COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Benton, Coleman, Elder, 

 Bray, Bumgardner, Humphreys and Senior Judge Cole 

Argued at Richmond, Virginia 

GREGORY ALLEN MOYER 

 OPINION BY 

v. Record No. 2959-97-2 JUDGE LARRY G. ELDER 

 JULY 25, 2000 

COMMONWEALTH OF VIRGINIA 

UPON A REHEARING EN BANC 

FROM THE CIRCUIT COURT OF FLUVANNA COUNTY 

John R. Cullen, Judge 

 W. Reilly Marchant (Thorsen, Marchant & Scher 

L.L.P., on brief), for appellant. 

 Donald E. Jeffrey, III, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

briefs), for appellee. 

Gregory A. Moyer (appellant) was convicted in a bench trial 

on fourteen counts of taking indecent liberties with a minor 

pursuant to Code § 18.2-370.1. On appeal, he contends the trial 

court erroneously ruled that (1) police seizure of his personal 

journals pursuant to a search warrant and the admission of the 

journals into evidence did not violate his Fourth or Fifth 

Amendments rights; (2) buttocks are "sexual parts" within the 

meaning of Code § 18.2-370.1; and (3) the evidence was 

sufficient to support his convictions. A panel of this Court, 

with one judge dissenting, agreed that seizure and admission of 

the diaries violated appellant's Fourth and Fifth Amendment 
rights, reversed his convictions, and remanded for retrial. See

Moyer v. Commonwealth, 30 Va. App. 744, 520 S.E.2d 371 (1999). 

We granted the Commonwealth's petition for rehearing en banc and 

stayed the mandate of that decision. Upon rehearing en banc, we 

hold the trial court did not err in ruling that (1) police 

seizure of appellant's personal journals pursuant to a search 

warrant and the admission of the journals into evidence did not 

violate his Fifth Amendments rights and any Fourth Amendment 

violation was subject to the good faith exception to the 

exclusionary rule; (2) buttocks are "sexual parts" within the 

meaning of Code § 18.2-370.1; and (3) the evidence was 

sufficient to support his convictions. Therefore, we affirm the 

decision of the trial court. 

I. 

BACKGROUND 

 Appellant was an eighth grade science teacher at Fork Union 

Military Academy (the Academy) in Fluvanna County. He resided 

in an apartment located in the middle school student barracks 

and served as a barracks supervisor. In 1997, Academy officials 

advised local and state police that appellant may have abused 

one or more of the Academy's students. One official told police 

that he had entered appellant's apartment to check a water leak. 

On two different occasions, he observed in appellant's apartment 

nude photographs depicting two named cadets, J.L. and H.L. Some 

of the photographs had been taken in appellant's apartment. He 

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observed several journals containing "information about 'boys 

needing discipline and spanking.'" He also saw a "delinquency 

report completed on . . . 11th grader, [J.L.] with the 

consequences listed as '3 whacks on the bare behind'" and had 

information that J.L. had been seen leaving appellant's barracks 

at 10:00 p.m. in violation of school rules. The 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 was fully clothed and required 

the parents' written permission. The Academy official opined 

that, because appellant taught middle school, appellant's 

relationship with 11th grader J.L. was "strange," and he opined 

that appellant's contact with an 8th grade student, which 

involved his constantly escorting the student to off-campus 

activities, exceeded the "normal student/teacher relationship" 

and was "unhealthy." 

 Using this information, police obtained a warrant to search 

appellant's barracks apartment. The warrant specifically listed 

as subject to seizure, inter alia, "photographs . . . depicting 

nudity and/or sexual activities involving children," "[w]ritten 

materials (letters, diaries) . . . related to sexual conduct 

between juveniles and adults," and "books . . . and photographs 

depicting nudity and/or sexual activities of juveniles." While 

executing the warrant, Deputy Hogsten scanned appellant's 

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numerous handwritten journals looking for photographs and other 

materials specified in the warrant. If Hogsten observed an 

"explicit" photograph in a journal, he marked the journal and 

handed it to Trooper Watson, who assisted with the search. If 

no explicit photograph was immediately apparent in a journal, 

Hogsten scanned it "[to] see if [he] could find anything that 

was in the warrant [they] were looking for." After reviewing 

all appellant's journals in this fashion, Hogsten and Watson 

seized fourteen volumes and left behind two or three. 

Subsequently, Deputy Craig reviewed the seized journals in 

greater detail and decided which portions would be used as 

evidence. 

 A grand jury indicted appellant on sixteen counts of taking 

indecent liberties with two minors, J.L. and H.L. Appellant 

moved to suppress the excerpts taken from his diaries, arguing 

that the seizure of the diaries violated the Fourth Amendment's 

prohibition against general warrants. He also argued that 

admission of the excerpts into evidence would violate his Fourth 

and Fifth Amendment privilege against self-incrimination. The 

trial court denied the motion. It held that the seizure of the 

diaries did not violate the Fourth Amendment but that, even if 

it had, the officers executing the warrant acted in good faith. 

The court also held that admission of excerpts of the diaries 

into evidence did not violate appellant's privilege against 

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self-incrimination. At the conclusion of a trial on the merits, 

the court convicted appellant of fourteen of the sixteen counts. 

II. 

ANALYSIS 

 Appellant relies on the decision in Boyd v. United States, 

116 U.S. 616, 6 S. Ct. 524, 29 L. Ed. 746 (1886), for the 

proposition that seizure of his private journals pursuant to a 

search warrant violated his privilege against compelled 

self-incrimination. However, Boyd involved a court order 

directing partners to produce a business invoice for a glass 

shipment alleged to have been received without payment of the 

required import duty. See id. at 617-18, 6 S. Ct. at 525-26; 

Fisher v. United States, 425 U.S. 391, 406-07, 96 S. Ct. 1569, 

1578-79, 48 L. Ed. 2d 39 (1976). It did not involve a search 

warrant. Although Boyd purported to equate the two, see 116 

U.S. at 622, 6 S. Ct. at 527-28, the United States Supreme 

Court's decisions in Fisher, 425 U.S. 391, 96 S. Ct. 1569, and 

Andresen v. Maryland, 427 U.S. 463, 96 S. Ct. 2737, 49 L. Ed. 2d 

627 (1976), indicate that they may not be equated. The elements 

of compulsion and potential self-incrimination that result from 

the production of documents pursuant to a subpoena do not exist 

when the police, without assistance from the accused, take 

existing, voluntarily created documents pursuant to a valid 

warrant. Therefore, the seizure of appellant's diaries and 

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their admission into evidence did not violate the Fifth 

Amendment. 

 Further, assuming without deciding that the search warrant 

was insufficiently particularized to permit review of the 

diaries in their entirety, the evidence supported the trial 

court's finding that the good faith exception to the 

exclusionary rule applied. Therefore, a violation of the Fourth 

Amendment, if one occurred, did not require suppression of the 

diaries. 

 Finally, the evidence was sufficient to support the trial 

court's finding that appellant acted with lascivious intent as 

to all fourteen convictions and that appellant's behavior in all 

fourteen instances fell within the proscriptions of the statute. 

A. 

MOTION TO SUPPRESS UNDER THE FOURTH AND FIFTH AMENDMENTS 

 At a hearing on a defendant's motion to suppress, the 

Commonwealth has the burden of proving that the challenged 

action did not violate the defendant's constitutional rights. 

See Simmons v. Commonwealth, 238 Va. 200, 204, 380 S.E.2d 656, 

659 (1989). On appeal, we view the evidence in the light most 

favorable to the prevailing party, here the Commonwealth, 

granting to it all reasonable inferences fairly deducible 

therefrom. See Commonwealth v. Grimstead, 12 Va. App. 1066, 

1067, 407 S.E.2d 47, 48 (1991). "[W]e are bound by the trial 

court's findings of historical fact unless 'plainly wrong' or 

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without evidence to support them[,] and we give due weight to 

the inferences drawn from those facts by resident judges and 

local law enforcement officers." McGee v. Commonwealth, 25 Va. 

App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citing 

Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 

1663, 134 L. Ed. 2d 911 (1996)). However, we review de novo the 

trial court's application of defined legal standards such as 

probable cause and reasonable suspicion to the particular facts 

of the case. See Ornelas, 517 U.S. at 699, 116 S. Ct. at 1663. 

 In the 1886 case of Boyd, 116 U.S. 616, 6 S. Ct. 524, the 

United States Supreme Court held unconstitutional, under both 

the Fourth and Fifth Amendments, a subpoena duces tecum ordering 

Boyd and his partner to produce a partnership invoice which 

established their guilt for failing to pay an import duty. See

Fisher, 425 U.S. at 405, 96 S. Ct. at 1578. The Court noted the 

"intimate relationship between the [Fourth and Fifth] 

[A]mendments" and, although the records at issue related to the 

partnership's business transactions, said it was "unable to 

perceive that the seizure of a man's private books and papers to 

be used in evidence against him is substantially different from 

compelling him to be a witness against himself." Boyd, 116 U.S. 

at 633, 6 S. Ct. at 534. As a result, it held that 

a compulsory production of private books and 

papers of the owner of goods sought to be 

forfeited in such a suit is compelling him 

to be a witness against himself, within the 

meaning of the Fifth Amendment to the 

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Constitution, and is the equivalent of a 

search and seizure--and an unreasonable 

search and seizure--within the meaning of 

the Fourth Amendment. 

Id. at 634-35, 6 S. Ct. at 534-35; see id. at 622, 6 S. Ct. at 

527-28. 

 The Court noted in Boyd that the government was authorized 

to "seize a person's documents or other property as evidence 

[if] it [could] claim a proprietary interest in the property 

superior to that of the person from whom the property [was] 

obtained." Fisher, 425 U.S. at 406, 96 S. Ct. at 1578 (citing 

Boyd, 116 U.S. at 623-24, 6 S. Ct. at 528-29). Also, it was 

entitled to search for and seize "excisable articles" over which 

officers of the revenue had authority and "entries thereof in 

books required by law to be kept for their inspection." Boyd, 

116 U.S. at 623-24, 6 S. Ct. at 528-29. 

 Appellant argues that the Court's basic holding in Boyd, as 

applied to private papers that are testimonial or communicative 

and that are in the possession of the accused, has never been 

reversed. Significantly, however, the records at issue in Boyd

were business documents, and "therefore its declarations 

regarding the [Fourth and Fifth] Amendment[s'] protection of 

non-business documents were dicta." United States v. Doe, 1 

F.3d 87, 92 (2d Cir. 1993). 

 Even if Boyd's application to non-business papers is not 

considered dicta, subsequent Supreme Court decisions delineate 

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clear limits on Boyd which render it inapplicable in this case. 

In the more recent case of Fisher, which involved a subpoena for 

tax documents prepared by an individual's accountant and 

transferred by him to his lawyer, the Court made the following 

statement about Boyd: 

Among its several pronouncements, Boyd was 

understood to declare that the seizure, 

under warrant or otherwise, of any purely 

evidentiary materials violated the Fourth 

Amendment and that the Fifth Amendment 

rendered these seized materials 

inadmissible. . . . Private papers taken 

from the taxpayer, like other "mere 

evidence," could not be used against the 

accused over his Fourth and Fifth Amendment 

objections. 

Fisher, 425 U.S. at 407, 96 S. Ct. at 1579. The Court also 

noted, however, that 

[s]everal of Boyd's express or implicit 

declarations have not stood the test of 

time. The application of the Fourth 

Amendment to subpoenas was limited by Hale 

v. Henkel, 201 U.S. 43[, 26 S. Ct. 370, 50 

L. Ed. 652] (1906), and more recent cases. 

Purely evidentiary (but "nontestimonial") 

materials, as well as contraband and fruits 

and instrumentalities of crime, may now be 

searched for and seized under proper 

circumstances, Warden v. Hayden, 387 U.S. 

294[, 87 S. Ct. 1642, 18 L. Ed. 2d 782] 

(1967). Also, any notion that "testimonial" 

evidence may never be seized and used in 

evidence is inconsistent with [Katz v. 

United States, 389 U.S. 347, 88 S. Ct. 507, 

19 L. Ed. 2d 576 (1976), and other cases], 

approving the seizure under appropriate 

circumstances of conversations of a person 

suspected of crime. 

 - 9 - 
Id. at 407-08, 96 S. Ct. at 1579 (citations and footnote 

omitted); see Code § 19.2-53 (permitting seizure, pursuant to 

search warrant, of "[a]ny object, thing, or person, including 

without limitation, documents, books, papers, records, or body 

fluids, constituting evidence of the commission of crime"). 

 The Court also significantly limited the meaning of 

compulsion under the Fifth Amendment, holding that where "the 

preparation of all the papers sought [by subpoena] . . . was 

wholly voluntary, . . . they cannot be said to contain compelled

testimonial evidence." Id. at 409-10, 96 S. Ct. at 1580 

(emphasis added); see Andresen, 427 U.S. at 473, 96 S. Ct. at 

2745; see also Couch v. United States, 409 U.S. 322, 329, 93 

S. Ct. 611, 616, 34 L. Ed. 2d 548 (1973) (in case involving 

subpoena to accountant for tax records of accused, stating that 

"divulgence of . . . possibly incriminating information, . . . 

where it does not result from coercion of the suspect herself, 

is a necessary part of the process of law enforcement and tax 

investigation"). 

 The proposition that the Fifth 

Amendment protects private information 

obtained without compelling 

self-incriminating testimony is contrary to 

the clear statements of this Court that 

under appropriate safeguards private 

incriminating statements of an accused may 

be overheard and used in evidence, if they 

are not compelled at the time they were 

uttered . . . . If the Fifth Amendment 

protected generally against the obtaining of 

private information from a man's mouth or 

pen or house, its protections would 

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presumably not be lifted by probable cause 

and a warrant or by immunity. The privacy 

invasion is not mitigated by immunity; and 

the Fifth Amendment's strictures, unlike the 

Fourth's, are not removed by showing 

reasonableness. The Framers addressed the 

subject of personal privacy directly in the 

Fourth Amendment. They struck a balance so 

that when the State's reason to believe 

incriminating evidence will be found becomes 

sufficiently great, the invasion of privacy 

becomes justified and a warrant to search 

and seize will issue. They did not seek in 

still another Amendment--the Fifth--to 

achieve a general protection of privacy but 

to deal with the more specific issue of 

compelled self-incrimination. 

 We cannot cut the Fifth Amendment 

completely loose from the moorings of 

its language, and make it serve as a general 

protector of privacy--a word not mentioned 

in its text and a concept directly addressed 

in the Fourth Amendment. We adhere to the 

view that the Fifth Amendment protects 

against "compelled self-incrimination, not 

[the disclosure of] private information." 

Fisher, 425 U.S. at 400-01, 96 S. Ct. at 1575-76 (citations 

omitted). Therefore, "[i]n the case of a documentary subpoena 

the only thing compelled is the act of producing the document1

and the compelled act is the same as the one performed when a 

 1

 The Court noted that "[c]ompliance with the subpoena 

tacitly concedes the existence of the papers demanded and their 

possession or control by the [person producing them]. It would 

also indicate the [producer's] belief that the papers are those 

described in the subpoena." Fisher, 425 U.S. at 410, 96 S. Ct. 

at 1581. It reasoned that "[t]he elements of compulsion are 

clearly present, but that the more difficult issues are whether 

the tacit averments of the [producer] are both 'testimonial' and 

'incriminating' for purposes of applying the Fifth Amendment.'" 

Id. It concluded that the resolution of these "more difficult 

issues" likely "depend[ed] on the facts and circumstances of 

particular cases or classes thereof." Id.

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chattel or document not authored by the producer is demanded." 

Id. at 410 n.11, 96 S. Ct. at 1580 n.11 (footnote added); see

also United States v. Doe, 465 U.S. 605, 610-12, 104 S. Ct. 

1237, 1241-42, 79 L. Ed. 2d 552 (1984) (extending Fisher to hold 

that Fifth Amendment does not protect contents of an 

individual's tax records in his possession). Although Fisher

dealt with a subpoena for business records, its statements 

regarding compulsion to prepare or create the documents do not 

distinguish between business records and private or personal 

records, and we discern no legitimate basis for making such a 

distinction. Either the preparation of a document was compelled 

or it was not, regardless of its classification as business or 

private. See Wayne R. LaFave, Search and Seizure § 2.6(e), at 

611 (3d ed. 1996). As a result, appellant's diaries, which were 

prepared voluntarily, are not protected by the Fifth Amendment 

privilege against self-incrimination unless appellant was 

compelled to produce them, and then, only the act of production 

and not the contents of the diaries would be protected. 

 Further, the Court has held that the compulsion which 

results when an accused is required to produce documentary 

evidence pursuant to a subpoena does not exist when law 

enforcement personnel instead seize the evidence pursuant to a 

valid search warrant. See Andresen, 427 U.S. at 473-74, 96 

S. Ct. at 2745; see also 1 LaFave, supra, at 612. The Court 

noted in Andresen that 

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although the Fifth Amendment may protect an 

individual from complying with a subpoena 

for the production of his personal records 

in his possession because the very act of 

production may constitute a compulsory 

authentication of incriminating information, 

see Fisher v. United States, supra, a 

seizure of the same materials by law 

enforcement officers differs in a crucial 

respect--the individual against whom the 

search is directed is not required to aid in 

the discovery, production, or authentication 

of incriminating evidence.2

Andresen, 427 U.S. at 473-74, 96 S. Ct. at 2745 (footnote 

added); see also id. at 470 n.5, 96 S. Ct. at 2743 n.5 (noting 

conflict in federal courts of appeals on issue of whether 

documentary evidence not obtainable by subpoena may nevertheless 

be obtainable pursuant to a search warrant and indicating that 

substantial majority of circuits, along with Professor Wigmore, 

hold that it may). Therefore, "[t]he risk of authentication is 

not present where the documents are seized pursuant to a search 

warrant."3 Id. at 473 n.7, 96 S. Ct. at 2745 n.7; see id. at 

473, 96 S. Ct. at 2745 (noting that this approach is in keeping 

with the principle that "'[a] party is privileged from producing 

 2

 Although Andresen, like Fisher, involved business records, 

the Court in Andresen specifically discussed personal records 

and the difference between their subpoena and seizure. 

3

 Here, appellant's diaries were authenticated by J.L., who 

testified that appellant kept a journal, which appellant tried 

to write in on a daily basis. J.L. testified to his familiarity 

with appellant's handwriting, identified appellant's handwriting 

in the diaries, and indicated that he also had written in 

appellant's journals. On appeal, appellant does not directly 

challenge the authentication of the diaries. 

 - 13 - 
the evidence but not from its production'" (quoting Johnson v. 

United States, 228 U.S. 457, 458, 33 S. Ct. 572, 572, 57 L. Ed. 

919 (1913)). 

 Insofar as private information not 

obtained through compelled 

self-incriminating testimony is legally 

protected, its protection stems from 

other sources--the Fourth Amendment's 

protection against seizures without warrant 

or probable cause and against subpoenas 

which suffer from "too much indefiniteness 

or breadth in the things required to be 

'particularly described,'" or evidentiary 

privileges such as the attorney-client 

privilege. 

Fisher, 425 U.S. at 401, 96 S. Ct. at 1576 (citations and 

footnote omitted); see also id. at 401 n.6, 96 S. Ct. at 1576 

n.6 (citing Couch, 409 U.S. 322, 93 S. Ct. 611, 34 L. Ed. 2d 

548, which involved a subpoena to an accountant for tax records 

of the accused and in which the Court "differentiated between 

the things protected by the Fourth and Fifth Amendments," and 

noting that "'there exist[ed] no legitimate expectation of 

privacy [the Fourth Amendment claim] and no semblance of 

governmental compulsion against the person of the accused [the 

Fifth Amendment claim]'"). 

 For these reasons, neither the seizure nor admission into 

evidence of appellant's diaries violated his Fifth Amendment 

privilege against compelled self-incrimination. This conclusion 

does not, however, resolve the issue of whether the seizure of 

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appellant's diaries was reasonable under the Fourth Amendment. 

The Court in Fisher noted that 

[t]he taxpayers and their attorneys have not 

raised arguments of a Fourth Amendment 

nature before this Court and could not be 

successful if they had. The summonses are 

narrowly drawn and seek only documents of 

unquestionable relevance to the tax 

investigation. Special problems of privacy

which might be presented by subpoena of a

personal diary are not involved here. 

Id. at 401 n.7, 96 S. Ct. at 1576 n.7 (emphasis added). Thus, 

the Court made clear that constitutional privacy issues, if any, 

associated with subpoenaing one's personal diary would involve 

Fourth Amendment rather than Fifth Amendment protections.4

 Appellant contends the seizure of his diaries was 

unreasonable under the Fourth Amendment and violated that 

amendment's particularity requirement. For the reasons that 

follow, we hold that the trial court's denial of appellant's 

suppression motion also did not violate the Fourth Amendment. 

 The Fourth Amendment, designed to protect against 

unreasonable searches and seizures, provides that "no warrants 

shall issue, but upon probable cause, supported by oath or 

affirmation, and particularly describing the place to be 

searched, and the persons or things to be seized." U.S. Const. 

 4

 It also noted its earlier "reserv[ation of] the question 

'whether there are items of evidential value whose very nature

precludes them from being the object of a reasonable search and 

seizure.'" Fisher, 425 U.S. at 407 n.9, 96 S. Ct. at 1579 n.9 

(quoting Hayden, 387 U.S. at 302-03, 87 S. Ct. at 1648). 

 - 15 - 
amend. IV. Similar mandates exist in Virginia's Constitution 

and statutes. See Va. Const. art. I, § 10; Code § 19.2-54 ("no 

general warrant for the search of a house, place, compartment, 

vehicle or baggage shall be issued"). The "distinct objective 

[of the warrant requirement] is that those searches deemed 

necessary should be as limited as possible"; it is intended to 

prevent "a general, exploratory rummaging in a person's 

belongings." Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 

S. Ct. 2022, 2038, 29 L. Ed. 2d 564 (1971). 

So long as the "search warrant describe[s] 

the objects of the search with reasonable 

specificity," it complies with the dictates 

of the [F]ourth [A]mendment. The 

determination whether the warrant possesses 

the requisite degree of specificity 

necessarily requires a fact-specific, 

case-specific analysis. However, search 

warrants that limit the executing officers' 

discretion by directing them to seize only 

evidence of a specific crime consistently 

have been held to satisfy the particularity 

requirement of the [F]ourth [A]mendment. 

Morke v. Commonwealth, 14 Va. App. 496, 500-01, 419 S.E.2d 410, 

413 (1992) (citation omitted). 

 The exclusionary rule is a judicial creation which, under 

certain circumstances, prevents evidence obtained in violation 

of one's Fourth Amendment rights from being admitted into 

evidence against him in a criminal prosecution. See

Commonwealth v. Ealy, 12 Va. App. 744, 750, 407 S.E.2d 681, 685 

(1991). 

 - 16 - 
In [United States v. Leon, 468 U.S. 897, 104 

S. Ct. 3405, 82 L. Ed. 2d 677 (1984)], the 

United States Supreme Court held that 

"suppression of evidence obtained pursuant 

to a warrant should be ordered only on a 

case-by-case basis and only in those unusual 

cases in which exclusion will further the 

purposes of the exclusionary rule." The 

Supreme Court also stated that "the 

exclusionary rule is designed to deter 

police misconduct. . . ." This deterrent is 

not present when a police officer, acting in 

objective good faith, obtains a search 

warrant from a magistrate and conducts a 

search within the scope of the warrant. We 

have embraced and applied the good faith 

exception to the exclusionary rule. 

Polston v. Commonwealth, 255 Va. 500, 503, 498 S.E.2d 924, 

925-26 (1998) (quoting Leon, 468 U.S. at 916, 918, 104 S. Ct. at 

3417, 3418) (other citations omitted). 

 In keeping with the goal of deterring police misconduct, 

"[s]uppression . . . remains an appropriate 

remedy if the magistrate or judge in issuing 

a warrant was misled by information in an 

affidavit that the affiant knew was false or 

would have known was false except for his 

reckless disregard of the truth. . . . The 

exception . . . will also not apply in cases 

where the issuing magistrate wholly 

abandoned his judicial role. . . . [I]n 

such circumstances, no reasonably well 

trained officer should rely on the warrant. 

Nor would an officer manifest objective good 

faith in relying on a warrant based on an 

affidavit 'so lacking in indicia of probable 

cause as to render official belief in its 

existence entirely unreasonable'. . . . 

Finally, depending on the circumstances of 

the particular case, a warrant may be so 

facially deficient--i.e., in failing to 

particularize the place to be searched or 

the things to be seized--that the executing 

officers cannot reasonably presume it to be 

valid." 

 - 17 - 
Id. at 503, 498 S.E.2d at 926 (quoting Leon, 468 U.S. at 923, 

104 S. Ct. at 3421 (citations omitted)). 

 Regardless of the validity of the search warrant, the 

diaries seized from appellant's apartment were admissible in 

their entirety under the good faith exception.5 The warrant 

 5

 Settled legal principles provide that "[a] lawful search 

of premises described in a warrant 'extends to the entire area 

in which the object[s] of the search may be found.'" Kearney v. 

Commonwealth, 4 Va. App. 202, 205, 355 S.E.2d 897, 899 (1987) 

(quoting United States v. Ross, 456 U.S. 798, 820, 102 S. Ct. 

2157, 2170, 72 L. Ed. 2d 572 (1982)). "'[A] search may be as 

extensive as reasonably required to locate the items described 

in the warrant.'" Id. (citation omitted). "A warrant to search 

a [premises] would support a search of every part of the 

[premises] that might contain the object of the search." Ross, 

456 U.S. at 821, 102 S. Ct. at 2171. While the police are 

lawfully engaged in such a search, the plain view doctrine 

applies, and they may seize any item if it is "immediately 

apparent" that the item may be evidence of a crime, contraband, 

or otherwise subject to seizure. Coolidge, 403 U.S. at 466, 91 

S. Ct. at 2038; see Ruffin v. Commonwealth, 13 Va. App. 206, 

208-09, 409 S.E.2d 177, 178-79 (1991). 

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At a minimum, the warrant was specific enough to permit the 

police to conduct a detailed search of appellant's apartment for 

"[p]hotographs, movies[,] videotapes, negatives, slides, and/or 

undeveloped film depicting nudity and/or sexual activities 

involving children . . . that would tend to identify (victims 

and offenders)." The Academy official whose observations were 

used to support the warrant stated that, on two separate 

occasions, he had observed in appellant's Academy apartment nude 

photographs of two named Academy students. The warrant 

authorized a search for certain photographs, and the police were 

authorized to search any area of the apartment in which the 

photographs might reasonably be found. See Ross, 456 U.S. at 

821, 102 S. Ct. at 2171. Because the photographs were items 

which could have been--and, in fact, were--in appellant's 

diaries, the police acted reasonably in leafing through the 

diaries in search of photographs like those described in the 

warrant. Further, while leafing through the diaries, they were 

permitted to seize any other items to which the plain view 

doctrine applied. For example, if the police had found illegal 

drugs between the pages of the diary, the seizure and 
specifically listed as subject to seizure, inter alia, 

"[p]hotographs . . . depicting nudity and/or sexual activities 

involving children," "[w]ritten materials (letters, diaries) 

. . . related to sexual conduct between juveniles and adults," 

and "books . . . and photographs depicting nudity and/or sexual 

activities of juveniles." The trial court specifically found 

that the police officers executing the warrant and reviewing the 

evidence for trial acted in good faith, and we discern no 

evidence in the record which contradicts the trial court's 

finding. 

 Appellant does not allege and no evidence supports a 

finding that the magistrate was misled by false information in 

the affidavit. In addition, neither the warrant nor the 

affidavit was so deficient that no reasonably trained officer 

should rely on it. The affidavit accompanying the warrant 

recited the statements of the Academy official in charge of the 

middle school that he twice had observed in appellant's 

apartment nude photos of two students, some of which had been 

taken in appellant's barracks apartment. On one of these 

occasions, the Academy official observed several journals 

containing "information about 'boys needing discipline and 

 

introduction of the drugs into evidence would not violate the 

Fourth Amendment. This same principle would apply to any 

written passage of the diary if it became "immediately apparent" 

that a particular passage likely was evidence of a crime or was 

otherwise subject to seizure. 

 - 19 - 
spanking.[']" He also saw a "delinquency report completed on 

. . . 11th grader, [J.L.], with the consequences listed as '3 

whacks on the bare behind'" and had information that J.L. had 

been seen leaving appellant's barracks at 10:00 p.m. in 

violation of school rules. Finally, the Academy official opined 

that, because appellant taught middle school, appellant's 

relationship with 11th grader J.L. was "strange" and that 

appellant's contact with an 8th grade student, which involved 

his constantly escorting the student to off-campus activities, 

exceeded the "normal student/teacher relationship" and was 

"unhealthy." 

 Assuming without deciding that this information was 

insufficient to permit a line-by-line search of appellant's 

diaries, it was not so deficient that the magistrate or 

executing officers should have known it was invalid. See Janis 

v. Commonwealth, 22 Va. App. 646, 654, 472 S.E.2d 649, 653 

(holding that determining objective reasonableness of belief in 

probable cause must be based "solely on the affidavit"), aff'd

on reh'g en banc, 24 Va. App. 207, 481 S.E.2d 473 (1996). As 

discussed above, existing case law does not make clear whether 

or under what circumstances the Fourth Amendment permits the 

seizure and introduction into evidence of personal diaries. As 

a result, the good faith exception to the exclusionary rule 

rendered proper the admission into evidence of the challenged 

 - 20 - 
portions of appellant's diaries. Therefore, we affirm the trial 

court's denial of appellant's motion to suppress. 

B. 

SUFFICIENCY OF THE EVIDENCE TO PROVE LASCIVIOUS INTENT 

 Code § 18.2-370.1 provides as follows: 

Any person eighteen years of age or older 

who maintains a custodial or supervisory 

relationship over a child under the age of 

eighteen, . . . and who, with lascivious 

intent, knowingly and intentionally . . . 

(iii) exposes his or her sexual or genital 

parts to such child, or (iv) proposes that 

any such child expose his or her sexual or 

genital parts to such person, . . . shall be 

guilty of a Class 6 felony. 

Appellant was convicted of violating the quoted portion of the 

statute on fourteen separate occasions, eleven of which involved 

J.L. (Indictments 97F46 and 97F48 to 97F57) and three of which 

involved H.L. (Indictments 97F59, 97F62 and 97F63). 

 Appellant contends that the testimony of J.L. that 

appellant was sexually aroused during some of their encounters 

is inherently incredible and that, without this testimony, the 

evidence is insufficient to prove lascivious intent as to the 

eleven convictions involving J.L. Appellant also contends that 

because H.L., in testifying for the Commonwealth, denied that 

appellant showed any signs of sexual arousal during their 

contact, the Commonwealth's evidence also is insufficient to 

prove that appellant acted with the requisite lascivious intent 

 - 21 - 
as to the three convictions involving H.L. We hold that 

sufficient evidence of intent supports all fourteen convictions. 

 Under familiar principles of appellate review, we must 

examine the evidence in the light most favorable to the 

Commonwealth, granting to it all reasonable inferences fairly 

deducible therefrom. See Martin v. Commonwealth, 4 Va. App. 

438, 443, 358 S.E.2d 415, 418 (1987). In assessing witness 

credibility, the fact finder may accept the parts of a witness' 

testimony it finds believable and reject other parts as 

implausible. See Pugliese v. Commonwealth, 16 Va. App. 82, 92, 

428 S.E.2d 16, 24 (1993). The conclusions of the fact finder on 

issues of witness credibility "may only be disturbed on appeal 

if this Court finds that [the witness'] . . . testimony was 

'inherently incredible, or so contrary to human experience as to 

render it unworthy of belief.'" Robertson v. Commonwealth, 12 

Va. App. 854, 858, 406 S.E.2d 417, 419 (1991) (quoting Fisher v. 

Commonwealth, 228 Va. 296, 299-300, 321 S.E.2d 202, 204 (1984)). 

These same principles apply to the testimony of both expert and 

lay witnesses. See Street v. Street, 25 Va. App. 380, 387-89, 

488 S.E.2d 665, 668-69 (1997) (en banc). 

 The mental state required to support appellant's 

convictions is one of lasciviousness. See Code § 18.2-370.1. 

"[T]he word 'lascivious' describes a state of mind that is eager 

for sexual indulgence, desirous of inciting to lust or of 

inciting sexual desire and appetite." McKeon v. Commonwealth, 

 - 22 - 
211 Va. 24, 27, 175 S.E.2d 282, 284 (1970). The Supreme Court 

has recognized that circumstantial evidence of lasciviousness 

may include "evidence that the defendant was sexually aroused; 

that he made . . . gestures toward himself or to [the victim]; 

that he made . . . improper remarks to [the victim]; or that he 

asked [the victim] to do anything wrong." Id. "Circumstantial 

evidence is as competent and is entitled to as much weight as 

direct evidence, provided it is sufficiently convincing to 

exclude every reasonable hypothesis except that of guilt." 

Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 

(1983). 

 Here, the direct and circumstantial evidence supported the 

trial court's finding that appellant acted with lascivious 

intent and excluded all reasonable hypotheses of innocence. The 

evidence, viewed in the light most favorable to the 

Commonwealth, established that appellant began relationships 

with the two victims when they were students in his eighth grade 

science class and that he engaged in illegal behavior with them, 

separately, on at least fourteen different occasions over the 

course of two years. 

 The 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 was fully 

clothed and required the parents' written permission. 

 - 23 - 
 Despite this policy, after appellant and J.L. became close 

friends, appellant suggested to J.L. that he would not turn 

J.L.'s demerits over to the commandant if J.L. would agree to 

allow appellant to paddle J.L. on the buttocks as an alternate 

form of punishment. Appellant initially paddled J.L. while J.L. 

was clothed, but in early February 1994, appellant told J.L. he 

would administer the "whacks" on "the bare ass." Appellant 

paddled J.L.'s bare buttocks and documented the paddling in his 

diary. Shortly thereafter, appellant proposed that J.L. paddle 

appellant on appellant's bare buttocks. J.L. did so, and 

appellant again documented the incident in his diary. 

 Similar events occurred on or about March 3, March 4, and 

March 10, 1994, with appellant documenting the paddlings in his 

diary on each occasion. On each of these occasions, the person 

being paddled was partially or totally nude, and the two 

followed a ritual requiring the person being paddled to turn 

after each paddling to face and salute the person administering 

the paddling. Appellant's diary entries for these days indicate 

a preoccupation with the fact that the paddling rendered his or 

J.L.'s "ass" "bare" and "sore," and he described "a large red 

welt" that developed on J.L.'s buttocks and the "pain . . . in 

[J.L.'s] face" while appellant administered the paddling. 

Appellant also wrote that he was "psyched" to "bare his [own] 

ass to the wrath of [J.L.]" and told J.L. that one of his 

 - 24 - 
paddlings "barely hurt" and that J.L. had "better make it 

worthwhile." 

 Sometime thereafter, at appellant's suggestion, appellant 

and J.L. formed a secret society, and appellant obtained for his 

car personalized license plates that bore the society's acronym. 

They designed a series of initiation events, all involving 

nudity, and appellant documented the preparation and actual 

events with photographs and detailed diary entries. J.L. 

testified that, during the nude tree-climbing event, appellant 

asked J.L. to shine the flashlight on appellant, and J.L. 

noticed that appellant "was half aroused." During another 

event, appellant tied J.L. up and used his hands to 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 to spread the shaving cream on 

appellant's genitals because he did not want to touch them, and 

he noticed that appellant had an erection at that time. 

Appellant subsequently wrote of their being "brothers" who will 

"share without asking and tak[e] without first giving. We will 

be like one." When appellant reflected on that night about two 

years later by rereading his journal, he noted that the "night 

was fantastic and one that I will never forget." 

 On at least six occasions during J.L.'s ninth grade year, 

appellant and J.L. engaged in additional acts of nude buttocks 

paddling, nude wrestling and the like. On two occasions in 

 - 25 - 
November 1994, appellant paddled J.L. on "his bare ass," 

purportedly to discipline him for smoking. On the latter 

November date, appellant wrote that he "had to fight [J.L.] for 

it" and "ma[de] sure to hit different spots so no part of 

[J.L.'s] ass was left unred." On January 26, 1995, appellant 

observed that J.L. "made sure [appellant's] birthday did not go 

by unrewarded," by paddling appellant over thirty times on 

appellant's bare buttocks. On February 9, 1995, when appellant 

was in a bad mood, J.L. repeated the "shaving cream and fan" 

torture. Appellant wrote that "[his] ass was red and sore from 

the beatings" but that "hanging there naked and suffering the 

epitomy [sic] of pain livened up [his] day." On February 13, 

1995, appellant inflicted the same "torture" on J.L., and the 

two ended the events with a "bout" of nude wrestling. On 

February 14, 1995, J.L. returned to appellant's apartment "with 

vengeance on his mind." Appellant wrote that appellant was 

"naked and tied up" and received "a severe beating." 

 During late 1995 and early 1996, appellant documented three 

encounters with a former student named H.L. H.L. visited 

appellant in North Dakota, where appellant was working for the 

summer. At some point during H.L.'s visit, the two briefly 

discussed the secret society appellant had formed with J.L. 

They also "hiked naked to the top of a butte." 

 Although H.L. did not return to the Academy as a student in 

the fall of 1995, he and appellant remained in contact by letter 

 - 26 - 
and phone and saw each other several times during the fall. In 

December 1995, H.L. visited appellant at the Academy to 

celebrate H.L.'s birthday. On December 16, appellant wrote that 

H.L. was still asleep in appellant's apartment and that he knew 

H.L. was "anxious for everyone to leave [the Academy] so he 

could spend some quality time alone with [appellant]." During 

H.L.'s visit, they played poker and wagered whacks with the 

paddle rather than money. Then they each stood nude in front of 

appellant's dresser and paddled each other until their "asses" 

were "red" and "sore." The next morning, they showered and 

repeated the paddling process "until all debts were paid." 

 H.L. visited appellant again in late February 1996 for 

appellant's birthday. Appellant said that "[o]ne of the main 

reasons [H.L.] came was to give [appellant] his birthday card 

but not before he paddled [appellant's] bare ass." On the night 

of February 24, appellant showered and stood nude in front of 

his dresser to receive his first ten paddlings. Appellant and 

H.L. then watched a movie, after which H.L. administered the 

second ten paddlings. Appellant wrote that the second ten 

"really hurt so [he] just stayed naked the rest of the night to 

cool off [his] ass." The next morning, February 25, appellant 

woke H.L. so that H.L. could administer the last ten whacks, 

which left "[appellant's] ass aflame with pain." Appellant then 

administered one whack to H.L. "to keep him honest until we see 

each other again." H.L. showered, stood naked in front of 

 - 27 - 
appellant's dresser, and "[appellant] whacked his ass much 

harder than usually." Appellant wrote of the weekend, 

[H.L.] paddled my bare ass and beat me in 

wrestling but we had a great time together. 

I miss him already. Whether it be his 

playing the guitar or late night personal 

conversations, he is a pleasure to have 

around. I am already looking forward to the 

next weekend. . . . It is always great to 

have [him] spend the weekend and I cannot 

wait until the next time. 

 During July 1996, H.L. again visited appellant in North 

Dakota and went through the shaving cream and other rituals in 

order to be initiated into the secret society. 

 In testifying at trial, appellant admitted that the 

relationships he developed with J.L. and H.L. were "bizarre" and 

"wrong," although he denied that they involved any sexual 

purpose or intent. 

 The evidence supports the trial court's findings that 

appellant committed these acts with J.L. and H.L. with 

lascivious intent. Although appellant challenges J.L.'s 

testimony as inherently incredible, we cannot conclude his 

testimony was incredible as a matter of law. The trial court 

heard J.L. testify and heard testimony from various other 

witnesses attacking J.L.'s credibility, but it chose to believe 

the testimony of J.L. which was corroborated, at least in part, 

by appellant's journal entries. Although the evidence of any 

particular offense, standing alone, might be insufficient to 

establish that appellant acted with lascivious intent, 

 - 28 - 
appellant's course of conduct in using his position as an adult 

role model to gain the trust of J.L. and H.L. and establish 

close personal relationships with them, coupled with detailed 

diary accounts of appellant's repeated nude paddlings and other 

encounters with these children and the testimony of J.L. that 

appellant was sexually aroused during two of J.L.'s encounters 

with him, is sufficient to support a finding that appellant 

acted with the requisite lascivious intent in exposing his 

sexual or genital parts to both boys or proposing that they 

expose their sexual or genital parts to him. The trial court 

determined that this was the only reasonable hypothesis flowing 

from the evidence, and we hold that it did not err in so 

finding. 

C. 

CONSTRUCTION OF CODE § 18.2-370.1 

 Appellant poses an additional challenge to five of his 

convictions, under Indictments 97F46, 97F48, and 97F50 to 97F52, 

all of which involved J.L. He contends that the evidence 

proved, at most, that "bare buttocks" were exposed, and he 

argues, contrary to the trial court's ruling, that "bare 

buttocks" do not constitute "sexual . . . parts" within the 

meaning of Code § 18.2-370.1. Furthermore, he contends the 

admission of evidence of buttocks paddling "tainted the entire 

case in that the Trial Court heard and considered this evidence 

in considering all of the other indictments." 

 - 29 - 
 The trial court specifically found that buttocks are not 

genital parts but are sexual parts within the meaning of the 

statute. It also held that, in at least some instances, 

appellant and J.L. faced each other while nude such that the 

exposure involved genitalia as well as buttocks and, therefore, 

fell within the statute's proscriptions. For the reasons that 

follow, we hold that the acts for which appellant was convicted 

fell within the proscriptions of the statute. 

 First, in keeping with the trial court's statements, the 

evidence is sufficient to support two of the five challenged 

offenses regardless of whether buttocks are sexual parts; as to 

indictments 97F50 and 97F51, the evidence was sufficient to 

establish that genitalia also were exposed. 

 Appellant's demerit sheet and diary entries, both in 

appellant's handwriting, make clear that the routine followed on 

March 2, 1994, which was covered in indictment 97F49, was that 

J.L. "had to strip down totally naked, and after each whack, 

turn to salute [appellant]." Appellant concedes on appeal, and 

we agree, that the evidence of the events charged in indictment 

97F49 was sufficient to establish that appellant proposed J.L. 

expose his genitals to appellant on March 2, 1994. 

 Regarding challenged indictment 97F50, which covered the 

events of March 4, 1994, the evidence establishes that appellant 

wrote J.L. a note proposing that J.L. report to appellant's 

apartment for "3 whacks on [the] bare ass" while nude and that 

 - 30 - 
the routine would be the same as on March 2, 1994. Appellant's 

diary indicated that J.L., in fact, "received . . . six whacks" 

while nude and that "[t]he routine was the same" as it had been 

on March 2, 1994. Therefore, because "[t]he routine was the 

same" on March 4, 1994, when appellant administered the whacks 

associated with indictment 97F50, the evidence supports a 

finding that the routine appellant proposed and administered on 

March 4, 1994, involved the same genital exposure. 

 These same facts apply to indictment 97F51, involving the 

events of March 10, 1994. The evidence supports a finding that, 

on or about that date, appellant exposed his genitals to J.L. 

Appellant wrote up a demerit slip for himself, proposing that 

J.L. administer two whacks to appellant. When J.L. administered 

the whacks, appellant was nude and had to turn to J.L. and 

salute him. 

 Furthermore, under established rules of statutory 

construction, the term "sexual parts" as used in Code 

§ 18.2-370.1 necessarily includes buttocks. Appellant urges us 

to construe the term "sexual parts" as used in Code § 18.2-370.1 

as being coextensive with "genital parts." However, settled 

principles of statutory construction prevent such an 

interpretation. 

 Ordinarily, when a particular word in a statute is not 

defined therein, a court must give it its ordinary meaning. See

McKeon v. Commonwealth, 211 Va. 24, 27, 175 S.E.2d 282, 284 

 - 31 - 
(1970). In interpreting a statute, "'[t]he Code of Virginia 

constitutes a single body of law, and other sections can be 

looked to where the same phraseology is employed.'" Hart v. 

Commonwealth, 18 Va. App. 77, 79, 441 S.E.2d 706, 707 (1994) 

(quoting King v. Commonwealth, 2 Va. App. 708, 710, 347 S.E.2d 

530, 531 (1986)). Finally, although "penal statutes must be 

strictly construed against the Commonwealth and applied only in 

those cases clearly falling within the language of the statute," 

Branch v. Commonwealth, 14 Va. App. 836, 839, 419 S.E.2d 422, 

424 (1992), "'[i]t is the duty of the courts to give effect, if 

possible, to every word of the written law,'" Burnette v. 

Commonwealth, 194 Va. 785, 788, 75 S.E.2d 482, 484-85 (1953) 

(citation omitted); see also 17 Michie's Jurisprudence, Statutes

§ 42 (1994). 

 The ordinary dictionary definition of "sexual" is "1. Of, 

relating to, involving, or characteristic of sex, sexuality, the 

sexes, or the sex organs and their functions. 2. Implying or 

symbolizing erotic desires or activity. 3. Of, relating to, or 

involving the union of male and female gametes: sexual

reproduction." The American Heritage Dictionary of the English 

Language 1654 (3d ed. 1992). "Genital," in relevant part, is 

defined as "1. Of or relating to biological reproduction [or] 2. 

. . . [the reproductive organs, especially the external sex 

organs]." Id. at 756. Giving these words their plain meaning, 

the term "sexual parts" clearly encompasses certain genital 

 - 32 - 
parts, as well. However, to interpret the term "sexual parts" 

as including only genital parts or vice versa would violate 

rules of statutory construction. Instead, as set out above, we 

must presume the legislature intended to give separate meaning 

to the term "sexual parts" and did not intend merely to use 

superfluous language. See Burnette, 194 Va. at 788-89, 75 

S.E.2d at 484-85. 

 In determining whether that separate meaning includes 

buttocks, both the dictionary definition and the definitions of 

similar terms in other code sections are instructive. Under the 

second quoted definition of sexual, the term "sexual parts" 

would also include those parts which "impl[y] or symboliz[e] 

erotic desires or activity." Such a definition is not limited 

to reproductive parts. Similarly, in Code § 18.2-67.10(2), 

which defines terms used in the article proscribing various 

types of criminal sexual assault, "intimate parts" include not 

only the genitalia but also the "anus, groin, breast or 

buttocks." Further, as the trial court observed in this case, 

in Code § 18.2-390, which defines terms used in the article 

proscribing the sale or loan of certain items to juveniles, 

"sexual conduct" includes certain "actual or . . . simulated 

. . . contact in an act of apparent sexual stimulation or 

gratification with a person's clothed or unclothed genitals, 

pubic area, buttocks or, if such be female, breast." Neither of 

these definitions limits the use of the term "sexual" to the 

 - 33 - 
reproductive organs. Although the definition of sexual conduct 

requires more than simulated or actual contact, it makes clear 

that contact even with non-reproductive parts such as buttocks 

may nevertheless be sexual if accompanied by the proper intent. 

Therefore, buttocks are "sexual parts" under Code § 18.2-370.1 

if the accused, acting with the requisite lascivious intent, 

exposes his buttocks to a juvenile or proposes that a juvenile 

expose the juvenile's buttocks to the accused. Therefore, 

because the evidence supports the trial court's finding that 

appellant acted with lascivious intent, it also supports the 

finding that the buttocks exposed in each of the challenged 

cases were "sexual parts" within the meaning of the statute. 

III. 

CONCLUSION 

 For these reasons, we hold the trial court did not err in 

ruling that (1) police seizure of appellant's personal journals 

pursuant to a search warrant and the admission of the journals 

into evidence did not violate his Fifth Amendments rights, and 

any Fourth Amendment violation was subject to the good faith 

exception to the exclusionary rule; (2) buttocks are "sexual 

parts" within the meaning of Code § 18.2-370.1; and (3) the 

evidence was sufficient to support his convictions. Therefore, 

we affirm appellant's convictions. 

Affirmed.

 - 34 - 
Benton, J., with whom Coleman, J., joins, dissenting. 

 

 Because I conclude that Boyd v. United States, 116 U.S. 616 

(1886), bars the seizure and use of Moyer's diaries, I would 

hold that the trial judge's ruling permitting the use of those 

diaries against Moyer at trial violated Moyer's rights under the 

Fifth Amendment. Therefore, I respectfully dissent. 

 In relevant part, the Fifth Amendment provides that "[n]o 

person . . . shall be compelled in any criminal case to be a 

witness against himself." In Boyd, the United States Supreme 

Court held unconstitutional, under the Fourth and Fifth 

Amendments, a subpoena duces tecum ordering Boyd to produce an 

invoice which established his guilt for nonpayment of a duty 

tax. The Court explained that it was "unable to perceive that 

the seizure of a man's private books and papers to be used in 

evidence against him is substantially different from compelling 

him to be a witness against himself." Id. at 633. Thus, the 

Court held "that a compulsory production of the private books 

and papers of the [accused] . . . is compelling him to be a 

witness against himself, within the meaning of the Fifth 

Amendment to the Constitution, and is the equivalent of a search 

and seizure -- and an unreasonable search and seizure -- within 

the meaning of the Fourth Amendment." Id. at 634-35. Not even 

a warrant supported by probable cause could mask the 

"'unreasonable' character of such seizures" and legitimize the 

use of those seized documents at trial. Id. at 633. 

 - 35 - 
 Following this landmark decision, the Court has refined the 

scope of Boyd's Fifth Amendment holding. In Couch v. United 

States, 409 U.S. 322, 324 (1973), the Court decided the 

"question . . . whether the taxpayer may invoke her Fifth 

Amendment privilege against compulsory self-incrimination to 

prevent the production of her business and tax records in the 

possession of her accountant." The Court held that when an 

individual surrenders his or her business records to the 

possession of a third party, and the government subpoenas the 

third party to produce the records, the individual has no 

expectation of privacy in the records and the Fifth Amendment 

does not bar their production. See id. at 329-30. 

Significantly, the Court noted that Boyd concerned an accused 

who possessed his own private papers and "did not . . . address 

or contemplate the divergence of ownership and possession." Id.

at 330. 

 Later, in Fisher v. United States, 425 U.S. 391 (1976), the 

Court "h[eld] that compliance with a summons directing [a] 

taxpayer to produce the [taxpayer's] accountant's documents 

. . . involve[d] no incriminating testimony within the 

protection of the Fifth Amendment." Id. at 414. The Court 

clearly recognized the continuing validity of Boyd when it 

stated, "[w]hether the Fifth Amendment would shield the taxpayer 

from producing his own tax records in his possession is a 

question not involved here; for the papers demanded here are not 

 - 36 - 
his 'private papers,' see Boyd v. United States, 116 U.S. at 

634-35." Fisher, 425 U.S. at 414; see also Shapiro v. United 

States, 335 U.S. 1, 16-18 (1948) (holding that records that are 

required by statute to be kept cannot be sheltered by the 

invocation of the Fifth Amendment). 

 As in Couch, the taxpayer in Fisher did not possess the 

documents -- a third party, the taxpayer's attorney, did. Thus, 

the Court's "holding is that compelled production of documents 

from an attorney does not implicate whatever Fifth Amendment 

privilege the taxpayer might have enjoyed from being compelled 

to produce them himself." Fisher, 425 U.S. at 402. 

Furthermore, the documents that were subpoenaed in Fisher were 

documents prepared by the taxpayer's accountant, not the 

taxpayer. Accordingly, the Court said, "[w]e do hold that 

compliance with a summons directing the taxpayer to produce the 

accountant's documents involved in these cases would involve no 

incriminating testimony within the protection of the Fifth 

Amendment." 425 U.S. at 414 (emphasis added). Stating that 

"[p]urely evidentiary (but 'non testimonial') materials, as well 

as contraband and fruits and instrumentalities of crime, may now 

be searched for and seized under proper circumstances," Fisher, 

425 U.S. at 407, the Court nonetheless noted, however, that the 

question is open under the Fifth Amendment "'whether there are 

items of evidential value whose very nature precludes them from 

 - 37 - 
being the object of a reasonable search and seizure.'" Id. at 

407 n.9. 

 After its decision in Fisher, the Court held "that the 

search of an individual's office for business records, their 

seizure, and subsequent introduction into evidence do[es] not 

offend the Fifth Amendment's proscription." Andresen v. 

Maryland, 427 U.S. 463, 477 (1976). In so holding, the Court 

specifically noted "that permitting the introduction into 

evidence of a person's business records seized during an 

otherwise lawful search would [not] offend or undermine any of 

the policies undergirding the privilege." Id. at 475-76. 

Significantly, however, the Court "recognize[d], of course, that 

the Fifth Amendment protects privacy to some extent." Id. at 

477. Indeed, the Court noted that the Fifth Amendment promotes 

the following societal values: 

"The privilege against self-incrimination 

. . . reflects many of our fundamental 

values and most noble aspirations: our 

unwillingness to subject those suspected of 

crime to the cruel trilemma of 

self-accusation, perjury or contempt; our 

preference for an accusatorial rather than 

an inquisitorial system of criminal justice; 

our fear that self-incriminating statements 

will be elicited by inhumane treatment and 

abuses; our sense of fair play which 

dictates 'a fair state-individual balance by 

requiring the government to leave the 

individual alone until good cause is shown 

for disturbing him and by requiring the 

government in its contest with the 

individual to shoulder the entire load' 

. . . ; our respect for the inviolability of 

the human personality and of the right of 

 - 38 - 
each individual 'to a private enclave where 

he may lead a private life' . . . ; our 

distrust of self-deprecatory statements; and 

our realization that the privilege, while 

sometimes 'a shelter to the guilty,' is 

often 'a protection to the innocent.'" 

Id. at 476 n.8 (emphasis added). The Court again distinguished 

Boyd by noting that Boyd concerned "private papers" and did not 

"compel suppression of [the accused's] business records." Id.

at 471-72. Thus, Andresen implicitly leaves open the question 

Fisher explicitly left open. See 425 U.S. 407 n.9. 

 Still later, United States v. Doe, 465 U.S. 605, 606 

(1984), "present[ed] the issue whether, and to what extent, 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 Amendment where the accused 

voluntarily prepared the documents. See id. at 610-11. 

Answering the question not posed in Fisher, the Court held that 

the content of business records, even in the possession of the 

accused, are not privileged. See id. at 611-12. Although Doe

clearly involved business records, Justice O'Connor in a 

concurring opinion interpreted the Court's opinion in Doe to 

mean that "the Fifth Amendment provides absolutely no protection 

for the contents of private papers of any kind." 465 U.S. at 

618 (O'Connor, J., concurring). Justice Marshall, however, 

joined by Justice Brennan, adamantly disagreed and reasserted 

 - 39 - 
the principle "that under the Fifth Amendment 'there are certain 

documents no person ought to be compelled to produce at the 

Government's request.'" 465 U.S. at 619 (Marshall, J., 

concurring and dissenting) (citation omitted). In short, 

although these cases refine the holding in Boyd, the Supreme 

Court has never overruled the core holding of Boyd. 

 Although the Commonwealth is correct in asserting that the 

Supreme Court has altered its Fifth Amendment analysis, my 

analysis of these cases clearly establishes that the Court has 

only done so with respect to business papers. The Court's basic 

holding in Boyd, as applied to private papers that are 

testimonial or communicative and that are in the possession of 

the accused, has never been reversed. As the Court held in 

Boyd, "any forcible and compulsory extortion of a man's own 

testimony or of his private papers to be used as evidence to 

convict him of a crime or to forfeit his goods, is within the 

condemnation of . . . the Fourth and Fifth Amendments." 116 

U.S. at 630. Indeed, the Court has noted in dicta on several 

occasions the unique privacy interest a person has in his or her 

personal papers when those papers remain in the person's 

possession. See, e.g., United States v. Dionisio, 410 U.S. 1, 

11-12 (1973) (citing Boyd for the proposition that a grand jury 

"cannot require the production by a person of [incriminating] 

private books and records" and stating that on the facts before 

it, "no valid Fifth Amendment claim . . . [existed because 

 - 40 - 
there] was no order to produce private books and papers"); Nixon 

v. Administrator of General Services, 433 U.S. 425, 455, 459-60 

(1977) (indicating that had more of the documents the former 

President sought to protect from disclosure under the 

Presidential Recordings and Materials Preservation Act been 

private communications or personal diary dictabelts, then his 

First, Fourth, and Fifth Amendments claims would have had 

greater merit). Other courts have agreed. See, e.g., United 

States v. (Under Seal), 745 F.2d 834, 840 (4th Cir. 1985), 

vacated as moot, 471 U.S. 1001 (1985) (holding "in line with 

Boyd, that the fifth amendment prevents the government from 

subpoenaing an individual's incriminating papers that are in his 

possession and are held by him in an individual . . . 

capacity"); In Re Grand Jury Proceedings, 632 F.2d 1033, 1042 

(3rd Cir. 1980) (holding that an accused's Fifth Amendment 

rights are violated if he is required to produce his personal 

"pocket diaries"); United States v. Boyette, 299 F.2d 92, 95 

(4th Cir. 1962) (stating in dicta that "it has been thought that 

a diary in which its author has recited his criminal conduct, 

seized in an otherwise lawful search, should not be used against 

him, just as any other kind of involuntary confession is 

unusable under the Fifth Amendment"); United States v. Katin, 

109 F.R.D. 406, 409 (D. Mass. 1986) (noting that "[i]ntimate 

personal papers such as private diaries, or drafts of letters or 

 - 41 - 
essays, are not business records whose contents are unprotected 

by the Fifth Amendment"). 

 In addition to Andresen, a case involving "business 

records," 427 U.S. at 477, the Commonwealth cites United States 

v. LeVasseur, 699 F. Supp. 965 (D. Mass 1988). However, 

LeVasseur relies upon Andresen, see 699 F. Supp. at 989. In 

United States v. LeVasseur, 619 F. Supp. 775 (E.D.N.Y. 1985), 

another case cited by the Commonwealth, the trial judge refused 

a motion to suppress on Fourth Amendment grounds "coded 

notebooks" seized from the accused. Id. at 791. The sparcity 

of the description of the items leaves in question the precise 

issue raised and decided. 

 The Commonwealth also cites State v. Andrei, 574 A.2d 295 

(Me. 1990). There, the Supreme Judicial Court of Maine held 

that where the accused's husband delivered the accused's diary 

to government officials, no Fifth Amendment violation occurred. 

Thus, the court rested its decision on the fact that due to 

circumstances of the possession and delivery of the diary by a 

third party, the accused's "diary could be introduced at trial 

without any form of compulsion of the [accused]." Id. The 

decision in Andrei also relies on Andresen, which we have 

previously stated pertained solely to business records. See 574 

A.2d at 299. Likewise, in People v. Willey, 303 N.W.2d 217 

(Mich. Ct. App. 1981), the diaries were given to the police by a 

third party. See id.

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The Commonwealth further argues that Moyer's diaries are 

not protected by the Fifth Amendment privilege against 

self-incrimination because Moyer was not compelled to produce 

them. The distinction between being compelled to produce 

personal documents by subpoena, however, and having those same 

personal documents seized by the government, does not relieve 

the government of its obligation to avoid violating the Fifth 

Amendment rights of an accused. See Hill v. Philpott, 445 F.2d 

144, 149-50 (7th Cir. 1971) (holding that where production of 

the taxpayer's personal books and records would have properly 

been refused on the basis of Fifth Amendment privilege against 

self-incrimination if they had been sought by subpoena or 

summons, the fact that they were seized pursuant to valid search 

warrant did not preclude the taxpayer from claiming violation of 

his Fifth Amendment rights). As stated by the United States 

Supreme Court in Gouled v. United States, 255 U.S. 298 (1921): 

In practice the result is the same to one 

accused of crime, whether he be obliged to 

supply evidence against himself or whether 

such evidence be obtained by an illegal 

search of his premises and seizure of his 

private papers. In either case he is the 

unwilling source of the evidence, and the 

Fifth Amendment forbids that he shall be 

compelled to be a witness against himself in 

a criminal case. 

Id. at 306. This principle has been reiterated in subsequent 

cases. See Agnello v. United States, 269 U.S. 20 (1925), and 

United States v. Lefkowitz, 285 U.S. 452 (1932), and is implicit 

 - 43 - 
in the Court's rationale in both Warden v. Hayden, 387 U.S. 294 

(1967), and Schmerber v. California, 384 U.S. 757 (1966). 

 As the Third Circuit has noted, "[t]he fifth amendment 

doctrine protecting an accused from producing incriminating 

private papers manifests its vitality by virtue of the Fisher

court's explicit efforts to distinguish its facts from the facts 

in Boyd." In Re Grand Jury Proceedings, 632 F.2d at 1043 

(citing Fisher, 425 U.S. at 414). Clearly, Andresen, which 

concerned the police search of an individual's office and 

seizure of business records is not controlling when the issue 

pertains to private diaries of a testimonial and communicative 

nature. Indeed, the Supreme Court recently emphasized the 

important constitutional distinction between "testimonial" and 

other communications: 

The term "privilege against 

self-incrimination" is not an entirely 

accurate description of a person's 

constitutional protection against being 

"compelled in any criminal case to be a 

witness against himself." 

 The word "witness" in the constitutional 

text limits the relevant category of 

compelled incriminating communications to 

those that are "testimonial" in character. 

As Justice Holmes observed, there is a 

significant difference between the use of 

compulsion to extort communications from a 

defendant and compelling a person to engage 

in conduct that may be incriminating. Thus, 

even though the act may provide 

incriminating evidence, a criminal suspect 

may be compelled to put on a shirt, to 

provide a blood sample or handwriting 

exemplar, or to make a recording of his 

 - 44 - 
voice. The act of exhibiting such physical 

characteristics is not the same as a sworn 

communication by a witness that relates 

either express or implied assertions of fact 

or belief. Pennsylvania v. Muniz, 496 U.S. 

582, 594-598 (1990). Similarly, the fact 

that incriminating evidence may be the 

byproduct of obedience to a regulatory 

requirement, such as filing an income tax 

return, maintaining required records, or 

reporting an accident, does not clothe such 

required conduct with the testimonial 

privilege. 

United States v. Hubbell, ___ U.S. ___, ___ (2000) (Slip. op.). 

The aspect of the Boyd decision providing protection for diaries 

of a testimonial nature stands undisturbed. 

 For these reasons, I would hold that the trial judge's 

ruling that permitted the use of those diaries against Moyer at 

trial violated Moyer's rights under the Fifth Amendment. 

 I also disagree with the majority's interpretation of Code 

§ 18.2-370.1. During trial, the trial judge ruled that 

"buttocks" are "sexual . . . parts" within the meaning of Code 

§ 18.2-370.1. Moyer contends that ruling was error and that, 

because the evidence supporting five of the indictments proved 

only that "bare buttocks" were exposed, we should reverse those 

convictions on the ground that the evidence was insufficient. 

Moyer further contends that "evidence throughout the trial of 

paddling on buttocks and exposure of buttocks . . . flavored and 

colored the evidence regarding the other indictments," 

prejudically affecting all the other convictions. 

 - 45 - 
 Code § 18.2-370.1 provides as follows: 

Any person eighteen years of age or older 

who maintains a custodial or supervisory 

relationship over a child under the age of 

eighteen, including but not limited to the 

parent, step-parent, grandparent, 

step-grandparent, or who stands in loco 

parentis with respect to such child and is 

not legally married to such child, and who, 

with lascivious intent, knowingly and 

intentionally (i) proposes that any such 

child feel or fondle the sexual or genital 

parts of such person or that such person 

feel or handle the sexual or genital parts

of the child, or (ii) proposes to such child 

the performance of an act of sexual 

intercourse or any act constituting an 

offense under § 18.2-361, or (iii) expose 

his or her sexual or genital parts to such 

child, or (iv) proposes that any such child 

expose his or her sexual or genital parts to 

such person, or (v) proposes to the child 

that the child engage in sexual intercourse, 

sodomy or fondling of sexual or genital 

parts with another person, or (vi) sexually 

abuses the child as defined in 

§ 18.2-67.10(6), shall be guilty of a Class 

6 felony. 

(Emphasis added). 

 The trial judge concluded, and the majority now affirms, 

that our decision in Hart v. Commonwealth, 18 Va. App. 77, 441 

S.E.2d 706 (1994), necessarily leads to the conclusion that 

"buttocks" are "sexual . . . parts" under the statute. In Hart, 

the accused was charged and convicted of indecent exposure under 

Code § 18.2-387, which makes it a misdemeanor to "obscene[ly] 

display or expos[e]" ones "person, or the private parts thereof, 

in any public place." See Hart, 18 Va. App. at 78, 441 S.E.2d 

at 706. Ruling that the meaning of the word "private parts" was 

 - 46 - 
ambiguous, and consistent with well recited rules of statutory 

construction, we looked to other sections of our Code for 

guidance. See id. at 79, 441 S.E.2d at 707. This analysis 

supported the holding in Hart that the legislature intended 

"buttocks" to be "private parts" within the meaning of Code 

§ 18.2-387. Id.

 We face no such ambiguity here. Except for subsection (ii) 

and (vi), which are inapplicable in this case, Code § 18.2-370.1 

clearly addresses conduct in which "sexual or genital parts" 

were either fondled, exposed, or proposed to be fondled or 

exposed. Unlike the term "private parts," which could have a 

number of meanings depending on the source of inquiry, I 

perceive no ambiguity in the meaning of "sexual or genital 

parts." "Sexual" is defined as "of or relating to the male or 

female sexes or their distinctive organs or functions." 

Webster's Third New International Dictionary 2082 (1981). 

"Sexual organ," a term relevant to any inquiry of the meaning of 

"sexual part," is defined as "an organ of the reproductive 

system; an external generative organ." Id. "Genital" is 

defined as "generative" and "relating to or being a sexual 

organ." Id. at 946. The definitions are clear, precise, and 

unambiguous. 

"Where a statute is unambiguous, the plain 

meaning is to be accepted without resort to 

the rules of statutory interpretation." 

"'Courts are not permitted to rewrite 

statutes. This is a legislative function. 

 - 47 - 
The manifest intention of the legislature, 

clearly disclosed by its language, must be 

applied.'" Accordingly, we must "'take the 

words as written'" in Code § 18.2-370.1 and 

give them their plain meaning. 

Krampen v. Commonwealth, 29 Va. App. 163, 167, 510 S.E.2d 276, 

278 (1999). 

 Nothing in the definition of "sexual" or "sexual organ" 

supports the majority's conclusion that buttocks are "sexual 

. . . parts" within the meaning of Code § 18.2-370.1. Buttocks 

are neither "an organ of the reproductive system," nor are they 

"an external generative organ." Furthermore, buttocks do not 

"relat[e] to the male or female sexes or their distinctive 

organs or functions." While a buttock may be a "private part," 

such that the legislature made it illegal to expose the buttocks 

under Code § 18.2-387, see Hart, I do not agree that buttocks 

are "sexual parts" under Code § 18.2-370.1. 

 I would hold, therefore, that the trial judge's finding 

tainted his ruling on the evidence. I cannot say, however, that 

upon a proper consideration of the evidence, the convictions 

necessarily would be unsupported by sufficient evidence. The 

evidence properly presented might establish that one who exposes 

his or her buttocks exposed his or her genitalia as well. See

State v. Fly, 501 S.E.2d 656, 659 (N.C. 1998) (holding that 

where the accused, wearing only a baseball hat and pants around 

his ankles, bent over so that his bare buttocks faced the 

complaining witness, a "jury could reasonably find . . . that 

 - 48 - 
[the accused] had exposed . . . either his anus, his genitals, 

or both"). Because the trial judge ruled incorrectly, however, 

concerning the law, he made no findings on this point on each of 

the instances involving exposed buttocks. Thus, I cannot 

conclude that if properly viewed, the evidence would have 

excluded this possibility. 

 For these reasons, I would reverse the convictions and 

remand for a new trial without permitting the use of the diaries 

at that trial. 

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