DUSTIN ALLAN ELE, SR.
COMMONWEALTH OF VIRGINIA
THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Timothy S.
Christopher P. Reagan (Goldstein, Edgar, Reagan, on brief),
Victoria Johnson, Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
Present: Judges Humphreys, O'Brien and AtLee Argued at
GRACE O'BRIEN, JUDGE
a bench trial, Dustin Allan Ele, Sr. ("appellant")
was convicted of four felonies: two counts of producing child
pornography, in violation of Code § 18.2-374.1;
aggravated sexual battery, in violation of Code §
18.2-67.3(A)(1); and indecent liberties, in violation of Code
§ 18.2-370(A). Appellant contends that the evidence was
insufficient to convict him of two of the offenses. First, he
asserts that the court erred in convicting him of producing
child pornography "as a result of [his] activity of July
31, 2015, where the child that was the subject of the video
slept undisturbed during the incident" and "was
clothed during the filming." Second, appellant contends
that the court erred in convicting him of indecent liberties
because "the child was asleep during the period of time
[when he] was exposing himself to her." For the
following reasons, we affirm appellant's convictions.
April 1, 2016, Michael Brown, a Virginia State Police Special
Agent assigned to the Northern Virginia/DC crimes against
children task force, executed a search warrant at
appellant's residence. Special Agent Brown found video
recordings and still images on an external hard drive
attached to appellant's personal computer. The videos and
images, admitted into evidence as Commonwealth's Exhibits
Six and Seven, were taken by appellant during a one-hour time
period between the night of July 31, 2015, and the early
morning of August 1, 2015. They depict a series of events
involving M.G., a nine-year-old girl who was friends with
appellant's children and who spent that night at
appellant's apartment. Exhibit Six contained four videos
and numerous still images taken on July 31, 2015, and Exhibit
Seven contained nine videos and numerous still images from
August 1, 2015.
and appellant's daughter were asleep on the living room
floor when appellant recorded the videos and took the
pictures. Exhibit Six included a video that depicts appellant
walking around the room masturbating while the children
slept. A number of times, appellant focused the camera on a
children's television show that was playing and
children's toys in the corner of the room. He then filmed
himself masturbating near M.G.'s face, ejaculating into
her hair, and touching her face with his penis. M.G. stirred
but did not wake up.
Six also included a still image of appellant pressing his
penis against M.G.'s foot and multiple close-up pictures
of M.G.'s sleeping face. Another picture shows appellant
holding his penis near M.G.'s leg with ejaculate on her
thigh. Appellant's daughter, also asleep, is visible in
some of the videos.
Exhibit Seven, from August 1, 2015, the visual material shows
M.G. still asleep with her shorts tucked up at the top of her
legs. One video depicts appellant moving M.G.'s
underpants slightly. He then took pictures of M.G.'s
genitals and his penis, and he filmed himself masturbating
near the child while she slept.
conclusion of the evidence, appellant moved to strike the
production of child pornography charge from July 31, 2015. He
argued that because M.G. was "not nude in the video . .
. from July 31," the contents of Exhibit Six did not
meet the statutory definition of child pornography. He also
moved to strike the indecent liberties charge and contended
that because the child was asleep while he filmed, the
evidence was insufficient to establish that he
"exposed" himself to her in violation of Code
§ 18.2-370(A)(1). Appellant did not move to strike the
August 1, 2015 production of child pornography charge or the
aggravated sexual battery charge. The court denied
appellant's motions and convicted him of all four
charges. This appeal followed.