Hugo Alberto Sandoval v. Commonwealth of Virginia

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
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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
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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,
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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
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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
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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.
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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).
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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
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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.
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“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
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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).
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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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