John Michael Sharpe v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: March 10, 2026
• Docket: 0506253
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges O’Brien, AtLee and Senior Judge Petty UNPUBLISHED

Argued by videoconference

JOHN MICHAEL SHARPE MEMORANDUM OPINION* BY v. Record No. 0506-25-3 JUDGE RICHARD Y. ATLEE, JR. MARCH 10, 2026 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF TAZEWELL COUNTY Richard C. Patterson, Judge

John S. Koehler (David L. Scyphers; R. Wayne Austin; The Law Office of James Steele, PLLC; Scyphers & Austin, P.C., on briefs), for appellant.

Sheri H. Kelly, Assistant Attorney General (Jason S. Miyares,1 Attorney General, on brief), for appellee.

Following a jury trial, the trial court convicted John Michael Sharpe of 20 counts of

soliciting child pornography from a minor when the minor was at least 15 and the defendant was

at least 7 years older than the minor, in violation of Code § 18.2-374.1.2 Sharpe raises three

issues on appeal. First, he argues that the trial court erred in determining that “each individual

image deemed to be illicit constituted an offense for the purposes of determining the unit of

prosecution . . . where the evidence showed that the act of soliciting the images was a single

continuing act.” Second, he argues that the trial court improperly admitted evidence of prior bad

acts where the evidence was more prejudicial than probative. Finally, Sharpe argues that the

* This opinion is not designated for publication. See Code § 17.1-413(A). 1 Jay C. Jones succeeded Jason S. Miyares as Attorney General on January 17, 2026. 2 Sharpe was charged with 1 count for a first offense and 19 counts for a second or subsequent offense. court should have granted a mistrial due to juror misconduct. For the following reasons, we

disagree and affirm the trial court.

I. BACKGROUND

“On appeal, we review the evidence in the ‘light most favorable’ to the Commonwealth,”

the prevailing party below. Clanton v. Commonwealth, 53 Va. App. 561, 564 (2009) (en banc)

(quoting Commonwealth v. Hudson, 265 Va. 505, 514 (2003)).

A. The Offenses

A.H. met Sharpe when she was in the eighth grade, and Sharpe was her choir teacher. In

May 2021, when A.H. was 17 years old and finishing her junior year of high school, Sharpe, who

was then 29 years old, approached A.H. and asked her to join the girls’ tennis team. After A.H.

started playing tennis, they exchanged phone numbers to “talk about tennis.” Eventually they

were “texting every day,” until 2:00 or 3:00 a.m. Sharpe told her that he would get her a

scholarship to play tennis at college. They also started playing tennis together outside of school,

playing several days a week, often until the courts closed at 11:00 p.m. Sometimes, Sharpe

would buy her gifts.

On May 23, 2021, when Sharpe and A.H. were texting, Sharpe mentioned bedroom

cameras. A.H. made a joke about “people watching [her] on the cameras for money.” Sharpe

then told her about his friend that makes “crazy money” doing OnlyFans, which is “a website

that you record yourself on and people can subscribe to it and pay money.” They discussed the

pros and cons of OnlyFans, before Sharpe made a joke about her “cam girl” character. He also

told her that her “crop top” is where her power at tennis was coming from, as he had previously

told her he thought her crop top was hot.

-2- At some point, Sharpe added A.H. to Snapchat,3 and their conversations continued

through both text and Snapchat. Among other things, A.H. discussed her boyfriend and his

request for nude photos, while Sharpe complained about how his girlfriend did not want to have

sex. In one conversation, A.H. told Sharpe she was in the shower, and he responded with “Don’t

tempt me, Satan.”

Things developed further on June 15, 2021. On that day, A.H., who had been at the pool,

saw Sharpe at the nearby tennis courts and walked over to see him. A.H. was wearing her

bathing suit, which had a green bikini top. She noticed that Sharpe was staring at her chest.

When messaging on Snapchat later, Sharpe told A.H. that he had not realized that her body was

“like that.” He asked her for a picture of her in the green bikini, and she sent him the photo at

12:52 a.m. on June 16. Sharpe then asked her to take her top off, “grab her boob,” and send a

photo, which she did at 1:36 a.m. Later that day, at 11:36 p.m., he asked if she “had any other

bras that [she] could try on,” and she sent photos of herself in different color bras.

From that first day in June through November, Sharpe continued to ask A.H. for

photographs. Sometimes he asked for photos generally, which A.H. testified that she

“understood what he meant by that.” At other times, he would make specific requests. His

requests ranged from photos of specific body parts, such as her chest or butt, to specific poses,

such as her with a vibrator in her mouth or “squeez[ing] [her] boobs together.” A.H. testified

that she could see that Sharpe had opened all the photos that she had sent to him, and after he

received them, he would give her compliments.

Eventually, A.H. met her “current boyfriend,” and her Snapchat communications with

Sharpe slowed down. On November 6, 2021, A.H. showed her friend the messages between her

3 Snapchat is a social media application. It allows users to communicate through text or video, and it allows users to send pictures. Photos sent through the app automatically delete unless specifically saved. -3- and Sharpe, and her friend encouraged her to discuss it with her therapist. On that same day,

A.H. told Sharpe that she was “done with sending him pictures” and that she was “going to tell.”

Later, in December 2021, A.H. informed her therapist that she was “getting groomed” and

sending photos to someone, but she did not identify Sharpe. Her therapist, as a mandated

reporter, notified the Department of Social Services, which then contacted law enforcement.

The investigation ultimately led police to Sharpe. In March 2022, a grand jury indicted

Sharpe on multiple offenses, including one count of enticing a minor to perform in pornography,

first offense, in violation of Code § 18.2-374.1(B), and 26 counts of enticing a minor to perform

in pornography, second or subsequent offense, in violation of Code § 18.2-374.1(B).4

B. Issues at Trial

i. A.Y.’s testimony

At trial, the Commonwealth sought to present testimony from A.Y., who was also a

minor female student of Sharpe’s. Sharpe objected, arguing that A.Y.’s testimony was evidence

of prior bad acts and therefore inadmissible. The Commonwealth argued that A.Y.’s testimony

was admissible under exceptions to the rule prohibiting evidence of prior bad acts. It asserted

that the testimony was admissible to show common scheme, Sharpe’s identity as perpetrator, and

to negate good faith. The court concluded that A.Y’s proposed testimony fell within the

exceptions argued by the Commonwealth. It also found that the probative value outweighed any

prejudicial effect. Thus, the court permitted A.Y.’s testimony.

A.Y. testified about her relationship with Sharpe. Like A.H., Sharpe started

communicating with A.Y. between her junior and senior years of high school. He first

communicated with her in his role as a band camp instructor, but his communications quickly

4 The trial court struck seven of the Code § 18.2-374.1(B) charges on Sharpe’s motion to strike following the Commonwealth’s case-in-chief. -4- moved into “inappropriate” topics. A.Y. testified that she and Sharpe communicated over

Snapchat, and he soon started asking her to send him pictures of herself in her “favorite bra and

favorite underwear,” requesting different hairstyles, make-up, and poses. He also discussed the

possibility of helping her obtain music scholarships. A.Y. testified that Sharpe discussed her

boyfriend with her, and he told her the relationship would not last after high school. Sharpe also

told A.Y. that they would go to Florida and get married after she turned 18.

Over Sharpe’s objection, the trial court instructed the jury that it could consider this

evidence of prior bad acts only for limited purposes, including showing a common scheme or

plan, evidence of identity, negating good faith, and “for no other purpose.”

ii. Juror Misconduct

After the Commonwealth rested its case, the court took a recess. During that time, a

deputy took several members of the jury out to smoke. The jurors had been instructed at the

beginning of trial that they were “not [to] discuss the case with anyone, including each other . . .

or remain within hearing of anyone who is discussing the case during a break or recess.” They

were also instructed not to decide any issues until the case was submitted to the jury. Despite

those instructions, juror K.N. told three other jurors during the smoke break that “he f[elt] the

Commonwealth [wa]s correct, that they [we]re right.” The deputy reported the incident to the

trial court, and the court put the deputy on the witness stand and questioned him under oath. The

deputy testified that after juror K.N. made that statement, there were no other discussions. The

other three jurors did not acknowledge the statement. They simply “continued to discuss their

daily activities like smoking cigarettes and the kids and that was pretty much it.”

Sharpe moved for a mistrial. He argued that the remark made in the presence of other

jurors “taints the jury, the other three.” He asserted that the issue could not be remedied and that

the court had no other recourse but to declare a mistrial. The trial court denied the motion,

-5- finding that the issue was with one juror, and it was not “deliberations amongst jurors.” The

court removed juror K.N. and replaced him with an alternate. It also brought the rest of the jury

in, informed them of the issue without repeating K.N.’s statement, and admonished them not to

discuss the matter until instructed to begin deliberations.

iii. Motion to Set Aside

Ultimately, the jury found Sharpe guilty of the first offense charge and the remaining 19

second or subsequent offenses charges under Code § 18.2-374.1(B). Sharpe filed a motion to set

aside the verdict. Among other things, he argued for the first time that any violation of Code

§ 18.2-374.1(B)(1) was a “single continuing offense,” which he contends began when he “first

enticed [A.H.] to produce a pornographic image and ended only when their communication

ceased.” Alternatively, he argued that there were, at most, 5 distinct offenses rather than the 20

distinct offenses charged by the Commonwealth. He asked the court to determine the correct

“unit of prosecution” under Code § 18.2-374.1(B)(1). The court denied the motion to set aside

the verdict. It found that under the statute, “the enticement is the issue, not the receipt of how

many photos someone may receive.” A.H. had testified that Sharpe had asked for the photos on

each occasion, and the court was satisfied that each charge that went to the jury involved a

separate enticement. Sharpe now appeals.

II. ANALYSIS

A. Sharpe’s double jeopardy argument on the unit of prosecution was not properly preserved.

Sharpe first asserts that the trial court erred in denying his motion to set aside the verdict.

He argues that the court incorrectly determined the “unit of prosecution” under Code

-6- § 18.2-374.1, which he contends resulted in multiple punishments for the same offense in

violation of constitutional double jeopardy protections.5

But Sharpe failed to preserve his double jeopardy argument for appellate review. A

defense motion seeking dismissal of a charge based on a double jeopardy violation is required to

be “raised in writing, before trial.” Code § 19.2-266.2(A)(ii)(b), (B); see also Rule 3A:9(c)

(requiring a motion raising double jeopardy to be made before trial). The plain language of this

statute “requires without exception that defense motions or objections seeking dismissal of an

indictment on the ground that the defendant would be twice placed in jeopardy . . . be raised in

writing before trial.” Williams v. Commonwealth, 57 Va. App. 750, 768 n.4 (2011). Sharpe did

not make a pretrial motion to dismiss based on double jeopardy grounds.

On brief to this Court, Sharpe contends that the provisions of Code § 19.2-266.2 do not

apply “where, as here, the circuit court permits the motion to be raised at a later time, receives

argument, and rules definitively on the substance of the motion.” While Code § 19.2-266.2(B)

does contain an exception to the pretrial requirement, it does so only “for good cause shown and

in the interest of justice.” Sharpe did not argue below that good cause existed or that it was in

the interests of justice. See Williams, 57 Va. App. at 768 (noting that the appellant did not argue

that the good cause exception in Code § 19.2-266.2(B) should be invoked). He provides no

explanation whatsoever for his failure to raise the issue before trial. See Upchurch v.

Commonwealth, 31 Va. App. 48, 52 (1999) (noting that a failure to exercise due diligence to

discover a basis for a Code § 19.2-266.2 motion does not constitute good cause to excuse a

defendant from the pretrial filing requirements). Nor does the record show a reason for this

5 During oral argument, Sharpe suggested that his argument was a statutory argument rather than a double jeopardy argument. But his briefing to this Court frames the issue as a double jeopardy issue, and we treat it as such. -7- failure. Because Sharpe did not comply with the statute’s requirements to file a pretrial motion

to dismiss on double jeopardy grounds, that issue is waived.

B. The prejudicial effect of A.Y.’s testimony did not outweigh its probative value.

Sharpe next argues that the trial court abused its discretion by admitting A.Y.’s

testimony. Specifically, he argues that the prejudicial effect of the evidence outweighs its

probative value.6 We disagree.

“[W]e review a trial court’s decision to admit or exclude evidence using an abuse

of discretion standard and, on appeal, will not disturb a trial court’s decision to admit evidence

absent a finding of abuse of that discretion.” Anderson v. Commonwealth, 69 Va. App. 396,

402-03 (2018) (quoting Carter v. Commonwealth, 293 Va. 537, 543 (2017)). “In evaluating

whether a trial court abused its discretion, . . . ‘we do not substitute our judgment for that of the

trial court. Rather, we consider only whether the record fairly supports the trial court’s action.’”

Carter, 293 Va. at 543 (alteration in original) (quoting Grattan v. Commonwealth, 278 Va. 602,

620 (2009)).

Generally, evidence “‘tend[ing] to show that the accused is guilty of other crimes and

offenses at other times’ is not admissible if ‘offered merely to show [the accused’s] propensity to

commit’ the charged crime.” Harvey v. Commonwealth, 76 Va. App. 436, 475 (2023)

(alterations in original) (quoting Ortiz v. Commonwealth, 276 Va. 705, 714-15 (2008)). But

there are exceptions to the rule. Id. “Even so, such evidence is admissible only if its ‘legitimate

probative value . . . outweigh[s] its incidental prejudice.’” Id. (alterations in original) (quoting

Kenner v. Commonwealth, 299 Va. 414, 427 (2021)); see also Va. R. Evid. 2:404(b).

6 On brief, Sharpe also appears to argue that A.Y.’s testimony was inadmissible prior bad acts evidence. His assignment of error, however, contends only that it was more prejudicial than probative. See Banks v. Commonwealth, 67 Va. App. 273, 289 (2017) (“This Court is limited to reviewing the assignments of error presented by the litigant.”). Thus, we determine only whether the admitted evidence was more prejudicial than probative. -8- On some level, “all ‘evidence tending to prove guilt is prejudicial[,]’ at least from the

point of view of the person standing trial.” Thomas v. Commonwealth, 44 Va. App. 741, 757

(quoting Powell v. Commonwealth, 267 Va. 107, 141 (2004)), adopted upon reh’g en banc, 45

Va. App. 811 (2005). “‘Virginia law . . . intervenes’ in such circumstances ‘only when the

alleged prejudice tends to inflame irrational emotions or leads to illegitimate inferences. And

even then, [the issue is] a matter of degree.’” Harvey, 76 Va. App. at 479 (alterations in original)

(quoting Thomas, 44 Va. App. at 758). “The responsibility for balancing these considerations

rests with the sound discretion of the trial court.” Id.

Reviewing the record here, we cannot say that the trial court abused its discretion in

admitting A.Y.’s testimony. Sharpe’s interactions with A.Y. were nearly identical to his

interactions with A.H., from how he approached each of them to how he slowly progressed to

soliciting them for explicit photographs. Thus, the evidence had legitimate probative value in

that it was relevant to prove Sharpe’s identity and his use of a common scheme. It was also

probative to negate good faith, as Sharpe had claimed that he had never engaged in any

relationship with a student.

Furthermore, the trial court specifically instructed the jury to consider A.Y.’s testimony

only for the permitted purposes, and it expressly instructed the jury it could consider the

testimony “for no other purpose.” This instruction on the proper use of the testimony

“dissipate[ed] its incidental prejudice to” Sharpe. Detzler v. Commonwealth, No. 1779-08-4, slip

op. at 8, 2010 Va. App. LEXIS 132, at *13 (Apr. 6, 2010).7 “[W]e presume that the jury follows

the instructions that are given, and nothing in the record presented here plainly shows

7 “Although not binding precedent, unpublished opinions can be cited and considered for their persuasive value.” Otey v. Commonwealth, 61 Va. App. 346, 350 n.3 (2012) (quoting Rule 5A:1(f)). -9- otherwise.” Gilliam v. Immel, 293 Va. 18, 26 (2017). Accordingly, the trial court did not abuse

its discretion in admitting A.Y.’s testimony.

C. The trial court properly addressed the juror misconduct and did not abuse its discretion by denying the motion for a mistrial.

Sharpe argues that the trial court should have granted his motion for a mistrial based on

juror misconduct. He contends that a juror’s improper statements to three other jurors had a

“prejudicial impact on the integrity of the jury.”

“[W]e review [the] denial of a motion for a mistrial for abuse of discretion.” Bethea v.

Commonwealth, 68 Va. App. 487, 500 (2018) (second alteration in original) (quoting Lawlor v.

Commonwealth, 285 Va. 187, 220 (2013)). “A reviewing court can conclude that ‘an abuse of

discretion has occurred’ only in cases in which ‘reasonable jurists could not differ’ about the

correct result.” Id. at 506-07 (quoting Commonwealth v. Swann, 290 Va. 194, 197 (2015)).

But “the mere fact of juror misconduct does not automatically entitle” the defendant to a

mistrial. Robertson v. Metro. Wash. Airport Auth., 249 Va. 72, 76 (1995). On appeal, we will

not reverse a denial of a motion for mistrial “unless there exists a manifest probability that the

denial of a mistrial was prejudicial.” Bethea, 68 Va. App. at 507 (quoting Humbert v.

Commonwealth, 29 Va. App. 783, 792 (1999)). And the burden of establishing “a probability of

prejudice to the accused” is on the appellant. Id. (emphasis omitted) (quoting Jackson v.

Commonwealth, 267 Va. 178, 199 (2004)).

Sharpe has not met his burden of establishing a probability of prejudice. The bailiff

immediately reported the juror misconduct to the court. The trial court properly investigated the

misconduct. The bailiff testified that one juror made a single improper comment in front of three

other jurors when they stepped outside. The other jurors did not respond or acknowledge the

- 10 - comment, and the other jurors simply changed the subject to “discuss their daily activities.”8

The court immediately excused the juror who made the improper comment. It also brought the

remaining jurors back into the courtroom, notified them of the juror’s removal (without revealing

the comment), and it admonished the jury not to discuss the case, or allow others to do so, until it

was time to deliberate. The court investigated and took appropriate action. Nothing in the

record establishes a probability of prejudice to Sharpe. Accordingly, we find that the trial court

did not abuse its discretion in denying the motion for a mistrial.

III. CONCLUSION

For the foregoing reasons, we affirm the trial court’s decision.

Affirmed.

8 On brief, Sharpe suggests that the trial court should have inquired of the other three jurors whether the improper comment had impacted their view of the case. To the extent that Sharpe challenges the trial court’s procedure, that issue is not preserved, as Sharpe did not make that argument below. See Rule 5A:18 (“No ruling of the trial court . . . will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable this Court to attain the ends of justice.”). Nor did Sharpe ask the trial court to question the other three jurors. - 11 -