David Louis Volpe v. Commonwealth of Virginia
1290153
| Va. Ct. App. | Dec 13, 2016Background
- David Volpe lived in a home where a neighbor family (with four children) temporarily stayed; one child, C.K., later reported that Volpe showed her a video of two young girls undressed and touching each other.
- Police executed a search warrant of Volpe’s residence and seized two laptops and several external drives; a digital forensics examiner found thousands of cached images consistent with child pornography on one laptop.
- Fourteen cached images were admitted at trial; two of those images had been moved into a folder (indicating affirmative user action), while the remainder appeared only in the computer’s temporary Internet cache.
- The cached images and link files were found under a password-protected user profile labeled “David”; Volpe acknowledged receiving emails containing child pornography and searches for “uncensored sex with girls” were found on his other laptop.
- The trial court struck twelve counts based on cached-only images for lack of evidence of knowing possession, but convicted Volpe on two counts (one first-offense and one second-or-subsequent-offense) based on the two images that had been moved to a folder; sentences were suspended.
Issues
| Issue | Volpe's Argument | Commonwealth's Argument | Held |
|---|---|---|---|
| Whether the Commonwealth proved possession on the indictment date given expert could not date when cached images were generated | Because the examiner could not determine when the cached images were created, the evidence fails to show possession on the charged date | Statute includes cached images as "sexually explicit visual material" when three or more cached images are present; presence in cache on charged date is sufficient regardless of when cached | Presence in the temporary Internet cache on the charged date satisfied the statutory definition; timing of generation was immaterial |
| Whether someone else could have generated/accessed images (constructive possession) | Other users had access to the computer and knew the password, so Volpe may not have had dominion or control | Images were in Volpe’s primary, passworded profile on his laptop in his home; admissions, search terms, and victim testimony tie use to Volpe | Evidence supported constructive possession—ownership, profile, admissions, search history, and victim testimony linked Volpe to the images |
| Whether there was sufficient evidence of knowing possession (mens rea) | Presence alone of cached images does not establish that Volpe knew images existed or exercised control over them | Two images were affirmatively moved to a folder and the expert testified those had been accessed after caching; this supports an inference Volpe knew of and exercised control over them | Sufficient evidence that Volpe knowingly possessed the two foldered images; convictions affirmed |
Key Cases Cited
- Collins v. Commonwealth, 65 Va. App. 37 (discussing appellate standard of review and view of evidence in light most favorable to Commonwealth)
- Robinson v. Commonwealth, 273 Va. 26 (appellate review principles for sufficiency of evidence)
- Kromer v. Commonwealth, 45 Va. App. 812 (constructive possession standard and mens rea inquiry for image possession)
- Kobman v. Commonwealth, 65 Va. App. 304 (presence of cached images as circumstance probative of possession)
- Chapman v. Commonwealth, 56 Va. App. 725 (statutory interpretation principles and threshold for cached-image convictions)
- Drew v. Commonwealth, 230 Va. 471 (possession requires awareness of presence and control over contraband)
- Maye v. Commonwealth, 44 Va. App. 463 (constructive possession principles)