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State v. Hunter4/19/2005
II charged Defendant with custodial interference "on or between June 13, 1997 through August 18, 2001." Count III charged Defendant with custodial interference "on or between June 13, 1997 through January, 2001." There is no evidence in the record indicating that Count III resulted from a different act, or with a different intent than Counts I and II. A date on an indictment or charge is not, in and of itself, sufficient to establish that the offenses are not unitary and should not merge.
The custodial interference statute refers to "child" in the singular, stating the "taking, detaining, concealing or enticing away or failure to return that child . . . is guilty of a fourth degree felony." Section 30-4-4(B). The unit of prosecution is not clear from the statute, so we turn to the factors set forth in Soto and Castaneda. Defendant maintained custody of his children during the period of time in question. This required essentially one act over time, thus the temporal proximity of the acts is that they occurred at the same time. The children were all in Defendant's household, and thus the location of the children during each act was the same. Defendant's intent, as evidenced by his statements, was to raise his children. His conduct and utterances do not indicate that he had a separate intent as to each daughter. In fact, Defendant testified that he believed he legally had custody of "the children" on the dates in question. Finally, we note that the charges stem from one custody order regarding the children. Although there are three children involved, the alleged violation relates to only one custody order. The district court violated double jeopardy requirements in convicting Defendant on three counts of custodial interference, and sentencing Defendant consecutively on each count. We therefore reverse and remand to the district court for entry of a sentence consistent with this opinion, if Defendant is not allowed to withdraw his plea.
CONCLUSION
To summarize, we hold that the district court did not err in refusing to address Defendant's jurisdictional issue after he entered a no contest plea. We remand to the district court for further proceedings to determine whether Defendant presented a fair and just reason to withdraw his plea. We also hold that the district court violated double jeopardy requirements in convicting and sentencing Defendant on three separate counts of custodial interference, and remand.
IT IS SO ORDERED.
MICHAEL D. BUSTAMANTE, Chief Judge
WE CONCUR:
JAMES J. WECHSLER, Judge
JONATHAN B. SUTIN, Judge
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