Summary
The Washington Supreme Court affirmed Cynthia Boss’s conviction for first degree custodial interference. The court held that the lawfulness of the custody order was a legal question for the trial court, that knowledge of the agency’s right to physical custody was inherent in the offense’s intent requirement, and that the trial court’s improper comment on the evidence was not prejudicial.
Topics
Practice areas
Questions Presented
- Whether the lawfulness of the custody order was an element for the jury to determine and therefore had to be included in the to-convict instruction for first degree custodial interference.
- Whether the defendant's knowledge of CPS's right to physical custody was an implied element of first degree custodial interference separate from the statute's intent requirement.
- Whether the trial court's instruction that CPS had a lawful right to physical custody improperly commented on the evidence and required reversal.
Holdings
- The lawfulness of the custody order is not a separate element of first degree custodial interference for the jury to decide. The trial court may determine as a matter of law whether the order was lawfully entered, while the jury determines whether the order existed and whether the State proved that CPS had a lawful right to physical custody.
- Knowledge of CPS's right to physical custody is not a separate implied element of first degree custodial interference. Knowledge of the custody order is inherent in the offense's intentional-violation requirement.
- Instruction 9 improperly commented on the evidence by telling the jury that CPS had a lawful right to physical custody, but the error was not prejudicial and did not require reversal.
Key quotations
“While the existence of the custody order is an element of first degree custodial interference, the lawfulness of such an order is not.” (719)
“We do not have to “construe” RCW 9A.40.060 to add the element to the statute because it is already there.” (720)
“A judicial comment on the evidence in a jury instruction is presumed prejudicial, and the burden is on the State to show that the defendant was not prejudiced, unless the record affirmatively shows that no prejudice could have resulted.” (721)
Factual background
CPS obtained a May 11, 2006 custody order granting DSHS temporary custody of Boss's newborn daughter after a juvenile court found a risk of imminent harm. CPS repeatedly attempted to obtain physical custody, but Boss concealed the child, stated that she would not make the child available, refused to disclose the child's location, and failed to produce the child after being released from custody. The child was ultimately found in Houston, Texas, and returned to Washington by a CPS social worker.
Procedural history
The State charged Boss with first degree custodial interference after she concealed her daughter and refused to make her available to CPS despite a custody order. The trial court admitted the custody order, instructed the jury that CPS had a lawful right to custody, and the jury convicted Boss. The Court of Appeals affirmed, concluding that the lawfulness of the custody order was for the court, that knowledge of CPS's right to custody was an implied element that could not be raised for the first time on appeal, and that any judicial comment was harmless. The Washington Supreme Court affirmed, holding that knowledge was inherent in the intent element and that the judicial comment was not prejudicial under the applicable presumption-of-prejudice framework.