DeAmicis v. Com.

• Citation: 31 Va. App. 437,524 S.E.2d 151
• Decision Date: 01 February 2000
• Docket Number: Record No. 1240-98-1.
• Parties: Michael Joseph DeAMICIS v. COMMONWEALTH of Virginia.
• Court: Court of Appeals of Virginia

524 S.E.2d 151

31 Va. App. 437

Michael Joseph DeAMICIS v. COMMONWEALTH of Virginia.

Record No. 1240-98-1.

Court of Appeals of Virginia, Richmond.

February 1, 2000.

No brief or argument for appellant.

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

Present: FITZPATRICK, C.J., and BENTON, COLEMAN, ELDER, BRAY, ANNUNZIATA, BUMGARDNER, LEMONS and FRANK, JJ.

UPON A REHEARING EN BANC

BRAY, Judge.

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, 494 S.E.2d 859, 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.

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 "[hie wanted complete control of [E.A.].... [V.S.] was never to question [EA.] ... 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 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.

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 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...