COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Decker, Judges Humphreys and AtLee Argued by videoconference PUBLISHED

MOUSSA MOISE HABA OPINION BY v. Record No. 0256-20-4 CHIEF JUDGE MARLA GRAFF DECKER JUNE 15, 2021 COMMONWEALTH OF VIRGINIA FROM THE CIRCUIT COURT OF ARLINGTON COUNTY Judith L. Wheat, Judge Rachel C. Collins, Assistant Public Defender, for appellant. Maureen E. Mshar, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee. Moussa Moise Haba appeals his conviction for the unlawful creation of an image of another in violation of Code § 18.2-386.1. He contends that the evidence is insufficient to support his conviction because the Commonwealth did not prove that the victim had a reasonable expectation of privacy when he recorded her. For the reasons that follow, we conclude that the evidence was sufficient to support the conviction. Consequently, we affirm. I. BACKGROUND1 The appellant’s conviction arose from his interaction with the victim, who was a student from Saudi Arabia studying at an area university. In July 2017, the appellant and the victim met online. At first, the appellant and the victim exchanged messages over the internet, but their relationship ultimately progressed to meeting in person.

In accordance with familiar principles of appellate review, the facts are recited in the light most favorable to the Commonwealth, as the prevailing party at trial. Lambert v. Commonwealth, 298 Va. 510, 515 (2020).

During their short relationship, the appellant became controlling toward the victim. He told her that when he said that he loved her, she had to respond in kind. The appellant claimed to have “videos” of the victim, and he threatened to reveal them “to the Saudi authorities.” He refused to show the victim the purported videos or even tell her what type of videos he claimed to possess. She worried that these recordings might provide evidence that she had a relationship with a man. She explained that Saudi Arabian culture prohibited women from having boyfriends. According to the victim, violating this societal norm could cause her, at the very least, to lose her scholarship or, worse, be “bur[ied] . . . alive.” She clarified that she was not exaggerating and was stating “reality.”

On August 6, 2017, the instant offense occurred when the appellant and the victim were

in her apartment. During that encounter, the appellant used his smartphone to videorecord the victim for four minutes while they were in her bedroom.^[2] In the video, the victim held a blanket in front of her naked body. She did not consent to the recording and pleaded with the appellant to stop recording her. According to the victim, she considered walking out of her apartment to

avoid being recorded but did not, in part, because she was naked except for the blanket. The appellant threatened to hit her and repeatedly ordered her to “obey” him and drop the blanket.

Despite his persistent commands, the victim refused to comply. Eventually, the appellant pulled the blanket away, exposing the victim’s nude body and capturing it on the recording as she tried to cover herself with her hands and arms.

Once the appellant stopped recording, the victim suggested they go to a restaurant, thinking it would give her a chance to contact the police. While at the restaurant, the victim went to the women’s restroom. From the restroom, she called the police.

Officer Charles Young of the Arlington County Police Department responded to the request for assistance. Young found the victim cowering in the restroom. The officer recovered the appellant’s mobile telephone, which contained the video of the victim.

A grand jury indicted the appellant for abduction and unlawful creation of an image. At trial, the appellant made a motion to strike the charges, arguing that the evidence did not prove

either offense. Regarding the instant offense, he argued that the evidence did not prove that the victim had a reasonable expectation of privacy because they were in a relationship, in a private space, and he did not record her “secretly.” The trial court paraphrased the argument as

“suggesting [that] somebody who is naked in their home with their boyfriend has no expectation

of privacy that” he or she “will not be filmed.” The appellant contended that the expectation of privacy was more general because it was a separate element of the crime from consent or recording. The court denied the motion.

The appellant testified in his defense. He stated that he made the video following an

argument between him and the victim. According to the appellant, before he started recording, the victim agreed to let him make a video of her nude. He said that he did not stop when she told him to do so because she had already consented.

At the close of the evidence, the appellant renewed the motion to strike. The trial court again denied the motion.

The jury found the appellant not guilty of abduction but guilty of the unlawful creation of an image of another. The trial court imposed the jury’s sentence of ten months and fifteen days.

II. ANALYSIS

The appellant argues that the evidence is insufficient to support his conviction. He specifically suggests that the Commonwealth did not prove that the victim had a reasonable expectation of privacy when he videoed her. This is the only element of the offense that he contests on appeal.

In determining whether the evidence was sufficient to support a criminal conviction, the appellate court views the facts in the light most favorable to the Commonwealth. See, e.g., Lambert v. Commonwealth, 298 Va. 510, 515 (2020). This deferential standard “requires us to

‘discard the evidence of the accused in conflict with that of the Commonwealth[] and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn’” from that evidence. Vasquez v. Commonwealth, 291 Va. 232, 236 (2016) (quoting

Bowman v. Commonwealth, 290 Va. 492, 494 (2015)). This standard “applies not only to the historical facts themselves[] but [also to] the inferences from those facts.” Clanton v. Commonwealth, 53 Va. App. 561, 566 (2009) (en banc) (quoting Crowder v. Commonwealth, 41 Va. App. 658, 663 n.2 (2003)).

In reviewing the sufficiency of the evidence, the Court defers to the jury’s findings of fact

unless they are plainly wrong or without evidence to support them. See Secret v. Commonwealth, 296 Va. 204, 228 (2018). In its role of judging witness credibility, the fact finder is “entitled to disbelieve” a defendant’s testimony. See Tarpley v. Commonwealth, 261

Va. 251, 256 (2001). Further, “this Court does not ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’” Pooler v. Commonwealth, 71

Va. App. 214, 220 (2019) (quoting Hamilton v. Commonwealth, 69 Va. App. 176, 195 (2018)).

Instead, the test is “whether ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” Id. (quoting Hamilton, 69 Va. App. at 195).

To the extent that the sufficiency issue on appeal requires the appellate court to determine the meaning of a statute and its terms, as applicable in this case, the court reviews that issue de novo. See Barson v. Commonwealth, 284 Va. 67, 71-72 (2012); Miller v. Commonwealth, 64 Va. App. 527, 537 (2015). Although criminal statutes are to be strictly construed against the Commonwealth, we must also “give reasonable effect to the words used” in the legislation.

Johnson v. Commonwealth, 37 Va. App. 634, 639 (2002) (quoting Dillard v. Commonwealth, 28

Va. App. 340, 344 (1998)). When interpreting a statute, an appellate court “presume[s] that the General Assembly chose, with care, the words that appear in [that] statute.” Jones v. Commonwealth, 296 Va. 412, 415 (2018) (quoting Johnson v. Commonwealth, 292 Va. 738, 742

(2016)). Consequently, if the language is “plain and unambiguous, we are bound by [its] plain meaning.” Tisdale v. Commonwealth, 65 Va. App. 478, 484 (2015) (quoting Lee Cnty. v. Town

of St. Charles, 264 Va. 344, 348 (2002)); see Jones, 296 Va. at 415 (quoting Alston v. Commonwealth, 274 Va. 759, 769 (2007)).

The appellant was convicted of unlawful creation of an image under Code § 18.2-386.1.

The applicable subsection of the statute forbids a person from “knowingly and intentionally creat[ing] any videographic or still image” of a person without consent if:

(i) that person is totally nude, clad in undergarments, or in a state of undress so as to expose the genitals, pubic area, buttocks or female breast in a restroom, dressing room, locker room, hotel room, motel room, tanning bed, tanning booth, bedroom or other location; or (ii) the videographic or still image is created by placing the lens or image-gathering component of the recording device in a position directly beneath or between a person’s legs for the purpose of capturing an image of the person’s intimate parts or undergarments covering those intimate parts when the intimate parts or undergarments would not otherwise be visible to the general public; and when the circumstances set forth in clause (i) or (ii) are otherwise such that the person being recorded would have a reasonable expectation of privacy.

Code § 18.2-386.1(A).

The appellant was convicted under clause (i). As set forth clearly in the statute, the elements of that offense relevant to our analysis here are: that the victim did not consent, was in a location such as a “restroom, dressing room, locker room, . . . bedroom or other location,” and the circumstances were “otherwise such” that the victim “would have a reasonable expectation of privacy.” See id. See generally Tisdale, 65 Va. App. at 484 (adhering to the plain meaning of statutory language).

The sufficiency issue raised requires interpretation of the statutory phrase “reasonable

expectation of privacy” as it applies to clause (i). “When a ‘statute’s terms are undefined’ by the legislature, the Court gives those terms ‘their “ordinary meaning,” in light of “the context in which [they are] used.”’” Green v. Commonwealth, 72 Va. App. 193, 203 (2020) (quoting Va.

Marine Res. Comm’n v. Chincoteague Inn, 287 Va. 371, 384 (2014) (alteration in original)).

This Court previously examined the meaning of the phrase “reasonable expectation of privacy” as used in Code § 18.2-386.1(A)(ii) in Wilson v. Commonwealth, 53 Va. App. 599, 602-05 (2009).3 We held that the phrase “reasonable expectation of privacy” applied to both clauses (i) and (ii). Id. at 605. The Court explained that “[c]lause (i) addresses the proscribed acts in relation to the location of the victim[,] i.e., ‘a restroom, . . . bedroom or other location.”

Id. at 604 (emphasis added) (analyzing both clauses even though the case directly involved only

(ii)). It described the locations specified in the statute as areas “not customarily visible to the general public while in use—even though some of these locations may be accessible to the general public.” Id. (citing Code § 18.2-386.1(A)(i)). The Court reasoned that under clause (i), the victim’s reasonable expectation of privacy is “in reference to the victim’s actual physical location” at the time of the recording.^[4] See id. at 605.

In considering whether a reasonable expectation of privacy existed as an element of the offense, the fact finder “tells us what [the] set of facts is,” and its “determination of those

underlying facts is subject to [a] deferential . . . standard of review.” See United States v. Ferebee, 957 F.3d 406, 416 (4th Cir. 2020) (applying this standard in the Fourth Amendment

context); see Logan v. Commonwealth, 47 Va. App. 168, 171 (2005) (en banc) (“Though the ultimate question whether a reasonable expectation of privacy exists [under the Fourth

Amendment] . . . involves an issue of law, we address that question only after the relevant historical facts have been established.”); cf. Caison v. Commonwealth, 52 Va. App. 423, 440-41

(2008) (analyzing the reasonableness of force used for a self-defense claim as a factual issue).

Accordingly, whether a reasonable expectation of privacy exists turns on the specific

circumstances of each case. See generally, e.g., Salahuddin v. Commonwealth, 67 Va. App. 190, 205 (2017) (analyzing the reasonable expectation of privacy concept in the Fourth Amendment context). Additionally, in the context of the crime, the reasonable expectation of privacy must exist at the time of the gravamen of the offense, when the image was created. See generally

McGinnis v. Commonwealth, 296 Va. 489, 507 (2018) (holding that the requisite intent must

exist at the time that the defendant commits the “gravamen of the offense”); Groffel v. Commonwealth, 70 Va. App. 681, 689 (2019) (noting that the gravamen of an offense is its essence), aff’d, 299 Va. 271 (2020), petition for cert. filed, No. 20-6867 (U.S. Apr. 27, 2021);

Commonwealth v. Holloway, 9 Va. App. 11, 18 (1989) (explaining that for Fourth Amendment protection, a reasonable expectation of privacy must exist at the time of the search).

Here, the victim was in her bedroom, a location expressly included in the statute. She

knew the appellant, and, based on their unique relationship, she undressed in front of him. At the time the recording began, however, the victim was shielding her naked body from him and the camera with a blanket.^[5] She pleaded with the appellant to stop recording her. When the appellant refused to stop and continued his demands to remove the blanket, she even considered walking out of the apartment but did not do so, in part, because she was naked.^[6] Under these

circumstances, the jury was entitled to find that the victim had a reasonable expectation of privacy in her bedroom at the time that the appellant was recording her. Cf. United States v. Dunn, 480 U.S. 294, 300 (1987) (recognizing for Fourth Amendment purposes the “sanctity” of a person’s “home and the privacies of life” (quoting Oliver v. United States, 466 U.S. 170, 180

(1984))); Stanley v. Georgia, 394 U.S. 557, 564 (1969) (recognizing “the privacy of a person’s own home”).

The appellant argues that any expectation of privacy the victim had in her bedroom was unreasonable because she did not “take measures to keep” her naked body “reasonably private”

and because she knew that the appellant was there when she originally undressed. However, when the appellant started recording, the victim was holding a blanket to shield her body from view. Consequently, she did take measures to hide her body and keep it “reasonably private.”

The analysis of whether the victim had a reasonable expectation of privacy focuses on the circumstances that existed when the appellant made the recording in the particular location, not

the events that transpired beforehand.^[7] See generally McGinnis, 296 Va. at 507 (holding that the requisite intent must exist at the time that the defendant committed the gravamen of the offense).

Regarding the appellant’s argument that his very presence negated the reasonableness of the victim’s expectation of privacy in her bedroom, the known presence of another person does

not automatically negate a reasonable expectation of privacy. See generally Hamberger v. Eastman, 206 A.2d 239, 242 (N.H. 1964) (holding that placing a listening device in the plaintiffs’ marital bedroom violated their right to privacy); Glenn v. Commonwealth, 275 Va.

123, 133 (2008) (discussing generally the privacy interests of multiple occupants of a residence).

Therefore, we reject the proposition that under the statute, the victim cannot have a reasonable expectation of privacy if she knows another person is present at the time of the offense.

Supporting this interpretation is the statute’s inclusion of locker rooms in the list of protected locations. Under the appellant’s suggested definition of reasonable expectation of privacy, the statute would prohibit recording another person in a locker room only if the victim

reasonably believed no one could see her undressed. This interpretation runs contrary to the common experience of locker rooms. See generally Ohin v. Commonwealth, 47 Va. App. 194, 198-99 (2005) (considering “[c]ommon experience” when interpreting a statutory phrase

(quoting Delcid v. Commonwealth, 32 Va. App. 14, 18 (2000))). A locker room generally consists of a shared space for changing clothes before and after physical activity. The statute’s

specific inclusion of locker rooms as a location where the offense can occur indicates that the legislature envisioned the statute applying in a situation when another person is present and within view. Therefore, we reject the appellant’s proposed interpretation of the phrase “reasonable expectation of privacy” as used in Code § 18.2-386.1. See Spratley v. Commonwealth, 298 Va. 187, 195-96 (2019) (“We adhere to rules of statutory construction that

discourage any interpretation of a statute that would render any part of it useless, redundant or absurd.” (quoting Owens v. DRS Auto. FantomWorks, Inc., 288 Va. 489, 497 (2014))).

The appellant additionally relies on Barnes v. Commonwealth, 61 Va. App. 495 (2013), in support of his position that the obvious presence of another person negated the victim’s reasonable expectation of privacy. He suggests that “[r]easonable expectation of privacy in this context is . . . akin to the standard applied in indecent exposure cases” such as Barnes. In that case, the defendant appealed his convictions for indecent exposure and sexual display. Id. at

496. He was convicted for masturbating in his jail cell in view of staff, inmates, and others. Id.

at 496-97, 500. Affirming the convictions, the Court held that the term “public place,” as used in those statutes, “comprises places and circumstances where the offender does not have a reasonable expectation of privacy, because of the foreseeability of a non-consenting public witness.” Id. at 500. The Court based this definition in part on the applicable statutes’ purpose of “protect[ing] individuals from witnessing the offensive conduct.” Id. The appellant argues that the victim here, like the appellant in Barnes, “had no reasonable expectation of privacy when” she was “in ‘open view’” to him.^[8] Contrary to this argument, the definition of the term

“public place” in Barnes does not apply to the analysis here. The victim in this case, while