People v. Sorrendino, No. 00CA0172.

• Decision Date: 30 August 2001
• Docket Number: No. 00CA0172.
• Citation: 37 P.3d 501
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Joseph SORRENDINO, Defendant-Appellant.
• Court: Colorado Court of Appeals

37 P.3d 501

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Joseph SORRENDINO, Defendant-Appellant.

No. 00CA0172.

Colorado Court of Appeals, Division III.

August 30, 2001.

Rehearing Denied October 11, 2001.

Certiorari Denied January 14, 2002.

Ken Salazar, Attorney General, Kristin W. Dale, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Shann Jeffery, Deputy State Public Defender, Denver, CO, for Defendant-Appellant.

Opinion by Judge DAILEY.

Defendant, Joseph Sorrendino, appeals the judgment of conviction and sentence entered upon a jury verdict finding him guilty of violation of a custody order. We affirm and remand the case with directions. In May 1999, defendant removed his two-year-old son from Colorado in violation of the terms of temporary restraining orders awarding care and control of the child to the mother. Subsequently, defendant was located with the child in Tennessee, arrested, returned to Colorado, and convicted of violating a custody order, a class 5 felony, and violating a restraining order, a class 2 misdemeanor. The court sentenced him to three years of incarceration plus two years of parole in connection with the former crime; the court did not sentence him with respect to the latter crime.

Defendant appeals his conviction and sentence for violating a custody order. He contends that the evidence is insufficient to sustain this conviction because the order he violated would not, as a matter of law, qualify as a "custody order" for purposes of § 18-3-304(2). He also argues that, in any event, his conviction must be reversed because of an erroneous instruction defining "custody order," and that his sentence must be reversed because of prosecutorial misconduct.

As a preliminary matter, we note that, as of February 1, 1999, the General Assembly substituted the phrase "parental responsibilities" for the terms "custody," "custodial," and "custodian," in many of our state statutes. See Colo. Sess. Laws 1998, ch. 310, at 1376-1415. See also § 14-10-103(4), C.R.S. 2000. In this case, the parties proceeded upon the basis of the statutes in effect when the temporary restraining orders were issued in January 1999. Because the General Assembly did not intend to modify or alter legal rights as a result of its change in terminology, see § 14-10-103(4), C.R.S.2000, we likewise proceed on that basis.

I. Sufficiency of the Evidence: Custody Order

Relying primarily on the rule of lenity, defendant contends that the applicable version of § 18-3-304(2) penalized only violations of permanent, not temporary, custody orders. He also contends that a court's award to one parent of "temporary care and control" of a child did not constitute even a temporary custody order. Consequently, he argues that the evidence could not support his conviction for violating a custody order. We disagree.

The applicable version of § 18-3-304(2) penalized:

any parent or other person who violates an order of any district or juvenile court of this state, granting the custody of a child under the age of eighteen years to any person, agency, or institution, with the intent to deprive the lawful custodian of the custody of a child under the age of eighteen years.

See Colo. Sess. Laws 1971, ch. 121, § 18-3-304(2) at 422 (formerly codified at § 18-3-304(2), C.R.S.1998).

The interpretation of statutes is a question of law subject to de novo review. Hendricks v. People, 10 P.3d 1231, 1235 (Colo.2000).

In interpreting § 18-3-304(2), our task is to ascertain and give effect to the intent of the General Assembly. People v. Swain, 959 P.2d 426, 429 (Colo.1998). To discern legislative intent, we look first to the plain language of the statute itself. People v. McNeese, 892 P.2d 304, 310 (Colo.1995). We do not presume that the legislature used language idly. People v. J.J.H., 17 P.3d 159, 162 (Colo.2001). When the statutory language is clear and unambiguous, we interpret the statute as written without resort to interpretive rules and statutory construction. People v. Zapotocky, 869 P.2d 1234, 1238 (Colo.1994).

However, when a statute is susceptible of more than one reasonable interpretation, a court must look beyond the language of the statute and consider other factors, State v. Nieto, 993 P.2d 493, 501 (Colo.2000), such as other statutes bearing on the same or similar subjects, see People v. Harris, 914 P.2d 425, 429-30 (Colo.App.1995),

the object sought to be attained, and the consequences of a particular construction. See § 2-4-203(1)(a), (e), C.R.S.2000. If, after having employed the various aids to statutory construction, we are still unable to discern controlling legislative intent, the rule of lenity requires that we construe the statute favorably to the accused. People v. Pierrie, 30 P.3d 816 (Colo.App.2001).

With these principles in mind, we proceed to an analysis of defendant's arguments.

A. Permanent v. Temporary Custody Order

Here, by its terms, § 18-3-304(2) penalized the violation of "an order . . . granting custody . . ., with the intent to deprive the lawful custodian of . . . custody." There were no words limiting or qualifying the type of custody order covered by the statute. Defendant would have us, in effect, inject the word "permanent" between the words "granting" and "custody." However, a court should not read into a statute an exception, limitation, or qualifier that its plain language does not suggest, warrant, or mandate. See Town of Telluride v. Lot Thirty-Four Venture, L.L.C., 3 P.3d 30, 35 (Colo.2000)

.

Significantly, in other contexts, the General Assembly had used the particular limiting or qualifying language preferred by defendant here. See Colo. Sess. Laws 1994, ch. 329, § 19-3-703 at 2058; Colo. Sess. Laws 1992, ch. 38, § 19-4-130 at 184 ("permanent" custody). Had the General Assembly intended to limit § 18-3-304(2) to only "permanent" custody orders, it could have easily done so by including language to that effect. See Hendricks v. People, supra, 10 P.3d at 1235

(construing statutes allowing defense counsel to raise mental status defense over defendant's objection); Mason v. People, 932 P.2d 1377, 1380 (Colo.1997)(construing speedy trial statute); People v. Luke, 948 P.2d 87, 90 (Colo.App.1997)(construing elements of limited gaming offense).

Our conclusion that the General Assembly did not intend to limit the applicability of § 18-3-304(2) to only permanent custody orders finds support in the purpose underlying the enactment of the statute. Section 18-3-304(2) was designed to deter abductions of children from their lawful custodians: "`But for it, or a similar [statute], there would be no adequate protection for a parent, who has been awarded exclusive custody of a child, against its unlawful seizure and removal to another state by the one ousted of its custody and control.'" People v. Tippett, 733 P.2d 1183, 1189 (Colo.1987)(quoting Lee v. People, 53 Colo. 507, 511, 127 P. 1023, 1025 (1912)). Even temporary custodial rights ought to find protection under the statute, see State v. Chapman, 108 Idaho 841, 702 P.2d 879, 881 (Ct.App.1985)

(child kidnapping); State v. Teynor, 141 Wis.2d 187, 414 N.W.2d 76, 81 (Ct.App.1987)(false imprisonment of child); otherwise, parents would have an incentive, as here, to abduct their children during the pendency of permanent custody proceedings.

Our conclusion is further supported by decisions of courts in other jurisdictions involving analogous circumstances. See People v. Beach, 194 Cal.App.3d 955, 967-71, 240 Cal. Rptr. 50, 56-58 (1987)

(upholding child stealing conviction upon proof that mother took child in violation of interim custody order); State v. Chapman, supra; Commonwealth v. Bachir, 45 Mass.App.Ct. 204, 210, 696 N.E.2d 948, 952 n. 5 (1998)(parental kidnapping conviction based on violation of provision in restraining order awarding temporary custody); State v. Alladin, 408 N.W.2d 642, 646 (Minn.Ct.App.1987)(rejecting claim that temporary custody order could not subject parent to kidnapping charge); State v. Patten, 353 N.W.2d 30, 32-34 (N.D.1984)(temporary custody order qualified as a "custody decree," for purposes of violation of an existing custody decree); State v. Teynor, supra.

Accordingly, we conclude that § 18-3-304(2) penalized violations of temporary and permanent custody orders alike and that the rule of lenity does not apply in this case. See People v. Pierrie, supra

(rule of lenity is applied only to resolve unyielding statutory ambiguity). See also People v. Wiedemer, 852 P.2d 424, 431 (Colo.1993)(rule of lenity may not be applied to defeat the evident intention of the legislature).

B. Temporary "Care and Control" Orders

We also reject defendant's argument that the temporary "care and control" provisions of the restraining order did not constitute a temporary custody order for purposes of § 18-3-304(2). The temporary restraining orders here were issued pursuant to Colo. Sess. Laws 1982, ch. 67, § 14-4-102(2), at 299 (formerly codified at § 14-4-102(2), C.R.S.1998) and Colo. Sess. Laws 1971, ch. 130, § 14-10-108 at 522 (formerly codified at § 14-10-108, C.R.S.1998).

Section 14-4-102(2)(d)(I) authorized courts to include, in temporary restraining orders issued to prevent domestic abuse, provisions "[a]warding temporary care and control of any minor children of either party involved." Similarly, § 14-10-108(2.5) authorized district courts, in domestic relations cases, to "award interim legal custody of a child" as part of a temporary restraining order "when such award is reasonably related to preventing domestic abuse as defined in section 14-10-104 or preventing a child from witnessing domestic abuse."

"Statutes pertaining to the same subject matter must be read in pari materia in order to insure legislative intent is fulfilled and to avoid inconsistency." People v. Harris, supra, 914 P.2d at 429-30. Reading §§ 14-4-102(2) and 14-10-108(2.5) together, ...