State v. Holtcamp
Decision Date | 29 December 1980 |
Docket Number | No. 709,709 |
Citation | 614 S.W.2d 389,20 A.L.R.4th 813 |
Parties | STATE of Tennessee, Appellee, v. Rhonda HOLTCAMP, Appellant. |
Court | Tennessee Court of Criminal Appeals |
Selma Cash Paty, Chattanooga, S. Karen Solomon, Knoxville, for appellant.
William M. Leech, Jr., Atty. Gen., Robert L. Jolley, Jr., Asst. Atty. Gen., Nashville, Frank M. Groves, Jr., Asst. Dist. Atty. Gen., Chattanooga, for appellee.
The defendant, Rhonda Holtcamp, was convicted of kidnapping in violation of T.C.A. § 39-2602. Her punishment was fixed at 90 days in the County Workhouse, but 60 days of this workhouse sentence were suspended by the trial judge. On this appeal, the defendant insists that the evidence does not support the jury verdict, T.C.A. § 39-2602 (1975) is unconstitutional, venue was insufficiently shown, the trial judge erred in rulings concerning the admission or exclusion of certain testimony, the District Attorney General made improper argument, the trial judge improperly instructed the jury, and the trial judge abused his discretion in the matter of probating her sentence. We resolve these issues in favor of the State and affirm the conviction.
The defendant was convicted of kidnapping her own child, Carrie Ann Spangler, whose custody had been committed to the child's father, Richard Douglas Spangler, the defendant's ex-husband.
The defendant and Spangler were married in December, 1972; and after living together for approximately one month, they were subsequently divorced by the Circuit Court of Hamilton County. The child was born as a fruit of this marriage but not until after her parents were divorced. After the birth of the child, the Circuit Court originally granted her custody to the defendant; but after considerable litigation, the Circuit Court awarded custody to the father, Mr. Spangler. An order was entered by the Circuit Court which granted the defendant one over-night visitation privilege with the child each week; however, when the defendant had three or more days off from her work, then she had two nights' visitation privilege.
There is much conflicting evidence in the record concerning whether the father cooperated with the defendant concerning her visitation rights. Insofar as this evidence might have been material either as to guilt or punishment, this conflicting evidence was resolved by the jury and need not be detailed here.
About December, 1976, the defendant admittedly lied to Mr. Spangler and his mother by telling them that she had entered military service and could not be reached or contacted in any way. She also told them that she could not visit the child on a regular basis in the future. This false information was not corrected before the child was taken by the defendant to New York.
On Saturday, the defendant telephoned Mr. Spangler at his residence in Chattanooga and got permission to visit with the child the next day which was Easter Sunday, April 12, 1977. The defendant came to Mr. Spangler's mother's home in the early afternoon on Easter Sunday and informed Mr. Spangler that the child would be returned that same evening. She telephoned Mr. Spangler later in the day and obtained his agreement for her to keep the child until the next morning, Monday. Instead of returning the child to her home in Chattanooga, the defendant returned to her residence in New York with the child. In explaining this action, the defendant testified:
Mr. Spangler did not know that the defendant resided in New York and had no idea where his child could be located. He made much effort to locate the child; and on May 4, 1977, through the efforts of a private detective, his child was located at a bar and grill in Brooklyn where the defendant was employed. The evidence is conclusive that the defendant was aware of the provisions of the Circuit Court Decree when she took the child to New York. The defendant testified that she did not tell Mr. Spangler of her intention to remove the child because, "I knew he wouldn't allow me to take her."
The defendant insists that T.C.A. § 39-2602 does not apply to her as a parent. She insists that the wording of the statute does not proscribe the taking of a child by one parent when the other parent has legal custody.
In Hicks v. State, 158 Tenn. 204, 12 S.W.2d 385 (Tenn.1928), the Supreme Court recognized that the statute is violated by a parent who unlawfully takes a child from the custody of the other parent who has been awarded custody by a court of competent jurisdiction. The court reversed Hicks' conviction because he was ignorant of the fact that the right of custody had been judicially determined and that legal custody had been awarded to the child's mother, from whom he had taken it. In Johnson v. Johnson, 185 Tenn. 400, 206 S.W.2d 400, 403 (1947), our Supreme Court said:
"This Court in Hicks v. State, 158 Tenn. 204, 12 S.W.2d 385, held by necessary implication that after the awrding (sic) of the custody of the child to one parent with the full knowledge of the other parent, then the forcible or surreptitious removal of this child by the other parent would amount to kidnapping."
The Sixth Circuit, United States Court of Appeals, speaking through Judge Harry Phillips, recognized the foregoing quote from Johnson v. Johnson to be a correct statement of Tennessee law. Harris v. Turner, 329 F.2d 918, 923 (6th Cir. 1964). The record leaves no doubt that the defendant had full knowledge of the award of custody of the child to Mr. Spangler. There is no merit in this issue.
The defendant next alleges that T.C.A. § 39-2602 (1975) is unconstitutionally vague since an average man or woman of ordinary intelligence could not determine that the statute applied to the actions of a parent. The statute is in the following language:
"Every person who unlawfully takes or decoys away any child under the age of sixteen (16) years, with intent to detain or conceal such child from its parents, guardian, or other person having the lawful charge of such child, shall, on conviction, be imprisoned in the penitentiary not less than one (1) year nor more than five (5) years."
The fair warning requirement embodied in the due process clause prohibits the states from holding an individual criminally responsible for conduct which he could not reasonably understand to be proscribed. United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989, 996 (1954). The prohibition against excessive vagueness does not invalidate every statute which a reviewing court believes could have been drafted with greater precision. The due process clause requires only that the law give sufficient warning that men may conduct themselves so as to avoid that which is forbidden. Rose v. Locke, 423 U.S. 48, 49-50, 96 S.Ct. 243, 244, 46 L.Ed.2d 185, 188 (1975); State v. McDonald, 534 S.W.2d 650, 651 (Tenn.), cert. denied, 425 U.S. 955, 96 S.Ct. 1733, 48 L.Ed.2d 200 (1976).
In McNeely v. State, 391 N.E.2d 838 (Ind.App.1979), the Indiana court was faced with an identical issue concerning the Indiana statute, 1 which, in pertinent parts, is identical to the Tennessee statute. The Indiana court rejected the argument that its statute was unconstitutionally vague, saying:
The words of T.C.A. § 39-2602 (1975) are of common usage; they are to be taken in their natural and ordinary sense without a forced construction to limit or extend their meaning. Ellenburg v. State, 215 Tenn. 153, 156, 384 S.W.2d 29, 30 (1964); Palmer v. State, 47 Tenn. (7 Cold.) 82, 86 (1869). The words of this statute which prohibit the taking of a child from a "person having lawful charge of such child" are sufficiently plain and precise to put any reasonable individual on notice concerning what conduct is prohibited. We hold that the statute is constitutional.
The defendant insists that the evidence is insufficient to support the verdict because her taking of the child was lawful since the Circuit Court Decree gave her visitation rights and since Mr. Spangler gave her permission to take the child. Obviously, the taking and removal of the child was surreptitious and was not in accord with either the Circuit Court Decree or the permission of Mr. Spangler. The surreptitious removal of the child by the parent who does not have legal custody is kidnapping. Hicks v. State, supra; Johnson v. State, supra; Harris v. Turner, supra.
The defendant also argues that the evidence does not show an intent to detain or conceal the child from Mr. Spangler. There is evidence that she willfully lied to Mr. Spangler by telling him that she was entering military service and by concealing the fact from him that she actually resided in New York. She lawfully had the child in Hamilton County Sunday afternoon and Sunday night, but the lawful visitation ceased as the defendant left for New York with the child on Monday morning instead of returning the child to the Spangler home. She kept the child in New York for almost one month without notifying Mr. Spangler of the child's whereabouts. This is evidence of the defendant's intent to detain or conceal the child from Mr....
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...to the offense of kidnapping. It is clear that a non-custodial parent can be guilty of kidnapping his child. See State v. Holtcamp, 614 S.W.2d 389, 392 (Tenn. Crim. App. 1980). In addition, and although fortunately not occurring frequently, there are reported cases of kidnappings involving ......
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