Moyer v. Commonwealth

premises, she returned to the emergency room entrance give a ride to a colleague, a personal personal errand and a favor. While the commission held that the appellee performing an expected act by appellant, we find no evidence in the record to support the commission’s conclusion.1 There was no evidence that appellant encouraged ride-sharing carpooling or anticipated personal favors by its employees. Furthermore, no evidence in the proved record that appellant benefited from such activities. On the case, facts of this we find that appellant did not bear the risk of appellee’s injuries because the task that she was performing was not during the course of her employment. We, therefore, reverse the com- mission’s award of benefits to appellee.

Reversed and judgment. final

531 S.E.2d 580 Gregory Allen MOYER

v. Virginia. COMMONWEALTH of Record No. 2959-97-2. Appeals Virginia,

Court of

Richmond. July 2000. Findings 1. by of fact made binding appeal commission are on if they 65.2-706; supported by are credible evidence. See Code Arm- Elder, strong Furniture Va.App. 356 S.E.2d (1987). Finding no support evidence in the record to the commission's conclusion, appeal. we are not bound it on (Thorsen, Scher, L.L.P., Reilly

W. Marchant on Marchant & brief), Richmond, for appellant. (Mark L. Attorney General III, Assistant Jeffrey, E.

Donald briefs), for General, appellee. on Attorney Earley, BENTON, FITZPATRICK, C.J., and Present: BRAY, and ELDER, BUMGARDNER COLEMAN, JJ., COLE, Judge. HUMPHREYS, Senior and EN BANC A REHEARING UPON ELDER, Judge. in a trial bench was convicted Moyer (appellant) A.

Gregory minor liberties with indecent taking counts on fourteen contends he appeal, § 18.2-370.1. On to Code pursuant (1) seizure of police that erroneously ruled trial court the admis- warrant and to a search journals pursuant personal Fourth or not violate his into evidence did journals sion of (2) parts” are “sexual rights; buttocks Fifth Amendments (3) 18.2-370.1; § meaning Code within A of this panel his convictions. support sufficient was seizure and Court, judge dissenting, agreed with one Fifth Fourth and appellant’s violated of the diaries admission convictions, remanded reversed his rights, Amendment Commonwealth, 744, 520 Va.App. Moyer for retrial. See petition the Commonwealth’s granted We S.E.2d 371 of that decision. the mandate stayed en banc and rehearing for banc, not err the trial court did en we hold Upon rehearing (1) journals personal appellant’s seizure of police ruling jour- the admission to a search warrant and pursuant rights Fifth Amendments not violate his into evidence did nals subject good to the Amendment violation any Fourth (2) rule; are buttocks exclusionary to the exception faith 18.2-370.1; and meaning of Code within the parts” “sexual his convictions. (3) support sufficient the evidence was the trial court. Therefore, the decision of we affirm I.

BACKGROUND at Fork teacher science eighth grade was an Appellant (the County. in Fluvanna Academy) Academy Military Union He resided in an apartment located the middle school student barracks and served as a barracks supervisor. In 1997, Academy officials advised local and police state appellant may have abused one or more the Academy’s students. One official police told that he had appel- entered lant’s apartment to check a water leak. On two different occasions, he observed in appellant’s apartment photo- nude graphs depicting cadets, two named J.L. and H.L. Some of the photographs had been in appellant’s taken apartment. He journals observed several containing “information about ‘boys ” needing discipline and spanking.’ He also saw a “delinquen- cy report completed on ... grader, 11th [J.L.] ” consequences listed as ‘3 whacks on the bare behind’ and had information that J.L. had been seen leaving appellant’s bar- racks at p.m. 10:00 in violation of school rules. Academy had a written corporal punishment policy which provided that only the middle school commandant or headmaster could paddle middle school students. The policy also provided that such paddling could occur only while a student fully was clothed and required the parents’ written permission. The Academy that, official opined because appellant taught middle school, appellant’s relationship grader with 11th J.L. was “strange,” and he opined that appellant’s contact with an 8th grade student, which involved his constantly escorting the activities, student off-campus exceeded the “normal stu- relationship” and was “unhealthy.” dent/teacher Using information, this police obtained a warrant to search appellant’s barracks apartment. The warrant specifically list- alia, inter subject seizure, ed as “photographs ... depicting nudity “[wjritten sexual children,” activities involving and/or diaries) Getters, materials related to sexual conduct be- juveniles tween adults,” and “books ... and photographs depicting nudity sexual juveniles.” activities of and/or While executing warrant, Deputy Hogsten appellant’s scanned numerous journals handwritten looking for photographs and other materials specified in the Hogsten warrant. If observed an “explicit” photograph journal, journal he marked the and handed it Trooper Watson, who assisted with the immediately apparent photograph If no explicit search. if could find [he] scanned it see journal, Hogsten “[to] in a looking for.” [they] was in the warrant were anything that fashion, journals Hog- this reviewing appellant’s After all two fourteen volumes and left behind sten and Watson seized the seized Deputy Craig reviewed Subsequently, or three. portions which would be journals greater detail and decided used as evidence. taking counts of jury appellant

A indicted on sixteen grand minors, H.L. Appellant with two J.L. and indecent liberties diaries, argu- taken from his suppress excerpts moved to violated the Fourth Amend- ing that the seizure of the diaries also against general argued ment’s warrants. He prohibition violate his excerpts that admission of the into evidence would privilege against Fourth and Fifth Amendment self-incrimina- trial court motion. It that tion. The denied the held Fourth seizure of the diaries did not violate the Amendment that, had, but if it the warrant executing even the officers also that good acted faith. The court held admission of the diaries into not violate excerpts appellant’s evidence did At a privilege against self-incrimination. the conclusion of merits, on appellant trial the court convicted of fourteen of the sixteen counts.

II.

ANALYSIS States, Boyd United relies on Appellant the decision 616, 524, (1886), 116 U.S. 6 S.Ct. 29 L.Ed. 746 for the private journals that seizure of his to a proposition pursuant against compelled search warrant violated his self- privilege Boyd However, a incrimination. involved court order direct- ship- to a for a ing partners produce glass business invoice alleged payment ment to have been received without 617-18, 525-26; required import duty. See id. at 6 S.Ct. at States, Fisher v. United 391, 406-07, 425 U.S.

1578-79, 48 L.Ed.2d 39 It did not involve a search see two, Boyd purported Although equate warrant. to 527-28, Supreme 6 S.Ct. at the United States U.S. Fisher, Court’s decisions U.S. S.Ct. Maryland, Andresen v. S.Ct. (1976), they may equated. L.Ed.2d 627 indicate that not be self-incrimination compulsion potential The elements of pursuant that result from the of documents production not exist when the without assistance from subpoena police, do accused, voluntarily pur- take created documents existing, Therefore, appellant’s suant to a valid warrant. the seizure of their into evidence did not violate the diaries and admission Fifth Amendment.

Further, that search warrant assuming deciding without insufficiently particularized permit review diaries court’s entirety, supported in their the evidence the trial exclusionary rule finding good exception that the faith to the Amendment, Therefore, Fourth if applied. a violation of the occurred, require suppression one did not the diaries. trial Finally, support evidence was sufficient to court’s acted with lascivious intent as to finding appellant behavior in all appellant’s all fourteen convictions and instances within the of the statute. proscriptions fourteen fell

A. THE MOTION TO SUPPRESS UNDER FOURTH AND FIFTH AMENDMENTS hearing suppress, At a on a defendant’s motion chal proving has the burden of that the the Commonwealth constitutional lenged action did not violate the defendant’s Commonwealth, 200, 204, 380 v. 238 Va. rights. See Simmons (1989). 656, the appeal, 659 On we view evidence S.E.2d party, here the light prevailing the most favorable to the Commonwealth, fairly to it all reasonable inferences granting Grimstead, 12 v. deducible therefrom. See Commonwealth 47, 1066, 1067, are bound “[W]e 407 S.E.2d 48 Va.App. ‘plainly fact unless findings trial court’s of historical by the them[,] give and we due support evidence to wrong’ or without from those facts resident to the inferences drawn weight

17 v. local enforcement officers.” McGee Com judges and law (en (1997) monwealth, 193, 198, 259, 261 25 487 S.E.2d Va.App. banc) States, 690, 699, 517 U.S. (citing Ornelas United (1996)). However, we S.Ct. 134 L.Ed.2d 911 application legal review de novo the trial court’s of defined suspicion as and to probable standards such cause reasonable Ornelas, 699, facts of the case. at particular See U.S. at 1663. S.Ct. In Boyd, the 1886 case of unconstitutional, Supreme

United States Court held under Amendments, both the Fourth Fifth a duces subpoena and ordering Boyd tecum to partner produce partnership guilt failing pay invoice which established their for to an Fisher, import duty. See 425 U.S. at 96 S.Ct. at 1578. The Court noted the “intimate relationship between and, although [Fourth Fifth] [A]mendments” the records transactions, at issue partnership’s related business said it was “unable to perceive private that the seizure of a man’s books papers against be used evidence him is him substantially compelling different from to be a witness against Boyd, himself.” 116 U.S. at 6 S.Ct. at 534. As a result, it held that

a compulsory production private books and papers goods sought owner of be forfeited such a suit is himself, him compelling against to be a witness within the meaning Constitution, of the Fifth Amendment to the and is of a equivalent search and seizure —and an unreasonable search and seizure —within meaning of the Fourth Amendment. 634-35, 534-35;

Id. at S.Ct. see id. at 6 S.Ct. at 527- 28. in Boyd

The Court noted was autho- government rized to a person’s property “seize documents or other it claim a proprietary [if] [could] interest property superior to that of the from person whom the Fisher, property [was] obtained.” 425 U.S. at 96 S.Ct. at 528-29). (citing 623-24, Boyd, U.S. at 6 S.Ct. at articles” seize “excisable Also, to search for and it was entitled “entries authority and of the revenue had over which officers inspec- kept law to be for their required by in books thereof 623-24, at 528-29. Boyd, 6 S.Ct. tion.” 116 U.S. holding Boyd, as Court’s basic

Appellant argues that the or communica- that are testimonial private papers applied accused, has never possession in the tive and that are however, at issue the records Significantly, reversed. been documents, and “therefore its declarations Boyd were business protection Amendment[s’] regarding [Fourth Fifth] Doe, v. United States documents were dicta.” non-business Cir.1993). (2d F.3d is not Boyd’s application papers to non-business if

Even dicta, Court decisions delin- subsequent Supreme considered in this Boyd inapplicable it on which render eate clear limits Fisher, which involved a case of In the more recent case. ac- by an individual’s prepared tax documents subpoena for Court lawyer, him to his by transferred countant and Boyd: about following statement made the Boyd was understood pronouncements, Among its several otherwise, seizure, any under warrant or that the declare Amend- violated the Fourth evidentiary materials purely seized rendered these that the Fifth Amendment ment and inadmissible____ from the taken papers Private materials evidence,” not be used could like other “mere taxpayer, Fifth Amendment his Fourth and the accused over against objections.

Fisher, also 1579. The Court 96 S.Ct. at 425 U.S. at noted, however, that have implicit declarations Boyd’s express

[s]everal of the Fourth application the test of time. stood Henkel, Hale v. was limited subpoenas Amendment (1906), more 43[, 50 L.Ed. 652] 201 U.S. “nontestimonial”) (but ma- evidentiary Purely recent cases. instrumentali- terials, and fruits and well as contraband seized under crime, for and now be searched may ties of 294[, 87 Hayden, circumstances, Warden proper Also, any L.Ed.2d notion that 782] S.Ct. may never be seized and used “testimonial” States, with v. United 389 [Katz evidence is inconsistent (1967), 88 19 L.Ed.2d 576 and other U.S. S.Ct. cases], appropriate the seizure under circum- approving crime. person suspected stances of conversations of a of (citations 407-08, omitted); Id. at 96 S.Ct. at 1579 and footnote seizure, (permitting pursuant see Code 19.2-53 to search warrant, “[a]ny object, of or without thing, person, including limitation, documents, books, records, fluids, body or papers, crime”). evidence of the commission of constituting significantly meaning The Court also limited the of compul- Amendment, sion Fifth holding under that where “the preparation sought [by of all the ... was papers subpoena] ... wholly voluntary, they cannot be said to contain compelled 409-10, Id. at (empha- testimonial evidence.” S.Ct. Andresen, added); 2745; sis see 427 U.S. at 96 S.Ct. at States, see also Couch United U.S. S.Ct. (1973) (in 611, 616, 34 involving subpoena L.Ed.2d case accused, accountant for tax of stating “divulgence records information, of ... possibly incriminating where it does herself, not from suspect necessary result coercion of the is a of of part process investigation”). law enforcement and tax proposition protects pri-

The the Fifth Amendment compelling vate information obtained without self-incrimina- ting testimony contrary is to the clear statements of this Court that under incrimina- appropriate safeguards private ting may statements of an accused be overheard and used in evidence, they if are not at the time compelled they were If protected generally uttered.... the Fifth Amendment information from a man’s against obtaining private of house, pen protections presumably mouth its would by probable not be lifted cause and a warrant or immuni- ty. privacy mitigated by immunity; invasion is not Fourth’s, strictures, the Fifth Amendment’s unlike the are by showing not removed reasonableness. The Framers subject privacy directly of in the personal addressed the so that when They Fourth Amendment. struck balance reason to incriminating State’s believe evidence will be great, found of sufficiently privacy becomes the invasion justified becomes and a warrant to search and seize will They in still issue. did seek another Amendment —the general protection Fifth —to achieve a of but to privacy deal specific compelled the more issue self-incrimination. We cannot cut the Fifth Amendment completely loose from moorings language, its and make it serve as a general protector privacy word not mentioned its —a a concept text Fourth directly addressed Amend- ment. adhere to view Fifth We that the Amendment self-incrimination, protects against “compelled not [the dis- private of] closure information.” Fisher, (citations 400-01, 425 U.S. at 96 S.Ct. at 1575-76 omitted). Therefore, documentary the case of a subpoe- “[i]n only na thing compelled the is the act of producing the document1 and the act compelled is the same as the one performed when a document by chattel or not authored producer 410 n. is demanded.” Id. at at 1580 n. 11 S.Ct. (footnote added); Doe, see also United States v.

610-12, 1241-42, (1984) (ex- L.Ed.2d to tending Fisher hold that Fifth not protect Amendment does contents of an tax possession). individual’s records his Fisher Although subpoena records, dealt with a for business compulsion its statements to or regarding prepare create the do not distinguish documents between business records and records, private or we personal legitimate discern no basis for such a making distinction. Either the of a preparation "[c]ompliance subpoena tacitly 1. The noted Court with the con- papers possession cedes the existence of the demanded and their [person producing control It would also indicate the them]. [producer’s] papers subpoe- belief that the are those in the described Fisher, na.” 425 U.S. at S.Ct. at 1581. It that ”[t]he reasoned clearly present, compulsion elements of are but that more difficult [producer] issues are whether the tacit averments of the are both ‘incriminating’ purposes applying for ‘testimonial’ the Fifth ” Id. It Amendment.’ concluded resolution these "more likely "depend[ed] difficult issues” on the facts and circumstances of particular Id. cases classes thereof." not, document was or it was of its compelled regardless LaFave, classification as private. Wayne business or See R. (3d ed.1996). 2.6(e), result, Search and Seizure at 611 As a diaries, appellant’s prepared voluntarily, which were not are protected by the Fifth privilege against Amendment self- them, appellant incrimination unless to compelled produce then, only the act of production and the contents of protected. the diaries would be

Further, the Court compulsion has held that which results an when accused is required produce documentary pursuant evidence to a subpoena does not exist when law personnel enforcement instead seize the pursuant Andresen, a valid search warrant. 473-74, See 427 U.S. at 2745; LaFave, S.Ct. at see also 1 supra, at 612. The Court noted in Andresen that

although the Fifth may Amendment protect an individual from complying with subpoena a for production of his personal records in possession because very act of production may compulsory constitute a authentication of information, incriminating States, see Fisher v. United su- pra, seizure of the same materials by law enforcement officers differs in a crucial respect individual against —the whom the search is required directed is not aid discovery, production, or authentication of incriminating evi- dence.2

Andresen, 473-74, (footnote 427 U.S. at 96 S.Ct. at 2745 added); see also id. at 470 n. 96 S.Ct. at 2743 n. 5 (noting conflict in federal appeals courts of on issue of whether documentary evidence not by subpoena obtainable may never- theless be pursuant obtainable to a search warrant and indi- cating that circuits, substantial of majority with along Profes- sor Wigmore, Therefore, hold that it may). of risk “[t]he authentication is not present where the documents are seized Andresen, Fisher, records, Although 2. like involved business the Court specifically personal Andresen discussed records and the difference subpoena between their and seizure. 22 Id. 7, 96 to a warrant.”3 at 473 n. S.Ct. at

pursuant search see id. 7; 473, (noting at that 2745 n. S.Ct. this is in with the is approach keeping principle party “‘[a] not from its producing pro- from the evidence but privileged States, ”) v. United 457, Johnson (quoting duction’ (1913)). 572, 33 S.Ct. 57 L.Ed. as private through Insofar information obtained com- self-incriminating testimony legally protected, is its pelled stems Fourth protection from other sources —the Amend- prob- or protection against ment’s seizures without warrant cause and suffer from “too against subpoenas able which required things much indefiniteness breadth to be ” described,’ such ‘particularly evidentiary privileges attorney-client privilege. Fisher, (citations 425 U.S. at at 1576 and footnote S.Ct. see also omitted); id. (citing at 401 n. at 1576 n. 6 S.Ct. Couch, a subpoena U.S. which involved for of and in to an accountant tax records the accused which protected by between the things the Court “differentiated “ Amendments,” Fifth noting Fourth and ‘there of legitimate expectation privacy [the no Fourth exist[ed] governmental compul- claim] and no semblance of Amendment person accused Fifth against sion of the Amendment [the ”). claim]’ reasons,

For nor admission into these neither seizure his Fifth Amendment appellant’s diaries violated This against self-incrimination. conclusion privilege compelled however, not, resolve the issue whether seizure does under the Fourth Amend- diaries appellant’s was reasonable ment. The Court in Fisher noted that attorneys not raised taxpayers argu- and their have

[t]he this Court of a Fourth Amendment nature before ments J.L., Here, appellant’s were authenticated who testified that 3. diaries kept journal, appellant daily write in on a appellant which tried to handwriting, familiarity appellant’s J.L. testified to his basis. diaries, appellant’s handwriting indicated that he identified journals. appellant appellant's appeal, On does not also had written challenge directly authentication diaries. not be successful if they could had. The summonses are narrowly drawn and seek only unquestionable documents of relevance to the tax investigation. Special problems of privacy which might presented by be subpoena person- aof diary al are not involved here. added).

Id. at 401 Thus, n. 96 S.Ct. at 1576 n. 7 (emphasis issues, the Court made clear that constitutional if privacy any, associated with subpoenaing personal one’s in- diary would volve Fourth Amendment rather than Fifth Amendment pro- tections.4

Appellant contends the seizure of his diaries was unreason- able under the Fourth Amendment and violated that amend- particularity ment’s requirement. follow, For the reasons that we hold that the trial court’s appellant’s denial of suppression motion also did not violate the Fourth Amendment. Amendment,

The Fourth designed to protect against seizures, unreasonable searches provides that “no war issue, rants shall but upon cause, probable supported by oath affirmation, and particularly describing place to be searched, and the persons or things be seized.” U.S. Const. amend. IV. Similar in Virginia’s mandates exist Constitution I, 10; (“no statutes. See Va. § Const. art. Code 19.2-54 general warrant for house, the search of a place, compartment, issued”). vehicle or baggage shall be objective The “distinct [of warrant requirement] is that those searches deemed necessary should be as possible”; limited as it is intended to prevent general, “a exploratory rummaging a person’s belongings.” Coolidge v. Hampshire, 443, 467, New 403 U.S. 29 L.Ed.2d 564 long

So as the “search warrant objects describe[s] search with reasonable specificity,” it complies with the dictates of the [F]ourth [A]mendment. The determination 4. It also noted its earlier question "reserv[ation of] 'whether there are items of very precludes evidential value whose nature them from ” being object Fisher, of a reasonable search and seizure.’ 302-03, at 407 n. 96 S.Ct. at (quoting Hayden, 1579 n. 9 387 U.S. at 1648). 87 S.Ct. at requisite degree of possesses the warrant

whether requires case-specific specificity necessarily fact-specific, However, warrants that limit the execut- analysis. search only seize by directing them to ing officers’ discretion to specific consistently of a crime have been held evidence of the satisfy particularity requirement [F]ourth [AJmendment. Commonwealth, 496, 500-01, Va.App. 14 419 S.E.2d

Morke v. (citation (1992) omitted). 410, 413 which, exclusionary judicial The rule is a creation under circumstances, in violation prevents certain evidence obtained being into rights of Fourth from admitted one’s Amendment him against prosecution. in a criminal See Common- 744, 681, 750, 12 407 S.E.2d 685 Ealy, Va.App. wealth v. Leon, 897, 3405, In v. S.Ct. [United States (1984)], Supreme held L.Ed.2d 677 the United States Court to a war- pursuant of evidence obtained “suppression only only a basis case-by-case rant should be ordered on in in will further the those unusual cases which exclusion rule.” The purposes exclusionary Supreme of Court to exclusionary rule is deter designed also stated “the police is not when present misconduct....” This deterrent faith, officer, a acting objective good a obtains police a a search magistrate search warrant from and conducts of the warrant. have embraced and scope within the We exclusionary to the rule. applied good exception faith Commonwealth, 498 S.E.2d Polston 255 Va. (1998) Leon, 916, 918, 104 at 925-26 468 U.S. at S.Ct. (quoting 3418) omitted). (other citations deterring of miscon keeping goal police

In with the duct, remedy if the appropriate an

“[suppression remains issuing warrant was misled magistrate judge the affiant knew was false in an affidavit that information except for his reckless disre- known was false would have truth____ exception apply ... will also gard in cases issuing magistrate wholly where the abandoned his judicial circumstances, role.... such no reasonably [I]n well trained officer rely should on the warrant. Nor would an officer objective good manifest faith in relying on a warrant based on an lacking affidavit ‘so indicia of probable cause as to render official belief its existence unreasonable’____ entirely Finally, on the cir- depending case, particular cumstances may a warrant be so i.e., facially in failing particularize place deficient — be searched or the things be seized —that the executing officers cannot reasonably it presume to be valid.” Leon, Id. at S.E.2d at 926 (quoting 468 U.S. at (citations omitted)). S.Ct.

Regardless warrant, validity the search the diaries seized from appellant’s apartment were admissible in entirety their good under the faith exception.5 The warrant legal principles provide 5. Settled premises that lawful “[a] search of described in a warrant 'extends to object[s] the entire area in which the ” Commonwealth, may Kearney the search be found.’ v. Va.App. 202, 205, (1987) Ross, 355 S.E.2d (quoting United States v. 798, 820, U.S. (1982)). 102 S.Ct. 72 L.Ed.2d 572 ‘"[A] may search reasonably required be as extensive as to locate the items ” (citation omitted). described in the warrant.’ Id. "A warrant [premises] search a support would every part a search of of the [premises] Ross, might that object contain the of the search.” 456 U.S. at police S.Ct. at 2171. lawfully engaged While the are in search, plain such a the applies, they view doctrine may any and seize "immediately item if it is apparent” may that the item be evidence of a crime, contraband, subject Coolidge, otherwise to seizure. 2038; Commonwealth, at 91 S.Ct. at Va.App. see Ruffin 208-09, 409 S.E.2d 178-79 minimum, At a specific enough the warrant permit police the to conduct a appellant’s apartment detailed ”[p]hoto- search of for movies[,] slides, graphs, videotapes, negatives, undeveloped film and/or depicting nudity involving sexual activities children ... and/or (victims offenders).” identify would tend to Academy and The official that, whose support observations were used to the warrant stated on occasions, separate two appellant’s he had Academy apart- observed in photographs ment nude Academy of two named students. The warrant authorized a search photographs, police for certain and the were any authorized to apartment search area photo- of the in which the Ross, graphs might reasonably be found. See 456 U.S. at photographs 2171. Because were items which could have alia, seizure, subject “[photo- listed inter specifically ... graphs depicting nudity involving sexual activities and/or “[wjritten diaries) (letters, children,” materials related to adults,” juveniles conduct between and and “books ... sexual nudity activities of photographs depicting and sexual and/or specifically police that the juveniles.” trial court found executing for reviewing officers the warrant the evidence faith, in good trial acted and we discern no evidence which the trial court’s finding. record contradicts does and no a Appellant allege supports finding magistrate that the was misled information false addition, In nor the affidavit. neither warrant affidavit reasonably rely was so deficient that no trained officer should accompanying on it. The affidavit warrant recited the Academy official of the middle charge statements apartment school that he observed appellant’s twice had students, photos of two some which had been taken in nude occasions, appellant’s barracks On of these apartment. one Academy journals several containing official observed ‘boys needing discipline spanking.[’]” “information about on ... 11th “delinquency report completed He also saw [J.L.], consequences with as ‘3 whacks on grader, listed ” behind’ information that had been seen the bare and had J.L. p.m. at 10:00 in violation of school leaving appellant’s barracks that, Finally, Academy official because opined rules. school, taught appellant’s relationship appellant middle contact “strange” appellant’s 11th J.L. was grader student, which his grade constantly with an 8th involved fact, and, diaries, police appellant’s acted rea- in were—in been — photographs sonably leafing through like the diaries search of Further, leafing through those described diaries, the warrant. while plain they permitted any to which the were to seize other items illegal applied. example, police if the had found view doctrine For diary, the introduction of drugs pages between the seizure and drugs This into evidence would not violate Fourth Amendment. diary any written if it principle apply passage of same would likely particular passage "immediately apparent” that a was became subject crime to seizure. evidence of a or was otherwise activities, exceeded the escorting off-campus the student relationship” “unhealthy.” “normal and was student/teacher Assuming deciding without that this information was insuffi diaries, a of it permit line-by-line appellant’s cient to search magistrate executing deficient that the or officers was so should have known it was invalid. See Janis v. Common wealth, 22 Va.App. (holding 472 S.E.2d objective of determining probable reasonableness belief affidavit”), “solely reh’g cause must be based on the on en aff'd banc, 481 S.E.2d 473 As discussed Va.App. above, or existing case law does not make clear whether under what circumstances the Fourth the sei permits Amendment zure and introduction into diaries. As a personal result, good exception exclusionary faith to the rule ren proper challenged dered the admission into evidence of the Therefore, portions appellant’s we affirm the trial diaries. court’s of appellant’s suppress. denial motion to

B. SUFFICIENCY OF THE EVIDENCE TO

PROVE LASCIVIOUS INTENT provides Code 18.2-370.1 as follows: Any person eighteen years of or age older who maintains supervisory relationship custodial or over a child under the age who, intent, ... eighteen, with lascivious know- (iii) ingly intentionally exposes ... his or her sexual or (iv) child, genital parts to such proposes any such child expose genital parts her sexual or to such person, guilty felony. shall be of a Class 6 Appellant was convicted of violating quoted portion of the occasions, statute on in- separate fourteen eleven of which (Indictments 97F57) volved J.L. 97F46 and 97F48 to and three (Indictments 97F63). 97F59, of which involved H.L. 97F62 and Appellant testimony appellant contends that the of J.L. that sexually during aroused some of their encounters is that, inherently incredible testimony, without this 28

evidence is insufficient to prove lascivious intent toas eleven convictions involving Appellant J.L. also contends that H.L., because in testifying Commonwealth, for the denied that appellant any signs showed of sexual during arousal their contact, the Commonwealth’s evidence also is insufficient to prove appellant acted with requisite lascivious intent as to the three convictions involving H.L. We hold that sufficient evidence of supports intent all fourteen convictions. review,

Under familiar principles of appellate we must examine light the evidence most favorable to the Commonwealth, to' it granting all reasonable fairly inferences Commonwealth, deducible therefrom. v. See Martin 4 Va. 438, (1987). 443, 415, App. 358 S.E.2d 418 In assessing witness credibility, the fact may accept parts finder of a witness’ it testimony reject finds believable parts other Commonwealth, implausible. Pugliese 82, See 16 Va.App. (1993). 92, 16, 428 S.E.2d 24 The conclusions of fact finder on issues of witness credibility “may only be disturbed on if appeal this Court finds that ... testimony [the witness’] incredible, or ‘inherently contrary so to human experience as ” it unworthy render of belief.’ Robertson v. Common wealth, (1991) Va.App. (quot 406 S.E.2d Commonwealth, ing 299-300, Fisher v. 228 Va. 321 S.E.2d (1984)). 202, 204 These same principles apply to the testimo ny Street, of both expert lay witnesses. See Street v. 380, 387-89, (1997) (en banc). Va.App. 488 S.E.2d 668-69 required

The mental state to support appellant’s convictions is one of lasciviousness. See Code 18.2-370.1. “[T]he word ‘lascivious’describes a state of eager mind that is for sexual indulgence, inciting desirous of to lust or of inciting Commonwealth, sexual appetite.” desire and McKeon v. Va. 175 S.E.2d Court Supreme has recognized that circumstantial evidence of lasciviousness may include “evidence that sexually defendant was aroused; gestures that he made ... himself or to [the toward victim]; victim]; improper that he made remarks to [the or that anything wrong.” he asked to do Id. [the victim] is entitled to as competent evidence is as “Circumstantial evidence, sufficiently it provided much as direct is weight that every hypothesis except to exclude reasonable convincing Commonwealth, 31, 53, Coleman v. guilt.” Va. S.E.2d

Here, sup circumstantial the direct and trial that acted with ported finding appellant the court’s hypotheses lascivious and all reasonable intent excluded evidence, in light innocence. The viewed most favorable Commonwealth, began to the established that rela appellant two in tionships they with the victims when were students his eighth illegal science class and that he grade engaged them, behavior with on at least fourteen different separately, years. occasions over the course of two Academy a written corporal punishment policy had which that school provided only the middle commandant headmaster could school students. The paddle policy middle also that such provided paddling only could occur while fully student was written required parents’ clothed and permission.

Despite policy, this after and J.L. became close appellant friends, to not turn appellant suggested J.L. he would J.L.’s demerits over to the if to agree commandant J.L. would allow appellant paddle J.L. on the buttocks as an alternate form of punishment. Appellant initially paddled J.L. while clothed, early February appellant J.L. was but in told J.L. he on ass.” would administer the “whacks” “the bare Appellant paddled J.L.’s bare buttocks and documented the thereafter, in his paddling diary. Shortly appellant proposed paddle that J.L. on bare buttocks. J.L. appellant appellant’s so, appellant again did documented the incident his diary.

Similar events occurred on or about March March documenting March appellant paddlings occasions, his on each occasion. of these diary On each nude, totally and the person being paddled partially being paddled two followed a ritual requiring person turn after paddling each to face and person salute the adminis- tering paddling. Appellant’s diary entries for these days a preoccupation indicate with the fact that paddling ren- his “sore,” dered or J.L.’s “ass” “bare” and and he described “a large red welt” that developed on J.L.’s buttocks and the “pain ... face” while appellant [J.L.’s] administered the paddling. Appellant also wrote that “psyched” he was “bare his ass [own] to the wrath of and told [J.L.]” J.L. one of paddlings “barely hurt” and that J.L. had “better make it worthwhile.” thereafter,

Sometime at appellant’s suggestion, appellant and J.L. formed a secret society, and appellant obtained for his car personalized license plates that bore society’s acronym. They designed a events, series of initiation all involving nudity, appellant documented the preparation and actual events with photographs diary and detailed entries. that, J.L. testified during event, the tree-climbing nude appel- lant asked J.L. to shine flashlight on appellant, and J.L. noticed that appellant “was half aroused.” During another event, appellant tied J.L. up and used his hands cover J.L.’s entire body, including his genitals, with shaving cream. When it was J.L.’s turn to tie appellant up and coat him in shaving cream, J.L. used a newspaper spread shaving cream on appellant’s genitals because them, he did not want to touch and he that noticed an appellant had erection at that time. Appellant subsequently wrote of their being “brothers” who will “share without asking and without giving. tak[e] first We will be like one.” When appellant reflected on that night years by about two rereading journal, later he noted that “night was fantastic and one that I will never forget.” On at least six occasions during grade J.L.’s ninth year, appellant and engaged J.L. in additional acts of nude buttocks paddling, wrestling nude and the like. On two occasions in 1994, November appellant ass,” paddled J.L. on “his bare purportedly discipline him for smoking. On the latter date, November appellant wrote that fight he “had to [J.L.] for it” to hit “ma[de] sure different so no spots part 26, ass was left unred.” On January appellant [J.L.’s] did not birthday [appellant’s] sure J.L. “made that observed on thirty times over unrewarded,” appellant by paddling by go appel- when February On buttocks. bare appellant’s “shaving cream mood, repeated J.L. a bad lant was sore red and ass was that “[his] wrote Appellant torture. fan” suffer- naked and there “hanging but beatings” from the day.” On up [his] pain livened epitomy [sic] ing on inflicted same “torture” 13, 1995, appellant February of nude with a “bout” the events J.L., two ended and the appellant’s returned to J.L. February wrestling. On wrote Appellant mind.” on his vengeance “with apartment “a severe and received up” tied was “naked and appellant beating.” documented early

During late 1995 and appellant H.L. H.L. named a former student three encounters with n visited Dakota, was work- appellant where in North appellant visit, H.L.’s during point summer. At some ing for the had formed society appellant discussed the secret briefly two butte.” top to the of a naked They also “hiked with J.L. as a student Academy to the H.L. did not return Although in contact remained appellant he and in the fall of during times other several and saw each phone letter and the Acade- appellant H.L. visited In December fall. 16, appellant On December birthday. H.L.’s my to celebrate apartment asleep appellant’s that H.L. was still wrote to leave everyone [the for H.L. “anxious knew that he alone with time quality some spend so he could Academy] wa- visit, and they played poker During H.L.’s [appellant].” they money. Then rather than paddle with the gered whacks paddled appellant’s in front of dresser nude each stood “sore.” The “red” and until their “asses” were each other pro- repeated paddling they showered and morning, next paid.” “until all debts were cess 1996 for February in late again appellant H.L. visited main “[o]ne said that birthday. Appellant appellant’s card birthday [appellant] to give came was reasons [H.L.] ass.” On bare [appellant’s] he paddled but not before night of February appellant showered and stood nude front of his dresser to receive his first ten paddlings. Appel- lant movie, and H.L. then watched a after which H.L. adminis- tered the second ten paddlings. Appellant wrote that second ten “really hurt so just stayed [he] naked the rest of night to cool off ass.” [his] The next morning, February 25, appellant woke H.L. so that H.L. could administer the last whacks, ten which “[appellant’s] left ass aflame pain.” Appellant him then administered one whack to keep H.L. “to honest until we again.” showered, see each other H.L. stood naked in dresser, front of appellant’s “[appellant] whacked his ass much harder than usually.” Appellant wrote of the weekend, paddled my

[H.L.] bare ass and beat me in wrestling but we great had a together. time I miss him already. Whether it be his playing guitar or late night personal conversa- tions, he is a pleasure to have around. I am already looking weekend____ forward to the next It always great is to have spend [him] the weekend I cannot wait until the next time.

During July again H.L. visited appellant North Dakota through and went shaving cream and other rituals in order to be initiated into the secret society.

In trial, at testifying appellant admitted that the relation- ships developed he with J.L. and H.L. were “bizarre” and “wrong,” although he they denied that any involved sexual purpose or intent.

The evidence supports the trial court’s findings that appel- lant committed these acts with J.L. and H.L. with lascivious intent. Although appellant challenges testimony J.L.’s inherently incredible, we cannot conclude his testimony was incredible aas matter of law. The trial court heard J.L. testify and testimony heard from various other witnesses attacking credibility, J.L.’s but it chose to believe the testimo- ny corroborated, of J.L. which was in part, by least appellant’s journal Although entries. any the evidence of offense, particular alone, standing might be insufficient intent, appellant’s lascivious appellant that acted with establish adult model position as an role using course of conduct close personal of J.L. H.L. and establish gain to the trust diary them, accounts coupled with with detailed relationships other encounters appellant’s repeated paddlings nude testimony that appellant the of J.L. with these children and him, of J.L.’s encounters with sexually during was aroused two acted the finding that with support appellant is sufficient to genital his sexual or exposing lascivious intent requisite they expose that their sexual parts boys proposing to both trial court that this genital to him. The determined parts evidence, from only hypothesis flowing was the reasonable in so finding. did not err it and we hold that

C. § CODE 18.2-370.1 CONSTRUCTION OF an Appellant challenge to five his convic- poses additional 97F46, 97F52, tions, 97F48, 97F50 Indictments under all of which involved He contends that evidence J.L. most, exposed, and he proved, at “bare buttocks” were ruling, court’s that “bare but- argues, contrary the trial parts” meaning tocks” not constitute “sexual within do Furthermore, of Code he contends the admission 18.2-370.1. case in of evidence of buttocks “tainted entire paddling this that the Trial Court heard and considered all of the considering other indictments.” specifically The trial court found that buttocks are parts parts meaning but are within the genital sexual instances, that, appellant statute. It also held in at least some nude such that the exposure and J.L. faced each other while therefore, and, within involved as well as buttocks fell genitalia follow, we For the reasons proscriptions. the statute’s convicted within appellant hold that the acts for which fell proscriptions statute. First, statements, court’s keeping trial five challenged two of the support evidence is sufficient to parts; of whether buttocks are sexual regardless offenses 97F51, sufficient to 97F50 and the evidence was indictments genitalia exposed. establish that also were entries, in diary appel- demerit sheet and both Appellant’s routine followed on handwriting, lant’s make clear that the 97F49, 1994, 2, which was covered indictment was March naked, totally that “had to down and after each strip J.L. whack, on [appellant].” Appellant turn to salute concedes charged and we that the evidence of the events appeal, agree, to that appellant in indictment 97F49 was sufficient establish on March expose genitals appellant J.L. his to proposed 1994. 97F50, indictment which covered

Regarding challenged 4, 1994, that appel- events of March the evidence establishes to proposing report appellant’s lant J.L. a note that J.L. wrote on ass” while nude and for “3 whacks bare apartment [the] be the same as on March 1994. that the routine would J.L., fact, ... six diary that “received Appellant’s indicated it whacks” while nude and that routine was the same” as “[t]he 2,1994. Therefore, had been on March because routine “[t]he 4, 1994, appellant same” on March when administered was the 97F50, the whacks associated with indictment the evidence finding appellant proposed a the routine supports 4, 1994, genital on March involved the same administered exposure. 97F51, involving apply

These same facts indictment finding a supports of March 1994. The evidence events that, date, genitals appellant exposed on or about himself, proposing for up slip wrote a demerit Appellant J.L. When J.L. appellant. that J.L. two whacks administer whacks, nude and had to turn appellant administered him. to J.L. and salute

Furthermore, statutory under established rules of § construction, as used Code 18.2- parts” the term “sexual us to urges necessarily Appellant includes buttocks. 370.1 in Code 18.2-370.1 parts” the term “sexual as used construe However, settled “genital parts.” being coextensive

35 an interpre- such statutory prevent construction of principles tation. in a is a statute when word

Ordinarily, particular ordinary meaning. its therein, it give a court must defined Commonwealth, 24, 27, 175 v. S.E.2d See McKeon 211 Va. “ statute, Virginia ‘[t]he In a Code interpreting law, sections can be single body and other constitutes ” v. Hart is phraseology employed.’ to where the same looked Commonwealth, (1994) 706, 707 77, 79, 441 Va.App. S.E.2d Commonwealth, v. (quoting King Va.App. (1986)). Finally, although “penal statutes

S.E.2d strictly against must construed Commonwealth be falling language only clearly those cases within applied Commonwealth, Branch statute,” Va.App. “ the (1992), duty is the of courts 419 S.E.2d ‘[i]t ” law,’ effect, if of written give possible, every to to word the Commonwealth, Burnette v. 75 S.E.2d 194 Va. (1953) (citation also Michie’s see omitted); Jurispru 484-85 § dence, Statutes Of, of is ordinary dictionary “sexual” “1. definition sex, to, of the involving, sexuality, or characteristic

relating sexes, Implying the sex functions. 2. or organs or their to, Of, relating 3. or symbolizing activity. erotic desires or sexual gametes: the of male and female involving union Heritage Dictionary American the reproduction.” The of (3d ed.1992). English Language “Genital,” in relevant relating reproduction “1. or to part, biological is defined as Of especially the external reproductive organs, 2. ... [or] [the Id. at plain 756. these their organs].” Giving sex words clearly certain meaning, parts” encompasses the term “sexual However, as the term “sexual genital interpret to parts, well. including only genital parts or versa parts” vice would Instead, as out statutory rules of set violate construction. above, legislature give must intended to presume we parts” and separate to the term “sexual did meaning Burnette, See merely language. superfluous intend use 788-89, 75 at S.E.2d 484-85. Va.

In determining whether that separate meaning includes buttocks, both dictionary definition the definitions of terms in similar other code are sections instructive. Under quoted sexual, the second definition of the term parts” “sexual parts would also include those “impl[y] symboliz[e] which activity.” erotic desires or Such a definition is not limited 18.2-67.10(2), reproductive parts. Similarly, § in Code which defines terms used the article proscribing types various assault, criminal sexual parts” only “intimate include not “anus, genitalia but also groin, breast or buttocks.” Fur- ther, case, as the trial § court observed this in Code 18.2- 390, which defines terms used article proscribing loan sale or of certain juveniles, items to “sexual conduct” certain includes “actual or ... simulated contact an act of apparent gratification person’s sexual stimulation or with a area, or, clothed genitals, pubic unclothed if buttocks such female, be breast.” Neither these definitions limits the use of the term “sexual” the reproductive organs. Although definition sexual conduct requires more than simulated or contact, actual it makes clear that contact even non- reproductive parts such as may buttocks nevertheless be accompanied by Therefore, sexual if the proper intent. but- tocks are “sexual parts” under Code 18.2-370.1 if the ac- cused, acting requisite intent, with the lascivious exposes juvenile to a or proposes juvenile buttocks expose juvenile’s Therefore, buttocks to the accused. because the supports finding the trial court’s that appellant acted intent, it lascivious also the that supports finding the exposed buttocks of challenged each the cases “sexual were parts” meaning within the of the statute.

III.

CONCLUSION reasons, For these we hold the trial court not err in did (1) journals ruling police seizure of appellant’s personal to pursuant jour- a search warrant admission the and the of nals rights, into evidence did violate his Fifth Amendments subject good the to Amendment violation any Fourth and (2) rule; exclusionary buttocks are to the exception faith 18.2-370.1; of and meaning the Code parts” “sexual within (3) his convictions. support was sufficient the evidence Therefore, convictions. affirm appellant’s we

Affirmed. COLEMAN, J., joins,

BENTON, whom Judge, with dissenting. States, v. United Boyd I conclude that

Because (1886), bars the seizure and use 29 L.Ed. diaries, judge’s ruling I that the trial Moyer’s of would hold at against Moyer use those trial permitting the diaries Fifth There- rights under the Amendment. Moyer’s violated fore, I dissent. respectfully provides “[n]o

In relevant the Fifth Amendment part, be any ... criminal case to a person compelled shall be In the United States Su- against Boyd, witness himself.” unconstitutional, the Fourth and preme Court held under Amendments, Boyd ordering duces tecum subpoena Fifth a for produce guilt nonpayment an which established invoice that it was “unable to duty explained of a tax. Court papers a books and perceive private that the seizure of man’s is different against substantially used in evidence him to be Id. against him a himself.” compelling from to be witness Thus, a compulsory 534. the held “that 6 S.Ct. at Court of the production private papers [accused] books himself, within against him to be witness compelling is Constitution, meaning Fifth Amendment of a an unreasonable equivalent search and seizure —and is meaning of the Fourth Amend- search seizure—within 634-35, Not even a warrant Id. at 6 S.Ct. at 534-35. ment.” “ mask the ‘unreasonable’ cause could supported by probable of those legitimize use character of such seizures” and 633, at 534. documents at trial. Id. at S.Ct. seized' decision, has refined Following this landmark Court holding. In Couch v. Fifth Amendment scope Boyd’s States, United 611, 409 U.S. 614, 93 S.Ct. 34 L.Ed.2d (1973), the Court “question decided the ... whether the taxpayer may invoke her Fifth Amendment privilege against compulsory self-incrimination to prevent the production of her business and tax records in possession of her accountant.” The Court held that when an individual surrenders his or her business records to possession of a third party, and the government subpoenas the party records, third to produce the the individual has expectation no privacy records the Fifth Amendment does not bar their production. See id. 329-30, at 93 S.Ct. at 616-17. Significantly, the Court noted that Boyd an concerned accused possessed who his own pri- papers vate and “did not ... address or contemplate the divergence of ownership and possession.” Id. at 93 S.Ct. at 616.

Later, States, Fisher v. United 425 U.S. 96 S.Ct. 1569, 48 (1976), L.Ed.2d 39 the Court that compliance “h[eld] with a summons directing taxpayer [a] to produce the [taxpay er’s] accountant’s documents ... no incriminating involve[d] testimony within protection of the Fifth Amendment.” Id. at 96 S.Ct. at 1582. The Court clearly recognized the continuing validity Boyd stated, when it “[w]hether the Fifth Amendment would shield the taxpayer from producing his own tax possession records is a question not involved here; for the papers demanded here are not his ‘private papers,’ Boyd States, see v. United at U.S. 634-35 [6 S.Ct. Fisher, at 534-35].” 1582; 425 U.S. at 96 S.Ct. at see States, also Shapiro United 1, 16-18, U.S. (1948)

1383-84, 92 L.Ed. 1787 (holding that records that are required by statute to be cannot kept be sheltered Amendment). invocation of the Fifth Couch, As in taxpayer Fisher possess did not documents —a party, third taxpayer’s Thus, attorney, did. the Court’s “holding is compelled production of docu- ments from an attorney does implicate whatever Fifth Amendment privilege the taxpayer might enjoyed have from being compelled to produce Fisher, them himself.” Furthermore, 96 S.Ct. at 1576. the documents that by the prepared in Fisher were documents subpoenaed were the Accordingly, accountant, taxpayer. the taxpayer’s summons with a compliance said, hold that do “[w]e Court documents accountant’s the taxpayer produce the directing incriminating testimo- no would involve in these cases involved 425 U.S. Fifth Amendment.” of the protection the ny within added). that Stating (emphasis at 1582 at 96 S.Ct. testimonial’) materials, (but as well ‘non evidentiary “[p]urely crime, may of instrumentalities and fruits and as contraband circumstances,” proper for under and seized now be searched nonethe- Fisher, at the Court at 96 S.Ct. 425 U.S. Fifth the however, open is under noted, question that the less “ of evidential value are items there Amendment ‘whether object of a being from the them very precludes nature whose ” at Id. at 407 n. 96 S.Ct. and seizure.’ reasonable search 1579 n. 9. Fisher, search held “that the the Court

After its decision seizure, records, and their office for business of an individual’s not offend the into evidence do[es] introduction subsequent Maryland, Andresen proscription.” Fifth Amendment’s 2737, 2747, 49 L.Ed.2d 96 S.Ct. permitting noted “that specifically In the Court holding, so business records person’s of a into evidence introduction would offend [not] lawful search during an otherwise seized Id. privilege.” policies undergirding any undermine however, the Court 475-76, Significantly, 96 S.Ct. at 2746. at protects course, the Fifth Amendment of “recognize[d], Indeed, at 2747. extent.” Id. to some privacy promotes Fifth Amendment the Court noted societal values: following many reflects against self-incrimination privilege

“The our aspirations: noble and most our fundamental values of to the of crime subject suspected those unwillingness contempt; our self-accusation, perjury of cruel trilemma inquisitorial than an rather for an accusatorial preference self-incriminating our fear that justice; criminal system of treatment inhumane by be elicited statements will fair state- ‘a abuses; of fair which dictates play our sense individual balance by requiring government to leave the good individual alone until cause is shown for disturbing him requiring government in its contest with the ...; individual to shoulder the entire load’ respect our for the inviolability the human personality and right each individual ‘to a private enclave where he may lead ...; private our distrust of self-deprecatory state- life’ ments; our realization that privilege, while some- times ‘a shelter to the guilty,’ is often ‘a protection to the ” innocent.’

Id. at added). 476 n. 96 S.Ct. at 2746 n. 8 (emphasis again Court distinguished Boyd by noting that Boyd con- “private cerned papers” and did not “compel suppression of 471-72, [the accused’s] business records.” Id. at 96 S.Ct. at Thus, 2744. Andresen implicitly open question leaves the explicitly Fisher open. left See 425 U.S. at 407 n. 96 S.Ct. at 1579 n. 9. later, Doe,

Still United States 605, 606, v. 465 U.S. 104 S.Ct. (1984), 79 552 “presented] L.Ed.2d whether, the issue extent, and to what the Fifth Amendment privilege against compelled self-incrimination applies to the business records of a sole proprietorship.” The Court ruled that the contents of business records are not privileged under the Fifth Amend- ment where the accused voluntarily prepared the documents. 610-11, See id. at 104 S.Ct. at 1240-42. Answering the Fisher, question not in posed the Court held that the content records, of business in accused, even the possession of the are not privileged. 611-12, See id. at 104 S.Ct. at 1241-42. Although clearly records, Doe involved business Justice in O’Connor a concurring opinion interpreted the Court’s opinion in Doe to mean that “the Fifth provides Amendment absolutely protection no for the contents of private papers of any kind.” 465 (O’Connor, J., U.S. 104 S.Ct. at 1245 concurring). Marshall, however, joined Justice by Justice Brennan, adamantly disagreed and reasserted the principle “that under the Fifth Amendment ‘there are certain docu- person ments no ought compelled produce to be to at the ” Government’s request.’ 465 U.S. at at 1246 S.Ct. omitted). (citation J., (Marshall, dissenting) concurring and holding Boyd, in the short, although refine the In these cases holding Boyd. of has never overruled core Supreme Court in asserting is correct Although the Commonwealth my analysis, has its Fifth Amendment Court altered Supreme has Court these establishes that the analysis clearly of cases to business Court’s papers. only respect done so with Boyd, private are papers holding applied basic possession that are in the testimonial communicative and accused, has held never been reversed. As Court own extortion of a man’s Boyd, “any compulsory forcible and to be private papers or of his used as evidence testimony goods, him of a or to forfeit his is within convict crime of ... and Fifth condemnation the Fourth Amendments.” Indeed, has noted U.S. at S.Ct. at 532. Court a unique privacy person dicta on several occasions the interest her when personal papers papers has in his or those remain Dionisio, See, e.g., United States v. person’s possession. (1973) 770-71, 1, 11-12, 35 L.Ed.2d 67 U.S. S.Ct. (citing Boyd jury for the that a “cannot proposition grand production [incriminating] private require person it, that on the “no stating books and records” and facts before Fifth [existed there] valid Amendment claim because Nixon produce private papers”); no order books Services, 459-60, Administrator General (1977) 2777, 2796, 2798-99, (indicating 53 L.Ed.2d 867 sought more of the the former President that had documents Recordings from disclosure under Presidential protect private Act been communications and Materials Preservation dictabelts, First, Fourth, Fifth diary his then personal merit). greater claims had Other Amendments would have Seal), (Under See, v. e.g., United States agreed. courts have moot, (4th vacated as 834, Cir.1984), 471 840 U.S. 745 F.2d (1985) “in (holding 155 line 1001, 105 S.Ct. 85 L.Ed.2d Boyd, prevents government fifth amendment that are incriminating papers from an subpoenaing individual’s himby in and are held in an individual possession his Jury Proceedings, In Re Grand F.2d capacity”); (3rd Cir.1980) (holding that an accused’s Fifth Amend- rights ment are if violated he is required to produce his diaries”); personal “pocket United v. Boyette, States 299 F.2d (4th Cir.1962) 92, 95 in dicta (stating that “it has been thought diary that a in which its author has recited criminal conduct, search, seized an otherwise lawful should not be him, against just used as any other kind of involuntary confes- sion is Amendment”); unusable under the Fifth United States Katin, (D.Mass.1986) v. 109 F.R.D. (noting that “[ijntimate personal papers diaries, such private or drafts of letters essays, are not business records whose contents are Amendment”). unprotected by the Fifth Andresen, In addition to a involving case “business rec- ords,” at U.S. 96 S.Ct. at the Commonwealth Levasseur, (D.Mass. cites United States v. 699 F.Supp. 965 1988). However, Andresen, Levasseur upon relies see 699 F.Supp. at In LeVasseur, 989. United States v. 619 F.Supp. (E.D.N.Y.1985), another case Commonwealth, cited the trial judge refused a motion to suppress on Fourth Amendment grounds “coded notebooks” from seized the ac- cused. Id. at 791. sparsity description items leaves question precise issue raised and decided. The Commonwealth also cites State v. 574 A.2d 295 Andrei (Me.1990). There, Supreme Judicial Court of Maine held that where the accused’s husband delivered- the accused’s diary officials, to government no Fifth Amendment violation Thus, occurred. the court rested its decision on the fact that due to circumstances of the possession and delivery of the diary by a party, third “diary accused’s could be intro- at any duced trial without form of compulsion the [ac- Id. Andresen, cused].” The decision Andrei also relies on which we have previously pertained stated solely to business Likewise, records. See 574 A.2d 299. People Willey, (1981), 103 Mich.App. 303 N.W.2d 217 the diaries were given police by to the party. third See id.

The Commonwealth further argues Moyer’s diaries are protected by the Fifth privilege against Amendment self-

43 produce to compelled not Moyer was incrimination because produce being compelled The distinction between them. however, those having by subpoena, documents personal not does by government, documents seized personal same violating the to avoid obligation of its government relieve the Philpott, Hill v. of an accused. See rights Fifth Amendment Cir.1971) (7th (holding pro- that where 144, 149-50 445 F.2d would books and records personal of the taxpayer’s duction of Fifth Amendment been refused on the basis properly have by they sought if had been self-incrimination privilege against summons, they pursuant were seized the fact subpoena from preclude taxpayer to valid search warrant did rights). As stated of his Fifth Amendment claiming violation v. United Supreme Court Gouled by the United States (1921): States, 298, 261, 647 41 65 L.Ed. 255 U.S. S.Ct. crime, In the result is the same to one accused practice himself or against he obliged supply whether be an search of illegal such evidence be obtained whether In private papers. of his either premises and seizure evidence, Fifth and the unwilling case he is the source compelled shall be to be Amendment forbids that he against himself a criminal case. witness been reiterated 306, principle at 264. This has Id. S.Ct. States, 269 v. U.S. subsequent Agnello cases. See United (1925), 20, 4, United States v. 46 S.Ct. 70 L.Ed. 145 (1932), 420, 52 S.Ct. 76 L.Ed. 877 Lefkowitz, U.S. v. Hayden, is in the rationale in both implicit Court’s Warden (1967), and 18 L.Ed.2d 782 387 U.S. S.Ct. California, Schmerber

L.Ed.2d noted, fifth amendment Third Circuit has “[t]he As the incriminating producing an accused from protecting doctrine Fisher vitality by its virtue of the private papers manifests its facts from the facts distinguish efforts to explicit court’s at 1043 632 F.2d Jury Proceedings, In Re Boyd.” Grand 1582). Fisher, Clearly, 96 S.Ct. at 425 U.S. at (citing Andresen, of an individual’s police which concerned the search controlling when of business records is not office and seizure private diaries of a testimonial and pertains the issue Indeed, Supreme recently- nature. Court communicative important constitutional distinction between emphasized other communications: “testimonial” and self-incrimination” is not an “privilege against The term of a constitutional entirely description person’s accurate criminal to against being “compelled any case protection a himself.” against be witness

The “witness” the constitutional text limits the word communica- category compelled incriminating relevant of tions to those that are “testimonial” in character. As observed, significant Holmes there is a difference Justice communications compulsion the use of to extort between engage a compelling person from defendant and Thus, may incriminating. though that be even conduct evidence, may provide incriminating suspect act a criminal shirt, a blood may compelled put provide be on a recording or to make a sample handwriting exemplar, or exhibiting The act of such characteristics physical voice. that is not the same as a sworn communication a -witness relates either or assertions of fact or belief. express implied Muniz, v. Pennsylvania 594-598 S.Ct. [110 U.S. (1990). 2638, 2646-49, Similarly, 110 L.Ed.2d the fact 528] may byproduct that be the of obedi- incriminating evidence an income regulatory requirement, filing ence to a such as return, records, an reporting maintaining required tax accident, conduct with the required does not clothe such privilege. testimonial — Hubbell, U.S.-,-,

United States - — Boyd aspect L.Ed.2d of a testimonial na- providing protection decision for diaries ture stands undisturbed. reasons, judge’s ruling I would hold that the trial

For these at trial against Moyer use of those permitted that diaries the Fifth Amendment. Moyer’s rights violated under of Code majority’s interpretation I with the disagree also trial, that “but- judge trial ruled During § 18.2-370.1. meaning of Code ... within the parts” tocks” are “sexual that, was error and ruling Moyer contends § 18.2-370.1. proved the indictments five of supporting the evidence because should reverse exposed, we “bare buttocks” were only that was insuffi- the evidence ground on the those convictions throughout that “evidence further contends Moyer cient. of buttocks exposure on buttocks and paddling trial of the other indict- regarding and colored flavored the other convictions. ments,” affecting all prejudicially follows: provides § 18.2-370.1 Code who maintains a years age or older Any person eighteen under the relationship over a child supervisory custodial parent, to the including but not limited eighteen, age stands step-grandparent, or who grandparent, step-parent, legally is not to such child and respect in loco parentis intent, child, who, lascivious and with married to such (i) any such child intentionally proposes that knowingly and or genital parts sexual or of such person feel or fondle the genital parts sexual or feel or handle the person that such (ii) child, performance child the proposes or to such of the an constituting act any of sexual intercourse or an act sexual or (in) 18.2-361, § his or her expose offense under or (iv) child, any such proposes that genital parts to such or genital parts his or her sexual or to such expose child (v) engage to the child that the child proposes or person, genital of sexual or intercourse, fondling sodomy or sexual (vi) the child sexually or abuses parts person, another 18.2-67.10(6), of a Class 6 guilty §in shall be as defined felony. added).

(Emphasis affirms, concluded, majority now judge trial and the Commonwealth, in Hart v. Va.App. 18 that our decision (1994), to the conclusion necessarily leads S.E.2d Hart, In under the statute. parts” are “sexual “buttocks” exposure convicted of indecent charged the accused was and 18.2-387, it a misdemeanor § which makes under Code or the “person, private or ones “obscene[ly] display expos[e]” Hart, at See Va.App. thereof, parts any public place.” of the word meaning Ruling at 706. S.E.2d consistent with well recit- ambiguous, and “private parts” construction, looked to other sections statutory ed rules of we 79, 441 at 707. for See id. at S.E.2d guidance. of our Code holding legisla- Hart that the analysis supported This parts” within the “private ture intended “buttocks” be § 18.2-387. Id. meaning of Code (ii) ambiguity Except here. for subsection We face no such case, (vi), in this Code 18.2-370.1 inapplicable which are genital parts” in which “sexual or clearly addresses conduct fondled, exposed, proposed to be fondled were either which have a “private parts,” Unlike the term could exposed. I inquiry, on the source of meanings depending number of meaning genital “sexual or ambiguity no perceive relating to the male or “Sexual” is defined as “of or parts.” or functions.” organs female sexes or their distinctive Web- Dictionary Third International “Sex- ster’s New meaning of the organ,” any inquiry ual a term relevant to part,” organ reproductive “sexual is defined as “an is de- system; generative organ.” an external Id. “Genital” being to or a sexual “generative” “relating fined as clear, precise, Id. 946. are organ.” The definitions unambiguous. meaning is to be unambiguous, plain a statute is

“Where statutory interpreta- rules of accepted without resort “ This permitted tion.” are not to rewrite statutes. ‘Courts function. The manifest intention of the legislative is a ap- must be clearly language, disclosed its legislature, “ ” as plied.’ Accordingly, we must ‘take the words writ- ” give plain § them their mean- ten’ Code 18.2-370.1 ing. Commonwealth, 510 S.E.2d Va.App. v.

Krampen 276, 278 organ” or in the definition of “sexual” “sexual

Nothing are “sexual conclusion that buttocks supports majority’s § Buttocks meaning ... within the of Code 18.2-370.1. parts” system,” nor are organ reproductive “an of the are neither Furthermore, buttocks generative organ.” “an external they or their distinctive male or female sexes do not to the “relat[e] may “private be a While a buttock organs or functions.” illegal expose it made legislature such that part,” Hart, that 18.2-387, agree I do not see buttocks under Code § 18.2-370.1. under Code parts” buttocks are “sexual therefore, judge’s finding tainted hold, that the trial I would however, a upon that say, I cannot his on the evidence. ruling evidence, necessar- the convictions consideration proper The evidence evidence. unsupported would be sufficient ily his exposes that one who might establish properly presented well. State See exposed genitalia or her buttocks his her (1998) (holding that Fly, v. 348 N.C. S.E.2d accused, only pants a baseball hat and wearing where the ankles, that his bare buttocks faced around his bent over so witness, “jury reasonably find ... complaining could anus, genitals, his exposed had either [the accused] both”). however, incorrectly, ruled judge Because the trial law, point on this on each concerning findings he made no Thus, I cannot involving buttocks. exposed of the instances viewed, would have if the evidence properly conclude excluded this possibility. reasons, the convictions and

For I would reverse these the use of the permitting for a new trial without remand diaries at that trial.

531 S.E.2d 599 O’BANION, Lee L. Worford O’Bannion Warford s/k/a Virginia. COMMONWEALTH 2698-97-4. Record No. Virginia, Appeals

Court of Richmond. July 2000.

Case Details

Case Name: Moyer v. Commonwealth

Court Name: Court of Appeals of Virginia

Date Published: Jul 25, 2000

Citation: 531 S.E.2d 580

Docket Number: 2959972

Court Abbreviation: Va. Ct. App.