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Ele v. Commonwealth

Court of Appeals of Virginia

July 16, 2019

DUSTIN ALLAN ELE, SR.
v.
COMMONWEALTH OF VIRGINIA

          FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Timothy S. Fisher, Judge

          Christopher P. Reagan (Goldstein, Edgar, Reagan, on brief), for appellant.

          Victoria Johnson, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Present: Judges Humphreys, O'Brien and AtLee Argued at Norfolk, Virginia

          OPINION

          MARY GRACE O'BRIEN, JUDGE

         Following 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).[1] 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.

         BACKGROUND

         On 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.

         M.G. 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.

         Exhibit 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.

         In 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.

         At the 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.

         DISCUSSION

         A. ...


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