DeAmicis v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton, Coleman, Elder,
Bray, Annunziata, Bumgardner, Lemons and Frank
Argued at Richmond, Virginia

MICHAEL JOSEPH DeAMICIS
OPINION BY
v. Record No. 1240-98-1 JUDGE RICHARD S. BRAY
FEBRUARY 1, 2000
COMMONWEALTH OF VIRGINIA

UPON A REHEARING EN BANC

FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY
John E. Clarkson, Judge Designate

No brief or argument for appellant.

H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.

Michael Joseph DeAmicis (defendant) was convicted in a

bench trial for taking indecent liberties with a minor, a

felony, in violation of Code § 18.2-370.1, and contributing to

the delinquency of a minor, a misdemeanor, in violation of Code

§ 18.2-371. On appeal, defendant challenged the sufficiency of

the evidence to support the convictions. A panel of this Court

found the evidence sufficient to support the felony but reversed

the misdemeanor conviction. See DeAmicis v. Commonwealth, 29

Va. App. 751, 514 S.E.2d 788 (1999). We granted the

Commonwealth's petition for rehearing en banc, and "the appeal
[was] reinstated on the docket of this Court." Upon such

rehearing, we affirm both convictions.

In reviewing the sufficiency of the evidence, we consider

the record "'in the light most favorable to the Commonwealth,

giving it all reasonable inferences fairly deducible therefrom.

In so doing, we must 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 . . . .'"

Watkins v. Commonwealth, 26 Va. App. 335, 348, 404 S.E.2d 856,

866 (1998) (citation omitted). The credibility of the

witnesses, the weight accorded testimony, and the inferences to

be drawn from proven facts are matters to be determined by the

fact finder. See Long v. Commonwealth, 8 Va. App. 194, 199, 379

S.E.2d 473, 476 (1989). "When weighing the evidence, the fact

finder is not required to accept entirely the Commonwealth's or

defendant's account of the facts," but "may reject that which it

finds implausible, [and] accept other parts which it finds to be

believable." Pugliese v. Commonwealth, 16 Va. App. 82, 92, 428

S.E.2d 16, 24 (1993). The judgment of the trial court, finding

guilt beyond a reasonable doubt, will not be set aside unless

plainly wrong or unsupported by the evidence. See Code

§ 8.01-680.

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 In November, 1996, V.S. 1 was experiencing difficulties with

her daughter, E.A., then 16. The teenager "was having problems"

with "anxiety attacks," school attendance, drugs and "sexual

promiscuity," and had attempted suicide. Previous counseling

had not been helpful, and V.S., acting on the advice of a

friend, contacted defendant, a reputed "psychologist."

Defendant assured V.S. that "he was licensed, had been to

school," and, after a brief conversation, agreed to be "[E.A.'s]

counselor, . . . her psychologist."

V.S. immediately brought E.A. to defendant's home for an

initial conference, but E.A. "instantly realized that she was

there for counseling[,] . . . made a scene" and vowed that she

"was not coming back." "[D]istraught," V.S. ended the meeting

and, later, telephoned defendant for further guidance. During

their conversation, defendant commented that he found E.A. "very

bright, very intelligent[,] . . . a beautiful child[,] . . . a

gorgeous child," and suggested that he "take and counsel her

through modeling, . . . then she would not realize that she was

being counseled."

After a few days, V.S. and E.A. returned to defendant's

residence, V.S. intending to pursue defendant's novel approach

to counseling E.A. Defendant advised V.S. that "[h]e wanted

complete control of [E.A.] . . . . [V.S.] was never to question

1
To avoid unnecessary embarrassment to the victim and her
mother, we use pseudonyms for each.

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[E.A.] . . . as to their sessions, that if [she] had any

questions, [she] was to go to him, that he needed [E.A.'s]

complete confidence in him . . . [s]o that he could counsel her

and try to help her through this time in her life." Defendant

proposed that the counseling services be without charge,

provided he was reimbursed photography expenses and received a

percentage of E.A.'s anticipated earnings as a model. V.S.

accepted defendant's terms, and the two agreed that defendant

and E.A. would regularly meet, alone, in V.S.'s home, beginning

in late 1996. At defendant's suggestion, V.S. subsequently

removed E.A. from public school and undertook home schooling.

During the ensuing months, V.S. spoke with defendant

following each session with E.A. and was assured that E.A. "was

doing wonderful." When V.S. voiced concern to defendant that

E.A. "was staying in bed," neglecting her "home study course,"

"not going out, . . . wasn't going anywhere" and "getting

progressively worse in her depression," he "kind of brushed

[these issues] off."

E.A. testified that she first believed that defendant was

"just a photographer" but later learned, "while he was taking

pictures," that he was also her counselor. She acknowledged

that she "was in a rough state at the time" and agreed to

participate in the arrangement with defendant only after V.S.

"pushed it on [her]." E.A. recalled that defendant selected and

arranged her clothing and pose for each photograph and promised

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that the "angle" would reveal no nudity. When E.A. asked "why

he took so many slutty shots," defendant answered, "sex sells."

In the Spring of 1997, E.A. "disappeared" for several days,

and, on the floor of her room, V.S. discovered numerous

photographs of E.A., which depicted her sexual and genital

areas, inside a "notebook" that belonged to defendant. V.S.

immediately terminated all contact between defendant and E.A.

and notified local police of her findings. During the resulting

investigation, defendant admitted that he had taken photographs

of E.A. which revealed her sexual and genital parts. Meanwhile,

E.A. returned to public school and soon evidenced much improved

academic performance, motivation, emotional stability, and

otherwise positive behavior.

Defendant testified that his relationship with V.S. and

E.A. began when V.S. contacted him and described E.A.'s

"problems." During their initial meeting, he "ascertained that

[E.A.] was interested in modeling," and advised V.S., "I do

photography work." Defendant admitted that he subsequently

agreed to prepare a photographic "portfolio" of E.A. to advance

her modeling career, but denied any attendant counseling

responsibilities. He first denied photographing E.A.'s sexual

or genital parts, but, during cross-examination, identified

several photos of E.A., taken by him, which depicted her exposed

breasts.

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 I.

Defendant first argues that the evidence failed to

establish the existence of a custodial or supervisory

relationship between E.A. and himself, an indispensable element

to a violation of Code § 18.2-370.1.

Code § 18.2-370.1 provides, in pertinent part, that

[a]ny person eighteen years of age or older
who maintains a custodial or supervisory
relationship over a child under the age of
eighteen, including but not limited to the
parent, step-parent, grandparent,
step-grandparent, or who stands in loco
parentis with respect to such child and is
not legally married to such child, and who,
with lascivious intent, knowingly and
intentionally . . . (iv) proposes that any
such child expose his or her sexual or
genital parts to such person . . . shall be
guilty of a Class 6 felony.

"[T]he Supreme Court has rejected limiting the definition of

'custody' to legal custody," "defined generally as '[t]he care

and control of a thing or person.'" Krampen v. Commonwealth, 29

Va. App. 163, 167-68, 510 S.E.2d 276, 278 (1999) (quoting

Black's Law Dictionary 384 (6th ed. 1990)); see Lovisi v.

Commonwealth, 212 Va. 848, 850, 188 S.E.2d 206, 208 (1972).

Thus, the "custodial or supervisory relationship" contemplated

by the statute "is not limited to those situations where legal

custody exists." Krampen, 29 Va. App. at 168, 510 S.E.2d at

278. "The term also includes those individuals eighteen years

or older who have a temporary, custodial relationship with a

child, such as, 'teachers, athletic instructors and

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baby-sitters.'" Id. (quoting Lovisi, 212 Va. at 850, 188 S.E.2d

at 208).

Here, the evidence clearly established that V.S. entrusted

E.A. to the care, custody, and control of defendant for purposes

of professional counseling. At defendant's suggestion, V.S.

agreed to the photography and modeling ruse to gain E.A.'s

cooperation in the professional care promised by defendant.

Defendant demanded "complete control" of E.A., free from

question or interference from V.S. During sessions with E.A.,

he was alone with the child and directed the style and

arrangement of her clothing, the pose and setting for each

photograph. Both V.S. and E.A. submitted themselves to

defendant's direction until V.S. discovered his misdeeds. Such

circumstances clearly created a temporary custodial relationship

between defendant and E.A. for the duration of each session,

submitting E.A. to defendant's control within the purview of

Code § 18.2-370.1.

II.

Defendant next contends that the evidence was insufficient

to prove conduct that "caused [E.A.] to be in need of services,"

one of several disjunctive elements enumerated in Code

§ 18.2-371, all of which were charged in the subject indictment. 2

2
The Commonwealth addressed only this issue both before the
original panel and en banc.

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 Code § 18.2-371 provides, in pertinent part, that:

[a]ny person eighteen years of age or older,
including the parent of any child, who (i)
willfully contributes to, encourages, or
causes any act, omission, or condition which
renders a child delinquent, in need of
services, or abused and neglected as defined
in § 16.1-228, . . . shall be guilty of a
Class 1 misdemeanor.

Code § 18.2-371. Code § 16.1-228 defines a "child in need of

services" as "a child whose behavior, conduct or condition

presents or results in a serious threat to the well-being and

physical safety of the child." The statute further provides,

[h]owever, to find that a child falls within
these provisions, (i) the conduct complained
of must present a clear and substantial
danger to the child's life or health or (ii)
the child or his family is in need of
treatment, rehabilitation or services not
presently being received, and (iii) the
intervention of the court is essential to
provide the treatment, rehabilitation or
services needed by the child or his family.

Code § 16.1-228.

Defendant, therefore, posits that conviction for a

violation of Code § 18.2-371 arising from a child "in need of

services" requires a showing that "intervention of the court" is

"essential" to the remedy. We need not address this argument,

however, because Code § 18.2-371 also proscribes conduct "which

renders a child . . . abused and neglected . . . as defined in

Code § 16.1-228," an alternate circumstance specifically alleged

in the indictment. Code § 18.2-371 (emphasis added).

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 Code § 16.1-228 defines an "abused or neglected child" as,

inter alia,

any child:

1. Whose parents or other person
responsible for his care creates or
inflicts, threatens to create or inflict, or
allows to be created or inflicted upon such
child a physical or mental injury by other
than accidental means, or creates a
substantial risk of death, disfigurement or
impairment of bodily or mental functions;
. . . .

Code § 16.1-228. Defendant's felonious conduct with respect to

the child clearly "create[d]" or "inflict[ed], [or] threaten[ed]

to create or inflict . . . upon such child a . . . mental injury

by other than accidental means," behavior constituting abuse and

neglect contemplated by definition of Code § 16.1-228 and,

therefore, violative of Code § 18.2-371. 3

Accordingly, the record sufficiently supported convictions

for violations of both Code § 18.2-370.1 and -371, and we affirm

the trial court.

Affirmed.

3
After reciting that defendant was "tried" upon an
indictment charging that he "did unlawfully contribute to,
encourage, or cause an act, omission or condition which rendered
a minor female child in need of services, abused or neglected,"
in violation of Code § 18.2-371, the subject conviction order
"finds . . . defendant guilty" of the alleged offense, without
further particularizing the underlying conduct. (Emphasis
added.)

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Benton, J., concurring, in part and dissenting, in part.

I concur in Part I of the majority opinion and would affirm

the conviction for violating Code § 18.2-370.1. I do not join

in Part II and, for the reasons that follow, I would reverse the

conviction for violating Code § 18.2-371.

The indictment charged that "Michael Joseph DeAmicis, an

adult, did unlawfully contribute to, encourage, or cause an act,

omission, or condition which rendered a minor female child in

need of services, abused, or neglected [in violation of] . . .

Code § 18.2-371. At trial, the prosecutor argued that the

evidence proved that the teenage child was rendered in need of

services by DeAmicis' conduct.

For the reasons more fully stated in the panel's opinion,

see DeAmicis v. Commonwealth, 29 Va. App. 751, 757-58, 514

S.E.2d 788, 791-92 (1999), I would hold that the evidence failed

to prove the teenage child was rendered in need of services.

Furthermore, no evidence established that she suffered from a

mental injury or any other injury from DeAmicis' conduct. As

the majority notes, before the teenage child met DeAmicis, she

"'was having problems' with 'anxiety attacks,' school

attendance, drugs, 'sexual promiscuity,' and had attempted

suicide." She had also unsuccessfully participated in other

counseling sessions. Although DeAmicis violated Code

§ 18.2-370.1 while photographing the teenage child, no evidence

proved the child was rendered in need of services or suffered

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injuries by his conduct. Rather, the evidence proved that after

her "counseling" with DeAmicis she "returned to public school

and soon evidenced much improved academic performance,

motivation, ambition, and otherwise constructive behavior." On

this record, the evidence failed to prove the violation of Code

§ 18.2-371 alleged by the Commonwealth.

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