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November 3, 2000

Record No. 992996

Present: Carrico, C.J., Lacy, Hassell, Keenan,
Koontz, and Kinser, JJ., and Compton, S.J.






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.

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, 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

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 (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.

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 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 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
shall be no presumption or inference of law in favor of either

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.

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


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).