854 S.E.2d 191
Va. Ct. App.2021Background
- Defendant Terrence D’Juan Blackwell lived with Ketedria Archer; Archer discovered two videos on Blackwell’s phone showing her then-eight-year-old daughter nude or partially nude in her bedroom.
- The videos were surreptitiously filmed with the camera apparently placed under the child’s bedroom door; nothing in the videos suggests the child knew she was being recorded.
- Archer attempted to preserve the videos, encountered phone failures after confronting Blackwell, and later had one preserved copy sent to a friend; police obtained a warrant and forensic copies of the videos from Blackwell’s phone.
- At trial the Commonwealth introduced the videos and testimony tying them to Blackwell’s phone and access to the home; Archer and a friend testified and the trial court found their testimony credible.
- The trial court convicted Blackwell on two counts under Va. Code § 18.2-386.1, stating that an eight‑year‑old is, as a matter of law, a “nonconsenting person.” Blackwell appealed, arguing (1) age alone cannot establish “nonconsenting,” (2) evidence otherwise insufficient to prove nonconsent, and (3) insufficient evidence that he — rather than someone else — made the videos.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a person under 18 is per se a “nonconsenting person” under Va. Code § 18.2‑386.1 | Commonwealth: statute requires proof of nonconsent; trial court properly found nonconsent here (based on child’s age and facts). | Blackwell: age alone cannot establish nonconsent; trial court erred in treating minors as incapable of consent as a matter of law. | Court: Reversed trial court’s legal conclusion — minors are not per se nonconsenting; age alone is insufficient. |
| Whether the evidence (independent of the trial court’s age‑based statement) was sufficient to prove the child was a nonconsenting person | Commonwealth: videos show surreptitious filming (camera under door) and no indicia of the child’s awareness or assent, so a factfinder could find nonconsent beyond a reasonable doubt. | Blackwell: absent legal rule that minors cannot consent, Commonwealth failed to prove nonconsent. | Court: Harmless error — the totality (surreptitious filming, camera placement, child’s behavior) supported a rational factfinder’s conclusion that the child was nonconsenting. |
| Whether evidence was sufficient to prove Blackwell was the person who filmed the videos | Commonwealth: videos were on Blackwell’s phone; he had access to the home; his conduct (seizing/disabling Archer’s phone) permits inference of guilt. | Blackwell: someone else could have made the videos; no direct proof he filmed them. | Court: Evidence sufficient — possession of videos on his phone, opportunity, access, and evasive conduct supported conviction beyond a reasonable doubt. |
Key Cases Cited
- Gerald v. Commonwealth, 295 Va. 469 (standard of review: view facts in light most favorable to Commonwealth)
- Hannon v. Commonwealth, 68 Va. App. 87 (statutory‑construction standard: pure question of law reviewed de novo)
- Pijor v. Commonwealth, 294 Va. 502 (circumstantial evidence may establish consent/nonconsent)
- Brown v. Commonwealth, 284 Va. 538 (infer legislative intent from omissions between statutes)
- Prop. Damage Specialists, Inc. v. Rechichar, 292 Va. 410 (same term in different subsections given same meaning absent contrary intent)
- Jones v. Conwell, 227 Va. 176 (interpret statutes to give effect to every word)
- White v. Commonwealth, 293 Va. 411 (harmless‑error review principles)
- Neder v. United States, 527 U.S. 1 (harmless‑error framework)
- Turman v. Commonwealth, 276 Va. 558 (evasive or flight conduct may support inference of guilt)