State v. Doyle

¶1dissenting.

¶2The conviction should be reversed. The underlying facts and circumstances are not in dispute and are correctly portrayed in the Chief Justice’s majority opinion, and, hence, there is no reason for repetition.

¶3As noted by the majority, this Court has stated that it must be inferred from the language of subsection 1 of I.C. § 18-202 that “the legislature intended to punish any person who should commit any portion of a crime within this state to the same extent and in the same manner as though all of the acts which constitute the crime had been committed here.” State v. Sheehan, 33 Idaho 553, 561-62, 196 P. 532, 534 (1921).

¶4More recently, two cases have been decided which concur with the rule set forth in Sheehan. In the first case, State v. Cochran, 96 Idaho 862, 538 P.2d 791 (1975), this Court found that no jurisdiction existed over a defendant charged with kidnapping because the alleged violation, the continued retention of the children, occurred outside the state of Idaho. However, in State v. Chapman, 108 Idaho 841, 702 P.2d 879 (Ct.App.1985), the Court of Appeals distinguished Cochranon the basis that, in Chapman, an element of the crime of kidnapping did occur within Idaho. The special court panel comprised of Justice Bakes acting as Chief Judge, Justice McFadden, *917and Judge Towles, Pro Tem., in an opinion authored by Justice Bakes, stated:

However, in the present case there was substantial evidence produced by testimony at the preliminary hearing and made in an offer of proof to the district court that the essential element of ‘intent to keep or conceal it from its parent, guardian or other person having lawful care of control thereof,’ I.C. § 18-4501, existed while the defendant was within the jurisdiction of Idaho. The evidence introduced and offered indicated that after defendant lost on the temporary custody hearing, he began making plans and preparations in Idaho to steal away the child. He wound up his business affairs, obtained passports for himself and the child, stored away his property, and vacated his residence secretly without notice. Where the element of intent to keep or conceal the child was committed [sic, conceived] within Idaho, the defendant may be charged with kidnapping in Idaho, even though the actual concealment occurred outside the state.

¶5State v. Chapman, 108 Idaho at 843, 702 P.2d at 881. Although neither the Chapmannor Cochrandecisions specifically addressed I.C. § 18-202, given the result of both cases in light of that statute and its interpretation in Sheehan, it is clear that jurisdiction will exist in Idaho only if an essential element of the crime occurred within Idaho. Accord State v. Kills on Top, 243 Mont. 56, 793 P.2d 1273 (1990); State v. Lane, 112 Wash.2d 464, 771 P.2d 1150 (1989); Ross v. State, 411 So.2d 247 (Fla.Dist.Ct.App.1982).

¶6Accordingly, we must determine whether Thomas committed any of the essential elements of the crime of child custody interference within Idaho. The crime of child custody interference is defined in I.C. § 18-4506(1) as:

A person commits child custody interference if the person ... intentionally and without lawful authority:

(a) Takes, entices away, keeps or withholds any minor child from a parent or another person or institution having custody, joint custody, visitation or other parental rights,____ (Emphasis added.)

¶7In this case, by withholding the minor child Shawn from Cindy, in violation of the joint custody arrangement, the defendant Thomas may have committed elements of the crime of child custody interference. However, neither the defendant, nor any agent of the defendant, committed any act of withholding within the state of Idaho. According to the temporary custody arrangement, Cindy was to have custody of Shawn for a two week period beginning July 16, 1988. By not turning Shawn over to Cindy on July 16, 1988, Thomas unlawfully deprived Cindy of her custodial rights in violation of I.C. § 18-4506. However, since Thomas was to exchange custody of Shawn with Cindy in Pendleton, Oregon, the place where Cindy was deprived of her custody of Shawn was Pendleton, Oregon.

¶8Therefore, none of the essential elements of the crime occurred within the state of Idaho, and the defendant’s conduct did not come within the provision of I.C. § 18-4506(1) and I.C. §§ 18-202 and 19-301. See State v. Cochran, 96 Idaho 862, 864, 538 P.2d 791, 793 (1975) (“The State having failed to prove that the alleged kidnapping occurred in Kootenai County, Idaho, jurisdiction did not exist in the state of Idaho to try this case.”); State v. Chapman, 108 Idaho 841, 843, 702 P.2d 879, 881 (Ct.App.1985) (“Where the element of intent to keep or conceal the child was committed within Idaho, the defendant may be charged with kidnapping in Idaho, even though the actual concealment occurred outside the state.”); People v. Gerchberg, 131 Cal.App.3d 618, 181 Cal.Rptr. 505 (1982).

¶9The facts in this case are distinguishable from those in Wheat v. State, 734 P.2d 1007 (Alaska 1987), a case cited by the State. In that case, the child was kept from her mother who was in Alaska at the time of the keeping.6 The Alaska Court *918found jurisdiction under a statute similar to I.C. § 19-302 on the basis that “[the child] was kept ‘from a lawful custodian.’ It is this prohibited result ... that is the gravamen of the offense, and it is precisely this result that occurred in Alaska.” 734 P.2d at 1010-11 (emphasis added). However, as mentioned above, the result in this case, the deprivation of Cindy’s custodial rights, did not occur within Idaho. Therefore, on the specific facts of this case, where the custody arrangement provided for the child to be delivered to the defendant at Pendleton, Oregon, outside the state of Idaho, and the defendant to re-deliver the child to the mother also outside the state of Idaho, the defendant did not consummate the crime of the child custody interference within the state of Idaho when, remaining outside Idaho, he withheld the child from his lawful custodian.

¶10Moreover, I do not find that the out-of-state cases cited by the majority compel a different result. Where Idaho authority is available, and is controlling, there is no need to look elsewhere, other than to satisfy curiosity as to what may have happened elsewhere. The states of Alaska and California, for example, on almost identical circumstances reached diametrically opposite results. In People v. Gerchberg, 131 Cal. App.3d 618, 181 Cal.Rptr. 505, the California Court of Appeals said:

It has long been the settled law of this state that ... California cannot punish for conduct taking place outside of California unless the defendant has, within this state, committed acts which amount to at least an attempt to commit a crime punishable under California law.

At the most, his acts in sending for the children were consistent only with an intent to recognize Susan’s custodial rights by returning the children to her after the agreed visitation period was over. That later, in New York, he changed his intent and did not return the children cannot subject him to prosecution in a California criminal court.

Whatever the effect of the Uniform Child Custody Jurisdiction Act (a matter which we need not here explore) it does not confer on California jurisdiction to punish a man criminally for an intent formed outside California and followed by conduct fully outside this state.

¶11131 Cal.App.3d at 620-21, 181 Cal.Rptr. at 506-07.

¶12The Alaska Court of Appeals in Wheat v. State, 734 P.2d 1007 (Alaska 1987), cited Idaho’s Cochrancase and in turn State v. Shaw, 96 Idaho 897, 539 P.2d 250 (1975), but made no mention whatever of the blue ribbon opinion in State v. Chapman. In concluding its opinion, the Alaska court stated that, “to the extent that differences in applicable statutory provisions do not distinguish Gerchberg, McCormick, and Cochranfrom the present case, we find those decisions unpersuasive and decline to follow them.” 734 P.2d at 1012. It went on for a short piece only to add: “It is plain that, in these circumstances, Arizona would consider itself to have criminal jurisdiction over acts occurring in Alaska.” 734 P.2d at 1012.

¶13It is much doubted that this Court has heretofore, or will hereafter, paint with so broad a brush.