State v. Lefthand
| Decision Date | 03 September 2015 |
| Docket Number | No. 33,396.,33,396. |
| Parties | STATE of New Mexico, Plaintiff–Appellant, v. Adria LEFTHAND, Defendant–Appellee. |
| Court | Court of Appeals of New Mexico |
Hector H. Balderas, Attorney General, Santa Fe, NM, Jacqueline R. Medina, Assistant Attorney General, Albuquerque, NM, for Appellant.
Jorge A. Alvarado, Chief Public Defender, Nina Lalevic, Assistant Public Defender, Santa Fe, NM, for Appellee.
{1} The State appeals from dismissal of an indictment against Defendant on one count of custodial interference for improper venue. We reverse the district court, holding that the place where a person, with a right of custody, was deprived of that right by the wrongful actions of another establishes a proper venue for the trial of the crime. In this case, the person with whose custody Defendant interfered resided in and has the right to custody of the child in Taos County. This is sufficient to confer venue on the district court in Taos County. The case is remanded with an order to reinstate the indictment against Defendant in the Taos County district court.
{2} Defendant and Gilbert Martinez lived in Taos, New Mexico, and have a son who was born in Taos. As the result of Defendant's petition to determine paternity, custody, and support, the Taos County district court entered a stipulated order in 2007 governing support and custody and granting Gilbert Martinez visitation with his child.
{3} After the order was entered, Defendant moved to Albuquerque, while Martinez remained in Taos. After problems with Defendant's compliance with ordered time sharing, Martinez requested the Taos County district court to modify the prior order; the district court found that Martinez had made a good faith effort to maintain time-sharing with his child, and Defendant had thwarted those efforts. The district court entered an order containing a new time-sharing plan to begin on August 10, 2010.
{4} Martinez was unable to exercise his rights to custody under the time-sharing plan from August 2012 through January 2013 because Defendant did not abide by the new plan. Orders to show cause elicited no response from Defendant. Subsequently, Defendant was indicted by a Taos County grand jury for custodial interference. Defendant moved to dismiss the indictment for improper venue, maintaining that since she had failed to deliver the child to Martinez in Santa Fe, where the August 2012 order directed the exchange of custody to take place, venue was not proper in Taos County.
{5} The district court agreed with Defendant and dismissed the indictment. Its order of dismissal found that "the only connection to Taos County in the above styled case is that the parenting plan was entered into in Taos County and the alleged victim resides in Taos County". It further found that "none of the material elements of the crime were alleged to have been committed in Taos County, and thus venue is improper in Taos County." The State appealed.
{6} We review de novo questions involving the statutory interpretation of the essential elements that must be proven to constitute a criminal offense. State v. Roybal, 2006–NMCA–043, ¶ 25, 139 N.M. 341, 132 P.3d 598. Questions involving the statutory interpretation of what essential elements must be proven to constitute a criminal offense are likewise reviewed de novo. State v. Rivera, 2004–NMSC–001, ¶ 9, 134 N.M. 768 82 P.3d 939. When construing a statute, we first refer to the statute's plain meaning, avoiding constructions that would produce an absurd result; if absurdity would result, we construe the statute according to its obvious spirit or reason. State ex rel. Helman v. Gallegos, 1994–NMSC–023, ¶ 19, 117 N.M. 346, 871 P.2d 1352. Venue is not an element of an offense and does not relate to the guilt or innocence of the defendant; as a result, "it may be established by a mere preponderance of the evidence." Roybal, 2006–NMCA–043, ¶ 19, 139 N.M. 341, 132 P.3d 598.
{7} Defendant does not dispute that Martinez has custody rights from the court order setting time sharing with their son, that all acts alleged in the case occurred in New Mexico, or that the child was present within New Mexico at all relevant times. Defendant states that "[t]he alleged acts or omissions in this case took place in either Santa Fe or Bernalillo County." According to Defendant, Bernalillo County would be a proper venue in which to try the allegation that she detained the child by refusing to leave her home there, and Santa Fe County would have venue over the allegation that she did not turn the child over to Martinez in that county as ordered by the Taos County district court, possibly satisfying the "failing to return" element. This focus on the various methods of committing the crime begs question of what constitutes the elements of custodial interference, in order to determine where Defendant transgressed any that might be essential.
Custodial interference consists of any person, having a right to custody of a child, maliciously taking, detaining, concealing or enticing away or failing to return that child without good cause and with the intent to deprive permanently or for a protracted time another person also having a right to custody of that child of his right to custody. Whoever commits custodial interference is guilty of a fourth degree felony.
NMSA 1978, § 30–4–4(B) (1989).
§ 30–4–4(A)(5)(a)(b).
All trials of crime shall be had in the county in which they were committed. In the event elements of the crime were committed in different counties, the trial may be had in any county in which a material element of the crime was committed.
In all criminal prosecutions, the accused shall have the right to appear and defend himself in person ... [and] to have ... a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.
NMSA 1978, § 30–1–14 (1963).
{8} Defendant asserts that the actus reus —the wrongful deed—is solely the act of detaining or failing to deliver the child. She insists that the elements of the crime are limited to "the alleged actions of the accused, not the effect those actions have on other people." Defendant asserted to the district court that her failure to deliver the child to his father in Santa Fe was the only alleged element or act of custodial interference. She has expanded this view on appeal to include detaining the child in Bernalillo County where she resides, but insists that because none of the things she allegedly did to transgress the elements of the crime "took place in Taos County[,]" venue in Taos County was improper.
{9} The district court appears to have agreed with Defendant's arguments in dismissing the indictment. The district court set out the actus reus elements as "taking, detaining, concealing, enticing away or failing to return [a] child," and the mens rea as doing the acts maliciously "with the intent to deprive permanently or for a protracted period of time another person having a right of custody of that child of his right of custody." It found that Defendant failed to turn over the child to his father in Santa Fe County and that "none of the material elements of the crime were alleged to have been committed in Taos County[.]" The State asserts that this is not the sum of the essential elements. We must determine what the elements of the offense are.
{10} The ultimate goal in statutory construction "is to ascertain and give effect to the intent of the Legislature." State v. Cleve, 1999–NMSC–017, ¶ 8, 127 N.M. 240, 980 P.2d 23. The title of a statute is frequently useful to directing its construction. Tri–State Generation & Transmission Ass'n, Inc. v. D'Antonio, 2012–NMSC–039, ¶ 18, 289 P.3d 1232. Here, the statute is entitled "[C]ustodial [I]nterference," and it "is intended to prevent persons with custodial rights from disrupting another person's right to custody." State v. Munoz, 2006–NMSC–005, ¶ 16, 139 N.M. 106, 129 P.3d 142. The gravamen of a criminal offense is the "burden or gist of a charge; the grievance or injury specially complained of." Black's Law Dictionary 547 (2d ed.1910). We still emphasize the "wrong or evil the statute is designed to remedy." State v. Hernandez, 2001–NMCA–057 ¶ 18, 130 N.M. 698, 30 P.3d 387. The gist of this offense is to punish the intentional disruption or deprivation of the established custody rights of another.
{11} The elements cited by the Taos County district court, such as taking, detaining, concealing, or enticing away, are no more than various means of accomplishing the gravamen of the offense, which is an unlawful deprivation of, or interference with, the right of custody. See State v. Sung, 2000–NMCA–031, ¶ 9, 128 N.M. 786, 999 P.2d 430 (); cf. State v. Swick, 2012–NMSC–018, ¶ 40, 279 P.3d 747 ().
{12} In Munoz, our Supreme Court determined that interference with the right to custody may be accomplished either by "taking interference," or "failing to...
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