COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, AtLee and Senior Judge Clements Argued at Lexington, Virginia

ASHBY COLEMAN MEMORANDUM OPINION * BY v. Record No. 0096-16-3 J UDGE RICHARD Y. ATLEE, JR. DECEMBER 27, 2016 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CAMPBELL COUNTY John T. Cook, Judge J. Lloyd Snook, III (Snook & Haughey, P.C., on briefs), for appellant. Donald E. Jeffrey, III, Senior Assi stant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

A jury in the Circuit Court of Campbell C ounty (“trial court”) c onvicted appellant Ashby

Coleman of two counts of distribu ting child pornography. He receiv ed a sentence of five years in prison for each charge, the minimum sentence. The trial court suspended four years, yielding an active sentence of six years. The charge s arose from two photos Coleman uploaded to a public Pinterest 1 page. Exhibit One depicted a close shot of male and female genitalia. Exhibit Two depicted three nude young wo men lying on their stomachs on a bed, facing away from the camera with their legs spread. In seven assignm ents of error, Colema n argues the trial court erred in (1) finding that eitherphoto was a “lewd” depiction of nudity; (2) finding that either photo depicted a minor; (3) finding that Colema n took knowing action with respect to Exhibit

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.

1 “Pinterest allows users to organize and sh are images, or ‘pins’ on virtual ‘pinboards’— akin to public online bulletin boa rds. Users can then browse the pinboards of other users and ‘re-pin’ any content therein. Us ers can also post comments on pins of their own or pins of others.” Paul D. McGrady, Jr., Mc Grady on Social Media § 34.02 (2017).UNPUBLISHED- 2 - Two; (4) denying Coleman’s request to set aside th e verdict because the jury was not instructed on what it means to “knowingly” distribute le wd photos of minors; and (5) allowing the Commonwealth to argue to the jury that the appearance of the subj ects in the pictures can be used to infer the age of the subjects. For the following reasons, we affirm.

I. F ACTS Officers with the Southern Virginia Internet Crimes Against Children Task Force (“ICAC”) opened an investigation after receiving information from the National Center for Missing and Exploited Children that included tw o photographs officers su spected “in [their] professional opinion,” to be child pornography, an email address a ssociated with the Pinterest account where the images were found, and the IP address from which the images were uploaded,

which was associated with Coleman’s residence. As part of this investigation, law enforcement

officers from the ICAC visited the Coleman ho me. Coleman’s mother answered the door. While one officer was explaining to her that they had received a “cyber tip” regarding suspected child pornography, Coleman approached and said “I think I’m the one you’re looking for.”

Coleman admitted that the email address associat ed with the Pinterest account was his, and acknowledged that he has posted Exhibit One to the website. One officer testified that although he knew he showed Coleman Exhibit One, he di d not recall with certainty whether he showed

Coleman Exhibit Two. He “believe [d]” he did, but recalled that he also “didn’t want to expose [Coleman’s] mother to that at the time.” At trial, Coleman testified that he had struggled with pornogra phy since middle school.

Coleman’s mother stated that she had a “zero tolerance policy” towards pornography, so when she discovered Coleman had been viewing it, she in stalled software on his computer that blocked access to certain websites and provi ded her with logs of website s he visited, along with other measures. After Coleman turned eighteen, he went to college. Because Pinterest was not- 3 - blocked by the software, he used that website to post photos for later viewing. Although Coleman testified that he poste d the photos for personal use, he “knew that there was a possibility that other people might see them.” He stated that he did not sp ecifically recall posting Exhibit Two, but conceded that he was not awar e of anyone else posting images to his account.

Coleman further confirmed that his account wa s password-protected. He acknowledged that, while looking for images of girl s his own age, he had used the search term “kiddy porn” when other terms appeared to provide only adult pornography. When he was older, after searches for sixteen and seventeen-year-old girls failed to yield the desired results, he told an investigator that he “put the search terms a little lower.” He main tained at trial, however, that he believed he only

ever obtained a dult pornography.

II. S UFFICIENCY OF THE E VIDENCE Coleman argues the evidence is insufficient to show that either photo depicted minors or was a “lewd depiction of nudity.” He also claims the Commonwealth failed to prove he knowingly distributed Exhibit Two. “Whether the evidence adduced is sufficient to prove each of those elements is a factual finding, which w ill not be set aside on appeal unless it is plainly wrong.” Lawlor v. Commonwealth, 285 Va . 187, 223-24, 738 S.E.2d 847, 868 (2013). “In reviewing that factual finding, we consider the evidence in the light most favorable to the Commonwealth and give it the benef it of all reasonable inferences fairly deducible therefrom.” Id. at 224, 738 S.E.2d at 868. An appellate court is “not permitted to reweigh the evidence,” Nusbaum v. Berlin, 273 Va. 385, 408, 641 S.E.2d 494, 507 (2007), or “to substitute its own judgment for that of the finder of fact, even if the appellate court might have reached a different conclusion,” Commonwealth v. Presley, 256 Va. 465, 466, 507 S.E.2d 72, 72 (1998). As an appellate court, we do not second-guess the trier of fact by declaring how we would have decided the case, rather, we dete rmine “after viewing the evidence in the light most favorable to the prosecution, [whether] any rational trier of fact could have found the essential elements of the- 4 - crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). Hutton v. Commonwealth, 66 Va. App. 714, 719, 791 S.E.2d 750, ___ (2016) (alteration in original). In our review, we ar e mindful that, even if Coleman did not seek images of girls who were many years younger than he was, “the Gene ral Assembly’s ‘paramount legislative goal’ in enacting Code § 18.2-374.1 ‘was to protect children from the harm they suffer when they are induced to become models’ in sexually exp licit materials.” Chapman v. Commonwealth, 56 Va. App. 725, 733, 697 S.E.2d 20, 24 (2010) (quo ting Freeman v. Commonwealth, 223 Va. 301, 309, 288 S.E.2d 461, 465 (1982)); see also Papo l v. Commonwealth, 63 Va. App. 150, 153, 754 S.E.2d 918, 920 (2014) (noting “the underlying purpose of the statut e [is] to protect children from pornographers, pedophiles, and others who seek to take advantage of th eir vulnerabilities”). For that, and the reasons that follow, we fi nd the evidence sufficient for both convictions. A. Age of Females in Photos Coleman argues that the trial court erred in finding that either photo depicted underage subjects. We have no evidence as to the identities of the individua ls in the images, and thus the jury was left to infer their ages from ot her evidence. See Terlecki v. Commonwealth, 65 Va. App. 13, 20, 772 S.E.2d 777, 781 (2015) (noting that the evidence need not prove “the actual identity of the identifiable minor” (quoting C ode § 18.2-374.1(A))). Viewing this evidence in the light most favorable to the Commonwealth, as we must as it was the prevailing party below, we cannot say the jury was pl ainly wrong in finding that bot h images depicted minors. First, Coleman testified that, as a minor, he sought out pornography thatfeatured girls his own age. He told an investigator that he had used the search term “kiddy porn” and had “put the

search terms a little lower” when his searches for sixteen and se venteen-year-old girls failed to yield the desired results.- 5 - Second, the appearance of the fe males in the photos suggests th ey are underage. Exhibit One is a black-and-white image depicting a visibly erect penis t ouching the labia of a disproportionately small vagina. The photo does not show either subjec t’s face or torso; however, several factors indicate that the female is a juvenile. The female depicted has no pubic hair, or any sign that her pubic hair was removed. In addition, the narrowness of her hips, the disparity between the size of her and the male’s genitalia, and other factors indicate that, at the time of the photo, she had not yet undergone puberty and was underage. Regarding Exhibit Two, Coleman’s own argumen ts before the trial court undermine his claim that the image does not depict at least one minor. In arguing his motion to set aside the verdict, defense counsel stated “it seems clear that the one of the three girls would appear to be actual minors” and that “it’s highly likely that th ey’re juveniles.” “[I]n deciding a motion to set aside the verdict, a court only looks to whether the jury’s verdict is ‘p lainly wrong or without evidence to support it.’” Wagoner v. Commonwealth, 289 Va. 476, 484, 770 S.E.2d 479, 484 (2015) (quoting Code § 8.01-680). By counsel ’s own admission, Exhibit Two “clear[ly]” depicted at least one minor, and as such, the fi nding that Exhibit Two depicted a minor could not be plainly wrong or la ck supporting evidence. 2 For these reasons, the jury did not err in finding both images depicted minors.

B. Lewdness of Photos Coleman next argues that neither image is a “lewd” depiction of nudity. Code § 18.2-374.1:1 prohibits distribution of child pornography, defined as “sexually explicit visual material which utilizes or has as a subject an identifiable minor. ” Code § 18.2-374.1(A).

2 Furthermore, Exhibit Two contained a watermark referencing a website run by a man who, as one officer with the ICAC testified, “is known for specializ ing in some barely legal as well as Lolita,” and was “involved in the f ounding of several webs ites depicting erotic photography of teenagers.” “Lolita” is a comm on reference to child po rnography. See Kromer v. Commonwealth, 45 Va. App. 812, 815, 613 S.E.2d 871, 872 (2005).- 6 - “Sexually explicit visual material” includes, inter alia , visual representa tions of “a lewd exhibition of nudity,” “sexual excite ment,” or “sexual conduct.” Id. Exhibit One is clearly sexually explicit visual material as defined by Code § 18.2-374.1(A), as it is a visual representation of “sexual conduct” and “sexual excitement.” Under Code § 18.2-390(3), “‘[s]exual conduct’ means actual or explicitly simulated acts of masturbation, homosexualit y, sexual intercourse, or physical 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,” (emphasis added), and “‘[s]exual excitement’ means the condition of human male or female genitals when in a st ate of sexual stimulation or arousal,” Code § 18.2-390(4). In this image, the male is unm istakably visibly aroused while touching his genitals to the female’s. Accordingly, we need not determine if the image is a “lewd exhibition of nudity,” as it depicts sexual conduct and sexual excitement, and thus is sexually explicit visual

material under the statute. Coleman also argues that Exhibit Two is not a lewd depiction of nud ity, and therefore is not sexually explicit visual material. Nude photographs are sexually explic it if they are “lewd.” Code § 18.2-374.1. “‘Lewd’ is a synonym of ‘lascivious’ and ‘indecent.’” Dickerson v. C ity of Richmond, 2 Va. App. 473, 479, 346 S.E.2d 333, 336 (1986). This Court has also “defined ‘lascivious’ to mean ‘a state of mind that is eager for sexual indulgence, desirous of inciting to lust or of inciting sexual desire and appetite.’” Id. Asa v. Commonwealth, 17 Va. App. 714, 718, 441 S.E .2d 26, 29 (1994). This is inherently a fact-dependent inquiry, and we ma y not “substitute [our] own judgm ent for that of the finder of fact, even if we might have reached a diffe rent conclusion.” Hutton, 66 Va. App. at 719, 791 S.E.2d at ___ (quoting Presley, 256 Va. at 466, 507 S.E.2d at 72).- 7 - Exhibit Two is a color image depicting three females lying in a bed, a sexually suggestive setting. Furthermore, they are positioned in a manner that could reasonab ly be interpreted, and Coleman did in fact interpret, as sexually pr ovocative or enticing. They are completely nude, facing away from the camera with th eir legs spread so their buttock s and labia are visible. Their limbs are overlapping. One of the girls has her h ead laying on top of her arms in a submissive posture. Finally, their genitalia are positioned at the center of the image. See Asa, 17 Va. App. at 718-19, 441 S.E.2d at 29 (emphasizing the fact that the “camera’s eye focused on [the subject’s] genitalia,” which spoke to the image’s lewdness). View ed in the totality, we cannot say the jury erred in finding this to be a lewd display of nudity. C. Coleman’s “Knowing” Distribution of Exhibit Two Coleman argues that there is insufficient evid ence that he knowi ngly posted Exhibit Two to the internet. He argues essentially that, becau se the investigator only was certain he showed Coleman Exhibit One, and Coleman testified that he only remembered posting that image, there is no evidence he posted the second image. Howe ver, a lack of an express admission does not mean there is no evidence. To the contrary, th e record contains substantial evidence that he posted both images. Both images were posted to the same Pinterest account, which was associated with Coleman’s personal email address. The account was password-protected, and Coleman had no knowledge of anyone else posting to it. Furthermore, Coleman never denied posting Exhibit Two, and the record contains no ev idence indicating that so meone else did so.

Given the lack of evidence that someone else accessed Coleman’s pe rsonal account, and his admission that he posted Exhibit One, the onl y reasonable inference is that Coleman was responsible for the presence of bot h images on the Pinterest page.- 8 - III. M ENS R EA J URY I NSTRUCTION Coleman argues that the trial court erred in gi ving a jury instruction that “did not on its face include a requirement that the jury could only convict if they found that [he] knowingly distributed child pornography — that the Commonw ealth had to prove no t merely intentional conduct, but knowing conduct.” Coleman did not rais e this issue before the trial court, and as such, this argument is procedurally defaulted. Rule 5A:18 states: “No ruling of the trial court . . . will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling, except fo r good cause shown or to enable the Court of Appeals to attain the ends of justice. ” Coleman acknowledges that he di d not preserve th is objection at trial, and asks us to find that this alleged er ror warrants applying Rule 5A:18’s “ends of justice” exception. We apply this excepti on only “to avoid a grave injusti ce or the denial of essential rights,” Charles v. Commonwealth, 270 Va. 14, 17, 613 S.E.2d 432, 433 (2005), and only when the record shows “that a miscarriage of justice has occurred, not when it merely shows that a miscarriage might have occurred,” Mounce v. Comm onwealth, 4 Va. App. 433, 436, 357 S.E.2d 742, 744 (1987). Here, there is no evidence that such a miscarriage of justice occurred, as there

was evidence both that he knew or could have known the females depicted were underage, see supra Part II.A., and knew he was making the imag es publically accessible. Accordingly, a jury could have convicted appellant ev en if they had been explicit ly directed to find he acted knowingly. This argument is therefore waived.

IV. I NFERENCE AS TO A GE Coleman challenges the trial court permitting the Commonwealth to argue before the jury about the meaning of one jury in struction that read: “[i]t may be inferred by text, title or appearance that a person who is depicted as or presents the appearance of being less than 18 years of age in sexually explic it visual material is less than 18 years of age.” Coleman- 9 - repeatedly characterizes this instruction, and the statute c ontaining this language, Code § 18.2-374.1:1, as “burden-shifting,” in that it re lieves the Commonwealth of the burden of proving that the individuals in the images ar e minors, or at least lessens that burden. 3 He alleges that the Commonwealth’s argument “invited the jury to speculate as to the age of the subjects of the photographs.” As a preliminary matter, assuming without deciding that these i ssues were properly preserved, 4 this instruction is not “burden-shifti ng.” Rather, by its express language, the instruction presents a permissible, not manda tory, inference. It states that a jury may conclude

from evidence other than an individual’s identit y, including her appearance, that she is a minor. See Dobson v. Commonwealth, 260 Va. 71, 75, 531 S.E.2d 569, 572 (2000) (“A permissive inference suggests to the jury a possible conclusi on to be drawn if the State proves the predicate facts, but does not require the jury to draw that conclusion. ” (quoting Francis v. Franklin, 471 U.S. 307, 314 (1985))). Moreover, the Commonwealth’s statements to the jury properly characterized the instruction as permissive. In closing argument, the Commonwealth explained the instruction as meaning: “if it looks like a child, you may find as a jury that it is a child.” (Emphasis added). During its rebuttal closing, th e Commonwealth explained: Ladies and gentlemen, I’m not asking you to speculate. What I’m asking you to do is take your real life experience and take your own intelligence and your own — trust your own eyes that when you are looking at something that appears to be a child, you are not

3 In his reply brief, Coleman clarifies that he does not alle ge a constitutional violation, despite his repeated statement that this langu age is “burden-shifting,” which suggests a due process argument. See Yap v. Commonw ealth, 49 Va. App. 622, 632, 643 S.E.2d 523, 527 (2007). He also explains that he cited First Amendment jurisp rudence not to allege a First Amendment claim, but “because the First Amendmen t standards define the limits of the statute.”

4 Coleman concedes that he did not object to the jury instru ction itself, but only presented similar arguments (that, much like the argum ent presented here on appeal, challenge the sufficiency of the evidence) in his motion to strike.- 10 - required to suspend all reasonabl e thought unless a school ID is produced or a driver’s licen se or a birth certificate. The trial court did not err in permitting this argumen t. Just as “a trier of fact is competent to determine whether pornographic images depict actual people simply by looking at the images themselves,” Terlecki, 65 Va. App. at 21, 772 S.E .2d at 781, a jury is competent to determine if images depict minors. Furthermore, the Commonwealth presented evidence other than appearance, including Coleman’s own statements, th at supported the jury’s conclusion that these were images of underage females. See supr a Part II.A. Coleman’s argument that the Commonwealth “invited the jury to speculat e” is without merit (and undermined by the Commonwealth’s explicit st atement: “I’m not asking you to sp eculate”). The trial court did not err in permitting the Commonwealth’s statements during closing arguments.

V. C ONCLUSION Finding no error in the tria l court’s rulings, we affirm Coleman’s convictions.

Affirmed.