An–Hung Yao v. State

Decision Date13 September 2012
Docket NumberNo. 35S02–1112–CR–704.,35S02–1112–CR–704.
Citation975 N.E.2d 1273
PartiesAN–HUNG YAO and Yu–Ting Lin, Appellants-(Defendants below), v. STATE of Indiana, Appellee-(Plaintiff below).
CourtIndiana Supreme Court


James H. Voyles, Tyler D. Helmond, Voyles, Zahn, Paul, Hogan & Merriman, Indianapolis, IN, Alan D. Burke, Burke Law Office, Rochester, IN, Jeremy N. Gayed, Michael H. Michmerhuizen, Barrett & McNagny LLP, Fort Wayne, IN, R.P. Fisher, Fisher & Ireland, Wabash, IN, Attorneys for Appellants.

Gregory F. Zoeller, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Andrew A. Kobe, Deputy

Attorney General, Indianapolis, IN, Attorneys for Appellee.

On Petition To Transfer from the Indiana Court of Appeals, No. 35A02–1006–CR–678

RUCKER, Justice.

Case Summary

Associated with a toy gun business, Defendants were charged with counterfeiting, theft, and corrupt business influence arising out of their conduct concerning toy semi-automatic weapons that were look-alikes of real weapons for which a gun manufacturer allegedly owned a federally protected trademark. Defendants moved to dismiss the charges; the trial court granted their motion with respect to counterfeiting on grounds that the facts alleged did not constitute an offense. On interlocutory review the Court of Appeals concluded that all charges should be dismissed on grounds that Indiana lacked jurisdiction. Disagreeing with our colleagues on this point, we affirm in part and reverse in part the judgment of the trial court.

Facts and Procedural History

Yu–Ting Lin operates Generation Guns, a Houston, Texas based business, which imports from Taiwan and sells in this country certain products it labels as “airsoft guns.” 1 An–Hung Yao, vice-president of a bank in Houston, is a friend of Lin's and has helped her by setting up bookkeeping and computer systems for Lin's business, and by attending trade shows with her. As part of an investigation into potential trademark infringements, firearms manufacturer Heckler & Koch, Inc. (“H & K”), through a private consulting firm and in cooperation with the Indiana State Police, ordered airsoft guns from Generation Guns. H & K directed that the toy guns be shipped to an address in Huntington County, Indiana. Lin, Yao, or both were allegedly involved in the process of receiving the order, accepting payment, and effecting shipment of the airsoft guns. On the basis of H & K's verification that the toys delivered to Huntington County were replicas of H & K's real weapons, the Huntington County Prosecutor charged Lin and Yao with three counts each of Class D felony theft and Class D felony counterfeiting, and one count each of Class C felony corrupt business influence.

Lin and Yao (collectively, the Defendants) moved to dismiss all charges against them. Defendants contended the facts cannot constitute the offense of theft because one cannot exert unauthorized control over a trademark. Because the corrupt business influence charges were predicated on the theft counts, 2 the Defendants argued for their dismissal on the same basis. With respect to the charge of counterfeiting the Defendants contended the facts alleged cannot constitute the crime of counterfeiting because an airsoft gun is not a written instrument within the meaning of the counterfeiting statute. As to all charges Lin, but not Yao, also argueddismissal was required because Indiana lacked jurisdiction over the alleged offenses.3 The trial court entered an order granting the Defendants' motions to dismiss the counterfeiting charges but denied the Defendants' motions to dismiss the theft and corrupt business influence charges. The trial court made no express ruling concerning Lin's jurisdictional argument. See Appellant Lin's App. at A090–091. The trial court also certified its order for interlocutory appeal; the Defendants separately appealed and the State cross-appealed.

After accepting jurisdiction and consolidating the Defendants' appeals, the Court of Appeals concluded that all charges should have been dismissed on grounds “the trial court lacked territorial jurisdiction because there is no evidence any conduct that is an element of the alleged offenses occurred in Indiana.” Yao v. State, 953 N.E.2d 1236, 1237 (Ind.Ct.App.2011). The State sought transfer, which we granted. See App. Rule 58(A). Additional facts are set forth below where necessary.

Standard of Review

We review a trial court's ruling on a motion to dismiss a charging information for an abuse of discretion. State v. Davis, 898 N.E.2d 281, 285 (Ind.2008). “An abuse of discretion occurs when the trial court's decision is clearly against the logic and effect of the facts and circumstances before it.” Hoglund v. State, 962 N.E.2d 1230, 1237 (Ind.2012). A trial court also abuses its discretion when it misinterprets the law. State v. Econ. Freedom Fund, 959 N.E.2d 794, 800 (Ind.2011).


On motion by a defendant Indiana law permits dismissal of a charging information on a number of grounds. SeeI.C. § 35–34–1–4. The Defendants here set forth two grounds for dismissal of the charges: one, dismissal is proper because [t]he facts stated do not constitute an offense,” I.C. § 35–34–1–4(a)(5) and two, [t]here exists some jurisdictional impediment to conviction of the defendant for the offense charged.” I.C. § 35–34–1–4(a)(10). We address the jurisdictional claim first.

A. Territorial Jurisdiction

Indiana Code section 35–41–1–1(b) provides [a] person may be convicted under Indiana law of an offense if: (1) either the conduct that is an element of the offense, the result that is an element, or both, occur in Indiana. (emphasis added). The Defendants argue the trial court lacks jurisdiction over this prosecution because neither the “conduct that is an element of” nor “the result that is an element” of the charged offenses occurred in Indiana. Br. in Opposition to Trans. at 10–11.

We first observe that Indiana statutes do not list jurisdiction as an element of the offenses for which these Defendants are charged. Nonetheless [t]he plain, ordinary, and usual meaning of [I.C. § 35–41–1–1] clearly establishes ‘in Indiana’ as a prerequisite for Indiana criminal prosecutions and thus restricts the power to exercise criminal jurisdiction to Indiana's actual territorial boundaries.” Benham v. State, 637 N.E.2d 133, 137 (Ind.1994). Consequently, this Court treats territorial jurisdiction as though it were an element of an offense and has held that the State must prove this element “beyond a reasonable doubt.” Ortiz v. State, 766 N.E.2d 370, 375 (Ind.2002). Precisely because this is so “the issue must be submitted to the jury unless the court determines no reasonable jury could fail to find territorial jurisdiction beyond a reasonable doubt.” Id. (quoting McKinney v. State, 553 N.E.2d 860, 863–64 (Ind.Ct.App.1990)). If the court makes such a determination then no jury instruction on the issue is required and the question of jurisdiction is decided by the court as a matter of law. However, at this preliminary stage of the proceedings with only arguments of counsel informing the trial court's decision, the basis of finding a lack of jurisdiction is necessarily constrained. And appellate review is limited to whether the trial court abused its discretion.

With respect to the charge of theft, the conduct prohibited by statute is “exert[ion of] unauthorized control.” I.C. § 35–43–4–2. The Defendants argue [t]he only ‘exertion of control’ alleged by the State is the sale of airsoft guns.” Br. of Lin at 18. We first note that the charging informations—which the Defendants seek to dismiss on jurisdictional grounds—make no allegation concerning sale. Rather they simply track the language of the statute and declare in relevant part:

Sometime from June 2009 to August 2009, in Huntington County, Indiana, Yu–Ting Lin a/k/a Lin Yu Ting knowingly or intentionally exerted unauthorized control over property belonging to Heckler & Koch, Inc., with the intent to deprive the owner of any part of its value or use, namely: trademarks and/or markings or symbols of identification.

Appellant Lin's App. at A–018–020; see Appellant Yao's App. at 62–64 (identically-worded information charging Yao with theft). Second, contrary to the Defendants' apparent claim, “exertion of control” is not limited to sale. Instead to “exert control” means to “obtain, take, carry, drive, lead away, conceal, abandon, sell, convey, encumber, or possess property, or to secure, transfer, or extend a right to property.” I.C. § 35–43–4–1. If at trial the State fails to prove beyond a reasonable doubt that the Defendants, in Indiana, engaged in any one or more of these several forms of exerting control over the property of Heckler & Koch then the Defendants will be entitled to acquittal, or perhaps judgment on the evidence. But this is a sufficiency of the evidence determination. At this stage of the proceedings we cannot say as a matter of law that the charging information is jurisdictionally infirm. See, e.g., Benham, 637 N.E.2d at 138 ([U]pon a motion to dismiss [under I.C. § 35–34–1–4(a)(10) ] the defendant is required to prove by a preponderance of the evidence every fact essential to support the motion.”) (internal quotation marks omitted).

With respect to the charge of counterfeiting, the conduct prohibited by statute is “mak[ing] or utter[ing] a written instrument. I.C. § 35–43–5–2(a)(1) (now I.C. § 35–31.5–2–345).4 Neither defendant makes a specific claim concerning this particular charge. Instead both generally insist that all relevant conduct in this case took place in either Taiwan or the state of Texas, and ground their argument on the meaning of the sale of goods as used in the Uniform Commercial Code. First, similar to “exert control” under the theft statute, “mak[ing] or utter[ing] under the counterfeiting statute is not limited to the sale of goods. Rather, to “utter” means “to issue, authenticate, transfer, publish, deliver, sell,...

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