State v. Allen

• Decision Date: 08 September 2014
• Docket Number: No. 34,887.,32,774.,34,887.
• Citation: 336 P.3d 1007
• Parties: STATE of New Mexico, Plaintiff–Appellee, v. Christopher ALLEN, Defendant–Appellant.
• Court: Court of Appeals of New Mexico

336 P.3d 1007

STATE of New Mexico, Plaintiff–Appellee

v.Christopher ALLEN, Defendant–Appellant.

32,774.

No. 34,887.

Court of Appeals of New Mexico.

Sept. 8, 2014.

Certiorari Denied, Oct. 8, 2014,

Gary K. King, Attorney General, Santa Fe, NM, M. Anne Kelly, Assistant Attorney General, Albuquerque, NM, for Appellee.

Law Office of the Public Defender, Jorge A. Alvarado, Chief Public Defender, B. Douglas Wood III, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

VIGIL, Judge.

{1} This is an identity theft case. The question presented is whether Defendant can be prosecuted in New Mexico when he never set foot in New Mexico, and all the acts of using Victim's identity occurred in other states. Concluding that New Mexico has jurisdiction to prosecute Defendant, we affirm.

BACKGROUND

{2} Victim attempted to obtain a New Mexico driver's license and discovered that someone had used his identifying information to obtain an Arizona driver's license. A police investigation revealed that Defendant used Victim's identity to obtain a driver's license in Arizona, rent cars in Arizona, Nevada, and Georgia, and to provide booking information upon his arrest in Georgia. It is undisputed that none of the acts of using Victim's identity took place in New Mexico and that Victim resided in San Juan County, New Mexico at the time of the transactions. The State charged Defendant with eight counts of identity theft contrary to NMSA 1978, Section 30–16–24.1(A) (2009), which provides:

Theft of identity consists of willfully obtaining, recording or transferring personal identifying information of another person without the authorization or consent of that person and with the intent to defraud that person or another or with the intent to sell or distribute the information to another for an illegal purpose.

{3} Defendant filed a motion to dismiss for lack of jurisdiction. The motion focused on the fact that the alleged crimes took place in Arizona, Nevada, and Georgia-not New Mexico. He argued that the fact that Victim resides in New Mexico is irrelevant because under the United States and New Mexico constitutions, “[a] crime must be prosecuted in the jurisdiction where it was committed.” The State opposed the motion, asserting that Section 30–16–24.1(G) grants New Mexico jurisdiction because under Section 30–16–24.1(G)(1), the crime is deemed to have been committed in the county where the victim resides. Defendant insisted that Section 30–16–24.1(G) is solely a venue statute, relevant in cases where New Mexico otherwise has jurisdiction and that Section 30–16–24.1(G) cannot confer New Mexico with jurisdiction to prosecute crimes committed outside of New Mexico. Defendant asserts to interpret Section 30–16–24.1(G) otherwise, would render it unconstitutional.

{4} The district court denied Defendant's motion. The district court did not rely on Section 30–16–24.1(G), ruling instead:

1. If any of the elements of the crime of theft of identity occurred in New Mexico, [the district c]ourt has subject matter jurisdiction.

2. One element of the crime is that the alleged offender used the personal identifying information of another without the authorization of the owner of the personal identifying information.

3. The “without authorization” element of theft of identity can only occur where the owner of the personal identifying information resides.

4. The State alleges that [Victim] did not authorize the use of his personal identifying information by ... Defendant and that [Victim] resides in San Juan County, New Mexico.

5. If these allegations are proven, the “without authorization” element occurred in New Mexico and [the district c]ourt has subject matter jurisdiction over the alleged crimes and ... Defendant's Motion to Dismiss For Lack of Jurisdiction should be denied.

(Footnote omitted).

{5} Thereafter, Defendant plead guilty to two of the counts of identity theft, reserving his right to appeal the denial of the motion to dismiss. This appeal followed.

DISCUSSION

{6} Defendant argues that the district court erred as a matter of law in ruling that the “without authorization” element of identity theft can only occur where the owner of the personal identifying information resides. Thus, Defendant asserts, the district court erred in concluding that it had jurisdiction because Victim lived in New Mexico, and a New Mexico district court has jurisdiction over the offense if any of the elements of theft identity occurred in New Mexico. It is not necessary for us to determine whether the “without authorization” of the crime must occur where the victim resides because, as discussed below, we conclude that the district court otherwise had jurisdiction. “As a general rule, however, we will uphold the decision of a district court if it is right for any reason.” State v. Ruiz, 2007–NMCA–014, ¶ 38, 141 N.M. 53, 150 P.3d 1003 ; see also State v. Wilson, 1998–NMCA–084, ¶ 17, 125 N.M. 390, 962 P.2d 636 (“Appellate courts usually apply the right for any reason basis of affirmance to strictly legal questions.”).

A. Standard of Review

{7} Our standard of review is de novo for three reasons. First, issues of subject matter jurisdiction are reviewed under a de novo standard. State v. Gutierrez, 2011–NMCA–088, ¶ 3, 150 N.M. 505, 263 P.3d 282 (“ ‘We review jurisdictional issues ... under a de novo standard of review.’ ” (quoting State v. Heinsen, 2005–NMSC–035, ¶ 6, 138 N.M. 441, 121 P.3d 1040 )); see State v. Chavarria, 2009–NMSC–020, ¶ 11, 146 N.M. 251, 208 P.3d 896 (“Questions regarding subject matter jurisdiction are questions of law which are subject to de novo review.” (internal quotation marks and citation omitted)). Second, because the pertinent facts are undisputed, we review de novo whether the law was correctly applied to those facts. See State v. Gutierrez, 2004–NMCA–081, ¶ 4, 136 N.M. 18, 94 P.3d 18 (stating that when the material facts are undisputed, we apply a de novo standard of review to the district court's application of the law to those facts). Finally, to the extent we are required to construe Section 30–16–24.1, our review is de novo. See State v. Smith, 2004–NMSC–032, ¶ 8, 136 N.M. 372, 98 P.3d 1022 (“We review questions of statutory interpretation [de novo].”).

B. Jurisdiction Versus Venue

{8} The State insists that because the district court is a court of general jurisdiction under Article VI, Section 13 of the New Mexico Constitution with jurisdiction to try an identity theft offense, and the district court obtained personal jurisdiction over Defendant, the issue actually presented is one of venue, not jurisdiction. We disagree.

{9} It is clear that “venue is not to be equated with jurisdiction.” State ex rel. Dep't of Pub. Safety v. One 1986 Peterbilt Tractor, 1997–NMCA–050, ¶ 23, 123 N.M. 387, 940 P.2d 1182 ; see Kalosha v. Novick, 1973–NMSC–010, ¶¶ 24–25, 84 N.M. 502, 505 P.2d 845 (explaining that venue and jurisdiction are distinct concepts and overruling cases to the extent that they treat them as the same). “Jurisdiction goes to the power of a court to entertain the cause, while venue simply goes to the convenient and proper forum.” One 1986 Peterbilt Tractor, 1997–NMCA–050, ¶ 23, 123 N.M. 387, 940 P.2d 1182 (internal quotation marks and citation omitted). Nevertheless, limits on jurisdiction and venue may sometimes overlap. Professor LaFave explains:

The most common overlap stems from the jurisdictional limits that restrict by reference to the geographical locus of the offense the authority of the judiciary to apply the laws of the particular government (national, state, or municipality) of which it is a part.... [S]uch jurisdictional limits are tied to the territorial reach of the particular government's legislative power. If the events that would give rise to a criminal charge occurred beyond that territorial reach, then the government cannot grant to its courts the authority to apply its criminal laws to those events. If the government's legislative power could reach those events, then the judiciary of that government is said to have ‘jurisdiction’ over the offense. To say that the judiciary has such jurisdiction, however, is not to say that every judicial district within that judiciary is a proper locality for the prosecution of the offense. The determination of proper locality is what the setting of venue is about. It looks to the convenience of the forum rather than the territorial reach of the government's legislative power.

4 Wayne R. LaFave et al., Criminal Procedure § 16.1(a), at 692 (3d ed.2007) (footnotes omitted); see also People v. McLaughlin, 80 N.Y.2d 466, 591 N.Y.S.2d 966, 606 N.E.2d 1357, 1359 (1992) (stating that venue refers to the proper county or place of trial and that the territorial jurisdiction which “goes to the very essence of the [s]tate's power to prosecute”).

{10} Thus, the State's argument overlooks the requirement that a criminal charge must have been committed within the territorial reach of the court for it to have authority (i.e., jurisdiction) to try the case. See Heckathorn v. Heckathorn, 1967–NMSC–017, ¶ 10, 77 N.M. 369, 423 P.2d 410 (“There are three jurisdictional essentials necessary to the validity of every judgment: jurisdiction of parties, jurisdiction of subject matter and power or authority to decide the particular matter presented.”).

{11} At common law, the rule of territorial jurisdiction is that “[t]he criminal law of a state has no operation or effect beyond its geographical or territorial limits.” Rios v. State, 733 P.2d 242, 245 (Wyo.1987) (second alteration, internal quotation marks, and citation omitted); see also State v. Dudley, 354 S.C. 514, 581 S.E.2d 171, 176 (S.C.Ct.App.2003) (“Common law has established ‘a territorial principle as the jurisdictional foundation for the reach of state laws. Under that principle, states have power to make conduct a crime only if that conduct takes place, or its results occur, within the state's territorial borders.’ ”) (quoting 4 Wayne R. LaFave et...