COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Frank and Humphreys
Argued at Chesapeake, Virginia
ROBERT JOSEPH SLAVEK
MEMORANDUM OPINION * BY
v. Record No. 2452-00-1 JUDGE RICHARD S. BRAY
OCTOBER 9, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Everett A. Martin, Jr., Judge
Joseph A. Migliozzi (Hooker & Migliozzi,
P.C., on brief), for appellant.
Virginia B. Theisen, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Pursuant to the terms of a plea agreement, Robert Joseph
Slavek (defendant) pled guilty to twelve indictments, eight
charging possession of child pornography, second or subsequent
offense, and four alleging reproduction of like material,
violations of Code §§ 18.2-374.1:1, -374.1, respectively,
expressly reserving the right to appeal "pre-trial motions." On
appeal, defendant contends the trial court erroneously denied his
pretrial motion to quash the indictments, arguing the prosecutions
constituted double jeopardy and, further, that "printing of a
pornographic image from a computer screen" is not the reproduction
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
of such material contemplated by Code § 18.2-374.1. We affirm the
convictions for reproduction of offending photographs but reverse
the convictions for possession of like images.
The parties are conversant with the record, and this
memorandum opinion recites only those facts necessary to
disposition of the appeal.
I.
During the morning hours of August 18, 1999, Norfolk Police
Officer R.A. Miller was conducting surveillance of defendant at
the Kirn Memorial Library, a public facility. As Miller watched,
defendant, using library computer equipment, accessed and printed
four sexually explicit images of children. As a result, he was
arrested immediately upon exiting the library, charged with
"reproducing sexually explicit material of persons under eighteen
years of age," and a "three-ring binder" containing the four
pictures printed at the library was taken from his person.
At police headquarters, defendant waived his Miranda rights
and admitted "using the library computer to access child
pornography web sites for about a year." A subsequent consensual
search of defendant's room at the Norfolk Union Mission yielded
"four plastic grocery bags containing numerous photographs printed
from a computer," (emphasis added), which resulted in an arrest
warrant charging defendant with possession of "sexually explicit
visual material utilizing or having as a subject a person less
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than eighteen years of age," a misdemeanor proscribed by Code
§ 18.2-374.1:1.
On November 15, 1999, defendant appeared before the Norfolk
General District Court for trial on the misdemeanor and
preliminary hearing on the felony. He entered a plea of guilty to
the misdemeanor offense, and a hearing was conducted on the
felony. In support of both prosecutions, the Commonwealth
introduced into evidence, in bulk, the "four plastic grocery bags"
of photographs discovered in defendant's room. (Emphasis added).
At the conclusion of the district court proceedings, the court
convicted and sentenced defendant on the misdemeanor but dismissed
the felony.
On March 1, 2000, the grand jury indicted defendant on eight
counts of possession of child pornography, second or subsequent
offense, a felony, and four counts of production of sexually
explicit items involving children, the instant offenses. The
eight indictments essentially tracked the language of Code
§ 18.2-374.1:1 without particularizing the alleged conduct. The
four reproduction indictments similarly mirrored one another and
Code § 18.2-374.1, charging that defendant "did knowingly take
part in or participate in the filming, photographing, or other
reproduction of sexually explicit visual material by any means,
including but not limited to computer-based reproduction, which
utilizes or has as a subject a person less than eighteen years of
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age." All indictments alleged an offense date, "on or about
August 18, 1999."
Prior to trial, defendant moved the court to quash the felony
indictments, contending the misdemeanor conviction in the general
district court for possession of child pornography was based upon
the same photographs and barred further prosecution. He further
maintained that, "[Code § 18.2-374.1] does not govern the mere
possession of sexually explicit material . . . [and] the
indictments against [him] for production of sexually explicit
items [were therefore] invalid." After considering argument, the
court overruled the motion, and defendant entered conditional
guilty pleas to each offense, reserving the right to appeal the
adverse ruling. This appeal followed.
II.
Defendant first challenges the eight convictions for
possession of child pornography as violative of the constitutional
prohibition against double jeopardy. He contends that, because
the evidence presented in the general district court to prove the
misdemeanor offense, possession of child pornography, was the same
that supported the subsequent felony convictions in the trial
court for the identical crime, as a second or subsequent offense,
he was twice tried and convicted for the misconduct. We agree.
The Double Jeopardy Clause of the Fifth Amendment provides
that no person shall "be subject for the same offense to be twice
put in jeopardy of life or limb." U.S. Const. amend. V.
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Accordingly, an accused may not be subjected to "(1) a second
prosecution for the same offense after acquittal; (2) a second
prosecution for the same offense after conviction; and (3)
multiple punishments for the same offense." Payne v.
Commonwealth, 257 Va. 216, 227, 509 S.E.2d 293, 300 (1999)
(citations omitted).
Here, defendant was convicted in the Norfolk General District
Court on November 15, 1999, on a warrant charging possession of
child pornography "on or about August 18, 1999," in violation of
Code § 18.2-374.1:1, a misdemeanor. In support of the
prosecution, the Commonwealth offered into evidence "four plastic
grocery bags containing numerous photographs printed from a
computer," without distinguishing one among the allegedly illicit
photographs as relevant to the offense then before the court.
Defendant was found guilty and sentenced accordingly. Thereafter,
the grand jury indicted him on eight counts of the same crime, as
a second or subsequent offense, each indictment simply reciting
the conduct proscribed by the statute and referencing the offense
date, "on or about August 18, 1999." At trial, the Commonwealth
offered "twenty pictures related to the possession charges," all
from the "four plastic grocery bags" of photographs introduced in
the earlier misdemeanor prosecution.
Assuming, without deciding, that the Commonwealth correctly
asserts defendant is susceptible to prosecution for each unlawful
photograph possessed on August 18, 1999, only one of which was
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before the general district court, the record does not identify
the photograph that supported the attendant conviction. Thus, we
must conclude defendant was prosecuted and convicted in the
general district court for the collective possession of all
offending photographs in the "four plastic grocery bags,"
including those same photographs later subject of the eight
indictments in the trial court. Accordingly, defendant was
prosecuted for the same offense after conviction, a violation of
his protection against double jeopardy, and we must reverse the
resulting convictions for possession of the offending material in
violation of Code § 18.2-374.1:1.
III.
Defendant also challenges the four convictions for
reproduction of sexually explicit items involving children as
violative of the constitutional guarantee against double jeopardy,
arguing that (1) possession of such material is a "lesser-included
offense," precluding conviction of both crimes, and (2) he was
charged with multiple counts of the "same production." We
disagree with both contentions.
A.
Assuming, without deciding, that possession of proscribed
images is a lesser-included offense of reproduction of such
images, the instant crimes of possession clearly were not
lesser-included offenses of the reproduction indictments. At the
hearing on the motion to quash, defendant stated:
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[U]pon execution of the search, Judge, they
found . . . what I would stipulate from the
lower trial was presented in evidence . . .
four plastic grocery bags, full of child
pornography.
Now, this evidence was read into the
Court in General District Court . . . .
Based upon that evidence [defendant] entered
a plea of guilty to the misdemeanor . . .
and based upon the totality of the evidence
and the law the felony charge was dismissed
by [the] Judge . . . .
(Emphasis added). Thus, defendant conceded that he was
convicted in the general district court for the possession of
the "four plastic grocery bags, full of child pornography" found
in his room at the Norfolk Union Mission.
However, upon later indictment in the trial court, he was
convicted of reproducing "the four pictures [found] in his
[three-ring] binder [that] he had printed at [the library] just
prior to his arrest," felonious conduct clearly distinct from
possession of "four plastic grocery bags, full of child
pornography." Thus, the earlier possession conviction was not
implicated in the subsequent four reproduction indictments.
B.
Defendant further contends the Commonwealth charged multiple
counts of the "same production," resulting in constitutionally
impermissible punishments for a single criminal act, the
production of sexually explicit items involving children in
violation of Code § 18.2-374.1.
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"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). "It is judicial
punishment in excess of legislative intent which offends the
double jeopardy clause." Id.
In enacting Code § 18.2-374.1, the General Assembly declared
that
[a] person shall be guilty of a Class 5
felony . . . [w]ho knowingly takes part in
the filming, photographing or other
reproduction of sexually explicit visual
material by any means, including but not
limited to computer-generated reproduction,
which utilizes or has as a subject a person
less than eighteen years of age.
Code § 18.2-374.1(B)(3). Code § 18.2-374.1(A) defines the term
"sexually explicit visual material" as "a picture, photograph,
drawing, sculpture, motion picture film, digital image or similar
visual representation . . . ."
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In Educational Books, Inc. v. Commonwealth, 228 Va. 392,
323 S.E.2d 84 (1984), 1 the Virginia Supreme Court determined the
unit of prosecution in the obscenity statute, Code § 18.2-374,
was a single item proscribed by the statute, 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.
The legislature evinced a similar intent in Code § 18.2-374.1,
with each reproduction of an item of sexually explicit visual
material constituting a "unit of prosecution." See, e.g., Kelsoe,
226 Va. at 198-99, 308 S.E.2d at 104 (accused convicted of three
violations for simultaneously brandishing the same firearm at
three persons); Sullivan v. Commonwealth, 16 Va. App. 844, 847,
433 S.E.2d 508, 510-11 (1993) (defendant convicted of two
robberies, and related firearm offenses, from two clerks at the
same video store); Jordan, 2 Va. App. at 597, 347 S.E.2d at 156
(defendant convicted of two robberies, and related firearm
offenses, from employees of a restaurant).
1
In Educational Books, two police investigators purchased
magazines from the defendant store. The first investigator
purchased a single magazine and three transparent packages, each
containing three different magazines. At trial, five of these
magazines were introduced into evidence. The second
investigator purchased four magazines, all of which were
introduced into evidence. Defendant was convicted of nine sales
in violation of Code § 18.2-374. See Educational Books, 228 Va.
at 394, 323 S.E.2d at 85.
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Defendant was observed accessing and reproducing by computer
four distinct illicit images, on four separate occasions over a
period of several hours. At trial on such offenses, the
Commonwealth introduced into evidence the "four pictures" and "the
videotape . . . [depicting] . . . defendant printing these at
. . . [the] library." Such evidence sufficiently proved beyond a
reasonable doubt that defendant committed four distinct violations
of Code § 18.2-374.1, each properly subject to prosecution and
punishment.
IV.
Lastly, defendant contends that Code § 18.2-374.1 proscribes
only the "creat[ion]" of "a sexually explicit image of a child,"
not, as the trial court found, the "printing of a pornographic
image from a computer screen." Once again, we disagree.
In pertinent part, Code § 18.2-374.1 provides:
A. For the purposes of this article
and Article 4 (§ 18.2-362 et seq.) of this
chapter, the term "sexually explicit visual
material" means a picture, photograph,
drawing, sculpture, motion picture film,
digital image or similar visual
representation which depicts sexual
bestiality, a lewd exhibition of nudity, as
nudity is defined in § 18.2-390, or sexual
excitement, sexual conduct or
sadomasochistic abuse, as also defined in
§ 18.2-390, . . . .
B. A person shall be guilty of a Class
5 felony who: . . .
* * * * * * *
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3. Who [sic] knowingly takes part in
or participates in the filming,
photographing or other reproduction of
sexually explicit visual material by any
means, including but not limited to
computer-generated reproduction, which
utilizes or has as a subject a person less
than eighteen years of age; . . . .
(Emphasis added).
"When statutory construction is required, we construe a
statute to promote the end for which it was enacted, if such an
interpretation can reasonably be made from the language used."
Woolfolk v. Commonwealth, 18 Va. App. 840, 847, 447 S.E.2d 530,
533 (1994). "The plain, obvious, and rational meaning of a
statute is always preferred to any curious, narrow or strained
construction." Branch v. Commonwealth, 14 Va. App. 836, 839, 419
S.E.2d 422, 424 (1992). "Although penal laws are to be construed
strictly [against the Commonwealth], they 'ought not to be
construed so strictly as to defeat the obvious intent of the
legislature.'" Willis v. Commonwealth, 10 Va. App. 430, 441, 393
S.E.2d 405, 411 (1990) (citation omitted). Moreover, "a statute
should never be construed so that it leads to absurd results."
Branch, 14 Va. App. at 839, 419 S.E.2d at 424.
Code § 18.2-374.1 clearly prohibits the "reproduction . . .
by any means, including but not limited to computer-generated
reproduction." See Code § 18.2-374.1(B)(3). Defined by Webster's
Ninth New Collegiate Dictionary 1001 (1983), "reproduce" is "to
produce again . . . to cause to exist again or anew," and
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"reproduction" is "the act or process of reproducing," a synonym
of "duplicate," and "copy." Id. Thus, the statute plainly and
unambiguously forbids the conduct in issue.
Accordingly, we reverse and dismiss the eight convictions for
possession of child pornography and affirm the four convictions
for reproduction of sexually explicit material.
Affirmed in part,
and reversed and
dismissed in part.
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