People v. Metcalf

• Decision Date: 21 March 1996
• Docket Number: No. 93CA1531,93CA1531
• Citation: 926 P.2d 133
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Randy R. METCALF, Defendant-Appellant. . V
• Court: Colorado Court of Appeals

Page 133

926 P.2d 133

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Randy R. METCALF, Defendant-Appellant.

No. 93CA1531.

Colorado Court of Appeals Div. V.

March 21, 1996.

As Modified on Denial of Rehearing

June 6, 1996. ^*

Certiorari Denied Nov. 12, 1996.

Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Catherine P. Adkisson, Assistant Attorney General, Denver, for Plaintiff-Appellee.

David F. Vela, State Public Defender, Martin Gerra, Deputy State Public Defender, Denver, for Defendant-Appellant.

Opinion by Judge CASEBOLT.

Defendant, Randy R. Metcalf, appeals the judgment of conviction entered upon a jury verdict finding him guilty of second degree kidnapping and violation of custody in the abduction of his daughter from his former wife's home. We affirm.

Defendant's former wife was granted sole custody of their daughter following the couple's dissolution of marriage. Defendant thereafter abducted the child, keeping her for nine months. Defendant was subsequently arrested and convicted of misdemeanor custodial interference in another state, and the child was returned to the former wife.

Defendant abducted the child a second time, but was apprehended within a few hours and the child was again returned to the former wife.

Defendant's former wife and daughter thereafter moved to a different town. Defendant testified that he was concerned for the safety and welfare of his child, and, after following them to the new town, he began conducting surveillance on his former wife and daughter. Defendant testified that he was concerned about harm to his daughter because of his former wife's lifestyle and wanted eventually to apply for legal custody of his daughter.

Despite his concerns for his daughter's welfare, however, he did not contact the police or department of social services, nor seek custody through negotiation or any court proceedings.

One evening, after six weeks of surveillance, defendant observed that the five-year-old child had been left with a male babysitter. He testified that he watched the babysitter yell at his daughter to turn off her bedroom light and go to sleep.

Defendant left the vicinity and returned around 2:00 a.m. When he returned he observed that the door to the residence was ajar. He entered, saw that the babysitter was asleep, picked up his sleeping daughter, and carried her out of the apartment.

Defendant left the state with the child, and she remained with him for four years until he was arrested.

I.

Defendant argues that, under People v. Tippett, 733 P.2d 1183 (Colo.1987), the trial court abused its discretion by failing either to grant his motion for election between the charged offenses or to instruct the jury that it could find him guilty of only one of the two charges. We disagree.

Section 18-1-408(3), C.R.S. (1986 Repl.Vol. 8B) provides that

When two or more offenses are ... supported by identical evidence, the court upon application of the defendant may require the state, at the conclusion of all the evidence, to elect the count upon which the issues shall be tried. If more than one guilty verdict is returned ... the sentences imposed shall run concurrently.

The court is vested with discretion under the statute to either grant or deny a motion to elect. People v. Tippett, supra. See also People v. Bowman, 669 P.2d 1369 (Colo.1983) (trial court has discretion to require an election of counts).

Accordingly, we review the trial court's decision under an abuse of discretion standard. To constitute an abuse of discretion, the trial court's determination must be manifestly arbitrary, unreasonable, or unfair. People v. Ibarra, 849 P.2d 33 (Colo.1993). An abuse of discretion standard of review requires an ad hoc evaluation of the facts and circumstances of each case. See People in Interest of J.L.P., 870 P.2d 1252 (Colo.App.1994).

In People v. Tippett, supra, the defendant stepfather and the natural mother had failed to return the mother's two children to their custodial parent after a periodic visitation, instead leaving the state with the children. The children's mother was present and an active participant during the taking.

The stepfather was charged with second degree kidnapping and violation of custody. The court noted that the criminal charges arose out of a bitter custody dispute and that the stepfather and the children's mother had filed numerous complaints with the department of social services, apparently unfounded, alleging physical abuse of the children by the custodial parent. Further, the stepfather had also introduced evidence to show that he was concerned for the children's safety.

The court stated that, while this evidence did not rise to the level of an affirmative defense to violation of custody, it illustrated the "familial nature of the situation." The court held that the trial court had abused its discretion in denying defendant stepfather's motion to elect between the second degree kidnapping charge and a violation of custody charge.

Here, defendant argues that the evidence concerning an abuse of discretion is even more compelling because he is the natural father of the child abducted, whereas in Tippett, the defendant was merely the stepfather. We disagree.

In contrast with the Tippett situation, defendant had never attempted to contact the local police or appropriate child welfare agency regarding his supposed concerns for the safety and welfare of the child, but instead had set up his own surveillance. Further, defendant had never initiated any proceeding to obtain custody of his daughter.

Also, the only evidence that defendant was motivated by concern for the child's safety consisted of his own self-serving statements. By comparison, the prosecution presented evidence indicating he was not so motivated, but rather that he was attempting to punish his former wife for the marital dissolution.

Furthermore, here, defendant had been granted only supervised visitation rights and acted alone and without assistance of any person who had a court approved right to visitation with the child. In contrast, in Tippett, the court noted that the children's natural mother, who had unsupervised visitation rights and was apparently exercising those rights when the children were taken, was present and an active participant in the taking.

Because the facts of the cases are different, the Tippett ruling does not dictate an election between the offenses in the instant matter. Accordingly, we conclude that the trial court did not abuse its discretion in denying the defendant's motion to elect and in allowing the jury to find defendant guilty of both kidnapping and violation of custody.

Defendant's alternative argument that the violation of custody statute is a specific criminal statute that precludes prosecution under the general kidnapping statute was specifically rejected in People v. Tippett, supra, and we see no basis to distinguish that ruling here.

II.

Defendant next argues that there was insufficient evidence to sustain the conviction for second degree kidnapping because the evidence did not demonstrate that defendant "seized" his daughter within the meaning of the statute. We disagree.

Defendant was charged and convicted of second degree kidnapping under § 18-3-302(1), C.R.S. (1995 Cum.Supp.) which provides that:

Any person who knowingly seizes and carries any person from one place to another, without his consent and without lawful justification, commits second degree kidnapping.

Section 18-3-302(2), C.R.S. (1995 Cum.Supp.) provides that:

Any person who takes, entices, or decoys away any child not his own under the age of eighteen years with intent to keep or conceal the child from his parent or guardian or with intent to sell, trade, or barter such child for consideration commits second degree kidnapping.

Defendant argues that second degree kidnapping under § 18-3-302(1), in contrast to second degree kidnapping under § 18-3- 302(2), requires that the accused "seize" the victim and that a "seizure" incorporates the notion of force. He points out that, under § 18-3-302(2), the offender need only "take" a child not his own. Therefore, he reasons, while the evidence would prove that he "took" his daughter, it did not show beyond a reasonable doubt that he "seized" his daughter, and thus, he cannot be guilty of the charged offense. We are not persuaded.

Black's Law Dictionary 1219 (5th ed. 1979) defines "seize" to mean "to take possession of forcibly, to grasp, to snatch or to put in possession." See also People v. Cardwell, 181 Colo. 421, 510 P.2d 317 (1973) (the offense of kidnapping involves some form of compulsion which, however, need not consist of the use of actual physical force or express threats); Howe v. People, 178 Colo. 248, 496 P.2d 1040 (1972) (to take means to seize).

Here, contrary to defendant's contention that the evidence had to show that some "force" was used in the abduction to constitute a violation of the statute, the word "seize" encompasses a mere taking. See People v. Powell, 716 P.2d 1096 (Colo.1986) (no constitutional requirement that "force" must be an element of the crime nor any indication of legislative intent that "force" must be an element of second degree kidnapping).

Hence, because defendant concedes that the evidence establishes that he "took" the child, sufficient evidence exists to demonstrate that defendant seized the child within the meaning of the statute.

Nevertheless, defendant contends that the General Assembly has criminalized his behavior under § 18-3-304(1), C.R.S. (1986 Repl.Vol. 8B), and that, therefore, the element of "force" must be implied in § 18-3-302(1), C.R.S. (1995 Cum.Supp.). Again, we disagree.

Section 18-3-304(1), C.R.S. (1986 Repl.Vol. 8B) provides that:

Any person, including a natural or foster parent, who, knowing that he has no privilege to do so or heedless in that regard, takes or...