FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG. Gordon F. Willis, Judge.
Norman A. Thomas (Lavonda N. Graham-Williams; Norman A. Thomas, PLLC; Law Office of Lavonda N. Graham-Williams, Esq., on briefs), for appellant.
Christopher P. Schandevel, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Present: Chief Judge Huff, Judges Beales and AtLee.
[65 Va.App. 15] GLEN A. HUFF,
After a bench trial in the Circuit Court of the City of Fredericksburg (" trial court" ), Michael Thomas Terlecki (" appellant" ) was found guilty of possession of child pornography, in violation of Code § 18.2-374.1:1(A), and sentenced to three years' incarceration with two years and four months suspended. On appeal, appellant presents two assignments of error:
[65 Va.App. 16] 1. The trial court erred in failing to grant . . . appellant's motions to strike, because the Commonwealth failed to present sufficient competent evidence to prove that the alleged images depicted an actual person, as definitional[l]y required by . . . Code § 18.2-374.1(A), or otherwise prove his possession of child pornography.
2. The trial court erred in convicting . . . appellant of a violation of . . . Code § 18.2-374.1:1(A), to-wit, possession of child pornography, because the Commonwealth failed to prove that the images depicted an actual person, that . . . appellant possessed the images, that his admissions constituted a " confession," or, otherwise, prove the corpus delicti of the alleged offense.
For the following reasons, this Court affirms the rulings of the trial court.
On appeal, " 'we consider the evidence and all reasonable inferences flowing from that evidence in the light most favorable to the Commonwealth, the prevailing party at trial.'" Williams v. Commonwealth, 49 Va.App. 439, 442, 642 S.E.2d 295, 296 (2007) ( en banc ) (quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004)). So viewed, the evidence is as follows.
In August 2012, appellant " lent" his Dell laptop to his then-girlfriend, Michelle Humphries (" Humphries" ), to " use . . . during the day while [appellant] was at work." Humphries testified that she was " looking through his photo files" when she noticed that his recycle bin was full. Humphries opened the recycle bin and found " multiple files of pornography." Humphries testified in detail regarding the images she found on appellant's computer. One file contained images of " minors who were -- who were naked or otherwise engaged in some form of sexual activity . . . ." Specifically, the images displayed " young teenage girls masturbating." Additionally, " there was one photo of a girl in her early teens . . . who was being held down by a group of men and they had inserted a [65 Va.App. 17] champagne bottle into her vagina." Humphries also testified that " [t]here were probably at least 20 photos in all" and that her determination of the girls' ages was based on the fact that she has " three younger sisters" and is therefore " aware of developmental stages." Continuing, she stated that " it was very obvious to me in a couple of the photos that they were pre-pubescent and that they hadn't developed breasts . . . or body hair yet."
After discovering the images, Humphries confronted appellant with a friend, at which point appellant admitted that he used the images for sexual gratification, including masturbation. After appellant " agreed that he would find a counselor who specialized in sexual addiction and that he would abstain from downloading any more pornographic material of that nature," Humphries took no further action at that time. In May 2013, however, Humphries discovered more pornographic images on appellant's computer. She described them as " the same" as the images she had seen in August 2012 -- " young teens masturbating or otherwise engaged in sexual activity." After Humphries again confronted appellant, the couple broke off their relationship. Two months later, Humphries anonymously reported appellant because she feared " what could happen if [she] didn't say anything."
On cross-examination, Humphries admitted that she was not an expert in computer-generated imagery, but testified that the pictures were not fuzzy but " clear" and that they " looked human" and were not " a cartoon or a likeness." On redirect, Humphries testified that the images did not " appear to be computer generated in any way" and " appeared to be real people."
During the last week of June 2013, appellant destroyed his laptop and threw it into a dumpster. Around that same time, Detective Carlos Reyes (" Reyes" ) of the Fredericksburg Police Department received a tip regarding a possible possession of pornography case, causing Reyes to meet with Humphries. Reyes then went to appellant's place of employment, and [65 Va.App. 18] appellant agreed to come back to the police station for a voluntary interview.
In the interview, which was recorded, appellant acknowledged that Humphries had found child pornography on his computer in August 2012 and that he admitted to her that he looks at child pornography. Appellant stated that he has been viewing child pornography since he was ten or eleven years old and that the last time he looked at child pornography was on June 26, 2013, the day before he went to a Sexaholics Anonymous meeting. Appellant also stated ...