                                                                                                         COURT OF APPEALS
                                                                                                             DiViSIQH iT
                                                                                                      ZOR APR 22
                                                                                                                    All 8: 87




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                     DIVISION II

STATE OF WASHINGTON,                                                                 No. 44026 -1 - II


                       Appellant /
                                 Cross -
                                       Respondent,


         v.




TERESA LYNN CLINE,                                                              PUBLISHED OPINION


                       Respondent /Cross -Appellant.



         HUNT, P. J. —       The State of Washington appeals the superior court' s order granting Teresa
                       Knapstadl

Lynn Cline'        s                 motion and dismissing without prejudice the first degree custodial

interference       charge against     her.   The State argues that the superior court erred in concluding as a

matter of law that there was no material dispute that Cline had intentionally taken the child with

intent to deprive the        child' s   father   of contact   for   a " protracted period" (   here, a full weekend) for

                                                                2
purposes      of   the   custodial   interference    statute.       Cline cross -appeals, arguing that, if we agree

with the State, the State failed to establish a question of fact about whether she took the child

with    intent to deprive the father             of contact.        Holding that, under the circumstances here, a

weekend may constitute a " protracted period" for a 14- month -
                                                              old child within the meaning of

RCW 9A. 40. 060( 3), we reverse and remand for trial.


1State v. Knapstad, 107 Wn.2d 346, 729 P. 2d 48 ( 1986).

2
    RCW 9A. 40. 060( 3).
No. 44026 -1 - II



                                                              FACTS


                                              I. CUSTODIAL INTERFERENCE


             Joel Gavino and Ranee Cline are BG' s3 biological parents; Teresa Lynn Cline is Ranee


Cline'                         thus, BG'                                         On June 6, 2012, when BG was almost
            s4




                 mother and,               s maternal grandmother.




14    months        old,   the Department     of    Child    and   Family Services      held    a "   Family Team Decision

Meeting" with Gavino, Ranee, and other family members about BG' s supervision and safety.

Clerk' s Papers ( CP) at 20. This meeting resulted in a safety plan, which provided that BG would

live with Gavino, that Ranee could have only supervised visits with BG because of her drug

and /or methadone use, and that relatives could supervise these visits.


             After    this   June   6   meeting,      Cline     and     her   mother,    Rosemary Cline ( BG' s great

grandmother) were apparently engaged in an ongoing dispute with Gavino about visitation with

BG.         Gavino refused Rosemary' s request to take BG camping at Silver Lake on Father' s Day

weekend.            On June 15, the Friday of Father' s Day weekend, Child Protective Services ( CPS)

worker           Tarassa Wiper   conducted a       home     visit at   Gavino'   s residence.   Gavino expressed concern


about the relatives' "         reliability and-trust -
                                                     worthiness" -as- supervisors for Ranee' s visits -with BG.

CP     at    20.     Cline and Ranee arrived to pick up some of Ranee' s personal items, and Ranee

    request[ ed]     visitation."   CP   at   20.    Wiper arranged for Ranee to have visitation with BG that


Sunday evening with Gavino supervising.




3 To provide some confidentiality, we order that initials be used in the body of the opinion to
identify the juvenile involved.
4
    Because several individuals involved in this case share Teresa Cline' s last name, we refer to
Teresa Cline' s relatives by their first names to avoid confusion. We intend no disrespect.



                                                                   2
No. 44026 -1 - II



             At some point after Ranee and Gavino arrived, one of Gavino' s neighbors saw Cline

leave the house, move her car further down the street, return inside the house, walk back out of

the house with BG about three minutes later, run from the house to her car, and drive away with

BG. When they realized BG was gone, Gavino and Ranee unsuccessfully tried to contact Cline;

and    Gavino      called     911.   When the deputies arrived, Ranee denied having given Cline permission

to take BG, and she supplied a written statement to that effect. Ranee also told the deputies that

her grandmother, Rosemary, had requested visitation with BG that weekend to go camping at

Silver Lake.


             Meanwhile, Gavino' s aunt, Diana Waadevig, engaged in a text message conversation

with    Rosemary. Waadevig               texted    Rosemary, " You          might want    to   call [   Cline] and tell her to


return [     BG] before       she gets   into   trouble."   CP   at   35.   Rosemary    responded, "[      T] his would of not


came [ sic] to this if you would of [ sic] just let ranee [ sic] and the family see him once in a

while."       CP at 37.


             Deputies located Rosemary, Cline, Ranee, and BG at a campground near Silver Lake.

Ranee told one deputy that she had not contacted the police to report that she had located BG

because she was waiting for her phone to charge; despite her earlier denial, Ranee admitted that

she    had told Cline to take the           child.    After advising Cline        of   her Miranda5 rights, the deputies


questioned         her. Cline told the deputies that she and Ranee had been upset to find someone from


CPS at Gavino' s house when they arrived and that Ranee had asked her ( Cline) to take BG.

 Cline   also provided         the   following   written statement: "       Ranee and I went to get cust[ o] dy off [sic]

     BG]."    CP   at   21.   The deputies arrested Cline.


 5
     Miranda    v.   Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).
No. 44026 -1 - II



                                                          II. PROCEDURE


         The         State    charged       Cline     with         first       degree   custodial       interference    under    RCW


9A.40. 060( 3).         Cline' s attorney filed a Knapstad motion, arguing there was no evidence that

Cline had intended to deny access to BG or that she had intended to hold BG permanently or for

a protracted period of           time.      In support of this motion, Cline filed the deputies' probable cause


statements, documents supporting the probable cause statement, and three new affidavits from

persons who had witnessed or played a part in Cline' s taking BG.

          The first affidavit was from Jamie Nance, a Parent -Child Assistance Program employee,


who had been at Gavino' s home on June 15 looking for Ranee to discuss a drug treatment

program.      Nance had         overheard      Ranee tell Cline " to take [ BG]                    and get out of   there."   CP at 76.


Ten to fifteen minutes later, after Nance had returned to her office, Ranee and Gavino arrived at

Nance'   s office, where            Ranee   asked    Nance     whether she          had   seen     Cline because "[ Cline] took off


with   the   baby."        CP   at   76.    Having earlier heard Ranee tell Cline to take BG, Nance did not

believe Ranee' s statement.


          The second affidavit was from Ranee. Ranee asserted that,after she saw signs of drug use

in Gavino'       s   house,   she   told Cline to take     BG " home."             CP   at   79.    She believed that as long as her

mother was present to supervise her ( Ranee) with BG, it was approved under the safety plan.

Ranee admitted that she had initially lied about not having told her mother to take BG; but she

claimed      that    she   had lied because Gavino             was     angry      and she    feared for her safety. Ranee stated


that   after a   deputy       dropped her     at a   friend'   s   house,       Rosemary     had    contacted   her ( Ranee), told her


that she ( Rosemary) was with Cline and BG, and invited her ( Ranee) to go to Silver Lake with

them; Ranee had accepted the invitation. Ranee further asserted that ( 1) she had intended to call




                                                                           4
No. 44026 -1 - II



the sheriff' s office to let them know she was with BG, but the deputies had arrived about 10

minutes after she got to Silver Lake and she did not have time to call; and ( 2) when the deputies

arrived, she had told them " the truth" about having given Cline permission to take BG because

the deputies had arrested Cline. CP at 80.

            The third      affidavit was            from   Rosemary. Rosemary stated that on the afternoon of June

15,   she   had    called      Cline      and   invited her to     go   to dinner   with   the   family    at   the lake.    Cline had


accepted the invitation but told Rosemary that she was with BG at home, waiting for Ranee.

Rosemary had then contacted and picked up Ranee, Cline, and BG and had taken them to the

lake.    Rosemary asserted that she had intended to bring everyone back to Cline' s house after

dinner, consistent with their family custom.

            The State responded to Cline' s motion that, taken in the light most favorable to the State,

her    submissions (           1)   established a question of fact about whether Cline had taken BG from

Gavino for        a " weekend -        long     camping       trip," CP at 84; and ( 2) created a question of fact for the

jury    about . whether             the    State      could    prove    the "`   protracted      period"    element     of   custodial




interference. CP at 84 ( quoting RCW 9A.40. 060( 3)).

            The trial court granted Cline' s Knapstad motion and dismissed the charge without

prejudice. In its written order, the trial court stated:


                      After considering all the evidence presented to this court at the time of the
            hearing       of   the Knapstad[( sic)] Motion in this matter, it does appear that the State

            may have sufficient evidence to show that the defendant had the intent to deprive
            the father of the child of contact with the childfor some period of time. However,
            the statute requires that in order to be able to prove the charge of Custodial
            Interference in the First Degree against the defendant in this matter, the State
            would need to prove that the defendant intended to deprive the father of contact
            with    the   child either          permanently,     or   for   a protracted period of    time.       The State' s
            position is that the defendant intended to deprive the father of contact with the
            child   for    a weekend.           I   would find as a matter       of law that two days, in the factual
No. 44026 -1 - II


         circumstances presented by the prosecuting attorney, and taking the facts in the
         light   most favorable    to the State,     can not constitute " a protracted period."

                Consequently,      granting the defendant' s Knapstad[( sic)] Motion, and
                                       I   am

         the charge of Custodial Interference in the First Degree presenting pending
         against the defendant is dismissed without prejudice.


CP at 93 -94 ( emphasis added).


         The State appeals. Cline cross -appeals.


                                                         ANALYSIS


                                                   I. STATE' S APPEAL


         The State argues that the trial court erred in concluding that Cline' s taking BG for a

weekend was not " a protracted period" as used in the first degree custodial interference statute,

RCW 9A. 40. 060( 3).        Br.   of   Appellant    at   7.   We   agree with   the State.   This issue is one of first


impression in Washington.


                                                A. Standards of Review


         We review de novo a trial court' s dismissal of a criminal charge under Knapstad. State v.

Conte, 159 Wn.2d 797, 803, 154 P. 3d 194, cert. denied, 552 U.S. 992 ( 2007).

                     Under Knapstad, a defendant may make -a pretrial motion to dismiss a-
         charge and challenge the State' s ability to prove all of the elements of the crime.
         The trial court has the inherent power to dismiss a charge when the undisputed
         facts   are   insufficient to     support a     finding   of guilt.   Knapstad, 107 Wn.2d at 351.
         The court must decide " whether the facts which the State relies upon, as a matter
         of   law,   establish a prima     facie   case of guilt."    Knapstad, 107 Wn.2d at 356 -57.


State   v.   Montano, 169 Wn.2d 872, 876, 239 P. 3d 360 ( 2010).                    We will uphold the trial court' s


 dismissal    of a charge under Knapstad if no rational finder of fact could have found beyond a




                                                               6
No. 44026 -1 - II


reasonable       doubt the      essential elements of     the   crime.    State v. Snedden, 112 Wn. App. 122, 127,
                                                                                 6
47 P. 3d 184 ( 2002), aff'd, 149 Wn.2d 914, 73 P. 3d 995 ( 2003).


          We     review questions         of   statutory interpretation de     novo.    State v. Bunker, 169 Wn.2d


571,    577 -78, 238 P. 3d 487 ( 2010).              We interpret statutes to give effect to the legislature' s


intentions,      beginning by      examining the       statute' s plain   language.    Bunker, 169 Wn.2d   at   578.   In


the   absence of     statutory definitions,       we   look to   standard   dictionary definitions.   State v. Watson,


146 Wn.2d 947, 954, 51 P. 3d 66 ( 2002) (                citing State v. Sullivan, 143 Wn.2d 162, 175, 19 P. 3d

1012 ( 2001)).


                                          B. Definition of "Protracted Period"


          RCW 9A.40. 060( 3) provides:


          A parent or other person acting under the directions of the parent is guilty of
          custodial interference in the first degree if the parent or other person intentionally
          takes, entices, retains, or conceals a child, under the age of eighteen years and for
          whom no lawful custody order or parenting plan has been entered by a court of
          competent jurisdiction, from the other parent with intent to deprive the other
          parent from access to the child permanently or for a protracted period.

 Emphasis        added).       Neither this statute and nor the rest of chapter 9A.40 RCW, however, define

a " protracted period ";          and no case law of which we are aware expressly defines a minimum

period of     time in this       context.      Thus, we use statutory interpretation principles to determine its

meaning.


           According to WEBSTER' S THIRD NEW INTERNATIONAL DICTIONARY 1826 ( definition 2)

    1993), to "   protract"     means "   to draw    out or     lengthen in time     or space:   CONTINUE, PROLONG."




6
    See   also    State   v.    App. 348, 357 n. 6, 869 P. 2d 110 ( 1994) ( noting similarity
                               Olson, 73 Wn.
between standards of review for Knapstad motion and challenge to the sufficiency of the
evidence),       review denied, 124 Wn.2d 1029 ( 1994).




                                                                  7
No. 44026 -1 - II



Because the term " prolonged" is a relative term, the dictionary definition alone does not answer

the question of whether a prolonged period can, in some circumstances, be as short as a weekend

in the context before us here. Thus, we turn to case law for clarification.

             Washington courts have addressed first degree custodial interference cases involving time

periods      significantly longer than the          weekend at          issue here.   But these cases neither address the


meaning of "protracted period" 'nor establish the minimum amount time needed to constitute a

 protracted period"            in this statutory    context.      The shortest time period discussed in any state or

federal custodial interference case we could locate was an eight -day period; but even that case

did    not   focus   on    the duration    of    the interference.        See People v. Obertance, 105 Misc. 2d 558,

                                                                                                                              8
N. Y.S. 2d 475 ( 1980) ( addressing                a vagueness      challenge     to the "   protracted period"   element).




Other domestic relations and criminal statutes and cases also use the phrase " protracted period ";


but similarly       they do     not   define the   minimum        length   of a " protracted period,"   and they involve




7
     State   v.   Veliz, 176 Wn.2d 849, 851 -52, 298 P. 3d 75 ( 2013) ( defendant charged six days after

taking       child, whom        defendant did      not return     for four   months);   State v. Justesen, 121 Wn. App.
 83, 84 -85, 86 P. 3d 1259 (             child    concealed      for 18     months),   review denied, 152 Wn.2d 1033
     2004); State    v.   Lund, 63 Wn.     App.     553, 555 -56, 821 P. 2d 508 ( 1991) ( husband took child out of

state with intent to keep the child to obtain a marital reconciliation, child recovered after 26
days), review denied, 118 Wn.2d 1028 ( 1992).

 8
     See   also   State   v.   Luckie, 120 N.M. 274, 278 -79, 901 P. 2d 205 ( 1995), cert. denied, 120 N.M.
 184 ( 1995) (       vaguene'ss       challenge     to "   protracted      period"    language in custodial interference
 statute) (    citing Obertance, 432 N.Y.S. 2d             at   476).
No. 44026 -1 - I1



contexts   quite       distinct from the first degree        custodial    interference   charged   here. 9   Thus, these

cases offer little guidance.


          Nevertheless, although none of these cases or statutes expressly provide that a " protracted

period"    can be as short as a weekend, they do demonstrate that the meaning of " protracted

period"    is   highly     context- dependent.        Some      courts,   for   example,    have defined "    protracted




period"    in the      custodial    interference   context    as "'   a lengthy or unusually long time under the

circumstances. '          State    v.   Luckie, 120 N.M. 274, 279, 901 P. 2d 205 ( 1995), cert. denied, 120


N.M. 184 ( 1995) (        emphasis added) (      quoting Obertance, N.Y. S. 2d        at   476).   We further note that


this context -
             dependent definition is consistent with our legislature' s express purpose in

promulgating the custodial interference statute: to protect children and custodial parents from
non -custodial parental           kidnapping.    See 1984 FINAL LEGISLATIVE REPORT, 48th Wash.                   Leg.,   at




128 -29.        Against this       backdrop,    we   adopt "     a lengthy or unusually long time under the

circumstances"          as a reasonable      definition   of "protracted period"     for purposes of Washington' s


first degree custodial interference statute, RCW 9A.40. 060( 3).



9
    See RCW 26. 09. 191( 3)( f) (domestic            relations statute allowing court to impose restrictions in
parenting       if "[a] parent has withheld from the other parent access to the child for a
                plan

protracted period without good cause "); RCW 26. 09. 410( 2) ( domestic relations statute defining

    relocate"    a change in principal residence either permanently or for a protracted period of
                as "

time "); State v. Rotko, 116 Wn. App. 230, 245, 67 P. 3d 1098 ( 2003) ( criminal mistreatment case
                                                              was " a factor necessarily included in
addressing whether the " protracted nature of the offense"
the crime itself' and therefore could not be considered an aggravating sentencing factor when
abuse occurred over child' s entire 11 - month lifetime); State v. Vaughn, 83 Wn. App. 669, 680,

 924 P. 2d 27 ( 1996) (           addressing sophistication and planning exceptional sentencing factor,
 describing 11 -month period that child rapist /kidnapper spent in victim' s neighborhood before .
 committing the         crime as a " protracted period "), review         denied, 131 Wn. 2d 1018 ( 1996); State v.
 Ross, 71 Wn.          App.    556, 861 P. 2d 473, 883 P. 2d 329 ( 1993), review denied, 123 Wn.2d 1019
    1994) ( murder      case   discussing    evidence of "   protracted" struggle in context of deliberate cruelty
 aggravating sentencing factor).



                                                                 9
No. 44026 -1 - II



                            C. Application of "Protracted Period" Definition


        Applying this newly adopted definition, we next determine if the State established a

question of fact about whether Cline intended to withhold BG for a " protracted period" in the

context of the circumstances of this case. We hold that it did.


        The statutory purpose of protecting the child undergirds any determination of whether a

weekend    was   a " protracted period"         under       the    circumstances.            Here, the child was especially

vulnerable, a    baby   less than 14     months old.             Gavino, the parent with custody, was engaged in a

long -running    argument with members of              the   mother' s       family       over visitation.       Ranee, the child' s


mother, was     allowed    only   supervised visitation             because     of   her     drug   use.    And Cline took the


baby   surreptitiously     at   Ranee'   s    request,      without      Gavino'      s    knowledge        or    consent.    These


circumstances     showed    instability      in the   child' s care.         Against this backdrop, a weekend could

constitute " a protracted period"        of   time    for    a   baby   as   young    and     dependent      as   BG.   And a jury

should decide whether Cline violated the statute under the facts and circumstances of this case.


        Accordingly,      we    hold that ( 1)        the State provided sufficient evidence to support this


 protracted period" element, and ( 2) the trial court should have denied Cline' s Knapstad motion

to dismiss the first degree custodial interference charge before trial.

                                              II. CLINE' S CROSS -APPEAL


           In her cross -appeal, Cline argues that even if we hold that the State established this

  protracted period" element, the evidence was not sufficient to show that she intended to deprive

 Gavino of access to BG. This argument fails.

            Cline first asserts that there is no proof that she intended to deprive Gavino of access to

 BG because " Ranee,      who     clearly    was   the   parent of      the   child who gave          the   child    to [ Cline], had




                                                                   10
No. 44026 -1 - II



the legal    right   to do     so."       Br.       of   Resp' t /Cross    Appellant        at    12 - 13.   Cline misreads RCW


9A.40. 060( 3),     which expressly applies to a person who takes a child under the direction of a

parent    with    intent to deprive the              other parent        of access      to the      child ( "   for whom no lawful


           order or                     plan    has been      entered     by    a court of competent            jurisdiction "). RCW
custody                parenting


9A. 40. 060( 3).     Because Ranee did not have the right to deprive Gavino of his access to BG,1°

that Cline acted under Ranee' s direction did not absolve her of custodial interference as charged

under this statute.


             Cline next argues that the evidence showed only that Rosemary, not Cline, intended to

take the    child    for the       weekend.          Again, taken in the light most favorable to the State, the


evidence shows         that ( 1)   Rosemary          requested     the    child   for   a   family    gathering that   weekend, (   2)


Rosemary' s response to Waadevig' s text advising Rosemary to call Cline and to tell Cline to

return the child suggested that Rosemary was aware of Cline' s actions, and ( 3) the deputies later

located Cline        and   BG      at   the    family      gathering      at   the lake.         This evidence was sufficient to


establish a question of fact about whether Cline intended to take deprive Gavino of his access to




 10
      Contrary to Cline' s argument, we stress that Ranee' s independent legal right and access to BG
were     irrelevant.     In   addition,       Cline   incorrectly asserts that the evidence that Ranee " gave" her
BG      was " uncontroverted."                Br.   of Resp' t / ross Appellant at 13.
                                                               C                         Ranee' s written and oral
 statements immediately after Cline took BG directly conflict with Cline' s later statements and
 other evidence suggesting that Ranee " gave" BG to Cline.



                                                                     11
No. 44026 -1 - II



BG that Father' s Day weekend.

           We reverse the superior court' s dismissal of the custodial interference charge against

Cline and remand for trial.




We concur:




Maxa,




                                                 12
