State v. Shon D. Brown, 2003 WI App 34, PFR filed 2/3/03
For Brown: Robert T. Ruth
Issue: Whether defendant was entitled to an instruction on territorial jurisdiction, § 939.03, where the offense was partially committed out of the state.
¶23. The question of whether or when a jury must be instructed on the State’s burden to establish its territorial jurisdiction over a defendant for charged offenses appears to be one of first impression in Wisconsin. See Wis JI-Criminal 268. We conclude that a jury instruction on territorial jurisdiction is required only when a genuine dispute exists regarding the facts necessary to establish Wisconsin’s territorial jurisdiction over a charged crime. Because no such dispute existed in this case, the trial court did not err in failing to instruct the jury on the jurisdictional issue….¶25. There is no dispute that the State is obligated in all prosecutions to establish its territorial jurisdiction over a defendant for charged crimes. See Hotzel v. Simmons, 258 Wis. 234, 240, 45 N.W. 2d 683 (1951) (“It is elementary that a court may act only upon crimes committed within the territorial jurisdiction of the sovereignty seeking to try the offense.”). The question is whether the determination that territorial jurisdiction over a defendant for charged crimes exists in Wisconsin is to be made by the court or a jury. We are satisfied that the proper answer to this question is that it depends on the circumstances in a given case. In its “Law Note” on territorial jurisdiction, the Criminal Jury Instruction Committee states its conclusion that if the jurisdiction issue depends upon contested issues of fact, those issues are for the jury to determine, using the beyond a reasonable doubt standard. If the charging document does not properly allege that the crime was committed within the territorial jurisdiction of the state of Wisconsin, the trial court should grant a motion to dismiss. If there is a dispute about jurisdiction that presents a purely legal question, that is, whether the law confers jurisdiction over [a defendant for a given crime based on] an undisputed factual situation, that question should be decided by the court. But if the charging document sufficiently alleges facts in support of jurisdiction and there is a dispute about those facts, the issue will be for the jury to decide. Wis JI-Criminal 268. …
¶30. We conclude that it is not necessary for us to decide in this case whether something less than a “full element” of a crime may be a “constituent element” of the crime for purposes of Wis. Stat. § 939.03(1)(b), or if the statute requires that a “full element” take place within Wisconsin’s borders. Rather, we conclude that the State is on firmer ground in claiming that Wisconsin’s territorial jurisdiction over Brown’s crimes was beyond factual dispute because his out-of-state acts were done “with intent that [they] cause in this state a consequence set forth in a section defining a crime.” Wis. Stat. 939.03(1)(c).
Analogy is made to State v. Inglin, 224 Wis. 2d 764, 592 N.W.2d 666 (Ct. App. 1999) (interference with child custody, where child’s concealment took place out of state). Brown’s crimes — operating w/o owner’s consent and theft — were “intended to cause criminally proscribed consequences in Wisconsin.” However, Brown had permission to take the truck out of state, which the court finesses with something of a non-sequitur: “At whatever point Brown elected to depart from that mission, his operation became nonconsensual….” (Emphasis supplied.) But the problem is that there was a dispute on that very point: Brown maintained that he abandoned the truck, and it’s a bit hard to see how abandonment can be equated with operation; Brown’s defense, indeed, was that he stopped operating the vehicle. So, there would seem to be a genuine question about just where (and how) the crime was committed. The court says that there’s no factual dispute that Brown intended “criminally proscribed consequences in Wisconsin.” However, that characterization is defensible only because the court upheld exclusion of his proffered testimony denying intent, see ¶¶16-20; very convenient.