State v. Renfro

• Decision Date: 03 October 2008
• Docket Number: No. 97,863.,97,863.
• Citation: 193 P.3d 483
• Parties: STATE of Kansas, Appellee, v. Gregory A. RENFRO, Sr., Appellant.
• Court: Kansas Court of Appeals

193 P.3d 483

STATE of Kansas, Appellee, v. Gregory A. RENFRO, Sr., Appellant.

No. 97,863.

Court of Appeals of Kansas.

October 3, 2008.

Krystle M. Dalke, legal intern, and Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.

Elizabeth J. Dorsey, legal intern, Steven J. Obermeier, assistant district attorney, Phill Kline, district attorney, and Paul J. Morrison, attorney general, for appellee.

Before MALONE, P.J., BUSER, J., and LARSON, S.J.

LARSON, J.

In this appeal, Gregory A. Renfro, Sr., challenges his conviction of aggravated interference with parental custody contending there was insufficient evidence to prove the charge and that the conviction violates his fundamental right to be a parent.

With the sufficiency of the evidence in issue, we will set forth the facts in considerable detail which resulted in Renfro's conviction after a jury trial.

Latoya Berry and Renfro are the biological parents of G.R., born April 18, 2003. Berry and Renfro ended their relationship in April 2005 when their child was 2 years old. They were not dating on April 3, 2006. They had never married. There was no written visitation schedule.

Renfro had not had planned visits with the child since the child was 6 months old. Berry testified Renfro called and asked to see the child every 3 months and visited the child at Berry's mother's house. Renfro had "off and on" contact, about twice per month, with the child from the time the parents broke up until April 3, 2006. Berry testified Renfro's sporadic conduct was not due to her denying Renfro visitation.

On April 1, 2006, between 3:30 and 4 a.m., Renfro went to Berry's apartment saying he wanted to see the child. Berry told Renfro it was not a good time. After Berry closed and locked the door, Renfro climbed up to Berry's third-floor balcony and knocked on the window. She testified she was not comfortable with Renfro's presence that night because she had not seen or heard from him for a month and was unsure why Renfro was there at that time in the morning.

Two days later on April 3, 2006, Renfro showed up at Berry's doorway around 9 p.m. Renfro said he wanted to see the child. Berry said it was not a good time as she had not talked with Renfro earlier that day. Berry attempted to close the door, but Renfro pushed it open causing Berry to fall. Berry testified Renfro took her cell phone and then proceeded to play with the child. Berry said she did not call the police when Renfro arrived, nor did she tell him he could not come in or ask him to leave.

Berry testified Renfro told her he wanted to talk in the hallway and Renfro moved toward the door with the child. Berry stated Renfro then ran down the stairs with the child and she ran after him. Berry stated she told Renfro not to take the child and asked Renfro if he came to her apartment to take the child. Berry testified Renfro denied coming to take the child but did not say anything else as he put the child in the front seat of the car without a car seat. Berry stated Renfro got in the car, locked the doors, and left. Berry called the police, but they told her there was nothing they could do because Renfro was the child's father. Berry testified she had safety concerns about Renfro seeing the child because Renfro did not have a permanent residence and stayed at different places. Berry testified she called Renfro numerous times after he took the child and asked when he planned to return the child and where the child was; Renfro would not answer either question.

On April 4, Berry filed for a protection from stalking order because she was worried about her safety and that of the child. Berry stated she unsuccessfully looked for the child that day. She also spoke with Renfro, but he would not tell her the child's location. On April 5, Berry searched for the child and talked to Renfro on the phone; he continued to refuse to disclose the child's location. Berry testified she called Renfro's relatives who told her they did not know anything, or if Renfro was at their house, he would hang up on Berry.

Berry filed a formal police report with the Shawnee, Kansas, Police Department on April 6. She talked to the child on the phone that day for the first time since Renfro took him. Berry and Renfro spoke on the phone on April 7, but Renfro refused to give Berry the child's location. That day, Berry and her father went to Move Up which printed flyers. They also advertised the missing child on the radio.

A meeting was held between Berry, her parents, and Renfro at the Jackson County Library on April 8. Berry testified Renfro would not tell her where the child was. The meeting ended when Berry's mother began crying, Renfro became upset and said, "I don't need this," and walked out.

Renfro called Berry to arrange another meeting on April 9. Berry testified Renfro told her she could see the child if she came alone. They were supposed to meet at a house in Missouri, but Renfro later called saying the meeting was cancelled because his friend decided they could not meet at his house. Berry did speak to the child on this day.

On April 10, Berry went to the Shawnee Police Department again and spoke with Shawnee Sergeant Carrie Hall who told Berry she could not find the child and was having trouble with the Kansas City, Missouri, police because the child was not in the national database as a missing child. After speaking with Berry, Sergeant Hall reclassified the case as an aggravated interference with parental custody and entered the child in the national database.

Sergeant Hall received a call from Renfro who said he had the child but refused to disclose the location. Sergeant Hall testified that Berry had Renfro's girlfriend's address in Kansas City, Missouri, where police attempted to make contact but no one answered the door.

Berry testified she talked to Renfro on April 11 and asked where the child was but Renfro continued to refuse to disclose the location. The next day, Berry was interviewed by a local TV news channel about the child. After the newscast aired that day, an anonymous tip about Renfro's location was received by the police. Police then knocked on the door of a house in Kansas City, Missouri, and Renfro answered the door. The child was there and was returned to Berry.

During the trial, Berry admitted Renfro told her he wanted to spend time with the child and would return the child at some time. She admitted to talking to Renfro but denied that he told her where he and the child were and where they were staying.

Renfro's aunt testified the child and Renfro were at her house at times between April 3 and 12. The aunt said Berry knew where the child was and did not mind Renfro having the child. Berry testified she looked for her child at the aunt's house because he had been found there previously, but he was not there when she checked.

Renfro testified he came to Berry's apartment on April 3 after calling and obtaining permission to come. He denied pushing in the door or pushing Berry to the floor. He admitted taking the child but claimed Berry did not chase him or tell him to stop. He admitted he lied when he told Berry he would not keep the child for very long. Renfro testified he and the child stayed at a different residence each night. He claimed that Berry did not tell him that the police were involved and if he had known, he said he would have returned the child. He said he learned of police involvement on April 10 when he spoke with Sergeant Hall and refused to disclose the child's location.

Renfro admitted he took the child and that he did not give Berry a date that he would return the child. He said he called Berry daily to let her know the child was fine. He testified he wanted to arrange a visitation schedule and did not return the child to Berry because he knew she would not let him see the child on Easter or his birthday. He claimed he did not intend to conceal the child between April 3 and April 12.

Based on the above evidence, Renfro was convicted of aggravated interference with child custody in violation of K.S.A. 21-3422a. After several of Renfro's motions were overruled, he was sentenced to 24 months' probation with an underlying prison sentence of 23 months and the condition that he not have contact with Berry or the child while at Labette Correctional Conservation Camp (Labette).

Renfro timely appealed.

Renfro's probation was subsequently revoked after he was removed from Labette for disciplinary reasons. He was ordered to serve his original sentence.

Renfro first argues his fundamental right to be a parent is violated by his conviction of aggravated interference with parental custody. He admits he did not assert that his conviction was unconstitutional at his trial but now argues his situation falls under the exceptions the Kansas Supreme Court has recognized for addressing a constitutional claim for the first time on appeal as set forth in State v. Gonzalez, 282 Kan. 73, 114, 145 P.3d 18 (2006):

"`(1) The newly asserted claim involves only a question of law arising on proved or admitted facts and is determinative of the case; (2) consideration of the claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights; and (3) the district court is right for the wrong reason.' [Citations omitted.]"

The State correctly points us to the longstanding rule that when constitutional grounds are asserted for the first time on appeal, the issue is not properly before the court on review. State v. Powell, 274 Kan. 618, 625, 56 P.3d 189 (2002). However, the right to be a parent is a fundamental right recognized as a liberty interest to be protected by the Due Process Clause. See, e.g., Troxel v. Granville, 530 U.S. 57, 65-66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); In re Adoption of Baby Boy L., 231 Kan. 199, 221, 643 P.2d 168 (1982). The issue Renfro raises is purely a question of law and is necessary to be considered to prevent the denial of a...