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IN THE COURT OF APPEALS OF THE STATE OF IDAHO Docket No. 39637 STATE OF IDAHO, ) ) Plaintiff-Respondent, ) ) v. ) ) VERONICA LYNN CALVER aka HANEY, ) ) Defendant-Appellant. ) ) 2013 Opinion No. 33 Filed: June 4, 2013 Stephen W. Kenyon, Clerk

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Michael R. McLaughlin, District Judge. Judgment of conviction for felony child custody interference, affirmed. Sara B. Thomas, State Appellate Public Defender; Jason C. Pintler, Deputy Appellate Public Defender, Boise, for appellant. Jason C. Pintler argued. Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney General, Boise, for respondent. Mark W. Olson argued. ________________________________________________ GUTIERREZ, Chief Judge Veronica Lynn Calver aka Haney appeals from her judgment of conviction for felony child custody interference. Specifically, Veronica asserts the State failed to prove with sufficient evidence that she was "without lawful authority" to remove her son from the State of Idaho pursuant to a joint temporary restraining order (JTRO). The JTRO was entered by the family court after the son's father filed for divorce. Veronica requests a judgment of acquittal on this basis. Alternatively, she argues the district court erroneously instructed the jury by failing to require a specific finding that the father had a custodial or parental right to have the son within the State of Idaho. She also challenges a jury instruction on the ground it contained a fatal variance because the instruction defined the nature of the father's custodial rights in a way that was not included in the charging document. Veronica asserts that each error in instructing the jury was not harmless and asks for a new trial.

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I. FACTS AND PROCEDURE Raymond Calver and Veronica wed in 2005 and had a son together in 2008. In 2009, the family moved to Idaho where Raymond and Veronica experienced marital discord due to Raymond's alleged substance abuse issues and violent behavior. The problems eventually led to a separation in the summer of 2011. Prior to the separation, the couple had discussed moving to Tennessee to be close to Veronica's mother. Raymond and Veronica had made preparations for the move; however, at some point before the planned departure date, Raymond decided he would not be going with the family to Tennessee. Veronica went forward with the plans to move. On August 29, 2011, Raymond filed for divorce in Idaho. Upon the filing of the divorce complaint, the magistrate issued a JTRO--an order designed to maintain the status quo of the parties in relation to any minor children subject to the divorce. The following day, Raymond's brother signed an affidavit claiming he served Veronica with the divorce filings, including the JTRO. Based upon advice she received, Veronica believed that the service upon her was not legally proper. Within the first days of September, Veronica left Idaho for Tennessee with some belongings, her two minor children from a previous relationship, and the son whom she had with Raymond. She only made it to Utah, where her car broke down beyond repair. A Garden City Police officer attempted to contact Veronica a couple of days later. Veronica called the officer from Utah, who relayed to Veronica that pursuant to the JTRO, she was not to remove the son from the State of Idaho for more than seventy-two hours and she was required to return the son to Idaho. Within a couple of days, a detective from the Garden City Police Department

contacted Veronica in Utah, telling her that he was planning to seek a felony arrest warrant if she did not immediately return the son to Idaho. The detective faxed a copy of the divorce papers, including the JTRO, to Veronica in Utah. Thereafter, Veronica's mother and step-father drove from Tennessee to Utah, picked up Veronica and her children, and took them all to Tennessee. Veronica spoke with a Tennessee attorney, who advised her that the JTRO was not valid. Ten days after arriving in Tennessee, police arrested Veronica on an Idaho warrant for felony custodial interference. At her Idaho trial, Veronica raised the affirmative defense that her actions were necessary to protect either herself or her children from imminent physical harm. The district court

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instructed the jury on both the charge and the defense of necessity without any objections from the parties. The jury found Veronica guilty of felony child custody interference, Idaho Code

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