State v. Amoroso

• Decision Date: 04 March 1999
• Docket Number: No. 971712-CA,971712-CA
• Citation: 975 P.2d 505
• Parties: 364 Utah Adv. Rep. 3, 365 Utah Adv. Rep. 44, 1999 UT App 60 STATE of Utah, Plaintiff and Appellant, v. Louis A. AMOROSO; and Beer Across America, an Illinois corporation, Defendants and Appellees.
• Court: Utah Court of Appeals

Page 505

975 P.2d 505

364 Utah Adv. Rep. 3, 365 Utah Adv. Rep.

44, 1999 UT App 60

STATE of Utah, Plaintiff and Appellant, v. Louis A. AMOROSO; and Beer Across America, an Illinois corporation, Defendants and Appellees.

No. 971712-CA.

Court of Appeals of Utah.

March 4, 1999.

Jan Graham, Attorney General, J. Frederic Voros Jr., Wayne Klein, and Carol Clawson, Assistant Attorneys General, Salt Lake City, for Appellant.

Joseph E. Tesch, David B. Thompson, Tesch Thompson & Fay, Park City, and Morton Siegel, Siegel Moses Schoenstadt & Webster PC, Chicago, Illinois, for Appellees.

Before WILKINS, P.J, GREENWOOD, Associate P.J., and BILLINGS, J.

OPINION

BILLINGS, Judge:

¶1 Appellant, the State of Utah, appeals an order dismissing a criminal prosecution against Appellees Louis A. Amoroso and Beer Across America (BAA) involving several violations of Utah liquor laws. ¹ We reverse and remand.

FACTS

¶2 BAA is a national marketer of several products, including "heavy" beer, which qualifies as "liquor" under Utah liquor laws. BAA is located in Illinois. It has no property in Utah, maintains no representatives here, nor does it directly solicit sales in Utah. However, BAA advertises nationally, including in Utah, via the Internet and newsletters.

¶3 BAA's customers purchase BAA products by mail, telephone 800 number, or the Internet. All orders must be prepaid by the purchaser, including freight and handling charges, before any purchases are delivered to the shipper. The purchases are then delivered to a shipper in Illinois "freight paid" for delivery to the customer in accordance with the customer's instructions. BAA collects and pays sales tax to Illinois on all purchases. Since 1992, BAA has shipped alcoholic beverages to several hundred Utah customers.

¶4 BAA was charged with the following criminal violations:

Count I: Unlawful importation of alcoholic product, a class B misdemeanor, in violation of Utah Code Ann. § 32A-12-503 (1994);

Count II: Unlawful sale or supply of alcoholic beverage or product, a class B misdemeanor, in violation of Utah Code Ann. § 32A-12-201 (1994);

Count III: Unlawful warehousing, distribution, and transportation of liquor, a class B misdemeanor, in violation of Utah Code Ann. § 32A-9-101(2) (1994);

Count IV: Unlawful sale or supply of alcoholic beverage to minors, a class A misdemeanor, in violation of Utah Code Ann. § 32A-12-203 (Supp.1996);

Count V: Pattern of unlawful activity, a second degree felony, in violation of Utah Code Ann. § 76-10-1601 and § 76-10-1603.5 (1995) et seq.

¶5 On June 11, 1997, BAA filed Motions to Dismiss the charges. The trial court dismissed counts I, II, III, and V for lack of jurisdiction. Additionally, the court concluded that prosecuting BAA would violate the Commerce Clause of the United States Constitution. See U.S. Const. art. I, § 8, cl. 3. Although the trial court did not dismiss count IV, the State voluntarily dismissed this count without prejudice. This appeal followed.

ANALYSIS

¶6 "[T]he propriety of a trial court's decision to grant or deny a motion to dismiss is a question of law that we review for correctness." Tiede v. State, 915 P.2d 500, 502 (Utah 1996). Further, both parties agree this case presents solely legal issues. ² Thus we accept the facts as alleged in the informations and the affidavits in support thereof, and view these facts in a light favorable to the State, reviewing the trial court's determinations for correctness. See Hebertson v. Willowcreek Plaza, 923 P.2d 1389, 1390 (Utah 1996) (citation omitted).

I. Preservation of Issues

¶7 As a threshold matter, BAA asserts the State makes several arguments on appeal that it failed to raise below. As a general rule, appellate courts will not consider an issue raised for the first time on appeal. See Ong Int'l (U.S.A.), Inc. v. 11th Ave. Corp., 850 P.2d 447, 455 (Utah 1993). Further, as in the case before us, when legal issues and theories are in dispute, proper preservation requires that the parties "bring the issue to the attention of the trial court, thus providing the court an opportunity to rule on the issue's merits." Ohline Corp. v. Granite Mill, 849 P.2d 602, 604 n. 1 (Utah Ct.App.1993) (citations omitted). Finally, issues raised for the first time on appeal will be addressed only if the trial court proceedings demonstrated "plain error." State v. Olsen, 860 P.2d 332, 333 (Utah 1993). To establish plain error, the State must show "(i)[a]n error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant." State v. Dunn, 850 P.2d 1201, 1208-09 (Utah 1993).

¶8 With these principles in mind, and after carefully reviewing the record, we conclude that all the issues considered in this appeal are properly preserved as they were raised below, or constitute plain error. See Dunn, 850 P.2d at 1208-09. ³

¶9 Underlying our decision to reach the merits of this appeal is the fact that the identical legal issues posed in this appeal will most likely appear before us again. Below, the magistrate dismissed the prosecution's case without prejudice. Accordingly, under the Utah Rules of Criminal Procedure, the State may refile charges against BAA. See Utah R.Crim. P. 25(d). Thus, if we affirm, the State will refile, BAA will once again claim lack of jurisdiction, and the State will re-advance the arguments BAA now argues were waived. Where, as here, dispositive issues are likely to arise later in the course of a judicial proceeding, we are more inclined to reach the merits "in the interest of judicial economy and providing guidance to the parties and the trial court...." State v. Fisk, 966 P.2d 860, 861 (Utah Ct.App.1998). Having concluded the issues presented in this appeal are properly before us, we turn to the merits.

II. Jurisdiction

A. Personal Jurisdiction

¶10 The State argues the court erred in applying principles of civil personal jurisdiction in a criminal case. In opposition, BAA argues that "principles of fundamental fairness" dictate that a "minimum contacts" analysis is appropriate where, as here, Utah is seeking to assert criminal jurisdiction over a foreign corporate defendant, even if that defendant is present in a Utah court. ⁴ We agree with the State.

¶11 The rule is well-settled that civil "minimum contacts" analysis has no place in determining whether a state may assert criminal personal jurisdiction over a foreign defendant. See, e.g., Boyd v. Meachum, 77 F.3d 60, 66 (2d Cir.1996) (federal constitutional requirements of civil personal jurisdiction do not apply in a criminal case); State v. McCormick, 273 N.W.2d 624, 628 (Minn.1978) (criminal cases "not subject to the same flexibility enjoyed by the more elastic rules governing extraterritorial jurisdiction in civil cases"); State v. Taylor, 838 S.W.2d 895, 897 (Tex.App.1992) (citing Ex parte Boetscher, 812 S.W.2d 600, 602 (Tex.Crim.App.1991) ("A 'minimum contacts' analysis is not applicable to establish jurisdiction in criminal prosecutions.")); Rios v. State, 733 P.2d 242, 244 (Wyo.1987) ("the concept of minimum contacts ... has no application to criminal cases").

¶12 We conclude the trial court erred in applying a civil minimum contacts analysis in this criminal prosecution. BAA, by way of Louis Amoroso, was physically present at the proceedings below. ⁵ Thus, the trial court erred when it failed to assert criminal personal jurisdiction over BAA.

B. Subject Matter Jurisdiction

¶13 The State argues BAA is subject to prosecution in Utah because its "conduct [in Illinois] caused an unlawful result within this state," and thus BAA committed the charged offenses partly within Utah. In opposition, BAA, by way of a tortured reading of section 76-1-201, argues the State improperly relies solely on a "result" test.

¶14 Utah's Criminal Jurisdiction Statute provides

(1) A person is subject to prosecution in this state for an offense which he commits, while either within or outside the state, by his own conduct or that of another for which he is legally accountable, if:

(a) the offense is committed either wholly or partly within the state;

....

(2) An offense is committed partly within this state if either the conduct which is any element of the offense, or the result which is such an element, occurs within this state.

Utah Code Ann. § 76-1-201(1)-(2) (Supp.1998).

¶15 As early as 1911, the United States Supreme Court implicitly endorsed the State's interpretation of the statute. Strassheim v. Daily, 221 U.S. 280, 31 S.Ct. 558, 55 L.Ed. 735 (1911), supports the proposition that Utah may apply its criminal statute to conduct occurring entirely outside its borders. In Strassheim, the Supreme Court held that Michigan could prosecute a defendant charged with defrauding the Michigan state government even though the defendant committed the fraudulent acts entirely outside of Michigan and never entered Michigan until the fraud was complete. See id. at 281-83, 31 S.Ct. at 559.

¶16 This principle of extraterritoriality is codified in Utah Code Ann. § 76-1-201 (Supp.1998). Under this statute, if conduct or a result of conduct constituting any element of the offense occurs within the state, the State has jurisdiction to prosecute the offense. See State v. Sorenson, 758 P.2d 466, 470 (Utah Ct.App.1988). In Sorenson, an issue raised was whether Utah had jurisdiction arising from a charge of possession of alcohol pursuant to Utah Code Ann. § 32A-12-13(1) (1986), which prohibited the purchase, possession, or consumption of alcohol by a person under the age of 21. Id. at 467. Sorenson was stopped for speeding in St. George, Utah, but a search of his car revealed he was not in possession of any alcohol. Id. We noted that "Sorenson's conviction of the offense of consumption necessarily requires proof of the jurisdictional factor that at least some alcohol was consumed in Utah." Id. at 470 (c...