DONALD LEE LONGERBEAM,
The function of an appellate court when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, is sufficient to convince a reasonable person of the defendant's guilt beyond a reasonable doubt. Thus, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt.
With this standard in mind, we proceed to determine whether there was sufficient evidence introduced to convict Appellant of sexual abuse by a parent, guardian, custodian, or person in a position of trust with regard to a child under West Virginia Code § 61-8D-5(a).
a person over the age of fourteen years who has or shares actual physical possession or care and custody of a child on a full-time or temporary basis, regardless of whether such person has been granted custody of the child by any contract, agreement or legal proceeding. Custodian shall also include, but not be limited to, the spouse of a parent, guardian or custodian, or a person cohabiting with a parent, guardian or custodian in the relationship of husband and wife, where such spouse or other person shares actual physical possession or care and custody of a child with the parent, guardian or custodian.
W.Va. Code § 61-8D-1(4) (2005). Because Mrs. Longerbeam was never alleged to have
actual physical possession or care and custody of Marissa G., Appellant does not
automatically come under the definition of custodian as her spouse. Id. Given that the
second sentence of the definition is clearly inapplicable, we proceed to determine whether
Appellant qualified as a custodian by examining whether he had actual physical
possession or care and custody of Marissa G. on a full-time or temporary basis. Id.
The record of this case makes clear that Appellant did not have actual physical possession of Marissa G. on a full-time or temporary basis. Consequently, to come within the statutory definition of custodian, the State was required to prove that Appellant had care and custody of the victim on a full-time or temporary basis. W.Va. Code § 61-8D-1(4). Because the State sought only to show that the Appellant was the custodian of Marissa G. on limited occasions, we look to see whether he fulfilled the role of custodian on a part time basis.
The State argued that the Longerbeams voluntarily became the custodians of . . . Marissa and her sisters when they arrived at the house to respond to the children's request for help with the escaped hamster. Upon entry into the residence, the State posits that Appellant and his wife became responsible for the care and custody of all three girls. As evidence of this assumed duty, the State cites to the fact that the Longerbeams entered the house without knocking and then Mrs. Longerbeam acted in a custodial fashion by telling Marissa G. and Taylor G. to come downstairs. The State contends that Appellant assumed a custodial role with regard to the victim based on the fact that he was the only adult in the room with her at the time of the alleged incident.
In response to these arguments, Appellant points out that Kacy was the person charged by her mother with the responsibility of caring for her two younger sisters, Marissa G. and Taylor G., while their mother was working. The fact that Appellant and his wife came onto the premises upon the invitation of Taylor G. to help locate the hamster did not, according to Appellant, cloak them with any custody-based responsibility towards the three children inside that house. To support his contention that Kacy's status as the child's caregiver was not negated by the presence of her aunt and uncle, Appellant observes that not only did Kacy order the Longerbeams to leave the property upon learning of the alleged abuse, but, as the record indicates, they immediately complied with her request.
The State seeks to sidestep Kacy's position as the intended babysitter or custodian (See footnote 15) of her sisters by suggesting that it is possible for an individual to voluntarily become the custodian of the child even when other legal custodians are present. As support for this contention, the State relies upon our determination in State v. Collins, 221 W.Va. 229, 654 S.E.2d 115 (2007), that an adult who took a minor child four-wheeling with the permission of the child's mother was a custodian of that child for purposes of West Virginia Code § 61-8D-5(a). The State suggests that under Collins it is clear that the presence of one legal custodian does not negate another person from also being recognized as a custodian of a minor. In making this argument, the State completely overlooks several factual distinctions between Collins and this case. In Collins, the individual determined to qualify as a custodian physically removed the victim, with her mother's implicit permission, from her residence and took her to another location to commit the acts of alleged abuse. See 221 W.Va. at 234, 654 S.E.2d at 120. On those particular facts, this Court found that the perpetrator of the alleged abuse was a voluntary, temporary custodian. There is nothing even remotely analogous in this case to Collins as Appellant did not physically remove Marissa G. from her home with the permission of either her mother or her custodian at the time-her sister, Kacy.
The record disproves the State's contention that Appellant and his wife became the custodians of their three nieces upon walking into the victim's household. When asked whether she was going to her sister's house to watch the kids, Mrs. Longerbeam was firm in responding, No, just going into [sic] catch the hamster. And when she was questioned about whether she would watch the younger two nieces, Taylor G. and Marissa G., when Kacy was present, Mrs. Longerbeam stated: No, Kacy watched them. As a follow-up to this inquiry, Appellant's counsel inquired: So if Kacy was present she would be the person in charge? In response, Mrs. Longerbeam testified without hesitation [y]es.
Seeking to dispel the position of responsibility that Kacy occupied with regard to her two younger sisters, the State framed the following argument to the jury in closing:
I am going to ask you who is in charge when there is an adult and a 12-year-old in the room? The adult. Who is in charge when a 16-year-old is asleep in a bedroom, a 16-year-old who is asleep? Is it the aunt and uncle who are awake in the house? You know the answer[;] it is the adult who is there who is in charge. In fact, [Mrs.] Cindy Longerbeam testified today that she was in charge when the kids were there. Then when Mr. Wrye [Appellant's counsel] asked a few more questions, well, Marissa would ask Kacy. But ask yourselves was the 16-year- old sister in charge or was the adult aunt and adult uncle who are there in charge? I think you know the answer [is] it is clearly the adult.
While the State sought to emphasize the fact that Kacy was sleeping during the alleged
touching incident, Kacy testified that if they [Marissa G. and Taylor G.] needed something
they came to me and they knew to stay in the house and not to go anywhere and if they
needed something [to] come get me.
The fact that Appellant and his wife were older than Kacy did not vitiate her mother's charge of being the caregiver of her sisters. Similarly, the fact of Kacy being asleep did not in itself abrogate her responsibilities. While it certainly is not ideal for a caregiver to be asleep, the testimony offered by Kacy made clear that her sisters knew the rule of staying in the house and that they were to wake her if they needed something. (See footnote 16) Contrary to the picture the State sought to paint for the jury, Kacy remained in charge of her
sisters despite the presence of Appellant and his wife. This was demonstrated by the fact that upon learning what had just happened to Marissa G., Kacy immediately confronted her aunt after discovering that her uncle was no longer in the household and demanded that they both leave the premises. The fact that Mrs. Longerbeam complied with Kacy's directive further proves that Kacy was the person in charge of her two younger sisters. Not only did Kacy take control of the situation upon discovering the alleged abuse but she continued to act in a clear-thinking, adult fashion by promptly contacting the police to report the alleged sexual assault.
When the facts of this case are applied to the applicable portion of the statutory definition of custodian that requires care and custody on at least a part-time basis, we simply cannot conclude that Appellant was a custodian of Marissa G. at the time of the alleged assault in question. The record makes clear that she was not under his care and custody at the time of the incident for which Appellant was convicted. (See footnote 17) Accordingly, Appellant was not a custodian of Marissa G. within the meaning of West Virginia Code 61-8D-5(a) at the time of the alleged incident of sexual assault.
any person who is acting in the place of a parent and charged with any of a parent's rights, duties or responsibilities concerning a child or someone responsible for the general supervision of a child's welfare, or any person who by virtue of their occupation or position is charged with any duty or responsibility for the health, education, welfare, or supervision of the child.
W.Va. Code § 61-8D-1(12).
The State proposes that Appellant occupied a position of trust with regard to Marissa G. based on his familial relationship of being an uncle by marriage. Citing extrajurisdictional case law, the State argues that it is the position of 'trust, authority or supervision' which often provides a heightened opportunity for . . . sexual assault to occur. People v. Kaminski, 615 N.E.2d 808, 811 (Ill. App. 2nd Dist. 1993). Following that observation, however, the court in Kaminski proceeded to determine whether the alleged abuser held a position of supervision with regard to the victim on the night of the alleged abuse. 615 N.E.2d at 811-12. After reviewing the evidence that included the victim's parents expressly giving her permission to stay with Appellant, her brother-in-law, and his wife, following a group meeting that had taken place at the victim's parents' home, the trial court had no difficulty concluding that both defendant and Roberta [his wife] were responsible for looking after the welfare of the victim on the night in question. 615 N.E.2d at 812. These facts contrast severely to the evidence in this case. Marissa G. did not leave the premises of her own home on the day in question and she was not under the supervision, or to be statutorily-specific care, custody or control, of Appellant when she was subject to the alleged abuse.
While we do not mean to minimize the criminal significance of adults who prey upon their victims based on a familial or any other relationship that typically implies a sense of security to the child, the relationship must still play a part of the actual incident of abuse to come within the meaning of West Virginia Code § 61-8D-5(a). See Williams v. State, 895 N.E.2d 377, 382 (Ind. App. 2008) (recognizing that familial relationship is not tantamount to being in a position of trust and that previous residence of alleged abuser in victim's neighborhood is not proof of element of trust at the time of the offenses). This is clear from the statutory language that follows the delineation of the classes of individuals who are subject to the offense. Not only does the statute require proof that the alleged abuser fell within the specified class of delineated individuals, but the offense requires that the act of abuse must occur with a child under his or her care, custody or control. W.Va. Code § 61-8D-5(a).
The State argues that the evidence makes clear that Appellant occupied a position of trust in relation to Marissa G. on June 8, 2007, the date of the alleged abuse for which Appellant was convicted. Yet, the only evidence that the State relies upon as proof that Appellant occupied the temporally relevant status of a person in position of trust with regard to the victim on the date in question is prior instances of supervision of Marissa G. that took place at the residence of Appellant and his wife. (See footnote 18) While those previous instances could be relied upon to establish that there were occasions when Appellant was responsible for the general supervision of the victim's welfare, those instances do not establish that he was acting in that capacity_as a person in a position of trust_on the date in question. (See footnote 19) W.Va. Code § 61-8D-1(12). The record in this case falls woefully short of demonstrating either that the victim's mother or her sister Kacy had charged Appellant with supervisory responsibilities towards Marissa G. on the subject date or that Appellant occupied any position by which he was statutorily charged with such responsibility. See W.Va. Code § 61-8D-1(12). As we discussed at length in the custodian section of this opinion, the evidence presented at trial was that the victim's sister, Kacy, was the individual who was charged with and retained that supervisory responsibility. Accordingly, we conclude that the State did not establish that Appellant was a person in a position of trust with regard to the victim within the meaning of West Virginia Code 61-8D-5(a).
Based on the foregoing conclusion that there was insufficient evidence to convict Appellant for committing an offense under West Virginia § 61-8D-5(a) as either a custodian or a person in a person of position of trust, (See footnote 20) we find that the trial court- committed error by not granting Appellant's post-trial motion for an acquittal. (See footnote 21) Accordingly, we reverse.