                                                                    COURT OF APPEALS OF VIRGINIA


            Present: Judges Kelsey, Alston and Senior Judge Bumgardner
PUBLISHED


            Argued at Alexandria, Virginia


            HUGO ALBERTO SANDOVAL
                                                                                                OPINION BY
            v.            Record No. 1554-13-4                                           JUDGE ROSSIE D. ALSTON, JR.
                                                                                             FEBRUARY 24, 2015
            COMMONWEALTH OF VIRGINIA


                                        FROM THE CIRCUIT COURT OF THE CITY OF WINCHESTER
                                                       John E. Wetsel, Jr., Judge

                                         Matt Beyrau (Matt Beyrau, PLLC, on brief), for appellant.

                                         Robert H. Anderson, III, Senior Assistant Attorney General
                                         (Mark R. Herring, Attorney General, on brief), for appellee.


                          Hugo Sandoval (“appellant”) was tried and convicted of ten counts of manufacturing

            child pornography, eleven counts of indecent liberties with a minor, and one count of conspiracy

            to produce child pornography. On appeal he contends that the trial court erred: 1) when it

            denied his motion to dismiss the indictments against him, because the delay prior to his

            indictment violated his right to due process; 2) when it denied his motion to strike ten of the

            indecent liberties charges on the grounds they were incidental to the manufacturing of child

            pornography charges and a conviction for both offenses violated double jeopardy principles;

            3) when it denied his motion to strike ten counts of indecent liberties down to one count on the

            grounds that the unit of prosecution for indecent liberties is a common scheme or transaction;

            and 4) when it denied his motion to strike ten counts of manufacturing child pornography down

            to one count on the grounds that the unit of prosecution for manufacturing child pornography is a

                                                                        
                          
                     Justice Kelsey participated in the decision of this case prior to his investiture as a Justice
            of the Supreme Court of Virginia.
common scheme or transaction. For the reasons that follow, we disagree and affirm the

judgment of the trial court.

                                                                  BACKGROUND

                                                               A. Underlying Offenses

              In 2004, appellant was convicted of carnal knowledge and aggravated sexual battery for

offenses he committed against his stepdaughters, L.M. and S.M. In August 2004, while

incarcerated for those offenses, appellant placed a series of seven calls to his wife, Helen Mason,

over a three-day span, in which he requested “kinky pictures” of L.M. Helen Mason

subsequently took ten pictures of L.M. in various sexually explicit poses, following appellant’s

instructions as to the kind of pictures he wanted. Mason then delivered the photographs to

appellant at the detention center where he was imprisoned. 1

              Appellant and Mason were both criminally charged for their actions. On September 14,

2004, Mason was indicted on numerous counts of indecent liberties and production of obscene

materials arising out of the August 2004 events involving L.M. In March of the following year,

Mason was convicted of five counts of indecent liberties and ten counts of production of obscene

material. She appealed her convictions to this Court. Thereafter, on April 15, 2005, appellant

was indicted on three counts of taking indecent liberties with a minor, ten counts of producing

child pornography, and two counts of conspiracy. Those indictments were subsequently nolle

prosequied during the pendency of Mason’s appeal of her convictions to this Court. We issued

an opinion affirming Mason’s convictions on November 7, 2006. See Mason v. Commonwealth,

49 Va. App. 39, 636 S.E.2d 480 (2006).

                                                            
              1
        Upon delivering these photographs to appellant at the detention center where he was
imprisoned, Mason took several sexually explicit photographs of appellant, which Mason later
showed to L.M. Appellant was charged and convicted of one count of indecent liberties for
those images. Appellant does not challenge that conviction on appeal.  
                                                                        -2-
        Still incarcerated for his prior convictions of carnal knowledge and aggravated sexual

battery, on November 13, 2012, appellant was indicted on eleven counts of indecent liberties

with a minor, in violation of Code § 18.2-370, ten counts of manufacturing child pornography, in

violation of Code § 18.2-374.1(B), and three counts of conspiracy, in violation of Code

§§ 18.2-22 and 18.2-374.1 all relating to his August 2004 actions involving L.M.

        On December 5, 2012, the Office of the Attorney General filed a civil petition to commit

appellant as a sexually violent predator pursuant to the Civil Commitment of Sexually Violent

Predators Act. Citing appellant’s convictions for carnal knowledge and aggravated sexual

battery, as well as a Sexually Violent Predator Evaluation of appellant prepared by Dr. Ilona

Gravers, a licensed clinical psychologist, who had been designated by the Commissioner of the

Department of Behavioral Health and Development Services to conduct a mental health

examination of appellant, the Attorney General alleged that appellant met the criteria under Code

§ 37.2-900 as a sexually violent predator. As detailed in her evaluation, Dr. Gravers diagnosed

appellant with a personality disorder that made appellant more likely to engage in future sexually

violent acts.

                                      B. Motion to Dismiss

        Appellant filed with the trial court a motion to dismiss the indictments against him,

alleging that his prosecution following a preindictment delay of over eight years violated his due

process rights. He asserted in a supporting memorandum that he was prejudiced by the delay, as

“the age of the case and witnesses’ diminished memories” made “a proper investigation by the

defense . . . all but impossible,” “evidence may have been lost or misplaced,” and the victim

would likely “testify differently” now as an adult than she would have as a minor. Appellant

also asserted that the development of “case law favorable to the prosecution” and “society’s view

of child pornography offenders[, which had] evolved and become more harsh over the
                                                -3-
intervening years,” “strengthened the prosecution’s hand.” Finally, appellant expressed concern

that Dr. Gravers’ evaluation “may have played a role in the charging decision” for his August

2004 offenses and that appellant’s statements to Dr. Gravers “could possibly be used against him

at either the trial or sentencing in his criminal case.” The preindictment delay was not only

prejudicial, appellant argued, but also “done by a prosecutor seeking a tactical advantage” at

trial.

         In a memorandum in opposition to appellant’s motion to dismiss, the Commonwealth

explained both its decision to nolle prosequi the initial charges against appellant and to

subsequently seek indictments against appellant in 2012. The Commonwealth stated that it

moved to nolle prosequi the initial charges against appellant when Helen Mason appealed her

convictions because “[t]he Commonwealth wanted to avoid [L.M.] having to testify multiple

times. If the Court of Appeals remanded the Mason case it would also remand[] [appellant’s]

case and the victim would have to testify in a total of four trials if both cases were then re-tried.”

When Helen Mason’s appeal finally resolved, L.M. “was sixteen and it had been three years

since she had been removed from [her] home,” and appellant “remained incarcerated on other

charges.” The Commonwealth explained that it chose not to seek indictments against appellant

at that time because “[t]he cost of putting [L.M.] through trial was too great compared to any

benefit.”

         The record suggests, however, that the calculus changed in 2012, when the

Commonwealth became aware that appellant had contacted L.M.’s sister, and after the Los

Angeles County District Attorney’s Office contacted the Commonwealth regarding allegations

that appellant had forcibly raped a child in California in 2000. That information led the

Commonwealth to contact L.M., who expressed her interest in seeing appellant charged because



                                                 -4-
“she did not want [appellant] doing the same thing to anybody else.” The Commonwealth

justified its 2012 indictment of appellant for these reasons.

       The trial court held a hearing on appellant’s motion to dismiss on April 8, 2013. The trial

court indicated at that time that the only issue “that had any traction, was the sexually violent

predator evaluation” performed by Dr. Gravers. However, upon the Commonwealth Attorney’s

assertion that he had not read the evaluation, did not intend to introduce it at trial, and intended to

confine the evidence to events occurring in 2004, the trial court concluded that the evaluation

“[was] not an issue in th[e] case.” The trial court denied appellant’s motion to dismiss, finding

that appellant had failed to prove by a preponderance of the evidence that he suffered actual

prejudice or that the Commonwealth intentionally delayed indicting him in order to gain a

tactical advantage.

                                           C. Bench Trial

       The trial court held a bench trial on July 17, 2013. The Commonwealth offered two main

witnesses. Gene Boyce, a systems officer for the detention center at which appellant was

imprisoned, authenticated a CD that contained relevant portions of the August 2004 phone

conversations between appellant, Mason, and L.M. L.M. also testified for the Commonwealth.

L.M. testified that the voices on the recording belonged to appellant, Helen Mason, and herself.

L.M. also identified the ten photographs taken of her by Mason in August 2004. L.M. testified

that she “didn’t want to . . . [take] the pictures,” but her mother threatened to “send [her] back to

foster care” if she did not. L.M. testified that all ten photographs were taken on one night. L.M.

was only thirteen when the photographs were taken.

       Following the Commonwealth’s case-in-chief, appellant made a motion to strike.

Appellant first moved to strike the eleven counts of indecent liberties down to one count of

indecent liberties. Appellant argued that “the unit of prosecution for indecent liberties is not
                                                 -5-
each proposal” that a minor expose her sexual or genital parts. Rather, appellant asserted that

“[i]f there is a continuing kind of scheme or one prolonged proposal . . . [then] the whole

incident is the unit of prosecution.”

       Appellant next moved to strike the charges of indecent liberties on the grounds that each

indecent liberties charge was incidental to the manufacture of child pornography charges.

Appellant therefore contended that his conviction for both offenses would violate double

jeopardy principles. Appellant clarified under questioning from the trial court that an indecent

liberties offense is not incidental to every production of child pornography offense – but each

indecent liberties offense “in this instance” was incidental to the production of child

pornography.

       Finally, appellant raised a motion to strike the ten counts of manufacturing child

pornography down to one count. Appellant argued that the “unit of prosecution should be the

incident during which pictures were taken and there is only one here.” In making that argument,

appellant acknowledged that this Court’s decision in Mason held “that the unit of prosecution for

child pornography is the number of pictures,” but appellant argued that the Mason Court’s

decision was incorrect.

       The trial court denied each of appellant’s motions to strike. Appellant did not put on any

evidence and renewed his motions to strike, which the trial court again denied. The trial court

found appellant guilty of each of the ten counts of manufacturing child pornography and the

eleven counts of indecent liberties with a minor.

                                          D. Sentencing

       The trial court held a sentencing hearing on August 9, 2013. During the hearing, the

Commonwealth submitted a sex offender evaluation form prepared by Dr. Gravers. The form

was required at sentencing under Code § 19.2-301 and distinct from Dr. Gravers’ sexually
                                                -6-
violent predator evaluation that was previously prepared for the civil case. However,

Dr. Gravers consulted the sexually violent predator evaluation while preparing the sex offender

evaluation. The trial court permitted the introduction of the sex offender evaluation over

appellant’s objection that Dr. Gravers improperly used the prior sexually violent predator

evaluation report as a source of information. The trial court then sentenced appellant to a total

term of imprisonment of thirty years, with ten years suspended.

       This appeal followed.

                                            ANALYSIS

                                     A. Preindictment Delay

       Appellant first contends that the trial court erred when it denied his motion to dismiss the

indictments for violating his right to due process. On appeal, appellant argues that the charges

against him should have been dismissed with prejudice because the preindictment delay of over

eight years was entirely unjustified, prejudicial, and done by a prosecutor seeking a tactical

advantage at trial.

       It is not questioned that the primary guarantee against stale prosecutions is the statute of

limitations. See Anderson v. Commonwealth, 48 Va. App. 704, 711, 634 S.E.2d 372, 375 (2006)

(“Virginia has no general statute of limitations on felonies.”). As we have noted previously, “the

Constitution plays [only] a ‘limited role’ in situations alleging preindictment delay.” Id. at 712,

634 S.E.2d at 375 (quoting Morrisette v. Commonwealth, 264 Va. 386, 393, 569 S.E.2d 47, 52

(2002)). “In cases of [preindictment] delay, the issue is whether the accused was denied due

process as a result of the delay.” Hall v. Commonwealth, 8 Va. App. 526, 529, 383 S.E.2d 18,

20 (1989). “Due process principles bar a prosecution for preindictment delay only when the

‘defendant incurred actual prejudice as a result of the delay’ and the ‘prosecutor intentionally

delayed indicting the defendant to gain a tactical advantage.’” Anderson, 48 Va. App. at 712,
                                                -7-
634 S.E.2d at 376 (quoting Morrisette, 264 Va. at 393, 369 S.E.2d at 52). “The defendant bears

the burden of proving both actual prejudice and improper purpose.” Morrisette, 264 Va. at 393,

369 S.E.2d at 52.

       Appellant has not shown that he was meaningfully impaired in his ability to defend

against the charges to such an extent that he was denied a fair trial. On appeal, appellant

advances numerous assertions of prejudice. Appellant contends that he was prejudiced by the

preindictment delay because during that time society’s view of child pornography offenders

hardened, this Court issued an opinion that strengthened the Commonwealth’s hand in plea

negotiations, the Commonwealth gained access to Dr. Gravers’ sexually violent predator

evaluation, and L.M. “had grown up, gone to counseling, and become a better witness for” the

Commonwealth. However, to constitute a showing of actual prejudice, appellant must prove

actual and concrete prejudice as a result of the delay, not merely speculative prejudice. See

generally United States v. Madden, 682 F.3d 920, 929 (10th Cir. 2012) (“‘To constitute a

showing of actual prejudice . . . the defendant must show that he has suffered definite and not

speculative prejudice.’” (quoting United States v. Colonna, 360 F.3d 1169, 1177 (10th Cir.

2004))). Accord United States v. Gregory, 322 F.3d 1157, 1165 (9th Cir. 2003); United States v.

Crouch, 84 F.3d 1497, 1523 (5th Cir. 1996); Acha v. United States, 910 F.2d 28, 32 (1st Cir.

1990); United States v. Antonino, 830 F.2d 798, 805 (7th Cir. 1987).

       Appellant’s allegations fail to show actual prejudice to his right to a fair trial.

Appellant’s claim that society’s view of child pornography offenders has hardened over the years

and this “increased intolerance for such offenders would have been reflected in a jury pool, had

this case gone to a jury trial,” is entirely speculative. Appellant’s Br. at 13. Appellant waived

his right to a jury trial, he has not asserted that he would have chosen a jury trial but for the

delay, and he has not asserted that society’s “increased intolerance” actually prejudiced his bench
                                                 -8-
trial. Moreover, even if appellant had chosen a jury trial, his claim would still fall short of

demonstrating actual prejudice. Implicit in appellant’s argument that society’s hardening view

“would have been reflected in a jury pool,” is the speculative premise that this “increased

intolerance” would have biased the jury against him. But such an unsubstantiated claim of bias

falls short of demonstrating actual, concrete prejudice.

       Similarly, appellant has not shown how the Commonwealth’s “strengthen[ed] . . . hand in

plea negotiations” prejudiced him at trial. Appellant was not entitled to an even hand in plea

negotiations with the Commonwealth, and the Commonwealth was not required to entrench its

position based on the status quo at the time of appellant’s offenses. Like all agreements, plea

negotiations are fluid until finalized. See generally Lampkin v. Commonwealth, 44 Va. App.

709, 723, 607 S.E.2d 722, 729 (2005) (“Absent judicial approval, a proposed plea agreement

cannot be binding on the Commonwealth because the defendant has suffered no harm.”).

       Likewise, appellant’s conclusory allegation that L.M. matured as a witness during the

preindictment delay does not demonstrate prejudice to appellant’s defense at trial. Despite his

claim that L.M. “had become a better witness” for the Commonwealth, appellant has not

demonstrated any effect this had on his ability to defend against the charges at trial. As appellant

conceded below, he did not lose any evidence or witnesses as a result of the delay. Appellant

also stated on brief that “there was no significant additional investigation into this case” during

the delay. (emphasis in original). At trial, the case remained as before, including L.M.’s

testimony.

       Finally, appellant has not demonstrated that the Commonwealth’s access to the sexually

violent predator evaluation prepared for the civil adjudication prejudiced his right to a fair trial,

as the Commonwealth’s Attorney conceded during the hearing on appellant’s motion to dismiss

that the report was not relevant to the charges against appellant. Even more significant, the
                                                 -9-
evaluation was not introduced during appellant’s trial. Put simply, appellant has not

demonstrated any real, concrete prejudice the preindictment delay caused to his ability to defend

against the charged offenses.

        Because appellant failed to meet his burden of proving that he suffered actual prejudice

as a result of the preindictment delay, we need not consider at length appellant’s claim that the

Commonwealth intentionally delayed indicting him in order to gain a tactical advantage at trial.

We find it sufficient to note that the trial court concluded that the Commonwealth delayed

indicting appellant out of “consideration for the victim” and not in order to gain a tactical

advantage over appellant. The trial court’s determination on the question of intent is a finding of

fact to which we accord great deference and reverse only if clearly erroneous. See Evans v.

Commonwealth, 228 Va. 468, 479, 323 S.E.2d 114, 120 (1984) (finding that the record

supported the trial court’s finding that “the evidence fail[ed] to prove . . . that the

Commonwealth purposefully and wrongfully delayed resolution of the defendant’s petition for a

writ of habeas corpus in order to achieve a tactical advantage”).

        Upon our review of the record, we find that the trial court’s decision is not without

support in the evidence. During the hearing on appellant’s motion to dismiss, the

Commonwealth’s Attorney explained that he delayed indicting appellant prior to November

2012 because “[t]he cost of putting [L.M.] through trial was too great compared to any [possible]

benefit.” Moreover, the Commonwealth’s Attorney stated that he charged appellant only after

speaking to the victim, who expressed her willingness to testify in order to prevent appellant

from doing “to anybody else” what he had done to her. Accordingly, we find that appellant has

not demonstrated that the Commonwealth intentionally delayed indicting him in order to gain a

tactical advantage at trial.



                                                 - 10 -
       Because appellant has not shown that the preindictment delay caused him actual

prejudice at trial and that the Commonwealth intentionally delayed indicting him in order to gain

a tactical advantage, his due process challenge must fail.

                                        B. Double Jeopardy

       Appellant next contends that the trial court erred when it denied appellant’s motion to

strike ten of the indecent liberties charges on the grounds that they are incidental to the

manufacture of child pornography charges and a conviction for both violates double jeopardy

principles.

       “The constitutional provision concerning double jeopardy embodies three guarantees:

‘(1) It protects against a second prosecution for the same offense after acquittal. [(2)] It protects

against a second prosecution for the same offense after conviction. [(3)] And it protects against

multiple punishments for the same offense.’” Blythe v. Commonwealth, 222 Va. 722, 725, 284

S.E.2d 796, 797 (1981) (quoting Illinois v. Vitale, 447 U.S. 410, 415 (1980)). “Two offenses

will be considered the same 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.” Commonwealth v. Hudgins, 269 Va. 602, 605, 611 S.E.2d 362, 364 (2005).

The Double Jeopardy Clause “does not apply where the same conduct is used to support

convictions for separate and distinct crimes.” Brown v. Commonwealth, 37 Va. App. 507, 517,

559 S.E.2d 415, 420 (2002). “It is well settled that two or more distinct and separate offenses

may grow out of a single incident or occurrence, warranting the prosecution and punishment of

an offender for each.” Jones v. Commonwealth, 208 Va. 370, 375, 157 S.E.2d 907, 910 (1967).

       “When ‘the same act or transaction constitutes a violation of two distinct statutory

provisions, the test to be applied to determine whether there are two offenses or only one is

whether each [offense charged] requires proof of an additional fact which the other does not.’”
                                                - 11 -
Coleman v. Commonwealth, 261 Va. 196, 200, 539 S.E.2d 732, 734 (2001) (quoting

Blockburger v. United States, 284 U.S. 299, 304 (1932)). In applying this test, we “look at the

offenses charged in the abstract, without referring to the particular facts of the case under

review.” Id. “This standard requires that 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, 709 S.E.2d 175, 185 (2011). “Thus, ‘[a] double

jeopardy violation exists only if the offenses always require proof of the same elements.’” Id.

(quoting Davis v. Commonwealth, 57 Va. App. 446, 456, 703 S.E.2d 259, 263 (2011) (emphasis

added)).

              As in effect at the time of appellant’s offenses, 2 Code § 18.2-374.1 stated, in relevant

part:

                             B. A person shall be guilty of a Class 5 felony who:

                             1. Accosts, entices or solicits a person less than eighteen years of
                             age with intent to induce or force such person to perform in or be a
                             subject of sexually explicit visual material; or
                             2. Produces or makes or attempts or prepares to produce or make
                             sexually explicit visual material which utilizes or has as a subject a
                             person less than eighteen years of age; or
                             3. Who knowingly takes part in or participates in the filming,
                             photographing or other reproduction of sexually explicit visual
                             material . . . which utilizes or has as a subject a person less than
                             eighteen years of age.

              Sexually explicit visual material is defined “as a picture, photograph, sculpture, motion

picture film, digital image, . . . or similar visual representation which depicts a lewd exhibition of




                                                            
              2
         Code § 18.2-374.1(B)(1) has since been amended to refer to “child pornography” rather
than “sexually explicit visual material.” However, the offense is essentially the same, as the
current statute defines child pornography as meaning sexually explicit visual material. Code
§ 18.2-374.1(A).
                                                               - 12 -
nudity, . . . or sexual excitement, sexual conduct or sadomasochistic abuse.” Code

§ 18.2-374.1(A).

       Code 18.2-370(A), on the other hand, penalizes any person over the age of eighteen who,

with lascivious intent:

               (1) Expose[s] his or her sexual or genital parts to any child to
               whom such person is not legally married or propose[s] that any
               such child expose his or her sexual or genital parts to such person;
               or . . . (3) Propose[s] that any such child feel or fondle his own
               sexual or genital parts of 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; or (4) Propose[s] to such child the
               performance of an act of sexual intercourse . . . or (5) Entice[s],
               allure[s], persuade[s], or invite[s] any such child to enter any
               vehicle, room, house, or other place, for any of the purposes set
               forth in the preceding subdivisions . . . .

Code § 18.2-370(B) states, in relevant part, that any person over the age of eighteen who, “with

lascivious intent, knowingly and intentionally . . . encourages [a person under the age of 18

years] to perform in or be a subject of sexually explicit material is guilty of a Class 5 felony.”

       Analytically, the charged offenses do not require proof of the same elements in all

circumstances. Appellant conceded this point at trial. When asked by the trial court whether

“every production of child pornography [includes] . . . an indecent liberty,” appellant answered,

“[n]ot in every one.” We agree. At the time of his offenses, Code § 18.2-374.1(B)(1) required

proof that an adult enticed or solicited a minor “to perform in or be a subject of sexually explicit

visual material,” which is not a required element of the offense of indecent liberties. (Emphasis

added). While Code § 18.2-370(B) proscribes a person over the age of eighteen from

encouraging a minor “to perform in or be subject of sexually explicit material,” the prosecution

is not required to prove such an offense in order to obtain a conviction under Code § 18.2-370.

Because Code § 18.2-370 includes several disjunctive elements, the Commonwealth can obtain a

conviction of indecent liberties, even in the absence of evidence that appellant encouraged the
                                                - 13 -
victim to perform in or be the subject of sexually explicit visual material. See Dezfuli v.

Commonwealth, 58 Va. App. 1, 11, 707 S.E.2d 1, 6 (2011).

       Similarly, while sexually explicit visual material includes visual representations that

depict “a lewd exhibition of nudity,” Code § 18.2-374.1(B) was also written in the disjunctive

and did not require as an element of proof that the perpetrator exposed his or her genital or

sexual parts to the victim or proposed that the victim expose his or her sexual or genital parts to

such person, which is an element of indecent liberties. See Code § 18.2-374.1(A) (defining

sexually explicit visual material to include visual representations of sexual conduct or

sadomasochistic abuse); see also Code § 18.2-390 (defining sexual conduct to include “an act of

apparent sexual stimulation . . . with a person’s clothed or unclothed genitals,” and

sadomasochistic abuse as “actual or explicitly simulated flagellation or torture by or upon a

person who is nude or clad in undergarments, a mask or bizarre costume . . .” (emphasis

added)). In addition, Code § 18.2-370 requires that appellant acted with “lascivious intent,”

whereas then-Code § 18.2-374.1 contained no equivalent element.

       Because each charged offense required proof of an additional fact that the other did not,

the trial court did not err when it denied appellant’s motion to strike the ten indecent liberties

charges.

                                 C. Indecent Liberties Convictions

       Appellant next contends that the trial court erred in denying his motion to strike ten

counts of indecent liberties down to one count because the unit of prosecution for indecent

liberties is a common act, scheme, or transaction and not each proposal that a minor expose their

private parts. Because “the ten photographs of the victim were taken over the course of one

evening into early the next morning,” appellant contends “there was clearly only one transaction

or scheme . . . and that is the unit of prosecution for this offense.” Appellant’s Br. at 20.
                                                - 14 -
       “In a simultaneous prosecution, the role of the Double Jeopardy Clause is ‘limited to

assuring that the court does not exceed its legislative authorization by imposing multiple

punishments for the same offense.’” De’Armond v. Commonwealth, 51 Va. App. 26, 32, 654

S.E.2d 317, 320 (2007) (quoting Stephens v. Commonwealth, 263 Va. 58, 62, 557 S.E.2d 227,

230 (2002)). However, “conduct may constitute more than one violation of a single criminal

proscription.” Jordan v. Commonwealth, 2 Va. App. 590, 593, 347 S.E.2d 152, 154 (1986).

“Where the legislature has authorized cumulative punishments, regardless of whether the

offenses are the ‘same,’ the prosecutor may seek and the trial court may impose cumulative

punishments in a single trial.” Id. at 594, 347 S.E.2d at 154. “The multiple punishments

prohibition, therefore, remains from start to finish wholly dependent on statutory interpretation.”

De’Armond, 51 Va. App. at 33, 654 S.E.2d at 320 (citing John L. Costello, Virginia Criminal

Law & Procedure § 51.3-4, at 688-90 (3d ed. 2002)).

       The trial court convicted appellant of ten violations of Code § 18.2-370. Code

§ 18.2-370(A)(1) states that “[a]ny person 18 years of age or over, who, with lascivious intent,

knowingly and intentionally . . . propose[s] that any . . . child expose his or her sexual or genital

parts to such person” is guilty of a Class 5 felony. Under the plain language of the statute, “[t]he

simple act of proposing or inviting constitutes the completed crime if the offender is over the age

of 18, the act is done with lascivious intent and the victim is under the age of 14.” Hix v.

Commonwealth, 270 Va. 335, 347, 619 S.E.2d 80, 87 (2005) (emphasis added) (noting that the

victim need not “agree to perform any of the acts”). In other words, the gravamen of the offense

is the proposal or encouragement to a child, under the age of fourteen, to expose his or her

sexual parts. See Baker v. Commonwealth, 284 Va. 572, 576, 733 S.E.2d 642, 644-45 (2012)

(noting that when determining “when one offense ends and the next begins,” courts should

determine “the gravamen of the offense” for which the defendant was convicted). Consistent
                                                - 15 -
with this plain reading of Code § 18.2-370(A)(1), we find that each distinguishable incident in

which an adult articulates such a proposal constitutes a violation of Code § 18.2-370(A)(1).

       Code § 18.2-370(C) adds support to this conclusion. That code section states, in relevant

part, that “[a]ny person who is convicted of a second or subsequent violation of this section is

guilty of a Class 4 felony, provided that . . . the offenses were not part of a common act,

transaction or scheme . . . .” Contrary to appellant’s assertions, Code § 18.2-370(C) by its

express terms applies only to enhanced punishments for “second or subsequent violation[s].”

And by permitting enhanced punishment for “second or subsequent violation[s]” provided the

violations “were not a part of a common act, transaction or scheme,” Code § 18.2-370(C)

underscores the General Assembly’s expressed intent in Code § 18.2-370(A)(1) that

distinguishable proposals are subject to multiple first violation charges, regardless of whether the

proposals occurred during a common transaction or scheme.

       We therefore reject appellant’s contention that the trial court erred by denying his motion

to strike ten counts of indecent liberties down to one count because the offenses occurred during

a common transaction or scheme.

                        D. Manufacturing Child Pornography Convictions

       Finally, appellant contends that “[t]he trial court erred when it denied [his] motion to

strike [ten] counts of manufacturing child pornography down to [one] count on the grounds that

the unit of prosecution for manufacturing child pornography is a common scheme or transaction,

and there was only one such scheme or transaction in this case. Mason v. Commonwealth, 49

Va. App. 39 (2006), should be overruled because it leads to an absurd result.”

       “‘When considering multiple punishments for a single transaction, the controlling factor

is legislative intent.’” Mason, 49 Va. App. at 46, 636 S.E.2d at 483 (quoting Kelsoe v.

Commonwealth, 226 Va. 197, 199, 308 S.E.2d 104, 104 (1983)). “Where the legislature has
                                               - 16 -
authorized cumulative punishments, regardless of whether the offenses are the ‘same,’ the

prosecutor may seek and the trial court may impose cumulative punishments in a single trial.”

Jordan, 2 Va. App. at 594, 347 S.E.2d at 154.

       In this case, the trial court convicted appellant of ten violations of Code § 18.2-374.1(B).

Code § 18.2-374.1(B) proscribes the production or attempted production of child pornography,

which Code § 18.2-374.1(A) defines as “a picture, photograph, drawing, sculpture, motion

picture film, digital image . . . or similar visual representation” depicting lewd conduct or sexual

activity. (Emphasis added). As we explained in Mason, “[b]y using the word ‘a’ followed by a

succession of singular nouns in the definition of [child pornography] in Code § 18.2-374.1(A),

the Virginia legislature has demonstrated its clear intent that [production] of a single photograph

could constitute an offense under Code § 18.2-374.1 and that multiple punishments would result

from multiple violations of the statute.” 49 Va. App. at 48, 636 S.E.2d at 484; see Papol v.

Commonwealth, 63 Va. App. 150, 153, 754 S.E.2d 918, 920 (2014) (stating that “[t]his analysis

tracks the underlying purpose of the statute to protect children from pornographers, pedophiles,

and others who seek to take advantage of their vulnerabilities”). Therefore, we conclude that the

number of separate offenses of manufacturing or producing child pornography “corresponds to

the number of individual items of [child pornography].” Id.

       Acknowledging this Court’s prior holding that the number of offenses under Code

§ 18.2-374.1(B) corresponds to “the number of pictures or videos,” appellant contends on brief

that “Mason v. Commonwealth should be overruled because it leads to an absurd result.”

Appellant’s Br. at 21-22. The interpanel accord doctrine precludes our reconsideration of

Mason. Under that doctrine, a decision from a panel of this Court “cannot be overruled except

by the Court of Appeals sitting en banc or by the Virginia Supreme Court.” Clinchfield Coal Co.

v. Reed, 40 Va. App. 69, 73, 577 S.E.2d 538, 540 (2003).
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       For the foregoing reasons, we conclude that the trial court did not err by denying

appellant’s motion to strike.

                                         CONCLUSION

       For the reasons stated above, we find that the trial court did not err in denying appellant’s

motion to dismiss the indictments and did not err in denying appellant’s motions to strike the

charges of indecent liberties or manufacturing child pornography.

                                                                                          Affirmed.




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