(Posted May 16, 2019) I’m a bit late in getting to today’s analysis, as I was out of the office this morning. Today the justices hand down a single published opinion, augmented by a published order.


Criminal law

Resolving a question of first impression, the justices explore the evidence required to sustain a conviction of using a communications system to solicit a late adolescent with lascivious intent. The case is Commonwealth v. Murgia, and involves text messages sent back and forth between a 16-year-old student and her 40-year-old track coach.

The messages started innocuously enough; the student wanted to improve her performance in the high jump and asked the coach to help. He responded affirmatively, followed by what plausibly cold be described as playful banter.

It graduated from banter by the third set of messages, as the coach spelled out in a long text a detailed and graphic sexual fantasy involving the student. He must have sensed something when she abruptly stopped texting back. Soon enough, police came to interview him. By then, they were armed with a printout of the highly inculpatory thread.

The relevant statute forbids using a communications system “for the purpose of soliciting, with lascivious intent,” a child of the age of 15-17 to perform any of various sexual acts. The coach admitted that he texted the student and that his messages were, well, creepy; but he insisted that he never proposed any such act with the student. It was merely a description of a dream and not an enticement to make it come true.

A circuit-court judge disagreed, considering the nature of the athlete/coach relationship and the “pattern of communications.” The court convicted the coach and handed him a ten-year sentence, all suspended. A divided panel of the Court of Appeals reversed the conviction, adopting the coach’s contention that, creepy as it was, nobody actually solicited anything.

While the case was in the appellate system, the justices handed down a 2017 decision interpreting a related subsection of the same statute. The justices accordingly remanded the appeal back to the CAV for reconsideration. The Court of Appeals again reversed the conviction, and the Commonwealth appealed, seeking to reinstate the original judgment.

The Supreme Court today unanimously reverses. The court finds that the CAV Panel failed to accord the trial judge’s factfinding the proper deference. Specifically, the court had evaluated the context of the messages, not merely the words used, and inferred – as the law permits factfinders to do – that the coach was actually proposing illicit contact. The court thus reinstates the conviction.

This opinion is independently noteworthy from a word-nerd perspective. The author, Senior Justice Koontz, recites that the student and coach

… began communicating by “text messages” in October 2014 …

He appends a footnote to explain what a text message is. The note also refers to “graphic devices known as emojis.”

My readers in the Millennial and Gen X crowds will find it amusing that the court encloses the words text messages in scare quotes, and that it finds it necessary to define the term and the word emoji. So will most Boomers who are even passably familiar with cell phones. The excellent usage book Dreyer’s English, written by the copy chief at Random House, advises writers to avoid scare quotes because, a generation from now, a reader will find it quaint. (Quaint is my euphemism for what Dreyer actually says. Go check page 52 if you’re curious.)



The court also releases a published order in James River Ins. Co. v. Doswell Truck Stop, LLC. This appeal involves a coverage question that turns on an auto exclusion from a commercial general liability policy.

James River issued the CGL policy to the truck stop; the exclusion stated that the policy wouldn’t cover “bodily injury and property damage arising out of the maintenance of” any auto. This claim arose when a trucker asked a mechanic to repair or replace one of the tires on his rig. During the process, the mechanic invited the trucker into the shop to watch. He then allegedly over-inflated the tire, causing it to explode and injure the trucker.

The insurer denied coverage, citing the exclusion. A circuit-court judge ruled in favor of the truck stop, but today the Supreme Court reverses, holding that the policy’s language unambiguously excludes this claim. The court also rejects the truck stop’s argument that this was really a premises-liability claim:

Thus, regardless of whether allowing Smith into a dangerous location was a proximate cause of his injuries, the fact remains that a significant causal connection exists between the maintenance on the tire and Smith’s injuries. As such, Smith’s injury arose out of the maintenance of a vehicle and the Auto Exclusion applies.