Kenner v. Commonwealth, 854 S.E.2d 493

In 2015 six-year-old D.T. lived with her cousin Angela Robinson and Robinson’s fiancé, Lenny Rock Kenner; after returning to her mother’s home D.T. reported Kenner had touched her genitals and forced her to watch sex videos.
Police executed a search warrant at the apartment and seized a desktop from Kenner’s bedroom; the desktop contained titles of numerous child‑pornography files (images/videos) downloaded or attempted between Nov. 2014 and Sept. 2015.
At trial the court excluded the actual images/videos but admitted the file titles (e.g., “6 year old fucked,” “Teaching sex to daughter”) over Kenner’s objection; no limiting instruction was requested or given.
D.T., a psychologist, and a pediatrician testified about the abuse, trauma, and Taser‑type marks; Kenner testified and denied the abuse and ownership/knowledge of the downloads.
The jury convicted Kenner of animate object sexual penetration, aggravated sexual battery, and custodial sexual abuse; after the guilt verdict Kenner requested individual jury polling but the trial court denied the request as untimely and imposed life plus seven years.
The Court of Appeals affirmed (2–1); the Virginia Supreme Court affirmed, holding the titles were admissible under other‑crimes exceptions and that a polling request must be made immediately after the verdict before the sentencing phase proceeds.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of child‑pornography file titles	Titles were relevant to show Kenner’s motive, lascivious intent, method, attitude toward the victim, and to corroborate D.T.; probative value outweighed prejudice	Titles were highly prejudicial, not probative of the charged acts, and did not corroborate D.T.’s testimony that Kenner showed adult pornography	Admitted: titles were relevant to lascivious intent, attitude, and corroboration; trial court did not abuse discretion; limited admission (titles only) permissible; portion of Blaylock inconsistent with this holding overruled
Timeliness of polling the jury under Rule 3A:17(d)	Polling was timely because the jury had not yet begun sentencing deliberations and the guilt verdict was not final until sentencing phase ended	Request was untimely because guilt phase is a separate proceeding that ends when the jury returns its verdict; polling must be requested immediately after the verdict is returned	Denied as untimely: in a bifurcated trial the guilt verdict becomes final when returned and polling requests must be made at that time; once sentencing procedures begin it is generally too late

Moore v. Commonwealth, 222 Va. 72 (1981) (other‑crimes evidence admissible to show conduct or attitude toward victim when defendant claims accident/misunderstanding)
Ortiz v. Commonwealth, 276 Va. 705 (2008) (pornography and related items admissible to corroborate victim’s account of events and behavior surrounding assault)
Blaylock v. Commonwealth, 26 Va. App. 579 (1998) (Court of Appeals decision limiting other‑crimes evidence; portion inconsistent with this opinion overruled)
Scott v. Commonwealth, 228 Va. 519 (1984) (defendant may not insist on sanitized proof when crimes are continuous and interwoven)
Rose v. Commonwealth, 270 Va. 3 (2005) (legitimate probative value of other‑crimes evidence must outweigh incidental prejudice)
Proffitt v. Commonwealth, 292 Va. 626 (2006) (abuse‑of‑discretion framework for evidentiary rulings)
Tyler v. Commonwealth, 21 Va. App. 702 (1996) (guilt verdict becomes final when jury has unanimously reached determination; sentencing is separate proceeding)
Daye v. Commonwealth, 21 Va. App. 688 (1996) (bifurcated trial separates guilt from sentencing to avoid corrupting initial determination of guilt)