The Court of Appeals of Virginia issued a single published opinion today. The subject matter of the appeal is one of increasing concern in our nation, elder abuse. Catherine Ann Tomlin v. Commonwealth of Virginia involves charges of financially exploiting an incapacitated adult and of abusing or neglecting an incapacitated adult. The appeal deals primarily with the sufficiency of the evidence to prove each of these crimes. A tertiary issue, whether the court improperly allowed hearsay evidence, is held to be harmless while “assuming without deciding” the admission of the evidence was error.
The victim was “B.T.”, the defendant’s mother. The facts are distressing even without the allegations of criminal wrongdoing. B.T. was in her 80s, while her daughter was in her 50s. They subsisted off of the former’s social security and the latter’s income from a retail job. Mother and daughter lived on subsidized housing and had almost no furnishings. B.T. was essentially housebound and relied on her daughter for her care.
Social services first interacted with the pair in early 2020, but they repeatedly refused offers of assistance. In April, 2020, B.T. fell and was injured. Her daughter made no effort to obtain medical help. Two days later, maintenance workers called 911 upon finding B.T. laying on the floor of the apartment covered in her own waste and bedbugs.
A medical exam showed that B.T. had been neglected, resulting the formation of serious subdermal bedsores and that infection of these could have been life threatening. B.T. was admitted to the hospital and discharged to hospice care and died in June 2020.
Tomlin was evicted from her apartment after her mother was removed and used her mother’s social security to pay for a hotel room. There was no evidence that B.T. consented to her daughter using the money for her own benefit.
Tomlin was charged and convicted of financially exploiting an incapacitated adult and of abusing or neglecting an incapacitated adult. The Court of Appeals focused on the requirement of Code § 18.2-178.1, the financial exploitation offense, that the victim must be incapacitated with respect to financial responsibility. In other words, lack of consent is not enough to sustain the charge of “exploitation” of the victim, the evidence must show that the victim was not capable of making responsible financial decisions. Thus, while Tomlin may have been guilty of some other larceny offense, the evidence was not sufficient to prove that the exploit her mother due to an incapacity. The conviction for financial exploitation is reversed and dismissed. With respect to the neglect and abuse charge, however, the evidence was more than sufficient to sustain that conviction.
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