COURT OF APPEALS OF VIRGINIA PUBLISHED
Present: Chief Judge Decker, Judge Chaney and Senior Judge Humphreys Argued at Richmond, Virginia
SAMUEL HARRIS, S/K/A SAMUEL HARRIS, JR. OPINION BY v. Record No. 0119-24-2 JUDGE VERNIDA R. CHANEY FEBRUARY 18, 2025 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY M. Duncan Minton, Jr., Judge
Brett P. Blobaum, Senior Appellate Attorney (Virginia Indigent Defense Commission, on briefs), for appellant.
Allison M. Mentch, Assistant Attorney General (Jason. S. Miyares, Attorney General, on brief), for appellee.
In this case of first impression, we address the question of whether Code § 18.2-387.1
permits multiple convictions for a single “actual or explicitly simulated act[] of masturbation.” A
jury convicted Samuel Harris of two counts of obscene sexual display in violation of Code
§ 18.2-387.1. On appeal, Harris argues that the evidence was insufficient to establish two
violations of the statute and the trial court erred by issuing Jury Instruction 5 on a particular
permissible inference. For the following reasons, we conclude that prosecution under Code
§ 18.2-387.1 requires proof of multiple acts to support multiple convictions—and there is only
proof of one such act in this record. However, the trial court did not err by issuing Jury
Instruction 5. Therefore, this Court affirms in part and reverses in part the trial court’s judgment
and remands with instructions to vacate one conviction under Code § 18.2-387.1. BACKGROUND1
I. The Incident
On August 6, 2022, two women were in Rockwood Park at pavilion three setting up for a
gender reveal party. As the women were walking from the parking lot to pavilion three, they
observed a man, Samuel Harris, huddled on the gravel trail. Harris was naked, wearing a blonde
wig, with khaki pants and fishnet stockings around his ankles. As they hurried past Harris, he
turned to face them and was stroking his erect penis “vigorously.” Harris made eye contact with
each woman as they ran back to their vehicle.
When the women got into their vehicle, one of them called 911. Sergeant Warren Ball
with the Chesterfield County Police Department met the women in the parking lot, and as he was
interviewing them, Harris emerged from the woods. They identified Harris as the man they had
seen on the trail earlier. When Sergeant Ball went to speak with Harris, Harris explained that he
was changing his clothes on the trail because the bathroom was occupied. Harris stated that he
was putting on the fishnet undergarments because he liked to wear women’s clothing under his
work uniform. Sergeant Ball recovered the blonde wig which was held in a yellow bag from
inside of Harris’s pants. Sergeant Ball obtained a warrant for Harris’s arrest based on a
misdemeanor committed outside of his presence, and officers later arrested Harris at Walmart,
where he worked. Harris was charged with two counts of obscene sexual display.
II. Pre-Trial Double Jeopardy Motion
On September 25, 2023, Harris filed a pre-trial motion to dismiss duplicative charges as a
violation of double jeopardy. He argued that “[t]he women were together when they saw the
1 “This Court reviews the facts in the light most favorable to the Commonwealth, the prevailing party” below. Commonwealth v. Carter, 79 Va. App. 329, 334 (2023). “We ‘regard as true all credible evidence favorable to the Commonwealth and all inferences that may reasonably be drawn from that evidence.’” Id. (quoting McGowan v. Commonwealth, 72 Va. App. 513, 516 (2020)). -2- alleged incident, and there is no allegation of a second, distinct act of actual or simulated
masturbation.” He further argued that “[s]imply because the alleged incident was viewed by
multiple people, does not mean that a defendant can be criminally charged for each person who
may have borne witness.”
At the hearing on the motion, Harris argued that Code § 18.2-387.1 “covers an action and
it is not victim specific.” Harris elaborated that it was unnecessary that anybody see the
simulated conduct, rather it is the actual act of simulated masturbation. Harris stated that “it was
plainly written in the statute that . . . one, multiple, or even no people can see the act and it would
still be a single misdemeanor violation.” The Commonwealth countered that the language in the
statute simply defined a “public place.” The trial court concluded that the language was not
meant to exclude multiple convictions when numerous people viewed the act and accordingly
denied Harris’s motion.
III. Jury Trial
A jury trial was held on September 28, 2023. During the Commonwealth’s case-in-chief,
the two women and Sergeant Ball testified about the events occurring on August 6, 2022. The
Commonwealth introduced Sergeant Ball’s body camera footage into evidence. At the close of
the Commonwealth’s case-in-chief, Harris made a motion to strike, arguing the Commonwealth
failed to show that he engaged in two acts of masturbation in support of the two charges. The
trial court denied Harris’s motion, noting that it had previously ruled on this argument. Harris
did not put on any evidence and renewed his motion to strike. The trial court denied the motion
again.
After the close of evidence, the Commonwealth provided Jury Instruction 5 to the trial
court, which stated, “[i]t is permissible to infer that every person intends the natural and probable
consequence of his or her acts.” Harris objected to the instruction on the ground that it was
-3- irrelevant. The Commonwealth countered that the instruction was relevant because it permitted
the jury to infer that Harris intended to be seen by others when he masturbated in a public park.
The court overruled the objection and noted that the instruction was very common. The jury
found Harris guilty of both charges, and the trial court sentenced him to 24 months of
incarceration with 22 months suspended.
ANALYSIS
On appeal, Harris first argues that the trial court erred by denying his motion to strike one of
the two obscene sexual display charges under Code § 18.2-387.1, where the evidence was
insufficient to establish more than one act of actual or explicitly simulated acts of masturbation.2
Harris also argues that the trial court erred in instructing the jury that it was permissible to infer that
every person intends the natural and probable consequences of his or her actions. For the reasons
discussed below, we find that the trial court erred in convicting Harris of two counts of obscene
sexual display where the unit of prosecution is for each actual or explicitly simulated act of
masturbation, and the evidence was insufficient to establish he committed two acts of masturbation.
Further, we find that the trial court did not err in issuing Jury Instruction 5.
2 Alternatively, Harris argues that the trial court erred in denying his double jeopardy motions made pursuant to the Fifth Amendment of the U.S. Constitution and Article I, § 8 of the Virginia Constitution, seeking dismissal of one of the two obscene sexual display charges. We decline to reach the question under the double jeopardy clause and resolve this case on the narrower ground that Code § 18.2-387.1 requires proving separate acts of masturbation to convict an individual. “It is a ‘fundamental and longstanding precept that . . . “unnecessary adjudication of a constitutional issue” should be avoided.’” Grady v. Blackwell, 81 Va. App. 58, 67 (2024) (alteration in original) (quoting Commonwealth v. Swann, 290 Va. 194, 196 (2015)). “[I]f a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter.” Id. (alteration in original) (quoting Taylor v. Commonwealth, 78 Va. App. 147, 157 (2023)). “The constitutional-avoidance doctrine is ‘an aspect of the “doctrine of judicial restraint” that “dictates that we decide cases ‘on the best and narrowest grounds.’”’” Id. (quoting McKeithen v. City of Richmond, 302 Va. 422, 435 n.2 (2023)). -4- I. The trial court erred in denying Harris’s motion to strike where the evidence did not prove two separate acts.
Harris argues on appeal that the evidence is insufficient to sustain his convictions because
the trial court erred “in denying the motion to strike one of the two obscene sexual display charges
under Code § 18.2-387.1 where the evidence was insufficient to establish more than one act of
actual or explicitly simulated acts of masturbation.” Harris contends that the unit of prosecution
must be determined by the statutory language establishing the gravamen of the offense, and under
Code § 18.2-387.1, the unit of prosecution is the number of occurrences of actual or explicitly
simulated acts of masturbation. We agree.
“Under well-established principles, an issue of statutory interpretation is a pure question of
law which [this Court] review[s] de novo.” Taylor v. Commonwealth, 298 Va. 336, 341 (2020)
(quoting Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104 (2007)). “When the
language of a statute is unambiguous, [this Court is] bound by its plain meaning.” Id. (quoting
Conyers, 273 Va. at 104). “In interpreting [a] statute, ‘courts apply the plain meaning . . . unless the
terms are ambiguous or applying the plain language would lead to an absurd result.’” Id.
(alterations in original) (quoting Baker v. Commonwealth, 284 Va. 572, 576 (2012)). “‘It is a
cardinal principle of law that penal statutes are to be construed strictly against the Commonwealth’
and ‘cannot be extended by implication[] or be made to include cases which are not within the letter
and spirit of the statute.’” Barnes v. Commonwealth, 61 Va. App. 495, 498 (2013) (quoting Wade v.
Commonwealth, 202 Va. 117, 122 (1960)). “However, ‘[this Court] will not apply “an
unreasonably restrictive interpretation of the statute” that would subvert the legislative intent
therein.’” Id. (quoting Armstrong v. Commonwealth, 263 Va. 573, 581 (2002)).
At its core, Harris’s argument is that the unit of prosecution of Code § 18.2-387.1 is based
on each actual or explicitly simulated occurrence of masturbation. While we need not address
Harris’s argument under the Double Jeopardy Clause of the Fifth Amendment, we note that -5- “many of our prior cases analyzing the ‘unit of prosecution’ set out in a statute do so against the
backdrop of a double jeopardy challenge.” Taylor v. Commonwealth, 77 Va. App. 149, 162
(2023). Both the United States and Virginia constitutions protect a defendant from being “put
twice in jeopardy for the same offense.” U.S. Const. amend. V; Va. Const. art. I, § 8. “[T]his
protection is ‘limited to assuring that the court does not exceed its legislative authorization.”
Taylor, 77 Va. App. at 162 (quoting Stephens v. Commonwealth, 263 Va. 58, 62 (2002)). As
such, “any double jeopardy challenge necessarily folds back into interpreting the legislature’s
intent in enacting a criminal offense—the same inquiry we take up here.” Id. at 163.
To determine whether the evidence was sufficient to convict Harris of two counts of
obscene sexual display, this Court must determine the correct unit of prosecution under Code
§ 18.2-387.1. “When considering multiple punishments for a single transaction, the controlling
factor is legislative intent.” Groffel v. Commonwealth, 70 Va. App. 681, 687 (2019) (quoting
Commonwealth v. Gregg, 295 Va. 293, 298 (2018)), aff’d, 299 Va. 271 (2020). “In determining
legislative intent, the court first looks to the plain language of the statute.” Id. “If the language
is clear and unambiguous, [an appellate court] will assign the statute its plain meaning.” Id.
(alteration in original) (quoting Browning-Ferris Indus. of S. Atl. v. Residents Involved in Saving
the Env’t, Inc., 254 Va. 278, 284 (1997)). Further, appellate courts must “give effect to the
legislature’s intention as expressed by the language used unless a literal interpretation of the
language would result in a manifest absurdity.” Id. (quoting Conyers, 273 Va. at 104). By
contrast, “if the statutory language is ambiguous, the court must rely on ‘the gravamen of the
offense to determine the legislature’s intent regarding the permissible unit of prosecution.” Id.
(quoting Baker, 284 Va. at 576).
“To the extent there is ambiguity, such ‘ambiguity should be resolved in favor of lenity,’
because if the legislature ‘does not fix the punishment for a[n] . . . offense clearly and without
-6- ambiguity, doubt will be resolved against turning a single transaction into multiple offenses.’”
Taylor, 77 Va. App. at 162 (alterations in original) (quoting Bell v. United States, 349 U.S. 81,
83-84 (1955)). In Taylor, this Court analyzed whether firing three rapid shots at the same person
in the same instance are sufficient to sustain three convictions for maliciously shooting within an
occupied building. Id. Code § 18.2-279 provides,
If any person maliciously discharges a firearm within any building when occupied by one or more persons in such a manner as to endanger the life or lives of such person or persons, or maliciously shoots at, or maliciously throws any missile at or against any dwelling house or other building when occupied by one or more persons, whereby the life or lives of any such person or persons may be put in peril, the person so offending is guilty of a Class 4 felony.
(Emphasis added). This Court held that “the legislature intended [the statute] to be bullet
specific.” Taylor, 77 Va. App. at 162 (finding that the gravamen of the offense is the risk of
endangerment or death to another as a result of discharging a firearm); Miles v. Commonwealth,
78 Va. App. 73, 89-90 (2023) (finding that the term discharge refers to an individual bullet); see
also Stephens v. Commonwealth, 35 Va. App. 141, 147 (2001) (finding that the gravamen of the
offenses for Code §§ 18.2-154 and 18.2-286.1 is the risk of endangerment or death to another as
a result of conduct by the accused). In determining that the legislature intended the statute to be
bullet-specific, this Court relied on (1) the Supreme Court of Virginia’s analysis of the similar
malicious shooting at an occupied vehicle statute, (2) the independent risk carried by each bullet,
and (3) the statute’s unambiguous use of the word “discharge.” Taylor, 77 Va. App. at 162.
This Court drew no meaningful distinction between someone who “maliciously shoots” and
someone who “maliciously discharges a firearm” where the facts show that the trigger of the
firearm was pulled multiple times. Id. at 163 (noting that statutes should be construed with a
view toward harmonizing it with other statutes). Further, the gravamen of the offense is “the risk
of endangerment or death to another as a result of discharging a firearm.” Id. at 163-64 (“The -7- life of another is endangered with the discharge of each shot, even if multiple shots are
discharged in rapid succession.”). Finally, this Court noted that the statute criminalized the
“discharge” of a firearm, and Black’s Law Dictionary defined it as “[t]he expulsion of a bullet
from a firearm; esp. the shooting of a gun.” Id. at 164 (alteration in original).
It is axiomatic that “[t]he legislature ‘may determine the appropriate “unit of prosecution”
and set the penalty for separate violations.’” Johnson v. Commonwealth, 292 Va. 738, 741
(2016) (quoting Jordan v. Commonwealth, 2 Va. App. 590, 594 (1986)). “[A]lthough multiple
offenses may be the ‘same,’ an accused may be subjected to legislatively ‘authorized cumulative
punishments.’” Id. (quoting Jordan, 2 Va. App. at 594). “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.” Sandoval v. Commonwealth, 64 Va. App.
398, 413 (2015) (quoting Jones v. Commonwealth, 208 Va. 370, 375 (1967)).
Here, the parties’ argument turns on the plain meaning of the term “others.” Code
§ 18.2-387.1 provides, “Any person who, while in any public place where others are present,
intending that he be seen by others, intentionally and obscenely as defined in [Code] § 18.2-372,
engages in actual or explicitly simulated acts of masturbation, is guilty of a Class 1
misdemeanor.” (Emphases added). “To determine whether statutory language is ambiguous, the
Court must consider whether the text can be ‘understood in more than one way or refers to two
or more things simultaneously [or] whe[ther] the language is difficult to comprehend, is of
doubtful import, or lacks clearness or definiteness.’” Taylor, 298 Va. at 342 (alterations in
original) (quoting Boynton v. Kilgore, 271 Va. 220, 227 n.8 (2006)).
[A]n undefined term must be given its ordinary meaning, given the context in which it is used. Furthermore, the plain, obvious, and rational meaning of a statute is to be preferred over any curious, narrow, or strained construction, and a statute should never be construed in a way that leads to absurd results.
-8- Id. (alteration in original) (quoting Lawlor v. Commonwealth, 285 Va. 187, 237 (2013)). In this
instance, we find the term “others” to be plain and unambiguous. An “other” is defined as “a
different or additional one, one that remains of two or more, being the one (as of two or more)
remaining or not included,” and “as well as the thing or person already mentioned.” Other,
Merriam-Webster, https://perma.cc/MZU4-BMJ4; Other, Cambridge Dictionary,
https://perma.cc/UM75-ELZU. Therefore, the plain meaning of the statute suggests that an
“other” would be any additional person other than the person committing the lewd act.
While Virginia appellate courts have not specifically addressed the unit of prosecution for
Code § 18.2-387.1, they have interpreted the unit of prosecution for other statutes. Our courts
have found that multiple prohibited acts can enable multiple prosecutions—where the legislature
has specifically identified an action as a unit of prosecution.
For instance, Code § 18.2-58(B)(1) states “[a]ny person who commits robbery and causes
serious bodily injury to or the death of any other person is guilty of a Class 2 felony.”
(Emphases added). Therefore, the correct unit of prosecution for robbery is based on the number
of persons whose property is taken through force or intimidation. See Scott v. Commonwealth, 7
Va. App. 252, 262 (1988) (“[W]here the facts establish an intent to rob either or both of two
employees, and overt acts to accomplish that intent are inflicted on each of them, two separate
attempts have occurred rather than one.”); Jordan, 2 Va. App. at 596 (“[T]he appropriate ‘unit of
prosecution’ is determined by the number of persons from whose possession property is taken
separately by force or intimidation.”); Sullivan v. Commonwealth, 16 Va. App. 844 (1993)
(finding that the defendant intimidated each employee and obtained the money through the
agency of that intimidation).
Once again, Code § 18.2-282(A) states, “It shall be unlawful for any person to point, hold
or brandish any firearm . . . in such a manner as to reasonably induce fear in the mind of another
-9- of being shot or injured.” (Emphasis added). The Supreme Court of Virginia upheld the
defendant’s three convictions for brandishing a firearm where the “gravamen of the offense is the
inducement of fear in another.” Kelsoe v. Commonwealth, 226 Va. 197, 199 (1983) (concluding
that “[w]hen the defendant frightened the three men by pointing his weapon, he committed three
separate crimes”).
As another example, Code § 19.2-128(B) states, “[a]ny person . . . charged with a felony
offense . . . who willfully fails to appear before any court as required is guilty of a Class 6
felony.” (Emphasis added). “The plain language of [the statute] indicates that the legislature
intended to establish each felony charge as the unit of prosecution for a failure to appear.”
Johnson v. Commonwealth, 292 Va. 738, 741-42 (2016). “The legislature selected the term ‘a’
felony, thereby indicating that each felony charge could serve as the predicate of a failure to
appear conviction.” Id. at 742 (The “General Assembly chose, with care, the words that appear
in [the] statute, and [courts] must apply the statute in a manner faithful to that choice.” (citing
Rives v. Commonwealth, 284 Va. 1, 3 (2012))).
Further, Code § 18.2-248(A) provides, “[I]t shall be unlawful for any person to . . .
possess with intent to manufacture, sell, give or distribute a controlled substance.” (Emphases
added). This Court interpreted the gravamen of the offense to be the “possession of the specified
drug with the requisite intent.” Shears v. Commonwealth, 23 Va. App. 394, 401 (1996). “Thus,
each distinguishable incident of the offending conduct constitutes a ‘unit of prosecution’ for
violation of the statute.” Id. at 400-01 (finding that the defendant’s possession of cocaine at his
residence and at an informant’s trailer constituted two possessory offenses); see also Camann v.
Commonwealth, 79 Va. App. 427, 441 (2024) (en banc) (“[W]hatever practical inconveniences
may arise when the Commonwealth seeks multiple convictions for possessing a single mixture,
- 10 - we cannot dispense with the fundamental requirement for each conviction that knowledge is an
essential element of the crime.” (quotation marks and citation omitted)).
Moreover, Code § 18.2-46.2 provides “Any person who actively participates in or is a
member of a criminal street gang and who knowingly and willfully participates in any predicate
criminal act committed for the benefit of, at the direction of, or in association with any criminal
street gang is guilty of a Class 4 felony.” (Emphasis added). “[T]he legislature’s choice to use
‘any predicate criminal act’ means any single enumerated offense may serve as the predicate
criminal act and does not encompass several predicate criminal acts.” Hernandez v.
Commonwealth, No. 1221-22-4, slip op. at 12-13, 2023 Va. App. LEXIS 817, at *16-17 (Dec.
12, 2023) (emphasis added) (“If the legislature had intended for only one punishment of gang
activity for multiple predicate criminal acts, it would have used ‘one or more predicate acts’ in
lieu of ‘any predicate criminal act.’”).3
Finally, Code § 18.2-374.1:1(A) states, “Any person who knowingly possesses child
pornography is guilty of a Class 6 felony.” (Emphasis added). This Court explained that a
violation of the statute “involves the act of possessing child pornography—not the act of
acquiring it.” Papol v. Commonwealth, 63 Va. App. 150, 153 (2014); cf. Chapman v.
Commonwealth, 56 Va. App. 725, 732 (2010) (“[T]he permissible unit of prosecution for the sale
of obscene items under Code § 18.2-374 was the number of each such item sold, this Court held
in Mason that ‘the permissible prosecution for possession of child pornography under [the
statute] corresponds to the number of individual items of sexually explicit visual material.”
(second alteration in original) (quoting Mason v. Commonwealth, 49 Va. App. 39, 48 (2006))).
Consequently, it followed that the “unit of prosecution” is “the number of individual items of
3 “[U]npublished opinions are not binding but can be ‘considered for their persuasive value.’” Harvey v. Commonwealth, 76 Va. App. 436, 466 n.6 (2023) (quoting Otey v. Commonwealth, 61 Va. App. 346, 350 n.3 (2023)); see also Rule 5A:1(f). - 11 - sexually explicit visual material possessed by the defendant.” Papol, 63 Va. App. at 153
(quoting Chapman, 56 Va. App. at 732).
Presently, Harris argues that the “unit of prosecution for obscene sexual display . . . is
defined by the number of actual or explicitly simulated acts of masturbation.” Harris contends
that referencing the number of people who view the act would lead to absurd results because
“tying the unit of prosecution to the number of ‘others’ would prevent prosecution under a
scenario where no person other than the defendant witnessed the occurrence.” Conversely, the
Commonwealth suggests that “reading the phrases ‘where others are present’ and ‘intending that
he been seen by others’ as relating to the number of victims would have the effect of prohibiting
single-victim prosecutions under this statute as it would not merely permit, but require, the
defendant be seen by multiple people.”
Code § 18.2-387.1 provides, “Any person who, while in any public place where others
are present, intending that he be seen by others, intentionally and obscenely as defined in
§ 18.2-372, engages in actual or explicitly simulated acts of masturbation, is guilty of a Class 1
misdemeanor.” (Emphasis added). The gravamen of the offense—the act which is to be
punished—is “engag[ing] in actual or simulated acts of masturbation.” As such, the unit of
prosecution is for each act or occurrence of masturbation, rather than the number of witnesses
who view the act.
The Commonwealth’s interpretation—that “the unit of prosecution is the number of
victims who witness the lewd act”—misidentifies the conduct prohibited by Code § 18.2-387.1.
The statute does not require a victim to witness the act in order to prosecute an individual.
Rather, a defendant can be convicted if the Commonwealth proves the following elements: that
the defendant (1) was in a public place, (2) where another person is or persons are present, (3)
with the intent to be seen by others, and (4) intentionally or obscenely engaged in actual or
- 12 - explicitly simulated acts of masturbation. Thus, the plain text of Code § 18.2-387.1 shows that
an individual act of “actual or explicitly simulated” masturbation is the necessary actus reas of
the offense.
Therefore, to convict Harris of two counts of obscene sexual display, the Commonwealth
needed to prove that Harris committed two distinct occurrences of masturbation. Here, the
evidence does not support two charges of obscene sexual display. Two women were walking on
a trail to pavilion three when they observed Harris huddled off the path. They saw Harris was
naked, and he turned toward them and stroked his penis “vigorously” while making eye contact
with each woman. Further, the Commonwealth conceded both at trial and on appeal that the
facts support that Harris committed only one occurrence of masturbation. As such, the evidence
was insufficient to convict him of two counts of obscene sexual display under Code
§ 18.2-387.1. As a result, the trial court erred in convicting Harris of both counts of Code
§ 18.2-387.1, and this Court reverses his conviction of one of those counts.
II. The trial court did not err in instructing the jury on Instruction 5.
“A reviewing court’s responsibility in reviewing jury instructions is ‘to see that the law has
been clearly stated and that the instructions cover all issues which the evidence fairly raises.’”
Conley v. Commonwealth, 74 Va. App. 658, 674-75 (2022) (quoting Fahringer v. Commonwealth,
70 Va. App. 208, 211 (2019)). “The trial court has ‘broad discretion in giving or denying
instructions requested,’ and [appellate courts] review those decisions under an abuse of discretion
standard.” Barney v. Commonwealth, 69 Va. App. 604, 609 (2019) (quoting Gaines v.
Commonwealth, 6 Va. App. 562, 568 (2003) (en banc)). “[W]hether a jury instruction accurately
states the relevant law is a question of law that [appellate courts] review de novo.” Conley, 74
Va. App. at 675 (first alteration in original) (quoting Watson v. Commonwealth, 298 Va. 197, 207
(2019)). “In reviewing jury instructions, the Court’s responsibility is ‘to see that the law has been
- 13 - clearly stated and that the instructions cover all issues which the evidence fairly raises.’” Drexel v.
Commonwealth, 80 Va. App. 720, 742 (2024) (quoting Ducharme v. Commonwealth, 70 Va. App.
668, 674 (2019)). “However, jury instructions are proper only if supported by the evidence, and
more than a scintilla of evidence is required.” Payne v. Commonwealth, 292 Va. 855, 869 (2016).
“When reviewing a trial court’s refusal to give a proffered jury instruction, [appellate courts] view
the evidence in the light most favorable to the proponent of the instruction.” Id.
The Supreme Court of Virginia has approved a jury instruction stating that “[i]t is
permissible to infer that every person intends the natural and probable consequences of his or her
acts.” Schmitt v. Commonwealth, 262 Va. 127, 145 (2001). “[S]uch an inference ‘[does] not
establish an improper presumption but merely state[s] a permissive inference.’” Thomas v.
Commonwealth, 279 Va. 131, 166 (2010) (quoting Schmitt, 262 Va. at 145). The Supreme Court
of Virginia has repeatedly rejected the argument that the “natural and probable consequences of
his acts” instruction constitutionally shifts the burden of proof to the defendant. See, e.g., Tizon
v. Commonwealth, 60 Va. App. 1, 21 (2012) (“The Virginia Supreme Court has . . . repeatedly
rejected the assertion that the ‘natural and probable consequences of his acts’ instruction
unconstitutionally ‘shifts the burden of proof.’”). The Commonwealth may request an
instruction that it is permissible to infer that every person intends the natural and probable
consequences of his or her acts “if the evidence in such a case creates an issue whether the
defendant harbored any criminal intent whatsoever.” Velasquez v. Commonwealth, 276 Va. 326,
330 (2008). Under our case law, Jury Instruction 5 is a proper jury instruction when intent is at
issue.
Harris argues that Jury Instruction 5 was “irrelevant under the circumstances of this case”
because “none of the acts at issue were sufficient under common experience to find a
corresponding intent.” We disagree. Code § 18.2-387.1 states “[a]ny person who, while in a
- 14 - public place where others are present, intending that he be seen by others, intentionally or
obscenely as defined in § 18.2-372, engages in actual or explicitly simulated acts of
masturbation, is guilty of a Class 1 misdemeanor.” (Emphases added). Intent is an essential
element of the crime of making an obscene sexual display. Jury Instruction 54 told the jury that
it could infer that Harris intended to be seen by others by intentionally masturbating in a public
park in the middle of the day. Instruction 5 is useful in determining whether Harris had the
requisite intent. On these facts, a jury could have inferred intent because Harris voluntarily
exposed himself to the victims on the path while making eye contact. Thus, the trial court did
not err when it granted the Commonwealth’s Jury Instruction 5, and this Court affirms that
decision of the trial court.
CONCLUSION
For the foregoing reasons, this Court finds that the trial court erred in convicting Harris of
two counts of obscene sexual display and reverses with instruction for the trial court on remand to
vacate one of Harris’s convictions. This Court finds no abuse of discretion and affirms the
judgment of the trial court related to the jury instructions.
Affirmed in part, and reversed and remanded in part.
Jury Instruction 5 states “It is permissible to infer that every person intends the natural 4
and probable consequences of his or her acts.” - 15 -