State v. Kirwin
| Decision Date | 23 February 2012 |
| Docket Number | No. 28972–9–III.,28972–9–III. |
| Citation | 271 P.3d 310 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Jennifer L. KIRWIN, Appellant. |
OPINION TEXT STARTS HERE
Janet G. Gemberling, Janet Gemberling PS, Spokane, WA, for Appellant.
Mark Erik Lindsey, Andrew J. Metts III, Spokane County Prosecuting Attorneys, Spokane, WA, for Respondent.
¶ 1 Jennifer Kirwin appeals her three convictions of first degree custodial interference arising from her 6–week, multi-state road trip made with her three children in violation of her ex-husband's rights under a parenting plan. She identifies several claimed errors. We find dispositive her argument that the evidence presented at trial was insufficient to support the crimes with which she was charged, and that the State's adequate proof of a different offense mistakenly described in the jury instructions cannot sustain the convictions. We reverse them and remand with directions to dismiss the charges with prejudice.
¶ 2 Jennifer Lynn Kirwin and Todd Kirwin divorced in 2005. Following the divorce, the couple's three children lived with Ms. Kirwin in Spokane pursuant to a court-ordered parenting plan. Mr. Kirwin received visitation rights. In April 2009, Mr. Kirwin was unable to exercise his rights because he could not contact Ms. Kirwin despite repeated attempts. He initiated a contempt proceeding in May and a hearing was scheduled for May 26. Ms. Kirwin left the state with the children sometime on or shortly before May 23, after court papers—presumably notice of the contempt proceeding—were served at her home.
¶ 3 On June 15, the trial court modified the original parenting plan and awarded Mr. Kirwin custody of the children. United States marshals found the children with Ms. Kirwin in California on July 2 and took her into custody. Mr. Kirwin traveled to California and flew back with the children the following day.
¶ 4 The State charged Ms. Kirwin with three counts of first degree custodial interference. The crime of first degree custodial interference may be committed in three alternative ways: (1) by being a relative of the child and keeping the child from a person who has a lawful right to physical custody; (2) by being a parent and keeping the child from the other parent who has a right to time with the child; or (3) by being a person who, in the absence of a court order, helps one parent to keep the child from the other parent. RCW 9A.40.060(1)-(3). The charging document filed against Ms. Kirwin alleged the first alternative, citing RCW 9A.40.060(1) in the caption and with each count alleging that she “took and conceal[ed]” the children between June 12, 2009 and June 22, 2009 “with the intent to deny access to ... TODD MICHAEL KIRWIN, a parent having a lawful right to [their] physical custody.” Clerk's Papers (CP) at 1–2.
¶ 5 Before trial, Ms. Kirwin's court-appointed defender was allowed to withdraw after reporting irreconcilable communication and cooperation problems with his client. Ms. Kirwin notified the court that she would like to proceed without the assistance of counsel. In a lengthy colloquy, the trial court tried to persuade Ms. Kirwin not to represent herself. The court advised her of the possibility of prison and the standard sentence ranges of her charges but did not inform her of the maximum statutory sentence. Ms. Kirwin remained steadfast in her desire to represent herself. After telling Ms. Kirwin that “[t]he bottom line is you're walking into a real hornet's nest, and you need to do this with your eyes open[,] understanding the serious danger you're putting yourself into,” the court relented in its attempts to dissuade Ms. Kirwin and allowed her to proceed pro se. Report of Proceedings (RP) (Feb. 22, 2010–Pretrial Motions) at 9.
¶ 6 The State presented evidence at trial that Ms. Kirwin traveled through Idaho, Montana, Utah, Arizona, and California with her children between late May and early July 2009. It offered the June 15 modified parenting plan into evidence but did not submit the prior parenting plan or present testimony regarding its terms.
¶ 7 Ms. Kirwin undertook to defend on the basis that she took her children out of the state for their protection because Mr. Kirwin was abusive and had a history of harassment. Although many of the questions she posed to witnesses sought irrelevant information, she attempted to establish the alleged abuse in questioning Mr. Kirwin and her children. The trial court permitted some of these questions, but it sustained objections to most on grounds of hearsay and relevance.
¶ 8 When it came time to instruct the jury, the to-convict instruction given did not track the offenses charged in the information. While Ms. Kirwin was charged under RCW 9A.40.060(1)(e), the jury was instructed on the elements of RCW 9A.40.060(2)(c), as follows:
To convict the defendant of the crime of custodial interference in the first degree, each of the following five elements of the crime must be proved beyond a reasonable doubt;
(1) That the defendant was a parent;
(2) That on or about between June 12 and June 22, 2009, the defendant intentionally took, enticed, retained, or concealed her child from the other parent having the lawful right to time with the child pursuant to a court-ordered parenting plan;
(3) That the defendant acted with the intent to deny the other parent from access to the child;
(4) That the defendant caused the child to be removed from the state of usual residence; and
(5) That any of these acts occurred in the State of Washington.
CP at 36 (Instruction 6). The State had never sought to amend the information to charge Ms. Kirwin with violations of RCW 9A.40.060(2)(c).
¶ 9 The jury found Ms. Kirwin guilty on all three counts. The judgment and sentence reflects that she was convicted under RCW 9A.40.060(1)(c), the offense specified in the charging document. This appeal followed.
¶ 10 After reviewing the initial briefs and noting the inconsistency between the charging document and the jury instructions, we requested and have considered additional briefing addressing two questions:
1. Did the trial court instruct the jury on an uncharged alternative theory of first degree custodial interference?
2. Assuming that the court did instruct only on an uncharged alternative, does an appellate court review a sufficiency of the evidence challenge to the charged or uncharged alternative?
¶ 11 Ms. Kirwin assigns error to the trial court's failure to fully inform her of the consequences of self-representation; in particular, the maximum sentence she faced. She also challenges a series of evidentiary rulings she contends were in error and collectively deprived her of the ability to present her defense. But at oral argument, appellate counsel placed greatest reliance on Ms. Kirwin's challenge to the State's failure to present sufficient evidence of the crimes charged. She asked that we grant the reversal and dismissal that Ms. Kirwin contends is the necessary remedy.
¶ 12 Ms. Kirwin contends that sufficient evidence does not support the essential element that she knew Mr. Kirwin had a lawful right to physical custody of the children. In State v. Boss, 167 Wash.2d 710, 719–20, 223 P.3d 506 (2009), the Washington Supreme Court held:
Knowledge of the existence of a custody order is inherent in the intentional element of the offense. A person cannot “intentionally” commit first degree custodial interference without being on notice of the underlying order. The State must establish a custody order existed and the defendant intentionally violated the order. The State must establish a defendant is aware of the existence of the order to prove the defendant intentionally violated it.
¶ 13 The State's position, made explicit at oral argument, is that “lawful right to physical custody” within the meaning of RCW 9A.40.060(1)(d) is sufficiently broad to include rights of visitation that Ms. Kirwin knew Mr. Kirwin enjoyed before she left the state in late May. It argues that it presented evidence that established that Mr. Kirwin had visitation rights before June 12 1 and that Ms. Kirwin knew of them. For her part, Ms. Kirwin argues that “lawful right to physical custody” must refer to the court-designated custodial parent in cases where it is a parent who is being denied custody of the children.
¶ 14 The criminal code does not define or otherwise clarify the meaning of “lawful right to physical custody.” Standing alone, the term is ambiguous. Black's Law
provides multiple definitions for physical custody, some of which support Ms. Kirwin's position (“[t]he right to have the child live with the person awarded custody by the court”) but others of which support the State's (“[p]ossession of a child during visitation”). Black's Law Dictionary 1263 (9th ed. 2009) (definitions 2 and 3). However, the plain meaning of a statute is discerned by examining everything the legislature has said in the statute itself and any related statutes that reveal legislative intent regarding the provision at issue. In re Custody of E.A.T.W., 168 Wash.2d 335, 343, 227 P.3d 1284 (2010). The meaning of words in a statute is not determined from those words alone but from all the terms and provisions of the act as they relate to the subject of the legislation, the nature of the act, the general object to be accomplished and consequences that would result from construing the particular statute in one way or another. Id. at 343–44, 227 P.3d 1284.
¶ 15 Reviewing the custodial interference statute as a whole, it is significant that it differentiates between “a lawful right to physical custody” and “authorized visitation” in describing one alternative offense. RCW 9A.40.060(1)(d) provides that a relative commits first degree custodial interference when she or he
[r]etains, detains, or conceals the child or incompetent person in another state after expiration of any authorized visitation period with...
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