Terlecki v. Commonwealth

• Decision Date: 16 June 2015
• Docket Number: Record No. 1681–14–2.
• Citation: 65 Va.App. 13,772 S.E.2d 777
• Parties: Michael Thomas TERLECKI v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

65 Va.App. 13

772 S.E.2d 777

Michael Thomas TERLECKI

v.COMMONWEALTH of Virginia.

Record No. 1681–14–2.

Court of Appeals of Virginia, Richmond.

June 16, 2015.

Norman A. Thomas (Lavonda N. Graham–Williams ; Alexandria, Norman A. Thomas, PLLC; Law Office of Lavonda N. Graham–Williams, Esq., on briefs), for appellant.

Christopher P. Schandevel, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: HUFF, C.J., and BEALES and ATLEE, JJ.

Opinion

HUFF, Chief Judge.

After a bench trial in the Circuit Court of the City of Fredericksburg (“trial court”), Michael Thomas Terlecki (“appellant”) was found guilty of possession of child pornography, in violation of Code § 18.2–374.1:1(A), and sentenced to three years' incarceration with two years and four months suspended. On appeal, appellant presents two assignments of error:

1. The trial court erred in failing to grant ... appellant's motions to strike, because the Commonwealth failed to present sufficient competent evidence to prove that the alleged images depicted an actual person, as definitional[l]y required by ... Code § 18.2–374.1(A), or otherwise prove his possession of child pornography.

2. The trial court erred in convicting ... appellant of a violation of ... Code § 18.2–374.1:1(A), to-wit, possession of child pornography, because the Commonwealth failed to prove that the images depicted an actual person, that ... appellant possessed the images, that his admissions constituted a “confession,” or, otherwise, prove the corpus delicti of the alleged offense.

For the following reasons, this Court affirms the rulings of the trial court.

I. BACKGROUND

On appeal, “ ‘we 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, 296 (2007) (en banc ) (quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004) ). So viewed, the evidence is as follows.

In August 2012, appellant “lent” his Dell laptop to his then-girlfriend, Michelle Humphries (“Humphries”), to “use ... during the day while [appellant] was at work.” Humphries testified that she was “looking through his photo files” when she noticed that his recycle bin was full. Humphries opened the recycle bin and found “multiple files of pornography.” Humphries testified in detail regarding the images she found on appellant's computer. One file contained images of “minors who were—who were naked or otherwise engaged in some form of sexual activity....” Specifically, the images displayed “young teenage girls masturbating.” Additionally, “there was one photo of a girl in her early teens ... who was being held down by a group of men and they had inserted a champagne bottle into her vagina.” Humphries also testified that “[t]here were probably at least 20 photos in all” and that her determination of the girls' ages was based on the fact that she has “three younger sisters” and is therefore “aware of developmental stages.” Continuing, she stated that “it was very obvious to me in a couple of the photos that they were pre-pubescent and that they hadn't developed breasts ... or body hair yet.”

After discovering the images, Humphries confronted appellant with a friend, at which point appellant admitted that he used the images for sexual gratification, including masturbation. After appellant “agreed that he would find a counselor who specialized in sexual addiction and that he would abstain from downloading any more pornographic material of that nature,” Humphries took no further action at that time. In May 2013, however, Humphries discovered more pornographic images on appellant's computer. She described them as “the same” as the images she had seen in August 2012—“young teens masturbating or otherwise engaged in sexual activity.” After Humphries again confronted appellant, the couple broke off their relationship. Two months later, Humphries anonymously reported appellant because she feared “what could happen if [she] didn't say anything.”

On cross-examination, Humphries admitted that she was not an expert in computer-generated imagery, but testified that the pictures were not fuzzy but “clear” and that they “looked human” and were not “a cartoon or a likeness.” On redirect, Humphries testified that the images did not “appear to be computer generated in any way” and “appeared to be real people.”

During the last week of June 2013, appellant destroyed his laptop and threw it into a dumpster. Around that same time, Detective Carlos Reyes (“Reyes”) of the Fredericksburg Police Department received a tip regarding a possible possession of pornography case, causing Reyes to meet with Humphries. Reyes then went to appellant's place of employment, and appellant agreed to come back to the police station for a voluntary interview.

In the interview, which was recorded, appellant acknowledged that Humphries had found child pornography on his computer in August 2012 and that he admitted to her that he looks at child pornography. Appellant stated that he has been viewing child pornography since he was ten or eleven years old and that the last time he looked at child pornography was on June 26, 2013, the day before he went to a Sexaholics Anonymous meeting. Appellant also stated that he had destroyed the computer which contained the images and threw it into a dumpster in the last week of June.

Reyes specifically asked appellant what he meant by the term “child pornography,” to which appellant responded that he had been looking at pictures of small children ranging in ages from eight to seventeen. Appellant claimed that some of the pictures showed “little girls” performing oral sex on grown men. Throughout the interview, appellant never indicated to Reyes that the images on his computer had been computer-generated, cartoons, or anything other than actual children.

At the close of the Commonwealth's evidence, appellant moved to strike, arguing that the evidence, which did not contain the actual images, did not prove that the images depicted “an actual person.” Appellant also argued that he gave no confession during the interview, but rather his statements were “merely an admission.” Finally, appellant argued the evidence failed to prove he actually possessed the images. After denying appellant's motion to strike the evidence at the close of the Commonwealth's case and renewed motion to strike at the close of all the evidence, the trial court found appellant guilty of possession of child pornography, in violation of Code § 18.2–374.1:1(A). This appeal followed.

II. ANALYSIS

A. Sufficiency of the Evidence

On appeal, appellant contends that the trial court erred by failing to grant appellant's motions to strike the evidence.

Specifically, appellant argues that the evidence failed to show 1) that the “images depicted an actual person,” and 2) that appellant “possess[ed]” the images.

Our standard for reviewing the sufficiency of the evidence is firmly established:

[W]hen the sufficiency of the evidence is challenged on appeal, the evidence and all reasonable inferences fairly drawn therefrom must be viewed in the light most favorable to the Commonwealth. The trial court's judgment should be affirmed unless it appears that it is plainly wrong or without evidence to support it.

Spencer v. Commonwealth, 238 Va. 275, 283, 384 S.E.2d 775, 779 (1989) (citations omitted). Additionally, under this familiar standard of review, “[a]n 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, 282 (2009) (emphasis in original) (quoting Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S.Ct. 2781, 2788–89, 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. Therefore, this Court will not disturb the fact finder's determination of the credibility of witness testimony unless, “as a matter of law, the testimony is inherently incredible.” Walker v. Commonwealth, 258 Va. 54, 70–71, 515 S.E.2d 565, 575 (1999). Indeed, “[t]he living record contains many guideposts to the truth which are not in the printed record,” and an appellate court, not having the benefit of these guideposts, “should give great weight to the conclusions of those who have seen and heard them.” Bradley v. Commonwealth, 196 Va. 1126, 1136, 86 S.E.2d 828, 834 (1955).

Code § 18.2–374.1:1(A) provides that “[a]ny person who knowingly possesses child pornography is guilty of a Class 6 felony.” Child pornography is defined as “sexually explicit visual material which utilizes or has as a subject an identifiable minor.” Code § 18.2–374.1(A). The phrase “an identifiable minor” is further defined as

a person who was a minor at the time the visual depiction was created, adapted, or modified ... and is recognizable as an actual person by the person's face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature....

Id. “In order to convict a person for possession of child pornography,” therefore, “the Commonwealth must prove beyond a reasonable doubt that the individual ‘knowingly possesse[d] sexually explicit visual material utilizing or having as a subject a person less than 18 years.’ ” Kromer v. Commonwealth, 45 Va.App. 812, 817, 613 S.E.2d 871, 873 (2005) (quoting Code § 18.2–374.1:1 ).

1. Identifiable Minor

First, appellant challenges that the evidence was sufficient to show “that the images depicted an identifiable minor” or “actual person.” Code § 18.2–374.1(A). Specifically, appellant argues that the evidence failed to exclude the possibility that the subjects in the images were not actual people, but were computer-generated images. To establish that the subject depicts an identifiable minor under Code ...