MAINE SUPREME JUDICIAL COURT                                                  Reporter of Decisions
Decision: 2020 ME 103
Docket:   Yor-19-280
Argued:   May 11, 2020
Decided:  August 11, 2020

Panel:       MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ., and HJELM, A.R.J.
Majority:    MEAD, GORMAN, and HUMPHREY, JJ., and HJELM, A.R.J.
Dissent:     HORTON, JABAR, and CONNORS, JJ.



                                      STATE OF MAINE

                                                v.

                                   EMANUEL J. SLOBODA


GORMAN, J.

       [¶1] Emanuel J. Sloboda appeals from a judgment of conviction for

violating a condition of release (Class C), 15 M.R.S. § 1092(1)(B) (2020),

entered by the trial court (York County, Douglas, J.) after a jury-waived trial.

Sloboda contends that the court lacked subject matter jurisdiction over his

prosecution because the violation at issue occurred in New Hampshire.1 We

agree, vacate the conviction, and remand for dismissal of the indictment.




   1Briefs of amici curiae were submitted by the Office of the Maine Attorney General; AEquitas; and
Lawrence C. Winger, Esq.
2

                                       I. BACKGROUND

        [¶2] In 2019, Sloboda was indicted for violating a condition of release

(Class C), 15 M.R.S. § 1092(1)(B), to which he pleaded not guilty.2 During a

one-day jury-waived trial on the indictment, Sloboda challenged the court’s

subject matter jurisdiction based on the fact that his alleged violation occurred

outside Maine, in New Hampshire.                   Among its findings and conclusions

rendered at the end of the trial, the court determined that it had jurisdiction.

        [¶3] The court also found, based on competent record evidence, that

Sloboda was on preconviction bail, a condition of which was that he have no

direct or indirect contact with a particular individual, when, on November 25,

2018, he violated that condition by having contact with that individual at a store

in Rochester, New Hampshire. Based on these facts, the court found Sloboda




    2Sloboda was also charged with aggravated assault (Class A), 17-A M.R.S. §§ 208(1)(C), 1252(4-A)
(2018); domestic violence assault (Class C), 17-A M.R.S. § 207-A(1)(A) (2020); 17-A M.R.S.
§ 1252(4-A); and two additional counts of violating a condition of release (Class C), 15 M.R.S.
§ 1092(1)(B) (2020). Section 208 has since been amended, P.L. 2019, ch. 91, § 1 (effective Sept. 19,
2019), and section 1252 has since been repealed and replaced, P.L. 2019, ch. 113, § A-1 (emergency,
effective May 16, 2019) (codified at 17-A M.R.S. § 1604 (2020)), but these subsequent enactments do
not affect this appeal.

   The State dismissed the charges of aggravated assault, domestic assault, and one count of violating
a condition of release. Sloboda was found not guilty of the other charge of violating a condition of
release. None of these charges is at issue in the present appeal.
                                                                                                   3

guilty of the offense and sentenced him to serve six months in jail.3 Sloboda

timely appeals. See 15 M.R.S. § 2115 (2020); M.R. App. P. 2B(b)(1).

                                        II. DISCUSSION

       [¶4]     Sloboda contends that the trial court lacked subject matter

jurisdiction because the court found that he violated the condition of release in

New Hampshire. We review de novo the trial court’s subject matter jurisdiction

by interpreting the criminal jurisdiction statute, 17-A M.R.S. § 7 (2020). See

State v. McLaughlin, 2018 ME 97, ¶ 9, 189 A.3d 262; State v. St. Onge, 2011 ME

73, ¶ 13, 21 A.3d 1028; see also M.R.U. Crim. P. 12(b)(2); State v. Liberty,

2004 ME 88, ¶ 7, 853 A.2d 760 (stating that the issue of the trial court’s

jurisdiction may be raised at any time during the pendency of the proceeding).

We first interpret the provision in accordance with its unambiguous meaning

based on the plain language of the statute. See McLaughlin, 2018 ME 97, ¶ 9,

189 A.3d 262.

       [¶5] A trial court’s “[t]erritorial” criminal jurisdiction is limited to the

seven bases for which 17-A M.R.S. § 7(1) provides:

             1. Except as otherwise provided in this section, a person may
       be convicted under the laws of this State for any crime committed


   3 The judgment and commitment incorrectly reflects that the findings were reached by jury
verdict rather than by the court’s determination, that Sloboda pleaded guilty to the charge, and that
Sloboda was convicted of a second count of violating a condition of release.
4

      by the person’s own conduct or by the conduct of another for which
      the person is legally accountable only if:

            A. Either the conduct that is an element of the crime or the
            result that is such an element occurs within this State or has
            a territorial relationship to this State;

            B. Conduct occurring outside this State constitutes an
            attempt to commit a crime under the laws of this State and
            the intent is that the crime take place within this State;

            C. Conduct occurring outside this State would constitute a
            criminal conspiracy under the laws of this State, an overt act
            in furtherance of the conspiracy occurs within this State or
            has a territorial relationship to this State, and the object of
            the conspiracy is that a crime take place within this State;

            D. Conduct occurring within this State or having a territorial
            relationship to this State would constitute complicity in the
            commission of, or an attempt, solicitation or conspiracy to
            commit an offense in another jurisdiction that is also a crime
            under the law of this State;

            E. The crime consists of the omission to perform a duty
            imposed on a person by the law of this State, regardless of
            where that person is when the omission occurs;

            F. The crime is based on a statute of this State that expressly
            prohibits conduct outside the State, when the person knows
            or should know that the person’s conduct affects an interest
            of the State protected by that statute; or

            G. Jurisdiction is otherwise provided by law.

See Ginn v. Penobscot Co., 342 A.2d 270, 274 (Me. 1975) (“The court is created

by statute, and has that jurisdiction only which the statute has conferred upon
                                                                                  5

it, and that is a limited jurisdiction. It has no other authority.” (quotation marks

omitted)); State v. Baldwin, 305 A.2d 555, 559 (Me. 1973) (“It is elementary law

that the statutes of a state have no extra-territorial force, nor do its courts have

any jurisdiction of offenses committed in other states or foreign countries.”

(quotation marks omitted)).

      [¶6] Viewed most simply, section 7(1)(A) sets out four alternatives by

which a Maine court has subject matter jurisdiction in a criminal matter: when

(1) conduct that is an element of the crime has a territorial relationship to

Maine, (2) the result that is an element of the crime has a territorial relationship

to Maine, (3) conduct that is an element of the crime occurred in Maine, or

(4) the result that is an element of the crime occurred in Maine. The court found

jurisdiction in this matter based specifically on one of the territorial

relationship alternatives; it determined that Maine had a sufficient nexus to the

crime because the relevant bail condition that Sloboda was alleged to have

violated was issued in Maine as to an underlying crime committed in Maine. As

17-A M.R.S. § 7(4) states, however, territorial relationship jurisdiction exists

only when it is impossible to determine where the conduct occurred in relation

to the state boundary line:

             4. Conduct or a result has a territorial relationship to this
      State if it is not possible to determine beyond a reasonable doubt
6

      that it occurred inside or outside of this State, because a boundary
      cannot be precisely located or the location of any person cannot be
      precisely established in relation to a boundary, and if the court
      determines that this State has a substantial interest in prohibiting
      the conduct or result. In determining whether this State has a
      substantial interest, the court shall consider the following factors:

            A. The relationship to this State of the actor or actors and of
            persons affected by the conduct or result, whether as
            citizens, residents or visitors;

            B. The location of the actor or actors and persons affected by
            the conduct or result prior to and after the conduct or result;

            C. The place in which other crimes, if any, in the same
            criminal episode were committed; and

            D. The place in which the intent to commit the crime was
            formed.

Because, based on the court’s supported findings, it is possible to determine

precisely where Sloboda’s conduct occurred, the territorial relationship of

Sloboda’s crime to Maine provides no basis for jurisdiction. See State v. Collin,

1997 ME 6, ¶ 10, 687 A.2d 962 (vacating the trial court’s employment of

territorial relationship jurisdiction because there was no “reasonable doubt

about the location of a boundary or the location of a person in relation to the

boundary” and noting that “[t]he state’s substantial interest in prohibiting the

conduct is not sufficient by itself to support a finding of a territorial
                                                                                           7

relationship”). The court’s reliance on territorial relationship jurisdiction was

therefore error.

        [¶7] The State argues that, despite this error, we should affirm the

conviction because the court had jurisdiction pursuant to one of the other two

alternatives in section 7(1)(A) based on where the conduct or result element

occurred. We therefore consider what constitutes a conduct element or a result

element.

        [¶8] Title 17-A M.R.S. § 32 (2020) organizes the elements of a crime into

four categories: “the forbidden conduct; the attendant circumstances specified

in the definition of the crime; the intention, knowledge, recklessness or

negligence as may be required; and any required result.”4 A state-of-mind

element is statutorily defined with reference to the mental processes of the

defendant—i.e., the defendant’s awareness of a risk or whether the defendant

has a “conscious object.” 17-A M.R.S. § 35 (2020) (defining “[i]ntentionally,”

“[k]nowingly,”        “[r]ecklessly,”      and     “[c]riminal      negligence”).   This   is

distinguished from the “conduct” category of elements, which is the only one

among the four in section 32 that could reasonably be read to refer to the

defendant’s physical actions. See Model Penal Code § 1.13(5) (Am. Law Inst.



  4   We will use the phrase “state-of-mind” to discuss the third element.
8

1962) (defining “conduct” as “an action or omission and its accompanying state

of mind, or, where relevant, a series of acts and omissions”); Conduct, New

Oxford American Dictionary (3d ed. 2010) (stating that “conduct” means “the

manner in which a person behaves”); see also State v. Lindell, 2020 ME 49, ¶ 19,

--- A.3d --- (concluding that “the jury was entitled to interpret [‘conduct’] within

its common meaning”); State v. Gladu, 2014 ME 23, ¶ 9, 86 A.3d 1182 (stating

that, “as a general rule, words and phrases that are not expressly defined in a

statute must be given their plain and natural meaning and should be construed

according to their natural import in common and approved usage,” including

according to dictionary definitions (quotation marks omitted)).

      [¶9] Attendant circumstances elements refer to factors such as the status

of a defendant, the age or other attributes of the victim, or the existence of prior

convictions that increase the class of a crime. See State v. Sumulikoski, 110 A.3d

856, 858, 862-64 (N.J. 2015) (holding that the fact that the defendant had

assumed responsibility for the victims as chaperone for a school trip

constituted an attendant circumstance rather than conduct, and defining

“status” as “a person’s legal condition, whether personal or proprietary; the

sum total of a person’s legal rights, duties, liabilities, and other legal relations”

(alteration omitted) (quotation marks omitted)); Attendant, New Oxford
                                                                              9

American Dictionary (3d ed. 2010) (“occurring with or as a result of;

accompanying”); Circumstance, New Oxford American Dictionary (3d ed. 2010)

(“a fact or condition connected with or relevant to an event or action”).

      [¶10] As to the result element, 17-A M.R.S. § 33 (2020) provides, “Unless

otherwise provided, when causing a result is an element of a crime, causation

may be found when the result would not have occurred but for the conduct of

the defendant, operating either alone or concurrently with another cause.”

Thus, a result element is one that requires the defendant to have caused some

specified harm or other outcome. See Result, New Oxford American Dictionary

(3d ed. 2010) (“a consequence, effect, or outcome of something”).

      [¶11] Interpreting section 7(1)(A) against the backdrop of section 32

reveals that not all elements of a crime are relevant to jurisdiction. Only

conduct elements and result elements affect subject matter jurisdiction; if only

an attendant circumstances element or a state-of-mind element occurs in

Maine, Maine has no jurisdiction pursuant to section 7(1)(A). For example, if a

defendant with a Maine felony conviction then obtained possession of a firearm

in New Hampshire, Maine would not have jurisdiction over the crime

committed by the defendant because only the defendant’s underlying felony

status—the attendant circumstance—occurred in Maine.
10

        [¶12] In order to determine which elements of the crime of violating a

condition of release should be considered in determining Maine’s jurisdiction,

we determine in which category—conduct, result, state-of-mind, and attendant

circumstances—those elements belong. Violation of a condition of release

requires proof that the defendant is on preconviction or postconviction bail at

the time that he or she “in fact, violates a condition of release.” 15 M.R.S.

§ 1092(1) (2020); see State v. LeBlanc-Simpson, 2018 ME 109, ¶ 17, 190 A.3d

1015. It is a Class C crime when the underlying charge on which the defendant

was bailed was “punishable by a maximum period of imprisonment of one year

or more and the condition of release violated is one specified in section 1026,

subsection 3, paragraph A, subparagraph (5), (8), (10-A) or (13).” 15 M.R.S.

§ 1092(1)(B). Violation of a condition of release is a strict liability crime,

15 M.R.S. § 1092(3), meaning no proof of a culpable state of mind is required,

but the State must establish that the defendant “had prior knowledge of the

relevant conditions of release.” LeBlanc-Simpson, 2018 ME 109, ¶ 18, 190 A.3d

1015.

        [¶13] As discussed above, the State charged Sloboda with a violation of

a condition of release based on its allegations that (1) Sloboda was subject to

preconviction bail on November 25, 2018, that required him to have no contact
                                                                              11

with certain individuals; (2) the underlying bail was for a burglary charge

(Class B), 17-A M.R.S. § 401(1)(B)(4) (2020), punishable by up to ten years in

prison, see 17-A M.R.S. § 1252(2)(B) (2018); and (3) he violated the bail by

having contact with one of the prohibited individuals. Two of these elements—

that Sloboda was subject to a preconviction bail condition on November 25,

2018, that required him to have no contact with a particular individual, and that

the underlying charge on which he was bailed was for burglary, punishable by

up to ten years in prison—constitute attendant circumstances elements

pursuant to section 32. 15 M.R.S. § 1092(1)(B). The requirement that Sloboda

had prior knowledge that he was subject to that condition of release is either a

state-of-mind element or an attendant circumstances element, but we need not

determine which because the fact that his knowledge of the condition may have

occurred in Maine is irrelevant to a jurisdiction analysis pursuant to the plain

language of section 7(1)(A). See 17-A M.R.S. § 32.

      [¶14] The conduct element in Sloboda’s crime is the act of having contact

with the victim, and the court found, based on competent record evidence, that

such conduct occurred only in New Hampshire. Thus, the location of Sloboda’s

conduct is no basis for the court’s jurisdiction in Maine.
12

         [¶15] The only remaining source of jurisdiction—and the alternative to

which the parties dedicate their arguments—is if the crime of violation of a

condition of release requires proof of a result element and that result occurred

in Maine.5 17-A M.R.S. § 7(1)(A).

         [¶16] The State contends that a result element exists in the requirement

that Sloboda’s contact with the victim “in fact, violates a condition of release,”

in Maine. That is, the State argues that although the defendant’s conduct was

the contact with the victim in New Hampshire, the result was a bail violation in

Maine because Sloboda was not subject to a bail order in New Hampshire and



     Section 7 contains additional limitations applicable to jurisdiction based on the location of a
     5

result that is an element:

         2. Subsection 1, paragraph A does not apply if:

         A. Causing a particular result or danger of causing that result is an element and the
         result occurs or is designed or likely to occur only in another jurisdiction where the
         conduct charged would not constitute an offense; or

         B. Causing a particular result is an element of the crime and the result is caused by
         conduct occurring outside the State which would not constitute an offense if the result
         had occurred there.

17-A M.R.S. § 7(2) (2020). By these exclusions, Maine has no jurisdiction if a bail violation “would
not constitute an offense” in New Hampshire. 17-A M.R.S. § 7(2)(A)-(B). These exclusions do not
apply in the instant matter because violating a bail condition is an offense in New Hampshire.
Although it is not a crime pursuant to New Hampshire statute, the New Hampshire Supreme Court
has held that violating a bail condition constitutes criminal contempt, which is a common law crime
punishable by fines or imprisonment. State v. Smith, 35 A.3d 646, 649-50 (N.H. 2011) (“We have
expressly rejected the argument that contempt is not a crime simply because it is not defined in the
Criminal Code.”); State v. Nott, 821 A.2d 976, 978 (N.H. 2003) (holding that “violation of a bail order”
constitutes “criminal contempt”); State v. Martina, 600 A.2d 132, 137-38 (N.H. 1991) (requiring that
the State must prove criminal contempt beyond a reasonable doubt and noting that the resulting
“imposition of a fine or imprisonment is punitive rather than remedial” (quotation marks omitted)).
                                                                                                        13

it was Maine’s bail order that Sloboda “in fact, violate[d]” by having contact with

the victim. 15 M.R.S. § 1092(1). Contrary to the State’s assertion, however,

section 1092(1)(B) has no result element. As we have already concluded, the

fact that the defendant was on preconviction or postconviction bail is not a

result element. It is instead an attendant circumstance element. Thus, the

State’s argument fails because jurisdiction cannot be conveyed pursuant to

section 7(1)(A) based on the locus of an attendant circumstance.                                       See

Sumulikoski, 110 A.3d at 862 (“[A] defendant’s status alone does not provide a

basis for jurisdiction.”).

        [¶17] Although there are myriad criminal statutes that expressly require

proof of a particular harm or result caused by the defendant,6 the plain language

of section 1092(1)(B) does not require any particular harm. The requirement

in section 1092(1)(B) that Sloboda “in fact, violates a condition of release”

refers both to the conduct element, which, it is undisputed, occurred in New


   6  See, e.g., 17-A M.R.S. § 201(1)(A) (2020) (defining murder to include “caus[ing] the death of
another human being”); 17-A M.R.S. § 454(1)(A) (2020) (including, as an element of tampering with
a witness, that the defendant “[i]nduces or otherwise causes . . . a witness . . . [t]o testify or inform in
a manner the actor knows to be false”); 17-A M.R.S. § 501-A(1)(A)(1) (2020) (stating that one means
of committing disorderly conduct is by “caus[ing] annoyance to others by intentionally . . . [m]aking
loud and unreasonable noises”); 17-A M.R.S. § 703(1)(B) (2020) (setting out the elements of forgery,
including that the defendant “causes another, by deception, to sign or execute a written instrument”);
17-A M.R.S. § 805(1)(C) (2020) (providing, as an element of aggravated criminal mischief, that the
defendant’s act “thereby causes a substantial interruption or impairment of [gas, water,
transportation, etc.] service rendered to the public”); 17-A M.R.S. § 1002-A(1)(A) (2020) (stating that
the criminal use of laser pointers is committed when, inter alia, the defendant’s use of a laser pointer
“[c]auses bodily injury to [an]other person”).
14

Hampshire, and to the attendant circumstances element, which cannot confer

jurisdiction.

         [¶18] Pursuant to the unambiguous language of section 7(1)(A), only the

occurrence of the conduct or the result elements in Maine will afford Maine

jurisdiction. Because Sloboda’s conduct occurred in New Hampshire and his

offense contains no result element, section 7(1)(A) provides no basis for the

court’s exercise of subject matter jurisdiction over Sloboda’s prosecution. This

conclusion is also consistent with the holding in Collin, in which the defendant

was convicted of theft by receiving stolen property that belonged to a victim

from Maine. 1997 ME 6, ¶¶ 2-4, 687 A.2d 962. Although the defendant acted

only in Canada, the State argued that Maine had jurisdiction to prosecute him

because the result of the theft was to deprive a Maine company of its property.

Id. ¶¶ 3, 11. We declined to apply section 7(1)(A) because the asserted result—

loss to the victim—was not an element of the crime of theft by receiving stolen

property, and, therefore, the fact that the victim was in Maine was “irrelevant.”7

Collin, 1997 ME 6, ¶ 11, 687 A.2d 962.


     This is unlike the analysis employed in those states whose statutes provide for jurisdiction when
     7

the result occurs in that state but that do not require that the result be an element of the crime. In
Arizona, for example, the legislature has “maximize[d] the reach of its criminal jurisdiction by
omitting the restriction that the result occurring within the state must be an element of the
offense. Thus, under Arizona law, if [the defendant’s] conduct had a direct effect in Arizona, Arizona
can assert jurisdiction.” State v. Flores, 188 P.3d 706, 713 (Ariz. Ct. App. 2008) (emphasis omitted)
(citation omitted) (quotation marks omitted).
                                                                                                    15

       [¶19] We also discern no basis for the court’s exercise of jurisdiction in

the other subdivisions of section 7. In particular, the Attorney General and

AEquitas, as amici, suggest that the court had jurisdiction pursuant to section

7(1)(E), which applies when “[t]he crime consists of the omission to perform a

duty imposed on a person by the law of this State, regardless of where that

person is when the omission occurs.”8 By its plain language, an “omission” is “a

failure to do something.” Omission, New Oxford American Dictionary (3d ed.

2010). The essence of the amici’s argument is that Sloboda failed to perform

his legal duty to comply with the bail order by affirmatively acting in violation

of the bail order. This attempted application of section 7(1)(E) to Sloboda’s

prosecution is, however, an exercise in semantic gymnastics.


   8  We note that neither of the parties themselves presented an argument relating to 17-A M.R.S.
§ 7(1)(E) (2020), either in the trial court or in this appeal, and only two of the amici have done so
here. Ordinarily, we will recognize a contention raised by an amicus curiae only if the issue was
raised in the trial court and at least one of the parties also pursues the argument on appeal. See Ross
v. Acadian Seaplants, Ltd., 2019 ME 45, ¶ 5 n.2, 206 A.3d 283; Jacobs v. Jacobs, 507 A.2d 596, 597 n.1
(Me. 1986). Jurisdictional questions are not hampered by these preservation principles, however,
because jurisdiction is foundational. See, e.g. Ford Motor Co. v. Darling’s, 2014 ME 7, ¶ 41, 86 A.3d 35
(stating that “the issue of jurisdiction may be raised at any time in a proceeding, including sua sponte
by this Court”); Guardianship of Gabriel W., 666 A.2d 505, 507-08 (Me. 1995) (“Lack of subject matter
jurisdiction may be raised at any time, including in collateral proceedings when lack of subject matter
jurisdiction appears on the face of the record of the judgment attacked.” (citation omitted)); Pederson
v. Cole, 501 A.2d 23, 25 n.2 (Me. 1985) (“The defense of lack of subject-matter jurisdiction may be
raised at any time, even sua sponte by an appellate court.”); Moody v. Port Clyde Dev. Co., 102 Me. 365,
384, 66 A. 967 (1907) (“The very foundation of judicial proceedings is jurisdiction. The question of
jurisdiction may therefore be raised at any stage of the proceedings by any suggestion that will
apprise the court of the want thereof.”). Here, given that we could notice and resolve jurisdictional
issues even if not otherwise raised at all, and given that the amici have presented argument regarding
section 7(1)(E) through an established procedural mechanism, see M.R. App. P. 7A(e), we consider
that argument.
16

      [¶20] We rejected a similar approach in State v. Branch-Wear, in which

the defendant was convicted of tampering with a victim by preventing her

daughter from testifying in a prosecution. 1997 ME 110, ¶¶ 2-6, 695 A.2d 1169.

The defendant argued that the State had impermissibly prosecuted her for a

crime of omission for failing to meet her legal obligation of producing the child

at the trial. Id. ¶ 8. We characterized the defendant’s argument as “a play on

words,” noting that the “failures to act” that the defendant described were

instead “acts of evasion . . . and deceit . . . that caused her daughter to withhold

testimony.” Id. ¶¶ 8, 10 (“The State and [the defendant] are looking at the same

conduct. They are simply describing it differently.”). We concluded that the

State had “presented evidence of a crime of commission, not voluntary

omission,” in the defendant’s efforts to keep the child from reaching the

courthouse. Id. ¶ 10.

      [¶21] The crimes of omission to which section 7(1)(E) might apply

instead include the failure to pay taxes or child support due in Maine, for

example—instances of criminal nonfeasance rather than any affirmative

criminal act. See Model Penal Code & Commentaries § 1.03 cmt. 5 at 52-53

(Am. Law Inst. 1985); cf. Lindell, 2020 ME 49, ¶ 25, --- A.3d --- (concluding that
                                                                                                 17

the defendant’s affirmative conduct in falsifying tax returns in Maine allowed

the Maine court jurisdiction over his prosecution pursuant to section 7(1)(A)).

       [¶22] Our decision today is entirely a function of our construction and

application of the jurisdictional statute as the Legislature has enacted it. For

the reasons we have discussed, through its enactments, the Legislature has not

conferred Maine’s courts with authority to adjudicate the charge filed against

Sloboda. In the absence of any basis for the court’s exercise of jurisdiction

pursuant to section 7(1), Sloboda’s conviction cannot stand.9

       [¶23] Contrary to the State’s suggestion, however, our conclusion that

Maine lacks jurisdiction to prosecute Sloboda on a charge of violating a

condition of release for his conduct in New Hampshire does not altogether

deprive Maine of a means of enforcing its bail conditions. Bail conditions are

imposed “in order to reasonably ensure the appearance of the defendant as

required, to otherwise reasonably ensure the integrity of the judicial process

and, when applicable, to reasonably ensure the safety of others in the

community.” 15 M.R.S. § 1002 (2020). Where, as here, a defendant violates bail

conditions—even in New Hampshire—Maine is free to initiate bail revocation

proceedings and ask that the defendant be held pending trial. See 15 M.R.S.


   9Because we agree with Sloboda that the trial court lacked subject matter jurisdiction, we do not
address Sloboda’s challenge to the sufficiency of the evidence supporting his conviction.
18

§§ 1095-1097 (2020).      Moreover, when a defendant’s violation of a bail

condition constitutes a new criminal act—if, for example, Sloboda had

assaulted the protected individual—that new criminal act could be prosecuted

as such in the appropriate jurisdiction. This, however, does not change the

conclusion that, as written, the unambiguous provisions of section 7(1) do not

give Maine courts subject matter jurisdiction in this case. For us to conclude

otherwise, we would be required to rewrite the statute, and that we cannot do.

      The entry is:

                  Judgment vacated. Remanded for entry of
                  dismissal of the indictment.




HORTON, J., with whom JABAR and CONNORS, JJ., join, dissenting.

      [¶24] I respectfully dissent from the Court’s conclusion that the trial

court lacked statutory jurisdiction to convict Emanuel J. Sloboda for violating

the no-contact bail condition. I would affirm the conviction based on the court’s

jurisdiction over the subject matter and Sloboda’s person, and based on the

sufficiency of the evidence to prove the alleged violation beyond a reasonable

doubt.
                                                                                                    19

        [¶25] Jurisdiction existed because Sloboda’s failure to comply with his

conditions of release fell within the statutory provision conferring jurisdiction

on the Maine courts to convict a defendant of a crime if “[t]he crime consists of

the omission to perform a duty imposed on a person by the law of this State,

regardless of where that person is when the omission occurs,” 17-A M.R.S.

§ 7(1)(E) (2020); see 15 M.R.S. § 1092 (2020).10

        [¶26] The bail code authorizes Maine courts to impose upon criminal

defendants the duty to comply with conditions of release. See 15 M.R.S.

§ 1026(1), (3)(A) (2020) (authorizing imposition of conditions of release);

15 M.R.S. § 1092 (criminalizing the failure to comply with conditions of

release). That duty is “imposed on a person” for purposes of section 7(1)(E)

when a court with jurisdiction over the person issues a bail bond, commitment

order, and conditions-of-release form consistent with 15 M.R.S. § 1026 (2020).

As is typically true of a duty imposed by court order, Sloboda’s duty to comply


   10 Although I conclude that the court had jurisdiction, I do so on different grounds than the trial
court. See Bouchard v. Frost, 2004 ME 9, ¶ 8, 840 A.2d 109 (“[W]e can affirm a judgment on rationale
different than that relied on by the [trial c]ourt.”). I therefore do not address the trial court’s
conclusion that it had jurisdiction based on a “territorial relationship” between the results of
Sloboda’s conduct and the State of Maine. See 17-A M.R.S. § 7(1)(A), (4) (2020). In addition, because
I conclude that the court had jurisdiction to convict Sloboda pursuant to 17-A M.R.S. § 7(1)(E) (2020),
I need not address the State’s contention that the result of Sloboda’s offense occurred in Maine and
the court therefore had jurisdiction pursuant to 17-A M.R.S. § 7(1)(A). But I would not foreclose the
possibility that section 7(1)(A) was intended to encompass results inherent in offenses that do not
specify a certain harm. See, e.g., Brehm v. State, 558 N.E.2d 906, 907-09 (Ind. Ct. App. 1990)
(discussing a statute with substantively identical “result” language and reaching a conclusion similar
to the one urged by the State in this case).
20

with his bail conditions, which was imposed by a court having personal

jurisdiction over him,11 continued to apply regardless of where he was, within

the meaning of section 7(1)(E). See Commonwealth v. Maguigan, 511 A.2d 1327,

1332 (Pa. 1986) (explaining that a criminal court’s personal jurisdiction over

an absent defendant includes the authority to compel the defendant to return

for trial). The Court’s observation that the State could or should have filed a

motion to revoke Sloboda’s bail instead of prosecuting him implicitly

acknowledges that his duty to comply with bail conditions applied outside

Maine—otherwise, there would be no basis for the State to move to revoke bail.

See Court’s Opinion ¶ 23.

          [¶27]     The bail bond that Sloboda signed included the following

provision: “As a condition of my release, I shall comply with any condition(s)

set forth on the Conditions of Release form.”12 The attached commitment order

and conditions-of-release form included a condition prohibiting contact with a

specific person. The court found, based on competent evidence admitted



      “It is well settled that a [criminal] court has personal jurisdiction over any party who appears
     11

before it, regardless of how his appearance was obtained.” United States v. Lussier, 929 F.2d 25, 27
(1st Cir. 1991).

    12  In signing the bail bond, Sloboda also acknowledged: “I agree to obey the following
conditions of my release so long as this bail bond remains in effect. I understand that it is a crime
for me to violate any of these conditions, and that if I violate these conditions I will be subject to arrest,
jail and/or a fine.” (Italic emphasis added.)
                                                                               21

during a trial, that Sloboda failed to comply with the no-contact condition.

Pursuant to the plain language of section 7(1)(E), Sloboda’s conduct

constituted an “omission to perform” his duty of compliance. See, e.g., State v.

Conroy, 2020 ME 22, ¶ 19, 225 A.3d 1011 (“We look first to the plain language

of the statute to determine its meaning if we can do so while avoiding absurd,

illogical, or inconsistent results.”).

      [¶28] Focusing on the affirmative act constituting the bail violation, the

Court concludes, to the contrary, that Sloboda’s conduct could not constitute an

“omission” to perform a duty within the meaning of section 7(1)(E):

      The essence of [the argument that jurisdiction exists under
      section 7(1)(E)] is that Sloboda failed to perform his legal duty to
      comply with the bail order by affirmatively acting in violation of the
      bail order. This attempted application of section 7(1)(E) to
      Sloboda’s prosecution is, however, an exercise in semantic
      gymnastics.

Court’s Opinion ¶ 19. The Court notes that “[t]he crimes of omission to which

section 7(1)(E) might apply instead include the failure to pay taxes or child

support due in Maine, for example—instances of criminal nonfeasance rather

than any affirmative criminal act.” Court’s Opinion ¶ 21.

      [¶29] The Court’s conclusion is inconsistent with the language of the bail

code. The bail code defines all of the conditions of release that it authorizes in

mandatory terms so as to create an affirmative duty to comply with all
22

conditions of release, even when the substantive effect of a condition is

prohibitory.13 See 15 M.R.S. § 1026(3)(A)(1)-(19). Indeed, the imposition of a

no-contact condition such as the one in this case requires a defendant to

          [a]void all contact with a victim of the alleged crime, a potential
          witness regarding the alleged crime or with any other family or
          household members of the victim or the defendant or to contact
          those individuals only at certain times or under certain conditions.

15 M.R.S. § 1026(3)(A)(5) (emphasis added).

          [¶30] Thus, the bail code defines conditions of release as affirmative

mandates. A failure to comply with a bail condition—even a failure that takes

the form of an affirmative act—must therefore constitute an “omission to

perform a duty” for purposes of section 7(1)(E).14                           See State v. Jones,


     13 For example, conditions that restrict residence or travel, impose a curfew, or prohibit
possession of firearms are all defined in mandatory rather than prohibitory terms. See 15 M.R.S.
§ 1026(3)(A)(4) (2020) (“Abide by specified restrictions on personal associations, place of abode or
travel”); 15 M.R.S. § 1026(3)(A)(7) (2020) (“Comply with a specified curfew”); 15 M.R.S.
§ 1026(3)(A)(8) (2020) (“Refrain from possessing a firearm or other dangerous weapon”). The plain
effect of the Legislature’s chosen phrasing is to create affirmative duties of compliance, such that a
failure to comply is an omission to perform a mandated duty.

   14 This conclusion is consistent with our decision in State v. Damon, 317 A.2d 459 (Me. 1974).

There, we equated the affirmative act of “[e]scape of furlough” with the “wilful failure to resume
physical confinement at the Maine State Prison.” Id. at 460-61. Courts in other jurisdictions have
also held, in other contexts, that defendants omitted to perform legal duties by acting affirmatively,
as opposed to by failing to act. The District Court of Appeal of Florida, for example, concluded that
the state had jurisdiction to convict a defendant of the affirmative criminal act of identity theft
because the crime constituted an omission to perform a duty to obtain consent from the victim. See
State v. Roberts, 143 So. 3d 936, 936-39 (Fla. Dist. Ct. App. 2014); see also Commonwealth v. Thompson,
50 N.E.3d 845, 857-58 (Mass. App. Ct. 2016) (examining credit card fraud, discussing similar
principles, and deciding the same); State v. James, 79 P.3d 169, 173-77 (Kan. 2003) (concluding that
the state had jurisdiction where the defendant violated a duty to refrain from mistreating dependent
adults by leaving the victims in a hot car, causing their deaths). The Florida court also concluded that
the state had jurisdiction to convict a defendant of a crime prohibiting the removal of children from
                                                                                                        23

673 P.2d 455, 456 (Kan. Ct. App. 1983) (noting that a statute extending criminal

jurisdiction to the omission to perform a duty imposed on a person by law

regardless of the person’s location “codifies the common law principle that a

person may commit a crime within this state while remaining outside it, and

such crime may be an act of omission as well as an act of commission” (emphasis

added)).

        [¶31] The Court’s focus on the affirmative nature of Sloboda’s bail

violation as the sole basis for its conclusion that section 7(1)(E) does not confer

jurisdiction implies a view that section 7(1)(E) would apply if Sloboda’s bail

violation consisted of a failure to act. Court’s Opinion ¶¶ 19-21. In that case,

section 7(1)(E) would confer jurisdiction to prosecute out-of-state bail

violations involving inaction by the defendant, such as failing to notify the court

of an address change or to take medications as prescribed, but would not

authorize prosecution of out-of-state violations such as having contact with an

alleged victim or committing a new crime.


the state in violation of a court order, where the defendant’s affirmative acts in violation of the order
occurred entirely outside of the state. State v. Costa, 558 So. 2d 525, 526 (Fla. Dist. Ct. App. 1990)
(citing a territorial applicability statute providing that “[a]n offense that is based on an omission to
perform a duty imposed by the law of this state is committed within the state, regardless of the location
of the offender at the time of the omission” (quotation marks omitted)); see, e.g., People v. Caruso,
519 N.E.2d 440, 442-46 (Ill. 1987) (concluding that a child abduction crime that prohibited
“violat[ing] . . . a valid court order . . . by concealing or detaining [a] child or removing [a] child from
the jurisdiction of the court” was “based on an omission to perform a duty imposed by the law of this
State” (quotation marks omitted)).
24

          [¶32] But nothing in either the bail code or section 7(1)(E) indicates that

the Legislature intended to confer jurisdiction over violations of some

conditions of release but not violations of other conditions of release, and there

would be no cogent basis for the Legislature to draw that distinction.15 In fact,

it is the violations involving affirmative acts that can result in direct and even

lethal harm to victims, witnesses, and others. The Legislature cannot have

intended to confer jurisdiction to prosecute an out-of-state violation consisting

of failure to take medications or to report an address change but not to

prosecute an out-of-state violation consisting of contact (or worse) with an

alleged victim, a co-defendant, or a witness.

          [¶33] At oral argument, even Sloboda agreed that a defendant can be

prosecuted for a bail violation in Maine based on wholly out-of-state criminal




     15Nor does the legislative history suggest such an interpretation. Section 7(1)(E) incorporates
language present in section 1.03 of the Model Penal Code. See 17-A M.R.S. § 7(1)(E); Model Penal
Code & Commentaries § 1.03(1)(e) (Am. Law Inst. 1985) (providing for jurisdiction where “the
offense consists of the omission to perform a legal duty imposed by the law of this State with respect to
domicile, residence or a relationship to a person, thing or transaction in the State” (emphasis added)).
Section 1.03 “propose[d] broad jurisdictional bases, within the limits of due process,” based “[o]n the
premise[s] that it is particularly desirable in a federated state to increase jurisdictional options and
that if a state’s assertion of jurisdiction does not result in unfairness to the person charged, the state
should be accorded jurisdiction over all those who engage in conduct that affects the state’s
interests.” Model Penal Code & Commentaries § 1.03 explanatory note (Am. Law Inst. 1985). Given
the express notice to Sloboda that he would be subject to prosecution if he violated any of the
conditions of his release, and the detrimental effect of the bail violation within Maine, jurisdiction to
convict Sloboda in Maine does not present fairness concerns. See Strassheim v. Daily, 221 U.S. 280,
284-85 (1911); United States v. Woodward, 149 F.3d 46, 66 & n.11 (1st Cir. 1998); State v. Vetrano,
121 Me. 368, 380, 117 A. 460 (1922).
                                                                                                    25

conduct committed while on bail.16 His acknowledgment is significant because

a condition prohibiting criminal conduct is no different, for purposes of

section 7(1)(E), from a condition prohibiting contact with a specific person. See

State v. West, 512 N.W.2d 207, 208-09 (Wis. Ct. App. 1993) (holding that a

defendant who violated a Wisconsin bail order by committing a crime in Ohio

could be prosecuted in Wisconsin for the crime of “bail jumping”); see also

15 M.R.S. § 1026(1) (providing that “[e]very order for the pretrial release of any

defendant must include . . . the condition[] that the defendant refrain from new

criminal conduct”).

        [¶34] The Court’s interpretation means that defendants whose bail

conditions prohibit them from having contact with out-of-state alleged victims,

co-defendants, or witnesses; from possession of firearms or dangerous

weapons; from consuming alcoholic beverages; from operating motor vehicles;

from accessing the Internet; or from engaging in any other non-criminal activity

can circumvent prosecution simply by violating those conditions in another



   16 Sloboda gave the following example: “Say it’s a domestic case, and some parent neglects their
child. They’re prosecuted in New Hampshire . . . . They’re convicted. You take that conviction to
Maine and then you prosecute them under the Maine bail order and say, ‘See, you didn’t follow your
Maine bail order; you were convicted of a crime.’” In response to a question about whether the State
could enforce bail conditions by moving to revoke bail, Sloboda replied, “Of course, or by proving that
he had contact in Rochester [New Hampshire]; New Hampshire gives full faith and credit to the Maine
order; he’s convicted of violating a legal order in New Hampshire; you take that certified conviction
to Maine, and then prosecute him.”
26

jurisdiction. To protect the State’s ability to prosecute bail violations, it would

be understandable for prosecutors to ask more frequently for bail conditions

prohibiting defendants from leaving the State of Maine, although the Court’s

interpretation now calls into question whether a defendant subject to such a

condition could be prosecuted for leaving the state.

      [¶35] Finally, beyond the bail context, the Court’s interpretation of

section 7(1)(E) also calls into question whether a defendant who affirmatively

violates a Maine protection order can be prosecuted if the defendant and the

plaintiff are both outside the state at the time. See 17-A M.R.S. § 506-B (2020);

see also 5 M.R.S. § 4659(1) (2020); 15 M.R.S. § 321(6) (2020); 19-A M.R.S.

§ 4011(1), (4) (2020). If the order were a qualifying protection order, the full

faith and credit provision of the United States Code would authorize the state

in which the violation occurred to prosecute, see 18 U.S.C.S. § 2265

(LEXIS through Pub. L. No. 116-149), but that state might not, and Maine

definitely could not under the Court’s interpretation.

      [¶36]    For these reasons, I would affirm, because the court had

jurisdiction and the record evidence was sufficient to support the conviction.
                                                                              27

Harry Center, Esq. (orally), Woodman Edmands Danylik Austin Smith &
Jacques, P.A., Biddeford, for appellant Emanuel J. Sloboda

Kathryn Loftus Slattery, District Attorney, and Andrew E. Berggren, Esq.
(orally), Prosecutorial District #1, Alfred, for appellee State of Maine

Aaron M. Frey, Attorney General, and Laura A. Yustak, Asst. Atty. Gen., Office of
the Attorney General, Augusta, for amicus curiae Office of the Maine Attorney
General

Jeff Goldman, Esq., Morgan, Lewis & Bockius LLP, Boston, Massachusetts, for
amicus curiae AEquitas

Lawrence C. Winger, amicus curiae pro se


York County Unified Criminal Docket docket number CR-2018-1073
FOR CLERK REFERENCE ONLY
