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Interference with custody interpreted

By: dmc-admin//November 5, 2007//

Interference with custody interpreted

By: dmc-admin//November 5, 2007//

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Where a man convinced two children to accompany him to his home, he violated sec. 948.31(2) — interfering with child custody, the Wisconsin Court of Appeals held on Oct. 31.

The very strange facts of the case are as follows:

Andrew, 11, and his brother Shawn, 5, live with their mother. On Nov. 11, 2003, Andrew and Shawn were walking home from school when they had to stop to allow a train to pass.

55-year-old Isaiah Bowden, a stranger to them, crossed the street and asked if he could walk with them. Bowden showed Andrew a ring and engaged the boys in sports talk. Bowden also gave Andrew a card bearing his name and number so Andrew could call him sometime.

Bowden asked the boys several times to come to his house with him. More than once they said they had to get home, because their mother had a rule that they had to be home by 4 p.m. Bowden repeatedly said, “No, come to my house,” and the boys eventually went with him.

The house was the residence of Cindy and Robert Stobbe and Cindy’s sister, Sue Mueller.

Cindy is a friend of Bowden’s girlfriend, Amy Hoffman, who was also in the house.

The occupants thought the boys appeared frightened and said the pair “stayed pretty scared” while they were there. Bowden told Shawn to kiss the women, but they all refused.

Shawn was too afraid and Cindy said he did not have to kiss them because they were strangers to him.

Andrew said at least twice that he had to leave because he did not want to get grounded; Bowden kept saying they should stay and he would give them a ride home. At one point, Andrew asked Cindy what time it was; when she told him it was 4:30, he said, “[W]e have to get going, we are late.” The various adults estimated the boys were in the house anywhere from 10 or 20 minutes to as long as 45 minutes.

After about the fifth time that Andrew said they needed to go, Bowden told the boys that he and Hoffman would take them home and the boys left the house with them. Bowden told the boys to get in the car, but Andrew declined, saying they would walk home.

Ultimately, Robert and Sue walked the boys home because they were not sure if Bowden “was going to have any more contact with them.”

Bowden was charged in Winnebago County Circuit Court with two counts of interfering with child custody as a repeater. A jury found him guilty, and he appealed, but the court of appeals affirmed, in a decision by Judge Neal Nettesheim.

Section 948.31(2) provides in relevant part: “Whoever causes a child to leave, takes a child away or withholds a child for more than 12 hours from the child’s parents … is guilty of a Class I felony.”

The court interpreted the statute to provide three methods of violating the statute: (1) causing a child to leave; (2) taking a child away; or (3) withholding a child for more than twelve hours. At issue was the first method.

Bowden argued that he could not have caused the children to leave their mother, because the boys were not with their mother when the incident occurred.

Bowden argued that, because a defendant can only violate the statute under the third method by withholding the child from the parent, implicitly, the first two methods can occur only in those situations in which the child initially is with the parent.

However, the court disagreed, agreeing with the state that the important distinction between the withholding method of interference, and the first two, is the parent’s initial permission, rather than the parent’s presence.

The court wrote, “The withholding method addresses a situation where the person who takes the child has some initial permission to do so. The other two methods speak to situations where the parent has given no permission to the person who ‘causes a child to leave’ or ‘takes a child away.’”

Turning to the facts, the court concluded they were sufficient to support the conviction for causing the children to leave their mother.

The court concluded, “This was an instance of an adult stranger luring children from their designated journey home contrary to the directives and without the knowledge of a parent. The jury heard that even Robert Stobbes and Mueller, who were acquainted with Bowden, were unsure enough of Bowden’s intentions toward the boys to walk them home and advise them to tell their parents. The evidence was sufficient to show that Bow-den caused the children to leave a parent.”

Accordingly, the court affirmed.

Case analysis

Curiously, the court does not even address whether the 12 hour temporal requirement applies to all three methods of violating the statute.

Initially, Bowden’s appellate counsel filed a no-merit report, but the court of appeals ordered him to address the sufficiency of the evidence issue.

The statute provides: “Whoever causes a child to leave, takes a child away or withholds a child for more than 12 hours from the child’s parents … is guilty of a Class I felony.”
The court’s interpretation is a reasonable one, but a plausible argument could also be made that, unless the children are away from the parent for 12 hours or more, the statute does not apply at all, regardless of the method of interference charged.

The leading case interpreting the statute does not foreclose such an interpretation. State v. Samuel, 2001 WI App 25, 240 Wis.2d 756, 623 N.W.2d 565, reversed on other grounds.

In Samuel, the court set forth the three ways in which the statute could be violated, limiting the 12-hour limitation to the withholding method; however, the child in that case was lured away from her mother by the defendant for 14 months; thus, the 12-hour element was not relevant to the court’s analysis.

Furthermore, a hypothetical suggested by the court of appeals in Samuel suggests the 12-hour element may have been intended to be applicable to all three methods.

The court wrote, “For example, if a defendant lives in California, meets a girl over the Internet and encourages her to come to California so she can become a model, and if the girl does go to California because of the defendant’s persuasion, the defendant has caused her to leave her parents.” Samuel, 623 N.W.2d at 575.

As highly disturbing as the facts in the case at bar are, they don’t fit neatly within the traditional understanding of “interference with custody.” Most laypersons asked to give a definition of that term would likely give a definition that more closely fits the court’s hypothetical in Samuel than a short visit to a stranger’s house, as in the case at bar.

Given the ambiguity of the statute, and the ordinary understanding of “custody,” the court of appeals could have directed appellate counsel to address whether the 12-hour element applies to all three methods of interference with custody.

The law recognizes the concept of “imperfect self defense,” where self defense was arguably necessary, but legally insufficient, such as when the defendant subjectively believed
force was necessary, but that belief was objectively unreasonable.

The court’s interpretation in the case at bar could be viewed as making the statute an alternative in child enticement cases — “imperfect child enticement” — that is, the State really wants to charge the defendant with child enticement, but proving one or more of the elements is problematic.

The child enticement statute, sec. 948.07 (PDF), provides, “Whoever, with intent to [commit one of a variety of crimes against a child], causes or attempts to cause any child who has not attained the age of 18 years to go into any vehicle, building, room or secluded place is guilty of a Class D felony.”

It is probable that the State in this case really wanted to charge Bowden with child enticement (even his own friends were suspicious of his motives), but the facts were so strange that they couldn’t prove what his intent was; so they charged him with interference with custody instead.

In a recent case, a judge came under heavy criticism for entering a judgment of acquittal in a child enticement case. The court concluded that the state failed to prove the defendant caused the child to enter a secluded place, because the “secluded place” in issue had no walls to block the view of the defendant and child.

Given the broad interpretation that the court of appeals gives the statute in the case at bar, it is possible that the State could have successfully prosecuted that defendant for interference with child custody instead.

In cases where the real offense may be child enticement, but proof is problematic for one reason or another, prosecutors should consider bringing charges under this statute as a substitute.

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