Brian Leland Artis v. Commonwealth of Virginia ( 2024 )

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Chief Judge Decker, Judges Raphael and White
Argued at Richmond, Virginia
BRIAN LELAND ARTIS
MEMORANDUM OPINION* BY
v. Record No. 1703-23-2 CHIEF JUDGE MARLA GRAFF DECKER
NOVEMBER 6, 2024
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
David E. Johnson, Judge
Kevin E. Calhoun for appellant.
Matthew P. Dullaghan, Senior Assistant Attorney General (Jason S.
Miyares, Attorney General, on brief), for appellee.
Brian Leland Artis appeals his convictions for one count each of soliciting prostitution
with a minor and “[a]iding [the] prostitution” of a minor and two counts of indecent liberties
with a child by a person in a custodial or supervisory relationship in violation of Code
§§ 18.2-346.01(i), -348, and -370.1. He challenges the trial court’s limitation of his
cross-examination of the teenaged victim, as well as the sufficiency of the evidence to prove all
three categories of convictions. We hold that the trial court’s admissibility ruling was not error.
We conclude further that, to the extent Artis preserved his sufficiency challenges for appeal, the
evidence proved his guilt of those crimes. As a result, his convictions are affirmed.
*
This opinion is not designated for publication. See Code § 17.1-413(A).
BACKGROUND1
In the fall of 2020, when K.H. was sixteen years old, she was a resident in a group home,
which was divided into girls’ and boys’ sections.2 Artis was on the staff at the home, where he
worked as a director. He primarily “tend[ed] to the boys[’] part of the home,” but he was also
present in the girls’ part of the home at times. When he was there, “it [was] expected that
everybody would listen to . . . the instructions that he gave to the girls.”
While K.H. was at the group home, Artis would say “weird stuff” to her. He told her she
was “sexy,” and he “offered that [she] could run away with him.” At some point while K.H. was
there, her phone was taken away, and she “got mad.” As a result, she “decide[d] to take [Artis]
up on th[e] offer” to run away. While K.H. was still in the group home, Artis told her that he
would “basically buy [her] everything” and “pay for everything for [her]” after she left. He also
said, though, that “nothing is free in this world” and K.H. “might as well keep him happy.”
On October 17, 2020, K.H. met Artis outside the group home. He drove her to a
Chesterfield hotel, and once there, he “start[ed] . . . touching” her. Artis and K.H. had sexual
intercourse, and he spent the night. The next day, he bought her a cell phone, and he later
communicated with her by phone. K.H. “agree[d] to have sex with” Artis because she “needed
the money” and other things he provided, including food, “hygiene stuff, the hotel, [and] the
phone.” Artis also bought her “Black and Milds,” “edible[]” “weed,” and alcohol.
While K.H. was at the hotel, Artis visited her every other day, had sexual intercourse
with her “multiple times,” and performed oral sodomy on her. K.H. did not know anyone else in
1
“On appellate review of the sufficiency of the evidence to support a criminal conviction,
this Court ‘reviews the evidence in the light most favorable to the Commonwealth, as the
prevailing party at trial, and considers all inferences fairly deducible from that evidence.’”
Thornton v. Commonwealth, 78 Va. App. 321, 328 (2023) (quoting Commonwealth v. Herring,
288 Va. 59, 66 (2014)).
2
The victim and another minor are identified using initials to protect their privacy.
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the area and said that without Artis’s financial support, she would have been “[o]n the streets.”
She stayed at the hotel for about a week.
K.H. decided to leave the hotel because she was uncomfortable having sex with Artis. At
her request, he drove her to Alexandria, where she “end[ed] up in another group home.” She
later ran away from that home with a second girl, R.K. The teens were living “in the streets”
with “nowhere to stay.” In mid-November 2020, K.H. contacted Artis for help. He picked up
both girls and drove them back to the Chesterfield hotel.
When K.H. returned to the hotel, Artis again wanted to have sex with her and sent her
texts to that effect. K.H., however, did not want to have sex with him. Artis texted to K.H., “We
gonna need some alone time . . . if I get what I’m saying.” He suggested that R.K. could “take a
walk and have a smoke or whatever[,] just not inside the room.” K.H. was successful in using
R.K. as an excuse to avoid having sex with Artis during her November stay in the Chesterfield
hotel.
Texts between K.H. and Artis on November 21, 2020, show Artis asked whether she
“t[old] someone where [she] w[as] staying or put something on [Insta]gram because [the] State
Police came to [the group home].” Artis said “someone told them somebody from [the home]
helped [K.H.] get away the first time” and may also have helped her “get back to Richmond.”
He further texted that he was “going to be fucked” and “need[ed K.H. and R.K.] to get out of the
hotel.”
Shortly thereafter, Detective Christopher Lee of the Chesterfield County Police
Department interviewed K.H. and R.K. at the hotel in the course of investigating possible sex
trafficking. He learned that they were both juveniles and their hotel room was being paid for by
an “adult man associated with a group home.” With K.H.’s permission, Detective Lee reviewed
the text messages she identified as having been sent by Artis.
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The detective interviewed Artis, who said that “he was operating for this hotel situation
under an organization that was called New Walk Ministries.” Artis provided the detective with
telephone numbers for two different phones he used, one of which was for New Walk Ministries.
He confirmed that he worked at the group home, on the boys’ side, and knew K.H. from
“sometimes go[ing] to the girls’ home.” He admitted paying for the Chesterfield hotel room. He
claimed, however, that he did so in conjunction with his work for New Walk Ministries and did
not know who was staying in the room. Artis later admitted knowing that K.H. was one of the
people staying in the room in November 2020, but he continued to deny knowing she was there
in October.
The detective executed a search warrant for Artis’s home and car. Inside the car, police
found condoms and a key to the Chesterfield hotel room K.H. occupied in November.
Artis was indicted for one count of soliciting prostitution with a minor and two counts
each of aiding in the prostitution of a minor and indecent liberties with a child by a person in a
custodial or supervisory relationship. In a jury trial, Artis was acquitted of one of the counts of
aiding the prostitution of a minor and convicted of the remaining offenses. He was sentenced to
five years for each offense, for a total of twenty years, with ten years suspended.
ANALYSIS
Artis suggests that the trial court erred by limiting his cross-examination of K.H. and by
rejecting his challenges to the sufficiency of the evidence to support his convictions.
I. Admissibility of Impeachment Evidence on Cross-Examination of K.H.
Artis argues the trial court improperly limited his ability to cross-examine K.H. about her
drug use specifically as it impacted her memory.
While cross-examining Detective Lee, defense counsel asked about his conversations
with K.H. Lee testified she “told [the police] that she had been smoking weed.” The detective
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explained to her that the police “weren’t interested in prosecuting her” for drug offenses. He
elaborated that drug crimes were considered “very minor . . . in comparison to . . . sex crimes
against a juvenile.”
Later, while cross-examining K.H., defense counsel asked whether she had “problems
remembering stuff” and told the police about her memory problems. K.H. replied that she did
not “normally have trouble with [her] memory.” She explained that some of the things she was
being asked about on cross-examination “happened years ago,” “two or three years” earlier. She
further stated that she “d[id not] remember” whether she “t[old] the police that [she] ha[d] a lot
of trouble with [her] memory.”
Further along in K.H.’s cross-examination, defense counsel asked, “[Y]ou told the police
that you not only smoked weed[] but . . . did drugs too? Do you remember what drugs you were
taking?” The prosecutor objected on relevance grounds. Defense counsel replied, “As it affects her
ability to recall and to accurately address the—,” at which time K.H. began to answer. The court
told her to “[h]old on.” It then sustained the objection and instructed defense counsel to move on.
Defense counsel next asked K.H., “You told the police . . . that the amount of marijuana that
you were smoking was affecting your memory, right?” K.H. said, “I don’t smoke weed anymore.”
Defense counsel then asked, “You don’t remember that part either?” Before K.H. had a chance to
reply about whether she remembered telling the police that smoking marijuana affected her
memory, counsel changed his line of questioning and turned to an unrelated subject. Defense
counsel never returned to the issue of how marijuana smoking might have affected K.H.’s memory.
Artis now challenges the trial court’s limitations on his cross-examination of K.H. He
contends he should have been permitted to ask her what she told the police about smoking
marijuana and taking other drugs. He suggests that these subjects were “relevant and material to
show [her] poor memory” and the “overall incredibility” of her testimony. The Commonwealth
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argues that Artis failed to make a proper proffer of the expected testimony and therefore cannot
raise the issue on appeal.
A trial court’s decision to admit or exclude evidence is reviewed for an abuse of discretion.
Jefferson v. Commonwealth, 298 Va. 1, 10 (2019). It is axiomatic, though, that “[e]rror may not be
predicated upon . . . exclusion of evidence[] unless . . . the substance of the evidence was made
known to the [trial] court by proffer.” Va. R. Evid. 2:103(a)(2); see Murray v. Commonwealth, 71
Va. App. 449, 458 (2020); see also Whittaker v. Commonwealth, 217 Va. 966, 969 (1977) (noting
that “a unilateral avowal of counsel, if unchallenged,” may “constitute[] a proper proffer”). The
“range of content required” for a proper proffer “depend[s], in part, on the proffer’s purpose.”
Creamer v. Commonwealth, 64 Va. App. 185, 195 (2015). It must be “sufficiently detailed” to
permit the trial court “a fair opportunity ‘to resolve the issue at trial.’” Id. at 195, 199 n.7 (quoting
Albert v. Albert, 38 Va. App. 284, 290 n.1 (2002)). Additionally, the proffer must be adequate “to
allow the appellate court to determine whether the trial court erred in excluding the evidence and, if
so, whether that error was harmless.” Id. at 195. Crucially, the appellate court “can perform this
examination only when the proponent proffers the ‘testimony he expected to elicit,’ rather than
merely his theory of the case.” Tynes v. Commonwealth, 49 Va. App. 17, 21 (2006) (quoting
Clagett v. Commonwealth, 252 Va. 79, 95 (1996)); see id. at 21 n.1. A “failure to proffer the
expected testimony is fatal to [the] claim on appeal.” Id. at 21 (quoting Molina v. Commonwealth,
47 Va. App. 338, 367-68 (emphasis added), aff’d on other grounds, 272 Va. 666 (2006)). The
reviewing court “cannot ‘speculate what the answer[s to the questions posed] might have been.’”
Id. at 22 (quoting O’Dell v. Commonwealth, 234 Va. 672, 697 (1988)).
Here, regarding drug use, Artis did not proffer the testimony he expected to elicit from K.H.
in response to the questions to which the prosecution objected. Defense counsel explained that he
wanted to explore the issue of K.H.’s drug use as it “affect[ed] her ability to recall.” He did not,
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however, expressly proffer a basis for believing that K.H. would answer affirmatively that she used
drugs other than marijuana during the time she stayed in the Chesterfield hotel. His question
implied that K.H. told the police she used drugs other than marijuana, but he did not proffer that she
made such statements to police or what other drugs were involved, and he did not elicit any such
testimony from Detective Lee or any other witness. Detective Lee, to the contrary, testified only
that K.H. “told [the police] that she had been smoking weed,” not that she had used other drugs.
In other words, defense counsel’s statement of his desire “to ‘explore’ the subject with” the witness
amounted merely to “repeat[ing] his theory of the case” rather than disclosing what K.H.’s
“‘testimony would have been’ on this subject.” See Tynes, 49 Va. App. at 23 (quoting Lockhart v.
Commonwealth, 34 Va. App. 329, 340 (2001)). Under these circumstances, Artis failed to make an
adequate proffer to preserve for appeal his challenge to the limitation of his cross-examination of
K.H. as to her use of drugs.
Regarding K.H.’s admission to using marijuana (an admission that Detective Lee had
confirmed during his testimony), defense counsel asked K.H. without objection whether she told the
police that the amount of marijuana she was smoking was affecting her memory. When K.H.
avoided answering the question directly, stating instead, “I don’t smoke weed anymore,” defense
counsel abandoned that line of inquiry. Consequently, it was due to defense counsel’s choice, not
the trial court’s ruling, that Artis did not obtain testimony from K.H. about the impact of her
marijuana use on her memory of the charged offenses. See Castillo v. Commonwealth, 70 Va. App.
394, 461 n.28 (2019).
In light of these circumstances, we hold that Artis waived his objection to the trial court’s
limitation on his cross-examination of K.H. as to her use of drugs other than marijuana. And
regarding marijuana use, he failed to pursue avenues of inquiry that remained open to him.
-7-
II. Sufficiency of the Evidence
Artis contends the evidence was insufficient to prove all three categories of offenses he
was convicted of committing—soliciting prostitution with a minor, aiding the prostitution of a
minor, and indecent liberties with a child by a person in a custodial or supervisory relationship.
In determining whether the evidence was sufficient to support these convictions, the
appellate court views the facts in the light most favorable to the Commonwealth. See, e.g.,
Commonwealth v. Garrick, 303 Va. 176, 182 (2024). This deferential standard “requires us to
‘discard the evidence of the accused in conflict with that of the Commonwealth[] and regard as
true all the credible evidence favorable to the Commonwealth and all fair inferences to be
drawn’” from that evidence. Vasquez v. Commonwealth, 291 Va. 232, 236 (2016) (quoting
Bowman v. Commonwealth, 290 Va. 492, 494 (2015)).
In conducting this review, the Court must defer to the jury’s findings of fact unless they
are “plainly wrong or without evidence to support [them].” See Secret v. Commonwealth, 296
Va. 204, 228 (2018) (quoting Pijor v. Commonwealth, 294 Va. 502, 512 (2017)). The appellate
court “does not ask itself whether it believes that the evidence at the trial established guilt
beyond a reasonable doubt.” Durham v. Commonwealth, __ Va. __, __ (Aug. 1, 2024) (quoting
Pijor, 294 Va. at 512). Instead, “[t]he only ‘relevant question is . . . whether any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.’” Garrick,
303 Va. at 182 (alterations in original) (quoting Commonwealth v. Barney, 302 Va. 84, 97 (2023)
(emphasis added)). If the record contains evidentiary support for the conviction, “the reviewing
court is not permitted to substitute its own judgment . . . , even if its opinion might differ from
the conclusions reached by the trier of fact” at trial. Id. at 182 (quoting Jordan v.
Commonwealth, 286 Va. 153, 156-57 (2013)).
-8-
To the extent that the sufficiency issue on appeal requires the appellate court to determine
the meaning of a statute and its terms, as applicable in this case, the court reviews that matter de
novo. See Barson v. Commonwealth, 284 Va. 67, 71-72 (2012); Thornton v. Commonwealth, 78
Va. App. 321, 328 (2023). Although criminal statutes are to be strictly construed against the
Commonwealth, this Court must also “give reasonable effect to the words used” in the
legislation. Johnson v. Commonwealth, 37 Va. App. 634, 639 (2002) (quoting Dillard v.
Commonwealth, 28 Va. App. 340, 344 (1998)). When interpreting a statute, the appellate court
“presume[s] that the General Assembly chose, with care, the words that appear in [that] statute.”
Jones v. Commonwealth, 296 Va. 412, 415 (2018) (quoting Johnson v. Commonwealth, 292 Va.
738, 742 (2016)). Consequently, if the language is “plain and unambiguous, we are bound by
[its] plain meaning.” Tisdale v. Commonwealth, 65 Va. App. 478, 484 (2015) (quoting Lee Cnty.
v. Town of St. Charles, 264 Va. 344, 348 (2002)); see Jones, 296 Va. at 415 (quoting Alston v.
Commonwealth, 274 Va. 759, 769 (2007)). “When a ‘statute’s terms are undefined’ by the
legislature, the Court gives those terms ‘their “ordinary meaning,” in light of “the context in
which [they are] used.”’” Green v. Commonwealth, 72 Va. App. 193, 203 (2020) (quoting Va.
Marine Res. Comm’n v. Chincoteague Inn, 287 Va. 371, 384 (2014) (alteration in original)).
It is under these well-established legal principles that we review Artis’s challenges to the
sufficiency of the evidence.
A. Solicitation of a Minor for Prostitution
Code § 18.2-346.01 provides in pertinent part that “[a]ny person who offers money or its
equivalent to another for the purpose of engaging in” certain specified sexual acts “and thereafter
does any substantial act in furtherance thereof is guilty of solicitation of prostitution.”
Artis does not dispute that he engaged in sexual intercourse and cunnilingus with K.H. or
that he gave her “money or its equivalent.” He contends only that the evidence did not prove he
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“offer[ed her] anything . . . specifically in exchange for [the] sex.” He suggests instead that he
gave her money and gifts as support, with only “the vague hope, . . . not a specific agreement,
that [she] would have sex with him.” He argues that soliciting prostitution requires a quid pro
quo—a direct trading of money or other items for sex. Despite conceding generally that the offer
or request proving solicitation may be “express or implied,” he contends that the evidence does
not support his conviction because he “did not say ‘I will buy you everything you need but only
if you have sex with me.’”
The crime of solicitation proscribed by Code § 18.2-346.01 does not require an
agreement.3 It defines the offense as “offer[ing] money or its equivalent to another for the
purpose of engaging in” certain specified sexual acts, including sexual intercourse. Code
§ 18.2-346.01 (emphasis added) (incorporating the acts in Code § 18.2-346); see Code
§ 18.2-346. Relevant dictionary definitions of “offer” as a transitive verb are “[t]o present for
acceptance or rejection,” as to tender; “[t]o put forward for consideration,” as to suggest; and
“[t]o propose as payment,” as to bid or offer a specific amount of money. Offer, The American
Heritage Dictionary of the English Language (5th ed. 2011); see Offer, Webster’s Third New
International Dictionary of the English Language (1993). In contract terms, an offer is “a
conditional promise.” Richmond Eng’g & Mfg. Corp. v. Loth, 135 Va. 110, 153 (1923) (quoting
1 Samuel Williston, The Law of Contracts § 25 (1920)); see Webster’s, supra. It is “a statement
by the offer[o]r that he will give a return for some promise or act of the offeree.” Richmond
Eng’g, 135 Va. at 152-53 (quoting Williston, supra). In this context, “the offeror’s statement
3
Until July 1, 2021, the crime proscribed in Code § 18.2-346.01 was instead contained in
Code § 18.2-346(B). See 2021 Va. Acts Spec. Sess. I ch. 188. As of that date, the General
Assembly removed subsection (B) from Code § 18.2-346 and created the new Code
§ 18.2-346.01 containing the same offense with the same punishment. See id. That punishment
is heightened if the person solicited is a minor. See Code § 18.2-346.01.
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necessarily looks to the future . . . [and is] promissory in [its] terms.” Id. at 153 (quoting
Williston, supra).
As Artis concedes, the statute does not require the offer to be express. See Thornton, 78
Va. App. at 332-33 (implicitly acknowledging the adequacy of an implied “offer to exchange
money for sex” to prove solicitation in violation of former Code § 18.2-346). As with any
element of a crime, both direct and circumstantial evidence can serve as proof. See Lambert v.
Commonwealth, 70 Va. App. 54, 65 (2019), aff’d, 298 Va. 510 (2020). “Direct evidence is
offered to prove as a fact the point in issue. Circumstantial evidence, by contrast, is offered to
prove a fact not directly in issue[ but] from which a fact in issue may reasonably be inferred.”
Commonwealth v. Hudson, 265 Va. 505, 512 (2003). Circumstantial evidence may include the
accused’s statements and conduct both before and after the events that constituted the charged
crime. See Simon v. Commonwealth, 58 Va. App. 194, 206 (2011).
“[I]n an appellate court’s assessment of a sufficiency challenge, circumstantial evidence
‘is as competent . . . as direct evidence’ to prove the elements of a crime, ‘provided it is
sufficiently convincing to exclude every reasonable hypothesis except that of guilt.’” Young v.
Commonwealth, 70 Va. App. 646, 653 (2019) (second alteration in original) (quoting Simon, 58
Va. App. at 206). The Commonwealth, however, is required to exclude “only . . . reasonable
hypotheses of innocence that flow from the evidence, not those that spring from the imagination
of the defendant.” Simon, 58 Va. App. at 206 (quoting Hamilton v. Commonwealth, 16 Va. App.
751, 755 (1993)). “The reasonable-hypothesis principle . . . is ‘simply another way of stating
that the Commonwealth has the burden of proof beyond a reasonable doubt.’” Commonwealth v.
Moseley, 293 Va. 455, 464 (2017) (quoting Hudson, 265 Va. at 513). And “[a]nswering that
question is the province of [the] factfinder, whether judge or jury, in [the] trial court. . . . [F]or
an appellate court, ‘[t]he only “relevant question is . . . whether any rational trier of fact could
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have found the essential elements of the crime beyond a reasonable doubt.”’” Garrick, 303 Va.
at 182 (sixth and seventh alterations in original) (quoting Barney, 302 Va. at 97 (emphasis
added)).
Here, the evidence proved that while K.H. was living in the group home, Artis told her
that she was “sexy” and specifically “offered that [she] could run away with him.” When she
told Artis she wanted to take him up on his offer, he said that he would “pay for everything” for
her. He expressly conditioned his offer by explaining that “nothing is free in this world” and
K.H. “might as well keep him happy.” Then, on October 17, 2020, the first night they arrived in
the hotel room Artis had rented for K.H., he “start[ed] . . . touching” her and had sexual
intercourse with her. He returned every other day while she was staying there during October
2020, and he engaged in sexual activity with her on each of those occasions. K.H. conveyed her
understanding about the conditions attached to Artis’s offer when she testified that she had sex
with him in the hotel room that first night and on subsequent occasions because she “needed the
money” and “other things,” including food, “hygiene stuff, the hotel, [and] the phone.” She
specifically testified that she took money from Artis in exchange for having sex with him. She
further confirmed her understanding that the sex and financial support were connected by
testifying that she decided to leave the hotel because she was uncomfortable continuing to have
sex with Artis. This evidence supports findings that Artis both offered and provided money and
its equivalent in exchange for sex.
Additional evidence proved that the terms of Artis’s offer were the same when K.H.
called him in mid-November 2020 to pick her up in a different city, where she was living on the
street, and return her to the Chesterfield hotel.4 R.K., a female acquaintance of K.H., stayed with
4
The single indictment for soliciting prostitution charged that the criminal acts occurred
“on or about October 17, 2020 through November 24, 2020.” (Emphasis omitted).
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her at the hotel during that time frame. K.H. testified that she knew Artis again expected to have
sex with her. Although K.H. was able to avoid having sex with Artis during her November hotel
stay, the evidence proved he once again expected to have sex with K.H. in exchange for
providing her with money, food, lodging, and other things. K.H. confirmed his “message in
[her] phone” indicated that “he wanted to.” In that message, he texted that he and K.H. would
“need some alone time” and R.K. would have to leave the room. He then expressed displeasure
when K.H. said the other girl would not leave. Artis declined when K.H. sent a reply text
offering a “3 sum,” saying, “i ain’t ask for all that . . . . that’s on y[’]all.” He also replied,
“Yeah,” to K.H.’s request that he bring a condom, indicating he expected to have sex with her.
Although Artis did not state expressly that engaging in sexual activity was a condition of
his paying for everything for K.H., that condition was strongly implied in his statements and
actions, coupled with K.H.’s testimony about her understanding of his statements and actions.
The evidence, therefore, viewed under the proper standard, supports the fact finder’s
determination that the requisite nexus existed between Artis’s offer of financial assistance and
the statutorily enumerated sexual activity. Consequently, we hold the evidence was sufficient to
prove the challenged element of Artis’s conviction for solicitation of a minor for prostitution in
violation of Code § 18.2-346.01.
B. Aiding the Prostitution of a Minor
Code § 18.2-348, referred to as aiding prostitution, provides in pertinent part that it is
“unlawful for any person . . . to take or transport . . . any person to a place . . . used or to be used
for the purpose of . . . prostitution within the Commonwealth or to procure or assist in procuring
[any person] for the purpose of illicit sexual intercourse, anal intercourse, cunnilingus, fellatio, or
anilingus.”5
5
The statute contains a knowledge requirement that is not in dispute in this case.
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At trial, at the close of the Commonwealth’s evidence, defense counsel made a motion to
strike all three categories of crimes, including the two charges of aiding the prostitution of a
minor. The court took the motion under advisement with regard to all of the charges.
Artis opted not to present evidence. Defense counsel renewed his motion to strike and
presented additional argument. The court denied Artis’s motion to strike with regard to the
solicitation of prostitution and the indecent liberties offenses. With regard to the charges of
aiding the prostitution of a minor in violation of Code § 18.2-348, however, the court
“continue[d] to take under advisement the motion to strike.”
Thereafter, Artis did not renew his motion to strike the charges of aiding the prostitution
of a minor. The jury convicted him of the count that occurred in October 2020. Defense counsel
did not make any post-trial motions challenging the sufficiency of the evidence to prove any of
the offenses. The record consequently reflects that the trial court never ruled on the challenge to
the sufficiency of the evidence to prove aiding the prostitution of a minor. Further supporting
this conclusion are the pages in the record Artis cites on brief to show where he suggests he
preserved the assignment of error for appeal. See Rule 5A:20(c). The brief cites only pages of
the trial transcript, culminating with the page on which the court stated that it “continue[d] to
take” the motion to strike the indictments under Code § 18.2-348 (aiding the prostitution of a
minor) “under advisement.”
Rule 5A:18 provides that “[n]o ruling of the trial court . . . will be considered as a basis
for reversal unless an objection was stated with reasonable certainty at the time of the ruling,
except for good cause shown or to enable this Court to attain the ends of justice.” The purpose
of the rule is “to protect the trial court from appeals based upon undisclosed grounds, to prevent
the setting of traps on appeal, to enable the trial [court] to rule intelligently, and to avoid
unnecessary reversals and mistrials.” Bethea v. Commonwealth, 297 Va. 730, 744 (2019)
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(quoting Palmer v. Atl. Coast Pipeline, LLC, 293 Va. 573, 579 (2017)), aff’g 68 Va. App. 487(2018). A corollary to Rule 5A:18 is that, in addition to presenting the disputed issue to the trial
court, the party has an affirmative duty to obtain a ruling from the trial court on the issue. See
Schwartz v. Commonwealth, 41 Va. App. 61, 71 (2003) (holding that consideration of an
appellant’s claim of trial court error on appeal was barred by Rule 5A:18 in part “because the
circuit court never ruled upon his motion”), aff’d on other grounds, 267 Va. 751 (2004); Bethea,
68 Va. App. at 498; see also Juniper v. Commonwealth, 271 Va. 362, 383-84 (2006) (observing
that failure to request a ruling from the trial court on a motion resulted in a waiver). Obtaining a
ruling is important because the appellate court reviews the record for trial court error. If the trial
court has not ruled on the issue, there is nothing to review. In short, an appellant’s failure to
obtain a ruling below precludes the appellate court from considering the issue. See Schwartz, 41
Va. App. at 71.6
Here, the issue is the sufficiency of the evidence to prove the offense of aiding
prostitution. In a jury trial, a defendant preserves a sufficiency challenge by making a motion to
strike the evidence made at the appropriate time or by making a motion to set aside the verdict.
See Rompalo v. Commonwealth, 72 Va. App. 147, 155 & n.2 (2020), aff’d per curiam, 299 Va.
683 (2021); see id. at 155-56 & n.3 (noting that in a jury trial, closing arguments are “made to
the jury, not the trial court, and therefore do not preserve [an] issue [raised in closing] for
appeal”). The objection presented by the motion to strike or to set aside the verdict is preserved
by obtaining the trial court’s ruling on it. See Schwartz, 41 Va. App. at 71.
6
We acknowledge the provision of Rule 5A:20(c) that permits an appellant to assign
error to a trial court’s “failure . . . to rule on any issue.” But the rule further provides that to raise
this point, “error must be assigned to such failure to rule” and must “specify[] the opportunity
that was provided to the . . . court to rule.” Artis has not assigned error on this basis.
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Artis made a motion to strike at the close of the Commonwealth’s case and renewed it
after he opted not to present any evidence of his own. But the trial court took both motions
under advisement without ruling on them. Artis did not obtain a ruling on the motions or present
his sufficiency challenge to the trial court in any other way, such as by making a motion to set
aside the verdict after the jury found him guilty. As a result, his challenge to the conviction for
aiding prostitution is waived, and we do not consider it on appeal.7
C. Custodial Indecent Liberties
Code § 18.2-370.1 proscribes various sexual acts with “a child under the age of 18” by a
“person 18 years of age or older who . . . maintains a custodial or supervisory relationship over”
the minor. Artis challenges the sufficiency of the evidence to prove his two convictions under
this code section, contending the Commonwealth did not establish that he had the required
custodial or supervisory relationship over K.H.
The purpose of Code § 18.2-370.1 “is to protect minors from adults who might exploit
certain types of relationships.” Linnon v. Commonwealth, 287 Va. 92, 98 (2014) (quoting Sadler
v. Commonwealth, 276 Va. 762, 765 (2008)). To “determin[e] whether a given relationship falls
within the statute,” the “key question . . . is whether the defendant ‘had the responsibility for and
control of the [minor’s] safety and well-being.’” Id. (quoting Krampen v. Commonwealth, 29
Va. App. 163, 168 (1999)). The statute “does not require the specific entrustment of the child to
the care of the adult to create a custodial or supervisory relationship.” Guda v. Commonwealth,
7
Because the challenge to this conviction is waived, we do not consider whether Artis
violated Code § 18.2-348, as charged in the indictment, by “unlawfully . . . tak[ing] or
transport[ing] any person under the age of 18 to a place . . . used or to be used for the purpose of
prostitution . . . [or] illicit sexual intercourse.” (Emphasis added). See generally Code
§ 18.2-346 (defining the crime of prostitution); Jury Instr. 13 (in the context of the solicitation
offense, defining prostitution as an exchange of money or its equivalent for acts including
“cunnilingus, fellatio, or sexual intercourse”); Part II.A., supra (observing in the context of the
solicitation offense that the evidence proved Artis provided K.H. with money and its equivalent
in exchange for sex and told her before transporting her to the hotel that he would do so).
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42 Va. App. 453, 459 (2004). Rather, the relationship may arise through “a voluntary course of
conduct.” Id. at 460 (quoting Snow v. Commonwealth, 33 Va. App. 766, 773 (2000)). “As a
general rule,” the statute includes “primary and secondary school administrators and teachers,”
Linnon, 287 Va. at 99, as well as school security officers, athletic instructors, and babysitters,
Guda, 42 Va. App. at 458, 460. And an adult in such a role may have a custodial or supervisory
relationship over all students in a school for purposes of the statute. See Linnon, 287 Va. at 99
(holding the statute covered a teacher who supervised students not assigned to his class while in
the cafeteria and on the sidewalk). Artis’s role as a director at the group home was analogous to
these types of positions in that he, too, had “responsibility for and control o[ver K.H.’s] safety
and well-being.” Id. at 98 (quoting Krampen, 29 Va. App. at 168).
In defining the term “custodial or supervisory relationship” as used in Code § 18.2-370.1,
the Supreme Court of Virginia has held that “harmful exploitation” under the statute “is not
limited to incidents occurring during the activity upon which the relationship is based.” Sadler,
276 Va. at 765 (emphasis added). In Sadler, the Court upheld the conviction of the defendant,
the coach of a “traveling softball team” who abused a player while she was alone with him in her
home as he showed her new team uniforms. Id. at 765-66. It provided as an additional example
of behavior proscribed by the statute a situation in which “a coach of a sports team . . . invite[s] a
team member to the coach’s home to mow the grass and, during that time, engage[s] in conduct
proscribed by Code § 18.2-370.1.” Id. at 765. The Court explained that although “[m]owing the
lawn is not associated with the sports activity, nevertheless, the team member may still feel
compelled to obey the coach, thus allowing the coach to exploit the relationship.” Id.
Expanding on this analysis, the Court held that “[w]hether such a relationship exists at the time
of the offending conduct is a matter of fact to be determined on a case by case basis.” Id.
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Of course, the jury’s resolution of conflicting facts, as well as of competing inferences,
deserves “the highest degree of appellate deference.” Thomas v. Commonwealth, 48 Va. App.
605, 608 (2006). “‘If there is evidence to support the conviction,’ [the appellate court] will not
substitute [its] judgment for that of the trier of fact, even were [its] opinion to differ.” Wactor v.
Commonwealth, 38 Va. App. 375, 380 (2002) (quoting Commonwealth v. Presley, 256 Va. 465,
466 (1998)).
Artis suggests that he did not have a custodial or supervisory relationship over K.H. at the
group home because “his primary role was over the boy[s’] side of the home.” His use of the
modifier “primary,” however, reflects his recognition that he also had a role in the girls’ side of
the home where K.H. resided. The evidence, viewed under the proper standard, confirms this
role. K.H. testified that when Artis was on the girls’ side of the home, she and the other female
residents listened to and obeyed his directions because he was “one of the staff.” He was
“above” all of the “kids” who were residents, and “it [was] expected that everybody would listen
to . . . the instructions that he gave to the girls in the home.” The evidence therefore supports the
jury’s factual finding that Artis occupied the required custodial or supervisory relationship over
K.H.
Artis argues next that he was not in a custodial relationship with K.H. at the time of the
sexual acts. He contends that K.H. “came up with the idea herself to run away from the group
home” and, as a result, “any custodial or supervisory relationship he had over [her] as a
counselor of the group home ended when she ran away.” The facts and the law show otherwise.
First, the evidence establishes that Artis told K.H. she was “sexy” and that he was the one who
initiated discussions with K.H. about her running away with him. Only after he first did so did
K.H. again raise the subject. While they remained in the group home where Artis maintained a
custodial or supervisory relationship over K.H., Artis first offered, and then affirmatively agreed,
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to help her leave. He further told K.H., a minor, that he would “basically buy [her] everything,
pay for everything for” her, in essence increasing his level of responsibility for her. At the same
time, he added that “nothing is free in this world” and that she “might as well keep him happy.”
As a result, he made clear to K.H., while he maintained a direct custodial or supervisory
relationship over her inside the group home, what the price of his assistance outside the group
home, financial and otherwise, would be. It is clear that “harmful exploitation” under the statute
“is not limited to incidents occurring during the activity upon which the relationship is based.”
Sadler, 276 Va. at 765 (emphases added). Artis’s behavior here was in fact more predatory than
the manipulation that occurred in Sadler because K.H. was living in a group home without
familial or financial support and therefore was in a particularly vulnerable position both
emotionally and financially.
The evidence as a whole, therefore, supports the jury’s finding that Artis had the requisite
custodial or supervisory relationship over K.H.
CONCLUSION
We hold that Artis failed to preserve two of his assignments of error for appeal. As to the
admissibility challenge, he waived it because he did not make an adequate proffer of the
witness’s expected answers or pursue related lines of questioning that remained open to him.
With regard to his challenge to the sufficiency of the evidence to prove aiding the prostitution of
a minor, he never obtained a ruling from the trial court, similarly waiving that claim. Finally, we
conclude on the merits that the evidence was sufficient to support his convictions for soliciting a
minor for prostitution and indecent liberties. As a result, Artis’s convictions are affirmed.
Affirmed.
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