MAJOR LANCE HILLMAN v. COMMONWEALTH OF VIRGINIA
Record No. 0287-17-3
COURT OF APPEALS OF VIRGINIA
APRIL 3, 2018
FROM THE CIRCUIT COURT OF CAMPBELL COUNTY, Jоhn T. Cook, Judge. Present: Judges Alston, Chafin and Malveaux. Argued at Salem, Virginia. PUBLISHED.
Matthew L. Pack (M. Pack Law, PLLC, on brief), for appellant.
Eugene P. Murphy, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Major Lance Hillman (“appellant“) was found guilty of use of a computer to solicit a minor, in violation of
I. BACKGROUND
The Offenses
Appellant was employed as the youth pastor at A.F.‘s church. Between August and December of 2015, A.F. sought out appellant for counseling because of prior sexual abuse. At that time, A.F. was fourteen yеars old and in the eighth grade. Appellant was twenty-two years old. To participate in the church‘s youth group, A.F. had to sign a medical release form which listed both her age and date of birth. This form was given to the church. A.F. never told appellant that she was older than fourteen, but did not specifically remember telling him her age.
A.F. and appellant began to communicate via text message and later through Snapchat.1 Several dated and time-stamped text messages recovered from apрellant‘s iPad show that on the evening of October 27, 2015, appellant asked A.F. if she used Snapchat, and asked her to “add” him to hers.
Via Snapchat, A.F. sent appellant a nude picture of her upper body, and in return, appellant sent her a nude picture of himself. Appellant also sent A.F. a picture of his erect penis. They also sent each other videos in which appellant was nude and A.F.‘s upper body was nude.
Evidence at Trial
Jason Sloan, an investigator with the Campbell County Sheriff‘s Office at the time of the offenses, testified that in addition to the text messages, he found photographs on appellant‘s iPad of a male subject with visible genitalia.2 The Commonwealth attempted to introduce these photographs through Sloan. Counsel for appellant objected on the ground that they were not properly authenticated. The court sustained the objection. The Commonwealth recalled A.F.
and asked her if she had received the photographs from appellant via Snapchat, to which A.F. responded in the affirmative. However, A.F. also acknowledged on cross-examination that during the period of time in which she and appellant were exchanging Snapchat messages, the application deleted photographs shortly after they were sent and they could not be saved. A.F. then testified that because the pictures were sent with Snapchat, the photographs she saw in court were not actually the pictures that were sent, but were just “similar.” Also on cross-examination, A.F. was asked whether the pictures were a fair and accurate representation of the pictures sent to her by appellant, and she replied “yes.” Counsel for appellant again objectеd to the introduction of the photographs, arguing that they still were not properly authenticated as the actual photographs sent to A.F. The trial court overruled the objection and admitted the photographs, specifically noting that A.F. had affirmed that the pictures were a fair and accurate representation of the photographs sent to her by appellant.
Investigator Dudley of the Campbell County Sheriff‘s Office testified that he interviewed appellant as a part of his investigation. Dudley testified that “[appellant‘s] story was just about the same as [A.F.‘s].” Dudley testified that during the recorded interview, appellant admitted sending A.F. naked photographs and videos, and also admitted to asking A.F. for naked photographs and videos, a request with which she complied. Appellant told Dudley that exchanging the photographs was a counseling technique he used to help A.F. deal with prior sexual abuse that she had revealed to him. When asked during the interview how old A.F. was, appellant responded “fiftеen I believe . . . fourteen, fifteen.”
Appellant was convicted, after a jury trial, of use of a computer to solicit a minor, in violation of
II. ANALYSIS
A. “Exposure” under Code § 18.2-370
On appeal, appellant argues that the trial court erred in finding the evidence sufficient to prove that he committed an act of exposure necessary for a conviction of taking indecent liberties under
Any person 18 years of age or over, who, with lascivious intent, knowingly and intentionally . . . [e]xpose[s] his or her sexual or genital parts to any child [under the age of 15 years] to whom such person is not legally married or propose[s] that any such child expose his or her sexual or genital parts to such person [is guilty of a Class 5 felony].
The appellate courts of Virginia have had numerous opportunities to examine the definition of “expose” under
In Farhoumand, 288 Va. 338, 764 S.E.2d 95, our Supreme Court reviewed several dictionary definitions of the word “expose” in an effort to discern whether the term “expose” as used in
Webster‘s Third New International Dictionary 802 (1993) defines expose as “to lay open to view” or “lay bare.” It also offers the definitions to “make known” or “set forth,” with the qualifying example: “[E]ach had started exposing his views.” The Webster‘s New College Dictionary 252 (3rd ed. 2008), defines “expose” as “to lay bare or uncover.” Merriam-Webster‘s Collegiate Dictionary 441 (11th ed. 2003), defines “expose” as “caus[ing] to be visible or open to view.” In The American Heritage Dictionary of the English Language 625 (5th ed. 2011), “expose” is defined simply as “to make visible.”
Id. at 343, 764 S.E.2d at 98. The Court concluded that each definition supported its holding that under
In this case, we find that the ordinary definitions of “expose” cited in Farhoumand support a finding that appellant‘s behavior constituted exposure under
However, appellant argues that his conduct failed to constitute exposure because prior case law has established that exposure under this statute must occur (1) in the physical presence of the victim, and (2) contemporaneous with this physical presence. Appellant
Physical Presence
In Holley, defendant lived next door to a woman who operated a daycare center in her home. Holley, 38 Va. App. at 160, 562 S.E.2d at 352. On several occasions, the daycare provider saw defendant standing naked at the glass doors at the back of his home. Id. Two parents dropping their children off at daycare also observed defendant standing naked behind his glass doors. Id. at 161, 562 S.E.2d at 352. After the daycare provider reported defendant to the police, a police officer conducting surveillance observed defendant naked at the glass doors, masturbating. Id. at 161, 562 S.E.2d at 352-53. On appeal, defendant argued that the evidence was insufficient for a conviction undеr
“in the ‘presence’ of the children.” Id. at 163, 562 S.E.2d at 354. This Court affirmed defendant‘s conviction, utilizing two cases in our analysis. Id. at 163-64, 562 S.E.2d at 354. In the first case, Siquina v. Commonwealth, 28 Va. App. 694, 697, 508 S.E.2d 350, 352 (1998), we considered whether a victim must actually see the genital parts in order for one to have exposed them. We concluded that this is not necessary, holding that
Appellant argues that Holley compels us to conclude that he did not “expose” himself under
probability exist[ed] that [defendant] might be seen by [the children].” Id. (quoting Siquina, 28 Va. App. at 699, 508 S.E.2d at 353). Further, while Siquina‘s holding includes the language “in the presence of a child,” that specific language does not reference a definition of “expose” under
This conclusion is further compelled by the other case cited in support by appellant, Brooker, 41 Va. App. 609, 587 S.E.2d 732. In Brooker, a police detective posed as a twelve-year-old girl named “Kim” while conducting computer online investigations. Id. at 611, 587 S.E.2d at 733. The detective, as “Kim,” had three separate text message conversations with defendant via an instant message internet chat room. Id. at 612, 587 S.E.2d at 733. During the first “chat,” defendant sent “Kim” two photographs of himself in which his genitals were exposed. Id. at 612, 587 S.E.2d at 734. During the second “chat,” defendant removed his pants and, by means
Our Court rejected these arguments, and in doing so relied upon the following principles:
Expose has been defined as “‘to put on show or display,‘” “‘to lay open to view,‘” “‘to display,‘” “‘to offer to the public view.‘” Siquina v. Commonwealth, 28 Va. App. 694, 698, 508 S.E.2d 350, 352 (1998) (citations omitted). “Exposure of [a] person becomes indecent when it occurs at such time and place where [a] reasonable person knows or should know his act will be open to observation of others.” Id. (citing Black‘s Law Dictionary 768 (6th ed. 1990)). “An indecent exposure must be either in the actual presence and sight of others, or in such a place or under such circumstances that the exhibition is liable to be seen by others.” Holley v. Commonwealth, 38 Va. App. 158, 164, 562 S.E.2d 351, 354 (2002) [(quoting Noblett v. Commonwealth, 194 Va. 241, 245, 72 S.E.2d 241, 243-44 (1952))].
Id. at 616, 587 S.E.2d at 735-36. Applying these principles, our Court found that the evidence demonstrated that defendant‘s behavior constituted exposure under the statute. Id. at 617, 587 S.E.2d at 736. We noted that defendant “twice transmitted to someone, whom he believed was a minor, live images of his genital parts by means of a computer and a web camera so that the minor could see [defendant‘s] genital parts at the time of the exposure.” Id. at 616, 587 S.E.2d at 736. Thus, it was reasonable to conclude from this evidence that appellant “knowingly and intentionally exposed his genitals to a person whom he believed to be a minor.” Id. Further, screenshots of the detective‘s computer screen, showing appellant‘s genitals and dated the same аs the instant message chat conversations between “Kim” and defendant, provided evidence from which the trial judge could conclude that “appellant knew that the exposure of his genitals in front of his activated web camera was ‘liable to be seen’ by the minor at the time of the exhibition because ‘Kim’ was engaged in an instant message internet conversation with appellant at the time of the displays.” Id. at 616-17, 587 S.E.2d at 736.
A review of Brooker clearly demonstrates that appellant is incorrect in his assertion that exposure must оccur in the physical presence of the victim; in Brooker, “Kim” and the defendant were in different cities at the time of the exposure. Rather, we hold that the central principle
concerning “presence” and exposure derives from the common law principle found in Noblett and quoted in both Holley and Brooker—“expose” under
In the instant case, we find that appellant did expose himself as required under
Contemporaneous Exposure
Appellant, relying on Brooker, further argues that the Commonwealth failed to prove that he exposed himself under
and in real time,” thus providing a requirement that exposure under the statute be contemporaneous with the victim viewing the explicit pаrts.
Contrary to appellant‘s contention, the facts in this case fall squarely within the reasoning of Brooker. Here, while the images were not shared “live,” we find that as in Brooker they were shared “at the time of the exposure.” As noted above, text messages entered into evidence show that during a two-hour period on October 27, 2015, appellant and A.F. discussed sending Snapchat messages to each other. The record of the text messages reflects that their conversation via text message occurred at the same time as their exchange of explicit Snapchat messages. At one point during their text messages, appellant asked A.F. if she had received his Snapchat message, and she responded in the affirmative within twenty seconds. We find that this evidence supports the conclusion that A.F. viewed appellant‘s genitals “at time of the exposure.” Brooker, 41 Va. App. at 616, 587 S.E.2d at 736.
B. Knowledge of the Age of the Victim Under Code § 18.2-374.3
On appeal, appellant also challenges his use of a computer to solicit a minor conviction under
“A verdict of the jury, upon which the trial court enters judgment, settles all conflicts of testimony in favor of the prevailing party and entitles that party to all just inferences deducible therefrom.” Hix v. Commonwealth, 270 Va. 335, 341, 619 S.E.2d 80, 83 (2005). “We view the evidence in the light most favorable to the Commonwealth, as the prevailing party, and will not set aside the verdict unless it is plainly wrong or without evidence to support it.” Id.
In order to convict a defendant of violating
Contrary to appellant‘s argument, there is sufficient evidence in the record to support the finding that appellant knew or had reason to believe A.F. was less than fifteen years of age. A.F. was fourteen and in eighth grade during the period in which the solicitation occurred. To participate in the church‘s youth group, she completed a medical release form setting forth her age and birthday and provided that form to the church. Appellant was the youth pastor at the church and A.F.‘s counselor there. A.F. testified that shе never told appellant that she was older than fourteen. Based upon this evidence, the jury could reasonably infer that appellant, as the youth pastor at the church, would have seen A.F.‘s medical release form and therefore
Additionally, in his interview with Investigator Dudley, appellant himself stated that appellant was “fifteen I believe . . . fourteen, fifteen.” The recording of this interview was
played for the jury, who, as the trier of fact, had the ability to determine what tone or emphasis appellant placed on each age. Here, the jury, sitting as finder of fact, was not plainly wrong or without evidence in its finding that appellant knew or had reason to believe that A.F. was fourteen.
C. Admission of Photographs
Finally, appellant argues that the trial court abused its discretion by allowing photographs found on appellant‘s iPad to be admitted without proper authentication. Appellant contends the Commonwealth failed to offer an adequate foundation for the admission of the photographs because A.F. testified that the photographs were only similar to those she received via Snapchat, and also that the Snapchat application deleted photographs after they were sent. Assuming without deciding that the trial court erred in admitting the photographs, we conclude any error was harmless.
We “will not reverse a trial court for evidentiary errors that were harmless to the ultimate result.” Shifflett v. Commonwealth, 289 Va. 10, 12, 766 S.E.2d 906, 908 (2015).
If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but slight effect, the verdict and the judgment should stand . . . . But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. . . . If so, or if one is left in grave doubt, the conviction cannоt stand.
Clay v. Commonwealth, 262 Va. 253, 260, 546 S.E.2d 728, 731-32 (2001) (quoting Kotteakos v. United States, 328 U.S. 750, 764-65 (1946)). An error is harmless “[i]f other evidence of guilt is so overwhelming and the error insignificant, by comparison, supporting a conclusion that the
error did not have a substantial effect on the verdict.” Angel v. Commonwealth, 281 Va. 248, 268, 704 S.E.2d 386, 398 (2011).
In the instant case, appellant admitted, on an audio recording entered into evidence, that he sent nude photographs and videos of himself to A.F. via Snapchat. A.F. testified that she received these nude photographs and videos. Text messages introduced into evidence showed appellant and A.F. communiсating about sending photographs via Snapchat to each other. As there was abundant evidence in the record demonstrating that appellant did in fact send photographs of his genitals to A.F., we can say that the erroneous admission of the nude photographs allegedly of appellant found on his iPad “did not influence the jury, or had but slight effect,” thus rendering the error harmless. Clay, 262 Va. at 260, 546 S.E.2d at 731.
III. CONCLUSION
We hold that the trial court did not err in finding sufficient evidence that appellant exposed himself under
Affirmed.
Notes
It is unlawful for any person 18 years of age or older to use a communications system, including but not limited to computers or computer networks or bulletin boards, or any other electronic means, for the purposes of soliciting, with lascivious intent, any person he knows or has reason to believe is a child younger than 15 years of age to knowingly and intentionally:
1. Expose his sexual or genital parts to any child to whom he is not legally married or propose that any such child expose his sexual or genital parts to such person . . .