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Hillman v. Commonwealth

Court of Appeals of Virginia

April 3, 2018

MAJOR LANCE HILLMAN
v.
COMMONWEALTH OF VIRGINIA

          FROM THE CIRCUIT COURT OF CAMPBELL COUNTY John T. Cook, Judge

          Matthew L. Pack (M. Pack Law, PLLC, on brief), for appellant.

          Eugene P. Murphy, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Present: Judges Alston, Chafin and Malveaux Argued at Salem, Virginia

          OPINION

          MARY BENNETT MALVEAUX, JUDGE

         Major Lance Hillman ("appellant") was found guilty of use of a computer to solicit a minor, in violation of Code § 18.2-374.3, and taking indecent liberties with a child, in violation of Code § 18.2-370. On appeal, appellant argues the trial court (1) erred in finding that the evidence was sufficient to prove that his actions constituted an exposure; (2) erred in finding that the evidence was sufficient to prove that he knew or had reason to believe that the victim was younger than 15 years of age; and (3) abused its discretion by allowing photographs to be admitted that had not been properly authenticated. Finding no error, we affirm.

         I. BACKGROUND

         The Offenses

         Appellant was employed as the youth pastor at A.F.'s church. Between August and December of 2015, A.F. sought out appellant for counseling because of prior sexual abuse. At that time, A.F. was fourteen years old and in the eighth grade. Appellant was twenty-two years old. To participate in the church's youth group, A.F. had to sign a medical release form which listed both her age and date of birth. This form was given to the church. A.F. never told appellant that she was older than fourteen, but did not specifically remember telling him her age.

         A.F. and appellant began to communicate via text message and later through Snapchat.[1]Several dated and time-stamped text messages recovered from appellant's iPad show that on the evening of October 27, 2015, appellant asked A.F. if she used Snapchat, and asked her to "add" him to hers. Appellant then gave A.F. his Snapchat user name, and ten minutes later asked her if she "g[o]t that." A.F. replied "yes" about twenty seconds later. During a two-hour period that night, appellant and A.F. exchanged text messages stating that they had sent Snapchat messages and asking if the other person had received them.

         Via Snapchat, A.F. sent appellant a nude picture of her upper body, and in return, appellant sent her a nude picture of himself. Appellant also sent A.F. a picture of his erect penis. They also sent each other videos in which appellant was nude and A.F.'s upper body was nude.

         Evidence at Trial

         Jason Sloan, an investigator with the Campbell County Sheriff's Office at the time of the offenses, testified that in addition to the text messages, he found photographs on appellant's iPad of a male subject with visible genitalia.[2] The Commonwealth attempted to introduce these photographs through Sloan. Counsel for appellant objected on the ground that they were not properly authenticated. The court sustained the objection. The Commonwealth recalled A.F. and asked her if she had received the photographs from appellant via Snapchat, to which A.F. responded in the affirmative. However, A.F. also acknowledged on cross-examination that during the period of time in which she and appellant were exchanging Snapchat messages, the application deleted photographs shortly after they were sent and they could not be saved. A.F. then testified that because the pictures were sent with Snapchat, the photographs she saw in court were not actually the pictures that were sent, but were just "similar." Also on cross-examination, A.F. was asked whether the pictures were a fair and accurate representation of the pictures sent to her by appellant, and she replied "yes." Counsel for appellant again objected to the introduction of the photographs, arguing that they still were not properly authenticated as the actual photographs sent to A.F. The trial court overruled the objection and admitted the photographs, specifically noting that A.F. had affirmed that the pictures were a fair and accurate representation of the photographs sent to her by appellant.

         Investigator Dudley of the Campbell County Sheriff's Office testified that he interviewed appellant as a part of his investigation. Dudley testified that "[appellant's] story was just about the same as [A.F.'s]." Dudley testified that during the recorded interview, appellant admitted sending A.F. naked photographs and videos, and also admitted to asking A.F. for naked photographs and videos, a request with which she complied. Appellant told Dudley that exchanging the photographs was a counseling technique he used to help A.F. deal with prior sexual abuse that she had revealed to him. When asked during the interview how old A.F. was, appellant responded "fifteen I believe . . . fourteen, fifteen."

         Appellant was convicted, after a jury trial, of use of a computer to solicit a minor, in violation of Code § 18.2-374.3, and taking indecent liberties with a child, in violation of Code § 18.2-370.

         II. ANALYSIS

         A. "Exposure" under Code § 18.2-370

         On appeal, appellant argues that the trial court erred in finding the evidence sufficient to prove that he committed an act of exposure necessary for a conviction of ...


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