State v. Boss

• Citation: 167 Wash.2d 710,223 P.3d 506
• Decision Date: 17 December 2009
• Docket Number: No. 81897-5.,81897-5.
• Court: United States State Supreme Court of Washington
• Parties: STATE of Washington, Respondent, v. Cynthia Crisaundra BOSS, and Paul Anthony Pelts, and each of them, Petitioners.

223 P.3d 506

167 Wash.2d 710

STATE of Washington, Respondent, v. Cynthia Crisaundra BOSS, and Paul Anthony Pelts, and each of them, Petitioners.

No. 81897-5.

Supreme Court of Washington, En Banc.

Argued October 13, 2009.

Decided December 17, 2009.

Thomas Michael Kummerow, Washington Appellate Project, Seattle, WA, for Petitioner.

Brian Martin McDonald, King County Prosecutor's Office, Seattle, WA, for Respondent.

C. JOHNSON, J.

¶ 1 This case involves a challenge to a conviction for first degree custodial interference pursuant to RCW 9A.40.060. Cynthia Boss was charged with intentionally denying Child Protective Services (CPS) access to her daughter, O.J.B-P., after CPS obtained a custody order awarding CPS legal custody of O.J.B-P. Boss argues the trial court committed reversible error because jury instruction 10 omitted one express element (lawfulness of the custody order) and one implied element (her knowledge of CPS's right to custody of her daughter) of first degree custodial interference and jury instruction 9 impermissibly commented on the evidence. The Court of Appeals affirmed Boss's conviction, concluding (1) the lawfulness of the custody order was a question for the trial court to decide as a matter of law; (2) although Boss's knowledge of CPS's right to physical custody of O.J.B-P. was an implied element of first degree custodial interference, the issue could not be raised on appeal; and (3) the trial court's comment on the evidence was harmless error. We affirm on a slightly different basis, concluding (1) the lawfulness of the custody order was a question for the trial court to decide as a matter of law, (2) knowledge of the right to physical custody is not an implied element of first degree custodial interference, and (3) Boss was not prejudiced by the trial court's comment on the evidence.

FACTS

¶ 2 O.J.B-P., the biological daughter of Boss and Paul Pelts, was born February 15, 2006. Prior to O.J.B-P.'s birth, CPS had filed dependency proceedings regarding Boss's two other children.¹ Upon learning of O.J.B-P.'s birth, CPS filed a dependency petition in juvenile court. On May 11, 2006, after determining that a risk of imminent harm to O.J.B-P. existed, the court issued a custody order granting the Department of Social and Health Services (DSHS) temporary custody of O.J.B-P. That same day, CPS representatives went to Boss's apartment to obtain physical custody of O.J.B-P., but the child could not be found. A hearing took place the following day, at which the court issued a shelter care order continuing CPS's legal supervision over O.J.B-P. That evening, CPS representatives returned to Boss's apartment and served Pelts with the order.

¶ 3 Because CPS's attempts to locate O.J.B-P. over the course of the next few days were unsuccessful, CPS obtained a writ of habeas corpus for her. On May 30, Boss informed a DSHS employee over the telephone that she was not going to make O.J.B-P. available to the agency. The following day, Boss was served with the writ of habeas corpus. Because she refused to divulge O.J.B-P.'s location, she was taken into custody. While in court, Boss was served with copies of the May 11 custody order, the shelter care order, and the writ of habeas corpus, but refused to provide any information to help CPS locate O.J.B-P.

¶ 4 At a second court hearing held June 1, Boss told the court that she could retrieve O.J.B-P. if she were released. Boss was released from custody later that day, but did not bring O.J.B-P. with her or otherwise make her available to CPS at the hearing on June 2. Another hearing was scheduled for June 8, but Boss, who had moved out of her apartment, did not appear. On August 22, a social worker with CPS was notified that O.J.B-P. had been found in Houston, Texas. The social worker flew to Houston where she took custody of O.J.B-P. and returned her to Washington.

PROCEDURAL HISTORY

¶ 5 The State charged Boss with first degree custodial interference.² Boss moved in limine to preclude the State from introducing evidence relating to CPS's basis for seeking the custody order, specifically, CPS's history with Boss and her older children. After the prosecutor indicated that the State did not intend to offer this evidence, Boss's attorney challenged the lawfulness of the custody order. He argued that the court issued the order based upon what it "knew about the other children" and that the State should have been required to show there were grounds to believe O.J.B-P. was in danger. Report of Proceedings (RP) (Jan. 31, 2007) at 4. In response to Boss's argument about the custody order, the court stated, "[t]hat's for the judge, not the jury, I would assume. Otherwise, all that stuff that you don't want in, it is all coming in." RP (Jan. 31, 2007) at 5. When the court questioned whether Boss could challenge the lawfulness of the custody order, Boss's attorney acknowledged "the general proposition that if there is an order in place from the court, one must obey the order and not try to do an end-run around it," and stated he could find no law directly on point. RP (Jan. 31, 2007) at 6. He also conceded that "the lawfulness of the [custody] order ... isn't something [that] we can necessarily attack in this forum." RP (Feb. 7, 2007) at 4.

¶ 6 Boss made no objection when the State offered the custody order and writ into evidence at trial.³ Later, the prosecutor asked the trial court to take judicial notice of the custody order for the purpose of instructing the jury that CPS had a lawful right to physical custody of O.J.B-P., as of the date the custody order was entered, May 11, 2006. The trial court concluded it possessed the authority to determine whether the juvenile court had lawfully entered the custody order and concluded it had. The jury instructions provided by the trial court included instruction 9, which instructed the jury CPS had a lawful right to custody of O.J.B-P., and instruction 10 (the "to convict" instruction), which provided the elements of first degree custodial interference. The jury convicted Boss as charged.

¶ 7 On appeal, Boss claimed instruction 10 omitted two elements of the crime: (1) the lawfulness of the custody order and (2) Boss's knowledge of the lawfulness of the custody order. At oral argument, Boss modified her argument regarding the second element and argued instead that her knowledge of CPS's right to physical custody of O.J.B-P. was an implied element of the crime. Additionally, the Court of Appeals, sua sponte, raised the issue of whether the trial court had, in instruction 9, commented on the evidence by instructing the jury that CPS had a lawful right to custody of O.J.B-P.

¶ 8 The Court of Appeals affirmed Boss's conviction. State v. Boss, 144 Wash.App. 878, 184 P.3d 1264 (2008). The court concluded that the lawfulness of the custody order was a question for the trial court to decide as a matter of law. The court agreed with Boss's argument that her knowledge of CPS's right to physical custody of O.J.B-P. was an implied element of first degree custodial interference but concluded that Boss could not raise this issue for the first time on appeal because she did not show that the error was manifest. Finally, the court ruled that the trial court had commented on the evidence by instructing the jury that, as a matter of law, the State had proved CPS had a lawful right to physical custody of O.J.B-P. The court held, however, that the error was harmless in light of the uncontested evidence admitted at trial.

ISSUES

1. Whether the lawfulness of the custody order was a question for the trial court to decide as a matter of law (Jury Instruction 10).

2. Whether Boss's knowledge of CPS's right to physical custody of O.J.B-P. was an implied element of first degree custodial interference (Jury Instruction 10).

3. Whether the trial court's comment on the evidence merits reversal (Jury Instruction 9).

ANALYSIS

¶ 9 We review alleged errors of law in jury instructions de novo. State v. Miller, 156 Wash.2d 23, 27, 123 P.3d 827 (2005).

Lawfulness of the Custody Order

¶ 10 Boss argues instruction 10 omitted the element of the lawfulness of the custody order. In support of this argument, she claims RCW 9A.40.060 expressly includes the lawfulness of the order as a required element of a "to convict" instruction and determination of this element was within the province of the jury.

¶ 11 The language of the statute for first degree custodial interference provides in part:

A relative of a child under the age of eighteen or of an incompetent person is guilty of custodial interference in the first degree if, with the intent to deny access to the child or incompetent person by a parent, guardian, institution, agency, or other person having a lawful right to physical custody of such person, the relative takes, entices, retains, detains, or conceals the child or incompetent person from a parent, guardian, institution, agency, or other person having a lawful right to physical custody of such person and:

(a) Intends to hold the child or incompetent person permanently or for a protracted period.

RCW 9A.40.060(1) (emphasis added). In order for the jury to convict Boss of first degree custodial interference, the State had to prove, among other elements, that a person or entity other than Boss had a "lawful right to physical custody" of O.J.B-P. To prove this element, the State relied on the custody order giving CPS custody of O.J.B-P. Boss contends that the jury should have been required to determine whether that order was lawfully entered, alleging that the order's lawfulness is a fact that must be proved to sustain a conviction and must therefore be an element of the crime. We disagree.

¶ 12 The language of instruction 10 mirrors the language of the statute:

To convict the defendant of the crime of custodial interference in the first degree, each of the following elements of the crime must be proved beyond a reasonable doubt:

(1) That the...