State of Washington v. Cynthia Crisaundra Boss, and Paul Anthony Pelts, and each of them, 167 Wash. 2d 710

Summary

The Washington Supreme Court affirmed Cynthia Boss's conviction for first degree custodial interference. It held that the lawfulness of the custody order was a legal question for the trial court, that knowledge of the custody order was inherent in the offense's intent requirement, and that the trial court's instruction stating CPS had a lawful right to custody was an improper comment on the evidence but not prejudicial.

Holdings

1. The lawfulness of the custody order is not an element of first degree custodial interference that must be submitted to the jury. The trial court may determine the order's lawfulness as a matter of law in performing its gate-keeping function, while the jury determines whether the custody order existed and whether the State proved that the other person or entity had a lawful right to physical custody.
2. Knowledge of the custody order is inherent in the statutory intent requirement; it is not a separate implied element that must be added to RCW 9A.40.060 or separately included in the jury instruction.
3. Instruction 9 improperly commented on the evidence by telling the jury that CPS had a lawful right to physical custody, because the jury had to determine whether the State proved that factual element. The error was nevertheless harmless under Washington's judicial-comment standard because the record affirmatively showed that no realistic prejudice could have resulted.

Questions Presented

1. Whether the lawfulness of the custody order was an element that the jury had to determine and therefore had to be included in the to-convict instruction for first degree custodial interference.
2. Whether the defendant's knowledge of CPS's right to physical custody was an implied element of first degree custodial interference separate from the statutory intent element.
3. Whether the trial court improperly commented on the evidence by instructing the jury that CPS had a lawful right to physical custody of the child and, if so, whether the error required reversal.

Disposition

affirmed