State v. Viramontes
| Decision Date | 30 January 1990 |
| Docket Number | No. CR-89-0175-PR,CR-89-0175-PR |
| Parties | , 58 USLW 2507 STATE of Arizona, Appellee, v. Melquiades Seran VIRAMONTES, Appellant. |
| Court | Arizona Supreme Court |
Robert K. Corbin, Atty. Gen. by Jessica Gifford Funkhouser and Joseph T. Maziarz, Asst. Attys. Gen., Phoenix, for appellee.
Dean W. Trebesch, Maricopa County Public Defender by Garrett W. Simpson, Deputy Public Defender, Phoenix, for appellant.
We granted the state's petition for review to consider whether a father may be convicted of kidnapping his own child. Additionally, we address the issue raised in defendant's cross-petition for review whether, if the kidnapping conviction is viable, the court properly imposed consecutive sentences for kidnapping and child abuse. We hold that a father may properly be convicted of kidnapping his child. We also hold that, under the circumstances of this case, consecutive sentences for kidnapping and child abuse were not permissible.
On June 9, 1987, Melquiades Viramontes (defendant) was charged with 7 counts of sexual conduct with a minor, one count of kidnapping, and one count of child abuse. The indictments arose from defendant's sexual relations with his minor stepdaughter and subsequent abandonment of his infant child, the offspring of that illicit relationship.
Defendant initiated sexual relations with his 13-year-old stepdaughter in 1981. As a result, she gave birth to a child on April 19, 1983. To avoid his wife's discovery of the baby and exposure of his sexual relationship with his stepdaughter, defendant took the newborn child from its mother, placed it in a cardboard box, drove to a McDonald's restaurant, and abandoned the child in the parking lot. Defendant anonymously contacted the police regarding the infant's location. The police discovered the infant a short time afterward, but its parentage remained a mystery. The child therefore could not be returned to its natural mother and was placed in an adoptive home.
In 1987, defendant's stepdaughter disclosed their sexual relationship to her mother, who notified the police. Defendant was indicted, and on December 14, 1987, pleaded guilty to two counts of sexual conduct with a minor, one count of kidnapping, and one count of child abuse, all pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The remaining charges were dismissed pursuant to the plea agreement. The parties made no agreement as to sentencing, but the state recommended concurrent sentences for the kidnapping and child abuse convictions. The trial court accepted the plea agreement and imposed aggravated sentences of 12 years each on the two convictions for sexual conduct with a minor, 10 years on the kidnapping conviction, and 10 years on the child abuse charge. The court ordered all four sentences to run consecutively for a total of 44 years. Defendant timely appealed.
The court of appeals held that no factual basis existed for the guilty plea to kidnapping because defendant, as the father, was the child's lawful custodian. Kidnapping requires knowing restraint plus intent to commit a further act. A.R.S. § 13-1304(A). Restraint requires restriction of a person's movements with lack of consent and lack of legal authority. A.R.S. § 13-1301(2). Relying on State v. Lawrence, 135 Ariz. 569, 663 P.2d 561 (1983), the court of appeals found that because defendant was the child's father, the state could not establish an absence of legal authority. We disagree and conclude that the unusual circumstances of this case are readily distinguishable from those presented in Lawrence.
The court of appeals relied on our holding in Lawrence to support its conclusion that a father cannot kidnap his own child. Arizona's kidnapping statute requires that a defendant knowingly restrain another person with the intent to commit a further act. A.R.S. § 13-1304(A). The further act must be one of those enumerated in the statute:
1. Hold the victim for ransom, as a shield or hostage; or
2. Hold the victim for involuntary servitude; or
3. Inflict death, physical injury or a sexual offense on the victim, or to otherwise aid in the commission of a felony; or
4. Place the victim or a third person in reasonable apprehension of imminent physical injury to the victim or such third person.
5. Interfere with the performance of a governmental or political function.
6. Seize or exercise control over any airplane, train, bus, ship, or other vehicle.
A.R.S. § 13-1304(A) (emphasis added).
The evidence shows that defendant intended to abandon the infant, protected only by a cardboard box, at a fast food restaurant. Abandonment of a child is child abuse, a felony under Arizona law. A.R.S. § 13-3623(A). Thus, the record establishes defendant's intent to commit a further act enumerated in the kidnapping statute. See A.R.S. § 13-1304(A)(3).
The crime of kidnapping also requires that defendant knowingly restrain the victim. Restrain is defined as follows:
"Restrain" means to restrict a person's movements without consent, without legal authority, and in a manner which interferes substantially with such person's liberty, by either moving such person from one place to another or by confining such person. Restraint is without consent if it is accomplished by:
(a) Physical force, intimidation, or deception; or
(b) Any means including acquiescence of the victim if the victim is a child less than eighteen years old or an incompetent person and the victim's lawful custodian has not acquiesced in the movement or confinement.
A.R.S. § 13-1301(2). When the victim is less than 18 years old or an incompetent person, the question whether physical force, intimidation, or deception has been used is immaterial. The key to establishing lack of consent is non-acquiescence by the lawful custodian. Thus, we must address whether a parent of a minor child can "acquiesce" to that child's movement or confinement by a person who intends to commit a felony upon the child.
The right of a parent to the custody and control of his or her minor child has long been recognized as fundamental. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Juvenile Appeal J-46735, 112 Ariz. 170, 540 P.2d 642 (1975); Juvenile Appeal S-111, 25 Ariz.App. 380, 543 P.2d 809 (1975). We assume without deciding, that as the undisputed natural father of the victim, 1 and in the absence of a court custody order to the contrary, defendant had at least a right to coequal custody of the infant with the child's mother. See State v. Donahue, 140 Ariz. 55, 57, 680 P.2d 191, 193 (App.1984).
We do not believe that a child's custodial parents may acquiesce in the restraint of the child for any of the purposes included in the kidnapping statute. We therefore hold that a lawful custodian's acquiescence to movement or confinement of a child for the purpose of their own or another's wrongdoing will not constitute the "consent" that would bar a kidnapping charge. Therefore, for purposes of establishing the elements of kidnapping, the question of consent involves whether defendant intended to commit one of the acts included in the kidnapping statute. When a defendant is the child's parent, the proper inquiry should be directed at the purpose of the restraint and the defendant's intent.
The court of appeals did not address the lack of consent element of restraint, but instead focused on defendant's "legal authority" to take the child because of his parental relationship to the victim. The court of appeals held that because defendant was the victim's parent, lack of legal authority could not be established as a matter of law, on the basis of the Lawrence decision.
The facts of this case, however, differ significantly from those in Lawrence. In Lawrence, the mother of the 4-year old victim was charged with unlawful imprisonment, which also requires the knowing restraint of another person. See A.R.S. § 13-1303(A). The "restraint," however, was to provide the child with shelter. See Lawrence, 135 Ariz. at 570, 663 P.2d at 562. The facts suggest that the mother and child were using a storage locker as a home. Id. In this case, defendant's restraint of his child was for the felonious purpose of abandoning a newborn infant in a busy parking lot. In Lawrence, the mother had legal authority to provide shelter for her child. Abandonment of a child, however, is not legally authorized. We find that Lawrence is not controlling here, but is limited to its specific facts.
Most cases addressing the propriety of charging a parent with kidnapping arise in the context of custody battles between parents. 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, 825-26 (1983). The general rule is that, absent a custody order, a parent cannot be charged with kidnapping. Id. at 828-29 and cases cited therein; see also State v. McLaughlin, 125 Ariz. 505, 507, 611 P.2d 92, 94 (1980) (child abduction); State v. Kracker, 123 Ariz. 294, 295, 599 P.2d 250, 251 (App.1979) (child stealing). However, the general rule cannot be applied to the facts of this case. The cases cited involve parents attempting to obtain exclusive possession of their children without intent to commit the unlawful acts enumerated in the kidnapping statute. The proper charge in such instances would be custodial interference. See, e.g., A.R.S. § 13-1302. 2 This case, however, does not present a custody dispute. Defendant's purpose in taking the infant was to further the commission of a felony, not to establish custody or visitation rights. Defendant was motivated by a desire to rid himself of the infant, not by a desire to take exclusive possession of the child.
"Legal custody," a concept contained in domestic relations law, should not be confused with "legal authority," a defense to kidnapping under A.R.S. §...
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