Robert Allen Hutton v. Commonwealth of Virginia ( 2016 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, AtLee and Senior Judge Clements
PUBLISHED
UNPUBLISHE
Argued at Lexington, Virginia
ROBERT ALLEN HUTTON
OPINION BY
v. Record No. 0191-16-3 JUDGE RICHARD Y. ATLEE, JR.
NOVEMBER 8, 2016
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SMYTH COUNTY
Deanis L. Simmons, Judge
Brandie I. Lester (Alan & Lester, PLLC, on briefs), for appellant.
Victoria Johnson, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
A judge of the Circuit Court of Smyth County (“the trial court”) convicted Robert Allen
Hutton of taking indecent liberties with a child. Hutton now appeals that felony conviction. He
claims that “the evidence presented at trial was insufficient to establish that [he] maintained the
statutorily required custodial or supervisory relationship over [the] victim.” We agree with
Hutton, and reverse his conviction.
I.
In reviewing a criminal conviction, we view the evidence in the light most favorable to
the Commonwealth. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003).
We also draw all reasonable inferences from that evidence. Id. Such mandatory deference
requires us to discard Hutton’s evidence when it conflicts with that of the Commonwealth.
Wright v. Commonwealth, 196 Va. 132, 137, 82 S.E.2d 603, 606 (1954).
In 2014, B.H. and her family moved in across the street from Hutton, who lived with his
mother. Beginning in August of that year, and continuing for the next four months, B.H. visited
Hutton’s home frequently. During this time, B.H. was fifteen years old and Hutton was
thirty-nine. Initially, her visits were with Hutton’s mother, but B.H. soon became friendly with
Hutton himself. While she was at Hutton’s home, B.H. would watch television, talk, and eat
food prepared by Hutton (and occasionally by his mother). During some of these visits, Hutton’s
mother was at work, and B.H. and Hutton were alone. The timing of B.H.’s visits varied:
sometimes she visited on weekends, sometimes on weekdays after school, and twice on
weekdays when she should have been in school. Some visits occurred while B.H.’s parents were
at work, while others took place when her parents were at home across the street. Ultimately,
between August and November of 2014, B.H. and Hutton had sex, at Hutton’s request, “about
five” times.
B.H.’s mother, Rhonda, testified that her daughter visited Hutton’s home regularly,
although Rhonda believed B.H. was there to visit Hutton’s mother. Occasionally, Rhonda would
call Hutton’s home to request that her daughter return home. In those instances, either Hutton or
his mother would answer the phone and relay the message to B.H. Rhonda never took her
daughter to Hutton’s home, and never asked Hutton to watch or babysit B.H. To the contrary,
Rhonda warned B.H. to stay away from Hutton’s home, because her daughter “did not need to be
hanging out with a grown man.” Eventually, Rhonda called and spoke to Hutton, asking why her
daughter was at his home so frequently. In response, Hutton explained that he was “just being a
mentor to her.” Rhonda told Hutton that “he is an adult, she is a child” and that B.H. should not
be there.
In November of 2014, Hutton told B.H. that he “wanted his space.” She stopped visiting.
The matter might have ended there, except that B.H. soon discovered she was pregnant.1
Following the discovery of B.H.’s pregnancy, her parents found gifts Hutton had given her,
1
At the time of trial, paternity of the child had not been established.
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including clothes. B.H.’s father returned these gifts to Hutton, and the two soon began to argue
in Hutton’s yard. The argument escalated into a physical fight. After the fight was over, Hutton
admitted having had sexual intercourse with B.H.
The Commonwealth obtained a warrant charging Hutton with rape. The Juvenile and
Domestic Relations District Court of Smyth County certified the charge to the grand jury, which
returned a true bill. Before trial, however, the Commonwealth amended the indictment, without
objection from Hutton, to allege indecent liberties with a child. Specifically, the amended
indictment charged that Hutton:
On or about August 1, 2014 through December 15, 2014, in the
County of Smyth, Virginia, did unlawfully and feloniously take
indecent liberties [with] a child under the age of 18 while in a
supervisory capacity over said child, the defendant being 18 years
of age or older, in violation of Section 18.2-370.1(A), Code of
Virginia of 1950, as amended.
At trial, after the Commonwealth rested its case, Hutton moved to strike the evidence,
arguing that the Commonwealth had not established the required supervisory relationship
between Hutton and B.H. The trial court denied this motion, and Hutton and his mother then
testified. Hutton denied having sex with B.H., denied telling her father that he had done so,
denied claiming to be her “mentor,” and denied giving her any gifts. He conceded that he had a
prior misdemeanor conviction for a crime of moral turpitude.
Following closing arguments, the trial court convicted Hutton and sentenced him to five
years in the penitentiary, suspending all but the time he had served awaiting trial (two hundred
and ninety-four days). The trial court ordered Hutton to register as a sex offender, to complete a
sex offender treatment program, and to refrain from any contact with B.H. or her family.
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II.
Hutton asserts that “the evidence presented at trial was insufficient to establish that [he]
maintained the statutorily required custodial or supervisory relationship over [the] victim.”2 The
deferential interpretive lens through which we view the Commonwealth’s evidence, coupled with
Hutton’s prior conviction of a crime of moral turpitude, requires us to reject Hutton’s testimony
when it contradicts the Commonwealth’s evidence. Similarly, we assume that all of the
Commonwealth’s witnesses testified truthfully. Even viewing the evidence in this manner, we
find it insufficient as a matter of law to sustain Hutton’s conviction.
A.
When assessing evidentiary sufficiency, we defer to the trial court and reverse only for
plain error or when the trial court’s decision lacks any evidentiary support. Farhoumand v.
Commonwealth, 288 Va. 338, 351, 764 S.E.2d 95, 102 (2014). An appellate court is “not
permitted to reweigh the evidence,” Nusbaum v. Berlin, 273 Va. 385, 408, 641 S.E.2d 494, 507
(2007), or “to substitute its own judgment for that of the finder of fact, even if the appellate court
might have reached a different conclusion,” Commonwealth v. Presley, 256 Va. 465, 466, 507
S.E.2d 72, 72 (1998). As an appellate court, we do not second-guess the trier of fact by
2
Hutton also assigns error to the trial court’s denial of his motion to strike, which he
made at the conclusion of the Commonwealth’s evidence. However, as the Commonwealth
correctly observed in its brief, Hutton waived this assignment of error.
[W]hen a defendant elects to introduce evidence in his own behalf
after the denial of a motion to strike the Commonwealth’s
evidence, any further challenge to the sufficiency of the evidence
at trial or on appeal is to be determined from the entire record,
because by putting on additional evidence, the defendant waives
his ability to challenge the sufficiency of the Commonwealth’s
evidence in isolation . . . .
Murillo-Rodriguez v. Commonwealth, 279 Va. 64, 74, 688 S.E.2d 199, 204-05 (2010). For that
reason, we do not address this assignment of error.
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declaring how we would have decided the case, rather, we determine “after viewing the evidence
in the light most favorable to the prosecution, [whether] any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443
U.S. 307, 318-19 (1979). Finally, we interpret the Code de novo. Commonwealth v. Herring,
288 Va. 59, 66, 758 S.E.2d 225, 229 (2014).
B.
Virginia’s indecent liberties statute, Code § 18.2-370.1(A), states, in relevant part:
Any person 18 years of age or older who . . . maintains a custodial
or supervisory relationship over a child under the age of 18 . . .
who, with lascivious intent, knowingly and intentionally . . .
(ii) proposes to such child the performance of an act of sexual
intercourse . . . or (vi) sexually abuses the child as defined in
subdivision 6 of § 18.2-67.103 is guilty of a Class 6 felony.
When a statute uses unambiguous language, we give that language its plain meaning. Bd. of
Supervisors of James City Cty. v. Windmill Meadows, LLC, 287 Va. 170, 179-80, 752 S.E.2d
837, 842 (2014). Although Code § 18.2-370.1 is unambiguous, it does not define the word
“supervisory,” nor does a definition for the term appear elsewhere in Title 18.2. Webster’s Third
New International Dictionary (2002) defines “supervise” as “coordinate, direct, and inspect
continuously and at first hand the accomplishment of” and “oversee with the powers of direction
and decision the implementation of one’s own or another’s intentions.” Id. at 2296; see also
Supervision, Black’s Law Dictionary (10th ed. 2014) (defining it as “[t]he series of acts involved
in managing, directing, or overseeing persons or projects”).
3
Subdivision 6 of Code § 18.2-67.10 defines “sexual abuse,” and includes within the
definition “an act committed with the intent to sexually molest, arouse, or gratify any person,
where . . . [t]he accused intentionally touches the complaining witness’s intimate parts or
material directly covering such intimate parts.” Subdivision 2 of that same code section defines
“intimate parts” as “the genitalia, anus, groin, breast, or buttocks of any person.” When Hutton
proposed, and had, intercourse with B.H., his actions implicated both subsection (ii) and (vi) of
Code § 18.2-370.1(A).
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In several cases over the course of the last two decades, this Court and our Supreme
Court have addressed the parameters of the supervisory dynamic implicated by this statute. (In
each of the following cases, the deciding Court affirmed the conviction.)
In Krampen v. Commonwealth, 29 Va. App. 163, 510 S.E.2d 276 (1999), the
fifteen-year-old victim was alone with Krampen as he drove her home after church. Krampen
fondled the victim’s breasts, but argued on appeal that “his involvement with the victim
‘consisted only of assisting her in transportation from church’ and the applicable statute requires
‘more than an informal part-time casual relationship.’” Id. at 166, 510 S.E.2d at 277-78. In
disagreeing, a panel of this Court held that “the ‘custodial or supervisory relationship’ required
under Code § 18.2-370.1 is not limited to those situations where legal custody exists.” Id. at 168,
510 S.E.2d at 278. Because the victim was traveling with Krampen with her mother’s
permission, “[h]is contact with the victim was in the nature of a baby-sitter, i.e., one entrusted
with the care of the child for a limited period.” Id. at 168, 510 S.E.2d at 278-79. “As the only
adult present during these trips, [Krampen] had the responsibility for and control of the victim’s
safety and well-being while she was in his care.” Id. at 168, 510 S.E.2d at 278.4
Guda v. Commonwealth, 42 Va. App. 453, 592 S.E.2d 748 (2004), also involved a
fifteen-year-old female victim. Late for class, she requested a hall pass from Guda, a school
security officer at her high school. Once Guda was alone with the victim in his office, he
sexually abused her. In response to the victim’s fearful promise not to tell anyone what Guda
had done, he replied “I know; that’s why I did it to you.” Id. at 456, 592 S.E.2d at 749.
Testimony at trial established that as part of his job, Guda “was responsible for the safety and
security of the students.” Id. On appeal, however, he contended that the evidence of a custodial
4
An additional factor supporting the adequacy of the relationship was Krampen’s
concession to the local department of social services that, at the time he transported the victim,
“he assumed a custodial or guardianship role over her.” Id. at 166, 510 S.E.2d at 277.
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or supervisory relationship was insufficient, because such a relationship required entrustment, as
in Krampen. A panel of this Court rejected Guda’s position, finding that the required
relationship “arises when the supervising adult exercises care and control over the child, with the
care including the ‘responsibility for and the control of the [victim]’s safety and well[-]being.’”
Id. at 459, 592 S.E.2d at 751 (quoting Krampen, 29 Va. App. at 168, 510 S.E.2d at 279). Guda’s
job required him to exercise care and control over students, and he leveraged this control to
abuse the victim.
In Sadler v. Commonwealth, 276 Va. 762, 667 S.E.2d 783 (2008), the victim was a
seventeen-year-old girl and Sadler the coach of her traveling softball team. He went to her house
“knowing she was alone” and sexually abused her. Id. at 764, 667 S.E.2d at 784. While at the
victim’s house, Sadler also showed her the team’s new uniforms. On appeal, he denied that he
had a custodial or supervisory relationship over the victim, “because he was not acting as her
coach or with her for any team-related reason at the time of the offensive conduct.” Id. at 765,
667 S.E.2d at 784. The Supreme Court rejected this interpretation of the statute because it
improperly “impose[d] a limitation on the plain meaning of the words used.” Id. The Court
found Sadler’s construction of the statute “inconsistent with the purpose of the statute which is to
protect minors from adults who might exploit certain types of relationships.” Id. at 765, 667
S.E.2d at 785. Exploitation of this sort “is not limited to incidents occurring during the activity
upon which the relationship is based.” Id. Sadler used his relationship to facilitate his sexual
abuse of the victim. That relationship existed at the time of the abuse, even if, at that time,
Sadler was not engaged in an activity directly related to the relationship.
Kolesnikoff v. Commonwealth, 54 Va. App. 396, 679 S.E.2d 559 (2009), concerned a
fifteen-year-old boy sexually abused by the father of his friend. The victim and his friend were
playing video games at the friend’s house when Kolesnikoff told the boys to “go to bed.” Id. at
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400, 679 S.E.2d at 561. While his own son slept, Kolesnikoff sexually abused the victim. On
appeal, Kolesnikoff attacked the sufficiency of the evidence of a supervisory relationship. In
affirming, a panel of this Court (referring to the victim as “V.” and to Kolesnikoff as “appellant”)
found that
a longstanding relationship between appellant and V.’s family
existed. V. frequently spent the night at appellant’s house and
accompanied appellant’s family on several vacations. On the night
in question, appellant was aware of V.’s presence in the home. He
testified that he was concerned about a video game’s effect on both
boys, intervening as he saw fit. Appellant asserted authority over
V. and, likewise, his own son, telling both boys to “go to bed.”
Appellant acted “in the nature of a baby-sitter, i.e., one entrusted
with the care of the child for a limited period of time.”
Id. at 404-05, 679 S.E.2d at 563 (second quotation quoting Krampen, 29 Va. App. at 168, 510
S.E.2d at 279).
Most recently, in Linnon v. Commonwealth, 287 Va. 92, 752 S.E.2d 822 (2014), the
victim was a sixteen-year-old girl who attended the vocational school where Linnon taught.
Although Linnon was not her teacher, he saw the victim daily as he “monitored the sidewalk
near the bus loading zone.” Id. at 96, 752 S.E.2d at 824. During the school’s winter break, the
victim visited Linnon’s house, at his wife’s invitation. There, Linnon sexually abused her. He
asserted on appeal that affirming his conviction would mean that “mere employment as a teacher
when a minor attends school establishes the relationship necessary for conviction under Code
§ 18.2-370.1(A).” Id. at 97-98, 752 S.E.2d at 825. In rejecting this argument, the Supreme
Court observed that the statute exists “to protect minors from adults who might exploit certain
types of relationships.” Id. at 98, 752 S.E.2d at 826 (quoting Sadler, 276 Va. at 765, 667 S.E.2d
at 785). In Linnon’s case,
[t]he evidence established that [Linnon] was assigned
responsibility for student safety and supervision in the cafeteria
one day each week and on the sidewalk before, after, and between
classes each day. This assignment was beyond the scope of his
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regular classroom duties and encompassed students not enrolled in
his classes. He therefore had the relationship required by the
statute with respect to [the victim] even though she was not his
student.
Id. at 99, 752 S.E.2d at 826. The Court found that, although the abuse occurred outside of
school, and, indeed, while school was out of session, “school was due to resume in a few weeks
and [Linnon] and [the victim] would again see each other there on a daily basis as he performed
assigned administrative duties.” Id. at 100, 752 S.E.2d at 827. As in Sadler, “[w]hile the
required relationship may have been abeyant in the interstice, it did not cease to exist. Rather, it
continued, with a known past and an expected, imminent future.” Id.
The closest our cases have come to bringing Hutton’s relationship with B.H. within the
purview of the indecent liberties statute is found in Snow v. Commonwealth, 33 Va. App. 766,
537 S.E.2d 6 (2000). In that case, Snow drove away from a traffic stop, ultimately reaching
speeds of 112 miles per hour in his attempt to elude the police officers chasing him. Among
Snow’s passengers were children aged seventeen, ten, and eight. He was neither the father nor
the guardian of these children. Snow was charged with child abuse for endangering the children
in the car. The child abuse statute, Code § 18.2-371.1, requires only that the Commonwealth
prove a defendant was “responsible for the care of a child,” in contrast to the “custodial or
supervisory relationship” that Code § 18.2-370.1(A) requires. Applying Krampen’s logic to the
“less stringent wording of Code § 18.2-371.1,” Snow observed that “as a logical extension of our
holding in Krampen, we find that one may become a person ‘responsible for the care of a child’
by a voluntary course of conduct and without explicit parental delegation of supervisory
responsibility or court order.” Snow, 33 Va. App. at 773, 537 S.E.2d at 10; see also Carrington
v. Commonwealth, 59 Va. App. 614, 621, 721 S.E.2d 815, 818 (2012) (quoting Snow’s
“voluntary course of conduct” formulation in affirming a child abuse conviction). Other panels
of this Court have since cited Snow with approval when interpreting the more stringent indecent
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liberties statute. See Sadler v. Commonwealth, 51 Va. App. 17, 23-24, 654 S.E.2d 313, 316
(2007), aff’d, 276 Va. 762, 667 S.E.2d 783 (2008); Guda v. Commonwealth, 42 Va. App. 453,
460, 592 S.E.2d 748, 751 (2004).5
C.
Hutton’s relationship with B.H. was inappropriate, and we do not question the
Commonwealth’s motivation in seeking a criminal sanction for Hutton’s conduct. But this Court
does not review whether an appellant committed some crime; rather, we review whether an
appellant committed that crime of which he stands convicted. Although it is not the aim of this
Court “to discover loopholes in order that the guilty may escape their just deserts,” Gilland v.
Commonwealth, 184 Va. 223, 235, 35 S.E.2d 130, 134 (1945), we are not free to affirm a
conviction, even one obtained for behavior that we find reprehensible, unless the statute under
which the conviction was obtained clearly prohibits an appellant’s conduct.
The Commonwealth asks us to label Hutton’s relationship with B.H. “supervisory.”
However, interpreting Code § 18.2-370.1 as broadly as the Commonwealth urges would all but
airbrush the word “supervisory” from the statute. It is a “settled principle of statutory
construction that every part of a statute is presumed to have some effect and no part will be
considered meaningless unless absolutely necessary.” Hubbard v. Henrico Ltd. P’shp, 255 Va.
335, 340, 497 S.E.2d 335, 338 (1998). Finding Hutton’s relationship over B.H. to be supervisory
would vastly expand the reach of Code § 18.2-370.1. The purpose of the statute is “to protect
minors from adults who might exploit certain types of relationships.” Sadler, 276 Va. at 765,
5
Under the doctrine of interpanel accord, “a decision of a panel of the Court of Appeals
becomes a predicate for application of the doctrine of stare decisis until overruled by a decision
of the Court of Appeals sitting en banc or by a decision of [the Supreme] Court.” Johnson v.
Commonwealth, 252 Va. 425, 430, 478 S.E.2d 539, 541 (1996). “This principle applies not
merely to the literal holding of the case, but also to its ratio decidendi—the essential rationale in
the case that determines the judgment.” Clinchfield Coal Co. v. Reed, 40 Va. App. 69, 73-74,
577 S.E.2d 538, 540 (2003).
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667 S.E.2d at 785. The broad definition of supervision urged upon us by the Commonwealth
would transform the statute into one whose purpose is simply to protect minors from adults.
While such a goal may be laudable, “[i]t is our duty to interpret the statute as written and when
this is done our responsibility ceases.” City of Lynchburg v. Suttenfield, 177 Va. 212, 221, 13
S.E.2d 323, 326 (1941). The Commonwealth’s interpretation of Code § 18.2-370.1 would
require us to depart from the meaning of the words of that statute. “To depart from the meaning
expressed by the words in the statute is to alter it, resulting in legislation rather than
interpretation.” Floyd v. Fischer, 199 Va. 363, 366, 99 S.E.2d 612, 615 (1957). We may only
interpret a statute as it is written, not as it might be written.
No matter how deferentially we view the facts here, they do not jibe with the precedent
discussed above. Unlike in Krampen, no one entrusted B.H. to Hutton. Unlike in Guda,
Hutton’s job did not require that he protect and supervise B.H. Nor was Hutton fulfilling a
traditional role of trust, such as the coach in Sadler. Hutton was not, in even the broadest sense
of the word, a “babysitter,” as was the case in Kolesnikoff. Even employing the looser
“voluntary course of conduct” test from Snow, we cannot find that Hutton’s actions
demonstrated the necessary supervisory relationship with B.H. His course of conduct still
involved no supervisory or caretaking behavior. He did not take responsibility for the safety or
well-being of B.H. All of the cases cited above require some affirmative action establishing a
supervisory relationship between an adult and a child. In some instances, an adult is explicitly
entrusted with the safekeeping of a child, as in Krampen, while in other instances, an adult
engages in a course of conduct consistent with supervision, as in Guda, Sadler, Kolesnikoff, and
Snow. In none of the cases, however, does simply being in the presence of a child trigger a
supervisory obligation.
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Hutton did not exercise control over B.H. in any way uniquely related to her status as a
minor. The aspect of Hutton’s relationship with B.H. that most strongly shows control was the
sexual activity into which Hutton pressured B.H.6 However, we are aware of no precedent that
would permit the Commonwealth to use the sexual proposals to prove a supervisory relationship.
Furthermore, this sort of control was not deployed in furtherance of “the victim’s safety and
well-being.” Krampen, 29 Va. App. at 168, 510 S.E.2d at 278. Hutton’s instructions to B.H. to
leave his home were no different from a request that any property owner or occupant is free to
make of a guest. Passing telephone messages to B.H., similarly, does not transform Hutton’s
relationship with B.H. into a “supervisory” or caretaking one. It was an ordinary courtesy that
any homeowner would perform for a guest, adult or child. The Commonwealth points to the fact
that Hutton and his mother served B.H. food. An act of hospitality does not become an act of
supervision merely because the recipient of the food is a minor. Here, B.H.’s age is relevant.
The same acts that, if taken on behalf of a young child, might indicate a supervisory relationship
mean something different when taken on behalf of an older child. Feeding a five year old and
passing that child a phone message might show supervision, while sharing a meal with a teenager
and passing her a message do not. We accept as true Rhonda’s testimony that Hutton told her
that he was a “mentor” to B.H. No testimony of B.H. or any other witness shows that he actually
filled this role, however. While we accept as a fact that Hutton called himself a “mentor,” no
evidence shows that he acted in accordance with this statement.
In prior cases, the argument that an adult was in a supervisory relationship with a child
was strengthened when that adult was the only adult present with the child. See, e.g., Snow, 33
Va. App. at 773, 537 S.E.2d at 10 (observing that, “[a]s the only adult present during these trips,
6
B.H. testified about the circumstances surrounding Hutton’s requests for sex: “After he
kept on asking me, I would keep on saying no, and then he would keep on asking me and I finally
just gave in.”
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[Krampen] had the responsibility for and control of the victim’s safety and well-being.” (quoting
Krampen, 29 Va. App. at 168, 510 S.E.2d at 278)). The Attorney General suggests that we can
infer that Hutton was the only adult present and was thus responsible for the care of the child.
The evidence presented at trial does not support this inference. Often, Hutton’s mother was
present in the home as well. To the extent the Attorney General was trying to make the more
limited point that Hutton was the only adult in the home during the five instances when Hutton
and B.H. had sex, this argument lacks support as well. The record is silent as to the presence or
absence of any other adults in the home on any of those five occasions. Although “[i]t is our
duty 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,” Wright v. Commonwealth, 196 Va. 132, 137, 82 S.E.2d 603, 606 (1954),
there was no evidence one way or another about precisely who was at home when Hutton and
B.H. had sex. (Nor does the fact that they had sex give rise to an inference that the house was
otherwise empty.) The most we can reasonably infer is that, at the time Hutton had sex with
B.H., the two of them were alone in the room in which they had sex.
III.
Based upon our review of both the statute and precedent from this Court and the Supreme
Court, we hold that the trial court erred when it found that Hutton maintained the “supervisory
relationship” with B.H. required for a violation of Code § 18.2-370.1(A). As such, we reverse
Hutton’s conviction and remand for further proceedings consistent with this opinion if the
Commonwealth be so inclined.
Reversed and remanded.
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