Linnon v. Commonwealth

PRESENT: All the Justices

CRAIG M. LINNON
OPINION BY
v. Record No. 130179 JUSTICE WILLIAM C. MIMS
January 10, 2014
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we consider whether a teacher had a

custodial or supervisory relationship with a student within the

meaning of Code § 18.2-370.1(A). We also consider whether

arguments relating to proposed jury instructions were properly

preserved.

I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW

Craig Linnon taught a building trades class at a

vocational school. He also was assigned the responsibility of

supervising students in the cafeteria during lunch one day each

week and on the sidewalk outside his classroom before, after,

and between classes each day. His wife, Angela, was the school

nurse. She also occasionally monitored a cosmetology class

when the teacher stepped out. A.G. was a 16-year-old female

student in the cosmetology class. A.G. was not one of Craig’s

students but they saw each other every day when he monitored

the sidewalk near the bus loading zone.

In December 2009, A.G.’s cosmetology class had a party on

school grounds to celebrate the end of the semester. At the
party, Angela invited A.G. and A.G.’s female friend to the

Linnons’ home that night. The two girls accepted the

invitation and the Linnons picked them up that evening. At

their home, the Linnons supplied A.G. and her friend with

alcohol in exchange for marijuana. Craig told A.G. that Angela

had sexual fantasies about her and that he had a video of

Angela fellating one of his male students. A.G. and her friend

were disturbed by the sexual content of the conversation and

decided to leave. Craig drove them to the friend’s home.

The following night, the Linnons again invited A.G. to

their home. A.G. returned in the company of Jared Todd, her

ex-boyfriend, and Tyler Scott, Todd’s friend. Both Todd and

Scott were 18 years old. Todd was one of Craig’s students.

The Linnons and the teenagers drank alcohol; the Linnons,

Scott, and A.G. also smoked marijuana.

The group began playing a sex-themed version of Charades

in the living room. The game devolved into a sexual orgy when

Angela actually fellated Todd and Scott rather than merely

miming. During the activities that followed, Craig inserted

his penis into A.G.’s mouth. Craig also inserted his fingers

into A.G.’s vagina and anus. He also implored her to have sex

with Angela.

Sometime thereafter, Todd and Scott went to the bathroom

and decided to leave the Linnons’ home. When A.G. realized

2
Todd and Scott had left the living room, she found her clothes

and got dressed. When Todd and Scott returned from the

bathroom, they got dressed and announced that they were

leaving. The three teenagers departed as the Linnons continued

having sex on the living room floor.

Craig was subsequently indicted on three counts of taking

indecent liberties with a minor by a person in a custodial or

supervisory relationship, in violation of Code § 18.2-370.1(A).
1
He and Angela were tried jointly but were represented by

separate counsel. At trial, he moved to strike both when the

Commonwealth rested its case and at the close of the evidence,

arguing that the Commonwealth failed to prove that he had a

custodial or supervisory relationship with A.G. The circuit

court denied his motions. Angela objected to three of the

Commonwealth’s proposed jury instructions and Craig objected to

a fourth. The court also rejected two jury instructions Craig

proposed. The jury thereafter convicted Craig on all three

counts and he was sentenced to a term of eleven years’ active

incarceration.

Craig appealed to the Court of Appeals, asserting that the

circuit court erred by denying his motions to strike, by

1
Craig also was indicted on additional offenses not
relevant to this appeal. Angela was indicted on several
charges relating to this and other incidents but she is not a
party to this appeal.

3
granting the Commonwealth’s four proposed jury instructions

over defense objections, and by rejecting his proposed jury

instructions. The Court of Appeals held that the circuit court

did not err in denying Craig’s motions to strike because the

evidence showed he had a custodial or supervisory relationship

over A.G. It concluded that his argument about the

Commonwealth’s proposed jury instructions was not preserved for

the purposes of Rule 5A:18 because he failed to state any

ground for his objection to one and he did not join Angela’s

objections to the other three. Finally, it determined that the

circuit court did not abuse its discretion in refusing his

proposed jury instructions because it had already adequately

instructed the jury on one issue and the other proposed

instruction incorrectly stated the law.

We awarded Craig this appeal.

II. ANALYSIS

A. MOTIONS TO STRIKE

Craig asserts that the Court of Appeals erred by affirming

the circuit court’s rulings on his motions to strike because,

under its interpretation, mere employment as a teacher when a

minor attends school establishes the relationship necessary for

conviction under Code § 18.2-370.1(A). We disagree.

A motion to strike challenges whether
the evidence is sufficient to submit the

4
 case to the jury. What the elements of the
offense are is a question of law that we
review de novo. Whether the evidence
adduced is sufficient to prove each of
those elements is a factual finding, which
will not be set aside on appeal unless it
is plainly wrong. In reviewing that
factual finding, we consider the evidence
in the light most favorable to the
Commonwealth and give it the benefit of all
reasonable inferences fairly deducible
therefrom. After so viewing the evidence,
the question is whether any rational trier
of fact could have found the essential
elements of the crime beyond a reasonable
doubt. In sum, if there is evidence to
support the conviction, the reviewing court
is not permitted to substitute its
judgment, even if its view of the evidence
might differ from the conclusions reached
by the finder of fact at the trial.

Lawlor v. Commonwealth, 285 Va. 187, 223-24, 738 S.E.2d 847,

868, cert. denied ___ U.S. ___, 134 S. Ct. 427 (2013) (internal

citations and quotation marks omitted).

Code § 18.2-370.1(A) provides that “[a]ny 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” engages in certain proscribed acts

“shall be guilty of a Class 6 felony.” The purpose of the

statute “is to protect minors from adults who might exploit

certain types of relationships.” Sadler v. Commonwealth, 276

5
Va. 762, 765, 667 S.E.2d 783, 785 (2008). The key question in

determining whether a given relationship falls within the

statute is whether the defendant “had the responsibility for

and control of the [child’s] safety and well-being.” Krampen

v. Commonwealth, 29 Va. App. 163, 168, 510 S.E.2d 276, 278

(1999); see also Guda v. Commonwealth, 42 Va. App. 453, 459-60,

592 S.E.2d 748, 750-51 (2004) (rejecting the argument that the

child must be specifically entrusted to the defendant’s care

through explicit parental delegation of responsibility).

As a general rule, primary and secondary school

administrators and teachers meet this criterion. We have held

that school administrators have a responsibility “to supervise

and ensure that students could have an education in an

atmosphere conducive to learning, free of disruption, and

threat to person.” Burns v. Gagnon, 283 Va. 657, 671, 727

S.E.2d 634, 643 (2012) (internal quotation marks and alteration

omitted). They have “a duty to supervise and care for” all

students who are on school premises or engaged in school

activities. 2 Id. This responsibility extends to those to whom

2
The vast majority of primary and secondary school
students are minors. In Commonwealth v. Peterson, 286 Va. 349,
357, 749 S.E.2d 307, 311 (2013), we assumed without deciding
that a similar responsibility existed at post-secondary
educational institutions, where many students are adults.
Thus, the question in that case was not whether the
responsibility existed but whether the institution had a

6
administrators assign it within the scope of the assignment,

even those who are not teachers and have no students. 3 When an

administrator assigns this responsibility to a teacher in

addition to the teacher’s classroom duties, it encompasses

students not enrolled in the teacher’s classes.

The evidence established that Craig 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 regular classroom duties and encompassed students

not enrolled in his classes. He therefore had the relationship

required by the statute with respect to A.G. even though she

was not his student.

However, Code § 18.2-370.1(A) also requires that the acts

proscribed by the statute occur while the defendant “maintains”

the required relationship. The proscribed acts in this case

did not occur on school premises or during any school activity.

Accordingly, Craig’s mere status as a teacher is insufficient

specific duty to warn students about the potential for injury
arising from the criminal acts of a third party. Id.
3
For example, in Guda, the defendant was a school security
officer and assistant football coach and the victim was 15-
year-old female tenth grader. The defendant encountered the
victim in the hall during class. The victim asked the
defendant for a hall pass and he directed her to his office in
the boy’s locker room, where he assaulted her. 42 Va. App. at
455-56, 592 S.E.2d at 749.

7
to warrant conviction. Conversely, the facts that the

proscribed acts occurred at his home and were unrelated to any

school activity are insufficient by themselves to warrant

acquittal.

In Sadler, we considered the case of a softball coach

convicted of molesting a minor female on his team. Ten days

after a team fundraiser and three days before a softball

tournament, the defendant visited the victim at her home, where

he kissed her and rubbed her buttocks. He also showed her the

team’s new uniforms. 276 Va. at 764, 667 S.E.2d at 784. On

appeal, the defendant argued that he was not acting in his

capacity as a coach during the visit and that the conduct

therefore did not occur in the context of the relationship

required for conviction under Code § 18.2-370.1(A). Id. at

765, 667 S.E.2d at 784. We rejected that argument, holding

that a defendant may maintain the required relationship even

when the proscribed acts occur outside the context giving rise

to it. We concluded that “[w]hether such a relationship exists

at the time of the offending conduct is a matter of fact to be

determined on a case by case basis.” Id. at 765, 667 S.E.2d at

785.

That is the rule to be applied here. Although the acts

occurred at Craig’s home outside school hours and during the

winter recess, school was due to resume in a few weeks and he

8
and A.G. would again see each other there on a daily basis as

he performed assigned administrative duties. These facts are

materially indistinguishable from those in Sadler. There, the

proscribed acts took place at the victim’s home. The required

relationship existed several days before (during the team

fundraiser) and several days after (during the softball

tournament). While 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. See id. at 765-66, 667 S.E.2d at 785.

Moreover, A.G. testified that when she went back to school

in January, Craig lay in wait for her and pursued her as she

went to class:

He was waiting on the inside of the
building. It was very close to the bell
being rung, so it was weird; he would only
be outside. . . . I saw every other girl
walk past him and he didn’t say a word to
them, so I knew he was waiting for me to
come.
. . . .
I kept walking and I could see his
reflection in the glass door coming after
me.
. . . .
He said, “That was the best night I
ever had, and I hope you come over again.”

This testimony establishes that Craig renewed his advances at

school, where the relationship required by the statute

9
undoubtedly existed. The jury could reasonably infer from

Craig's conduct that his relationship with A.G. was the same

whether they were on or off school grounds, and whether school

was in or out of session. Moreover, he chose to initiate

predatory contact at school, where he held a position of

authority and where A.G. was a captive audience, unable to

resist or avoid contact with him. This is precisely the type

of exploitation the General Assembly enacted the statute to

deter. Sadler, 276 Va. at 765, 667 S.E.2d at 785.

Accordingly, we conclude that there was sufficient

evidence from which the jury could find that the proscribed

acts occurred while Craig “maintain[ed] a custodial or

supervisory relationship” for the purposes of Code § 18.2-

370.1(A).

B. JURY INSTRUCTIONS

1. THE COMMONWEALTH’S PROPOSED JURY INSTRUCTIONS

The Commonwealth proposed four contested jury instructions

that were given to the jury by the circuit court. The first

stated, “A custodial relationship arises when the supervising

adult exercises care and control over the child, with the care

including the responsibility for and control of the child’s

safety and well being.” The second stated, “The term ‘custody’

is not limited to legal custody. It can include those standing

in loco parentis such as teachers or babysitters who may have

10
temporary custody of children.” The third stated, “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.” The

fourth stated, the “[o]ffense of taking indecent liberties with

a minor does not require proof of a direct nexus of any type

between the custodial or supervisory relationship and the

defendant’s wrongful conduct.” In his appeal to the Court of

Appeals, Craig asserted that these proposed jury instructions

were incorrect statements of the law.

We focus initially on the first three proposed jury

instructions. The Court of Appeals ruled that only Angela

objected to them and therefore Craig failed to preserve his

argument for appeal under Rule 5A:18. Craig asserts that the

Court of Appeals erred because the circuit court understood the

joint nature of the defense, and therefore Angela’s objections

should be imputed to Craig even though he did not expressly

join them. He also argues that the purpose of the

contemporaneous objection rule is to ensure that the circuit

court has an opportunity to rule on the argument before it is

submitted to the appellate court as ground for error. He

contends Angela’s objection was sufficient to fulfill this

purpose. According to him, the question is whether the circuit

11
court had an opportunity to rule on the issue, not who raised

it. We disagree.

We review interpretations of the Rules of this Court de

novo. LaCava v. Commonwealth, 283 Va. 465, 469-71, 722 S.E.2d

838, 840 (2012). Although we have never before considered

whether an objection raised by one party may be attributed to

another party who does not expressly join it, courts that have

considered that question have answered in the negative. E.g.,

Barnes v. State, 310 S.E.2d 777, 778 (Ga. App. 1983) (“If

several parties are entitled to make an objection, and it is

made by any number less than all, it does not inure to the

advantage of the party or parties not joining in it. Thus,

where a defendant does not expressly adopt the objection of a

co-defendant, he thereby waives that objection and may not

utilize it to gain review.”); accord Daniels v. Yancey, 175

S.W.3d 889, 892 (Tex. App. 2005); Cook Assocs. v. Warnick, 664

P.2d 1161, 1165 (Utah 1983); Thomas v. Bank of Springfield, 631

S.W.2d 346, 351 (Mo. App. 1982); Roskoten v. Odom, 87 P.2d 338,

340 (Okla. 1939). We adopt the general rule articulated in

these cases and hold that one party may not rely on the

objection of another party to preserve an argument for appeal

without expressly joining in the objection.

Craig also argues that the circuit court understood that

the two defendants were presenting a joint defense. His

12
argument is contradicted by the record. Tellingly, Craig

expressly noted his separate objection to the Commonwealth’s

fourth proposed jury instruction, stating through counsel

“Judge, I’d like to note an objection to the fourth one offered

by the Commonwealth,” while remaining silent as to the

preceding three. Further, the record reflects at least six

additional occasions where one of the defendants expressly

joined in the other’s objections to preserve an argument for

appeal. We therefore reject Craig’s argument that this case

calls for an exception to the general rule we adopt today.

Accordingly, the Court of Appeals did not err in concluding

that Craig did not preserve for appeal any objection to these

three proposed instructions.

We now turn to the fourth proposed jury instruction.

Although Craig did object, the Court of Appeals again declined

to consider his argument, determining that it was not preserved

under Rule 5A:18 because he failed to state a basis for his

objection at trial. Craig asserts that the Court of Appeals

erred because this proposed jury instruction directly relates

to whether the Commonwealth was required to prove a direct

nexus between the required relationship and the proscribed

acts. He notes that he and the Commonwealth vigorously

contested that question in their arguments on his motion to

strike, which preceded the circuit court’s consideration of the

13
proposed jury instructions. He asserts the circuit court

therefore was fully apprised of the argument relevant to this

proposed jury instruction and intelligently ruled on it. We

agree.

Craig argued on his first motion to strike that the

Commonwealth was required to demonstrate a nexus between any

relationship with A.G. at school and the proscribed acts. The

Commonwealth responded that, under Sadler, no such nexus was

required. The circuit court rejected Craig’s argument and

denied the motion. Accordingly, this argument was adequately

presented to the circuit court to provide it “an opportunity to

rule intelligently on the issue[].” Scialdone v. Commonwealth,

279 Va. 422, 437, 689 S.E.2d 716, 724 (2010) (internal

quotation marks omitted).

Although Craig’s motion and argument were made before he

presented his case, he renewed them at the conclusion of all

the evidence. The circuit court again rejected the argument

and denied the motion. It then proceeded immediately to

consider jury instructions:

The motions to strike are overruled.
Your objections are noted for the record.
All prior motions are incorporated and the
rulings are the same.
We’re now ready to discuss
instructions.

14
 Both Rule 5A:18 and Rule 5:25 require an objection to be

timely and Craig’s objection was. The basis of the objection

was encompassed by his argument on the motions to strike, which

the circuit court had recently considered and rejected. We

conclude that this was sufficient to satisfy the Rules. The

Court of Appeals therefore erred in determining under Rule

5A:18 that Craig failed to state a basis for his objection to

the fourth proposed jury instruction.

Nevertheless, the error was harmless because Craig’s

argument on appeal is not the one he made to the circuit court. 4

On appeal, Craig argues that the instruction was misleading

because the word “nexus” encompasses the temporal association

suggested by the word “maintain[]” as used in Code § 18.2-

370.1(A). As noted above, the required relationship must exist

at the time of the proscribed acts. Craig argues that the

instruction that no proof of a nexus “of any type” was

necessary for conviction therefore had a tendency to mislead

the jury that the relationship and the proscribed acts need not

coincide as the statute requires.

4
“Under the doctrine of harmless error, we will affirm [a
lower] court's judgment when we can conclude that the error at
issue could not have affected the court's result.” Dorr v.
Clarke, 284 Va. 514, 526, 733 S.E.2d 235, 242 (2012) (internal
quotation marks omitted).

15
 Craig did not make this argument below. His argument on

the motion to strike was limited solely to the issue we

considered in Sadler and his attempt to distinguish that case

from this one on their facts. 5 He therefore did not preserve

this argument for appeal and we will not consider it. Rule

5:25; see also Online Res. Corp. v. Lawlor, 285 Va. 40, 57, 736

S.E.2d 886, 895 (2013); Commonwealth Transp. Comm'r v. Target

Corp., 274 Va. 341, 351-52, 650 S.E.2d 92, 97-98 (2007).

Accordingly, the Court of Appeals’ erroneous determination that

Craig failed to state any basis for his objection to the

instruction is harmless.

2. CRAIG’S PROPOSED JURY INSTRUCTIONS

Craig proposed two jury instructions. The first stated,

“One who is a guest is one who decides on her own to leave the

home, and where the host has no personal authority to direct or

punish the guest.” The second stated, “Only those persons who

maintain a custodial relationship with their victim can be

convicted of Indecent Liberties.” The circuit court refused

both and the Court of Appeals affirmed its rulings.

5
Although Craig referred to the winter break in his
argument on the motion to strike, he did not suggest that the
break terminated the custodial or supervisory relationship. To
the contrary, he argued that the fact of the break, together
with his limited contact with A.G. at school and the lack of
parental entrustment or knowledge with respect to her presence
at his house, was evidence that the relationship was not
custodial or supervisory.

16
 Craig argues that the first proposed jury instruction was

necessary “to explain the ‘hostess and guest relationship’

referenced in” another of his proposed jury instructions, which

the circuit court gave to the jury. 6 However, he did not make

this argument in support of the refused jury instruction to

circuit court. We therefore will not consider it on appeal.

Rule 5:25; see also Commonwealth Transp. Comm'r, 274 Va. at

351-52, 650 S.E.2d at 97-98. 7

Craig argues that the second proposed jury instruction was

necessary to correct other instructions proposed by the

Commonwealth and given to the jury by the circuit court.

According to those instructions, he argues, the Commonwealth

need only prove that Craig “maintained a custodial or

supervisory relationship over A.G.” (Emphasis added.) He

concludes that the use of the preterite verb form “maintained”

indicated that the required relationship need not exist at the

time of the proscribed acts. Again, he made no such argument

to the circuit court. Furthermore, he did not object to the

6
That instruction stated, “For a custodial or supervisory
relationship to exist, the custodian or supervisor must hold
some form of legal or actual authority over the child. Those
who maintain [a] hostess and guest relationship do not maintain
a custodial or supervisory relationship.”
7
Although the record reveals that Angela argued in favor
of the “hostess-and-guest relationship” instruction, neither
she nor Craig offered any argument in support of this refused
instruction he now contends was necessary to explain it.

17
proposed jury instructions containing the preterite verb form.

We therefore will not consider his argument on appeal. Rule

5:25; see also Online Resources, 285 Va. at 60-61, 736 S.E.2d

at 897; Commonwealth Transp. Comm'r, 274 Va. at 351-52, 650

S.E.2d at 97-98.

II. CONCLUSION

For the foregoing reasons, we will affirm the judgment of

the Court of Appeals.

Affirmed.

JUSTICE McCLANAHAN, concurring.

I concur in the Court's judgment, except as to the

Commonwealth's fourth jury instruction. The Court of Appeals

found that the argument with respect to that instruction was

waived under Rule 5A:18. I agree and would affirm that ruling.

JUSTICE POWELL, with whom JUSTICE LEMONS and JUSTICE MILLETTE
join, dissenting.

In this case, the majority takes the position that Craig

preserved his argument with regard to whether the

Commonwealth’s fourth proposed jury instruction was a correct

statement of the law. Having determined that he did preserve

this argument, the majority then takes the position that Craig

did not actually preserve the issue for appeal because the

18
argument he makes here is not the same as the one he made

before the trial court and, therefore, the trial court’s

decision to give an incorrect jury instruction was harmless

error. Notwithstanding the obvious internal inconsistency in

the majority opinion regarding preservation, I believe that

Craig’s argument to the trial court clearly encompassed the

argument he now makes to this Court. Accordingly, I must

respectfully dissent.

As an initial matter, I believe it is important to address

the fact that the Commonwealth’s fourth proposed instruction

is, in fact, a patently incorrect statement of the law.

We review jury instructions to see that the
law has been clearly stated and that the
instructions cover all issues which the
evidence fairly raises. . . . It is error
to give an instruction that incorrectly
states the law; whether a jury instruction
accurately states the relevant law is a
question of law that we review de novo.

Lawlor v. Commonwealth, 285 Va. 187, 228, 738 S.E.2d 847, 870

(2013) (internal quotation marks and citation omitted).

We have further recognized that “a jury verdict based on

an erroneous instruction need not be set aside if it is clear

that the jury was not misled.” Orthopedic & Sports Physical

Therapy Assocs. v. Summit Group Props., 283 Va. 777, 784, 724

S.E.2d 718, 722 (2012) (internal quotation marks omitted).

However, “it is error to give” an “instruction [that] may

19
reasonably be regarded as having a tendency to mislead the

jury.” Castle v. Lester, 272 Va. 591, 605, 636 S.E.2d 342, 349

(2006) (internal quotation marks omitted).

The plain language of Code § 18.2-370.1 indicates that the

defendant must maintain a custodial or supervisory relationship

over the child at the time of the wrongful conduct. In other

words, the existence of the relationship at the time of the

wrongful conduct must still be proven. See Sadler v.

Commonwealth, 276 Va. 762, 765, 667 S.E.2d 783, 785 (2008)

(“Whether such a relationship exists at the time of the

offending conduct is a matter of fact to be determined on a

case by case basis.”). Thus, it is the fact that the existence

of the necessary relationship coincides with the wrongful act

that is the necessary link (i.e., nexus) allowing for a

conviction under this statute. Stated another way, absent a

custodial or supervisory relationship being maintained (i.e.,

absent the nexus) at the time of the wrongful act, there can be

no conviction under Code § 18.2-370.1.

The purpose of Code § 18.2-370.1 “is to protect minors

from adults who might exploit certain types of relationships.”

Sadler, 276 Va. at 765, 667 S.E.2d at 785. We have recognized

that such exploitation is the result of the victim feeling

compelled to obey the perpetrator due to the present existence

of a custodial or supervisory relationship. Id. The

20
compulsion that facilitates the wrongful act is clearly

dependent on the underlying relationship.
1
Thus, while the wrongful conduct does not have to occur at

school or during a school-related event, see id., it still must

occur because of the underlying relationship formed at school.

There must exist a nexus between the relationship and the

wrongful conduct. Indeed, it is axiomatic that a defendant

cannot be said to have exploited a relationship if there is not

a nexus between that relationship and the wrongful conduct.

Thus, the law is clear that the Commonwealth was required

to demonstrate a nexus between any relationship with A.G. at

school and the proscribed acts. The Commonwealth’s fourth

proposed instruction, however, takes the exact opposite view,

stating that the “[o]ffense of taking indecent liberties with a

minor does not require proof of a direct nexus of any type

between the custodial or supervisory relationship and the

defendant’s wrongful conduct.” (Emphasis added.) This

instruction specifically disavows the need for the Commonwealth

to prove an element of the crime, as it strongly implies that

the offense of taking indecent liberties with a minor does not

1
To be clear, I do not take the position that the
wrongful act must occur during the activity upon which the
relationship is based; our holding in Sadler specifically
addresses this point. However, the relationship itself must
exist and be maintained at the time of the wrongful act-- this
is the nexus on which the offense hinges.

21
require proof that the custodial or supervisory relationship

was maintained at the time of the wrongful conduct.

Accordingly, I believe that the Commonwealth’s fourth proposed

instruction is a patently incorrect statement of the law.

Furthermore, I believe that not only is the Commonwealth’s

fourth proposed instruction an incorrect statement of the law,

but the language also had the potential to mislead and confuse

the jury. Indeed, a jury could interpret this instruction to

require that the Commonwealth only prove the wrongful conduct

and the existence of a custodial or supervisory relationship at

some point in time, but not necessarily at the time that the

defendant engaged in the wrongful conduct.

In stating that Craig did not preserve his argument, the

majority focuses on the fact that, at one point, Craig

attempted to distinguish the facts of the present case from

those in Sadler. In so doing the majority neglects the fact

that, in Sadler, the issue was whether the custodial

relationship existed (i.e., was maintained) outside of

activities directly related to that relationship. See 276 Va.

at 765, 667 S.E.2d at 785 (rejecting the “assertion that a

custodial or supervisory relationship is maintained for

purposes of Code § 18.2-370.1 only when the objectionable acts

are undertaken in the course of performing activities giving

22
rise to that relationship”). In other words, the issue in

Sadler was whether the necessary nexus existed at all.

Additionally, the majority neglects the entirety of

Craig’s argument. While arguing that the Commonwealth failed

to prove the existence of a custodial relationship, Craig also

argued:

I’ll argue to you that the fact that we
have a break here is significant. This
isn’t during the school year. The school
semester is over and there’s been no
evidence that she’s continuing the school
year or was at that time.

The obvious implication of Craig’s argument is that, even

if the Commonwealth proved the existence of a custodial or

supervisory relationship, the Commonwealth has failed to prove

that it was maintained at the time of the wrongful act.

Indeed, Craig further argued:

[T]he requirement of a custodial
relationship is not merely a basis for
enhancing punishment[;] rather . . . a
custodial relationship maintained with
respect to the victim is a predicate to
guilt. Clearly they [the Commonwealth]
have to prove it.

. . . .

As we know, this didn’t occur anywhere near
the school and [A.G.] readily admitted that
there was no related school activity at
all. [Craig] was not a teacher of hers at
all and had no real contact except at the
bus stop. During the school break there’s
no evidence that she was going back at that
time. Looking at that case by case factor

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 analysis, even at this level, the
Commonwealth does not satisfy [its burden].

Thus, it is clear that Craig argued that the Commonwealth

was required to prove that there was some connection (i.e., a

nexus) between the custodial or supervisory relationship and

the wrongful act.

Similarly, the record clearly demonstrates that the trial

court understood this to be the argument raised by Craig. In

overruling the motion to strike, the trial court specifically

addressed the issue of whether the relationship was maintained

at the time of the wrongful act (i.e., whether there was a

nexus between the relationship and the wrongful act). Indeed,

the trial court specifically stated:

Now, the next question is: Does that
relationship end at the sidewalk outside of
the school or does it end at the end of the
school day or as the Commonwealth argues,
does it continue?

. . . .

If I do accept for purposes of the motion
that there was a preexisting relationship
of a custodial and supervisory relationship
that when the custodian and supervisor
seeks to engage in additional relationships
or further relationships with the children
outside of the venue or the context of the
school, the other case law is clear that
the relationship doesn’t terminate at the
sidewalk, it doesn’t end when the bell
rings and that relationship continues.

If I accept the facts here as presented by
the Commonwealth, it’s clear that everyone
understood that Mr. and Mrs. Linnon were

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 still the teacher and the nurse and they
stood in that relationship.

Furthermore, although the majority quotes Craig’s second

offered jury instruction, 2 it ignores the fact that the trial

court expressly stated that it considered it to be a “competing

instruction” to the Commonwealth’s fourth proposed instruction.

This demonstrates that the trial court clearly understood that

these instructions were mutually exclusive. This Court has

specifically recognized that an “objection may also be shown

and preserved where, in a refused instruction, the objecting

party propounds the contrary theory to one set forth in a

granted instruction.” Pilot Life Ins. Co. v. Karcher, 217 Va.

497, 498, 229 S.E.2d 884, 885 (1976). Although the

instructions in this case are structured differently, the only

significant difference between the instructions was the use of

the term “maintain” in Craig’s instruction and “nexus” in the

Commonwealth’s fourth proposed jury instruction. As such, it

is clear that these were the terms that the trial court

considered to be mutually exclusive.

Thus, in my opinion, Craig placed the issue of whether the

Commonwealth must prove a nexus between the custodial

relationship and the wrongful act squarely before the trial

2
Craig’s instruction stated: “Only those persons who
maintain a custodial relationship with their victim can be
convicted of Indecent Liberties.”

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court and, indeed, the trial court ruled on the argument.

Accordingly, I believe that this issue was preserved and that

the Commonwealth’s fourth proposed jury instruction was an

incorrect statement of the law that had a tendency to mislead

the jury. In my view, the verdict must be set aside and the

case should be remanded for retrial, should the Commonwealth be

so inclined.

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