Taylor v. Commonwealth

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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