Baby Gabriel Case

Johnson will not testify in Baby Gabriel kidnapping case

Defense attorney Marc Victor said Friday that Elizabeth Johnson will not take the stand as trial resumes Tuesday in her kidnapping and custodial interference case in Maricopa County Superior Court in Arizona.

Victor also filed a series of motions on Friday asking to dismiss the kidnapping charge against Johnson before it is sent a jury.

“It’s not a kidnapping case. This is an ugly custodial interference case, a really ugly custodial interference case,” said Victor.

In his motion Victor stressed the language of the kidnapping statute: “The kidnapping charge in this case requires the State to prove, beyond a reasonable doubt, that Ms. Johnson 1) knowingly restrained Gabriel 2) while having the intent to place Mr. McQueary in reasonable apprehension of imminent physical injury to Gabriel,” wrote Victor.

He argued that the “reasonable apprehension of imminent physical injury” requires the threat of a currently present or future injury to Gabriel, and that the assertion of a past harm will not suffice. He then pointed to the text messages she sent to Gabriel’s father Logan McQueary telling him that she killed Gabriel, all of which were in the past tense.

“I killed him. Not I was planning on killing him or I’m thinking about killing him or I’m gonna kill him next week or something like that. What [this] amounts to [is] I already killed him which is not an imminent physical injury,” said Victor.

In the alternative Victor also argued that Arizona does not have jurisdiction over the kidnapping or custodial interference charges.

“In essence, the argument there is that even if there was a kidnapping it happened in Texas, it didn’t happen in Arizona and so the kidnapping charge ought to be thrown out for lack of jurisdiction,” said Victor.

He also noted that Johnson had legal custody of Gabriel when she left Arizona, and any claim for custodial interference couldn’t be triggered until it was time for McQueary to have custody as part of the shared custody agreement. Johnson and McQueary previously decided in family court to divide the week in half for custody of Gabriel. At the time McQueary’s custody began on Wednesday, Johnson had already left Arizona and was with Gabriel in Texas. Victor argues that therefore Arizona does not have jurisdiction.

The judge will decide on Victor’s motions on Monday. The jury is set to hear closing arguments on Tuesday.

Ryan Kerns, Esq., Wild About Trial

Copyright 2012 Wild About Trial. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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