Blackwell v. Commonwealth

• Decision Date: 23 February 2021
• Docket Number: Record No. 0328-20-2
• Citation: 73 Va.App. 30,854 S.E.2d 191
• Parties: Terrence D'Juan BLACKWELL v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

73 Va.App. 30

854 S.E.2d 191

Terrence D'Juan BLACKWELL

v.COMMONWEALTH of Virginia

Record No. 0328-20-2

Court of Appeals of Virginia.

FEBRUARY 23, 2021

Aaron M. Vandenbrook (Richard G. White, Jr. ; Office of the Public Defender, on brief), for appellant.

Liam A. Curry, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Humphreys, Russell and Athey

OPINION BY JUDGE WESLEY G. RUSSELL, JR.

Terrence D'Juan Blackwell was convicted of two counts of violating Code § 18.2-386.1 for filming a nonconsenting minor on multiple occasions. On appeal, he argues that the trial court impermissibly concluded that the age of the victim alone established that she was "nonconsenting" for the purpose of Code § 18.2-386.1 and that, absent such a conclusion, the evidence was insufficient to establish that the victim was "nonconsenting." He further argues that the evidence was insufficient to establish that he, as opposed to someone else, engaged in the illegal filming. For the reasons that follow, we affirm Blackwell's convictions.

BACKGROUND

"In accordance with familiar principles of appellate review, the facts will be stated in the light most favorable to the Commonwealth, the prevailing party at trial." Gerald v. Commonwealth, 295 Va. 469, 472, 813 S.E.2d 722 (2018) (quoting Scott v. Commonwealth, 292 Va. 380, 381, 789 S.E.2d 608 (2016) ). Accordingly, we discard any of Blackwell's conflicting evidence, regard as true all credible evidence favorable to the Commonwealth, and grant the Commonwealth all inferences that reasonably may be drawn from that evidence. Id. at 473, 813 S.E.2d 722.

Blackwell and Ketedria Archer were engaged to be married and lived together from September 2018 until April or May 2019. Although they were not living together at the time, Blackwell, in an intoxicated state, arrived at Archer's residence in Petersburg on May 25, 2019 at 5:30 a.m. Because Blackwell was intoxicated, Archer let him inside the residence, where he passed out at the foot of Archer's bed.

While Blackwell was in an impaired state, Archer searched his pockets and then looked through his phone. Using the Netflix password Blackwell previously had given her, Archer was able to unlock the phone. She discovered two videos of her daughter, who was eight years old at the time of trial, on Blackwell's phone. The first video depicted the child nude in her own bedroom. Archer characterized the video depicted as having been shot by having "the phone ... put under the door" to allow the videographer "watch[ ] her undress." Archer testified that a "second video[,]" depicted her daughter in a state of undress and that "at the time the phone was put under the door, [her daughter] was pulling her bra down" and was wearing nothing else except for her underwear.

Upon discovering the videos, Archer woke Blackwell and confronted him about them. He denied any involvement in the videos. Archer then attempted to send the videos to her Facebook account to preserve them. Blackwell's phone "died" in the process of sending the second video, and thus, only one video was preserved in Archer's Facebook account.

Blackwell ultimately regained possession of his phone and, during the confrontation, also took possession of Archer's phone. When Archer regained possession of her phone, the "chip" was missing from it. As a result, Archer was unable to make any outgoing calls with her phone.

Archer then went to the home of her friend, Ashley Taylor, who is Blackwell's cousin and the child victim's godmother. Taylor described Archer as "frantic" and said Archer kept repeating " ‘I need your phone. I need your phone.’ " Archer explained to Taylor that her phone had been rendered inoperable and that she needed to log into her own Facebook account to preserve the video before Blackwell could access her account and delete it. Taylor unlocked her boyfriend's phone to access Archer's Facebook account.¹ Taylor then sent the one preserved video to her own phone.

Initially hesitant to report the incident to the police because of her continuing feelings for Blackwell, Archer, accompanied by Taylor, eventually reported it to authorities.

Based on the information Archer provided, police obtained a search warrant for Blackwell's phone. Ultimately, Blackwell's phone was examined by Detective Harris of the Colonial Heights Police Department, who was recognized by both the parties and the trial court as an expert in forensic examinations of computers and cell phones.² Using forensic software, Harris extracted content from Blackwell's cell phone, including the two videos, and made copies of the videos.

The copies of the videos were introduced into evidence at trial. At trial, Archer confirmed that the videos played were the same as the videos she had seen on Blackwell's phone on the morning in question and that the videos depicted Archer's daughter in various states of undress in the daughter's bedroom. The videos themselves are consistent with Archer's descriptions; both show Archer's daughter, in the daughter's bedroom, in varying states of undress with the filming apparently accomplished by surreptitiously positioning the camera under the child's bedroom door.

When the Commonwealth rested, Blackwell moved to strike. He challenged the sufficiency of the evidence, arguing that the evidence did not establish that he, as opposed to someone else, had made the videos of the child and that the Commonwealth's evidence did not establish the child was "nonconsenting" as required by the statute. The trial court rejected both arguments, finding the evidence sufficient and making an express finding that the Commonwealth's witnesses were credible. In rejecting Blackwell's argument regarding the victim's status as a nonconsenting person for the purposes of Code § 18.2-386.1, the trial court concluded that the child did not consent and that, due to her age, could not consent as a matter of law. Specifically, the trial court stated "There's no person under the age of 18 that's deemed consentible [sic] unless you're talking about 16-year-olds and the rape statute. She's eight years old. She's not capable to consent to anything." When Blackwell continued to argue that the evidence did not establish that the child was a nonconsenting person, the trial court responded: "By law, an eight-year-old is a non-consenting person. There does not need to be any evidence from the Commonwealth that an eight-year-old said, ‘You can't film me,’ because an eight-year-old cannot make that decision." The trial court reasoned, "An eight-year-old cannot give consent to anything. An eight-year-old cannot give consent to a stranger handing her candy.... By the nature of this statute, she is a non-consenting person."

Blackwell elected not to put on evidence and renewed his arguments related to the sufficiency of the Commonwealth's evidence. The trial court again rejected those arguments and convicted Blackwell of two counts of violating Code § 18.2-386.1 for filming a nonconsenting person. Because the trial court found that the victim was a minor, the convictions were subject to enhanced penalties pursuant to Code § 18.2-386.1(D).

Blackwell now appeals. He contends that the trial court impermissibly concluded that the age of the victim alone established that she was "nonconsenting" for the purpose of Code § 18.2-386.1 and that, absent such a conclusion, the evidence was insufficient to establish that the victim was "nonconsenting." He further argues that the evidence was insufficient to establish that he, as opposed to someone else, engaged in the illegal filming.

ANALYSIS

I. Standard of review

In arguing that the evidence failed to establish that the child in the videos was a "nonconsenting person" for the purpose of Code § 18.2-386.1 or that he was the person who filmed the child, Blackwell asserts that the evidence is insufficient to support his convictions. "Ordinarily, when faced with ‘a challenge to the sufficiency of the evidence, we review the evidence in the light most favorable to the prevailing party, including any inferences the factfinder may reasonably have drawn from the facts proved.’ " Hannon v. Commonwealth, 68 Va. App. 87, 92, 803 S.E.2d 355 (2017) (quoting Smith v. Commonwealth, 282 Va. 449, 453, 718 S.E.2d 452 (2011) ). As a result, "[w]e do not substitute our judgment for that of the trier of fact and will not disturb the trial court's judgment unless it is plainly wrong or without evidence to support it[.]" Melick v. Commonwealth, 69 Va. App. 122, 144, 816 S.E.2d 599 (2018) (internal quotation marks and citations omitted). When, however, a sufficiency challenge ultimately "presents the question whether the facts proved, and the legitimate inferences drawn from them, fall within the language of a statute, we must construe statutory language to answer the question. That function presents a pure question of law which we consider de novo on appeal." Hannon, 68 Va. App. at 92, 803 S.E.2d 355 (quoting Smith, 282 Va. at 453-54, 718 S.E.2d 452 ); see also Camp v. Commonwealth, 68 Va. App. 694, 701, 813 S.E.2d 10 (2018).

II. Code § 18.2-386.1

Pursuant to Code § 18.2-386.1(A),

It shall be unlawful for any person to knowingly and intentionally create any videographic or still image by any means whatsoever of any nonconsenting person if (i) that person is totally nude, clad in undergarments, or in a state of undress so as to expose the genitals, pubic area, buttocks or female breast in a restroom, dressing room, locker room, hotel room, motel room, tanning bed, tanning booth, bedroom or other location; or (ii) the videographic or still image is created by placing the lens or image-gathering component of the recording device in a position directly beneath or between a person's legs for the purpose of capturing an image of the person's intimate parts or undergarments covering those intimate parts when the intimate parts or undergarments would not otherwise be visible to the general

...