Present: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and
Kinser, JJ., and Compton, S.J.
TOMIKA T. TAYLOR OPINION BY
SENIOR JUSTICE A. CHRISTIAN COMPTON
v. Record No. 992996 November 3, 2000
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
This criminal appeal involves accomplice liability arising
from the alleged abduction by a natural father of his
illegitimate child. The question presented is whether the Court
of Appeals of Virginia erred in affirming the trial court's
judgment that the evidence was sufficient to convict.
In 1997, defendant Tomika T. Taylor was found guilty in a
bench trial in the Circuit Court of Greensville County of
abduction in violation of Code § 18.2-47 as a principal in the
second degree, Code § 18.2-18. She was sentenced to eight
years' confinement, suspended except for time served prior to
sentencing.
On appeal, a panel of the Court of Appeals reversed
defendant's conviction, holding the evidence was insufficient to
convict. Taylor v. Commonwealth, 28 Va. App. 498, 507 S.E.2d 89
(1998). Upon a rehearing en banc, the Court of Appeals, in a 7-
2 decision, withdrew the panel opinion and affirmed the trial
court's judgment, holding the evidence was sufficient to support
the conviction on the theory of accomplice liability. Taylor v.
Commonwealth, 31 Va. App. 54, 521 S.E.2d 293 (1999). We awarded
defendant this appeal.
Employing settled principles of appellate review, we shall
recite the facts in the light most favorable to the
Commonwealth, the prevailing party in the trial court. In
December 1996, Meshia Powell, age 16, and her ten-month-old son
resided in Emporia. The child was the illegitimate son of Avery
Moore, formerly of Hampton. The father resided in Decatur,
Georgia, with defendant, his "fiance."
On the day of this offense, December 26, there had been no
custody or support proceedings involving the child in any court.
The father, who was absent at the child's birth, was paying no
child support. He had seen the child only once, when the mother
took the child to Hampton.
During the early morning hours of the day in question, the
father and the defendant were en route from Hampton to Georgia.
The couple stopped at the home of the mother's aunt in
Southampton County. The father told the aunt, that "he had come
to take the baby." He then spoke by telephone with the mother
indicating "he had gifts for the baby," and, upon defendant's
suggestion, told the mother that the child's grandmother was in
the car with the couple.
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Upon arrival at the mother's Emporia home, where she lived
with her father, the couple "pushed" their way into the house.
The child's mother refused the natural father's request to see
the child. An argument ensued and the baby fell to the floor
from the mother's arms. Defendant and the mother "started
fighting."
During the melee, the defendant "passed" the child to his
father, ran outside, "and jumped in the car." She called to the
child's father to "hurry up, hurry up." The father entered the
vehicle with the child and they left with the defendant driving.
Shortly, the defendant was found with the child and the father
in Atlanta, Georgia, where she was arrested.
At the time of this offense, and before its 1997 amendment,
Code § 18.2-47 provided:
"Any person, who, by force, intimidation or deception,
and without legal justification or excuse, seizes,
takes, transports, detains or secretes the person of
another, with the intent to deprive such other person
of his personal liberty or to withhold or conceal him
from any person, authority or institution lawfully
entitled to his charge, shall be deemed guilty of
'abduction'; but the provisions of this section shall
not apply to any law-enforcement officer in the
performance of his duty. The terms 'abduction' and
'kidnapping' shall be synonymous in this Code.
Abduction for which no punishment is otherwise
prescribed shall be punished as a Class 5 felony;
provided, however, that such offense, if committed by
the parent of the person abducted and punishable as
contempt of court in any proceeding then pending,
shall be a Class 1 misdemeanor in addition to being
punishable as contempt of court. Provided further,
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however, that such offense, if committed by the parent
of the person abducted and punishable as contempt of
court in any proceeding then pending and the person
abducted is removed from the Commonwealth by the
abducting parent, shall be a Class 6 felony in
addition to being punishable as contempt of court."
In this appeal, defendant contends that the Court of
Appeals incorrectly affirmed her conviction, arguing that the
trial court's finding of guilt was erroneous both factually and
legally. Factually, she says, relying on a version of the facts
favorable to her, there was no evidence of a designed plan to
take the child, only proof that the snatching was done on
impulse. Legally, she says, there was no accomplice liability
because the father had "legal justification," in the words of
the statute, to take the child "and thus could not be guilty
. . . of abduction of his own child." We do not agree with
defendant.
Initially, the law of accomplice liability should be
reviewed. Generally, in the case of every felony, a principal
in the second degree may be indicted, tried, convicted, and
punished in all respects as if a principal in the first degree.
Code § 18.2-18.
A person who is present at the commission of a crime,
inciting, encouraging, advising or assisting in the act done, is
deemed to be an aider and abettor, and is liable as principal.
Snyder v. Commonwealth, 202 Va. 1009, 1015, 121 S.E.2d 452, 457
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(1961). However, "before the accessory to a crime can be
convicted as such, it must be shown that the crime has been
committed by the principal." Id. at 1017, 121 S.E.2d at 458.
But it is unnecessary that the principal should be convicted of
the basic offense. Id.
The question then becomes whether the evidence establishes
that the natural father, the alleged principal in the first
degree, committed the crime of abduction of his illegitimate
son.
The substantive provisions of the abduction statute are
clear and unambiguous; they plainly permit prosecution of a
father for the abduction of his child. The statute proscribes
the conduct of "[a]ny person." The only person exempted from
that statutory term is "any law-enforcement officer in the
performance of his duty." See Diehl v. Commonwealth, 9 Va. App.
191, 194, 385 S.E.2d 228, 230 (1989).
There is no statutory exception for a parent. Indeed, the
terms of the second paragraph of the statute specifically
contemplate, in two places, the offense being "committed by the
parent of the person abducted." This is a clear indication of
legislative intent that a child's parent can be guilty of the
crime of abducting it. That has not always been the law of
Virginia. Formerly, parents were exempted from child abduction
statutes. See Code of 1877-78, § 3713; Code of 1919, § 4409.
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The next operative terms of the statute require proof that
"by force, intimidation or deception" the child was taken,
transported, detained or secreted with the intent to deprive the
child of his personal liberty or to withhold it from any person
lawfully entitled to his charge. The proof in this case clearly
meets those requirements.
All of the statutory elements were established. The
father, accompanied by defendant, forcibly entered the home
where the child resided in the mother's lawful, physical
custody. Falsely asserting that a grandmother was waiting in
their vehicle outside the home, the father, accompanied by
defendant, by intimidation and deception, snatched the child in
the midst of a melee from his mother's control, transported him
to Georgia with the obvious intent to withhold him from the
mother, who was lawfully entitled to his charge.
The final operative terms of the statute require that the
forcible seizure be "without legal justification or excuse." As
we have stated, counsel for the defendant in this appeal relies
solely on the proposition that "Avery Moore had 'lawful [sic]
justification' to take his own child and thus could not be
guilty under the circumstances of this case of abduction."
Therefore, our inquiry will be confined solely to the "legal
justification" language of the statute; defendant has not
focused here on the word "excuse." Indeed, in this appeal the
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defendant states that "the point of contention" in this case
should not be whether the conduct was "'excused' (as the
majority [of the Court of Appeals] chooses to narrowly define
that term. . . .)" After noting defendant argued "that the
father's legal justification in taking the child precludes her
conviction," 31 Va. App. at 57, 521 S.E.2d at 294, the Court of
Appeals decided the case on the "excuse" language and said that
"the defense of 'legal excuse,' is personal to Moore and
unavailable to [defendant]." 31 Va. App. at 64, 521 S.E.2d at
297.
In order to determine whether the father's conduct was with
"legal justification," the nature of his rights regarding his
illegitimate child under the circumstances of this case must be
examined. In passing, however, we observe that the father, who
did not appear as a witness at defendant's trial, never
expressly claimed during this episode that he relied on any
legal justification in taking his son from the mother.
Nevertheless, we will assume that such reliance is implicit in
his conduct.
At common law, a father and his illegitimate child shared
no legal relationship whatever, and the putative father was
under no obligation to contribute to the child's support. Brown
v. Brown, 183 Va. 353, 355, 32 S.E.2d 79, 80 (1944). In modern
times, however, the harsh common-law rules on the subject of
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parental rights and responsibilities regarding illegitimate
children have been modified by statute and case law.
Nevertheless, upon birth of an illegitimate child, the right of
the natural mother to immediate custody is superior.
Commonwealth v. Hayes, 215 Va. 49, 52, 205 S.E.2d 644, 647
(1974).
In discussing the due process rights of "an unmarried
father's inchoate relationship with a child whom he has never
supported and rarely seen in the two years since her birth," the
Supreme Court of the United States draws a "clear distinction
between a mere biological relationship and an actual
relationship of parental responsibility." Lehr v. Robertson,
463 U.S. 248, 249-50, 258-60 (1983). The Court stated that even
though each married parent has some substantive due process
right to maintain his or her parental relationship, it does not
follow that each unwed parent has any such right. The Court
said that, in most cases, parental rights require enduring
relationships and do not spring full-blown from the biological
connection between parent and child. Id. at 260. Cf. Stanley
v. Illinois, 405 U.S. 645 (1972) (Due Process Clause violated by
automatic destruction of custodial relationship without giving
father of illegitimate child any opportunity to present evidence
regarding his fitness as a parent); Va. Code Ann. § 20-124.2 (in
determining custody and the best interests of the child, there
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shall be no presumption or inference of law in favor of either
parent).
In the present case, Avery Moore had only a biological
relationship, and none other, with his child. He was absent at
the child's birth, he had not contributed to the child's
support, and he had not visited the child, seeing him only once,
when the mother brought the child to him. The child had been in
the physical custody of the mother continuously since birth.
And, there were no proceedings pending in any court regarding
the child's welfare.
Under these circumstances, the father had no sufficient
"legal justification," as contemplated by Code § 18.2-47, for
his conduct in forcibly taking the child from the mother's
custody. The word "justification" simply means "[a] lawful or
sufficient reason for one's acts or omissions;" it sometimes is
referred to as the "justification defense" or the "necessity
defense." Black's Law Dictionary 870 (7th ed. 1999).
Manifestly, the father's biological relationship did not give
him sufficient reason or furnish any necessity for his acts. He
had no actual relationship of parental responsibility.
Therefore, we hold that the evidence establishes that the
father, the principal in the first degree, committed the crime
of abduction of his illegitimate son.
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Because the principal in the first degree committed the
abduction, we hold the defendant properly was found guilty as a
principal in the second degree. She was present at the
commission of the crime, she incited, encouraged, advised, and
assisted the father in committing the crime, and she is liable
as an accomplice.
Consequently, the judgment of the Court of Appeals will be
Affirmed.
JUSTICE HASSELL, concurring.
I join the majority's opinion in its entirety. The
majority states that "upon birth of an illegitimate child, the
right of the natural mother to immediate custody is superior."
I write separately solely to emphasize that the natural mother's
superior right to "immediate custody" of her child does not
extend to any judicial proceedings that may ensue if the
unmarried father seeks custody of the child. See Code § 20-
124.2(B).
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