State v. Cain

RAKER, Judge. This case appears to present a cutting-edge issue, because it involves a prosecution for theft by means of a deception across state lines perpetrated partly via the Internet. But in reality, the case turns on principles developed by common-law courts long ago, in connection with business done by mail. The question presented in this case is whether a Maryland trial court has territorial jurisdiction over a prosecution for theft by deception in violation of Maryland Code (1957, 1996 Repl.Vol., 1999 Supp.) Art. 27, § 342, 1 where the application for the statement of charges states that a victim in Maryland was deceived by an accused located in Georgia, via Internet and telephone, and thereby induced to mail a check to the accused in Georgia, in exchange for goods which, when mailed from Georgia to Maryland, proved not to be as the accused represented them.

We shall answer this question in the affirmative. I. On January 21, 1999, Respondent Mary Jean Cain, a resident of Riverdale, Georgia, was charged under § 342 in the District Court of Maryland, Allegany County, with one count of theft by deception of property with a value of $300 or more. The charging document states that Debbie Ann Amyot, of Cumberland, Maryland, contacted the Cumberland Police Department after she received a shipment of Barbie dolls from Respondent. Ms. Amyot told the police investigator that she had responded to an advertisement placed on the Internet by Respondent for the sale of a “mint” collection of ninety-five Barbie dolls in their original boxes, the dolls and boxes all in “collector’s condition.” Ms. Amyot subsequently communicat ²¹⁰ ed with Respondent by e-mail and telephone calls to Respondent’s home in Riverdale, Georgia.

Ms. Amyot ultimately agreed to buy the entire doll collection for $6,140. On August 28, 1998, Ms. Amyot mailed, to Respondent’s home in Georgia, bank check number 637558768 in that amount, drawn on the First National Bank and Trust (presently known as First United National Bank and Trust), Oakland, Maryland, and made payable to Respondent. On September 9, 1998, Ms. Amyot received by mail a shipment from Respondent of thirty-six Barbie dolls in poor condition, contained in boxes in poor condition, and having “slight collector value.” Ms. Amyot contacted Respondent and requested to return the dolls. Respondent then terminated all contact -with Ms. Amyot, and Respondent’s home telephone number was disconnected.

The Cumberland Police Department contacted the police in Clayton County, Georgia, where Cain resided. The Georgia police would not investigate the matter because the investigation had been initiated in Maryland, and the check forwarded to Cain was not cashed in Clayton County. Respondent moved to dismiss the charge on the ground that the Maryland court lacked territorial jurisdiction. The District Court granted the motion.

The State appealed to the Circuit Court for Allegany County. See Maryland Code (1974, 1998 Repl.Vol., 1999 Supp.) § 12—401 of the Courts and Judicial Proceedings Article. The appeal was heard on the record. See id.; Maryland Rule 7-102.

The Circuit Court affirmed the judgment, agreeing that Maryland courts lacked territorial jurisdiction. We granted the State’s petition for writ of certiorari.

II

The State argues that the District Court had territorial jurisdiction of the prosecution. First, jurisdiction exists in Maryland where the intended result of the defendant’s actions occurs in Maryland, if the definition of the crime includes such a result. Thus, the Maryland court had jurisdiction because the intended result of Respondent’s conduct, i.e., to deprive Ms. Amyot of her property, is an essential ingredient of theft ²¹¹ by deception, and occurred in Maryland. Second, the State argues that Cain had a duty to account for the stolen property in Maryland, and that when there is such a duty, Maryland courts have territorial jurisdiction.

Respondent argues that neither of these theories applies to the facts in this case, and that because all of the conduct with which she is charged occurred while she was in Georgia, the District Court lacked jurisdiction. We reverse the judgment, but not for either of the reasons the State advances. 2 As we shall explain, the District Court’s territorial jurisdiction is founded on a simpler basis: It is open to the State to prove that the essential element of the crime — Respondent’s obtaining control of the victim’s property — occurred in Maryland, through the agency of the U.S. Postal Service. Neither the Maryland Constitution nor the Code addresses jurisdiction over the offense of theft by deception. Therefore, ²¹² we turn to the common law.

See Maryland Code (1974, 1998 Repl.Vol., 1999 Supp.) §§ 1-501 (jurisdiction of the circuit courts) and 4-201 (jurisdiction of the District Court of Maryland) of the Courts and Judicial Proceedings Article; 3 Pennington v. State, 308 Md. 727, 728-30 , 521 A.2d 1216, 1216-17 (1987). The general rule under the common law is that “a state may punish only those crimes committed within its territorial limits.” Id. at 730 , 521 A.2d at 1217 . As we explained recently in State v. Butler, 353 Md. 67 , 724 A.2d 657 (1999), the criminal courts of a state generally have territorial jurisdiction to hear prosecutions only of crimes that occurred in that state: Territorial jurisdiction describes the concept that only when an offense is committed within the boundaries of the court’s jurisdictional geographic territory, which generally is within the boundaries of the respective states, may the case be tried in that state. The roots of the territorial jurisdiction requirement lie in the Sixth Amendment....

Id. at 72-73 , 724 A.2d at 660 . “[A]n offense against the laws of the State of Maryland is punishable only when committed within its territory. A person cannot be convicted here for crimes committed in another state.” Bowen v. State, 206 Md. 368, 375 , 111 A.2d 844, 847 (1955). It is clear that under the common law, an accused’s actual presence in the state at the time the crime was commit ²¹³ ted is not necessary. “[Assuming that the facts otherwise disclose an offense committed within the jurisdiction ... the court of such state where it was committed is not deprived of jurisdiction by the mere absence of the defendant from the state at the time of its commission.” Urciolo v. State, 272 Md. 607, 631 , 325 A.2d 878, 892 (1974); 4 see also 1 Charles E. Torcia, Wharton’s Criminal Procedure § 16 (13th ed. 1989 & Supp.1999). An accused’s presence may be constructive as well as actual.

See Pennington, 308 Md. at 732 , 521 A.2d at 1218 (quoting 1 Charles E. Torcia, Wharton’s Criminal Law § 14 (14th ed.1978)); State v. Winckler, 260 N.W.2d 356, 360 (S.D.1977). Although constructive presence is a legal fiction, “it is a fiction necessary to the practical administration of justice.” Winckler, 260 N.W.2d at 360 . The Supreme Court of South Dakota observed: “There may be a constructive presence in a State, distinct from a personal presence, by which a crime may be consummated. And if it may be consummated it may be punished by an exercise of jurisdiction; that is, a person committing it may be brought to trial and condemnation.

And this must be so if we would fit the laws and their administration to the acts of men and not be led away be mere ‘bookish theorick.’ ” Hyde v. United States, 225 U.S. 347, 362-63 , 32 S.Ct. 793, 800 , 56 L.Ed. 1114 (1912). Id. at 360-61 . But when is an offense committed within the jurisdiction? “If the various elements of a given offense do not all occur ²¹⁴ within the borders of a single state, it becomes necessary to decide in which state the offense has been ‘committed.’” Pennington, 308 Md. at 730 , 521 A.2d at 1217 . It is sometimes stated that each offense has, for jurisdictional purposes, one key act or omission and that this element must have taken place in the state where the prosecution is instituted.

Professors LaFave and Scott state: At common law (that is, in the absence of a statute) jurisdiction over crimes is limited ... by the notion that each crime has only one situs (or locus), and that only the place of the situs has jurisdiction. In other words, the common law picked out one particular act (or omission) as vital for the determination of the place of commission (i.e., the situs) of each of the various crimes and give jurisdiction to that state (and only that state) where the vital act or result occurred. Generally, it may be said that the situs of a crime at common law is the place of the act (or omission) if the crime is defined only in these terms, and the place of the result if the definition of the crime includes such a result. 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 2.9(a), at 180 (1986). The question of how to determine in which state a crime has been committed has been settled in various ways by the several states, however.

Some courts have asserted that a crime may, for jurisdictional purposes, have several essential elements, and that where these occur in several states, each such state has jurisdiction. The Arizona Court of Appeals, for example, has said that it is ... generally accepted that if the requisite elements of the crime are committed in different jurisdictions, any state in which an essential part of the crime is committed, may take jurisdiction. State v. Scofield, 7 Ariz.App. 307 , 438 P.2d 776, 784 (1968). See also State v. Hilpert, 213 Neb. 564 , 330 N.W.2d 729, 736 (1983) (“[W]here the requisite elements of the crime are committed in different jurisdictions, if an essential element of the crime is committed in this state, jurisdiction to prosecute ²¹⁵ is present.”); Winckler, 260 N.W.2d at 360 (“A state can exercise jurisdiction to punish any criminal offense committed in whole or in part within that state.”).

The essential element of the crime of theft by deception, at least for jurisdictional purposes, is the accused’s obtaining control of the subject property. 5 We conclude that if the check was mailed in the State of Maryland, 6 the essential element occurred in Maryland, because Respondent obtained control of the property through the agency of the Postal Service when the complainant deposited it in the mail. Because obtaining control is the essential element of the theft by deception offense, the State will have established prima facie the necessary jurisdictional fact if it proves that the check was posted in Maryland. Section 342, the statute under which Respondent was charged, provides, in pertinent part, as follows: (b) Obtaining control by deception. — A person commits the offense of theft when he willfully or knowingly uses deception to obtain and does obtain control over the property of the owner, and; (1) Has the purpose of depriving the owner of the property; or.... In 1978, the Legislature consolidated into the single crime of theft a number of separate crimes that formerly existed, one of which was false pretenses.

See § 341. Theft ²¹⁶ by deception now covers conduct formerly amounting to false pretenses. See § 342(b); Fraidin v. State, 85 Md.App. 231, 243-44 , 583 A.2d 1065, 1071-72 (1991). Obtaining control of the property is the essential element for purposes of jurisdiction of the crime of false pretenses.

See Norris v. State, 25 Ohio St. 217 , 221 (1874); Updike v. People, 92 Colo. 125 , 18 P.2d 472 (1933); Commonwealth v. Wood, 142 Mass. 459 , 8 N.E. 432 (1886). The offender may be tried where the property was obtained. See Norris, 25 Ohio St. at 221 (citing Regina v. Stanbury, 31 L.J.M.C. 88, 5 L.T. 686, 10 W.R. 236 , 9 Cox C.C. 94, Fisher’s Digest, 169, Leigh & C. 128 (C.C.R. 1862)). There is also ample authority for the proposition that when one uses deception to obtain control of another’s property, and the other delivers the property by mail, control is obtained when the property is deposited in the mail.

See e.g., State v. Briggs, 74 Kan. 377 , 86 P. 447 (1906); Bozarth v. State, 56 Okla.Crim. 424 , 41 P.2d 924 (App.1934); Commonwealth v. Prep, 186 Pa.Super. 442 , 142 A.2d 460 (1958). See also Annotation, Where Offense of Obtaining Money by Fraud Is Deemed To Be Committed When Mail or Telegraph Is Employed, 43 A.L.R. 545 (1926). In Updike , appellant was convicted in Colorado of obtaining money by false pretenses. Updike, living in Idaho, made representations by mail to the victim Zadra, in Colorado, to the effect that a corporation managed and partly owned by him owned large quantities of sheep and hay, and that if Zadra invested money, it would be used in the business of that corporation.

In fact, that corporation had few or no assets. Zadra, deceived by these representations, sent a check for $5,000 by U.S. Mail from Colorado to Updike in Idaho. Updike negotiated the check and diverted the money to his personal use and to the use of a second company he also managed. See Updike, 18 P.2d at 473 .

The Colorado Supreme Court stated that “the crime of obtaining money by false pretenses is committed where the property is obtained by the defendant,” and that this proposition “narrows the question to a determination of where the property or thing of value was obtained.” Id. at 474. ²¹⁷ “Where, induced by false pretenses, one transmits by mail to defendant money, drafts, or other writings, such mailing is a delivery to the postmaster as the agent of the defendant, to be forwarded to him, and the offense is committed where the letter is mailed, and is indictable at such place.” Id. at 474-75. The court noted that the check was mailed in Colorado to the defendant, there delivered to the postmaster as agent of the defendant and then and there defendant obtained it. The offense was complete and the prosecution was proper in Colorado. See id. at 476.

A similar case is Wood . Wood was convicted in Massachusetts of obtaining money by false pretenses. Wood, who did business in New York, made false representations in Berlin, Massachusetts, concerning certain stock, to the victim Peters. Deceived, Peters was induced to mail a cashier’s draft for $4,612.50 from Massachusetts to Wood in New York, to purchase stock.

Wood argued that the court lacked jurisdiction because the offense was not complete in Massachusetts. See Wood, 8 N.E. at 434. The Massachusetts Supreme Judicial Court disagreed: Although the defendant received the money on the cashier’s draft in New York or in Minneapolis, it cannot be doubted that the offense charged in the indictment was accomplished and completed at Berlin when Peters, at the request of the defendant, sent him the draft, whether he sent it by hand of an agent of the defendant, or deposited it in the mail. The exceptions do not show how he sent it; but, if he sent it by a carrier or other agent of the defendant, the delivery to the agent was a delivery to the defendant.

Com. v. Taylor, 105 Mass. 172 . So, if he sent it by mail, when he deposited it in the post-office it passed out of his control into the control of the defendant to forward the letter to him. Regina v. Jones, 1 Eng. Law & Eq. 533; S.C. 4 Cox, Crim.

Cas. 198. Id. at 434-35. A number of other cases support the proposition that the defendant obtains control of property when the property is placed in the mail. See Briggs, 86 P. at 449 (holding that ²¹⁸ where defendant induced victim, by false pretenses, to mail a draft from a post office in Crawford County to defendant in Labette County, venue of the prosecution in Crawford County is proper, because “[t]he draft was obtained from [the victim] When he surrendered possession of it by placing it in the post office, addressed to appellant.

The Post Office Department is deemed to be the agent of the appellant in the same way that a common carrier would have been his agent if the draft had been given to it for delivery to the appellant.”); Bozarth, 41 P.2d at 926 (holding that the crime of obtaining money by false pretenses is completed where the property is obtained, and that where the victim is induced to deposit property in the mail to be delivered to defendant, the property is obtained by defendant at the place from which it is mailed); Prep, 142 A.2d at 463, 464 (holding that “[a] prosecution for the crime of cheating by fraudulent pretenses should be brought in the county where the offense is completed, that is, where the chattel, money, or valuable security is actually obtained by the defendant,” and that “the mailing of the checks to defendant by posting them in Dauphin County was a delivery sufficient to confer jurisdiction upon” the court in Dauphin County, although the checks were received by defendant in Schuylkill County). See also