Review Denied Sept. 17, 2013.
[Copyrighted Material Omitted]
Sara B. Thomas, State Appellate Public Defender; Jason C. Pintler, Deputy Appellate Public Defender, Boise, for appellant. Jason C. Pintler argued.
Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney General, Boise, for respondent. Mark W. Olson argued.
GUTIERREZ, Chief Judge.
Veronica Lynn Calver aka Haney appeals fro her judgment of conviction for felony child custody interference. Specifically, Veronica asserts the State failed to prove with sufficient evidence that she was " without lawful authority" to remove her son from the State of Idaho pursuant to a joint temporary restraining order (JTRO). The JTRO was entered by the family court after the son's father filed for divorce. Veronica requests a judgment of acquittal on this basis. Alternatively, she argues the district court erroneously instructed the jury by failing to require a specific finding that the father had a custodial or parental right to have the son within the State of Idaho. She also challenges a jury instruction on the ground it contained a fatal variance because the instruction defined the nature of the father's custodial rights in a way that was not included in the charging document. Veronica asserts that each error in instructing the jury was not harmless and asks for a new trial.
FACTS AND PROCEDURE
Raymond Calver and Veronica wed in 2005 and had a son together in 2008. In 2009, the family moved to Idaho where Raymond and Veronica experienced marital discord due to Raymond's alleged substance abuse issues and violent behavior. The problems eventually led to a separation in the summer of 2011. Prior to the separation, the couple had discussed moving to Tennessee to be close to Veronica's mother. Raymond and Veronica had made preparations for the move; however, at some point before the planned departure date, Raymond decided he would not be going with the family to Tennessee. Veronica went forward with the plans to move. On August 29, 2011, Raymond filed for divorce in Idaho. Upon the filing of the divorce complaint, the magistrate issued a JTRO— an order designed to maintain the status quo of
the parties in relation to any minor children subject to the divorce. The following day, Raymond's brother signed an affidavit claiming he served Veronica with the divorce filings, including the JTRO. Based upon advice she received, Veronica believed that the service upon her was not legally proper.
Within the first days of September, Veronica left Idaho for Tennessee with some belongings, her two minor children from a previous relationship, and the son whom she had with Raymond. She only made it to Utah, where her car broke down beyond repair. A Garden City Police officer attempted to contact Veronica a couple of days later. Veronica called the officer from Utah, who relayed to Veronica that pursuant to the JTRO, she was not to remove the son from the State of Idaho for more than seventy-two hours and she was required to return the son to Idaho. Within a couple of days, a detective from the Garden City Police Department contacted Veronica in Utah, telling her that he was planning to seek a felony arrest warrant if she did not immediately return the son to Idaho. The detective faxed a copy of the divorce papers, including the JTRO, to Veronica in Utah. Thereafter, Veronica's mother and step-father drove from Tennessee to Utah, picked up Veronica and her children, and took them all to Tennessee. Veronica spoke with a Tennessee attorney, who advised her that the JTRO was not valid. Ten days after arriving in Tennessee, police arrested Veronica on an Idaho warrant for felony custodial interference.
At her Idaho trial, Veronica raised the affirmative defense that her actions were necessary to protect either herself or her children from imminent physical harm. The district court instructed the jury on both the charge and the defense of necessity without any objections from the parties. The jury found Veronica guilty of felony child custody interference, Idaho Code § 18-4506. The district court sentenced her to a unified term of five years, with one year determinate, but suspended the sentence and placed Veronica on probation for a period of five years. Veronica timely appeals. She asserts that the State had insufficient evidence to prove she was " without lawful authority" to remove the son from the State of Idaho and seeks an acquittal. In the alternative, Veronica argues that the jury instructions were erroneous and contained a fatal variance, either of which are not harmless error, and she asks for a new trial.
A. Sufficiency of the Evidence
The standard of review for sufficiency of the evidence for a judgment of conviction entered upon a jury verdict is whether there was substantial evidence upon which a reasonable trier of fact could have found the prosecution sustained its burden of proving the essential elements of the crime beyond a reasonable doubt. State v. Hoyle, 140 Idaho 679, 684, 99 P.3d 1069, 1074 (2004); State v. Lawyer, 150 Idaho 170, 172, 244 P.3d 1256, 1258 (Ct.App.2010). We do not substitute our view for that of the jury as to the credibility of the witnesses, the weight to be given to the testimony, and the reasonable inferences to be drawn from the evidence. Lawyer, 150 Idaho at 172, 244 P.3d at 1258; State v. Knutson, 121 Idaho 101, 104, 822 P.2d 998, 1001 (Ct.App.1991). Moreover, we consider the evidence in the light most favorable to the prosecution. Lawyer, 150 Idaho at 172, 244 P.3d at 1258; State v. Herrera-Brito, 131 Idaho 383, 385, 957 P.2d 1099, 1101 (Ct.App.1998). If we determine the evidence is insufficient, the defendant is entitled to acquittal. See Herrera-Brito, 131 Idaho at 385, 957 P.2d at 1101.
To convict a person of felony child custody interference, the State must prove the person intentionally and " without lawful authority" takes or keeps or withholds a minor child from an individual having custody, joint custody, or other parental rights. I.C. § 18-4506(a). Veronica asserts there is insufficient evidence to show she was without lawful authority to interfere with Raymond's custodial rights because the only limitation on her right to parent was the JTRO. Veronica argues the State could not convict ...