Opinion
Record No. 1018-07-2.
July 29, 2008.
Appeal from the Circuit Court of Dinwiddie County Pamela S. Baskervill, Judge.
James T. Maloney (Maloney David, P.L.C., on brief), for appellant.
Jennifer C. Williamson, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Present: Judges Frank, McClanahan and Haley Argued at Richmond, Virginia.
MEMORANDUM OPINION BY
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Kenneth Anthony Clanton, appellant, was convicted, in a bench trial, of abduction in violation of Code § 18.2-47, and use of a firearm in the commission of abduction in violation of Code § 18.2-53.1. On appeal, he contends the trial court erred in finding the evidence sufficient to sustain the convictions. Specifically, he argues that he used neither threat nor force against the victim, who was less than one year old at the time of the offense, and in addition, he did not intend to withhold the infant from a parent. Appellant further contends the evidence was insufficient to prove he used a firearm in the commission of abduction. For the reasons stated, we reverse the convictions.
BACKGROUND
"On appeal, 'we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.'" Archer v. Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)). So viewed, the evidence proves that while Simone was asleep in bed with her boyfriend, Debryant, and his infant daughter, "D," three males kicked in the bedroom door. A fourth female stood in the doorway. One intruder pulled Simone, who is not the child's mother, out of the bed and pushed her into another room down the hall. Once in the other room, the intruders demanded money from Simone. Debryant was forced to remain in his bedroom with a gun to his head.
Simone testified that five to ten minutes after being taken from the bedroom she heard one man tell another that Debryant kept saying, "My daughter is in here." Eventually, the female intruder brought the infant to Simone and told Simone "to watch her." Soon after, someone threw a blanket over Simone's head and bound her arms and legs with duct tape.
Debryant testified that he never gave the intruders permission to move his eight-month-old daughter from one room to another.
ANALYSIS
When faced with a challenge to the sufficiency of the evidence, we "'presume the judgment of the trial court to be correct' and reverse only if the trial court's decision is 'plainly wrong or without evidence' to support it." Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) ( en banc) (quoting Davis v. Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002)). A reviewing court does not "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt."Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (emphasis in original). We ask only whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."Kelly, 41 Va. App. at 257, 584 S.E.2d at 447. "'This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.'" Id. at 257-58, 584 S.E.2d at 447 (quoting Jackson, 443 U.S. at 319). Thus, we do not "substitute our judgment for that of the trier of fact" even if our opinion were to differ. Wactor v. Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002).
Appellant was charged with violating Code § 18.2-47, which provides in relevant part:
A. 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". . . .
(Emphasis added).
We do not address whether appellant used force to seize the infant, nor whether appellant had the intent to withhold the infant from the father's lawful charge. We resolve this case by examining whether appellant had a "legal justification or excuse" for moving the infant.
"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'. . . ." Taylor v. Commonwealth, 260 Va. 683, 690, 537 S.E.2d 592, 596 (2000) (quoting Black's Law Dictionary 870 (7th ed. 1999)).
Justifications are defenses that arise from properties or characteristics of acts; excuses are defenses that arise from properties or characteristics of actors. A defendant is justified when his conduct is not legally wrongful, even though it apparently violates a criminal law. A defendant is excused when he is not blameworthy or responsible for his conduct, even though it apparently violates a criminal law.
Douglas N. Husak, Justifications and the Criminal Liability of Accessories, 80 J. Crim. L. Criminology 491, 496 (1989).
We only discuss "legal justification," as we conclude that appellant is not entitled to the defense of "excuse." See Taylor v. Commonwealth, 31 Va. App. 54, 63, 521 S.E.2d 293, 297 (1999) ('"Excuses are specific to defendants because they exculpate these individuals for their criminal conduct due to disabilities, such as infancy or psychological disorder, that undermine the attribution of culpability for this particular conduct to these defendants."' (quoting Robert F. Schopp, Justification Defenses and Just Convictions, 24 Pac. L.J. 1233, 1237-38 (1993))).
We give the words of a statute "their common, ordinary and accepted meaning," absent an indication by the legislature to the contrary.General Trading Corp. v. Motor Vehicle Dealer Bd., 28 Va. App. 264, 268, 503 S.E.2d 809, 811 (1998). Absent ambiguity, "the manifest intent of the legislature clearly expressed in its enactments should not be judicially thwarted under the guise of statutory construction."Cregger v. Commonwealth, 25 Va. App. 87, 90, 486 S.E.2d 554, 555 (1997).
Thus, Code § 18.2-47 must be construed as making the one so acting guilty of kidnapping only if the taking and carrying away is wrongfully done without legal justification. Unless we recognize such a principle, every time a person picks up and moves a child, he or she could be charged with kidnapping. See In re Michele D., 59 P.3d 164, 172 (Cal. 2002).
In discussing the concept of legal justification, the California Supreme Court recognized almost fifty years ago that "[m]any situations readily suggest themselves under which a minor, unable to give his consent because of his immature years, might be forcibly taken and transported by an adult for a good or innocuous purpose, and in which it would be unthinkable that the adult should be held guilty of kidnapping." People v. Oliver, 361 P.2d 593, 595 (Cal. 1961). The Court continued:
If I find a young child alone on the highway and take him into my automobile, whether he resists or goes with me passively, intending to transport him to a police station or to his home; if I find such a child at the edge of a body of water in which he might drown or at the edge of a precipice over which he might fall and seize him even brusquely, whatever his resistance, and forcibly carry him to a place of greater safety; if I find such a child on the sidewalk and take his hand and walk along with him out of friendliness or a fondness for children or any other innocent or innocuous reason with no malign or evil purpose, nobody could reasonably believe that it was the intention of the Legislature that for any of these acts I could be convicted of the crime of kidnapping. On the other hand, if I find such a child under any of the supposed circumstances and transport him in exactly the same manner with an evil and unlawful intent, everybody would equally agree that my conviction of kidnapping would fall within the legislative purpose.
Id. The California Court explained:
The rule governing the forcible carrying of conscious persons capable of giving consent, which makes a person who forcibly carries such a person and transports him against his will guilty of kidnapping, however good or innocent his motive or intent may otherwise be, can only lead to obvious injustice and a perversion of the legislative purpose if blindly and literally applied where the person who is forcibly transported, because of infancy or mental condition, is incapable of giving his consent.
Id. at 595-96.
Our inquiry now becomes whether appellant wrongfully moved the child without justification. We find he did not.
Whether appellant had legal justification is a factual finding. We begin by recognizing that claiming a defense of legal justification is akin to asserting a plea of self-defense. See McGhee v. Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808, 810 (1978) (discussing that in making a plea of self-defense, "a defendant implicitly admits the [offense] was intentional and assumes the burden of introducing evidence of justification or excuse that raises a reasonable doubt in the minds of the jurors" (emphasis added)). Following, "[i]n essence, whether or not defendant showed such circumstances of excuse to create a reasonable doubt that she acted in self-defense was an issue of fact."Yarborough v. Commonwealth, 217 Va. 971, 978-79, 234 S.E.2d 286, 292 (1977). See also Reed v. Commonwealth, 6 Va. App. 65, 70, 366 S.E.2d 274, 277 (1988) (observing that the claim-of-right defense is "usually a question for the trier-of-fact"). That being said, we conclude, as a matter of law, that there is no evidence to support a factual finding of no justification.
We find nothing in the record that suggests removing the infant from Debryant's bedroom to the room occupied by Simone was wrongfully done. We begin with the premise that the intruders were unaware that Simone was not the child's mother or custodian. At the time of the invasion, Simone was asleep in the same bed with the baby and Debryant, who was later identified as the baby's father. Indeed, the female intruder's instruction to Simone to "watch" the baby indicated that the intruder was tendering the baby to Simone for the child's protection. Additionally, Debryant's statement, "[m]y daughter is in here," indicates Debryant's concern for the well-being of his child. We note that Debryant's bedroom was characterized as being "destroyed" by the intruders, with the mattress (where the infant had been sleeping) having been flipped and other furniture found in disarray. Thus, the evidence reveals that Debryant acknowledged the peril his child was in and wanted her distanced from any danger. In complying with Debryant's concerns, appellant moved the child. We recognize that Simone was bound and covered with a blanket; however, the evidence shows that the child was brought into a comparatively less perilous environment, free from the turmoil and chaos of Debryant's bedroom. While we acknowledge our standard of review, under the facts presented here, we conclude as a matter of law that the record shows that the child was moved to a safer place. Thus, we find the record insufficient to support the conclusion that appellant removed the child from Debryant's bedroom without legal justification.
Because we find that the transfer of the infant was justified, we need not address the second prong of the abduction statute, namely the issues of whether "D" was deprived of her liberty or whether she was withheld from someone entitled to her charge.
For the foregoing reasons, we find as a matter of law that the evidence was insufficient to support the abduction of "D" and we reverse that conviction. Insofar as we find the evidence insufficient to sustain appellant's conviction for abduction, we need not consider whether appellant used a firearm in the commission of that offense. However, because the charge of use of a firearm is predicated on a conviction for abduction, we also reverse that conviction. Reversed and dismissed.
Given our holding, we need not address appellant's remaining arguments as to why his convictions should be reversed.
The infant was taken by Clanton, one of the four intruders, from her father, at gunpoint, without his permission, and moved to another room in which Simone had been taken by force; the infant was thrown onto a bed and left there; and she remained there away from her father while Simone was threatened, held by gunpoint, subjected to demands for money, bound by duct tape, and covered by a blanket. I fail to see how taking the baby from her father and moving her to another location that was just as dangerous as the location where the father remained could be in defense of the baby and a legal justification within the meaning of the statute. Code § 18.2-47; See Taylor v. Commonwealth, 260 Va. 683, 690, 537 S.E.2d 592, 596 (2000) ("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.'").
There was no evidence that the spare bedroom in which Simone was taken was a safer environment than Debryant's bedroom. In fact, the state of disarray was not confined to Debryant's room but "stuff was everywhere" in the house. Simone was in such fear she thought she was going to die. Another resident of the house remained bound in the kitchen for thirty minutes before he escaped.
Clanton does not argue on appeal that the affirmative defense of legal justification is even applicable in this case (nor did he make such an argument below). In fact, when Clanton quoted Code § 18.2-47 in his brief he intentionally omitted, with an ellipsis, the words "legal justification." Virginia appellate courts have consistently held that "we [will] consider only the issues raised" on appeal. Mullins v. Commonwealth, 39 Va. App. 728, 733, 576 S.E.2d 770, 772 (2003);See Richardson v. Moore, 217 Va. 422, 423 n. 1, 229 S.E.2d 864, 865 n. 1 (1976) (explaining the Court would "express no opinion" on a particular question because that question "was not raised on appeal"); Kirby v. Commonwealth, 264 Va. 440, 444-45, 570 S.E.2d 832, 834 (2002) (Court refused to "notice defendant's argument on the subject" where his "assignment of error [did] not properly encompass the argument");See also Rule 5A:12 and Rule 5A:18. In violation of this basic appellate principle, however, the majority has "'recast'" Clanton's argument "into a different argument [i.e., legal justification] upon which to base its decision'" to reverse the trial court. Clifford v. Commonwealth, 274 Va. 23, 25, 645 S.E.2d 295, 297 (2007) (quoting Commonwealth v. Shifflett, 257 Va. 34, 44, 510 S.E.2d 232, 237 (1999)).
How could Simone "watch" the baby after the robbers bound Simone's arms and legs with duct tape and covered her with a blanket? To conclude that the robbers were, for a good and innocuous purpose, taking the baby from her father and tendering it to Simone for its protection defies common sense. And, the majority's conclusion requires that we review the evidence and draw all inferences in the light most favorable to the robbers, not the Commonwealth, as is required by law. Archer v. Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997). See also Bolden v. Commonwealth, 275 Va. 144, 147-48, 654 S.E.2d 584, 586 (2008); Molina v. Commonwealth, 272 Va. 666, 671, 636 S.E.2d 470, 473 (2006); Viney v. Commonwealth, 269 Va. 296, 299, 609 S.E.2d 26, 28 (2005); Walton v. Commonwealth, 255 Va. 422, 425-26, 497 S.E.2d 869, 871 (1998).
I certainly agree that from Debryant's statement, "[m]y daughter is in here," you can reasonably infer that Debryant acknowledged the peril threatening his child. I disagree that his statement reveals that Debryant wanted his child taken away from him and moved to another room with Simone and an additional intruder. From that statement, the more reasonable inference, if one can be drawn at all, is that Debryant hoped the intruders would leave if they knew a child was in the room.
It was reasonable for the fact finder to conclude the infant was removed by force or intimidation with the intent to withhold or conceal her from a person lawfully entitled to her charge without legal justification. Code § 18.2-47. This factual finding requires that we not substitute our judgment for that of the trier of fact. Wactor v. Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002).
Accordingly, I disagree with the rationale adopted by the majority for reversing the judgment of the trial court and would affirm the convictions.