Wheat v. State

• Decision Date: 27 March 1987
• Docket Number: No. A-1562,A-1562
• Citation: Wheat v. State, 734 P.2d 1007 (Alaska App. 1987)
• Parties: Scot L. WHEAT, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

Page 1007

734 P.2d 1007

55 USLW 2614

Scot L. WHEAT, Appellant, v. STATE of Alaska, Appellee.

No. A-1562.

Court of Appeals of Alaska.

March 27, 1987.

Marcia E. Holland, Asst. Public Defender, Fairbanks, and Dana Fabe, Public Defender, Anchorage, for appellant.

Cynthia M. Hora, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Harold M. Brown, Atty. Gen., Juneau, for appellee.

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

OPINION

BRYNER, Chief Judge.

This case raises a question concerning the extent to which Alaska's criminal laws may be applied to conduct occurring outside the state's territorial limits. The precise issue is whether Alaska is vested with authority to convict an individual for the crime of custodial interference when all the acts constituting the offense were committed outside of the state. We conclude that the state has such authority.

Scot L. Wheat and Rebecca Carroll were married in the 1970's; their only child, Crystal, was born in 1977. Wheat and Carroll eventually obtained a divorce in Alaska. A decree entered by stipulation in 1983 awarded primary custody of Crystal to Carroll, with summer visitation to Wheat. In June of 1985, Crystal traveled from her mother's home in Fairbanks to spend the summer with her father in Arizona. When Wheat failed to return Crystal to Alaska as scheduled on August 9, 1985, Carroll initiated efforts to locate the child and her father. A charge of custodial interference in the first degree was filed against Wheat in Fairbanks on September 13, 1985. In mid-October, after a search lasting approximately two months, Wheat was located and returned Crystal to Alaska. Wheat eventually entered a plea of no contest to a charge of custodial interference in the second degree. The basis of the charge was Wheat's conduct in keeping Crystal in Arizona, away from Carroll, Crystal's lawful custodian. See AS 11.41.330(a). In entering his plea of no contest to the charge, Wheat reserved the right to argue on appeal that the state lacked jurisdiction over the offense because it was committed outside Alaska's territorial limits. ¹

Wheat's first contention on appeal is that his conviction is precluded by the Sixth Amendment to the United States Constitution, which guarantees to the accused in a criminal prosecution the right to a trial by a "jury of the state and district wherein the crime shall have been committed."

While early state court decisions may well have interpreted this provision to require a strict territorial approach to criminal jurisdiction--that is, an approach basing jurisdiction solely on the place where the alleged criminal acts occurred--this view was long ago rejected by the United States Supreme Court:

The petitioner relies on those provisions of the Constitution of the United States which declare that in all criminal prosecutions the accused shall have the right to be tried by an impartial jury of the State and District wherein the crime shall have been committed. Art. 3, Sect. 2; Amendments, Art. 6.

But the right thereby secured is not a right to be tried in the district where the accused resides, or even in the district in which he is personally at the time of committing the crime, but in the district "wherein the crime shall have been committed."

In re Palliser, 136 U.S. 257, 265, 10 S.Ct. 1034, 1036, 34 L.Ed. 514 (1890). Accord, Burton v. United States, 202 U.S. 344, 387, 26 S.Ct. 688, 701, 50 L.Ed. 1057 (1906).

The Supreme Court has also made it clear that, for Sixth Amendment purposes, a crime may be "committed" not only where the acts constituting the offense are committed, but also where the harm occasioned by those acts occurs:

Acts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a State in punishing the cause of the harm as if he [the accused] had been present at the effect, if the State should succeed in getting him within its power.

Strassheim v. Daily, 221 U.S. 280, 285, 31 S.Ct. 558, 560, 55 L.Ed. 735 (1911) (citations omitted).

The issue is now well-settled in the modern view that states may rely, without constitutional impediment, on a number of non-territorial grounds as a basis for asserting criminal jurisdiction over acts occurring outside their borders. See Perkins & Boyce, Criminal Law at 38-45 (3rd ed. 1982); 1 C. Torcia, Wharton's Criminal Law, § 14 (12th ed. 1974). See generally Model Penal Code § 1.03 and commentary at 33-65 (1985); George, Extraterritorial Application of Penal Legislation, 64 Mich.L.Rev. 609 (1966). We find no merit to Wheat's constitutional claim.

The second argument advanced by Wheat presents a closer issue. Wheat contends that Alaska law forbids the extraterritorial application of its criminal statutes. Criminal jurisdiction in Alaska is governed by AS 12.05.010, which provides:

Crime commenced outside state but consummated inside. When the commission of a crime commenced outside the state is consummated inside the state, the defendant is liable to punishment in this state even though out of the state at the time of the commission of the crime charged, if the defendant consummated the crime through the intervention of an innocent or guilty agent, or by other means proceeding directly from the defendant.

Wheat reads this provision to be strictly territorial, requiring the commission of a criminal act within the confines of the state. Because the conduct for which he was convicted--unlawfully keeping his daughter in Arizona, away from the lawful custody of her mother in Alaska--occurred entirely outside the state, Wheat argues that his offense was not "committed" in Alaska and that jurisdiction never attached under AS 12.05.010.

We disagree with Wheat's interpretation of this statute. Although AS 12.05.010 is primarily territorial in its approach to criminal jurisdiction, its terms are broader than Wheat suggests. The plain language of the statute permits the assertion of jurisdiction over crimes "consummated inside the state." Wheat equates the word "consummate" with the commission of some criminal act--with some element of the requisite actus reus of the offense. In our view, however, the word "consummate" requires a broader reading. In its common meaning, consummation denotes completion. In many instances, of course, a crime is completed upon commission of the last element of the required actus reus. Where, however, a statute, in addition to prohibiting conduct, includes within its definition of the offense a specific result, then the crime is not completed until that result occurs. And if the prohibited result occurs in a place other than the conduct which occasioned it, the location of the result may fairly be deemed the place where the crime is "consummated."

Our commonsense interpretation of the word "consummate," comports with the meaning ordinarily ascribed to it in statutes dealing with criminal jurisdiction. Thus, in discussing various state statutory provisions that expand upon the strict territorial approach to criminal jurisdiction, one commentator has noted:

Some states have tried to reach interstate or international criminal transactions by special statutes. One type of statute penalizes persons who commence the commission of a crime outside the forum state but bring about its consummation within that state through either their own acts or the acts of an accomplice or innocent agent. On occasion, the same result is reached even without a special statute. The concept of consummation is such, however, that the impact of the criminal activity done elsewhere on some interest which the forum state desires to protect must be quite apparent. Indirect economic loss may not be enough.

George, supra, at 624 (footnotes omitted).

Our interpretation of AS 12.05.010 further comports with the view of that provision taken by the commentators to the Model Penal Code. The Model Penal Code's commentary has specifically included the Alaska jurisdictional statute in its list of state statutes that have enlarged upon the strict territorial theory by making the location of a proscribed result a basis for the assertion of criminal jurisdiction. See Model Penal Code commentary § 1.03 at 40 n. 11.

Notably, our interpretation of AS 12.05.010 is also compatible with the substance of the Model Penal Code's approach to territorial applicability of criminal statutes. Model Penal Code § 1.03(1) provides, in relevant part:

Territorial Applicability.

(1) Except as otherwise provided in this Section, a person may be convicted under the law of this State of an offense committed by his own conduct or the conduct of another for which he is legally accountable if:

(a) either the conduct that is an element of the offense or the result that is such an element occurs within this State.... ²

The provisions of section 1.03(1)(a) are virtually identical in scope to our reading of AS 12.05.010. We conclude, then, that, under AS 12.05.010, the commission of a crime is consummated in Alaska when the crime is defined to require a result as a necessary element and when that result occurs inside the state.

It remains to be considered whether, given our interpretation of AS 12.05.010, Wheat's offense was consummated in Alaska. AS 11.41.330(a) provides:

Custodial interference in the second degree. (a) A person commits the crime of custodial interference in the second degree if, being a relative of a child under 18 years of age or a relative of an incompetent person and knowing that the person has no legal right to do so, the person takes, entices, or keeps that child or incompetent person from a lawful custodian with intent to hold the child or incompetent person for a protracted period.

(b) Custodial interference in the second degree is a class A misdemeanor.

As previously noted, Wheat was specifically convicted under the provision of this statute that prohibits "keeping" a child from the lawful custody of another.

It is...