829 S.E.2d 564
Va. Ct. App.2019Background
- In a bench trial, Dustin Allan Ele, Sr. was convicted of two counts of producing child pornography, aggravated sexual battery, and indecent liberties arising from videos and photos he recorded on July 31–Aug 1, 2015.
- Evidence seized from an external hard drive showed Ele masturbating near a sleeping nine‑year‑old girl (M.G.), ejaculating on her hair and leg, touching her with his penis, and taking close‑up images; Ele’s daughter was also asleep in the room.
- Exhibit Six (July 31) showed Ele masturbating while the children slept and included images of his penis near M.G.; Exhibit Seven (Aug 1) showed additional photos of her genitals and him masturbating near her while she slept.
- At trial Ele moved to strike the July 31 child‑pornography count (arguing M.G. was clothed) and the indecent‑liberties count (arguing she was asleep and he did not expose himself in public); the court denied the motions and convicted him on all counts.
- On appeal Ele challenged sufficiency of the evidence for the July 31 production charge and the indecent‑liberties conviction; the Court of Appeals affirmed.
Issues
| Issue | Appellant's Argument | Commonwealth's Argument | Held |
|---|---|---|---|
| Whether images from July 31 constituted "child pornography" under Va. Code § 18.2‑374.1 when the child was clothed/slept | Exhibit Six is not child pornography because M.G. was clothed and slept undisturbed | Images are sexually explicit because they depict Ele’s masturbation, ejaculation on the child, and lewd conduct with an identifiable minor as subject | Affirmed — statute does not require child nudity; images depict sexual conduct/sexual excitement/lewd exhibition by defendant and thus are child pornography |
| Whether indecent liberties (§ 18.2‑370) requires the child actually to see the exposure or that exposure occur in public | Insufficient because M.G. was asleep (didn’t actually see) and Ele did not expose himself in a public place | Actual viewing is not required; a reasonable probability the child could see the genitals suffices and public place is not an element of indecent liberties | Affirmed — reasonable probability M.G. could awaken and see him; public place not required for indecent liberties |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency of evidence)
- Ferber v. New York, 458 U.S. 747 (state interest in prohibiting child pornography)
- Osborne v. Ohio, 495 U.S. 103 (protecting minors from exploitation in child pornography laws)
- Foster v. Commonwealth, 6 Va. App. 313 (clothing of child photographs insufficient where no sexual conduct/excitement or lewdness)
- Sandoval v. Commonwealth, 64 Va. App. 398 (definitions of sexual conduct do not require victim nudity)
- Siquina v. Commonwealth, 28 Va. App. 694 (indecent liberties satisfied by reasonable probability victim could see exposure)
- Holley v. Commonwealth, 38 Va. App. 158 (reasonable probability standard applied where children could likely see defendant’s exposure)