Tomlin v. Commonwealth

• Decision Date: 15 March 2022
• Docket Number: Record No. 0561-21-3
• Parties: Catherine Ann TOMLIN, a/k/a Kathy Tomlin, a/k/a Cathy Ann Tomlin, s/k/a Katherine Ann Tomlin v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

74 Va.App. 392

869 S.E.2d 898

Catherine Ann TOMLIN, a/k/a Kathy Tomlin, a/k/a Cathy Ann Tomlin, s/k/a Katherine Ann Tomlin

v.COMMONWEALTH of Virginia

Record No. 0561-21-3

Court of Appeals of Virginia.

MARCH 15, 2022

Kieran Bartley, Assistant Public Defender, for appellant.

Rosemary V. Bourne, Senior Assistant Attorney General (Mark R. Herring,¹ Attorney General, on brief), for appellee.

Present: Judges Huff, Athey and Friedman

OPINION BY JUDGE CLIFFORD L. ATHEY, JR.

Catherine Ann Tomlin ("Tomlin") was convicted in the Circuit Court of Augusta County ("trial court") of financially exploiting an incapacitated adult and of abusing or neglecting an incapacitated adult. On appeal, Tomlin makes three arguments: (1) there was insufficient evidence to prove that the victim was "mentally incapacitated" with respect to the financial exploitation conviction; (2) there was insufficient evidence to prove that the victim suffered a "serious bodily injury or disease" with respect to the abuse or neglect conviction; and (3) the trial court improperly admitted hearsay during the trial. For the following reasons, we affirm the abuse or neglect conviction and reverse the financial exploitation conviction.

I. BACKGROUND

"[T]he evidence and all reasonable inferences flowing from that evidence [are viewed] in the light most favorable to the Commonwealth." Pooler v. Commonwealth , 71 Va. App. 214, 218, 834 S.E.2d 530 (2019) (quoting Williams v. Commonwealth , 49 Va. App. 439, 442, 642 S.E.2d 295 (2007) (en banc )).

Viewed in that light, the evidence reflects that Tomlin, who was in her fifties, and her mother, B.T., who was in her eighties, utilized B.T.’s Social Security benefits and Tomlin's income from her job at Walmart to pay for partially subsidized housing and other living expenses. The furniture in their apartment consisted of a high-backed chair, a futon, and a television. Tomlin slept on the futon, and B.T. slept in the chair. Although B.T. could go to the bathroom without assistance and wore Depends, she sometimes needed Tomlin's help to change them. B.T. also relied on Tomlin for food and transportation, and the daughter gave her mother sponge baths to address issues relating to personal hygiene. They had a joint bank account, but Tomlin established a separate account in 2019 so she could receive her pay from Walmart sooner.

Michelle Shank ("Shank") from the Shenandoah Valley Department of Social Services ("Department") interacted with the Tomlins from January to April of 2020. During the first three visits in January of that year, B.T. smelled strongly of urine and was offered services, including assistance in securing a hospital bed, a Medicaid application, and in-home rehabilitative and general services. Tomlin and her mother rejected those services. Believing B.T. was mentally competent, Shank closed her investigation on January 20, 2020. Tomlin was referred to the Department again in February as a result of B.T.’s immobility and swollen legs. Shank visited with the Tomlins three or four more times in March of 2020 and secured two mattresses for them. Shank offered the same services as she had in January, but Tomlin refused all assistance, claiming that she was maintaining her mother's hygiene through sponge baths and by changing her Depends regularly.

On April 22, 2020, B.T. fell. Two days later, a pest control worker encountered Tomlin and B.T. in the apartment and called 911 to report that an elderly woman was lying on the floor, covered in bed bugs, and requiring medical attention. Firefighter Andrew Tanner ("Tanner") responded to the call in a county ambulance.

At trial, Tanner testified that he and his coworker entered the apartment to find Tomlin standing in the kitchen doorway and B.T. lying on the living room floor "on her left side[,] covered in feces and urine, [with] what looked to be bed bugs crawling on her." Tanner also noted that her clothing and Depends were "well over saturated" with urine and that feces were all over B.T., her clothes, and the floor. Tomlin admitted that B.T. had been on the floor since her fall two days before and when asked why she had not cleaned B.T. up, she replied that she "did not have time." B.T. was placed on a stretcher and taken to the hospital, complaining of hip pain.

When she arrived at the emergency room, Physician's Assistant Tyler Prewitt ("Prewitt") examined her. At trial, Prewitt was qualified as an expert in "diagnosing wounds ... [and] bed sores ... in an emergency department." He found her condition as follows: "a very uncommonly large amount of feces" and urine on her body and so many bed bugs that some fell to the floor. He testified that she was covered in "a noteworthy amount of stool and urine ... essentially from head to toe." Prewitt later clarified that B.T. had feces at least "from toe to neck."

Prewitt further testified that although B.T. had no "acute injuries," her condition included bed bug bites and bed sores (ulcers). She had "moderate" bed sores below the buttocks, one five and a half centimeters by one and a half or two centimeters and another three centimeters by one centimeter. Prewitt testified that some parts of these bed sores had passed the dermis and approached the fascia, indicating an increased risk of infection. Prewitt doubted that these sores were infected at that time but testified that additional sores on a lower part of her legs might have been. He believed the bed sores had been developing for at least one week.

Prewitt also testified that B.T.’s risk of death from infection was serious if left untreated, but he admitted the ulcers would not have killed her directly and that she was not at risk of imminent death. He also testified that the risk of infection from a bed sore was significant. In addition, the ubiquitous urine and the fecal matter covering close to fifty percent of her body had greatly increased her risk of infection during the time she lay on the floor. B.T.’s "indifference to the amount of stool and dishevelment" and her bed sores concerned Prewitt because it indicated a "level of confusion." B.T. was aware of what was happening around her, but not the day of the week or who was President. Prewitt had her admitted to the hospital for further diagnosis and treatment. After being discharged, B.T. died in hospice care in June of 2020. There was no testimony directly bearing on B.T.’s mental capacity from the time she was admitted to the hospital to the time of her death approximately two months later.

Shortly after B.T. entered the hospital, Tomlin was evicted from their apartment. She lived in a motel for eighty dollars per day and used B.T.’s Social Security money to pay for the room and other necessities. B.T. did not consent to this use of her money. While under cross-examination, Shank was asked why she did not inquire about Tomlin's use of B.T.’s money during the first days of B.T.’s hospital stay in April. Shank responded that she was focused on B.T.’s medical condition because her "prognosis was poor." Asked to clarify, Shank said the hospital told her that B.T.’s prognosis was poor. Tomlin's counsel objected to Shank's response as hearsay, but the trial court ruled that he could not object to an answer to his own question.

Tomlin moved to strike the Commonwealth's evidence on both charges, and her motion was denied. The trial court subsequently convicted Tomlin of misdemeanor financial exploitation of a mentally incapacitated adult and felony abuse or neglect of an incapacitated adult. The trial court reasoned that a person lacks the mental capacity to consent to have her "only assets" used "for somebody else's benefit when [the person does not] have the ability to recognize [she has] sores that could lead ... to [her] death." The trial court also concluded that the bed sores qualified as "serious bodily injuries" because they "could lead to death," had a significant impact on B.T.’s health, and were unlikely to be properly attended to by Tomlin had B.T. been released.

II. STANDARD OF REVIEW

"[W]e interpret the Code de novo. " Hutton v. Commonwealth , 66 Va. App. 714, 719, 791 S.E.2d 750 (2016) (citations omitted). In a sufficiency case, although we "review de novo the trial court's application of defined legal standards to the particular facts of the case," Trent v. Commonwealth , 35 Va. App. 248, 250, 544 S.E.2d 379 (2001) (citation omitted), we defer to the trial court's factual findings unless they are "plainly wrong or without evidence to support [them]," Pijor v. Commonwealth , 294 Va. 502, 512, 808 S.E.2d 408 (2017) (quoting Code § 8.01-680 ). The trier of fact is required "to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Brown v. Commonwealth , 68 Va. App. 44, 55, 802 S.E.2d 190 (2017) (quoting Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) ). There was sufficient evidence if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Dietz v. Commonwealth , 294 Va. 123, 132, 804 S.E.2d 309 (2017) (quoting Bowman v. Commonwealth , 290 Va. 492, 496-97, 777 S.E.2d 851 (2015) ). Just because another trier of fact "might have reached a different conclusion" about what the evidence showed does not mean that this "[C]ourt [can] say that the evidence does or does not establish [the defendant's] guilt beyond a reasonable doubt." Commonwealth v. Perkins , 295 Va. 323, 327, 812 S.E.2d 212 (2018) (first alteration in original) (quoting Cobb v. Commonwealth , 152 Va. 941, 953, 146 S.E. 270 (1929) ).

III. ANALYSIS

A. Financial Exploitation of a Mentally Incapacitated Adult

Tomlin argues the evidence was insufficient to convict her of financially exploiting an incapacitated person in violation of Code § 18.2-178.1. Specifically, she argues that the trial court had insufficient evidence to find beyond a reasonable doubt that B.T. suffered from "mental...