Three or More Images . . .

This post is a recent decision of the Virginia Court of Appeals in which the court parsed the meaning of one provision of Virginia’s statute criminalizing the possession of child pornography. The case is Chapman v. Commonwealth, __ S.E.2d __, 2010 WL 3218587 (Virginia Court of Appeals 2010), and this is how it arose:

On the morning of February 14, 2008, police officers executed a search warrant on a Stafford County home owned by [Paul Chapman’s] parents. Chapman resided in a basement apartment in this home, which had a separate door to the outside, as well as a living room, a bedroom, a bathroom, and a storage area. [He] had lived in the basement apartment for two-and-a-half years, and he had been its sole occupant for approximately five months.

[Chapman] was in the basement apartment when the officers executed the search warrant. In the basement apartment's living room, his computer was turned on, and its monitor displayed a photograph of appellant. The police seized this computer.

Detective Wells, who was admitted at appellant's trial as an expert in computer forensics, conducted an examination of [Chapman’s] computer. His examination revealed that the temporary Internet file cache of [Chapman’s] computer contained twenty digital pictures that were characterized as child pornography. Fourteen additional photographs depicted young girls who were completely nude, almost nude, or only partially clothed, and another file contained a video of a man engaging in sexual intercourse with a young girl. Detective Wells did not detect any viruses on [Chapman’s] computer and found no signs that these files carried any viruses.

Based on his analysis of [Chapman’s] computer and the temporary Internet cache, Detective Wells testified that these files had all been created and saved to the computer's hard drive between 8:07 a.m. and 8:12 a.m. on the morning of February 14, 2008-less than two hours before the police arrived to execute the search warrant. There was no evidence that [Chapman] left the basement apartment that morning or that anyone else had been inside the basement apartment that morning.

Chapman v. Commonwealth, supra.

Chapman was subsequently indicted on 10 counts of possessing child pornography in violation of Virginia Code § 18.2-374.1:1(A), which provides as follows: “Any person who knowingly possesses child pornography is guilty of a Class 6 felony.” Chapman v. Commonwealth, supra. He went to trial and the jury convicted him of all 10 counts. Chapman v. Commonwealth, supra. Chapman then

moved to strike four of the ten charges of possession of child pornography, contending that Code § 18.2-374.1(A), required the Commonwealth to introduce three or more images of child pornography to support each conviction under that statute. Thus, he contended, the Commonwealth proved only six violations of the statute.

Chapman v. Commonwealth, supra.

Virginia Code § 18.2-374.1(A) defines two of the terms the Virginia Code uses to define child pornography in § 18.2-374.1:1(A) and other, related statutes. It provides as follows:

`[C]hild pornography’ means sexually explicit visual material which utilizes or has as a subject an identifiable minor. An identifiable minor is a person who was a minor at the time the visual depiction was created, adapted, or modified; or whose image as a minor was used in creating, adapting or modifying the visual depiction; and who is recognizable as an actual person by the person's face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature; and shall not be construed to require proof of the actual identity of the identifiable minor. . . .

[T]he term `sexually explicit visual material’ means a picture, photograph, drawing, sculpture, motion picture film, digital image, including such material stored in a computer's temporary Internet cache when three or more images or streaming videos are present, or similar visual representation which depicts sexual bestiality, a lewd exhibition of nudity, . . . or sexual excitement, sexual conduct or sadomasochistic abuse, . . . or a book, magazine or pamphlet which contains such a visual representation. An undeveloped photograph or similar visual material may be sexually explicit material notwithstanding that processing or other acts may be required to make its sexually explicit content apparent.

(emphasis added). As I noted above, Chapman argued that the

twenty images of child pornography found in his temporary Internet cache were insufficient to prove ten counts of possession of child pornography, but instead provided sufficient evidence to prove only six counts.

Chapman v. Commonwealth, supra. After noting that his argument raised an issue of statutory interpretation, the Court of Appeals addressed the merits of the argument. Chapman v. Commonwealth, supra.

The Court of Appeals explained that the language italicized in the paragraph above in 2007, when “the General Assembly amended its definition of `sexually explicit material . . . to include the emphasized language concerning materials stored on a computer's temporary Internet cache.” Chapman v. Commonwealth, supra. It then noted that the Virginia Court of Appeals had rejected a similar argument in 2006, in Mason v. Commonwealth, 49 Va. App. 39, 636 S.E.2d 480 (2006).

Mason argued that the trial court in his case “erred in finding that each photography of child pornography could support a separate conviction under” Virginia Code § 18.2-374.1:1(A). Chapman v. Commonwealth, supra. The Virginia Court of Appeals relied on the Virginia Supreme Court’s decision in Educational Books, Inc. v. Commonwealth, 228 Va. 392, 323 S.E.2d 84 (Virginia Supreme Court 1984), “which held that the permissible unit of prosecution for the sale of obscene items [under another Virginia statute] was the number of each such item sold.” Chapman v. Commonwealth, supra. The Mason court therefore held that the permissible unit of prosecution for the possession of child pornography under Virginia Code § 18.2-374.1:1(A) corresponded “`to the number of individual items of sexually explicit visual material.’” Chapman v. Commonwealth, supra (quoting Virginia Code § 18.2-374.1:1(A) and Mason v. Commonwealth, supra).

Chapman, of course, claimed Mason was no longer good law because in 2007 the Virginia General Assembly added the italicized language quoted above to the statute that defines child pornography and sexually explicit visual material. Chapman v. Commonwealth, supra. On its face, it seems like a pretty good argument, but it didn’t work.

The Court of Appeals pointed out the Virginia Supreme Court had held that the General Assembly’s “paramount legislative goal” in enacting laws criminalizing the possession of child pornography was to protect children and that in

furtherance of this legislative intent, [Virginia] Code § 18.2-374.1:1(A), provides that possession of a photograph (as well as a picture, a drawing, a motion picture film, or a digital image, among other items), when containing sexually explicit material involving an identifiable minor, can fully support a conviction for possession of child pornography. Thus, `the Virginia legislature has demonstrated its clear intent that possession of a single photograph could constitute an offense under § 18.2-374.1:1(A) and that multiple punishments would result from multiple violations of the statute.’

Chapman v. Commonwealth, supra (quoting Mason v. Commonwealth, supra). The Court of Appeals then explained that it was

completely inconsistent with this clear legislative intent to suggest that the General Assembly amended [Virginia] Code § 18.2-374.1(A), in 2007 to address the pervasive dissemination of child pornography by computer and over the Internet by potentially reducing the culpability of those persons whose computers store images or streaming videos of child pornography in the temporary Internet cache. Interpreting § 18.2-374.1(A) to require proof of three images or videos from a defendant's temporary Internet cache per conviction doubtlessly would `“‘defeat the obvious intention of the legislature,’“’ . . . which a court simply should not and cannot do.

Instead, [Virginia] Code § 18.2-374.1(A), now provides that as a threshold for convictions of possession of child pornography based on materials found in a defendant's temporary Internet cache, the Commonwealth must first establish that `three or more images or streaming videos’ depicting sexually explicit material involving an identifiable minor actually are stored on the computer's temporary Internet cache. Once that threshold of `three or more images or streaming videos’ stored on a computer's temporary Internet cache is satisfied, however, we hold, as this Court held in Mason, that `the permissible unit of prosecution for possession of child pornography’ . . . corresponds to the number of individual items of sexually explicit visual material.

Chapman v. Commonwealth, supra (quoting Mason v. Commonwealth, supra and Willis v. Commonwealth, 10 Va. App. 430, 393 S.E.2d 405 (Virginia Court of Appeals 1990).

The Court of Appeals then held that

[a]pplying these legal principles to the facts of this case, we find the Commonwealth's introduction of twenty examples of child pornography, which were found in the temporary Internet cache of appellant's computer, was certainly sufficient to prove ten counts of possession of child pornography.

Chapman v. Commonwealth, supra.