Appeal from the District Court of the Seventh Judicial District, State of Idaho, Bingham County. Hon. Darren B. Simpson, District Judge.
The opinion of the court was delivered by: Burdick, Chief Justice
Permissive appeal following District Court denial of motion to dismiss. The district court order denying the motion to dismiss is affirmed. The Court ruled father is a custodial parent under I.C. §18-4501(2) and mother can be charged with kidnapping.
This case comes before this Court on a permissive appeal following a Bingham County district court's denial of Michelle Anderson's (Michelle) motion to dismiss. Michelle was charged with kidnapping under I.C. § 18-4501(2) after she kept her child away from the biological father, Ricky Anderson (Ricky). Michelle was obligated to deliver the child to Ricky under a parenting plan issued by a Montana court, but never completed the exchange. In her motion to dismiss, Michelle argued that Ricky is not a custodial parent under I.C. § 18-4501 and that therefore Michelle could not have committed kidnapping. The district court denied the motion, and this Court granted permission to appeal that decision.
I. FACTUAL AND PROCEDURAL BACKGROUND
Michelle and Ricky Anderson are the divorced parents of a minor child, P.A. Michelle and Ricky divorced in Montana on February 6, 2008. A final parenting plan (Parenting Plan) was issued by a Montana district court concurrent with the divorce decree. The Parenting Plan stated that P.A. will primarily reside with Michelle, while Ricky was given one week of parenting time per month. Additionally, the Parenting Plan stated that "Michelle shall be the custodian of the child solely for the purposes of all other State and Federal statutes that require a registration or determination of custody . . . ." At the time of the divorce, Michelle lived in Shelley, Idaho, and Ricky lived in Great Falls, Montana. The parties agreed that custody exchanges would take place in Rocker, Montana, roughly half-way between Shelley and Great Falls. After the Parenting Plan was finalized, the first exchange was to occur on February 18, 2008, but Michelle never made the scheduled exchange. Immediately after the missed exchange Ricky traveled to Shelley in search of P.A., but Michelle had taken the child to California. On February 19, 2008, Michelle traveled with P.A. to Wilder, Idaho. Michelle never returned to Shelley. Ricky then unsuccessfully enlisted private investigators to locate Michelle and P.A.
On June 5, 2008, the Bingham County Prosecutor filed a criminal complaint charging Michelle with Kidnapping in the Second Degree under I.C. §§ 18-4501(2), 18-4503, and 18- 4504(2). An arrest warrant was issued pursuant to the criminal complaint. After an investigation by the United States Marshals Office, Michelle was located and arrested at her grandparents' house in Malad City, Idaho, on November 2, 2008, nearly eight months after the first missed exchange. A jury trial had been set for the matter, but the kidnapping charge was dismissed without prejudice in June 2009.
On October 8, 2010, charges were refiled against Michelle for Kidnapping in the Second Degree under I.C. §§ 18-4501(2), 18-4503, and 18-4504(2). A preliminary hearing was held on December 28, 2010, and Michelle was bound over to the district court to face the charge. During preliminary proceedings, Michelle filed a motion for a change of venue on the grounds that the offense was not committed in Bingham County. The district court denied the motion for venue change in an April 19, 2011 order.
Subsequently, the State filed a motion in limine that sought to limit any evidence that Michelle might use to prove the defense of necessity. Michelle also filed a motion for permissive appeal to this Court on May 3, 2011, on the issues of venue and statutory interpretation. On June 7, 2011, Michelle filed a motion to dismiss, on the basis that for purposes of a kidnapping charge, Rick must be a "custodial parent of the minor child." Michelle alleges that pursuant to the Parenting Plan that she is the only custodial parent.
The district court issued a decision and order denying Michelle's motion to dismiss, and holding that Michelle is not entitled to the necessity defense, and that the motion for permissive appeal should be granted. On August 16, 2011, this Court granted permissive appeal as to the issue of whether a parent with visitation rights is a custodial parent under I.C. § 18-4501(2).
This Court exercises "free review over matters of statutory interpretation." KGF Dev., LLC v. City of Ketchum, 149 Idaho 524, 527, 236 P.3d 1284, 1287 (2010) (quoting State v. Doe, 147 Idaho 326, 327, 208 P.3d 730, 731 (2009)). "The interpretation of a statute 'must begin with the literal words of the statute; those words must be given their plain, usual, and ordinary meaning; and the statute must be construed as a whole. If the statute is not ambiguous, this Court does not construe it, but simply follows the law as written.'" Verska v. Saint Alphonsus Reg'l Med. Ctr., 151 Idaho 889, 893, 265 P.3d 502, 506 (2011) (quoting State v. Schwartz, 139 Idaho 360, 362, 79 P.3d 719, 721 (2003)). "A statute is ambiguous where the language is capable of more than one reasonable construction." Porter v. Bd. of Trustees, Preston School Dist. No. 201, 141 Idaho 11, 14, 105 P.3d 671, 674 (2004). "We have consistently held that where statutory language is unambiguous, legislative history and other ...