COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Bray and
Senior Judge Overton *
Argued at Norfolk, Virginia
KENNETH JAMES KRAMPEN
OPINION BY
v. Record No. 0241-98-1 CHIEF JUDGE JOHANNA L. FITZPATRICK
FEBRUARY 9, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Edward W. Hanson, Jr., Judge
J. Roger Griffin, Jr. (Chris A. Christie;
Christie & Kantor, on brief), for appellant.
Richard Barton Campbell, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Kenneth James Krampen (appellant) was convicted in a bench
trial of two counts of taking indecent liberties with a child, in
violation of Code § 18.2-370.1. He contends the evidence was
insufficient to find that he maintained the required "custodial
or supervisory relationship" over the child within the meaning of
the statute. For the following reasons, we affirm the
convictions.
I.
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
*
Judge Overton participated in the hearing and decision of
this case prior to the effective date of his retirement on
January 31, 1999 and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401, recodifying Code
§ 17-116.01:1.
granting to it all reasonable inferences fairly deducible
therefrom. See Juares v. Commonwealth, 26 Va. App. 154, 156, 493
S.E.2d 677, 678 (1997). So viewed, the evidence established that
the victim, D.V., was fifteen years old at the time of the
offenses. In early 1997, D.V. attended Foundry United Methodist
Church in Virginia Beach with appellant, his wife, and their five
children. D.V.'s mother or aunt would take her to the Krampen
residence, where she would ride to church with the Krampen
family. Appellant's wife often transported the victim to church,
and appellant drove her home. Appellant was the only adult in
the car during these trips. Appellant and his wife were the only
people who had D.V.'s mother's permission to take D.V. to and
from church.
On two separate occasions in April 1997, appellant drove
D.V. home after church. On the first occasion, appellant stopped
the car in a vacant parking lot and told the victim he had sexual
feelings for her. He kissed her, rubbed her thigh and talked
about having sex with her. Appellant told D.V. having sex with
him would be "the best sex [she] ever had." He did not touch her
breasts or vaginal area on that occasion.
Approximately one week after that incident, appellant again
drove the victim home from church. En route, appellant stopped
the car at a dead-end parking area. He placed his hand inside
D.V.'s shirt and fondled her breasts. He also placed his mouth
on them and fondled her vagina with his hand inside her pants.
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On May 5, 1997, the Department of Social Services began an
investigation of appellant, during which he confessed to the
allegations. At the interview, the investigator asked appellant
"if he understood that when he took [the victim] back and forth
to church that he assumed a custodial or guardianship role over
her." Appellant responded, "Yes."
At trial, appellant stipulated to the April 1997 incidents.
The trial court found that appellant maintained "a custodial or
supervisory relationship" over D.V. and convicted him of both
offenses.
II.
Appellant's sole contention on appeal is that the evidence
was insufficient to establish that he maintained the statutorily
required custodial or supervisory relationship over D.V. He
argues 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."
Code § 18.2-370.1 provides:
Any person eighteen years of age or older who
maintains a custodial or supervisory
relationship over a child under the age of
eighteen, including but not limited to the
parent, step-parent, grandparent,
step-grandparent, or who stands in loco
parentis with respect to such child and is
not legally married to such child, and 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
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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.
(Emphasis added).
Code § 18.2-370.1 is clear and unambiguous in requiring
proof of a "custodial" or "supervisory" relationship over the
victim. "The requirement of custodial relationship is not merely
a basis for enhancing punishment. . . . [Rather], the custodial
relationship the accused maintains with respect to the victim is
a predicate to guilt." Seibert v. Commonwealth, 22 Va. App. 40,
46, 467 S.E.2d 838, 841 (1996).
"Where a statute is unambiguous, the plain meaning is to be
accepted without resort to the rules of statutory
interpretation." Last v. Virginia State Bd. of Med., 14 Va. App.
906, 910, 421 S.E.2d 201, 205 (1992). "`Courts are not permitted
to rewrite statutes. This is a legislative function. The
manifest intention of the legislature, clearly disclosed by its
language, must be applied.'" Barr v. Town & Country Properties,
Inc., 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990) (quoting
Anderson v. Commonwealth, 182 Va. 560, 566, 29 S.E.2d 838, 841
(1944)). Accordingly, we must "'take the words as written'" in
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Code § 18.2-370.1 and give them their plain meaning. Adkins v.
Commonwealth, 27 Va. App. 166, 169, 497 S.E.2d 896, 897 (1998)
(quoting Birdsong Peanut Co. v. Cowling, 8 Va. App. 274, 277, 381
S.E.2d 24, 26 (1989)).
The word "custody" has been defined generally as "[t]he care
and control of a thing or person." Black's Law Dictionary 384
(6th ed. 1990). Additionally, the Supreme Court has rejected
limiting the definition of "custody" to legal custody. See
Lovisi v. Commonwealth, 212 Va. 848, 850, 188 S.E.2d 206, 208
(construing Code § 40.1-103, formerly Code § 40-112), cert.
denied, 407 U.S. 922 (1972).
In its language [the statute] is unambiguous,
justifying no limitation of the meaning of
"custody" to legal custody. To give it such
a restrictive definition would eliminate,
among others, teachers, athletic instructors
and baby-sitters, all of whom might have
temporary custody of children, from the
purview of the statute.
Id. (emphasis added).
Accordingly, we hold that the "custodial or supervisory
relationship" required under Code § 18.2-370.1 is not limited to
those situations where legal custody exists. The statute
specifically provides that such a relationship "include[s] but
[is] not limited to the parent, step-parent, grandparent, [or]
step-grandparent." Code § 18.2-370.1 (emphasis added). The term
also includes those individuals eighteen years or older who
have a temporary, custodial relationship with a child, such as,
"teachers, athletic instructors and baby-sitters." Lovisi, 212
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Va. at 850, 188 S.E.2d at 208. The child in each instance has
been entrusted to the care and control of the supervising adult.
The evidence established that, with the permission of the
victim's mother, appellant willingly drove the victim home from
church. As the only adult present during these trips, appellant
had the responsibility for and control of the victim's safety and
well-being while she was in his care. His 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 of time. Indeed,
in appellant's interview with investigators he acknowledged that
he "assumed a custodial or guardianship role over" the victim by
transporting her to and from church. The Commonwealth's evidence
was sufficient to prove beyond a reasonable doubt that appellant
maintained the requisite custodial or supervisory relationship
over the victim when he proposed that they have sexual relations
and when he sexually abused her. Accordingly, we affirm
appellant's convictions.
Affirmed.
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