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Recently, a state appellate court issued a written opinion in a Virginia obscenity case involving a defendant who allegedly videotaped an eight-year-old girl while she was changing. The case required the court to determine whether the defendant violated the law by filming the young girl without her knowing, meaning she neither provided consent nor told the defendant that he did not have consent.

The Facts of the Case

According to the court’s opinion, the defendant was dating a woman who had an eight-year-old daughter from another relationship. One day, the woman was looking through the defendant’s phone and found two videos of her daughter in various states of undress. From how the camera was positioned, it appeared that the video was taken from under the girl’s bedroom door. The woman obtained a copy of the videos and eventually contacted the police.

The defendant was charged with filming a non-consenting minor under Virginia Code § 18.2-386.1(A). After the prosecution’s presentation of the evidence, the defendant moved to strike the indictment, arguing that the evidence was insufficient. Essentially, the defendant claimed that he could not be found guilty because the girl never told him that he did not have permission to film her. The court rejected the defendant’s claim, stating that no minor “can consent to anything.” The defendant was subsequently convicted.

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An appellate court recently issued an opinion following a Virginia criminal defendant’s charges involving sexual internet conversations and videos with an undercover detective posing as a minor. The defendant was charged with four counts of using a communications system to procure a minor and one count of soliciting a child believed to be under fifteen years old. The trial court granted the defendant’s motion to strike two of the four charges, and the jury convicted him of the remaining charges. Among several issues, the defendant argued that the court violated the wiretapping act and erred in denying his motion to suppress the conversations.

According to the facts, an undercover detective created a fake profile purporting to be a thirteen-year-old girl, and he was randomly paired with the defendant. Throughout the conversation, the defendant sent explicit messages and videos of an adult male engaging in sexual acts. The detective took screenshots of the chat but could not capture the video. The detective identified the defendant with information the man gave him during the chat. Shortly afterward, the Virginia SWAT team executed a search warrant and handcuffed the defendant. However, they then removed the handcuffs and told the defendant he was not under arrest. The detective and defendant spoke about the conversations and then asked for an attorney. After requesting the attorney, the defendant voluntarily gave statements about his family and potential charges.

The defendant moved to suppress his chats’ contents with the detective, arguing that they were electronic communications obtained in violation of the wiretap act. He contended that only two parties could consent to the recording of the conversation, the persona of Lilly and the defendant, and as such, the detective was a third party. Further, he argued that the statements he made to the police were made during a custodial interrogation, and he should have received his Miranda rights.

Earlier this month, a state appellate court issued a written opinion in a Virginia rape case discussing whether the seizure of the defendant’s DNA was in violation of his constitutional rights. Ultimately, the court concluded that the defendant abandoned any expectation of privacy he had in the items containing his DNA when he placed them in the trash outside his home.

The Facts of the Case

According to the court’s opinion, the case arose from an incident in 1995, in which a man in a ski mask broke into an apartment and forced two women inside to perform oral sex. At the time, law enforcement obtained a DNA sample, but had nothing to compare the sample to. Years later, in 2016, a woman called the police explaining that her husband, the defendant, told her he was the “Fairfax County Rapist.” He explained that he would use a black ski mask and hold his victims at gunpoint as he demanded oral sex.

The defendant’s wife called the police, explaining what the defendant told her. Law enforcement then investigating the defendant. To obtain a sample of the defendant’s DNA, police went to his home and obtained items from his trash, including a beer bottle and cigarette butts. The results from the DNA testing indicated that the defendant “could not be eliminated” as a contributor from the sexual assault. After this, the police obtained a warrant to obtain an additional DNA sample from the defendant, which also indicated he could not be eliminated as a contributor.

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