State v. Boss
| Citation | 144 Wn. App. 878,184 P.3d 1264 |
| Decision Date | 02 June 2008 |
| Docket Number | No. 59573-3-I.,59573-3-I. |
| Court | Court of Appeals of Washington |
| Parties | The STATE of Washington, Respondent, v. Cynthia Crisaundra BOSS, Appellant, and Paul Anthony Pelts, Defendant. |
Thomas Michael Kummerow, Washington Appellate Project, Seattle, WA, for Appellant.
Terence Roger Carlstrom, King Co. Prosecutors Office, Seattle, WA, for Respondent.
¶ 1 Cynthia Boss appeals from the judgment entered on a jury's verdict finding her guilty of custodial interference in the first degree. She contends that the trial court erred by omitting two essential elements of the offense from the "to convict" instruction given to the jury: (1) the validity of a court order giving Child Protective Services (CPS) custody of her daughter, O.J.B-P., and (2) her knowledge of the custody order's validity. We hold that the trial court properly determined the custody order's validity as part of its "gate-keeping" function, rather than submitting the question of the order's validity to the jury as an essential element of the offense. We also hold that the offense of custodial interference does not contain as an element the defendant's knowledge of a custody order's validity. Accordingly, we conclude that the trial court did not err in either regard.
¶ 2 The trial court also instructed the jury that the State had established, as a matter of law, CPS's "lawful right to physical custody" of O.J.B-P. Whether the State proved, as a factual matter, that CPS had a "lawful right to physical custody" of O.J.B-P. was properly a matter for the jury. Accordingly, the trial court erred by so instructing the jury. However, because the record affirmatively demonstrates that no prejudice to Boss could have resulted from this erroneous instruction, the error was harmless.
¶ 3 Finally, Boss argues that her knowledge of CPS's "right to physical custody" O.J.B-P. is an implied element of the offense, and that the trial court erred by not so instructing the jury. This element could be proven by evidence of her knowledge of the existence of the custody order, as contrasted with evidence of her knowledge of the custody order's legal validity. We conclude that she is correct in this contention but that, in this case, she cannot demonstrate actual prejudice from the claimed error and, thus, is not entitled to appellate relief. Accordingly, we affirm.
¶ 4 Prior to O.J.B-P.'s birth, CPS had contact with Boss regarding her other children. 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 juvenile court issued an 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 last known address to obtain physical custody of O.J.B-P., but the child could not be found. A shelter care hearing took place the following day. An order continuing CPS's legal supervision over O.J.B-P. was issued at this hearing. That evening, CPS representatives served O.J.B-P.'s father "with the court paper work" at Boss's last known address. A writ of habeas corpus was soon issued, granting CPS authority over O.J.B-P.'s person.
¶ 5 On May 30, Boss read from the dependency petition while speaking with a DSHS employee over the telephone. During this conversation, Boss said that she was not going to make O.J.B-P. available to the agency. On May 31, Boss was served with the writ of habeas corpus, but refused to divulge O.J.B-P.'s whereabouts and thus was taken into custody. In the course of a court hearing held later that day, Boss declined to provide any information to help CPS locate O.J.B-P. While in court, Boss was served with copies of the May 11 custody order, the shelter care order, and the writ of habeas corpus. At a court hearing the next day, Boss told the court that she could retrieve O.J.B-P. if she were released. Boss was released from custody later that day. Boss appeared at a June 2 hearing, but did not bring O.J.B-P. with her or otherwise make her available to CPS. Another hearing was subsequently scheduled for June 8, but Boss did not appear for it. Later, CPS representatives learned that O.J.B-P. had been found in Houston, Texas. A diaper bag accompanying O.J.B-P. was also discovered; it contained numerous items with Boss's name on them, including Amtrak tickets.
¶ 6 Boss was charged with custodial interference in the first degree. At trial, numerous court orders were admitted into evidence, including the May 11 custody order. Later, the prosecutor asked the trial court to take judicial notice of the custody order and the shelter care order for the purpose of instructing the jury that CPS had a lawful right to the physical custody of O.J.B-P., as of the date the custody order was entered.1 The trial court ruled that it had the authority to determine whether the orders had been lawfully entered. It then concluded that the custody order had been lawfully entered. The trial court instructed the jury that DSHS, CPS, and the State of Washington had a "lawful right to physical custody" of O.J.B-P., an element of custodial interference, as of the date the custody order was entered. The jury convicted Boss as charged. Boss appeals.
¶ 7 Boss first contends that the trial court erred by omitting from the "to convict" instruction given to the jury the essential element of whether the court order granting CPS custody of O.J.B-P. was valid.
¶ 8 We review alleged errors of law in jury instructions de novo. State v. Barnes, 153 Wash.2d 378, 382, 103 P.3d 1219 (2005).
¶ 9 The offense of custodial interference is directed at relatives who take a child from a parent or from an entity that has the "lawful right to physical custody" of the child:
A relative of a child under the age of eighteen ... is guilty of custodial interference in the first degree if, with the intent to deny access to the child ... 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 ... 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 ... permanently or for a protracted period.
RCW 9A.40.060(1)(a) (emphasis added). Accordingly, in order for the jury to convict Boss of custodial interference in the first degree, the State had to prove that a person or entity other than Boss had a "lawful right to physical custody" of O.J.B-P. RCW 9A.40.060(1).
¶ 10 To prove this fact, the State relied on the May 11 court order giving CPS custody of O.J.B-P. Boss contends that the jury should have been required to determine whether that order was validly entered, contending that the order's validity is a fact that must be proven to sustain a conviction and, thus, must be an element of the offense. Boss's argument is unpersuasive.
¶ 11 No prior reported decision discusses whether it is appropriate for the trial court to determine the validity of a court order, as a matter of law, in the context of a prosecution for custodial interference. However, several decisions arising from prosecutions for criminal violations of domestic violence no-contact orders have established that the validity of a court order is a question for the trial court to decide as a matter of law, rather than a factual question to be submitted to the jury. See State v. Miller, 156 Wash.2d 23, 123 P.3d 827 (2005); State v. Gray, 134 Wash.App. 547, 138 P.3d 1123 (2006); State v. Carmen, 118 Wash.App. 655, 77 P.3d 368 (2003). The reasoning of these cases applies with equal force to the custody order at issue herein.
¶ 12 In Miller, the defendant requested a "to convict" instruction that would have required the jury to determine the validity of the no-contact order he was charged with violating. The trial court declined to so instruct the jury, instead giving a "to convict" instruction that did not mention the validity of the court order relied upon by the State but, rather, simply required the jury to determine whether a no-contact order existed. Miller, 156 Wash.2d at 26-27, 123 P.3d 827. The Supreme Court held that because the no-contact order's validity was not an element of the crime charged, the trial court had properly withheld from the jury the question of whether the order had been validly entered. Miller, 156 Wash.2d at 24, 31, 123 P.3d 827. In so holding, the court noted that issues relating to a court order's validity are "uniquely within the province of the court." Miller, 156 Wash.2d at 31, 123 P.3d 827.
¶ 13 Likewise, in Carmen, the trial court declined to submit to the jury, as an element of the charged offense, the question of whether the prior no-contact orders that provided the bases for the defendant's felony conviction had been properly issued pursuant to the applicable statutes. 118 Wash.App. at 656, 77 P.3d 368. Instead, the trial court decided, as a matter of law, whether the convictions for the no-contact order violations qualified as the required predicate convictions under RCW 26.50.110(5). Carmen, 118 Wash.App. at 659, 77 P.3d 368. Accordingly, the jury was instructed to determine only whether the prior convictions for violating the provisions of a no-contact order existed. Carmen, 118 Wash.App. at 656, 77 P.3d 368. We affirmed, holding that the trial court properly ruled that whether the no-contact orders that Carmen had been convicted of violating had been entered pursuant to an applicable statute was a question of law. Carmen, 118 Wash.App. at 663, 667-68, 77 P.3d 368. We explained that RCW 26.50.110(5)'s predicate conviction requirement relates to admissibility, rather than to an essential element of the felony offense; if Carmen's convictions had not been found to qualify as predicate convictions under RCW 26.50.110(5), the jury...
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