State v. Moore
| Decision Date | 17 November 1992 |
| Docket Number | CA-CR,No. 1,1 |
| Citation | 841 P.2d 231,173 Ariz. 236 |
| Parties | STATE of Arizona, Appellee, v. Mark Chester MOORE, Appellant. 91-150. |
| Court | Arizona Court of Appeals |
This is an appeal from the sentence imposed on a judgment of conviction that Mark Chester Moore ("defendant") committed theft from a convenience market on the Cocopah Indian Reservation. The issue is whether a non-Indian defendant who steals from a reservation convenience store, owned and operated by a joint venture between an Indian tribe and a foreign corporation authorized to do business in Arizona, is subject to State of Arizona jurisdiction. We conclude that because the crime did not significantly involve the interests of the Indian tribe, Arizona has jurisdiction.
A Yuma County grand jury indicted the defendant on four counts of theft and one count of armed robbery. The defendant, an employee of the Cocopah Easy Corner convenience market ("market"), located on the Cocopah Indian reservation, stole cash receipts from the market on three occasions. He was charged with three counts of theft, all class 3 felonies. The defendant later returned to the market and, armed with a knife, robbed the clerk of $400.00. He was charged with one count of robbery, a class 2 felony, and one other count of theft, a class 6 felony.
Easy Corner Inc. ("Easy Corner"), a Colorado corporation authorized to do business in Arizona, operates the convenience market under a joint venture agreement and a federally-approved tribal lease. According to the terms of the agreement, Easy Corner contributed the financing and construction of the market to the joint venture. The tribe's only contribution to the joint venture was the grant of the right to conduct a convenience market on the reservation under the lease between the tribe and Easy Corner. Paragraph 4.06 of the agreement, however, provides that at the end of the ten-year term, the joint venture terminates and ownership of the building, improvements, and trade fixtures passes from Easy Corner to the tribe.
Paragraph 4.01 of the agreement provides that Easy Corner has the sole power and authority to operate and manage the market. Accordingly, the agreement entitles Easy Corner to the lion's share of the net profits. In contrast, the tribe has no management authority and receives a small percentage of the net profits on convenience store sales. 1
Presumably due to a mistaken belief that the joint venture was a tribal enterprise, the grand jury originally listed the Cocopah Indian Tribe as one of the victims in all five counts of the indictment. The defendant moved to dismiss, arguing that the Yuma County Superior Court had no jurisdiction because the acts occurred on the Cocopah Indian reservation and involved funds or property in which the tribe had a "direct business and financial interest." The trial court agreed and struck the tribe from the indictment. Nevertheless, the trial court concluded it had jurisdiction over the non-Indian defendant and the remaining victims, Easy Corner, and the non-Indian clerk.
Later, the defendant entered an Alford 2 plea to one count of theft, a class 3 felony, with one prior felony conviction. In return, the state agreed to drop the remaining charges and limit restitution to $13,000.00. The basis for the count to which the defendant pled was the theft of one day's receipts of $3,876.33 in cash and $1,048.00 in checks from the convenience market. The trial court accepted the defendant's plea and sentenced him to an aggravated term of ten years in prison with credit for 311 days of presentence incarceration. The court also ordered defendant to pay restitution in the amount of $12,673.80. The defendant timely appealed.
We hold that Arizona has jurisdiction over the defendant for the crime he committed against the joint venture on the Indian reservation. We find that because the joint venture agreement does not give the tribe a substantial interest in the joint venture, the crime did not significantly involve the interests of the tribe. Further, we conclude that vesting Arizona with jurisdiction will not infringe upon tribal interests or the federal government's ability to protect the tribe's interests.
Jurisdiction in Indian country "is governed by a complex patchwork of federal, state, and tribal law." Duro v. Reina, 495 U.S. 676, 680 n. 1, 110 S.Ct. 2053, 2057 n. 1, 109 L.Ed.2d 693 (1990). Indian country includes "all land within the limits of any Indian reservation under the jurisdiction of the United States government." 18 U.S.C. § 1151(a). The Indian Country Crimes Act, 18 U.S.C. § 1152, "applies the general laws of the United States to crimes committed in Indian country." Duro, 495 U.S. at 680 n. 1, 110 S.Ct. at 2057 n. 1. 3 Under this act, federal courts have jurisdiction over non-Indians who commit crimes against Indians on Indian reservations. See Williams v. Lee, 358 U.S. 217, 220, 79 S.Ct. 269, 270, 3 L.Ed.2d 251 (1959); Williams v. United States, 327 U.S. 711, 714, 66 S.Ct. 778, 780, 90 L.Ed. 962 (1946); Donnelly v. United States, 228 U.S. 243, 269-72, 33 S.Ct. 449, 458-59, 57 L.Ed. 820 (1912); see also Felix S. Cohen, Handbook of Federal Indian Law, at 298 (1982 ed.). This court has held that federal jurisdiction is exclusive when a non-Indian commits a crime against an Indian in Indian country. State v. Flint, 157 Ariz. 227, 229, 756 P.2d 324, 326 (App.1988), cert. denied, 492 U.S. 911, 109 S.Ct. 3228, 106 L.Ed.2d 577 (1989).
The Supreme Court, however, has created a judicial exception to the Indian Country Crimes Act, Duro, 495 U.S. at 680 n. 1, 110 S.Ct. at 2057 n. 1, by holding that states have exclusive jurisdiction over non-Indians who commit offenses against non-Indians on Indian reservations. United States v. McBratney, 104 U.S. 621, 26 L.Ed. 869 (1882) (); Draper v. United States, 164 U.S. 240, 17 S.Ct. 107, 41 L.Ed. 419 (1896) (); New York ex rel. Ray v. Martin, 326 U.S. 496, 66 S.Ct. 307, 90 L.Ed. 261 (1946) (); see also Cohen at 298.
Although the State of Arizona follows the McBratney-Draper- Martin holdings, State v. Attebery, 110 Ariz. 354, 519 P.2d 53 (1974); State v. Griswold, 101 Ariz. 577, 422 P.2d 693, cert. denied, 388 U.S. 913, 87 S.Ct. 2113, 18 L.Ed.2d 1352 (1967), State v. Burrola, 137 Ariz. 181, 669 P.2d 614 (App.1983), they are not directly on point with this case. Here, the defendant is a non-Indian, but the offense to which he pled was not one against a non-Indian. Instead, the offense was one against a joint venture in which a non-Indian corporation and an Indian tribe both have an interest. While other courts have decided similar questions, we find no cases that resolve this specific issue. See Eastern Navajo Indus., Inc. v. Bureau of Revenue, 89 N.M. 369, 552 P.2d 805 (App.1976), cert. denied, 430 U.S. 959, 97 S.Ct. 1610, 51 L.Ed.2d 810 (1977) (); Airvator, Inc. v. Turtle Mountain Mfg. Co., 329 N.W.2d 596 (N.D.1983) ().
Commentators have recognized the jurisdictional problem posed by the McBratney-Draper- Martin holdings when there are both Indians and non-Indians involved as defendants or victims. See Robert N. Clinton, Criminal Jurisdiction Over Indian Land: A Journey Through a Jurisdictional Maze, 18 Ariz.L.Rev. 503, 527-29 (1976); Cohen at 353-56. In such cases, Clinton suggests that when applying the McBratney-Draper- Martin holdings, a court "should pierce the indictment to ascertain whether on the facts of the situation, taken as a whole, an Indian was involved in the criminal incident in some significant way, either as perpetrator or a victim." See Clinton at 528-29. Although here we are dealing with Indian and non-Indian participants in a business relationship, and not multiple criminal defendants or victims, some of whom are Indian and some of whom are not, we conclude that Clinton's analysis is sound. In the absence of precedent, we adopt it in this case.
In determining whether the defendant's crime significantly involved the tribe, we must analyze the nature of the relationship between Easy Corner and the Cocopah tribe. Although the joint venture agreement is not entirely clear, it provides that the laws of Arizona govern the interpretation of the agreement. 4 Under Arizona law, a joint venture is a form of partnership, Waterman v. Rabinovitz, 161 Ariz. 511, 514, 779 P.2d 826, 829 (App.1989), and "a partner's interest in the partnership is his share of the profits and surplus." A.R.S. § 29-226; see also Scott Rowley, 1 Rowley on Partnership: The Substantive Law, § 26.1 at 569 (2nd ed. 1960) (citing Uniform Partnership Act § 26); Scott Rowley, 2 Rowley on Partnership: Collateral Matters, §§ 52.32 to 52.34 at 504-507 (2nd ed. 1960) (each venturer's interest in the joint venture enterprise is equal unless the agreement expressly states otherwise). We conclude that the language of the joint venture agreement determines the tribe's interest.
Here, according to the terms of the agreement, the tribe does not have a significant interest in the joint venture. At the time of the theft, the agreement entitled Easy Corner to most of the net profits from the joint venture. Furthermore, Easy Corner clearly controls the business; the...
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