                               IN THE
           ARIZONA COURT OF APPEALS
                           DIVISION ONE


                        JASON WAYNE LAY,
                             Petitioner,

                                  v.

              THE HONORABLE ROGER A. NELSON,
                Judge of the SUPERIOR COURT OF
               THE STATE OF ARIZONA, in and for
                      the County of YUMA,
                          Respondent Judge,

                       STATE OF ARIZONA,
                        Real Party in Interest.

                        No. 1 CA-SA 18-0114
                          FILED 1-24-2019


  Petition for Special Action from the Superior Court in Yuma County
                         No. S1400CR201701136
                 The Honorable Roger A. Nelson, Judge

           JURISDICTION ACCEPTED; RELIEF DENIED


                               COUNSEL

Torok Law Office, PLLC, Yuma
By Gregory T. Torok
Counsel for Petitioner

Yuma County Attorney's Office, Yuma
By Andrew Orozco
Counsel for Real Party in Interest
Arizona Attorney General's Office, Phoenix
By Linley Wilson
Counsel for Amicus Curiae Arizona Attorney General

Arizona Attorneys for Criminal Justice, Phoenix
By Mikel Steinfeld
Counsel for Amicus Curiae Arizona Attorneys for Criminal Justice



                                 OPINION

Presiding Judge Diane M. Johnsen delivered the opinion of the Court, in
which Judge Paul J. McMurdie and Judge David D. Weinzweig joined.


J O H N S E N, Judge:

¶1            A Yuma County justice court convicted Jason Wayne Lay of
two misdemeanors. After the superior court affirmed his convictions, Lay
petitioned for special action relief, arguing the State had not offered
evidence to prove the justice court had subject-matter jurisdiction over the
charges. We accept jurisdiction of his petition but deny relief. We agree
with Lay that Arizona Revised Statutes ("A.R.S.") § 22-301 (2019) establishes
the subject-matter jurisdiction of an Arizona justice court but conclude the
evidence at his trial was sufficient to satisfy that statute.1

             FACTS AND PROCEDURAL BACKGROUND

¶2            Lay was charged with harassment under A.R.S. § 13-
2921(A)(1) (2019) and threatening or intimidating under A.R.S. § 13-
1202(A)(1) (2019). The harassment charge was based on text messages Lay
sent a woman with whom he had been in a relationship; the threatening or
intimidating charge was based on evidence that Lay threatened to kill the
woman's current significant other.

¶3           At the close of the State's case, Lay moved for judgment of
acquittal under Arizona Rule of Criminal Procedure 20, arguing the State
had failed to offer evidence that he committed the crimes within the




1      Absent material revision after the date of an alleged offense, we cite
the current version of a statute or rule.


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                      LAY v. HON. NELSON/STATE
                          Opinion of the Court

precinct as required by A.R.S. § 22-301. The justice court denied the motion.
It then convicted Lay and sentenced him to 60 days in jail.

¶4              Lay appealed to the superior court, which affirmed his
convictions. After the superior court denied Lay's motion to reconsider, he
filed this petition for special action.

                              JURISDICTION

¶5            We exercise our discretion to accept jurisdiction of this special
action under Article 6, Section 9, of the Arizona Constitution, A.R.S. § 12-
120.21(A)(4) (2019) and Arizona Rule of Procedure for Special Actions 1(a).
Lay has no remedy by appeal, see A.R.S. § 22-375 (2019), and this case
presents a question of statutory interpretation, a question of law, which is
of statewide importance, see Ariz. R.P. Spec. Act. 1(a); State ex rel.
Montgomery v. Brain, 244 Ariz. 525, 527, ¶¶ 6-7 (App. 2018).

                                 DISCUSSION

A.     A.R.S. § 22-301 Establishes the Subject-Matter Jurisdiction of a
       Justice Court.

¶6            Section 22-301, titled "Jurisdiction of criminal actions," states
in relevant part:

       A. The justice courts shall have jurisdiction of the following
       offenses committed within their respective precincts:

       1. Misdemeanors and . . . .

       2. Felonies, but only for the purpose of commencing action
       and    conducting     proceedings    through  preliminary
       examinations . . . .

                                 *     *      *

       C. For the purposes of subsection A . . . of this section, an
       offense is committed within the precinct of a justice court if
       conduct constituting any element of the offense or a result of
       such conduct occurs either:

       1. Within the precinct.

       2. Within [certain county parks].



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                       LAY v. HON. NELSON/STATE
                           Opinion of the Court

¶7            Lay was convicted in the justice court for Precinct One in
Yuma. He argues that court lacked subject-matter jurisdiction absent
evidence that the offenses were committed "within the precinct" under § 22-
301(C).

¶8             We determine subject-matter jurisdiction de novo. See State v.
Flores, 218 Ariz. 407, 410, ¶ 6 (App. 2008). In interpreting a statute, we first
look to the measure's words, giving them their ordinary meaning unless the
legislature has provided a definition. See State v. Pledger, 236 Ariz. 469, 471,
¶ 8 (App. 2015). Additionally, when possible, "[w]e . . . construe statutes to
give effect to an entire statutory scheme." Backus v. State, 220 Ariz. 101, 104,
¶ 10 (2009).

¶9            Without question, § 22-301 establishes the subject-matter
jurisdiction of a justice court: "The justice courts shall have jurisdiction of
the following offenses committed within their respective precincts." A.R.S.
§ 22-301(A). In subparts (A)(1) and (2), the statute sets out the matters
(misdemeanors and felony preliminary proceedings) over which a justice
court "shall have jurisdiction" when an offense is "committed within [the]
respective precinct[]" of the court. And subpart (C) defines what it means
to be "committed within" a precinct. As relevant here, "an offense is
committed within the precinct of a justice court if conduct constituting any
element of the offense or a result of such conduct occurs . . . within the
precinct."

¶10            By mandating that a justice court "shall have jurisdiction" of
specific offenses when those offenses are "committed within" the precinct,
the statute circumscribes the power of a justice court to exercise its
jurisdiction in criminal matters. See Bruce v. State, 126 Ariz. 271, 272 (1980)
(in dictum, characterizing § 22-301 as establishing the jurisdiction of justice
court); State v. Shearer, 27 Ariz. 311, 314-15 (1925) (provision in 1913
territorial code referring to "offenses . . . within their respective precincts"
determined justice-court jurisdiction); City Court of City of Phoenix v. State ex
rel. Baumert, 115 Ariz. 351, 354 (App. 1977) (§ 22-301 "is a special statute,
referring specifically to the jurisdiction of justice courts").

¶11           Although case authority interpreting § 22-301 is scant, the
legislature used similar language in A.R.S. § 13-108 (2019) to describe the
jurisdiction of the Arizona court system to try criminal offenses. That
statute provides:




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                       LAY v. HON. NELSON/STATE
                           Opinion of the Court

       A. This state has jurisdiction over an offense that a person
       commits by his own conduct or the conduct of another for
       which such person is legally accountable if:

       1. Conduct constituting any element of the offense or a result
       of such conduct occurs within this state.

¶12           The cases uniformly hold that § 13-108(A)(1) defines the
subject-matter jurisdiction of the Arizona judicial system to try a criminal
offense. See, e.g., State v. Willoughby, 181 Ariz. 530, 536-40 (1995)
(premeditation in Arizona of homicide committed in Mexico established
subject-matter jurisdiction in Arizona because premeditation is element of
first-degree murder); State v. Yegan, 223 Ariz. 213, 215-16, ¶¶ 6-10 (App.
2009) (§ 13-108 establishes subject-matter jurisdiction of superior court over
a criminal offense); Flores, 218 Ariz. at 410, ¶ 9 (same); State v. Jackson, 208
Ariz. 56, 62, ¶ 21 (App. 2004) ("territorial jurisdiction issue addressed in
Willoughby" implicated subject-matter jurisdiction of the court).2 Consistent
with our interpretation of § 22-301, these cases hold that, as relevant here,
the Arizona court system has subject-matter jurisdiction to try criminal
cases only when "[c]onduct constituting any element of the offense or a
result of such conduct occurs within this state." A.R.S. § 13-108(A)(1).3 We
have no reason to conclude that the language describing the "jurisdiction"

2        Under Article 6, section 14(4) of the Arizona Constitution, "the
superior court" has original jurisdiction of "[c]riminal cases amounting to
felony, and cases of misdemeanor not otherwise provided for by law."
Although A.R.S. § 22-301 defines the subject-matter jurisdiction of a
particular justice court precinct, the law of subject-matter jurisdiction treats
all of Arizona's superior courts as a single entity. That is because "[t]he
superior courts . . . shall constitute a single court, composed of all the duly
elected or appointed judges in each of the counties of the state." Ariz. Const.
art. 6, § 13; see State v. Flemming, 184 Ariz. 110, 114 (1995) (in general, "there
is only one superior court in the state of Arizona"); Marvin Johnson, P.C. v.
Myers, 184 Ariz. 98, 100 (1995) ("The single trial court of general jurisdiction
is the superior court."). Once Arizona has acquired subject-matter
jurisdiction over a felony offense pursuant to § 13-108, venue provisions
determine where the offense will be tried. See A.R.S. § 13-109 (2019);
Masengill v. Superior Court, 3 Ariz. App. 588, 591 (1966).

3       Section 13-108 has other provisions that apply, inter alia, to attempt,
solicitation or conspiracy offenses, or when "[t]he offense is a violation of a
statute of this state that prohibits conduct outside the state." A.R.S. § 13-
108(A).


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                       LAY v. HON. NELSON/STATE
                           Opinion of the Court

of the justice court in § 22-301 does not likewise define that court's subject-
matter jurisdiction. See Bruce, 126 Ariz. at 272; Shearer, 27 Ariz. at 314-15.

¶13           In an amicus brief submitted at this court's invitation, the
Arizona Attorney General asserts that § 22-301(A) establishes the subject-
matter jurisdiction of a justice court only insofar as the statute identifies
categories of matters (misdemeanor prosecutions and felony preliminary
proceedings) that a justice court may hear. The Attorney General argues
that subpart (C) of the statute, defining when "an offense is committed
within the precinct of a justice court," does not concern subject-matter
jurisdiction but instead establishes the "territorial jurisdiction" of a justice
court.

¶14            The Attorney General argues § 22-301 does two distinct
things: (1) It establishes what offenses fall within the subject-matter
jurisdiction of the justice court, and (2) separately, it establishes in which
precincts those offenses may be tried. But the statute is not written that
way. Subpart (A), which the Attorney General concedes defines the court's
subject-matter jurisdiction, states that "justice courts shall have jurisdiction
of the following offenses committed within their respective precincts."
(Emphasis added). Subpart (C), which states what it means to be
"committed within the precinct," therefore is not distinct from subpart (A)'s
grant of subject-matter jurisdiction but instead is a critical component of
that grant. Read together, as relevant here, the statute provides that a
justice court has jurisdiction over misdemeanors and felony preliminary
proceedings only when the "offense[] [is] committed within [its] respective
precinct[]," meaning when "conduct constituting any element of the offense
or a result of such conduct occurs . . . [w]ithin the precinct." A.R.S. § 22-
301(A), (C)(1).

¶15            The Attorney General relies on Womack v. State, 7 Ariz. App.
455 (1968), in which the defendant was charged by complaint filed in justice
court, then bound over to the superior court. Id. There, the State filed an
information, which it later amended when the defendant agreed to plead
guilty to burglary. Id. at 456. On appeal, the defendant argued for the first
time that the justice court in which the complaint had been filed lacked
subject-matter jurisdiction under § 22-301 because the offense was
committed outside the precinct. 7 Ariz. App. at 455-56. In a two-page
opinion, this court affirmed the conviction, holding without explanation
that the defendant "waived defects in the preliminary proceedings" when
he pled guilty. Id. at 456. See generally State v. White, 102 Ariz. 18, 20 (1967)
(Plea in superior court waived any error in preliminary matters:
"Jurisdiction to try all felonies is conferred on the Superior Court . . . . If the


                                        6
                      LAY v. HON. NELSON/STATE
                          Opinion of the Court

proper preliminary proceedings, i.e., filing of a complaint with a magistrate
. . . were not carried out then the defendant should have moved to quash
the information.").

¶16           The Attorney General argues that Womack, which did not
mention jurisdiction, would not have applied waiver if the defendant's
assertion of a defect in the justice court had implicated subject-matter
jurisdiction. We do not draw that conclusion from the court's scant
discussion of waiver in that case. The Attorney General's argument fails to
acknowledge that a felony prosecution need not begin in justice court but
may be undertaken by the filing of a complaint directly in superior court,
where a defendant may enforce his right to a preliminary hearing. See Ariz.
R. Crim. P. 2.2(b) (complaint may be filed in superior court); 2.4, 3.1(a)(3).
There is no suggestion in Womack that the superior court in which the
information was filed (and which accepted the defendant's guilty plea)
lacked subject-matter jurisdiction over the offense.

¶17            Finally, the Attorney General argues that § 22-301 does not
limit the subject-matter jurisdiction of the justice court because A.R.S. §§ 22-
302 (2019) and -303 (2019) allow transfer of criminal offenses from one
justice court precinct to another for trial. It is true that, under certain
circumstances, § 22-302 allows a case to be commenced in another precinct:

       If the justice of the peace of the precinct in which the crime is
       alleged to have been committed is absent therefrom, or for
       any reason is unable to act, the prosecution may be
       commenced in any precinct within the county designated by
       the justice of the peace or in the absence of the justice of the
       peace in any precinct designated by the presiding judge of the
       superior court.

A.R.S. § 22-302. And under § 22-303, once a case is properly filed in a justice
court, "venue may be changed as provided by law" upon a showing of
prejudice "in the precinct where the action is pending," for the convenience
of the witnesses or for "other good and sufficient cause."

¶18           The Attorney General argues that these provisions must mean
that the subject-matter jurisdiction of a justice court is not limited under §
22-301 to offenses committed within the precinct. To be sure, because
subject-matter jurisdiction "refers to a court's statutory or constitutional
power to hear and determine a particular type of case," it can neither be
created by consent nor waived. State v. Maldonado, 223 Ariz. 309, 311, ¶ 14
(2010); see Jasper v. Batt, 76 Ariz. 328, 332 (1953) ("[P]arties cannot by



                                       7
                      LAY v. HON. NELSON/STATE
                          Opinion of the Court

stipulation or otherwise create jurisdiction and thereby confer upon the
court a power not given by law."). Nevertheless, §§ 22-302 and -303 do not
undermine the significance of the language of § 22-301(A) that limits the
subject-matter jurisdiction of a justice court to "offenses committed within
[its] respective precinct."

¶19            The validity and construction of the two venue provisions are
not before us. We note, however, that § 22-302 could be read as a separate
grant of subject-matter jurisdiction when a justice of the peace who is
empowered to hear a matter under § 22-301 is "absent" or "unable to act."
See Ariz. Const. art. 6, § 32(B)-(C) (jurisdiction of justice courts "shall be as
provided by law"). In State v. Melvin, 140 Ariz. 402 (1984), for example, our
supreme court held that, notwithstanding § 22-301, the legislature had the
power under the Arizona Constitution to allow justice courts to decide
motions to controvert search warrants in felony investigations. 140 Ariz. at
404-05; see A.R.S. § 13-3922 (2019) ("magistrate" may rule on motions to
controvert warrant). Further, § 22-303 might be construed to allow transfer
of a criminal offense from one precinct with subject-matter jurisdiction
under § 22-301 to another precinct with subject-matter jurisdiction under §
22-301. Nothing in the two statutes, however, requires or allows us to
disregard the plain language in § 22-301(A) that limits justice courts'
jurisdiction in criminal matters to "offenses committed within their
respective precincts." See Bruce, 126 Ariz. at 272; Shearer, 27 Ariz. at 314-15;
see also Willoughby, 181 Ariz. at 536-40; Yegan, 223 Ariz. at 215-16, ¶¶ 6-10;
Flores, 218 Ariz. at 410, ¶ 9.

B.     A "Result" of the Offenses Occurred in the Justice Court's Precinct.

¶20            To determine whether the justice court had subject-matter
jurisdiction to try Lay on the two misdemeanor charges, we turn to whether
"conduct constituting any element of the offense[s] or a result of such
conduct occur[ed]" within Precinct One of Yuma County. See A.R.S. § 22-
301(C). Here, as in all criminal prosecutions, the State had the burden of
proving jurisdictional facts beyond a reasonable doubt. See Willoughby, 181
Ariz. at 538.

¶21          The State charged Lay with harassment under § 13-
2921(A)(1), which provides that:

       A person commits harassment if, with intent to harass or with
       knowledge that the person is harassing another person, the
       person:




                                       8
                      LAY v. HON. NELSON/STATE
                          Opinion of the Court

       1. Anonymously or otherwise contacts, communicates or
       causes a communication with another person by verbal,
       electronic, mechanical, telegraphic, telephonic or written
       means in a manner that harasses.

¶22           The female victim testified that after she asked Lay to stop
contacting her, someone she believed to be Lay sent her dozens of text
messages that upset her. Lay argues, and we agree, that, notwithstanding
the victim's testimony, there was no evidence that "conduct causing any
element of the offense" occurred within Precinct One. Although the female
victim did not work within the precinct, the court heard evidence that she
lived with the male victim within the precinct. That being said, the State
offered no evidence of the location from which Lay sent the harassing text
messages, nor did the court hear evidence of the location of the female
victim when she received them.

¶23           The same was true of the evidence offered to prove Lay
threatened or intimidated the male victim. Under § 13-1202(A)(1), "[a]
person commits threatening or intimidating if the person threatens or
intimidates by word or conduct . . . [t]o cause physical injury to another
person or serious damage to the property of another." The female victim
testified Lay called her on her cell phone while she was at work and told
her he would kill the male victim. The male victim testified he was present
and overheard the threat when it was made. As noted, the victims were not
within Precinct One when they heard Lay's telephone threat, and the State
offered no evidence of where Lay was when he made the call.

¶24           Without evidence that "conduct constituting any element" of
either offense occurred in the precinct, jurisdiction turned on whether "a
result of such conduct" occurred in the precinct. See A.R.S. § 22-301(C). In
interpreting the same language in § 13-108, we have held that the "result"
of criminal conduct occurs within a jurisdiction when the crime has and is
intended to have a "substantial" or "direct" effect within the jurisdiction. See
Flores, 218 Ariz. at 414, ¶¶ 17, 20; Miller, 157 Ariz. at 130-34.

¶25            In Flores, we held Arizona had subject-matter jurisdiction
over the prosecution of a man charged with solicitation to commit human
smuggling because the purpose and the result of the crime (which was
committed in Mexico) was the defendant's own transport into Arizona. 218
Ariz. at 416, ¶ 25. We cautioned in that case, however, that jurisdiction is
not created wherever a "result" or "detrimental effect" occurs; instead, "the
adverse consequence must be part of the design of the actor." 218 Ariz. at
415, ¶ 20. In Miller, the defendant became acquainted with a man and a


                                       9
                     LAY v. HON. NELSON/STATE
                         Opinion of the Court

woman in Colorado who had stolen 11 diamond rings from a Flagstaff
store. 157 Ariz. at 130. The defendant agreed to help the pair dispose of the
rings and they gave him two of them in return. Id. After the defendant was
arrested, extradited to Arizona and charged with theft, he moved to dismiss
the charge for lack of jurisdiction. Id. We affirmed the superior court's
order granting the motion. Id. Construing § 13-108, we reasoned that the
defendant's acts "had, at most, only an insubstantial and indirect effect in
Arizona" because the harm to the victim – the deprivation of the rings –
"had already occurred before" the defendant became involved. Id. at 133.

¶26            Most recently, we addressed criminal subject-matter
jurisdiction in Yegan, where the defendant was a California man who was
convicted of luring a minor for sexual exploitation after he developed an
online relationship with someone he thought was a 14-year-old Phoenix
girl. 223 Ariz. at 214-15, ¶¶ 1-4. We held the Arizona court had subject-
matter jurisdiction over the prosecution; even though the defendant's
crimes "were technically completed while he was still in California, the
intended results and consequences of his Internet communications were to
participate in prohibited sexual activities in Arizona with a minor." Id. at
217, ¶ 13.

¶27            Applying those principles here, we conclude the justice court
had subject-matter jurisdiction under § 22-301 to try both charges because
the results of the two crimes occurred at the victims' residence within the
precinct.

¶28             Under § 13-2921(E), harassment occurs when the defendant's
"conduct . . . seriously alarms, annoys or harasses the person." In multiple
texts to the female victim, Lay told her he would kill her current partner
and threatened to circulate nude photos of her and to go to her work or
home and destroy her belongings. The State offered evidence Lay not only
knew where the female victim was living, but that the purpose of his texts
was, at least in part, to coerce her to move out of the home she shared with
her partner and return to Lay. This evidence plainly showed Lay intended
to and did alarm or annoy the victim at her home, which was located within
the precinct. See Yegan, 223 Ariz. at 217, ¶ 13 ("intended results and
consequences" of criminal acts were to cause harm within the jurisdiction).

¶29           As for Lay's other conviction, after they heard the threat, the
victims called police, who told them to go home and call again from there.
The crime of threatening or intimidating does not require proof of the
mental state of the intended victim. See In re Ryan A., 202 Ariz. 19, 23, ¶¶
13-14 (App. 2002). Nevertheless, a threat made in violation of § 13-1202


                                     10
                      LAY v. HON. NELSON/STATE
                          Opinion of the Court

naturally may cause the victim fear or apprehension of physical harm or
damage to property to be inflicted at some future time. The male victim
heard Lay’s threat, took it seriously, and immediately drove home at the
direction of law enforcement. The justice court reasonably could have
inferred his apprehension did not disappear before he reached home,
where he met with police to describe the alarming incident in greater detail.

¶30           Lay and amicus Arizona Attorneys for Criminal Justice argue
the court's subject-matter jurisdiction over the two offenses should not
extend to any precinct into which a victim might travel while he or she feels
annoyed or alarmed by a harassing text or a threatening call.
Notwithstanding their contention that a victim cannot create jurisdiction by
moving from one precinct to another, here, the two victims' retreat to their
home was an entirely logical and expected result of Lay's crimes. Given
that the victims naturally returned to their home in Precinct One after
receiving the texts and hearing the threat, we need not determine the outer
boundaries of a justice court's jurisdiction under § 22-301.

¶31           Accordingly, we conclude Lay's criminal offenses caused
intended results and "substantial effects" within the justice court's precinct.
Just as in Yegan and Flores, where the defendants committed crimes
intending to cause effects in Arizona, Lay's criminal acts were designed to
cause fear, anxiety and other emotional upset in the victims. Given the
nature of the harassing texts and the death threat, the victims felt those
harms most particularly in their home, which was located within the
precinct in which the charges were tried.

                               CONCLUSION

¶32           For the above reasons, we accept jurisdiction of the petition
for special action but deny relief because the justice court had subject-
matter jurisdiction over the charged offenses.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




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