       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: _______________

Filing Date: September 8, 2014

Docket No. 32,774

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

CHRISTOPHER ALLEN,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
John Dean, District Judge

Gary K. King, Attorney General
Santa Fe, NM
M. Anne Kelly, Assistant Attorney General
Albuquerque, NM

for Appellee

Law Office of the Public Defender
Jorge A. Alvarado, Chief Public Defender
B. Douglas Wood III, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                       OPINION

VIGIL, Judge.

{1}    This is an identity theft case. The question presented is whether Defendant can be
prosecuted in New Mexico when he never set foot in New Mexico, and all the acts of using
Victim’s identity occurred in other states. Concluding that New Mexico has jurisdiction to
prosecute Defendant, we affirm.


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BACKGROUND

{2}     Victim attempted to obtain a New Mexico driver’s license and discovered that
someone had used his identifying information to obtain an Arizona driver’s license. A police
investigation revealed that Defendant used Victim’s identity to obtain a driver’s license in
Arizona, rent cars in Arizona, Nevada, and Georgia, and to provide booking information
upon his arrest in Georgia. It is undisputed that none of the acts of using Victim’s identity
took place in New Mexico and that Victim resided in San Juan County, New Mexico at the
time of the transactions. The State charged Defendant with eight counts of identity theft
contrary to NMSA 1978, Section 30-16-24.1(A) (2009), which provides:

       Theft of identity consists of willfully obtaining, recording or transferring
       personal identifying information of another person without the authorization
       or consent of that person and with the intent to defraud that person or another
       or with the intent to sell or distribute the information to another for an illegal
       purpose.

{3}     Defendant filed a motion to dismiss for lack of jurisdiction. The motion focused on
the fact that the alleged crimes took place in Arizona, Nevada, and Georgia–not New
Mexico. He argued that the fact that Victim resides in New Mexico is irrelevant because
under the United States and New Mexico constitutions, “[a] crime must be prosecuted in the
jurisdiction where it was committed.” The State opposed the motion, asserting that Section
30-16-24.1(G) grants New Mexico jurisdiction because under Section 30-16-24.1(G)(1), the
crime is deemed to have been committed in the county where the victim resides. Defendant
insisted that Section 30-16-24.1(G) is solely a venue statute, relevant in cases where New
Mexico otherwise has jurisdiction and that Section 30-16-24.1(G) cannot confer New
Mexico with jurisdiction to prosecute crimes committed outside of New Mexico. Defendant
asserts to interpret Section 30-16-24.1(G) otherwise, would render it unconstitutional.

{4}    The district court denied Defendant’s motion. The district court did not rely on
Section 30-16-24.1(G), ruling instead:

             1.     If any of the elements of the crime of theft of identity occurred
       in New Mexico, [the district c]ourt has subject matter jurisdiction.

              2.      One element of the crime is that the alleged offender used the
       personal identifying information of another without the authorization of the
       owner of the personal identifying information.

              3.     The “without authorization” element of theft of identity can
       only occur where the owner of the personal identifying information resides.

              4.      The State alleges that [Victim] did not authorize the use of his
       personal identifying information by . . . Defendant and that [Victim] resides

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       in San Juan County, New Mexico.

               5.     If these allegations are proven, the “without authorization”
       element occurred in New Mexico and [the district c]ourt has subject matter
       jurisdiction over the alleged crimes and . . . Defendant’s Motion to Dismiss
       For Lack of Jurisdiction should be denied.

(Footnote omitted).

{5}     Thereafter, Defendant plead guilty to two of the counts of identity theft, reserving
his right to appeal the denial of the motion to dismiss. This appeal followed.

DISCUSSION

{6}     Defendant argues that the district court erred as a matter of law in ruling that the
“without authorization” element of identity theft can only occur where the owner of the
personal identifying information resides. Thus, Defendant asserts, the district court erred
in concluding that it had jurisdiction because Victim lived in New Mexico, and a New
Mexico district court has jurisdiction over the offense if any of the elements of theft identity
occurred in New Mexico. It is not necessary for us to determine whether the “without
authorization” of the crime must occur where the victim resides because, as discussed below,
we conclude that the district court otherwise had jurisdiction. “As a general rule, however,
we will uphold the decision of a district court if it is right for any reason.” State v. Ruiz,
2007-NMCA-014, ¶ 38, 141 N.M. 53, 150 P.3d 1003; see also State v. Wilson, 1998-
NMCA-084, ¶ 17, 125 N.M. 390, 962 P.2d 636 (“Appellate courts usually apply the right
for any reason basis of affirmance to strictly legal questions.”).

A.      Standard of Review

{7}      Our standard of review is de novo for three reasons. First, issues of subject matter
jurisdiction are reviewed under a de novo standard. State v. Gutierrez, 2011-NMCA-088,
¶ 3, 150 N.M. 505, 263 P.3d 282 (“‘We review jurisdictional issues . . . under a de novo
standard of review.’” (quoting State v. Heinsen, 2005-NMSC-035, ¶ 6, 138 N.M. 441, 121
P.3d 1040)); see State v. Chavarria, 2009-NMSC-020, ¶ 11, 146 N.M. 251, 208 P.3d 896
(“Questions regarding subject matter jurisdiction are questions of law which are subject to
de novo review.” (internal quotation marks and citation omitted)). Second, because the
pertinent facts are undisputed, we review de novo whether the law was correctly applied to
those facts. See State v. Gutierrez, 2004-NMCA-081, ¶ 4, 136 N.M. 18, 94 P.3d 18 (stating
that when the material facts are undisputed, we apply a de novo standard of review to the
district court’s application of the law to those facts). Finally, to the extent we are required
to construe Section 30-16-24.1, our review is de novo. See State v. Smith, 2004-NMSC-032,
¶ 8, 136 N.M. 372, 98 P.3d 1022 (“We review questions of statutory interpretation [de
novo].”).


                                               3
B.      Jurisdiction Versus Venue

{8}     The State insists that because the district court is a court of general jurisdiction under
Article VI, Section 13 of the New Mexico Constitution with jurisdiction to try an identity
theft offense, and the district court obtained personal jurisdiction over Defendant, the issue
actually presented is one of venue, not jurisdiction. We disagree.

{9}     It is clear that “venue is not to be equated with jurisdiction.” State ex rel. Dep’t of
Pub. Safety v. One 1986 Peterbilt Tractor, 1997-NMCA-050, ¶ 23, 123 N.M. 387, 940 P.2d
1182; see Kalosha v. Novick, 1973-NMSC-010, ¶¶ 24-25, 84 N.M. 502, 505 P.2d 845
(explaining that venue and jurisdiction are distinct concepts and overruling cases to the
extent that they treat them as the same). “Jurisdiction goes to the power of a court to
entertain the cause, while venue simply goes to the convenient and proper forum.” One 1986
Peterbilt Tractor, 1997-NMCA-050, ¶ 23 (internal quotation marks and citation omitted).
Nevertheless, limits on jurisdiction and venue may sometimes overlap. Professor LaFave
explains:

                 The most common overlap stems from the jurisdictional limits that
        restrict by reference to the geographical locus of the offense the authority of
        the judiciary to apply the laws of the particular government (national, state,
        or municipality) of which it is a part. . . . [S]uch jurisdictional limits are tied
        to the territorial reach of the particular government’s legislative power. If the
        events that would give rise to a criminal charge occurred beyond that
        territorial reach, then the government cannot grant to its courts the authority
        to apply its criminal laws to those events. If the government’s legislative
        power could reach those events, then the judiciary of that government is said
        to have ‘jurisdiction’ over the offense. To say that the judiciary has such
        jurisdiction, however, is not to say that every judicial district within that
        judiciary is a proper locality for the prosecution of the offense. The
        determination of proper locality is what the setting of venue is about. It
        looks to the convenience of the forum rather than the territorial reach of the
        government’s legislative power.

4 Wayne R. LaFave et al., Criminal Procedure § 16.1(a), at 692 (3d ed. 2007) (footnotes
omitted); see also People v. McLaughlin, 606 N.E.2d 1357, 1359 (N.Y. 1992) (stating that
venue refers to the proper county or place of trial and that the territorial jurisdiction which
“goes to the very essence of the [s]tate’s power to prosecute”).

{10} Thus, the State’s argument overlooks the requirement that a criminal charge must
have been committed within the territorial reach of the court for it to have authority (i.e.,
jurisdiction) to try the case. See Heckathorn v. Heckathorn, 1967-NMSC-017, ¶ 10, 77 N.M.
369, 423 P.2d 410 (“There are three jurisdictional essentials necessary to the validity of
every judgment: jurisdiction of parties, jurisdiction of subject matter and power or authority
to decide the particular matter presented.”).

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{11} At common law, the rule of territorial jurisdiction is that “[t]he criminal law of a state
has no operation or effect beyond its geographical or territorial limits.” Rios v. State, 733
P.2d 242, 245 (Wyo. 1987) (second alteration, internal quotation marks, and citation
omitted); see also State v. Dudley, 581 S.E.2d 171, 176 (S.C. Ct. App. 2003) (“Common law
has established ‘a territorial principle as the jurisdictional foundation for the reach of state
laws. Under that principle, states have power to make conduct a crime only if that conduct
takes place, or its results occur, within the state’s territorial borders.’” (quoting 4 Wayne R.
LaFave et al., Criminal Procedure § 16.1(a), at 459 (2d ed.1999)), aff’d as modified, 614
S.E.2d 623; In re Vasquez, 705 N.E.2d 606, 610 (Mass. 1999) (“The general rule, accepted
as ‘axiomatic’ by the courts in this country, is that a [s]tate may not prosecute an individual
for a crime committed outside its boundaries.”).

{12} On the other hand, there can be no territorial jurisdiction where conduct and its
results both occur outside the state’s territory. See 4 Wayne R. LaFave, Criminal Procedure
§ 16.4(c), at 838-39 (3d ed. 2007); see also Rollin M. Perkins, The Territorial Principle in
Criminal Law, 22 Hastings L.J. 1155, 1165 (1970-71) (noting that a state may not “punish
what is done within the exclusive territorial jurisdiction of another state”). The United States
Supreme Court early in our nation’s history expounded on this principle stating, “We answer
[whether a state can prosecute a defendant for acts committed outside its borders], without
hesitation, the jurisdiction of a state is co-extensive with its territory; co-extensive with its
legislative power.” See United States v. Bevans, 16 U.S. 336, 386-87 (1818).

{13} The principle has been recognized in New Mexico. See State v. Mirabal, 1989-
NMCA-057, ¶ 12, 108 N.M. 749, 779 P.2d 126 (recognizing that “the record must establish
that a defendant committed the crime in New Mexico” to satisfy jurisdictional requirements);
State v. Wise, 1977-NMCA-074, ¶ 18, 90 N.M. 659, 567 P.2d 970 (explaining that venue
relates to which county within a state is proper, and a challenge to venue can be waived, “so
long as the crime occurred in New Mexico”); State v. Ramirez, 1976-NMCA-101, ¶ 23, 89
N.M. 635, 556 P.2d 43 (recognizing that a challenge that the state failed to prove the crime
was committed in New Mexico as a challenge to New Mexico’s authority to prosecute the
crime), overruled on other grounds by Sells v. State, 1982-NMSC-125, 98 N.M. 786, 653
P.2d 162; State v. Losolla, 1972-NMCA-085, ¶¶ 4-5, 84 N.M. 151, 500 P.2d 436 (reversing
the defendant’s conviction for lack of jurisdiction because the state failed to prove that the
defendant used drugs in New Mexico and “the law is that a crime must be prosecuted in the
jurisdiction where it was committed”); see generally, New Mexico Criminal Uniform Jury
Instructions (requiring that the jury find that the crime “happened in New Mexico”). Thus,
Defendant correctly argues that his challenge to the State’s authority to prosecute him is an
attack on its jurisdiction.

{14} Defendant asserts that convicting him for crimes in which the actions occurred
outside of New Mexico denies him due process of law. See N.M. Const. art II, § 18; U.S.
Const. amend. XIV. In support of his assertion, Defendant specifically refers us to
provisions in the United States and New Mexico constitutions which guarantee a defendant
the right to a trial where the crime is alleged to have been “committed” as sources of

                                               5
territorial jurisdiction. See N.M. Const. art. II, § 14 (stating that a defendant has a right to
a trial by an impartial jury “of the county or district in which the offense is alleged to have
been committed”); U.S. Const. amend. VI (stating that the accused has a right to a trial by
an impartial jury “of the [s]tate and district wherein the crime shall have been committed”).
However, these constitutional provisions have been construed as venue requirements, and
not jurisdictional requirements. See State v. Lopez, 1973-NMSC-041, ¶ 12, 84 N.M. 805,
508 P.2d 1292 (explaining that Article II, Section 14 of the New Mexico Constitution and
similar statutory provisions “have been construed and are considered as conferring a
personal right or privilege of venue on the accused”); United States v. Passodelis, 615 F.2d
975, 976-77 (3d Cir. 1980) (discussing United States Supreme Court cases addressing the
Sixth Amendment as “[a] venue provision[] of the Constitution”). Thus, we do not construe
these constitutional provisions as sources of territorial jurisdiction. See Rios, 733 P.2d at
245 (rejecting the proposition that the Sixth Amendment is a source of territorial jurisdiction
for Wyoming state courts because it is a venue provision). We now turn to whether New
Mexico exceeded its jurisdictional limits by prosecuting Defendant for acts he committed
in other states.

B.      Evolution of Territorial Jurisdiction

{15} Historically, the concept of territorial jurisdiction was strictly applied. See Dudley,
581 S.E.2d at 177 (explaining that “[u]nder the historical strict territorial principle, a state
court had jurisdiction only over those crimes which occurred entirely within that state’s
boundaries; if any essential element occurred in another state, neither possessed jurisdiction
over the criminal offense. Under this view of jurisdiction, only one state could have
jurisdiction over a particular crime.” (internal quotation marks and citation omitted)). Early
on, this jurisdictional loophole was addressed legislatively in the context of murders where
the stroke was committed in one state and the fatal blow received in another. In State v.
Hall, 19 S.E. 602 (N.C. 1894), the North Carolina Supreme Court noted that in ancient times
it was unclear whether a murder should be prosecuted where the fatal blow was struck or
where it was received. As a result, states began enacting legislation providing for a
prosecution where the blow was received. Such legislation was “never questioned” when
applied to acts of murder spanning different counties within a state, “but where its provisions
have been extended so as to affect the jurisdiction of the different states, its constitutionality
has been vigorously assailed. Such legislation, however, has been very generally, if not,
indeed, uniformly, sustained.” Id. at 603. “Statutes of this character are founded upon the
general power of the legislature, except so far as restrained by the constitution of the
commonwealth and the United States, to declare any willful or negligent act which causes
an injury to person or property within its territory to be a crime.” Id. The court added that
the validity of these types of statutes “seems to be undisputed; and indeed it has been held
in many jurisdictions that such legislation is but in affirmance of the common law.” Id.

{16} In Strassheim v. Daily, 221 U.S. 280 (1911), the United States Supreme Court
expanded the limits of strict territorial jurisdiction in the absence of any legislation. In
Strassheim, the defendant was indicted in Michigan for bribery and obtaining money from

                                                6
the state of Michigan by false pretenses, based upon his involvement in selling the state used
machinery represented as new. Id. at 281-82. He was arrested in Illinois and contested his
extradition to Michigan, arguing that Michigan lacked jurisdiction because the alleged acts
were completed entirely in Illinois. The defendant argued, and the Court assumed, that none
of his acts were committed in Michigan. Nevertheless, the Court opined,

        [T]he usage of the civilized world would warrant Michigan in punishing him,
        although he never had set foot in the state until after the fraud was complete.
        Acts done outside a jurisdiction, but intended to produce and producing
        detrimental effects within it, justify a state in punishing the cause of the harm
        as if he had been present at the effect, if the state should succeed in getting
        him within its power.

Id. at 284-85. From Strassheim we conclude that if a crime has a detrimental effect in a
state, that state has territorial jurisdiction to prosecute the perpetrator notwithstanding that
the acts were committed entirely within another state.

{17} Applying the detrimental effects theory, many states have enacted laws that focus on
where the effects of a criminal act are felt to establish territorial jurisdiction. See 4 Wayne
R. LaFave et al., supra, § 16.4(c), at 847-48 (“A substantial majority of the states today have
statutes that adopt an interpretation of the territorial principle substantially more expansive
than the traditional common law position[, s]upported by the broad view of the territorial
principle set forth by Justice Holmes in . . . Strassheim[.]”); Dudley, 581 S.E.2d at 177
(listing samples of such statutes). The constitutionality of such legislation has been
repeatedly assailed and upheld. People v. Govin, 572 N.E.2d 450, 454 (Ill. App. Ct. 1991)
(upholding the constitutionality of a statute conferring jurisdiction if the result occurs in the
state based on Strassheim); State v. Paiz, 777 S.W.2d 575, 577 (Tex. Ct. App. 1989)
(upholding the constitutionality of statutes conferring Texas with jurisdiction over the
defendant who failed to pay child support for a child living in Texas although the defendant
was not a resident of Texas, concluding that “Texas courts have jurisdiction over the subject
matter of this cause and are justified in punishing the acts or omissions of [the defendant]
even though he neither resided nor visited Texas nor violated a Texas court order” because
the detrimental effects of the defendant’s nonpayment of child support were felt in Texas),
aff’d, 817 S.W.2d 84; see also Rios, 733 P.2d at 246-49 (discussing thoroughly decisions
from other states regarding the impact of Strassheim); see also 4 Wayne R. LaFave et al.,
supra, § 16.4(c), at 855 (“Courts have regularly upheld the constitutionality of the expanded
territorial jurisdiction provided by territorial scope legislation. Because such legislation
adheres to the territorial principle, it is held not to violate due process and to be consistent
with the Sixth Amendment’s ‘vicinage clause’ (should it be applicable to the states).”
(footnote omitted)).

C.      Section 30-16-24.1(G)

{18}    Defendant acknowledges the impact of Strassheim in this case, but insists that the

                                               7
district court must have been able to point to a specific legislative enactment that
encompasses the detrimental effects theory of Strassheim and therefore confers New Mexico
with jurisdiction. We disagree with Defendant that New Mexico’s territorial jurisdiction
must be expressed by a statute. The principles recognized by Justice Holmes in Strassheim
provide the basis for New Mexico’s exercise of jurisdiction in the absence of legislation. See
Dudley, 581 S.E.2d at 525-26 (discussing additional decisions recognizing the detrimental
effects doctrine set forth in Strassheim independent of any legislation and going on to
explain that the absence of such legislation is not dispositive); Rios, 733 P.2d at 249 (“While
Wyoming does not have a specific statute which permits the exercise of jurisdiction when
extraterritorial conduct causes a result in this state, the concept articulated in Strassheim .
. . does not depend upon the existence of such a statute.”); In re Vasquez, 705 N.E.2d at 611
(holding that a state is not precluded from relying on rule in Strassheim—even absent a
statute—given the “Strassheim Court itself made no reference to the need for such a
statutory provision”).

{19} Nonetheless, the Legislature enacted Section 30-16-24.1(G). Section 30-16-24.1(G)
in its entirety provides:

               G.       In a prosecution brought pursuant to this section, the theft of
       identity or obtaining identity by electronic fraud shall be considered to have
       been committed in the county:
                        (1)     where the person whose identifying information was
       appropriated, obtained or sought resided at the time of the offense; or
                        (2)     in which any part of the offense took place, regardless
       of whether the defendant was ever actually present in the county.While
       Section 30-16-24.1(G) necessarily relates to venue, we believe it also has an
       impact upon territorial jurisdiction. The crime of identity theft necessarily
       affects the victim, and Section 30-16-24.1(G) expressly provides that the
       crime is “considered to have been committed” in the county where the victim
       resides. This language therefore accomplishes a dual purpose. First, it
       establishes the proper county within New Mexico where the crime may be
       prosecuted (venue). Second, it sets forth a legislative determination that
       because the crime has an effect upon the victim in New Mexico, New
       Mexico has territorial jurisdiction over the offense, even if the acts are
       committed in another state. See State v. Ogden, 1994-NMSC-029, ¶ 24, 118
       N.M. 234, 880 P.2d 845 (“The principal command of statutory construction
       is that the court should determine and effectuate the intent of the
       [L]egislature, using the plain language of the statute as the primary indicator
       of legislative intent[.]” (citations omitted)). Here, Victim encountered issues
       trying to get a driver’s license in New Mexico, and Victim was mailed rental
       car bills in New Mexico that were incurred by Defendant outside of New
       Mexico. Defendant’s extraterritorial actions had detrimental effects upon
       Victim in New Mexico. Therefore, whether pursuant to Section 30-16-
       24.1(G), or Strassheim, New Mexico had jurisdiction to prosecute Defendant.

                                              8
D.     Defendant’s Remaining Arguments

{20} Defendant argues that Article II, Section 14 of the New Mexico Constitution “may”
provide greater protection than the United States Constitution, implying that application of
the detrimental effects theory of Strassheim is unconstitutional in New Mexico. He supports
this proposition with nothing more than a citation to Article II, Section 14 of the New
Mexico Constitution. That section mirrors the Sixth Amendment of the United States
Constitution so, without more, we are unpersuaded that on its face the New Mexico
Constitution affords Defendant with greater protection. Moreover, we have already
explained that Article II, Section 14 relates to venue, not jurisdiction, so it is of no aid to
Defendant’s attack on Strassheim. Since Defendant failed to articulate and support why he
should be afforded greater protection in New Mexico, we conclude that application of the
detrimental effects theory in New Mexico is constitutional. See In re Adoption of Doe, 1984-
NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329 (holding that an appellate court will not
consider an issue if no authority is cited in support of the issue).

{21} In addition, although Defendant repeatedly asserts that his appeal relates to
jurisdiction, not venue, he nonetheless raises the issue of venue at one point in his brief. To
the extent Defendant also intends to challenge the constitutionality of venue in San Juan
County, challenges to venue, unlike jurisdiction, can be waived, see Wise, 1977-NMCA-074,
¶ 18, and Defendant did not challenge the propriety of venue in San Juan County in the
district court. One 1986 Peterbilt Tractor, 1997-NMCA-050, ¶ 23 (holding that the
defendant’s failure to request a change of venue constitutes a waiver of that defense or claim
for relief).

CONCLUSION

{22} The district court order denying Defendant’s motion to dismiss for lack of
jurisdiction is affirmed.

{23}   IT IS SO ORDERED.

                                               _____________________________________
                                               MICHAEL E. VIGIL, Judge

WE CONCUR:

____________________________________
RODERICK T. KENNEDY, Chief Judge

___________________________________
M. MONICA ZAMORA, Judge



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