dissenting in part.
I dissent from that part of the majority opinion which affirms defendant’s conviction of second degree kidnapping, a class 4 felony.
Second degree kidnapping is defined in § 18-3-302, C.R.S.1973 (1978 Repl.Vol. 8). The majority has cited subsection (1) thereof. However, the relevant subsection as applies to the facts of this case is subsection (2), which reads:
“Any person who takes, entices, or decoys away any child not his own, under the age of eighteen years with intent to keep or conceal the child from his parent or guardian commits second degree kidnapping.” (emphasis supplied)
The General Assembly has addressed the problem created by a parent violating a lawful custodial order. Section 18-3-304(2), C.R.S.1973 (1978 Repl.Vol. 8) makes the violation of an order granting custody a class 5 felony.1 However, to date, the General Assembly has not chosen to criminalize the act of one parent taking a child from the physical custody of another parent, absent a court order granting custody to the other parent.
The court order involved here is a temporary restraining order enjoining the defendant from molesting or disturbing the peace *258of Roxanne or her minor child by a previous marriage. Defendant correctly contends that absent a court order terminating or modifying his co-equal right to custody, there was no lawful prohibition against his exercise of custody over his son. See An-not., 77 A.L.R. 317. I know of no contrary authority.
Defendant called § 18-3-304(2), C.R.S. 1973 (1978 Repl.Vol. 8) to the attention of the trial court. However, since it is undisputed that defendant was not charged with, nor did he violate a custody order, the jury was not instructed on this charge. Lee v. People, 53 Colo. 507, 127 P. 1023 (1912) is in point. In Lee, the court relied upon a decree awarding exclusive custody to the mother.
Defendant also contends that the trial court erred in failing to give a clarifying supplemental instruction defining “without lawful justification.” Although it was error to have instructed on second degree kidnapping in the first instance, this error was aggravated by the failure of the trial court to instruct on this material element when clarification was requested by the jury.
In People v. Rex, 636 P.2d 1282 (Colo.App.1981), interpreting § 18-3-302, we held (1) that lack of lawful justification is a material element of the charge of second degree kidnapping which requires proof beyond a reasonable doubt and, (2) that we must strictly construe the statute in the light most favorable to the accused. Although defendant failed to submit such an instruction prior to argument, he did so when the jury requested clarification on this matter.
Where the concept of a material element to be considered by the jury is legal, rather than one of common usage, a definitional instruction must be given. People v. Hoehl, 193 Colo. 557, 568 P.2d 484 (1977). See also People v. Hardin, 199 Colo. 229, 607 P.2d 1291 (1980). A trial court has the duty to go beyond the “mere abstract statements or legal definitions” when necessary to guide the jury toward an intelligent understanding of the legal and factual issues it is to resolve. Tyler v. Dowell, Inc., 274 F.2d 890 (10th Cir.1960). Further, failure to give such a clarifying instruction when properly requested is reversible error. Walsh v. Miehle-Goss-Dexter, Inc., 378 F.2d 409 (3rd Cir.1967); 9 C. Wright & A. Miller, Federal Practice & Procedure § 2555 (1971).
I would therefore reverse the conviction of second degree kidnapping and leave standing the convictions of third degree assault and second degree criminal trespass.
. Prior to the passage of § 18-3-304 this matter was treated as a misdemeanor. C.R.S.1963, 40-2-45.