Kelley v. Commonwealth

1

WILLIAM CHRISTIAN KELLEY v. COMMONWEALTH OF VIRGINIA

No. 0179-24-1

Court of Appeals of Virginia

December 3, 2024

From the Circuit Court of the City of Virginia Beach A. Bonwill Shockley, Judge

(Roger A. Whitus; Slipow & Robusto, P.C., on brief), for appellant.

(Jason S. Miyares, Attorney General; Suzanne Seidel Richmond Assistant Attorney General, on brief), for appellee.

Present: Judges Beales, Fulton and Lorish

MEMORANDUM OPINION ^[*]

PER CURIAM.

William Christian Kelley, an inmate at the Virginia Beach Correctional Center, was convicted of exposing his penis in a public place during an electronic video call with a consenting adult female, in violation of Code § 18.2-387. This was his fourth such conviction. Kelley argues that the evidence was insufficient to show that his actions were obscene or that they took place in a public place. After examining the briefs and record, the panel unanimously holds that oral argument is unnecessary because "the appeal is wholly without merit," and we conclude that the evidence was sufficient to sustain his conviction. Code § 17.1-403(ii)(a); see also Rule 5A:27(a).

BACKGROUND^[1]

Inmates at the Virginia Beach Correctional Center have access to devices ("tablets") on which they may conduct electronic visitations with parties outside the facility. The tablets are attached to chargers mounted on the wall and must remain on the charger while in use. Inmates use these tablets subject to certain conditions, including consent to monitoring and prohibitions on using pornography and "engag[ing] in nudity, profanity, suggestive body gestures, terminology and/or any other activity deemed inappropriate in the sole discretion of [the service provider] or a correctional facility." Prisoners must consent to these terms of service to use the tablets.

When an outside party calls an inmate, the tablet rings and displays the name of the inmate who is receiving either a video or phone call. The inmate then enters his booking number and a personal identification number (PIN) to access the system and accepts the call. A user agreement appears during this process that the inmate must accept.

Samantha DeGhetto was a deputy sheriff with the Virginia Beach Sheriffs Office. As a member of the criminal intelligence unit at the jail, one of her duties was to monitor prisoner tablet visits "to make sure there is no illegal activity happening within the jail." During one such review DeGhetto discovered that Kelley had displayed "his penis on tablet visits." She testified that Kelley was warned not to do so on February 4, 2021. That said, she found that Kelley disobeyed this instruction and exposed his penis during tablet visits again on February 26, 2021, February 28 2021, and May 10, 2021. Kelley was "written up on an in-house jail violation" for this behavior. But he continued to violate the rules during tablet visits and was therefore charged with three criminal counts of indecent exposure. Kelley was convicted of all three charges in July 2021.

In June 2022, Kelley again exposed his penis during a tablet visit, which was recorded. He was indicted for indecent exposure, "such offense being the third or subsequent offense committed within a ten-year period, in violation of [Code] §§ 18.2-387; 18.2-67.5:1; [and] 18.2-10."^[2] Kelley pleaded not guilty and requested a jury.

At trial, a redacted version of the recording was admitted into evidence. DeGhetto described what the video depicted: "to the left where the bars are, that's the catwalk. That's where deputies walk to do their security check, and directly behind is the inside of the cell block." The recording showed Kelley and the other inmates who shared a cell block with him. A separate video surveillance recording of the cell depicted Kelley retrieving toilet paper and a blanket from his bunk and putting up the latter as a makeshift screen behind which he conducted the tablet call.

During the recording of his tablet video call, Kelley exposed his erect penis to the camera. The act occurred around 10:30 or 11:00 p.m. In the redacted version of that recording shown to the jury, the incoming caller had been blurred out. DeGhetto testified that she viewed the recording without it being blurred and that it depicted a woman "completely nude performing sex acts on herself." The recording of Kelley's tablet visit also depicted the interior of the cell and other inmates in the background. From this video, it was not apparent whether anyone other than the female caller had witnessed Kelley exposing himself.

There were other cameras that captured events that night. The Commonwealth introduced a recording from the security camera inside Kelley's cell. This camera recording showed that there were other inmates in Kelley's block. In it, Kelley can be seen walking away from the tablet and then coming back with a blanket and hanging the blanket to cover the tablet. Although the blanket provided some visual barrier between Kelley and his cellmates, the tablet recording showed movement behind the blanket and anyone walking by would have been able to see into the cell. The blanket blocked the surveillance video from capturing Kelley's actions.

DeGhetto testified that this recording showed that Kelley's cell was next to a hallway (the catwalk) and that the inside of his cell was visible through the open bars to anyone on the catwalk. She testified that several people had access to this hallway including deputies, individuals touring the jail, the librarian, nurses, and canteen workers. She did not, however, have any information or evidence that anyone was on the catwalk at the time of Kelley's tablet call.

John S. Bloom, an employee of ViaPath, the company that serviced the tablets and maintained the video recordings of tablet visits, testified at trial. The Commonwealth showed Bloom the location of the camera that recorded Kelley. Bloom testified that he was familiar with that location and that "as you walk by you can see completely in[to]" the cell. The Commonwealth also showed Bloom a portion of the video recording depicting the blanket that Kelley had hung up between the tablet he was using and the bars of his cell. Bloom testified that he had been in that location before and that he would have been able to see the area on the other side of the blanket. "The bars would be open on that section right there," he testified, "because the bars go all of the way to the wall. The tablet charger is maybe like two feet in on the wall." He explained that the tablet would need to be on a charger during a video call because "that's the way the site has designated it, so it has to be on there so that way they can't take it back to their cell or to their individual bunk and then cover up so you can't see what they are doing."

After the Commonwealth rested, Kelley moved to strike. The trial court denied the motion. Kelley presented no evidence and renewed his motion to strike, which the trial court likewise denied. The jury convicted him. The trial court sentenced Kelley to five years of imprisonment with four suspended subject to Kelley being of good behavior and on supervised probation for five years. Kelley appeals, challenging the sufficiency of the evidence presented at his trial.

ANALYSIS

Code § 18.2-387 provides that a "person who intentionally makes an obscene display or exposure of his person or the private parts thereof, in any public place, or in any place where others are present, or procures another to so expose himself, shall be guilty of a Class 1 misdemeanor." When a person commits such an indecent exposure after "ha[ving] previously been convicted within the 10-year period immediately preceding the offense charged of two or more" instances of that or certain other sex offenses, "he is guilty of a Class 6 felony." Code § 18.2-67.5:1. The trial court convicted Kelley of violating Code § 18.2-387 after having been so convicted on three previous occasions within the ten-year window specified by Code § 18.2-67.5:1. Kelley contests his conviction, asserting as his single assignment of error that "the evidence was insufficient as a matter of law to establish the elements of the offense." Specifically, he argues that "the Commonwealth's evidence failed" to prove either that he "committed an 'obscene' display" or "that he was in a 'public place or a place where others were present'" when he exposed himself.

"When reviewing the sufficiency of the evidence to support a conviction, the Court will affirm the judgment unless the judgment is plainly wrong or without evidence to support it." Brown v. Commonwealth, 74 Va.App. 721 729-30 (2022) (quoting Bolden v. Commonwealth, 275 Va. 144, 148 (2008)). We "conduct[] a de novo review when interpreting a statute." Id. at 730 (citing Commonwealth v. Herring, 288 Va. 59, 66 (2014)).

A. Obscene or Indecent Exposure of One's Person or Private Parts

To secure a conviction for indecent exposure, the Commonwealth had to "prove that [Kelley's] conduct violated contemporary community standards of sexual candor." Morales v. Commonwealth, 31 Va.App. 541, 544 (2000) (citing House v. Commonwealth, 210 Va. 121, 126 (1969)). We have previously held that "[p]roof that [a defendant] was exposing his genitals, that he was in a visibly aroused state, and that he was masturbating satisfied this requirement." Id. (citing Hamling v. United States, 418 U.S. 87, 104-05 (1974); United States v. Garcia, 927 F.2d 1442, 1450 (8th Cir. 1991); United States v. Various Articles, 709 F.2d 132, 135-36 (2d Cir. 1983)). This conduct is much like Kelley's.^[3]

Kelley argues that displaying his penis in a cell occupied by other inmates and observable by other persons who might transit the area was not an obscene or indecent display because...