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§ 948.31, Interference with Custody — Sufficiency of evidence

State v. Mark Inglin, 224 Wis.2d 764, 592 N.W.2d 666 (Ct. App. 1999)
For Inglin: Stephen M. Glynn & Robert R. Henak

Holding: § 948.31(1)(b) penalizes several different actus reus alternatives, including taking a child away, or withholding a child more than 12 hours beyond court approval. Inglin had his ex-wife’s consent to take their child on a camping trip to Colorado. He deceived her, though, and fled with the child to Canada. The information charged that he “did intentionally withhold” the child from his ex-wife, but the jury instructions inadvertently invoked the “take away without consent” element – leading Inglin to argue insufficient evidence on appeal, because he had consent to take the child away. The court of appeals agrees with Inglin’s operative principle: Even so, the evidence is sufficient. Consent does not exist, under § 939.22(48)(c), if the victim doesn’t understand that to which s/he putatively consents due to ignorance or mistake of fact. Inglin’s deceit – his knowingly false promise to return the child after a 10-day camping trip – vitiated any consent. (The court acknowledges that a Leg Council Comment [“misconception resulting from false promises” is not covered by § 939.22(48)] contradicts the opinion’s analysis. Without exactly saying so, the court in effect relies on the idea that resort to extrinsic aids of statutory construction is impermissible where the statute is clear on its face.)

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