State v. Kracker, 1
| Decision Date | 12 June 1979 |
| Docket Number | No. 1,CA-CR,1 |
| Citation | 599 P.2d 250,123 Ariz. 294 |
| Parties | STATE of Arizona, Appellee, v. Frances Wilma KRACKER, Appellant. 3527. |
| Court | Arizona Court of Appeals |
This is an appeal from the judgment of guilt and sentence imposed for the appellant's violation of the child stealing statute, A.R.S. § 13-841. 1 Appellant was placed on probation for ten years with a condition that she spend one year in Maricopa County Jail.
In a prior divorce proceeding the trial court awarded the permanent legal custody of the appellant's son, Harold Ray Agee, Jr., to the appellant's former husband. On July 15, 1977, appellant went to her former husband's home and picked up her son in exercise of weekend visitation rights granted to her by the trial court. Rather than return the child to his father by 6:00 p. m. on July 17, 1977, in compliance with the court's visitation orders, appellant took the child to Arkansas where they remained until October, 1977, when the boy's father located them.
The jury convicted the appellant under A.R.S. § 13-841, which provides as follows:
A person who maliciously, forcibly or fraudulently takes or entices away a child under the age of seventeen years with intent to detain and conceal the child from its parent, guardian or other person having lawful charge of the child, shall be punished by imprisonment in the state prison for not to exceed ten years, or by imprisonment in the county jail for not to exceed six months and by a fine not exceeding five hundred dollars.
The appellant argues on appeal that her motivation in taking the child from his father should preclude her conviction under A.R.S. § 13-841. She claims that the boy's father was unfit to be the legal custodian, and that she acted in what she perceived to be the best interests of the child by taking him from her former husband. Specifically, appellant argues that the trial court erred by excluding evidence offered to demonstrate the father's unfitness, and by refusing to instruct the jury that she lacked the requisite criminal intent if she acted "through misfortune" and with "no evil design, intention, or culpable negligence." We disagree.
To support a child stealing conviction under A.R.S. § 13-841, the State must present proof of the defendant's "intent to detain and conceal the child" from its legal custodian. The appellant admitted at trial that she deliberately took her son to Arkansas in knowing violation of the court's custody order and concealed his whereabouts from his father. The evidence established the elements for conviction under this statute. Assuming, arguendo, that the appellant was motivated by a desire to help rather than hurt the child, such motivation was not relevant and could not constitute a defense to the charge. The trial court did not err by rejecting the appellant's offer of proof and requested jury instruction. The court properly instructed the jury that the State must prove that the appellant had the "specific intent to detain and conceal the child" from his legal custodian.
The appellant's reliance on A.R.S. § 13-134 is misplaced. That section provides in pertinent part that a person shall not be punished for acts committed
through misfortune or by accident, when it appears that there was no evil design, intention or culpable negligence. 2
This section merely provides generally that a person shall not be subject to criminal liability if he does not possess the mental state required by a particular criminal statute. The mental element which must be shown under A.R.S. § 13-841 is the "intent to detain and conceal...
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Rios v. State
...the parent interferring with custody. This case may create a lot of new work for prosecutors. I would reverse. 1 See State v. Kracker, 123 Ariz. 294, 599 P.2d 250 (App.1979); State v. Scofield, 7 Ariz.App. 307, 438 P.2d 776 (1968); Thomas v. State, 262 Ark. 79, 553 S.W.2d 32 (1977); People ......
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State v. Viramontes
...cited therein; see also State v. McLaughlin, 125 Ariz. 505, 507, 611 P.2d 92, 94 (1980) (child abduction); State v. Kracker, 123 Ariz. 294, 295, 599 P.2d 250, 251 (App.1979) (child stealing). However, the general rule cannot be applied to the facts of this case. The cases cited involve pare......
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State v. Alladin, C8-86-1734
...for taking his own child away from the person to whom custody has been awarded by a court decree. See, e.g., State v. Kracker, 123 Ariz. 294, 599 P.2d 250 (Ct.App.1979); McNeely v. State, 181 Ind.App. 238, 391 N.E.2d 838 (1979); People v. Hyatt, 18 Cal.App.3d 618, 96 Cal.Rptr. 156, (4 Appel......
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State v. Coleman
...v. Grooms, 145 Ariz. 439, 702 P.2d 260 (App.1985); State v. Donahue, 140 Ariz. 55, 680 P.2d 191 (App.1984). See also State v. Kracker, 123 Ariz. 294, 599 P.2d 250 (App.1979). From the face of the statute, it appears that failure to voluntarily return the child was intended by the legislatur......