                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Humphreys, Petty and Chafin
UNPUBLISHED


              Argued at Lexington, Virginia


              LORRIE ARRINGTON PADGETT
                                                                              MEMORANDUM OPINION* BY
              v.     Record No. 1372-13-3                                      JUDGE TERESA M. CHAFIN
                                                                                    MAY 27, 2014
              COMMONWEALTH OF VIRGINIA


                                  FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
                                                John T. Cook, Judge

                               Joseph A. Sanzone (Sanzone & Baker, L.L.P., on brief), for
                               appellant.

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


                     In a bench trial, Lorrie Arrington Padgett (“Padgett”) was convicted of indecent liberties

              with a child by a person in a custodial or supervisory relationship in violation of Code

              § 18.2-370.1. On appeal, Padgett maintains the trial court erred in holding that she was acting in

              a custodial or supervisory relationship when she engaged in sexual intercourse with the minor.

              For the reasons that follow, we affirm the decision of the trial court.

                                                         BACKGROUND

                     “On appeal, ‘we review the evidence in the light most favorable to the Commonwealth,

              granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth,

              26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App.

              438, 443, 358 S.E.2d 415, 418 (1987)). So viewed, the evidence showed that Padgett met the



                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
victim in this case, N.A., when he dated Padgett’s daughter. After N.A. and Padgett’s daughter

ended their relationship, Padgett remained in contact with N.A. During January through March

2012, Padgett and N.A., who was seventeen years old at the time, “hung out” together, went to

the mall, and shared meals. Although N.A. called Padgett by her first name, he also called her

“mom” on occasion.

       During the time period at issue, Padgett occasionally drove N.A. to school, church, and

other activities and events without his parents. N.A. testified he asked his mother for permission

to go places with Padgett. N.A.’s mother testified that she would allow Padgett to take N.A. to

activities and events, and she would discuss with Padgett when N.A. was to be home and often

asked “what [N.A. and Padgett] were doing.” On one such occasion, N.A. asked his mother if

Padgett could drive him to church. N.A. testified that his mother “said it was okay.” N.A. stated

he and Padgett had developed a plan in which N.A. would ask his mother if Padgett could drive

him to church. As part of the plan, when Padgett picked up N.A., they went to a fish hatchery

where they engaged in sexual intercourse. Afterwards, they drove to church. After church,

Padgett returned N.A. to his home.

       N.A.’s mother later found “pages upon pages” of Facebook messages between her son

and Padgett that led her to confront Padgett and call the police. Padgett and N.A.’s mother had a

text message conversation that culminated in Padgett admitting to having had sex with N.A.

Additionally, Padgett “acknowledged her mistake” with N.A. to the investigating officer.

                                            ANALYSIS

                       Code § 18.2-370.1(A) provides that “[a]ny person 18 years
               of age or older who, except as provided in § 18.2-370, maintains a
               custodial or supervisory relationship over a child under the age of
               18 and is not legally married to such child and such child is not
               emancipated who, with lascivious intent, knowingly and
               intentionally” engages in certain proscribed acts “shall be guilty of



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               a Class 6 felony.” The purpose of the statute “is to protect minors
               from adults who might exploit certain types of relationships.”
               Sadler v. Commonwealth, 276 Va. 762, 765, 667 S.E.2d 783, 785
               (2008). The key question in determining whether a given
               relationship falls within the statute is whether the defendant “had
               the responsibility for and control of the [child’s] safety and
               well-being.” Krampen v. Commonwealth, 29 Va. App. 163, 168,
               510 S.E.2d 276, 278 (1999); see also Guda v. Commonwealth, 42
               Va. App. 453, 459-60, 592 S.E.2d 748, 750-51 (2004) (rejecting
               the argument that the child must be specifically entrusted to the
               defendant’s care through explicit parental delegation of
               responsibility).

Linnon v. Commonwealth, 287 Va. 92, 98, 752 S.E.2d 822, 826 (2014). “Whether such a

relationship exists at the time of the offending conduct is a matter of fact to be determined on a

case by case basis.” Sadler, 276 Va. at 765, 667 S.E.2d at 785.

       “The word ‘custody’ has been defined generally as ‘the care and control of a thing or

person.’” Krampen, 29 Va. App. at 167, 510 S.E.2d at 278 (quoting Black’s Law Dictionary 384

(6th ed. 1990)). In applying Code § 18.2-370.1, we “have broadly construed the meaning of

custody, going beyond legal custody, to include those with informal, temporary custody.” Guda,

42 Va. App. at 458, 592 S.E.2d at 750. A “custodial or supervisory relationship” includes adults

who “have a temporary, custodial relationship with a child, such as, ‘teachers, athletic instructors

and baby-sitters.’” Krampen, 29 Va. App. at 168, 510 S.E.2d at 278 (quoting Lovisi v.

Commonwealth, 212 Va. 848, 850, 188 S.E.2d 206, 208 (1972)). We have emphasized that

“‘Code § 18.2-370.1 does not require the specific entrustment of the child’” but instead requires

only a showing that the defendant exercised “‘care and control over the child, with the care

including the “responsibility for and the control of the child’s safety and well-being.”’”

Kolesnikoff v. Commonwealth, 54 Va. App. 396, 404, 679 S.E.2d 559, 563 (2009) (quoting

Guda, 42 Va. App. at 459, 592 S.E.2d at 751; Krampen, 29 Va. App. at 168, 510 S.E.2d at 279).




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       Here, a rational fact finder could conclude beyond a reasonable doubt that Padgett

committed the offense while in a supervisory or custodial relationship over N.A. Padgett, with

the permission of N.A.’s mother, was ostensibly driving N.A. to church when she drove to

another location where they had sexual intercourse. From this evidence, the trial court found the

victim was “turned over to [appellant’s] custody.” We note that in Krampen, this Court found

the defendant maintained the requisite custodial or supervisory relationship over the victim under

similar circumstances to this case. In Krampen,

               [t]he evidence established that, with the permission of the victim’s
               mother, [Krampen] willingly drove the victim home from church.
               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. 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.

Krampen, 29 Va. App. at 168, 510 S.E.2d at 278-79. Likewise, we conclude that Padgett’s

contact with N.A. was in the nature of a baby-sitter, as she was entrusted with N.A.’s safety and

well-being by N.A.’s mother.

                                            CONCLUSION

       The Commonwealth’s evidence was sufficient to prove beyond a reasonable doubt that

Padgett maintained the requisite custodial or supervisory relationship over N.A. when the two

engaged in sexual relations. Accordingly, we affirm Padgett’s conviction.

                                                                                         Affirmed.




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