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Court of Appeals rejects challenge to factual basis for territorial jurisdiction

State v. Erik M. Smith, 2016AP2453-CR, District 3, 2/13/18 (not recommended for publication); case activity (including briefs)

The body of Eric Volp, a resident of Michigan when he disappeared, was found in a creek in Marinette County. After a long investigation Smith was eventually charged in Marinette County with killing Volp by running over him with his car and then hiding his corpse and he eventually pleaded guilty to most of the charges. (¶¶2-9). But as the criminal complaint itself acknowledged (¶7), the investigation never resolved whether Volp was killed in Marinette County or in Michigan. Despite that uncertainty the court of appeals holds there was sufficient factual basis to establish Wisconsin had territorial jurisdiction.

Volp lived in Iron Mountain, Michigan, just across the state line from Marinette County, and he was last seen in a bar in that town with Smith. The investigation revealed Volp asked Smith for a ride home, that Smith said he had to drop off other friends first, and that Smith hit Volp while Volp was walking on the street, presumably headed home. (¶¶2, 4, 6-7). Smith argues that the reasonable inferences from this and other information in the criminal complaint don’t support a reasonable inference that Volp was killed in Wisconsin, but suggest he was hit in Michigan; therefore none of the “constituent elements” of the homicide-related charges occurred in Wisconsin, § 939.03(1)(a), and Wisconsin lacked territorial jurisdiction, an essential requisite of a criminal prosecution, Hotzel v. Simmons, 258 Wis. 234, 240, 45 N.W.2d 683 (1951).

Citing State v. Thomas, 2000 WI 13, ¶18, 232 Wis. 2d 714, 605 N.W.2d 836, the court of appeals says it can look beyond the facts in the criminal complaint to find a factual basis. (¶¶21-22). Analyzing the “totality of the circumstances” here, the court finds a factual basis for inferring Volp was killed in Wisconsin. First, the complaint specifically alleged the crimes occurred in Wisconsin, and Smith pleaded guilty to those charges. (¶¶23-25).

This reasoning seems to say that the mere fact the complaint expressly alleged the offenses occurred in Wisconsin and that Smith pled to those allegations is enough to establish a factual basis. That can’t be right. If the language of each count said the crime occurred in Wisconsin but the probable cause section clearly described only acts occurring in Michigan, the language of the specific charge couldn’t override the facts actually alleged in support of the charge.

Further, this reasoning is at odds with another part of the decision. The state argued Smith waived his right to challenge or should be estopped from challenging territorial jurisdiction by virtue of his guilty plea, but the court notes that it’s unsettled whether territorial jurisdiction can be waived (and if so, how), State v. Randle, 2002 WI App 116, ¶13, 252 Wis. 2d 743, 647 N.W.2d 324, and says it is not addressing the question. (¶15). Relying solely on the formal language of the charges to which Smith pled looks like waiver by another name.

Second, even if only the probable cause section of the complaint is considered, the court concludes there’s sufficient factual basis for territorial jurisdiction:

¶27     It is undisputed Volp was killed in either Wisconsin or Michigan, with either being a plausible situs for the crimes. It is also undisputed that, during the night in question, Volp and Smith were in Michigan but within only a few miles of the Wisconsin border. Also, based on some of the factual allegations, there is at least one reasonable inference that Smith drove Volp in his vehicle for at least some distance before the time they argued and Smith eventually drove over Volp. Given their original proximity to Wisconsin and such driving having occurred, it is a reasonable inference that the acts comprising the murder occurred in Wisconsin, even if it is not the most reasonable inference under these facts. See [State v.] Manthey, 169 Wis. 2d [673,] 688-89[, 487 N.W.2d 44 (Ct. App. 1992)] (“Where reasonable inferences may be drawn establishing probable cause and equally reasonable inferences may be drawn to the contrary, the criminal complaint is sufficient.”).

¶28     Moreover, the discovery of Volp’s body in Wisconsin provides a reasonable basis for an inference that he was killed within this state. Cf. Wis. Stat. § 971.19(5) (setting venue in the county where a body was found if neither the location of the death nor the location of the act causing death can be determined)…. Smith responds that such an inference is unreasonable because the facts alleged suggest Volp’s body was moved to KC Creek following his death. This argument simply begs the question—from where was Volp’s body moved, somewhere in Wisconsin or somewhere in Michigan? Where there are no facts clearly showing the death, or acts producing the death, occurred in another state, the body-location inference applies with sufficient force even when there was a subsequent attempt to move the body.

Plausible as these inferences might be, they don’t seem equally reasonable, in the words of Manthey, to the inference a Michigan resident walking home was hit and run over in Michigan rather than driven “some distance” (3.5 miles, according to Google Maps (¶3 n.1)) to Wisconsin first.

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