Patricia Palmer Nagel (The Law Offices of Patricia Palmer Nagel, P.L.C., on briefs), for appellant.
Katherine Quinlan Adelfio, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
Present: FRANK, KELSEY and ALSTON, JJ.
[63 Va.App. 151] The trial court convicted Joseph Alfonso Papol of one count of possession of child pornography, punishable under Code § 18.2-374.1:1(A), and eleven counts of possession of child pornography, second or subsequent violations, punishable under Code § 18.2-374.1:1(B). On appeal, Papol argues the trial [63 Va.App. 152] court should have dismissed the eleven second or subsequent counts. We disagree and affirm.
On appeal, we review the evidence in the " light most favorable" to the Commonwealth. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). This principle requires us to " discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom." Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis and internal quotation marks omitted).
The evidence at trial proved that, on October 22, 2010, Papol downloaded from the Internet to his computer twelve sexually explicit images of prepubescent girls. To obtain the twelve images, Papol used a peer-to-peer, file-sharing program that downloads " torrent files" from the Internet. App. at 258, 355-56. A digital forensic expert at trial explained that when someone downloads " torrent files," the program separately downloads different pieces of the files from
different databases maintained by others who participate in the peer-to-peer, file-sharing program. Id. at 307, 355-56. The expert explained it this way: " The thing with torrents is you can download from ... not just one computer, but if you've got 50 people with the same file on it, [the torrent program] can take bits and pieces from all 50 of those people and recreate it on your computer." Id. at 356.
Papol saved the twelve images on his computer using a folder titled, " LS Magazine." Id. at 350-51. The expert testified that " LS Magazine" refers to a notorious Ukrainian criminal enterprise that trafficked in pornographic images of prepubescent girls as young as ten. Id. at 352-53. Upon his arrest, Papol gave a full confession and admitted that the twelve images he downloaded involved girls appearing to be " maybe 12 and 13" years old. Id. at 258, 282. A grand jury indicted Papol on one count of possession of child pornography [63 Va.App. 153] and eleven counts of possession of child pornography, second or subsequent violations.
At trial, Papol argued that " because he ha[d] never been previously convicted" of possessing child pornography, " there is no predicate offense" for the eleven charges alleging a " second or subsequent violation." App. at 16. " As a result," Papol reasoned, the eleven charges " must be dismissed." Id. The trial court rejected Papol's argument and found him guilty on all twelve counts.
On appeal, Papol argues that the eleven " second or subsequent" charges under Code § 18.2-374.1:1(B) should have been dismissed because he had never been previously convicted of possession of child pornography. Papol also contends that, in any event, he did not commit a second or subsequent violation because ...