Hugo Alberto Sandoval v. Commonwealth of Virginia , 64 Va. App. 398 ( 2015 )


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  •                                                                     COURT OF APPEALS OF VIRGINIA
    Present: Judges Kelsey, Alston and Senior Judge Bumgardner
    PUBLISHED
    Argued at Alexandria, Virginia
    HUGO ALBERTO SANDOVAL
    OPINION BY
    v.            Record No. 1554-13-4                                           JUDGE ROSSIE D. ALSTON, JR.
    FEBRUARY 24, 2015
    COMMONWEALTH OF VIRGINIA
    FROM THE CIRCUIT COURT OF THE CITY OF WINCHESTER
    John E. Wetsel, Jr., Judge
    Matt Beyrau (Matt Beyrau, PLLC, on brief), for appellant.
    Robert H. Anderson, III, Senior Assistant Attorney General
    (Mark R. Herring, Attorney General, on brief), for appellee.
    Hugo Sandoval (“appellant”) was tried and convicted of ten counts of manufacturing
    child pornography, eleven counts of indecent liberties with a minor, and one count of conspiracy
    to produce child pornography. On appeal he contends that the trial court erred: 1) when it
    denied his motion to dismiss the indictments against him, because the delay prior to his
    indictment violated his right to due process; 2) when it denied his motion to strike ten of the
    indecent liberties charges on the grounds they were incidental to the manufacturing of child
    pornography charges and a conviction for both offenses violated double jeopardy principles;
    3) when it denied his motion to strike ten counts of indecent liberties down to one count on the
    grounds that the unit of prosecution for indecent liberties is a common scheme or transaction;
    and 4) when it denied his motion to strike ten counts of manufacturing child pornography down
    to one count on the grounds that the unit of prosecution for manufacturing child pornography is a
    
    Justice Kelsey participated in the decision of this case prior to his investiture as a Justice
    of the Supreme Court of Virginia.
    common scheme or transaction. For the reasons that follow, we disagree and affirm the
    judgment of the trial court.
    BACKGROUND
    A. Underlying Offenses
    In 2004, appellant was convicted of carnal knowledge and aggravated sexual battery for
    offenses he committed against his stepdaughters, L.M. and S.M. In August 2004, while
    incarcerated for those offenses, appellant placed a series of seven calls to his wife, Helen Mason,
    over a three-day span, in which he requested “kinky pictures” of L.M. Helen Mason
    subsequently took ten pictures of L.M. in various sexually explicit poses, following appellant’s
    instructions as to the kind of pictures he wanted. Mason then delivered the photographs to
    appellant at the detention center where he was imprisoned. 1
    Appellant and Mason were both criminally charged for their actions. On September 14,
    2004, Mason was indicted on numerous counts of indecent liberties and production of obscene
    materials arising out of the August 2004 events involving L.M. In March of the following year,
    Mason was convicted of five counts of indecent liberties and ten counts of production of obscene
    material. She appealed her convictions to this Court. Thereafter, on April 15, 2005, appellant
    was indicted on three counts of taking indecent liberties with a minor, ten counts of producing
    child pornography, and two counts of conspiracy. Those indictments were subsequently nolle
    prosequied during the pendency of Mason’s appeal of her convictions to this Court. We issued
    an opinion affirming Mason’s convictions on November 7, 2006. See Mason v. Commonwealth,
    
    49 Va. App. 39
    , 
    636 S.E.2d 480
    (2006).
    1
    Upon delivering these photographs to appellant at the detention center where he was
    imprisoned, Mason took several sexually explicit photographs of appellant, which Mason later
    showed to L.M. Appellant was charged and convicted of one count of indecent liberties for
    those images. Appellant does not challenge that conviction on appeal.
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    Still incarcerated for his prior convictions of carnal knowledge and aggravated sexual
    battery, on November 13, 2012, appellant was indicted on eleven counts of indecent liberties
    with a minor, in violation of Code § 18.2-370, ten counts of manufacturing child pornography, in
    violation of Code § 18.2-374.1(B), and three counts of conspiracy, in violation of Code
    §§ 18.2-22 and 18.2-374.1 all relating to his August 2004 actions involving L.M.
    On December 5, 2012, the Office of the Attorney General filed a civil petition to commit
    appellant as a sexually violent predator pursuant to the Civil Commitment of Sexually Violent
    Predators Act. Citing appellant’s convictions for carnal knowledge and aggravated sexual
    battery, as well as a Sexually Violent Predator Evaluation of appellant prepared by Dr. Ilona
    Gravers, a licensed clinical psychologist, who had been designated by the Commissioner of the
    Department of Behavioral Health and Development Services to conduct a mental health
    examination of appellant, the Attorney General alleged that appellant met the criteria under Code
    § 37.2-900 as a sexually violent predator. As detailed in her evaluation, Dr. Gravers diagnosed
    appellant with a personality disorder that made appellant more likely to engage in future sexually
    violent acts.
    B. Motion to Dismiss
    Appellant filed with the trial court a motion to dismiss the indictments against him,
    alleging that his prosecution following a preindictment delay of over eight years violated his due
    process rights. He asserted in a supporting memorandum that he was prejudiced by the delay, as
    “the age of the case and witnesses’ diminished memories” made “a proper investigation by the
    defense . . . all but impossible,” “evidence may have been lost or misplaced,” and the victim
    would likely “testify differently” now as an adult than she would have as a minor. Appellant
    also asserted that the development of “case law favorable to the prosecution” and “society’s view
    of child pornography offenders[, which had] evolved and become more harsh over the
    -3-
    intervening years,” “strengthened the prosecution’s hand.” Finally, appellant expressed concern
    that Dr. Gravers’ evaluation “may have played a role in the charging decision” for his August
    2004 offenses and that appellant’s statements to Dr. Gravers “could possibly be used against him
    at either the trial or sentencing in his criminal case.” The preindictment delay was not only
    prejudicial, appellant argued, but also “done by a prosecutor seeking a tactical advantage” at
    trial.
    In a memorandum in opposition to appellant’s motion to dismiss, the Commonwealth
    explained both its decision to nolle prosequi the initial charges against appellant and to
    subsequently seek indictments against appellant in 2012. The Commonwealth stated that it
    moved to nolle prosequi the initial charges against appellant when Helen Mason appealed her
    convictions because “[t]he Commonwealth wanted to avoid [L.M.] having to testify multiple
    times. If the Court of Appeals remanded the Mason case it would also remand[] [appellant’s]
    case and the victim would have to testify in a total of four trials if both cases were then re-tried.”
    When Helen Mason’s appeal finally resolved, L.M. “was sixteen and it had been three years
    since she had been removed from [her] home,” and appellant “remained incarcerated on other
    charges.” The Commonwealth explained that it chose not to seek indictments against appellant
    at that time because “[t]he cost of putting [L.M.] through trial was too great compared to any
    benefit.”
    The record suggests, however, that the calculus changed in 2012, when the
    Commonwealth became aware that appellant had contacted L.M.’s sister, and after the Los
    Angeles County District Attorney’s Office contacted the Commonwealth regarding allegations
    that appellant had forcibly raped a child in California in 2000. That information led the
    Commonwealth to contact L.M., who expressed her interest in seeing appellant charged because
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    “she did not want [appellant] doing the same thing to anybody else.” The Commonwealth
    justified its 2012 indictment of appellant for these reasons.
    The trial court held a hearing on appellant’s motion to dismiss on April 8, 2013. The trial
    court indicated at that time that the only issue “that had any traction, was the sexually violent
    predator evaluation” performed by Dr. Gravers. However, upon the Commonwealth Attorney’s
    assertion that he had not read the evaluation, did not intend to introduce it at trial, and intended to
    confine the evidence to events occurring in 2004, the trial court concluded that the evaluation
    “[was] not an issue in th[e] case.” The trial court denied appellant’s motion to dismiss, finding
    that appellant had failed to prove by a preponderance of the evidence that he suffered actual
    prejudice or that the Commonwealth intentionally delayed indicting him in order to gain a
    tactical advantage.
    C. Bench Trial
    The trial court held a bench trial on July 17, 2013. The Commonwealth offered two main
    witnesses. Gene Boyce, a systems officer for the detention center at which appellant was
    imprisoned, authenticated a CD that contained relevant portions of the August 2004 phone
    conversations between appellant, Mason, and L.M. L.M. also testified for the Commonwealth.
    L.M. testified that the voices on the recording belonged to appellant, Helen Mason, and herself.
    L.M. also identified the ten photographs taken of her by Mason in August 2004. L.M. testified
    that she “didn’t want to . . . [take] the pictures,” but her mother threatened to “send [her] back to
    foster care” if she did not. L.M. testified that all ten photographs were taken on one night. L.M.
    was only thirteen when the photographs were taken.
    Following the Commonwealth’s case-in-chief, appellant made a motion to strike.
    Appellant first moved to strike the eleven counts of indecent liberties down to one count of
    indecent liberties. Appellant argued that “the unit of prosecution for indecent liberties is not
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    each proposal” that a minor expose her sexual or genital parts. Rather, appellant asserted that
    “[i]f there is a continuing kind of scheme or one prolonged proposal . . . [then] the whole
    incident is the unit of prosecution.”
    Appellant next moved to strike the charges of indecent liberties on the grounds that each
    indecent liberties charge was incidental to the manufacture of child pornography charges.
    Appellant therefore contended that his conviction for both offenses would violate double
    jeopardy principles. Appellant clarified under questioning from the trial court that an indecent
    liberties offense is not incidental to every production of child pornography offense – but each
    indecent liberties offense “in this instance” was incidental to the production of child
    pornography.
    Finally, appellant raised a motion to strike the ten counts of manufacturing child
    pornography down to one count. Appellant argued that the “unit of prosecution should be the
    incident during which pictures were taken and there is only one here.” In making that argument,
    appellant acknowledged that this Court’s decision in Mason held “that the unit of prosecution for
    child pornography is the number of pictures,” but appellant argued that the Mason Court’s
    decision was incorrect.
    The trial court denied each of appellant’s motions to strike. Appellant did not put on any
    evidence and renewed his motions to strike, which the trial court again denied. The trial court
    found appellant guilty of each of the ten counts of manufacturing child pornography and the
    eleven counts of indecent liberties with a minor.
    D. Sentencing
    The trial court held a sentencing hearing on August 9, 2013. During the hearing, the
    Commonwealth submitted a sex offender evaluation form prepared by Dr. Gravers. The form
    was required at sentencing under Code § 19.2-301 and distinct from Dr. Gravers’ sexually
    -6-
    violent predator evaluation that was previously prepared for the civil case. However,
    Dr. Gravers consulted the sexually violent predator evaluation while preparing the sex offender
    evaluation. The trial court permitted the introduction of the sex offender evaluation over
    appellant’s objection that Dr. Gravers improperly used the prior sexually violent predator
    evaluation report as a source of information. The trial court then sentenced appellant to a total
    term of imprisonment of thirty years, with ten years suspended.
    This appeal followed.
    ANALYSIS
    A. Preindictment Delay
    Appellant first contends that the trial court erred when it denied his motion to dismiss the
    indictments for violating his right to due process. On appeal, appellant argues that the charges
    against him should have been dismissed with prejudice because the preindictment delay of over
    eight years was entirely unjustified, prejudicial, and done by a prosecutor seeking a tactical
    advantage at trial.
    It is not questioned that the primary guarantee against stale prosecutions is the statute of
    limitations. See Anderson v. Commonwealth, 
    48 Va. App. 704
    , 711, 
    634 S.E.2d 372
    , 375 (2006)
    (“Virginia has no general statute of limitations on felonies.”). As we have noted previously, “the
    Constitution plays [only] a ‘limited role’ in situations alleging preindictment delay.” 
    Id. at 712,
    634 S.E.2d at 375 (quoting Morrisette v. Commonwealth, 
    264 Va. 386
    , 393, 
    569 S.E.2d 47
    , 52
    (2002)). “In cases of [preindictment] delay, the issue is whether the accused was denied due
    process as a result of the delay.” Hall v. Commonwealth, 
    8 Va. App. 526
    , 529, 
    383 S.E.2d 18
    ,
    20 (1989). “Due process principles bar a prosecution for preindictment delay only when the
    ‘defendant incurred actual prejudice as a result of the delay’ and the ‘prosecutor intentionally
    delayed indicting the defendant to gain a tactical advantage.’” 
    Anderson, 48 Va. App. at 712
    ,
    
    -7- 634 S.E.2d at 376
    (quoting 
    Morrisette, 264 Va. at 393
    , 369 S.E.2d at 52). “The defendant bears
    the burden of proving both actual prejudice and improper purpose.” 
    Morrisette, 264 Va. at 393
    ,
    369 S.E.2d at 52.
    Appellant has not shown that he was meaningfully impaired in his ability to defend
    against the charges to such an extent that he was denied a fair trial. On appeal, appellant
    advances numerous assertions of prejudice. Appellant contends that he was prejudiced by the
    preindictment delay because during that time society’s view of child pornography offenders
    hardened, this Court issued an opinion that strengthened the Commonwealth’s hand in plea
    negotiations, the Commonwealth gained access to Dr. Gravers’ sexually violent predator
    evaluation, and L.M. “had grown up, gone to counseling, and become a better witness for” the
    Commonwealth. However, to constitute a showing of actual prejudice, appellant must prove
    actual and concrete prejudice as a result of the delay, not merely speculative prejudice. See
    generally United States v. Madden, 
    682 F.3d 920
    , 929 (10th Cir. 2012) (“‘To constitute a
    showing of actual prejudice . . . the defendant must show that he has suffered definite and not
    speculative prejudice.’” (quoting United States v. Colonna, 
    360 F.3d 1169
    , 1177 (10th Cir.
    2004))). Accord United States v. Gregory, 
    322 F.3d 1157
    , 1165 (9th Cir. 2003); United States v.
    Crouch, 
    84 F.3d 1497
    , 1523 (5th Cir. 1996); Acha v. United States, 
    910 F.2d 28
    , 32 (1st Cir.
    1990); United States v. Antonino, 
    830 F.2d 798
    , 805 (7th Cir. 1987).
    Appellant’s allegations fail to show actual prejudice to his right to a fair trial.
    Appellant’s claim that society’s view of child pornography offenders has hardened over the years
    and this “increased intolerance for such offenders would have been reflected in a jury pool, had
    this case gone to a jury trial,” is entirely speculative. Appellant’s Br. at 13. Appellant waived
    his right to a jury trial, he has not asserted that he would have chosen a jury trial but for the
    delay, and he has not asserted that society’s “increased intolerance” actually prejudiced his bench
    -8-
    trial. Moreover, even if appellant had chosen a jury trial, his claim would still fall short of
    demonstrating actual prejudice. Implicit in appellant’s argument that society’s hardening view
    “would have been reflected in a jury pool,” is the speculative premise that this “increased
    intolerance” would have biased the jury against him. But such an unsubstantiated claim of bias
    falls short of demonstrating actual, concrete prejudice.
    Similarly, appellant has not shown how the Commonwealth’s “strengthen[ed] . . . hand in
    plea negotiations” prejudiced him at trial. Appellant was not entitled to an even hand in plea
    negotiations with the Commonwealth, and the Commonwealth was not required to entrench its
    position based on the status quo at the time of appellant’s offenses. Like all agreements, plea
    negotiations are fluid until finalized. See generally Lampkin v. Commonwealth, 
    44 Va. App. 709
    , 723, 
    607 S.E.2d 722
    , 729 (2005) (“Absent judicial approval, a proposed plea agreement
    cannot be binding on the Commonwealth because the defendant has suffered no harm.”).
    Likewise, appellant’s conclusory allegation that L.M. matured as a witness during the
    preindictment delay does not demonstrate prejudice to appellant’s defense at trial. Despite his
    claim that L.M. “had become a better witness” for the Commonwealth, appellant has not
    demonstrated any effect this had on his ability to defend against the charges at trial. As appellant
    conceded below, he did not lose any evidence or witnesses as a result of the delay. Appellant
    also stated on brief that “there was no significant additional investigation into this case” during
    the delay. (emphasis in original). At trial, the case remained as before, including L.M.’s
    testimony.
    Finally, appellant has not demonstrated that the Commonwealth’s access to the sexually
    violent predator evaluation prepared for the civil adjudication prejudiced his right to a fair trial,
    as the Commonwealth’s Attorney conceded during the hearing on appellant’s motion to dismiss
    that the report was not relevant to the charges against appellant. Even more significant, the
    -9-
    evaluation was not introduced during appellant’s trial. Put simply, appellant has not
    demonstrated any real, concrete prejudice the preindictment delay caused to his ability to defend
    against the charged offenses.
    Because appellant failed to meet his burden of proving that he suffered actual prejudice
    as a result of the preindictment delay, we need not consider at length appellant’s claim that the
    Commonwealth intentionally delayed indicting him in order to gain a tactical advantage at trial.
    We find it sufficient to note that the trial court concluded that the Commonwealth delayed
    indicting appellant out of “consideration for the victim” and not in order to gain a tactical
    advantage over appellant. The trial court’s determination on the question of intent is a finding of
    fact to which we accord great deference and reverse only if clearly erroneous. See Evans v.
    Commonwealth, 
    228 Va. 468
    , 479, 
    323 S.E.2d 114
    , 120 (1984) (finding that the record
    supported the trial court’s finding that “the evidence fail[ed] to prove . . . that the
    Commonwealth purposefully and wrongfully delayed resolution of the defendant’s petition for a
    writ of habeas corpus in order to achieve a tactical advantage”).
    Upon our review of the record, we find that the trial court’s decision is not without
    support in the evidence. During the hearing on appellant’s motion to dismiss, the
    Commonwealth’s Attorney explained that he delayed indicting appellant prior to November
    2012 because “[t]he cost of putting [L.M.] through trial was too great compared to any [possible]
    benefit.” Moreover, the Commonwealth’s Attorney stated that he charged appellant only after
    speaking to the victim, who expressed her willingness to testify in order to prevent appellant
    from doing “to anybody else” what he had done to her. Accordingly, we find that appellant has
    not demonstrated that the Commonwealth intentionally delayed indicting him in order to gain a
    tactical advantage at trial.
    - 10 -
    Because appellant has not shown that the preindictment delay caused him actual
    prejudice at trial and that the Commonwealth intentionally delayed indicting him in order to gain
    a tactical advantage, his due process challenge must fail.
    B. Double Jeopardy
    Appellant next contends that the trial court erred when it denied appellant’s motion to
    strike ten of the indecent liberties charges on the grounds that they are incidental to the
    manufacture of child pornography charges and a conviction for both violates double jeopardy
    principles.
    “The constitutional provision concerning double jeopardy embodies three guarantees:
    ‘(1) It protects against a second prosecution for the same offense after acquittal. [(2)] It protects
    against a second prosecution for the same offense after conviction. [(3)] And it protects against
    multiple punishments for the same offense.’” Blythe v. Commonwealth, 
    222 Va. 722
    , 725, 
    284 S.E.2d 796
    , 797 (1981) (quoting Illinois v. Vitale, 
    447 U.S. 410
    , 415 (1980)). “Two offenses
    will be considered the same when (1) the two offenses are identical, (2) the former offense is
    lesser included in the subsequent offense, or (3) the subsequent offense is lesser included in the
    former offense.” Commonwealth v. Hudgins, 
    269 Va. 602
    , 605, 
    611 S.E.2d 362
    , 364 (2005).
    The Double Jeopardy Clause “does not apply where the same conduct is used to support
    convictions for separate and distinct crimes.” Brown v. Commonwealth, 
    37 Va. App. 507
    , 517,
    
    559 S.E.2d 415
    , 420 (2002). “It is well settled that two or more distinct and separate offenses
    may grow out of a single incident or occurrence, warranting the prosecution and punishment of
    an offender for each.” Jones v. Commonwealth, 
    208 Va. 370
    , 375, 
    157 S.E.2d 907
    , 910 (1967).
    “When ‘the same act or transaction constitutes a violation of two distinct statutory
    provisions, the test to be applied to determine whether there are two offenses or only one is
    whether each [offense charged] requires proof of an additional fact which the other does not.’”
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    Coleman v. Commonwealth, 
    261 Va. 196
    , 200, 
    539 S.E.2d 732
    , 734 (2001) (quoting
    Blockburger v. United States, 
    284 U.S. 299
    , 304 (1932)). In applying this test, we “look at the
    offenses charged in the abstract, without referring to the particular facts of the case under
    review.” 
    Id. “This standard
    requires that we view the elements of the offenses generally and
    conceptually, rather than the elements of the offenses as charged in a specific instance.” Johnson
    v. Commonwealth, 
    58 Va. App. 303
    , 323, 
    709 S.E.2d 175
    , 185 (2011). “Thus, ‘[a] double
    jeopardy violation exists only if the offenses always require proof of the same elements.’” 
    Id. (quoting Davis
    v. Commonwealth, 
    57 Va. App. 446
    , 456, 
    703 S.E.2d 259
    , 263 (2011) (emphasis
    added)).
    As in effect at the time of appellant’s offenses, 2 Code § 18.2-374.1 stated, in relevant
    part:
    B. A person shall be guilty of a Class 5 felony who:
    1. Accosts, entices or solicits a person less than eighteen years of
    age with intent to induce or force such person to perform in or be a
    subject of sexually explicit visual material; or
    2. Produces or makes or attempts or prepares to produce or make
    sexually explicit visual material which utilizes or has as a subject a
    person less than eighteen years of age; or
    3. Who knowingly takes part in or participates in the filming,
    photographing or other reproduction of sexually explicit visual
    material . . . which utilizes or has as a subject a person less than
    eighteen years of age.
    Sexually explicit visual material is defined “as a picture, photograph, sculpture, motion
    picture film, digital image, . . . or similar visual representation which depicts a lewd exhibition of
    2
    Code § 18.2-374.1(B)(1) has since been amended to refer to “child pornography” rather
    than “sexually explicit visual material.” However, the offense is essentially the same, as the
    current statute defines child pornography as meaning sexually explicit visual material. Code
    § 18.2-374.1(A).
    - 12 -
    nudity, . . . or sexual excitement, sexual conduct or sadomasochistic abuse.” Code
    § 18.2-374.1(A).
    Code 18.2-370(A), on the other hand, penalizes any person over the age of eighteen who,
    with lascivious intent:
    (1) Expose[s] his or her sexual or genital parts to any child to
    whom such person is not legally married or propose[s] that any
    such child expose his or her sexual or genital parts to such person;
    or . . . (3) Propose[s] that any such child feel or fondle his own
    sexual or genital parts of the sexual or genital parts of such person
    or propose that such person feel or fondle the sexual or genital
    parts of any such child; or (4) Propose[s] to such child the
    performance of an act of sexual intercourse . . . or (5) Entice[s],
    allure[s], persuade[s], or invite[s] any such child to enter any
    vehicle, room, house, or other place, for any of the purposes set
    forth in the preceding subdivisions . . . .
    Code § 18.2-370(B) states, in relevant part, that any person over the age of eighteen who, “with
    lascivious intent, knowingly and intentionally . . . encourages [a person under the age of 18
    years] to perform in or be a subject of sexually explicit material is guilty of a Class 5 felony.”
    Analytically, the charged offenses do not require proof of the same elements in all
    circumstances. Appellant conceded this point at trial. When asked by the trial court whether
    “every production of child pornography [includes] . . . an indecent liberty,” appellant answered,
    “[n]ot in every one.” We agree. At the time of his offenses, Code § 18.2-374.1(B)(1) required
    proof that an adult enticed or solicited a minor “to perform in or be a subject of sexually explicit
    visual material,” which is not a required element of the offense of indecent liberties. (Emphasis
    added). While Code § 18.2-370(B) proscribes a person over the age of eighteen from
    encouraging a minor “to perform in or be subject of sexually explicit material,” the prosecution
    is not required to prove such an offense in order to obtain a conviction under Code § 18.2-370.
    Because Code § 18.2-370 includes several disjunctive elements, the Commonwealth can obtain a
    conviction of indecent liberties, even in the absence of evidence that appellant encouraged the
    - 13 -
    victim to perform in or be the subject of sexually explicit visual material. See Dezfuli v.
    Commonwealth, 
    58 Va. App. 1
    , 11, 
    707 S.E.2d 1
    , 6 (2011).
    Similarly, while sexually explicit visual material includes visual representations that
    depict “a lewd exhibition of nudity,” Code § 18.2-374.1(B) was also written in the disjunctive
    and did not require as an element of proof that the perpetrator exposed his or her genital or
    sexual parts to the victim or proposed that the victim expose his or her sexual or genital parts to
    such person, which is an element of indecent liberties. See Code § 18.2-374.1(A) (defining
    sexually explicit visual material to include visual representations of sexual conduct or
    sadomasochistic abuse); see also Code § 18.2-390 (defining sexual conduct to include “an act of
    apparent sexual stimulation . . . with a person’s clothed or unclothed genitals,” and
    sadomasochistic abuse as “actual or explicitly simulated flagellation or torture by or upon a
    person who is nude or clad in undergarments, a mask or bizarre costume . . .” (emphasis
    added)). In addition, Code § 18.2-370 requires that appellant acted with “lascivious intent,”
    whereas then-Code § 18.2-374.1 contained no equivalent element.
    Because each charged offense required proof of an additional fact that the other did not,
    the trial court did not err when it denied appellant’s motion to strike the ten indecent liberties
    charges.
    C. Indecent Liberties Convictions
    Appellant next contends that the trial court erred in denying his motion to strike ten
    counts of indecent liberties down to one count because the unit of prosecution for indecent
    liberties is a common act, scheme, or transaction and not each proposal that a minor expose their
    private parts. Because “the ten photographs of the victim were taken over the course of one
    evening into early the next morning,” appellant contends “there was clearly only one transaction
    or scheme . . . and that is the unit of prosecution for this offense.” Appellant’s Br. at 20.
    - 14 -
    “In a simultaneous prosecution, the role of the Double Jeopardy Clause is ‘limited to
    assuring that the court does not exceed its legislative authorization by imposing multiple
    punishments for the same offense.’” De’Armond v. Commonwealth, 
    51 Va. App. 26
    , 32, 
    654 S.E.2d 317
    , 320 (2007) (quoting Stephens v. Commonwealth, 
    263 Va. 58
    , 62, 
    557 S.E.2d 227
    ,
    230 (2002)). However, “conduct may constitute more than one violation of a single criminal
    proscription.” Jordan v. Commonwealth, 
    2 Va. App. 590
    , 593, 
    347 S.E.2d 152
    , 154 (1986).
    “Where the legislature has authorized cumulative punishments, regardless of whether the
    offenses are the ‘same,’ the prosecutor may seek and the trial court may impose cumulative
    punishments in a single trial.” 
    Id. at 594,
    347 S.E.2d at 154. “The multiple punishments
    prohibition, therefore, remains from start to finish wholly dependent on statutory interpretation.”
    
    De’Armond, 51 Va. App. at 33
    , 654 S.E.2d at 320 (citing John L. Costello, Virginia Criminal
    Law & Procedure § 51.3-4, at 688-90 (3d ed. 2002)).
    The trial court convicted appellant of ten violations of Code § 18.2-370. Code
    § 18.2-370(A)(1) states that “[a]ny person 18 years of age or over, who, with lascivious intent,
    knowingly and intentionally . . . propose[s] that any . . . child expose his or her sexual or genital
    parts to such person” is guilty of a Class 5 felony. Under the plain language of the statute, “[t]he
    simple act of proposing or inviting constitutes the completed crime if the offender is over the age
    of 18, the act is done with lascivious intent and the victim is under the age of 14.” Hix v.
    Commonwealth, 
    270 Va. 335
    , 347, 
    619 S.E.2d 80
    , 87 (2005) (emphasis added) (noting that the
    victim need not “agree to perform any of the acts”). In other words, the gravamen of the offense
    is the proposal or encouragement to a child, under the age of fourteen, to expose his or her
    sexual parts. See Baker v. Commonwealth, 
    284 Va. 572
    , 576, 
    733 S.E.2d 642
    , 644-45 (2012)
    (noting that when determining “when one offense ends and the next begins,” courts should
    determine “the gravamen of the offense” for which the defendant was convicted). Consistent
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    with this plain reading of Code § 18.2-370(A)(1), we find that each distinguishable incident in
    which an adult articulates such a proposal constitutes a violation of Code § 18.2-370(A)(1).
    Code § 18.2-370(C) adds support to this conclusion. That code section states, in relevant
    part, that “[a]ny person who is convicted of a second or subsequent violation of this section is
    guilty of a Class 4 felony, provided that . . . the offenses were not part of a common act,
    transaction or scheme . . . .” Contrary to appellant’s assertions, Code § 18.2-370(C) by its
    express terms applies only to enhanced punishments for “second or subsequent violation[s].”
    And by permitting enhanced punishment for “second or subsequent violation[s]” provided the
    violations “were not a part of a common act, transaction or scheme,” Code § 18.2-370(C)
    underscores the General Assembly’s expressed intent in Code § 18.2-370(A)(1) that
    distinguishable proposals are subject to multiple first violation charges, regardless of whether the
    proposals occurred during a common transaction or scheme.
    We therefore reject appellant’s contention that the trial court erred by denying his motion
    to strike ten counts of indecent liberties down to one count because the offenses occurred during
    a common transaction or scheme.
    D. Manufacturing Child Pornography Convictions
    Finally, appellant contends that “[t]he trial court erred when it denied [his] motion to
    strike [ten] counts of manufacturing child pornography down to [one] count on the grounds that
    the unit of prosecution for manufacturing child pornography is a common scheme or transaction,
    and there was only one such scheme or transaction in this case. Mason v. Commonwealth, 
    49 Va. App. 39
    (2006), should be overruled because it leads to an absurd result.”
    “‘When considering multiple punishments for a single transaction, the controlling factor
    is legislative intent.’” 
    Mason, 49 Va. App. at 46
    , 636 S.E.2d at 483 (quoting Kelsoe v.
    Commonwealth, 
    226 Va. 197
    , 199, 
    308 S.E.2d 104
    , 104 (1983)). “Where the legislature has
    - 16 -
    authorized cumulative punishments, regardless of whether the offenses are the ‘same,’ the
    prosecutor may seek and the trial court may impose cumulative punishments in a single trial.”
    Jordan, 2 Va. App. at 
    594, 347 S.E.2d at 154
    .
    In this case, the trial court convicted appellant of ten violations of Code § 18.2-374.1(B).
    Code § 18.2-374.1(B) proscribes the production or attempted production of child pornography,
    which Code § 18.2-374.1(A) defines as “a picture, photograph, drawing, sculpture, motion
    picture film, digital image . . . or similar visual representation” depicting lewd conduct or sexual
    activity. (Emphasis added). As we explained in Mason, “[b]y using the word ‘a’ followed by a
    succession of singular nouns in the definition of [child pornography] in Code § 18.2-374.1(A),
    the Virginia legislature has demonstrated its clear intent that [production] of a single photograph
    could constitute an offense under Code § 18.2-374.1 and that multiple punishments would result
    from multiple violations of the 
    statute.” 49 Va. App. at 48
    , 636 S.E.2d at 484; see Papol v.
    Commonwealth, 
    63 Va. App. 150
    , 153, 
    754 S.E.2d 918
    , 920 (2014) (stating that “[t]his analysis
    tracks the underlying purpose of the statute to protect children from pornographers, pedophiles,
    and others who seek to take advantage of their vulnerabilities”). Therefore, we conclude that the
    number of separate offenses of manufacturing or producing child pornography “corresponds to
    the number of individual items of [child pornography].” 
    Id. Acknowledging this
    Court’s prior holding that the number of offenses under Code
    § 18.2-374.1(B) corresponds to “the number of pictures or videos,” appellant contends on brief
    that “Mason v. Commonwealth should be overruled because it leads to an absurd result.”
    Appellant’s Br. at 21-22. The interpanel accord doctrine precludes our reconsideration of
    Mason. Under that doctrine, a decision from a panel of this Court “cannot be overruled except
    by the Court of Appeals sitting en banc or by the Virginia Supreme Court.” Clinchfield Coal Co.
    v. Reed, 
    40 Va. App. 69
    , 73, 
    577 S.E.2d 538
    , 540 (2003).
    - 17 -
    For the foregoing reasons, we conclude that the trial court did not err by denying
    appellant’s motion to strike.
    CONCLUSION
    For the reasons stated above, we find that the trial court did not err in denying appellant’s
    motion to dismiss the indictments and did not err in denying appellant’s motions to strike the
    charges of indecent liberties or manufacturing child pornography.
    Affirmed.
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