Felony abduction conviction reversed

Where appellant abducted his child while under a personal protection order to stay away from his wife and child, the trial court erred by allowing appellant to be prosecuted for a Class 5 felony for the child’s abduction.

Code § 18.2-47(D) applies when a parent abducts his child under circumstances that would be punishable as contempt of court.

“[W]here a parent’s abduction of their child qualifies as a Class 1 misdemeanor under subsection (D) of Code § 18.2-47, the same conduct cannot also constitute a Class 5 felony because the misdemeanor penalty replaces the statute’s default felony penalty.”

The trial court should have granted appellant’s motion to strike the Class 5 felony abduction charge involving his child.

Appellant’s conviction for felony abduction is reversed. His convictions of four counts of violating a PPO, one count of felony abduction (involving his wife, who is the child’s mother) and a count for misdemeanor assault against a family member are affirmed.

Prior proceedings

“On October 25, 2022, this Court issued an opinion affirming all of appellant’s convictions except for the felony abduction of J.O. Based on a review of the record and the relevant statutes, this Court concluded that appellant was both a parent of J.O. and subject to contempt of court for violating the March PPO.

“Those facts rendered appellant’s abduction of J.O. a misdemeanor offense under the provisions of Code § 18.2-47(D) and thus precluded the Commonwealth from pursuing a charge of felony abduction under the other subsections of Code § 18.2-47.

“Consequently, the trial court erred in denying appellant’s motion to strike regarding the felony abduction charge of J.O. The Commonwealth subsequently petitioned for a rehearing on that single ruling, which the panel granted on November 22, 2022, in an order that withdrew the October 2022 opinion in its entirety and vacated the mandate. …

“[T]his Court now reinstates all the holdings from the original opinion and expounds on why appellant’s conviction for felony abduction of J.O. demands reversal.”

Misdemeanor and punishment

“[T]his Court finds that because appellant’s abduction of J.O. meets the criteria of Code § 18.2-47(D) – appellant is J.O.’s parent and the abduction was punishable as contempt for violating the March PPO – the trial court erred in denying appellant’s motion to strike the felony abduction charge under Code § 18.2-47. …

“Assuming the Commonwealth meets its burden [of establishing the elements of the offense], subsection (C) provides, in relevant part, the following default rule regarding punishment: ‘Abduction for which no punishment is otherwise prescribed shall be punished as a Class 5 felony.’ …

“Subsection (D), however, immediately follows that pronouncement by providing such alternate punishments for two specific types of parental abductions.

“First, ‘[i]f an offense under subsection A is committed by the parent of the person abducted and punishable as contempt of court in any proceeding then pending, the offense shall be a Class 1 misdemeanor in addition to being punishable as contempt of court.’ …

“Second, if, under those same facts, the parent removes the child from Virginia’s borders, then the abduction ‘shall be a Class 6 felony in addition to being punishable as contempt of court.’ …

“It should go without saying that the unambiguous language used in both subsection (C) and subsection (D) renders the penalties provided in each mutually exclusive to the other.

“As a result, a plain reading of Code § 18.2-47 leads to a single interpretation: a parent who abducts their child in violation of Code § 18.2-47 may be punished for a Class 5 felony under subsection (C) only if such abduction cannot be punished as contempt of court in any other pending proceeding.

“Thus, where a parent’s abduction of the child is ‘punishable as contempt of court in any proceeding then pending,’ the parent can only be punished under subsection (D) for either a Class 1 misdemeanor or Class 6 felony depending on whether the parent removed the child from Virginia. …

“Appellant’s abduction of J.O. falls squarely within subsection (D) of Code § 18.2-47 because the crime was ‘punishable as contempt of court’ in a pending proceeding.

“Specifically, at the time of the abduction, the March PPO prohibiting any contact whatsoever between appellant and J.O. was in full effect and pending a full hearing in the JDR court. That PPO was issued pursuant to Code § 16.1-253.1, subsection (C) of which states that ‘[e]xcept as otherwise provided in § 16.1-253.2, a violation of the order shall constitute contempt of court.’ …

“Under subsection (A) of Code § 16.1-253.2, a person who violates ‘a provision of the protective order’ that prohibits contact ‘with the allegedly abused person,’ ‘further acts of family abuse,’ the commission of a criminal offense, or trespass upon specified property, ‘is guilty of a Class 1 misdemeanor.’

“And any person who violates any provision whatsoever of a protective order, ‘while knowingly armed with a firearm or other deadly weapon, … is guilty of a Class 6 felony’ under subsection (B).”

Appellant violated the PPO “in the following specified ways: (1) by stalking, (2) by committing assault and battery, (3) by violating the order’s no-contact provision, and (4) by violating the order while armed with a deadly weapon. …

“Because punishment for any one or more of those violations is ‘in addition to any other penalty provided by law,’ appellant’s abduction of J.O. in violation of the March PPO is punishable both as contempt under Code § 16.1-253.1(C) and as a Class 1 misdemeanor and/or Class 6 felony under subsections (A) and (B) of § 16.1-253.2. …

“[Footnote 20] The fact of the matter is that the effect of the plain language of all three of these statutes creates a result in this case that the Commonwealth dislikes – the inability to charge appellant with a Class 5 felony abduction despite being able to bring a plethora of other charges, including a Class 6 felony under Code § 16.1-253.2(B), for the conduct constituting abduction of J.O.

“But that does not give this Court the authority to rewrite an unambiguous statute that does not lead to inconsistent results. … [end footnote] …

“[T]his Court reverses and vacates appellant’s felony conviction for the abduction of J.O. and affirms appellant’s remaining convictions.”

Osman v. Commonwealth, Record No. 1416-21-4, Feb. 14, 2023. CAV (published opinion) (Huff). Upon a rehearing. From the Circuit Court of Fairfax County (Azcarate). John W. Pickett for appellant. Katherine Quinlan Adelfio, Jason S. Miyares for appellee. VLW 023-7-079, 45 pp.