{ "id": 106586, "name": "STATE of New Mexico, Plaintiff-Appellant, v. Bobbie Kelly SUNG, Defendant-Appellee", "name_abbreviation": "State v. Sung", "decision_date": "2000-03-13", "docket_number": "No. 20,066", "first_page": "786", "last_page": "790", "citations": [ { "type": "official", "cite": "128 N.M. 786" }, { "type": "parallel", "cite": "999 P.2d 430" }, { "type": "parallel", "cite": "2000-NMCA-031" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "118 N.M. 234", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563429 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "242", "parenthetical": "quoting Edmondson, 112 N.M. at 658, 818 P.2d at 859" }, { "page": "853", "parenthetical": "quoting Edmondson, 112 N.M. at 658, 818 P.2d at 859" } ], "opinion_index": 0, "case_paths": [ "/nm/118/0234-01" ] }, { "cite": "112 N.M. 654", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 720198 ], "weight": 4, "year": 1991, "pin_cites": [ { "page": "658", "parenthetical": "\"[T]he touchstone of the rule of lenity is statutory ambiguity.\" (citation and internal quotation marks omitted)" }, { "page": "859", "parenthetical": "\"[T]he touchstone of the rule of lenity is statutory ambiguity.\" (citation and internal quotation marks omitted)" }, { "page": "658" }, { "page": "859" } ], "opinion_index": 0, "case_paths": [ "/nm/112/0654-01" ] }, { "cite": "115 N.M. 215", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 725427 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "221" }, { "page": "364" } ], "opinion_index": 0, "case_paths": [ "/nm/115/0215-01" ] }, { "cite": "306 U.S. 451", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6140919 ], "weight": 3, "year": 1939, "pin_cites": [ { "page": "453", "parenthetical": "\"No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.\"" }, { "parenthetical": "\"No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.\"" }, { "parenthetical": "\"No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.\"" } ], "opinion_index": 0, "case_paths": [ "/us/306/0451-01" ] }, { "cite": "520 U.S. 259", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11651497 ], "weight": 3, "year": 1997, "pin_cites": [ { "page": "266", "parenthetical": "discussing fair warning in a criminal statute as principle of due process" }, { "parenthetical": "discussing fair warning in a criminal statute as principle of due process" }, { "parenthetical": "discussing fair warning in a criminal statute as principle of due process" } ], "opinion_index": 0, "case_paths": [ "/us/520/0259-01" ] }, { "cite": "115 N.M. 710", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 725508 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/115/0710-01" ] }, { "cite": "116 N.M. 775", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 727650 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/nm/116/0775-01" ] }, { "cite": "121 N.M. 205", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566622 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/nm/121/0205-01" ] }, { "cite": "64 Cal.Rptr. 622", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1967, "pin_cites": [ { "page": "623" } ], "opinion_index": 0 }, { "cite": "257 Cal.App.2d 235", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 2221383 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/cal-app-2d/257/0235-01" ] }, { "cite": "117 N.M. 807", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1552633 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "808" }, { "page": "1111" } ], "opinion_index": 0, "case_paths": [ "/nm/117/0807-01" ] }, { "cite": "120 N.M. 694", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1558959 ], "weight": 2, "pin_cites": [ { "page": "697-98" }, { "page": "735-36" } ], "opinion_index": 0, "case_paths": [ "/nm/120/0694-01" ] }, { "cite": "110 N.M. 525", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 716945 ], "weight": 2, "pin_cites": [ { "page": "526" }, { "page": "315" } ], "opinion_index": 0, "case_paths": [ "/nm/110/0525-01" ] }, { "cite": "84 N.M. 151", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2763165 ], "weight": 2, "pin_cites": [ { "page": "152" }, { "page": "437" } ], "opinion_index": 0, "case_paths": [ "/nm/84/0151-01" ] }, { "cite": "109 N.M. 67", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590310 ], "weight": 2, "pin_cites": [ { "page": "69" }, { "page": "797" } ], "opinion_index": 0, "case_paths": [ "/nm/109/0067-01" ] }, { "cite": "121 N.M. 38", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566569 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "46-47" }, { "page": "739-40" } ], "opinion_index": 0, "case_paths": [ "/nm/121/0038-01" ] }, { "cite": "115 N.M. 275", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 725397 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "283" }, { "page": "986" } ], "opinion_index": 0, "case_paths": [ "/nm/115/0275-01" ] }, { "cite": "116 N.M. 537", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 727617 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "541", "parenthetical": "quoting Swink v. Fingado, 115 N.M. 275, 283, 850 P.2d 978, 986 (1993)" }, { "page": "1185", "parenthetical": "quoting Swink v. Fingado, 115 N.M. 275, 283, 850 P.2d 978, 986 (1993)" } ], "opinion_index": 0, "case_paths": [ "/nm/116/0537-01" ] } ], "analysis": { "cardinality": 846, "char_count": 15485, "ocr_confidence": 0.703, "pagerank": { "raw": 9.445579358753587e-08, "percentile": 0.5170859382149307 }, "sha256": "beb95537dbf2e34b2a1c4ac919521be8fcc98de85648b4adf8f5c467f6af5396", "simhash": "1:9e187c2272b5ee2a", "word_count": 2523 }, "last_updated": "2023-07-14T19:01:18.689942+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WECHSLER, and BUSTAMANTE, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellant, v. Bobbie Kelly SUNG, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nBOSSON, Judge.\n{1} In this matter of first impression, we are asked to construe New Mexico\u2019s criminal custodial interference statute, NMSA 1978, \u00a7 30-4-4 (1989), and determine whether the child must be present in New Mexico when criminal acts of custodial interference are committed for New Mexico to have criminal jurisdiction. The district court ruled in the affirmative, and for the following reasons, we agree.\nBACKGROUND\n{2} Mother and Father were divorced in 1991 in New Mexico. The parenting plan entered by the First Judicial District Court awarded Father primary physical custody over their child, Hunter, subject to Mother\u2019s reasonable visitation. Mother subsequently moved away from New Mexico. In the spring of 1997, the parties agreed that Hunter would stay with Mother for the summer, first at her home in Kentucky and later when Mother took Hunter to Hawaii for a vacation. As part of the agreement, Mother promised to return Hunter to New Mexico on August 4,1997.\n{3} On the appointed day Father took his son to Chicago, and from there Mother took Hunter with her to Kentucky. In due time Mother and Hunter went to Hawaii. However, August 4 came and went without Hunter\u2019s return. Mother failed to return Hunter to Father as agreed, and approximately three weeks later Father was forced to go to Hawaii to retrieve his son. Eventually, Mother was held in contempt of court by the First Judicial District Court for violating the parenting plan and the court\u2019s order, and Mother was ordered to reimburse Father for his attorney fees and expenses associated with going to Hawaii.\n{4} In a separate proceeding, the District Attorney caused Mother to be indicted on one count of custodial interference contrary to Section 30-4^4. The indictment charged that between August 4, 1997, and August 26, 1997, Mother maliciously detained and failed to return Hunter with the intent to deprive Father of his right to custody. Custodial interference is a fourth degree felony. See \u00a7 30-4-4(B).\n{5} Shortly before trial, defense counsel moved to dismiss the indictment for lack of subject matter jurisdiction on the basis of language in the custodial interference statute that limits New Mexico\u2019s criminal jurisdiction to instances in which the child is \u201cpresent in New Mexico at the time of the taking.\u201d Section 30-4-4(J). Because Mother did not \u201ctake\u201d the child until she assumed possession of him in Chicago, counsel argued that New Mexico did not have jurisdiction over an unlawful detention that occurred wholly outside the state. The district court agreed, dismissing the indictment. The State appeals, seeking to have the indictment reinstated and Mother prosecuted in New Mexico for custodial interference.\nDISCUSSION\n{6} Custodial interference is defined as\nany 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.\nSection 3(M-4(B). We assume for purposes of our discussion that a reasonable jury could find that Mother\u2019s actions constituted \u201cdetaining\u201d and \u201cfailing to return\u201d Hunter in violation of this subsection. A different subsection of the same statute imposes a territorial limitation on New Mexico\u2019s ability to prosecute: \u2018Violation of the provisions of this section is punishable in New Mexico, whether the intent to commit the offense is formed within or outside the state, if the child was present in New Mexico at the time of the taking.\u201d Section 30-4-4(J). This is the paragraph that Mother argued; and the district court agreed, barred New Mexico from prosecuting in this instance.\n{7} We turn now to the multiple arguments for reversal that the State raises on appeal. Initially, the State contends that the text of Subsection J, on its face, does not apply to this prosecution. Subsection J imposes a territorial limitation on a \u201ctaking.\u201d The child must be present in New Mexico \u201cat the time of the taking\u201d to be prosecuted in New Mexico. The State correctly points out that Subsection B includes within its definition of criminal acts not just \u201ctaking,\u201d but also \u201cdetaining,\u201d \u201centicing,\u201d \u201cconcealing,\u201d and \u201cfailing to return.\u201d The State contends that the territorial limitation is imposed solely on a \u201ctaking,\u201d and therefore the alternative ways to commit the crime of custodial interference have no such territorial restriction on the State\u2019s ability to enforce the statute in the courts of this state. Thus, the State contends that Subsection J quite simply does not apply to prosecutions for \u201cdetaining\u201d or \u201cfailing to return,\u201d as occurred in this instance.\n{8} The State\u2019s argument is textually sound, but so is Mother\u2019s response. She points out that the text of Subsection J begins, \u201cViolation of the provisions of this section____\u201d (Emphasis added.) Use of the plural \u201cprovisions\u201d would seem to include Section 30-4-4 in its entirety, as in all \u201cprovisions\u201d of the statute. It would follow, then, that the territorial limitations would apply to all \u201cprovisions\u201d of Subsection B. With regard to the word \u201ctaking\u201d in Subsection J, Mother rejects the notion that this refers only to \u201ctaking\u201d as used in Subsection B. The criminal act defined in Subsection B is a \u201cmalicious taking.\u201d If the legislature had wanted to impose a jurisdictional limitation on only that form of custodial interference, Mother suggests it would have used the terminology of Subsection B, making custodial interference punishable in New Mexico only \u201cif the child was present in New Mexico at the time of the [malicious] taking.\u201d Instead, Mother opines that \u201ctaking\u201d in Subsection J is used in its generic sense to refer to all the different forms of custodial interference outlined in Subsection B: detaining, enticing, concealing, failing to return. In Mother\u2019s view, these are all merely different forms of \u201cmalicious taking.\u201d For example, \u201cfailing to return\u201d is just a \u201ctaking\u201d at the time the child is not returned. Mother\u2019s textual argument makes good sense as well.\n{9} The State also directs our attention to the legislative history of the custodial interference statute. In its earlier form, promulgated in 1977', custodial interference was defined simply as \u201cthe taking from this state\u201d or \u201centicing to leave this state.\u201d 1977 N.M.Laws, ch. 58, \u00a7 1. When the present statute was passed in 1989, it removed the phrase \u201cfrom this state\u201d from the definition section (Subsection B), and added all the other forms of custodial interference such as \u201cdetaining\u201d and \u201cfailing to return.\u201d The new statute then reimposed the same territorial limitation, but in a separate part of the statute, Subsection J, and only on \u201ctaking,\u201d exactly as it had been in 1977. Thus, the argument goes, the additional forms of custodial interference were not designed with a territorial limitation in mind; otherwise the legislature would have said so. The State\u2019s position has a certain logic, but legislative silence is a \u2018\u201ctenuous guide to determining legislative intent.\u2019 \u201d State v. Henderson, 116 N.M. 537, 541, 865 P.2d 1181, 1185 (1993) (quoting Swink v. Fingado, 115 N.M. 275, 283, 850 P.2d 978, 986 (1993)), overruled on other grounds by State v. Meadors, 121 N.M. 38, 46-47, 908 P.2d 731, 739-40 (1995).\n{10} Mother counters with a different interpretation of historical events. Since 1977 our legislature has consistently imposed a territorial limitation on the crime of custodial interference, however defined, likely out of concern that it not exceed the scope of the state\u2019s authority to prosecute acts taking place outside its geographical limits. See State v. Benjamin C., 109 N.M. 67, 69, 781 P.2d 795, 797 (Ct.App.1989); State, v. Losolla, 84 N.M. 151, 152, 500 P.2d 436, 437 (Ct. App.1972) (\u201c[T]he law is that a crime must be prosecuted in the jurisdiction where it was committed.\u201d). According to Mother, the legislature in 1989 was simply reworking the basic structure it established in 1977. It was adding different ways in which \u201ctaking\u201d a child could be prosecuted (for example, not returning a child), while it consciously stayed within the same jurisdictional restriction as before.\n{11} The State next turns to an argument premised upon the remedial purpose of the custodial interference statute. The State emphasizes that Mother\u2019s overly broad interpretation of Subsection J frustrates legislative intent and leaves gaping holes in its protective structure. In this respect, the State may have its strongest argument. Unquestionably, the statute\u2019s purpose is to protect children from kidnaping in one form or another. No one can doubt the legitimacy of both the legislative intent and the means selected. The State emphasizes that if New Mexico does not have the authority to prosecute Mother in this case, it is difficult to discern any other state with a similar interest. After all, Mother violated a New Mexico domestic relations order pertaining to child custody and visitation; the child lives here with his Father. The State argues, with considerable force, that dismissal of this charge on jurisdictional grounds will only open the door to clever manipulation by potential kidnapers. If they can figure a way to obtain physical custody outside the state\u2019s boundaries, they may \u201cdetain\u201d or \u201cfail to return\u201d with impunity.\n{12} In support of its legislative purpose argument, the State points to analogous areas of the law in which the courts have devised doctrines like \u201ccontinuing crime\u201d to justify New Mexico asserting jurisdiction over criminal acts begun elsewhere but causing harm within this state. See State v. Stephens, 110 N.M. 525, 526, 797 P.2d 314, 315 (Ct.App.1990) (larceny); State v. Villalobos, 120 N.M. 694, 697-98, 905 P.2d 732, 735-36 (Ct.App.1995) (conspiracy). The State points to statutes like the crime of escape, which is committed by the omission of a duty to return, even if the inmate is on furlough outside New Mexico at the time he is obliged to return to prison. See State v. Hill, 117 N.M. 807, 808, 877 P.2d 1110, 1111 (Ct.App. 1994). A similar example would be failing to support a child, which becomes criminal child abandonment in New Mexico even if the parent resides outside the confines of the state. Cf. People v. Jones, 257 Cal.App.2d 235, 64 Cal.Rptr. 622, 623 (1967). The State notes that custodial interference, in all its statutory forms, essentially amounts to violating a duty that arises in this state, and therefore New Mexico has both a legitimate interest, and the lawful power, to legislate broadly for the protection \u2022 of its children.\n{13} We accept the State\u2019s characterization of legislative purpose. We have no quarrel with the argument that a territorial limitation on prosecution, as advocated by Mother in this instance, does indeed leave a void in the protective legislative scheme, and we acknowledge that the void is difficult to justify with respect to the acts Mother is accused of committing in this case. We assume, without deciding, that New Mexico could expand its prosecutorial jurisdiction beyond the narrow scope adopted in the district court\u2019s interpretation of Subsection J, and we further assume that New Mexico could do so in a manner consistent with the federal constitution. However, these assumptions do not cure what we see as the essential weakness in the State\u2019s position.\n{14} At its best, Section 30-4-4 is poorly written. Even the State concedes that the statute is ambiguous. Each side in this appeal makes sound, persuasive arguments for its own interpretation of a statute which, on its face, is far from clear. The State resorts to standard canons of statutory construction (e.g., plain meaning, legislative purpose) to resolve the ambiguity in its favor. As its authority for an expansive interpretation of the statute\u2019s reach, the State relies primarily on case law dealing with civil disputes. See, e.g., Citation Bingo, Ltd. v. Otten, 121 N.M. 205, 910 P.2d 281 (1995); Draper v. Mountain States Mut. Cas. Co., 116 N.M. 775, 867 P.2d 1157 (1994); Citizens for Incorporation, Inc. v. Board of County Comm\u2019rs, 115 N.M. 710, 858 P.2d 86 (Ct.App.1993). But this is not a civil statute we are asked to interpret. Section 30-4-4 creates a new criminal act, classifies it as a felony, and punishes it with serious imprisonment.\n{15} In writing and construing the criminal law, both our state legislature and this Court owe the people of this state a duty of clarity. We cannot ask our citizens, or for that matter those of a sister state, to guess at the meaning of a criminal statute. Common-sense notions of fair play, transposed into more formal doctrines of due process, demand no less. See United States v. Lanier, 520 U.S. 259, 266, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997) (discussing fair warning in a criminal statute as principle of due process); Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 83 L.Ed. 888 (1939) (\u201cNo one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.\u201d). It has long been part of the common law that penal statutes are strictly construed against the state, and that \u201c[a]ny doubts about the construction of penal statutes must be resolved in favor of lenity.\u201d Santillanes v. State, 115 N.M. 215, 221, 849 P.2d 358, 364 (1993). Simply put, it is the state\u2019s burden to draft its criminal laws with reasonable precision.\n{16} When even the State, to its credit, concedes the essential ambiguity of this statute, we are duty bound to construe it in a manner that gives the benefit of the doubt to the accused. See State v. Edmondson, 112 N.M. 654, 658, 818 P.2d 855, 859 (Ct.App. 1991) (\u201c[T]he touchstone of the rule of lenity is statutory ambiguity.\u201d (citation and internal quotation marks omitted)). We do so only when \u201c \u2018a reasonable doubt persists about a statute\u2019s intended scope even after resort to \u201cthe language and structure, legislative history, and motivating policies\u201d of the statute.\u2019 \u201d State v. Ogden, 118 N.M. 234, 242, 880 P.2d 845, 853 (1994) (quoting Edmondson, 112 N.M. at 658, 818 P.2d at 859). Despite our efforts' at divining the legislative will, we cannot conclude with the degree of confidence necessary in criminal matters that Mother\u2019s actions are \u201cpunishable in New Mexico\u201d under Subsection J.\n{17} If our reading of Section 30-4^1 is contrary to the legislature\u2019s will, either as originally promulgated in 1989 or as reflected in the changed needs of today\u2019s society, that body can, and should, re-address its work product to make its intentions clear. Until that time, our duty is clear. We hold that the jurisdictional limitation expressed in Subsection J applies to all criminal acts of custodial interference defined in Subsection B, including those alleged in the criminal indictment at issue in this case.\nCONCLUSION\n{18} The district court\u2019s dismissal of the indictment against Mother for custodial interference is hereby affirmed.\n{19} IT IS SO ORDERED.\nWECHSLER, and BUSTAMANTE, JJ., concur.", "type": "majority", "author": "BOSSON, Judge." } ], "attorneys": [ "Patricia A. Madrid, Attorney General, M. Victoria Wilson, Assistant Attorney General, Santa Fe, for Appellant.", "Lynda Latta, Albuquerque, for Appellee." ], "corrections": "", "head_matter": "2000-NMCA-031\n999 P.2d 430\nSTATE of New Mexico, Plaintiff-Appellant, v. Bobbie Kelly SUNG, Defendant-Appellee.\nNo. 20,066.\nCourt of Appeals of New Mexico.\nMarch 13, 2000.\nPatricia A. Madrid, Attorney General, M. Victoria Wilson, Assistant Attorney General, Santa Fe, for Appellant.\nLynda Latta, Albuquerque, for Appellee." }, "file_name": "0786-01", "first_page_order": 824, "last_page_order": 828 }