State v. Donahue, 2
| Decision Date | 09 February 1984 |
| Docket Number | CA-CR,No. 2,2 |
| Citation | 680 P.2d 191,140 Ariz. 55 |
| Parties | The STATE of Arizona, Appellee, v. Shirley DONAHUE aka Shirley Jean Watkins, Appellant. 2875. |
| Court | Arizona Court of Appeals |
Appellant was indicted on one count of kidnapping or, in the alternative, one count of custodial interference and one count of conspiracy to commit kidnapping or, in the alternative, custodial interference. On motion of the state, counts one and three were dismissed with prejudice. As to count two, the parties stipulated that appellant would waive a jury trial and that the matter would be submitted to the court for determination on the basis of the record before the court in the case of appellant's co-defendant, Donald Bruce Jones. It was further stipulated that in the event the court found appellant guilty and determined to impose a sentence other than probation, appellant would have the right to withdraw her submission to the court and have the case tried to a jury. On the basis of the stipulation and the record in Jones' case, the court found appellant guilty of the charge of custodial interference which was treated as a class one misdemeanor, and placed appellant on two years' probation, on the condition she perform 100 hours of community service work.
The record in the Jones case consisted of police reports; a report prepared by an investigator for the Pima County Attorney's Office; transcripts of interviews with the mother of the victim, a third participant in the offense, and another person; a transcript of the grand jury proceedings; and the minute entry conviction of Jones. From that record it appears that appellant was living with Jones and another woman, Rene Miller. Jones was the natural father of Brian Hale, who, at the time of the offense, was almost four years old and living with his natural mother, Edrie Hale. Jones and Hale had never been married, and Jones' name did not appear on the child's birth certificate. There is no evidence, however, as to whether appellant had knowledge of these facts.
On November 5, 1980, appellant, Jones and Miller had gone to Hale's house where Jones requested that the child be allowed to visit him. Hale refused and a violent argument ensued. Sometime later, Jones apparently decided to take the child from Hale and enlisted appellant's and Miller's assistance in doing so. Miller rented a truck which was then packed with all of her belongings as well as those of Jones and appellant. Appellant stole a license plate from another vehicle which she substituted for the license on Jones' pickup truck.
On November 7, 1980, appellant and Miller drove Jones' truck to Hale's house. In the meantime, Jones parked the rental truck down the street and waited for the other two. The two women visited with Hale briefly and when she left the room for a moment, they took the child from the front yard and drove off. They met Jones at the airport, whereupon he took the child and flew to Las Vegas. Appellant and Miller then drove the two trucks to Las Vegas where they met Jones. The group stayed a few days in Las Vegas and then drove to Bakersfield, California, where Miller and Jones eventually set up housekeeping with the child. Appellant apparently left the others in Bakersfield and never rejoined them. Miller left Jones in early 1981 and returned to her home in Texas, where she was ultimately located and arrested in December 1981. Jones and the child were located in Missouri, and the child was returned to his mother. Appellant was arrested in Tucson on February 1, 1982.
In the sole issue raised on appeal, appellant argues that she could not have been guilty of custodial interference in taking the child because she was acting as the agent of the natural father of the victim, who had a...
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...or withholds any child from the other parent denying that parent access to any child." A.R.S. § 13–1302(A)(2) ; State v. Donahue , 140 Ariz. 55, 57, 680 P.2d 191 (App. 1984) (father did not have the right to custody of the child to the exclusion of mother in the absence of a court order to ......
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...parent can take exclusive physical custody of the child in a manner defeating the rights of the other parent.); State v. Donahue, 140 Ariz. 55, 57, 680 P.2d 191 (Ct.App. 1984), rev. denied April 17, 1984 (The father, in the absence of a court order, had custody equal to that of the mother b......
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Taylor v. Com., Record No. 2322-97-2.
...reasoning has been adopted by a majority of courts considering the issue, there is case law to the contrary. See State v. Donahue, 140 Ariz. 55, 680 P.2d 191, 193 (App.1984) (construing custodial interference statute and, even assuming the defendant father had a right to custody of his chil......
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State v. Viramontes
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