Interference With Child Custody — sufficiency of the evidence

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Wisconsin Supreme Court

Criminal

Interference With Child Custody — sufficiency of the evidence

To support a conviction for interference with child custody under sec. 948.31(2), the State need not prove that the defendant had initial permission to take the child.

“Pursuant to the plain language of Wis. Stat. § 948.31(2), a person is guilty of interference with child custody if, without the consent of the child’s parents, the person either (a) ‘causes a child to leave’ the child’s parents, (b) ‘takes a child away’ from the child’s parents, or (c) ‘withholds a child for more than 12 hours’ from the child’s parents.  See also Wis JI——Criminal 2167.  Specific to the third method of interference, therefore, the State must prove three elements: (1) on the date of the alleged offense, the child was under the age of 18 years; (2) the defendant withheld the child for more than 12 hours from the child’s parents; and (3) the child’s parents did not consent.”

“As the court of appeals correctly acknowledged in its certification, nothing in the text of Wis. Stat. § 948.31(2) suggests that the State must also prove that the defendant had the parents’ initial permission to take the child.  Indeed, the statute’s only arguable reference to permission comes in the form of the phrase ‘without the consent of the parents’——a phrase that requires the State to prove that the defendant was without the parents’ permission to withhold their child for more than 12 hours.  Moreover, the common and ordinary meaning of the phrase ‘withholds a child . . . from the child’s parents’ does not suggest that the actor necessarily had the parents’ initial permission to take the child.  The word ‘withhold’ is commonly understood to mean ‘[t]o keep in check; restrain” or “[t]o refrain from giving, granting, or permitting.’  The American Heritage Dictionary of the English Language 2050-51 (3d ed. 1992).  Thus, a defendant withholds a child from the child’s parents within the meaning of § 948.31(2) if the defendant restrains the child or otherwise refrains from giving the child to the child’s parents, irrespective of whether the defendant had the parents’ initial permission to take the child.”

Affirmed.

2010AP2514-CR State v. Ziegler

Ziegler, J.

Attorneys: For Appellant: Rose, Christopher William, Kenosha; For Respondent: Schimel, Brad, Waukesha; O’Neil, Aaron R., Madison