State v. Chapman, 16393

• Decision Date: 23 April 1987
• Docket Number: No. 16393,16393
• Citation: 739 P.2d 310,112 Idaho 1011
• Parties: STATE of Idaho, Plaintiff-Respondent/Cross-Appellant, v. John R. CHAPMAN, Defendant-Appellant/Cross-Respondent.
• Court: Idaho Supreme Court

Page 310

739 P.2d 310

112 Idaho 1011

STATE of Idaho, Plaintiff-Respondent/Cross-Appellant, v. John R. CHAPMAN, Defendant-Appellant/Cross-Respondent.

No. 16393.

Supreme Court of Idaho.

April 23, 1987.

Rehearing Denied June 8, 1987.

Gar Hackney, Lynn, Scott & Hackney, Boise, for defendant-appellant/cross-respondent.

Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., David R. Minert (argued), Deputy SHEPARD, Chief Justice.

[112 Idaho 1012] Atty. Gen., Boise, for plaintiff-respondent/cross-appellant.

This is an appeal from a conviction of kidnapping in the second degree, and a cross-appeal by the State from the sentence imposed. The only issue on the principal appeal is whether the strictures of I.C. § 18-301 prevent the appellant Chapman from being "punished" for kidnapping since he was already convicted and punished for criminal contempt of court. We affirm both the principal appeal and the cross-appeal.

This case was on appeal in State v. Chapman, 108 Idaho 841, 702 P.2d 879 (Ct.App.1985). As therein indicated, the then wife of Chapman initiated divorce proceedings in early 1982, and obtained an order awarding her custody of the parties' minor child, Athena. Chapman obtained possession of the child and fled with her to England where they remained for 13 months.

Upon Chapman's arrest and return to Idaho, he was tried upon charges of kidnapping in the second degree and grand theft by extortion. Over the objection of the State, the trial court, upon Chapman's motion, dismissed the kidnapping charge holding that it could not be sustained since the child's mother had only been awarded temporary custody.

The State appealed from the dismissal of the charge of kidnapping, and the Court of Appeals reversed the dismissal of the kidnapping charge and ordered the reinstatement of that information against Chapman.

Inexplicably, while the State's appeal was pending, the State proceeded to trial on the remaining charge of grand theft by extortion. As noted by the trial court, the foundation for that charge was flimsy at best. During the course of that trial, the defendant insisted upon an instruction to the jury that a lesser included offense of grand theft by extortion was the misdemeanor offense of criminal contempt of court. The State objected strenuously to such jury instruction, but the instruction was nevertheless given. Not surprisingly, the jury returned a verdict of not guilty of grand theft by extortion, but found the defendant guilty of the included offense of criminal contempt of court. On that charge Chapman was sentenced to, and did serve, six months in the county jail.

Upon remand from the Court of Appeals, the information on the charge of kidnapping in the second degree was reinstated, trial was held thereon, a verdict of guilty returned by the jury, and judgment of conviction was entered. The trial court noted the outrageousness of Chapman's actions and sentenced him to an indeterminate sentence not to exceed ten years. However, the court suspended the entire ten-year sentence and placed Chapman on probation subject to a number of strict conditions including six months to be served in the Ada County Jail with credit thereon being received for the six months served by Chapman on the criminal contempt conviction.

From that above-noted procedural imbroglio Chapman appeals, asserting that the provisions of I.C. § 18-301 prohibit his punishment and conviction for the crime of kidnapping since Chapman's acts which resulted in the kidnapping conviction are the same as those for which he was convicted and sentenced under the charge of criminal contempt of court.

I.C. § 18-301 provides:

An act or omission which is made punishable in different ways by different provisions of this Code may be punished under either of such provisions, but in no case can it be punished under more than one; an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other.

Constitutional constraints on double jeopardy relate to retrial or reconviction for the same criminal charge, while I.C. § 18-301 constrains punishment on charges of different crimes based on the same acts of the defendant. Thus, it is clear that I.C. § 18-301 exceeds the scope of constitutional constraints on double jeopardy. In Idaho, when the single action of a defendant However, it is clear that when two crimes arise from the same sequence of events, such is not sufficient to invoke the protection of I.C. § 18-301. See Daugherty v. State, 102 Idaho 782, 640 P.2d 1183 (Ct.App.1982); State v. McCormick, 100 Idaho 111, 594 P.2d 149 (1979). See also State v. Werneth, 101 Idaho 241, 611 P.2d 1026 (1980), cert. denied, 449 U.S. 1129, 101 S.Ct. 951, 67 L.Ed.2d 118 (1981); State v. Horn, 101 Idaho 192, 610 P.2d 551 (1980).

[112 Idaho 1013] creates liability under two criminal statutes, a defendant may only be punished under one of those statutes. See State v. Brusseau, 96 Idaho 558, 532 P.2d 563 (1975).

We reiterate that Chapman was charged with kidnapping and grand theft by extortion, I.C. §§ 18-2403 and 18-2407. Kidnapping, as defined by I.C. § 18-4501(2), includes the leading, taking, enticing away, or detaining a child under the age of 16 years with intent to keep or conceal it from the person having lawful care or control thereof. Extortion, on the other hand, is defined as obtaining property by compelling or inducing the delivery of property by means of instilling a fear that if the property is not so delivered the extortioner will do acts calculated to cause damage or harm. We deem it clear that the necessary elements of each of those crimes are not necessary elements of the other, do not necessarily constitute included offenses of each other, nor are the acts necessary to support one of the charges necessarily acts which will support the other charge. In the instant case, the act of kidnapping occurred by the taking of the child on May 7, 1982, and transporting her out of the state and out of the United States with the clear demonstrated intent to keep and conceal it from the person having lawful care and control thereof. As noted by the trial judge, and demonstrated in the record, the alleged grand theft by extortion did not occur until June 14 when Chapman began making telephone calls to the mother of the child. Clearly, although the acts of the defendant constituted a sequence of events, the acts upon which one charge was based were not the same acts upon which the other charge was based.

The State did not charge Chapman with criminal contempt of court, but rather it was the defendant who injected the charge of criminal contempt of court into the proceedings by way of insistence upon a jury instruction of included offense. As stated by the trial court, "Ironically, ... it is my opinion that had you not asked for the included offense instruction, the jury would have acquitted your client outright." As also noted by the trial court, the count of grand theft by extortion was charged to have occurred on June 14 and thereafter and therefore, the lesser included offense, as sought by the defendant Chapman, was based on acts committed on June 14 and thereafter. Clearly, those acts were separate and distinct from the acts of May 7 which constituted the kidnapping. Hence, the strictures of I.C. § 18-301 are not applicable to the instant case. We affirm the conviction on the charge of second degree kidnapping, and also affirm the order of the trial court during the sentencing process which gave Chapman credit for the six months previously served in the Ada County Jail.

The State, on cross-appeal, asserts that the trial court abused its discretion in its imposition of a suspended indeterminate ten-year sentence for the crime of second degree kidnapping. A sentence within the statutory maximum will not be disturbed on appeal absent a demonstrated abuse of discretion. State v. Cotton, 100 Idaho 573, 602 P.2d 71 (1979). There is no abuse of discretion, and a sentence is reasonable if it appears to meet the goals of protecting society and the achievement of deterrence, rehabilitation, or retribution. State v. Toohill, 103 Idaho 565, 650 P.2d 707 (Ct.App.1982). In the instant case the trial judge carefully stated his consideration of the sentencing objectives and his rationale for imposing the particular sentence. The mother of the victim did not seek incarceration, but did seek restitution of the substantial monetary loss she had sustained. One of the terms of the strict probation imposed by the trial court was that Chapman We find no abuse of discretion in the sentence imposed by the trial court, but rather view it as an exercise in practicality and eminently correct. The conviction on the charge of kidnapping in the second degree is affirmed, and the sentence imposed thereof is also affirmed.

[112 Idaho 1014] should make restitution. Chapman was living in another state, had remarried, and had obtained employment. Chapman appeared to pose no threat to society at large, and could hardly be expected to provide restitution or support for the child if incarcerated, as sought by the State.

DONALDSON and BAKES, JJ., concur.

DONALDSON, Justice, specially concurring.

I write to address the concerns raised by Justice Huntley in his dissent. He cites several cases (primarily from Louisiana and Illinois) which stand for the proposition that convictions for both criminal contempt and the underlying crime which led to the contempt charge violate double jeopardy. The Illinois and Louisiana courts apply the "same evidence test" when addressing double jeopardy concerns. Louisiana v. Hope, 449 So.2d 633 (La.App. 1st Cir.1984); People v. Gray, 36 Ill.App.3d 720, 344 N.E.2d 683 (1976). The "same evidence test is broader than the double jeopardy requirements of the U.S. constitution as contained in the fifth amendment. Hope, supra at 636. Idaho has adopted the "indictment or pleading theory" when ruling on double...