out more sexually explicit printed

material.    Although K.T. did not actually see this material, she

saw Hartman pass by her the second time.   The evidence tended to

prove that he threw the material in K.T.’s direction and the

fact finder could conclude that it was intended for her.   K.T.

testified that when she saw the material that he threw out, she

felt “scared and nervous.”

       Hartman also approached A.E. and M.S. on the same day, and

on the next day he drove by them and threw sexually explicit

material toward them, and then later again passed them in his

car.   He asked them if they wanted a ride and told the young

girls that he could get them New York modeling careers.    At

trial, both A.E. and M.S. testified that they were fearful of

Hartman’s conduct toward them on at least one of these

occasions.

       Based on these facts, the fact finder was entitled to

conclude that Hartman engaged in two events in which he

intended, or knew, that his conduct would place the young girls

K.T., A.E., and M.S., in reasonable fear of death, criminal

sexual assault, or bodily harm.    See Fortune v. Commonwealth, 14

Va. App. 225, 229, 416 S.E.2d 25, 27 (1992) (fact finders are



                                - 13 -
“often allowed broad latitude in determining the specific intent

of the actor”); Parks v. Commonwealth, 221 Va. 492, 494, 270

S.E.2d 755, 759 (1980) (“[c]ircumstantial evidence is as

acceptable to prove guilt as direct evidence”); Webber v.

Commonwealth, 26 Va. App. 549, 565, 496 S.E.2d 83, 90 (1998)

(stating that the trier of fact is entitled to infer that a

person intends the natural consequences of his or her actions).

     Accordingly, we affirm ten of Hartman’s twelve convictions.

We reverse the two convictions relying upon the evidence that

Hartman threw a “dirty” magazine at or in the direction of A.L.

The Commonwealth produced insufficient evidence to support a

conclusion that the magazine thrown at A.L. was obscene or that

it encouraged a delinquent act.

                                             Affirmed in part,
                                             and reversed
                                             in part.




                             - 14 -
