Haba v. Commonwealth

• Decision Date: 15 June 2021
• Docket Number: Record No. 0256-20-4
• Citation: 858 S.E.2d 436,73 Va.App. 277
• Parties: Moussa Moise HABA v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

73 Va.App. 277

858 S.E.2d 436

Moussa Moise HABA

v.COMMONWEALTH of Virginia

Record No. 0256-20-4

Court of Appeals of Virginia.

JUNE 15, 2021

Rachel C. Collins, Assistant Public Defender, for appellant.

Maureen E. Mshar, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Chief Judge Decker, Judges Humphreys and AtLee

OPINION BY CHIEF JUDGE MARLA GRAFF DECKER

Moussa Moise Haba appeals his conviction for the unlawful creation of an image of another in violation of Code § 18.2-386.1. He contends that the evidence is insufficient to support his conviction because the Commonwealth did not prove that the victim had a reasonable expectation of privacy when he recorded her. For the reasons that follow, we conclude that the evidence was sufficient to support the conviction. Consequently, we affirm.

I. BACKGROUND¹

The appellant's conviction arose from his interaction with the victim, who was a student from Saudi Arabia studying at an area university. In July 2017, the appellant and the victim met online. At first, the appellant and the victim exchanged messages over the internet, but their relationship ultimately progressed to meeting in person.

During their short relationship, the appellant became controlling toward the victim. He told her that when he said that he loved her, she had to respond in kind. The appellant claimed to have "videos" of the victim, and he threatened to reveal them "to the Saudi authorities." He refused to show the victim the purported videos or even tell her what type of videos he claimed to possess. She worried that these recordings might provide evidence that she had a relationship with a man. She explained that Saudi Arabian culture prohibited women from having boyfriends. According to the victim, violating this societal norm could cause her, at the very least, to lose her scholarship or, worse, be "bur[ied] ... alive." She clarified that she was not exaggerating and was stating "reality."

On August 6, 2017, the instant offense occurred when the appellant and the victim were in her apartment. During that encounter, the appellant used his smartphone to videorecord the victim for four minutes while they were in her bedroom.² In the video, the victim held a blanket in front of her naked body. She did not consent to the recording and pleaded with the appellant to stop recording her. According to the victim, she considered walking out of her apartment to avoid being recorded but did not, in part, because she was naked except for the blanket. The appellant threatened to hit her and repeatedly ordered her to "obey" him and drop the blanket. Despite his persistent commands, the victim refused to comply. Eventually, the appellant pulled the blanket away, exposing the victim's nude body and capturing it on the recording as she tried to cover herself with her hands and arms.

Once the appellant stopped recording, the victim suggested they go to a restaurant, thinking it would give her a chance to contact the police. While at the restaurant, the victim went to the women's restroom. From the restroom, she called the police.

Officer Charles Young of the Arlington County Police Department responded to the request for assistance. Young found the victim cowering in the restroom. The officer recovered the appellant's mobile telephone, which contained the video of the victim.

A grand jury indicted the appellant for abduction and unlawful creation of an image. At trial, the appellant made a motion to strike the charges, arguing that the evidence did not prove either offense. Regarding the instant offense, he argued that the evidence did not prove that the victim had a reasonable expectation of privacy because they were in a relationship, in a private space, and he did not record her "secretly." The trial court paraphrased the argument as "suggesting [that] somebody who is naked in their home with their boyfriend has no expectation of privacy that" he or she "will not be filmed." The appellant contended that the expectation of privacy was more general because it was a separate element of the crime from consent or recording. The court denied the motion.

The appellant testified in his defense. He stated that he made the video following an argument between him and the victim. According to the appellant, before he started recording, the victim agreed to let him make a video of her nude. He said that he did not stop when she told him to do so because she had already consented.

At the close of the evidence, the appellant renewed the motion to strike. The trial court again denied the motion.

The jury found the appellant not guilty of abduction but guilty of the unlawful creation of an image of another. The trial court imposed the jury's sentence of ten months and fifteen days.

II. ANALYSIS

The appellant argues that the evidence is insufficient to support his conviction. He specifically suggests that the Commonwealth did not prove that the victim had a reasonable expectation of privacy when he videoed her. This is the only element of the offense that he contests on appeal.

In determining whether the evidence was sufficient to support a criminal conviction, the appellate court views the facts in the light most favorable to the Commonwealth. See, e.g., Lambert v. Commonwealth, 298 Va. 510, 515, 840 S.E.2d 326 (2020). 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, 781 S.E.2d 920 (2016) (quoting Bowman v. Commonwealth, 290 Va. 492, 494, 777 S.E.2d 851 (2015) ). This standard "applies not only to the historical facts themselves[ ] but [also to] the inferences from those facts." Clanton v. Commonwealth, 53 Va. App. 561, 566, 673 S.E.2d 904 (2009) (en banc ) (quoting Crowder v. Commonwealth, 41 Va. App. 658, 663 n.2, 588 S.E.2d 384 (2003) ).

In reviewing the sufficiency of the evidence, the Court defers 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, 819 S.E.2d 234 (2018). In its role of judging witness credibility, the fact finder is "entitled to disbelieve" a defendant's testimony. See Tarpley v. Commonwealth, 261 Va. 251, 256, 542 S.E.2d 761 (2001). Further, "this Court does not ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ " Pooler v. Commonwealth, 71 Va. App. 214, 220, 834 S.E.2d 530 (2019) (quoting Hamilton v. Commonwealth, 69 Va. App. 176, 195, 817 S.E.2d 343 (2018) ). Instead, the test is "whether ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ " Id. (quoting Hamilton, 69 Va. App. at 195, 817 S.E.2d 343 ).

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 issue de novo. See Barson v. Commonwealth, 284 Va. 67, 71-72, 726 S.E.2d 292 (2012) ; Miller v. Commonwealth, 64 Va. App. 527, 537, 769 S.E.2d 706 (2015). Although criminal statutes are to be strictly construed against the Commonwealth, we must also "give reasonable effect to the words used" in the legislation. Johnson v. Commonwealth, 37 Va. App. 634, 639, 561 S.E.2d 1 (2002) (quoting Dillard v. Commonwealth, 28 Va. App. 340, 344, 504 S.E.2d 411 (1998) ). When interpreting a statute, an 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, 821 S.E.2d 540 (2018) (quoting Johnson v. Commonwealth, 292 Va. 738, 742, 793 S.E.2d 321 (2016) ). Consequently, if the language is "plain and unambiguous, we are bound by [its] plain meaning." Tisdale v. Commonwealth, 65 Va. App. 478, 484, 778 S.E.2d 554 (2015) (quoting Lee Cnty. v. Town of St. Charles, 264 Va. 344, 348, 568 S.E.2d 680 (2002) ); see Jones, 296 Va. at 415, 821 S.E.2d 540 (quoting Alston v. Commonwealth, 274 Va. 759, 769, 652 S.E.2d 456 (2007) ).

The appellant was convicted of unlawful creation of an image under Code § 18.2-386.1. The applicable subsection of the statute forbids a person from "knowingly and intentionally creat[ing] any videographic or still image" of a person without consent 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 public; and when the circumstances set forth in clause (i) or (ii) are otherwise such that the person being recorded would have a reasonable expectation of privacy.

Code § 18.2-386.1(A).

The appellant was convicted under clause (i). As set forth clearly in the statute, the elements of that offense relevant to our analysis here are: that the victim did not consent, was in a location such as a "restroom, dressing room, locker room, ... bedroom or other location," and the circumstances were "otherwise such" that the victim "would have a reasonable expectation of privacy." See id. See generally Tisdale, 65 Va. App. at 484, 778 S.E.2d 554 (adhering to the plain meaning of statutory language).

The sufficiency issue raised requires interpretation of the statutory phrase "reasonable expectation of privacy" as it applies to clause (i). "When a ‘statute's terms...