State v. Wilhite, 1
| Decision Date | 26 January 1989 |
| Docket Number | No. 1,CA-CR,1 |
| Citation | 772 P.2d 582,160 Ariz. 228 |
| Parties | STATE of Arizona, Appellee, v. John Paul WILHITE, Appellant. 10582. |
| Court | Arizona Court of Appeals |
A jury found the defendant guilty of custodial interference. From that judgment and an aggravated sentence of ten years' imprisonment, he appeals. We address the following claims:
(1) The trial court should have amended the count of custodial interference from a class three to class six felony, because appellant is a "parent" for purposes of the defining statute.
(2) Videotaped testimony of a minor witness was improperly admitted in violation of the defendant's confrontation rights under the state and federal constitutions.
The facts, taken in a light most favorable to sustaining the verdict, are these: Defendant John Paul Wilhite is the biological father of J.E., who was born on March 28, 1973. In 1981 the defendant's parental rights to J.E. were terminated, and the child was adopted by defendant's brother and sister-in-law. R.D., who was born on March 30, 1977, is J.E.'s sister.
In 1985 defendant visited his brother's home in Arizona and, without parental permission, drove J.E. and R.D. to a lake on the Zuni Indian Reservation in New Mexico. The three remained at the lake for two nights, sleeping in the car. R.D. claimed that defendant molested her each of those nights. Defendant eventually left the children by the side of the road and told them to hitchhike home. A passing motorist took them to Apache County authorities.
As a result of these events, the state charged the defendant on four counts: interference with the custody of J.E.; kidnapping of R.D. with the intent to inflict physical injury or a sexual offense; and two counts of child molestation for two instances of alleged molestation of R.D. The state later sought sentence enhancement pursuant to A.R.S. § 13-604 by alleging two prior felony convictions.
The trial court dismissed the two counts of child molestation for lack of jurisdiction, finding that none of the elements of those crimes were alleged to have occurred in Arizona. The other counts proceeded to trial before a jury, which found defendant guilty of custodial interference and not guilty of kidnapping.
At the close of the state's evidence, defendant's attorney moved to modify the custodial interference charge from a class 3 felony to a class 6 felony, claiming that the defendant was J.E.'s "parent" within the meaning of A.R.S. § 13-1302(C) and was accordingly subject to conviction only at the lesser felony level. Counsel renewed this motion before sentencing.
A.R.S. § 13-1302 provides:
A. A person commits custodial interference if, knowing or having reason to know that he has no legal right to do so, such person knowingly takes, entices or keeps from lawful custody any child less than eighteen years of age or incompetent, entrusted by authority of law to the custody of another person or institution.
B. If a child is born out of wedlock, the mother is the legal custodian of the child for the purposes of this section until paternity is established and custody is determined by a court.
C. If committed by a parent or agent of a parent of the person taken, custodial interference is a class 6 felony unless the person taken from lawful custody is returned voluntarily by the defendant without physical injury prior to arrest in which case it is a class 1 misdemeanor. If committed by a person other than a parent or agent of a parent of the person taken, custodial interference is a class 3 felony.
(Emphasis added.)
The court denied the defendant's motion and sentenced him as a class 3 felon, accepting the state's position that termination of defendant's parental relationship with J.E. at the time of J.E.'s adoption had foreclosed parental status within the meaning of § 13-1302(C).
A.R.S. § 13-1302 fails to define the term "parent." Where the legislature leaves words undefined, the words are construed according to their common usage unless they have acquired some "peculiar or appropriate meaning in the law." A.R.S. § 1-213. Appellant's proffered definition of parent as "one who begets offspring" has the virtue of common usage. However, adoption is a legal process that terminates previous parental rights and creates a status of "former parent," a term with "peculiar [and] appropriate meaning in the law." Id.
Statutory provisions are read and construed in context with related provisions and in light of their place in the statutory scheme. Grand v. Board of Regents, 133 Ariz. 527, 529, 652 P.2d 1374, 1376 (1982). We look to related provisions with the goal of achieving consistency among related statutes. Lombardo v. Pollock, 21 Ariz.App. 537, 539, 521 P.2d 636, 638 (1974).
Defendant argues that we should look for definitional guidance to A.R.S. § 25-101, the prohibited marriage statute, and § 13-3608, the incest statute. The former voids marriages between parents and children and between other relations of varying degrees of consanguinity. The latter provides:
§ 13-3608: Persons who are fifteen or more years of age and are within the degrees of consanguinity within which marriages are declared by law to be incestuous and void, who knowingly intermarry with each other, or who knowingly commit fornication or adultery with each other, are guilty of a class 4 felony.
Defendant submits that a termination of parental rights would not end one's parental status for the purpose of §§ 25-101 and 13-3608 and likewise should not end parental status for the purpose of § 13-1302(C).
We find no parallel context in these statutes for the meaning of "parent" in § 13-1302(C). An essential concern in both the prohibited marriage statute and the incest statute is consanguinity, a concern that does not end with adoption and the termination of parental rights. Given that concern, the defendant argues reasonably that a biological parent remains subject to those statutes despite the parental transference accomplished by adoption. The essential concern of § 13-1302, by contrast, has nothing to do with consanguinity. It is rather to discourage interference with custodial arrangements established by law.
In § 13-1302, the legislature defined custodial interference by a parent as an offense of lesser criminal status than such interference by another. In so doing, we believe that it designed the lesser category of interference for those with assertable custodial and visitation interests as parents pursuant to the child custody statute, A.R.S. § 25-331 et. seq. While the legislature intended to employ criminal penalties in order to discourage such persons from taking the law into their own hands, it apparently concluded that a class 6 open-ended penalty would suffice to achieve that purpose.
This case requires us to consider the impact of adoption upon the custodial interests of biological parents. To do so, we turn from the child custody statute in Title 25 to Title 8 (Children), where § 8-117 expressly describes the transformation of relationships that occurs upon the entry of a decree of adoption:
A. Upon entry of the decree of adoption, the relationship of parent and child and all the legal rights, privileges, duties, obligations and other legal consequences of the natural relationship of child and parent shall thereafter exist between the adopted person and the adoptive petitioner the same as though the child were born to the adoptive petitioner in lawful wedlock....
B. Upon entry of the decree of adoption, the relationship of parent and child between the adopted person and the persons who were his parents just prior to the decree of adoption shall be completely severed and all the legal rights, privileges, duties, obligations and other legal consequences of the relationship shall cease to exist....
(Emphasis added.)
Under § 8-117, we believe it clear that defendant was transformed in the eyes of the law from the status of parent of J.E. to the status of former parent--a person who was his parent. All of the defendant's former rights as parent were severed, including the right to seek J.E.'s custody under Title 25, art. 3. In § 8-117 we find appropriate definitional context--the context of custodial interest--for the use of the term "parent" in § 13-1302. Defendant had no parental custodial interest assertable in court and thus no claim to the reduced criminal status available to parents under § 13-1302. We conclude that the defendant, as a former parent, was not a parent within the meaning of § 13-1302 and that the trial court correctly denied his motion to alter the classification of his conviction from class 3 to class 6 status.
J.E. and R.D. did not appear at trial to testify against defendant. Instead, upon motion by the state, their testimony was videotaped and presented to the jury pursuant to A.R.S. § 13-4253. That statute provides in pertinent part:
B. The court, on motion of the prosecution, may order that the testimony of the minor be taken outside the courtroom and be recorded for showing in the courtroom before the court and the finder of fact in the proceeding. Only those persons permitted to be present at the taking of testimony under subsection A may be present during the taking of the minor's testimony, [the attorneys for the defendant and for the state, persons necessary to operate the equipment and any person whose presence would contribute to the welfare and well-being of the minor] and the persons operating the equipment shall be confined from...
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