Mason v. Commonwealth, Record No. 1466-05-4.

Decision Date07 November 2006
Docket NumberRecord No. 1466-05-4.
PartiesHelen Elaine MASON v. COMMONWEALTH of Virginia.
CourtVirginia Court of Appeals

William A. Crane, Winchester, for appellant.

Susan M. Harris, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: ELDER and HUMPHREYS, JJ., and FITZPATRICK, Senior Judge.

JOHANNA L. FITZPATRICK, Judge.

A jury convicted Helen Elaine Mason (appellant) of five counts of taking indecent liberties with a minor and ten counts of producing or possessing child pornography with the intent to distribute. On appeal, she contends: 1) the evidence was insufficient to support her convictions of taking indecent liberties; 2) the trial court erred in finding that each photograph of the child could support a separate conviction of the pornography offense; 3) the trial court erroneously instructed the jury regarding the definition of "lascivious"; and 4) the trial court erroneously instructed the jury on the definition of "sexually explicit visual material." We find no error and affirm appellant's convictions.1

I. SUFFICIENCY OF THE EVIDENCE

Appellant first contends the evidence was insufficient to support her convictions of taking indecent liberties with a child. We disagree.

"`When the sufficiency of the evidence is challenged on appeal, we determine whether the evidence, viewed in the light most favorable to the prevailing party, the Commonwealth, and the reasonable inferences fairly deducible from that evidence support each and every element of the charged offense.'" Slade v. Commonwealth, 43 Va.App. 61, 69, 596 S.E.2d 90, 94 (2004) (quoting Haskins v. Commonwealth, 31 Va. App. 145, 149-50, 521 S.E.2d 777, 779 (1999)).

Pursuant to Code § 18.2-370(A)(1), a person eighteen years of age or over is guilty of a Class 5 felony if he or she, "with lascivious intent, knowingly and intentionally ... [e]xpose[s] his or her sexual or genital parts to any child 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[.]" Although appellant admits that she and L.M. each took nude photos of each other, appellant contends she did not possess lascivious intent at the time the photos were produced.

Although it is not defined by Code § 18.2-370, the term "lascivious intent" has been defined by the Virginia Supreme Court as "`a state of mind that is eager for sexual indulgence, desirous of inciting to lust or of inciting sexual desire and appetite.'" Viney v. Commonwealth, 269 Va. 296, 299, 609 S.E.2d 26, 28 (2005) (quoting McKeon v. Commonwealth, 211 Va. 24, 27, 175 S.E.2d 282, 284 (1970)). In "McKeon, the Court "enumerated evidence that may prove lascivious intent as follows: (1) that the defendant was sexually aroused; (2) that the defendant made gestures toward himself or to the child; (3) that the defendant made improper remarks to the child; or (4) that the defendant asked the child to do something wrong." Viney, 269 Va. at 300, 609 S.E.2d at 28 (concluding that defendant's eye movements toward his exposed genitals demonstrated his lascivious intent). "[P]roof of any one [of the listed] factor[s] can be sufficient to uphold a conviction under the statute." Campbell v. Commonwealth, 227 Va. 196, 200, 313 S.E.2d 402, 404 (1984) (evidence sufficient to prove lascivious intent where defendant, within a child's view, gestured toward himself, both before and after pulling down his pants, then gestured again after pulling his pants to his knees).

"`Intent is the purpose formed in a person's mind and may be, and frequently is, shown by the circumstances. It is a state of mind which may be proved by a person's conduct or by his statements.'" Haywood v. Commonwealth, 20 Va.App. 562, 565, 458 S.E.2d 606, 608 (1995) (quoting Barrett v. Commonwealth, 210 Va. 153, 156, 169 S.E.2d 449, 451 (1969)). "`Whether the required intent exists is generally a question for the trier of fact.'" Crawley v. Commonwealth, 25 Va.App. 768, 773, 492 S.E.2d 503, 505 (1997) (quoting Nobles v. Commonwealth, 218 Va. 548, 551, 238 S.E.2d 808, 810 (1977)). "The inferences to be drawn from proved facts are within the province of the trier of fact, so long as the inferences are reasonable and justified." Barrett, 210 Va. at 156, 169 S.E.2d at 451.

The evidence established that appellant's actions satisfied all prongs of the McKeon test. At the insistence of Hugo Sandoval, appellant's incarcerated husband, appellant requested L.M., a thirteen-year-old female, to participate in a scheme to provide sexually explicit photographs to Sandoval. The admitted telephone conversations between appellant and Sandoval plainly demonstrate that they shared an intent to incite sexual desire and appetite in each other by taking sexually explicit photographs of appellant and L.M. The tone of the discussions indicated the photographs were being made for Sandoval's sexual enjoyment. Moreover, appellant admittedly became sexually aroused in the process. While obtaining the sexually explicit photographs of L.M., appellant had L.M. pose with a vibrator placed between the lips of L.M.'s genitalia like it was "just ready to go in." Upon this evidence, the jury was entitled to conclude beyond a reasonable doubt that appellant possessed lascivious intent at the time the photographs were produced and that she was guilty of taking indecent liberties with a child.

II. MULTIPLE CONVICTIONS OF POSSESSING CHILD PORNOGRAPHY

Appellant next argues that the trial court should have limited the number of child pornography charges to the number of incidents during which the photographs were produced, rather than permitting prosecution of a separate charge based upon each individual photograph.2

"When considering multiple punishments for a single transaction, the controlling factor is legislative intent." Kelsoe v. Commonwealth, 226 Va. 197, 199, 308 S.E.2d 104, 104 (1983). The legislature "determine[s] the appropriate `unit of prosecution' and set[s] the penalty for separate violations." Jordan v. Commonwealth, 2 Va.App. 590, 594, 347 S.E.2d 152, 154 (1986). "Therefore, although multiple offenses may be the `same,' an accused may be subjected to legislatively `authorized cumulative punishments.'" Shears v. Commonwealth, 23 Va. App. 394, 401, 477 S.E.2d 309, 312 (1996) (quoting Jordan, 2 Va.App. at 594, 347 S.E.2d at 154).

In Educational Books, Inc. v. Commonwealth, 228 Va. 392, 323 S.E.2d 84 (1984), the Supreme Court held that the unit of prosecution for the sale of obscene items under Code § 18.2-374 was the number of each such item sold, reasoning that "Code § 18.2-374 prohibits the sale of `any obscene item.' Code § 18.2-373 provides that `[o]bscene items' shall include `[a]ny obscene magazine.' The gravamen of the offense is the sale of a single obscene item." Id. at 395, 323 S.E.2d at 86.

Similarly, Code § 18.2-374.1(B)(4), under which appellant was prosecuted, prohibits the distribution or possession with the intent to distribute of "sexually explicit visual material which utilizes or has as a subject a person less than eighteen years of age." Code § 18.2-374.1(A) defines "sexually explicit visual material" as "a picture, photograph, drawing, sculpture, motion picture film, digital image or similar visual representation" depicting lewd conduct or sexual activity. (Emphasis added.)

In State v. Howell, 169 N.C.App. 58, 609 S.E.2d 417, 419 (2005), the North Carolina Court of Appeals considered whether the presence of over 200 images of child pornography on the defendant's computer hard drive could support multiple convictions under the state's child pornography law prohibiting possession of "a visual representation of a minor engaging in sexual activity." Reviewing cases from other jurisdictions that addressed the issue of multiplicity, the court noted that it:

found no jurisdictions ... which have held the use of the singular "a," as appears in our statute, to be ambiguous. Indeed an Alabama court stated: "How, then, should the unit of prosecution be described so that an intent to allow multiple convictions is clear and unequivocal? Instead of using the word `any' to describe the unit of prosecution, the singular word[] `a' ... should be used."

Id. at 420 (quoting McKinney v. State, 511 So.2d 220, 224 (Ala.1987)).

By using the word "a" followed by a succession of singular nouns in the definition of "sexually explicit visual material" in Code § 18.2-374.1(A), the Virginia legislature has demonstrated its clear intent3 that possession of a single photograph could constitute an offense under Code § 18.2-374.1 and that multiple punishments would result from multiple violations of the statute. Accordingly, we conclude that the permissible unit of prosecution for possession of child pornography under Code § 18.2-374.1(B)(4) corresponds to the number of individual items of sexually explicit visual material. The trial court correctly ruled that appellant's convictions on the child pornography charges were not multiplicitous.

III. JURY INSTRUCTION ON "LASCIVIOUS INTENT"

In Instruction 9, the trial court instructed the jury: "The word lascivious means a state of mind that is eager for sexual indulgence, desirous of inciting to lust or of inciting sexual desire and appetite." At trial, appellant contended that, while Instruction 9 was a correct statement of law, it did not provide the jury with sufficient guidance regarding lascivious intent.4 Appellant argues the trial court erred in refusing her proposed Instruction B, which included the statement:

Proof of any of the following four factors can show a lascivious state of mind on the part of the defendant in this case:

1. That the defendant was sexually aroused; or

2. That the defendant made inappropriate gestures toward herself or the child; or

3. That the defendant made sexually improper remarks to the child; or

4. That ...

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