Creekmore v. Commonwealth

79 Va. App. 241

895 S.E.2d 783

Anne Filosa CREEKMORE

v.COMMONWEALTH of Virginia

Record No. 1487-22-2

Court of Appeals of Virginia, Richmond.

December 19, 2023

FROM THE CIRCUIT COURT OF HENRICO COUNTY, Rondelle D, Herman, Judge

Juli M. Porto (Blankingship & Keith, P.C., on briefs), Fairfax, for appellant.

William K. Hamilton, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Present: Chief Judge Decker, Judges Athey and White

OPINION BY JUDGE KIMBERLEY SLAYTON WHITE

Anne Filosa Creekmore appeals her conviction for contributing to the delinquency of a minor (Code § 18.2-371). Following a bench trial, the court convicted Creekmore and sentenced her to 12 months in jail but suspended the entire term. The court imposed a fine of $500. On appeal, Creekmore contests that her conduct in providing counseling services to a child, including a significant delay in reporting a minor patient’s abuse, was sufficient to constitute “willfully contribut[ing] to, encourage[ing], or caus[ing] any act, omission, or condition that render[ed] a child … abused or neglected.” Code § 18.2-371. For the following reasons, we affirm the decision of the trial court.

BACKGROUND

[1, 2] On appeal, we. recite the facts “in the ‘light most favorable’ to the. Commonwealth, the prevailing party in the trial court.” Hammer v. Commonwealth, 74 Va. App. 225, 231, 867 S.E.2d 505 (2022) (quoting Commonwealth v. Cady, 300 Va. 325, 329, 863 S.E.2d 858 (2021)). Doing so requires us to “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 and all fair inferences to be drawn therefrom.” Cady, 300 Va. at 329, 863 S.E.2d 858 (quoting Commonwealth v. Perkins, 295 Va. 323, 324, 812 S.E.2d 212 (2018)).

The mother of R.P. began sexually abusing her when R.P. was in elementary school.¹ The mother would sit beside R.P. while R.P. watched television or meditated, and she would touch R.P.’s breasts and vagina, sometimes even with R.P.’s father present.

When R.P. was 15 years old, she experienced a panic attack at school. A school counselor recommended therapy and, on March 12, 2020, R.P. began seeing Anne Creekmore, a licensed psychologist, for counseling. During either her second session, on March 23, 2020, or her third session, on March 30, 2020, R.P. reported her mother’s sexual abuse to Creekmore. In response, Creekmore suggested to R.P. that she defend herself by using her own hands to block her mother and by telling her mother to stop. Creekmore also recommended a book to R.P. After the appointment, R.P. returned home where her mother again abused her when she squeezed R.P.’s breast. Following the advice of Creekmore, R.P. told her mother to stop. R.P. reported the additional abuse to Creekmore at her next session.

Creekmore then recommended that R.P.’s mother and father join R.P. in a group therapy session. R.P.’s father joined in the remaining two therapy sessions. R.P. and her father agreed that asking her mother to attend a counseling session “would have really disrupted [their] home life” and possibly made the home unsafe. R.P. also stated that she did not want to be around her mother. R.P. stopped attending counseling with Creekmore following her fifth session on April 14, 2020.

Henrico Child Protective Services’ records showed that Child Protective Services (CPS) received an anonymous referral regarding the mother’s sexual abuse of R.P. on May 14, 2020. The reporter indicated that the abuse “has been happening since [e]lementary [s]chool and [had] happened as recently as a week or two” prior to the referral. CPS investigator Rebeca Wachter responded to R.P.’s home the same day and removed R.P. from the home.

Creekmore was subpoenaed by CPS to be a witness at the protective order hearing on July 24, 2020. While at the court-house, Creekmore outlined her treatment of R.P. to CPS investigator Wachter. According to Wachter, Creekmore stated that R.P. disclosed her mother’s sexual abuse during her second session. Creekmore indicated that R.P.’s father participated in R.P.’s third and fourth sessions. In the fourth session with her father, R.P. discussed being sexually abused by her mother. Creekmore told Wachter that they then discussed that R.P. should be able to protect herself, but that R.P. could turn to her father if she needed to. But R.P.’s father said to Creekmore that he did not want to be involved. Creekmore also said that at R.P.’s fifth session, she gave R.P. the book “Courage to Heal.” Creekmore described to Wachter that R.P. was angry and crying during that session. Creekmore relayed that she was contacted by R.P.’s father after that session and that he told her that R.P. had allegedly “cried in front of [him] about how bad it was.” Creekmore stated that R.P.’s father then ended counseling services because he felt that R.P. “could fend for herself” and because her “mom was too problematic.” When Wachter asked Creekmore for her counseling notes and records, Creekmore explained that she did not really write down notes and ended up relaying information from her memory to Wachter.

When the police contacted Creekmore by phone on April 1, 2021, she shared that R.P. first mentioned her mother’s conduct, calling it sexual harassment, during the third therapy session. However, Creekmore told the detective that she did not know if she believed her. Creekmore also told the detective that after R.P.’s disclosure at the fourth session, she tried to help R.P. understand that what her mother was doing was not sexual harassment, but abuse. Creekmore further revealed in the interview that she questioned R.P.’s father about the allegations because R.P. indicated that he was present during the incidents of abuse. Creekmore confirmed to the detective that the father told her that R.P. was “not a liar.”

Also during the interview with the detective, Creekmore said she did not report the allegation that day, nor when R.P. first reported the abuse, because she “didn’t know if she believed the child.”² After the fifth session on April 14, 2020, in which R.P. had cried and the father said no more therapy was needed and ended the sessions, Creekmore said she then realized that R.P. had been telling the truth. The only record of a report made to CPS concerning the abuse of R.P. is one made a month later on May 14, 2020, by an anonymous source.³

ANALYSIS

[3–6] “When considering whether evidence is sufficient to sustain a criminal conviction, we view the evidence in the light most favorable to the prevailing party at trial and grant to it all reasonable inferences fairly deducible from that evidence.” Spell v. Commonwealth, 72 Va. App. 629, 634, 851 S.E.2d 83, (2020) (quoting White v. Commonwealth, 68 Va. App. 111, 114, 804 S.E.2d 317 (2017)). “On review of the sufficiency of the evidence, ‘the judgment of the trial court is presumed correct and will not be disturbed unless it is plainly wrong or without evidence to support it.’ ” Ingram v. Commonwealth, 74, Va. App. 59, 76, 866 S.E.2d 55 (2021) (quoting Smith v. Commonwealth, 296 Va. 450, 460, 821 S.E.2d 543 (2018)). “However, to the extent the appellant’s assignment of error requires ‘statutory interpretation, it is, a. question of law reviewed de novo on appeal.’ ” Coomer v. Commonwealth, 67 Va. App. 537, 545, 797 S.E.2d 787 (2017) (quoting Grimes v. Commonwealth, 288 Va. 314, 318, 764 S.E.2d 262 (2014)). “This same de novo standard of review applies to determining the proper definition of a particular word in a statute.” Jones v, Commonwealth, 68 Va. App. 304, 307, 808 S.E.2d 220 (2017) (quoting Miller v. Commonwealth, 64 Va. App. 527, 537, 769 S.E.2d 706 (2015)).

[7] Under Code § 18.2-371, an adult who “willfully contributes to, encourages, or causes any act, omission, or condition that renders a child delinquent, in need of services, … or abused or neglected” is guilty of a Class 1 misdemeanor. In her motions to strike in the trial court and in her briefs and argument before this Court, Creekmore asserts that she did not violate Code § 18.2-371 because she did not engage in an overt act that contributed, encouraged, or caused the child to be abused or neglected. She also argues that the word “omission” refers to an omission by a third-party and even inserts that language into her description of the statute in her opening brief—language clearly not included in the statute.⁴ In fact, she does not challenge whether her actions were willful, whether the evidence established her likely knowledge that the abuse would continue, whether the child’s parents abused R.P., nor whether she was a mandated reporter or somehow responsible for the child’s care and well-being. She simply poses one question that she believes controls the analysis: “[I]s failing to report abuse the same as ‘contribut[ing] to, encourag[ing], or caus[ing]’ the ‘act, omission, or condition’ that renders the abuse under Code § 18.2-371?” Creekmore’s attempt to simplify the issue ignores the specific facts of this case that make her unique and specific conduct fall squarely within that which is prohibited by Code §18.2-371.

[8, 9] “When the language of a statute is plain and unambiguous, we are bound by the plain meaning of that language.” Proctor v. Commonwealth, 40 Va. App. 233, 247, 578 S.E.2d 822 (2003) (quoting Shelor Motor Co. v. Miller, 261 Va. 473, 479, 544 S.E.2d 345 (2001)). And “the plain, obvious, and rational meaning of a statute is always preferred to any curious, narrow, or strained construction.” Brown v. Commonwealth, 75 Va. App. 388, 405, 877 S.E.2d 156 (2022) (quoting Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337 (1983)).

Among the conduct prohibited by Code § 18.2-371 is the causing of any omission that renders a child abused or neglected. “Omission” is defined as a “neglect of duty.” Omission, Black’s Law Dictionary (11th ed. 2019); Omission, Webster’s Third New International Dictionary, (...