COURT OF APPEALS OF VIRGINIA

Present: Judges Beales, Causey and Senior Judge Haley

Argued at Richmond, Virginia

KEITH WAYNE RIVERS

MEMORANDUM OPINION* BY

v. Record No. 0850-22-2 JUDGE RANDOLPH A. BEALES

OCTOBER 17, 2023

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF COLONIAL HEIGHTS

Jayne A. Pemberton, Judge1

(Sante John Piracci; Sante J. Piracci P.C., on brief), for appellant. 

Appellant submitting on brief.

Craig W. Stallard, Assistant Attorney General (Jason S. Miyares,

Attorney General, on brief), for appellee.

Following a jury trial, Keith Wayne Rivers was convicted of attempted unlawful creation of 

an image of a nonconsenting minor, a felony offense. On appeal, Rivers argues that the evidence 

was insufficient to convict him. Specifically, he contends that the Commonwealth failed to prove

that he “had the specific intent to attempt to film a non-consenting person.” 

I. BACKGROUND

In accordance with established principles of appellate review for a sufficiency of the 

evidence case, we view the “evidence in the light most favorable to the Commonwealth, as we 

must since it was the prevailing party in the trial court.” Riner v. Commonwealth, 268 Va. 296, 

330 (2004). This standard “requires us to ‘discard the evidence of the accused in conflict with 

that of the Commonwealth, and regard as true all the credible evidence favorable to the 

* This opinion is not designated for publication. See Code § 17.1-413(A).

1 The Honorable Lynn S. Brice presided over the jury trial.

UNPUBLISHED
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Commonwealth and all fair inferences to be drawn therefrom.’” Commonwealth v. Cady, 300 

Va. 325, 329 (2021) (quoting Commonwealth v. Perkins, 295 Va. 323, 324 (2018)).

On July 25, 2021, Rivers encountered a seven-year-old girl, E.B., while in a Target store in 

Colonial Heights.2 Rivers’s behavior towards E.B. caught the attention of Dennis Spagnuolo, 

another customer who happened to be in the aisle at the same time and who did not know either 

Rivers or E.B. Spagnuolo watched as Rivers “st[ood] over top of” E.B., while Rivers was holding 

his smartphone. Spagnuolo testified at trial that Rivers appeared to be “video taping up and down 

her legs and around her body.” At some point during this interaction, Rivers “turned the phone up 

under” E.B.’s baggy gym shorts. Spagnuolo observed Rivers’s demeanor to be “[v]ery . . .

unsettling.” Rivers also put his hand on top of the child’s head and he “was kind of giggly about it.” 

Spagnuolo approached Rivers and saw that Rivers’s smartphone had a video recording application 

open, and Spagnuolo “could see it clearly videoing something,” although he was not sure if it was 

recording. Spagnuolo confronted Rivers who quickly muttered something and rushed out of the 

Target. Spagnuolo alerted E.B.’s mother to what Rivers had been doing to E.B. The two of them 

then quickly asked the Target employees to call 911, and they chased Rivers into the parking lot.

As established by the testimony of Spagnuolo and E.B.’s mother at trial, the pair confronted 

Rivers as he fled in the parking lot. The mother attempted to grab Rivers’s smartphone from his 

pocket, but she was only able to grab his wallet. Rivers briefly turned and said, “[Y]ou can’t do 

that,” but then continued to flee, quickly got into his vehicle, and fled the parking lot. E.B.’s mother

found Rivers’s ID card in the wallet and provided the ID card to police when they arrived. 

Later the same day, Rivers was arrested in his apartment and subsequently interviewed by 

Officer Morgan Davis. As established by Officer Davis’s testimony and body-worn camera footage 

recorded during the interview, Rivers denied filming E.B. in Target and stated that he did not have 

2 We use initials, instead of the child’s name, in an attempt to better protect her privacy.
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any phone with him at Target at all. A search of Rivers’s car and his person uncovered only a small

flip phone, not the type of smartphone Spagnuolo and E.B.’s mother had seen in Rivers’s possession

while at Target. However, Rivers’s smartphone was later turned in to police by Rivers’s landlord, 

Robert Szozda. 

At trial, Szozda testified that on August 11, 2021, he received a letter from Riverside

Regional Jail.

3 The letter, which was introduced into evidence at trial, was signed “Keith” and, 

according to Szozda’s testimony, the return address on the envelope named “Keith Rivers.” The 

letter detailed where the smartphone’s location was and explained that “[t]hey wanted to get it but I 

was drinking and paranoid, so I tossed it.” The letter directed Szozda to “[j]ust throw away that 

[phone] if you find it.” Szozda found the smartphone in a clear bag outside, about five to eight feet 

away from the kitchen window of Rivers’s second-story apartment. The police executed a search 

warrant of the phone’s contents. Officer Davis testified that although the search did not yield any 

viewable videos or pictures of E.B., the phone’s contents did show that eight pictures and nine 

videos had been taken on July 25, 2021 – the day Rivers had been in Target with E.B. – but had 

been subsequently deleted. 

At the close of the evidence Rivers made a motion to strike, which was denied by the trial 

court. A jury found Rivers guilty of attempted unlawful creation of an image of a nonconsenting 

minor in violation of Code § 18.2-386.1. See also Code § 18.2-26. Rivers now appeals to this 

Court.

II. ANALYSIS

“When reviewing the sufficiency of the evidence, ‘[t]he judgment of the trial court is 

presumed correct and will not be disturbed unless it is plainly wrong or without evidence to support 

it.’” McGowan v. Commonwealth, 72 Va. App. 513, 521 (2020) (alteration in original) (quoting 

3 Rivers was incarcerated at Riverside Regional Jail in Prince George, Virginia. 
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Smith v. Commonwealth, 296 Va. 450, 460 (2018)). In such cases, “a reviewing 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, 663 (2003) (quoting Jackson v. Virginia, 

443 U.S. 307, 318-19 (1979)). “Rather, the relevant question is whether ‘any rational trier of 

fact could have found the essential elements of the crime beyond a reasonable doubt.’” Vasquez 

v. Commonwealth, 291 Va. 232, 248 (2016) (quoting Williams v. Commonwealth, 278 Va. 190, 

193 (2009)). 

On appeal, Rivers argues that the evidence was insufficient to prove that he “had the 

specific intent to attempt to film a non-consenting person.” Rivers contends that “[t]he only 

direct evidence of the purported attempted filming came from Spagnuolo,” that Spagnuolo only 

observed Rivers’s actions for “a period of ten seconds,” and that Spagnuolo “could not tell 

whether it [Rivers’s phone] was in fact recording” at the time. Rivers further argues that his own 

conduct after being confronted in Target was “certainly suspect but is not inconsistent with an 

innocent person being wrongfully accused of filming a young girl.” 

At trial, Rivers was charged with and convicted of attempting to create a videographic or 

still image of E.B., in violation of Code § 18.2-386.1. See Code § 18.2-26. Specifically, Code 

§ 18.2-386.1 prohibits knowingly and intentionally creating a videographic or still image of a 

nonconsenting person by placing the lens of a camera “in a position directly beneath or between 

a person’s legs for the purpose of capturing an image of the person’s intimate parts or 
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undergarments” when that person’s intimate parts or undergarments are not otherwise visible to 

the public.4

As this Court has previously stated in binding precedent, given that Rivers was charged only 

with attempt – not the completed crime – “it was not necessary for the Commonwealth to prove that 

he, in fact, accomplished ‘directly’ photographing [the victim] in the proscribed manner under the 

statute.” Wilson v. Commonwealth, 53 Va. App. 599, 607 (2009). “For the same reason, it was not 

necessary for the Commonwealth to offer proof that [Rivers] actually photographed anything.” Id.

(citing Hix v. Commonwealth, 270 Va. 335, 341 (2005)). Because Rivers was charged with an 

attempt crime, the Commonwealth had to prove two elements at trial: (1) Rivers’s “intent to commit 

[the offense],” and (2) “a direct, ineffectual act done toward its commission.” Hix, 270 Va. at 347 

(quoting Barrett v. Commonwealth, 210 Va. 153, 156 (1969)). 

Here, Rivers’s intent to create an image of E.B. in violation of Code § 18.2-386.1 and 

Rivers’s performance of an act toward the commission of his illegal goal are clearly established by 

Spagnuolo’s testimony. See Code § 18.2-26; Fletcher v. Commonwealth, 72 Va. App. 493, 506 

4 The text of Code § 18.2-386.1 provides, in relevant part, as follows:

A. It shall be unlawful for any person to knowingly and 

intentionally create any videographic or still image by any means 

whatsoever of any nonconsenting person if (i) that person is totally 

nude, clad in undergarments, or in a state of undress so as to 

expose the genitals, pubic area, buttocks or female breast in a 

restroom, dressing room, locker room, hotel room, motel room, 

tanning bed, tanning booth, bedroom or other location; or (ii) the 

videographic or still image is created by placing the lens or 

image-gathering component of the recording device in a position 

directly beneath or between a person’s legs for the purpose of 

capturing an image of the person’s intimate parts or undergarments 

covering those intimate parts when the intimate parts or 

undergarments would not otherwise be visible to the general 

public; and when the circumstances set forth in clause (i) or (ii) are 

otherwise such that the person being recorded would have a 

reasonable expectation of privacy.
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(2020) (“Because intent is a ‘state of mind,’ it ‘may be proved by a person’s conduct or by his 

statements.’” (quoting Barrett, 210 Va. at 156)); see McCary v. Commonwealth, 36 Va. App. 27, 

41 (2001). Spagnuolo testified at trial that he saw Rivers waving his phone “up and down 

[E.B.’s] legs and around her body. Pretty much everywhere.” Spagnuolo further testified that 

Rivers “was scanning over her and he went to her shorts and kind of turned the phone up under

it. . . . [H]e went to her underside.” Furthermore, Spagnuolo confirmed that Rivers’s phone was 

in a position where the phone camera lens could see under E.B.’s shorts. All the while, Rivers 

was “very close to her. Very behind her. I mean within inches.” In addition, Spagnuolo 

testified that Rivers “looked like he was video taping.” Spagnuolo further testified that he knew 

the phone’s camera or video application was running because Spagnuolo “could see what [the 

phone] was looking at.” When asked, “was the camera or video app opened,” Spagnuolo 

answered, “Yes.” The jury found Rivers guilty, and in so doing implicitly found Spagnuolo’s 

testimony credible. See Perkins, 295 Va. at 328 (“The credibility of the witnesses and the weight 

accorded the evidence are matters solely for the fact finder who has the opportunity to see and 

hear that evidence as it is presented.” (quoting Elliott v. Commonwealth, 277 Va. 457, 462 

(2009))).

In addition to Spagnuolo’s credible testimony, the record before us on appeal contains

further evidence of Rivers’s consciousness of guilt. As established by the testimony and exhibits 

at trial, Rivers fled from the Target once confronted. After E.B.’s mother grabbed Rivers’s

wallet, he briefly protested but then quickly fled the parking lot without attempting to go back 

and recover his wallet. Following Rivers’s arrest, Rivers sent a letter to his landlord, Robert 

Szozda, in which Rivers admitted, “I already made a bunch of bad decisions, but maybe I can 

move forward in the right direction from here.” In that same letter, Rivers described where he

left his smartphone. Rivers stated, “I threw [it] out the window by the grill,” and “[t]hey wanted 
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to get it.” Rivers asked Szozda to “[j]ust throw away that if you find it.” Szozda then found the 

smartphone in a clear plastic bag right where Rivers said it would be – on the ground below the 

second-story window of Rivers’s apartment. Not only was the jury entitled to infer that Rivers 

concealed this smartphone, the jury was also entitled to determine that Rivers lied during his 

interview with police when he told Officer Davis that he never had his smartphone with him at 

Target. See Perkins, 295 Va. at 328-31. Finally, when police later searched Rivers’s smartphone, 

they found data establishing that eight photos and nine videos were created on the smartphone on 

the date that Rivers positioned his phone camera under E.B.’s shorts but that the photo and video 

files themselves had been deleted. 

As stated previously by this Court, “the fact of an accused’s flight, escape from custody, 

resistance to arrest, concealment . . . and related conduct are admissible as evidence of 

consciousness of guilt, and thus of guilt itself.” Palmer v. Commonwealth, 14 Va. App. 346, 348-49 

(1992) (emphases added); see Jones v. Commonwealth, 279 Va. 52, 58 (2010) (finding that acts 

of deceitful behavior immediately following the commission of a crime may be considered as 

evidence that shows the defendant’s consciousness of guilt); Rams v. Commonwealth, 70 

Va. App. 12, 27 (2019) (“[I]n drawing inferences from the evidence, the fact finder may 

conclude regarding even a non-testifying defendant that his false statements establish that he has 

lied to conceal his guilt.”).

Given the totality of the evidence presented in the case now before us, with all reasonable 

inferences drawn therefrom, we certainly cannot say that no rational trier of fact could have found 

the evidence sufficient to conclude that Rivers attempted to create a video or photograph of 

seven-year-old E.B. in violation of Code § 18.2-386.1 by placing his phone camera lens 

underneath E.B.’s shorts facing toward her undergarments and intimate parts.
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III. CONCLUSION

For all of the foregoing reasons, we affirm the trial court. 

Affirmed.