Frank Boyd, Jr. v. Commonwealth of Virginia ( 2020 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, O’Brien and Senior Judge Frank
Argued by teleconference
PUBLISHED
FRANK BOYD, JR.
OPINION BY
v. Record No. 1681-19-1 JUDGE MARY GRACE O’BRIEN
JULY 14, 2020
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
John W. Brown, Judge
Leslee A. Nicholas, Assistant Public Defender, for appellant.
Victoria Johnson, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Frank Boyd, Jr. (“appellant”) was convicted of felony parental abduction in violation of
Code § 18.2-49.1 after a bench trial. On appeal, he challenges the sufficiency of the evidence to
support his conviction and contends that the Commonwealth failed to prove that his conduct was
“wrongful,” as required by the statute.
BACKGROUND
Appellant and his former wife, Asha Rose, divorced in 2012, after the Court of Common
Pleas in Allegheny County, Pennsylvania entered a custody order concerning their two children in
2011. The order granted Rose primary physical custody and provided that appellant “shall be able
to execute custody” of the children on the third Saturday and Sunday of each month between
September and June, if he gave Rose one week advance notice.
On Friday, November 3, 2017, the parties’ fifteen-year-old son, R.B., and his younger
brother were living with Rose in Chesapeake, Virginia. R.B. testified that on the preceding evening,
he telephoned his father in Pennsylvania and told him that when he gave his brother chips in the
morning, Rose became angry, “grabbed a switch and [hit him] with it a few times,” leaving marks.
R.B. also told his father that Rose threw a vacuum cleaner at his chest twice. R.B. photographed the
marks on his hand and chest and texted them to appellant, who advised R.B. to tell someone at
school about the incident.
When R.B. went to school the following day, he told his guidance counselor, and she alerted
Child Protective Services (“CPS”). A CPS social worker interviewed R.B. and his younger brother
at school. She also contacted Rose, who advised her “that it was not a case of abuse[,] but a defiant
teenager.” Rose scheduled an appointment to meet with the social worker the following week, and
the abuse allegation was later determined to be unfounded.
Appellant drove to the school from Pennsylvania on November 3 and spoke with the
guidance counselor, who informed him that because there were no custody orders on file at the
school, he could pick up R.B. However, she did not tell appellant that he could take R.B. back to
Pennsylvania.
Appellant left the school with R.B. and took him to a friend’s home to stay overnight.
When R.B. did not return home from school on Friday, Rose filed a missing person report with the
Chesapeake Police Department. After appellant learned of the report, he contacted the police. He
did not contact Rose. A police officer came to R.B.’s friend’s house and saw R.B. Appellant did
not inform the officer that he planned to take R.B. back to Pennsylvania with him.
The next day, on Saturday, November 4, the parties’ younger son telephoned appellant, who
was in Pennsylvania with R.B. Rose listened to the conversation on speaker phone and recorded it.
During the conversation, appellant explained that he drove to Virginia and picked up R.B. from
school. Rose testified that she confronted appellant and asked why he did not contact her; appellant
started “yelling, hollering, and screaming” at her for physically disciplining R.B, and he “threatened
to come to Virginia, and . . . ‘F’ [her] up.”
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On Monday, November 6, Rose asked her Pennsylvania attorney to file an emergency
motion for special custody relief. Rose testified that two motions were filed on November 13 and
November 15. The Pennsylvania court entered an order on November 17, requiring appellant to
return R.B. to Rose, which he complied with on November 18. Appellant subsequently was
charged with felony parental abduction.
At trial, the court denied appellant’s motion to strike the evidence. The court took the
matter under advisement at the conclusion of the case and subsequently heard the parties’ argument
concerning the meaning of the term “wrongful,” as used in the statute. The court found that
although appellant “was in the right to do what he did initially . . . the course of action should have
been with the police that night [by informing them that he didn’t] want [R.B.] to be subject to abuse
while [the allegations were] being investigated [and he wanted] to take him back to Pennsylvania.”
Noting that appellant “held [R.B.] out of state for [fifteen] days,” the court found him guilty of
parental abduction.
ANALYSIS
Appellant challenges the sufficiency of the evidence to support his conviction for parental
abduction. In reviewing a challenge to the sufficiency of the evidence on appeal, we view the
evidence in the light most favorable to the Commonwealth as the prevailing party at trial. Brown v.
Commonwealth, 68 Va. App. 44, 55 (2017). We will not reverse the court’s decision unless it was
“plainly wrong or without evidence to support it.” Commonwealth v. Moseley, 293 Va. 455, 463
(2017).
Appellant asserts that “[t]he trial court erred in denying [his] motion to strike, because there
was insufficient evidence that [his] conduct was ‘wrongful,’ as required by [Code § 18.2-49.1(A)].”
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Code § 18.2-49.1(A) provides that:
[a]ny person who knowingly, wrongfully[,] and intentionally
withholds a child from either of a child’s parents or other legal
guardian 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, is guilty of a Class 6
felony.
We review de novo a court’s interpretation of a statutory term. Brown v. Commonwealth, 68
Va. App. 746, 792 (2018). “In interpreting [a] statute, ‘courts apply the plain meaning . . . unless
the terms are ambiguous or applying the plain meaning would lead to an absurd result.’” Baker v.
Commonwealth, 284 Va. 572, 576 (2012) (quoting Boynton v. Kilgore, 271 Va. 220, 227 (2006)).
Code § 18.2-49.1(A) neither defines “wrongfully” nor refers to any other statute defining the
term. “When a word is not defined by statute, we normally construe it in accord with its ordinary or
natural meaning.” Smith v. United States, 508 U.S. 223, 228 (1993). In determining the General
Assembly’s intent, “[e]ven though any ambiguity or reasonable doubt as to the meaning of a penal
statute must be resolved in favor of an accused, nevertheless a defendant is not entitled to benefit
from an ‘unreasonably restrictive interpretation of the statute.’” Holloman v. Commonwealth, 221
Va. 196, 198 (1980) (quoting Ansell v. Commonwealth, 219 Va. 759, 761 (1979)).
Black’s Law Dictionary describes “wrongful” as “[c]haracterized by unfairness or
injustice[,] [c]ontrary to law; unlawful[, or] not entitled to the position occupied.” Wrongful,
Black’s Law Dictionary (11th ed. 2019). Similarly, Webster’s Dictionary defines “wrongful” as
“not rightful especially in law.” Webster’s Third New International Dictionary 2642 (2002). Code
§ 18.2-47, the general abduction statute, criminalizes “seiz[ing], tak[ing], transport[ing], detain[ing]
or secret[ing]” a person “without legal justification or excuse.”
In interpreting Code § 18.2-49.1(A), we stated that “[t]he General Assembly specified that
[the statute] applies to any person who withholds a child outside of Virginia from the child’s
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custodial parent in violation of a . . . court order.” Foster-Zahid v. Commonwealth, 23 Va. App.
430, 436 (1996). “The gravamen of the offense is the withholding of the child from the custodial
parent outside the Commonwealth . . . thereby further restricting the custodial parent’s ability to
retrieve the child.” Id. at 437. “The underlying policy for this statute . . . is to deter, if not prevent,
child snatching.” Id.
Therefore, in construing the term “wrongful” with the General Assembly’s intent in enacting
the statute, the plain meaning of the term as applied in Code § 18.2-49.1(A) means unlawful or
contrary to the law. See Taylor v. Commonwealth, 260 Va. 683, 690 (2000).1
Here, we must consider whether the evidence was sufficient to prove that appellant
wrongfully withheld R.B. from Rose’s lawful custody in violation of a court order. The record
established that in 2011, the Court of Common Pleas of Allegheny County, Pennsylvania, entered
an order awarding Rose primary custody. Although appellant was permitted to have custody of the
children on the third Saturday and Sunday of each month between September and June, the order
required appellant to notify Rose if he desired to exercise his custody option. On Friday, November
3, 2017, appellant picked up R.B. from school in Chesapeake, Virginia and drove him to
Pennsylvania the next day. November 3 did not fall on the third weekend of the month, and
appellant did not contact Rose before taking R.B. from school. He did not, in fact, contact her even
after he returned to Pennsylvania with his son. Although appellant asserts that “the threat of harm
that could befall his son left [him] with little choice but to protect his son from further harm by
1
This definition is also consistent with the language of similar statutes from other states that
prohibit parental abduction. See, e.g., Vt. Stat. Ann. tit. 13, § 2451(a) (2017) (defining the act of
“custodial interference” as the “taking, enticing, or keeping [of] a child from the child’s lawful
custodian, knowingly, without a legal right to do so, when the person is a relative of the child and
the child is less than 18 years old”); Strothers v. State, 891 P.2d 214, 228 (1995) (construing Alaska
Stat. Ann. § 11.41.330 (West 2014) to require the prosecution to prove that a defendant had “no
legal right” to take a child from his or her custodial parent to establish second-degree custodial
interference).
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removing him from the situation,” appellant unilaterally chose to take R.B. out of state. Further,
appellant did not advise the school, DSS, or the police officer investigating the missing person
report of his plan to take R.B. to Pennsylvania.
Once there, he did not seek an emergency hearing granting him custody of R.B. while the
child abuse case was investigated. He kept R.B. in Pennsylvania for fifteen days and did not return
him until Rose obtained an order from the Pennsylvania court mandating him to bring R.B. to
Virginia. Despite appellant’s attempt to justify his actions, the evidence was manifest that he acted
in direct contravention of the Allegheny County custody order. Accordingly, the evidence is
sufficient to support the court’s conclusion that his actions were wrongful, as required by the statute.
For these reasons, we affirm his conviction.
Affirmed.
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