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March 17, 2026 Get Citation Alerts Download PDF Add Note

Dylan Lindsey, s/k/a Dylan Michael Lindsey v. Commonwealth of Virginia

Court of Appeals of Virginia

• Citations: None known
• Docket Number: 2051242
• Precedential Status: Non-Precedential

• Disposition: Judgment affirmed as trial court did not abuse its discretion prohibiting appellant as a condition of suspended sentence from having conduct with his daughter; claim no contact condition violated constitutional rights waived, Rule 5A:18

• Opinion

• Authorities (13)

• Cited By (0)

• Summaries (0)

• Similar Cases (1.1K)

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Disposition

Judgment affirmed as trial court did not abuse its discretion prohibiting appellant as a condition of suspended sentence from having conduct with his daughter; claim no contact condition violated constitutional rights waived, Rule 5A:18

Combined Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Decker, Judges Malveaux and Duffan
UNPUBLISHED

Argued at Richmond, Virginia

DYLAN LINDSEY, S/K/A
DYLAN MICHAEL LINDSEY

v. Record No. 2051-24-2

COMMONWEALTH OF VIRGINIA MEMORANDUM OPINION* BY
JUDGE KEVIN M. DUFFAN
DYLAN LINDSEY, S/K/A MARCH 17, 2026
DYLAN MICHAEL LINDSEY

v. Record No. 0072-25-2

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Edward A. Robbins, Jr., Judge

Catherine French Zagurskie, Chief Appellate Counsel (Kelsey
Bulger, Deputy Appellate Counsel; Virginia Indigent Defense
Commission, on briefs), for appellant.

Elizabeth Kiernan Fitzgerald, Assistant Attorney General (Jason S.
Miyares,1 Attorney General, on brief), for appellee.

In these consolidated appeals, Dylan Michael Lindsey contends that the trial court erred

by prohibiting him, as a condition of his suspended sentence, from having contact with his

six-year-old daughter. We affirm.

*
This opinion is not designated for publication. See Code § 17.1-413(A).
1
Jay C. Jones succeeded Jason S. Miyares as Attorney General on January 17, 2026.
BACKGROUND2

“We recite the facts in the light most favorable to the Commonwealth, the prevailing party

below.” Johnson v. Commonwealth, 85 Va. App. 257, 266 (2025) (quoting Camann v.

Commonwealth, 79 Va. App. 427, 431 (2024) (en banc)). In doing so, we discard any evidence that

conflicts with the Commonwealth’s evidence and regard as true all the credible evidence favorable

to the Commonwealth and all inferences that can be fairly drawn from that evidence. Id.

In June 2024, Lindsey and the Commonwealth entered into a written plea agreement

whereby Lindsey agreed to plead guilty to two counts of possessing child pornography and five

counts of possessing images involving bestiality. The agreement provided that “any active period of

incarceration imposed by the [trial c]ourt shall be within the sentencing [guideline] range prepared”

as part of the presentence report. Lindsey also “agree[d] to give up the right to ask the [c]ourt for

sentence modification under Virginia Code Section 19.2-303, unless agreed to by the

Commonwealth.” Finally, the parties agreed to move jointly that a psychosexual evaluation be

prepared before sentencing.

Lindsey pleaded no contest to the seven charges. After conducting a thorough plea

colloquy, the trial court determined that Lindsey, with full knowledge and understanding of the

contents and implications of the plea agreement, entered his plea freely, voluntarily, and

intelligently. The Commonwealth proffered that the police searched Lindsey’s cell phone while

executing a search warrant on an “unrelated matter” at his Chesterfield County residence. On the

phone, the police found two images of prepubescent children “engaged in sexual contact; toddler to

preteen age” and five images of “individuals having sexual contact with animals.” On that

2
“Although parts of the record are sealed, this appeal requires unsealing certain portions
to resolve the issues raised by [Lindsey]. To the extent that certain facts are found in the sealed
portions of the record, we unseal those portions only as to those specific facts mentioned in this
opinion.” Khine v. Commonwealth, 75 Va. App. 435, 442 n.1 (2022). “The rest remains sealed.”
Id.
-2-
evidence, the trial court found Lindsey guilty of the seven offenses, ordered a psychosexual

evaluation, and continued the matter for sentencing.

Dr. Evan Nelson conducted the psychosexual evaluation, which the trial court received at

the sentencing hearing. Despite telling Dr. Nelson that he “ha[d] been living with his girlfriend for

years” at his grandmother’s house, Lindsey could not provide valid phone numbers for either his

girlfriend or grandmother, which Dr. Nelson found “suspicious.” Although Lindsey had held entry

level jobs, he was fired from all of them because of his “anger” issues, which he admitted were “so

out of control, it wasn’t even funny.” Thus, Lindsey was unemployed at the time of the offense and

evaluation and relied on disability checks because of his mental illness. As he told Dr. Nelson, “I

just basically stay at home all day, I just choose to stay at home [be]cause it’s less problems.”

According to Dr. Nelson’s report, “[t]he pornography offenses were detected after . . .

Lindsey bragged online during sexting with a supposed 17-year-old girl that he molested his [then]

5-year-old daughter.” According to the police report, Lindsey told the minor that he had sexual

interest in underage females and sent her a picture of an erect penis. The police report further

recited that Lindsey told the minor that he “ha[d] access to a five-year-old girl who he previously

sexually assaulted and plan[ned] to do so again,” and specifically claimed to have “rubbed [the

five-year-old’s] vagina” “earlier in the day.” Lindsey further texted that “when her mom goes to

work in a few I might lick her and try to fuck her a little,” and agreed to call the teenager “on video

chat” so she could watch. Lindsey admitted to Dr. Nelson that he wrote those words about his five-

year-old daughter but denied that he committed the acts that he wrote about, stating, “I have no idea

why I said that.” The criminal charges against Lindsey for molesting his daughter were nolle

prossed because the victim was uncooperative. Lindsey denied to Dr. Nelson that he had sexual

interest in his daughter or any other children.

-3-
As a condition of his pretrial bond, Lindsey could have contact with his daughter but only

with adult supervision. Lindsey told Dr. Nelson that, “[t]o accomplish that” condition, “he lived in

a camper in his grandmother’s yard for a while.” After some time, however, Lindsey moved back

into the house, because as he claimed, his lawyer told him doing so was acceptable as long as he and

his daughter had separate bedrooms. When Dr. Nelson asked Lindsey if he had a formal safety

plan, Lindsey responded that “there were no special rules” but that he “always ensure[d] another

adult [was] around so he was not alone with his daughter.” In the presentence report, however,

Lindsey wrote, “I take care of my daughter while her mother works.”

Lindsey claimed to suffer “from almost every fake symptom that was put to him,” which led

Dr. Nelson to conclude that “his self-report of mental illness [was] not reliable.” Lindsey claimed

that he was sexually abused by two older boys when he was a child. He also had an unadjudicated

allegation of a sex offense while a juvenile.

Lindsey denied that he knowingly possessed child pornography, claiming that the child

pornography images found on his phone depicted adult women, not children. He also asserted that

he did not know it was illegal to possess images of bestiality, which he looked at out of curiosity

and amusement. He admitted that pornography was “a daily activity that consumed his free time”

and that he masturbated to pornography seven or eight times per day.

In his report, Dr. Nelson wrote that Lindsey’s situation “point[ed] to more risk” because he

was detected while “sexting with a minor, a female who claimed to be 17 years old—so he was

making contact with a minor.” Moreover, the fact that Lindsey knew “he had that deviant fantasy

and was willing to endorse it to a minor is a clue that he has issues related to greater risk than the

typical child pornography offender, who wants to explore deviant materials in isolation with no

bleed-over into reality, like their daughter, for example.” Dr. Nelson was further “troubled by the

-4-
lack of a formal home safety plan” to ensure that Lindsey “does not act on fantasies about molesting

his daughter.”

Considering all the surrounding circumstances, Dr. Nelson concluded that Lindsey was at

“substantially above-average risk” for reoffending and that “Lindsey’s willingness to publicly

declare he has molested his daughter and was willing to do so again should be taken as a sign of the

potential for Pedophilic Disorder, and that he poses a risk to his daughter.” Dr. Nelson

recommended that the trial court order a “formal safety plan” agreed to by Lindsey, his family, his

probation officer, and therapist before allowing him to continue to reside with his daughter.

The sentencing guidelines recommended a range of active incarceration between three and

six months. Lindsey asked for an active sentence of six months of home electronic monitoring,

stressing that his family was supportive and he had no prior criminal record. In allocution, Lindsey

told the court that he was “very sorry for what [he] did.”

The trial court stated that it would not have accepted the plea agreement had it known the

level of risk Lindsey presented and the “reasons therefore as expressed in the psychosexual

evaluation.” To “mitigate the risk,” yet impose a sentence in accordance with the plea agreement,

the trial court sentenced Lindsey to a total of 15 years of incarceration with all but 6 months

suspended. As a condition of Lindsey’s probation and suspended sentence, the trial court ordered

him to have no contact with his child and no unsupervised contact with any other minors.

Lindsey conceded that the sentence complied with the plea agreement but objected to the

condition mandating no contact with his daughter, arguing there were “no charges relat[ing] to” her.

He asserted that the “whole family” lived together and that “child safety can be adequately

maintained by the family being there.” The trial court responded that Lindsey’s “own statements

belie[d] that” assertion and overruled the objection. The court noted, however, that it would review

-5-
the issue if timely raised in a post-sentencing motion. The trial court entered the sentencing order

on November 14, 2024.

On November 21, 2024, Lindsey filed a “Motion to Reconsider Terms of Sentence,”

asserting for the first time that the no-contact condition violated his constitutional due process

rights. Lindsey asked the trial court to amend the condition to permit supervised contact with his

daughter. The Commonwealth opposed the motion. The court held a hearing on November 27,

2024, at which Lindsey advanced his constitutional argument.

Following the arguments, the trial court found that Lindsey’s motion was properly construed

as a motion to modify his sentence under Code § 19.2-303, not a motion to reconsider. The court

noted that Lindsey had expressly agreed in the plea agreement to waive his right to seek

modification of his sentence unless the Commonwealth agreed with the modification. The court

denied Lindsey’s motion “[o]n that singular basis.” But, “assuming [it] [wa]s incorrect” that

Lindsey’s motion should be considered a motion for modification, the court found that, considering

all the facts and circumstances and the findings in the psychosexual evaluation, the no-contact

condition was “absolutely necessary and appropriate.” In making that finding, the court noted

Lindsey’s comment in the presentence report that he was the child’s caregiver when the child’s

mother was at work, Dr. Nelson’s opinions that Lindsey struggled with self-control and posed a risk

to his daughter, and Lindsey’s texts that he had molested his daughter and would do so again. The

court memorialized its ruling in a written order dated December 13, 2024. These appeals followed.3

3
Lindsey noted his appeal from the November 14, 2024 sentencing order, which the Clerk
of our Court assigned Record No. 2051-24-2. Lindsey also noted an appeal from the trial court’s
December 13, 2024 denial of his motion to reconsider; the Clerk of our Court assigned that appeal
Record No. 0072-25-2.
-6-
ANALYSIS

“Criminal sentencing decisions are among the most difficult judgment calls trial judges

face.” Minh Duy Du v. Commonwealth, 292 Va. 555, 563 (2016). “The sometimes conflicting

penological goals involved in such decisions defy precise measurements.” Id. “Because this

task is so difficult, it must rest heavily on judges closest to the facts of the case—those hearing

and seeing the witnesses, taking into account their verbal and nonverbal communication, and

placing all of it in the context of the entire case.” Id. For these reasons, determining the

sentence “lies within the sound discretion of the trial court. A sentencing decision will not be

reversed unless the trial court abused its discretion.” Garibaldi v. Commonwealth, 71 Va. App.

64, 67 (2019) (quoting Martin v. Commonwealth, 274 Va. 733, 735 (2007)). “The abuse of

discretion standard draws a line—or rather, demarcates a region—between the unsupportable and

the merely mistaken, between the legal error . . . that a reviewing court may always correct, and the

simple disagreement that, on this standard, it may not.” Jefferson v. Commonwealth, 298 Va. 1,

10-11 (2019) (alteration in original) (quoting Reyes v. Commonwealth, 297 Va. 133, 139 (2019)).

The abuse-of-discretion standard encompasses review of the “conditions of probation imposed

by a trial court as part of its sentencing determination.” Murry v. Commonwealth, 288 Va. 117,

122 (2014).

Record No. 2051-24-2

Lindsey’s primary argument on appeal is that the prohibition of contact with his child as a

condition of his suspended sentence was unreasonable. It is well-settled that after a criminal

conviction, the trial court “may suspend imposition of sentence or suspend the sentence in whole or

part and in addition may place the defendant on probation under such conditions as the court shall

determine.” Code § 19.2-303. “[A] sentencing court has broad discretion to impose reasonable

special conditions of probation and suspension that are tailored to the unique circumstances of a

-7-
case.” Commonwealth v. Delaune, 302 Va. 644, 657 (2023). “Absent an alleged statutory or

constitutional violation, ‘[t]he sole statutory limitation placed upon a trial court’s discretion in its

determination of such conditions is one of reasonableness.’” Id. (alteration in original) (quoting

Minh Duy Du, 292 Va. at 563). That is, “[p]robation conditions must be reasonable in light of the

nature of the offense, the defendant’s background, and the surrounding circumstances.” Id. at 658

(quoting Murry, 288 Va. at 122).

Lindsey was convicted of possessing child pornography images involving prepubescent

children. He also admitted to having a graphic sexual conversation online with someone he

believed to be a 17-year-old girl, in which he bragged that he had sexually molested a five-year-old

child, would do so again, and even invited the teenager to watch him livestream it. Although

Lindsey lived with other adults, he did not work and admitted that he spent his time at home all day

watching pornography and masturbating. Dr. Nelson concluded in his evaluation report that

Lindsey was at substantially above-average risk for deviant behavior and that his daughter was a

potential victim.

Despite those concerns, there was no evidence of a formal plan to protect Lindsey’s

daughter, but only a vague notion that an adult would always be available to supervise contact

between them. The trial court had reason to be concerned that Lindsey would not comply with a

supervised-contact condition. That specific condition was part of Lindsey’s pretrial bond, yet

Lindsey continued living in the same house with his daughter and wrote in the presentencing report

that he took care of his daughter when her mother was at work, and Lindsey could not provide

Dr. Nelson with valid phone numbers for the two adults who presumably would be tasked with

supervising him. Lindsey raises the argument that because the trial court allowed him supervised

contact with other minors, the court’s no-contact condition with his own daughter was

unreasonable. This argument seemingly ignores the comments Lindsey made regarding his

-8-
daughter, how he has molested her and would be willing to molest her in the future, and his

proximity and unsupervised access to her. The sentencing provision appeared to be specifically

tailored by the trial court in light of Lindsey’s offenses, background, and surrounding

circumstances, and thus it was reasonable. See id.

Lindsey also argues that the no-contact condition violates his constitutional rights. Lindsey

did not preserve that argument in Record No. 2051-24-2. Although Lindsey objected when the trial

court imposed the condition at the sentencing hearing, the sole bases for his objection were that his

criminal charges were unrelated to his daughter and that other adults lived in the home and could

protect the child. He did not at that time claim that the condition was unconstitutional.

“No ruling of the trial court . . . will be considered as a basis for reversal unless an

objection was stated with reasonable certainty at the time of the ruling, except for good cause

shown or to enable this Court to attain the ends of justice.” Rule 5A:18. The rule’s purpose is to

“afford[] ‘the trial court a fair opportunity to resolve the issue at trial, thereby preventing

unnecessary appeals and retrials.’” Hammer v. Commonwealth, 74 Va. App. 225, 236 (2022)

(quoting Creamer v. Commonwealth, 64 Va. App. 185, 195 (2015)). “Not just any objection will

do. It must be both specific and timely—so that the trial judge would know the particular point

being made in time to do something about it.” Bethea v. Commonwealth, 297 Va. 730, 743

(2019). “Specificity and timeliness undergird the contemporaneous-objection rule, animate its

highly practical purpose, and allow the rule to resonate with simplicity.” Id.; see Scialdone v.

Commonwealth, 279 Va. 422, 437 (2010) (explaining that a specific, contemporaneous objection

“must be made . . . at a point in the proceeding when the trial court is in a position, not only to

consider the asserted error, but also to rectify the effect of the asserted error” and that “a specific,

contemporaneous objection gives the opposing party the opportunity to meet the objection at that

stage of the proceeding” (alteration in original) (emphases added)). If a party fails to timely and

-9-
specifically object, he waives his argument on appeal. Arrington v. Commonwealth, 53 Va. App.

635, 641 (2009). Rule 5A:18 applies to bar even constitutional claims. Clark v. Commonwealth,

78 Va. App. 726, 767 (2023).

By failing to argue at his sentencing hearing that the no-contact condition violated his

constitutional rights, Lindsey has waived that argument in Record No. 2051-24-2. Lindsey asserts

that this Court should consider the claim under the ends of justice exception to Rule 5A:18. “The

ends of justice exception is narrow and is to be used sparingly.” Conley v. Commonwealth, 74

Va. App. 658, 682 (2022) (quoting Holt v. Commonwealth, 66 Va. App. 199, 209 (2016) (en banc)).

It “applies only in the extraordinary situation where a miscarriage of justice has occurred.” Id.

“Applying the exception is appropriate when there is error as contended by the appellant and

when the failure to apply the exception would result in a grave injustice.” Hicks v. Dir., Dep’t of

Corr., 289 Va. 288, 296 (2015).

The Supreme Court of the United States has recognized a parent’s fundamental right “to

make decisions concerning the care, custody, and control of their children.” Troxel v. Granville,

530 U.S. 57, 66 (2000) (plurality opinion). Assuming without deciding that the ends of justice

exception could apply when the trial court’s sentence affects a fundamental right, “[i]nherent in

the very nature of probation is that probationers ‘do not enjoy the absolute liberty to which every

citizen is entitled.’” Murry, 288 Va. at 123 (quoting United States v. Knights, 534 U.S. 112, 119

(2001)). Even the out-of-state cases cited by Lindsey conclude that “probation conditions that

limit a sex offender probationer’s right to familial association with their own children” can be

constitutional if “supported by specific findings regarding the compelling circumstances that

justify the limitation.” Salah v. People, 550 P.3d 698, 706 (Colo. 2024).

• 10 - Lindsey made comments that he molested his daughter and would do so again when her

mother was gone.4 Later, Lindsey denied molesting his daughter and claims that he was lying

when he previously stated that he had. In considering those comments, we are mindful of the

requirement that “[t]he record ‘must affirmatively show that a miscarriage of justice has

occurred, not that a miscarriage might have occurred.’” Hines v. Commonwealth, 59 Va. App.

567, 572 (2012) (quoting Akers v. Commonwealth, 31 Va. App. 521, 527 n.2 (2000)).

Ultimately, we conclude that the record does not affirmatively demonstrate that prohibiting

contact between Lindsey and his daughter would be a grave injustice. Accordingly, Rule 5A:18

bars our consideration of this portion of Lindsey’s argument on appeal.

Record No. 0072-25-2

Finally, Lindsey contends that the trial court erred by denying his motion to reconsider the

no-contact condition and amend it to allow adult supervised contact. Lindsey does not assign error

to the trial court’s ruling denying the motion “[o]n th[e] singular basis” that Lindsey, by entering the

plea agreement, expressly waived his right to seek a sentence modification under Code § 19.2-303.

“It is well-settled that a party who challenges the ruling of a lower court must on appeal

assign error to each articulated basis for that ruling.” Ferguson v. Stokes, 287 Va. 446, 452

(2014) (quoting Manchester Oaks Homeowners Ass’n v. Batt, 284 Va. 409, 421 (2012)).

Accordingly, if there are alternative holdings on an issue, “the appellant’s ‘failure to address one

of the holdings results in a waiver of any claim of error with respect to the court’s decision on

that issue.’” Johnson v. Commonwealth, 45 Va. App. 113, 116 (2005) (quoting United States v.

Hatchett, 245 F.3d 625, 644-45 (7th Cir. 2001)). Otherwise, a dissatisfied appellant could “avoid

4
That fact distinguishes this case from some of the cases on which Lindsey relies. See,
e.g., United States v. Davis, 452 F.3d 991, 995 (8th Cir. 2006) (finding a no-contact condition
unconstitutional because there was “no evidence in the record that [the defendant] ha[d] ever
sexually abused a child or that he would try to abuse his daughter once released from prison”).
- 11 -
the adverse effect of a separate and independent basis for the judgment by ignoring it and leaving

it unchallenged.” Id. at 116-17 (quoting San Antonio Press v. Custom Bilt Mach., 852 S.W.2d

64, 65 (Tex. App. 1993)).

Nonetheless, “we still must satisfy ourselves that the alternative holding is indeed one

that (when properly applied to the facts of a given case) would legally constitute a freestanding

basis in support of the trial court’s decision.” Id. at 117. “[I]n making that decision, we do not

examine the underlying merits of the alternative holding—for that is the very thing being waived

by the appellant as a result of his failure to raise the point on appeal.” Id.

In the plea agreement, Lindsey agreed to waive several rights, including the right to ask

for a sentence modification under Code § 19.2-303. The trial court ruled that Lindsey’s motion

requested just that relief. And the trial court made clear that it was denying Lindsey’s motion

solely based on waiver and addressed the merits of Lindsey’s argument only to create a record in

case its waiver conclusion was incorrect. Lindsey does not challenge that ruling on appeal.5 His

failure to challenge the trial court’s alternative legal basis for denying his motion for modification

bars our consideration of his claim that the trial court erred in ruling that the no-contact condition

was necessary and appropriate under the circumstances.

CONCLUSION

For these reasons, we affirm the trial court’s judgment.

Affirmed.

5
In fact, Lindsey writes that, “[a]lthough [he] argued otherwise below, this Court could
agree with the trial court” that “the motion was brought under Code § 19.2-303.” The closest
Lindsey comes to challenging the trial court’s waiver ruling is to note merely that the
Commonwealth did not object to the court hearing the motion. That statement, without more, is
insufficient to challenge the trial court’s ruling. See Rule 5A:20(e) (requiring “principles of law
and authorities”).
- 12 -