State v. Doyen

State v. Doyen  (94-627); 165 Vt 43; 676 A.2d 345

[Opinion Filed 15-Mar-1996]

  NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 No. 94-627


State of Vermont                                  Supreme Court

                                                  On Appeal from
     v.                                            District Court of Vermont,
                                                  Unit No. 1, Bennington Circuit

Phillip J. Doyen                                  November Term, 1995


Robert Grussing III, J.

       Jeffrey L. Amestoy, Attorney General, and Susan R. Harritt, Assistant
  Attorney General, Montpelier, for plaintiff-appellant

       Robert M. Paolini of Martin & Paolini, Barre, for defendant-appellee


PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.

       JOHNSON, J.  In this case, we decide whether Vermont has jurisdiction
  to prosecute the offense of custodial interference, 13 V.S.A. § 2451, where
  the defendant commits no act within Vermont.  The trial court dismissed the
  charge against defendant, reasoning that the alleged conduct took place in
  New Hampshire, Hawaii, and other states, but not in Vermont. The State
  contends that where the child and the child's lawful custodian are
  residents of Vermont, Vermont retains jurisdiction to prosecute the
  offense, regardless of where the child is held or kept by defendant.  We
  reverse the trial court's dismissal and reinstate the charge against
  defendant.

                                     I.

       The parties stipulated to the following facts.  Defendant exercised
  his visitation rights under a court order and, with the permission of the
  custodial parent, obtained custody of his daughter in Vermont on June 30,
  1994.  The visitation period ended on July 17, 1994, but defendant failed
  to return his daughter to her mother, the custodial parent, on that date. 
  Instead,

 

  sometime after June 30, 1994, defendant left Vermont with the child and
  traveled to a number of places, including New Hampshire, California, and
  Hawaii.  Although defendant returned to Vermont with the child on July 5,
  1994, for a doctor's appointment, after July 17, 1994 defendant was not in
  Vermont with the child.

       Defendant was eventually found in Hawaii, where he waived extradition,
  and returned to Vermont.  In October 1994, he was arraigned on the charge
  of custodial interference. Defendant moved to dismiss the charge for lack
  of subject matter jurisdiction.  The trial court granted the motion, and
  the State appeals.

                                     II.

       Defendant argues that his conduct cannot be punished by the State of
  Vermont because he acted exclusively outside of Vermont.  Defendant
  apparently assumes that the crime of "keeping a child from the child's
  lawful custodian" occurs where the child is kept, not where the lawful
  custodian is located.  Neither the language of the statute nor the weight
  of precedent from other states supports defendant's position.

     13 V.S.A. § 2451 states, in relevant part:

       (a) A person commits custodial interference by 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.
     
          . . . .

       (c) It shall be a defense to a charge of keeping a child from the
  child's lawful custodian that the person charged with the offense was
  acting in good faith to protect the child from real and imminent physical
  danger. . . . This defense shall not be available if the person charged
  with the offense has left the state with the child.

  The statute explicitly contemplates application to a person who has kept a
  child outside of Vermont.  Defendant, however, argues that the language in
  subsection (c) refers only to those who "snatch" a child in Vermont and
  then leave the state to avoid detection, unlike defendant, who had a legal
  right to pick up the child in Vermont and to leave the state during the
  visitation

 

  period.  This interpretation would have some merit if subsection (c)
  established a defense to "taking" or "enticing" the child from the child's
  lawful custodian.  But subsection (c) applies only to a charge of "keeping"
  a child.  The only plausible interpretation of this language is that the
  statute is intended to apply to a person, like defendant, who keeps a child
  outside of Vermont when the child's lawful custodian is a resident of
  Vermont.

       We also find persuasive the reasoning of courts from other
  jurisdictions that have held that the custodial parent's state of residence
  has jurisdiction over the crime of custodial interference, regardless of
  where the defendant flees with the child.  At least four other state
  supreme courts have considered this issue and ruled in favor of exercising
  jurisdiction.  See State v. Doyle, 828 P.2d 1316, 1321 (Idaho 1992) (act of
  "keeping" or "withholding" child from lawful custodian occurred in Idaho,
  although parents exchanged custody in Oregon and defendant remained outside
  of Idaho); Trindle v. State, 602 A.2d 1232, 1235 (Md. 1990) (intended
  result of defendant's conduct -- i.e., depriving lawful custodian of
  custody -- formed "an essential ingredient of her offense" and had effect
  in Maryland, although defendant acted entirely outside of state); State v.
  Kane, 625 A.2d 1361, 1363-64 (R.I. 1993) (Rhode Island court retained
  jurisdiction over extraterritorial custodial violations, because conduct
  necessarily produced detrimental effect within Rhode Island); Rios v.
  State, 733 P.2d 242, 249 (Wyo. 1987) (Wyoming could exercise jurisdiction
  over extraterritorial conduct that caused result within Wyoming).  A number
  of intermediate appellate courts have issued similar decisions.  See, e.g.,
  Wheat v. State, 734 P.2d 1007, 1010-11 (Alaska Ct. App. 1987) (Alaska had
  jurisdiction to prosecute offense because prohibited result of keeping
  child from lawful custodian occurred in Alaska); State v. Aussie, 854 P.2d 158, 160 (Ariz. Ct. App. 1993) (venue proper because deprivation of lawful
  custody occurred in custodial parent's home county); People v. Haynie, 826 P.2d 371, 374 (Colo. Ct. App. 1991) (though not in state, defendant had
  legal duty to return children and could be prosecuted for failure to do
  so); State v. Evans, 442 S.E.2d 287, 289 (Ga. Ct. App. 1994) (custodial
  parent's domicile proper venue for prosecution, even though child was

 

  to be returned to custodial parent at defendant's residence); People v.
  Caruso, 504 N.E.2d 1339, 1344 (Ill. App. Ct. 1987) (offense of child
  abduction based on omission to perform duty imposed by law of state;
  therefore, Illinois had jurisdiction despite defendant's absence from
  state); People v. Harvey, 435 N.W.2d 456, 457 (Mich. Ct. App. 1989)
  (Michigan had jurisdiction over parental kidnapping charge because
  detrimental effects of defendant's intentional retention of child out of
  state occurred within state); Roberts v. State, 619 S.W.2d 161, 164 (Tex.
  Crim. App. 1981) (act of defendant retaining child out of state resulted in
  violation of Texas custody decree; thus, Texas had jurisdiction to
  prosecute offense).

                                    III.

       Defendant argues that the cases from other jurisdictions are based on
  jurisdictional statutes and precedents that Vermont lacks.  Such
  differences are always grounds for caution in considering precedent from
  other states.  Nonetheless, our analysis is aided by the work of courts
  that have previously considered this question.  The cases identify two
  possible bases for jurisdiction over a charge of custodial interference. 
  One approach is to consider a defendant's failure to return a child to the
  child's lawful custodian a crime of omission occurring in the lawful
  custodian's state of residence.  An alternative ground for jurisdiction is
  the recognition that a state may impose criminal sanctions for out-of-state
  conduct that has a detrimental effect within the state.

       Although most crimes are committed by an affirmative act, under some
  circumstances a failure to act can result in criminal liability.  W. LaFave
  & A. Scott, 1 Substantive Criminal Law § 3.3, at 282 (1986).  For example,
  a taxpayer who fails to file a tax return may be subject to criminal
  penalties.  See 32 V.S.A. § 5894(b) (establishing criminal penalties for
  knowing failure to file tax return when due).  To face criminal liability
  for a failure to act, however, a person must have been bound by a legal
  duty to act.  LaFave & Scott, supra, § 3.3(a), at 283. Here, defendant had
  a legal duty under a court order to return the child to her lawful
  custodian in Vermont.  The information charging defendant with "knowingly
  ke[eping] the child from the

 

  child's lawful custodian without a legal right to do so" is based on his
  failure to fulfill his legal duty, and that failure can fairly be
  considered a criminal omission.(FN1)  See, e.g., Doyle, 828 P.2d  at 1320
  ("keeping" or "withholding" child from lawful custodian is crime of
  omission).

       We recognize that Vermont, unlike some other states, does not have a
  jurisdictional statute explicitly authorizing prosecution for crimes of
  omission.  See, e.g., Colo. Rev. Stat. Ann. § 18-1-201(3) (West 1986)
  (location of offender immaterial to commission of offense based on omission
  to perform duty imposed by state law); Ill. Comp. Stat. Ann. ch. 720, act
  5, § 1-5(c) (Smith-Hurd 1993) (offense based on omission to perform duty
  imposed by state law is committed within state, regardless of location of
  offender); Model Penal Code § 1.03(1)(e) (1985) (authorizing conviction of
  person for omission to perform legal duty imposed by state law "with
  respect to domicile, residence or a relationship to a person, thing or
  transaction in the State").  Indeed, Vermont lacks the type of general
  jurisdictional statute illustrated by Model Penal Code § 1.03.  The absence
  of such a statute does not, however, preclude Vermont's exercise of
  jurisdiction.  Where there is a legal duty to act, "`failure to perform
  that duty is, for the purpose of jurisdiction, tantamount to an act.'" 
  LaFave & Scott, supra, § 2.9, at 185 (quoting Restatement of Conflict of
  Laws § 70, cmt. a (1934)); see also State v. Damon, 317 A.2d 459, 460-61
  (Me. 1974) (although defendant was outside of Maine when he violated
  furlough, offense was wilful failure to return to prison in Maine; offense
  was committed in Maine and Maine had jurisdiction to prosecute).  Under
  this analysis, defendant has committed an act within Vermont just as if he
  had remained in Vermont with the child, and Vermont may properly prosecute
  him.

 

       Alternatively, several states have jurisdictional statutes authorizing
  prosecution for an offense if "either the conduct which is an element of
  the offense or the result which is such an element occurs within this
  State."  Model Penal Code § 1.03(1)(a) (1985); see, e.g., Ariz. Rev. Stat.
  Ann. § 13-109(A) (1989) (criminal prosecutions tried in county where
  conduct constituting any element of offense or result of such conduct
  occurred); Ill. Comp. Stat. Ann. ch. 720, act 5, § 1-5(b) (Smith-Hurd 1993)
  (offense committed partly within state if result that is element of offense
  occurs within state); Tex. Penal Code. Ann. § 1.04(a)(1) (West 1994) (state
  has jurisdiction over offense if conduct or result that is element of
  offense occurs inside state). Again, however, such a statute is not a
  prerequisite for the exercise of jurisdiction.  See Rios, 733 P.2d  at 249
  (lack of specific statute does not preclude exercising jurisdiction over
  extraterritorial conduct causing result within state).  Indeed, the Model
  Penal Code provision is close to the common-law view 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."  LaFave &
  Scott, supra, § 2.9(a), at 180; see also United States v. Columba-Colella,
  604 F.2d 356, 358 (5th Cir. 1979) (objective territorial theory of
  jurisdiction permits sovereign state to attach criminal consequences to
  extraterritorial act, if act was intended to have effect within state);
  People v. McLaughlin, 606 N.E.2d 1357, 1358-59 (N.Y. 1992) (basis of New
  York's jurisdiction in criminal cases is territorial principle derived from
  common law; general rule is that state has jurisdiction if either alleged
  conduct or some consequence of it occurred within state); 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 . . . .").

       The United States Supreme Court has also endorsed this view of a
  state's criminal jurisdiction.  In Strassheim v. Daily, 221 U.S. 280,
  285-86 (1911), the Court permitted Milton Daily's extradition to Michigan,
  where he had been indicted for bribery, although Daily had acted outside of
  Michigan.  The Court stated:

 


  If a jury should believe the evidence, and find that Daily did the
  acts [alleged], the usage of the civilized world would warrant Michigan in
  punishing him, although he never had set foot in the state until after the
  fraud was complete. Acts 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 he had been present at the effect, if
  the state should succeed in getting him within its power.

  Id. at 284-85.(FN2)

       Defendant's conduct resulted in the child's mother losing custody of
  the child.  That result occurred, and could only occur, in Vermont, the
  mother's state of residence.  Moreover, the result is not incidental to the
  offense charged, but is in fact an element of the offense as defined by
  statute.  13 V.S.A. § 2451 ("A person commits custodial interference by . .
  . keeping a child from the child's lawful custodian, knowingly, without a
  legal right to do so . . . .") (emphasis added); see also Doyle, 828 P.2d 
  at 1320 (elements of offense of custodial interference include "(1) an
  intentional (2) taking, enticing away, keeping or withholding which (3)
  unlawfully deprives the custodian of custody").  As Vermont has succeeded
  in gaining personal jurisdiction over defendant, both the common law and
  Supreme Court precedent allow his prosecution for out-of-state conduct that
  had the effect of unlawfully depriving a Vermont resident of custody of her
  child.

                                    IV.

       Defendant argues, however, that Vermont law, specifically 13 V.S.A. §
  2 and related precedent of this Court, precludes Vermont from punishing his
  conduct.  Section 2 states:

       A person who, with intent to commit a crime, does an act within this
       state in execution or part execution of such intent, which culminates in
       the commission


 
       
       of a crime either within or without this state, shall be punished for
       such crime in this state in the same manner as if the same had been
       committed entirely within this state.

  In State v. Harrington, 128 Vt. 242, 250, 260 A.2d 692, 697 (1969), this
  Court interpreted § 2 in the context of a prosecution for blackmail (13
  V.S.A. § 1701).  The defendant, a Vermont lawyer, had mailed a threatening
  letter in Vermont to a recipient in New Hampshire.  The threat was based on
  certain compromising pictures taken in New Hampshire.  The defendant argued
  that because his conduct affected persons and property in New Hampshire,
  Vermont lacked jurisdiction to prosecute the offense.  The Court disagreed,
  and held that Vermont could prosecute the defendant because he had
  committed an "`act within this state . . . so related to the crime that if
  nothing more had followed, it would have amounted to an attempt.'"  Id.
  (quoting People v. Werblow, 148 N.E. 786, 790-91 (N.Y. 1925)).

       In support of his position, defendant relies on People v. Gerchberg,
  181 Cal. Rptr. 505 (Cal. Ct. App. 1982).  There, the court held that
  California could not prosecute a New York resident for failing to return
  his children to the lawful custodian in California at the end of a
  visitation period.  Id. at 507.  Under the "settled law" of California, the
  court noted, "California cannot punish for conduct taking place outside of
  California unless the defendant has, within this state, committed acts
  which amount to at least an attempt to commit a crime punishable under
  California law."(FN3)  Id. at 506.  Defendant argues that the language of § 2
  and our decisions in Harrington and State v. Huginski, 139 Vt. 95, 422 A.2d 935 (1980), similarly restrict Vermont's jurisdiction to prosecute
  out-of-state conduct.  Following this reasoning, Vermont lacks jurisdiction
  to prosecute defendant, because he has "done nothing in this state even
  approaching an attempt," Gerchberg, 181 Cal. Rptr.  at 506, to violate 13
  V.S.A. § 2451.

 

       We note first that if defendant's conduct is viewed as a crime of
  omission, § 2 poses no bar to his prosecution.  As we have already
  discussed, a failure to perform a legal duty, for jurisdictional purposes,
  is tantamount to an act.  Vermont, as "the state wherein the act is legally
  required to be performed," has jurisdiction over the crime of omission. 
  LaFave & Scott, supra, § 2.9(a), at 185.  As both the conduct and the
  result occurred within Vermont, § 2 is irrelevant.

       Moreover, we do not agree that § 2 should be interpreted to deprive
  Vermont of a state's common-law jurisdiction over out-of-state conduct that
  produces harmful results within the state. Nothing in § 2 indicates that
  the grant of jurisdiction is exclusive.  Indeed, the title of § 2 when
  enacted, "An act to provide for penalties for certain acts," suggests that
  the statute was intended to expand, rather than contract, Vermont's
  jurisdiction.  1925, No. 129.  The statute does, for example, abrogate the
  restrictive common-law rule that a crime has only one situs, and only the
  place of the situs has jurisdiction.  See LaFave & Scott, supra, § 2.9(a),
  at 180 (describing common-law rule).  The situs is the place of the act or
  omission if the crime is defined only in those terms, but the situs is the
  place of the result if the result is an element of the crime.  Id. at
  180-81.  Section 2 extends Vermont's jurisdiction to include acts committed
  within the state, where the result, and therefore the situs of the crime,
  is in another state.  Another problem resolved by § 2 is jurisdiction over
  offenses consisting of several acts, where some of the acts are committed
  out of state.

       Our interpretation of § 2 in Harrington is consistent with this view
  of the statute.  In Harrington, the blackmail threat was communicated in
  New Hampshire.  At common law, only New Hampshire could have prosecuted the
  offense.  Section 2, however, permitted Vermont to prosecute the offense,
  because the defendant, with intent to commit a crime, had committed an act
  within Vermont (the mailing of the letter).  In fact, the issue in
  Harrington, whether Vermont could "attach legal consequences to any overt
  act committed within its boundaries, even though the final impact and
  injury may occur elsewhere,"  Harrington, 128 Vt. at 250, 260 A.2d  at 697,
  is the reverse of the question posed in this case.

 

       Our decision in Huginksi, however, poses a more difficult obstacle. 
  There we considered whether Vermont had jurisdiction to prosecute
  defendant, a Connecticut resident, with counseling or procuring the burning
  of his house in Vermont.  None of the conversations or arrangements
  regarding the arson occurred in Vermont, and the defendant did not actually
  participate in the burning of the house.  Huginski, 139 Vt. at 98, 422 A.2d 
  at 937.  We reversed the conviction for lack of jurisdiction, stating that
  "[t]he penal laws of a state are enacted as an exercise of sovereignty and
  are thus restricted in their application to places within the boundaries of
  the state."  Id. at 97-98, 422 A.2d  at 937.  The decision briefly mentions
  § 2, but rejects it as a ground for jurisdiction, because the "defendant's
  acts [within Vermont] did not constitute an attempt to commit either crime
  set forth in the information."  Id. at 99, 422 A.2d  at 937.

       Huginski discusses neither the common-law principles of jurisdiction
  nor the Supreme Court's decision in Strassheim.  Moreover, the broad
  language in Huginski is inconsistent with our earlier decision in State v.
  Jost, 127 Vt. 120, 241 A.2d 316 (1968).  In Jost the Court held that
  Vermont had jurisdiction to prosecute a defendant for false advertising,
  although the defendant had written the advertising material in Canada and
  mailed it to a newspaper publisher in Boston.  Id. at 124, 241 A.2d  at 320. 
  Copies of the newspaper were circulated in Vermont. The Court stated the
  "well-settled" principle that "one [who], while absent from the
  jurisdiction, commits an offense within the state by means of an innocent
  agency, may be held liable in that state if that is where the crime is
  accomplished."  Id., 241 A.2d  at 319.

       On reconsideration, we conclude that Huginski overstated the limits on
  Vermont's jurisdiction to prosecute out-of-state conduct causing
  detrimental effects within Vermont.  That jurisdiction exists at common law
  and has not been abrogated by statute.  To the extent that Huginski is
  inconsistent with this opinion, it is hereby overruled.  Vermont has made
  the result of defendant's conduct, the lawful custodian's loss of custody,
  a crime; that is enough to provide jurisdiction over the offense, even
  though the acts producing the result occurred elsewhere.

 

       The Wyoming Supreme Court, inquiring whether "any [other] jurisdiction
  . . . would have taken an interest in pursuing [the defendant's] unlawful
  conduct," concluded that "the initiative to pursue the matter could only be
  found where the mother, who was entitled to custody, lives."  Rios, 733 P.2d  at 250.   We are equally skeptical that Hawaii or California or any
  other state where defendant sojourned with his daughter would have cared to
  prosecute him for his conduct.  The harm occurred in Vermont, and Vermont
  is the proper state to pursue the prosecution.

       Reversed.  The charge against defendant is reinstated and the matter
  remanded for further proceedings not inconsistent with this opinion.



                              FOR THE COURT:



                              _______________________________________
                              Associate Justice



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                                  Footnotes

FN1.  A close analogy is the crime of nonsupport of a child, which is
  a crime of omission occurring where the child resides.  See People v.
  Jones, 64 Cal. Rptr. 622, 623 (Cal. Ct. App. 1967) (offense of nonsupport
  of minor child is crime of omission committed at place where child
  resides); State v. Shaw, 539 P.2d 250, 252-253 (Idaho 1975) (Idaho had
  jurisdiction to prosecute defendant for nonsupport, although defendant
  resided in Nevada at times relevant to charge); State v. Klein, 484 P.2d 455, 457 (Wash. Ct. App. 1971) (nonsupport is continuing omission to act
  wherever child is located).


FN2.  Given the United States Supreme Court's holding in Strassheim,
  we find unpersuasive the Minnesota Supreme Court's contrary holding in
  State v. McCormick, 273 N.W.2d 624, 628 (Minn. 1978).  There, the court
  held that a Minnesota statute specifically criminalizing a parent's
  out-of-state detention of a child with intent to deny another's rights
  under a court order violated the Sixth Amendment to the United States
  Constitution.  The court did not mention Strassheim, but cited only a New
  York case from 1855 for the proposition that "`[t]he penal acts of one
  state can have no operation in another state.'"  Id. at 626 (quoting People
  v. Merrill, 2 Parker's Crim. R. 590, 603 (N.Y. Sup. Ct. 1855)).

FN3.  The holding in Gerchberg was overruled by statute.  Cal. Penal
  Code § 784.5 (1985) allows for jurisdiction of a criminal action for child
  abduction in the "jurisdictional territory in which the victimized person
  resides . . . at the time of the taking or deprivation."