### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE July 23, 2002 Session STATE OF TENNESSEE v. SHI RLEY SPINA Appeal from the Criminal Court for Sullivan County Nos. S44, 619 Phyllis H. Miller, Judge

No. E2001-02933-CCA-R3-CD September 23, 2002
The Defendant, Shirley

Spina, was indicted in Sullivan County for custodial interfer ence. On the morning of trial, the trial cou rt dismisse d the cha

rge for lack of

venue. T he State now a ppea ls. We revers e the rul ing of the trial c ourt and r emand thi s cause f

or furth er proc eeding s. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court

Reversed and Remanded
D AV ID H. W ELLES , J., delivered the opinion of the court, in which J ERRY L. S MITH and J OE G. R ILEY , JJ., joined. Paul G. Summ ers, Attorney Genera l and Reporter; Ma

rk A. Ful ks, Assista

nt Attorne

y G eneral ; Greeley Wells, District Attorney

Genera l; and Ken

t Chitwood, Assistant

District A

ttorney Genera l, for the appellant, State of Tennessee. Wayne Culbertson, Kingspor t, Tennessee, for the appellee, Shirley Spina.
OPINION The Defendant is the adoptive mother of a minor child. Pursuant to a Judgment of Absolu

te Divorce entered by

the Chancery

Courtfor Sullivan County, custody of the minor child was placed with the father, James Martin Spina. Mr. Spina’s residence is in Sullivan County. The Defendant was ordere d to have r

egula r visitation with the child. Because the Defendant lived in Davidson Co un ty, the parties were ordered by the Chancery

Court to meet

in Knox County

to transf er the child between themselves for the Defendant’ s periods of visitation. Alth ough the facts surrounding the Defenda nt’s alleged criminal conduct have not yet been fully devel oped, it app ears t hat sh e fail ed to r eturn the ch ild t o Mr. S pina f ollo wing a visitation period. The child was eventually returned to Mr. Spina in Sullivan County by police officers.
Tenness ee Code A

nnotated section 3 9-13-306 (a) provides, in p ertinen t part, tha t-2- [i]t is the offe nse of custodial interference for a na tural or adoptive parent

. . . of a child young er than eighteen (18) y ears of age . . . t o knowing ly

detain or mo ve the c hild . . . from the vicinity where the child . . . is found when the person knows that the detention or moving of the child . . . violates a temporary or permanent judgment or court order regar

ding the child’s . . . custody or care. In this case, the gr

avamen of

the State ’s prose cution is that the De fendant knowing ly

detained the child “from the vicinity whe re the child . . . is found.” The trial court found that the Defendant’s actions in detaining the child occurred

e ither in DavidsonCounty, where the D efendant lived, or in Knox County, where the Defendant was supposed to deliver the child back to Mr. Spina. The trial cour t found that the Defendant did not commit any eleme

nts of the indicted of

fense in Sullivan County. Accordingly , the trial court dismissed the case for lack of venue.
Tennessee’s constituti on provide s that cri minal def endants have the r

ight to be tried by an impartial jury

in the cou

nty in whic h the cri me was c ommitted. See Tenn. Const. art. I, § 9. A criminal trial court’s jurisdiction is limited to those crimes whichoc cu r, at le as t p ar ti al ly, within the territorial boundar

ies of the county in which it

sits. See Ellis v. Carlton , 986 S.W.2d 600, 601 (Tenn. Crim. App. 1998). See also , Tenn. Code Ann. § 39-11-103(d) (“I f one (1) or more elements of an offense are committed in one (1) county and one ( 1) or more elements in another, theoffense may be prosecu

ted in either county.” ) Thus, the issue before us is whether the Defendant c ommitted any of th e e le me nt s o f c us to di al in te rf er en ce wi th in th e b ou nd ar ie s o f S ul li va n C ou nt y. It appears undisputed

that the Defendant took possession of the child in Knox County and thentransported the child to Davidson County. Th e Defendant was required by the terms of the divorce to return the child to the c hi ld’s father in Knox County at the end of the visitation period. The Defendant did not return the child, and at that point, the unlawful detention commenced. The issue before this Court, one of first impression, is where t he deten ti on occurred for purposes of venue. Inor de r t o f

or ve nu e t o l ie in Su ll iv an Co un ty, a t least one of the elements of the crime of custodial interference must haveoc cu rr ed in th at co un ty. The statute makes it illegal for one of the family members enumerated

“to knowingly de

tain or move the child . . . from the vicinity where the child . . . is found

when the person knows that the detention . . . violates a . . . court order regarding the child’s . . . custody or ca re.” Tenn. Code Ann. § 39-13-306(a) (emphasis added). Thus, one of the elements of the crime is removing the child from the vicinity where he or sheis found, or keeping the child fromreturnin

g to the v icinity where he or she is found. The crucial ter m for the question of venue before us, then, is where the c hild is “found.” As our supreme court has recently reiterated,1 We do n ot nec essarily co nclud e that the c hild’s resid ence is the only locatio n of “the v icinity wher e the ch ild

. . . is found.”

2 W e draw no concl usion as to whet her venue may als o be properly f ound elsewh ere. -3- [a] “basic rule of statutory construction is to ascertain and give effe ct to the inten

tion and pu

rpose of the leg islature .” I

n determ in in g legislative intent and purpose , a court must not “u

nduly restrict[] or expan d[] a statute’s coverage bey

ond its intended scope.” Rather, a court ascertains a statute’s purpose from the plain and ordinar y meaningof

its language, “without forced or subtle construction that would limit or extend the meaning of the language.” Gleaves v. Checker Cab Transit Corp., Inc

. , 15 S.W.3d 799, 802-03 (Tenn. 2000) (citations omitted). The st atute bef

ore us does not define the word “found.” Howe ver, our reading of the custodial interferencestatute convinces us that the languag e “the vicinity whe re the child . . . is found” includes the child’s legal place of reside nce. 1 Inthis case, the child’s legal place of residenc e was with Mr. Spina, who resided in Sullivan County. Thus, we hold that venue of the instant charge lies in Su ll iv an Co un ty. 2
We base our conclusion on a common-sense interpretation of the wo rd “f ou nd .” Ob vi ou sl y, a person may

be “found” wherever the per son is physically

located at the relevant moment in time. For numerous legalpurposes, however, a person may also be “found” where he or she resides. For instance, a

person may be

“found” for service of proce ss purposes at his or her “dwelling house or usual place of abode.” Tenn. R. Civ. P. 4.04(1). Tennessee’ s civil courts have personal jurisdiction over persons who are domiciled within the state. See Tenn . Code Ann. § 20- 2-22 2(1) . We hold that, for purposes of prosecuting offenses under the c ustodi al interf

erence statute, c hildren s ubject to custodia l orders are “f ound” at t he resid ence of their cu stodial pa

rent. The statutory

language, “from the vic inity where the c hild . . . is found” renders the child’s legal residence, i.e. the resid ence of the custo dial par

ent, an e lement o f the crime of custodial interference. Thus, the trial courts of the county in which th e custodial parent resides have venue incases of custodial interference, irr espective of where the alleg ed detention ac tu al ly occurs. To hold otherwis e would be

to depriv e Tenne ssee cou

rts o f ju risdiction over custodial interference case s where the non-cu stodial p arent lives in another state and refuses to return the child to the child’s Tennessee parent. This result is absurd, and we must strive to constr ue statute s in

such a wa

y a s to avoid absurd results. S ee, e.g. , Fletche r v. State , 951 S.W.2d 3 78, 382 (T enn. 1997 ); State v. Chance , 952 S.W.2d 848, 850 (Tenn. Crim. App. 1997). The trial court erred in dismissing this case for lack of venue. Accordingly, we reverse the trial court’s ruling and remand this case for further proceedings consistent with this opinion.-4- ___________________________________ DAVID H. WEL

LES, JUDGE