THE CIRCUIT COURT OF NORTHAMPTON COUNTY W. Revell Lewis, III,
Farashahi (Afshin Farashahi, P.C., on brief), for appellant.
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
J. HUMPHREYS JUDGE
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.
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)).
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
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."
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.
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.
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."
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
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."
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
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 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.
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.
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.
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.
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.
The Admission of Evidence of Possession of ...