State v. Johnson

• Decision Date: 19 December 2002
• Docket Number: No. 20010709-CA.,20010709-CA.
• Parties: STATE of Utah, Plaintiff and Appellee, v. Richard A. JOHNSON, Defendant and Appellant.
• Court: Utah Court of Appeals

79 P.3d 419

2002 UT App 431

STATE of Utah, Plaintiff and Appellee, v. Richard A. JOHNSON, Defendant and Appellant.

No. 20010709-CA.

Court of Appeals of Utah.

December 19, 2002.

Joan C. Watt and Stephen W. Howard, Salt Lake Legal Defender Ass'n, Salt Lake City, for Appellant.

Mark L. Shurtleff, Atty. Gen., and J. Frederic Voros Jr., Salt Lake City, for Appellee.

Before JACKSON, P.J., BILLINGS, Associate Presiding Judge and DAVIS, J.

AMENDED OPINION¹

BILLINGS, Associate Presiding Judge:

¶ 1 Defendant Richard A. Johnson appeals from a district court order denying his Motion to Dismiss for Lack of Jurisdiction. This case is before the court on interlocutory review. We affirm.

BACKGROUND

¶ 2 The State of Utah charged Defendant with one count of criminal nonsupport, a third degree felony, in violation of Utah Code Ann. § 76-7-201(1), (3)(c) (1999) (the Criminal Nonsupport Statute). The amended information alleges that between March 1, 1996 and July 20, 2001, Defendant failed to pay child support, as ordered by an Alaska divorce decree, for his children who would have been in needy circumstances but for support from other sources.

¶ 3 Defendant moved to dismiss the information for lack of jurisdiction under Utah Code Ann. § 76-1-201 (1999) (the Criminal Jurisdiction Statute). Following a hearing, the district court denied Defendant's motion to dismiss. The court concluded Utah has jurisdiction to prosecute Defendant under the plain language of the Criminal Jurisdiction and Criminal Nonsupport Statutes. Thereafter, Defendant filed a petition for interlocutory review of the denial of his motion. This court granted the petition.

ANALYSIS

¶ 4 Defendant argues the district court erred in concluding Utah has jurisdiction to prosecute him, a Utah resident, for criminal nonsupport for failure to pay child support under an Alaska court order for children who have never resided in nor visited Utah. Whether the district court erred in concluding that Utah has jurisdiction is a question of law that we review for correctness. See State v. Amoroso, 1999 UT App 60,¶¶ 6, 18, 975 P.2d 505

.

¶ 5 The Criminal Jurisdiction Statute provides in relevant part:

(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 ... 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.

....

(4) An offense which is based on an omission to perform a duty imposed by the law of this state is committed within the state regardless of the location of the offender at the time of the omission.

Utah Code Ann. § 76-1-201. Under this statute, which is based upon the Model Penal Code, Utah has jurisdiction to prosecute an offense that is committed wholly or partly within Utah.

¶ 6 Defendant maintains that by failing to pay child support to his children in Alaska, he committed an offense wholly in Alaska, not partly in Utah. Under the plain language of the Criminal Jurisdiction Statute, a crime is committed partly within Utah if conduct that is any element of an offense or a result that is an element of an offense occurs within Utah. See id. The Model Penal Code defines "conduct" as "an action or omission and its accompanying state of mind, or, where relevant, a series of acts and omissions." Model Penal Code § 1.13(5), 10A U.L.A. 91 (2001). "Omission" is defined as "a failure to act." Id. § 1.13(4). At issue in the present case is whether Defendant's alleged failure to act—his failure to pay child support, is "conduct" that is "any element" of criminal nonsupport that occurred within Utah.

¶ 7 Defendant was charged with violating the Criminal Nonsupport Statute, which provides that a person may be convicted of criminal nonsupport if

having ... a child, or children under the age of 18 years, he knowingly fails to provide for the support of the ... child, or children when any one of them:

(a) is in needy circumstances; or

(b) would be in needy circumstances but for support received from a source other than the defendant or paid on the defendant's behalf.

Utah Code Ann. § 76-7-201(1).

¶ 8 Thus, to be convicted of criminal nonsupport in Utah, a person must (1) be the parent of a child under 18 and (2) knowingly fail to provide for the support of that child when (3) the child is in needy circumstances or would be in needy circumstances but for support received from other sources. See id.²

¶ 9 Utah appellate courts have not addressed whether a Utah resident who fails to provide support for nonresident children commits criminal nonsupport partly in Utah. Defendant relies upon Osborn v. Harris, 115 Utah 204, 203 P.2d 917 (1949) and Boudreaux v. State, 1999 UT App 310, 989 P.2d 1103, as supporting the proposition that the failure to provide support occurs wholly where the children reside. We disagree.

¶ 10 In Osborn, the Utah Supreme Court interpreted a prior version of the Criminal Nonsupport Statute³ in holding that Utah had jurisdiction to prosecute a nonresident parent for failure to provide support "in the state in which he has permitted his wife or children to live, or in which his misconduct has induced them to seek refuge." 203 P.2d at 921. In so holding, the court recognized that criminal nonsupport statutes are "`for the benefit of the child[ren and] ... for the purpose of enforcing the natural duties of parents to their children.'" Id. at 920 (quoting In re Poage, 87 Ohio St. 72, 100 N.E. 125, 128 (1912)). The court then stressed, "`citizens of another state cannot permit their children to become objects of charity in this state and defend against a prosecution under our laws to compel parents to provide for their minor children by the plea that they are not citizens of this state.'" Id. Although it was therefore "reasonable to say that ... [the] duty to support [the children] lies in the state where they are so located," the court did not "express any opinion as to whether or not [the parent who failed to provide support was] guilty of a crime in both" Utah and the state of his residence. Id. at 920-21. Further, Osborn was decided before the Criminal Jurisdiction Statute was enacted, and thus it does not address whether, in failing to provide support for nonresident children, a Utah resident defendant commits an offense partly in Utah.

¶ 11 In Boudreaux, the defendant was charged with criminal flagrant nonsupport under Kentucky's criminal nonsupport statute for "having committed acts in Utah which resulted in a crime being committed in Kentucky." 1999 UT App 310 at ¶ 3, 989 P.2d 1103. The defendant challenged his extradition to Kentucky as a nonfugitive, arguing Utah, rather than Kentucky, had jurisdiction over the collection of support arrearages and arguing he had paid child support. See id. at ¶ 22, 989 P.2d 1103. Because the defendant was charged with criminal nonsupport under the Kentucky statute and the civil collection of support was not at issue, this court rejected the defendant's argument that Utah had "jurisdiction over him[, a Utah resident,] in [the] Kentucky criminal nonsupport matter." Id. However, in so holding, this court did not address whether the defendant committed an offense partly in Utah and thus whether Utah had concurrent jurisdiction to bring charges under Utah's Criminal Nonsupport Statute. Thus, Boudreaux does not control our analysis.

¶ 12 To support his argument that his "conduct" occurred wholly in Alaska, Defendant also relies upon generally recognized principles of criminal law that the failure to provide support for a child is a crime of omission; a crime of omission is committed where the duty to act lies; the duty to act in a criminal nonsupport case is where support is owed and the child resides; thus, criminal nonsupport is committed where the child resides. However, almost all of the cases Defendant cites fail to address whether a state may prosecute a resident parent for failure to provide support for a nonresident child under statutes similar to Utah's statutes.⁴

¶ 13 Nor does it necessarily follow from the general rule—that a state may prosecute a nonresident parent for failure to support a resident child, that a state may not prosecute a resident parent for failure to support a nonresident child. See State v. Gantt, 201 Wis.2d 206, 548 N.W.2d 134, 136 (Ct.App. 1996)

(emphasizing that although Wisconsin cases holding Wisconsin has jurisdiction to prosecute nonresident parents for failing to support Wisconsin resident children are consistent with general criminal law rule, such cases do not hold that "nonsupport statutes may be enforced only in the place where the child[ren] reside[ ]"); see also United States v. Lombardo, 241 U.S. 73, 77-78, 36 S.Ct. 508, 510, 60 L.Ed. 897 (1916) (recognizing in dicta that "where there is a general duty it may be considered as insistent both where the `actor' is and the `subject' is ... as in the case of the duty of a father to support his children; and if the duty ha[s] criminal sanction it may be enforced in either place"). In fact, there is authority generally recognizing that because criminal nonsupport is a continuing offense, jurisdiction is proper where either the parent or child resides. See Virgin Islands v. Audain, 366 F.Supp. 710, 713 (V.I.1973) (concluding under criminal nonsupport statute jurisdiction was proper where parent or child resided because the duty to provide support is continuing and because the criminal nonsupport statute "[did] not require the child to be a resident of the state"); State v. Echavarria, 101 N.H. 458, 146 A.2d 256, 256 (1958) ("[I]t is also generally held that nonsupport is a continuing offense which can occur at the place where the wife or children live, at the father's residence or at both.").

¶ 14 We conclude Utah and...