Lofgren v. Commonwealth

Citations: 684 S.E.2d 223; 55 Va. App. 116; 2009 Va. App. LEXIS 491Docket: 1349082

Court: Court of Appeals of Virginia; November 3, 2009; Virginia; State Appellate Court

Original Court Document: View Document

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Jon Eric Lofgren appealed his conviction for violating Code § 18.2-427, which prohibits the use of profane or threatening language over the telephone. Lofgren contended that the evidence was insufficient to support the conviction. The Court of Appeals of Virginia, reviewing the evidence in favor of the trial's prevailing party, noted that Lofgren had been involved in a prior relationship with the victim. On December 18, 2007, after an uninvited visit and a confrontation with the victim's boyfriend, Lofgren left angrily and later called the victim, using profane language, including terms like "fucking cunt" and "fucking bitch." During the trial, Lofgren admitted to using such language but claimed he was expressing his disapproval of the victim's actions rather than intending to coerce or harass her. The trial court found him guilty, describing him as a "disgruntled lover." 

The appellate court analyzed whether Lofgren's language constituted a violation of Code § 18.2-427. While acknowledging that his remarks were offensive, it emphasized that they were not obscene and did not demonstrate an intent to intimidate or harass, but rather reflected his frustration over the victim's behavior. Consequently, the court reversed Lofgren's conviction, suggesting that his words did not meet the statutory criteria for a Class 1 misdemeanor under the specified code.

The Court interpreted the legislature's intent to focus on harassing conduct while specifically defining obscenity in relation to Code 18.2-427. Although Code 18.2-427 does not define "obscene," the Court adopted the definition from Code 18.2-372, which stipulates that material is obscene if it: (1) appeals to prurient interests in sexual matters, (2) exceeds customary limits of candor in its descriptions, and (3) lacks serious literary, artistic, political, or scientific value, with an emphasis on violating contemporary community standards. 

On appeal, the Court noted that the first two criteria of the obscenity test are factual issues assessed against community standards, while the third criterion is reviewed de novo, independent of those standards. The definitions of offensive terms such as "fuck," "fucking," "cunt," and "bitch" were detailed, highlighting their various meanings and connotations. 

In the case of Allman, the defendant faced charges for derogatory language directed at an attorney. The Court concluded that the term "pussy" was used to depict the attorney as cowardly rather than sexually, and the references to female excretory functions did not constitute an appeal to prurient interests or exceed limits of candor, thus failing to meet the criteria for obscenity as outlined in Code 18.2-372.

Appellant's use of the phrases "fucking cunt" and "fucking bitch" did not meet the legal definition of obscenity under Code 18.2-372. Although these terms can be sexually charged, their use in this context did not demonstrate an appeal to prurient interests or exceed typical limits of candor. The evidence indicated that appellant's language was a reaction rooted in anger and frustration towards the victim, particularly after she refused to engage with him and following a physical altercation with her boyfriend. His words were utilized as vulgar expressions of contempt rather than obscenity. Citing the precedent in United States v. Landham, the court concluded that the language was invective rather than obscene. Consequently, since the language did not violate the statute, appellant's conviction under Code 18.2-427 was reversed and the charge dismissed, making it unnecessary to assess his intent to intimidate or harass.