Ducharme v. Commonwealth

70 Va.App. 668

830 S.E.2d 924

Timothy DUCHARME

v.COMMONWEALTH of Virginia

Record No. 0706-18-4

Court of Appeals of Virginia, Alexandria.

AUGUST 6, 2019

Charles B. Ramsey, for appellant.

Victoria Johnson, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Petty, Malveaux and Senior Judge Annunziata

OPINION BY JUDGE ROSEMARIE ANNUNZIATA

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 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 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 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,⁴ and 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 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, 437 S.E.2d 232 (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, 667 S.E.2d 857 (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, 800 S.E.2d 199 (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, 727 S.E.2d 783 (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, 809 S.E.2d 247 (2018) ; Bartley, 67 Va. App. at 746, 800 S.E.2d 199 ; see also Jeter v. Commonwealth, 44 Va. App. 733, 740-41, 607 S.E.2d 734 (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.

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, 797 S.E.2d 781 (2017) (quoting Cooper v. Commonwealth, 277 Va. 377, 381, 673 S.E.2d 185 (2009) ). However, this Court reviews de novo whether an instruction "accurately states the relevant law." Sarafin v. Commonwealth, 288 Va. 320, 325, 764 S.E.2d 71 (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, 370 S.E.2d 717 (1988) (quoting Swisher v. Swisher, 223 Va. 499, 503, 290 S.E.2d 856 (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...