       -                                                              This opinion was
    yp |T|3fP\                                                         filed for record
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    DATE           2 7 2020                                          Susan L. Carlson
                  , (IX-                                           Supreme Court Clerk
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   IN THE SUPREME COURT OF THE STATE OF WASHINGTON


  STATE OF WASHINGTON,

                      Respondent,                               No. 95080-6
           V.

                                                                  En Banc
   MIKHAIL G. KARPOV,

                       Petitioner.                     Filed            2, 7 2020


         WIGGINS, J.—The district court dismissed the criminal case against Mikhail G.

 Karpcv on the ground that the State had failed to prove jurisdiction. The question

 before us is whether the State could appeal that dismissal and retry Karpcv upon

 reversal. Karpcv argues that jurisdiction is an essential element of every crime and

 thus that the dismissal for the State's failure to prove jurisdiction resulted in an

 acquittal, meaning double jeopardy barred the State's initial appeal and prohibits

 retrial. The State counters that jurisdiction is not an essential element of every crime

 and thus that double jeopardy does not apply here. We hold that jurisdiction is not an

 essential element of every crime but, rather, is the power of the court to hear and

 determine a case. However, we reverse the superior court and remand for the

 reinstatement of the trial court's dismissal with prejudice. When the trial court
state V. Karpov (Mikhail G.), No. 95080-6


substantively freafec/jurisdiction as an essential element of the crime, the dismissal

for failure to prove jurisdiction was no different than if jurisdiction were actually an

essential element. The trial court therefore judicially acquitted Karpov when it

dismissed the case against him, and double jeopardy barred the State's appeal from

the district court and prohibits retrial of Karpov on these charges.

                          FACTS AND PROCEDURAL HISTORY

       Karpov was tried in the district court of Spokane County for five counts of

indecent exposure. After the State rested, Karpov moved to dismiss the case on the

ground that the State had provided insufficient evidence of jurisdiction. The court

granted the motion because no witness had expressly stated that the alleged crimes

took place in Spokane County, to which the district court's jurisdiction is statutorily

limited. See RCW 3.66.060. The district court concluded that the State had failed to

prove that the court had jurisdiction over Karpov's alleged crimes'" and dismissed all

five counts of indecent exposure.

       When dismissing the case, the trial court expressly stated that its ground for

dismissal was that the State had failed to prove the "essential element" of jurisdiction.

Clerk's Papers(CP)at 2. Further, it ordered dismissal with prejudice.

       The State appealed to superior court. The State argued that the trial court had

erred in dismissing the case for failure to prove jurisdiction and that double jeopardy




^ Although the district court dismissed for "jurisdiction and/or venue," Clerk's Papers at 251,
2 (Order of Dismissal), Karpov's argument concerns only the meaning of the jurisdictional
dismissal, not venue. See Mot. for Discr. Review at 7, Br. of Pet'r at 7-8. The issue of venue
is therefore not before this court.
state V. Karpov (Mikhail G.), No. 95080-6


did not apply. Karpov argued that the State's appeal and any retrial were barred by

double jeopardy.

        The superior court agreed with the State. In holding that the district court had

erred in finding the evidence insufficient to establish jurisdiction, the superior court

reasoned that the State presented evidence that the incidents had occurred in

Spokane County. The superior court also found that double jeopardy did not bar the

State's appeal because the dismissal did not decide the question of Karpov's factual

guilt. It reversed the district court's dismissal of the charges and remanded the case

for trial.

        The Court of Appeals denied Karpov's motion for discretionary review,

reasoning that double jeopardy did not bar retrial in this case. Karpov moved for

discretionary review by this court, which we granted.

                               STANDARD OF REVIEW

        We review double jeopardy claims de novo as questions of law. State v. S.S.Y.,

170 Wn.2d 322, 328, 241 P.3d 781 (2010)(citing State v. Freeman, 153 Wn.2d 765,

770, 108 P.3d 753(2005)).

                                       ANALYSIS

        Our constitution commands,"No person shall . . . be twice put in jeopardy for

the same offense." Wash. Const, art. I, § 9. The United States Constitution similarly

provides that "nor shall any person be subject for the same offense to be twice put in

jeopardy of life or limb." U.S. Const, amend. V. States are bound by the federal double

jeopardy clause via the Fourteenth Amendment to the United States Constitution.

Benton v. Maryland, 395 U.S. 784, 787, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969).
state V. Karpov (Mikhail G.), No. 95080-6


Additionally, we have long held that our "state constitutional rule against double

jeopardy provides the same scope of protection as the federal constitutional rule."

State V. Sutherby, 165 Wn.2d 870, 878, 204 P.3d 916(2009)(citing State v. Gocken,

127 Wn.2d 95, 107, 896 P.2d 1267 (1995)). Neither Karpov nor the State has argued

that we should depart from federal case law and neither has performed the GunwalP
analysis necessary to do so. See Blomstrom v. Tripp, 189 Wn.2d 379, 400-01, 402

P.3d 831 (2017)(setting forth six Gunwa//factors).

       Double jeopardy bars appeal and retrial when the defendant has been

acquitted. See State v. Hall, 162 Wn.2d 901, 906-07, 177 P.3d 680(2008)(citing State

V. Ervin, 158 Wn.2d 746, 752-53, 147 P.3d 567 (2006)). Acquittals by the judge are

known as "judicial acquittals." See Evans v. Michigan, 568 U.S. 313, 327, 133 S. Ct.

1069, 185 L. Ed. 2d 124(2013). A dismissal by a trial judge is a judicial acquittal when

it adjudicates the ultimate question of factual guilt or innocence. Id. at 319. Such

dismissals "encompass any ruling that the prosecution's proof is insufficient to

establish criminal liability for an offense." Id. at 318-19 (citing United States v. Scott,

437 U.S. 82, 98 & n.11, 98 S. Ct. 2187, 57 L. Ed. 2d 65(1978); Burks v. United States,

437 U.S. 1, 10, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978)). Thus, when the trial court "act[s]

on its view that the prosecution ha[s] failed to prove its case" and dismisses the case

in the defendant's favor, the trial court judicially acquits the defendant. Id. at 325. A

judicial acquittal triggers the protections of the double jeopardy clauses even when




2 state V. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986).
state V. Karpov (Mikhail G.), No. 95080-6


the judge bases the acquittal on an erroneous understanding of the elements of the

crime. Id. at 318.

  I.   Jurisdiction is not an essential element of every crime but instead concerns the
       power of a court to act

       Karpov hinges his double jeopardy argument on jurisdiction. First, he asserts

that jurisdiction is an essential element of every crime. Br. of Pet'r at 1. Then he

concludes that "[tjhe principles of double jeopardy bar reinstatement of . . . [the]

criminal charges [against him] . . . because the State closed its case without

presenting sufficient evidence of the essential element of jurisdiction, and the case

was previously dismissed by the trial court due to the State's failure to establish

jurisdiction." Id. at 5-6. Karpov's argument fails because jurisdiction is not an essential

element of every crime.

       Rather than being an essential element of every crime, "[jjurisdiction is the

power of a court to hear and determine a case." State v. Lane, 112 Wn.2d 464, 468,

771 P.2d 1150 (1989). Karpov in fact agrees, noting that "[jjurisdiction relates to a

court's authority to adjudicate a case before them." Mot. for Discr. Review at 7 (citing

J.A. V. State, 120 Wn.App. 654, 657, 86 P.3d 202(2004)). Jurisdiction is therefore the

court's authority or power. It must underlie every case that is brought before a judge.

       In a criminal case, a trial court must have jurisdiction to determine the guilt or

Innocence of the accused. Indeed, double jeopardy "does not come into play until a

proceeding begins before a trier 'having jurisdiction to try the question of the guilt or

innocence of the accused.'" Seiiass v. United States, 420 U.S. 377, 391, 95 S. Ct.

1055, 43 L. Ed. 2d 265 (1975)(quoting Kepnerv. United States, 195 U.S. 100, 133,
state V. Karpov (Mikhail G.), No. 95080-6


24 S. Ct. 797, 49 L. Ed. 114 (1904)); see also State v. Cockrell, 102 Wn.2d 561, 567,

689 P.2d 32(1984)(double jeopardy cannot apply unless a defendant was tried before

a court of "'competent jurisdiction to hear and determine the merits of the cause'"

(quoting State v. Ridgley, 70 Wn.2d 555, 557, 424 P.2d 632 (1967))).

       This is not to say that jurisdiction can never be an essential element. There are

crimes that include jurisdictional elements. Driving under the influence is an example

of such a crime. RCW 46.61.502(1) ("A person is guilty of driving while under the

influence of intoxicating liquor, marijuana, or any drug if the person drives a vehicle

within this state." (emphasis added)). The crime here includes no such jurisdictional

element.^ Many fecfera/crimes have jurisdictional elements. See Torres v. Lynch, 578

U.S.    , 136 S. Ct. 1619, 1625, 194 L. Ed. 2d 737(2016)(discussing this issue). But,

as the United States Supreme Court has noted, "[f]or obvious reasons, state criminal

laws do not include the jurisdictional elements common in federal statutes." Id. This

"obvious reason[ ]" is that states are not limited to enumerated powers, as is Congress,

and therefore do "not need . . . a jurisdictional hook" like the commerce clause to



3 The offense of indecent exposure, RCW 9A.88.010, reads:

          (1) A person is guilty of indecent exposure if he or she intentionally makes
       any open and obscene exposure of his or her person or the person of another
       knowing that such conduct is likely to cause reasonable affront or alarm. The
       act of breastfeeding or expressing breast milk is not indecent exposure.
          (2)(a) Except as provided in (b) and (c) of this subsection, indecent
       exposure is a misdemeanor.
          (b) Indecent exposure is a gross misdemeanor on the first offense if the
       person exposes himself or herself to a person under the age of fourteen years.
          (c) Indecent exposure is a class 0 felony if the person has previously been
       convicted under this section or of a sex offense as defined in ROW 9.94A.030.

No jurisdictional element can be found.
state V. Karpov (Mikhail G.), No. 95080-6


exercise their authority. Id. Instead, state legisiatures "exercis[e] their plenary police

powers" when they create crimes. Id.

       Karpov argues that jurisdiction is an "essential element" of every criminal case,

which must be proved beyond a reasonable doubt. Karpov is wrong for several

reasons. While we have referred to jurisdiction as an '"integral component'" of the

State's case, which it must prove, that does not make it into an essential element.

State V. Norman, 145 Wn.2d 578, 589, 40 P.3d 1161 (2002)(quoting State v. Squally,

132 Wn.2d 333, 340, 937 P.2d 1069 (1997)(citing State v. Svenson, 104 Wn.2d 533,

542, 707 P.2d 120 (1985))). Rather, this court has treated the essential elements of a

crime as distinct from questions of jurisdiction. E.g., Lane, 112 Wn.2d at 468 ("The

State of Washington may exercise jurisdiction over a criminal offense if an essentiai

element of the offense occurred within the state but outside the land ceded to the

federal government (where the offense culminated)."); State v. Knutsen, 168 Wash.

633, 637, 12 P.2d 923(1932)(treating essential elements of the crime and jurisdiction

over those crimes as separate questions); see also State v. Dodson, 143 Wn. App

872, 878, 182 P.3d 436 (2008) ("[T]he district court had jurisdiction to hear [the

defendant's case] because an essential element of both offenses [charged] was

committed within an area of state jurisdiction.").

       In line with prior precedent, we reject Karpov's argument. Jurisdiction is not an

essentiai element of every crime. However, this does not resolve the issue. There is

another case, uncited by Karpov, that nevertheless provides the crucial answer in a

situation such as this: Evans. See generally 568 U.S. 313. Evans makes clear that

although jurisdiction is not an essential element of every crime, double jeopardy
state V. Karpov (Mikhail G.), No. 95080-6


nevertheless barred the State's appeal from the district court and prohibits retrial of

Karpov's case.

 II.   The trial court judicially acquitted Karpov

       The trial court judicially acquitted Karpov because it freafed jurisdiction as an

essential element of the offense (even though jurisdiction is not an essential element).

Scott, 437 U.S. 82, crafted the key inquiry into whether a dismissal was a judicial

acquittal. In Scott, the United States Supreme Court held that "where the defendant.

.. seeks to have the trial terminated without any submission to either judge or jury as

to his [or her] guilt or innocence," any resulting dismissal does not trigger double

jeopardy. Id. at 101."^ Thus, when a defendant "deliberately choos[es] to seek

termination of the proceedings against him [or her] on a basis unrelated to factual guilt

or innocence of the offense of which he [or she] is accused,[the defendant] suffers no

injury cognizable under the Double Jeopardy Clause." Id. at 98-99. Conversely,"when

'the ruling of the judge, whatever its label, actually represents a resolution [in the

defendant's favor], correct or not, of some or all of the factual elements of the offense

charged,'" the defendant is acquitted. Id. at 97 (alteration in original)(quoting United

States V. Martin Linen Suppiy Co., 430 U.S. 564, 571, 97 8. Ct. 1349, 51 L. Ed. 2d

642 (1977)).




"♦Although In part Scott speaks in terms of a federal statute, that federal statute, the 1971
amendment to the United States Criminal Appeals Act, made "appealability of a ruling
favorable to the defendant depend upon whether further proceedings upon reversal would be
barred by the Double Jeopardy Clause." Scott, 437 U.S. at 85, 94 (discussing 18 U.S.C. §
3731 (1976 ed.)). Thus, all holdings in Scott directly deal with the double jeopardy clause, not
just the federal statute.
state V. Karpov (Mikhail G.), No. 95080-6


       The Supreme Court has adhered to this doctrine of judicial acquittals to this

day. in Evans, decided in 2013, the Court reaffirmed Scott, making clear once more

that a dismissal by a trial judge is a judicial acquittal when it adjudicates the ultimate

question of factual guilt or innocence. 568 U.S. at 319. Such dismissals, the Court

elaborated, "encompass any ruling that the prosecution's proof is insufficient to

establish criminal liability for an offense." Id. at 318-19.

       But Evans did more than reaffirm Scott, it also clarified important aspects of

what constitutes a judicial acquittal. In Evans, the United States Supreme Court held

that when a trial court dismisses a case under the belief that the State failed to prove

an essential element of a crime, such a dismissal results in an acquittal—even when

that unproved element was not an element at all and it was thus erroneous for the trial

court to treat it as an element. 568 U.S. at 318-20. There, the defendant was charged

with arson. Id. at 316. At the close of the State's case, Evans moved for a directed

verdict of acquittal. Id. The trial court granted the motion on the ground that the State

had failed to prove that '"the building [burned] was not a dwelling house,"' which the

trial court incorrectly thought was an element of the offense. Id. On appeal, it turned

out this was not an element of the offense. Id. at 317. Nevertheless, the Supreme

Court held that the trial court judicially acquitted Evans because it had determined that

Evans was not guilty of the crime charged—even though the element the State had

failed to prove was not, in fact, an element of that crime. Id. at 323-24.

      Evans is the guiding light here. At the close of the State's case, defense counsel

asked the judge to acquit Karpov, on the ground that the State had not proved what

defense referred to as the "element" of jurisdiction. CP at 240. The district court
state V. Karpov (Mikhail G.), No. 95080-6


agreed. In the process, it was clear that the district court substantively treated
jurisdiction as an essential element of the crime. The district court expressly labeled
jurisdiction an "essential element." id. at 2. When dismissing for failure of proof of
jurisdiction, the trial court dismissed with prejudice, preventing the State from refiling
these charges. The combination of the label of "essential element" with the dismissal
with prejudice cleariy shows that just as in Evans, the trial court treated jurisdiction as

an essential element of the crime charged.® Just as in Evans, this dismissal based on

failure of proof of a nonexistent essential element resulted in a judicial acquittal. The

dismissal showed that substantively the district court "acted on its view that the

prosecution had faiied to prove its case." Evans, 568 U.S. at 325. Double jeopardy
therefore applies, barring both the State's appeal from district court and any attempt

to retry Karpov on these charges.

       Evans also goes unmentioned by the State in its briefing. Instead, like Karpov,

the State rests most of its argument on the nature of jurisdiction, arguing that

jurisdiction is not an essential element. E.g., Br. of Resp't at 9-10. But the State misses
the point. Evans makes clear that double jeopardy does indeed apply in this case,

despite the fact that jurisdiction is not an essential element of every crime.

       We emphasize the narrow nature of this holding. Our opinion does not mean

that every dismissal for failure to prove jurisdiction necessarily results in an acquittal.



® True, "like the term 'acquittal,' the phrase 'dismissal with prejudice''has no talismanic quality for
purposes of the Double Jeopardy Clause.'" State v. George, 160 Wn.2d 727, 742-43, 158 P.Sd
1169 (2007)(quoting Serfass, 420 U.S. at 392). But when combined with labeling jurisdiction an
essential element, the dismissal with prejudice works to show that the trial court treated
jurisdiction as an essential element.

                                                 10
state V. Karpov (Mikhail G.), No. 95080-6


It means only that when, as here, a trial court clearly acts on the belief that jurisdiction

is an essential element of the crime and dismisses the case because it concludes the

State has failed to prove jurisdiction, then the dismissal is a judicial acquittal.

                                     CONCLUSION


       We reverse the superior court and remand for the superior court to reinstate

the dismissal with prejudice. Double jeopardy barred the State's appeal from the

district court's dismissal and prohibits the retrial of Karpov on these charges.




                                            11
state V. Karpov (Mikhail G.), No. 95080-6




       WE CONCUR.




                                                 Qpc^'2^.U7,^'
                   . p)-.




                                            12
State V. Karpov {Mikhail G.), No. 95080-6
(Gordon McCloud, J., concurring)




                                     No. 95080-6


       GORDON McCLOUD,J.(concurring)—^The question presented in this case

is whether constitutional protections against double jeopardy bar retrial. The

majority agrees that this is the question presented. See, e.g., majority at 1

(summarizing Karpov's argument that "double jeopardy barred the State's initial

appeal and prohibits retrial" and the State's argument that "double jeopardy does

not apply here"), 3 (reciting single standard of de novo review for the single double

jeopardy issue presented by this case). And I agree with the majority that the

answer to that question is yes:jeopardy attached at the commencement of

Karpov's first district court trial;jeopardy terminated when the district court ruled

that there was insufficient evidence to support a conviction; and the constitutions

ofthis state and ofthe United States therefore bar retrial. Wash.Const, art. I, § 9;

U.S. Const,amend. V.


       The majority, however, focuses on a different question. It focuses on

whether jurisdiction constitutes an element of every state crime, and it answers that

question in the negative. Id. at 5-8. But that is not relevant: under the controlling
State V. Karpov {Mikhail G.), No. 95080-6
(Gordon McCloud, J., concurring)


authority ofEvans v. Michigan,'' it does not matter whether the trial court acquits a

defendant due to insufficient evidence of a real element or insufficient evidence of


a matter that the trial court mistakenly thought was an element. Either way, an

acquittal is an acquittal is an acquittal; the double jeopardy clauses bar retrial, the

defendant can depend on that as an end to the peril of retrial, and the State must

respect that as a bar to retrial. The majority's discussion ofjurisdiction being a

nonelement is therefore nonbinding dicta.^ In my opinion, it is also incorrect. I

therefore respectfully concur.

                                       Analysis


       After the State rested, Karpov moved to dismiss the State's charges with

prejudice on the ground that the State failed to prove a necessary element:

jurisdiction. Clerk's Papers(CP)at 236-39; see also id. at 240("If the [Sjtate

hasn't established [jurisdiction], the jury has to acquit on that... grounds."). After

considering the evidence in the light most favorable to the State, the district court

agreed that the State failed to establish jurisdiction and dismissed the charges. Id.




       1 568 U.S. 313, 133 S. Ct. 1069, 185 L. Ed. 2d 124(2013).

      ^ The majority seems to agree that its statements aboutjurisdiction are
unnecessary. As the majority explains, its conclusion on that issue "does not resolve the
issue" before the court and Evans "provides the crucial answer in a situation such as
this." Majority at 7-8.
State V. Karpov {Mikhail G.), No. 95080-6
(Gordon McCloud, J., concurring)


at 243-44; see also id. at 249-50 ("[I]t is ordered that the above cause numbers

shall be dismissed with prejudice based on the [Sjtate's failure to establish

jurisdiction."), 2(written order). The district court reasoned that "on not one

occasion was it established or inferred or even indicated that [the alleged crimes]

occurred in Spokane County." Id. at 243-44.

       Despite the district court's initial emphasis on the State's failure to establish

jurisdiction, the court later stated that it "dismiss[ed] the case based on the [Sjtate's

failure to establish jurisdiction and/or venue." Id. at 251; see also id. at 2(written

order). Apparently, the district court believed that it was the State's burden to

establish that the crimes had occurred in Spokane County and that it had failed to

do so—^regardless of whether that meant that the State had failed to prove

jurisdiction, venue, or both. Under controlling federal law, the result is the same

either way: the district court's dismissal with prejudice based on insufficiency of

the evidence was an acquittal that bars retrial. See majority at 4-5 (explaining that

when a judge rules that the prosecution's proof is insufficient, the judge acquits the

defendant and the defendant may not be retried—"even when the judge bases the

acquittal on an erroneous understanding ofthe elements of the crime."(citing

Evans, 568 U.S. at 319)).

       For the reasons discussed below, I would end the analysis there.
State V. Karpov {Mikhail G.), No. 95080-6
(Gordon McCloud, J., concurring)


       1.    The Double Jeopardy Clauses Bar This Appeal and Retrial Regardless
             of Whether the District Court Dismissed Due to Insufficient Evidence
             of Jurisdiction or Insufficient Evidence of Venue

       The district court treated jurisdiction or venue as an element, found no

evidence of it after the State rested, and dismissed with prejudice. As the majority

holds, this terminates jeopardy—^regardless of whether jurisdiction is really an

element, venue is really an element, or proof of either one was really insufficient.

That is exactly the holding ofEvans. See 568 U.S. at 324. So a discussion of

Evans is necessary to show that that issue alone resolves this case.

      In Evans, Michigan prosecuted the defendant for arson. Id. at 315. After

Michigan rested its case, the "[trial] court entered a directed verdict of acquittal,

based upon its view that [Michigan] had not provided sufficient evidence of a

particular element ofthe offense." Id. But "the unproven 'element' was not

actually a required element at all." Id. The trial court had mistakenly made up the

"element" based on conftisingly worded pattern jury instructions. Id. at 316.

"There is no question that the trial court's ruling was wrong; it was predicated

upon a clear misunderstanding of what facts [Michigan] needed to prove under

[Michigan]law." Id. at 320.

       The Supreme Court nevertheless held that the trial court's directed verdict of

acquittal terminated Evans'jeopardy and barred retrial. Id. at 324. So even though
State V. Karpov {Mikhail G.), No. 95080-6
(Gordon McCloud, J., concurring)


the trial court's ruling said nothing about whether the State had proved '"some or

all of the factual elements of the offense charged,'" United States v. Scott, 437 U.S.

82, 97, 98 S. Ct. 2187, 57 L. Ed. 2d 65(1978)(quoting United States v. Martin

Linen Supply Co., 430 U.S. 564, 571,97 S. Ct. 1349, 51 L. Ed. 2d 642(1977)), it

was nonetheless an acquittal that terminated jeopardy because it "resolved the

question of Evans' guilt or innocence as a matter ofthe sufficiency of the evidence,

not on unrelated procedural grounds," Evans, 568 U.S. at 324.

       The lesson ofEvans is that a trial court's understanding of the law has

nothing to do with whether jeopardy terminates. A trial court can have wildly

mistaken views about what the State must prove. Id. at 325 (agreeing that jeopardy

terminates when a trial court's acquittal is based on a facially absurd reason, such

as "the prosecution [having] failed to prove 'that the structure burned [was] blue'"

(second alteration in original)). What matters for double jeopardy purposes is that

the trier offact assesses evidence and deems it insufficient, regardless of what

metric it uses to determine sufficiency.

       II.   Jurisdiction Is an Essential Element of Every Crime

       The double jeopardy discussion above answers the question presented. The

majority's discussion of whether jurisdiction is an element is therefore dicta. But I

must write separately, now, because that dicta is incorrect.
State V. Karpov {Mikhail G.), No. 95080-6
(Gordon McCloud, J., concurring)


       Our decisions have long made clear that the State must prove jurisdiction in

every criminal prosecution. "Jurisdiction is the power of a court to hear and

determine a case." State v. Lane, 112 Wn.2d 464,468, 111 P.2d 1150(1989)

(citing State v. Hampson,9 Wn.2d 278, 281, 114 P.2d 992(1941); 20 Am.Jur. 2d

Courts § 88, at 449(1965)). "Proof ofjurisdiction beyond a reasonable doubt is an

integral component of the State's burden in every criminal prosecution." State v.

Squally, 132 Wn.2d 333, 340, 937 P.2d 1069(1997)(citing State v. Svenson, 104

Wn.2d 533, 542, 707 P.2d 120 (1985)).

       Although the defendant may contest the court's jurisdiction before trial,^ the

matter cannot be conclusively resolved against the defendant at that time. Lane,

112 Wn.2d at 476 & n.31 (citing Svenson, 104 Wn.2d at 542; Lane v. State,

388 So. 2d 1022, 1029 (Fla. 1980)(per curiam)). In that respect,jurisdiction is

like any other element that the defendant may challenge in a pretrial Knapstad

motion. See State v. Knapstad, 107 Wn.2d 346, 356-57, 729 P.2d 48 (1986). And

just as when the State prevails in a pretrial Knapstad motion, it retains the burden

of proving the challenged element at trial, so too does the State retain the burden of

proving that—as a faetual matter—jurisdiction exists. Id.\ see, e.g.. State v.



       ^ See, e.g.. State v. Norman, 145 Wn.2d 578, 581,40 P.3d 1161 (2002); Lane,
112 Wn.2dat467.
State V. Karpov {Mikhail G.), No. 95080-6
(Gordon McCloud, J., concurring)


Vickers, 18 Wn. App. Ill, 114, 567 P.2d 675 (1977)(holding that whether

offenses were committed in Oregon or Washington was a jury question)."^

       The majority correctly notes that jurisdiction is "the court's authority or

power" and "must underlie every case that is brought before a judge." Majority at

5. But the majority fails to recognize that jurisdiction involves a factual question.

In this case, that question is: Where did the crime occur?

       We need go no further than this court's own precedent in Lane to see that

this is a factual question. In Lane, the State charged the defendants with

aggravated first degree murder. 112 Wn.2d at 465. All parties agreed "that the

fatal wounds were inflicted, and the victim's death occurred, in [Fort Lewis, an]

area of exclusive federal jurisdiction." Id. at 470. Relying on that fact, the


        The majority cites Serfass v. United States, 420 U.S. 377, 391,95 S. Ct. 1055, 43
L. Ed. 2d 265 (1975), and State v. Cockrell, 102 Wn.2d 561, 567, 689 P.2d 32(1984), in
support ofits position thatjurisdiction does not constitute an element. Majority at 5-6.
Those decisions stand for different rules, though. Serfass stands for the rule that the State
may appeal a trial court's pretrial dismissal—even if it is based on proffered facts—
because at that point,jeopardy has not attached—it does not attach until the trial starts.
420 U.S. at 388-92. And Cockrell confuses legal error (in denying a properly and timely
filed affidavit of prejudice) with lack ofjurisdiction—a problem that we have since
recognized runs through several of our decisions. See State v. Peltier, 181 Wn.2d 290,
294-98, 332 P.3d 457(2014)(highlighting this problem and explaining the difference
between legal error and lack ofjurisdiction). Although Cockrell does not use this
wording, the rule that it really stands for is that the double jeopardy clauses do not bar a
defendant's retrial after the defendant is convicted but then appeals and obtains reversal.
102 Wn.2d at 564, 567. That rule is uncontroversial and well established. See Scott,
A31 U.S. at 90-91 (citing Burks v. United States, 437 U.S. 1, 10, 98 S. Ct. 2141, 57 L.
Ed. 2d 1 (1978)).

                                             7
State V. Karpov {Mikhail G.), No. 95080-6
(Gordon McCloud, J., concurring)


defendants filed a pretrial motion to dismiss the charges for lack ofjurisdiction.

Id. at 467. The trial court denied the motion, and we affirmed its ruling on

interlocutory review. Id. at 467,476.

       We recognized that the trial court had jurisdiction "if an essential element of

the crime was committed within the state of Washington outside Fort Lewis." Id.

at 471. Even though the State conceded that one of the elements of the crime—

infliction of the fatal wounds—had occurred inside Fort Lewis(and therefore

outside Washington's jurisdiction), it contended that it could prove that another

element—^premeditation—^had occurred outside Fort Lewis(and therefore within

Washington's jurisdiction). Id. at 470. We agreed that the State's evidence on this

point—an affidavit—sufficed in the pretrial setting to establish the jurisdictional

facts necessary for the superior court to hold a trial. Id. at 466,476 (concluding

that "based on the showing made by the State at this point in the case, that the State

of Washington does have jurisdiction to proceed with [the] trial"(emphasis

added)). We made clear, however, that ''at trial the State will have the burden of

proving beyond a reasonable doubt [to the trier offact] that jurisdiction does in fact
State V. Karpov {Mikhail G.), No. 95080-6
(Gordon McCloud, J., concurring)


rest with the Washington courts." Id. at 476 & n.31 (emphasis added)(citing

Svenson, 104 Wn.2d at 542; Lane, 388 So. 2d at 1029).^




       ^ The decision in State v. L.J.M., 129 Wn.2d 386, 918 P.2d 898 (1996), is not to
the contrary(and did not silently overmle Lane).

       In L.J.M., the State introduced evidence demonstrating that an offense took place
in a part of Washington "that the parties agree[d][was] within the extemal geographic
boundaries ofthe Colville Indian Reservation." 129 Wn.2d at 388. The question was
whether that showing satisfied the State's burden of proof, given that the defendant
testified that he was a member of the Colville Confederated Indian Tribe. Id. at 390.
Because of the defendant's tribal affiliation, the state Supreme Court could exercise
jurisdiction only if the offense occurred on fee title land within the reservation. Id. at 389
& n.2(quoting RCW 37.12.100).

      We explained that a showing that "the site of the alleged crime is within the state
of Washington" established the State's prima facie case thatjurisdiction existed, which
the parties had agreed was the State's burden. Id. at 392, 394. It is true that we did not
explicitly state that the burden of proof was beyond a reasonable doubt. But we did not
need to state as much—^the parties were in agreement. So L.J.M. does not conflict with
the beyond-a-reasonable-doubt standard. Nor did it endorse a burden-shifting scheme; it
simply held that as in any other case with any other element, the State must make a prima
facie showing ofjurisdiction.

       L.J.M. had another holding, though. It ruled that the court, not the jury, may
determine that the State has carried its burden of proving jurisdictional facts. Id.
at 396-97. Subsequent United States Supreme Court authority compels us to follow
Lane, not L.J.M. Both L.J.M. and Lane preceded the United States Supreme Court's
dQcision mApprendi v. New Jersey, which recognized the importance ofjurors as fact
finders. 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Lane is more
consistent with Apprendi and the line of decisions that follow it. Additionally, because
an assertion ofjurisdiction always relies on an accompanying assertion offact. Lane is
more consistent with our state constitution, which allocates matters oflaw to the court
and matters of fact(or mixed fact and law)to the jury. WASH.CONST, art. IV,§ 16; State
V. Becker, 132 Wn.2d 54, 935 P.2d 1321 (1997). Finally, Lane is more consistent with
our own decisions described in this opinion; L.J.M. is the outlier.

                                              9
State V. Karpov {Mikhail G.), No. 95080-6
(Gordon McCloud, J., concurring)


       Washington's pattern jury instructions are certainly not binding precedent,

but they are well researched and persuasive, and they reflect this requirement. The

general "to convict" instruction includes as an element that must be proved

"beyond a reasonable doubt" the following: "That any of these acts occurred in the

[territory of the court's jurisdiction]." 11 Washington Practice: Washington

Pattern Jury Instructions: Criminal 4.21, at 108 (4th ed. 2016)(WPIC).^ The

same can be found in the pattern "to convict" instructions for the specific indecent

exposure offenses charged here.^ See WPIC 47.02, at 952("Indecent Exposure—



        ® Depending on the offense, the State may bring charges in superior court, district
court, or municipal court. Because a superior court has statewide jurisdiction, WASH.
Const, art. IV, § 6, the requisite showing for a prosecution in that court is that one ofthe
acts took place in Washington. RCW 9A.04.030;Zane, 112 Wn.2d at 470-71. Because a
district court has countywide jurisdiction (as in this case), WASH.CONST, art. IV,§ 10;
RCW 3.66.060, the requisite showing for a prosecution in that court is that one of the acts
took place in the county in which the district court sits. But see WPIC 4.20, at 107
(noting that the rule may be different when the district court functions as a municipal
court pursuant to an interlocal government agreement). And because a municipal court
has municipality-wide jurisdiction, WASH. CONST, art. IV,§ 12; RCW 3.50.020, the
requisite showing for a prosecution in that court is that one of the acts took place within
the municipality. In that vein, the pattern instruction lists "State of Washington,""City
of        ," and "County of        "as the possible territorial options, and for that "final
element," the accompanying note tells the court to "choose from among [the three]
depending on whether the case is in superior, municipal, or district court." WPIC 4.21, at
108 (emphasis added).

       ^ Because the State declined to make the information part ofthe record on appeal,
see State v. Sisouvanh, 175 Wn.2d 607,619, 290 P.3d 942(2012)(noting that the party
seeking appellate review ordinarily bears the burden of establishing the record on appeal
(citing RAP 9.2(b))), we do not know whether the State brought its charges as
misdemeanors, gross misdemeanors, or a mix of the two. See RCW 9A.88.010
                                             10
State V. Karpov {Mikhail G.), No. 95080-6
(Gordon McCloud, J., concurring)


Person Fourteen Years or Older—Elements"); WPIC 47.04, at 955 ("Indecent

Exposure—Person Under Fourteen Years—Elements");see also WPIC 4.20, at

105 ("Jurisdiction in a criminal case must be proved beyond a reasonable doubt.

The 'to convict' instruction must always include an element addressing the court's

jurisdiction."(citation omitted)).

       The State bears this burden of proof"because not only are significant rights

of the defendant affected, but the State is exercising its sovereignty and is bound to

assure that it does so with authority." Svenson, 104 Wn.2d at 542. That purpose is

substantive: it provides the defendant with protection against the unlawful exercise

of government power.^

       The majority suggests that jurisdiction is an essential element only when the

statute defining the particular crime charged lists a locational element. Majority at




(delineating indecent exposure offenses). The information, of course, must allege that
"the crime was committed within the jurisdiction of the court." RCW 10.37.050(4).

       ^ This mle also affords respect to other sovereigns, including the federal
government, other states, and tribal nations. Washington's unconsented-to exercise of
criminal jurisdiction over affairs that are exclusively within the jurisdiction of another
sovereign would invade that sovereign's interests. Cf. Nielsen v. Oregon, 212 U.S.
315, 320-21,29 S. Ct. 383, 53 L. Ed. 528(1909)(holding that Oregon cannot prosecute a
Washingtonian for conduct that is lawful in Washington but unlawful in Oregon, given
that the conduct occurred in Washington); State v. Hornaday, 105 Wn.2d 120, 129,
713 P.2d 71 (1986)(noting that 20-year-old Washingtonian who lawfully consumes
alcohol in British Columbia does not violate Washington's minor-in-possession statute).

                                             11
State V. Karpov {Mikhail G.), No. 95080-6
(Gordon McCloud, J., concurring)


6-7. But we have already recognized that a crime's "essential elements" come

from case law as well as statute. State v. Johnson, 119 Wn.2d 143, 146-47, 829

P.2d 1078 (1992); State v. Kjorsvik, 117 Wn.2d 93, 95-102, 812 P.2d 86(1991).

And in any event, a statute cannot relieve the State of its burden of proving that it

is exercising its power within the bounds of its authority. Svenson, 104 Wn.2d

at 542. Moreover, the lack of a locational element in the murder statutes at issue in

Lane did not prevent this court from holding that "at trial the State will have the

burden of proving beyond a reasonable doubt that jurisdiction does infact rest with

the Washington courts." 112 Wn.2d at 476(emphasis added); see former RCW

9A.32.030(1975); former RCW 10.95.020 (1981).

      In my view,jurisdiction constitutes an element of every state crime. The

question ofjurisdiction is sometimes a legal question for the court before trial, but

it is always a question offact for the fact finder at trial. So the State must

introduce evidence that satisfies the trier offact, beyond a reasonable doubt, that

jurisdiction exists. And once the judge or the jury determines that the State failed

to meet its burden,jeopardy is terminated, and the defendant cannot be retried on

the same charges. Evans, 568 U.S. at 328; see also State v. Collins, 112 Wn.2d

303, 307, 111 P.2d 350(1989)(stating that "the judge acted as the trier offact"




                                            12
State V. Karpov {Mikhail G.), No. 95080-6
(Gordon McCloud, J., concurring)


when the judge viewed the evidence in the light most favorable to the State and

ruled on the defendant's motion to dismiss for insufficient evidence).

                                      Conclusion


       After the State rested, the district court ruled that the State had failed to

introduce sufficient evidence to convict. The court therefore dismissed with


prejudice. I agree with the majority that the double jeopardy clauses of our state

and federal constitutions bar retrial, and I would end the analysis there. I disagree

with the majority's unnecessary discussion of whether jurisdiction is an element of

every state crime; I also disagree with its conclusion on that point. I therefore

respectfully concur.




                                            13
State V. Karpov {Mikhail G.), No. 95080-6
(Gordon McCloud, J., concurring)




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