Appellant’s convictions and sentences for production of child pornography and possession of child pornography do not violate double jeopardy principles. Possession of child pornography is not a lesser-included offense of production of child pornography.
Appellant was 17 years old when he recorded a 16-year-old girl performing a sex act on him. The same night, he sent the video to a friend, and showed the video to another friend the next day. He was charged with both production of child pornography and possession of child pornography.
A jury found him guilty of both charges. At sentencing, he moved to set the verdicts aside, arguing that possession was a lesser-included offense of production of child pornography, so the convictions on both counts violated double jeopardy principles.
The court denied the motion and sentenced appellant on both convictions.
“As appellant acknowledges, we evaluate his claim that possession of child pornography is a lesser-included offense of production of child pornography under the familiar test adopted by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299 (1932).
“Under Blockburger, ‘if each statute requires proof of an additional fact which the other does not,’ it is not a lesser-included offense, and thus, ‘an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.’”
To violate the possession of child pornography statute, Code § 18.2-374.1:1, “one must (1) knowingly possess, (2) sexually explicit visual material, and (3) that material must utilize or have as its subject an identifiable minor. … Notably absent from the elements of possession of child pornography is any requirement that the possessor have been involved, in any way, in the production of the child pornography.”
Under Code § 18.2-374.1(B), “‘A person shall be guilty of production of child pornography who: 1. Accosts, entices or solicits a person less than 18 years of age with intent to induce or force such person to perform in or be a subject of child pornography; or 2. Produces or makes or attempts or prepares to produce or make child pornography; or 3. Who knowingly takes part in or participates in the filming, photographing, or other production of child pornography by any means; or 4. Knowingly finances or attempts or prepares to finance child pornography.’
“Because subsections one through four of Code § 18.2-374.1(B) are separated by semicolons and the disjunctive, coordinating conjunction ‘or,’ violating any one of the subsections violates the statute and constitutes the crime of production of child pornography. …
“Even a cursory review of the necessary elements contained in the four subsections of Code § 18.2-374.1(B) reveals a myriad of ways that one can be guilty of production of child pornography without ever actually having possessed the child pornography. … Even subsection two, the specific subsection under which appellant was charged and convicted, does not require possession of the child pornography as an element. One violates subsection two by the mere act of attempting or preparing to make child pornography. …
“The fact that one can commit the offense of production of child pornography without ever possessing that child pornography is fatal to appellant’s double jeopardy claim. …
“Appellant’s response to the foregoing is to note that, in this case, he was convicted for possessing the very same child pornography that he was convicted of producing. Although that may be true, it is immaterial to the Blockburger analysis. … [T]hat analysis requires that we look at the offenses … in the abstract, without referring to the particular facts of the case under review.’”
Servais v. Commonwealth, Record No. 0297-19-3, April 28, 2020. CAV (Russell) from Pittsylvania Cir. Ct. (Moreau) Jim D. Childress III for appellant, A. Anne Lloyd for appellee. VLW 020-7-100, 9 pp. Unpublished.