Chapman v. Commonwealth Of Va., Record No. 1210-09-4.

• Decision Date: 17 August 2010
• Docket Number: Record No. 1210-09-4.
• Citation: 56 Va.App. 725,697 S.E.2d 20
• Parties: Paul Gregory CHAPMANv.COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

56 Va.App. 725

697 S.E.2d 20

Paul Gregory CHAPMANv.COMMONWEALTH of Virginia.

Record No. 1210-09-4.

Court of Appeals of Virginia Alexandria.

Aug. 17, 2010.

COPYRIGHT MATERIAL OMITTED

Price Koch (Spencer Mayoras Henderson & Koch, PLC, on brief), for appellant.

Jennifer C. Williamson, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: FELTON, C.J., and HALEY and BEALES, JJ.

BEALES, Judge.

A jury convicted Paul Gregory Chapman (appellant) of one count of possession of child pornography, in violation of Code § 18.2-374.1:1(A), and nine counts of possession of child pornography, second or subsequent offense, in violation of Code § 18.2-374.1:1(B). On appeal, appellant argues that the trial court erred in denying his motion to strike four of these ten charges.¹ Appellant also argues that the trial court erred when it refused appellant's proposed jury instruction, which was based on the model jury instruction for constructive possession of contraband. Disagreeing with appellant's arguments, we affirm all ten convictions for the reasons stated below.

I. Background

On the morning of February 14, 2008, police officers executed a search warrant on a Stafford County home owned by appellant's parents. Appellant resided in a basement apartment in this home, which had a separate door to the outside, as well as a living room, a bedroom, a bathroom, and a storage area. Appellant had lived in the basement apartment for two-and-a-half years, and he had been its sole occupant for approximately five months.

Appellant was in the basement apartment when the officers executed the search warrant. In the basement apartment's living room, appellant's computer was turned on, and its monitor displayed a photograph of appellant. The police seized this computer.

Detective Darrell Wells, who was admitted at appellant's trial as an expert in computer forensics, conducted an examination of appellant's computer. His examination revealed that the temporary Internet file cache of appellant's computer contained twenty digital pictures that were characterized as child pornography.² Fourteen additional photographs depicted young girls who were completely nude, almost nude, or only partially clothed, and another file contained a video of a man engaging in sexual intercourse with a young girl. Detective Wells did not detect any viruses on appellant's computer and found no signs that these files carried any viruses.

Based on his analysis of appellant's computer and the temporary Internet cache, Detective Wells testified that these files had all been created and saved to the computer's hard drive between 8:07 a.m. and 8:12 a.m. on the morning of February 14, 2008-less than two hours before the police arrived to execute the search warrant. There was no evidence that appellant left the basement apartment that morning or that anyone else had been inside the basement apartment that morning.

Appellant moved to strike four of the ten charges of possession of child pornography, contending that Code § 18.2-374.1 required the Commonwealth to introduce three or more images of child pornography to support each conviction under that statute. Thus, he contended, the Commonwealth proved only six violations of the statute. The trial court rejected appellant's argument.

In addition, appellant proffered a jury instruction that adapted a model jury instruction on constructive possession of contraband. Appellant claimed that this instruction was required under Kromer v. Commonwealth, 45 Va.App. 812, 613 S.E.2d 871 (2005), where this Court affirmed Kromer's conviction for possession of child pornography by applying the principles of constructive possession. The trial court refused appellant's proposed jury instruction, finding that it contained language that was inapplicable to the facts presented at trial and that it was potentially confusing to the jury. The trial court instead instructed the jury that the Commonwealth was required to prove that “the defendant knowingly possessed child pornography.” ³

During its deliberations during the guilt phase of the trial, the jury asked the trial court to define “knowingly possessed.” The trial court instructed the jury that it had received all applicable instructions and that it must apply its common sense understanding of those instructions to the facts in the case. The jury eventually found appellant guilty on all ten counts of possession of child pornography, and appellant now appeals.

II. Analysis

A. Motion to Strike Four Charges of Child Pornography

Appellant argues that the twenty images of child pornography found in his temporary Internet cache were insufficient to prove ten counts of possession of child pornography, but instead provided sufficient evidence to prove only six counts. Appellant premises this question presented on an issue of statutory interpretation-whether Code § 18.2-374.1(A) requires proof of at least three images of child pornography “stored in a computer's temporary Internet cache” to support each conviction under that statute. In addressing appellant's argument, we are mindful that “[s]tatutory interpretation presents a pure question of law and is accordingly subject to de novo review” by an appellate court. Washington v. Commonwealth, 272 Va. 449, 455, 634 S.E.2d 310, 313 (2006) (citing Ainslie v. Inman, 265 Va. 347, 352, 577 S.E.2d 246, 248 (2003)).

Code § 18.2-374.1:1 prohibits the knowing possession of child pornography. A person possesses child pornography when he or she possesses “sexually explicit visual material which utilizes or has as a subject an identifiable minor.” Code § 18.2-374.1(A). “Sexually explicit visual material” is defined, in pertinent part, as

a picture, photograph, drawing, sculpture, motion picture film, digital image including such material stored in a computer's temporary Internet cache when three or more images or streaming videos are present, or similar visual representation which depicts sexual bestiality, a lewd exhibition of nudity, as nudity is defined in § 18.2-390, or sexual excitement, sexual conduct or sadomasochistic abuse, as also defined in § 18.2-390, or a book, magazine or pamphlet which contains such a visual representation.

Id. (emphasis added). In 2007, the General Assembly amended its definition of “sexually explicit material” in Code § 18.2-374.1(A) to include the emphasized language concerning materials stored on a computer's temporary Internet cache.

In Mason v. Commonwealth, 49 Va.App. 39, 636 S.E.2d 480 (2006), Mason argued, similar to appellant's argument here, that the trial court erred in finding that each photograph of child pornography could support a separate conviction under Code § 18.2-374.1:1. This Court rejected Mason's argument, emphasizing that the General Assembly chose to define “sexually explicit visual material” as “ ‘ a picture, photograph, drawing, sculpture, motion picture film, digital image or similar visual representation’ depicting lewd conduct or sexual activity.” Id. at 47, 636 S.E.2d at 484 (quoting Code § 18.2-374.1(A)). Relying on the Supreme Court's opinion in Educational Books, Inc. v. Commonwealth, 228 Va. 392, 323 S.E.2d 84 (1984), which held that the permissible unit of prosecution for the sale of obscene items under Code § 18.2-374 was the number of each such item sold, this Court held in Mason that “the permissible unit of prosecution for possession of child pornography under [the statute] corresponds to the number of individual items of sexually explicit visual material.” Mason, 49 Va.App. at 48, 636 S.E.2d at 484.

Appellant argues that this Court's holding in Mason no longer controls because it was decided the year before the General Assembly amended Code § 18.2-374.1(A) to include the language concerning materials stored on a computer's temporary Internet cache. He contends that Code § 18.2-374.1(A) should now be strictly construed to require that the Commonwealth introduce, at a minimum, three images from a computer's temporary Internet cache for each charge of possession of child pornography. We disagree.

“Once the legislature has acted, the role of the judiciary ‘is the narrow one of determining what [the legislature] meant by the words it used in the statute.’ ” Dionne v. Southeast Foam Converting & Packaging, Inc., 240 Va. 297, 304, 397 S.E.2d 110, 114 (1990) (quoting Diamond v. Chakrabarty, 447 U.S. 303, 318, 100 S.Ct. 2204, 2212-13, 65 L.Ed.2d 144 (1980)). “When considering the meaning and effect of a statute, this Court follows the long-held standard that the clear meanings of words are controlling” and determines the legislature's intention from the plain language of the statute, “ ‘unless a literal construction would involve a manifest absurdity.’ ” Alston v. Commonwealth, 49 Va.App. 115, 124, 637 S.E.2d 344, 348 (2006) (quoting Watkins v. Hall, 161 Va. 924, 930, 172 S.E. 445, 447 (1934)).

Courts are not permitted to interpret a statute in a way that “ ‘would render the statute strained, ambiguous, illogical, and in contravention of the legislature's clear intent.’ ” Saunders v. Commonwealth, 56 Va.App. 139, 145, 692 S.E.2d 252, 255 (2010) (quoting Broadnax v. Commonwealth, 24 Va.App. 808, 814-15, 485 S.E.2d 666, 668-69 (1997)). Moreover “[o]nly when a ‘penal statute is unclear’ do courts apply the rule of lenity and strictly construe the statute in the criminal defendant's favor.” De'Armond v. Commonwealth, 51 Va.App. 26, 34, 654 S.E.2d 317, 321 (2007) (quoting Waldrop v. Commonwealth, 255 Va. 210, 214, 495 S.E.2d 822, 825 (1998)). “[T]he rule of lenity serves only to resolve genuine, plausible ambiguities and ‘does not abrogate the well recognized canon that a statute ... should be read and applied so as to accord with the purpose intended and attain the objects desired if that may be accomplished without doing harm to its language.’ ” Id. at 35, 654 S.E.2d at 321 (quoting Cartwright v. Commonwealth, 223 Va. 368, 372, 288 S.E.2d 491,...