COMMONWEALTH OF VA
FEBRUARY 9, 1999
KENNETH JAMES KRAMPEN
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF
THE CITY OF VIRGINIA BEACH
Hanson, Jr., Judge
Chief Judge Fitzpatrick, Judge Bray and Senior Judge Overton
CHIEF JUDGE JOHANNA L. FITZPATRICK
Griffin, Jr. (Chris A. Christie; Christie & Kantor, on
brief), for appellant.
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
Sect. 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
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.
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
Code Sect. 18.2-370.1
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 Sect. 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
Sect. 18.2-67.10(6), shall be guilty of a Class 6
Code Sect. 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 Sect. 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)).
"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
Sect. 40.1-103, formerly Code Sect. 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.
Accordingly, we hold that
the "custodial or supervisory relationship" required
under Code Sect. 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 Sect. 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
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.
 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
Sect. 17.1-401, recodifying Code Sect. 17-116.01:1.