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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
TIMOTHY STROTHER, )
) Court of Appeals Nos. A-
4827/4857
Appellant, ) Trial Court No. 3PA-92-1009
Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1394 - March 3, 1995]
________________________________)
Appeal from the Superior Court, Third
Judicial District, Palmer, Beverly W. Cutler,
Judge.
Appearances: Jacalyn L. Bachlet,
Assistant Public Defender, Palmer, and John
B. Salemi, Public Defender, Anchorage, for
Appellant. Eric A. Johnson, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, and Coats
and Mannheimer, Judges.
MANNHEIMER, Judge.
Timothy Strother appeals his conviction for first-
degree custodial interference, AS 11.41.320(a). We affirm.
On May 11, 1992, at an ex parte hearing, Evangeline
Strother obtained a 20-day domestic violence restraining order
against her husband Timothy Strother. See AS 25.35.020. (Ms.
Strother told the court that she and her husband had had an
altercation in which he had repeatedly slammed her head against
his knee and against the dashboard of their car.) The restrain
ing order gave Ms. Strother exclusive custody of the couple's
child, A.S.. District Court Judge Peter Ashman, the judicial
officer who presided at the hearing, notified Ms. Strother that a
second hearing would be held on May 26, 1992 to determine whether
her custody of A.S. should be extended for 90 days under
AS 25.35.010.
The next day (May 12, 1992), Timothy Strother requested
a hearing to contest Judge Ashman's issuance of the 20-day
restraining order, and particularly the portion of that order
that gave Ms. Strother exclusive custody of A.S.. Strother
asserted that his wife was an unfit mother; he asked the court to
give custody of A.S. to his mother and grandmother.
Both Mr. and Ms. Strother appeared in court on May 13,
1992. The court denied Mr. Strother's request to modify the
custody order. At the same time, the court notified him that a
further hearing would be held on May 26 to determine whether Ms.
Strother's custody of A.S. should be extended for another
90 days.
Evangeline Strother appeared for the hearing on May 26,
but Timothy Strother did not. Mr. Strother had left the state of
Alaska, although he remained in telephonic contact with his wife.
Judge Ashman extended Ms. Strother's custody of A.S. for an
additional 90 days. At the conclusion of the hearing, the court
provided Ms. Strother with a copy of this 90-day custody order.
On May 28, 1992, the clerk's office mailed two copies
of the 90-day custody order to Mr. Strother, one by regular mail
and one by certified mail. On June 4, 1992, the proof-of-service
receipt attached to the certified letter was returned unsigned
and undelivered.
On July 4, 1992, Strother returned to Alaska, flying
into Anchorage sometime before 11:00 p.m.. He drove to his
mother's house in Palmer and picked up A.S., who was spending the
night there. With A.S. in tow, Strother drove back to Anchorage
and boarded a red-eye flight to an out-of-state destination.
The next day (July 5), Ms. Strother came to her mother-
in-law's house to retrieve A.S.. Her mother-in-law told her that
Strother had taken the child to Montana and that he had left
behind two letters for her. In those letters, Strother told his
wife that she would never see him or A.S. again. Later that day,
Ms. Strother informed the police that her husband had taken A.S.
in violation of a court order. Through a friend, Ms. Strother
supplied the police with a copy of Judge Ashman's 90-day custody
order.
Strother maintained telephonic contact with his wife
even after July 4, 1992, although he refused to divulge his
location or the location of their child. Strother's mother,
Sheila Byington, acted as the go-between for the couple, telling
Ms. Strother when to expect a call from Strother. Eventually,
the police traced one of Strother's telephone calls, discovering
that it originated in Rapid City, South Dakota. Working with the
authorities, Ms. Strother arranged to meet her husband at the
Rapid City airport on August 18, 1992; there, agents of the
Federal Bureau of Investigation arrested Strother. Strother was
subsequently returned to Alaska to stand trial for first-degree
custodial interference, AS 11.41.320(a).
Ms. Strother apparently reconciled with her husband
before trial, for she proved to be a cooperative witness for the
defense. Previously, at grand jury, Ms. Strother had testified
that she was the exclusive custodian of A.S. under the 90-day
domestic violence order and that Strother had taken the child
without her permission. She also had testified that Strother
knew of the 90-day custody order when he took A.S. from Alaska
because she had personally told him about the order. However, at
Strother's trial, Ms. Strother stated that she herself had been
unaware of the existence of the 90-day custody order. Ms.
Strother asserted that she could not remember attending the May
26 hearing and could not remember ever receiving a copy of the 90-
day order. She testified that she told her husband that the
judge had declined to grant the order.
Alaska law provides two degrees of custodial interfer
ence. The basic elements of the crime are defined in the second-
degree custodial interference statute, AS 11.41.330. The crime
becomes first-degree custodial interference "if the [defendant]
violates AS 11.41.330 and causes the victim to be removed from
the state". AS 11.41.320(a).
Strother conceded that he removed his daughter from
Alaska. Thus, the dispute at Strother's trial centered upon the
remaining elements of the crime - the ones found in the second-
degree custodial interference statute, AS 11.41.330(a). The
pertinent portion of this statute provides:
A person commits the crime of custodial
interference ... if, being a relative of a
child under 18 years of age ... and knowing
that the person has no legal right to do so,
the person takes, entices, or keeps that
child ... from a lawful custodian with intent
to hold the child ... for a protracted
period.
For purposes of this statute, the term "relative" includes a
parent, and the term "lawful custodian" means "a parent,
guardian, or other person responsible by authority of law for the
care, custody, or control of another". AS 11.41.370(1)-(2).
In her instructions to Strother's jury, Superior Court
Judge Beverly Cutler informed the jury that, to prove the crime
of custodial interference, the State had to establish:
[4] [that Strother] took, enticed, or
kept A.S. from a lawful custodian, to wit:
Evangeline Strother;
[5] [that Strother] intended to hold
A.S. for a protracted period of time; [and]
[6] [that Strother] knew he had no
legal right to take A.S. from Evangeline
Strother for a protracted period of time[.]
Elaborating on this definition of the elements of the crime, the
court instructed the jury:
A parent is prohibited by law from
taking a child away from the other parent
with the intent to keep the child for a
protracted period of time to the exclusion of
the other parent. Only a judicial order
depriving a parent of custody permits a
parent to deprive the other parent of the
joint custody of the child.
As to element six ... , this element can
be proved either by the state proving ...
that the defendant "knew" [as defined in AS
11.81.900(a)(2)] there was a custody order in
effect giving temporary custody of A.S. to
Eve Strother, or by the state proving ...
that the defendant knew his taking and
keeping of A.S. was without legal authority.
Relying on his wife's testimony, Strother argued that
he was never informed of the 90-day custody order issued on May
26, 1992. He contended that, as far as he knew, he remained a
joint custodian of A.S. and he retained the legal right to take
his child where he wished.1 Thus, Strother asserted that even if
the 90-day custody order did in fact temporarily end his legal
right to exercise custody over A.S., he nevertheless lacked the
culpable mental state for the crime of custodial interference
because he remained ignorant of the 90-day order and therefore he
did not know that his actions were unlawful.
The prosecutor argued that the 90-day custody order
was, for the most part, irrelevant. If Strother knew about the
90-day order, then his actions were clearly illegal. However,
the prosecutor argued, even if the 90-day order had never been
issued (so that Strother and his wife each remained a joint
custodian of their child), Strother would still know that he had
no right to take the child, flee the state, and keep the child
hidden from his wife so that she was no longer able to exercise
her right of custody.
During their deliberations, the jury sent the court a
note indicating that they believed the State had failed to prove
that Strother knew of the 90-day custody order; they asked the
court to clarify element six:
We feel the state did not prove the
defendant did in fact have knowledge of the
90-day court order. Is this an issue by
itself? Do we need to decide 6.B as ... part
of 6.A, or on its own merit[?]
The jury's question referred to the court's instruction that
"element six ... can be proved either by [proof] ... that the
defendant knew there was a custody order in effect giving
temporary custody of A.S. to Eve Strother, or by [proof] ... that
the defendant knew his taking and keeping of A.S. was without
legal authority." (emphasis added) In response to the jury's
question, Judge Cutler told the jury that they could base their
verdict on either theory. Shortly thereafter, the jury found
Strother guilty. It therefore appears that the jury relied on
the alternative theory presented in the court's instructions: the
theory that Strother, even if he was unaware of the 90-day order,
was nevertheless aware that he had no legal right to keep A.S.
hidden from his wife.
On appeal, Strother argues that the jury instructions
were fatally flawed to the extent that the instructions allowed
the jury to convict Strother even after they found that he was
not aware of the 90-day custody order. Strother's argument is
directed to two different aspects of the custodial interference
statute: the actus reus of the crime and the culpable mental
states required to make that actus reus a criminal offense.
Strother's argument with respect to the actus reus of
the crime begins with the fact that, by law, a child's parents
jointly share physical custody of the child unless some judicial
event alters this situation. See L.A.M. v. State, 547 P.2d 827,
832 n.13 (Alaska 1976); Appeal of Maricopa County Juvenile
Action, 785 P.2d 1248, 1250 (Ariz. App. 1990). Strother contends
that, unless a court has taken action to alter a parent's right
of physical custody, a parent is always entitled to "take" and
"keep" a child from the child's other parent, even if the
parent's actions effectively defeat the other parent's right of
custody.
Traditionally, parents who abducted their children were
exempted from such crimes as kidnapping and child-stealing
(unless a court had judicially terminated the parent's right of
custody). 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 (1983), 3 at 828-830.
However, the question of whether Strother's conduct violated
Alaska's custodial interference statutes is a question of
statutory interpretation and thus of legislative intent. Did the
Alaska Legislature intend AS 11.41.320 and AS 11.41.330 to reach
the conduct of a parent whose right to physical custody of the
child remains undiminished but whose conduct deprives the other
parent of his or her right to custody?2
During the past twenty years, the federal Congress and
the state legislatures have focused increasing attention on the
problem of child custody disputes and the related problem of
child abduction by a parent or other relative. In 1977, the
Alaska Legislature enacted the Uniform Child Custody Jurisdiction
Act, AS 25.30. The legislature declared that one of the chief
purposes of this legislation was to "deter abductions and other
unilateral removals of children [by people seeking] to obtain
custody awards". Three years later, Congress passed the federal
Parental Kidnapping Prevention Act, 28 U.S.C. 1738A. In its
accompanying findings and declaration of legislative purpose,
Congress found that "parties involved in [child custody] disputes
... frequently resort to the seizure, restraint, concealment, and
interstate transportation of children". For this reason,
Congress found it necessary to "establish a national system for
locating parents and children who travel from one [state] to
another and are concealed in connection with [child custody]
disputes", and to "deter interstate abductions and other
unilateral removals of children undertaken to obtain custody and
visitation awards". Section 7, Public Law 96-611.
During the same period as this reformation of child
custody laws, the Alaska Legislature was formulating this state's
present criminal code. In February 1977, the Criminal Code
Revision Subcommission published its tentative draft of the
offenses of kidnapping and custodial interference. Under the
kidnapping statute drafted by the Subcommission, a parent or
other relative who abducted a child would not be guilty of
kidnapping if the parent or relative's "sole intent [was] to
assume control over [the child] and the abduction [was] not
coupled with [an] intent to use or threaten ... deadly physical
force or intent to sexually assault the [child]." However, added
the Subcommission, "while the [parent or other relative] has not
committed kidnapping, he [or she] may have committed custodial
interference". Commentary to "Kidnapping and Related Offenses",
Tentative Draft, Vol. 1, pp. 61-62.
The Subcommission's draft of the custodial interference
statute read as follows:
A person commits the crime of custodial
interference ... if, knowing that he has no
legal right to do so, he takes, entices, or
keeps a person from his lawful custodian with
intent to hold him permanently or for a pro
tracted period.
TD 11.41.330, Tentative Draft, Vol. 1, p. 53. The Subcommission
declared that this statute was "intended to cover the typical
'child-stealing' committed by a relative", and the Tentative
Draft specifically defined "relative" to include a parent. See
Commentary to "Custodial Interference in the First and Second
Degree," Tentative Draft, Vol. 1, p. 62; TD 11.41.370(3). "The
language of the [proposed] statute is broad enough to encompass
any interference with lawful custody rights by a person having no
legal right to do so if [this person] has the intent to hold the
person taken for a protracted period." Commentary to TD
11.41.330, Tentative Draft, Vol. 1, pp. 62-63.
In addition, the Subcommission specified that the
victim of the crime is not only the child but also the custodian
who has been deprived of the child's custody: "[The statute] pro
tect[s] parental custody against all unlawful interruption, even
when the child ... is a willing, undeceived participant in the
attack on this interest of its parent." Tentative Draft, Vol. 1,
p. 65 (quoting the Model Penal Code 212.4, Comments (Tent.
Draft No. 11, 1960)).
The legislature echoed the Subcommission's comments
when it passed the custodial interference statutes, AS 11.41.320
and AS 11.41.330. In its commentary to these two statutes, the
legislature declared:
[T]he statutes on custodial interference
protect "parental custody against all
unlawful interruption, even when the child
itself is a willing, undeceived participant
in the attack on this interest of its
parent." Model Penal Code 212.4, Comments
(Tent. Draft No. 11, 1960).
The [crime] encompasses any interference
with lawful custody rights by a relative
acting with the intent to hold the victim for
a protracted period. The defendant must know
he has no legal right to interfere with the
custody of the victim. The statute covers
not only child custody situations, but also
interference with children in state custody,
incompetents or others who are entrusted by
law to the custody of another person or
institution.
1978 Senate Journal, Vol. II, Supp. No. 47 (June 12), p. 21. We
also note that the legislature (again following the
Subcommission's proposal) included parents within the group of
"relative[s]" whose actions can constitute the crime of custodial
interference. See AS 11.41.370(2).
This court has not previously addressed the question of
whether, between two parents who retain equal right to physical
custody of a child, one parent may commit the crime of custodial
interference by keeping and concealing a child from the other
parent. However, in a case involving parents who did not have
equal custody rights, this court recognized that the gist of
custodial interference is the defendant's unlawful deprivation of
the other parent's right of custody.
Wheat v. State, 734 P.2d 1007 (Alaska App. 1987),
involved a father who had been awarded periodic physical custody
of his child during the summer months. The child's mother (who
lived in Alaska), remained the child's primary physical custodian
during the remainder of the year. The defendant father took the
child to Arizona at the beginning of the summer but then failed
to return the child to Alaska in the fall. Prosecuted for
custodial interference, the father claimed that he had committed
no crime in Alaska. He argued that even though he had unlawfully
failed to return the child to its mother, this unlawful act had
occurred in Arizona, and therefore Alaska had no jurisdiction
over the crime. This court disagreed:
[To prove the crime of custodial
interference], the state was required to show
that, as a direct result of [the defendant's]
conduct, [the child's] mother was deprived of
the lawful custody of her daughter - in other
words, that [the child] was kept "from a
lawful custodian." It is this prohibited
result, rather than the proscribed conduct
per se, that is the gravamen of the offense,
and it is precisely this result that occurred
in Alaska.
Wheat v. State, 734 P.2d at 1010-11 (footnote omitted).
The legislative history of AS 11.41.320-330 leads to
the conclusion that Alaska's custodial interference statutes were
intended to prohibit parents from abducting their children as a
means of settling a custody dispute. The crime of custodial
interference was designed to protect any custodian from depriva
tion of his or her custody rights - even if that deprivation
results from the actions of a person who also has a right to
physical custody of the child. The crime does not focus on the
legal status of the defendant, but rather focuses on the
defendant's actions, the effect of the defendant's actions, and
the intent with which those actions were performed.
Other states have reached the same conclusion. In
People v. Harrison, 402 N.E.2d 822 (Ill. App. 1980), the
defendant was charged with child abduction under Illinois law.3
When the defendant and his wife were divorced, the court gave
primary physical custody of their children to the mother and
granted "liberal, reasonable visitation rights" to the defendant.
During one of his visitations, the defendant packed his
belongings into a bus and fled to Mississippi with the children.
Harrison, 402 N.E.2d at 823-24. The defendant argued that he
could not commit this crime because his right of custody was
equal to that of his former wife. The Illinois court disagreed:
Custody is a form of guardianship, and
joint custody merely reflects the law of
Illinois [that] parents have equal powers,
rights, and duties concerning the minor. It
therefore follows that neither parent could
remove the children without infringing on the
powers [and] rights of the other.
. . . .
In our view, even assuming arguendo that
there was some form of custody in [the] defen
dant, there was also custody in another
within the meaning of the statute. ... The
remedial purpose of the child abduction
statute is so obvious as to need little
exegesis on our part. The number of parents
who in recent times have seen fit to seize
their children ... and spirit them off to
another jurisdiction has increased
dramatically. The legislature quite
obviously felt that the civil penalties for
such conduct were insufficient.
Harrison, 402 N.E.2d at 824 (internal quotations omitted).
The Oregon Court of Appeals reached the same result in
State v. West, 688 P.2d 406 (Or. App. 1984). Like Harrison, West
involved a divorced couple; the father was awarded primary
physical custody of the child for three days each week (as well
as during his vacation), while the mother was awarded primary
physical custody at all other times. One day when the father
went to pick up the child, he found the mother's apartment empty
of all its furniture; the mother had fled with the child. One
month later, the mother was located in Missouri; she was arrested
and brought back to Oregon. Prosecuted for custodial
interference, the mother defended by asserting that it was
legally impossible for her to commit the crime because she had
been awarded primary physical custody in the divorce. West, 688
P.2d at 407.
Oregon's definition of custodial interference is quite
similar to Alaska's.4 Construing this statute, the Oregon court
held that even when each parent retains custody rights over the
child, neither parent is authorized to take actions that
"infring[e] the powers, rights, and duties of the other". West,
688 P.2d at 408. The court stated:
Clearly, the primary focus of the
statute is the protection of the rights and
interests of the two victims of the offense:
the child and the "lawful custodian" from
whom the child is "taken, enticed or kept."
The focus is not on the legal status of the
one who does the taking, enticing or keeping
from.
. . . .
When [the] defendant removed the child
from [this] state and failed to disclose her
whereabouts, she was infringing on the rights
... of the father. The emotional and
financial costs suffered by him in trying to
locate his daughter are among the primary
evils that the statute was intended to deter.
See Oregon Criminal Code of 1971, Commentary
at 129 (1975). To interpret the statute as
[the] defendant suggests would clearly be
contrary to the parental rights the statute
was intended to protect. ... [The] defendant
cannot rely on her joint custodial status to
justify the act of secreting her daughter.
West, 688 P.2d at 408 (footnote omitted). See also People v.
Morel, 566 N.Y.S.2d 653 (N.Y. App. 1991).
Strother argues that Harrison and West are not on point
because, in each case, a court had issued a decree defining the
legal rights of the parents. He argues that a parent who
violates the terms of a court decree may be guilty of custodial
interference, but, in the absence of a court decree, no parent
can violate the statute. We disagree. It is true that the court
decrees in Harrison and West altered circumstances by setting out
specific periods of time during which each parent would have
primary physical custody of the children. However, in both
cases, the defendant was not convicted simply because he or she
took or kept physical custody of the child beyond the particular
hours or days set forth in the court decree. Rather, in each
case, the defendant's conviction was based on the fact that the
defendant absconded with the child and hid the child from the
other parent - thus completely depriving the other parent of his
or her right of joint custody.
Moreover, courts have upheld convictions for custodial
interference even in the absence of a court decree defining the
respective custody rights of the two parents. The Arizona Court
of Appeals confronted such a case in State v. Donahue, 680 P.2d
191 (Ariz. App. 1984).
In Donahue, a child had been born out of wedlock to
Donald Jones and Edrie Hale. Ms. Hale had physical custody of
the child. Jones recruited the defendant Donahue to abduct the
child from Hale. When Donahue was prosecuted for custodial
interference, she defended by asserting that she had acted as the
agent of the child's father. Donahue argued that, since both the
child's father (Jones) and the child's mother (Hale) enjoyed co-
equal custodial rights, Jones could not be guilty of custodial
interference and therefore neither could any person acting on
Jones's behalf. Donahue, 680 P.2d at 192. The Arizona court
rejected this argument, commenting:
Even assuming that Jones had a right to
custody of the child, ... his right was at
most a right to co-equal custody with the
child's natural mother. He did not have the
right to custody of the child to the
exclusion of the mother, in the absence of a
court order to that effect. The
surreptitious actions of [Donahue] and her
cohorts in snatching the child and absconding
with their possessions first to Nevada and
then California support the inference that
[Donahue] knowingly deprived the mother of
her right to custody and that [Donahue] knew
or had reason to know that she had no legal
right to do so. The evidence is sufficient
to support a conviction for custodial
interference.
Donahue, 680 P.2d at 193.
The same result was reached by a Delaware superior
court in State v. Todd, 509 A.2d 1112 (Del. Super. 1986). Todd
and a woman named Porter lived together and had a child out of
wedlock; when they later separated, Porter assumed primary care
of the child, but Todd continued to visit the child periodically.
Todd offered to take care of the child over a weekend. Instead
of returning the child to Porter when the weekend was over, Todd
fled with the child to Texas. Todd, 509 A.2d at 1113. He was
caught and charged with custodial interference.
Todd argued that, "as [the child's] natural father,
[and] absent a valid custody order to the contrary, his right of
physical custody [was] equal to the mother's", and therefore he
could not be guilty of custodial interference. Todd, 509 A.2d at
1113. The Delaware court rejected Todd's construction of the
statute, declaring that "this view would ... permit[] - indeed,
encourag[e] - parents to engage in the type of reprehensible
conduct which this defendant father unabashedly admits." Id. at
1114. The judge wrote:
It is clear that the provisions of [Dela
ware law] delineate rights and respon
sibilities between natural parents [even]
where no valid custody order exists. Indeed,
it has been recognized that a court order of
joint custody may effect no different status
in fact or in law than would exist in the
absence of a court order.
. . . .
I simply cannot accept the proposition
that the legislature intended that children
and their [natural] parents who are joint
custodians [in the absence of any court
order] should not have the protection of the
criminal justice system vis a vis the
proscription of the custodial interference
statute.
. . . .
In the case sub judice, therefore, the
mother had equal rights ... with respect to
[the couple's daughter]. When the father ab
sconded with [the child] to Texas he
infringed on the rights ... of the mother. I
am satisfied [that] a parent, absent any
valid custody order to the contrary, has no
legal right to take a child into his or her
own exclusive physical ... custody to the
exclusion of the other parent's lawful
custodial rights.
Todd, 509 A.2d at 1115-16.
Based on our examination of the legislative history of
AS 11.41.320-330, and based on the general development of the law
in this area (as exemplified by the cases cited above), we
conclude that Alaska's custodial interference statutes embody the
rule that, when a child is entrusted to joint custodians, neither
custodian may take exclusive physical custody of the child in a
manner that defeats the rights of the other joint custodian.
However, when the defendant is a joint custodian of the child,
the actus reus of the crime must be examined with care.
AS 11.41.330(a) declares that a parent or other
relative of a child commits the crime of custodial interference
if
knowing that [he or she] has no legal right
to do so,
the defendant
takes, entices, or keeps that child ... from
a lawful custodian
and the defendant performs this act
with intent to hold the child ... for a pro
tracted period.
The first and third of these elements are culpable mental states;
they specify what the defendant must know about his or her
conduct (that he or she has no legal right to engage in this
conduct), and what result the defendant must intend to accomplish
by this conduct (holding the child for a protracted period). The
second element is the actus reus of the crime - the physical
aspect of the offense.
The statute uses the phrase "takes, entices, or keeps
[a] child ... from a lawful custodian" to describe the prohibited
act. However, the statute also requires the State to prove that
the defendant performed this act with knowledge that he or she
"ha[d] no legal right to do so". Thus, the statute implicitly
requires proof that the defendant's taking, enticing, or keeping
of the child was itself unlawful. That is, the actus reus of the
crime is the act of taking, enticing, or keeping a child from a
lawful custodian with "no legal right to do so".
As defined in AS 11.41.370(2), a child's "relatives"
include the child's stepparents, aunts and uncles, siblings, and
all other ancestors besides the child's parents, whether related
by blood, marriage, or adoption. These relatives have no right
to physical custody of the child unless a court affirmatively
gives them custody. If such a relative were to "take" or
"entice" the child from a lawful custodian, the very act of
taking or enticing would exceed the relative's legal authority.
The situation is different, however, when the relative
at issue is the child's parent. Until a court orders otherwise,
each parent has a right to physical custody of the child. So
long as a parent shares physical custody of the child, a parent
does not exceed his or her legal rights by merely "taking" the
child from another lawful custodian or by merely "enticing" the
child to leave the custody of another lawful custodian. (We
leave aside instances in which one parent forcibly takes a child
from the custody of the other parent.)
Back-and-forth shifting of physical custody is normal
in a joint custody situation. When parents are joint custodians
of a child, they repeatedly take exclusive physical control of
the child on a temporary basis for any number of reasons. A
parent may drive the child to school or to other activities, may
take the child to a movie or to a restaurant, or may travel with
the child to distant destinations. A parent who remains a joint
custodian can take the child away from home - even outside the
state - without violating the custodial interference statutes,
because such an act generally does not deprive the other joint
custodian of his or her custody rights.
A parent's act of peaceably taking sole physical
possession of a child does not exceed the parent's legal
authority (does not infringe the custody rights of the other
lawful custodian) unless the parent also performs other acts that
alter the act of taking, converting it into conduct that defeats
the custody rights of the other custodian. In the words of the
custodial interference statute, this concept is expressed by the
act of "keeping".
The former crimes of larceny and embezzlement offer an
analogy to this concept. At common law, larceny was a theft
committed when a defendant unlawfully took possession of another
person's property and appropriated it to his or her own use. To
prove larceny, the government not only had to prove that the
defendant intended to use someone else's property for purposes
inconsistent with the owner's rights, but also had to prove that
the defendant had no right to take possession of the property -
that the defendant committed a trespass by the very act of laying
hands on the property. The statutory crime of embezzlement was
enacted to deal with thefts committed by people who were entitled
to possess the property (the property owner's employees and
agents). Embezzlement was committed if the defendant came into
possession of the property lawfully but then used the property in
ways that defeated the owner's rights.5
Similarly, if two parents are jointly entitled to
physical custody of a child, each has the right to assume
temporary exclusive custody. Normally, a parent commits no
"trespass" by peaceably taking physical custody of the child.
But if a parent takes custody of the child and exercises that
custody in a manner that defeats the custody rights of the other
parent, unlawfully "keeping" the child from the other parent,
then the parent's conduct constitutes the actus reus of custodial
interference.
When Strother took his daughter from his mother's home,
he acted without his wife's knowledge but he took custody of the
child peaceably. Therefore, assuming the jury found that
Strother was unaware of the 90-day custody order, Strother's mere
act of "taking" the child was within his legal authority and did
not constitute the actus reus of custodial interference.
However, immediately afterward, Strother engaged in acts that
undeniably defeated his wife's co-extensive right of custody. He
removed the child to another state; he left two letters telling
his wife that she would never again see either him or their
daughter; and for several weeks he was successful in keeping both
his own whereabouts and the child's whereabouts hidden from his
wife and the authorities. We conclude that this conduct was
sufficient to constitute the actus reus of the offense of
custodial interference: the keeping of A.S. with "no legal right
to do so".
The jury instructions in this case are somewhat
ambiguous on the issue of what conduct constituted the actus reus
of the offense. As explained above, the jury was told that the
crime required proof that Strother "took, enticed, or kept A.S."
from his wife. In explanation of this element, the jury was told
that "[a] parent is prohibited by law from taking a child away
from the other parent with the intent to keep the child for a
protracted period of time to the exclusion of the other parent."
(emphasis added)
The problem with this latter segment of the instruc
tions is that it apparently authorized the jury to convict
Strother merely upon proof that (1) he "took" A.S. and (2) he
intended to perform further acts that would have defeated his
wife's right of custody. This is not sufficient proof of actus
reus. As we construe AS 11.41.330(a), a parent must perform acts
that actually defeat the other parent's right of custody, and the
parent must perform this actus reus with the specified culpable
mental states: (1) knowledge that he or she has no legal right
to engage in these acts, and (2) an accompanying intent to keep
the child for a protracted period of time. If Strother's custody
of A.S. never actually infringed his wife's right to custody,
then he could not be convicted of custodial interference
regardless of his bad intentions. (Under such circumstances, he
might be guilty of an attempt, but not the completed crime.)
However, from our examination of the instructions as a
whole, it appears that the court used the terms "take" and "keep"
interchangeably. For instance, when defining the sixth element
of the crime, the court told the jurors that the State had to
prove that Strother "knew he had no legal right to take A.S. from
Evangeline Strother for a protracted period of time". In this
phrase, "take ... for a protracted period of time", the court was
employing the word "take" in the sense of "keep". The court
further told the jurors that, to prove element six, they had to
find "that the defendant knew his taking and keeping of A.S. was
without legal authority". (As explained later in this opinion,
Strother expressly assented to the wording of this instruction.)
Moreover, the facts of this case leave little room for
jury confusion. Strother never seriously contended that his
actions were consistent with his wife's right to physical custody
of their daughter. It is clear that Strother not only "took"
A.S. but also "kept" her in a manner that defeated his wife's
custody rights. In arguing this case to the jury, the prosecutor
stressed the fact that Strother had not merely assumed physical
custody of A.S. but had removed A.S. from Alaska and had hidden
the child from her mother, completely cutting off mother from
daughter. Under these facts, Strother's conduct uncontestably
constituted the actus reus of custodial interference. Therefore
the seed of ambiguity in the jury instructions never germinated
into prejudicial error.
Strother argues that if Alaska's custodial interference
statutes are construed to cover a parent who deprives the other
parent of his or her right of joint physical custody, then the
statutes are void for vagueness. Strother basically contends
that it is unreasonable to expect parents who have simultaneous
rights of custody to know the boundaries of their custody rights
and to know when one parent's actions would begin to violate the
rights of the other parent. Strother relies on a remark by Judge
Cutler that "three out of four divorce lawyers might not
necessarily agree on whether a person does or does not have the
right to do [what Strother did]". Strother asserts that if
lawyers could disagree about a statute's meaning, then the
statute must surely fail to give adequate notice of what conduct
is prohibited.
The fact that lawyers might disagree about the meaning
of a statute does not mean that the statute is unconstitutionally
vague.
[T]he fact that people can, in good faith,
litigate the meaning of a statute does not
necessarily (or even usually) mean that the
statute is so indefinite as to be unconstitu
tional. The question is whether the
statute's meaning is unresolvably confused or
ambiguous after it has been subjected to
legal analysis. If study of the statute's
wording, examination of its legislative
history, and reference to other relevant
statutes and case law makes the statute's
meaning clear, then the statute is
constitutional.
DeNardo v. State, 819 P.2d 903, 908 (Alaska App. 1991) (emphasis
in the original).
Nevertheless, Strother's point can not be ignored. The
actus reus of the custodial interference statutes can be
problematical when the defendant is a parent who has custody
rights to the child. We acknowledge that there is a potential
vagueness in defining the actus reus of the crime in terms of
conduct that defeats the other parent's right to custody when
there is no court order defining the exact contours of that
custody. After a court decree has specified the hours or days of
each parent's physical custody of the child, it is fairly easy to
identify conduct that infringes another parent's right of
custody. But when both parents retain their original,
undifferentiated joint right of custody, attempts to specify the
actus reus of custodial interference are hampered by an unavoid
able degree of imprecision.
Difficult cases might be presented by situations in
which one parent assumes protracted exclusive physical custody of
the child without the other parent's knowledge and perhaps
contrary to the other parent's previously expressed wishes. For
instance, following a quarrel about the advisability of visiting
relatives in another state, one parent might decide to
unilaterally resolve the issue by taking the child on the trip
and leaving the other parent behind. This parent's action would
constitute a prolonged assertion of exclusive physical custody.
But, assuming that the parent keeps the child away from home only
for the length of a reasonable visit with relatives, one might
well question whether this parent has acted in such a way as to
defeat the custody rights of the other parent.
This and similarly difficult cases may conceivably
arise in applying the actus reus of custodial interference to
joint custody situations. Nevertheless, "the possibility of
difficult or borderline cases will not invalidate a statute where
there is a hard core of cases to which the ordinary person would
doubtless know the statute unquestionably applies." Holton v.
State, 602 P.2d 1228, 1236-37 (Alaska 1979) (quoting Stock v.
State, 526 P.2d 3, 9 (Alaska 1974)). Strother's actions of
secretly removing and hiding his daughter, keeping the child from
his wife and refusing to disclose the child's location, epitomize
the conduct that the custodial interference statutes prohibit.
If a parent engages in such actions, and if the parent acts with
the two culpable mental states required by the custodial interfer
ence statutes (knowledge that he or she has no legal right to
engage in these actions, and intent to hold the child for a
protracted period), then persons of ordinary understanding would
have no trouble concluding that the parent has committed the
crime of custodial interference as defined in AS 11.41.330(a).
Compare Michael v. State, 767 P.2d 193 (Alaska App.
1988), overruled on other grounds, Michael v. State, 805 P.2d 371
(Alaska 1991), in which this court held that a parent may be
convicted of assault for failing to take action to prevent
another person from harming his or her child. The defendant in
Michael argued that if the assault statute were construed to
impose criminal liability on parents for failure to protect their
children, then the statute did not give adequate notice of what
conduct was prohibited. This court replied:
Reasonable people may differ about the
outer boundaries of a parent's duty to
protect his or her child from harm, and about
the appropriateness of using the criminal law
to enforce that duty at or near the outer
boundaries. ... However, the duty of a
parent to protect a child from severe abuse
such as occurred in this case is crystal
clear. We conclude that the statute is not
vague as applied to this case.
Michael, 767 P.2d at 199-200 (citations omitted).
Under the facts of Strother's case, it was "crystal
clear" that Strother lacked any legal right to abduct his
daughter and keep her hidden from her mother. For these reasons,
we conclude that Alaska's custodial interference statutes are not
unconstitutionally vague as applied to Strother.
Strother next argues that one of the jury instructions
improperly lightened the State's burden of proof by allowing the
jury to assume that any person would know that one parent can not
abduct and hide a child from the other parent. The jury instruc
tions do not bear out Strother's claim. The court instructed the
jury that the State had to prove, beyond a reasonable doubt, that
Strother "knew he had no legal right to take A.S. from Evangeline
Strother for a protracted period of time". In his summation, the
prosecutor argued that any member of our society would know that
a parent has no legal right to abduct a child and keep the child
hidden from the other parent. However, the jury instructions
clearly required the jury to find, not that this proposition was
common knowledge, but rather that Strother himself knew he had no
legal right to take his daughter and keep her hidden from his
wife. Strother's secretive abduction of the child, his immediate
flight from Alaska, and his ensuing refusal to reveal his where
abouts or the child's whereabouts are all circumstantial evidence
supporting the jury's conclusion that this element of the State's
case had been proved beyond a reasonable doubt.
In his last argument on appeal, Strother asserts that
the jury instructions contain a fatal ambiguity concerning the
culpable mental state needed for the crime. The court's first
instruction on the elements of the offense told the jury that one
element of custodial interference was that Strother "knew he had
no legal right to take A.S. from Evangeline Strother for a
protracted period of time". (emphasis added) Strother does not
attack this instruction. However, Strother points out that the
court's accompanying instruction told the jury that this culpable
mental state could be established by proof "that the defendant
knew his taking and keeping of A.S. was without legal authority".
Strother asserts that this language incorrectly shifted the
burden of proof regarding his knowledge of the possible
illegality of his actions.
Strother concedes that the first phrase, "knew he had
no legal right", correctly states the culpable mental state.
However, Strother maintains that the jury might have erroneously
interpreted the second phrase, "knew [he acted] without legal
authority", to mean that Strother could be convicted merely upon
proof that he knew that no court had explicitly given him the
authority to take A.S. and keep the child from his wife. In
other words, Strother points out that there is a difference
between (a) knowing that an action is prohibited and (b) knowing
that no one has explicitly authorized the action.
The wording that Strother challenges on appeal was
drafted by the trial judge during the discussion of jury instruc
tions at Strother's trial. At that time, Strother's attorney
explicitly accepted this wording:
DEFENSE ATTORNEY: The statute clearly
indicates that [the defendant] must have
positive knowledge that he does not have the
right to take the child.
THE COURT: And the Court is going to
instruct the jury exactly on that. That he
does have to know. ... [The defendant] can
be guilty if he knew there was the custody
order or [if] he knew he didn't have a right
to do it even if there wasn't a custody
order. But in terms of rewording ... this
instruction ...
DEFENSE ATTORNEY: Your Honor, I would
be happy ... if the [instruction said] he can
be guilty if he knew there was a custody
order [or] he can be guilty if he didn't know
there was a custody order but he knew it was
illegal. I think that's clear. [But] I
think [the prosecutor's proposed instruction]
is not clear. ... [T]he way this is
explained [in the prosecutor's proposal],
it's incredibly confusing.
THE COURT: Well, I'm going to respect
your opinion, because ... I know I get jaded
[by repeatedly] hearing the same language.
... I can think something is clear when it
isn't. So I'm certainly willing to be open-
minded to that. I'm ... inclined to [alter
this instruction to read] "As to element six
[of the elements instruction], this element
can be proved either by the State proving
beyond a reasonable doubt that the Defendant
knew there was a custody order in effect
giving temporary custody of A.S. to Eve
Strother, or by the State proving beyond a
reasonable doubt that the defendant knew his
taking and keeping of A.S. was without legal
authority."
I'll repeat [that]. The instruction
would read, "As to element six, ... "
[The Court repeats the proposed
language verbatim.]
DEFENSE ATTORNEY: I'm satisfied with
that.
Because Strother explicitly accepted this wording at
trial, his appellate attack on this instruction must fail unless
he demonstrates plain error. Aviation Associates, Ltd. v. Temsco
Helicopters, Inc., 881 P.2d 1127, 1131 (Alaska 1994). In this
context, "[p]lain error exists when a jury instruction obviously
creates a high likelihood that the jury will follow an erroneous
theory resulting in a miscarriage of justice." Id. at 1131 n.7,
quoting Ollice v. Alyeska Pipeline Service Co., 659 P.2d 1182,
1185 (Alaska 1983).
We find no plain error here. The language Strother
challenges does not plainly suggest an erroneous definition of
the culpable mental state. At most, the phrase "without legal
authority", when viewed in isolation, might conceivably create
the ambiguity Strother complains of. However, this phrase did
not appear in isolation. The court's elements instruction told
the jury that Strother had to know that he "had no legal right"
to take the child. During his summation to the jury, the
prosecutor did not ask the jury to convict Strother under the
theory that he knew no court had issued a decree allowing him to
take the child. Rather, the prosecutor argued that Strother, as
one of two parents who each had custody rights, knew that he had
no legal right to keep the child hidden from her mother.6 Given
this record, there was no reasonable possibility that the jury
was led astray by the variation in the court's phrasing.
The judgement of the superior court is AFFIRMED.
_______________________________
1 We recognize that the terms "custody" and "custodian"
have several legal meanings, depending upon the context in which
the terms are used. Strother's appeal involves parents' right to
physical custody of their children. This case requires us to
interpret the offense of custodial interference in the context of
a custody dispute between two parents, neither of whom has been
awarded primary physical custody of their child. Thus, when we
use the term "custody" in this opinion, we confine our meaning to
a parent or guardian's right to physical custody of a child.
When we say that one of two parents is a "joint custodian" of a
child, we mean that no court has altered the parent's normal
right to physical custody of the child by either temporarily or
permanently awarding primary physical custody of the child to the
other parent or to someone else.
2 The decisions in this area repeatedly turn on the
particular wording and legislative history of the statute under
consideration. For example, Strother cites a single case in
support of his argument that a joint custodian can never commit
the crime of custodial interference. That case, Cline v.
Superior Court, 185 Cal.Rptr. 787 (Cal. App. 1982), involved a
parent charged with child stealing. The California court focused
on the fact that the California Legislature, when it enacted the
crimes of kidnapping and child stealing, declined to adopt
language that would have included parents among those who could
commit these crimes. Cline, 185 Cal.Rptr. at 789-790. See also
People v. Fields, 300 N.W.2d 548 (Mich. App. 1980), aff'd, 320
N.W.2d 663 (Mich. 1982) (another case holding that parents were
excluded from the scope of a kidnapping statute, the decision
explicitly turning on statutory construction).
3 "A person commits child abduction when, with intent to
violate a court order awarding custody of a child to another, he
or she ... removes the child from Illinois without the consent of
the person lawfully having custody of the child[.]" Illinois
Revised Statute ch. 38, para. 10-5(b)(1).
4 "A person commits the crime of custodial interference ...
if, knowing or having reason to know that the person has no legal
right to do so, the person takes, entices or keeps another person
from the other person's lawful custodian with intent to hold the
other person permanently or for a protracted period of time."
Oregon Revised Statute 163.245(1).
5 "The legislative history of the offense [of embezzlement
stems from] one large gap in the law of larceny[:] the [common
law's] firm position that there is no ... larceny without
trespass de bonis. Thus a servant who has received money or
property for his master ... has [lawful] possession[.] [A]
conversion by him is without trespass, and therefore not larceny,
so an embezzlement statute was passed to cover such a case."
Perkins & Boyce, Criminal Law (3rd ed. 1982), ch. 4, sec. 3, p.
353. "[T]he whole purpose of embezzlement is to proscribe
certain [thievish] conduct not involving trespass[.]" Id., at
357.
6 At various points during his closing argument, the
prosecutor stated:
[Mr. and Ms. Strother] were both lawful
custodians. They were both parents [who] had a right
to see their child. ... Both of them were lawful
custodians. Neither one of them had a right to
infringe on the rights of the other to the extent of
taking that child away and going to Barrow, going to
Nome, and hiding out and not disclosing the whereabouts
of that child ... to the other parent.
[Strother had] to know it [was] illegal. ... I'll
just get right to the point of it -- know it [was]
prohibited. ... Now I suggest to you that, even if
[the court had not issued the 90-day] custody order,
that you still know that [these actions are] illegal.
Not [under] the order, but just by common sense and
your understanding of how our society works. In other
words, ... the law is [that] you can't take a child
from the other person and hide out.
[Strother] came in that night [and then] left
[with the child]. And then he wouldn't say where he
was. "You're not going to find me." He's holding the
child. It's out of state. "I know I'm wrong. The
cops are looking for me," is basically what he's
saying. "I'm not going to tell you. You're not [going
to] get that child. I know I'm wrong." ... You can
come to the conclusion [that there] is a substantial
probability that he knows it is illegal because of his
conduct later.
