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Ducharme v. Commonwealth

Court of Appeals of Virginia

August 6, 2019

TIMOTHY DUCHARME
v.
COMMONWEALTH OF VIRGINIA

          FROM THE CIRCUIT COURT OF SHENANDOAH COUNTY Dennis L. Hupp, Judge

          Charles B. Ramsey for appellant.

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

          Present: Judges Petty, Malveaux and Senior Judge Annunziata Argued at Alexandria, Virginia

          OPINION

          ROSEMARIE ANNUNZIATA, JUDGE

         A jury found Timothy Ducharme, appellant, guilty of using a communication device to solicit a minor for the production of child pornography, in violation of Code § 18.2-374.3(B), [1]and imposed a fine of $2, 500.[2] Appellant argues on appeal that the trial court erred in denying the motion to suppress evidence found on his cell phone and in instructing the jury regarding proof of the victim's age. For the following reasons, we affirm appellant's conviction.

         BACKGROUND

         Appellant, then twenty-one years of age and a Marine stationed at Quantico, met the victim, C.R., through an online dating website in February 2016. C.R. testified at trial that a friend had established the account without her permission and had represented that C.R. was eighteen years old. C.R., in fact, was fifteen years old.[3] Appellant and C.R. exchanged phone numbers and began sending text messages.

         On April 2, 2016, appellant drove to Shenandoah County to "hang out" with C.R. However, before they met, C.R. sent him a text message that she was "only 16," and she apologized for lying about her age. Appellant responded that they could be friends and offered to meet with C.R. and her parents, but she said that meeting was not "a good idea." Appellant replied, "That's fine. Take care of yourself sweetheart, it was nice getting to know you a little bit. You're a great person. I am leaving now."

         On April 3, 2016, C.R. sent appellant a text asking him to call her. Appellant testified that during the ensuing phone conversation, C.R. told him that she was eighteen years old but had said that she was sixteen because she was nervous about meeting him. At trial, C.R. denied telling appellant that she was eighteen, but she acknowledged that they had resumed texting each other.

         In several messages on April 11, 2016, appellant asked C.R. to send him "sexy" pictures of herself. Appellant asked C.R., "Baby are you gonna show me how sexy you are in the bathtub?" He said that he "want[ed] to see everything." C.R. sent appellant two photographs of her breasts and genitalia. Appellant replied that C.R. had "beautiful legs," and "adorable" genitalia.

         Appellant returned to Shenandoah County about 3:00 a.m. on April 17, 2016, and spent two hours with C.R. in his truck, parked outside her grandparents' home. Before appellant arrived, C.R. sent him text messages that she was eager to meet him. She also sent him a message that said, "I hope if it's okay if we don't have sex tonight but we can do other stuff." C.R. testified that appellant put his penis in her mouth, but appellant denied doing so.

         C.R. reported her relationship with appellant to Investigator Robert Poe of the Shenandoah County Sheriff's Office on April 18, 2016. Although she did not know appellant's full name, she provided enough identifying information for law enforcement authorities to determine that appellant was a Marine stationed at Quantico.

         Special Agent Gabriel Henson of the Naval Criminal Investigative Service (NCIS) prepared an affidavit under oath on April 19, 2016, requesting a "Command Search Authorization," the military equivalent of a search warrant, to search appellant's residence and his cell phone. The affidavit recited Henson's training and experience and C.R.'s allegations against appellant. Military procedure for obtaining authorization to search required that appellant's immediate commanding officer, or in his absence, a higher ranking officer in the chain of command, make a finding of probable cause. Appellant's immediate commander was not on base, so Henson gave his affidavit to the military attorney assigned to the general in the chain of command. The attorney privately discussed the affidavit with the general by video teleconference and also emailed him the affidavit. After the general authorized the search, Henson acquired appellant's cell phone, extracted the contents, and gave the information to Investigator Poe.

         Appellant then was indicted, tried, and convicted in the Shenandoah County Circuit Court. This appeal followed.

         ANALYSIS

         Motion ...


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