COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Felton, Judge McClanahan and Senior Judge Fitzpatrick Argued at Richmond, Virginia

MICHAEL GENE BODINE MEMORANDUM OPINION * BY v. Record No. 0779-05-2 CHIEF JUDGE WALTER S. FELTON, JR. NOVEMBER 7, 2006 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Bradley B. Cavedo, Judge Christopher C. Booberg (Micha el Morchower, on brief), for appellant. Eugene Murphy, Senior Assist ant Attorney Gene ral (Robert F. McDonnell, Attorney General, on brief), for appellee.

Michael Gene Bodine (“appell ant”) appeals his convictions for twenty-four counts of possession of child pornography in violation of Code § 18.2-374.1:1. Appellant was sentenced to a total of twenty-four months imprisonment. On appeal, he contends that his prosecution

violated his constitutional right to be free from ex post facto punishment. For the reasons that follow, we affirm.

BACKGROUND On September 4, 2003, police interviewed a ppellant’s roommate regarding child pornography he found on appellant’s comput er. On September 9, 2003, based on the roommate’s affidavit, police executed a search wa rrant at appellant’s residence. The search resulted in discovery of four hard drives, multip le zip disks, and multiple 3.5-inch diskettes that

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - contained images of child pornography. The tria l court found the eviden ce presented at trial sufficient to support appellant’s convictions.

ANALYSIS Although appellant argued in his brief and dur ing oral argument that the evidence was not sufficient to support his convicti ons, we did not grant that question on appeal. We will only consider “those arguments presented in the petitio n for appeal and granted by this Court.” Parker

v. Commonwealth , 42 Va. App. 358, 373, 592 S.E.2d 358, 366 ( 2004) (citing Rule 5A:12). The sole question on which we granted an appeal is whether appellant’s prosecution under Code § 18.2-374.1:1 violated his “constitu tional right to be free from ex post facto punishment.” On July 6, 2004, appellant was indicted fo r felony possession of child pornography in violation of Code § 18.2-374.1:1. Previously, on July 1, 2003, the General Assembly increased the penalty for possession of ch ild pornography from a Class 1 misd emeanor to a Class 6 felony. 2003 Va. Acts, chs. 935, 938. In order to convic t appellant of possessi on of child pornography, the Commonwealth was required to prove beyon d a reasonable doubt that he “knowingly possesse[d] any sexually explicit vi sual material utilizing or ha ving as a subject a person less than 18 years.” Code § 18.2-374.1:1. Appellant c ontends that the material he was found guilty of possessing was either create d or last accessed in December 2000, at a time when possession of child pornography was a Class 1 misdemeanor.

An ex post facto law has been defined as: any statute which punishes as a cr ime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed. Collins v. Youngblood , 497 U.S. 37, 42 (1990) (citations omitted). “‘The mark of an ex post facto law is the imposition of what can fairly be designated punishment for past acts.’” Dodson- 3 - v. Commonwealth , 23 Va. App. 286, 294, 476 S.E.2d 512, 516 (1996) (quoting De Veau v.

Braisted , 363 U.S. 144, 160 (1960)). While “[t]he United States Constitution, article 1, § 10, and the Virginia Constitution, article 1, § 9, prohibit the Commonwealth from enacting ex post facto laws,” Kitze v. Commonwealth , 23 Va. App. 213, 216, 475 S.E.2d 830, 832 (1996) (citations omitted), we find no ex post facto violation on the record before us. Appellant was indicted for possession of child pornography on September 9, 2003, two months after possession of child pornography became a felony under Code § 18.2-374.1: 1. The Commonwealth met its burden of establishing that on September 9, 2003, appellan t was aware of and knowingly possessed child pornographic materials on his computer and accesso ries, and we earlier affirmed that finding.

Bodine v. Commonwealth , Record No. 0779-05-2 (Va. Ct. App. Dec. 12, 2005, April 6, 2006). The mere fact that some of appellant’s acts proving his possession in September 2003 occurred before the change in the law does not prec lude application of the new law. See Dodson , 23 Va. App. at 295, 476 S.E.2d at 516 (holding that Code § 18.2-308.2 was not an unconstitutional ex post facto law in that prosecution). The trial court found that appellant continue d to possess the child pornographic images at the time of his arrest, notwithstanding the da te the images were or iginally downloaded. Accordingly, we affirm appellant’s convi ctions for possession of child pornography.

Affirmed.