State v. Vaughn

• Decision Date: 16 November 1989
• Docket Number: No. 1,CA-CR,1
• Citation: 163 Ariz. 200,786 P.2d 1051
• Parties: STATE of Arizona, Appellee, v. Charles VAUGHN, Appellant. 12303.
• Court: Arizona Court of Appeals

Page 1051

786 P.2d 1051

163 Ariz. 200

STATE of Arizona, Appellee, v. Charles VAUGHN, Appellant.

No. 1 CA-CR 12303.

Court of Appeals of Arizona Division 1, Department D.

Nov. 16, 1989.

As Corrected Dec. 6, 1989.

Review Denied March 6, 1990.

[163 Ariz. 201] Robert K. Corbin, Atty. Gen. by Jessica G. Funkhouser, Chief Counsel, Crim. Div. and Greg A. McCarthy, Asst. Atty. Gen., Phoenix, for appellee.

Garth Nelson, Yuma, for appellant.

OPINION

KLEINSCHMIDT, Judge.

The defendant was indicted on three counts of child molestation and two counts of furnishing obscene or harmful items to a minor. He failed to appear for his trial and was tried in absentia. A directed verdict was granted on one count of child molestation, and the jury found him guilty of two counts of child molestation and two counts of furnishing obscene or harmful items to minors. After the defendant was taken into custody, he was sentenced to presumptive consecutive terms of seventeen years on each count of child molestation and to presumptive terms of four years on each count of furnishing obscene or harmful items to a minor, the latter two counts to run concurrently with the child molestation sentences. From these convictions and sentences, he appeals.

This case was originally presented as an appeal under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). In his Anders brief, defendant's counsel raises the following arguable issues and requests us to search the record for fundamental error pursuant to A.R.S. section 13-4035:

1. The court lacked jurisdiction by reason of the fact that the offenses alleged occurred on a military reservation;

2. The court erred in denying the defendant's motion to suppress the evidence seized from his motor home;

3. The court erred in proceeding with the trial in the absence of the defendant;

4. The court erred in instructions of law and rulings on evidence during the course of the trial;

5. The defendant received ineffective assistance of counsel prior to and during the trial; and

6. The sentences imposed were excessive.

The appellant also filed a pro per supplemental brief which addressed only one issue, the question of exclusive federal jurisdiction over the Yuma Proving Ground. We ordered the state to file an answering brief. We affirm the convictions and sentences imposed.

The facts, taken in the light most favorable to sustaining the verdict, are as follows. Both the defendant and the minor victim, a six-year-old girl, lived in a housing area on the Yuma Proving Ground, a federal military installation, where the appellant was a civilian employee. The defendant showed the victim pornographic films and magazines, and he fondled her on two occasions. All of these incidents took place in the appellant's motor home.

The victim's parents suspected the defendant of molesting their daughter, and when they confronted him, he made some incriminating statements. Soon thereafter, the defendant left Arizona and went to Wisconsin. Some months later, he returned to the Yuma area where he was arrested. While the defendant was in custody, a search warrant was issued for his motor home. Pornographic films and magazines were found in the motor home, some of which were later introduced into evidence at trial.

JURISDICTION

When the issue of jurisdiction was first raised, we remanded to the trial court for an evidentiary hearing to provide the defendant an opportunity to prove the state's lack of jurisdiction. See State v. Rodriguez, 279 S.C. 106, 302 S.E.2d 666 (1983). At that hearing, the defendant was represented by counsel, but was not present in person. Defense counsel advised the court that he had no testimony to offer. The state then produced evidence to show that the Yuma Proving Ground is within the state's jurisdiction. This evidence consisted of military memoranda and correspondence which were attached to the state's memorandum of points and authorities. The prosecutor avowed that they had been received from the Office of the Command Judge Advocate. No other foundation for their admission was laid, but the defense did not object to these exhibits. The trial court ruled that the federal government had not acquired exclusive jurisdiction over the Yuma Proving Ground, so that the Generally, a state has complete jurisdiction over the lands within its exterior boundaries. State v. Manypenny, 445 F.Supp. 1123 (Ariz.1977), appeal dismissed, 608 F.2d 1197 (9th Cir.1979), reversed on other grounds, Arizona v. Manypenny, 451 U.S. 232, 101 S.Ct. 1657, 68 L.Ed.2d 58 (1981), citing United States v. McBratney, 104 U.S. 621, 26 L.Ed. 869 (1881). The burden of showing exclusive federal jurisdiction in a state court prosecution is on the defendant. State v. Dykes, 114 Ariz. 592, 562 P.2d 1090 (App.1977). The federal government can acquire exclusive jurisdiction over state land in any one of three ways: (1) by purchase of land from a state, (2) by a cession of jurisdiction to the United States by a state after statehood, or (3) by an affirmation of exclusive jurisdiction to the United States prior to a state's admission to the Union. Manypenny, 445 F.Supp. at 1125-26. We need not concern ourselves with acquisition of federal jurisdiction by purchase of the land. Most of the Yuma Proving Ground was acquired by withdrawal from public land and small areas are leased or held by easements or by license.

[163 Ariz. 203] state has the power to prosecute crimes committed there.

The United States also acquires exclusive jurisdiction over land located within the boundaries of a state to which the United States holds title where there is a cession of jurisdiction by the state and an acceptance of jurisdiction by the United States. Prior to 1940, acceptance of ceded jurisdiction was presumed. United States v. Heard, 270 F.Supp. 198, 200 (W.D.Mo.1967). In 1940, Congress amended 40 U.S.C.S. section 255, thereby requiring the United States to formally accept jurisdiction ceded to it by a state. 40 U.S.C.S. § 255 (Supp.1989); United States v. Johnson, 426 F.2d 1112 (7th Cir.1970), cert. denied, 400 U.S. 842, 91 S.Ct. 86, 27 L.Ed.2d 78 (1970). The defendant suggests that the United States gained exclusive jurisdiction over the Yuma Proving Ground when Arizona ceded jurisdiction to the United States.

Shortly after achieving statehood, Arizona enacted a cession statute. Revised Statutes of Arizona Civil Code 1913, ch. 17. ¹ Even though the defendant did not address the effect of this statute on federal jurisdiction over the Yuma Proving Ground, we will do so. In State v. Dykes, 114 Ariz. 592, 562 P.2d 1090 (App.1977), we stated:

[T]he 1913 Arizona cession statute was intended to apply only to lands which the federal government used for some specific purpose and for which the federal government derived some benefit from the exercise of exclusive jurisdiction at that time.

Id. at 597, 562 P.2d at 1095. Evidence presented to the trial court suggests that the Yuma Proving Ground was not put to any specific use by the United States until 1952 pursuant to Public Land Order 848, 17 Fed.Reg. 6099 (1952). For that reason, the United States would not have acquired exclusive jurisdiction by virtue of the 1913 cession statute.

The defendant, however, relies upon two Arizona statutes enacted in 1951, A.R.S. section 26-251 (Supp.1988) and section 26-252, which cede jurisdiction to the federal government over any public land used for military purposes. Since both of these statutes were enacted after 1940, the federal government would have been required to formally accept jurisdiction before such could have been acquired. 40 U.S.C.S. § 255. No evidence was produced at the evidentiary hearing to show that the federal government had ever formally accepted jurisdiction over the Yuma Proving Ground. Indeed, evidence was produced which indicated that inquiries made by local federal officers in the past suggesting that the federal government accept jurisdiction had been rebuffed by the Command Judge Advocate. Therefore, the federal government does not have exclusive jurisdiction Finally, the federal government can obtain exclusive jurisdiction over state land when the state affirms the United States' retention of exclusive jurisdiction at the time a state is admitted into the Union. Manypenny, 445 F.Supp. at 1125. The defendant has not claimed that the federal government gained jurisdiction over the Yuma Proving Ground by this means, but to foreclose any doubt on the issue we will address whether Arizona affirmed retention of the United States' exclusive jurisdiction over the Yuma Proving Ground. Section 20 of Arizona's Enabling Act, 36 Stat. 557, 1 A.R.S., and article XX, paragraph Fourth of the Arizona Constitution, 1 A.R.S., disclaim any claim to all land held as public land at the time of statehood. These provisions are merely a disclaimer of the state's proprietary interest, rather than the state's governmental interest, in that land. Section 20, Arizona's Enabling Act, 36 Stat. 557, 1 A.R.S.; Ariz. Const. art. XX, p 4, 1 A.R.S.; Draper v. United States, 164 U.S. 240, 17 S.Ct. 107, 41 L.Ed. 419 (1896); Dykes, 114 Ariz. at 596, 562 P.2d at 1094; Manypenny, 445 F.Supp. at 1126. Thus, Arizona did not affirm retention of the United States' exclusive jurisdiction over the Yuma Proving Ground.

[163 Ariz. 204] over the Yuma Proving Ground under A.R.S. sections 26-251 and 26-252.

MOTION TO SUPPRESS

The defendant suggests that the trial court erred in denying his motion to suppress the pornographic materials seized from his motor home. The search warrant recited the year, make and model of the vehicle as well as its last known license plate number, and the items to be seized, including pornographic materials. Although the motor home's vehicle identification number was not included in the search warrant, one of the officers obtained the number and used it at the time of the search to...