State v. Doyle

design, acts, evidence of similar or an evi-

dentiary plan pattern.

JOHNSON, J., I, II, concurs PARTS

and III. Idaho, Plaintiff-Respondent,

STATE of DOYLE,

Thomas Patrick

Defendant-Appellant.

No. 18852.

Supreme Court of

Boise, January 1992 Term.

April Trimming,

Alan E. County Ada Public Defender, Boise, defendant-appellant. for EchoHawk, Larry Gen., Atty. Michael J. Kane, Boise, Deputy Atty. (argued), Gen. plaintiff-respondent. BAKES, Chief Justice. Doyle

Defendant (Doyle) Thomas charged by information with the crime of felony pursuant interference Doyle to I.C. filed a motion to dismiss for lack of tion on the basis that he committed no acts within the State of Idaho would con- stitute under a crime Idaho law. The trial court denied the motion to dismiss. guilty plea charge then entered a pursuant plea agreement September, In to a conditional the divorce became reserving right appeal to trial final, Doyle apparently by default since did ruling jurisdictional on the court’s issue. court, appear Cindy not and before the was We affirm. custody awarded sole and exclusive Shawn. following dispute. facts are not in wife, Doyle Cindy, and his former had a October, 1989, In Doyle was arrested child, Doyle, subsequently and were Shawn Lexington, Kentucky, fugitive aon war- d’Alene, Idaho, May married Coeur on for in the felony rant theft committed differences, couple 1985. The had and Cindy by of Iowa. was contacted Lex- Vancouver, Washington. Doyle moved to 27, 1989, ington and on October authorities However, Cindy and Shawn to continued in Lexington custody arrived and took Boise, 14, 1988, live in Idaho. On March Shawn. Doyle divorce in the Ida- filed for State of ho. Doyle prosecu- Idaho for was returned to April Doyle Cindy agreed felony child charge tion on temporary arrangement to a con- He filed a motion to dismiss interference. cerning agree- The terms of Shawn. argued of jurisdiction. Doyle for lack each ment were that would have Cindy nor neither he nor Shawn because weeks, custody of Shawn for two and that act of were Idaho when they exchange custody every two would occurred, must may have such act have Pendleton, Oregon. agree- This weeks Oregon occurred the State of or either approved by and ordered ment was Washington. the State of under Idaho court. alleg- of Idaho was 1.C. the State Cindy exchanged custody Doyle and prosecute edly jurisdiction to without according agreement ap- to for Doyle’s denied mo- action.1 The trial court months, proximately per two their dismiss, finding the state tion to agreement, Cindy to delivered Shawn 19-302 be- have under I.C. § July Doyle in Pendleton on 1988. How- cause the crime was consummated within ever, July when re- on Idaho.2 Shawn, pick up to turned to Pendleton permission for Doyle then filed a motion up Doyle failed to show and return Shawn appeal to the trial court’s interlocu- from 22,1988, July Cindy spoke to on Cindy. On to dismiss. tory denying order his motion Doyle who at that telephone with was by denied the trial This motion was also Washington. time in after pled call, Doyle Doyle subsequently guilty locate to Cindy could not either court. months, interference, reserving fifteen until Octo- felony Shawn for over child ber 1989. ruling court’s right appeal to the trial On jurisdictional issue. complaint against August a On was sentenced County filed with the Ada Dis- Doyle was term of Department for a of Correction felony trict Court for years nor one-half more less than one and and a custody interference warrant years, trial court retain- than five with the for his arrest. issued without punish- commenced 2. 19-302. Offenses liable to All offenders public of- the commission state.—When ment.—(1) Every person Jurisdiction—venue. fense, is consum- the state commenced without state, punishment the laws of this is liable boundaries, the defendant is mated within its therein, public committed him offense state, punishment in this therefor liable cognizable exclusively except law where it is at the time of the of the state was out United States. Evidence courts of the charged. If he con- commission of the offense prosecutable act was committed that a through the interven- this state summated it in jurisdictional requisite, of Idaho is a the state agent, guilty tion of an innocent or beyond proof such must shown himself, directly proceeding from means doubt. reasonable county in which is in the such case the venue offense consummated. stolen, ing jurisdiction days. property for 120 It found with the judgment appeal is taken. state. who, being 3.All out note our We first standard re aid, encourage, cause an- advise or Subject presents view. a crime to commit within question a law over which we exercise this state and are afterwards found State, free Hanson v. Idaho review. 121 therein. (1992); Harris, 468 826 P.2d Gage v. This it in Court stated that must be 451, 807 (Ct.App.1991). 119 Idaho language ferred from the Subsection 1. law, At jurisdiction common a state’s legislature of the above statute that “the over by crimes was limited the that notion punish any person intended to who should only each crime one had situs and that any portion commit of a within crime the jurisdiction. state of the situs had W. the in state to same extent and the same Scott, LaFave & A. Criminal Substantive though as manner all of the acts which Law, I, (1986). 2.9 at Generally, Vol. 180 § the crime constitute had been committed terms, if the crime defined in the is such Sheehan, here.” 33 Idaho State place situs of the crime is the of the act or 561-62, 196 P. 534 See also omission, the and if definition of the crime 862, 864, Cochran, State 96 Idaho 538 result, particular includes a situs then the (1975) (“The P.2d is place the of the result. Id. at prove kidnapping failed that alleged to Idaho, County, juris occurred Kootenai However, many states have enacted stat- diction not exist in the Idaho to utes which extend the limits of traditional try case.”); State v. jurisdiction. territorial As noted Profes- 881 (Ct.App. sor LaFave: 1985)(“Where intent to element of departing Without from the territorial or conceal the child was committed within principle jurisdiction—some conduct or Idaho, may defendant be with result must still occur within state— though kidnapping even the actu a number of states have statute en- al outside concealment occurred larged jurisdiction by their criminal mak- state.”). ing (other other local conduct or results A further definition of an Idaho court’s particular than the one act or omission jurisdiction can found in territorial be I.C. result common law considered 19-301. This statute was amended in § vital for the determination of situs of language include the that “[e]vi- crime) jurisdiction. the basis for If prosecutable a dence that act was commit- such conduct its effects happen within jurisdic- ted the state of is a within state, given state jurisdiction. proof such requisite, tional must be (footnotes omitted). Id. at 186 Under these beyond shown a doubt.” Al- reasonable statutes, types of a state will have “prosecutable the term act” has not prosecute tion to a any crime if element legislature been defined or this the crime occurred within its boundaries. Court, that, appear would to be consist- it approach, Reflecting this 18-202 18-202, “prosecutable ent with I.C. act” § jurisdiction sets forth Idaho’s territorial as means essential element of the crime. follows: statute, A third I.C. allows a § Territorial over accused punishment to be liable for with- defendant punishment.—The persons fol- liable public of a Idaho “when the commission lowing persons punishment are liable to offense, commenced without state is under the of this state: laws boundaries____” consummated within its commit, persons 1. All who in whole 19- statutes similar I.C. States with part, any or in crime within this state. interpreted to mean them have larceny robbery 2. All commit will exist if the conduct who bring to, or a criminal out of this are formed outside the state caused Paul, result or effect the state.3 See State, (Alas- (Ct.App.1990). Wheat v. Ct.App.1987) (“[T]he ka commission interpretation harmony an Such crime is consummated in Alaska when general rule “the requisite require crime is defined to result as completed may elements of the crime result necessary element and when that jurisdictions, committed in different state.”); Duffy, occurs inside an such cases state which essential (Ct.App.1979) Ariz. may part of crime is committed take (Fraudulent transaction was consummated jurisdiction.”4 21 Am.Jur.2d Criminal Law property brought within Arizona when Findley 345 at accord into as a fraudu- Arizona direct result of Ark. S.W.2d Indiana); misrepresentations lent in State 464, Lane, v. 112 771 P.2d Wash.2d State Winckler, (S.D.1977) 260 v. N.W.2d 356 144, 234 1150 v. Neb. Schaaf (The of crime assault consummated Poland, v. 449 N.W.2d 762 A place). where the desired effect takes 269, Ariz. 784 This 132 645 P.2d use of I.C. 19-302 has made similar been § acknowledged in the general rule is also Shaw, in this Court that which states a Model Penal Code 897, (1975), 250 that 539 P.2d which found if “either the con- prosecuted son can be subject the defendant was the of the offense or duct which is an element pay tion of the trial court for failure to is an with- the result which element occurs living in Ida- support child his children (U.L.A.) Model Code in the State.” Penal he had despite ho the fact that never been 1.03(l)(a). §

in Idaho. structure, statutory an Given this However, given language the in I.C. juris Idaho court will have that requiring and I.C. 19-301 18-202 § § any if essential ele diction over a crime part” the “in in crime must occur whole or result, crime, including the ment of the state, “prosecuta some within the or that within Idaho. occurs act” must have been committed within ble ele we must determine the essential in language the the 19-302 I.C. § custody inter of crime of child ments interpreted must mean the result be 18-4506, ference as it is defined I.C. § crime must an essential element any such element occurred and whether can be of the offense before result Idaho. to have been “consummated” construed Any interpretation other within Idaho. First, regarding the elements I.C. a direct conflict between would create The crime of custody interference. child 18-202, 19-302. Un 19-301 and See §§ § defined in I.C. custody interference is Ap Board Tax ion R. Co. v. Pacific 18-4506(1) as: § 811, 901, 808, 654 P.2d peals, 103 Idaho custody interfer- person A commits child (1982) (“Statutes pari are in mate which intentionally and if together end ence ... ria are to be construed effected.”); authority: without lawful will be legislative intent § I.C. we this case based its decision on interpreted similar states have statutes 3. Other speculate on the of Idaho’s terri- need not limits allowing jurisdiction when to I.C. 18-202 as absent I.C. torial state, see or occurs within the effect result 56, Top, on 243 Mont. State v. Kills statute, Although relying any specific not on Caruso, (1990); People I11.2d State, Appeals, Idaho Court Maxfield at 519 N.E.2d Ill.Dec. (1985) held that Idaho a similar conclusion state reached least one prosecution for homicide "the venue permits any exercise statute which without county the cause of proper where either conduct extraterritorial when county death or in where death is inflicted See Rios v. a result the state. causes can- Maxfield thus [Citation ensues. omitted]. (citing (Wyo.1987) prevail Strassheim that the district on his contention jurisdiction____” L.Ed. 735 at Daily, S.Ct. court lacked 221 U.S. However, 700 P.2d at 120. (1911)). court because the trial (a) Takes, away, keeps exposed prosecution or with- him to criminal under entices 18-4506(1). or any holds minor child from another or institution Next, determine if we must element custody, joint custody, visitation of child crime interference (Emphasis parental rights,____ Regarding occurred first added.) element, intent, Doyle’s since there was definition, of child never Under this elements evidence entered Ida- (1) prior anytime an inten- ho at or after he interference include: took custo- July 2, 1988, on (2) keeping, dy of taking, enticing away, or when tional Shawn to (3) unlawfully was to return deprives an find that he formed we cannot custody. custodian of there intent to withhold Shawn within the State type a distinction exists between of Idaho. But which will result unlawful “acts” cf. (Ct.App.1985). First, deprivation custody. depriva- can if tion be caused the defendant takes or element, Regarding the second away the child entices from the child’s law- keeping withholding, comparison type ful custodian. These acts are af- nonsupport is useful. Non acts firmative which the defendant makes support in is a crime omission which the his on own accord. The crime of child duty the required state where is to be custody by interference as these defined performed jurisdiction. has is a crime acts of commission. act, duty “If is a to there failure Second, deprivation the caused if can be is, duty perform purpose for the keeps the defendant the withholds child jurisdiction, tantamount to an act.” the from child’s lawful Such a custodian. legally Thus wherein the act is the state implies definition that the had defendant required performed to be has time, custody point lawful at one in but at tion over a crime based on nonaction. expiration period of that custodial did legally wherein the act is Thus the state return custody not to the custodian. lawful performed required jurisdiction to be Since situation the is defendant based on over the crime nonaction. This usually required to act of a court way means, example, for that the crime of order, types these of acts are not affirma- non-support family of the is committed acts. The tive crime as defined this duty support where the should be dis- duty to act is a crime of omission.5 charged—where family lives. case, Doyle this In or entice A. (citing not take W. & Scott at 185 Re- LaFave However, away 70, Cindy. from he did Conflict of statement of Laws com- (footnotes custody (1934)) omitted) or withhold (empha- of Shawn from ment a Cindy added). temporary custody violation of the find sis Because we with- Therefore, agreement. facts of child from holding par- under the the custodial case, are crime we involved with the ent in of a court order is no differ- violation custody withholding support is defined child interference as it ent than the order, temporary family as an omission. Under the cus- of a court violation we agreement, duty withholding tody Doyle keeping had to return conclude that occurs, jurisdiction, Cindy purposes of Shawn to on where required His failure Shawn de- to return the 1988. to return the defendant Cindy rights parent. of her prived custodial child to the custodial Cochran, against parent. the other 5. In 96 Idaho which is committed McCormick, (Minn. this Court treated the "continued See State v. 273 N.W.2d 624 text, 1978). in the of the children” as an affirmative act As noted we find the crime retention closely must occur within the State of Idaho for of child interference to be more which However, jurisdictional purposes. nonsupport, the defen- related omission, crime of a crime kidnapping, kidnapping. in Cochran was than the crime of dant with rather child, Therefore, against language is committed rather above in Cochran has interference, bearing our decision in this case. than no on required holding deprivation to re- and the of the custodial Pendleton, Oregon. Cindy rights, Therefore, turn Shawn to occurred un- such, As that the second ele- 19-302, maintains der I.C. 19-301 and §§ crime, keeping ment of the withhold- state had over the crime. However, ing, Oregon. occurred in as not- argued appeal Doyle On that I.C. 18- commentator, duty sup- ed one “The 4506(3) is unconstitutional. be- port dependent, is considered to follow the argument cause he failed to raise the support forthcoming so that if no lower court we do not address the issue. parent husband or can be convicted even Arave, Sanchez though he has never been in the forum (1991)(The constitutionality of a stat- George, Applica- state.” Extraterritorial ute will not considered for the first time be Legislation, tion Penal 64 Mich.L.Rev. Martin, appeal); on Klien, accord 808 P.2d 1322 Affirmed. Wash.App. Warrick, 176 Neb. 125 N.W.2d McDEVITT, JJ., concur. JOHNSON (1964). Therefore, continuing compari- cases, BOYLE, J., nonsupport duty fully prior son concurred to his resignation return the child to the custodial March parent. follows custodial Idaho, Doyle’s when returned to BISTLINE, Justice, dissenting. duty to her and return Shawn followed should reversed. The conviction gave court over his underlying facts and circumstances are duty. withholding in violation of that dispute correctly portrayed and are Not did the occur within and, opinion, majority Justice’s Chief Idaho, but the result occurred in Idaho as hence, repetition. there is no reason for 897, Shaw, 96 Idaho well. See State v. majority, this Court has As noted (1975). States which have ad that it must be inferred from stated dressed this issue have reached a similar language of 1 of I.C. 18-202 subsection § 1007, State, 734 P.2d conclusion. Wheat v. punish any legislature that “the intended to (Alaska (“[T]he Ct.App.1987) commis portion of a any should commit who sion of a crime is consummated Alaska state to the same extent crime within this require crime is defined to when the though all of and in the same manner as necessary result as a element and when the crime had the acts which constitute state.”); result occurs inside the Peo Sheehan, here.” v. been committed State 376, Caruso, Ill.Dec.

ple 119 Ill.2d 553, 561-62, 196 P. 33 Idaho (1987)(“[Jjurisdic 519 N.E.2d in the on the State’s interest tion is based imposed.”); performance duty of the Rios de- recently, two cases have been More (Wyo.1987) P.2d the rule set forth cided concur with child had its (“[T]he failure to return the In the first Sheehan. Wyoming. The ad in the of effect Cochran, 96 Idaho here, and there is no result occurred verse jurisdiction exist- found that no this Court nonsupport from the substantial distinction kidnap- charged with ed over a defendant cases____”); State, 619 S.W.2d Roberts v. violation, the con- alleged ping because (“The of (Tex.Crim.App.1981) act children, occurred tinued retention retaining in Colorado appellant [the child] However, in state of Idaho. outside the judgment of a valid resulted violation [a] Chapman, 108 Idaho court____ reasons, these Texas For Appeals of (Ct.App.1985), the Court of Texas that, in on the basis distinguished Cochran cause____”). of this kid- an element of Chapman, spe- Idaho. napping did occur within the second Accordingly, we conclude that Bakes comprised of Justice panel child cial court of the crime of third elements and McFadden, Judge, Justice interference, acting as Chief keeping or with- Towles, Judge Tem., opinion Pro in an another or institution Bakes, authored stated: custody, joint custody, Justice visitation or parental rights,____ (Emphasis However, present case there was added.) produced by substantial evidence testi- mony preliminary hearing at case, by withholding the minor proof made an offer of to the district Cindy, child Shawn from in violation court that the essential element of ‘intent joint custody arrangement, the defendant parent, or conceal it its may Thomas have committed elements guardian person having or other lawful the crime of child interference. thereof,’ care of control defendant, neither the nor existed while the defendant was within agent defendant, committed of Idaho. The evidence act within the state introduced and offered indicated af- According temporary custo- ter temporary defendant lost on the cus- dy arrangement, Cindy was to have custo- tody hearing, began making plans dy period begin- for a Shawn two week preparations in away Idaho to steal ning July By turning affairs, child. He up wound his business 16, 1988, Cindy over to Thomas passports obtained for himself and the unlawfully deprived Cindy of her custodial child, away stored property, his and va- rights in violation of I.C. 18-4506. How- § cated secretly his residence no- without ever, exchange since Thomas was to custo- tice. Where the element of intent Pendleton, dy Cindy Shawn with Ore- keep or conceal the child was committed gon, place deprived where [sic, Idaho, the defen- conceived] Pendleton, her of Shawn was Ore- may dant kidnapping gon. even the actual conceal- ment occurred outside the state. Therefore, none of the essential elements of the crime occurred within the state of State v. 108 Idaho at Idaho, and the defendant’s conduct did not Although P.2d at 881. Chap- neither the provision come within the of I.C. 18- man nor specifically Cochran decisions ad- 4506(1)and I.C. 18-202 and 19-301. See 18-202, given §§ dressed I.C. the result of Cochran, light both cases in of that statute and its (“The (1975) P.2d 793 interpretation Sheehan, it is clear that prove alleged kidnapping failed to that the jurisdiction will exist in Idaho an if Idaho, County, juris occurred in Kootenai essential element the crime occurred diction did not exist in the state Idaho to within Idaho. Accord v. Kills on case.”); try this 108 Top, 243 Mont. 793 P.2d 1273 (Ct.App. Idaho 702 P.2d Lane, State v. Wash.2d 1985)(“Where the element of intent to State, Ross v. So.2d or conceal the child was committed within (Fla.Dist.Ct.App.1982). Idaho, may the defendant Accordingly, we must determine whether Idaho, kidnapping even the actu Thomas committed of the essential ele- al concealment occurred outside custody ments of the crime of child inter- state.”); People Gerchberg, 131 Cal. ference within The crime of child App.3d Cal.Rptr. custody interference is defined in 18- 4506(1) as: distinguishable The facts case are person A commits child interfer- State, from those in Wheat ence if the intentionally ... and (Alaska 1987), cited a case authority: without lawful case, kept In State. the child was

(a) Takes, away, keeps entices or with- from her at the mother who was Alaska keeping.6 holds minor child from a time of the The Alaska Court years age 6. AS 11.41.330 states that custodial interference child under 18 or a relative of an when, being knowing incompetent person occurs "A ... relative of a and that the jurisdiction found under a statute similar to 19-302 on I.C. the basis “[the child] the effect Whatever of the Uniform Child kept ‘from a lawful custodian.’ It is (a Custody Jurisdiction Act matter which prohibited grava- this result ... is we here explore) need not it does not offense, precisely men of the it is and this pun- confer on California result that occurred in Alaska.” 734 P.2d criminally ish a man for an intent formed added). However, (emphasis at 1010-11 as outside California and followed con- above, case, result in mentioned fully duct outside this state. deprivation Cindy’s rights, custodial Cal.Rptr. 131 Cal.App.3d at at occur did not within Idaho. case, specific facts of this where the The Appeals Alaska Court Wheat v. arrangement provided for (Alaska 1987), cited delivered to be to the defendant at Pendle- case in turn Idaho’s Cochran and State v. ton, Idaho, Oregon, outside the state Shaw, the defendant to re-deliver child to mention but made no whatever blue mother also outside the state of opinion Chapman. ribbon In defendant not consummate crime of concluding opinion, its the Alaska court the child interference within that, stated “to the extent that differences when, remaining state of outside Ida- statutory applicable provisions do not ho, he withheld the child his lawful McCormick, distinguish Gerchberg, custodian. present from the we find Cochran Moreover, I find that out-of- do not unpersuasive those and decline to decisions majority compel state cases cited follow 734 P.2d at 1012. It went them.” authority different result. Where piece only plain on for “It is a short to add: available, controlling, no there is that, circumstances, in these Arizona would elsewhere,

need to look other than satis itself to have criminal consider curiosity may happened as to have fy what occurring in over Alaska.” acts Alaska elsewhere. states of and Cali at 1012. fornia, example, on almost identical cir It is much doubted that this Court has diametrically opposite cumstances reached heretofore, hereafter, paint with so or will People Gerchberg, 131 Cal. results. broad a brush. Cal.Rptr. App.3d Califor Appeals said: nia Court long

It has been the settled law of this punish

state that ... California cannot taking place outside

for conduct of Cali- has,

fornia unless the defendant acts which committed amount attempt least an to commit a crime to at MURRAY, Petitioner-Appellant, Leon R. law. punishable under California Idaho, Respondent. STATE most, sending for the At the his acts were with an children consistent No. 19371. custodial recognize intent Susan’s Appeals of Idaho. Court her rights by returning the children to period agreed visitation after the March York, later, That in New over.

changed his and did not return the intent prosecu- him to cannot

children in a California criminal court.

tion takes, protracted so, incompetent legal right has no to do son entices, incompetent added). keeps period." (Emphasis that child with intent to hold from a lawful custodian son

Case Details

Case Name: State v. Doyle

Court Name: Idaho Supreme Court

Date Published: Apr 1, 1992

Citation: 828 P.2d 1316

Docket Number: 18852

Court Abbreviation: Idaho