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
ROSEMARIE ANNUNZIATA, JUDGE
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),
imposed a fine of $2, 500. 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.
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. Appellant and C.R. exchanged
phone numbers and began sending text messages.
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
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.
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"
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.
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.
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.
then was indicted, tried, and convicted in the Shenandoah
County Circuit Court. This appeal followed.