State v. Teynor

• Decision Date: 27 August 1987
• Docket Number: 87-1589-CR,Nos. 86-1077-C,s. 86-1077-C
• Citation: 414 N.W.2d 76,141 Wis.2d 187
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Clarence James TEYNOR, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 76

414 N.W.2d 76

141 Wis.2d 187

STATE of Wisconsin, Plaintiff-Respondent, v. Clarence James TEYNOR, Defendant-Appellant.

Nos. 86-1077-CR, 87-1589-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Feb. 9, 1987.

Opinion Released Aug. 27, 1987.

Opinion Filed Aug. 27, 1987.

Review Denied.

Mark A. Eisenberg and Eisenberg Law Offices, S.C., Madison, for defendant-appellant.

Bronson C. La Follette, Atty. Gen., and Jerome S. Schmidt, Asst. Atty. Gen., for plaintiff-respondent.

Before DYKMAN, EICH and SUNDBY, JJ.

SUNDBY, Judge.

Clarence Teynor appeals from a judgment convicting him of burglary, contrary to sec. 943.10(1)(a), Stats., and four counts of false imprisonment contrary to sec. 940.30, Stats., and an order denying his postconviction motion for relief. ¹ The burglary and false imprisonment convictions arise out of an incident which occurred July 23, 1985 in which Teynor is alleged to have entered his estranged wife's apartment without her consent and forced her and three of their children to accompany him to the former family home.

Teynor contends: (1) Because of his status as their parent, he could not be convicted of unlawfully imprisoning his children. (2) The temporary custody order did not deprive him of his lawful authority to confine and restrain his children. (3) There is no evidence from which the jury could have found him guilty beyond a reasonable doubt of false imprisonment of his wife and his children. (4) The trial court abused its discretion when it allowed the state to impeach him with a prior inconsistent statement without giving him an opportunity to explain the statement. (5) He was denied the effective assistance of counsel. (6) The trial court violated his right to be free from cruel and unusual punishment when it sentenced him to four consecutive one-year terms on the false imprisonment convictions. We reject Teynor's contentions and affirm.

I. BACKGROUND OF THE CASE

In January 1985 divorce proceedings the court awarded Teynor's wife, Janice, temporary custody of the couple's four children, pending an evidentiary hearing. The hearing was never held. Teynor exercised visitation. In June 1985 their son, James, began to live with Teynor.

In January 1985 Janice obtained a "domestic abuse injunction" under sec. 813.12, Stats., prohibiting Teynor from contacting Janice directly or going to her residence. In May 1985 Teynor gave a recognizance bond to secure his appearance on a disorderly conduct charge, conditioned that he have no direct or indirect contact with Janice.

On July 23, 1985 Teynor went to Janice's apartment. Their testimony conflicts as to whether he knocked prior to entering. In fact, their testimony is in serious conflict as to the events of that day. What is undisputed is that Janice packed and she and their three daughters were transported by Teynor from Holmen to the family's farm home in Wauzeka. Upon receiving a phone call telling him that the police were on their way to the farm, Teynor drove Janice and the children into some nearby woods. That evening Teynor surrendered Janice and the children to a priest and local authorities. Other facts will be set forth as necessary to our discussion of the issues.

II. FALSE IMPRISONMENT

Section 940.30, Stats., provides: "Whoever intentionally confines or restrains another without the person's consent and with knowledge that he or she has no lawful authority to do so is guilty of a Class E felony."

Teynor argues that because of his status as their parent, he could not be convicted of the offense of false imprisonment of his children. ² His appeal presents a question of first impression in Wisconsin. We conclude that a parent may commit the offense of false imprisonment against the parent's child.

Teynor cites State v. Lawrence, 135 Ariz. 569, 663 P.2d 561 (1983), where it was held that a mother who confined her four-year-old daughter in a foot locker for an extended period could not be guilty of criminal unlawful imprisonment. The Arizona statute provides: "A person commits unlawful imprisonment by knowingly restraining another person." Ariz.Rev.Stat.Ann. sec. 13-1303(A) (1978). The statutory definition of "restrain" requires that the restraint must be done without consent and without legal authority. Ariz.Rev.Stat.Ann. sec. 13-1301(2) (1978). The court held that the legislative intent in using the phrase "without legal authority" was to render the statute inapplicable because of the defendant's status with respect to the victim. The court adopted the following statement from the concurring opinion in the court of appeals:

[T]he phrase [without legal authority] seems clearly to suggest that where a legal status exists which ordinarily will entail control or discipline, such as that of parent and child, the crime of unlawful imprisonment is inapplicable.

Lawrence, 663 P.2d at 563. See also State v. Benner, 385 A.2d 48, 49 (Me.1978) (the legislative history showed that the legislature had established as the public policy of the state that a parent could not commit the crimes of kidnapping or unlawful confinement or transportation of his or her minor child.)

The legislative history of sec. 940.30, Stats., establishes that the legislature did not intend that the lawful authority which a parent has to confine or restrain his or her child makes the parent immune from prosecution under the statute for the nonconsensual restraint or confinement of the child. ³ Section 940.30 was created by ch. 696, Laws of 1955, which created a new criminal code. The discussions of the criminal code advisory committee of the Wisconsin legislative council show that the committee suggested that the legislature address the issue of parental liability for certain crimes against their children under the defense of domestic authority. 5 Wisconsin Legislative Council and Council Committees 1953-55, Minutes of the Criminal Code Advisory Committee, April 29, 30 and May 1, 1954, p. 13 (Legislative Reference Bureau). In consequence, sec. 939.45, Stats., was created to read:

The fact that the actor's conduct is privileged, although otherwise criminal, is a defense to prosecution for any crime based on that conduct. The defense of privilege can be claimed under any of the following circumstances:

....

(5) When the actor's conduct is reasonable discipline of a minor by his parent....

The parental status affords only a privilege which may be asserted as a defense to prosecution for any crime by a parent against his or her child if the conduct is reasonable discipline of the child. We therefore reject Teynor's contention that because of his status as their parent he could not be guilty of the offense of falsely imprisoning his children. ⁴

III. EFFECT OF TEMPORARY CUSTODY ORDER

The lawful authority of a parent over a minor child includes the authority to direct the child's activities and where the child shall live. That authority may be exercised by confining or restraining the child in a reasonable way. People v. Walker, 130 Ill.App.3d 58, 85 Ill.Dec. 396, 398 473 N.E.2d 995, 997 (1985). In the absence of a legally effective court order awarding custody of a child to another, a parent does not commit the crime of kidnapping or a similar crime by taking exclusive possession of the child. Adams v. State, 218 Ga. 130, 126 S.E.2d 624, 625 (1962). See also Annotation,Kidnapping or Related Offense By Taking or Removing Child By or Under Authority of Parent or One In Loco Parentis, 20 A.L.R.4th 823, 828-29 (1983). Teynor contends that the temporary custody order was not legally sufficient to deprive him of his authority to confine or restrain his children.

Teynor relies on Adams v. State, supra, and People v. Fields, 101 Mich.App. 287, 300 N.W.2d 548 (Mich.Ct.App.1980). In Adams, 126 S.E.2d at 626, the court decided that based on the nature of an award of temporary custody a father who seized and took his child away from the mother who had been awarded temporary custody could not be convicted of kidnapping under the Georgia statute. In Fields, 300 N.W.2d at 550, the court held that parents who seized and carried away their children who had been made temporary wards of the court were not guilty of the crime of kidnapping. The court concluded that the temporary loss of physical possession of a child could not serve as the basis for conviction of kidnapping under the Michigan statute. Id.

We agree with the court in State v. Chapman, 108 Idaho 841, 702 P.2d 879, 881 (1985), that Adams and Fields are "unpersuasive." We see no difference in determining the lawful authority of a parent to direct the activities of his or her child between a temporary custody order and a judgment making a permanent award of custody.

The temporary custody order was entered under sec. 767.23(1)(a), Stats. ⁵ Section 767.24(1)(d) provides: "The award of legal custody of a child under this section or s. 767.23(1)(a) shall give to the custodian the rights and responsibilities specified in s. 48.02(12)...."

Section 48.02(12), Stats., provides:

"Legal custody" means a legal status created by the order of a court, which confers the right and duty to protect, train and discipline the child, and to provide food, shelter, legal services, education and ordinary medical and dental care, subject to the rights, duties and responsibilities of the guardian of the child and subject to any existing parental rights and responsibilities and the provisions of any court order.

We conclude that upon entry of the temporary custody order Teynor lost the lawful authority which he possessed as a parent having custody of his child to determine where his children would live and to direct the activities of his children except when exercising lawful visitation.

Teynor argues that the temporary custody order should not be given legal effect because the family court commissioner did not consider the factors as required under secs. 767.23(1n) and 767.24(2), Stats., which were to be...