State v. Inglin
| Citation | 224 Wis.2d 764,592 N.W.2d 666 |
| Decision Date | 16 February 1999 |
| Docket Number | No. 97-3091-CR,97-3091-CR |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Mark INGLIN, Defendant-Appellant. |
| Court | Court of Appeals of Wisconsin |
On behalf of the defendant-appellant, the cause was submitted on the briefs of Stephen M. Glynn and Robert R. Henak, of Shellow, Shellow & Glynn, S.C., of Milwaukee. There was oral argument by Robert R. Henak.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and James H. McDermott, assistant attorney general. There was oral argument by James H. McDermott.
Before FINE, SCHUDSON and CURLEY, JJ.
Mark Inglin appeals from the judgment of conviction, following a jury trial, for two counts of Interference with Child Custody: one count in violation of § 948.31(1)(b), STATS., and the other in violation of § 948.31(3)(a), STATS. 1 He also appeals from the order denying his motion for postconviction relief.
Inglin argues: (1) that the evidence was insufficient to convict him of "taking away" his son from his ex-wife without her consent, as the jury was instructed on count one, because, he maintains, it was undisputed that she consented to the taking, although not to his subsequent withholding of their son from her; (2) that Wisconsin did not have jurisdiction over his concealing of his son, as charged in count two, because, he maintains, all acts comprising the concealment took place outside of Wisconsin; and (3) the trial court denied him due process by precluding his affirmative defense that he was authorized by law to take away and conceal his son because he reasonably believed that his son was in danger of emotional harm. 2
We conclude that the evidence was sufficient on count one, that the Wisconsin trial court had jurisdiction on count two, and that Inglin was not denied the affirmative defense he requested. We further conclude that the evidence was insufficient to support a related affirmative defense for which Inglin now argues. Accordingly, we affirm.
The facts relevant to resolution of this appeal are undisputed. Pursuant to a judgment of divorce entered on May 12, 1994, Inglin and his ex-wife, Jill Gennari, had joint custody of their son, Erich. Erich's "primary physical placement" was with Gennari, and his "extensive physical placement" was with Inglin. In June 1995, when Erich was four years old, Inglin and Gennari agreed that Erich would go with Inglin for what was to have been a ten-day camping trip to Colorado. 3
Instead of taking Erich to Colorado, Inglin took him to Canada. In fact, as Inglin conceded at trial, soon after picking up Erich for the camping trip, he decided to keep him permanently. The evidence established that Inglin had made extensive arrangements to accomplish that goal even before picking up Erich. 4 Approximately two months later, Canadian law enforcement authorities found Inglin and Erich living in British Columbia; Inglin was arrested, and Erich was returned to Gennari.
Inglin was charged with two counts of Interference with Child Custody in violation of two subsections of § 948.31, STATS., which, in relevant part, provide:
[ (1) ](b) [W]hoever intentionally causes a child to leave, takes a child away or withholds a child for more than 12 hours beyond the court-approved period of physical placement or visitation period from a legal custodian with intent to deprive the custodian of his or her custody rights without the consent of the custodian is guilty of a Class C felony. This paragraph is not applicable if the court has entered an order authorizing the person to so take or withhold the child. The fact that joint legal custody has been awarded to both parents by a court does not preclude a court from finding that one parent has committed a violation of this paragraph.
....
(3) Any parent who does any of the following is guilty of a Class C felony:
(a) Intentionally conceals a child from the child's other parent.
The complaint alleged that Inglin committed the crimes on or about June 24, 1995 but, at the beginning of the trial, the information was amended to charge that he committed the crimes "[b]etween June 24, 1995 and August 16, 1995," spanning the period from the date of what was to have been Inglin's return of Erich from the camping trip to the date of Inglin's arrest.
Although the amended information charged, in count one, that Inglin "did intentionally withhold Erich from the court approved physical placement with his legal custodian," and although the trial court began its jury instructions by accurately reading the "withhold" charge from the information, the court then referred to "withhold" only one more time and, without objection from either party, instructed under the "take away" element:
The first element requires that between June 24, 1995 and August 16, 1996[sic] Erich Inglin had not attained the age of 18 years. Second element requires that Jill Gennari had legal custody of Erich Inglin under a judgment in an action for divorce. The third element requires the defendant took away Erich Inglin from Jill Gennari without the consent of Jill Gennari. "Without consent" means no consent in fact. Such taking need not necessarily be by force or violence.
The fourth element requires the defendant acted intentionally. "Intentionally" means the defendant acted with the mental purpose to take away the child. "Intentionally" also requires the defendant knew that Jill Gennari had legal custody of Erich Inglin under a judgment and that Jill Gennari did not consent to take away Erich Inglin.
.
The fifth element requires the defendant took away Erich Inglin with the intent to deprive Jill Gennari of custody rights. If you are satisfied beyond a reasonable doubt that between June 24, 1995 and August 16, 1996[sic] Erich Inglin had not attained the age of 18, that Jill Gennari had legal custody of Erich Inglin under judgment in an action for divorce, that the defendant intentionally took Erich Inglin away from Jill Gennari without the consent of Jill Gennari, that the defendant knew Jill Gennari had legal custody of Erich Inglin and did not consent to the taking, and that the defendant acted with intent to deprive Jill Gennari of custody rights, you should find the defendant guilty. If you're not so satisfied, you must find the defendant not guilty.
(Emphasis added.) Following the instructions on count one, the prosecutor and defense attorney corrected the trial court's references to 1996. They did not, however, comment on the trial court's substitution of the "take away" instructions for the "withhold" instructions. 5
Inglin first argues that because it is undisputed that, on June 13, 1995, he took Erich away with his mother's consent, the evidence was insufficient to convict him of "tak[ing] a child away without the consent of the custodian," under § 948.31(1)(b), STATS. He concedes that "[t]he evidence here was sufficient for the jury to convict on the [withholding a child for more than 12 hours] grounds, as in fact was charged in the information," but that "[t]he 'withholds' theory was not before the jury" because, "[w]ithout objection from the state, the jury instructions referred only to the 'takes away' theory."
Recently, the supreme court, reviewing a challenge to the sufficiency of evidence to support a conviction, emphasized the pivotal importance of the jury instructions: "This court should only reverse the conviction if the evidence, after being viewed most favorably to the prosecution, still has insufficient probative value to prove the theory of guilt submitted to the jury beyond a reasonable doubt." State v. Wulff, 207 Wis.2d 143, 149, 557 N.W.2d 813, 816 (1997) (emphasis added). In Wulff, the court concluded that the defendant's attempted second-degree sexual assault conviction could not be affirmed, despite the sufficiency of evidence proving attempted fellatio or attempted sexual contact, because the jury instructions specified only attempted anal or genital intrusion. See id. at 151, 557 N.W.2d at 818. Reiterating the basis for its reversal of the defendant's conviction, the court declared, "We can uphold [the defendant's] conviction only if there was sufficient evidence to support guilt on the charge submitted to the jury in the instructions." Id. at 153, 557 N.W.2d at 818 (emphasis added).
Inglin argues that Wulff controls and, therefore, the conviction on count one must be reversed. The State does not dispute that Wulff establishes the standard for review of this issue and, therefore, acknowledges that, regardless of the sufficiency of the evidence on "withhold," this court must focus on whether the evidence was sufficient to support the verdict on "take away." The State argues, however, that because Inglin deceived Gennari about his intentions, and because Gennari consented only to Inglin taking Erich for a vacation, "public policy calls for treatment of the consent here in question as a nullity, affording Inglin no justification for setting aside his conviction." 6
Although we refrain from interpreting or 're-writing' any statute solely to comport with our public policy concerns, see DeBeck v. DNR, 172 Wis.2d 382, 390, 493 N.W.2d 234, 238 (Ct.App.1992), we do agree with the State's essential argument that, because Inglin's deceit prompted Gennari's permission, the evidence was sufficient to support the jury's "take away" verdict. We reach that conclusion, however, based strictly on the clear language of § 939.22(48), STATS., which provides:
"Without consent" means no consent in fact or that consent is given for one of the following reasons:
(a) Because the actor put the victim in fear by the use or threat of imminent use of physical violence on the victim, or on a person in the victim's presence, or on a member of the...
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