COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Humphreys,* Huff and Athey
Argued at Virginia Beach, Virginia
RICHARD LONNY CARMACK, JR.
MEMORANDUM OPINION** BY
v. Record No. 0048-23-1 JUDGE GLEN A. HUFF
MARCH 5, 2024
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SOUTHAMPTON COUNTY
W. Richard Savage, III, Judge Designate
(Sean P. Domer; Bush & Taylor, P.C., on brief), for appellant.
Appellant submitting on brief.
William K. Hamilton, Assistant Attorney General (Jason S. Miyares,
Attorney General, on brief), for the Commonwealth.
Richard Carmack (“appellant”) was convicted by the Southampton County Circuit Court
(the “trial court”) of soliciting child pornography, in violation of Code § 18.2-374.1. Appellant
contends the special venue provision of Code § 18.2-374.1(E) did not allow the trial court to hear
his case because the unlawful act—soliciting photographs from a minor—occurred at appellant’s
home in Suffolk, not in the City of Franklin where the minor received the message. Because the
language of Code § 18.2-374.1 encompasses both the sending and receiving aspects of solicitation,
this Court affirms the trial court’s denial of appellant’s motion to strike for lack of venue.
*
Judge Humphreys participated in the hearing and decision of this case prior to the
effective date of his retirement on December 31, 2023.
**
This opinion is not designated for publication. See Code § 17.1-413(A).
BACKGROUND1
In 2020, appellant lived in Suffolk, Virginia, with a roommate, Lorie Walters. Walters
had a then 11-year-old granddaughter—E.C.—who periodically visited Walters at the Suffolk
apartment.2 E.C. first came into contact with appellant during such visits. On May 23, 2020,
while inside the Suffolk apartment, appellant messaged E.C. on Facebook saying, “I want to see
a picture of you now. With or without clothes! Take your pick. You are grown and can make
up your own mind I think.” E.C. received this message while at her stepmother’s home in
Franklin, Virginia, and immediately showed it to her stepmother.3 E.C.’s father—Walters’s
son—showed the message to Walters and later confronted appellant, who admitted he sent the
message.
A Southampton County grand jury indicted appellant on one count of solicitation of child
pornography in violation of Code § 18.2-374.1.4 Appellant pleaded not guilty and waived his
right to jury trial. Following the Commonwealth’s case-in-chief, appellant moved to strike on
the basis that Code § 18.2-374.1(E) provides venue only “where the unlawful act occurs, [or]
where the alleged offender resides.” Appellant argued that the trial court lacked venue because
1
“In accordance with familiar principles of appellate review, the facts will be stated in the
light most favorable to the Commonwealth, the prevailing party [below].” Poole v. Commonwealth,
73 Va. App. 357, 360 (2021) (quoting Gerald v. Commonwealth, 295 Va. 469, 472 (2018)). In
doing so, this Court discards any of appellant’s conflicting evidence, and regards as true all credible
evidence favorable to the Commonwealth and all inferences that may reasonably be drawn from
that evidence. See Gerald, 295 Va. at 473.
2
This Court refers to the minor child involved here by her initials to protect her privacy.
3
Franklin, Virginia, is an independent city that is part of the 5th Judicial Circuit of
Virginia, also known as the Southampton County Circuit Court. Courts in Circuit and District 5,
https://www.vacourts.gov/courts/maps/circuit5.html. At trial, appellant conceded that Franklin is
subject to the Southampton County Circuit Court’s jurisdiction.
4
Appellant was also indicted for, and subsequently convicted of, indecent liberties with a
child in violation of Code § 18.2-370. Appellant does not challenge this conviction.
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he lived in Suffolk and the evidence did not prove he committed the criminal act within the
bounds of the trial court’s jurisdiction. The trial court overruled the motion to strike. Appellant
presented evidence and renewed his motion to strike on the basis of improper venue. The trial
court again overruled the motion and found appellant guilty. Appellant was sentenced to ten
years’ incarceration, with five years suspended.
This appeal followed.
ANALYSIS
Appellant contends the trial court erred in denying his motion to strike for lack of venue.
According to appellant’s interpretation of Code § 18.2-374.1(E), the trial court was an improper
venue because he does not live within its jurisdiction and the unlawful act did not occur there.
This argument presents an issue of first impression as to the construction and application of Code
§ 18.2-374.1(E)’s special venue provision. For the following reasons, this Court rejects
appellant’s interpretation and finds that the trial court had proper venue under the special venue
provision.
“Questions of statutory interpretation . . . are subject to de novo review on appeal, and we
owe no deference to the circuit court’s interpretation of the statutory scheme.” Esposito v. Va.
State Police, 74 Va. App. 130, 133 (2022). The duty of the courts is “to construe the law as it is
written.” Hampton Roads Sanitation Dist. Comm’n v. City of Chesapeake, 218 Va. 696, 702
(1978). “When construing a statute, our primary objective ‘is to ascertain and give effect to
legislative intent,’ as expressed by the language used in the statute.” Va. Elec. & Power Co. v.
State Corp. Comm’n, 295 Va. 256, 262-63 (2018) (quoting Cuccinelli v. Rector & Visitors of the
Univ. of Va., 283 Va. 420, 425 (2012)). “We must determine the legislative intent by what the
statute says and not by what we think it should have said.” Miller & Rhoads Bldg., L.L.C. v. City
of Richmond, 292 Va. 537, 541-42 (2016) (quoting Carter v. Nelms, 204 Va. 338, 346 (1963)).
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“When the language of a statute is unambiguous, we are bound by the plain meaning of that
language.” Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104 (2007) (citations
omitted).
Courts cannot add language to the statute the General Assembly
has not seen fit to include. Nor are they permitted to accomplish
the same result by judicial interpretation. Where the General
Assembly has expressed its intent in clear and unequivocal terms,
it is not the province of the judiciary to add words to the statute or
alter its plain meaning.
Jackson v. Fid. & Deposit Co., 269 Va. 303, 313 (2005) (internal quotation marks and citations
omitted).
“In a criminal prosecution, it is the Commonwealth’s burden to establish venue.” Bonner
v. Commonwealth, 62 Va. App. 206, 211 (2010) (en banc). “As venue is not a substantive
element of a crime, the Commonwealth is not required to ‘prove where the crime occurred
beyond a reasonable doubt.’” McGuire v. Commonwealth, 68 Va. App. 736, 741 (2013) (quoting
Bonner, 62 Va. App. at 210). “In order to establish venue, the Commonwealth must ‘produce
evidence sufficient to give rise to a strong presumption that the offense was committed within
the jurisdiction of the court.’” Id. (quoting Bonner, 62 Va. App. at 211). “Venue for a
prosecution under [Code § 18.2-374.1] may lie in the jurisdiction where the unlawful act occurs,
where the alleged offender resides, or where [the child pornography] is produced, reproduced,
found, stored, or possessed.” Code § 18.2-374.1(E). It is undisputed that appellant does not
reside within the trial court’s jurisdiction and that no child pornography was ever produced,
reproduced, found, stored, or possessed. Therefore, whether the trial court had venue depends
entirely on the meaning of the phrase “where the unlawful act occurs.”
Code § 18.2-374.1 criminalizes “[a]ccost[ing], entic[ing] or solicit[ing] a person less than
18 years of age with intent to induce or force such person to perform in or be a subject of child
pornography.” Code § 18.2-374.1(B)(1). “Accost” means “[t]o assail or attack, especially by
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words.” Accost, Black’s Law Dictionary (11th ed. 2019). “Entice” means “[t]o lure or induce;
especially, to wrongfully solicit (a person) to do something.” Entice, Black’s Law Dictionary
(11th ed. 2019). “Solicitation”—verb “solicit”—means “[t]he act or an instance of requesting or
seeking to obtain something; a request or petition.” Solicitation, Black’s Law Dictionary (11th
ed. 2019). These definitions easily encompass the sending of the message, be it to assail, attack,
lure, induce, request, or seek. Therefore, the “unlawful act,” for purposes of Code
§ 18.2-374.1(E), occurs in whichever jurisdiction from which the message was sent. But the
analysis cannot stop there. This code section criminalizes “[a]ccost[ing], entic[ing] or
solicit[ing] a person less than 18 years of age . . . .” Code § 18.2-374.1(B)(1) (emphasis added).
The inclusion of a specific target—the person less than 18 years of age—implies that the receipt
of the message is also part of the unlawful act. If the specific target provision is read out of the
statute, the unlawful act becomes “[a]ccost[ing], entic[ing] or solicit[ing] . . . with intent to
induce or force such person to perform in or be a subject of child pornography.” Id. (emphasis
added). The inclusion of a general target—“such person”—further contemplates someone
receiving the message.
To adopt appellant’s construction would remove significant language from the statute;
something this Court cannot do.5 See Jackson, 269 Va. at 313 (“it is not the province of the
judiciary to add words to the statute or alter its plain meaning”). Accordingly, this Court holds
5
In addition to removing significant language from the statute, this would also render an
absurd result because it is unclear who the victim of the crime is or how the criminal act could be
identified. “[S]tatutes are to be construed so as to avoid an absurd result.” Eastlack v.
Commonwealth, 282 Va. 120, 126 (2011).
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that the unlawful act of accosting, enticing, or soliciting a minor to produce child pornography
occurs not only wherever the message is sent but also wherever it is received.6
This result is not only constituent with the plain language of the statute, but also with
venue in general. “[V]enue for a criminal prosecution will generally be proper wherever any
element of the offense occurs.” Bonner, 62 Va. App. at 211. “When individual elements of a
crime occur in different locations, venue may be proper in more than one jurisdiction.”
McGuire, 68 Va. App. at 741-42; see also Bonner, 62 Va. App. at 212; Kelso v. Commonwealth,
282 Va. 132, 139 (2011). Here, as discussed above, the unlawful act includes both the sending
and receipt of the message. Because the unlawful act can occur in multiple jurisdictions venue
necessarily can be proper in multiple jurisdictions.
It is undisputed that appellant was in Suffolk, where he resided, when he sent his
solicitation to E.C. and that E.C. was in the City of Franklin when she received it. Accordingly,
venue was proper under Code § 18.2-374.1(E) in two places: (1) the City of Franklin and
(2) Suffolk. At trial, the Commonwealth presented evidence to show E.C. was in the City of
Franklin when she received appellant’s message. Accordingly, the trial court did not err in
denying appellant’s motion to strike for lack of venue.
CONCLUSION
For the foregoing reasons, this Court affirms the judgment of the trial court.
Affirmed.
6
Interestingly, the plain language of Code § 18.2-374.1(B)(1) does not consider the
mechanism through which the target is accosted, enticed, or solicited. Rather, it is the
transmission of the message from the sender and the receipt by the target that constitutes the
unlawful act—whether through an in-person verbal communication or through a social media
platform. This further supports the conclusion that the receipt by the target is part of the
unlawful act because the transmission of the message is the criminal conduct not merely sending
it or sending it via a particular medium.
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