Robert Joseph Slavek v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: October 9, 2001
• Docket: 2452001
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Frank and Humphreys Argued at Chesapeake, Virginia

ROBERT JOSEPH SLAVEK MEMORANDUM OPINION * BY v. Record No. 2452-00-1 JUDGE RICHARD S. BRAY OCTOBER 9, 2001 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Everett A. Martin, Jr., Judge

Joseph A. Migliozzi (Hooker & Migliozzi, P.C., on brief), for appellant.

Virginia B. Theisen, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Pursuant to the terms of a plea agreement, Robert Joseph

Slavek (defendant) pled guilty to twelve indictments, eight

charging possession of child pornography, second or subsequent

offense, and four alleging reproduction of like material,

violations of Code §§ 18.2-374.1:1, -374.1, respectively,

expressly reserving the right to appeal "pre-trial motions." On

appeal, defendant contends the trial court erroneously denied his

pretrial motion to quash the indictments, arguing the prosecutions

constituted double jeopardy and, further, that "printing of a

pornographic image from a computer screen" is not the reproduction

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. of such material contemplated by Code § 18.2-374.1. We affirm the

convictions for reproduction of offending photographs but reverse

the convictions for possession of like images.

The parties are conversant with the record, and this

memorandum opinion recites only those facts necessary to

disposition of the appeal.

I.

During the morning hours of August 18, 1999, Norfolk Police

Officer R.A. Miller was conducting surveillance of defendant at

the Kirn Memorial Library, a public facility. As Miller watched,

defendant, using library computer equipment, accessed and printed

four sexually explicit images of children. As a result, he was

arrested immediately upon exiting the library, charged with

"reproducing sexually explicit material of persons under eighteen

years of age," and a "three-ring binder" containing the four

pictures printed at the library was taken from his person.

At police headquarters, defendant waived his Miranda rights

and admitted "using the library computer to access child

pornography web sites for about a year." A subsequent consensual

search of defendant's room at the Norfolk Union Mission yielded

"four plastic grocery bags containing numerous photographs printed

from a computer," (emphasis added), which resulted in an arrest

warrant charging defendant with possession of "sexually explicit

visual material utilizing or having as a subject a person less

- 2 - than eighteen years of age," a misdemeanor proscribed by Code

§ 18.2-374.1:1.

On November 15, 1999, defendant appeared before the Norfolk

General District Court for trial on the misdemeanor and

preliminary hearing on the felony. He entered a plea of guilty to

the misdemeanor offense, and a hearing was conducted on the

felony. In support of both prosecutions, the Commonwealth

introduced into evidence, in bulk, the "four plastic grocery bags"

of photographs discovered in defendant's room. (Emphasis added).

At the conclusion of the district court proceedings, the court

convicted and sentenced defendant on the misdemeanor but dismissed

the felony.

On March 1, 2000, the grand jury indicted defendant on eight

counts of possession of child pornography, second or subsequent

offense, a felony, and four counts of production of sexually

explicit items involving children, the instant offenses. The

eight indictments essentially tracked the language of Code

§ 18.2-374.1:1 without particularizing the alleged conduct. The

four reproduction indictments similarly mirrored one another and

Code § 18.2-374.1, charging that defendant "did knowingly take

part in or participate in the filming, photographing, or other

reproduction of sexually explicit visual material by any means,

including but not limited to computer-based reproduction, which

utilizes or has as a subject a person less than eighteen years of

- 3 - age." All indictments alleged an offense date, "on or about

August 18, 1999."

Prior to trial, defendant moved the court to quash the felony

indictments, contending the misdemeanor conviction in the general

district court for possession of child pornography was based upon

the same photographs and barred further prosecution. He further

maintained that, "[Code § 18.2-374.1] does not govern the mere

possession of sexually explicit material . . . [and] the

indictments against [him] for production of sexually explicit

items [were therefore] invalid." After considering argument, the

court overruled the motion, and defendant entered conditional

guilty pleas to each offense, reserving the right to appeal the

adverse ruling. This appeal followed.

II.

Defendant first challenges the eight convictions for

possession of child pornography as violative of the constitutional

prohibition against double jeopardy. He contends that, because

the evidence presented in the general district court to prove the

misdemeanor offense, possession of child pornography, was the same

that supported the subsequent felony convictions in the trial

court for the identical crime, as a second or subsequent offense,

he was twice tried and convicted for the misconduct. We agree.

The Double Jeopardy Clause of the Fifth Amendment provides

that no person shall "be subject for the same offense to be twice

put in jeopardy of life or limb." U.S. Const. amend. V.

- 4 - Accordingly, an accused may not be subjected to "(1) a second

prosecution for the same offense after acquittal; (2) a second

prosecution for the same offense after conviction; and (3)

multiple punishments for the same offense." Payne v.

Commonwealth, 257 Va. 216, 227, 509 S.E.2d 293, 300 (1999)

(citations omitted).

Here, defendant was convicted in the Norfolk General District

Court on November 15, 1999, on a warrant charging possession of

child pornography "on or about August 18, 1999," in violation of

Code § 18.2-374.1:1, a misdemeanor. In support of the

prosecution, the Commonwealth offered into evidence "four plastic

grocery bags containing numerous photographs printed from a

computer," without distinguishing one among the allegedly illicit

photographs as relevant to the offense then before the court.

Defendant was found guilty and sentenced accordingly. Thereafter,

the grand jury indicted him on eight counts of the same crime, as

a second or subsequent offense, each indictment simply reciting

the conduct proscribed by the statute and referencing the offense

date, "on or about August 18, 1999." At trial, the Commonwealth

offered "twenty pictures related to the possession charges," all

from the "four plastic grocery bags" of photographs introduced in

the earlier misdemeanor prosecution.

Assuming, without deciding, that the Commonwealth correctly

asserts defendant is susceptible to prosecution for each unlawful

photograph possessed on August 18, 1999, only one of which was

- 5 - before the general district court, the record does not identify

the photograph that supported the attendant conviction. Thus, we

must conclude defendant was prosecuted and convicted in the

general district court for the collective possession of all

offending photographs in the "four plastic grocery bags,"

including those same photographs later subject of the eight

indictments in the trial court. Accordingly, defendant was

prosecuted for the same offense after conviction, a violation of

his protection against double jeopardy, and we must reverse the

resulting convictions for possession of the offending material in

violation of Code § 18.2-374.1:1.

III.

Defendant also challenges the four convictions for

reproduction of sexually explicit items involving children as

violative of the constitutional guarantee against double jeopardy,

arguing that (1) possession of such material is a "lesser-included

offense," precluding conviction of both crimes, and (2) he was

charged with multiple counts of the "same production." We

disagree with both contentions.

A.

Assuming, without deciding, that possession of proscribed

images is a lesser-included offense of reproduction of such

images, the instant crimes of possession clearly were not

lesser-included offenses of the reproduction indictments. At the

hearing on the motion to quash, defendant stated:

- 6 - [U]pon execution of the search, Judge, they found . . . what I would stipulate from the lower trial was presented in evidence . . . four plastic grocery bags, full of child pornography.

Now, this evidence was read into the Court in General District Court . . . . Based upon that evidence [defendant] entered a plea of guilty to the misdemeanor . . . and based upon the totality of the evidence and the law the felony charge was dismissed by [the] Judge . . . .

(Emphasis added). Thus, defendant conceded that he was

convicted in the general district court for the possession of

the "four plastic grocery bags, full of child pornography" found

in his room at the Norfolk Union Mission.

However, upon later indictment in the trial court, he was

convicted of reproducing "the four pictures [found] in his

[three-ring] binder [that] he had printed at [the library] just

prior to his arrest," felonious conduct clearly distinct from

possession of "four plastic grocery bags, full of child

pornography." Thus, the earlier possession conviction was not

implicated in the subsequent four reproduction indictments.

B.

Defendant further contends the Commonwealth charged multiple

counts of the "same production," resulting in constitutionally

impermissible punishments for a single criminal act, the

production of sexually explicit items involving children in

violation of Code § 18.2-374.1.

- 7 - "When considering multiple punishments for a single

transaction, the controlling factor is legislative intent."

Kelsoe v. Commonwealth, 226 Va. 197, 199, 308 S.E.2d 104, 104

(1983). The legislature "determine[s] the appropriate 'unit of

prosecution' and set[s] the penalty for separate violations."

Jordan v. Commonwealth, 2 Va. App. 590, 594, 347 S.E.2d 152, 154

(1986). "Therefore, although multiple offenses may be the

'same,' an accused may be subjected to legislatively 'authorized

cumulative punishments.'" Shears v. Commonwealth, 23 Va. App.

394, 401, 477 S.E.2d 309, 312 (1996). "It is judicial

punishment in excess of legislative intent which offends the

double jeopardy clause." Id.

In enacting Code § 18.2-374.1, the General Assembly declared

that

[a] person shall be guilty of a Class 5 felony . . . [w]ho knowingly takes part in the filming, photographing or other reproduction of sexually explicit visual material by any means, including but not limited to computer-generated reproduction, which utilizes or has as a subject a person less than eighteen years of age.

Code § 18.2-374.1(B)(3). Code § 18.2-374.1(A) defines the term

"sexually explicit visual material" as "a picture, photograph,

drawing, sculpture, motion picture film, digital image or similar

visual representation . . . ."

- 8 - In Educational Books, Inc. v. Commonwealth, 228 Va. 392,

323 S.E.2d 84 (1984), 1 the Virginia Supreme Court determined the

unit of prosecution in the obscenity statute, Code § 18.2-374,

was a single item proscribed by the statute, reasoning that

"Code § 18.2-374 prohibits the sale of 'any obscene item.' Code

§ 18.2-373 provides that '[o]bscene items' shall include '[a]ny

obscene . . . magazine.' The gravamen of the offense is the

sale of a single obscene item." Id. at 395, 323 S.E.2d at 86.

The legislature evinced a similar intent in Code § 18.2-374.1,

with each reproduction of an item of sexually explicit visual

material constituting a "unit of prosecution." See, e.g., Kelsoe,

226 Va. at 198-99, 308 S.E.2d at 104 (accused convicted of three

violations for simultaneously brandishing the same firearm at

three persons); Sullivan v. Commonwealth, 16 Va. App. 844, 847,

433 S.E.2d 508, 510-11 (1993) (defendant convicted of two

robberies, and related firearm offenses, from two clerks at the

same video store); Jordan, 2 Va. App. at 597, 347 S.E.2d at 156

(defendant convicted of two robberies, and related firearm

offenses, from employees of a restaurant).

1 In Educational Books, two police investigators purchased magazines from the defendant store. The first investigator purchased a single magazine and three transparent packages, each containing three different magazines. At trial, five of these magazines were introduced into evidence. The second investigator purchased four magazines, all of which were introduced into evidence. Defendant was convicted of nine sales in violation of Code § 18.2-374. See Educational Books, 228 Va. at 394, 323 S.E.2d at 85.

- 9 - Defendant was observed accessing and reproducing by computer

four distinct illicit images, on four separate occasions over a

period of several hours. At trial on such offenses, the

Commonwealth introduced into evidence the "four pictures" and "the

videotape . . . [depicting] . . . defendant printing these at

. . . [the] library." Such evidence sufficiently proved beyond a

reasonable doubt that defendant committed four distinct violations

of Code § 18.2-374.1, each properly subject to prosecution and

punishment.

IV.

Lastly, defendant contends that Code § 18.2-374.1 proscribes

only the "creat[ion]" of "a sexually explicit image of a child,"

not, as the trial court found, the "printing of a pornographic

image from a computer screen." Once again, we disagree.

In pertinent 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: . . .

* * * * * * *

- 10 - 3. Who [sic] knowingly takes part in or participates in the filming, photographing or other reproduction of sexually explicit visual material by any means, including but not limited to computer-generated reproduction, which utilizes or has as a subject a person less than eighteen years of age; . . . .

(Emphasis added).

"When statutory construction is required, we construe a

statute to promote the end for which it was enacted, if such an

interpretation can reasonably be made from the language used."

Woolfolk v. Commonwealth, 18 Va. App. 840, 847, 447 S.E.2d 530,

533 (1994). "The plain, obvious, and rational meaning of a

statute is always preferred to any curious, narrow or strained

construction." Branch v. Commonwealth, 14 Va. App. 836, 839, 419

S.E.2d 422, 424 (1992). "Although penal laws are to be construed

strictly [against the Commonwealth], they 'ought not to be

construed so strictly as to defeat the obvious intent of the

legislature.'" Willis v. Commonwealth, 10 Va. App. 430, 441, 393

S.E.2d 405, 411 (1990) (citation omitted). Moreover, "a statute

should never be construed so that it leads to absurd results."

Branch, 14 Va. App. at 839, 419 S.E.2d at 424.

Code § 18.2-374.1 clearly prohibits the "reproduction . . .

by any means, including but not limited to computer-generated

reproduction." See Code § 18.2-374.1(B)(3). Defined by Webster's

Ninth New Collegiate Dictionary 1001 (1983), "reproduce" is "to

produce again . . . to cause to exist again or anew," and

- 11 - "reproduction" is "the act or process of reproducing," a synonym

of "duplicate," and "copy." Id. Thus, the statute plainly and

unambiguously forbids the conduct in issue.

Accordingly, we reverse and dismiss the eight convictions for

possession of child pornography and affirm the four convictions

for reproduction of sexually explicit material.

Affirmed in part, and reversed and dismissed in part.

- 12 -