People v. McBride

• Decision Date: 02 May 1994
• Docket Number: Docket No. 151898
• Citation: People v. McBride, 516 N.W.2d 148, 204 Mich.App. 678 (Mich. App. 1994)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Dillard McBRIDE, Defendant-Appellee.
• Court: Court of Appeal of Michigan

Page 148

516 N.W.2d 148

204 Mich.App. 678

PEOPLE of the State of Michigan, Plaintiff-Appellant, v.Dillard McBRIDE, Defendant-Appellee.

Docket No. 151898.

Court of Appeals of Michigan.

Submitted Jan. 18, 1994, at Detroit.

Decided May 2, 1994, at 9:00 a.m.

Released for Publication June 10, 1994.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol.Gen., John D. O'Hair, Pros.Atty., Timothy A. Baughman, Chief of Research, Training, and Appeals, and Rita H. Lewis, Asst. Pros.Atty., for the People.

Kraizman & Kraizman by Jack J. Kraizman, Detroit, for defendant.

Before MARK J. CAVANAGH, P.J., and MARILYN J. KELLY and ERNST, ^* JJ.

MARILYN J. KELLY, Judge.

The prosecutor appeals as of right from an order dismissing a charge of parental kidnapping against defendant, Dillard McBride.M.C.L. § 750.350a(1);M.S.A. § 28.582(1)(1).We vacate the order and reinstate the charge.

I

Mary Ann McBride and Dillard McBride, a married couple, separated in September, 1991.On September 25, 1991, an ex parte order was entered in Wayne County granting sole custody of their two children to Mrs. McBride.The Oakland County Sheriff's Department received a copy of the order on October 4, 1991.It did not serve defendant with it before the October 17, 1991, incident which formed the basis for the parental kidnapping charge.However, Mrs. McBride testified that she told defendant about the order well before the incident occurred.

On October 17, 1991, Mrs. McBride took the children to visit their father at his Rochester Hills house.Because she did not trust his motives in requesting the visit, she remained at the house.However, Mr. McBride managed to abscond with the children.He left behind a note which, according to Mrs. McBride said:

That he had to take the kids to teach me a lesson, and he felt that I took the children away from him, and I refused to work the marriage out with him and he had no choice, and he was doing what he thought was best for the kids to take them out of state.He said he was going to Canada, but he went to California.

One month later, Mrs. McBride was reunited with the children at a children's home in California where they had been left.

Defendant was charged with parental kidnapping.Defense counsel opposed the bindover because defendant had never been served with the custody order and lacked "official notice" that Mrs. McBride had obtained sole custody of the children.The magistrate concluded that there was probable cause, reasoning that Mrs. McBride had put defendant on notice when she informed him that an order granting her custody had been entered.Defendant was bound over for trial in Detroit Recorder's Court.

Defendant moved for dismissal on the basis that he had not been served with the ex parte order by the sheriff's department, relying on MCR 2.105andMCR 2.102.The trial judge agreed and dismissed the case.

On appeal, the prosecutor contends that notice of the order of custody is not an element of the offense of parental kidnapping.Furthermore, the evidence presented at the preliminary examination supported the magistrate's bindover decision, and the trial court erred in dismissing the parental kidnapping charge.

II

This Court's review of the circuit court's analysis of the bindover process is de novo.We must redetermine if the magistrate committed an abuse of discretion in finding probable cause to believe that the defendant committed the offense charged.We decide whether the evidence presented to the magistrate was sufficient to establish, as a matter of law, that the offense charged had probably been committed by defendant.People v. Neal, 201 Mich.App. 650, 654, 506 N.W.2d 618(1993);People v. Flowers, 191 Mich.App. 169, 174, 477 N.W.2d 473(1991).There must be evidence of each element of the crime charged or evidence from which the elements can be inferred.The magistrate need not establish guilt beyond a reasonable doubt.Id., p. 179, 477 N.W.2d 473.

The parental kidnapping statute states:

An adoptive or natural parent of a child shall not take that child, or retain that child for more than 24 hours, with the intent to detain or conceal the child from any other parent or legal guardian of the child who has custody or visitation rights pursuant to a lawful court order at the time of the taking or retention, or from the person or persons who have adopted the child, or from any other person having lawful charge of the child at the time of the taking or retention.[M.C.L. § 750.350a(1);M.S.A. § 28.582(1)(1).]

Whether official notice was required in order to permit the magistrate to bind over the defendant depends on the intent of the Legislature.The language of the statute is the best source for determining legislative intent.People v. Bewersdorf, 438 Mich. 55, 73, 475 N.W.2d 231(1991).All provisions of the Penal Code are construed according to the fair import of their terms.People v. Thomas, 438 Mich. 448, 454, 475 N.W.2d 288(1991);People v. Sherman, 188 Mich.App. 91, 93, 469 N.W.2d 19(1991).

A fair reading of this statute reveals no requirement that a parent be formally served with a custody order before he or she can be charged with parental kidnapping.It requires only that the party from whom the child is taken have "custody or visitation rights pursuant to a lawful court order at the time of the taking or retention."At the time defendant took the children, an ex parte order granting sole custody to Mrs. McBride had been entered.

The statute also establishes a specific intent element:

[T]he intent to detain or conceal the child from...