Ele v. Commonwealth
| Decision Date | 16 July 2019 |
| Docket Number | Record No. 1602-18-1 |
| Citation | 70 Va.App. 543,829 S.E.2d 564 |
| Parties | Dustin Allan ELE, Sr. v. COMMONWEALTH of Virginia |
| Court | Virginia Court of Appeals |
Christopher P. Reagan, Newport News (Goldstein, Edgar, Reagan, on brief), for appellant.
Victoria Johnson, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Present: Judges Humphreys, O’Brien and AtLee
OPINION BY JUDGE MARY GRACE O’BRIEN
Following a bench trial, Dustin Allan Ele, Sr. ("appellant") was convicted of four felonies: two counts of producing child pornography, in violation of Code § 18.2-374.1 ; aggravated sexual battery, in violation of Code § 18.2-67.3(A)(1) ; and indecent liberties, in violation of Code § 18.2-370(A).1 Appellant contends that the evidence was insufficient to convict him of two of the offenses. First, he asserts that the court erred in convicting him of producing child pornography "as a result of [his] activity of July 31, 2015, where the child that was the subject of the video slept undisturbed during the incident" and "was clothed during the filming." Second, appellant contends that the court erred in convicting him of indecent liberties because "the child was asleep during the period of time [when he] was exposing himself to her." For the following reasons, we affirm appellant’s convictions.
On April 1, 2016, Michael Brown, a Virginia State Police Special Agent assigned to the Northern Virginia/DC crimes against children task force, executed a search warrant at appellant’s residence. Special Agent Brown found video recordings and still images on an external hard drive attached to appellant’s personal computer. The videos and images, admitted into evidence as Commonwealth’s Exhibits Six and Seven, were taken by appellant during a one-hour time period between the night of July 31, 2015, and the early morning of August 1, 2015. They depict a series of events involving M.G., a nine-year-old girl who was friends with appellant’s children and who spent that night at appellant’s apartment. Exhibit Six contained four videos and numerous still images taken on July 31, 2015, and Exhibit Seven contained nine videos and numerous still images from August 1, 2015.
M.G. and appellant’s daughter were asleep on the living room floor when appellant recorded the videos and took the pictures. Exhibit Six included a video that depicts appellant walking around the room masturbating while the children slept. A number of times, appellant focused the camera on a children’s television show that was playing and children’s toys in the corner of the room. He then filmed himself masturbating near M.G.’s face, ejaculating into her hair, and touching her face with his penis. M.G. stirred but did not wake up.
Exhibit Six also included a still image of appellant pressing his penis against M.G.’s foot and multiple close-up pictures of M.G.’s sleeping face. Another picture shows appellant holding his penis near M.G.’s leg with ejaculate on her thigh. Appellant’s daughter, also asleep, is visible in some of the videos.
In Exhibit Seven, from August 1, 2015, the visual material shows M.G. still asleep with her shorts tucked up at the top of her legs. One video depicts appellant moving M.G.’s underpants slightly. He then took pictures of M.G.’s genitals and his penis, and he filmed himself masturbating near the child while she slept.
At the conclusion of the evidence, appellant moved to strike the production of child pornography charge from July 31, 2015. He argued that because M.G. was "not nude in the video ... from July 31," the contents of Exhibit Six did not meet the statutory definition of child pornography. He also moved to strike the indecent liberties charge and contended that because the child was asleep while he filmed, the evidence was insufficient to establish that he "exposed" himself to her in violation of Code § 18.2-370(A)(1). Appellant did not move to strike the August 1, 2015 production of child pornography charge or the aggravated sexual battery charge. The court denied appellant’s motions and convicted him of all four charges. This appeal followed.
When the sufficiency of the evidence to support a conviction is challenged on appeal, this Court must "consider the evidence and all reasonable inferences flowing from that evidence in the light most favorable to the Commonwealth, the prevailing party at trial." Williams v. Commonwealth, 49 Va. App. 439, 442, 642 S.E.2d 295 (2007) (en banc ) (quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595 (2004) ). "The trial court’s judgment should be affirmed unless it appears that it is plainly wrong or without evidence to support it." Terlecki v. Commonwealth, 65 Va. App. 13, 19, 772 S.E.2d 777 (2015) (quoting Spencer v. Commonwealth, 238 Va. 275, 283, 384 S.E.2d 775 (1989) ). "An appellate court does not ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ " Williams v. Commonwealth, 278 Va. 190, 193, 677 S.E.2d 280 (2009) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) ). "Rather, the relevant question is whether ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ " Id. (quoting Jackson, 443 U.S. at 319, 99 S.Ct. at 2789 ).
Resolution of appellant’s assignments of error also requires statutory interpretation, which this Court conducts de novo . Commonwealth v. Amos, 287 Va. 301, 305, 754 S.E.2d 304 (2014) ; McMillan v. Commonwealth, 55 Va. App. 392, 396-97, 686 S.E.2d 525 (2009) (en banc ).
The court convicted appellant of producing child pornography, in violation of Code § 18.2-374.1(B)(2). The statute defines "child pornography" as "sexually explicit visual material which utilizes or has as a subject an identifiable minor." Code § 18.2-374.1(A).
Code § 18.2-390(2). "Lewd" is not defined by statute, but this Court has described it as a "synonym of ‘lascivious’ and ‘indecent.’ " Asa v. Commonwealth, 17 Va. App. 714, 718, 441 S.E.2d 26 (1994) (quoting Dickerson v. City of Richmond, 2 Va. App. 473, 479, 346 S.E.2d 333 (1986) ). "Lascivious" describes "a state of mind that is eager for sexual indulgence, desirous of inciting to lust[,] or of inciting sexual desire and appetite." Id. (quoting Dickerson, 2 Va. App. at 479, 346 S.E.2d 333 ).
Appellant contends that Exhibit Six does not constitute child pornography because M.G. was clothed in the videos and still images. However, nothing in Code § 18.2-374.1(A) requires that the "lewd exhibition of nudity" depict child nudity.
The definition of nudity in Code § 18.2-390(2) includes "the depiction of covered or uncovered male genitals in a discernibly turgid state." Exhibit Six satisfies this definition. Appellant filmed himself masturbating and ejaculating on M.G. Moreover, by using the sleeping child for his sexual gratification, appellant demonstrated "a state of mind that [was] eager for sexual indulgence." Asa, 17 Va. App. at 718, 441 S.E.2d 26. Therefore, regardless of whether M.G. was clothed in Exhibit Six, the visual images are sexually explicit because they depict lewd exhibitions of nudity by appellant.
The visual images in Exhibit Six also depict appellant’s "sexual excitement" and "sexual conduct" as those terms are defined by statute. Code § 18.2-390(4) defines sexual excitement as "the condition of human male or female genitals when in a state of sexual stimulation or arousal." Code § 18.2-390(3) defines sexual conduct as "actual or explicitly simulated acts of masturbation ... or physical contact in an act of apparent sexual stimulation or gratification with a person’s clothed or unclothed genitals." These definitions do not require nudity or exposure of one’s genitals at all, much less nudity of the child victim. See Sandoval v. Commonwealth, 64 Va. App. 398, 415-16, 768 S.E.2d 709 (2015) (). Exhibit Six, showing appellant masturbating until he ejaculated on M.G., unequivocally meets these statutory definitions.
Appellant relies on Foster v. Commonwealth, 6 Va. App. 313, 369 S.E.2d 688 (1988), to support his contention that the Commonwealth must prove that the child who is the subject of the sexually explicit visual material was nude. However, his reliance is misplaced. In Foster, we reversed a conviction for soliciting a minor "to perform in or be a subject of sexually explicit visual material." Id. at 328, 369 S.E.2d 688 (quoting former Code § 18.2-374.1(B)(1) ).2 We held that "photographs of [the child] in her bathing suit are not depictions of sexually explicit visual material." Id. However, we reversed the conviction not because the child was clothed in the photographs, but because the photographs did not depict sexual conduct, sexual excitement, or a lewd exhibition of nudity. See id. Here, although M.G. was clothed, the visual images in Exhibit Six were sexually explicit because they depicted appellant’s sexual conduct, sexual excitement, and lewd exhibition of nudity. Therefore, Foster is factually distinct and does not require evidence of child nudity to prove that visual material is...
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