Virginia Possession Child Pornography Production Intent Distribute Indecent Liberties Minor Sexually Explicit 18.2-374.1 18.2-370
Virginia Possession Child Pornography Production Intent Distribute Indecent Liberties Minor Sexually Explicit 18.2-374.1 18.2-370
HELEN ELAINE MASON v. COMMONWEALTH OF VIRGINIA
COURT OF APPEALS OF VIRGINIA
49 Va. App. 39
November 7, 2006, Decided
Whether the evidence was insufficient to support her convictions of taking indecent liberties with a child?
Whether the trial court erred in appellant's convictions on the child pornography charges were not multiplicitous?
Whether the trial court erred in denying appellant's proposed instruction on "lascivious intent"?
1) Whether the evidence was insufficient to support her convictions of taking indecent liberties with a child?
The Court held that "the evidence established that appellant's actions satisfied all prongs of the McKeon test (McKeon v. Commonwealth, 211 Va. 24, 27, 175 S.E.2d 282, 284 (1970)). At the insistenceof 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."
2) Whether the trial court erred in appellant's convictions on the child pornography charges were not multiplicitous?
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 intentthat 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.
3) Whether the trial court erred in denying appellant's proposed instruction on "lascivious intent"?
In McKeon, the Court made the following statement in determining that the evidence was insufficient to prove the defendant possessed lascivious intent: Accepting everything the victim said as true, the evidence does not warrant a finding that lascivious intent of the defendant has been shown beyond a reasonable doubt. From the victim's description of what happened, there is no evidence that the defendant was sexually aroused; that he made any gestures toward himself or to her; that he made any improper remarks to her; or that he asked her to do anything wrong.
Subsequent to its decision in McKeon, the Court has stated that proof of any one of the McKeon factors can be sufficient to prove lascivious intent under Code 18.2-370. However, the Court has not held that proof of one of the fourfactors is a prerequisite to a finding of lascivious intent. Thus, we conclude that that the supplemental language contained in Instruction B was not required to guide the jury regarding the issue of lascivious intent. Accordingly, the trial court did not err in denying appellant's proposed instruction.
Conclusion
This court affirmed the trial court order.
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