COURT OF APPEALS OF VIRGINIA

Present: Judges Al ston, Huff and Chafin Argued at Alexandria, Virginia

QUYEN VINH PHAN LE MEMORANDUM OPINION * BY v. Record No. 1711-13-4 JUDGE TERESA M. CHAFIN OCTOBER 21, 2014 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF FAIRFAX COUNTY Brett A. Kassabian, Judge Justin Daniel (Whitestone, Brent, Young, & Merril, P. C., on briefs), for appellant. Susan Baumgartner, Assistant At torney General (Mark R. Herring, Attorney General, on brief), for appellee.

At the conclusion of a four-day jury trial held in the Circuit Court of Fairfax County (“circuit court”), Quyen Vinh Phan Le (“Phan Le”) was convicted of three counts of possession of child pornography in violation of Code § 18.2-374.1:1. On appeal, Phan Le challenges the sufficiency of the evidence supporting his convic tions. Specifically, Phan Le argues that the images he possessed depicting a nude seventeen-y ear-old girl were not “s exually explicit visual material” under Code § 18.2-374.1 and, therefore, did not constitute child pornography. For the reasons that follow, we affi rm Phan Le’s convictions.

I. BACKGROUND “On appeal, ‘we review the ev idence in the light most fa vorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quo ting Martin v. Commonwealth, 4 Va. App.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.UNPUBLISHED- 2 - 438, 443, 358 S.E.2d 415, 418 (1987)). So viewed, the evidence established that Phan Le operated a martial arts training school. C.K., the victim in the present ca se, began training with Phan Le when she was six or eight years ol d. She excelled in tae kwon do under Phan Le’s coaching, and reached high levels of achievement in that discipline. When C.K. was sixteen or seventeen years old, she and Phan Le began having a sexual relationship. 1 C.K. frequently participated in tae kwon do tournaments throughout the United States and in other countries, and Phan Le and C.K.’s mother traveled to these tournaments with her. In order to minimize travel expenses, Phan Le occasi onally stayed in the same hotel room as C.K. and her mother. C.K. participated in a tour nament in Florida in May of 2008 when she was seventeen years old. C.K. testifie d that she had to “cut weight” befo re this tournament to be able to participate in her weight cl ass. After she arrived in Florida, C.K. engaged in a grueling process to help her lose water weight that involved running, st arving, and sweating. During the weight cutting process, Phan Le cal led C.K. into his hotel room and told her to take off her clothes. C.K. did so, and lay down on a bed. Phan Le then proceeded to create images using the camera on his cell phone of C. K. lying on the bed completely nude. When C.K. told Phan Le to stop, he told her he would ruin her life and threatened to show the images to

others. While Phan Le did not instruct C.K. to lie down on the bed or otherwise tell her how to pose, he groped her breast during this process. After Phan Le finished creating the images, C.K. dressed, left the room, and continue d to prepare for the tournament. On October 26, 2011, officers from the Fairfa x County Police Department seized two laptop computers from Phan Le’s home. Upon forensic analysis, detectives discovered nude images of C.K. on both computers. Two images depicted C.K. lying on a bed completely nude, with her genitalia and breasts fully exposed. One of these images, introduced at trial as

1 Phan Le was thirty-six or thirty-seven years old at this time.- 3 - Commonwealth’s Exhibit 1, was taken from a closer distance than the other, and it clearly showed C.K.’s face. The other image, introduced at trial as Commonwealth’s Exhibit 2, showed C.K.’s entire body. While her face was visible in this image, the image focused on C.K.’s genitalia and body. C.K.’s legs were slightly spread in this image. A third image, introduced at trial as Commonwealth’s Exhibit 3, showed C.K. sitting up on the bed. Like the other two images, it depicted C.K. completely nude. Unlik e the other images, however, it was taken from the side of the bed and therefore provided a side vi ew of C.K. rather than a frontal view of her. C.K.’s legs were spread to an even greater degr ee in this image, with one of her feet extending off the edge of the bed. At trial, Phan Le made a motion to strike at the close of the Commonwealth’s evidence and argued that the images of C. K. did not constitute sexually e xplicit visual material or child pornography. The circuit court denied Phan Le’s motion, placing emphasis on the sexual relationship between C.K. and Phan Le at the time the images were created and the fact that Phan Le groped C.K.’s breast while creating the images. Phan Le then put on defense evidence. At the close of all evidence, Phan Le made another motion to strike based on the same argument. The circuit court again denied his motion. The jury convicted Phan Le of three counts of possession of child pornography, and he app ealed his convictions to this Court.

II. ANALYSIS On appeal, Phan Le contends that the circ uit court erred by denying his motion to strike

because the evidence failed to establish that the images he possessed were child pornography. When considering the sufficiency of the eviden ce on appeal, we “presume the judgment of the

trial court to be correct” and reve rse only if the trial court’s decisi on is “plainly wrong or without evidence to support it.” Davis v. Commo nwealth, 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002); see also McGee v. Commonwealth, 25 Va. A pp. 193, 197-98, 487 S.E.2d 259, 261- 4 - (1997) ( en banc ). Under this standard, “a reviewi ng court does not ‘ask itself whether it believes

that the evidence at the trial established guilt beyond a reasonable doubt.’” Crowder v. Commonwealth, 41 Va. App. 658, 662, 588 S.E.2d 384, 387 (2003) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). It asks instead whether “‘ any rational trier of fact could have

found the essential elements of the crime be yond a reasonable doubt.’” Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) ( en banc ) (quoting Jackson, 443 U.S. at 319). We do not “substitute our judgment for that of th e trier of fact” even if our opinion were to differ. Wactor v. Commonwealth, 38 Va . App. 375, 380, 564 S.E.2d 160, 162 (2002). “This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evid ence, and to draw reasonable in ferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319. Phan Le argues that the images of C.K. did not constitute sexually explicit visual material and, therefore, were not child pornography. Code § 18.2-374.1(A) defines “child pornography” as “sexually explicit visual material which utiliz es or has as a subject an identifiable minor.” 2 That same section defines “sexually explicit visu al material” to include “a picture, photograph . . . [or] digital image . . . which depicts . . . a lewd exhibition of nudity, as nudity is defined in [Code] § 18.2-390.” Code § 18.2-390 defines “nudity ” as “a state of undress so as to expose the human male or female genitals, pubic area or buttocks with less than a full opaque covering.”

“It is well established that ‘nudity alone is not enough to make material legally obscene.’” Asa v. Commonwealth, 17 Va. App. 714, 718, 441 S.E.2d 26, 29 (1994) (quoting Jenkins v. Georgia, 418 U.S. 153, 16 1 (1974)). Nude images are onl y “sexually explicit visual material” as that term is defined by Code § 18.2-374.1 if they are “lewd.” Id. “‘Lewd’ is a

2 The definition of “identifiable minor” includ es “a person who was a minor at the time the visual depiction wa s created.” Code § 18.2-374.1(A). Ph an Le conceded that C.K. was seventeen years old at the time he created the images in question.- 5 - synonym of ‘lascivious’ a nd ‘indecent.’ This Court has . . . de fined ‘lascivious’ to mean ‘a state of mind that is eager for sexual i ndulgence, desirous of inciting to lust or of inciting sexual desire and appetite.’” Id. (quoting Dickerson v. City of Richmond, 2 Va. App. 473, 479, 346 S.E.2d 333, 336 (1986)). Images depicting mere nudity coupled with additional circumstances may constitute “lewd exhibitions of nudity” and “sexually explicit visual material.” In Asa, this Court addressed a series of photographs depicting a nude teenage girl. See id. This Court held that close-up photographs primarily focused on the teen ager’s genitalia constituted lewd exhibitions of nudity. See id. This Court also found that a sexually provocative pose designed to maximize the view of the teenager’s genitalia contribu ted to the lewdness of the photographs. See id. (addressing a pose in which the victim sat with he r knees drawn up to her breasts “with her legs widely spread to expose a front al view of her genitalia”). 3 In general, however, mere nudity, without mo re, is not a “lewd exhi bition of nudity.” See Foster v. Commonwealth, 6 Va. App. 313, 329, 369 S.E.2d 688, 698 (1988) (“[T]he photographing of exposed nipples, while within the literal definition of nudity under Code § 18.2-390, is not, without more, the lewd exhibition of nudity . . . .”); Frantz v. Commonwealth, 9 Va. App. 348, 353-54, 388 S.E.2d 273, 276 (1990) ( photographs of nude boys “just standing there” did not depict lewd exhibitions of nudity). While this Court held in Asa that close-up

3 This Court also held that images depicti ng nudity coupled with additional circumstances constituted sexually explicit visual mate rial in Bliss v. Comm onwealth, No. 1411-13-3, 2014 Va. App. LEXIS 177 (Va. Ct. App. May 13, 2014), and Kellison v. Commonwealth, No. 0269-10-2, 2010 Va. App. LEXIS 455 (Va. Ct. A pp. Nov. 23, 2010). In Bliss, this Court held that an image depicting a close-up view of a seventeen-year-old girl’s genitalia being manipulated by her hand constituted sexually ex plicit visual material . Bliss, 2014 Va. App. LEXIS, at *10-11. In Kellison, this Court held that images displa ying a seventeen-year-old girl’s breasts in a “relatively sultry pose” constitute d lewd exhibitions of nudity. Kellison, 2010 Va. App. LEXIS, at *4-7. While these unpublished d ecisions have no precedential value, we cite them here as informative decisions pursuant to Rule 5A:1(f).- 6 - photographs focusing on the teenage gi rl’s genitalia were lewd exhi bitions of nudity, it held that photographs depicting the girl “sta nding nude with her feet togeth er and her hands at her side” did not meet the “statutory require ment of ‘sexually explicit visual material.’” Asa, 17 Va. App. at 718, 388 S.E.2d at 29. In reaching this deci sion, this Court noted that, while the girl’s “breasts, buttocks, and genitals” were picture d, they were not the “central focus of the photographs.” Id. The circumstances of the present case support th e jury’s determination that the images of C.K. displayed lewd exhibitions of nudity. C. K. was not merely standing nude in the images. The three images on which Phan Le’s convictions were based depict C.K. lying and sitting on a bed, a sexually suggestive setting. All three of these images depict both C.K.’s breasts and her genitalia, with each image displayi ng a view from a different angle. More importantly, the series of images depicts a progression of C.K.’s legs gra dually being spread. C.K.’s legs are spread in two of the images in a manner that could reasonab ly be interpreted as a provocative sexual pose. One of the images depicting C.K. lying on the bed is taken from a closer perspective so that it clearly shows her face, breasts, and genitalia. The other image showing C.K. lying on the bed is taken from farther away, and focuses on her body and genitalia. Notabl y, C.K.’s genitalia is positioned in the center of this image and her legs are slightly spread. The third image is taken from the side of the bed, and displays a side view of C.K.’s breasts, genitalia, and body. Her legs are spread to an even greater degree in this imag e, with one of her feet extending off the edge of

the bed. Additionally, the context of this case implies that the images were created with a

lascivious intent. C.K. was se venteen years old when the images were created, but she testified that she began a sexual relationship with Phan Le when she was sixteen or seventeen years old. Accordingly, the jury could infer that C.K. was in a sexual relationship with Phan Le when he- 7 - created the images in question. Phan Le’s sexual relationship with C.K. implied that he created the images for his own sexual arousal and gratif ication. This implicati on was further supported by the evidence that Phan Le groped C.K. ’s breast as he created the images. 4 Under these circumstances, a reasonable fact finder could infer that Phan Le created the images with a lascivious intent. The images in question were created for the purpose of inciting lust and sexual desire, and Phan Le’s lascivious intent in creat ing the images provided additional support for the jury’s determination that they depict ed lewd exhibitions of nudity. In conclusion, we hold that a rational trier of fact could have found the essential elements of the charged offenses beyond a reasonable doubt. Based on the evidence presented at trial, a reasonable fact finder could conclude that the imag es of C.K. depicted lewd displays of nudity that made them sexually explicit visual material and, therefore, child pornography. The images portrayed C.K.’s breasts and genitalia from diffe rent angles while she was lying and sitting on a bed in a somewhat provocative pose. The images also depicted a progression of C.K.’s legs gradually being spread. Further, the sexual relationship between Ph an Le and C.K. implied that

4 We note that this Court previously held that a photographer’s sexual arousal while taking photographs of nude child ren was irrelevant to the de termination of whether those photographs depicted lewd exhibitions of nudit y. See Frantz, 9 Va. App. at 353-54, 388 S.E.2d at 276. In Frantz, a photographer removed hi s clothing and masturbated while taking photographs of nude boys. Id. at 351, 388 S.E.2d at275. The present case is distinguished from Frantz by the sexual relationship between Phan Le and C.K. The photographer in Frantz was not engaged in an ongoing sexual relationship with the boys that he photographed. He hired young boys to do chores at his photography development business then offered to pay them to model nude in his photographs. Id. at 350-52, 388 S.E.2d at 274-75. Additionally, we note that the photographs at issue in Frantz were not admitted into evidence in that case and therefore were not viewed by the factfinder. Id. at 352, 388 S.E.2d at 276. In th e present case, the jury and circuit court actually viewed the images of C.K. when determining whether they constituted lewd exhibitions of nudity, and their f actual determinations based on th ese images are entitled to a high degree of deference on appeal.- 8 - Phan Le created the images with a lascivious in tent. For these reasons, we affirm the circuit

court’s decision.

Affirmed.