State v. Hancock

1

STATE OF TENNESSEE v. WENDY D. HANCOCK

No. M2022-00483-CCA-R3-CD

Court of Criminal Appeals of Tennessee, Nashville

May 12, 2023

Session March 21, 2023

Appeal from the Circuit Court for Williamson County No. W-CR190482 Joseph A. Woodruff, Judge

In August of 2018, the Tennessee Department of Children's Services ("DCS") secured an ex parte order placing B.B.,^[1] the minor daughter of Wendy Dawn Hancock Defendant, in the custody of DCS after a referral prompted an investigation. During the span of several days, Defendant and B.B. stayed at both a hotel in Lebanon and Defendant's attorney's, Connie Reguli's ("Ms Reguli's") home in Brentwood without ever being formally served with the ex parte order. Police eventually located B.B. and Defendant in Brentwood. Defendant was indicted for one count of custodial interference, in violation of Tennessee Code Annotated section 39-13-306. Ms Reguli was also charged with several offenses for her actions. Defendant sought a dismissal of the indictment before trial. The trial court denied the motion. After a jury trial, Defendant was found guilty of custodial interference. She was sentenced to two years on supervised probation. The trial court denied the motion for new trial; Defendant appealed. On appeal, Defendant argues that: (1) the indictment should be dismissed because it fails to allege all of the elements of custodial interference; (2) the trial court improperly instructed the jury on the elements of custodial interference; (3) the trial court improperly instructed the jury that the ex parte custody order was "valid and enforceable"; (4) the evidence was insufficient to support the conviction; and (5) Tennessee should adopt an advice of counsel defense for specific intent crimes. Because the trial court improperly instructed the jury essentially removing one of the elements of the offense and lowering the burden of proof, we reverse the judgment of the trial court and vacate Defendant's conviction. We remand the case to the trial court for any further proceedings that may be necessary.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed, Conviction Vacated, and Remanded

J. Gregory Burlison (at trial), and M. Todd Ridley- (on appeal), Assistant Public Defender - Appellate Division, Franklin, Tennessee, for the appellant, Wendy Dawn Hancock.

Jonathan Skrmetti, Attorney General and Reporter; Katharine K. Decker, Senior Assistant Attorney General; Kim Helper, District Attorney General; and Mary Katherine Evins, Assistant District Attorney General, for the appellee, State of Tennessee.

Timothy L. Easter, J., delivered the opinion of the court, in which John W. Campbell, Sr. and Tom Greenholtz, JJ., joined.

OPINION

TIMOTHY L. EASTER, JUDGE

The Williamson County Grand Jury issued an indictment in July of 2019 naming both Defendant and Ms. Reguli. In Count One, Defendant was charged with custodial interference as follows:

[Defendant], being the natural parent of B.B. date of birth of 1-26-2006, a child younger than eighteen (18) years of age heretofore, to-wit, between August 15, 2018 and August 16, 2018, inclusive, before the finding of this presentment, in said County and State, unlawfully, feloniously, and knowingly, did detain said child within this state with the intent to violate a temporary or permanent judgment or court order regarding the custody or care of the child, in violation of Tennessee Code Annotated 39-13-306, a class E felony, and against the peace and dignity of the State of Tennessee.

The indictment was based on actions Defendant took after the issuance of an ex parte order placing her daughter, B.B., in the custody of DCS. The remaining counts of the indictment charged Ms. Reguli with one count of facilitation of custodial interference and two counts of accessory after the fact for her role in the events leading up to B.B.'s placement in DCS custody.

The statute Defendant was alleged to have violated, Tennessee Code Annotated section 39-13-306, provides:

(a) It is the offense of custodial interference for a natural or adoptive parent, step-parent, grandparent, brother, sister, aunt, uncle, niece, or nephew of a child younger than eighteen (18) years of age to:

(1) Remove the child from this state knowing that the removal violates a child custody determination as defined in § 36-6-205, the rightful custody of a mother as defined in § 36-2-303, or a temporary or permanent judgment or court order regarding the custody or care of the child; (2) Detain the child within this state or remove the child from this state after the expiration of the noncustodial natural or adoptive parent or guardian's lawful period of visitation, with the intent to violate the rightful custody of a mother as defined in § 36-2-303, or a temporary or permanent judgment or a court order regarding the custody or care of the child;

(3) Harbor or hide the child within or outside this state, knowing that possession of the child was unlawfully obtained by another person in violation of the rightful custody of a mother as defined in § 36-2-303, or a temporary or permanent judgment or a court order;

(4) Act as an accessory to any act prohibited by this section; or

(5) Detain the child within or remove the child from this state during the noncustodial parent's lawful period of visitation, with the intent to violate the court-ordered visitation of the noncustodial parent, or a temporary or permanent judgment regarding visitation with the child.

(b) It is also the offense of custodial interference for a natural or adoptive parent, step-parent, grandparent, brother, sister, aunt, uncle, niece, or nephew of an incompetent person to:

(1) Remove the incompetent person from this state knowing that the removal violates a temporary or permanent judgment or a court order regarding the custody or care of the incompetent person;

(2) Harbor or hide the incompetent person within or outside this state, knowing that possession of the incompetent person was unlawfully obtained by another person in violation of a temporary or permanent judgment or a court order; or

(3)Act as an accessory to any act prohibited by this section. (c) It is a defense to custodial interference:

(1) That the person who removed the child or incompetent person reasonably believed that, at the time the child or incompetent was removed, the failure to remove the child or incompetent person would have resulted in a clear and present danger to the health, safety, or welfare of the child or incompetent person; or

(2) That the individual detained or moved in contravention of the rightful custody of a mother as defined in § 36-2-303, or of the order of custody or care, was returned by the defendant voluntarily and before arrest or the issuance of a warrant for arrest.

(d) If conduct that is in violation of this section is also a violation of § 39-13-304 or § 39-13-305(a)(1), (a)(3), or (a)(4), the offense may be prosecuted under any of the applicable statutes.

(e)(1) Except as provided in subdivision (e)(2), custodial interference is a Class E felony, unless the person taken from lawful custody is returned voluntarily by the defendant, in which case custodial interference is a Class A misdemeanor.

(2) Custodial interference under subdivision (a)(5) is a Class C misdemeanor.

T.C.A. § 39-13-306.

Defendant filed a motion to dismiss the indictment. In the motion, Defendant argued that the indictment misstated the law and omitted two elements of the offense. In particular, Defendant took issue with the indictment's failure to specify which subsection of the statute applied. Defendant, a resident of Dekalb County, also argued that the ex parte order was invalid because it was issued by a Smith County judge rather than a Dekalb County judge without any authority to do so. As such, Defendant insisted that the order was void ab initio because it was entered by a court without jurisdiction to do so. Defendant eventually abandoned the jurisdiction argument.

The trial court held a hearing on the motion to dismiss the indictment. At the hearing, the State explained that it was proceeding under subsection (a)(2) of the statute, even though the indictment did not specify. Defendant argued that the indictment was fatally defective because it failed to allege that she detained B.B. after the expiration of the noncustodial natural parent's lawful period of visitation. Moreover, Defendant argued that the State could not, as a matter of law, prove Defendant detained B.B. after the expiration of the noncustodial parent's period of visitation because she was the custodial parent. The trial court took the motion under advisement and asked the parties to submit proposed jury instructions for custodial interference.

In the order denying the motion, the trial court found that the case "involved defining the essential elements of the offense of custodial interference" and did not require the court to "find any facts." The trial court determined that because Defendant was charged with an E felony and was not alleged to have removed the child from the State Defendant was charged pursuant to subsection (a)(2) of the statute even though the indictment did not specify the section. The trial court noted that the State "confirmed it [was] relying only on portions of subsection (a)(2)." The trial court also determined "as a matter of law that expiration of a period of visitation is not an essential element of Tenn[essee] Code Ann[otated] [section] 39-13-306(a)(2) in this case where Defendant exercised custody." The trial court further determined that the phrase "'after the expiration of the noncustodial . . . parent or guardian's lawful period of visitation' does not apply to a detaining custodial parent." The trial court found...