People v. Tippett

• Decision Date: 09 March 1987
• Docket Number: No. 86SA3,86SA3
• Citation: People v. Tippett, 733 P.2d 1183 (Colo. 1987)
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Ronald B. TIPPETT, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 1183

733 P.2d 1183

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v.Ronald B. TIPPETT, Defendant-Appellant.

No. 86SA3.

Supreme Court of Colorado En Banc.

March 9, 1987.

Rehearings Denied April 6, 1987.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol.Gen., John Milton Hutchins, First Asst. Atty. Gen., Denver, for plaintiff-appellee.

Richard D. Irvin, Boulder, for defendant-appellant.

VOLLACK, Justice.

In this appeal, the defendant, Ronald B. Tippett, seeks reversal of his conviction by jury trial of two counts of second degree kidnapping, section 18-3-302(2), 8B C.R.S. (1986)[hereinafter 18-3-302(2) ], two counts of violation of custody, section 18-3-304(2), 8B C.R.S. (1986)[hereinafter 18-3-304(2) ], and of his sentence in the aggravated range for the two counts of second degree kidnapping.We affirm the conviction of two counts of violation of custody and set aside the judgment and sentence for the two counts of second degree kidnapping.

I.

The facts which led to the filing of charges against the defendant are not in dispute.The defendant has two children from a former marriage, and his wife, Penny Tippett, formerly Penny Hartman, also has two children from a previous marriage.Neither of them has custody of their children.The Tippetts were allowed to see their children on visitation days pursuant to agreements with their respective former spouses.In the case of the Hartman separation agreement, the district court judge incorporated the parties' agreement into a court order of November 18, 1982.The same district judge presided over the Tippett divorce.During the weekend of April 29, 1983, both the defendant and his wife had visits with their children.The defendant and his wife took the children to the State of Tennessee, without notifying the custodial parents where the children would be, and provided no means for communication between the custodial parents and the children.The defendant sent a letter to his former spouse, Tylene Wilson, in which he stated that he was taking the children, and that he would be in touch with Ms. Wilson in three years.Tylene Wilson and David Hartman, Penny Tippett's former spouse, both reported their children missing when the children were not returned to them on Sunday, May 1.On May 3, 1983, a warrant of arrest was issued for the defendant for two counts of violation of custody.Based on the Colorado arrest warrant, the Federal Bureau of Investigation put out an unlawful flight to avoid prosecution warrant.On May 31, 1983, in Signal Mountain, Tennessee, a suburb of Chattanooga, the FBI located and arrested Ron and Penny Tippett.

On June 21, 1983, the defendant was charged by criminal complaint with four counts of violation of custody pertaining to all four children, and two counts of second degree kidnapping pertaining to the Hartman children.The defendant proceeded pro se but requested, and was granted, a court-appointed advisory counsel.On March 5, 1984, the case proceeded to trial by jury.

At trial, the defendant admitted to taking the four children to Tennessee without the consent of the children's custodial parents.The defendant sought to admit into evidence facts relating to the alleged unfitness of both Tylene Wilson and David Hartman as custodial parents.The defendant also sought to admit into evidence the health and happiness of the children while in his custody in Tennessee.The court limited the evidence to the issue of the defendant's state of mind immediately prior to the time that the defendant took the children, as it related to the affirmative defense to violation of custody, and restricted the evidence as to the character of the custodial parents.

The prosecution claimed that the defendant took the children because he did not like the results of various court proceedings, the recommendation of child psychologists that custody of his own children be continued with his ex-wife, and because Penny Tippett refused to abide by the separation agreement and court order which vested custody of her children with her ex-husband, David Hartman.The defendant asserted the statutory affirmative defense to the charges of violation of custody, section 18-3-304(3), claiming that he reasonably believed his actions were necessary to preserve the children from danger to their welfare.

During the presentation of its case, the prosecution presented the testimony of an attorney, John Gaddis, who represented the defendant in his divorce.Gaddis testified to the existence of an agreement between the defendant and Ms. Wilson concerning custody and visitation rights.The agreement stipulated that the parties would abide by a custody evaluation to be performed by child psychologists.Gaddis testified that he learned that the psychologists were going to recommend that custody be continued with Ms. Wilson.He learned of this recommendation towards the end of April 1983 and communicated this information to the defendant prior to April 29, 1983.The defense objected to the testimony regarding this communication to the defendant on the grounds that it violated the defendant's attorney-client privilege and made a motion for mistrial.The trial court denied the motion.

After the prosecution rested its case, the defendant moved for acquittal on all counts.The defendant claimed that the kidnapping charge was not applicable to this case because Penny Tippett, the mother of the Hartman children, was present while the children were in the defendant's custody.The defendant also claimed that section 18-3-304(2), the violation of custody statute, was unconstitutionally vague as interpreted by the trial court.In addition, the defendant stated that if the court ruled that the prosecution had established a prima facie case as to the charges, the prosecution should be required to elect between the kidnapping charges and the violation of custody charges regarding the Hartman children.The defendant claimed that such an election was required because the same conduct, namely, taking the children, was the basis for both charges.The trial court denied the motion to elect.

The defendant's case primarily consisted of his own testimony and that of Penny Tippett.Their testimony centered on their state of mind as to the welfare of their children prior to the date they took the children to Tennessee.After the defense rested, the prosecution called as a rebuttal witness the judge who presided at the Tippett and Hartman divorce cases.On direct examination, the prosecution asked the judge if he had formed an opinion as to the character for truth and veracity of both Penny Tippett and the defendant.The defendant's objection to this question was overruled, and the judge stated that Penny Tippett was "absolutely not truthful," and that the defendant was not truthful "in the context of this case."After the judge's testimony and cross-examination, the defense made a motion for a mistrial on the basis that it was improper for the judge to give his opinion as to the defendant's truth and veracity in court and because, according to the defendant, the door was not open to this type of testimony as to the truthfulness of the defendant.The court ruled that CRE 405 expressly sanctioned testimony in the form of an opinion and denied the motion for mistrial.

At the conclusion of the presentation of the evidence, the court addressed the issue of selecting the alternate juror.The defense stated that the alternate juror was the last person called.The prosecution did not know the proper method to select the alternate juror.The court suggested the alternate juror be selected by lot.The prosecution agreed to this method, but the defense continued to insist that the proper method was to choose the thirteenth juror.Over the defendant's objection, the alternate juror was selected at random by lot.After the alternate juror was discharged, the jury received its instructions.The defendant sought to introduce jury instructions on the defense of apparent necessity.The trial court refused to admit these instructions.The defendant also requested a special verdict form that the defendant could not be guilty of both second degree kidnapping and violation of custody.The trial court refused the request.The jury returned a verdict of guilty to the violation of custody concerning the Hartman children and not guilty to the counts of violation of custody concerning the defendant's children.The jury returned a guilty verdict to the charges of second degree kidnapping concerning the Hartman children.

The defendant was sentenced in the aggravated range to eight years on the two charges of second degree kidnapping and two years on the two charges of violation of custody, the sentences to run concurrently, plus one year of parole.

II.

The defendant claims that section 18-3-304(2) is unconstitutionally vague.We disagree.

The due process clauses of the Colorado Constitution,Colo. Const. art. II, § 25, and of the United States Constitution,U.S. Const. amend XIV, require criminal laws to be sufficiently specific to give fair warning of proscribed conduct.People v. Schoondermark, 699 P.2d 411, 415(Colo.1985).A penal statute is unconstitutionally vague if it "forbids or requires the doing of an act in terms so vague that [persons] of common intelligence must necessarily guess as to its meaning and differ as to its application."Id.(quotingConnally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322(1926)).All statutes are presumed to be constitutional, and the party attacking the statute has the burden of proving it unconstitutional beyond a reasonable doubt.Schoondermark, 699 P.2d at 415;People v. Franklin, 683 P.2d 775(Colo.1984);People v. Enea, 665 P.2d 1026(Colo.1983).

Section 18-3-304(2) states that "any parent or other person who violates an order of any district or juvenile court of this state...