A 29-year-old man who was the only adult present in the house when he had sexual intercourse with a 13-year-old girl who was staying in the house with a friend of her mother while her mother was away, was in a custodial relationship with the girl at that time and the Court of Appeals affirms his conviction of indecent liberties in violation of Va. Code § 18.2-370.1; however, that statute does not apply to two other instances of sexual intercourse because the other adult was present in the household at the time.
Under this statute, “custody” has been broadly construed by Virginia courts to include those with informal, temporary custody. Under Code § 18.2-370.1, the custodial relationship is not limited to the specific entrustment of the child to the care of the adult, but arises also when the supervising adult exercises care and control over the child.
Here, the child’s mother left the child at defendant’s home while she was out of town. The mother’s friend, “China,” was specifically entrusted with the child’s care. She, in turn, left the child in defendant’s care while she went to work that night. Here, defendant testified that he shared in the responsibility for and control of the child’s care and custody while she was in his house, including on the night of the offense. This testimony was corroborated by China, who admitted she left the children in defendant’s custody whenever she was not in the house. Defendant was the only adult present and he was aware the child was left in his care. The trial court’s determination that defendant was acting “in the nature of a baby-sitter” when he committed the offense against the child is not plainly wrong. Contrary to defendant’s assertion, the specific charge of the child’s custody and control iiifrom her motheriii is not required. Defendant’s offense was an exploitation of the supervisory or custodial role he had assumed that night, the exact type of circumstance this statute was intended to deter.
Taylor v. Commonwealth (Huff) No. 1653-14-1, Dec. 8, 2015; Norfolk Cir.Ct. (Doyle) Steven A. Mirman for appellant; Kathleen B. Martin, Sr. AAG, for appellee. VLW 015-7-334(UP), 6 pp.