Hillman v. Commonwealth

• Decision Date: 03 April 2018
• Docket Number: Record No. 0287-17-3
• Parties: Major Lance HILLMAN v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

68 Va.App. 585

811 S.E.2d 853

Major Lance HILLMAN

v.COMMONWEALTH of Virginia

Record No. 0287-17-3

Court of Appeals of Virginia, Salem.

APRIL 3, 2018

Matthew L. Pack (M. Pack Law, PLLC, on brief), Bedford, for appellant.

Eugene P. Murphy, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Alston, Chafin and Malveaux

OPINION BY JUDGE MARY BENNETT MALVEAUX

Major Lance Hillman ("appellant") was found guilty of use of a computer to solicit a minor, in violation of Code § 18.2-374.3, and taking indecent liberties with a child, in violation of Code § 18.2-370. On appeal, appellant argues the trial court (1) erred in finding that the evidence was sufficient to prove that his actions constituted an exposure; (2) erred in finding that the evidence was sufficient to prove that he knew or had reason to believe that the victim was younger than 15 years of age; and (3) abused its discretion by allowing photographs to be admitted that had not been properly authenticated. Finding no error, we affirm.

I. BACKGROUND

The Offenses

Appellant was employed as the youth pastor at A.F.'s church. Between August and December of 2015, A.F. sought out appellant for counseling because of prior sexual abuse. At that time, A.F. was fourteen years old and in the eighth grade. Appellant was twenty-two years old. To participate in the church's youth group, A.F. had to sign a medical release form which listed both her age and date of birth. This form was given to the church. A.F. never told appellant that she was older than fourteen, but did not specifically remember telling him her age.

A.F. and appellant began to communicate via text message and later through Snapchat.¹ Several dated and time-stamped text messages recovered from appellant's iPad show that on the evening of October 27, 2015, appellant asked A.F. if she used Snapchat, and asked her to "add" him to hers.

Appellant then gave A.F. his Snapchat user name, and ten minutes later asked her if she "g[o]t that." A.F. replied "yes" about twenty seconds later. During a two-hour period that night, appellant and A.F. exchanged text messages stating that they had sent Snapchat messages and asking if the other person had received them.

Via Snapchat, A.F. sent appellant a nude picture of her upper body, and in return, appellant sent her a nude picture of himself. Appellant also sent A.F. a picture of his erect penis. They also sent each other videos in which appellant was nude and A.F.'s upper body was nude.

Evidence at Trial

Jason Sloan, an investigator with the Campbell County Sheriff's Office at the time of the offenses, testified that in addition to the text messages, he found photographs on appellant's iPad of a male subject with visible genitalia.² The Commonwealth attempted to introduce these photographs through Sloan. Counsel for appellant objected on the ground that they were not properly authenticated. The court sustained the objection. The Commonwealth recalled A.F. and asked her if she had received the photographs from appellant via Snapchat, to which A.F. responded in the affirmative. However, A.F. also acknowledged on cross-examination that during the period of time in which she and appellant were exchanging Snapchat messages, the application deleted photographs shortly after they were sent and they could not be saved. A.F. then testified that because the pictures were sent with Snapchat, the photographs she saw in court were not actually the pictures that were sent, but were just "similar." Also on cross-examination, A.F. was asked whether the pictures were a fair and accurate representation of the pictures sent to her by appellant, and she replied "yes." Counsel for appellant again objected to the introduction of the photographs, arguing that they still were not properly authenticated as the actual photographs sent to A.F. The trial court overruled the objection and admitted the photographs, specifically noting that A.F. had affirmed that the pictures were a fair and accurate representation of the photographs sent to her by appellant.

Investigator Dudley of the Campbell County Sheriff's Office testified that he interviewed appellant as a part of his investigation. Dudley testified that "[appellant's] story was just about the same as [A.F.'s]." Dudley testified that during the recorded interview, appellant admitted sending A.F. naked photographs and videos, and also admitted to asking A.F. for naked photographs and videos, a request with which she complied. Appellant told Dudley that exchanging the photographs was a counseling technique he used to help A.F. deal with prior sexual abuse that she had revealed to him. When asked during the interview how old A.F. was, appellant responded "fifteen I believe ... fourteen, fifteen."

Appellant was convicted, after a jury trial, of use of a computer to solicit a minor, in violation of Code § 18.2-374.3, and taking indecent liberties with a child, in violation of Code § 18.2-370.

II. ANALYSIS

A. "Exposure" under Code § 18.2-370

On appeal, appellant argues that the trial court erred in finding the evidence sufficient to prove that he committed an act of exposure necessary for a conviction of taking indecent liberties under Code § 18.2-370.³

"We review the sufficiency of the evidence in the light most favorable to the Commonwealth, and only reverse the judgment of the circuit court when its decision is plainly wrong or without evidence to support it." Farhoumand v. Commonwealth, 288 Va. 338, 351, 764 S.E.2d 95, 102 (2014). "Nevertheless, when an appeal 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." Smith v. Commonwealth, 282 Va. 449, 453-54, 718 S.E.2d 452, 454 (2011). "To the extent our analysis of the sufficiency of the evidence requires us to examine the statutory language, we review issues of statutory construction de novo on appeal." Miller v. Commonwealth, 64 Va. App. 527, 537, 769 S.E.2d 706, 710 (2015).

Code § 18.2-370(A)(1) provides, in relevant part, that:

Any person 18 years of age or over, who, with lascivious intent, knowingly and intentionally ... [e]xpose[s] his or her sexual or genital parts to any child [under the age of 15 years] to whom such person is not legally married or propose[s] that any such child expose his or her sexual or genital parts to such person [is guilty of a Class 5 felony].

The appellate courts of Virginia have had numerous opportunities to examine the definition of "expose" under Code § 18.2-370. We begin, as many of these cases do, with an examination of the plain meaning of the word "expose." We do so because "the general rule of statutory construction is to infer the legislature's intent from the plain meaning of the language used." Meeks v. Commonwealth, 274 Va. 798, 802, 651 S.E.2d 637, 639 (2007) (quoting Hubbard v. Henrico Ltd. P'ship, 255 Va. 335, 340, 497 S.E.2d 335, 338 (1998) ). "Thus, '[a]n undefined term must be given its ordinary meaning, given the context in which it is used.' " Id. (quoting Sansom v. Bd. of Supervisors, 257 Va. 589, 594-95, 514 S.E.2d 345, 349 (1999) ).

In Farhoumand, 288 Va. 338, 764 S.E.2d 95, our Supreme Court reviewed several dictionary definitions of the word "expose" in an effort to discern whether the term "expose" as used in Code § 18.2-370 is limited to visual exposure, or included tactile exposure as well:

Webster's Third New International Dictionary 802 (1993) defines expose as "to lay open to view" or "lay bare." It also offers the definitions to "make known" or "set forth," with the qualifying example: "[E]ach had started exposing his views." The Webster's New College Dictionary 252 (3rd ed. 2008), defines "expose" as "to lay bare or uncover." Merriam-Webster's Collegiate Dictionary 441 (11th ed. 2003), defines "expose" as "caus[ing] to be visible or open to view." In The American Heritage Dictionary of the English Language 625 (5th ed. 2011), "expose" is defined simply as "to make visible."

Id. at 343, 764 S.E.2d at 98. The Court concluded that each definition supported its holding that under Code § 18.2-370, " 'expose' unambiguously means revealing one's genitalia to sight," thus a touching of genitals was not exposure under the statute. Id.

In this case, we find that the ordinary definitions of "expose" cited in Farhoumand support a finding that appellant's behavior constituted exposure under Code § 18.2-370. Here, appellant sent photographs of his genitals to A.F. via Snapchat. We find nothing in any of the dictionary definitions that indicates that he did not "expose" himself by doing so. Rather, appellant's Snapchat messages laid "open to view," "ma[d]e known," and "cause[d] to be visible" his genitals to A.F. The plain meaning of "expose" therefore supports the conclusion that the messages sent by appellant via Snapchat satisfy the "expose" element of Code § 18.2-370.

However, appellant argues that his conduct failed to constitute exposure because prior case law has established that exposure under this statute must occur (1) in the physical presence of the victim, and (2) contemporaneous with this physical presence. Appellant contends these requirements derive from two cases from this Court, Holley v. Commonwealth, 38 Va. App. 158, 562 S.E.2d 351 (2002), and Brooker v. Commonwealth, 41 Va. App. 609, 587 S.E.2d 732 (2003). We address each argument in turn.

Physical Presence

In Holley, defendant lived next door to a woman who operated a daycare center in her home. Holley, 38 Va. App. at 160, 562 S.E.2d at 352. On several occasions, the daycare provider saw defendant standing naked at the glass doors at the back of his home. Id. Two parents dropping their children off at daycare also observed defendant standing naked behind his glass doors. Id. at 161, 562 S.E.2d at 352. After the...