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                                                                  New Mexico Compilation
                                                                Commission, Santa Fe, NM
                                                               '00'05- 09:14:00 2015.12.09

Certiorari Denied, November 5, 2015, No. 35,546

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2015-NMCA-117

Filing Date: September 3, 2015

Docket No. 33,396

STATE OF NEW MEXICO,

       Plaintiff-Appellant,

v.

ADRIA LEFTHAND,

       Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY
Sarah C. Backus, District Judge

Hector H. Balderas, Attorney General
Santa Fe, NM
Jacqueline R. Medina, Assistant Attorney General
Albuquerque, NM

for Appellant

Jorge A. Alvarado, Chief Public Defender
Nina Lalevic, Assistant Public Defender
Santa Fe, NM

for Appellee

                                        OPINION

KENNEDY, Judge.

{1}     The State appeals from dismissal of an indictment against Defendant on one count
of custodial interference for improper venue. We reverse the district court, holding that the
place where a person, with a right of custody, was deprived of that right by the wrongful
actions of another establishes a proper venue for the trial of the crime. In this case, the

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person with whose custody Defendant interfered resided in and has the right to custody of
the child in Taos County. This is sufficient to confer venue on the district court in Taos
County. The case is remanded with an order to reinstate the indictment against Defendant
in the Taos County district court.

FACTS AND PROCEDURAL BACKGROUND

{2}    Defendant and Gilbert Martinez lived in Taos, New Mexico, and have a son who was
born in Taos. As the result of Defendant’s petition to determine paternity, custody, and
support, the Taos County district court entered a stipulated order in 2007 governing support
and custody and granting Gilbert Martinez visitation with his child.

{3}    After the order was entered, Defendant moved to Albuquerque, while Martinez
remained in Taos. After problems with Defendant’s compliance with ordered time sharing,
Martinez requested the Taos County district court to modify the prior order; the district court
found that Martinez had made a good faith effort to maintain time- sharing with his child,
and Defendant had thwarted those efforts. The district court entered an order containing a
new time-sharing plan to begin on August 10, 2010.

{4}     Martinez was unable to exercise his rights to custody under the time-sharing plan
from August 2012 through January 2013 because Defendant did not abide by the new plan.
Orders to show cause elicited no response from Defendant. Subsequently, Defendant was
indicted by a Taos County grand jury for custodial interference. Defendant moved to dismiss
the indictment for improper venue, maintaining that since she had failed to deliver the child
to Martinez in Santa Fe, where the August 2012 order directed the exchange of custody to
take place, venue was not proper in Taos County.

{5}     The district court agreed with Defendant and dismissed the indictment. Its order of
dismissal found that “the only connection to Taos County in the above styled case is that the
parenting plan was entered into in Taos County and the alleged victim resides in Taos
County”. It further found that “none of the material elements of the crime were alleged to
have been committed in Taos County, and thus venue is improper in Taos County.” The
State appealed.

DISCUSSION

{6}      We review de novo questions involving the statutory interpretation of the essential
elements that must be proven to constitute a criminal offense. State v. Roybal, 2006-NMCA-
043, ¶ 25, 139 N.M. 341, 132 P.3d 598. Questions involving the statutory interpretation of
what essential elements must be proven to constitute a criminal offense are likewise
reviewed de novo. State v. Rivera, 2004-NMSC-001, ¶ 9, 134 N.M. 768 82 P.3d 939. When
construing a statute, we first refer to the statute’s plain meaning, avoiding constructions that
would produce an absurd result; if absurdity would result, we construe the statute according
to its obvious spirit or reason. State ex rel. Helman v. Gallegos, 1994-NMSC-023, ¶ 19, 117

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N.M. 346, 871 P.2d 1352. Venue is not an element of an offense and does not relate to the
guilt or innocence of the defendant; as a result, “it may be established by a mere
preponderance of the evidence.”Roybal, 2006-NMCA-043, ¶ 19.

{7}      Defendant does not dispute that Martinez has custody rights from the court order
setting time sharing with their son, that all acts alleged in the case occurred in New Mexico,
or that the child was present within New Mexico at all relevant times. Defendant states that
“[t]he alleged acts or omissions in this case took place in either Santa Fe or Bernalillo
County.” According to Defendant, Bernalillo County would be a proper venue in which to
try the allegation that she detained the child by refusing to leave her home there, and Santa
Fe County would have venue over the allegation that she did not turn the child over to
Martinez in that county as ordered by the Taos County district court, possibly satisfying the
“failing to return” element. This focus on the various methods of committing the crime begs
question of what constitutes the elements of custodial interference, in order to determine
where Defendant transgressed any that might be essential.

A.     Constitutional and Statutory Provisions Governing This Case

1.     Custodial Interference

       Custodial interference consists of any person, having a right to custody of a
       child, maliciously taking, detaining, concealing or enticing away or failing
       to return that child without good cause and with the intent to deprive
       permanently or for a protracted time another person also having a right to
       custody of that child of his right to custody. Whoever commits custodial
       interference is guilty of a fourth degree felony.

NMSA 1978, § 30-4-4(B) (1989).

       “ ‘[R]ight to custody’ ” means the right to physical custody or visitation of
       a child arising from:

               (a) a parent-child relationship between the child and a natural or
               adoptive parent absent a custody determination; or

               (b) a custody determination.

§ 30-4-4(A)(5)(a)(b).

2.     Constitutional and Statutory Provisions Regarding Venue

       All trials of crime shall be had in the county in which they were committed.
       In the event elements of the crime were committed in different counties, the
       trial may be had in any county in which a material element of the crime was

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        committed.

NM Const., art. II, § 14.

        In all criminal prosecutions, the accused shall have the right to appear and
        defend himself in person . . . [and] to have . . . a speedy public trial by an
        impartial jury of the county or district in which the offense is alleged to have
        been committed.

NMSA 1978, § 30-1-14 (1963).

B.      Nature of the Custodial Interference Offense

1.      Defendant’s Arguments and the District Court’s Order

{8}      Defendant asserts that the actus reus—the wrongful deed—is solely the act of
detaining or failing to deliver the child. She insists that the elements of the crime are limited
to “the alleged actions of the accused, not the effect those actions have on other people.”
Defendant asserted to the district court that her failure to deliver the child to his father in
Santa Fe was the only alleged element or act of custodial interference. She has expanded this
view on appeal to include detaining the child in Bernalillo County where she resides, but
insists that because none of the things she allegedly did to transgress the elements of the
crime “took place in Taos County[,]” venue in Taos County was improper.

{9}     The district court appears to have agreed with Defendant’s arguments in dismissing
the indictment. The district court set out the actus reus elements as “taking, detaining,
concealing, enticing away or failing to return [a] child,” and the mens rea as doing the acts
maliciously “with the intent to deprive permanently or for a protracted period of time another
person having a right of custody of that child of his right of custody.” It found that
Defendant failed to turn over the child to his father in Santa Fe County and that “none of the
material elements of the crime were alleged to have been committed in Taos County[.]” The
State asserts that this is not the sum of the essential elements. We must determine what the
elements of the offense are.

2.      Deprivation of Custodial Rights is the Gravamen of the Offense and a Necessary
        Element of Custodial Interference

{10} The ultimate goal in statutory construction “is to ascertain and give effect to
the intent of the Legislature.” State v. Cleve, 1999-NMSC-017, ¶ 8, 127 N.M. 240, 980 P.2d
23. The title of a statute is frequently useful to directing its construction. Tri-State
Generation & Transmission Ass'n, Inc. v. D'Antonio, 2012-NMSC-039,
¶ 18, 289 P.3d 1232. Here, the statute is entitled “[C]ustodial [I]nterference,” and it “is
intended to prevent persons with custodial rights from disrupting another person's right to
custody.” State v. Munoz, 2006-NMSC-005, ¶ 16, 139 N.M. 106, 129 P.3d 142. The

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gravamen of a criminal offense is the “burden or gist of a charge; the grievance or injury
specially complained of.” Black’s Law Dictionary 547 (2d ed. 1910). We still emphasize the
“wrong or evil the statute is designed to remedy.” State v. Hernandez, 2001-NMCA-057 ¶
18, 130 N.M. 698, 30 P.3d 387. The gist of this offense is to punish the intentional disruption
or deprivation of the established custody rights of another.

{11} The elements cited by the Taos County district court, such as taking, detaining,
concealing, or enticing away, are no more than various means of accomplishing the
gravamen of the offense, which is an unlawful deprivation of, or interference with, the right
of custody. See State v. Sung, 2000-NMCA-031, ¶ 9, 128 N.M. 786, 999 P.2d 430
(describing “detaining” and “failing to return” a child as “forms of custodial interference”
(internal quotation marks and citation omitted)); cf. State v. Swick, 2012-NMSC-018, ¶ 40,
279 P.3d 747 (holding that additional elements aggravating the crime of burglary only
modified the crime[,] but “do not change the gravamen of the crime,” which was unlawful
entry (internal quotation marks omitted)).

{12} In Munoz, our Supreme Court determined that interference with the right to custody
may be accomplished either by “taking interference,” or “failing to return interference.”
2006-NMSC-005, ¶ 14. Both types of interference “require malice and the intent to deprive
permanently or for a protracted time another person of his or her custodial rights.” Id. ¶ 15.
Commission of the crime requires malice and the specific intent to deprive the custodial
parent of his or her right to custody. Section 30-4-4(B). Congruence between the required
intent and the stated subject matter of the crime “demand[s] the inclusion of intent as an
element of the crime.” State v. Lawson, 1955-NMSC-069 ¶ 10, 59 N.M. 482, 286 P.2d 1076.

a.      The Crime Is Not Completed Until the Intended Result is Achieved

{13} Where the indictment alleges that Defendant “did maliciously take, detain, conceal
or entice[] away or fail[] to return said child” with the requisite intent, and those elements
are found by the district court to have occurred elsewhere than Taos County, our inquiry
cannot end if there is another essential element to the crime that was not considered.
Prohibited acts, like detaining and failing to return the child, do not complete the crime. The
crime of custodial interference is only complete once the person who has the right to custody
suffers the malicious and intended harm the custodial interference statute seeks to prevent.
Thus, when Defendant concedes the State’s argument “that an essential element of the crime
is deprivation of the lawful right to custody of a child[,]” but insists that it is the acts, not the
result accomplished, that are the elements of the offense, Defendant paints an incomplete
picture.

{14} In the context of custodial interference, most other states that have considered the
elements of custodial interference hold that it is deprivation of the custodial right—the
“prohibited result, rather than the proscribed conduct per se, that is the gravamen of the
offense”. Wheat v. State, 734 P.2d 1007, 1010 (Alaska Ct. App. 1987); see Foster-Zahid v.
Comm., 477 S.E.2d 759, 762, (Va. Ct. App. 1996) (pointing out that the act of withholding

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is the gravamen of the offense; doing so outside the commonwealth is the element elevating
a misdemeanor to a felony); State v. Spina, 99 S.W.3d 596, 598 (Tenn. Crim. App. 2002)
(“[T]he gravamen of the State’s prosecution is that the Defendant knowingly detained the
child “ ‘from the vicinity where the child . . . is found’ ”). Idaho included deprivation of
custody as something accomplished by one who “[t]akes, entices away, keeps or withholds
any minor child from a parent or other person . . . having . . . visitation or other parental
rights[.]” State v. Doyle, 828 P.2d 1316, 1320 (Idaho 1996) (emphasis omitted). Arizona,
whose statute forbids a person knowingly taking, enticing, or keeping for lawful custody any
child, likewise recognizes the prohibited result of the crime as “the deprivation of ‘lawful
custody.’ ” State v. Aussie, 854 P.2d 158, 160 (Ariz. Ct. App. 1993). In New Mexico, when
a defendant maliciously acts with requisite specific intent “to deprive permanently or for a
protracted time another person also having a right to custody of that child of his right to
custody[,]” deprivation of a person’s right to custody is an intended harmful result of
committing the crime. Munoz, 2006-NMSC-005, ¶ 14. It follows that deprivation is an
essential element of the offense; emphasizing actions like enticing, withholding, detaining,
or failing to return a child to their custodial parent highlights the means to the end.

{15} In short, the actus reus—Defendant’s conduct—and its intended result are both
separate and complementary material elements of the crime. “Where, however, a statute, in
addition to prohibiting conduct, includes within its definition of the offense a specific result,
then the crime is not completed until that result occurs. And if the prohibited result occurs
in a place other than the conduct which occasioned it, the location of the result may fairly
be deemed the place where the crime is ‘consummated.’ ” Trindle v. State, 602 A.2d 1232,
1236 (Md. 1992) (quoting Wheat v. State, 734 P.2d 1007, 1009), abrogated on other grounds
by Surland v. State, 895 A.2d 1034 (Md. 2006). Acting in certain ways with the intent to
deprive a person of custody of a child is only complete when the victim custodial parent’s
right to custody has suffered the interference. See 51 C.J.S. Kidnapping § 31 (2015)
(“Deprivation of custodial rights is a requisite element of the offense of custodial
interference.”).1

{16} In light of our Supreme Court’s holding in Munoz that the purpose of the statute is
to prevent interference with a person’s custody, we hold that interfering with or depriving
a custodial parent of their right to custody is an essential element of the crime of custodial
interference. Thus, we regard the district court’s order as erroneously leaving from its
consideration the necessary element of Defendant’s deprivation of Martinez’s right of
custody with his son. Instead, the court concentrated on the places where the methods were
employed by which the interference or deprivation was accomplished. The venue statute is
clear: “In the event elements of the crime were committed in different counties, the trial may
be had in any county in which a material element of the crime was committed.” Section 30-
1-14. Because deprivation is an element, where it occurred is critical for a determination of


        1
         We note that the elements stated in this section of the C.J.S. are nearly identical to
those in Section 30-4-4.

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venue.

3.       Determining Where Deprivation of Custody Rights Occurred

{17} The fact that some elements of the offense may have occurred elsewhere does not
defeat venue as long as any material element of the crime was committed in the county in
which the defendant is charged. Section 30-1-14; State v. Smith, 1979-NMSC-020, ¶ 11, 92
N.M. 533, 591 P.2d 664. We now join the majority of states that have concluded that
deprivation of custody is an element of custodial interference and held venue to be proper
in the county in which the custodial parent who suffered the deprivation resides. In Virginia,
the gravamen of the offense is not the taking or abduction but the “withholding the child
from the child’s custodial parent[,]” and venue is proper in the county where the harm
resulted from the criminal act, namely, where the parent entitled to custody resided when
deprived of it by the defendant. Foster-Zahid, 477 S.E. 2d at 762; see State v. Young, 2007
MT 323, ¶ 29, 340 Mont. 153, 174 P.3d 460 (holding venue proper where deprivation
occurred); Spina, 99 S.W.3d at 599 (holding that the trial court of the county in which the
custodial parent resides has venue). In Idaho, “the duty to return the child to the custodial
parent follows the custodial parent.” See Doyle, 828 P.2d at 1321.

{18} Defendant conceded the necessary element of deprivation of custody in the crime of
which she is accused. She cites to no contrary authority from any state that, having
recognized the element, has failed to establish venue in the county where the deprivation
occurred. We therefore hold that deprivation of custodial rights is an essential element of the
crime of custodial interference and that the element is satisfied in the county where the result
of the defendant’s actions is felt by the person so deprived.

{19} We are not persuaded by Defendant’s attempts at distinguishing various cases we
have cited, including Aussie, Foster-Zahid, and Wheat. Suffice it to say that the specifics of
those cases that purportedly distinguished them from the present case are not relevant in light
of the holdings in those cases, which firmly establish that deprivation of custody is the
gravamen of the offense and that venue may be found in the county where the element of
deprivation occurs. The right to custody enjoyed by the person injured by the crime in this
case must be established by proving the existence of a court order. Section 30-4-4(A)(5)(b),
(B) (requiring that a custody order establish a right to custody or visitation in the person
whose rights have been transgressed). Martinez was given custody by an order of the district
court in Taos County, and he resides in Taos County.

{20} We conclude that his right to custody was thwarted by Defendant in Taos County.
His “right to custody” is based on an order issued by a Taos county district court, and
Defendant violated that court order by depriving Martinez of that right. See Sung,
2000-NMCA-031, ¶ 12 (accepting that custodial interference “essentially amounts to
violating a duty that arises in this state”). Given that Martinez’s right to custody was based
on a court order from Taos County, Section 30-4-4(A)(5), and was denied by Defendant’s
actions, venue will lie in Taos County district court, and Defendant violated that court order

                                               7
by depriving Martinez of that right. See, e.g., People v. Caruso, 519 N.E.2d 440, 442-43 (Ill.
1987) (rejecting the argument that the crime is committed where the children were concealed
and establishing venue in the county in which the detrimental effects of the actions are felt);
Trindle, 602 A.2d at 1236 (holding that venue lies in the county in which the custodial parent
was deprived of custody and the court’s authority was flouted). The locus of the legal right
to custody suggests another well-recognized reason to recognize venue in the Taos County
district court. If the violation of the right imposed by a court order is part of the offense, then
venue should certainly lie in the court whose order was violated. Dugie, 1999-NMSC-002,
¶ 6.

4.      Venue Is Proper In Taos County

{21} Because venue must be supported by no more than a preponderance of the evidence,
see Roybal 2006-NMCA-043, ¶ 19, we conclude that burden is amply met here. The source
of Martinez’s custody right and its deprivation are both essential elements, proof of which
is to be found in Taos County. Martinez’s right of custody of the child exists with him in his
county of residence, the county in which he was given custody, and, most importantly, the
county in which he was deprived of the custody of his son by the Defendant. The custody
order, to the extent it might have sought to facilitate matters of exchange by providing that
the exchange itself would occur in Santa Fe County or by allowing Defendant to reside in
Bernalillo County with their child, does not change these facts. We hold that under our
statute criminalizing custodial interference, a person may be charged in the place where the
harm sought to be prevented by the statute results—even if the actions that started the events
causing the harm occurred elsewhere. We hold that venue is proper in the Taos County
district court.

CONCLUSION

{22} We reverse the district court, and remand with instructions to reinstate the indictment
against the Defendant on the Taos County district court’s trial docket.

{23}    IT IS SO ORDERED.

                                                 ____________________________________
                                                 RODERICK T. KENNEDY, Judge

WE CONCUR:

____________________________________
CYNTHIA A. FRY, Judge

____________________________________
TIMOTHY L. GARCIA, Judge


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