COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Beales and AtLee Argued at Richmond, Virginia

DANIEL SORIANO AVILA MEMORANDUM OPINION  BY v. Record No . 0514-17-2 JUDGE W ILLIAM G. PETTY FEBRUARY 27, 2018 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY Lynn S. Brice, Judge Mary P. Adams (Hairfield Morton, on brief), for appellant. Brittany A. Dunn-Piri o, Assistant Attorne y General (Mark R. Herring, Attorney General, on brief), for appellee.

Daniel Soriano Avila was convicted of indecent liberties with a child in violation of Code § 18.2-370.1, object sexual penetra tion in violation of Code § 18.2-67.2, and two counts of aggravated sexual batter y in violation of Code § 18.2-67.3. Th is appeal concerns only Avila’s conviction under Code § 18.2-370.1. 1 Code § 18.2-370.1 requires that an offender maintain a supervisory relationship with the victim at the time of the off ense. Avila argues that the trial court erred in convicting Avila of indecent liberties pursuant to Code § 18.2-370.1 because “the evidence was insufficient as a m atter of law to prove he mainta ined a custodial or supervisory relationship” over the victim. We affirm the conviction.

 Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.

1 The trial court sentenced Avila to five years in the penitenti ary for this conviction and then suspended the entire sentence. He received an active sent ence of fourteen years in the penitentiary on the c harges that are not part of this appeal.UNPUBLISHED- 2 - Because the parties are fully c onversant with the record in th is case and this memorandum opinion carries no preced ential value, we recite bel ow only those facts and incidents of the proceedings as are necessary to the parties’ u nderstanding of the disposition of this appeal. “Under well-settle d principles of appellate revie w, we consider the evidence presented at trial in the light m ost favorable to the Commonwea lth, the prevailing party in the circuit court.” Porte r v. Commonwealth, 276 Va. 203, 215-16, 6 61 S.E.2d 415, 419 (2008). Code § 18.2-370.1 requires proof of a “custodial or supervisor y relationship” as a predicate to finding guilt. S adler v. Commonwealth, 276 Va. 76 2, 765, 667 S.E.2d 783, 785 (2008). “In interpreting C ode § 18.2-370.1, the Virginia Court s have broadly construed the meaning of custody, going beyond legal custody, to include thos e with informal, temporary custody.” Guda v. Commonwealth, 42 Va. App. 453, 458, 592 S.E. 2d 748, 750 (2004). Code § 18.2-370.1 does not require the specific entr ustment of the child to the c are of the adult to create a custodial or supervisory relationship. . . . [A] custodial relationship arises wh en the supervising adult exerci ses care and control over the chil d, with the care including the “responsibility for and the contro l of the child’s safety and well-being.” Id. at 459, 592 S.E.2d at 751 (quoting K rampen v. Commonwealth, 29 Va. App. 163, 167-68, 510 S.E.2d 276, 278-79 (1999)); see also Krampen, 29 Va. App. a t 167-68, 510 S.E.2d at 278-79 (rejecting claim that evidence of “informal part-time casual re lationship” was insufficient for conviction). Furthermore, a pers on “may become ‘responsible fo r the care of a child’ by a voluntary course of conduct and with out explicit parental deleg ation of supervisory responsibility.” Guda, 42 V a. App. at 460, 592 S.E.2d at 751 ( quoting Snow v. Commonwealth, 33 Va. App. 766, 773, 537 S.E.2d 6, 10 (2000)). “Whether such a relationship e xists at the time of the offendi ng conduct is a matter of fact to be determined on a case by cas e basis.” Sadler, 276 Va. at 765, 667 S.E.2d at 785. We give a- 3 - fact finder’s resolution of conflic ting facts, as well as compe ting inferences, “the highest degree of appellate deference.” 2 Thomas v. Commonwealth, 48 Va. App. 605, 608, 633 S.E.2d 229, 231 (2006). “In so doing, we must di scard the evidence of the accused in conflict with that of the Commonwealth, and regard as t rue all the credible evidence favorable to the Commonwealth and all fair inferences that ma y be drawn therefrom.” Kelly v. Commonwealth, 41 Va. App. 250, 254, 584 S.E.2d 444, 446 (2003) ( en banc ) (quoting Watkins v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998)). “‘If there is evidence to support the conviction,’ we will not substitute our judgment for that of the trier of fact, even were our opinion to differ.” Wactor v. Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (200 2) (quoting Commonwealth v. Presley, 256 Va. 465, 466, 507 S.E.2d 72, 72 (1998)). Here, the only issue before us i s whether the trial court erre d in its findi ng of fact that Avila was sufficiently responsible for the care of E.T. that th e requirements of Code § 18.2-370.1 were met. E.T. testified that Av ila was like a member of the f amily and lived with the family for about two months. Avila shared a bedroom with E.T.’s brother. E.T.’s parents and older brother often went to work early in the morning, leaving Avila as the o nly adult in the house. E.T. testified she was left alone w ith Avila about fif ty percent of the time. The trial court additionally found credible E.T.’s testimony t hat “at times [Avila] took [E. T.] to the soccer field, drove her where her mother was and that he was the only adult in the vehi cle.” The trial court found, based

2 In this case, two interpreters translated the proceedings for the benefit of the Spanish-speaking defendant and wit nesses. It is well establish ed that we defer to the trial court’s findings of fact, but “[s]uch defere nce is even more critical w here, as here, the trial court has the ability to see and hear the witn ess testify, but the record pre serves only the interpreter’s translation of the witnesses’ answers.” Jin v. Commonwealth, 6 7 Va. App. 294, 299, 795 S.E.2d 918, 921 (2017). We note that the witnesses sometimes gave con tradictory or nonresponsive answers. The trial court, as f act finder, had the ability to s ee and hear the witnesses testify and to evaluate the weight to give each answer.- 4 - on the testimony, that E.T. “woul d ride along with the Defendan t sometimes and then sat alone with him several times.” On the date of the incident, E.T. was sick, so she stayed home from school. The trial court could infer that when E.T . came to her brother’s bedroom, she was seeking help because she did not feel well. When Avila instructed E.T. to come and lie close to him under the covers on the floor and then instructed h er to lie in her brother’s be d, E.T. complied even though she was uncomfortable. The trial c ourt specifically found in regar d to Avila’s care of E.T., “I think [E.T.] has been very clear on how often [Avila] was left in cha rge of her, how long he transported them and to where th at on this day in question and during this time period she was home sick and he was in the house when she came looking for her brother.” Based on the totality of the specific facts in this case, it was reasonable for the trial court to infer that Avila had engaged in “a voluntary cour se of conduct” over a period of time that created a supervisory relationship with E.T. “[even] w ithout explicit parental delega tion of supervisory responsibility.” See Guda, 42 Va. App. at 460, 592 S.E .2d at 751. Further, ther e was sufficient evidence to establish that Avila had the necessary “responsibility for and control of [E.T.’s] well-being,” id. at 458, 592 S.E.2d at 750, to constitute the supervisory relati onship required by Code § 18.2-370.1. Avila relies on Hutt on v. Commonwealth, 66 Va. App. 714, 791 S .E.2d 750 (2016), to suggest that there was insuffici ent evidence of a supervisory r elationship because no one entrusted the victim to the perp etrator. Hutton is readily dis tinguishable. In Hutton, the perpetrator lived in a separat e house, and the victim’s mother specifically warned the victim not to go to the perpetrator’s house a nd warned the perpetrator not to allow the victim to come to his house. Id. at 717, 791 S.E.2d at 751. Here Avila lived in the same house as E.T. and had parental permission to drive E.T . to various places and to stay alone with her about fifty percent- 5 - of the time. Moreover, Code § 18.2-370.1 “does not require the specific entrustment of the child to the care of the adult to cre ate a custodial or supervisory r elationship.” Guda, 42 Va. App. at 459, 592 S.E.2d at 751. It is sufficient that “the supervising adult exercises care and control over the child.” Id. The trial court found Avila exercised the req uisite care and control over E.T.; we will not disturb the trial cour t’s factual determination on app eal. For the reasons given above, we affirm Avila’s conviction for indecent liberties in violation of Code § 18.2-370.1. Affirmed.