Todd Kendall Dunnings v. Commonwealth of Virginia ( 2008 )

COURT OF APPEALS OF VIRGINIA
Present: Judges McClanahan, Elder and Senior Judge Fitzpatrick
Argued by teleconference
TODD KENDALL DUNNINGS
MEMORANDUM OPINION* BY
v. Record No. 0147-07-3 JUDGE JOHANNA L. FITZPATRICK
MARCH 4, 2008
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF WAYNESBORO
Humes J. Franklin, Jr., Judge
Michael J. Hallahan, II, for appellant.
Kathleen B. Martin, Senior Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
Todd Kendall Dunnings (appellant) contends the trial court erred in convicting him of
violating Code § 18.2-370.1 because the evidence was insufficient to prove that he exercised the
requisite custodial or supervisory relationship with the two victims. We disagree and affirm
appellant’s convictions.
“On appeal, ‘we review the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth,
26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App.
438, 443, 358 S.E.2d 415, 418 (1987)).
Appellant was convicted in a bench trial of two counts of taking indecent liberties with
two high school students, B.G. and D.M., who were under the age of eighteen. At the time of the
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
offenses, B.G. and D.M. were students in Linda Batman’s mathematics class. Appellant was
Batman’s classroom aide whose job was “to assist [her] and to keep order in the class.”
The evidence established that from January 2005 until March 2005, appellant sent
sexually explicit text messages to B.G. at times when she was not at school. He asked B.G. “to
meet him places” outside of school hours. B.G. was at her home in the evening when the
above-referenced messages were sent. On February 20, 2005, B.G. was at D.M.’s house when
appellant sent text messages to both of them. While appellant sent sexually explicit messages to
D.M.’s cell phone, B.G. received a message on her cell phone from appellant asking both girls to
meet him. Appellant sent additional sexually explicit messages to B.G.’s home sometime after
February 20, but before March 1, 2005. B.G. saved some of the text messages and later gave her
cell phone to Detective Luzader who investigated the complaints.
D.M. was also in a math class in which appellant was an assistant. She received her first
text message from appellant in mid-February 2005 when B.G. was at her house. The next
evening, appellant sent another text message to D.M. and arranged to meet her at a bowling
alley. D.M. met appellant and entered his car. He drove to a dark, secluded location, parked the
car and touched D.M.’s leg, and asked D.M. to perform a sex act. D.M. moved his hand, and
appellant returned her to a location near the bowling alley.
During his investigation, Luzader spoke with appellant, who initially said that he might
have sent D.M. some “school-related messages.” When Luzader showed the text messages to
him, appellant stated that he was just resending to D.M. the text messages she sent him first.
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Custodial or Supervisory Relationship1
Appellant argues that because the proposals to the victims were sent when they were
away from school and “outside of school hours,” he did not maintain the required custodial or
supervisory relationship at the time of the communications.2
Code § 18.2-370.1(A) provides:
Any person 18 years of age or older who, except as
provided in § 18.2-370, maintains a custodial or supervisory
relationship over a child under the age of 18 and is not legally
married to such child and such child is not emancipated who, with
lascivious intent, knowingly and intentionally (i) proposes that any
such child feel or fondle the sexual or genital parts of such person
or that such person feel or handle the sexual or genital parts of the
child; or (ii) proposes to such child the performance of an act of
sexual intercourse or any act constituting an offense under
§ 18.2-361; or (iii) exposes his or her sexual or genital parts to
such child; or (iv) proposes that any such child expose his or her
sexual or genital parts to such person; or (v) proposes to the child
that the child engage in sexual intercourse, sodomy or fondling of
sexual or genital parts with another person; or (vi) sexually abuses
the child as defined in § 18.2-67.10(6), shall be guilty of a Class 6
felony.
In Sadler v. Commonwealth, 51 Va. App. 17, 654 S.E.2d 313 (2007), a factually similar
case to this, we recently addressed whether the requisite custodial or supervisory relationship
existed at the time a sexually-related act or proposal was made. The victim met Sadler when she
was in the ninth grade and he was the coach of her school’s junior varsity softball team. Id. at
20, 654 S.E.2d at 314. In 2006, the victim, then seventeen years old, was a member of a
traveling girls softball team that Sadler organized and coached. Id. In February 2006, “while
1
Appellant argued on brief that the language used in the messages did not constitute a
proposal for any of the sexually related acts proscribed by Code § 18.2-370.1. This issue was
neither specifically ruled on by the trial court nor encompassed in the question presented.
Accordingly we do not address it in this appeal. See Rule 5A:18 and Rule 5A:20(c)
2
This issue was raised and preserved at trial in the supplemental memorandum and ruled
upon by the trial court in its January 31, 2006 opinion letter.
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Sadler and the victim . . . participat[ed] in a fundraising event for the travel softball team, Sadler
kissed the victim.” Id. at 21, 654 S.E.2d at 314. Ten days later, Sadler went to the victim’s
house when no one but the victim was home. He kissed her, and “rubbed her buttocks on the
outside of her clothing, which [wa]s the basis for the indecent liberties” conviction. Id.Sadler argued “that to violate [Code § 18.2-370.1] the perpetrator must ‘maintain’ a
custodial or supervisory relationship with the victim at the very time and place the incident took
place.” Id. at 22, 654 S.E.2d at 315. He asserted “that at the time and place of his contact with
the victim . . . he had no ‘custodial or supervisory relationship’ over the victim.” Id. “The thrust
of Sadler’s primary argument [was] that in order to sustain a conviction under Code
§ 18.2-370.1, the wrongful conduct must occur during or in relation to the purpose of or
activities associated with the custodial or supervisory relationship, . . . or at a location involving
these activities.” Id. at 24-25, 654 S.E.2d at 316.
We disagreed and held that Code § 18.2-370.1 “does not require proof of a direct nexus
of any type between the custodial or supervisory relationship and the defendant’s wrongful
conduct.” Id. at 25, 654 S.E.2d at 316. In affirming Sadler’s conviction, we explained:
Code § 18.2-370.1 was designed to protect minors from sexual
exploitation by adults who hold positions of trust or authority with
regard to them. Clearly, an established and ongoing relationship
involving a minor’s trust or respect for an adult extends beyond the
specific circumstances, location, or activity in which the
relationship was created. It is the betrayal of that relationship
through sexual abuse, regardless of location or temporal
connection to supervisory or custodial relationship, that Code
§ 18.2-370.1 proscribes. To construe the statute as Sadler suggests
would exclude from punishment an adult who takes indecent
liberties with a minor over whom he has established a custodial or
supervisory capacity so long as the incident is not directly related
to activities or in the location involving the ongoing relationship.
If we were to place such a construction upon the statute, a teacher
who has a sexual relationship with a student after the school year
or away from school property, or a pastor who sexually abuses a
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young parishioner away from the church or during times unrelated
to church activities, would be beyond the reach of the statute.
Id. at 25, 654 S.E.2d at 316-17.
Applying the analysis employed in Sadler, appellant clearly maintained a supervisory or
custodial relationship over the victims at the time of the proposals. He was a teacher’s assistant
in the victims’ math class at the time he made the proposals. The fact that these proposals
occurred when the victims were not on school property does not change the outcome.
Accordingly, the judgment of the trial court is affirmed.
Affirmed.
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