THE CIRCUIT COURT OF SMYTH COUNTY Deanis L. Simmons, Judge
Brandie I. Lester (Alan & Lester, PLLC, on briefs), for
Victoria Johnson, Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
Present: Judges Humphreys, AtLee and Senior Judge Clements
Argued at Lexington, Virginia
RICHARD Y. ATLEE, JR. JUDGE
of the Circuit Court of Smyth County ("the trial
court") convicted Robert Allen Hutton of taking indecent
liberties with a child. Hutton now appeals that felony
conviction. He claims that "the evidence presented at
trial was insufficient to establish that [he] maintained the
statutorily required custodial or supervisory relationship
over [the] victim." We agree with Hutton, and reverse
reviewing a criminal conviction, we view the evidence in the
light most favorable to the Commonwealth. Commonwealth v.
Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). We
also draw all reasonable inferences from that evidence.
Id. Such mandatory deference requires us to discard
Hutton's evidence when it conflicts with that of the
Commonwealth. Wright v. Commonwealth, 196 Va. 132,
137, 82 S.E.2d 603, 606 (1954).
2014, B.H. and her family moved in across the street from
Hutton, who lived with his mother. Beginning in August of
that year, and continuing for the next four months, B.H.
Visited Hutton's home frequently. During this time, B.H.
was fifteen years old and Hutton was thirty-nine. Initially,
her visits were with Hutton's mother, but B.H. soon
became friendly with Hutton himself. While she was at
Hutton's home, B.H. would watch television, talk, and eat
food prepared by Hutton (and occasionally by his mother).
During some of these visits, Hutton's mother was at work,
and B.H. and Hutton were alone. The timing of B.H.'s
visits varied: sometimes she visited on weekends, sometimes
on weekdays after school, and twice on weekdays when she
should have been in school. Some visits occurred while
B.H.'s parents were at work, while others took place when
her parents were at home across the street. Ultimately,
between August and November of 2014, B.H. and Hutton had sex,
at Hutton's request, "about five" times.
mother, Rhonda, testified that her daughter visited
Hutton's home regularly, although Rhonda believed B.H.
was there to visit Hutton's mother. Occasionally, Rhonda
would call Hutton's home to request that her daughter
return home. In those instances, either Hutton or his mother
would answer the phone and relay the message to B.H. Rhonda
never took her daughter to Hutton's home, and never asked
Hutton to watch or babysit B.H. To the contrary, Rhonda
warned B.H. to stay away from Hutton's home, because her
daughter "did not need to be hanging out with a grown
man." Eventually, Rhonda called and spoke to Hutton,
asking why her daughter was at his home so frequently. In
response, Hutton explained that he was "just being a
mentor to her." Rhonda told Hutton that "he is an
adult, she is a child" and that B.H. should not be
November of 2014, Hutton told B.H. that he "wanted his
space." She stopped visiting. The matter might have
ended there, except that B.H. soon discovered she was
pregnant.Following the discovery of B.H.'s
pregnancy, her parents found gifts Hutton had given her,
including clothes. B.H.'s father returned these gifts to
Hutton, and the two soon began to argue in Hutton's yard.
The argument escalated into a physical fight. After the fight
was over, Hutton admitted having had sexual intercourse with
Commonwealth obtained a warrant charging Hutton with rape.
The Juvenile and Domestic Relations District Court of Smyth
County certified the charge to the grand jury, which returned
a true bill. Before trial, however, the Commonwealth amended
the indictment, without objection from Hutton, to allege
indecent liberties with a child. Specifically, the amended
indictment charged that Hutton:
On or about August 1, 2014 through December 15, 2014, in the
County of Smyth, Virginia, did unlawfully and feloniously
take indecent liberties [with] a child under the age of 18
while in a supervisory capacity over said child, the
defendant being 18 years of age or older, in violation of
Section 18.2-370.1(A), Code of Virginia of 1950, as amended.
trial, after the Commonwealth rested its case, Hutton moved
to strike the evidence, arguing that the Commonwealth had not
established the required supervisory relationship between
Hutton and B.H. The trial court denied this motion, and
Hutton and his mother then testified. Hutton denied having
sex with B.H., denied telling her father that he had done so,
denied claiming to be her "mentor, " and denied
giving her any gifts. He conceded that he had a prior
misdemeanor conviction for a crime of moral turpitude.
closing arguments, the trial court convicted Hutton and
sentenced him to five years in the penitentiary, suspending
all but the time he had served awaiting trial (two hundred
and ninety-four days). The trial court ordered Hutton to
register as a sex offender, to complete a sex ...