Taylor v. Com., Record No. 2322-97-2.

• Citation: 521 S.E.2d 293,31 Va. App. 54
• Decision Date: 23 November 1999
• Docket Number: Record No. 2322-97-2.
• Parties: Tomika T. TAYLOR, sometimes known as Tamika T. Taylor v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

521 S.E.2d 293

31 Va. App. 54

Tomika T. TAYLOR, sometimes known as Tamika T. Taylor v. COMMONWEALTH of Virginia.

Record No. 2322-97-2.

Court of Appeals of Virginia, Richmond.

November 23, 1999.

(Jerry E. Waldrop; Waldrop Law Office, Emporia, on brief), for appellant.

Donald E. Jeffrey, III, Assistant Attorney General (Mark L. Earley, Attorney General, on briefs), for appellee.

Present: FITZPATRICK, C.J., and BENTON, COLEMAN, WILLIS, ELDER, ANNUNZ TATA, BUMGARDNER, LEMONS and FRANK, JJ.

UPON A REHEARING EN BANC

ANN UNZIATA, Judge.

Tomika T. Taylor ("appellant") appeals her conviction as a principal in the second degree for abduction in violation of Code § 18.2-47.¹ 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. She argues that the father's legal justification in taking the child precludes her conviction. A panel of this Court reversed appellant's conviction on that ground. See Taylor v. Commonwealth, 28 Va.App. 498, 507 S.E.2d 89 (1998)

. Upon rehearing en banc, we affirm appellant's conviction.

I. FACTS

At approximately 1:00 a.m. on December 26, 1996, appellant and her fiance, Avery Moore, arrived at the home of Meshia Powell, ostensibly to see the ten-month-old son of Powell and Moore.² Powell and Moore had never been married and had not lived together. The child had been in Powell's care 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 in effect and no proceeding was pending.

Prior to going to Powell's home that morning, Moore and appellant drove to the home of Powell's aunt. Moore told Powell's aunt that "he had come to take the baby" and he wanted to telephone Powell. Appellant told Moore to inform Powell that Moore's mother was "out in the car" and wanted to see the child. However, Powell's aunt did not see Moore's mother in the car.

Moore telephoned Powell and asked if he could see the child, stating that "his mother was with him" and that he had brought gifts. He did not tell Powell of his intent to take the child. After Powell gave Moore her address so they could come to see the child, Moore and appellant departed in their car.

Upon the arrival of Moore and appellant at Powell's home, Powell's father answered the door. Moore and appellant "kind of pushed [him] away from the door and came in and asked for [Powell]." Moore repeatedly stated he wanted to see the child and hold him. Called by her father, 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 and began arguing with her about Moore's holding the child. After appellant pushed Powell, causing the child to fall from Powell's arms, appellant and Powell started fighting. During this altercation, appellant somehow picked up the child and passed him to Moore. Powell tried to come back down the stairs, but "[appellant blocked] the steps so [Powell] couldn't get by." Powell's father grabbed the child and began to struggle with Moore for control. At some point, appellant left Powell's home, jumped in the car and called to Moore to "hurry up" and "get in the car." Once Powell's father let go of the child in order to prevent him from being hurt, Moore got into the car with the child and appellant drove away. Later that day, North Carolina police stopped appellant and Moore in their car but, about an hour later, allowed them to continue on to their home in Georgia.

Powell obtained the license number of the vehicle appellant drove and reported the incident to police. On January 2, 1997, police arrested appellant and Moore in Decatur, Georgia, and retrieved the child. After being Mirandized, appellant gave a brief written statement in which she denied handing Moore the child, stated she fought Powell in self-defense, and denied driving the car from the scene.

At trial, appellant contended that she and Moore had not planned to take the child in advance, that she hit Powell in self-defense, that she did not help Moore take the child, and that she continuously encouraged Moore 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 knowing that Moore had the child in the car when she drove off and that she made no effort to call Powell afterwards.

Appellant moved to strike the charge of abduction 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 and convicted appellant of abduction, expressly noting her culpability as a principal in the second degree.³ The court also convicted appellant of assault and battery, but she challenges only the abduction conviction on appeal.

II. SUFFICIENCY OF THE EVIDENCE

Code § 18.2-47 provides in pertinent part:

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" . . . . Abduction for which no punishment is otherwise prescribed shall be punished as a Class 5 felony.

Appellant argues that, in the absence of a court order which curtailed Moore's custodial rights as a natural parent, Moore's taking of his child did not violate Code § 18.2-47 because his conduct was legally justified. Appellant further argues that, because Moore's actions did not constitute abduction, she cannot be convicted as a principal in the second degree. We disagree and affirm the conviction.

The principles governing the criminal liability of accomplices are well settled. Under Virginia law, an accomplice is "a person who knowingly, voluntarily, and with common intent with the principal offender unites in the commission of a crime." Zirkle v. Commonwealth, 189 Va. 862, 876, 55 S.E.2d 24, 32 (1949). A principal in the second degree is an accomplice 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." McGill v. Commonwealth, 24 Va.App. 728, 733, 485 S.E.2d 173, 175 (1997).

"In the case of every felony, every 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. While the principal offender need not be convicted of the underlying offense in order to sustain the conviction of an accomplice, the Commonwealth must prove that the underlying offense has been committed by the principal offender. See Snyder v. Commonwealth, 202 Va. 1009, 1017, 121 S.E.2d 452, 458-59 (1961)

; Hatchett v. Commonwealth, 75 Va. 925, 932 (1882). In short, accomplice liability is derivative in nature. See People v. Prettyman, 14 Cal.4th 248, 58 Cal.Rptr.2d 827, 926 P.2d 1013, 1018 (1996) ("Accomplice liability is `derivative,' that is, it results from an act by the perpetrator to which the accomplice contributed.").

Proceeding from the premise that her criminal liability as a principal in the second degree derives from Moore's liability as a principal in the first degree, appellant raises the following specific issues on appeal: (1) whether a natural parent acting under the circumstances of this case is justified or excused from liability for the crime of abduction and (2) whether a person charged as an accomplice is shielded from criminal liability based derivatively on the parent's excuse or justification.

A number of jurisdictions have recognized that, in the absence of a court order awarding custody to another, a parent cannot be convicted of abduction and other similar crimes by taking exclusive custody of his or her child. See, e.g., State v. Stocksdale, 138 N.J.Super. 312, 350 A.2d 539, 541 (1975)

(recognizing that, because "each parent has an equal right to custody of a child in the absence of a court order, a parent does not commit the crime of kidnapping by taking exclusive possession of the child where no such order exists."). 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.1998). Although this reasoning has been adopted by a majority of courts considering the issue, there is case law to the contrary. See State v. Donahue, 140 Ariz. 55, 680 P.2d 191, 193 (App.1984) (construing custodial interference statute and, even assuming the defendant father had a right to custody of his child, holding that father's right to custody was "at most a right to coequal custody 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) (construing a statute that proscribes one parent from taking a child from the custody of the other parent with the intent to secrete that child and with knowledge that he or she has no legal right to do so and finding that father violated the statute, notwithstanding the fact that father's actions did not violate a court order, because father deprived mother of her legal right to joint custody in the absence of a court order curtailing mother's right).

While the precise issue before us has not been resolved by Virginia's appellate courts, several elements...