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Kenner v. Commonwealth

Court of Appeals of Virginia

December 3, 2019



          Afshin Farashahi (Afshin Farashahi, P.C., on brief), for appellant.

          Leah A. Darron, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Present: Judges Humphreys, Malveaux and Senior Judge Frank Argued at Hampton, Virginia



         Lenny Rock Kenner ("Kenner") was convicted of animate object sexual penetration, in violation of Code § 18.2-67.2, aggravated sexual battery, in violation of Code § 18.2-67.3, and custodial sexual abuse, in violation of Code § 18.2-370.1. On appeal, he argues that the trial court erred in: (1) allowing the introduction of child pornography evidence; (2) denying trial counsel's motion to withdraw; and (3) denying Kenner's motion to have the jury individually polled.

         I. BACKGROUND

         On appeal, "we consider the evidence and all reasonable inferences flowing from that evidence in the light most favorable to the Commonwealth, the prevailing party at trial." Williams v. Commonwealth, 49 Va.App. 439, 442 (2007) (en banc) (quoting Jackson v. Commonwealth, 267 Va. 666, 672 (2004)).

         In November 2014, the victim, D.T., began living with her cousin, Angela Robinson, and Kenner, Robinson's fiancé. D.T. was six years old at the time. D.T. returned to her mother's home in October of 2015, after her seventh birthday. About six weeks after D.T. returned to live with her mother, D.T. told her mother and a neighbor that, on several occasions, Kenner touched in and around her "private" while she lived with him. Specifically, Kenner made her sit on his lap on a red chair in his bedroom while he put his hand both on and inside D.T.'s vagina while he forced her to watch videos of naked adults engaging in different sex acts. Those videos were "on his computer. They came from Google." Kenner also told D.T. that when she grew up she would be his girlfriend.[1]

         Dr. Alicia Meyer ("Dr. Meyer"), a licensed clinical psychologist, evaluated D.T. in September 2016 and testified at trial as an expert in the psychological assessment and treatment of childhood trauma. She diagnosed D.T. with post-traumatic stress disorder, which she explained can occur after an individual has endured a "big stressful event," including sexual violence. Dr. Meyer testified that D.T.'s symptoms were directly correlated with her allegation that Kenner sexually abused her. D.T. also told Dr. Meyer "something about a Taser, either witnessing or experiencing [Kenner] using a Taser."

         Dr. Michelle Clayton ("Dr. Clayton"), a child-abuse pediatrician, conducted a physical examination of D.T., the result of which was consistent with D.T.'s allegations. Additionally, Dr. Clayton noticed "paired circular marks" on D.T.'s thighs that were consistent with injuries from a stun gun.

         On November 25, 2015, police arrested Kenner. That same day, police executed a search warrant at Kenner's apartment and recovered a desktop computer from his bedroom, a laptop from the kitchen, and computer disks from his bedroom closet. A password-protected user account on the desktop contained an email account with Kenner's name, an autofill profile for Kenner with his phone number and address, a student loan document associated with Kenner, and eBay and Facebook accounts in Kenner's name. The desktop computer also contained artifacts indicating that the computer was used to stream, download, or attempt to download numerous videos from "Ares," a peer-to-peer sharing software. The titles of those videos described sex with young children or teaching young children to have sex. On March 14, 2016, a grand jury indicted Kenner on one count of custodial sexual abuse, one count of aggravated sexual battery, and one count of animate object sexual penetration, stemming from the abuse between November of 2014 and October of 2015.

         On October 21, 2016, the Commonwealth filed a motion in limine asking the court to allow it to introduce evidence of child pornography found on the computer. At a hearing on the motion, the Commonwealth argued that the titles of pornographic child videos found on the computer were "so much like the facts" of the instant offense that the evidence was "highly relevant and probative" of Kenner's "attitude towards his victim," as well as his intent, plan, motive, and absence of mistake. Counsel for Kenner argued that the video titles contained "a bunch of very prejudicial terms" that were "certainly more prejudicial than . . . probative" and did not "show a pattern or anything like that . . . of conduct that leads up to this." The circuit court granted the Commonwealth's motion, specifically allowing it to introduce "images or evidence of child pornography" from the computer "as well as evidence that the computer had been used to download or attempt to download certain files."

         Before trial, Kenner's trial counsel moved for a continuance because he needed more time to prepare. The circuit court granted that motion and set the trial date for April 24, 2017. On April 12, 2017, Kenner's trial counsel moved to withdraw from the case. The circuit court held a pretrial hearing on that motion, where Kenner testified that he no longer had faith in trial counsel's ability to defend him because trial counsel had not yet subpoenaed thirty-five character witnesses or reviewed certain jail call recordings. However, Kenner had only made trial counsel aware of the character witnesses a week before the hearing, despite being represented by the same trial counsel since the inception of the case.

         Trial counsel further argued that he lacked the time and resources to adequately defend the case and that he may have two conflicts of interest. First, Robinson, one of Kenner's main witnesses, appeared to have turned against him, creating the possibility that trial counsel would have to testify at trial. However, trial counsel acknowledged that this was only a "potential conflict" that "hasn't arisen yet." Second, Kenner's sister filed a bar complaint against trial counsel. In a letter dated March 31, 2017, the Virginia State Bar informed trial counsel that it had received an inquiry concerning him. The letter directed trial counsel to communicate with Kenner regarding the status of his case and to copy the Bar on all communications with Kenner in order to "try to avoid [the Bar] initiating a formal ethics inquiry."

         The circuit court, recognizing the motion to withdraw as essentially a motion to continue, denied the motion, but declined to "conclusively decide" whether the possibility that Robinson might become an adverse witness warranted a withdrawal in the future. However, on April 20, 2017, Kenner's trial counsel filed another motion to withdraw and a motion for a psychological evaluation. The circuit court granted the motion for a psychological evaluation to determine whether Kenner was competent to stand trial and continued the case until after the return of the evaluation.

         Trial took place on June 12-13, 2017. Prior to voir dire, the circuit court asked Kenner if he was satisfied with his counsel. Although Kenner replied that he was not because the subpoenas "came out late," trial counsel did not renew his motion to withdraw. At trial, the Commonwealth called twelve witnesses, including D.T., Dr. Meyer, Dr. Clayton, and FBI Special Agent David Desy ("Agent Desy").

         Agent Desy testified that the desktop found in Kenner's bedroom contained forty files of child pornography: thirty-eight images and two videos. Agent Desy described, generally, the content of those files for the jury. However, over the Commonwealth's objection, the circuit court refused to allow the photographs themselves to be presented to the jury. Similarly, the circuit court limited introduction of the video evidence. Despite its initial pretrial ruling that the videos themselves were admissible, the circuit court only allowed the Commonwealth to introduce the titles of the videos at trial. The titles included: "Fuck young naked nude little girl cum," "Toddler Fucked In Pussy," "10 yr fuck little girl," "Teaching sex to daughter," and "dad on daughter full penetration sex." The Commonwealth's evidence indicated that the files were downloaded, or attempted to be downloaded, between November 2014 and September 2015. Kenner did not request a limiting instruction with respect to this evidence, and one was not given.

         At the conclusion of the Commonwealth's evidence, Kenner called eleven witnesses, including Robinson. However, Robinson's testimony did not prove adverse to Kenner and trial counsel did not renew his motion to withdraw based on her testimony.

         The jury returned a verdict of guilty on all counts. The clerk read the verdict and asked the jury "so say you all . . . ?" to which all jurors appeared to respond affirmatively. The circuit court then explained to the jury that Virginia criminal trials are bifurcated, meaning the jury first determines guilt or innocence and then, if the jury finds the defendant guilty, further deliberations are required to determine a sentence. The jury was then excluded from the courtroom.

         Outside the presence of the jury, the circuit court requested jury instructions from the parties. The jury returned to the courtroom, received instructions on determining a sentence, and heard arguments from the parties regarding sentencing. During his argument to the jury regarding sentencing, for the first time, Kenner moved the circuit court to have the jury individually polled pursuant to Rule 3A:17 to ensure that the guilty verdict rendered in the guilt phase was unanimous. The circuit court denied that motion, and the jury retired to deliberate on sentencing. Kenner's trial counsel offered argument to support his motion. However, after detailing the posture of the trial by the time Kenner made the motion, the circuit court again denied the motion as untimely. The circuit court sentenced Kenner to life plus seven years, following the jury's recommendation. This appeal follows.

         II. ANALYSIS

         Kenner essentially argues on appeal that the circuit court erred in (1) admitting the evidence of child pornography found on his computer; (2) failing to permit his trial counsel to withdraw; and (3) in failing to permit a poll of the jury regarding their verdict.

         A. The Admission of Evidence of Possession of ...

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