                    COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Willis and Bumgardner
Argued at Salem, Virginia


JUDY ANN KISLING
                                          MEMORANDUM OPINION * BY
v.        Record No. 0169-98-3         JUDGE JERE M. H. WILLIS, JR.
                                            DECEMBER 22, 1998
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF WAYNESBORO
                   Humes J. Franklin, Jr., Judge
          William E. Bobbitt, Jr., Public Defender, for
          appellant.

          Donald E. Jeffrey, III, Assistant Attorney
          General (Mark L. Earley, Attorney General;
          Ruth A. Morken, Assistant Attorney General,
          on brief), for appellee.



     On appeal from her conviction of taking liberties with a

child, in violation of Code § 18.2-370.1, Judy Ann Kisling

contends that the evidence is insufficient to prove that she had

a custodial or supervisory relationship with the victim as

required by the statute.   We reverse the judgment of the trial

court.

                           I.   BACKGROUND

     Shannon Nicole Breeden, aged seventeen years, was evicted

from her apartment after the landlord learned that Shannon's

mother was in prison and she was living in the apartment

unsupervised.   Kisling invited Shannon to stay in her home

temporarily.    Shannon accepted this invitation and lived with
     *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
Kisling from September 1, 1997 to October 29, 1997.

     Shannon had no means of supporting herself.    Kisling

provided her food and clothing during her stay.    Although Kisling

attempted to lay down guidelines for Shannon's occupancy of the

home, she had no personal authority to direct or counsel Shannon.

Shannon came and went as she pleased.   She decided on her own to

leave the home after she and Kisling disagreed about whether

Shannon's boyfriend could visit.   Shannon was no more than a

guest in Kisling's home.
     After moving out of Kisling's home, Shannon told April Berry

and others that while she was staying at Kisling's home, Kisling

had asked her to engage in sexual activity with various men in

exchange for crack cocaine.   Shannon told a police investigator

that this had occurred at least four times.   Kisling was

convicted of taking indecent liberties with a child over whom she

maintained a custodial or supervisory relationship, in violation

of Code § 18.2-370.1.

     Code § 18.2-370.1 states, in relevant part, that
          [a]ny 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 . . . proposes to the child
          that the child engage in sexual intercourse,
          sodomy, or fondling of sexual or genital




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          parts with another person . . . shall be
          guilty of a Class 6 felony.


Code § 18.2-370.1.

     Kisling contends that the evidence failed to prove that

there existed a custodial or supervisory relationship between her

and Shannon.    We agree.

     For a custodial or supervisory relationship to exist, the

custodian or supervisor must hold some form of legal or actual

authority over the child.    Kisling maintained no such authority

over Shannon.   Although Shannon was a minor, Kisling was herself

but twenty-five years old.   The two young women were friends.

Their relationship was no more than that of hostess and guest.

Kisling had no authority to punish Shannon, no authority to

impose upon her personal rules or regulations, no authority to

control her personal behavior.    Shannon did not look to Kisling

for supervision.   Kisling's sole contribution to Shannon was the

gratuitous provision of food and shelter.   Because Kisling lacked

custody or supervision of Shannon, we reverse the judgment of the

trial court and dismiss Kisling's conviction.
     The judgment of the trial court is reversed.

                                                         Reversed.




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