Rios v. State

• Decision Date: 24 February 1987
• Docket Number: No. 85-276,85-276
• Parties: Jose RIOS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 242

733 P.2d 242

Jose RIOS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 85-276.

Supreme Court of Wyoming.

Feb. 24, 1987.

Leonard D. Munker, State Public Defender, Julie D. Naylor, Appellate Counsel, for appellant (defendant).

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Sr. Asst. Atty. Gen., and Gerald P Luckhaupt, Asst. Atty. Gen., for appellee (plaintiff).

Before BROWN, C.J., and THOMAS, CARDINE, URBIGKIT and MACY, JJ.

THOMAS, Justice.

The question which the court must resolve in this case is whether the State of Wyoming has jurisdiction to prosecute Jose Rios for interfering with child custody by failing or refusing to return the child to the custodial parent in Wyoming when at the time the crime was committed neither the child nor Jose Rios ever had been in this state. After a trial to the court the judge found Rios guilty and entered a judgment and sentence upon that conviction. At the same proceeding the trial court denied a motion to dismiss the prosecution based upon the absence of jurisdiction. The question is one of subject matter jurisdiction which arises in a constitutional context, and we acknowledge that at least one other state has held that jurisdiction does not exist under these circumstances. We affirm the judgment and sentence concluding that the State of Wyoming does have the requisite subject matter jurisdiction to prosecute Rios.

The issue framed by Rios in this case is:

"Whether the State of Wyoming has jurisdiction to prosecute a crime which was allegedly committed outside of the State."

The State of Wyoming articulates these issues for resolution:

"I. The clear result of appellant's actions was to interfere with a Wyoming resident's right to custody in Wyoming.

"II. Appellant's failure to return the child, Jesus, was an act of omission criminalized by Section 6-2-204, W.S.1977 (1982 Cum.Supp.)."

Rios' statement of the issue assumes that the crime was committed outside of the State. The statute under which this prosecution was brought, § 6-2-204, W.S.1977, Cum.Supp.1984, provides in pertinent part as follows:

"(a) A person is guilty of interference with custody if, having no privilege to do so, he knowingly:

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"(ii) Fails or refuses to return a minor to the person entitled to custody.

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"(d) Interference with custody is a felony punishable by imprisonment for not more than five (5) years if:

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"(ii) The defendant knowingly conceals and harbors the child or refuses to reveal the location of the child to the parent, guardian or lawful custodian."

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If Rios' assumption were correct, then we would agree that the State of Wyoming cannot punish conduct which occurs beyond its borders. The crime defined by this statute, however, could not have occurred in another state because the only place where Rios could fail or refuse to return the child to the custody of the person entitled to custody is Wyoming. The offense occurred in Wyoming or not at all, and the question which must be answered is whether there is an effect in Wyoming which is the result of Rios' extraterritorial acts.

The material facts essentially were stipulated by the parties before the trial court. Rios and the mother of the child began dating in New Mexico in approximately 1975, and subsequently, they lived together as man and wife. In June of 1977, Jesus Rios was born of this union. In 1979, the parents were married in New Mexico, and in 1980 they were divorced, also in New Mexico. In the decree of divorce the mother was awarded the care and custody of the child, and Rios was granted visitation rights. Subsequently, Rios and the mother stipulated that Rios should have custody of the child during the summer school vacation with the mother having reasonable visitation during that period.

Rios enjoyed the custody of the child during the summer of 1982. In 1983, the mother remarried in New Mexico, and again Rios enjoyed the custody of the child during the summer of 1983. In May of 1984, the mother informed Rios that she would be moving to Buffalo, Wyoming, because her new husband was being transferred there in his employment. The record justified the district court in concluding that they agreed that Rios would have custody of the child during the summer of 1984 and would return him to the mother in Buffalo prior to the school term that fall. In June of 1984, the mother moved to Buffalo and on August 14, 1984, which was the day before Rios had agreed to return the child, Rios telephoned the mother who was in Buffalo and asked for a few more days. The mother consented to this request, and they agreed that Rios would return the child on August 18, 1984.

The child was not returned to his mother, and she attempted to locate Rios and the child. She was not able to do that, and she sought assistance from police authorities in New Mexico who also were unable to locate Rios and the boy. At that juncture, the mother filed a criminal complaint against Rios in Wyoming. In July of 1985, Rios was apprehended while attempting to cross the border from California to Mexico. An NCIC, National Crime Information Center, name check was conducted which disclosed the outstanding arrest warrant from Wyoming. Rios then was extradited to Wyoming to face the charge of failing or refusing to return a minor to the custody of the person entitled thereto. In the meantime, the boy was located at a residence which he had shared with his father in Los Angeles, and he was returned to his mother in Buffalo, Wyoming.

Rios argues that he must be discharged because he did not do anything within Wyoming to subject himself to its laws. He suggests that something akin to the minimum contacts concept articulated in Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977), must be identified to justify jurisdiction. As one court has observed, however, the concept of minimum contacts found in Shaffer v. Heitner, supra, has no application to criminal cases. State v. Luv Pharmacy, 118 N.H. 398, 388 A.2d 190 (1978). Rios concedes that the court in Wyoming had personal jurisdiction over him. A state obtains personal jurisdiction over an accused by his physical presence before the court without regard to the manner in which that presence was obtained. Hanson v. State, Wyo., 590 P.2d 832 (1979); State v. Clark, Wyo., 392 P.2d 539 (1964); Crouse v. State, Wyo., 384 P.2d 321 (1963). Even in cases in which extradition is pursued, the rule is that once a fugitive has been brought within the custody of a demanding state through extradition he cannot attack the legality of that extradition or the personal jurisdiction of the court over him. Yellen v. Nelson, Colo., 680 P.2d 234 (1984); State v. Wilson, La.App., 450 So.2d 697 (1984); State v. Flint, W.Va., 301 S.E.2d 765 (1983); cases cited in Annot., 25 A.L.R.4th 157 (1983).

The only question to be resolved by this court is whether the State of Wyoming possessed the requisite subject matter jurisdiction over the crime charged so that it could prosecute Rios. Subject matter jurisdiction is essential to a prosecution for a criminal offense. "Jurisdiction of the offense charged * * * is a fundamental and indispensable prerequisite to a prosecution." State v. Clark, supra, 392 P.2d at 540. This court has held that lack of subject matter jurisdiction is so fundamental that, unlike personal jurisdiction, it cannot be waived. Taylor v. State, Wyo., 658 P.2d 1297, 1300, n. 3 (1983), citing Matter of Estate of Harrington, Wyo., 648 P.2d 556 (1982), and Hayes v. State, Wyo., 599 P.2d 569 (1979).

Rios frames his constitutional concern in the context of the language of the Sixth Amendment to the Constitution of the United States which provides:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, * * *."

This language quite literally addresses the concept of venue in the instance of crimes against the United States, but we recognize that some courts have adapted it to treat with state venue matters. This situation is more definitively analyzed in the context of the extent of legislative jurisdiction of the State of Wyoming and whether the state can define as a crime conduct initiated by acts which occur outside its borders but have a result here. In accord, Lane v. State, Fla., 388 So.2d 1022 (1980); State v. Baldwin, Me., 305 A.2d 555 (1973).

Subject matter jurisdiction is limited by the territorial reach of the courts. At common law the principle relating to criminal jurisdiction is stated to be "[t]he criminal law of a state * * * has no operation or effect beyond its geographical or territorial limits." E.g., Hardy v. Betz, 105 N.H. 169, 195 A.2d 582, 585 (1963). This general principle has been recognized in Wyoming. Goldsmith v. Cheney, 447 F.2d 624 (10th Cir.1971); Linn v. State, Wyo., 505 P.2d 1270, cert. denied sub nom Lucas v. Wyoming, 411 U.S. 983, 93 S.Ct. 2277, 36 L.Ed.2d 959, reh. denied, 412 U.S. 944, 93 S.Ct. 2780, 37 L.Ed.2d 405 (1973). In Goldsmith v. Cheney, Wyo., 468 P.2d 813 (1970), an accessory before the fact was tried in Wyoming because accessorial acts occurred here even though the felony was committed elsewhere. Chief Justice Gray, in dissent, noted "[c]ertainly it must be conceded as a general proposition that our criminal laws do not reach a crime committed beyond the borders of this state." 468 P.2d at 817. In a situation which represented the inverse of the factual situation in Goldsmith v. Cheney, 468 P.2d 624 supra, this court upheld the power of Wyoming courts to entertain a prosecution for accessorial acts committed in another state when the crime was committed in Wyoming. Hopkinson v. State, Wyo., 632 P.2d 79 (1981), cert. denied 455 U.S. 922, 102 S.Ct. 1280, ...