Ronnie Lee Johnson v. Commonwealth of Virginia, 0443202

Appellant Ronnie Lee Johnson and victim D.B. dated and lived together; Johnson recorded multiple videos of sexual activity in D.B.’s bedroom focusing on her naked or partially undressed body. D.B. appeared unaware of the recordings.
D.B. discovered recordings after the relationship ended when Johnson emailed her a video; she reported to police and testified she never consented to being recorded and alleged Johnson drugged her for one video.
The Commonwealth introduced several recordings: sexual videos, a recorded Skype call in which D.B. expressed concern about being recorded, and an argument in which Johnson admitted he had been recording their sex for over a year.
Johnson offered a purported written “consent” contract; the trial court rejected its authenticity. Johnson was convicted under Va. Code § 18.2-386.1(A) and sentenced to 12 months (six months suspended). He appealed.
On appeal Johnson argued the statute’s “reasonable expectation of privacy” element was negated because D.B. was knowingly nude and engaged in sexual activity in Johnson’s presence; he also relied on lack of dissemination and the rule of lenity.
The Court of Appeals affirmed, holding D.B. had a reasonable expectation of privacy against being recorded in her bedroom and that the statute does not require concealment or third-party dissemination.

Issue	Plaintiff's Argument (Johnson)	Defendant's Argument (Commonwealth)	Held
Whether being knowingly nude and engaging in sexual activity in another’s presence negates a "reasonable expectation of privacy" under § 18.2-386.1(A)	Being seen nude/engaging in sex with another removes any reasonable expectation of privacy; consent to be seen equals consent to be recorded	"Reasonable expectation of privacy" protects against being recorded (not merely seen); presence or knowledge of another does not automatically negate privacy	Court held expectation protects against creation of images; knowledge of another’s presence does not defeat the privacy interest and conviction affirmed
Whether the statute requires dissemination or viewing by third parties	No dissemination here—video only viewed by Johnson and D.B., so statute should not apply	Dissemination is not an element of § 18.2-386.1(A); creation alone is prohibited	Held dissemination is not required by the statute
Whether ambiguity requires application of the rule of lenity	Statute is ambiguous as to recordings made with knowledge of another; ambiguity favors defendant	Statute is unambiguous as written and targets creation of images; lenity does not apply	Held statute is clear and penal ambiguity/rule of lenity does not apply

Haba v. Commonwealth, 73 Va. App. 277 (interpreting "reasonable expectation of privacy" under § 18.2-386.1 and holding known presence does not automatically negate privacy)
Tanner v. Commonwealth, 72 Va. App. 86 (statutory construction requires giving effect to all language)
Groffel v. Commonwealth, 70 Va. App. 681 (discussion of gravamen of an offense)
Vasquez v. Commonwealth, 291 Va. 232 (standard for viewing evidence and drawing inferences on appeal)
Davis v. Commonwealth, 57 Va. App. 446 (trier of fact may disbelieve party testimony)