State v. Simplot, 92-1520-CR
| Decision Date | 24 November 1993 |
| Docket Number | No. 92-1520-CR,92-1520-CR |
| Citation | 509 N.W.2d 338,180 Wis.2d 383 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Randy S. SIMPLOT, Defendant-Appellant. d |
| Court | Wisconsin Court of Appeals |
Before EICH, C.J., GARTZKE, P.J., and DYKMAN, J.
Randy Simplot appeals from a judgment convicting him as a party to the crimes of kidnapping (while armed and concealing identity) and armed burglary (while concealing identity) 1 and from an order denying his motions for postconviction relief.
The charges stemmed from his participation in breaking into the home of his sister's former live-in companion, Brent Bradley, and taking away the couple's three young children.
Simplot argues on appeal that: (1) the evidence was insufficient to convict him of kidnapping and armed burglary; (2) the trial court erred in rejecting his proposed jury instruction that he was immune from prosecution for kidnapping if he was acting on behalf of the children's mother; (3) the court improperly responded to a question posed by the jury during deliberations; (4) he was denied a fair hearing on the charges because of several errors in the conduct of the trial; and (5) he is entitled to a new trial on grounds of newly discovered evidence. We reject his arguments and affirm the judgment and order.
Simplot was tried jointly with his sister, Lisa Oliver, the children's mother. Lisa and Brent Bradley had lived together for several years and, during their relationship, paternity orders were entered declaring Bradley to be the father of their three children and granting legal custody to Lisa. She eventually married Mark Oliver and moved to Indiana with him.
In October, 1990, when the incident giving rise to the charges occurred--and for reasons that are not entirely clear in the record--the children had been living with Bradley for nearly a year. 2 On the weekend of October 19, Lisa, Simplot and Mark Oliver's brother, Michael, drove from Indiana to Bradley's residence in Beloit, ostensibly in an effort to pick up the children. When Lisa was advised by Beloit police officers that she would have to wait until Monday to speak to someone at the district attorney's office about taking the children, she and the others returned to Indiana.
The following evening, a Saturday, Lisa and Simplot, along with Mark and Michael Oliver and a fourth man, Edwin Brooks, returned to Beloit and drove to Bradley's house. Simplot, Mark Oliver and Brooks got out of the car and entered the home through a rear entrance. Mark Oliver and Brooks were carrying guns and wore masks. While Simplot and Mark Oliver remained in the kitchen and dining room to avoid being recognized, Brooks entered the living room, where Bradley was watching television with the three children, another child of his from a former marriage, and one of the children's friends. Brooks ordered Bradley to lie on the floor and began beating him with a shotgun and a barbell he apparently found in the house. Bradley was then locked in a closet and, while Brooks took a .22-caliber pistol belonging to Bradley and cash from his wallet, Simplot and Mark Oliver took the three children out to the car where Lisa and Michael Oliver were waiting. They immediately left for Indiana.
Bradley, bleeding from his injuries, ran to a neighbor's house to call the police, and Simplot and the others were stopped by state patrol officers a short time later in northern Illinois. The officers found an unloaded automatic pistol on the rear seat of the car next to Simplot, a .22-caliber pistol underneath the front passenger seat and an unloaded sawed-off shotgun in the rear hatchback compartment. Shotgun shells and bullets were also found in the car and each of the five adults was arrested.
Simplot and Lisa were tried jointly on several charges. Lisa was acquitted on all charges and, as indicated, Simplot was convicted of being a party to kidnapping and armed burglary and was sentenced to ten years in prison. Other facts will be discussed in the body of the opinion.
Simplot maintains that he cannot be convicted of kidnapping the children because he was acting on behalf of their mother and thus had a legal right to take them. We consider this argument first.
Specifically, Simplot challenges the trial court's rejection of a proposed jury instruction stating, in effect, that because a parent with legal custody of a child cannot be found guilty of kidnapping, neither can "a person acting on behalf of" such a parent.
At common law, even in the absence of a custody order, a parent does not commit the crime of kidnapping by taking the child from the other parent. See Annotation, Kidnapping or Related Offense By Taking or Removing of Child By or Under Authority of Parent or One in Loco Parentis, 20 A.L.R.4th 823, 828-30 (1983). 3
The annotation, which is, in essence, the only authority offered by the parties, also suggests that a majority of courts considering the issue have held that one who acts as an agent of a parent, or assists the parent in taking custody of a child, may not be held criminally liable for kidnapping unless the parent from whom the child was taken has a court order granting him or her custody. Kidnapping, 20 A.L.R.4th at 831-32. Only two of the cases cited for the proposition were decided within the last forty years: State v. Walker, 35 N.C.App. 182, 241 S.E.2d 89 (1978), and State v. Edmiston, 43 Or.App. 13, 602 P.2d 282 (1979).
In Walker, the child's grandfather and father went to the child's school, picked him up as he left the school bus and took him to the father's car. The court concluded that, because there was no court order granting custody to the child's mother, and because the father had consented to the grandfather's participation in taking the child, the grandfather could not be convicted of abducting the child. Walker, 241 S.E.2d at 91. The Edmiston court, without stating the defendant's relationship to the child or engaging in any discussion of the circumstances of the taking, also held that the defendant who, acting at the direction of the child's father, took the child from its mother, could not be guilty of kidnapping because he acted with the lawful custodian's consent. Edmiston, 602 P.2d at 283-84. 4
The rationale of cases adopting the minority view that the parent's immunity does not extend to the agent was also discussed in Edmiston:
The state's position [that the parent's "agent" may be found guilty of kidnapping despite the immunity enjoyed by the parent] finds support in the decisions of several courts which have held agents guilty of kidnapping while exempting the parent at whose instance the taking occurred. The distinction rests on the presumption that the danger to the child is substantially less where the person doing the taking is a parent likely to have the best interests of the child in mind. Further, the parent from whose custody the child is taken will recognize the taker, thereby lessening that parent's mental anguish and reducing the likelihood of breaches of the peace inherently probable where the child is taken by an unrecognized, alleged agent of the parent. Edmiston, 602 P.2d at 283 (citations omitted). 5
In Wilborn v. Superior Court, 51 Cal.2d 828, 337 P.2d 65 (1959), the California court, holding that the agent did not share the parent's immunity, elaborated on the point:
If a child be taken or enticed away from one parent by the other parent, the mental anxiety of the parent who loses the child would not ordinarily be nearly so great as where the child passes into the hands of one having no parental obligations toward the child. Thus, it would seem that whatever may be the right of one parent, in the absence of an order for child custody, to invade the possession of the other to take or entice away their mutual offspring, such right may not be delegated to an agent. To hold otherwise would result in untold confusion and provoke many possible breaches of the peace in that the parent having possession of the child would be at the mercy of persons acting as alleged agents of the other parent and claiming immunity from prosecution under the statute because of the personal right of their principal. Such consequences would not promote the interests of the parents, the child or the public welfare. Wilborn, 337 P.2d at 66 (citation omitted).
Similarly, in State v. Stocksdale, 138 N.J.Super. 312, 350 A.2d 539 (N.J.Super.Ct.Law Div.1975), the New Jersey court, relying on Wilborn, concluded that a parental exemption in a kidnapping statute would not apply to a third party who conspired with the child's father to take the child away. The defendant in Stocksdale was a private investigator hired by the child's father to regain custody of the couple's child. The child was living with her mother and grandparents. While the mother was at work, the defendant lured the grandfather away from the house with a telephone call telling him his daughter had been injured in an automobile accident. The defendant then went to the home and distracted the grandmother at the front door with tales of the daughter's alleged accident, while the father entered the house through the rear and "spirited away his infant daughter...." Id. at 542.
The court, acknowledging that "[t]here is much to compel a holding that a relative or close friend should not be guilty of kidnapping when, in good faith, he or she assists a distraught parent in one of these unfortunate custody struggles," Stocksdale, 350 A.2d at 543, went on to state, however, that:
This case, involving this defendant, is hardly a "good faith" situation. Defendant's interest in this matter is purely pecuniary. He was paid by an irate father to help wrest custody from the mother and to assist the father in removing the child to a faraway jurisdiction. Public policy mandates against a finding...
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