State v. Porter

• Citation: 241 S.W.3d 385
• Decision Date: 18 December 2007
• Docket Number: No. WD 66921.,WD 66921.
• Parties: STATE of Missouri, Respondent, v. Daniel W. PORTER, Appellant.
• Court: Court of Appeal of Missouri (US)

241 S.W.3d 385

STATE of Missouri, Respondent, v. Daniel W. PORTER, Appellant.

No. WD 66921.

Missouri Court of Appeals, Western District.

December 18, 2007.

Ruth Sanders, Kansas City, MO, for Appellant.

Shaun J. Mackelprang, Jefferson City, MO, for Respondent.

Before LAURA DENVIR STITH, Sp.J., P.J., JAMES M. SMART, JR., and THOMAS H. NEWTON, JJ.

JAMES M. SMART, JR., Judge.

Daniel Porter was convicted after a jury trial of two counts of kidnapping his own children to terrorize their mother in violation of section 565.110.¹ He was also convicted of two counts of parental kidnapping in violation of section 565.153 for refusing to return the children after the weekend visitation. On appeal, Porter contends, inter alia, that he could not be convicted of the "unlawful removal" of his own children under section 565.110. The basis of Porter's argument is that, as a parent with custody rights, he was privileged by law to control the movement of the children. He also seeks a new trial as to the remaining charges on the basis of alleged trial court error. For the reasons set forth herein, we reverse in part, and affirm in part.

Background

The basic facts of the case were not disputed at trial. Daniel and Tina Porter married in 1991. Two children were born of the marriage, Lindsey and Samuel. In September of 2003, the couple separated. Tina Porter and the Porters' young children lived with Tina's sister. Daniel Porter (hereafter "Porter") visited the children frequently. The separation continued for several months, until December of 2003, when Tina and the children moved back home.

In mid-January 2004, Tina separated from Porter again. Because of erratic, threatening actions by Porter, who was emotionally distraught, Tina obtained an ex parte order of protection, limiting Porter's contact with her. The order also specified limitations on Porter's contact with the children and required that another person supervise his time with the children. Despite the terms of the order, however, Tina did not require that the visits be supervised because of her belief that Porter would not hurt the children.

Porter filed a petition for divorce shortly after the second separation. Porter agreed to move out of the house and to allow Tina and the children to live in the house. The order of protection against Porter expired February 18, 2004. Tina obtained a second order of protection in May of 2004, limiting Porter's contact with Tina. This order did not restrict Porter's visits with the children. Tina agreed to allow visitation to Porter in accordance with the schedule and terms of the first order.

On the morning of Saturday, June 5, 2004, about nine months after the original separation, Porter arrived to take the children for the weekend. The agreed schedule called for Porter to have the children until 6:00 p.m. Sunday, June 6. After saying he was going into the house to retrieve fireworks, Porter retrieved a rifle and a shotgun he had earlier hidden above the ceiling tiles in the basement. He stated that these were the guns he would use to shoot himself. Tina insisted that he leave the guns at the house. Porter did leave the guns. He took the children.

Later that morning, Porter contacted Tina and stated that he had bought some furniture at an estate sale and needed to trade vehicles with her so he could use the pickup truck. Tina went to meet Porter on Cement City Road, a few miles from her house. Lindsey and Samuel were not with him. He said he left them at the estate sale. She said she would drive him to get the furniture. As they were driving along Cement City Road, Porter asked Tina to put the truck in 4-wheel drive and pull onto a narrow path into the woods. He said he had stashed a bag of $50,000 cash at that spot and he wanted to retrieve it. Porter wanted her to go up in the woods with him to get this cash. Tina refused to stop. She suggested that Porter take the truck himself. She said she would take his car. They returned to Porter's car. Tina noticed that the children's suitcase was in the back of the car. Tina told Porter that he was forgetting the children's suitcase. He took it from her.

Later that day, Tina received a message from Porter, stating he was taking the children to Worlds of Fun amusement park. Tina attempted to call Porter back because she was worried that the children did not have proper clothes for a trip to Worlds of Fun. Porter did not respond to her calls. Porter contacted Tina again around 9:00 that evening. He told her they were staying at a motel near Worlds of Fun. Tina asked to talk to the children and Porter stated that they were upstairs and could not talk to her. She asked that he go upstairs and call her back so that she could talk to the children. Porter responded that he would bring the children home at 6:00 p.m. the next day.

The next morning, Porter text messaged Tina with a message that said, "Go to 210 and 291. Behind a pole there's a note. Be strong." Tina and her sister went and found a card. The card contained a message that seemed to be saying goodbye, with vague sentiments. Then the card stated: "After talking for two hours with — I'm sorry I can't give names. This family will take care of our kids."

Tina and her sister sought help from the police. Tina returned home and received a text message from Porter informing her that she had "one call before [he] die[d]." Tina called him and asked him where the children were. Porter did not answer the question.

A few days later, on June 10, 2004, the police arrested Porter near Trenton, Missouri. The children were not with him and had not been found. In police interviews, Porter told the officers various and divergent stories about what he had done with the children, including, among other statements, that he had "sold them," and that he had "killed them" and thrown them "in the river." In a telephone conversation with Tina, Porter said, "the only way I can hurt you is to keep the children from you." He also said that she would never see the children again.

Porter was charged with two counts of "traditional" kidnapping in violation of section 565.110 (a class B felony as charged) and two counts of parental kidnapping in violation of section 565.153 (a class D felony). The kidnapping charges under section 565.110 specified that the crimes took place on June 5, 2004, when Porter is alleged to have "unlawfully removed" the children from their mother's residence "without consent" for the purpose of terrorizing Tina Porter. The parental kidnapping charges asserted that Porter violated section 565.153 on June 6, 2004, when Porter concealed the children instead of returning them.

The circuit court entered a dissolution decree on November 2, 2004, while the criminal charges were pending. The court awarded custody of the children, who were still missing, to Tina.

At the trial on the criminal charges, Porter did not testify. There was no attempt to refute the evidence that Porter had taken and concealed the children. Apart from a legal attack on the applicability of section 565.110, Porter's main defense strategy was to suggest that Porter's motive for hiding the children was not to terrorize Tina Porter, but was instead driven by his fear that Tina would remarry and the children would be subject to an abusive stepfather. This notion was presented through the testimony of Porter's half-brother, who testified that Porter himself had been severely abused as a child by his stepfather.

The jury found Porter guilty of both counts of kidnapping under 565.110 and both counts of parental kidnapping under 565.153. The court sentenced Porter to 15 years for each count of kidnapping and 4 years for each count of parental kidnapping, to run consecutively for a total of 38 years.²

Grounds on Appeal

Although Porter appeals the convictions as to all counts, his appeal as to the two parental kidnapping convictions seeks a new trial on grounds of trial court error related to evidentiary matters. He does not claim he is entitled to outright reversal and acquittal on those charges. With regard to the traditional kidnapping charges under section 565.110, however, he contends that he is entitled to outright acquittal because the State failed to present evidence of his guilt of all statutory elements.

1. The Challenge to the Traditional Kidnapping Conviction

A. The Kidnapping Statutes

Before we turn to consideration of Point I, it may be helpful to provide an overview of the two kidnapping statutes under which the charges were brought in this case. The charges under 565.110 carried a maximum fifteen-year sentence for each count (as a class B felony). We can refer to section 565.110, for lack of a better term, as "traditional kidnapping" because it incorporates the elements we commonly and traditionally associate with kidnapping. The charges under 565.153, on the other hand, carried a maximum four-year sentence for each count (as a class D felony). We refer to section 565.153 by its statutory title: "parental kidnapping."

1. Parental Kidnapping Under 565.153

The two separate charges of "parental kidnapping" pursuant to section 565.153, each a class D felony, dealt with Porter's behavior in refusing to return the children on and after June 6, 2004. Section 565.153 is a statute adopted in 1988 to provide for a criminal penalty when a parent, without good cause, interferes with the custody rights of the other parent or of a state agency. A person commits the class D felony of parental kidnapping under 565.153 if he or she:

[i]n the absence of a court order determining rights of custody . . . removes, takes, detains, conceals, or entices away a child without good cause, and with the intent to deprive the custody right of another person or a public agency also having a custody right of the child.

The charge against Porter under 565.153 specified that, instead of returning the children as agreed, he concealed them without good cause to deprive Tina...