Coleman v. Commonwealth
| Decision Date | 27 December 2016 |
| Docket Number | Record No. 0096-16-3 |
| Court | Virginia Court of Appeals |
| Parties | ASHBY COLEMAN v. COMMONWEALTH OF VIRGINIA |
UNPUBLISHED
Present: Judges Humphreys, AtLee and Senior Judge Clements
Argued at Lexington, Virginia
FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
J. Lloyd Snook, III (Snook & Haughey, P.C., on briefs), for appellant.
Donald E. Jeffrey, III, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
A jury in the Circuit Court of Campbell County ("trial court") convicted appellant Ashby Coleman of two counts of distributing child pornography. He received a sentence of five years in prison for each charge, the minimum sentence. The trial court suspended four years, yielding an active sentence of six years. The charges arose from two photos Coleman uploaded to a public Pinterest1 page. Exhibit One depicted a close shot of male and female genitalia. Exhibit Two depicted three nude young women lying on their stomachs on a bed, facing away from the camera with their legs spread. In seven assignments of error, Coleman argues the trial court erred in (1) finding that either photo was a "lewd" depiction of nudity; (2) finding that either photo depicted a minor; (3) finding that Coleman took knowing action with respect to ExhibitTwo; (4) denying Coleman's request to set aside the verdict because the jury was not instructed on what it means to "knowingly" distribute lewd photos of minors; and (5) allowing the Commonwealth to argue to the jury that the appearance of the subjects in the pictures can be used to infer the age of the subjects. For the following reasons, we affirm.
Officers with the Southern Virginia Internet Crimes Against Children Task Force ("ICAC") opened an investigation after receiving information from the National Center for Missing and Exploited Children that included two photographs officers suspected "in [their] professional opinion," to be child pornography, an email address associated with the Pinterest account where the images were found, and the IP address from which the images were uploaded, which was associated with Coleman's residence. As part of this investigation, law enforcement officers from the ICAC visited the Coleman home. Coleman's mother answered the door. While one officer was explaining to her that they had received a "cyber tip" regarding suspected child pornography, Coleman approached and said "I think I'm the one you're looking for." Coleman admitted that the email address associated with the Pinterest account was his, and acknowledged that he has posted Exhibit One to the website. One officer testified that although he knew he showed Coleman Exhibit One, he did not recall with certainty whether he showed Coleman Exhibit Two. He "believe[d]" he did, but recalled that he also "didn't want to expose [Coleman's] mother to that at the time."
At trial, Coleman testified that he had struggled with pornography since middle school. Coleman's mother stated that she had a "zero tolerance policy" towards pornography, so when she discovered Coleman had been viewing it, she installed software on his computer that blocked access to certain websites and provided her with logs of websites he visited, along with other measures. After Coleman turned eighteen, he went to college. Because Pinterest was notblocked by the software, he used that website to post photos for later viewing. Although Coleman testified that he posted the photos for personal use, he "knew that there was a possibility that other people might see them." He stated that he did not specifically recall posting Exhibit Two, but conceded that he was not aware of anyone else posting images to his account. Coleman further confirmed that his account was password-protected. He acknowledged that, while looking for images of girls his own age, he had used the search term "kiddy porn" when other terms appeared to provide only adult pornography. When he was older, after searches for sixteen and seventeen-year-old girls failed to yield the desired results, he told an investigator that he "put the search terms a little lower." He maintained at trial, however, that he believed he only ever obtained adult pornography.
Coleman argues the evidence is insufficient to show that either photo depicted minors or was a "lewd depiction of nudity." He also claims the Commonwealth failed to prove he knowingly distributed Exhibit Two. "Whether the evidence adduced is sufficient to prove each of those elements is a factual finding, which will not be set aside on appeal unless it is plainly wrong." Lawlor v. Commonwealth, 285 Va. 187, 223-24, 738 S.E.2d 847, 868 (2013). "In reviewing that factual finding, we consider the evidence in the light most favorable to the Commonwealth and give it the benefit of all reasonable inferences fairly deducible therefrom." Id. at 224, 738 S.E.2d at 868.
An appellate court is "not permitted to reweigh the evidence," Nusbaum v. Berlin, 273 Va. 385, 408, 641 S.E.2d 494, 507 (2007), or "to substitute its own judgment for that of the finder of fact, even if the appellate court might have reached a different conclusion," Commonwealth v. Presley, 256 Va. 465, 466, 507 S.E.2d 72, 72 (1998). As an appellate court, we do not second-guess the trier of fact by declaring how we would have decided the case, rather, we determine "after viewing the evidence in the light most favorable to the prosecution, [whether] any rational trier of fact could have found the essential elements of thecrime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318-19 (1979).
Hutton v. Commonwealth, 66 Va. App. 714, 719, 791 S.E.2d 750, ___ (2016) (alteration in original). In our review, we are mindful that, even if Coleman did not seek images of girls who were many years younger than he was, "the General Assembly's 'paramount legislative goal' in enacting Code § 18.2-374.1 'was to protect children from the harm they suffer when they are induced to become models' in sexually explicit materials." Chapman v. Commonwealth, 56 Va. App. 725, 733, 697 S.E.2d 20, 24 (2010) (quoting Freeman v. Commonwealth, 223 Va. 301, 309, 288 S.E.2d 461, 465 (1982)); see also Papol v. Commonwealth, 63 Va. App. 150, 153, 754 S.E.2d 918, 920 (2014) (). For that, and the reasons that follow, we find the evidence sufficient for both convictions.
Coleman argues that the trial court erred in finding that either photo depicted underage subjects. We have no evidence as to the identities of the individuals in the images, and thus the jury was left to infer their ages from other evidence. See Terlecki v. Commonwealth, 65 Va. App. 13, 20, 772 S.E.2d 777, 781 (2015) (). Viewing this evidence in the light most favorable to the Commonwealth, as we must as it was the prevailing party below, we cannot say the jury was plainly wrong in finding that both images depicted minors.
First, Coleman testified that, as a minor, he sought out pornography that featured girls his own age. He told an investigator that he had used the search term "kiddy porn" and had "put the search terms a little lower" when his searches for sixteen and seventeen-year-old girls failed to yield the desired results.
Second, the appearance of the females in the photos suggests they are underage. Exhibit One is a black-and-white image depicting a visibly erect penis touching the labia of a disproportionately small vagina. The photo does not show either subject's face or torso; however, several factors indicate that the female is a juvenile. The female depicted has no pubic hair, or any sign that her pubic hair was removed. In addition, the narrowness of her hips, the disparity between the size of her and the male's genitalia, and other factors indicate that, at the time of the photo, she had not yet undergone puberty and was underage.
Regarding Exhibit Two, Coleman's own arguments before the trial court undermine his claim that the image does not depict at least one minor. In arguing his motion to set aside the verdict, defense counsel stated "it seems clear that the one of the three girls would appear to be actual minors" and that "it's highly likely that they're juveniles." "[I]n deciding a motion to set aside the verdict, a court only looks to whether the jury's verdict is 'plainly wrong or without evidence to support it.'" Wagoner v. Commonwealth, 289 Va. 476, 484, 770 S.E.2d 479, 484 (2015) (quoting Code § 8.01-680). By counsel's own admission, Exhibit Two "clear[ly]" depicted at least one minor, and as such, the finding that Exhibit Two depicted a minor could not be plainly wrong or lack supporting evidence.2 For these reasons, the jury did not err in finding both images depicted minors.
Coleman next argues that neither image is a "lewd" depiction of nudity. Code § 18.2-374.1:1 prohibits distribution of child pornography, defined as "sexually explicit visual material which utilizes or has as a subject an identifiable minor." Code § 18.2-374.1(A)."Sexually explicit visual material" includes, inter alia, visual representations of "a lewd exhibition of nudity," "sexual excitement," or "sexual conduct." Id.
Exhibit One is clearly sexually explicit visual material as defined by Code § 18.2-374.1(A), as it is a visual representation of "sexual conduct" and "sexual excitement." Under Code § 18.2-390(3), "'[s]exual conduct' means actual or explicitly simulated acts of masturbation, homosexuality, sexual intercourse, or physical contact in an act of apparent sexual stimulation or gratification with a person's clothed or unclothed genitals, pubic area,...
To continue reading
Request your trial