742 S.E.2d 885
Va. Ct. App.2013Background
- Cumbo was the legal custodian of his nieces K.C. and H.C., ages 10 and 11, who lived with him.
- Cumbo befriended Z.L., a 16-year-old, online and planned to pick him up after he would sneak out.
- On August 9, 2012, Cumbo was arrested and charged with contributing to the delinquency of a minor and taking indecent liberties with a minor.
- Cumbo admitted to police and a social worker that he and Z.L. drank alcohol, engaged in oral sex, and that he took and showed nude images of Z.L.
- He was jailed without bond until release, leading DSS to obtain an emergency removal order removing K.C. and H.C. to foster care.
- Although the charges were nolle prosequied, the circuit court held that K.C. and H.C. were abused and neglected under Code § 16.1-228(4) and (5).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does 'a child' in Code § 16.1-228(4) include any child, not only a child in the custodian's care? | Cumbo argues 'a child' means the custodian's child only. | Commonwealth argues 'a child' is any child; not limited to custodian's child. | Yes; 'a child' means any child. |
| Must the sexual act be proven by conviction to violate § 16.1-228(4)? | Cumbo asserts conviction is required. | Commonwealth says conviction not required; commission suffices. | A conviction is not required; commission suffices. |
Key Cases Cited
- Lynchburg Div. of Soc. Servs. v. Cook, 276 Va. 465 (2008) (statutory interpretation de novo; plain meaning governs)
- Fitzgerald v. Commonwealth, 61 Va. App. 279 (2012) (parity of statutory interpretation; legislative intent)
- Thomas v. Commonwealth, 59 Va. App. 496 (2012) (interpretation of statutory terms in pari materia)
- Phelps v. Commonwealth, 274 Va. 139 (2008) (word meanings and statutory intent)
- Kelso v. Commonwealth, 57 Va. App. 30 (2010) (grammar rules applied to statutory definitions)
- Greenberg v. Commonwealth, 255 Va. 594 (1998) (interpretation in context of statutory scheme)
- Seabolt v. Cnty. of Albemarle, 283 Va. 717 (2012) (legislative intent and statutory construction)
- Addison v. Jurgelsky, 281 Va. 205 (2011) (careful reading of statutory text)
- In re Winship, 397 U.S. 358 (1970) (standard of proof; presumption of innocence in criminal context)
- Ferrell v. Warren Dept. of Soc. Services, 59 Va. App. 375 (2012) (abuse/neglect definitions in context of safety and risk)