State v. O'Dell

Reiber, C.J.

¶ 1. Defendant appeals her convictions for attempting to impede a police officer and custodial interference, arguing that there was insufficient evidence on the first charge and that conviction under the second charge was legally impossible. We affirm.

¶ 2. On September 13, 2002, the Bennington Family Court issued three emergency detention orders granting the Department for Children and Families (DCF)1 custody of defendant’s children due to alleged educational neglect. Two DCF employees and several law enforcement officers went to defendant’s mother’s house in an attempt to locate the children and execute the detention orders. Upon arrival, a DCF employee attempted to explain the orders to defendant. Defendant refused to release the children into DCF custody and would not allow anyone into the house without a warrant. Over the course of approximately two hours, defendant intermittently came in and out of the house, speaking with police and DCF workers, but continued to refuse entry. One law enforcement officer left to obtain a search warrant.

¶ 3. While waiting for the warrant, a police officer noticed one of defendant’s children behind the house. Police officers began to chase the child, and defendant followed them. Defendant concedes that during this chase she made contact with an officer and then fell over herself. At this point, police arrested defendant. She was charged with attempting to impede a police officer under 13 V.S.A. § 3001, and custodial interference under 13 V.S.A. § 2451(a). At trial, defendant moved for acquittal pursuant to Vermont Rule of Criminal Procedure 29(a), arguing that there was insufficient evidence to demonstrate that she impeded the officer and that she did not receive proper notice of the detention orders. The district court denied the motion, and the jury returned a verdict of guilty on both counts.

¶ 4. On appeal, defendant first argues that the district court erred in denying her motion for acquittal because there was insufficient evidence to support the charge of attempting to impede an officer. Specifically, defendant claims that there was insufficient evidence to prove that she knowingly and purposefully pushed a police officer to prevent him from pursuing her child. In reviewing a denial of a motion based on insufficiency of the evidence, we view the evidence in the light most favorable to the State, excluding any modifying evidence, and determine whether it is sufficient to fairly and reasonably convince a *477trier of fact that the defendant is guilty beyond a reasonable doubt. State v. Burnham, 145 Vt. 161, 165, 484 A.2d 918, 921 (1984). Here, the trooper testified that while he was attempting to pursue the child, defendant pushed him with her hands, causing him to lose his balance. The trooper further testified that the push was not a result of defendant tripping. The jury also heard defendant’s version of events and was instructed on the defense of mistake. From the evidence presented, the jury could conclude that defendant’s actions were purposeful beyond a reasonable doubt. Thus, the motion for acquittal was properly denied.

¶ 5. Defendant’s second argument is that it is legally impossible for her to be convicted of custodial interference because DCF is not a “lawful custodian” within the meaning of the statute. Because defendant did not raise this issue in the district court, we review for plain error. V.R.Cr.P. 52(b) (“Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”).

¶ 6. Custodial interference is defined 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). In addition, the preceding chapter on kidnapping defines lawful custodian as “a parent, guardian or other person responsible by authority of law for the care, custody or control of another.” Id. § 2404. Based on this definition, defendant argues that DCF is not a person, and, thus, not a “lawful custodian” under the statute. Further, defendant maintains that the custodial interference statute was enacted to respond to parental abduction cases and that the Legislature did not intend for the crime to apply in situations where a parent takes or keeps a child, who is lawfully in DCF custody.

¶ 7. In interpreting statutes, “our goal is to give effect to the intent of the Legislature, and to do so we first look at the plain, ordinary meaning of the statute.” State v. Eldredge, 2006 VT 80, ¶ 7, 180 Vt. 278, 910 A.2d 816. When the plain language is clear and unambiguous, we enforce the statute according to its terms. Id.

¶ 8. Upon examination of the statute’s language, we conclude that ‘lawful custodian” includes state agencies, such as DCF. The statute broadly defines ‘lawful custodian” to include parents, guardians, or other persons responsible by authority of law. We disagree that DCF is excluded from this definition because it is not an individual. Statutes employ the term “person” to refer to entities other than individuals; indeed, the Vermont statutes generally define “person” to include “the *478state of Vermont or any department, agency or subdivision of the state.” 1 V.S.A. § 128. Moreover, in numerous decisions we have recognized that DCF serves as the legal custodian of children, like defendant’s children here, who are ordered into its custody. See, e.g., In re E.L., 171 Vt. 612, 613, 764 A.2d 1245, 1247 (2000) (mem.) (recognizing that SRS, as legal custodian, has authority to place a child who is in its custody). In addition, we note that, to the extent other courts have addressed this question, they have also found that state agencies may act as lawful custodians within the meaning of a custodial interference statute. See State v. Gambone, 763 P.2d 188, 190 (Or. Ct. App. 1988) (affirming defendant’s conviction for custodial interference where defendant removed children from custody of Children’s Services Division); see also State v. Whiting, 671 P.2d 1158, 1160-61 (N.M. Ct. App. 1983) (concluding that district court is a “person” that may be vested with legal custody).

¶ 9. Briefly, we address defendant’s contention that the Legislature did not intend for the custodial interference statute to apply to situations where a parent keeps or removes a child from lawful DCF custody. As described above, the statute defines legal custodian broadly, and we refuse to read limitations into the usual and apparent meaning of the statute that the Legislature has not provided. Furthermore, we conclude that applying the statute in circumstances where DCF has legal custody is entirely consistent with the statute’s purposes. The purpose of the custodial interference statute is to protect any custodian from deprivation of his or her rights, even if such deprivation results from the actions of a person who has a right to physical custody. State v. Petruccelli, 170 Vt. 51, 59, 743 A.2d 1062, 1068 (1999). In addition, the statute is designed to protect children, who are victims in these cases and suffer detrimental effects from wrongful taking or withholding. See State v. Wootten, 170 Vt. 485, 491-92, 756 A.2d 1222, 1226 (2000) (explaining that children are victims in parental abduction cases). Although the more typical case of custodial interference may involve one parent depriving another of custody, under this statute the welfare of the children must be recognized as paramount. There is a risk to children when they are wrongfully detained, whether unlawfully taken from one parent or unlawfully kept from DCF executing a judicially approved protective order. See id. (listing how children suffer from custodial interference); see also Gambone, 763 P.2d at 188-89 (describing how mother committed custodial interference by taking children from protective custody).

*479¶ 10. Here, the family court, in the interests of the children’s welfare, issued an order transferring legal custody of the minor children to DCF. DCF was the “legal custodian” of the children when defendant refused to allow DCF workers to take the children into their protection. Thus, we disagree with defendant that it was legally impossible for her to commit custodial interference, and we affirm her conviction.

¶ 11. Finally, we respond to the dissent’s argument that it was impossible as a matter of law for defendant to form the requisite intent for custodial interference because she was extremely emotional and upset. We disagree that there was insufficient evidence to submit the question of intent to the jury. See State v. Hanson, 141 Vt. 228, 233, 446 A.2d 372, 375 (1982) (explaining that standard for sufficiency of the evidence is “whether the evidence, viewed in the light most favorable to the State, is sufficient to convince a reasonable trier of fact that the defendant is guilty beyond a reasonable doubt.”). There was evidence presented to the trial court to demonstrate that defendant was aware that DCF was the lawful custodian of her children. Both DCF employees and police officers testified that they showed defendant the judge’s order and explained to defendant that the court had granted DCF lawful custody of the children. In response, defendant admitted that many people spoke to her about the order and that she remembered receiving a copy of the order, but countered that she was too upset to look at it. Thus, the question of defendant’s intent “was properly a matter for the jury to decide, based on all the evidence before it.” Id. at 233, 446 A.2d at 375. Although presented as a legal deficiency, the dissent’s position that defendant had “neither the time nor the circumstances” to understand the significance of the protective order is a disagreement with the jury’s factual findings. Post, ¶ 19. The jury, as the finder of fact, must resolve contradictions and decide who to believe. State v. Riley, 141 Vt. 29, 33, 442 A.2d 1297, 1299 (1982). In this case, the jury heard all the testimony, was properly instructed on the elements of the charge, and, based on the evidence, found defendant guilty. We find no basis to disturb that result.

Affirmed.

At the time, the agency was called Social and Rehabilitation Services.