Moussa Moise Haba v. Commonwealth of Virginia

Richmond, Virginia - Criminal defense attorney represented Defendant appealing his conviction for the unlawful creation of an image of another.

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.

1

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).

PUBLISHED- 2 -

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.

2 The video was admitted into evidence at trial. The victim testified that her apartment

was a studio, a single small room that functioned as both her living room and bedroom. The

video reflects that the room contained both a bed and a couch. - 3 -

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 - 4 -

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 - 5 -

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- 6 -

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.

3 The legislature amended Code § 18.2-386.1 subsequent to Wilson, but those changes

are not relevant to the analysis here. See 2014 Va. Acts ch. 399.

4

In contrast, a victim's reasonable expectation of privacy under the second clause

references his or her "intimate parts or undergarments covering those intimate parts,” rather than

the victim's physical location. Wilson, 53 Va. App. at 605. - 7 -

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 - 8 -

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

5 The appellant argues that as a matter of law this fact is irrelevant to the reasonable

expectation of privacy analysis because the victim was not entirely successful in covering the

private areas of her body during the recording. Contrary to the appellant's suggestion, the jury

was entitled to consider this fact, along with the other surrounding circumstances, in determining

whether the evidence proved a reasonable expectation of privacy at the time of the recording.

6 The appellant suggests that one cannot consider evidence relating to the elements of

location and non-consent also as evidence of whether the victim had a reasonable expectation of

privacy. He argues that doing so would impermissibly conflate the elements. However, these

factors are among the circumstances relevant to the determination of a reasonable expectation of

privacy and may be considered as such. See generally Martin v. Commonwealth, 272 Va. 31,

35-36 (2006) (providing an example of an offense that contains elements that overlap factually).

Further, in evaluating the sufficiency of the evidence, whether the evidence proves an element of

an offense is a factual issue, and a tribunal does not view each fact in isolation. See

Commonwealth v. Moseley, 293 Va. 455, 466 (2017) (holding that it is "improper[]” to

"scrutinize[] each piece of evidence in isolation”).- 9 -

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

7 While the jury considers all the evidence and decides the weight of each piece, the

critical consideration is whether the evidence proved that the victim had a reasonable expectation

of privacy at the time of the offense. - 10 -

"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

8 The appellant's argument posits that a "public place” for purposes of indecent exposure

is necessarily the opposite of a place in which an individual has a "reasonable expectation of

privacy” for purposes of the unlawful creation of an image. Undermining the appellant's

position is the fact that the statutes have different purposes. The purpose of the statute at issue in

Barnes is to "protect individuals from witnessing the offensive conduct.” Barnes, 61 Va. App. at

500. The purpose of Code § 18.2-386.1 is to protect individuals from having private areas of

their bodies videorecorded or photographed without consent. See Code § 18.2-386.1. See

generally Jones, 296 Va. at 415 (explaining that to determine legislative intent, courts should

look to the plain language of a statute). Therefore, Barnes does not aid our analysis. - 11 -

undressed in her bedroom, did not risk exposing herself to "a non-consenting public witness.”

See id.

The appellant also contends that Code § 18.2-386.1 "was not designed for people in a

relationship in their private homes” or for non-secretive recordings. He cites Wilson for support.

Although Wilson affirmed a conviction for taking a surreptitious photograph of a stranger in a

public place, the case involved a different clause of the statute that proscribes conduct that is not

at issue here. Wilson, 53 Va. App. at 602, 605-06. It does not limit application of the statute to

those circumstances.9

Id. As the law makes clear, had the legislature intended to exclude a

blanket category of conduct from the offense, such as recordings between people in a

relationship or non-surreptitious recordings, it would have done so. See Sarafin v.

Commonwealth, 288 Va. 320, 328 (2014) (holding that the use of specific statutory language in

one instance but not in a similar instance signifies a conscious choice on the part of the

legislature); Phelps v. Commonwealth, 275 Va. 139, 142 (2008) (concluding that if the General

Assembly had intended to make the statute at issue narrower, it would have done so); cf. Code

§ 18.2-130 (prohibiting "secretively or furtively peep[ing]”); Code § 18.2-386.1(B) (excluding

recordings made during criminal investigations by law enforcement). The absence of language

in Code § 18.2-386.1 limiting the prohibited conduct to people not in a relationship or

surreptitious recordings signifies that the legislature did not intend to provide such limits.

Finally, the appellant suggests that the statutory requirement that the victim have a

reasonable expectation of privacy denotes an expectation of privacy from viewing, not from

recording. Although the conviction is not for unlawfully seeing the victim but instead for

unlawfully creating a videographic image of her, the facts in this case do not require the Court to

9 Although the General Assembly intended in part to "address circumstances involving

surreptitious photographs and videotapings,” Blackwell v. Commonwealth, 73 Va. App. 30, 48

(2021), it did not limit the statute to proscribing surreptitious recordings. See Code § 18.2-386.1. - 12 -

make this distinction.10

See generally Commonwealth v. White, 293 Va. 411, 419 (2017)

(recognizing the best and narrowest ground principle). It is clear from the record that the victim

did try to prevent the appellant from seeing her naked body at the time he was recording her.

The fact that she may have permitted him to see her naked before he started recording is

irrelevant here. She covered her body, clearly communicated her desire not to be videorecorded,

and made a reasonable attempt to keep her naked body from view, asserting her expectation of

privacy from him both viewing and recording her body at the time of the offense.

For these reasons, the evidence was sufficient to support the jury's finding that the

appellant recorded the victim when she had a reasonable expectation of privacy under Code

§ 18.2-386.1.

Code § 18.2-386.1(A)(i) encompasses a person’s act of videorecording another person,

naked, without her consent, in her bedroom, when she had a reasonable expectation of privacy.



The evidence supports the jury’s finding that the victim had a reasonable expectation of privacy.



Consequently, we affirm the conviction for the unlawful creation of an image.