Krampen v. Com.

• Decision Date: 09 February 1999
• Docket Number: Record No. 0241-98-1.
• Citation: 510 S.E.2d 276,29 Va. App. 163
• Parties: Kenneth James KRAMPEN v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

510 S.E.2d 276

29 Va. App. 163

Kenneth James KRAMPEN v. COMMONWEALTH of Virginia.

Record No. 0241-98-1.

Court of Appeals of Virginia, Norfolk.

February 9, 1999.

J. Roger Griffin, Jr. (Chris A. Christie; Christie & Kantor, on brief), Virginia Beach, for appellant.

Richard Barton Campbell, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., BRAY, J., and OVERTON,¹ Senior Judge.

FITZPATRICK, Chief Judge.

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, 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.

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 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 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...