Tameka Ann Dunn v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Felton and Senior Judge Overton
Argued at Chesapeake, Virginia
TAMEKA ANN DUNN
MEMORANDUM OPINION * BY
v. Record No. 1689-02-1 JUDGE NELSON T. OVERTON
APRIL 15, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Frederick B. Lowe, Judge
Tabitha B. Anderson (Office of the Public
Defender, on brief), for appellant.
Michael T. Judge, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Appellant, Tameka Ann Dunn, was convicted in a bench trial
of custodial interference (felony parental abduction) in
violation of Code § 18.2-49.1(A). On appeal, she contends the
trial court erred in: (1) exercising jurisdiction and finding
Virginia Beach to be the appropriate venue, and (2) finding that
a custodial parent can be found guilty of violating Code
§ 18.2-49.1. For the reasons that follow, we affirm the trial
court.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
BACKGROUND
On October 5, 2001, the Norfolk Juvenile and Domestic
Relations District Court (juvenile court) entered a temporary
visitation order in which the terms were "worked out by"
appellant and Brian Covington (father). The order required that
"all pick up and drop off of the parties' minor child shall take
place at Chuck E. Cheese located on Lynnhaven Parkway in the
City of Virginia Beach." Under the temporary visitation
agreement, appellant had custody of the child for visitation
purposes beginning at 6:00 p.m. on Friday, October 5, 2001,
until 6:00 p.m. on Friday, October 12, 2001, at which time
father would reacquire custody for visitation. "Thereafter,
[father] shall have [custody of the child for visitation] every
weekend from Friday at 6 p.m. until Sunday at 7 pm." In the
order, the Norfolk juvenile court judge "instructed [appellant]
that she cannot leave the Commonwealth of Virginia with the
parties' minor child."
Father delivered the child to the required location on
October 5, 2001. On October 12, 2001, father returned to the
agreed upon location at 6:00 p.m. and waited two hours, but
appellant and the child never arrived. Fearing appellant had
taken the child to Georgia, father sought assistance from the
juvenile court, which, on November 2, 2001, "immediately
granted" to father "custody of" the child. The juvenile court
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directed that the order "be presented to the appropriate
authorities in Georgia to facilitate the child's immediate
return to her father." In late November 2001, armed with the
November 2 order, father traveled to Blairsville, Georgia,
located his daughter and returned her to Virginia.
On November 28, 2001, Detective Borman with the Virginia
Beach Police Department located appellant in Marietta, Georgia,
placed her in custody and returned her to Virginia.
JURISDICTION AND VENUE
Code § 17.1-513 establishes the general jurisdiction of the
circuit courts and provides that "[t]hey shall . . . have
original jurisdiction of all indictments for felonies and of
presentments, informations and indictments for misdemeanors."
Code § 19.2-239 provides that "[t]he circuit courts . . . shall
have exclusive original jurisdiction for the trial of all
presentments, indictments and informations for offenses
committed within their respective circuits." "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). The Commonwealth may prove
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venue by either direct or circumstantial evidence. In either
case, the evidence must be sufficient to present a "'strong
presumption' that the offense was committed within the
jurisdiction of the court." Pollard v. Commonwealth, 220 Va.
723, 725, 261 S.E.2d 328, 330 (1980) (quoting Keesee v.
Commonwealth, 216 Va. 174, 175, 217 S.E.2d 808, 810 (1975)).
Code § 18.2-49.1 makes it a crime to intentionally withhold
"a child from the child's custodial parent in a clear and
significant violation of a court order respecting the custody or
visitation." "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."
Foster-Zahid v. Commonwealth, 23 Va. App. 430, 442-43, 477
S.E.2d 759, 765 (1996) (holding that venue lay in Fairfax, the
location where child was to be returned), aff'd, 254 Va. 168,
489 S.E.2d 687 (1997).
By valid order entered by the Norfolk juvenile court, the
parties were required to "pick up and drop off" the child at a
Virginia Beach location. The terms of the order were "worked
out" by appellant and father. Appellant's failure to relinquish
custody of the child to father in Virginia Beach on October 12,
2001, constituted an "offense" committed within that circuit.
See Code § 19.2-244. Accordingly, venue was proper in that
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jurisdiction as that was the jurisdiction to which appellant was
ordered to relinquish temporary custody and from which appellant
withheld custody from the father.
CUSTODIAL PARENT'S AMENABILITY TO CONVICTION
Appellant also contends she "cannot be held to violate
§ 18.2-49.1(A)" because she was the "custodial parent" at the
time. Code § 18.2-49.1(A) provides:
Any 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.
Code § 18.2-49.1(B) makes it a Class 3 misdemeanor for a
person to "knowingly, wrongfully and intentionally engage[] in
conduct that constitutes a clear and significant violation of a
court order respecting the custody or visitation of a child."
"[T]he Supreme Court has rejected limiting the definition
of 'custody' to legal custody," which is "defined generally as
'[t]he care and control of a thing or person.'" Krampen v.
Commonwealth, 29 Va. App. 163, 167-68, 510 S.E.2d 276, 278
(1999) (citations omitted) (holding that Code § 18.2-370.1,
which requires proof of "custodial or supervisory relationship,"
"is not limited to those situations where legal custody exists,"
but applies also to persons having temporary custodial
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relationship); see also Lovisi v. Commonwealth, 212 Va. 848,
850, 188 S.E.2d 206, 208 (1972) (in case involving stepfather,
concluding that custody provision in former Code § 40-112,
cruelty to children, is not restricted in application to those
having legal custody of children); Bennett v. Commonwealth, 8
Va. App. 228, 380 S.E.2d 17 (1989) (affirming abduction
conviction of natural mother who, in derogation of a court
order, abducted her children from the temporary physical custody
of the children's grandparents).
"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.' The gravamen of the
offense is the withholding of the child from the custodial
parent outside the Commonwealth." Foster—Zahid, 23 Va. App. at
437, 477 S.E.2d at 762 (affirming mother's conviction, holding
that clear intent of the statute is to punish more severely
those who withhold a child from its rightful custodian when the
detention is outside of Virginia).
Visitation by a non-custodial parent is deemed in the
child's best interest. Barring acts that endanger the child or
usurp duties of a parent with legal custody, "neither the
custodial parent nor the court may intervene to restrict
activities during visitation." Eichelberger v. Eichelberger, 2
Va. App. 409, 413, 345 S.E.2d 10, 12 (1986).
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Appellant's argument that a custodial parent can never
violate the felony portion of Code § 18.2-49.1, even when he or
she takes the child out of the Commonwealth in violation of a
court order and withholds the other parent's right of
court-mandated visitation, fails to acknowledge the custodial
relationship that exists when a non-custodial parent exercises
visitation with his or her child pursuant to a court order.
Moreover, such a view ignores the recognized importance of
visitation by a non-custodial parent and the element of the
statute which elevates the crime to a felony, namely taking a
child out of the Commonwealth in derogation of a court order
granting temporary custody to the non-custodial parent for
visitation. Thus, when a non-custodial parent exercises
visitation pursuant to a court order, that parent becomes the
custodial parent or rightful custodian for that period of
visitation until the parent returns the child to the parent
having physical custody. Accordingly, appellant was properly
charged and convicted under Code § 18.2-49.1(A).
For the foregoing reasons, we affirm the trial court.
Affirmed.
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