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                 COURT OF APPEALS OF VIRGINIA


Present:  Judges Fitzpatrick, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia


DONNA FOSTER-ZAHID
                                           OPINION BY
v.          Record No. 1937-95-4     JUDGE JOHANNA L. FITZPATRICK
                                                                                                                                                 NOVEMBER 12, 1996
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                     J. Howe Brown, Judge

         (William D. Pickett, on briefs), for
         appellant.  Appellant submitting on briefs.

         Marla Graff Decker, Assistant Attorney
         General (James S. Gilmore, III, Attorney
         General, on brief) for appellee.


    Donna Foster-Zahid (appellant) was convicted in a bench
trial of custodial interference (felony parental abduction) in
violation of Code   18.2-49.1(A).  On appeal, appellant
contends that the trial court erred in:  (1) exercising
jurisdiction because the abduction was accomplished outside of
Virginia, and (2) finding Fairfax, Virginia to be the appropriate
venue.  For the reasons that follow, we affirm the trial court.
                        I.   BACKGROUND
    The facts are uncontested.  Mr. Zahid and appellant were
married in December 1983.  Their son, Raja Zahid Jr., was born
December 1986.  After they separated, custody of Raja Jr. was
determined in an October 19, 1994 hearing in the Fairfax Juvenile
and Domestic Relations District Court in which both parties were
represented by counsel.  In a November 9, 1994 order, the judge
ordered joint legal and physical custody of Raja Jr. and
specified as follows:
                        The child shall be released to his
         father's physical custody on Saturday,
         October 22, 1994 at 11:00 AM and shall
         continue to be in his father's physical
         custody except for periods of visitation with
         his mother, as herein outlined, until the
         second semester begins in the child's
         Wisconsin school. . . .

                        After this Fall 1994-1995 semester, Raja
         will live with his mother during the school
         term each year and his father during the
         summer school vacation . . . .

              *    *    *    *    *    *    *    

                        The father shall take or send the child
         to visit the mother in Wisconsin December 2nd
         through 4th, 1994.  The mother shall have the
         child with her and is to arrange
         transportation, etc. for a holiday visit from
         the day school is out in Virginia through
         December 29th at 10:00 PM, when she is to
         return Raja to the father in Virginia.  
    Mr. Zahid took his son to Wisconsin for appellant's fall
visitation on December 2, 1994 and left two plane tickets with
appellant so that she could return the child on December 4, 1994
as required by the court order.  Appellant failed to return the
child to his father.  She informed Mr. Zahid that she would not
return Raja Jr. because he had an ear infection and she did not
want him to travel by air.  She later agreed to bring Raja Jr.
back by train.  Relying on this representation, Mr. Zahid
purchased two train tickets for the return trip.  Appellant again
refused to relinquish the child.  Appellant then agreed to
deliver the child to Mr. Zahid if the transfer occurred at the
Amtrak Station in Milwaukee, Wisconsin on December 9, 1994.  Mr.
Zahid travelled to Wisconsin, waited for Raja Jr. and appellant
at the station, but they never appeared.  
    On December 14, 1994, a Wisconsin court enforced the
Virginia decree and required appellant to "forthwith and without
delay place the child Raja E. Zahid into the actual and physical
custody and control of Raja M. Zahid."  Rather than comply,
appellant absconded with the child to California on December 24,
1994, and then to Colorado four days later.  In March 1995,
appellant was arrested in Colorado for the abduction of Raja Jr.,
and returned to Fairfax, Virginia for trial.
                           II.  JURISDICTION
    At the close of the Commonwealth's case, appellant moved to
strike the evidence and argued inter alia that neither
jurisdiction nor venue was properly laid in Fairfax, Virginia,
because the place of the child's abduction was Wisconsin.  The
trial court denied the motion to strike and stated as follows:
                        The gravamen of [18.2-49.1] is not
         taking a child.  I don't think the statute
         even uses the word taking a child or
         abduction.  It says withholding a child.
         Withholding the child from the child's
         custodial parent.  And the withholding is
         where the child's supposed to be and if the
         child is supposed to be here, this is where
         the offense occurs.

              *    *    *    *    *    *    *    

                        [What makes 18.2-49.1 a felony] is that
         the child is withheld outside the
         Commonwealth.  But the Commnwealth is where
         the child was supposed to be and that's the
         gravamen of the offense.  Both jurisdiction
         and venue are here because this is where the
         parent lived.  
(Emphasis added).
    At the close of all the evidence, the court denied the
renewed motion to strike by appellant's counsel and additionally
found as follows:
         I didn't hear any reason why [appellant] went
         to California or Colorado except to withhold
         the child . . . in violation of the [c]ourt
         [o]rder. She violated not one, but two
         [o]rders.  There was an [o]rder in Virginia
         and there was one in Wisconsin.  The
         Wisconsin [o]rder was issued after the events
         that she says occurred, that she says gave
         her reason to fear that her husband would
         take the child to Pakistan had occurred.  So,
         whatever those issues were could and should
         have been raised in the Wisconsin hearing.

                        [S]he got an [o]rder from Wisconsin
         saying take the child back -- give the child
         back, and she violated that [o]rder as well
         as the Virginia [o]rder.  She knew of the two
         [o]rders.  She intentionally withheld the
         child without legal excuse.  So, it was
         wrongful.

                        The violation of the [c]ourt [o]rders
         was clear and significant.  This is the very
         type of behavior that the statute is designed
         to prevent.  There may be a whole lot of
         social policy reasons why this ought not to
         be a felony, but I don't do social policy; I
         do law.  And she violated the law and I find
         her guilty.

    Appellant argues that the trial court lacked jurisdiction to
try her for a violation of Code   18.2-49.1(A) because her act of
withholding the child occurred outside the confines of the
Commonwealth.  Appellant contends that the locus of where the
child is "with[held] from the child's custodial parent," rather
than where the custody order was entered, controls jurisdiction.
The clear language of the statute contradicts this view.  
   (A)  Parental Abduction / Custodial Interference Statute
    "A primary rule of statutory construction is that courts
must look first to the language of the statute.  If a statute is
clear and unambiguous, a court will give the statute its plain
meaning."  Loudoun County Dep't of Social Servs. v. Etzold, 245
Va. 80, 85, 425 S.E.2d 800, 802 (1993).  The General Assembly
specified that Code   18.2-49.1(A) applies to any person who
withholds a child outside of Virginia from the child's custodial
parent in violation of a Virginia court order, if the custodial
parent resides in Virginia.  The statutory language demonstrates
the General Assembly's intent to make criminal an act occurring
outside of Virginia that causes harm within.
    Subsections A and B of Code   18.2-49.1, although similar in
language, are different in effect.  The legislature outlined two
degrees of custodial interference.  The degree of offense is
determined by the location of the detention or abduction.  If it
occurs within the territorial boundaries of the Commonwealth,
under subsection B, it is a misdemeanor.  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."  Code   18.2-49.1(A) (emphasis added).  The
gravamen of the offense is the withholding of the child from the
custodial parent outside the Commonwealth.  The clear intent of
the statute is to punish more severely those who withhold a child
from its rightful custodian when the detention is accomplished
outside of Virginia, thereby further restricting the custodial
parent's ability to retrieve the child.  The underlying policy
for this statute, like that of the Parental Kidnapping Prevention
Act, 28 U.S.C.A.   1738A, is to deter, if not prevent, child
snatching.
    While we have not previously addressed this precise issue,
other jurisdictions with similar statutes hold that the custodial
parent's residence and the place of issuance of the custody
decree provide a sufficient jurisdictional nexus regardless of
where the actual abduction or detention occurs.
              In Vermont, the child custody interference statute provides
in pertinent part, "[a] person commits custodial interference by
taking, enticing or keeping a child from the child's lawful
custodian."  Vt. Stat. Ann. tit. 13,   2451(a) (1995) (emphasis
added).  The Supreme Court of Vermont, in a factually similar
case, construed the statute to "explicitly contemplate[]
application to a person who has kept a child outside of Vermont."
The court specifically rejected defendant's argument that the
statute "refers only to those who 'snatch' a child in Vermont and
then leave the state to avoid detection," and found that "[t]he
only plausible interpretation of [the statutory] language is that
the statute is intended to apply to a person . . . who keeps a
child outside Vermont when the child's lawful custodian is a
resident of Vermont."  State v. Doyden, 676 A.2d 345, 346 (Vt.
1996) (emphasis added).  The court found further grounds for
jurisdiction because the result of defendant's conduct (i.e., the
custodial parent losing custody) was "not incidental to the
offense charged, but [was] in fact an element of the offense as
defined by statute."  Id. at 348.
    In construing the Alaska statute addressing custodial
interference, the Court of Appeals of Alaska stated, "[t]he crime
of custodial interference was designed to protect any custodian
from deprivation of his or her custody rights."  Strother v.
State, 891 P.2d 214, 220 (Alaska Ct. App. 1995).  "Alaska's
custodial interference statutes embody the rule that, when a
child is entrusted to joint custodians, neither custodian may
take exclusive physical custody of the child in a manner that
defeats the rights of the other joint custodian."  Id. at 223.
The Alaska statute uses the phrase "takes, entices, or keeps [a]
child . . . from a lawful custodian" to describe the prohibited
act.  The court further held that "if a parent takes custody of
the child and exercises that custody in a manner that defeats the
custody rights of the other parent, unlawfully 'keeping' the
child from the other parent, then the parent's conduct
constitutes the actus reus of custodial interference."  Id. at
224.  We find this analysis equally applicable to the case at
bar.
              (B)  Extraterritorial Jurisdiction
    Code   19.2-239 defines the jurisdiction of the circuit
courts of Virginia in criminal cases and provides that "[t]he
circuit courts, except where otherwise provided, shall have
exclusive original jurisdiction for the trial of all
presentments, indictments and informations for offenses committed
within their respective circuits."  Generally, charges may be
tried only in the circuit courts having territorial jurisdiction
over the locations in which the crimes occurred and in which
venue is laid."  Curtis v. Commonwealth, 13 Va. App. 622, 629,
414 S.E.2d 421, 425 (1992).  "[The crime] must take place within
this State to give our courts jurisdiction. . . . Every crime to
be punished in Virginia must be committed in Virginia."  Farewell
v. Commonwealth, 167 Va. 475, 479, 189 S.E. 321, 323 (1937).  
    While the traditional view of jurisdiction requires a
completed intrastate act, the Virginia Supreme Court has
addressed the question of jurisdiction to prosecute an offense
not fully executed in Virginia but resulting in immediate harm
within the Commonwealth.  "[A]ctual physical presence in a state
is not necessary to make an individual amenable to its criminal
laws if the crime is the 'immediate result' of the accused's act;
under such circumstances, the accused may be tried in the state's
courts even though actually absent at the time the act was
committed."  Moreno v. Baskerville, 249 Va. 16, 19, 452 S.E.2d
653, 655 (1995) (emphasis added) (quoting Travelers Health Ass'n
v. Commonwealth, 188 Va. 877, 891, 51 S.E.2d 263, 268 (1949)).
"'It has long been a commonplace of criminal liability that a
person may be charged in the place where evil results, though he
is beyond the jurisdiction when he starts the train of events of
which the evil is the fruit.'"  Gregory v. Commonwealth, 5 Va.
App. 89, 94, 360 S.E.2d 858, 861 (1987) (emphasis added) (quoting
Travelers Health, 188 Va. at 892, 51 S.E.2d at 269) (Virginia had
jurisdiction because the fraudulent disposal of a truck outside
Virginia was contemplated by the statute, where the harm the
statute intended to prevent occurs in Virginia, regardless of
where the fraudulent intent is formed), aff'd, 237 Va. 354, 377
S.E.2d 405 (1989).  "Where harm is caused in Virginia by criminal
acts partially committed within this Commonwealth, such acts can
be prosecuted here."  Id.  Jurisdiction may exist where the
immediate harm occurs, even if the criminal act does not
physically occur there.  
    Additionally, in defining extraterritorial jurisdiction, the
United States Supreme Court held that "[a]cts done outside a
jurisdiction, but intended to produce and producing detrimental
effects within it, justify a state in punishing the cause of the
harm as if [defendant] had been present at the effect, if the
state should succeed in getting him within its power."
Strassheim v. Daily, 221 U.S. 280, 285 (1911).  See also United
States v. Steinberg, 62 F.2d 77, 78 (2d Cir. 1932) (no
constitutional violation to charge accused in the United States,
where he posted fraudulent letter in Canada).  
    In the instant case, appellant lawfully obtained custody of
the child for a limited visitation pursuant to the November 9,
1994 Virginia court order.  Appellant willfully violated the
valid court order requiring her "to return Raja to the father in
Virginia" by originally withholding the child in Wisconsin and
later absconding with him to California and Colorado.  Even
though appellant's original detention and later removal of the
child occurred outside the Commonwealth, the immediate harm of
depriving Mr. Zahid of custody of his son occurred within
Virginia.  Thus, Virginia properly exercised jurisdiction over
appellant pursuant to Code   18.2-49.1(A) and 19.2-239.
                           III.  VENUE
    Lastly, appellant argues that the trial court also erred in
finding that venue was properly laid in Fairfax County, because
Code   19.2-244 does not fix venue at a place other than where
the crime occurred, and no crime occurred in Virginia.  
    "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).  
    "At common law the proper venue of a crime was the county
where it was committed and this rule has been generally
recognized by courts or established by Constitutions.  But, in
the absence of a constitutional limitation, it is generally held
that the Legislature has power to fix the venue of criminal
prosecutions in a county or district other than that in which the
crime was committed."  Howell v. Commonwealth, 187 Va. 34, 40-41,
46 S.E.2d 37, 40 (1948) (citation omitted).  To prove venue, the
Commonwealth must "produce evidence sufficient to give rise to a
'strong presumption' that the offense was committed within the
jurisdiction of the court, and this may be accomplished by either
direct or circumstantial evidence."  Cheng, 240 Va. at 36, 393
S.E.2d at 604 (quoting Pollard v. Commonwealth, 220 Va. 723, 725,
261 S.E.2d 328, 330 (1980)).  
              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.
In the instant case, the evidence established that Mr. Zahid was
a resident of Fairfax County at the time of the abduction and
that the child was to be returned to Fairfax County pursuant to a
valid and enforceable Fairfax custody order.  The harm
contemplated by Code   18.2-49.1(A) was clearly established as
occurring in this locus.  Thus, the trial court properly found
venue in Fairfax, Virginia.
    For the foregoing reasons, we affirm the decision of the
trial court.
                                                                                                                  Affirmed.                                

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