Va. Beach man loses appeal over Myspace threat

By Tim McGlone, The Virginian-Pilot – 6/8/2011

A threat is a threat, whether it’s communicated directly to a person, or in the case of John Andrew-Collins Holcomb, over Myspace, the Virginia Court of Appeals has ruled.

In what could be the first decision of its kind in the state, the appeals court Tuesday held that a threat posted on Myspace falls into the category of an “electronically transmitted communication” even though it wasn’t sent directly to the target.

Holcomb was convicted last year in Virginia Beach of knowingly communicating a written threat. He was sentenced to a year in jail, with most of it suspended. In his appeal, Holcomb claimed the writings were song lyrics and not intended as threats. However, he admitted at trial that the postings, if taken literally, “would be very horrifying,” the appeals court said, quoting Holcomb’s testimony.

Holcomb began the postings while he was in a custody dispute with a girlfriend, whom he identified in the lyrics by her maiden name.

The curse-filled postings said, in part: “Poof! Make ya daughter disappear like 2pac!” And, “Slit your neck into a fountain drink.” And, “No one hearing your screams from the knife cut sounds.”

The posting concluded with: “Still labeled psychotic just in case you’re not worried; murder makes me happy so don’t believe I’m nervous.”

Holcomb testified at his trial that he’s a rapper and that the postings were lyrics, or limericks, intended to be “art.” He also argued that he didn’t think the victim would see the writings because she did not have a computer. She saw them, however, on a relative’s computer.

The charge Holcomb faced is based on a law that criminalizes threats sent electronically, passed by the General Assembly in 1998, a time that predates social networking sites such as Myspace and Facebook. At the time, the law was intended for email and Internet threats.

The Court of Appeals has now extended that to social networks.

The 1998 law, an appeals judge wrote, “contains no requirement that the accused must communicate the written threat directly to the intended victim.”

Court of Appeals Judge Larry Elder, who wrote the opinion, even went so far as to explain what Myspace is.

“Myspace is a social networking website that provides a platform for individuals to design and represent to others a unique web page called a profile,” the judge wrote in a footnote.

Holcomb’s appeal attorney, Afshin Farashahi, said he never argued that a threat cannot be communicated on Myspace.

“Our position was this could not be considered a threat,” Farashahi said Tuesday. “These are just song lyrics that he put up.”

A search of Virginia Court of Appeals and Supreme Court cases dating back 15 years found no references to Myspace, Facebook orsocial network in criminal cases involving written threats. The judge’s opinion also cited no similar criminal cases.

“This case appears to be the first reported decision in Virginia involving threats posted on a social networking site such as Myspace or Facebook,” said Virginia Beach attorney L. Steven Emmert, who follows appeals court and Virginia Supreme Court decisions.

He said it’s the first time the appeals courts has cemented the notion that a victim’s perception of fear is “highly relevant” to prove that the defendant conveyed an intent to inflict physical harm.

Holcomb could not be located Tuesday for comment.

Tim McGlone, (757) 446-2343, tim.mcglone@pilotonline.com