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 

 

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1

 To avoid unnecessary embarrassment to the victim and her 

mother, we use pseudonyms for each. 
[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 

 

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2

 The Commonwealth addressed only this issue both before the 

original panel and en banc. 
 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.

 

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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.) 
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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