Present: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and 

Kinser, JJ., and Compton, S.J. 

TOMIKA T. TAYLOR OPINION BY 

 SENIOR JUSTICE A. CHRISTIAN COMPTON 

v. Record No. 992996 November 3, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

 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. 

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 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, 

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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 court." 

 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 

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(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. 

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 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 

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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 

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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 

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

parent). 

 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. 

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 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 

Affirmed. 

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). 

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