Wednesday 6th
January, 1999.
Tomika T. Taylor, Sometimes Known as
Tamika T. Taylor, Appellant,
against Record No. 2322-97-2
Circuit Court No. 97-6564
Commonwealth of Virginia, Appellee.
Upon a Petition for Rehearing En Banc
Before the Full Court
On December 8, 1998 came the appellee, by counsel, and filed
a petition praying that the Court set aside the judgment rendered
herein on November 24, 1998, and grant a rehearing en banc thereof.
On consideration whereof, the petition for rehearing en banc
is granted, the mandate entered herein on November 24, 1998 is stayed
pending the decision of the Court en banc, and the appeal is
reinstated on the docket of this Court.
The parties shall file briefs in compliance with Rule 5A:35.
It is further ordered that the appellee shall file with the clerk of
this Court ten additional copies of the appendix previously filed in
this case.
A Copy,
Teste:
Cynthia L. McCoy, Clerk
By:
Deputy Clerk
COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Bray
Argued at Richmond, Virginia
TOMIKA T. TAYLOR, SOMETIMES KNOWN AS
TAMIKA T. TAYLOR
OPINION BY
v. Record No. 2322-97-2 JUDGE LARRY G. ELDER
NOVEMBER 24, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF GREENSVILLE COUNTY
Robert G. O'Hara, Jr., Judge
Jerry E. Waldrop (Waldrop Law Office, on
brief), for appellant.
Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Tamika Taylor (appellant) appeals her conviction for
abduction in violation of Code § 18.2-47. She contends the
evidence was legally insufficient to support her conviction
because the person she aided in committing the abduction was the
natural father of the child abducted, giving him legal
justification for taking the child. The Commonwealth contends
appellant failed properly to preserve this argument for appeal.
For the reasons that follow, we hold that appellant's assignment
of error was properly preserved, and we reverse the abduction
1
conviction.
1
Appellant also contends the evidence was factually
insufficient to support her conviction because the testimony of
the Commonwealth's witnesses was inconsistent and incredible.
Because we reverse on the legal sufficiency issue, we do not reach
the factual sufficiency issue.
I.
FACTS
At about 1:00 a.m. on December 26, 1996, appellant and her
fiance, Avery Moore, arrived at the home of Meshia Powell,
ostensibly to see Tasean, the ten-month-old son of Powell and
Moore. Powell and Moore had never been married and had not lived
together. Powell had cared for the child since his birth. Moore
was not present for the birth, had seen the child only once, and
had never paid child support. No custody order was then pending
or in effect.
Prior to going to Powell's home that morning, Moore and
appellant went to the home of Powell's aunt. Moore told Powell's
aunt "he had come to take the baby" and wanted to telephone
Powell. Appellant told Moore to tell Powell that Moore's mother
was with them and wanted to see the child. Powell's aunt did not
see Moore's mother.
Moore telephoned Powell and told her he and his mother
wanted to see the child and that he had gifts for the child; he
did not tell Powell he intended to take the child. Powell gave
Moore her address so they could come to see the child. When
Moore and appellant departed, Powell's aunt called Powell's
stepmother and told her Moore said he intended to take the child.
When Moore and appellant arrived at Powell's home, Powell's
father opened the door. Moore and appellant "kind of pushed
[him] away from the door and came in and asked for [Powell]." As
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Powell's father called her, Moore kept saying he wanted to see
the child and hold him. Powell came downstairs with the child
but refused to let Moore hold him and began to go back upstairs.
Appellant came up behind Powell on the stairs, began to argue
with her about Moore's holding the child, and pushed Powell. The
child fell from Powell's arms, and appellant and Powell started
fighting. Appellant picked up the child and passed him to Moore.
Powell tried to come back down the stairs, but "[appellant] was
blocking the steps so [Powell] couldn't get by." Powell's father
somehow got the child, and he and Moore struggled for the child.
During the struggle, Moore called another male in the car to
hold the door open. Appellant jumped in the car, started it, and
kept calling to Moore. When Powell's father let go of the baby,
allowing Moore to hold him in order to prevent the baby from
being hurt, appellant said "hurry up" and "get in the car."
Moore got into the car with the child, and appellant drove off.
Powell got the license number of their vehicle and reported
the incident to police. North Carolina police stopped appellant
and Moore but, about an hour later, allowed them to continue on
to their home in Georgia.
On January 2, 1997, police arrested appellant and Moore in
Decatur, Georgia, and retrieved the child. After being
Mirandized, appellant made a brief written statement. In it, she
denied handing Moore the child, said she fought Powell in
self-defense, and denied driving the car from the scene. At
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trial, she contended that she and Moore had no advance plans to
take the baby, that she hit Powell in self-defense, that she did
not help Moore take the child and that she continuously
encouraged him to return the child. In contrast to her written
statement, she admitted driving the car from the scene, but she
insisted she drove only to the next house because she did not
have a valid driver's license. She admitted she knew Moore had
the child in the car when she drove off and that she made no
effort to call Powell from Georgia.
Appellant moved to strike the abduction charge at the close
of the Commonwealth's evidence. She contended that Moore had a
legal right to take the child because no custody order was in
effect and that, because Moore was not guilty of abduction, she
could not be guilty as a principal in the second degree. The
court denied the motion. In closing, appellant argued (1) that
the Commonwealth's evidence was inconsistent, not credible, and
failed to prove she participated in the taking of the child, and
(2) that even if the evidence was credible, she could not be
convicted because Moore could not be found guilty of abducting
his own child when no custody order was in effect. The trial
court rejected these arguments and convicted her of abduction.
The court also convicted her of assault and battery, but she
challenges only the abduction conviction on appeal.
II.
PROCEDURAL BAR
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The Commonwealth contends that Rule 5A:20 bars appellant's
challenge to the sufficiency of the evidence on appeal. Under
that rule, it contends, appellant had a duty to give a "clear and
exact reference" to the pages of the record on which she
preserved each issue for appeal. See Rule 5A:20(d). Appellant
cited the pages of the transcript on which she made a motion to
strike at the close of the Commonwealth's evidence, but, reasons
the Commonwealth, she waived the right to rely on that motion by
presenting evidence of her own, and she did not cite any
additional portion of the record to show that she again brought
the sufficiency issues to the attention of the trial court
following completion of her evidence, as necessary to preserve
the issue for appeal.
We disagree with the Commonwealth's argument. A defendant
who moves to strike the Commonwealth's evidence, presents
evidence of her own, and fails to renew her motion to strike at
the completion of her case nevertheless may renew her objection
to the sufficiency of the evidence in other ways, such as in
closing argument to the court. See, e.g., Campbell v.
Commonwealth, 12 Va. App. 476, 478-81, 405 S.E.2d 1, 1-3 (1991)
(en banc). Appellant's closing argument in this case was
sufficient under the contemporaneous objection rule to preserve
the issues she raises on appeal. See, e.g., id.; Rule 5A:18.
Her mere failure to specify the pages of the transcript on which
her closing argument appears is not a bar to her appeal. The
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provisions of Rule 5A:20 are not jurisdictional.
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III.
SUFFICIENCY OF THE EVIDENCE
Appellant contends the evidence was legally insufficient to
support her abduction conviction. Appellant argues that the
absence of a custody order gave Moore, as a natural parent, the
"legal justification" necessary to take the child without
violating Code § 18.2-47 and that, because Moore's actions did
not constitute abduction, appellant could not be convicted for
being a principal in the second degree. We agree.
Under Code § 18.2-47(A),
[a]ny 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" . . . .
Abduction for which no punishment is
otherwise prescribed shall be punished as a
Class 5 felony.
One who is "present, aiding and abetting, and intend[s] his or
her words, gestures, signals, or actions to in some way
encourage, advise, urge, or in some way help the person
committing the crime to commit it" is a principal in the second
degree. McGill v. Commonwealth, 24 Va. App. 728, 733, 485 S.E.2d
173, 175 (1997).
"[Code § 18.2-47] provides that any person, except a law
enforcement officer in the performance of his duty, may be
prosecuted for violation of its provisions." Diehl v.
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Commonwealth, 9 Va. App. 191, 194, 385 S.E.2d 228, 230 (1989).
However, the key portion of the statute in this case remains the
"without legal justification" prong, for "any person" may violate
the statute only if he or she acts "without legal justification."
Code § 18.2-47(A). We held in Diehl v. Commonwealth, 9 Va. App.
191, 385 S.E.2d 228, that a parent may be convicted for abduction
under this code section when he or she acts with the first intent
enumerated in the statute--"the intent to deprive [the abductee]
of his personal liberty." Diehl involved parents who jointly
abducted their adoptive teen-aged son, by shackling and paddling
him, ostensibly as a means of discipline. Id. at 193-95, 385
S.E.2d at 229-31. Diehl did not involve a dispute between
parents for exclusive custody and, therefore, did not address the
second intent enumerated in the statute--"intent . . . to
withhold or conceal [the abductee] from any person, authority or
institution lawfully entitled to his charge."
Whether a natural parent is legally justified, under Code
§ 18.2-47(A), in taking custody of his or her child to the
exclusion of the other natural parent in the absence of an order
determining custody is a question of first impression in
Virginia. Other states considering the issue have held that
"each parent has an equal right to custody of a child in the
absence of a court order" and that "a parent does not commit the
crime of kidnapping by taking exclusive possession of the child
where no such order exists." See State v. Stocksdale, 350 A.2d
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539, 541 (N.J. Super. Ct. Law Div. 1975); see also William B.
Johnson, Annotation, Kidnapping or Related Offense by Taking or
Removing of Child by or Under Authority of Parent or One In Loco
Parentis, 20 A.L.R.4th 823 § 3 (1983 & Supp. 1997). But see
State v. Donahue, 680 P.2d 191, 193 (Ariz. Ct. App. 1984) (under
custodial interference statute including "legal justification"
prong, holding that father's right was "at most a right . . .
co-equal . . . with the child's natural mother" and that "[h]e
did not have the right to custody of the child to the exclusion
of the natural mother" without "a court order to that effect");
State v. Butt, 656 A.2d 1225, 1226-27 (Me. 1995) (under statute
proscribing criminal restraint by a parent, which contained
"legal justification" prong, holding that right to custody was
joint and that jury could find father violated statute by
exercising exclusive custody). Construing this principle in
conjunction with Code § 18.2-47, we conclude that the natural
parent of a child does not act "without legal justification"
under the statute when he or she "seizes, takes, transports,
detains or secretes" the child "with the intent [only] . . . to
conceal him from [the child's other natural parent] . . .
lawfully entitled to his charge." Code § 18.2-47.
To hold that a child's natural parent acts "without legal
justification" under Code § 18.2-47(A) in such circumstances
would contravene legislative intent. A fundamental rule of
statutory construction provides "that a statute must be construed
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from its four corners and not by singling out particular words or
phrases." Smith v. Commonwealth, 8 Va. App. 109, 113, 379 S.E.2d
374, 376 (1989). "If the several provisions of a statute suggest
a potential for conflict or inconsistency, we construe those
provisions so as to reconcile them and to give full effect to the
expressed legislative intent." Mejia v. Commonwealth, 23 Va.
App. 173, 176-77, 474 S.E.2d 866, 868 (1996) (en banc). "[A]
statute should never be construed so that it leads to absurd
results. In addition, penal statutes must be strictly construed
against the Commonwealth and applied only in those cases clearly
falling within the language of the statute." Branch v.
Commonwealth, 14 Va. App. 836, 839, 419 S.E.2d 422, 424 (1992)
(citations omitted).
Code § 18.2-47(A) provides that "[a]bduction for which no
punishment is otherwise proscribed shall be punished as a Class 5
felony." Subsection (B) provides that
[i]f such offense is committed by the parent
of the person abducted and punishable as a
contempt of court in any proceeding then
pending, [it] shall be a Class 1 misdemeanor
in addition to being punishable as a contempt
of court. Provided further, however, that
[if] . . . the person abducted is removed
from the Commonwealth by the abducting
parent, [it] shall be a Class 6 felony in
addition to being punishable as a contempt of
court.
To construe Code § 18.2-47(A) in the manner the Commonwealth
urges would result in illogically disproportionate treatment of
offenders. A parent taking his or her natural child with intent
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"to withhold or conceal" the child from the other natural parent
at a time when no custody proceeding was pending would be guilty
of a Class 5 felony under subsection (A). However, if a parent
committed the same act while a custody proceeding was pending, he
or she would be guilty of a lesser offense, a Class 1 misdemeanor
or a Class 6 felony, depending on the circumstances. To conclude
that the legislature intended to punish parental abduction during
the pendency of a custody proceeding as a lesser crime than the
same act committed when no custody proceeding had been initiated
defies logic.
Therefore, we construe Code § 18.2-47 to provide that, if no
custody proceedings are pending, the natural parent of a child
may not be convicted for abducting the child "with the intent
. . . to withhold or conceal him from any person . . . lawfully
entitled to his charge"; if no custody proceedings are then
pending, the natural parent acts with "legal justification" as
that term is used in Code § 18.2-47(A). Therefore, Moore's
actions in taking the child did not constitute abduction. 2 The
2
The holdings in Bausell v. Commonwealth, 165 Va. 693, 181 S.E.
462 (1935), and its companion case do not require a different
result. See Bausell v. Commonwealth, 165 Va. 669, 181 S.E. 453
(1935). Those cases involved a father's use of extreme physical
force to regain custody of his three-year-old daughter from the
child's mother, resulting in death to the mother and her relative
and injury to the father and his relative. See 165 Va. at 674,
181 S.E. at 454. In trying father's relative for murder, the
court instructed the jury that father and his relative "did not
have the right to break into [mother's] bedroom . . . to secure
possession of [the child]." 165 Va. at 695, 181 S.E. at 463. On
appeal of the murder conviction of father's relative, the Supreme
Court agreed, holding:
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Commonwealth nevertheless contends that appellant was properly
convicted of abduction as a principal in the second degree even
if Moore's parental status prevented him from being convicted for
abducting the child. We disagree and hold that the trial court
erred in convicting appellant of abduction.
The father's right to the possession of his
three-year-old daughter, as against the right
of the mother, is a qualified right to be
decided by the court in a proper proceeding.
This qualified right does not entitle the
father to regain the custody of his child
[with force and arms], so long as the child
is in the possession of the mother, and is in
no serious danger.
Id.
The holding in Bausell made no reference to the crime of
abduction, and the above-quoted language stands for nothing more
than the general proposition that one cannot use unreasonable
force to regain that to which he has a lawful right. See, e.g.,
Goodwin v. Commonwealth, 23 Va. App. 475, 483-84, 477 S.E.2d 781,
785 (1996). Although entitled to possession or custody, one may
still be punished for using unreasonable force to regain that
possession or custody. See id. In Bausell, such force resulted
in charges for murder. In appellant's case, it resulted in a
conviction for assault and battery which appellant does not
challenge on appeal. These principles do not support the argument
that either Moore or appellant was guilty of abduction in the case
at bar.
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A split of authority exists regarding whether an agent or
other person present with and assisting a parent to gain
exclusive custody of a child may be found guilty of kidnapping
when the parent himself has committed no illegal act. 3 See
Stocksdale, 350 A.2d at 541; Annotation, supra, § 4. The
majority view holds that a parent's agent may not be held liable;
the minority view holds that, because only the parent has a right
to custody, parental immunity does not shield one who helps the
parent. See Stocksdale, 350 A.2d at 541; Wilborn v. Superior
Ct., 337 P.2d 65, 66 (Cal. 1959) (en banc).
We believe the majority view is the better reasoned. As
explained in Stocksdale,
[A]ny person who aids or abets another to
commit a crime is punishable as a principal.
There is no prerequisite to a conviction
of an aider and abettor that the principal be
tried and convicted. Each participant in an
illegal venture is required to "stand on his
own two feet." An aider or abettor, for
example, may generally be convicted where the
principal has a defense personal to himself
which exonerates him from criminal
responsibility.
There are, however, exceptions to this
general rule of accessorial liability.
Accomplice liability, for example, is not
3
We need not decide whether a parent's right to custody of his
or her child may be delegated to an agent to exercise either in
the presence of the delegating parent or in his absence. See
Wilborn v. Superior Ct., 337 P.2d 65, 66 (Cal. 1959) (en banc)
(noting that "[i]f a child be taken or enticed away from one
parent by the other parent, the mental anxiety of the parent who
loses the child would not ordinarily be nearly so great as where
the child passes into the hands of one having no parental
obligations toward the child"). Under the facts of appellant's
case, the child's father rather than appellant carried him from
his mother's house.
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sustained where the defense of one party not
only exonerates himself but also changes the
character of the act so that it can no longer
be viewed as criminal in nature.
350 A.2d at 543-44 (citations omitted). In a parental abduction
case like ours, appellant's liability as a principal in the
second degree is wholly derivative of Moore's liability. The
existence of legal justification for Moore's actions does not
simply immunize him from criminal liability; rather, it so
"changes the character of the act . . . that it can no longer be
viewed as criminal in nature." Id. at 544. Therefore,
appellant's acts in aiding and abetting Moore, like Moore's acts,
did not violate Code § 18.2-47.
For the foregoing reasons, we hold (1) that a parent does
not commit abduction in violation of Code § 18.2-47(A) when he
takes his child from the custody of the child's other natural
parent "with the intent [only] to withhold or conceal him from
[the other natural parent] lawfully entitled to his charge" as
long as no custody order is then pending or in effect, and
(2) that one who aids that parent in taking the child also does
not commit abduction. Accordingly, we reverse and dismiss
appellant's abduction conviction.
Reversed and dismissed.
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