McKinney v. State

• Decision Date: 03 May 1990
• Docket Number: No. 71A03-8902-CR-45,71A03-8902-CR-45
• Parties: Scott Allen McKINNEY, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 860

553 N.E.2d 860

Scott Allen McKINNEY, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 71A03-8902-CR-45.

Court of Appeals of Indiana,

Third District.

May 3, 1990.

David T. Ready, South Bend, for defendant-appellant.

Linley E. Pearson, Atty. Gen. of Indiana, Jane A. Morrison, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

GARRARD, Judge.

This is an appeal challenging the conviction of Scott Allen McKinney in the St. Joseph Superior Court. McKinney was convicted of homicide and on June 25, 1988, was sentenced to 50 years in prison. McKinney's motion to correct errors was overruled on November 14, 1988. McKinney appealed, and on February 10, 1989, the record of proceedings was filed in this court.

McKinney presents six issues for our consideration, which we consolidate as follows:

(1) Whether the trial court erred in denying McKinney's motion to dismiss for lack of territorial jurisdiction.

(2) Whether the trial court erred in refusing McKinney's tendered jury instruction which would have instructed the jury as to territorial jurisdiction.

(3) Whether the trial court erred in not instructing the jury on the issue of territorial jurisdiction.

(4) Whether the trial court erred in permitting a witness to testify on redirect examination that McKinney had been sentenced to prison for robbery.

Because we reverse and remand for new trial, we address only the first three issues.

Facts

Scott McKinney was driven by a friend to Laura, Ohio, to visit David Fox at his home. On September 23, 1987, McKinney arrived at the home of Ron and Sheila McKinney, his brother and sister-in-law, in South Bend, Indiana. He was driving a truck loaded with television sets, video-cassette recorders and other equipment. He told his brother that he had killed a man and showed him a man's leg beneath the equipment. McKinney asked his brother if he would sell the equipment and Ron McKinney agreed to do so. Among the possessions in the truck was David Fox's checkbook, which they burned. McKinney told his brother that he was going to dump the body in a swampy area. He then drove away with the body in the truck. The next morning, McKinney hosed out the bed of the truck and drove it to Gary, Indiana, where it was later found by police.

McKinney subsequently told his mother, Prudence Dorsey, and his younger brother, Mark McKinney, that he had killed David Fox in Ohio and had dumped the body near the Carborundum plant where he worked. After the body had been discovered McKinney told Duane McDonald, a co-worker at Carborundum, that he had killed the man and dumped the body. He told Carol Denton, however, that he and Fox had returned to South Bend and that his brother, Ron McKinney, had murdered Fox.

The body was found on September 26, 1987, and was subsequently identified as that of David Fox. The truck found in Gary was also identified as belonging to David Fox. Dr. David Jentz, pathologist, determined that the cause of death was a gunshot wound to the back of the head and that death had occurred approximately 48 hours before the autopsy. He testified that Fox would have died within minutes of receiving the wound.

Trial was to a jury in St. Joseph County. At trial McKinney did not testify and presented no witnesses on his behalf.

I.

McKinney first contends that the trial court erred in denying his motion to dismiss for lack of territorial jurisdiction. McKinney moved to dismiss after opening statements and after the State had begun to present evidence. The trial court did not immediately rule on McKinney's motion, but allowed the State to continue to present evidence until the State could file a brief in response and the trial court could hear arguments. The grounds for McKinney's objections were that State's witnesses had testified that McKinney had told them that he killed David Fox in Ohio. Specifically, McKinney's mother and younger brother testified that McKinney had told them the murder had occurred in Ohio. Carol Denton, however, testified that McKinney had told her that McKinney's brother, Ron, had killed Fox in Indiana. Others testified that McKinney had told them he murdered Fox, but their testimony did not indicate where the murder took place.

A person may be convicted of a crime in Indiana if either the conduct or the result, that is an element of the offense, occurred in Indiana. IC 35-41-1-1(a)(1). When the offense is homicide, either the death of the victim or the bodily impact causing death constitutes the result for purposes of prosecution in Indiana. Moreover, it is presumed that a homicide victim, whose body is found in Indiana, has been murdered in Indiana. IC 35-41-1-1(b). In this respect Indiana follows the Model Penal Code. Model Penal Code, Sec. 1.03 (Proposed Official Draft 1962). The result intended by this statute is that Indiana would have jurisdiction if the wound or injury was received, the victim died, or the defendant acted in Indiana. Model Penal Code, Sec. 1.03, supra, comment 8. The presumption insures that a murder defendant cannot confound the courts and avoid or delay prosecution by murdering his victim in one state and dragging the dead body into another.

The presumption that a homicide victim found in the state was murdered in the state leads to the conclusion that the state has territorial jurisdiction to prosecute the perpetrator. Territorial jurisdiction is not necessarily thought of as an element of a crime. Nevertheless, the Model Penal Code makes explicit the conclusion that territorial jurisdiction is a fact that must be established. Model Penal Code Sec. 1.13(9)(c). Indiana statutes do not define jurisdiction as an element of the offense; however, where the law has established the necessity of a certain fact for an accused to be guilty of an offense, the existence of that fact is treated much like an element of the offense. See McGowan v. State (1977), 267 Ind. 16, 366 N.E.2d 1164; Sumpter v. State (1974), 261 Ind. 471, 306 N.E.2d 95; Young v. State (1972), 258 Ind. 246, 280 N.E.2d 595. In this case then territorial jurisdiction is an element of the offense that must be proved by the state.

That territorial jurisdiction is to be proved by the prosecution is also supported by the law's treatment of venue. ¹ Although venue is not an element of a criminal offense, but an essential fact, Sizemore v. State (1979), 272 Ind. 26, 31, 395 N.E.2d 783, 787, the State must nevertheless prove proper venue in the same manner as the essential elements of the crime defined by statute, although by a preponderance of the evidence. Morris v. State (1980), 274 Ind. 161, 163, 409 N.E.2d 608, 610. We conclude, however, that the State must prove territorial jurisdiction beyond a reasonable doubt. Several factors compel us to reach this conclusion. Jurisdiction may not be waived or conferred by consent. To establish that a court acts with authority when it convicts a defendant, it is necessary that it demonstrate its authority employing the highest standard of proof. State v. Baldwin (Me.1973). 305 A.2d 555, 559. Other jurisdictions would be more likely to accord deference to a conviction in Indiana if Indiana has proven jurisdiction by the highest standard. Id. at 560. Moreover, requiring the state prove jurisdiction beyond a reasonable doubt avoids the confusion that would result if the jury were presented differing standards of proof for different elements. Model Penal Code, Sec. 1.12, Comment 2.

In most cases it is not difficult for the State to prove territorial jurisdiction. However, in cases such as this, where a body is found in a location other than where the murder may have taken place, state law aids the prosecution with a presumption. The location of the body is the proved fact from which can be inferred a further fact, that the victim was murdered within state boundaries. The Indiana legislature did not, however, establish guidelines as to how the courts should treat this presumption. The Model Penal Code would treat statutory presumptions as permissive. Model Penal Code, Sec. 1.12(5)(b). While the presumed fact must be proven beyond a reasonable doubt, the jury may regard the facts giving rise to the presumption as sufficient evidence of the presumed fact. The jury is permitted to infer jurisdiction upon proof of the prerequisite fact that the body was found in Indiana. Model Penal Code, Sec. 1.12(5)(b) and Comment 7. Furthermore, the court need not submit the question to the jury if it can determine that no reasonable juror could fail to find the presumed fact beyond a reasonable doubt. See; McGowan v. State, supra; Young v. State (1972), 258 Ind. 246, 250, 280 N.E.2d 595, 597-98. (If the defendant failed to meet the burden of going forward with disputive evidence, the legal presumption is sufficient to establish a prima facie case in favor of the State.)

Because the prosecution must prove territorial jurisdiction, 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. McKinney argues the court erred in overruling his motion to dismiss because the State's evidence showed that Fox was killed in Ohio and brought to Indiana. We disagree.

The court upon motion may dismiss an information if there exists a jurisdictional impediment to convicting the defendant for the offense charged. IC 35-34-1-4(a)(10). A motion to dismiss based upon subject matter jurisdiction may be made at any time during the proceedings. IC 35-34-1-4(b). McKinney's motion was based on state's evidence, which consisted of conflicting statements that McKinney made to different witnesses. The evidence also shows that someone drove McKinney to Ohio; that when he returned to South Bend he was driving Fox's truck; that he arrived with Fox's body hidden under Fox's possessions in the back; and that McKinney dumped the body in St. Joseph County. There is no evidence other than hearsay that...