Foster-Zahid v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Fitzpatrick, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia

DONNA FOSTER-ZAHID
OPINION BY
v. Record No. 1937-95-4 JUDGE JOHANNA L. FITZPATRICK
NOVEMBER 12, 1996
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
J. Howe Brown, Judge
(William D. Pickett, on briefs), for
appellant. Appellant submitting on briefs.

Marla Graff Decker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief) for appellee.

Donna Foster-Zahid (appellant) was convicted in a bench

trial of custodial interference (felony parental abduction) in

violation of Code § 18.2-49.1(A). 1 On appeal, appellant contends

that the trial court erred in: (1) exercising jurisdiction

because the abduction was accomplished outside of Virginia, and

(2) finding Fairfax, Virginia to be the appropriate venue. For

the reasons that follow, we affirm the trial court.

1
Code § 18.2-49.1(A) provides that "[a]ny person who knowingly,

wrongfully and intentionally withholds a child from the child's

custodial parent in a clear and significant violation of a court

order respecting the custody or visitation of such child, provided
such child is withheld outside of the Commonwealth, shall be

guilty of a Class 6 felony." (Emphasis added).
 I. BACKGROUND

The facts are uncontested. Mr. Zahid and appellant were

married in December 1983. Their son, Raja Zahid Jr., was born

December 1986. After they separated, custody of Raja Jr. was

determined in an October 19, 1994 hearing in the Fairfax Juvenile

and Domestic Relations District Court in which both parties were

represented by counsel. In a November 9, 1994 order, the judge

ordered joint legal and physical custody of Raja Jr. and

specified as follows:
The child shall be released to his
father's physical custody on Saturday,
October 22, 1994 at 11:00 AM and shall
continue to be in his father's physical
custody except for periods of visitation with
his mother, as herein outlined, until the
second semester begins in the child's
Wisconsin school. . . .

After this Fall 1994-1995 semester, Raja
will live with his mother during the school
term each year and his father during the
summer school vacation . . . .

* * * * * * *

The father shall take or send the child
to visit the mother in Wisconsin December 2nd
through 4th, 1994. The mother shall have the
child with her and is to arrange
transportation, etc. for a holiday visit from
the day school is out in Virginia through
December 29th at 10:00 PM, when she is to
return Raja to the father in Virginia.

Mr. Zahid took his son to Wisconsin for appellant's fall

visitation on December 2, 1994 and left two plane tickets with

appellant so that she could return the child on December 4, 1994

2
as required by the court order. Appellant failed to return the

child to his father. She informed Mr. Zahid that she would not

return Raja Jr. because he had an ear infection and she did not

want him to travel by air. She later agreed to bring Raja Jr.

back by train. Relying on this representation, Mr. Zahid

purchased two train tickets for the return trip. Appellant again

refused to relinquish the child. Appellant then agreed to

deliver the child to Mr. Zahid if the transfer occurred at the

Amtrak Station in Milwaukee, Wisconsin on December 9, 1994. Mr.

Zahid travelled to Wisconsin, waited for Raja Jr. and appellant

at the station, but they never appeared.
On December 14, 1994, a Wisconsin court enforced the

Virginia decree and required appellant to "forthwith and without

delay place the child Raja E. Zahid into the actual and physical

custody and control of Raja M. Zahid." 2 Rather than comply,

appellant absconded with the child to California on December 24,

1994, and then to Colorado four days later. In March 1995,

appellant was arrested in Colorado for the abduction of Raja Jr.,

and returned to Fairfax, Virginia for trial.

2
Appellant admitted her awareness of the Virginia court order,

but attempted to justify withholding Raja Jr. from Mr. Zahid. She

alleged that Mr. Zahid slapped her face on December 2, 1994, and

told her that she would never see her son again because he planned

to take the child to his native country of Pakistan.

3
 II. JURISDICTION

At the close of the Commonwealth's case, appellant moved to

strike the evidence and argued inter alia that neither

jurisdiction nor venue was properly laid in Fairfax, Virginia,

because the place of the child's abduction was Wisconsin. The

trial court denied the motion to strike and stated as follows:
The gravamen of [18.2-49.1] is not
taking a child. I don't think the statute
even uses the word taking a child or
abduction. It says withholding a child.
Withholding the child from the child's
custodial parent. And the withholding is
where the child's supposed to be and if the
child is supposed to be here, this is where
the offense occurs.
* * * * * * *

[What makes 18.2-49.1 a felony] is that
the child is withheld outside the
Commonwealth. But the Commnwealth is where
the child was supposed to be and that's the
gravamen of the offense. Both jurisdiction
and venue are here because this is where the
parent lived.

(Emphasis added).

At the close of all the evidence, the court denied the

renewed motion to strike by appellant's counsel and additionally

found as follows:
I didn't hear any reason why [appellant] went
to California or Colorado except to withhold
the child . . . in violation of the [c]ourt
[o]rder. She violated not one, but two
[o]rders. There was an [o]rder in Virginia
and there was one in Wisconsin. The
Wisconsin [o]rder was issued after the events
that she says occurred, that she says gave
her reason to fear that her husband would
take the child to Pakistan had occurred. So,

4
 whatever those issues were could and should
have been raised in the Wisconsin hearing.

[S]he got an [o]rder from Wisconsin
saying take the child back -- give the child
back, and she violated that [o]rder as well
as the Virginia [o]rder. She knew of the two
[o]rders. She intentionally withheld the
child without legal excuse. So, it was
wrongful.

The violation of the [c]ourt [o]rders
was clear and significant. This is the very
type of behavior that the statute is designed
to prevent. There may be a whole lot of
social policy reasons why this ought not to
be a felony, but I don't do social policy; I
do law. And she violated the law and I find
her guilty.

Appellant argues that the trial court lacked jurisdiction to

try her for a violation of Code § 18.2-49.1(A) because her act of

withholding the child occurred outside the confines of the

Commonwealth. Appellant contends that the locus of where the

child is "with[held] from the child's custodial parent," rather

than where the custody order was entered, controls jurisdiction.

The clear language of the statute contradicts this view.
(A) Parental Abduction / Custodial Interference Statute

"A primary rule of statutory construction is that courts

must look first to the language of the statute. If a statute is

clear and unambiguous, a court will give the statute its plain

meaning." Loudoun County Dep't of Social Servs. v. Etzold, 245

Va. 80, 85, 425 S.E.2d 800, 802 (1993). The General Assembly

specified that Code § 18.2-49.1(A) applies to any person who

withholds a child outside of Virginia from the child's custodial

5
parent in violation of a Virginia court order, if the custodial

parent resides in Virginia. The statutory language demonstrates

the General Assembly's intent to make criminal an act occurring

outside of Virginia that causes harm within.

Subsections A and B of Code § 18.2-49.1, although similar in

language, are different in effect. The legislature outlined two

degrees of custodial interference. The degree of offense is

determined by the location of the detention or abduction. If it

occurs within the territorial boundaries of the Commonwealth,

under subsection B, it is a misdemeanor. The act that elevates

the offense from a misdemeanor to a felony occurs only when the

child is "withheld" from a custodial parent "outside of the

Commonwealth." Code § 18.2-49.1(A) (emphasis added). The

gravamen of the offense is the withholding of the child from the

custodial parent outside the Commonwealth. The clear intent of

the statute is to punish more severely those who withhold a child

from its rightful custodian when the detention is accomplished

outside of Virginia, thereby further restricting the custodial

parent's ability to retrieve the child. The underlying policy

for this statute, like that of the Parental Kidnapping Prevention

Act, 28 U.S.C.A. § 1738A, is to deter, if not prevent, child

snatching.

While we have not previously addressed this precise issue,

other jurisdictions with similar statutes hold that the custodial

parent's residence and the place of issuance of the custody

6
decree provide a sufficient jurisdictional nexus regardless of

where the actual abduction or detention occurs. 3

In Vermont, the child custody interference statute provides

3
See N.J. Stat. Ann. § 2C:13-4 (West 1995) (a person,

"including a parent . . . is guilty of interference with custody

if . . . [a]fter the issuance of a temporary or final order

specifying custody, visitation or joint custody rights, takes,

detains, entices or conceals a minor child from the other parent

in violation of the custody or visitation order"); Cal. Penal Code

§ 784.5 (West 1995) (providing jurisdiction to prosecute violator

in jurisdictional territory where (1) victim resides; (2) minor

child was taken, detained, or concealed; or (3) minor child is

found); N.D. Cent. Code § 14-14-22.1 (1995) (removal or detention

of "child under the age of eighteen years outside North Dakota

with the intent to deny another person's rights under an existing

custody decree shall be guilty of a class C felony"); see also
R.I. Gen. Laws § 11-26-1.2 (1994); Wyo. Stat. § 6-2-204 (1989);

S.D. Codified Laws Ann. § 22-19-9 (1985); Nev. Rev. Stat. §

200.359 (1995); La. Rev. Stat. Ann. § 45.1 (West 1986); Ill. Ann.

Stat. ch. 720, para. 5/10-5 (1989); Idaho Code § 18-4506 (1987);

Ga. Code Ann. § 16-5-45 (Harrison 1987); Fla. Stat. Ann. § 787.03

(West 1996); Colo. Rev. Stat. Ann. § 18-3-304 (West 1990); Ariz.

Rev. Stat. Ann. § 13-1302 (1994); and Ind. Code
§ 35-42-3 (1990).

7
in pertinent part, "[a] person commits custodial interference by

taking, enticing or keeping a child from the child's lawful

custodian." Vt. Stat. Ann. tit. 13, § 2451(a) (1995) (emphasis

added). The Supreme Court of Vermont, in a factually similar

case, construed the statute to "explicitly contemplate[]

application to a person who has kept a child outside of Vermont."

The court specifically rejected defendant's argument that the

statute "refers only to those who 'snatch' a child in Vermont and

then leave the state to avoid detection," and found that "[t]he

only plausible interpretation of [the statutory] language is that

the statute is intended to apply to a person . . . who keeps a
child outside Vermont when the child's lawful custodian is a

resident of Vermont." State v. Doyden, 676 A.2d 345, 346 (Vt.

1996) (emphasis added). The court found further grounds for

jurisdiction because the result of defendant's conduct (i.e., the

custodial parent losing custody) was "not incidental to the

offense charged, but [was] in fact an element of the offense as

defined by statute." Id. at 348.

In construing the Alaska statute addressing custodial

interference, the Court of Appeals of Alaska stated, "[t]he crime

of custodial interference was designed to protect any custodian

from deprivation of his or her custody rights." Strother v.

State, 891 P.2d 214, 220 (Alaska Ct. App. 1995). "Alaska's

custodial interference statutes embody the rule that, when a

child is entrusted to joint custodians, neither custodian may

8
take exclusive physical custody of the child in a manner that

defeats the rights of the other joint custodian." Id. at 223.

The Alaska statute uses the phrase "takes, entices, or keeps [a]

child . . . from a lawful custodian" to describe the prohibited

act. The court further held that "if a parent takes custody of

the child and exercises that custody in a manner that defeats the

custody rights of the other parent, unlawfully 'keeping' the

child from the other parent, then the parent's conduct

constitutes the actus reus of custodial interference." 4 Id. at

4
See also State v. Kane, 625 A.2d 1361 (R.I. 1993) (Rhode

Island maintained jurisdiction over defendant who intentionally

retained child outside of state in violation of state custody

decree, stating, "the crime of child snatching can never occur

absent a valid custody order rendered within this state. Thus

[the statute] applies to acts that necessarily produce a

detrimental effect within Rhode Island."); State v. Doyle, 828

P.2d 1316 (Idaho 1992) (where defendant, mother, or child were not

present in state when the act of withholding occurred, Idaho will

have jurisdiction over a crime if any essential element of the

crime, including the result, occurs within the state -- where the

"keeping or withholding and the deprivation of the custodial

rights, occurred in Idaho"); Trindle v. State, 602 A.2d 1232 (Md.

1992) (where defendant acquired lawful possession of child and

detained child outside Maryland, the intended result of

9
defendant's conduct, i.e., depriving father of custody, formed an

essential ingredient of the offense, and had its effect in state

of father's residence, although the acts which produced that

result took place out of state); Rios v. State, 733 P.2d 242 (Wyo.

1987) ("the only place where [defendant] could fail or refuse to

return the child to the custody of the person entitled to custody

is Wyoming," where the adverse result occurred); Wheat v. State,

734 P.2d 1007 (Alaska Ct. App. 1987) (under custodial interference

statute, the commission of a crime is consummated in Alaska when

crime requires a result as a necessary element, and when result

occurs inside the state; the prohibited result is the gravamen of

the offense, rather than defendant's proscribed conduct per se;

court also noted alternative basis for jurisdiction in defendant's

omission to perform a legal duty with respect to relationship to

another); People v. Harvey, 435 N.W.2d 456 (Mich. Ct. App. 1989)
(defendant's Colorado-based conduct subject to Michigan court's

jurisdiction where defendant had legal duty to return daughter to

mother, and statute made criminal his failure to perform this

duty. "The detrimental effects of defendant's intentional

retention of [the child] in violation of the Michigan court's

custody order occurred within the state, since it was the

authority of a Michigan resident that was infringed upon.");

Roberts v. State, 619 S.W.2d 161 (Tx. Crim. App. 1981) (where

defendant grandmother knowingly and intentionally retained child

10
224. We find this analysis equally applicable to the case at

bar.
(B) Extraterritorial Jurisdiction

Code § 19.2-239 defines the jurisdiction of the circuit

courts of Virginia in criminal cases and provides that "[t]he

circuit courts, except where otherwise provided, shall have

exclusive original jurisdiction for the trial of all

presentments, indictments and informations for offenses committed

within their respective circuits." Generally, charges may be

tried only in the circuit courts having territorial jurisdiction

over the locations in which the crimes occurred and in which

venue is laid." Curtis v. Commonwealth, 13 Va. App. 622, 629,

414 S.E.2d 421, 425 (1992). "[The crime] must take place within

this State to give our courts jurisdiction. . . . Every crime to

be punished in Virginia must be committed in Virginia." Farewell

out of state, knew that retention violated court order, and where

statutory provisions incorporated territorial theory stated in
Strassheim v. Daily, Texas had jurisdiction); People v. Caruso,

504 N.E.2d 1339 (Ill. App. Ct. 1987) (defendant's act of harboring

children out of state and failing to return them to custodial

parent in violation of Illinois court order subjected defendant to

prosecution in Illinois pursuant to Illinois criminal jurisdiction

statute, where the offense charged was based on "an omission to

perform a duty imposed by the law of this State").

11
v. Commonwealth, 167 Va. 475, 479, 189 S.E. 321, 323 (1937).

While the traditional view of jurisdiction requires a

completed intrastate act, the Virginia Supreme Court has

addressed the question of jurisdiction to prosecute an offense

not fully executed in Virginia but resulting in immediate harm

within the Commonwealth. "[A]ctual physical presence in a state

is not necessary to make an individual amenable to its criminal

laws if the crime is the 'immediate result' of the accused's act;

under such circumstances, the accused may be tried in the state's

courts even though actually absent at the time the act was
committed." Moreno v. Baskerville, 249 Va. 16, 19, 452 S.E.2d

653, 655 (1995) (emphasis added) (quoting Travelers Health Ass'n

v. Commonwealth, 188 Va. 877, 891, 51 S.E.2d 263, 268 (1949)).

"'It has long been a commonplace of criminal liability that a

person may be charged in the place where evil results, though he

is beyond the jurisdiction when he starts the train of events of

which the evil is the fruit.'" Gregory v. Commonwealth, 5 Va.

App. 89, 94, 360 S.E.2d 858, 861 (1987) (emphasis added) (quoting
Travelers Health, 188 Va. at 892, 51 S.E.2d at 269) (Virginia had

jurisdiction because the fraudulent disposal of a truck outside

Virginia was contemplated by the statute, where the harm the

statute intended to prevent occurs in Virginia, regardless of

where the fraudulent intent is formed), aff'd, 237 Va. 354, 377

S.E.2d 405 (1989). "Where harm is caused in Virginia by criminal

acts partially committed within this Commonwealth, such acts can

12
be prosecuted here." Id. Jurisdiction may exist where the

immediate harm occurs, even if the criminal act does not

physically occur there.

Additionally, in defining extraterritorial jurisdiction, the

United States Supreme Court held that "[a]cts done outside a

jurisdiction, but intended to produce and producing detrimental

effects within it, justify a state in punishing the cause of the

harm as if [defendant] had been present at the effect, if the

state should succeed in getting him within its power."
Strassheim v. Daily, 221 U.S. 280, 285 (1911). See also United

States v. Steinberg, 62 F.2d 77, 78 (2d Cir. 1932) (no

constitutional violation to charge accused in the United States,

where he posted fraudulent letter in Canada).

In the instant case, appellant lawfully obtained custody of

the child for a limited visitation pursuant to the November 9,

1994 Virginia court order. Appellant willfully violated the

valid court order requiring her "to return Raja to the father in

Virginia" by originally withholding the child in Wisconsin and

later absconding with him to California and Colorado. Even

though appellant's original detention and later removal of the

child occurred outside the Commonwealth, the immediate harm of

depriving Mr. Zahid of custody of his son occurred within

Virginia. Thus, Virginia properly exercised jurisdiction over

appellant pursuant to Code §§ 18.2-49.1(A) and 19.2-239.

13
 III. VENUE

Lastly, appellant argues that the trial court also erred in

finding that venue was properly laid in Fairfax County, because

Code § 19.2-244 does not fix venue at a place other than where

the crime occurred, and no crime occurred in Virginia.

"Except as otherwise provided by law, the prosecution of a

criminal case shall be had in the county or city in which the

offense was committed." Code § 19.2-244. Venue is reviewed to

determine "whether the evidence, when viewed in the light most

favorable to the Commonwealth, is sufficient to support the

[trial court's] venue findings." Cheng v. Commonwealth, 240 Va.

26, 36, 393 S.E.2d 599, 604 (1990).

"At common law the proper venue of a crime was the county

where it was committed and this rule has been generally

recognized by courts or established by Constitutions. But, in

the absence of a constitutional limitation, it is generally held

that the Legislature has power to fix the venue of criminal

prosecutions in a county or district other than that in which the

crime was committed." Howell v. Commonwealth, 187 Va. 34, 40-41,

46 S.E.2d 37, 40 (1948) (citation omitted). To prove venue, the

Commonwealth must "produce evidence sufficient to give rise to a

'strong presumption' that the offense was committed within the

jurisdiction of the court, and this may be accomplished by either

direct or circumstantial evidence." Cheng, 240 Va. at 36, 393

S.E.2d at 604 (quoting Pollard v. Commonwealth, 220 Va. 723, 725,

14
261 S.E.2d 328, 330 (1980)).

Under Code § 18.2-49.1(A), the General Assembly clearly

provided that venue exists where the crime of custodial

interference occurred, i.e., where the harm resulted as a direct

and immediate consequence of the violation of the court order. 5

In the instant case, the evidence established that Mr. Zahid was

a resident of Fairfax County at the time of the abduction and

that the child was to be returned to Fairfax County pursuant to a

valid and enforceable Fairfax custody order. The harm

contemplated by Code § 18.2-49.1(A) was clearly established as

occurring in this locus. Thus, the trial court properly found

venue in Fairfax, Virginia.

5
Additionally, in parental abduction or custodial interference

cases, other states provide venue where the custodial parent

resides. See, e.g., State v. Evans, 442 S.E.2d 287 (Ga. Ct. App.

1994) (where defendant removed child from state in lawful exercise

of visitation right, and upon expiration of the period of lawful

visitation intentionally retained the minor in another state for

the purpose of keeping the minor away from the individual having

lawful custody of minor, the victim's (i.e., the custodial

parent's) domicile should be the venue of any criminal

prosecution); and State v. Aussie, 845 P.2d 158 (Ariz. Ct. App.
1993) (venue is proper in the county where the custodial parent

resided at the time of the custodial interference).

15
 For the foregoing reasons, we affirm the decision of the

trial court.

Affirmed.

16