Hutton v. Commonwealth

• Decision Date: 08 November 2016
• Docket Number: Record No. 0191–16–3.
• Citation: 66 Va.App. 714,791 S.E.2d 750
• Parties: Robert Allen Hutton v. Commonwealth of Virginia.
• Court: Virginia Court of Appeals

66 Va.App. 714

791 S.E.2d 750

Robert Allen Hutton

v.Commonwealth of Virginia.

Record No. 0191–16–3.

Court of Appeals of Virginia, Lexington.

Nov. 8, 2016.

Brandie I. Lester (Alan & Lester, PLLC, on briefs), for appellant.

Victoria Johnson, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: HUMPHREYS, ATLEE, JJ., and CLEMENTS, Senior Judge.

ATLEE

, Judge.

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, 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.

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 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, 99 S.Ct. 2781, 2788–89, 61 L.Ed.2d 560 (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”).

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 ...