Benham v. State

Decision Date30 June 1994
Docket NumberNo. 78S01-9406-CR-596,78S01-9406-CR-596
Citation637 N.E.2d 133
CourtIndiana Supreme Court
PartiesRobert K. BENHAM, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

DICKSON, Justice.

This interlocutory appeal challenges the trial court's denial of defendant Robert K. Benham's motion to dismiss criminal charges arising from a double-fatality boating incident on the Ohio River. The Court of Appeals affirmed the denial, concluding that "Indiana may enforce its laws on the Ohio River from the Indiana shore to the Kentucky shore." Benham v. State (1993), Ind.App., 622 N.E.2d 982, 987.

On August 8, 1991, the defendant and two other persons fell into the Ohio River near the Kentucky shore when their pontoon boat capsized. Two of the three drowned, and the defendant was rescued and taken to Switzerland County, Indiana, where the following day he was charged with two counts of reckless homicide, a class C felony; two counts of involuntary manslaughter, a class C felony; two counts of operating a watercraft while intoxicated causing death, a class C felony; and one count of operating a watercraft while intoxicated, a class C misdemeanor.

The defendant filed a motion to dismiss all charges against him, contending that Indiana lacked the sovereign authority to prosecute criminal activity allegedly occurring within the territorial boundaries of Kentucky. 1 The motion was not accompanied by any affidavits or other matters outside the pleadings to affirmatively establish the precise location of the alleged criminal conduct. The language of Counts I through IV, charging reckless homicide and involuntary manslaughter, each describe the location of the charged offense either as "in Florence, Switzerland County, Indiana" or "in Florence, Switzerland County." Record at 6-9. Counts V and VII, charge the defendant with operating a watercraft while intoxicated "at Ohio River above Markland Dam" resulting in death. Record at 10, 12. Count VI, charging operating a watercraft while intoxicated, specifies the location only as "in Switzerland County, Indiana." Record at 11. Following a hearing on the motion consisting solely of argument of counsel, the trial court overruled the motion to dismiss and made express findings of fact, including that "the offense alleged occurred on the Ohio River at a location easterly in direction from the low water mark off of the Indiana shore of said Ohio River." Record at 53.

The defendant thereafter petitioned for interlocutory appeal of the order denying the motion to dismiss. The petition included the assertion that the boating incident "occurred to the south of the boundary line of the State of Indiana and did not occur within the State of Indiana." Record at 56. The trial court certified its Order on Motion to Dismiss for interlocutory appeal, and the Court of Appeals accepted the appeal. Indiana Appellate Rule 4(B)(6). In accordance with Indiana Appellate Rule 7.3, the parties thereafter submitted an agreed statement of the case, but such statement fails to clarify whether the alleged conduct constituting the charged offenses occurred on the Indiana or the Kentucky side of the territorial boundary. The only facts in the agreed statement pertinent to determining the place of the offense were the following:

1. On August 8, 1991, a boating accident occurred at the mouth of Craig's Creek which is located in the Commonwealth of Kentucky as it enters the Ohio River east of the Markland Dam during a storm. The accident resulted in Robert Benham, Beatrice Rogers and Timothy Rogers being thrown into the water from a pontoon boat.

2. Authorities from Boone County, Kentucky, and Kenton County, Kentucky, searched for and recovered the bodies of Beatrice Rogers and Timothy Rogers.

* * * * * *

10. The Certificates of Death issued by the Commonwealth of Kentucky for both persons identified the location of their deaths as Warsaw, Gallatin County, Kentucky.

Record at 3. 2

The Court of Appeals treated this interlocutory appeal as presenting the issue of whether Indiana may "prosecute a defendant for criminal acts on the Kentucky side of the Ohio River," Benham, 622 N.E.2d at 983. We grant transfer to address this issue but view the essential question presented in this appeal to be whether the trial court erred in overruling the motion to dismiss charges alleging Indiana criminal offenses which may have occurred outside the Indiana territorial boundary on the Ohio River.

Indiana Territorial Jurisdiction

When the State of Indiana seeks to enforce its criminal laws by prosecuting conduct that occurs on the Ohio River but on the Kentucky side of Indiana's southern territorial boundary, there are two separate issues. The first is whether Indiana is authorized to exercise concurrent jurisdiction over the entire Ohio River, including that portion beyond Indiana's territorial boundaries. If such right to concurrent jurisdiction exists, a second question arises: whether the Indiana General Assembly has authorized criminal prosecutions to the full extent of such potential concurrent jurisdiction.

Concurrent jurisdiction on rivers is the jurisdiction of two powers over one and the same place. Nielsen v. State of Oregon (1909), 212 U.S. 315, 317, 29 S.Ct. 383, 384, 53 L.Ed. 528, 529. Concurrent Indiana jurisdiction over the Ohio River has been contemplated by both state and federal law. In 1784, Virginia conveyed its territory northwest of the Ohio River to the United States. In 1789, the Virginia Compact, enacted by the Virginia legislature, ceded territory for the formation of the Commonwealth of Kentucky. The Virginia Compact provided for the creation of Kentucky upon the condition, inter alia, "that the use and navigation of the river Ohio, so far as the territory of the proposed state, or the territory which shall remain within the limits of this commonwealth lies thereon, shall be free and common to the citizens of the United States, and the respective jurisdictions of the Commonwealth and of the proposed state on the river as aforesaid, shall be concurrent only with the states which may possess the opposite shores of the said river." Wedding v. Meyler (1904), 192 U.S. 573, 581-82, 24 S.Ct. 322 323,48L.Ed.570,574 (citing Virginia Compact, 13 Hening, St. at L. 17). "What the Virginia compact most certainly conferred on the States north of the Ohio, was the right to administer the law below low-water mark on the river...." Wedding, 192 U.S. at 584, 24 S.Ct. at 324, 48 L.Ed. at 575 (emphasis added). In 1791, the United States Congress ratified the Virginia Compact, pursuant to Article 4, § 3 of the United States Constitution. In Commonwealth of Kentucky v. State of Indiana (1985), 474 U.S. 1, 2, 106 S.Ct. 304, 304, 88 L.Ed.2d 1, 1, the United States Supreme Court confirmed that Indiana and Kentucky "each have concurrent jurisdiction over the Ohio River."

Indiana became a state in 1816, and its revised 1851 constitution provides that "[t]he State of Indiana shall ... have concurrent jurisdiction, in civil and criminal cases, with the State of Kentucky on the Ohio river, and with the State of Illinois on the Wabash river, so far as said rivers form the common boundary between this State and said States respectively." Ind. Const. art. 14, § 2 (1851).

The United States Supreme Court has recognized that two states, in conjunction with one another through respective legislative action, may opt to exercise concurrent jurisdiction. Although expressly noting its decision was confined to the precise question presented, in Nielsen, 212 U.S. at 320, 29 S.Ct. at 384, 53 L.Ed. at 530, the Court observed, "[w]here an act is malum in se prohibited and punishable by the laws of both States, the one first acquiring jurisdiction of the person may prosecute the offense, and its judgment is a finality in both States, so that one convicted or acquitted in the courts of the one State cannot be prosecuted for the same offense in the courts of the other." Id. The Nielsen Court concluded that, absent such interstate legislative mutuality, "one State cannot enforce its opinion against that of the other, at least as to an act done within the limits of that other State." Id. at 321, 29 S.Ct. at 385, 53 L.Ed. at 530. Thus it is apparent that Indiana is constitutionally authorized to enact laws that would extend its exercise of criminal jurisdiction over the whole of the Ohio River.

The remaining question is whether Indiana's present statutes implement such concurrent jurisdiction. Indiana courts have only such jurisdiction as is granted to them by the state constitution and statutes. Carpenter v. State (1977), 266 Ind. 98, 101, 360 N.E.2d 839, 841. The Constitution of Indiana, Art. 7, sec. 8, states: "The Circuit Courts shall have such civil and criminal jurisdiction as may be prescribed by law." The various Superior Courts, since created by the legislature, have only such jurisdiction as is granted by statute. Wedmore v. State (1954), 233 Ind. 545, 550, 122 N.E.2d 1, 3-4. The current Indiana criminal jurisdiction statute, Ind.Code § 35-41-1-1, applicable at the time of the charged offenses, unambiguously declares:

(a) 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;


(b) When the offense is homicide, either the death of the victim or bodily impact causing death constitutes a result under subdivision (a)(1) of this section. If the body of a homicide victim is found in Indiana, it is presumed that the result occurred in Indiana. [Emphasis added.]

Where statutory language " 'is plain and free from ambiguity, and the meaning expressed is definite, a literal interpretation of the...

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