                                                       132 Nev., Advance Opinion 219
                         IN THE SUPREME COURT OF THE STATE OF NEVADA


                 MICHAEL J. SCHOFIELD,                                     No. 65193
                 Appellant,
                 vs.                                                                FILED
                 THE STATE OF NEVADA,
                 Respondent.                                                         APR 21 2016
                                                                                   TRACIE K. LINDEMAN
                                                                                CLE

                                                                               BY       teek
                                                                                    CHI F DEaiTY CLtRK

                              Appeal from a judgment of conviction, pursuant 11 a jury
                 verdict, of first-degree kidnapping and child abuse, neglect, or
                 endangerment. Eighth Judicial District Court, Clark County; Elissa F.
                 Cadish, Judge.
                              Reversed.


                 Karen K. Wong, Las Vegas,
                 for Appellant.

                 Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
                 District Attorney, Maria E. Lavell and Steven S. Owens, Chief Deputy
                 District Attorneys, Clark County,
                 for Respondent.




                 BEFORE HARDESTY, SAITTA and PICKERING, JJ.

                                                    OPINION
                 By the Court, HARDESTY, J.:
                              Nevada's first-degree kidnapping statute makes it a category
                 A felony to "lead( 1,, take[ ] , entice[], or carrbrl away or detain( ] any minor
                 with the intent to keep, imprison, or confine the minor from his or her
                 parents, guardians, or any other person having lawful custody of the
SUPREME COURT
      OF
    NEVADA


(0) 1947A   eo                                                                                 zp   )
                        minor         NRS 200.310(1) (emphasis added). Appellant argues NRS
                        200.310(1)'s "intent to keep" language is ambiguous, and there was
                        insufficient evidence to convict him using the proper interpretation of
                        "intent to keep." In addressing appellant's contention, we conclude that
                        (1) NRS 200.310(1)'s "intent to keep" language is ambiguous; (2) pursuant
                        to the canons of statutory interpretation, NRS 200.310(1) requires proof
                        that the accused intended to keep the minor for a protracted period of time
                        or permanently; and (3) reversal is warranted because there is insufficient
                        evidence to support appellant's first-degree kidnapping conviction under
                        the proper legal standard.
                                                          FACTS
                                    Appellant Michael John Schofield (Schofield) is the father of
                        Michael Joshua Schofield (Michael). At the time of the incident, and for
                        more than a decade prior, Schofield's mother and stepfather (Patricia and
                        Norman, respectively) had legal custody of Michael.'
                                    As was typical, Schofield came to visit Michael at Patricia and
                        Norman's house on a Sunday. During the visit, Schofield realized he left
                        something behind at the grocery store and asked Michael to go with him to
                        get it. Michael said no. Schofield insisted that Michael go, and when
                        Michael continued to say no, the argument became physical. Michael tried
                        to walk, then run, away from Schofield inside the house. Eventually,

                              'The record is silent as to the precise extent of Schofield's parental
                        rights; however, the parties agree Patricia and Norman had legal custody
                        of Michael and acted as his primary caregivers. There is no indication in
                        the record that Schofield was seeking, or had ever sought, a change to the
                        custody rights for Michael. Indeed, the record shows that Schofield
                        typically visited Michael a couple times a week, and that arrangement
                        worked well for all parties.


SUPREME COURT
        OF
     NEVADA
                                                             2
(0) 1941A    (2E(e)(0
                 Schofield caught up with Michael and put him in either a chokehold or a
                 headlock. Schofield then dragged Michael outside and threw Michael into
                 his van, which was parked in the driveway. During these events, Patricia
                 called 911 for help, and Norman repeatedly told Schofield to stop. Two off-
                 duty police officers who lived next door tackled Schofield before he could
                 get in the van and leave with Michael.
                                 Schofield was arrested and charged with child abuse, neglect
                 or endangerment; domestic violence (strangulation); burglary; and first-
                 degree kidnapping. Schofield initially had counsel, but he opted to
                 represent himself toward the end of trial. A jury convicted him of child
                 abuse and first-degree kidnapping but acquitted him of domestic violence
                 (strangulation) and burglary. Schofield now appeals from the judgment of
                 conviction, challenging his first-degree kidnapping (NRS 200.310(1))
                 conviction. 2
                                                  DISCUSSION
                                 Schofield argues NRS 200.310(1)'s "intent to keep"
                 requirement is ambiguous, and, under the proper interpretation of that
                 requirement, there is insufficient evidence to support his first-degree
                 kidnapping conviction. 3 NRS 200.310(1) states:


                       2   Schofield has not challenged his child abuse conviction on appeal.

                       Schofield also argues that the child-kidnapping provisions of NRS
                       3
                 200.310(1) do not apply to the minor's parents, guardians, or other person
                 who has lawful custody. For a general discussion, see William B. Johnson,
                 Kidnapping or Related Offense by Taking or Removing of Child by or
                 Under Authority of Parent or One in Loco Parentis, 20 A.L.R.4th 823 (1983
                 & Supp. 2016) (collecting cases). We do not reach this issue, as it is
                 unnecessary to our disposition of this appeal, and it was neither raised nor
                 developed in the district court.


SUPREME COURT
        OF
     NEVADA


10) 1947A    e
                               [Al person who leads, takes, entices, or carries
                               away or detains any minor with the intent to keep,
                               imprison, or confine the minor from his or her
                               parents, guardians, or any other person having
                               lawful custody of the minor. . . is guilty of
                               kidnapping in the first degree which is a category
                               A felony.
                 (Emphasis added.) 4 Schofield argues that the "intent to keep" language in
                 NRS 200.310(1) requires an intent to keep a minor permanently or
                 indefinitely. Based on this argument, we must determine (1) whether
                 NRS 200.310(1)'s "intent to keep" language is ambiguous; (2) if so, what
                 "intent to keep" means; and (3) whether there was sufficient evidence to
                 convict Schofield of first-degree kidnapping under the appropriate legal
                 standard.
                 NRS 200.310(1)'s "intent to keep" language is ambiguous
                               "Statutory interpretation is a question of law subject to de
                 novo review." State v. Catanio, 120 Nev. 1030, 1033, 102 P.3d 588, 590
                 (2004). "We must attribute the plain meaning to a statute that is not
                 ambiguous." Id. "An ambiguity arises where the statutory language lends
                 itself to two or more reasonable interpretations." Id.
                               In material part, NRS 200.310(1) requires proof that the
                 accused intended "to keep . . . the minor from his or her parents,
                 guardians, or any other person having lawful custody" before criminal
                 liability attaches for first-degree kidnapping. Schofield argues that the
                 word "keep" unambiguously means "keep permanently or indefinitely," or,
                 alternatively, that the term is ambiguous and should be narrowly defined.


                       4 The   material jury instruction here mirrored NRS 200.310(1)'s
                 language.


SUPREME COURT
      OF
    NEVADA
                                                       4
(0) 1947A ern,
                We conclude the verb "to keep," as employed in NRS 200.310(1), is
                ambiguous and therefore not susceptible to a plain meaning analysis. See
                id.
                             The verb "to keep," as used in NRS 200.310(1), is ambiguous
                because it can reasonably be interpreted in at least two different ways.
                See id. First, "keep" can mean "[preserve, maintain]: as ... to continue to
                maintain," or similarly, "to retain or continue to have in one's possession
                or power."   Keep, Webster's Third New International Dictionary (2002).
                Such definitions of the word "keep" focus on dominion or possession for a
                period of time, either permanently or for a protracted period. Second,
                "keep" can mean "to restrain from departure or removal," which envisions
                possession against some countervailing force, rather than possession for a
                period of time.   Id.   Therefore, a person attempting to interpret NRS
                200.310(1) could reasonably conclude that first-degree kidnapping
                requires an intent (1) to possess a minor permanently or for a protracted
                period, or (2) to possess a minor for any period of time against his legal
                guardian's wishes. Thus, we conclude that NRS 200.310(1)'s "intent to
                keep" language is ambiguous.
                The word "keep" in NRS 200.310(1) must mean "keep permanently or for a
                protracted period of time"
                             "If the statute is ambiguous, then this court will look beyond
                the statutory language itself to determine the legislative intent of the
                statute." Haney v. State, 124 Nev. 408, 412, 185 P.3d 350, 353 (2008). The
                rule of lenity, which "demands that ambiguities in criminal statutes be
                liberally interpreted in the accused's favor.... only applies when other
                statutory interpretation methods, including the plain language, legislative
                history, reason, and public policy, have failed to resolve a penal statute's


SUPREME COURT
      OF
   NEVADA
                                                      5
  1947A
                ambiguity." State v. Lucero, 127 Nev. 92, 99, 249 P.3d 1226, 1230 (2011)
                (internal quotation marks omitted).
                            NRS 200.310(1)'s legislative history sheds no light on the
                Legislature's intended meaning for the word "keep." Similarly, NRS
                200.310(1)'s legislative history does not provide meaningful guidance
                about how the word "keep" should be interpreted in light of the underlying
                rationale and public policy that induced the Legislature to adopt NRS
                200.310(1). Therefore, we must invoke the rule of lenity to resolve this
                ambiguity and interpret NRS 200.310(1) in Schofield's favor.
                            Interpreting "keep" to mean "possess for any amount of time
                against a legal guardian's wishes" is exceptionally broad. Indeed, that
                interpretation would require a jury to convict Schofield of first-degree
                kidnapping—a category A felony with a five-year mandatory minimum
                sentence—even if it believed he merely intended to take Michael to the
                store and immediately return him to Patricia and Norman's custody.
                Alternatively, "keep" could be read more narrowly to mean "exercise
                continuous and enduring possession or dominion" Such a definition of
                "keep" would require a first-degree kidnapping charge to be supported by
                proof that, at the moment the defendant took possession of the minor, the
                defendant either intended to keep the minor permanently or for a
                protracted period of time. Based on the foregoing, we now conclude that
                the rule of lenity requires that we interpret NRS 200.310(1)'s "intent to
                keep" requirement as requiring an intent to keep a minor permanently or
                for a protracted period of time.
                Schofield's first-degree kidnapping conviction must be reversed
                            "When determining whether a jury verdict was based on
                sufficient evidence to meet due process requirements, we will inquire
                whether, after viewing the evidence in the light most favorable to the
SUPREME COURT
        OF
     NEVADA
                                                      6
(0) 1907T
                prosecution, any rational trier of fact could have found the essential
                elements of the crime beyond a reasonable doubt." Rose v. State, 123 Nev.
                194, 202, 163 P.3d 408, 414 (2007) (internal quotation marks omitted)).
                Using the proper definition of "intent to keep," there is insufficient
                evidence to support Schofield's first-degree kidnapping conviction because
                there was no evidence that he intended to keep Michael permanently or
                for a protracted period. In fact, the overwhelming evidence at trial showed
                Schofield intended to take Michael to the store and then return him to
                Patricia and Norman.
                             Although NRS 200.310(1) allows a first-degree kidnapping
                charge to be supported by an intent "to keep, imprison, or confine," the
                arguments at trial—including closing arguments—and on appeal have
                focused solely on whether Schofield intended "to keep" Michael.
                (Emphasis added.) The State has never meaningfully argued that
                Schofield intended to confine or imprison Michael. Indeed, the State's
                closing argument argued that (1) it only needed to show Schofield
                intended to take Michael; and (2) "Where's nothing in that statute . . . that
                says he has to permanently keep the child, [or] have the intention of
                permanently keeping the child."
                             Thus, Schofield was convicted of first-degree kidnapping when
                no rational juror could have found, beyond a reasonable doubt, that he
                intended to keep Michael permanently or for a protracted period.
                Accordingly, Schofield's first-degree kidnapping conviction is reversed as
                unsupported by the evidence against him. 5 See Vega v. State, 126 Nev.


                      5 We  decline to address Schofield's remaining arguments as our
                reversal renders them moot.


SUPREME COURT
        OF
     NEVADA
                                                      7
(0) I94Th
                332, 345, 236 P.3d 632, 641 (2010); accord Rose, 123 Nev. at 202, 163 P.3d
                at 414.




                                                                                 J.
                                                   Hardesty


                We concur:


                                              J.
                Saitta


                         Adm.                 J.
                Pickering




SUPREME COURT
        OF
     NEVADA
                                                    8
(0) 1947A
