People v. Pratarelli
| Decision Date | 27 February 2020 |
| Docket Number | Court of Appeals No. 18CA1121 |
| Citation | 471 P.3d 1177 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Marcello Enrique PRATARELLI, Defendant-Appellant. |
| Court | Colorado Court of Appeals |
Philip J. Weiser, Attorney General, Paul E. Koehler, First Assistant Attorney General, Daniel E. Rheiner, Assistant Attorney General Fellow, Denver, Colorado, for Plaintiff-Appellee
The Noble Law Firm, LLC, Antony Noble, Taylor Ivy, Lakewood, Colorado, for Defendant-Appellant
Opinion by JUDGE DUNN
¶ 1 Defendant, Marcello Enrique Pratarelli, appeals his judgment of conviction entered on jury verdicts finding him guilty of first degree kidnapping, second degree kidnapping, use of a stun gun, and third degree assault. Because insufficient evidence supports it, we vacate the first degree kidnapping conviction. But we affirm the remaining convictions.
¶ 2 Mr. Pratarelli and his wife separated in September 2016. After the separation, they agreed to jointly parent their three-year-old daughter. But they didn't obtain a parenting time (or custody) order. Instead, they proceeded under an informal, flexible parenting arrangement that varied from week to week, depending on their respective schedules. Under this arrangement, on days that Mr. Pratarelli parented their daughter, he usually kept her overnight and returned her to daycare the next morning.
¶ 3 At trial, Mr. Pratarelli and his wife agreed that, consistent with their parenting arrangement, Mr. Pratarelli picked their daughter up from daycare on the afternoon of November 7, 2016. Mr. Pratarelli testified that later that night he spoke with his wife on the telephone and confronted her about text messages she had exchanged with another man. After the call ended, Mr. Pratarelli explained that he "packed [his daughter] up in the car," believing a drive would help her fall asleep. Once in the car, Mr. Pratarelli decided to drive to his wife's house to continue the confrontation about the texts.
¶ 4 When he reached his wife's house, he waited in his car with his daughter asleep in the back seat. His wife testified that, when she arrived home, Mr. Pratarelli opened her car door, pushed her against the console, stunned her with a taser, grabbed her by the hair, and dragged her down the driveway. Two neighbors testified that they heard someone screaming, went outside, and saw Mr. Pratarelli run to his car and drive away.
¶ 5 Back in the car with his still-sleeping daughter, Mr. Pratarelli first decided to drive to El Paso, Texas (where he testified his sister lived) but ultimately drove to Mexico. While there, Mr. Pratarelli and his wife communicated via telephone and email. At trial, his wife testified that she begged Mr. Pratarelli to return their daughter, and she "assure[ed] him that [she] would drop all of the charges, and he would have unsupervised visitation." She testified she offered these concessions to get her daughter back. She explained that Mr. Pratarelli eventually said, "okay, we'll get it in writing," and the two arranged to meet in Mexico. They did, and his wife then returned to the United States with their daughter.
¶ 6 After Mr. Pratarelli returned to Colorado, he was arrested and charged with second degree kidnapping, use of a stun gun, third degree assault, and criminal mischief. These charges all related to Mr. Pratarelli's altercation with his wife.
¶ 7 Months later, the prosecution filed an amended complaint and information charging Mr. Pratarelli with two counts related to his daughter — first degree kidnapping and violation of custody. The prosecution later dismissed the violation of custody charge.
¶ 8 The jury acquitted Mr. Pratarelli of criminal mischief, but otherwise convicted him as charged. The district court then sentenced Mr. Pratarelli to a total of nine years in prison for the crimes related to his wife and, consecutive to that, eleven years for first degree kidnapping.
¶ 9 Every parent has a fundamental right to the care, custody, and control of their child. Troxel v. Granville , 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) ; accord In re Parental Responsibilities Concerning B.J. , 242 P.3d 1128, 1135 (Colo. 2010). " ‘Legal custody’ may be taken from a parent only by court action." § 19-1-103(73)(a), C.R.S. 2019; see also § 14-10-108, C.R.S. 2019 (); 14-10-124, C.R.S. 2019 ().1 Without such an order, parents share unrestricted custodial rights. See Armendariz v. People , 711 P.2d 1268, 1270 (Colo. 1986). So, absent a custody order, a parent generally may not be convicted of kidnapping his own child. See Commonwealth v. Beals , 405 Mass. 550, 541 N.E.2d 1011, 1013 (1989) (); 1 Am. Jur. 2d Abduction and Kidnapping § 35, Westlaw (database updated Jan. 2020). While some states have legislated otherwise, see, e.g. , Ariz. Rev. Stat. Ann. § 13-1302(A)(2) (2019), Colorado has only directly addressed parental kidnapping in its violation of custody order statute. See People v. Armendariz , 684 P.2d 252, 257-58 (Colo. App. 1983) (Tursi, J., dissenting in part) (), aff'd in part and rev'd in part , 711 P.2d 1268 (Colo. 1986) ; see also Legislative Council of the Colo. Gen. Assembly, Preliminary Revision of Colorado Criminal Laws, Research Pub. No. 98, at 20-22 (Nov. 1964) (); Ch. 121, sec. 1, § 40-3-304, 1971 Colo. Sess. Laws 422 ().
¶ 10 Consistent with this rule, our supreme court has concluded that "[i]n the absence of a court order granting legal or physical custody," parents "share[ ] an equal right to the custody of the[ir] child." Armendariz , 711 P.2d at 1270. And because a parent with legal custody of a child cannot ordinarily seize that child "without ... consent" (an element of second degree kidnapping), our supreme court has held that a parent with legal custody cannot commit second degree kidnapping. Id. (); cf. Lee v. People , 53 Colo. 507, 511, 127 P. 1023, 1025 (1912) (); People v. Metcalf , 926 P.2d 133, 141 (Colo. App. 1996) ().
¶ 11 Despite this constitutional overlay and the undisputed fact that Mr. Pratarelli and his wife had no custody order, the interplay between the first degree kidnapping charge and Mr. Pratarelli's unrestricted custodial rights was never considered at trial. Nor do the parties do so here. Indeed, neither Mr. Pratarelli nor the People address how Mr. Pratarelli could "take possession of" (that is seize) his daughter when he already had the unrestricted legal right to her care, custody, and control. See Metcalf , 926 P.2d at 137 (); Webster's Third New International Dictionary 2057 (2002) ("seize" means "to take possession of"); see also § 19-1-103(73)(a).
¶ 12 But because the parties don't address whether a parent with unrestricted physical and legal custody can seize his own child under the first degree kidnapping statute, we turn to Mr. Pratarelli's sufficiency challenge.
¶ 13 Mr. Pratarelli contends that the prosecution presented "no evidence" that he "forcibly" seized and carried his daughter and, thus, the first degree kidnapping conviction must be vacated. Under the circumstances here, we agree.
¶ 14 We review sufficiency claims de novo. People v. Rediger , 2018 CO 32, ¶ 55, 416 P.3d 893. In doing this, we consider whether the evidence, when viewed in the light most favorable to the prosecution, was "both substantial and sufficient to support the conclusion by a reasonable mind that the defendant was guilty beyond a reasonable doubt." Id. A criminal verdict may not be based on guessing, speculation, or conjecture. People v. Perez , 2016 CO 12, ¶ 25, 367 P.3d 695.
¶ 15 We also interpret statutes de novo. Id. at ¶ 8. In doing so, our primary task is to give effect to the legislature's intent. McCoy v. People , 2019 CO 44, ¶ 37, 442 P.3d 379. To do that, we look first to the plain language of the statute. Id. A commonly accepted meaning is preferred over a strained or forced interpretation. People v. Voth , 2013 CO 61, ¶ 21, 312 P.3d 144. When determining the common meaning of undefined statutory words, we may consider a recognized dictionary definition. See id. at ¶ 23 ; People v. Hunter , 2013 CO 48, ¶ 10, 307 P.3d 1083 ().
¶ 16 A person commits first degree kidnapping if, as relevant here, he "[f]orcibly seizes and carries any person from one place to another" "with the intent thereby to force the victim or any other person to make any concession or give up anything of value in order to secure a release of a person under the offender's actual or apparent control." § 18-3-301(1)(a), C.R.S. 2019.2
¶ 17 The General Assembly didn't define "forcibly" or "fo...
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