State v. Wootten

• Decision Date: 07 April 2000
• Docket Number: No. 98-553.,98-553.
• Parties: STATE of Vermont v. Stephen V. WOOTTEN.
• Court: Vermont Supreme Court

756 A.2d 1222

STATE of Vermont v. Stephen V. WOOTTEN.

No. 98-553.

Supreme Court of Vermont.

April 7, 2000.

Motion for Reargument Denied May 10, 2000.

William H. Sorrell, Attorney General, and Susan R. Harritt, Assistant Attorney General, Montpelier, for Plaintiff-Appellant.

Stephen V. Wootten, Pro Se, Island Pond, Defendant-Appellee.

Present: AMESTOY, C.J., DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

JOHNSON, J.

In this case, we decide whether Vermont has jurisdiction over the crime of custodial interference where defendant took his children from the state of Vermont while he was the lawful custodian. The State contends that, where the children and defendant were Vermont residents before defendant absconded, the orders of a Vermont court were flouted, and the taking of the children occurred in Vermont, Vermont has jurisdiction to prosecute defendant. We agree, reverse the trial court's dismissal, and reinstate the charges against defendant.

Laurie Marrano and Stephen Wootten married and had two boys, Seth and Nathaniel. They lived with the Community Church in Island Pond, Vermont. In 1987, mother returned to her home in western New York, and the boys stayed in defendant's care in Island Pond. In June 1989, mother filed for divorce in Vermont, not seeking custody of the boys. On September 5, 1989, she amended her complaint to request custody.

On September 5, 1989, the Essex Superior Court held a hearing on the issue of custody. Mother testified that she loved her children and wanted to raise them. She explained that in the two years since she had left Island Pond, her visitation with the boys had been extremely limited and always supervised. She also testified that defendant had warned her he would take the children and "disappear" if she sought custody. The court specifically found that mother had seen the children only six or seven times over two years, visitation had always been supervised, and she had sent letters and presents that she believed defendant had not given to the children. The court also found that defendant had threatened to disappear with the children, but said, "hopefully [that is] no longer a current threat." It concluded that there was no evidence that mother would be a negative influence on the children and that it would be in the best interests of the children to have contact with both parents.

The court therefore ordered that defendant should have temporary physical custody until September 27 at 3:00 p.m. and that mother have unsupervised, separate visitation with the boys on September 6 and September 26, in Vermont. The court further ordered, "neither party shall remove the children, Seth and Nathan, from the State of Vermont pending further order of this court." Both parties had notice that the September 27 hearing would revisit the issue of custody.

On September 26, mother went to Island Pond to pick up the boys for the court-ordered visitation and was told by a church member that defendant had taken the children away. Defendant failed to appear at the custody hearing on September 27. The Superior court took evidence and made findings that defendant had failed to obtain needed medical care for the children in the past, and was not fostering a relationship between the children and their mother. The court also noted that defendant had failed to appear at the hearing and that the location of the children was unknown. The court therefore awarded temporary custody to mother, which was made permanent in 1990.¹ The following day, the state of Vermont charged defendant with custodial interference, dating from September 27.

Affidavits from the Wootten children presented to the trial court detail their experience of the seven and a half years between September 1989 and March 1997. Defendant took the children into hiding with him when he fled Vermont in September 1989. Over the years following, defendant moved the family at least eight times. Defendant adopted a false identity and gave the boys false names. The boys, aged six and eight when abducted, were never enrolled in school for the seven years they lived with their father in hiding. Nor were they permitted to participate in any activities that required positive identification. Both affidavits state that defendant told the children they were running and hiding from mother, who was trying to locate them.

In March 1997, defendant was finally located in Florida, and the boys were returned to mother in Oswego, New York. He was arrested and waived extradition to Vermont. On October 21, 1997, he filed a motion to dismiss for lack of a prima facie case, alleging that the State could not show he "knowingly" kept the children from mother. The district court denied the motion, having determined that defendant knowingly kept mother and the authorities from discovering the children's whereabouts. The court specifically noted that, although defendant was "not physically served with the September 28, 1989, Order," that factor was not dispositive because there was substantial evidence that defendant actually knew he was interfering with custodial rights.

On August 31, 1998, defendant filed a motion to dismiss for lack of jurisdiction. The State responded that Vermont had jurisdiction because the children were Vermont residents who were injured by defendant's conduct and because defendant violated a superior court order prohibiting the removal of the children. On December 3, 1998, the court dismissed the State's case for lack of jurisdiction based on our decision in State v. Doyen, 165 Vt. 43, 676 A.2d 345 (1996), holding that Vermont had jurisdiction to prosecute custodial interference where the deprived mother was a Vermont resident.

The State appeals the dismissal of the charges of custodial interference for lack of jurisdiction. It argues that Vermont may properly exercise jurisdiction for three reasons. One, the children were Vermont residents at the time of their abduction.² Two, defendant removed the children from Vermont, thereby committing an act within Vermont's territorial borders. Three, defendant's removal of the children was in direct violation of a Vermont court order prohibiting either parent from removing the children from the state.³

Defendant's argument against jurisdiction centers on two themes: (1) that jurisdiction for custodial interference lies only in the state where the lawful custodian resides, in this case, New York; and (2) that Vermont cannot exercise jurisdiction where a defendant was never served with the order depriving defendant of custody. First, we determine whether Vermont courts possess jurisdiction in this case. Second, we consider defendant's argument that his willful evasion of notice deprives the state of jurisdiction.

I.

The statute at issue defines custodial interference as "taking, enticing or keeping a child from the child's lawful custodian, knowingly, without a legal right to do so, when the person is a relative of the child and the child is less than eighteen years old." 13 V.S.A. § 2451(a).⁴ It is undisputed that defendant is a relative of the boys and that they were less than eighteen years old when he removed them from Vermont. Thus, the issues in this case are whether defendant's actions in "taking, enticing or keeping" the children permit Vermont jurisdiction, and whether he acted "knowingly, without a legal right to do so."

Criminal jurisdiction has traditionally rested on one of two grounds. The common law rule is that "a state has power to make conduct or the result of conduct a crime if the conduct takes place or the result happens within its territorial limits." 1 W. LaFave & A. Scott, Substantive Criminal Law § 2.9(a), at 180 (1986) (emphasis added). See also Doyen, 165 Vt. at 49, 676 A.2d at 348 (collecting cases in context of custodial interference). This doctrine has been known as the "effects" doctrine, because it holds that a state may exercise jurisdiction when the effects of a crime are felt within the state. See, e.g., Restatement (Second) of Conflict of Laws § 37 (1971) ("A state has power to exercise judicial jurisdiction over an individual who causes effects in the state by an act done elsewhere with respect to any cause of action arising from these effects ....").

As we commented in Doyen, the United States Supreme Court has "endorsed this view of a state's criminal jurisdiction." See Doyen, 165 Vt. at 49, 676 A.2d at 348 (citing Strassheim v. Daily, 221 U.S. 280, 285-86, 31 S.Ct. 558, 55 L.Ed. 735 (1911)). The Strassheim Court held that "[a]cts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a state in punishing the cause of the harm as if [defendant] had been present at the effect, if the state should succeed in getting him within its power." Strassheim, 221 U.S. at 285, 31 S.Ct. 558. Thus, when we first addressed a case of custodial interference, we considered our jurisdiction in light of the effects doctrine.

Most courts considering custodial interference have viewed it as a crime of omission occurring in the state where the deprived custodian resides and therefore based their jurisdiction on the "effects" doctrine. See, e.g., Wheat v. State, 734 P.2d 1007, 1010 (Alaska Ct.App.1987) ("[T]he commission of a crime is consummated in Alaska when the crime is defined to require a result as a necessary element and when that result occurs inside the state."); State v. Doyle, 121 Idaho 911, 828 P.2d 1316, 1318-19 (1992) (construing Idaho statute and finding jurisdiction); People v. Harvey, 174 Mich.App. 58, 435 N.W.2d 456, 457 (1989) ("The detrimental effects of defendant's intentional retention of the [child] in violation of the Michigan court's custody order occurred [within the state], since it was the authority of a Michigan court that was thwarted and it was the custodial right of a Michigan resident that was infringed upon."). These states have reasoned that the effects of a deprivation are felt where...