                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Humphreys, Russell and Athey
UNPUBLISHED


              Argued by teleconference


              BRANDON SERVAIS
                                                                             MEMORANDUM OPINION* BY
              v.     Record No. 0297-19-3                                   JUDGE WESLEY G. RUSSELL, JR.
                                                                                   APRIL 28, 2020
              COMMONWEALTH OF VIRGINIA


                                FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
                                              Stacey W. Moreau, Judge

                               Jim D. Childress, III (Childress Law Firm, PC, on briefs), for
                               appellant.

                               A. Anne Lloyd, Assistant Attorney General (Mark R. Herring,
                               Attorney General, on brief), for appellee.


                     Brandon Servais, appellant, was convicted by a jury of production of child pornography in

              violation of Code § 18.2-374.1 and possession of child pornography in violation of

              Code § 18.2-374.1:1. The trial court imposed separate sentences for each conviction. Appellant

              raises a double jeopardy challenge to his convictions and punishments, asserting that the offense of

              possession of child pornography is a lesser-included offense of the production of child pornography.

              For the reasons that follow, we disagree with appellant and affirm the judgment of the trial court.

                                                         BACKGROUND

                     Appellant’s double jeopardy challenge presents primarily a question of law. Accordingly,

              we recite only those facts necessary to provide adequate context for the matter before us. In doing

              so, we recite the facts in the light most favorable to the Commonwealth, the prevailing party below.

              Marshall v. Commonwealth, 69 Va. App. 648, 650 (2019).


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
        When appellant was seventeen, he used his phone to record a then sixteen-year-old female

performing oral sex on him. The same night, he sent the video via Snapchat to a male friend; the

next day, he played the video for another male friend.

        For his conduct, appellant subsequently was charged with both production of child

pornography and possession of child pornography. The indictments specifically alleged that “[o]n

or [a]bout January 5, 2017, . . . [appellant] [d]id . . . produce or make child pornography, to-wit:

produce a video of V.A.F., a minor, engaged in sexual conduct” and “[d]id . . . possess child

pornography.” Each indictment referenced the specific code section alleged to have been violated,

namely Code §§ 18.2-374.1(B)(2) and 18.2-374.1:1, respectively.

        The jury found him guilty of both child pornography-related charges.1 At the outset of his

subsequent sentencing hearing, appellant moved the trial court to set aside the “jury’s verdict[,]”

arguing, in pertinent part, his belief that possession of child pornography is a lesser-included offense

of production of child pornography. The Commonwealth responded, arguing that “production” of

child pornography “does not require possession” of child pornography, and therefore, “possession is

not a lesser included offense . . . of production.” The trial court denied “the motion to set aside the

verdict” specifically finding that “double jeopardy” did not apply “because production and

possession are two separate offenses.” Ultimately, the trial court imposed a sentence of ten years,

with eight years suspended, for the production of child pornography conviction and a sentence of

three years, with two years suspended, for the possession conviction. The trial court’s sentencing

order reflects that appellant specifically was convicted and sentenced for violating

Code §§ 18.2-374.1(B)(2) and 18.2-374.1:1.




        1
         Appellant also was charged with rape and forcible sodomy related to the incident. The
jury acquitted him of those charges, and therefore, they are not a subject of this appeal.
                                               -2-
          This appeal follows. Appellant contends that the trial court “erred in not setting aside the

jury’s verdict as the possession of child pornography [offense is] a lesser-included [offense] of the

production of the child pornography” offense.

                                               ANALYSIS

                                          I. Standard of review

          In general, “[w]hether there has been a double jeopardy violation presents a question of

law requiring . . . de novo review” on appeal. Currier v. Commonwealth, 65 Va. App. 605, 609

(2015) (quoting Fullwood v. Commonwealth, 279 Va. 531, 539 (2010)), aff’d, 292 Va. 737

(2016), aff’d sub nom. Currier v. Virginia, 138 S. Ct. 2144 (2018). This general standard applies

to claims, such as appellant’s here, “that multiple punishments have been imposed for the same

offense in violation of the double jeopardy clause.” Severance v. Commonwealth, 67 Va. App. 629,

650 (2017) (quoting Lawlor v. Commonwealth, 285 Va. 187, 227 (2013)), aff’d, 295 Va. 564

(2018).

                                           II. Double jeopardy

          The Fifth Amendment to the United States Constitution provides, in pertinent part, that

“[n]o person shall . . . be subject for the same offence to be twice put in jeopardy of life or

limb[.]”2 The United States Supreme Court has long “interpreted the Double Jeopardy Clause




          As with the other provisions of the Bill of Rights, the Fifth Amendment’s double
          2

jeopardy protections originally were understood to apply to the actions of the federal government
and not the individual states. See Palko v. Connecticut, 302 U.S. 319, 322 (1937) (stating that
“[t]he Fifth Amendment . . . is not directed to the States, but solely to the federal government
. . .”). The United States Supreme Court overruled Palko in Benton v. Maryland, 395 U.S. 784,
794 (1969), holding that “the double jeopardy prohibition of the Fifth Amendment represents a
fundamental ideal in our constitutional heritage, and that it [applies] to the States through the
Fourteenth Amendment.” The Virginia Constitution also contains double jeopardy protections.
See Va. Const. art. I, § 8 (providing that “a man” shall not “be put twice in jeopardy for the same
offense”). Appellant cites to both the federal and state provisions with his argument assuming
that the protections provided by each are coterminous. See Schwartz v. Commonwealth, 45
Va. App. 407, 440 (2005) (“Virginia’s constitutional guarantee against double jeopardy affords a
                                                 -3-
according to the purposes it is designed to serve rather than according to its literal language.”

Currier, 65 Va. App. at 610. By way of “example, the Supreme Court made clear at an early date

that the protections of the clause are not limited to crimes where ‘life and limb’ are at stake.

Instead, its protections extend to all criminal offenses.” Id.

       “The double jeopardy clauses of the United States and the Virginia constitutions . . .

embody three guarantees. They protect against (1) a second prosecution for the same offense

after acquittal, (2) a prosecution for the same offense after conviction, and (3) multiple

punishments for the same offense.” Commonwealth v. Hudgins, 269 Va. 602, 604-05 (2005).

When, as here, the pertinent “convictions occurred in a single trial, the only relevant

constitutional guarantee is protection against multiple punishments for the same offense.” Payne

v. Commonwealth, 277 Va. 531, 540 (2009) (citing Blythe v. Commonwealth, 222 Va. 722, 725

(1981)).

       It is well settled that the same act, incident, or occurrence can give rise to multiple

criminal offenses. Martin v. Commonwealth, 221 Va. 720, 723 (1981). Accordingly, offenses are

considered the same offense for double jeopardy purposes “when (1) the two offenses are

identical, (2) the former offense is lesser included in the subsequent offense, or (3) the

subsequent offense is lesser included in the former offense.” Sandoval v. Commonwealth, 64

Va. App. 398, 413 (2015) (quoting Hudgins, 269 Va. at 605). Accordingly, in order to prevail on

his double jeopardy claim, appellant first must be correct in his assertion that “possession of child

pornography . . . [is] a lesser-included [offense] of the production of the child pornography[.]”




defendant the same guarantees as the federal Double Jeopardy Clause.” (quoting Stephens v.
Commonwealth, 263 Va. 58, 62 (2002))).
                                              -4-
                  III. Blockburger, Code § 18.2-374.1:1, and Code § 18.2-374.1(B)

        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.” Id. at 304 (quoting Morey v.

Commonwealth, 108 Mass. 433, 434 (1871)).

        Consistent with the rule of Blockburger, “[a]n offense is not a lesser-included offense of a

charged offense unless all its elements are included in the [greater] offense[.]” Commonwealth v.

Dalton, 259 Va. 249, 253 (2000) (emphasis added). “[I]n order for one crime to be a lesser included

offense of another crime, every commission of the greater offense must also be a commission of the

lesser.” Seibert v. Commonwealth, 22 Va. App. 40, 45 (1996) (quoting Kauffmann v.

Commonwealth, 8 Va. App. 400, 409 (1989)). As such, “proof of the greater offense necessarily

proves the lesser.” Dezfuli v. Commonwealth, 58 Va. App. 1, 7 (2011) (quoting Smith v.

Commonwealth, 17 Va. App. 37, 39 (1993)).

        Because “[i]t is the identity of the offense, and not the act, which is referred to in the

constitutional guaranty against double jeopardy[,]” Armstead v. Commonwealth, 55 Va. App. 354,

358 (2009) (quoting Martin, 221 Va. at 723), the Blockburger test requires that “we look at the

offenses . . . in the abstract, without referring to the particular facts of the case under review[,]”

Coleman v. Commonwealth, 261 Va. 198, 200 (2001). Accordingly, “we view the elements of the

offenses generally and conceptually, rather than the elements of the offenses as charged in a specific

instance.” Johnson v. Commonwealth, 58 Va. App. 303, 323 (2011).




                                                   -5-
        When “‘each [crime] requires proof of a fact that the other does not,’ . . . the offenses are

different ‘notwithstanding a substantial overlap in the proof offered to establish the crimes.’”

Dezfuli, 58 Va. App. at 7-8 (alteration in original) (quoting Brown v. Ohio, 432 U.S. 161, 166

(1977)). “A double jeopardy violation exists only if the offenses always require proof of the same

elements[,]” Davis v. Commonwealth, 57 Va. App. 446, 456 (2011) (emphasis added), in which

case, “[t]he conviction of the lesser included crime is subsumed in the greater conviction[,]” Rea v.

Commonwealth, 14 Va. App. 940, 945 (1992). Accordingly, we turn to the elements of the two

offenses at issue.

                           A. Elements of possession of child pornography

        The General Assembly criminalized the possession of child pornography in

Code § 18.2-374.1:1. Code § 18.2-374.1:1(A) provides that “[a]ny person who knowingly

possesses child pornography is guilty of a Class 6 felony.” For purposes of the statute, “‘child

pornography’ means sexually explicit visual material which utilizes or has as a subject an

identifiable minor.”3 Code § 18.2-374.1(A). Thus, to violate the statute, one must (1) knowingly

possess, (2) sexually explicit visual material, and (3) that material must utilize or have as its

subject an identifiable minor. See Terlecki v. Commonwealth, 65 Va. App. 13, 20 (2015).

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.

                          B. Elements of production of child pornography

        The General Assembly criminalized the production of child pornography in

Code § 18.2-374.1. Employing the same definitions of “child pornography,” “sexually explicit



        3
          Code § 18.2-374.1(A) also further defines the phrases “sexually explicit visual material”
and “identifiable minor[.]” Because appellant’s double jeopardy challenge does not challenge
that the images for which he was tried constituted “sexually explicit visual material” or that they
depicted an “identifiable minor” we need not address the specifics of those definitions.
                                               -6-
visual material,” and “identifiable minor” applicable to charges of possession of child pornography,

see Code § 18.2-374.1(A), Code § 18.2-374.1(B) provides that

               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. Cf. Sansom v. Bd. of

Supervisors, 257 Va. 589, 595 (1999) (addressing the effect of the use of “or”); Harris v.

DiMattina, 250 Va. 306, 314-15 (1995) (same); Williams v. Commonwealth, 61 Va. App. 1, 8

(2012) (same). Accordingly, applying the rule of Blockburger, possession of child pornography

is not a lesser-included offense of production of child pornography, and thus, not the same

offense for double jeopardy purposes, if any of the subsections can be violated without the

perpetrator having possessed the child pornography at issue.

       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. A person who

recruits a minor to appear in pornography is guilty of violating subsection one even if the

“recruiter” is not present when the pornography is made and never actually sees or possesses the

pornography itself. A person who holds lights or microphones during the filming of child
                                             -7-
pornography is guilty of violating subsection three even if such person never possesses the film

or images captured on camera. A person who finances the making of child pornography is guilty

of violating subsection four even if such person never sees or obtains the finished product.

        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. For

example, subsection two is violated by preparation for filming, such as gathering the child actors

and staging the sets, even if the police arrive before any filming actually occurs. Because the

subsection does not require even a partially finished product for a person to be guilty of the

offense, it does not have possession of child pornography as a required element.

        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. As noted above,

“in order for [possession of child pornography] to be a lesser included offense of [production of

child pornography], every commission of the [production] offense must also be a commission of

the” possession offense. Seibert, 22 Va. App. at 45 (quoting Kauffmann, 8 Va. App. at 409).

Because “proof of” production of child pornography does not “necessarily prove[]” possession of

child pornography, Dezfuli, 58 Va. App. at 7 (quoting Smith, 17 Va. App. at 39), and the “offenses

[do not] always require proof of the same elements[,]” they are not the same offense for double

jeopardy purposes, Davis, 57 Va. App. at 456.

        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. As noted above, that analysis requires

that “we look at the offenses . . . in the abstract, without referring to the particular facts of the case

under review.” Coleman, 261 Va. at 200; see also Johnson, 58 Va. App. at 323 (recognizing that,

                                                    -8-
for double jeopardy purposes, “we view the elements of the offenses generally and conceptually,

rather than the elements of the offenses as charged in a specific instance”). Because, “in the

abstract,” one can violate Code § 18.2-374.1(B) without violating Code § 18.2-374.1:1, they are not

the “same offense” for double jeopardy purposes. Accordingly, appellant’s separate convictions

and punishments for each do not violate double jeopardy.

                                           CONCLUSION

       For the foregoing reasons, possession of child pornography in violation of

Code § 18.2-374.1:1 is not a lesser-included offense of production of child pornography in violation

of Code § 18.2-374.1(B). As a result, the offenses are not the same offenses for double jeopardy

purposes, and therefore, the trial court did not err in convicting and punishing appellant separately

for each offense. Accordingly, we affirm the judgment of the trial court.

                                                                                             Affirmed.




                                                 -9-
