Robert Branam, etc. v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
ROBERT BRANAM, S/K/A
ROBERT S. BRANAM
v. Record No. 1033-94-1 MEMORANDUM OPINION *
BY JUDGE JOSEPH E. BAKER
COMMONWEALTH OF VIRGINIA OCTOBER 24, 1995
FROM THE CIRCUIT COURT OF SOUTHAMPTON COUNTY
Westbrook J. Parker, Judge
Inga Anna Francis (Francis and Francis, on brief),
for appellant.
Leah A. Darron, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on brief),
for appellee.
Robert S. Branam (appellant) appeals from his bench trial
convictions by the Circuit Court of Southampton County (trial
court) of four counts of producing sexually explicit visual
material of juveniles in violation of Code § 18.2-374.1.
Although appellant alleges several trial court errors as ground
for reversal of his convictions, we need address only whether the
evidence satisfies the element of a "sexually explicit" showing
of a "lewd exhibition of nudity," required by Code § 18.2-374.1,
pursuant to which appellant was indicted and tried. We hold that
pursuant to previously decided cases, by which we are bound, the
evidence is insufficient to support the verdicts.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
In relevant 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: . . . .
* * * * * * *
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; . . . .
Code § 18.2-390 defines nudity as,
(2) . . . a state of undress so as to
expose the human male or female genitals,
pubic area or buttocks with less than a full
opaque covering, or the showing of the female
breast with less than a fully opaque covering
of any portion thereof below the top of the
nipple, or the depiction of covered or
uncovered male genitals in a discernibly
turgid state.
Under the facts before us, nudity as defined in § 18.2-390
clearly has been proved; however, the question remains whether
the film constituted a "lewd exhibition of nudity."
On July 8, 1993, LM, an employee at appellant's photography
studio, was cleaning appellant's office and saw an old trumpet
case that she had never seen before under appellant's desk. She
opened the case to find a trumpet and eight videotapes. None of
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the tapes had titles. LM played one of the tapes and determined
that it was a pornographic movie. She viewed a second tape which
depicted someone getting undressed in a dressing room. LM
recognized the dressing room to be appellant's studio at a
previous location. LM further recognized some of the girls on
the tape as her friends, as well as herself when she had visited
the studio at age sixteen to have her senior class portrait
taken. The tape depicted her in the studio dressing room
removing her shirt and bra and putting on the drape she wore in
her portrait. The tape depicted her at a stage of undress,
revealing her breasts. The tape was edited so as to pause,
rewind, and replay repeatedly her act of removing her bra and
exposing her breasts.
Detective Wayne Verdaasdonk (Verdaasdonk) testified that the
other seven videotapes that were found with the subject tape were
pornographic. The tape in question, according to Verdaasdonk,
depicted twenty-one different women, including the four victims
named in the indictments. He stated that the tape was an edited
version of a master tape and that while the tape continued to
run, there were portions where the tape stillframed certain
scenes and where there were replays of the same physical act.
The tape was fast forwarded through the segment depicting the
adult women and was played during the segments showing the other
three teenage victims. Verdaasdonk testified that with respect
to each victim, the tape stillframed and continuously replayed
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the same scenes.
The trial judge did not view the seven other tapes
introduced into evidence.
In Foster v. Commonwealth, 6 Va. App. 313, 369 S.E.2d 688(1990), a panel of this Court held that photographing of exposed
nipples (of a female), while within the liberal definition of
nudity under Code § 18.2-390, is not, without more, the lewd
exhibition of nudity required under Code § 18.2-374.1. The
Foster Court noted with approval the meaning of the terms "lewd,
lascivious and indecent" as stated in Dickerson v. City of
Richmond, 2 Va. App. 473, 346 S.E.2d 333 (1986):
"These words have meanings that are generally
understood. We have defined 'lascivious' to
mean 'a state of mind that is eager for
sexual indulgence, desirous of inciting to
lust or of inciting sexual desire and
appetite.' 'Lewd' is a synonym of
'lascivious' and 'indecent.'" Webster's
Third New International Dictionary 1301
(1969).
Foster, at 329, 369 S.E.2d at 697-98. Relying on Foster and
Dickerson, a panel of this Court, in Frantz v. Commonwealth, 9
Va. App. 348, 388 S.E.2d 273 (1990) (Baker, J., dissenting), held
that where teenage boys were photographed in complete nude
condition, "there is nothing in the record before us to suggest
that the nude photographs taken by Frantz were lewd within the
meaning of the statute." Id. at 353, 388 S.E.2d at 276.
For the foregoing stated reasons, we are bound by the
authorities cited. Accordingly, the judgments of the trial court
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are reversed and dismissed.
Reversed and dismissed.
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