Johnson v. Commonwealth

• Decision Date: 27 July 2021
• Docket Number: Record No. 0443-20-2
• Citation: 73 Va.App. 393,860 S.E.2d 408
• Court: Virginia Court of Appeals
• Parties: Ronnie Lee JOHNSON v. COMMONWEALTH of Virginia

73 Va.App. 393

860 S.E.2d 408

Ronnie Lee JOHNSON

v.COMMONWEALTH of Virginia

Record No. 0443-20-2

Court of Appeals of Virginia.

JULY 27, 2021

Marvin D. Miller (The Law Offices of Marvin D. Miller, on briefs), Alexandria, for appellant.

Liam A. Curry, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Chief Judge Decker, Judges Humphreys and AtLee

OPINION BY JUDGE RICHARD Y. ATLEE, JR.

Following a bench trial, the circuit court found appellant Ronnie Lee Johnson guilty of unlawful filming under Code § 18.2-386.1. He received a sentence of twelve months in jail, with six months suspended. On appeal, Johnson argues that, because the victim, D.B., was knowingly and consensually¹ nude and engaging in sexual activity in her bedroom at the time of recording, that she had no "reasonable expectation of privacy" as required by Code § 18.2-386.1.² For the following reasons, we affirm.

I. BACKGROUND

"On appeal of criminal convictions, we view the facts in the light most favorable to the Commonwealth, and [we] draw all reasonable inferences from those facts." Payne v. Commonwealth, 65 Va. App. 194, 198, 776 S.E.2d 442 (2015).

Johnson and the victim, D.B., dated beginning in 2017 until the relationship ended in April 2019. They executed a domestic tenant agreement sometime in 2018, after Johnson had been staying with D.B. During the relationship, Johnson made many recordings while he and D.B. were engaged in sexual activity in D.B.’s bedroom. These videos focused on D.B., her naked or partially-undressed body, and her genitalia. At no point did she appear aware that Johnson was recording. D.B. testified that she learned of these recordings after the relationship ended, initially when Johnson wrote an email to D.B., attaching a video showing her naked as he digitally penetrated her anus. D.B. went to the police with the recording.

D.B. testified at trial that she never consented to any recordings being made of her. She also stated that Johnson "drugged [her] to get that video" that he attached to the email.

The Commonwealth also submitted two other recordings aside from the ones depicting Johnson's and D.B.’s sexual activity. The first was of a Skype conversation between Johnson and D.B. She repeatedly expressed her concern that Johnson was recording the conversation. Johnson lied, insisting that he was not, even though it was his recording that was submitted at trial. Johnson, who was masturbating at points during the call despite D.B.’s obvious discomfort, repeatedly asked D.B. to show him her breasts, bra, and cleavage. She repeatedly refused, although she reluctantly consented to show her stomach at points. Finally, D.B. relented and showed Johnson the bottom portion of her bra. When Johnson asked to see more, she ended the call.

The second recording was one Johnson made of an argument between him and D.B. At one point, Johnson mentioned that he and D.B. had sex the previous night, which D.B. denied, stating that he was "in Vero Beach[, FL]." He offered to show her videos. She stated that no video exists, and if it did, she "[didn't] know anything about it." Johnson told her he had been recording their sexual activity for over a year. He spoke of a previous relationship which taught him to record everything. He also threatened to have D.B. involuntarily committed for alcohol abuse treatment.

At trial, Johnson presented a document that purported to be a contract between D.B. and Johnson in which D.B. gave written consent to being recorded while engaged in sexual activity. D.B. testified that while the signature on the document resembled her own, she had never seen it before.³

At the close of trial, the circuit court found Johnson guilty of one count of unlawful creation of images and sentenced him to serve twelve months in jail, with six months suspended. The execution of his sentence has been suspended during the pendency of this appeal.

This appeal followed.

II. ANALYSIS

Johnson argues that, because D.B. had no "reasonable expectation of privacy" under Code § 18.2-386.1 when he recorded her, the evidence is insufficient to support his conviction.

"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." Haba v. Commonwealth, 73 Va. App. 277, 283, 858 S.E.2d 436 (2021). "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." Id. (alteration in original) (citation omitted) (quoting Vasquez v. Commonwealth, 291 Va. 232, 236, 781 S.E.2d 920 (2016) ). In our review, this Court must defer to the factual findings made in the lower court unless they are plainly wrong or lack evidence to support them. See Turner v. Commonwealth, 65 Va. App. 312, 330, 777 S.E.2d 569 (2015). When judging credibility, a fact-finder is "entitled to disbelieve the self-serving testimony of the accused." Marsh v. Commonwealth, 57 Va. App. 645, 655, 704 S.E.2d 624 (2011) (quoting Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233 (1998) ).

When our review of the sufficiency of the evidence requires statutory interpretation, we review the language and meaning of that statute de novo. See Sarafin v. Commonwealth, 288 Va. 320, 325, 764 S.E.2d 71 (2014). "When interpreting a statute, an appellate court ‘presume[s] that the General Assembly chose, with care, the words that appear in [that] statute.’ " Haba, 73 Va. App. at 284, 858 S.E.2d 436 (quoting Jones v. Commonwealth, 296 Va. 412, 415, 821 S.E.2d 540 (2018) ). "When the language of a statute is plain and unambiguous, we are bound by the plain meaning of that statutory language." Jones, 296 Va. at 415, 821 S.E.2d 540 (quoting Alston v. Commonwealth, 274 Va. 759, 769, 652 S.E.2d 456 (2007) ).

Johnson was convicted of unlawful filming under Code § 18.2-386.1(A), which provides, in part:

A. It shall be unlawful for any person to knowingly and intentionally create any videographic or still image by any means whatsoever of any nonconsenting person 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.

The portion at issue here is subsection (i), concerning recording when "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 ... bedroom ...," where "the circumstances ... are otherwise such that the person being recorded would have a reasonable expectation of privacy. " Id. (emphasis added). It is undisputed that D.B. was either "nude" or in a "state of undress" while in her bedroom when Johnson made the recordings, as required under subsection (A)(i). Johnson's argument concerns what the "reasonable expectation of privacy" means in the context of this statute.

Johnson contends that D.B., by being knowingly nude and participating in sexual activity while she was in view of Johnson, had no "reasonable expectation of privacy" under the statute. He argues that "[c]onsent to allow another to see something removes any reasonable expectation of privacy because people are allowed to see that which one consents for them to see." Under Johnson's interpretation of Code § 18.2-386.1(A), any person may secretly record another individual engaged in consensual sexual activity without their consenting to being recorded, so long as the person making the recording is present with the victim's knowledge. In short, consenting to being undressed in front of, or sexual activity with, the other person provides consent to being recorded. We reject this argument.

In the context of a statute criminalizing unlawful recording of another, such "reasonable expectation of privacy" concerns one's privacy from being recorded , not from being seen. Haba, 73 Va. App. at 292, 858 S.E.2d 436.⁴ There is a stark distinction between an image existing only in someone's memory, as opposed to it being a permanent file that may be shared or re-viewed indefinitely beyond the moment when one's consent to the activity was provided. Recognizing that, the General Assembly made the unlawful creation of images the gravamen of the offense under Code § 18.2-386.1(A). Haba, 73 Va. App. at 292, 858 S.E.2d 436 ("[T]he conviction is ... for unlawfully creating a videographic image " of the victim.). This is evident from the plain language of the statute, which criminalizes "knowingly and intentionally creat[ing] any videographic or still image." Code § 18.2-386.1(A) ; cf. Groffel v. Commonwealth, 70 Va. App. 681, 689, 831 S.E.2d 503 (2019) (noting that the gravamen of an offense is its essence, which the Court must look to when interpreting ambiguous statutes), aff'd, 299 Va. 271, 849 S.E.2d 905 (2020).

Furthermore, Code § 18.2-386.1(A) imposes no requirement that the perpetrator be unlawfully present or be concealing themselves from the victim. Haba, 73 Va. App. at 289, 858 S.E.2d 436 (finding that "the known presence of another person does not automatically negate a reasonable expectation of privacy" under the statute). To so find would not only read...