[Copyrighted Material Omitted]
FROM THE CIRCUIT COURT OF THE CITY OF WINCHESTER. John E. Wetsel, Jr., Judge.
Matt Beyrau (Matt Beyrau, PLLC, on brief), for appellant.
Robert H. Anderson, III, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Present: Judges Kelsey, [*]Alston and Senior Judge Bumgardner.
[64 Va.App. 403] ROSSIE D. ALSTON, JR. JUDGE
Hugo Sandoval (" appellant" ) was tried and convicted of ten counts of manufacturing child pornography, eleven counts of indecent liberties with a minor, and one count of conspiracy to produce child pornography. On appeal he contends that the trial court erred: 1) when it denied his motion to dismiss the [64 Va.App. 404] indictments against him, because the delay prior to his indictment violated his right to due process; 2) when it denied his motion to strike ten of the indecent liberties charges on the grounds they were incidental to the manufacturing of child pornography charges and a conviction for both offenses violated double jeopardy principles; 3) when it denied his motion to strike ten counts of indecent liberties down to one count on the grounds that the unit of prosecution for indecent liberties is a common scheme or transaction; and 4) when it denied his motion to strike ten counts of manufacturing child pornography down to one count on the grounds that the unit of prosecution for manufacturing child pornography is a common scheme or transaction. For the reasons that follow, we disagree and affirm the judgment of the trial court.
A. Underlying Offenses
In 2004, appellant was convicted of carnal knowledge and aggravated sexual battery for offenses he committed against his stepdaughters, L.M. and S.M. In August 2004, while incarcerated for those offenses, appellant placed a series of seven calls to his wife, Helen Mason, over a three-day span, in which he requested " kinky pictures" of L.M. Helen Mason subsequently took ten pictures of L.M. in various sexually explicit poses, following appellant's instructions as to the kind of pictures he wanted. Mason then delivered the photographs to appellant at the detention center where he was imprisoned.
Appellant and Mason were both criminally charged for their actions. On September 14, 2004, Mason was indicted on numerous counts of indecent liberties and production of obscene materials arising out of the August 2004 events involving L.M. In March of the following year, Mason was convicted [64 Va.App. 405] of five counts of indecent liberties and ten counts of production of obscene material.
She appealed her convictions to this Court. Thereafter, on April 15, 2005, appellant was indicted on three counts of taking indecent liberties with a minor, ten counts of producing child pornography, and two counts of conspiracy. Those indictments were subsequently nolle prosequied during the pendency of Mason's appeal of her convictions to this Court. We issued an opinion affirming Mason's convictions on November 7, 2006. See Mason v. Commonwealth, 49 Va.App. 39, 636 S.E.2d 480 (2006).
Still incarcerated for his prior convictions of carnal knowledge and aggravated sexual battery, on November 13, 2012, appellant was indicted on eleven counts of indecent liberties with a minor, in violation of Code § 18.2-370, ten counts of manufacturing child pornography, in violation of Code § 18.2-374.1(B), and three counts of conspiracy, in violation of Code § § 18.2-22 and 18.2-374.1 all relating to his August 2004 actions involving L.M.
On December 5, 2012, the Office of the Attorney General filed a civil petition to commit appellant as a sexually violent predator pursuant to the Civil Commitment of Sexually Violent Predators Act. Citing appellant's convictions for carnal knowledge and aggravated sexual battery, as well as a Sexually Violent Predator Evaluation of appellant prepared by Dr. Ilona Gravers, a licensed clinical psychologist, who had been designated by the Commissioner of the Department of Behavioral Health and Development Services to conduct a mental health examination of appellant, the Attorney General alleged that appellant met the criteria under Code § 37.2-900 as a sexually violent predator. As detailed in her evaluation, Dr. Gravers diagnosed appellant with a personality disorder that made appellant more likely to engage in future sexually violent acts.
B. Motion to Dismiss
Appellant filed with the trial court a motion to dismiss the indictments against him, alleging that his prosecution following a preindictment delay of over eight years violated his due [64 Va.App. 406] process rights. He asserted in a supporting memorandum that he was prejudiced by the delay, as " the age of the case and witnesses' diminished memories" made " a proper investigation by the defense . . . all but impossible," " evidence may have been lost or misplaced," and the victim would likely " testify differently" now as an adult than she would have as a minor. Appellant also asserted that the development of " case law favorable to the prosecution" and " society's view of child pornography offenders[, which had] evolved and become more harsh over the intervening years," " strengthened the prosecution's hand." Finally, appellant expressed concern that Dr. Gravers' evaluation " may have played a role in the charging decision" for his August 2004 offenses and that appellant's statements to Dr. Gravers " could possibly be used against him at either the trial or sentencing in his criminal case." The preindictment delay was not only prejudicial, appellant argued, but also " done by a prosecutor seeking a tactical advantage" at trial.
In a memorandum in opposition to appellant's motion to dismiss, the Commonwealth explained both its decision to nolle prosequi the initial charges against appellant and to subsequently seek indictments against appellant in 2012. The Commonwealth stated that it moved to nolle prosequi the initial charges against appellant when Helen Mason appealed her convictions because " [t]he Commonwealth wanted to avoid [L.M.] having to testify multiple times. If the Court of Appeals remanded the Mason case it would also remand [appellant's] case and the victim would have to testify in a total of four trials if both cases were then re-tried." When Helen Mason's appeal finally resolved, L.M. " was sixteen and it had been three years since she had been removed from [her] home," and appellant " remained incarcerated on other charges." The Commonwealth explained that it chose not to seek indictments against appellant at that time because " [t]he cost of putting [L.M.] through trial was too great compared to any benefit."
The record suggests, however, that the calculus changed in 2012, when the Commonwealth became aware that appellant had contacted L.M.'s sister, and after the Los Angeles County [64 Va.App. 407] District Attorney's Office contacted the Commonwealth regarding allegations that appellant had forcibly raped a child in California in 2000. That information
led the Commonwealth to contact L.M., who expressed her interest in seeing appellant charged because " she did not want [appellant] doing the same thing to anybody else." The Commonwealth justified its 2012 indictment of appellant for these reasons.
The trial court held a hearing on appellant's motion to dismiss on April 8, 2013. The trial court indicated at that time that the only issue " that had any traction, was the sexually violent predator evaluation" performed by Dr. Gravers. However, upon the Commonwealth Attorney's assertion that he had not read the evaluation, did not intend to introduce it at trial, and intended to confine the evidence to events occurring in 2004, the trial court concluded that the evaluation " [was] not an issue in th[e] case." The trial court denied appellant's motion to dismiss, finding that appellant had failed to prove by a preponderance of the ...