State v. Washington

State v. Washington  (95-416); 166 Vt. 600; 691 A.2d 583

[Filed 10-Jan-1997]

                               ENTRY ORDER

                      SUPREME COURT DOCKET NO. 95-416

                            NOVEMBER TERM, 1996


State of Vermont                     }     APPEALED FROM:
                                     }
                                     }
     v.                              }     District Court of Vermont,
                                     }     Unit No. 2, Franklin Circuit
William B. Washington                }
                                     }     DOCKET NO. 358-3-95Frcr


       In the above-entitled cause, the Clerk will enter:

       Defendant William Washington appeals his convictions for kidnapping,
  13 V.S.A. § 2405, and violating conditions of release.  13 V.S.A. §
  7559(e).  He contends that a mistrial should have been ordered because of
  the misconduct of a juror, or, alternatively, that judgments of acquittal
  should have been entered for insufficient evidence.  We affirm.

       At the time of the offenses, defendant lived in St. Albans with
  Tabitha Cornell and their two children, William, aged fifteen months, and
  Brenna, aged three months.  On the night in question, defendant forcibly
  entered the apartment of a friend where Tabitha and the children were
  staying, assaulted Tabitha, and departed.  He returned later that night and
  again forced his way into the building.  Moments later, a police officer
  arrived and knocked on the door. Tabitha handed William to defendant and
  opened the door.  After consulting with Tabitha, the officer asked
  defendant to leave.  Defendant demurred and dashed into a bedroom with the
  child, locking the door.  He refused to come out and threatened to harm the
  child and himself if the police entered.  Eventually, defendant agreed to
  drive to the police station with his father, but refused to give up the
  child.  After some time at the station, the police were able to divert
  defendant and wrest the child away.  At the time of the offenses, defendant
  was on bail from a separate charge.  His conditions of release prohibited
  him from harassing Tabitha.

       During the second day of trial, a juror informed the court that during
  dinner the previous evening she told her husband the name of defendant, and
  he informed her that he had worked with defendant's father.  He went on to
  state that "this kid [defendant] is always in trouble." The juror then told
  her husband to say nothing more.  Upon further questioning, the juror
  assured the court that the information would not affect her impartiality,
  stating: "I would just go by what I hear in court.  Whatever else happened
  is something else. . . . To me it doesn't make any difference that he said
  that."  She also stated that she had not mentioned the incident to any of
  the other jurors, and agreed to keep the information to herself.  Defendant
  asked that the juror be removed for cause, which the court denied.(FN1)

 

       Defendant contends that the statement by the juror's husband
  impermissibly influenced the jury and contaminated the verdict.  Even
  assuming that the statement had the capacity to influence the jury, the
  record rebuts any possibility of prejudice.  See State v. McKeen, 7 Vt.
  L.W. 251, 253 (1996).  The offhand remark was not particularly inflammatory
  -- no prior charges against defendant or prior convictions were
  communicated to the juror -- and defendant, facing two felony and two
  misdemeanor charges, was obviously "in trouble."  Furthermore, the juror
  testified unequivocally that she was unaffected by the comment, and would
  render a decision solely on the basis of what she heard in court.  None of
  the other jurors was made aware of the remark.  And, finally, the evidence
  in support of the verdict was strong. Considered in the light of these
  pertinent factors, id., the trial court's determination that the jury could
  render a fair and impartial verdict was sound.

       Defendant also contends the court erroneously denied his motions for
  judgments of acquittal at the close of the State's case and at the end of
  the trial.  Defendant asserts the evidence was insufficient to support the
  kidnapping charge because it failed to establish the element of restraint,
  which requires some substantial movement or confinement without the
  victim's consent.  13 V.S.A. § 2404(3) ("`[r]estrain' means to restrict
  substantially the movement of another person without the person's consent
  or other lawful authority").  The State notes correctly that defendant
  moved for judgment of acquittal solely on the ground that the restraint was
  not accomplished "without consent."  Accordingly, the issue of substantial
  movement or confinement was not preserved for review.  State v. Brooks, 163
  Vt. 245, 254, 658 A.2d 22, 29 (1995); State v. Cole, 150 Vt. 453, 455, 554 A.2d 253, ___ (1988).  In any event, the forcible confinement of the victim
  for thirty or more minutes during the standoff with the police, and the
  subsequent movement of the victim at least one block from the apartment to
  the police station, satisfied the statutory requirements for kidnapping. 
  See People v. Williams, 269 Cal. Rptr. 705, 708 (Ct. App. 1990) (movement
  of victims one long block in defendant's car is substantial distance under
  kidnapping statute);  State v. La France, 569 A.2d 1308, 1312 (N.J. 1990)
  (thirty-minute confinement of victim is substantial period), cited with
  approval in State v. Lang, ___ Vt. ___, ___, 664 A.2d 267, 269 (1995).

       As for the consent issue, the statute provides that

     [a] restraint is "without consent" if it is accomplished
       (A) by acquiescence of the restrained person, if the restrained person
           is under 16 years of age and the restrained person's lawful 
           custodian has not acquiesced in the movement or confinement; or
     (B) by force, threat or deception.

   13 V.S.A. § 2404(4).

       Defendant contends that the requirements of § 2404(4)(B) were not
  satisfied because he did not seize the baby by "force," but rather was
  handed the baby by Tabitha so that she could admit the officer.  The
  "restraint," however, was not based on the short time that defendant merely
  held the baby, but on the period when he forcibly detained the child to
  keep the police at bay.  See 13 V.S.A. § 2405(a)(1)(B) (kidnapping occurs
  when one knowingly "use[s] the restrained person as a shield or hostage").

       Defendant also contends that his "threats" to harm the child were
  directed at the police, rather than the child.  Nothing in the statute,
  however, requires that the threats be directed at, or understood by, the
  victim.  The victim is no less restrained when the confinement is
  accomplished by threats against another, or, as here, by threats against
  the victim communicated

 

  to others.

       In light of our conclusion that the requisites of § 2404(4)(B) were
  satisfied, we need not consider defendant's alternative claim that lack of
  consent could not be established under § 2404(4)(A) because defendant had a
  right as the child's father to "acquiesce" in the restraint. We note,
  however, that cases from out-of-state have generally rejected this
  argument.  See State v. Viramontes, 788 P.2d 67, 68 (Ariz. 1990) (father
  may be convicted of kidnapping his own child); People v. Walker, 473 N.E.2d 995, 997 (Ill. App. Ct. 1985) (holding son hostage is not reasonable
  exercise of parental authority); State v. Siemer, 454 N.W.2d 857, 863-64
  (Iowa 1990) (parent may be convicted for criminal confinement of child);
  State v. Alladin, 408 N.W.2d 642, 647 (Minn. Ct. App. 1987) (upholding
  kidnapping conviction of parent who held daughter hostage for several
  hours); State v. Teynor, 414 N.W.2d 76, 79  (Wis. 1987) (parent may be
  convicted of false imprisonment of child).  But cf. Johnson v. State, 637 So. 2d 3, 4 (Fla. Dist. Ct. App. 1994) (natural father may not be held
  criminally liable for kidnapping child).

       Finally, defendant contends his conviction for violating a condition
  of release was invalid because the evidence failed to establish that he had
  notice of the order.  The State produced a certified copy of the order with
  defendant's signature attesting that he had read and understood it.  This
  was sufficient to convince a reasonable trier of fact of defendant's guilt
  beyond a reasonable doubt.  See State v. Jones, 160 Vt. 440, 442-43, 631 A.2d 840, 843 (1993).

       Affirmed.


     BY THE COURT:



     _______________________________________
     Frederic W. Allen, Chief Justice

     _______________________________________
     Ernest W. Gibson III, Associate Justice

     _______________________________________
     John A. Dooley, Associate Justice

     _______________________________________
     James L. Morse, Associate Justice

     _______________________________________
     Denise R. Johnson, Associate Justice



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                                 Footnotes


FN1.  The same juror also informed the court that she had overheard
  another juror mention seeing defendant's name in the newspaper.  Defendant
  unsuccessfully moved for a mistrial based on this information.  He does not
  challenge this ruling on appeal.