Tameka Ann Dunn v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: April 15, 2003
• Docket: 1689021
• Status: Unpublished

Opinion

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

- 2 - 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

- 3 - 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

- 4 - 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

- 5 - 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).

- 6 - 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.

- 7 -