Moyer v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton, Coleman, Elder,
Bray, Bumgardner, Humphreys and Senior Judge Cole
Argued at Richmond, Virginia

GREGORY ALLEN MOYER
OPINION BY
v. Record No. 2959-97-2 JUDGE LARRY G. ELDER
JULY 25, 2000
COMMONWEALTH OF VIRGINIA

UPON A REHEARING EN BANC

FROM THE CIRCUIT COURT OF FLUVANNA COUNTY
John R. Cullen, Judge

W. Reilly Marchant (Thorsen, Marchant & Scher
L.L.P., on brief), for appellant.

Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
briefs), for appellee.

Gregory A. Moyer (appellant) was convicted in a bench trial

on fourteen counts of taking indecent liberties with a minor

pursuant to Code § 18.2-370.1. On appeal, he contends the trial

court erroneously ruled that (1) police seizure of his personal

journals pursuant to a search warrant and the admission of the

journals into evidence did not violate his Fourth or Fifth

Amendments rights; (2) buttocks are "sexual parts" within the

meaning of Code § 18.2-370.1; and (3) the evidence was

sufficient to support his convictions. A panel of this Court,

with one judge dissenting, agreed that seizure and admission of

the diaries violated appellant's Fourth and Fifth Amendment
rights, reversed his convictions, and remanded for retrial. See

Moyer v. Commonwealth, 30 Va. App. 744, 520 S.E.2d 371 (1999).

We granted the Commonwealth's petition for rehearing en banc and

stayed the mandate of that decision. Upon rehearing en banc, we

hold the trial court did not err in ruling that (1) police

seizure of appellant's personal journals pursuant to a search

warrant and the admission of the journals into evidence did not

violate his Fifth Amendments rights and any Fourth Amendment

violation was subject to the good faith exception to the

exclusionary rule; (2) buttocks are "sexual parts" within the

meaning of Code § 18.2-370.1; and (3) the evidence was

sufficient to support his convictions. Therefore, we affirm the

decision of the trial court.

I.

BACKGROUND

Appellant was an eighth grade science teacher at Fork Union

Military Academy (the Academy) in Fluvanna County. He resided

in an apartment located in the middle school student barracks

and served as a barracks supervisor. In 1997, Academy officials

advised local and state police that appellant may have abused

one or more of the Academy's students. One official told police

that he had entered appellant's apartment to check a water leak.

On two different occasions, he observed in appellant's apartment

nude photographs depicting two named cadets, J.L. and H.L. Some

of the photographs had been taken in appellant's apartment. He

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observed several journals containing "information about 'boys

needing discipline and spanking.'" He also saw a "delinquency

report completed on . . . 11th grader, [J.L.] with the

consequences listed as '3 whacks on the bare behind'" and had

information that J.L. had been seen leaving appellant's barracks

at 10:00 p.m. in violation of school rules. The Academy had a

written corporal punishment policy which provided that only the

middle school commandant or headmaster could paddle middle

school students. The policy also provided that such paddling

could occur only while a student was fully clothed and required

the parents' written permission. The Academy official opined

that, because appellant taught middle school, appellant's

relationship with 11th grader J.L. was "strange," and he opined

that appellant's contact with an 8th grade student, which

involved his constantly escorting the student to off-campus

activities, exceeded the "normal student/teacher relationship"

and was "unhealthy."

Using this information, police obtained a warrant to search

appellant's barracks apartment. The warrant specifically listed

as subject to seizure, inter alia, "photographs . . . depicting

nudity and/or sexual activities involving children," "[w]ritten

materials (letters, diaries) . . . related to sexual conduct

between juveniles and adults," and "books . . . and photographs

depicting nudity and/or sexual activities of juveniles." While

executing the warrant, Deputy Hogsten scanned appellant's

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numerous handwritten journals looking for photographs and other

materials specified in the warrant. If Hogsten observed an

"explicit" photograph in a journal, he marked the journal and

handed it to Trooper Watson, who assisted with the search. If

no explicit photograph was immediately apparent in a journal,

Hogsten scanned it "[to] see if [he] could find anything that

was in the warrant [they] were looking for." After reviewing

all appellant's journals in this fashion, Hogsten and Watson

seized fourteen volumes and left behind two or three.

Subsequently, Deputy Craig reviewed the seized journals in

greater detail and decided which portions would be used as

evidence.

A grand jury indicted appellant on sixteen counts of taking

indecent liberties with two minors, J.L. and H.L. Appellant

moved to suppress the excerpts taken from his diaries, arguing

that the seizure of the diaries violated the Fourth Amendment's

prohibition against general warrants. He also argued that

admission of the excerpts into evidence would violate his Fourth

and Fifth Amendment privilege against self-incrimination. The

trial court denied the motion. It held that the seizure of the

diaries did not violate the Fourth Amendment but that, even if

it had, the officers executing the warrant acted in good faith.

The court also held that admission of excerpts of the diaries

into evidence did not violate appellant's privilege against

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self-incrimination. At the conclusion of a trial on the merits,

the court convicted appellant of fourteen of the sixteen counts.

II.

ANALYSIS

Appellant relies on the decision in Boyd v. United States,

116 U.S. 616, 6 S. Ct. 524, 29 L. Ed. 746 (1886), for the

proposition that seizure of his private journals pursuant to a

search warrant violated his privilege against compelled

self-incrimination. However, Boyd involved a court order

directing partners to produce a business invoice for a glass

shipment alleged to have been received without payment of the

required import duty. See id. at 617-18, 6 S. Ct. at 525-26;

Fisher v. United States, 425 U.S. 391, 406-07, 96 S. Ct. 1569,

1578-79, 48 L. Ed. 2d 39 (1976). It did not involve a search

warrant. Although Boyd purported to equate the two, see 116

U.S. at 622, 6 S. Ct. at 527-28, the United States Supreme

Court's decisions in Fisher, 425 U.S. 391, 96 S. Ct. 1569, and

Andresen v. Maryland, 427 U.S. 463, 96 S. Ct. 2737, 49 L. Ed. 2d

627 (1976), indicate that they may not be equated. The elements

of compulsion and potential self-incrimination that result from

the production of documents pursuant to a subpoena do not exist

when the police, without assistance from the accused, take

existing, voluntarily created documents pursuant to a valid

warrant. Therefore, the seizure of appellant's diaries and

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their admission into evidence did not violate the Fifth

Amendment.

Further, assuming without deciding that the search warrant

was insufficiently particularized to permit review of the

diaries in their entirety, the evidence supported the trial

court's finding that the good faith exception to the

exclusionary rule applied. Therefore, a violation of the Fourth

Amendment, if one occurred, did not require suppression of the

diaries.

Finally, the evidence was sufficient to support the trial

court's finding that appellant acted with lascivious intent as

to all fourteen convictions and that appellant's behavior in all

fourteen instances fell within the proscriptions of the statute.

A.

MOTION TO SUPPRESS UNDER THE FOURTH AND FIFTH AMENDMENTS

At a hearing on a defendant's motion to suppress, the

Commonwealth has the burden of proving that the challenged

action did not violate the defendant's constitutional rights.

See Simmons v. Commonwealth, 238 Va. 200, 204, 380 S.E.2d 656,

659 (1989). On appeal, we view the evidence in the light most

favorable to the prevailing party, here the Commonwealth,

granting to it all reasonable inferences fairly deducible

therefrom. See Commonwealth v. Grimstead, 12 Va. App. 1066,

1067, 407 S.E.2d 47, 48 (1991). "[W]e are bound by the trial

court's findings of historical fact unless 'plainly wrong' or

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without evidence to support them[,] and we give due weight to

the inferences drawn from those facts by resident judges and

local law enforcement officers." McGee v. Commonwealth, 25 Va.

App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citing

Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657,

1663, 134 L. Ed. 2d 911 (1996)). However, we review de novo the

trial court's application of defined legal standards such as

probable cause and reasonable suspicion to the particular facts

of the case. See Ornelas, 517 U.S. at 699, 116 S. Ct. at 1663.

In the 1886 case of Boyd, 116 U.S. 616, 6 S. Ct. 524, the

United States Supreme Court held unconstitutional, under both

the Fourth and Fifth Amendments, a subpoena duces tecum ordering

Boyd and his partner to produce a partnership invoice which

established their guilt for failing to pay an import duty. See

Fisher, 425 U.S. at 405, 96 S. Ct. at 1578. The Court noted the

"intimate relationship between the [Fourth and Fifth]

[A]mendments" and, although the records at issue related to the

partnership's business transactions, said it was "unable to

perceive that the seizure of a man's private books and papers to

be used in evidence against him is substantially different from

compelling him to be a witness against himself." Boyd, 116 U.S.

at 633, 6 S. Ct. at 534. As a result, it held that

a compulsory production of private books and
papers of the owner of goods sought to be
forfeited in such a suit is compelling him
to be a witness against himself, within the
meaning of the Fifth Amendment to the

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 Constitution, and is the equivalent of a
search and seizure--and an unreasonable
search and seizure--within the meaning of
the Fourth Amendment.

Id. at 634-35, 6 S. Ct. at 534-35; see id. at 622, 6 S. Ct. at

527-28.

The Court noted in Boyd that the government was authorized

to "seize a person's documents or other property as evidence

[if] it [could] claim a proprietary interest in the property

superior to that of the person from whom the property [was]

obtained." Fisher, 425 U.S. at 406, 96 S. Ct. at 1578 (citing

Boyd, 116 U.S. at 623-24, 6 S. Ct. at 528-29). Also, it was

entitled to search for and seize "excisable articles" over which

officers of the revenue had authority and "entries thereof in

books required by law to be kept for their inspection." Boyd,

116 U.S. at 623-24, 6 S. Ct. at 528-29.

Appellant argues that the Court's basic holding in Boyd, as

applied to private papers that are testimonial or communicative

and that are in the possession of the accused, has never been

reversed. Significantly, however, the records at issue in Boyd

were business documents, and "therefore its declarations

regarding the [Fourth and Fifth] Amendment[s'] protection of

non-business documents were dicta." United States v. Doe, 1

F.3d 87, 92 (2d Cir. 1993).

Even if Boyd's application to non-business papers is not

considered dicta, subsequent Supreme Court decisions delineate

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clear limits on Boyd which render it inapplicable in this case.

In the more recent case of Fisher, which involved a subpoena for

tax documents prepared by an individual's accountant and

transferred by him to his lawyer, the Court made the following

statement about Boyd:

Among its several pronouncements, Boyd was
understood to declare that the seizure,
under warrant or otherwise, of any purely
evidentiary materials violated the Fourth
Amendment and that the Fifth Amendment
rendered these seized materials
inadmissible. . . . Private papers taken
from the taxpayer, like other "mere
evidence," could not be used against the
accused over his Fourth and Fifth Amendment
objections.

Fisher, 425 U.S. at 407, 96 S. Ct. at 1579. The Court also

noted, however, that

[s]everal of Boyd's express or implicit
declarations have not stood the test of
time. The application of the Fourth
Amendment to subpoenas was limited by Hale
v. Henkel, 201 U.S. 43[, 26 S. Ct. 370, 50
L. Ed. 652] (1906), and more recent cases.
Purely evidentiary (but "nontestimonial")
materials, as well as contraband and fruits
and instrumentalities of crime, may now be
searched for and seized under proper
circumstances, Warden v. Hayden, 387 U.S.
294[, 87 S. Ct. 1642, 18 L. Ed. 2d 782]
(1967). Also, any notion that "testimonial"
evidence may never be seized and used in
evidence is inconsistent with [Katz v.
United States, 389 U.S. 347, 88 S. Ct. 507,
19 L. Ed. 2d 576 (1976), and other cases],
approving the seizure under appropriate
circumstances of conversations of a person
suspected of crime.

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Id. at 407-08, 96 S. Ct. at 1579 (citations and footnote

omitted); see Code § 19.2-53 (permitting seizure, pursuant to

search warrant, of "[a]ny object, thing, or person, including

without limitation, documents, books, papers, records, or body

fluids, constituting evidence of the commission of crime").

The Court also significantly limited the meaning of

compulsion under the Fifth Amendment, holding that where "the

preparation of all the papers sought [by subpoena] . . . was

wholly voluntary, . . . they cannot be said to contain compelled

testimonial evidence." Id. at 409-10, 96 S. Ct. at 1580

(emphasis added); see Andresen, 427 U.S. at 473, 96 S. Ct. at

2745; see also Couch v. United States, 409 U.S. 322, 329, 93

S. Ct. 611, 616, 34 L. Ed. 2d 548 (1973) (in case involving

subpoena to accountant for tax records of accused, stating that

"divulgence of . . . possibly incriminating information, . . .

where it does not result from coercion of the suspect herself,

is a necessary part of the process of law enforcement and tax

investigation").

The proposition that the Fifth
Amendment protects private information
obtained without compelling
self-incriminating testimony is contrary to
the clear statements of this Court that
under appropriate safeguards private
incriminating statements of an accused may
be overheard and used in evidence, if they
are not compelled at the time they were
uttered . . . . If the Fifth Amendment
protected generally against the obtaining of
private information from a man's mouth or
pen or house, its protections would

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 presumably not be lifted by probable cause
and a warrant or by immunity. The privacy
invasion is not mitigated by immunity; and
the Fifth Amendment's strictures, unlike the
Fourth's, are not removed by showing
reasonableness. The Framers addressed the
subject of personal privacy directly in the
Fourth Amendment. They struck a balance so
that when the State's reason to believe
incriminating evidence will be found becomes
sufficiently great, the invasion of privacy
becomes justified and a warrant to search
and seize will issue. They did not seek in
still another Amendment--the Fifth--to
achieve a general protection of privacy but
to deal with the more specific issue of
compelled self-incrimination.
We cannot cut the Fifth Amendment
completely loose from the moorings of
its language, and make it serve as a general
protector of privacy--a word not mentioned
in its text and a concept directly addressed
in the Fourth Amendment. We adhere to the
view that the Fifth Amendment protects
against "compelled self-incrimination, not
[the disclosure of] private information."

Fisher, 425 U.S. at 400-01, 96 S. Ct. at 1575-76 (citations

omitted). Therefore, "[i]n the case of a documentary subpoena

the only thing compelled is the act of producing the document 1

and the compelled act is the same as the one performed when a

1
The Court noted that "[c]ompliance with the subpoena
tacitly concedes the existence of the papers demanded and their
possession or control by the [person producing them]. It would
also indicate the [producer's] belief that the papers are those
described in the subpoena." Fisher, 425 U.S. at 410, 96 S. Ct.
at 1581. It reasoned that "[t]he elements of compulsion are
clearly present, but that the more difficult issues are whether
the tacit averments of the [producer] are both 'testimonial' and
'incriminating' for purposes of applying the Fifth Amendment.'"
Id. It concluded that the resolution of these "more difficult
issues" likely "depend[ed] on the facts and circumstances of
particular cases or classes thereof." Id.

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chattel or document not authored by the producer is demanded."

Id. at 410 n.11, 96 S. Ct. at 1580 n.11 (footnote added); see

also United States v. Doe, 465 U.S. 605, 610-12, 104 S. Ct.

1237, 1241-42, 79 L. Ed. 2d 552 (1984) (extending Fisher to hold

that Fifth Amendment does not protect contents of an

individual's tax records in his possession). Although Fisher

dealt with a subpoena for business records, its statements

regarding compulsion to prepare or create the documents do not

distinguish between business records and private or personal

records, and we discern no legitimate basis for making such a

distinction. Either the preparation of a document was compelled

or it was not, regardless of its classification as business or

private. See Wayne R. LaFave, Search and Seizure § 2.6(e), at

611 (3d ed. 1996). As a result, appellant's diaries, which were

prepared voluntarily, are not protected by the Fifth Amendment

privilege against self-incrimination unless appellant was

compelled to produce them, and then, only the act of production

and not the contents of the diaries would be protected.

Further, the Court has held that the compulsion which

results when an accused is required to produce documentary

evidence pursuant to a subpoena does not exist when law

enforcement personnel instead seize the evidence pursuant to a

valid search warrant. See Andresen, 427 U.S. at 473-74, 96

S. Ct. at 2745; see also 1 LaFave, supra, at 612. The Court

noted in Andresen that

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 although the Fifth Amendment may protect an
individual from complying with a subpoena
for the production of his personal records
in his possession because the very act of
production may constitute a compulsory
authentication of incriminating information,
see Fisher v. United States, supra, a
seizure of the same materials by law
enforcement officers differs in a crucial
respect--the individual against whom the
search is directed is not required to aid in
the discovery, production, or authentication
of incriminating evidence. 2

Andresen, 427 U.S. at 473-74, 96 S. Ct. at 2745 (footnote

added); see also id. at 470 n.5, 96 S. Ct. at 2743 n.5 (noting

conflict in federal courts of appeals on issue of whether

documentary evidence not obtainable by subpoena may nevertheless

be obtainable pursuant to a search warrant and indicating that

substantial majority of circuits, along with Professor Wigmore,

hold that it may). Therefore, "[t]he risk of authentication is

not present where the documents are seized pursuant to a search

warrant." 3 Id. at 473 n.7, 96 S. Ct. at 2745 n.7; see id. at

473, 96 S. Ct. at 2745 (noting that this approach is in keeping

with the principle that "'[a] party is privileged from producing

2
Although Andresen, like Fisher, involved business records,
the Court in Andresen specifically discussed personal records
and the difference between their subpoena and seizure.
3
Here, appellant's diaries were authenticated by J.L., who
testified that appellant kept a journal, which appellant tried
to write in on a daily basis. J.L. testified to his familiarity
with appellant's handwriting, identified appellant's handwriting
in the diaries, and indicated that he also had written in
appellant's journals. On appeal, appellant does not directly
challenge the authentication of the diaries.

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the evidence but not from its production'" (quoting Johnson v.

United States, 228 U.S. 457, 458, 33 S. Ct. 572, 572, 57 L. Ed.

919 (1913)).

Insofar as private information not
obtained through compelled
self-incriminating testimony is legally
protected, its protection stems from
other sources--the Fourth Amendment's
protection against seizures without warrant
or probable cause and against subpoenas
which suffer from "too much indefiniteness
or breadth in the things required to be
'particularly described,'" or evidentiary
privileges such as the attorney-client
privilege.

Fisher, 425 U.S. at 401, 96 S. Ct. at 1576 (citations and

footnote omitted); see also id. at 401 n.6, 96 S. Ct. at 1576

n.6 (citing Couch, 409 U.S. 322, 93 S. Ct. 611, 34 L. Ed. 2d

548, which involved a subpoena to an accountant for tax records

of the accused and in which the Court "differentiated between

the things protected by the Fourth and Fifth Amendments," and

noting that "'there exist[ed] no legitimate expectation of

privacy [the Fourth Amendment claim] and no semblance of

governmental compulsion against the person of the accused [the

Fifth Amendment claim]'").

For these reasons, neither the seizure nor admission into

evidence of appellant's diaries violated his Fifth Amendment

privilege against compelled self-incrimination. This conclusion

does not, however, resolve the issue of whether the seizure of

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appellant's diaries was reasonable under the Fourth Amendment.

The Court in Fisher noted that

[t]he taxpayers and their attorneys have not
raised arguments of a Fourth Amendment
nature before this Court and could not be
successful if they had. The summonses are
narrowly drawn and seek only documents of
unquestionable relevance to the tax
investigation. Special problems of privacy
which might be presented by subpoena of a
personal diary are not involved here.

Id. at 401 n.7, 96 S. Ct. at 1576 n.7 (emphasis added). Thus,

the Court made clear that constitutional privacy issues, if any,

associated with subpoenaing one's personal diary would involve

Fourth Amendment rather than Fifth Amendment protections. 4

Appellant contends the seizure of his diaries was

unreasonable under the Fourth Amendment and violated that

amendment's particularity requirement. For the reasons that

follow, we hold that the trial court's denial of appellant's

suppression motion also did not violate the Fourth Amendment.

The Fourth Amendment, designed to protect against

unreasonable searches and seizures, provides that "no warrants

shall issue, but upon probable cause, supported by oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized." U.S. Const.

4
It also noted its earlier "reserv[ation of] the question
'whether there are items of evidential value whose very nature
precludes them from being the object of a reasonable search and
seizure.'" Fisher, 425 U.S. at 407 n.9, 96 S. Ct. at 1579 n.9
(quoting Hayden, 387 U.S. at 302-03, 87 S. Ct. at 1648).

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amend. IV. Similar mandates exist in Virginia's Constitution

and statutes. See Va. Const. art. I, § 10; Code § 19.2-54 ("no

general warrant for the search of a house, place, compartment,

vehicle or baggage shall be issued"). The "distinct objective

[of the warrant requirement] is that those searches deemed

necessary should be as limited as possible"; it is intended to

prevent "a general, exploratory rummaging in a person's

belongings." Coolidge v. New Hampshire, 403 U.S. 443, 467, 91

S. Ct. 2022, 2038, 29 L. Ed. 2d 564 (1971).

So long as the "search warrant describe[s]
the objects of the search with reasonable
specificity," it complies with the dictates
of the [F]ourth [A]mendment. The
determination whether the warrant possesses
the requisite degree of specificity
necessarily requires a fact-specific,
case-specific analysis. However, search
warrants that limit the executing officers'
discretion by directing them to seize only
evidence of a specific crime consistently
have been held to satisfy the particularity
requirement of the [F]ourth [A]mendment.

Morke v. Commonwealth, 14 Va. App. 496, 500-01, 419 S.E.2d 410,

413 (1992) (citation omitted).

The exclusionary rule is a judicial creation which, under

certain circumstances, prevents evidence obtained in violation

of one's Fourth Amendment rights from being admitted into

evidence against him in a criminal prosecution. See

Commonwealth v. Ealy, 12 Va. App. 744, 750, 407 S.E.2d 681, 685

(1991).

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 In [United States v. Leon, 468 U.S. 897, 104
S. Ct. 3405, 82 L. Ed. 2d 677 (1984)], the
United States Supreme Court held that
"suppression of evidence obtained pursuant
to a warrant should be ordered only on a
case-by-case basis and only in those unusual
cases in which exclusion will further the
purposes of the exclusionary rule." The
Supreme Court also stated that "the
exclusionary rule is designed to deter
police misconduct. . . ." This deterrent is
not present when a police officer, acting in
objective good faith, obtains a search
warrant from a magistrate and conducts a
search within the scope of the warrant. We
have embraced and applied the good faith
exception to the exclusionary rule.

Polston v. Commonwealth, 255 Va. 500, 503, 498 S.E.2d 924,

925-26 (1998) (quoting Leon, 468 U.S. at 916, 918, 104 S. Ct. at

3417, 3418) (other citations omitted).

In keeping with the goal of deterring police misconduct,

"[s]uppression . . . remains an appropriate
remedy if the magistrate or judge in issuing
a warrant was misled by information in an
affidavit that the affiant knew was false or
would have known was false except for his
reckless disregard of the truth. . . . The
exception . . . will also not apply in cases
where the issuing magistrate wholly
abandoned his judicial role. . . . [I]n
such circumstances, no reasonably well
trained officer should rely on the warrant.
Nor would an officer manifest objective good
faith in relying on a warrant based on an
affidavit 'so lacking in indicia of probable
cause as to render official belief in its
existence entirely unreasonable'. . . .
Finally, depending on the circumstances of
the particular case, a warrant may be so
facially deficient--i.e., in failing to
particularize the place to be searched or
the things to be seized--that the executing
officers cannot reasonably presume it to be
valid."

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Id. at 503, 498 S.E.2d at 926 (quoting Leon, 468 U.S. at 923,

104 S. Ct. at 3421 (citations omitted)).

Regardless of the validity of the search warrant, the

diaries seized from appellant's apartment were admissible in

their entirety under the good faith exception. 5 The warrant

5
Settled legal principles provide that "[a] lawful search
of premises described in a warrant 'extends to the entire area
in which the object[s] of the search may be found.'" Kearney v.
Commonwealth, 4 Va. App. 202, 205, 355 S.E.2d 897, 899 (1987)
(quoting United States v. Ross, 456 U.S. 798, 820, 102 S. Ct.
2157, 2170, 72 L. Ed. 2d 572 (1982)). "'[A] search may be as
extensive as reasonably required to locate the items described
in the warrant.'" Id. (citation omitted). "A warrant to search
a [premises] would support a search of every part of the
[premises] that might contain the object of the search." Ross,
456 U.S. at 821, 102 S. Ct. at 2171. While the police are
lawfully engaged in such a search, the plain view doctrine
applies, and they may seize any item if it is "immediately
apparent" that the item may be evidence of a crime, contraband,
or otherwise subject to seizure. Coolidge, 403 U.S. at 466, 91
S. Ct. at 2038; see Ruffin v. Commonwealth, 13 Va. App. 206,
208-09, 409 S.E.2d 177, 178-79 (1991).
At a minimum, the warrant was specific enough to permit the
police to conduct a detailed search of appellant's apartment for
"[p]hotographs, movies[,] videotapes, negatives, slides, and/or
undeveloped film depicting nudity and/or sexual activities
involving children . . . that would tend to identify (victims
and offenders)." The Academy official whose observations were
used to support the warrant stated that, on two separate
occasions, he had observed in appellant's Academy apartment nude
photographs of two named Academy students. The warrant
authorized a search for certain photographs, and the police were
authorized to search any area of the apartment in which the
photographs might reasonably be found. See Ross, 456 U.S. at
821, 102 S. Ct. at 2171. Because the photographs were items
which could have been--and, in fact, were--in appellant's
diaries, the police acted reasonably in leafing through the
diaries in search of photographs like those described in the
warrant. Further, while leafing through the diaries, they were
permitted to seize any other items to which the plain view
doctrine applied. For example, if the police had found illegal
drugs between the pages of the diary, the seizure and

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specifically listed as subject to seizure, inter alia,

"[p]hotographs . . . depicting nudity and/or sexual activities

involving children," "[w]ritten materials (letters, diaries)

. . . related to sexual conduct between juveniles and adults,"

and "books . . . and photographs depicting nudity and/or sexual

activities of juveniles." The trial court specifically found

that the police officers executing the warrant and reviewing the

evidence for trial acted in good faith, and we discern no

evidence in the record which contradicts the trial court's

finding.

Appellant does not allege and no evidence supports a

finding that the magistrate was misled by false information in

the affidavit. In addition, neither the warrant nor the

affidavit was so deficient that no reasonably trained officer

should rely on it. The affidavit accompanying the warrant

recited the statements of the Academy official in charge of the

middle school that he twice had observed in appellant's

apartment nude photos of two students, some of which had been

taken in appellant's barracks apartment. On one of these

occasions, the Academy official observed several journals

containing "information about 'boys needing discipline and

introduction of the drugs into evidence would not violate the
Fourth Amendment. This same principle would apply to any
written passage of the diary if it became "immediately apparent"
that a particular passage likely was evidence of a crime or was
otherwise subject to seizure.

- 19 -
spanking.[']" He also saw a "delinquency report completed on

. . . 11th grader, [J.L.], with the consequences listed as '3

whacks on the bare behind'" and had information that J.L. had

been seen leaving appellant's barracks at 10:00 p.m. in

violation of school rules. Finally, the Academy official opined

that, because appellant taught middle school, appellant's

relationship with 11th grader J.L. was "strange" and that

appellant's contact with an 8th grade student, which involved

his constantly escorting the student to off-campus activities,

exceeded the "normal student/teacher relationship" and was

"unhealthy."

Assuming without deciding that this information was

insufficient to permit a line-by-line search of appellant's

diaries, it was not so deficient that the magistrate or

executing officers should have known it was invalid. See Janis

v. Commonwealth, 22 Va. App. 646, 654, 472 S.E.2d 649, 653

(holding that determining objective reasonableness of belief in

probable cause must be based "solely on the affidavit"), aff'd

on reh'g en banc, 24 Va. App. 207, 481 S.E.2d 473 (1996). As

discussed above, existing case law does not make clear whether

or under what circumstances the Fourth Amendment permits the

seizure and introduction into evidence of personal diaries. As

a result, the good faith exception to the exclusionary rule

rendered proper the admission into evidence of the challenged

- 20 -
portions of appellant's diaries. Therefore, we affirm the trial

court's denial of appellant's motion to suppress.

B.

SUFFICIENCY OF THE EVIDENCE TO PROVE LASCIVIOUS INTENT

Code § 18.2-370.1 provides as follows:

Any person eighteen years of age or older
who maintains a custodial or supervisory
relationship over a child under the age of
eighteen, . . . and who, with lascivious
intent, knowingly and intentionally . . .
(iii) exposes his or her sexual or genital
parts to such child, or (iv) proposes that
any such child expose his or her sexual or
genital parts to such person, . . . shall be
guilty of a Class 6 felony.

Appellant was convicted of violating the quoted portion of the

statute on fourteen separate occasions, eleven of which involved

J.L. (Indictments 97F46 and 97F48 to 97F57) and three of which

involved H.L. (Indictments 97F59, 97F62 and 97F63).

Appellant contends that the testimony of J.L. that

appellant was sexually aroused during some of their encounters

is inherently incredible and that, without this testimony, the

evidence is insufficient to prove lascivious intent as to the

eleven convictions involving J.L. Appellant also contends that

because H.L., in testifying for the Commonwealth, denied that

appellant showed any signs of sexual arousal during their

contact, the Commonwealth's evidence also is insufficient to

prove that appellant acted with the requisite lascivious intent

- 21 -
as to the three convictions involving H.L. We hold that

sufficient evidence of intent supports all fourteen convictions.

Under familiar principles of appellate review, we must

examine the evidence in the light most favorable to the

Commonwealth, granting to it all reasonable inferences fairly

deducible therefrom. See Martin v. Commonwealth, 4 Va. App.

438, 443, 358 S.E.2d 415, 418 (1987). In assessing witness

credibility, the fact finder may accept the parts of a witness'

testimony it finds believable and reject other parts as

implausible. See Pugliese v. Commonwealth, 16 Va. App. 82, 92,

428 S.E.2d 16, 24 (1993). The conclusions of the fact finder on

issues of witness credibility "may only be disturbed on appeal

if this Court finds that [the witness'] . . . testimony was

'inherently incredible, or so contrary to human experience as to

render it unworthy of belief.'" Robertson v. Commonwealth, 12

Va. App. 854, 858, 406 S.E.2d 417, 419 (1991) (quoting Fisher v.

Commonwealth, 228 Va. 296, 299-300, 321 S.E.2d 202, 204 (1984)).

These same principles apply to the testimony of both expert and

lay witnesses. See Street v. Street, 25 Va. App. 380, 387-89,

488 S.E.2d 665, 668-69 (1997) (en banc).

The mental state required to support appellant's

convictions is one of lasciviousness. See Code § 18.2-370.1.

"[T]he word 'lascivious' describes a state of mind that is eager

for sexual indulgence, desirous of inciting to lust or of

inciting sexual desire and appetite." McKeon v. Commonwealth,

- 22 -
211 Va. 24, 27, 175 S.E.2d 282, 284 (1970). The Supreme Court

has recognized that circumstantial evidence of lasciviousness

may include "evidence that the defendant was sexually aroused;

that he made . . . gestures toward himself or to [the victim];

that he made . . . improper remarks to [the victim]; or that he

asked [the victim] to do anything wrong." Id. "Circumstantial

evidence is as competent and is entitled to as much weight as

direct evidence, provided it is sufficiently convincing to

exclude every reasonable hypothesis except that of guilt."

Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876

(1983).

Here, the direct and circumstantial evidence supported the

trial court's finding that appellant acted with lascivious

intent and excluded all reasonable hypotheses of innocence. The

evidence, viewed in the light most favorable to the

Commonwealth, established that appellant began relationships

with the two victims when they were students in his eighth grade

science class and that he engaged in illegal behavior with them,

separately, on at least fourteen different occasions over the

course of two years.

The Academy had a written corporal punishment policy which

provided that only the middle school commandant or headmaster

could paddle middle school students. The policy also provided

that such paddling could occur only while a student was fully

clothed and required the parents' written permission.

- 23 -
 Despite this policy, after appellant and J.L. became close

friends, appellant suggested to J.L. that he would not turn

J.L.'s demerits over to the commandant if J.L. would agree to

allow appellant to paddle J.L. on the buttocks as an alternate

form of punishment. Appellant initially paddled J.L. while J.L.

was clothed, but in early February 1994, appellant told J.L. he

would administer the "whacks" on "the bare ass." Appellant

paddled J.L.'s bare buttocks and documented the paddling in his

diary. Shortly thereafter, appellant proposed that J.L. paddle

appellant on appellant's bare buttocks. J.L. did so, and

appellant again documented the incident in his diary.

Similar events occurred on or about March 3, March 4, and

March 10, 1994, with appellant documenting the paddlings in his

diary on each occasion. On each of these occasions, the person

being paddled was partially or totally nude, and the two

followed a ritual requiring the person being paddled to turn

after each paddling to face and salute the person administering

the paddling. Appellant's diary entries for these days indicate

a preoccupation with the fact that the paddling rendered his or

J.L.'s "ass" "bare" and "sore," and he described "a large red

welt" that developed on J.L.'s buttocks and the "pain . . . in

[J.L.'s] face" while appellant administered the paddling.

Appellant also wrote that he was "psyched" to "bare his [own]

ass to the wrath of [J.L.]" and told J.L. that one of his

- 24 -
paddlings "barely hurt" and that J.L. had "better make it

worthwhile."

Sometime thereafter, at appellant's suggestion, appellant

and J.L. formed a secret society, and appellant obtained for his

car personalized license plates that bore the society's acronym.

They designed a series of initiation events, all involving

nudity, and appellant documented the preparation and actual

events with photographs and detailed diary entries. J.L.

testified that, during the nude tree-climbing event, appellant

asked J.L. to shine the flashlight on appellant, and J.L.

noticed that appellant "was half aroused." During another

event, appellant tied J.L. up and used his hands to cover J.L.'s

entire body, including his genitals, with shaving cream. When

it was J.L.'s turn to tie appellant up and coat him in shaving

cream, J.L. used a newspaper to spread the shaving cream on

appellant's genitals because he did not want to touch them, and

he noticed that appellant had an erection at that time.

Appellant subsequently wrote of their being "brothers" who will

"share without asking and tak[e] without first giving. We will

be like one." When appellant reflected on that night about two

years later by rereading his journal, he noted that the "night

was fantastic and one that I will never forget."

On at least six occasions during J.L.'s ninth grade year,

appellant and J.L. engaged in additional acts of nude buttocks

paddling, nude wrestling and the like. On two occasions in

- 25 -
November 1994, appellant paddled J.L. on "his bare ass,"

purportedly to discipline him for smoking. On the latter

November date, appellant wrote that he "had to fight [J.L.] for

it" and "ma[de] sure to hit different spots so no part of

[J.L.'s] ass was left unred." On January 26, 1995, appellant

observed that J.L. "made sure [appellant's] birthday did not go

by unrewarded," by paddling appellant over thirty times on

appellant's bare buttocks. On February 9, 1995, when appellant

was in a bad mood, J.L. repeated the "shaving cream and fan"

torture. Appellant wrote that "[his] ass was red and sore from

the beatings" but that "hanging there naked and suffering the

epitomy [sic] of pain livened up [his] day." On February 13,

1995, appellant inflicted the same "torture" on J.L., and the

two ended the events with a "bout" of nude wrestling. On

February 14, 1995, J.L. returned to appellant's apartment "with

vengeance on his mind." Appellant wrote that appellant was

"naked and tied up" and received "a severe beating."

During late 1995 and early 1996, appellant documented three

encounters with a former student named H.L. H.L. visited

appellant in North Dakota, where appellant was working for the

summer. At some point during H.L.'s visit, the two briefly

discussed the secret society appellant had formed with J.L.

They also "hiked naked to the top of a butte."

Although H.L. did not return to the Academy as a student in

the fall of 1995, he and appellant remained in contact by letter

- 26 -
and phone and saw each other several times during the fall. In

December 1995, H.L. visited appellant at the Academy to

celebrate H.L.'s birthday. On December 16, appellant wrote that

H.L. was still asleep in appellant's apartment and that he knew

H.L. was "anxious for everyone to leave [the Academy] so he

could spend some quality time alone with [appellant]." During

H.L.'s visit, they played poker and wagered whacks with the

paddle rather than money. Then they each stood nude in front of

appellant's dresser and paddled each other until their "asses"

were "red" and "sore." The next morning, they showered and

repeated the paddling process "until all debts were paid."

H.L. visited appellant again in late February 1996 for

appellant's birthday. Appellant said that "[o]ne of the main

reasons [H.L.] came was to give [appellant] his birthday card

but not before he paddled [appellant's] bare ass." On the night

of February 24, appellant showered and stood nude in front of

his dresser to receive his first ten paddlings. Appellant and

H.L. then watched a movie, after which H.L. administered the

second ten paddlings. Appellant wrote that the second ten

"really hurt so [he] just stayed naked the rest of the night to

cool off [his] ass." The next morning, February 25, appellant

woke H.L. so that H.L. could administer the last ten whacks,

which left "[appellant's] ass aflame with pain." Appellant then

administered one whack to H.L. "to keep him honest until we see

each other again." H.L. showered, stood naked in front of

- 27 -
appellant's dresser, and "[appellant] whacked his ass much

harder than usually." Appellant wrote of the weekend,

[H.L.] paddled my bare ass and beat me in
wrestling but we had a great time together.
I miss him already. Whether it be his
playing the guitar or late night personal
conversations, he is a pleasure to have
around. I am already looking forward to the
next weekend. . . . It is always great to
have [him] spend the weekend and I cannot
wait until the next time.

During July 1996, H.L. again visited appellant in North

Dakota and went through the shaving cream and other rituals in

order to be initiated into the secret society.

In testifying at trial, appellant admitted that the

relationships he developed with J.L. and H.L. were "bizarre" and

"wrong," although he denied that they involved any sexual

purpose or intent.

The evidence supports the trial court's findings that

appellant committed these acts with J.L. and H.L. with

lascivious intent. Although appellant challenges J.L.'s

testimony as inherently incredible, we cannot conclude his

testimony was incredible as a matter of law. The trial court

heard J.L. testify and heard testimony from various other

witnesses attacking J.L.'s credibility, but it chose to believe

the testimony of J.L. which was corroborated, at least in part,

by appellant's journal entries. Although the evidence of any

particular offense, standing alone, might be insufficient to

establish that appellant acted with lascivious intent,

- 28 -
appellant's course of conduct in using his position as an adult

role model to gain the trust of J.L. and H.L. and establish

close personal relationships with them, coupled with detailed

diary accounts of appellant's repeated nude paddlings and other

encounters with these children and the testimony of J.L. that

appellant was sexually aroused during two of J.L.'s encounters

with him, is sufficient to support a finding that appellant

acted with the requisite lascivious intent in exposing his

sexual or genital parts to both boys or proposing that they

expose their sexual or genital parts to him. The trial court

determined that this was the only reasonable hypothesis flowing

from the evidence, and we hold that it did not err in so

finding.

C.

CONSTRUCTION OF CODE § 18.2-370.1

Appellant poses an additional challenge to five of his

convictions, under Indictments 97F46, 97F48, and 97F50 to 97F52,

all of which involved J.L. He contends that the evidence

proved, at most, that "bare buttocks" were exposed, and he

argues, contrary to the trial court's ruling, that "bare

buttocks" do not constitute "sexual . . . parts" within the

meaning of Code § 18.2-370.1. Furthermore, he contends the

admission of evidence of buttocks paddling "tainted the entire

case in that the Trial Court heard and considered this evidence

in considering all of the other indictments."

- 29 -
 The trial court specifically found that buttocks are not

genital parts but are sexual parts within the meaning of the

statute. It also held that, in at least some instances,

appellant and J.L. faced each other while nude such that the

exposure involved genitalia as well as buttocks and, therefore,

fell within the statute's proscriptions. For the reasons that

follow, we hold that the acts for which appellant was convicted

fell within the proscriptions of the statute.

First, in keeping with the trial court's statements, the

evidence is sufficient to support two of the five challenged

offenses regardless of whether buttocks are sexual parts; as to

indictments 97F50 and 97F51, the evidence was sufficient to

establish that genitalia also were exposed.

Appellant's demerit sheet and diary entries, both in

appellant's handwriting, make clear that the routine followed on

March 2, 1994, which was covered in indictment 97F49, was that

J.L. "had to strip down totally naked, and after each whack,

turn to salute [appellant]." Appellant concedes on appeal, and

we agree, that the evidence of the events charged in indictment

97F49 was sufficient to establish that appellant proposed J.L.

expose his genitals to appellant on March 2, 1994.

Regarding challenged indictment 97F50, which covered the

events of March 4, 1994, the evidence establishes that appellant

wrote J.L. a note proposing that J.L. report to appellant's

apartment for "3 whacks on [the] bare ass" while nude and that

- 30 -
the routine would be the same as on March 2, 1994. Appellant's

diary indicated that J.L., in fact, "received . . . six whacks"

while nude and that "[t]he routine was the same" as it had been

on March 2, 1994. Therefore, because "[t]he routine was the

same" on March 4, 1994, when appellant administered the whacks

associated with indictment 97F50, the evidence supports a

finding that the routine appellant proposed and administered on

March 4, 1994, involved the same genital exposure.

These same facts apply to indictment 97F51, involving the

events of March 10, 1994. The evidence supports a finding that,

on or about that date, appellant exposed his genitals to J.L.

Appellant wrote up a demerit slip for himself, proposing that

J.L. administer two whacks to appellant. When J.L. administered

the whacks, appellant was nude and had to turn to J.L. and

salute him.

Furthermore, under established rules of statutory

construction, the term "sexual parts" as used in Code

§ 18.2-370.1 necessarily includes buttocks. Appellant urges us

to construe the term "sexual parts" as used in Code § 18.2-370.1

as being coextensive with "genital parts." However, settled

principles of statutory construction prevent such an

interpretation.

Ordinarily, when a particular word in a statute is not

defined therein, a court must give it its ordinary meaning. See

McKeon v. Commonwealth, 211 Va. 24, 27, 175 S.E.2d 282, 284

- 31 -
(1970). In interpreting a statute, "'[t]he Code of Virginia

constitutes a single body of law, and other sections can be

looked to where the same phraseology is employed.'" Hart v.

Commonwealth, 18 Va. App. 77, 79, 441 S.E.2d 706, 707 (1994)

(quoting King v. Commonwealth, 2 Va. App. 708, 710, 347 S.E.2d

530, 531 (1986)). Finally, although "penal statutes must be

strictly construed against the Commonwealth and applied only in

those cases clearly falling within the language of the statute,"

Branch v. Commonwealth, 14 Va. App. 836, 839, 419 S.E.2d 422,

424 (1992), "'[i]t is the duty of the courts to give effect, if

possible, to every word of the written law,'" Burnette v.

Commonwealth, 194 Va. 785, 788, 75 S.E.2d 482, 484-85 (1953)

(citation omitted); see also 17 Michie's Jurisprudence, Statutes

§ 42 (1994).

The ordinary dictionary definition of "sexual" is "1. Of,

relating to, involving, or characteristic of sex, sexuality, the

sexes, or the sex organs and their functions. 2. Implying or

symbolizing erotic desires or activity. 3. Of, relating to, or

involving the union of male and female gametes: sexual

reproduction." The American Heritage Dictionary of the English

Language 1654 (3d ed. 1992). "Genital," in relevant part, is

defined as "1. Of or relating to biological reproduction [or] 2.

. . . [the reproductive organs, especially the external sex

organs]." Id. at 756. Giving these words their plain meaning,

the term "sexual parts" clearly encompasses certain genital

- 32 -
parts, as well. However, to interpret the term "sexual parts"

as including only genital parts or vice versa would violate

rules of statutory construction. Instead, as set out above, we

must presume the legislature intended to give separate meaning

to the term "sexual parts" and did not intend merely to use

superfluous language. See Burnette, 194 Va. at 788-89, 75

S.E.2d at 484-85.

In determining whether that separate meaning includes

buttocks, both the dictionary definition and the definitions of

similar terms in other code sections are instructive. Under the

second quoted definition of sexual, the term "sexual parts"

would also include those parts which "impl[y] or symboliz[e]

erotic desires or activity." Such a definition is not limited

to reproductive parts. Similarly, in Code § 18.2-67.10(2),

which defines terms used in the article proscribing various

types of criminal sexual assault, "intimate parts" include not

only the genitalia but also the "anus, groin, breast or

buttocks." Further, as the trial court observed in this case,

in Code § 18.2-390, which defines terms used in the article

proscribing the sale or loan of certain items to juveniles,

"sexual conduct" includes certain "actual or . . . simulated

. . . contact in an act of apparent sexual stimulation or

gratification with a person's clothed or unclothed genitals,

pubic area, buttocks or, if such be female, breast." Neither of

these definitions limits the use of the term "sexual" to the

- 33 -
reproductive organs. Although the definition of sexual conduct

requires more than simulated or actual contact, it makes clear

that contact even with non-reproductive parts such as buttocks

may nevertheless be sexual if accompanied by the proper intent.

Therefore, buttocks are "sexual parts" under Code § 18.2-370.1

if the accused, acting with the requisite lascivious intent,

exposes his buttocks to a juvenile or proposes that a juvenile

expose the juvenile's buttocks to the accused. Therefore,

because the evidence supports the trial court's finding that

appellant acted with lascivious intent, it also supports the

finding that the buttocks exposed in each of the challenged

cases were "sexual parts" within the meaning of the statute.

III.

CONCLUSION

For these reasons, we hold the trial court did not err in

ruling that (1) police seizure of appellant's personal journals

pursuant to a search warrant and the admission of the journals

into evidence did not violate his Fifth Amendments rights, and

any Fourth Amendment violation was subject to the good faith

exception to the exclusionary rule; (2) buttocks are "sexual

parts" within the meaning of Code § 18.2-370.1; and (3) the

evidence was sufficient to support his convictions. Therefore,

we affirm appellant's convictions.

Affirmed.

- 34 -
Benton, J., with whom Coleman, J., joins, dissenting.

Because I conclude that Boyd v. United States, 116 U.S. 616

(1886), bars the seizure and use of Moyer's diaries, I would

hold that the trial judge's ruling permitting the use of those

diaries against Moyer at trial violated Moyer's rights under the

Fifth Amendment. Therefore, I respectfully dissent.

In relevant part, the Fifth Amendment provides that "[n]o

person . . . shall be compelled in any criminal case to be a

witness against himself." In Boyd, the United States Supreme

Court held unconstitutional, under the Fourth and Fifth

Amendments, a subpoena duces tecum ordering Boyd to produce an

invoice which established his guilt for nonpayment of a duty

tax. The Court explained that it was "unable to perceive that

the seizure of a man's private books and papers to be used in

evidence against him is substantially different from compelling

him to be a witness against himself." Id. at 633. Thus, the

Court held "that a compulsory production of the private books

and papers of the [accused] . . . is compelling him to be a

witness against himself, within the meaning of the Fifth

Amendment to the Constitution, and is the equivalent of a search

and seizure -- and an unreasonable search and seizure -- within

the meaning of the Fourth Amendment." Id. at 634-35. Not even

a warrant supported by probable cause could mask the

"'unreasonable' character of such seizures" and legitimize the

use of those seized documents at trial. Id. at 633.

- 35 -
 Following this landmark decision, the Court has refined the

scope of Boyd's Fifth Amendment holding. In Couch v. United

States, 409 U.S. 322, 324 (1973), the Court decided the

"question . . . whether the taxpayer may invoke her Fifth

Amendment privilege against compulsory self-incrimination to

prevent the production of her business and tax records in the

possession of her accountant." The Court held that when an

individual surrenders his or her business records to the

possession of a third party, and the government subpoenas the

third party to produce the records, the individual has no

expectation of privacy in the records and the Fifth Amendment

does not bar their production. See id. at 329-30.

Significantly, the Court noted that Boyd concerned an accused

who possessed his own private papers and "did not . . . address

or contemplate the divergence of ownership and possession." Id.

at 330.

Later, in Fisher v. United States, 425 U.S. 391 (1976), the

Court "h[eld] that compliance with a summons directing [a]

taxpayer to produce the [taxpayer's] accountant's documents

. . . involve[d] no incriminating testimony within the

protection of the Fifth Amendment." Id. at 414. The Court

clearly recognized the continuing validity of Boyd when it

stated, "[w]hether the Fifth Amendment would shield the taxpayer

from producing his own tax records in his possession is a

question not involved here; for the papers demanded here are not

- 36 -
his 'private papers,' see Boyd v. United States, 116 U.S. at

634-35." Fisher, 425 U.S. at 414; see also Shapiro v. United

States, 335 U.S. 1, 16-18 (1948) (holding that records that are

required by statute to be kept cannot be sheltered by the

invocation of the Fifth Amendment).

As in Couch, the taxpayer in Fisher did not possess the

documents -- a third party, the taxpayer's attorney, did. Thus,

the Court's "holding is that compelled production of documents

from an attorney does not implicate whatever Fifth Amendment

privilege the taxpayer might have enjoyed from being compelled

to produce them himself." Fisher, 425 U.S. at 402.

Furthermore, the documents that were subpoenaed in Fisher were

documents prepared by the taxpayer's accountant, not the

taxpayer. Accordingly, the Court said, "[w]e do hold that

compliance with a summons directing the taxpayer to produce the

accountant's documents involved in these cases would involve no

incriminating testimony within the protection of the Fifth

Amendment." 425 U.S. at 414 (emphasis added). Stating that

"[p]urely evidentiary (but 'non testimonial') materials, as well

as contraband and fruits and instrumentalities of crime, may now

be searched for and seized under proper circumstances," Fisher,

425 U.S. at 407, the Court nonetheless noted, however, that the

question is open under the Fifth Amendment "'whether there are

items of evidential value whose very nature precludes them from

- 37 -
being the object of a reasonable search and seizure.'" Id. at

407 n.9.

After its decision in Fisher, the Court held "that the

search of an individual's office for business records, their

seizure, and subsequent introduction into evidence do[es] not

offend the Fifth Amendment's proscription." Andresen v.

Maryland, 427 U.S. 463, 477 (1976). In so holding, the Court

specifically noted "that permitting the introduction into

evidence of a person's business records seized during an

otherwise lawful search would [not] offend or undermine any of

the policies undergirding the privilege." Id. at 475-76.

Significantly, however, the Court "recognize[d], of course, that

the Fifth Amendment protects privacy to some extent." Id. at

477. Indeed, the Court noted that the Fifth Amendment promotes

the following societal values:

"The privilege against self-incrimination
. . . reflects many of our fundamental
values and most noble aspirations: our
unwillingness to subject those suspected of
crime to the cruel trilemma of
self-accusation, perjury or contempt; our
preference for an accusatorial rather than
an inquisitorial system of criminal justice;
our fear that self-incriminating statements
will be elicited by inhumane treatment and
abuses; our sense of fair play which
dictates 'a fair state-individual balance by
requiring the government to leave the
individual alone until good cause is shown
for disturbing him and by requiring the
government in its contest with the
individual to shoulder the entire load'
. . . ; our respect for the inviolability of
the human personality and of the right of

- 38 -
 each individual 'to a private enclave where
he may lead a private life' . . . ; our
distrust of self-deprecatory statements; and
our realization that the privilege, while
sometimes 'a shelter to the guilty,' is
often 'a protection to the innocent.'"

Id. at 476 n.8 (emphasis added). The Court again distinguished

Boyd by noting that Boyd concerned "private papers" and did not

"compel suppression of [the accused's] business records." Id.

at 471-72. Thus, Andresen implicitly leaves open the question

Fisher explicitly left open. See 425 U.S. 407 n.9.

Still later, United States v. Doe, 465 U.S. 605, 606

(1984), "present[ed] the issue whether, and to what extent, the

Fifth Amendment privilege against compelled self-incrimination

applies to the business records of a sole proprietorship." The

Court ruled that the contents of business records are not

privileged under the Fifth Amendment where the accused

voluntarily prepared the documents. See id. at 610-11.

Answering the question not posed in Fisher, the Court held that

the content of business records, even in the possession of the

accused, are not privileged. See id. at 611-12. Although Doe

clearly involved business records, Justice O'Connor in a

concurring opinion interpreted the Court's opinion in Doe to

mean that "the Fifth Amendment provides absolutely no protection

for the contents of private papers of any kind." 465 U.S. at

618 (O'Connor, J., concurring). Justice Marshall, however,

joined by Justice Brennan, adamantly disagreed and reasserted

- 39 -
the principle "that under the Fifth Amendment 'there are certain

documents no person ought to be compelled to produce at the

Government's request.'" 465 U.S. at 619 (Marshall, J.,

concurring and dissenting) (citation omitted). In short,

although these cases refine the holding in Boyd, the Supreme

Court has never overruled the core holding of Boyd.

Although the Commonwealth is correct in asserting that the

Supreme Court has altered its Fifth Amendment analysis, my

analysis of these cases clearly establishes that the Court has

only done so with respect to business papers. The Court's basic

holding in Boyd, as applied to private papers that are

testimonial or communicative and that are in the possession of

the accused, has never been reversed. As the Court held in

Boyd, "any forcible and compulsory extortion of a man's own

testimony or of his private papers to be used as evidence to

convict him of a crime or to forfeit his goods, is within the

condemnation of . . . the Fourth and Fifth Amendments." 116

U.S. at 630. Indeed, the Court has noted in dicta on several

occasions the unique privacy interest a person has in his or her

personal papers when those papers remain in the person's

possession. See, e.g., United States v. Dionisio, 410 U.S. 1,

11-12 (1973) (citing Boyd for the proposition that a grand jury

"cannot require the production by a person of [incriminating]

private books and records" and stating that on the facts before

it, "no valid Fifth Amendment claim . . . [existed because

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there] was no order to produce private books and papers"); Nixon

v. Administrator of General Services, 433 U.S. 425, 455, 459-60

(1977) (indicating that had more of the documents the former

President sought to protect from disclosure under the

Presidential Recordings and Materials Preservation Act been

private communications or personal diary dictabelts, then his

First, Fourth, and Fifth Amendments claims would have had

greater merit). Other courts have agreed. See, e.g., United

States v. (Under Seal), 745 F.2d 834, 840 (4th Cir. 1985),

vacated as moot, 471 U.S. 1001 (1985) (holding "in line with

Boyd, that the fifth amendment prevents the government from

subpoenaing an individual's incriminating papers that are in his

possession and are held by him in an individual . . .

capacity"); In Re Grand Jury Proceedings, 632 F.2d 1033, 1042

(3rd Cir. 1980) (holding that an accused's Fifth Amendment

rights are violated if he is required to produce his personal

"pocket diaries"); United States v. Boyette, 299 F.2d 92, 95

(4th Cir. 1962) (stating in dicta that "it has been thought that

a diary in which its author has recited his criminal conduct,

seized in an otherwise lawful search, should not be used against

him, just as any other kind of involuntary confession is

unusable under the Fifth Amendment"); United States v. Katin,

109 F.R.D. 406, 409 (D. Mass. 1986) (noting that "[i]ntimate

personal papers such as private diaries, or drafts of letters or

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essays, are not business records whose contents are unprotected

by the Fifth Amendment").

In addition to Andresen, a case involving "business

records," 427 U.S. at 477, the Commonwealth cites United States

v. LeVasseur, 699 F. Supp. 965 (D. Mass 1988). However,

LeVasseur relies upon Andresen, see 699 F. Supp. at 989. In

United States v. LeVasseur, 619 F. Supp. 775 (E.D.N.Y. 1985),

another case cited by the Commonwealth, the trial judge refused

a motion to suppress on Fourth Amendment grounds "coded

notebooks" seized from the accused. Id. at 791. The sparcity

of the description of the items leaves in question the precise

issue raised and decided.

The Commonwealth also cites State v. Andrei, 574 A.2d 295

(Me. 1990). There, the Supreme Judicial Court of Maine held

that where the accused's husband delivered the accused's diary

to government officials, no Fifth Amendment violation occurred.

Thus, the court rested its decision on the fact that due to

circumstances of the possession and delivery of the diary by a

third party, the accused's "diary could be introduced at trial

without any form of compulsion of the [accused]." Id. The

decision in Andrei also relies on Andresen, which we have

previously stated pertained solely to business records. See 574

A.2d at 299. Likewise, in People v. Willey, 303 N.W.2d 217

(Mich. Ct. App. 1981), the diaries were given to the police by a

third party. See id.

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 The Commonwealth further argues that Moyer's diaries are

not protected by the Fifth Amendment privilege against

self-incrimination because Moyer was not compelled to produce

them. The distinction between being compelled to produce

personal documents by subpoena, however, and having those same

personal documents seized by the government, does not relieve

the government of its obligation to avoid violating the Fifth

Amendment rights of an accused. See Hill v. Philpott, 445 F.2d

144, 149-50 (7th Cir. 1971) (holding that where production of

the taxpayer's personal books and records would have properly

been refused on the basis of Fifth Amendment privilege against

self-incrimination if they had been sought by subpoena or

summons, the fact that they were seized pursuant to valid search

warrant did not preclude the taxpayer from claiming violation of

his Fifth Amendment rights). As stated by the United States

Supreme Court in Gouled v. United States, 255 U.S. 298 (1921):

In practice the result is the same to one
accused of crime, whether he be obliged to
supply evidence against himself or whether
such evidence be obtained by an illegal
search of his premises and seizure of his
private papers. In either case he is the
unwilling source of the evidence, and the
Fifth Amendment forbids that he shall be
compelled to be a witness against himself in
a criminal case.

Id. at 306. This principle has been reiterated in subsequent

cases. See Agnello v. United States, 269 U.S. 20 (1925), and

United States v. Lefkowitz, 285 U.S. 452 (1932), and is implicit

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in the Court's rationale in both Warden v. Hayden, 387 U.S. 294

(1967), and Schmerber v. California, 384 U.S. 757 (1966).

As the Third Circuit has noted, "[t]he fifth amendment

doctrine protecting an accused from producing incriminating

private papers manifests its vitality by virtue of the Fisher

court's explicit efforts to distinguish its facts from the facts

in Boyd." In Re Grand Jury Proceedings, 632 F.2d at 1043

(citing Fisher, 425 U.S. at 414). Clearly, Andresen, which

concerned the police search of an individual's office and

seizure of business records is not controlling when the issue

pertains to private diaries of a testimonial and communicative

nature. Indeed, the Supreme Court recently emphasized the

important constitutional distinction between "testimonial" and

other communications:

The term "privilege against
self-incrimination" is not an entirely
accurate description of a person's
constitutional protection against being
"compelled in any criminal case to be a
witness against himself."

The word "witness" in the constitutional
text limits the relevant category of
compelled incriminating communications to
those that are "testimonial" in character.
As Justice Holmes observed, there is a
significant difference between the use of
compulsion to extort communications from a
defendant and compelling a person to engage
in conduct that may be incriminating. Thus,
even though the act may provide
incriminating evidence, a criminal suspect
may be compelled to put on a shirt, to
provide a blood sample or handwriting
exemplar, or to make a recording of his

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 voice. The act of exhibiting such physical
characteristics is not the same as a sworn
communication by a witness that relates
either express or implied assertions of fact
or belief. Pennsylvania v. Muniz, 496 U.S.
582, 594-598 (1990). Similarly, the fact
that incriminating evidence may be the
byproduct of obedience to a regulatory
requirement, such as filing an income tax
return, maintaining required records, or
reporting an accident, does not clothe such
required conduct with the testimonial
privilege.

United States v. Hubbell, ___ U.S. ___, ___ (2000) (Slip. op.).

The aspect of the Boyd decision providing protection for diaries

of a testimonial nature stands undisturbed.

For these reasons, I would hold that the trial judge's

ruling that permitted the use of those diaries against Moyer at

trial violated Moyer's rights under the Fifth Amendment.

I also disagree with the majority's interpretation of Code

§ 18.2-370.1. During trial, the trial judge ruled that

"buttocks" are "sexual . . . parts" within the meaning of Code

§ 18.2-370.1. Moyer contends that ruling was error and that,

because the evidence supporting five of the indictments proved

only that "bare buttocks" were exposed, we should reverse those

convictions on the ground that the evidence was insufficient.

Moyer further contends that "evidence throughout the trial of

paddling on buttocks and exposure of buttocks . . . flavored and

colored the evidence regarding the other indictments,"

prejudically affecting all the other convictions.

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 Code § 18.2-370.1 provides as follows:

Any person eighteen years of age or older
who maintains a custodial or supervisory
relationship over a child under the age of
eighteen, including but not limited to the
parent, step-parent, grandparent,
step-grandparent, or who stands in loco
parentis with respect to such child and is
not legally married to such child, and who,
with lascivious intent, knowingly and
intentionally (i) proposes that any such
child feel or fondle the sexual or genital
parts of such person or that such person
feel or handle the sexual or genital parts
of the child, or (ii) proposes to such child
the performance of an act of sexual
intercourse or any act constituting an
offense under § 18.2-361, or (iii) expose
his or her sexual or genital parts to such
child, or (iv) proposes that any such child
expose his or her sexual or genital parts to
such person, or (v) proposes to the child
that the child engage in sexual intercourse,
sodomy or fondling of sexual or genital
parts with another person, or (vi) sexually
abuses the child as defined in
§ 18.2-67.10(6), shall be guilty of a Class
6 felony.

(Emphasis added).

The trial judge concluded, and the majority now affirms,

that our decision in Hart v. Commonwealth, 18 Va. App. 77, 441

S.E.2d 706 (1994), necessarily leads to the conclusion that

"buttocks" are "sexual . . . parts" under the statute. In Hart,

the accused was charged and convicted of indecent exposure under

Code § 18.2-387, which makes it a misdemeanor to "obscene[ly]

display or expos[e]" ones "person, or the private parts thereof,

in any public place." See Hart, 18 Va. App. at 78, 441 S.E.2d

at 706. Ruling that the meaning of the word "private parts" was

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ambiguous, and consistent with well recited rules of statutory

construction, we looked to other sections of our Code for

guidance. See id. at 79, 441 S.E.2d at 707. This analysis

supported the holding in Hart that the legislature intended

"buttocks" to be "private parts" within the meaning of Code

§ 18.2-387. Id.

We face no such ambiguity here. Except for subsection (ii)

and (vi), which are inapplicable in this case, Code § 18.2-370.1

clearly addresses conduct in which "sexual or genital parts"

were either fondled, exposed, or proposed to be fondled or

exposed. Unlike the term "private parts," which could have a

number of meanings depending on the source of inquiry, I

perceive no ambiguity in the meaning of "sexual or genital

parts." "Sexual" is defined as "of or relating to the male or

female sexes or their distinctive organs or functions."

Webster's Third New International Dictionary 2082 (1981).

"Sexual organ," a term relevant to any inquiry of the meaning of

"sexual part," is defined as "an organ of the reproductive

system; an external generative organ." Id. "Genital" is

defined as "generative" and "relating to or being a sexual

organ." Id. at 946. The definitions are clear, precise, and

unambiguous.

"Where a statute is unambiguous, the plain
meaning is to be accepted without resort to
the rules of statutory interpretation."
"'Courts are not permitted to rewrite
statutes. This is a legislative function.

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 The manifest intention of the legislature,
clearly disclosed by its language, must be
applied.'" Accordingly, we must "'take the
words as written'" in Code § 18.2-370.1 and
give them their plain meaning.

Krampen v. Commonwealth, 29 Va. App. 163, 167, 510 S.E.2d 276,

278 (1999).

Nothing in the definition of "sexual" or "sexual organ"

supports the majority's conclusion that buttocks are "sexual

. . . parts" within the meaning of Code § 18.2-370.1. Buttocks

are neither "an organ of the reproductive system," nor are they

"an external generative organ." Furthermore, buttocks do not

"relat[e] to the male or female sexes or their distinctive

organs or functions." While a buttock may be a "private part,"

such that the legislature made it illegal to expose the buttocks

under Code § 18.2-387, see Hart, I do not agree that buttocks

are "sexual parts" under Code § 18.2-370.1.

I would hold, therefore, that the trial judge's finding

tainted his ruling on the evidence. I cannot say, however, that

upon a proper consideration of the evidence, the convictions

necessarily would be unsupported by sufficient evidence. The

evidence properly presented might establish that one who exposes

his or her buttocks exposed his or her genitalia as well. See

State v. Fly, 501 S.E.2d 656, 659 (N.C. 1998) (holding that

where the accused, wearing only a baseball hat and pants around

his ankles, bent over so that his bare buttocks faced the

complaining witness, a "jury could reasonably find . . . that

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[the accused] had exposed . . . either his anus, his genitals,

or both"). Because the trial judge ruled incorrectly, however,

concerning the law, he made no findings on this point on each of

the instances involving exposed buttocks. Thus, I cannot

conclude that if properly viewed, the evidence would have

excluded this possibility.

For these reasons, I would reverse the convictions and

remand for a new trial without permitting the use of the diaries

at that trial.

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