COURT OF APPEALS OF VIRGINIA

Present: Judges Petty, Malveaux and Senior Judge Annunziata

Argued at Alexandria, Virginia

TIMOTHY DUCHARME

OPINION BY

v. Record No. 0706-18-4 JUDGE ROSEMARIE ANNUNZIATA

AUGUST 6, 2019

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF SHENANDOAH COUNTY

Dennis L. Hupp, Judge

Charles B. Ramsey for appellant.

Victoria Johnson, Assistant Attorney General (Mark R. Herring, 

Attorney General, on brief), for appellee.

A jury found Timothy Ducharme, appellant, guilty of using a communication device to 

solicit a minor for the production of child pornography, in violation of Code § 18.2-374.3(B),1

and imposed a fine of $2,500.2 Appellant argues on appeal that the trial court erred in denying 

the motion to suppress evidence found on his cell phone and in instructing the jury regarding 

proof of the victim’s age. For the following reasons, we affirm appellant’s conviction.

BACKGROUND

Appellant, then twenty-one years of age and a Marine stationed at Quantico, met the 

victim, C.R., through an online dating website in February 2016. C.R. testified at trial that a 

 

1 The indictment and the court’s orders stated that appellant was charged and convicted 

under Code § 18.2-374.3, but in response to defense counsel’s query at the beginning of trial, the 

prosecutor said that he was proceeding under subsection B of the statute.

2 The trial court granted appellant’s motion to strike a charge of possessing child 

pornography, and the jury found appellant not guilty of contributing to the delinquency of a 

minor.

PUBLISHED
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friend had established the account without her permission and had represented that C.R. was 

eighteen years old. C.R., in fact, was fifteen years old.3 Appellant and C.R. exchanged phone 

numbers and began sending text messages.

On April 2, 2016, appellant drove to Shenandoah County to “hang out” with C.R. 

However, before they met, C.R. sent him a text message that she was “only 16,” and she 

apologized for lying about her age. Appellant responded that they could be friends and offered 

to meet with C.R. and her parents, but she said that meeting was not “a good idea.” Appellant 

replied, “That’s fine. Take care of yourself sweetheart, it was nice getting to know you a little 

bit. You’re a great person. I am leaving now.”

On April 3, 2016, C.R. sent appellant a text asking him to call her. Appellant testified 

that during the ensuing phone conversation, C.R. told him that she was eighteen years old but 

had said that she was sixteen because she was nervous about meeting him. At trial, C.R. denied 

telling appellant that she was eighteen, but she acknowledged that they had resumed texting each 

other.

In several messages on April 11, 2016, appellant asked C.R. to send him “sexy” pictures 

of herself. Appellant asked C.R., “Baby are you gonna show me how sexy you are in the 

bathtub?” He said that he “want[ed] to see everything.” C.R. sent appellant two photographs of 

her breasts and genitalia. Appellant replied that C.R. had “beautiful legs,” and “adorable” 

genitalia.

Appellant returned to Shenandoah County about 3:00 a.m. on April 17, 2016, and spent 

two hours with C.R. in his truck, parked outside her grandparents’ home. Before appellant 

arrived, C.R. sent him text messages that she was eager to meet him. She also sent him a 

 

3 C.R. was born in July 2000.
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message that said, “I hope if it’s okay if we don’t have sex tonight but we can do other stuff.” 

C.R. testified that appellant put his penis in her mouth, but appellant denied doing so.

C.R. reported her relationship with appellant to Investigator Robert Poe of the 

Shenandoah County Sheriff’s Office on April 18, 2016. Although she did not know appellant’s 

full name, she provided enough identifying information for law enforcement authorities to 

determine that appellant was a Marine stationed at Quantico.

Special Agent Gabriel Henson of the Naval Criminal Investigative Service (NCIS) 

prepared an affidavit under oath on April 19, 2016, requesting a “Command Search 

Authorization,” the military equivalent of a search warrant, to search appellant’s residence and 

his cell phone. The affidavit recited Henson’s training and experience and C.R.’s allegations 

against appellant. Military procedure for obtaining authorization to search required that 

appellant’s immediate commanding officer, or in his absence, a higher ranking officer in the 

chain of command, make a finding of probable cause. Appellant’s immediate commander was 

not on base, so Henson gave his affidavit to the military attorney assigned to the general in the 

chain of command. The attorney privately discussed the affidavit with the general by video 

teleconference and also emailed him the affidavit. After the general authorized the search, 

Henson acquired appellant’s cell phone, extracted the contents, and gave the information to 

Investigator Poe.

Appellant then was indicted, tried, and convicted in the Shenandoah County Circuit 

Court. This appeal followed.

ANALYSIS

Motion to Suppress

Appellant moved to suppress the evidence extracted from his cell phone on the grounds 

that the evidence was obtained without a search warrant or his consent. Appellant argued that 
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because he was being tried in a state court rather than a military tribunal, local law enforcement 

officers should have sought a civilian search warrant rather than using military procedures. 

Appellant also argued that the general and his attorney who had reviewed the authorization to 

search had not been “neutral and detached,” as required by the Fourth Amendment. In support of 

his argument, appellant noted that paragraph four of the affidavit referred to a different 

defendant, a different victim, and a different crime. Special Agent Henson testified at the 

suppression hearing that paragraph four contained typographical errors but that the other parts of 

the affidavit correctly referred to appellant. While acknowledging that the errors in paragraph 

four were unintentional, appellant contended that the affidavit was not reviewed carefully 

because the errors were either not noticed or not corrected.

Following a hearing on the motion, the trial judge requested that the parties submit briefs 

addressing whether military rules of evidence would apply in a state court case, whether the 

exclusionary rule applied in a military tribunal,4and whether a commanding officer “occup[ied] 

the same place as a neutral detached magistrate if we’re applying the [F]ourth [A]mendment.” 

After reviewing the briefs, the trial court denied the motion to suppress. The court concluded 

that appellant had subjected himself to the code of military justice by voluntarily entering the 

Marine Corps and that there had been no showing that the applicable military procedure to 

authorize the search had not been followed.

On appeal, appellant argues that military procedures for obtaining a search warrant 

should not have applied in his case because he was tried in state court and the search warrant 

should have been obtained by a state police officer from a state court judge. He also argues that 

the affidavit prepared by Special Agent Henson was not reviewed by a neutral and detached 

 

4 Special Agent Henson told the trial judge that the exclusionary rule applied in military 

tribunals. See Mil. R. Evid. 311(b)(3)(C); United States v. Chapman, 954 F.2d 1352, 1373 n.45

(7th Cir. 1992).
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magistrate because the general reviewing the affidavit did not catch the “cut and paste” 

typographical error.

However, appellant cites no authority to support his arguments. The analysis section of 

the argument in his opening brief consists of two paragraphs of conclusory statements, his 

argument makes no claim that his “Fourth Amendment rights were violated because . . . .,” and 

his only reference to the Fourth Amendment is found in two quotations from cases stating the 

applicable standard of review.

The trial court’s ruling is presumed to be correct, and appellant must show that reversible 

error occurred. See Motley v. Commonwealth, 17 Va. App. 439, 440-41 (1993). Rule 5A:20(e)

requires that appellant’s argument “includ[e] principles of law and authorities.” “The appellate 

court is not a depository in which the appellant may dump the burden of argument and research.” 

Fadness v. Fadness, 52 Va. App. 833, 850 (2008). Appellant’s “failure to provide legal 

argument and authority as required by Rule 5A:20 leaves [this Court] without a legal prism 

through which to view his alleged error.” Bartley v. Commonwealth, 67 Va. App. 740, 746 

(2017) (describing appellant’s argument as consisting “solely of conclusory statements 

unsupported by any legal analysis or authority”); see Mitchell v. Commonwealth, 60 Va. App. 

349, 353 (2012) (finding that appellant’s citing one case and one statute was “insufficient to 

satisfy Rule 5A:20”). Because appellant failed to provide the required legal authority, we find 

his argument on this assignment of error is waived. See Baugh v. Commonwealth, 68 Va. App. 

437, 442 n.3 (2018); Bartley, 67 Va. App. at 746; see also Jeter v. Commonwealth, 44 Va. App. 

733, 740-41 (2005) (holding that arguments cannot be developed for the first time in a reply brief 

or at oral argument). Accordingly, we affirm the trial court’s denial of the motion to suppress.
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Jury Instruction

“Whether to give or deny jury instructions ‘rest[s] in the sound discretion of the trial 

court.’” Hilton v. Commonwealth, 293 Va. 293, 302 (2017) (quoting Cooper v. Commonwealth, 

277 Va. 377, 381 (2009)). However, this Court reviews de novo whether an instruction 

“accurately states the relevant law.” Sarafin v. Commonwealth, 288 Va. 320, 325 (2014). In 

reviewing jury instructions, the Court’s responsibility is “to see that the law has been clearly 

stated and that the instructions cover all issues which the evidence fairly raises.” Darnell v. 

Commonwealth, 6 Va. App. 485, 488 (1988) (quoting Swisher v. Swisher, 223 Va. 499, 503 

(1982)).

The jury instruction the Commonwealth offered required the jury to find beyond a 

reasonable doubt that appellant “knew, or had reason to believe, that [C.R.] was less than 

eighteen (18) years of age at the time [of the offense].” (Emphasis added). Appellant’s 

proffered instruction required the jury to find that appellant “knew that [C.R.] was less than 

eighteen (18) years of age at the time [of the offense].” (Emphasis added).

Both proffered instructions were based on the model jury instruction for a prosecution 

under Code § 18.2-374.3(C), which proscribes a person eighteen years of age or older using a 

communications system to solicit, “with lascivious intent, any person he knows or has reason to 

believe is a child younger than fifteen years of age” to commit certain enumerated sexual acts. 

The commentary for the instruction states that it must be modified if the defendant is charged 

under Code § 18.2-374.3(B). See Model Jury Instr. Crim. No. 29.450. The commentary 

provides no guidance for modification, but any instruction must fit the applicable statutory 

language and the evidence presented at trial.

Code § 18.2-374.3(B) states:

It is unlawful for any person to use a communications system, 

including but not limited to computers or computer networks or 
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bulletin boards, or any other electronic means for the purposes of 

procuring or promoting the use of a minor for any activity in 

violation of § 18.2-370 or 18.2-374.1. A violation of this 

subsection is a Class 6 felony.

Section 18.2-374.3(B) is one part of a statute that also proscribes using a communications 

system for the purposes of soliciting a child, but defines “a child,” by reference to certain ages. 

Code § 18.2-374.3. Convictions based on the remaining subsections are premised on proof the

perpetrator “knows” the age of the subject of the prohibited communications or has a “reason to 

believe” the subject of the solicitation is a child.

5 They differ from Code § 18.2-374.3(B) in that 

one latter respect, as appellant points out on appeal.

 

5 Code § 18.2-374.3(C) states: 

It is unlawful for any person 18 years of age or older to use a 

communications system, including but not limited to computers or 

computer networks or bulletin boards, or any other electronic 

means, for the purposes of soliciting, with lascivious intent, any 

person he knows or has reason to believe is a child younger than 

15 years of age to knowingly and intentionally:

1. Expose his sexual or genital parts to any child to whom he is 

not legally married or propose that any such child expose his 

sexual or genital parts to such person;

2. Propose that any such child feel or fondle his own sexual or 

genital parts or the sexual or genital parts of such person or 

propose that such person feel or fondle the sexual or genital parts 

of any such child;

3. Propose to such child the performance of an act of sexual 

intercourse, anal intercourse, cunnilingus, fellatio, or anilingus or 

any act constituting an offense under § 18.2-361; or

4. Entice, allure, persuade, or invite any such child to enter any 

vehicle, room, house, or other place, for any purposes set forth in 

the preceding subdivisions.

Any person who violates this subsection is guilty of a Class 5 

felony. However, if the person is at least seven years older than 

the child he knows or has reason to believe is less than 15 years of 

age, the person shall be punished by a term of imprisonment of not 
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Appellant argues that the trial court should have given his instruction because he was 

prosecuted under Code § 18.2-374.3(B). He reasons that because the other subsections of Code 

§ 18.2-374.3 require proof the defendant “knows or has reason to believe” the child victim is of a 

specified age, and subsection B does not, the General Assembly intended that actual knowledge 

of the child victim’s age is required proof under subsection B.6 We disagree.

 

less than five years nor more than 30 years in a state correctional 

facility, five years of which shall be mandatory minimum term of 

imprisonment. Any person who commits a second or subsequent 

violation of this subsection when the person is at least seven years 

older than the child he knows or has reason to believe is less than 

15 years of age shall be punished by a term of imprisonment of not 

less than 10 years nor more than 40 years, 10 years of which shall 

be a mandatory minimum term of imprisonment.

Code § 18.2-374.3(D) states: 

Any person who uses a communications system, including but not 

limited to computers or computer networks or bulletin boards, or 

any other electronic means, for the purposes of soliciting, with 

lascivious intent, any child he knows or has reason to believe is at 

least 15 years of age but younger than 18 years of age to 

knowingly and intentionally commit any of the activities listed in 

subsection C if the person is at least seven years older than the 

child is guilty of a Class 5 felony. Any person who commits a 

second or subsequent violation of this subsection shall be punished 

by a term of imprisonment of not less than one nor more than 20 

years, one year of which shall be a mandatory minimum term of 

imprisonment.

Code § 18.2-374.3(E) states: 

Any person 18 years of age or older who uses a communications 

system, including but not limited to computers or computer 

networks or bulletin boards, or any other electronic means, for the 

purposes of soliciting any person he knows or has reason to believe

is a child younger than 18 years of age for (i) any activity in 

violation of § 18.2-355 or 18.2-361, (ii) any activity in violation of

§ 18.2-374.1, or (iii) a violation of § 18.2-374.1:1 is guilty of a 

Class 5 felony.

6 When Code § 18.2-374.3 was amended in 2007, the language in then-existing 

subsection A became current subsection B, but was not otherwise modified, and the language 
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Since each subsubsection of Code § 18.2-374.3 addresses the same subject matter, viz., 

the “[u]se of communications systems to facilitate certain offenses involving children,” they 

must be construed and considered together. See Alston v. Commonwealth, 274 Va. 759, 769 

(2007); Prillaman v. Commonwealth, 199 Va. 401, 406 (1957). “This requires that ‘[t]he literal 

meaning of separate provisions, if in apparent conflict[,] . . . must yield to a reasonable and fair 

interpretation to be gathered from the context, the subject matter and the reason and spirit of the 

law.’” Colbert v. Commonwealth, 47 Va. App. 390, 395 (2006) (quoting Buzzard v. 

Commonwealth, 134 Va. 641, 653 (1922)).

As appellant points out, Code § 18.2-374.3(B) does not include the “knows or has reason

to believe” language that appears in the remaining subsections of the statute. However, in 

construing the intent of the legislature, [“w]e do not isolate particular words or phrases but rather 

examine a statute in its entirety.” Colbert, 47 Va. App. at 395. “We have a ‘duty to interpret the 

several parts of a statute as a consistent and harmonious whole so as to effectuate the legislative 

goal.’” Id. (quoting Virginia Elec. & Power Co. v. Bd. of Cty Supervisors, 226 Va. 382, 387-88 

(1983)). Further, as applicable here, “we must keep in mind ‘the evil sought to be corrected by 

the legislature.’” Id. (quoting Southern Ry. Co. v. Commonwealth, 205 Va. 114, 117 (1964)).

Bearing these principles in mind, we review Code § 18.2-374.3(B) and draw its meaning 

from the context of a statute that makes the use of communications systems to facilitate certain 

offenses involving children a crime. This Court has previously noted that the purpose behind 

this portion of Code § 18.2-374.3 is to criminalize “the knowing use of a communications system 

to solicit a minor for certain criminal acts,” but “does not require the solicitation of an actual 

minor.” Podracky v. Commonwealth, 52 Va. App. 130, 138, 141 (2008). See also

 

in then-existing subsection B was included in current subsections A, C, and E. See 2007 

Va. Acts ch. 759, 823.
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Commonwealth v. Murgia, ___ Va. ___, ___ (May 16, 2019) (holding that in a prosecution 

under Code § 18.2-374.3(D), “the Commonwealth was not required to prove that [the defendant] 

actually committed a crime of solicitation, only that he used a communications system for the 

purpose of soliciting the act”); Huffman v. Commonwealth, 222 Va. 823, 827 (1981) (quoting 

Cherry v. State, 306 A.2d 634, 637-38 (Md. App. 1973) (“It is immaterial whether the 

solicitation is of any effect and whether the crime solicited is in fact committed. . . . The gist of 

[the] offense is incitement.”)). The legislature’s intent was “to protect children from people who 

would take advantage of them before the perpetrator could commit a sexual assault on an actual 

child.” Dietz v. Commonwealth, 294 Va. 123, 135 (2017) (quoting Grafmuller v. 

Commonwealth, 57 Va. App. 58, 65 (2010)) (emphasis in original). In short, it is “the 

defendant’s solicitation . . . from a person that he believes is a child [that] constitutes the 

behavior that the legislature intended to prohibit.” Podracky, 52 Va. App. at 142.

The legislature’s intent inheres in all subsections of Code § 18.2-374.3 and supports the 

conclusion that, under Code § 18.2-374.3(B), proof the defendant “has reason to believe” the 

subject of the solicitation is a child is an alternative finding that the trier of fact may make to 

sustain a conviction. This construction is consistent with the language used in the remaining 

provisions of the statute and reflects the legislature’s intent.

Accordingly, we find that the jury instruction offered by the defendant improperly limited 

the Commonwealth’s proof to showing the defendant “knows” the age of the subject of his 

solicitation. As such it “would contravene the intention of the Legislature apparent from the 

other sections and provisions [of the statute].” Pound v. Dep’t of Game and Inland Fisheries, 40 

Va. App. 59, 68 (2003) (quoting Tabb v. Commonwealth, 98 Va. 47, 56-57 (1900)). That intent 

is to make it an offense and punish the 1) use of communications systems 2) for the purposes of 

facilitating certain offenses involving children, and that makes “[t]he actual age of the recipient 
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of the offending communication . . . irrelevant.” Grafmuller, 57 Va. App. at 63-64 (addressing 

convictions of solicitation under Code § 18.2-374.3(C) and concluding it is sufficient if the 

perpetrator had reason to believe the subject was a child).

We, thus, find the trial court did not err in refusing appellant’s proffered jury instruction 

and giving the Commonwealth’s instruction instead.

Further, the Commonwealth’s jury instruction was supported by the evidence in the case. 

C.R. was born in July 2000 and thus was fifteen years old, and a minor, in April 2016. Although 

her internet profile indicated that she was eighteen years old, when C.R. told appellant that she 

was “only” sixteen years old, he responded that they could still be friends and suggested meeting 

with her parents to get their approval. He did not insist on continuing the relationship when C.R. 

did not agree to his meeting her parents. The reasonable inference from his text messages, which 

he did not deny sending, is that he knew or reasonably believed C.R. was a minor. By choosing 

to re-initiate contact with C.R. after she asked him to call her, appellant “act[ed] at his peril in 

regard to her being [a minor].” Lawrence v. Commonwealth, 71 Va. 845, 855 (1878) (holding 

that defendant’s mistaken belief that the eleven-year-old-victim was over the age of consent, no 

matter how formulated, was not a defense to the charge of rape).

CONCLUSION

We find that appellant’s failure to comply with Rule 5A:20(e) waives his argument 

regarding the motion to suppress. We also find that the trial court did not err in instructing the 

jury. Thus, we affirm appellant’s conviction.

Affirmed.