RIVES v. COMMONWEALTH (2012)

The “right result for the wrong reason” doctrine cannot be utilized when a defendant is not on notice at trial to present evidence to rebut a particular method of proof articulated by the Commonwealth. Whitehead v. Commonwealth, 278 Va. 105, 115, 677 S .E.2d 265, 270 (2009). In the case before us, the parties stipulated that “the only issue presented at trial was a legal one, namely whether or not the language used by [John Lombe] Rives was both obscene and harassing, such that it would violate” Code § 18.2–372. Based on that stipulation, the trial court found the language used by Rives “both obscene and harassing.”

I agree with the majority that Rives was on notice that he was charged with violating Code § 18.2–427 by virtue of the indictment. But, as the majority recognizes, that statute “proscribe[s] three separate species of conduct.” The stipulation makes clear that the Commonwealth was not pursuing a theory of guilt predicated on that portion of the statute making it illegal for a person to “threaten any illegal or immoral act with the intent to coerce, intimidate, or harass ․ over any telephone.” Code § 18.2–427.^** Instead the Commonwealth's theory was that Rives had used “obscene ․ language ․ with the intent to ․ harass.” Id. Thus, Rives was not on notice to present evidence to rebut the charge of “threaten[ing] any illegal or immoral act” with the intent to harass. Id. It is inappropriate, therefore, to apply the “right result for the wrong reason” doctrine to affirm the trial court's judgment. See Whitehead, 278 Va. at 115, 677 S.E.2d at 270.

For the reasons stated in Barson v. Commonwealth, 284 Va. ––––, –––S.E.2d –––– (2012) (this day decided), I conclude that the statutory definition of the term “obscene” set forth in Code § 18.2–372 applies to the offense proscribed in Code § 18.2–427. Although the language Rives used in the telephone messages at issue was rude, vulgar, and disgusting, I also conclude that it does not satisfy that definition.

Thus, I respectfully dissent and would reverse the judgment of the Court of Appeals of Virginia affirming the conviction.

FOOTNOTES

FOOTNOTE.  As in effect prior to the amendment by 2010 Acts ch. 565. The statute currently features substantially similar language.

Justices McCLANAHAN and POWELL took no part in the consideration of this case.