835 S.E.2d 107
Va. Ct. App.2019Background
- Victim D.T. (6–7 years old) lived with Angela Robinson and Kenner; she later reported Kenner repeatedly touched her genitals, forced her to watch pornographic videos on his computer, and told her she would be his girlfriend.
- Physical and psychological examinations corroborated aspects of D.T.’s account: pediatrician noted marks consistent with a stun gun and psych. evaluator diagnosed PTSD and linked symptoms to the allegations.
- Police seized Kenner’s desktop (in his bedroom) and other devices; forensic evidence showed numerous child‑pornography files (titles indicating sex with minors) streamed/downloaded between Nov. 2014 and Sept. 2015.
- The Commonwealth sought to admit the child‑pornography evidence; the court limited admissibility to file titles and general descriptions (not the images themselves).
- Trial counsel unsuccessfully sought to withdraw (citing lack of time/resources and potential conflicts); Kenner was convicted on all counts and later moved to individually poll jurors during the punishment phase—motion denied as untimely.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of child‑pornography evidence | Evidence relevant to Kenner’s attitude toward the victim, intent/method, motive, and corroboration because files were on the same computer used to show videos to D.T. during assaults | Evidence was irrelevant, highly prejudicial, and admitted only to show propensity; probative value substantially outweighed by unfair prejudice | Affirmed. Court held titles/descriptions admissible as "other crimes" evidence (relying on Moore/Ortiz/Kirkpatrick) to show conduct/attitude, intent, and corroboration; probative value outweighed prejudice (no limiting instruction requested) |
| Denial of counsel’s motion to withdraw | Denial within court’s discretion because alleged conflicts were speculative and no actual conflict had ripened | Counsel claimed insufficient time/resources and two potential conflicts (Robinson may be adverse; a bar complaint) warranting withdrawal | Affirmed. No actual conflict demonstrated; ineffective‑assistance claims deferred to habeas/post‑conviction review rather than direct appeal |
| Denial of jury polling after verdict (Rule 3A:17) | Poll must be requested when verdict is returned in that phase; once sentencing phase begins the guilt verdict is final and polling thereafter is untimely | Kenner sought individual polling during sentencing to confirm unanimity of guilty verdict | Affirmed. Motion to poll was untimely—must be made before conclusion of guilt phase; verdict became final once sentencing phase commenced |
Key Cases Cited
- Moore v. Commonwealth, 222 Va. 72 (1981) (other‑crimes evidence admissible to show conduct/attitude toward victim, intent, or to negate accident/mistake)
- Ortiz v. Commonwealth, 276 Va. 705 (2008) (pornographic videos admitted to corroborate victim and negate mistake where victim testified defendant showed her movies)
- Blaylock v. Commonwealth, 26 Va. App. 579 (1998) (other‑crimes evidence not admissible to prove intent when intent is not genuinely in dispute)
- Kirkpatrick v. Commonwealth, 211 Va. 269 (1970) (other‑crimes admissible if connected with or leading up to the charged offense)
- Quinones v. Commonwealth, 35 Va. App. 634 (2001) (other‑crimes evidence requires a nexus to the charged offense to be probative)
- Cuyler v. Sullivan, 446 U.S. 335 (1980) (Sixth Amendment requires an actual conflict of interest that adversely affected counsel’s performance)
- Powell v. United States, 469 U.S. 57 (1984) (finality of a jury’s verdict once verdict is returned and accepted)