*1 BENHAM, Appellant Robert K.
(Defendant Below), Indiana, Appellee
STATE of
(Plaintiff Below).
No. 78S01-9406-CR-596.
Supreme Court of Indiana.
June
peals denial, concluding affirmed may “Indiana enforce its laws on the Ohio River from the Indiana shore the Ken- tucky shore.” Benham v. State App., 622 N.E.2d August On the defendant and two persons other fell into the Ohio near Kentucky pontoon shore when their boat capsized. drowned, of Two the three and the defendant was rescued and taken to Switzer- County, land following where day charged he'was with two counts of reck- homicide, felony; less a class C two counts of involuntary manslaughter, felony; a class C operating two counts of a watercraft while death, causing intoxicated class felony; a C and one of operating count a watercraft while intoxicated, class a C misdemeanor. The defendant filed motion a to dis against him, miss all charges contending that authority Indiana lacked the sovereign prosecuté allegedly activity occur ring within territorial boundaries of Kent ucky.1 accompanied by The motion was not or affidavits other matters outside the pleadings affirmatively pre establish the alleged cise location of criminal conduct. through IV, The charg Counts I ing involuntary reckless homicide and man slaughter, each describe the location of the Florence, offense either as “in Swit County, Florence, zerland Indiana” “in or County.” Switzerland Record at 6-9. VII, Counts charge V and the defendant with Colussi, Mock, Joseph Mary A. Beth Co- operating a watercraft while intoxicated “at Office, Madison, lussi Law appellant. for Ohio River above Dam” resulting Markland Carter, VI, death. Gen., Record at 12. Count Atty. Pamela Suzann Weber charging operating Lupton, Atty. Gen., while Deputy Indianapolis, watercraft intoxi cated, specifies the “in appellee. location Swit County,
zerland Indiana.” Record at 11. Following hearing consisting the motion ON PETITION TO TRANSFER solely argument counsel, the trial court DICKSON, Justice. overruled the motion to dismiss and made interlocutory This appeal challenges express fact, findings including that “the trial court’s denial of alleged defendant Robert K. offense occurred on River at charges Benham’s motion dismiss criminal easterly location in direction from the low arising double-fatality boating from a inci- water mark off the Indiana shore of said dent on Ap- the Ohio River. Ohio River.” Record at 53. v, undisputed It is Indiana's became southernmost a state. See Indiana along the Ohio River is es- 163 U.S. 16 S.Ct. 41 L.Ed. (5 tablished Handly’s Anthony the low-water line on the northern Lessee v. Wheat.) 374, year side river L.Ed. petitioned appeal thereafter for in-
The defendant to be whether the trial court erred terlocutory appeal denying overruling charges of the order the motion to dismiss al- leging petition to dismiss. The included the Indiana criminal offenses which motion boating that the incident “occurred occurred outside the Indiana territorial assertion *3 boundary on the Ohio River. to the south of the line of the State of Indiana and did not occur within the State
of Indiana.” Record at 56. The trial court
Indiana Territorial Jurisdiction
certified its Order on Motion to Dismiss for When the
Indiana seeks to enforce
interlocutory appeal,
Ap-
and the
by prosecuting
its criminal laws
conduct that
peals accepted
appeal.
Appel-
the
Indiana
occurs on the Ohio River but on the Ken-
4(B)(6).
In
late Rule
accordance with
tucky side of Indiana’s southern territorial
7.3,
Appellate
parties
Rule
the
there-
boundary,
separate
there are two
issues.
agreed
after submitted an
statement of the The first is whether Indiana is authorized to
ease,
clarify
but such statement
fails to
exercise concurrent
over the en-
alleged
constituting
whether the
conduct
the
River, including
portion
tire Ohio
be-
charged offenses occurred on the Indiana or
yond Indiana’s territorial boundaries.
If
Kentucky
the
side of the territorial bound-
right
jurisdiction exists,
such
to concurrent
ary.
only
agreed
The
facts
the
statement
question
second
arises: whether the Indiana
pertinent
determining
the
of the
Assembly
General
has authorized criminal
following:
offense were the
prosecutions to
full
poten-
the
extent of such
8, 1991,
August
boating
1. On
acci-
jurisdiction.
tial concurrent
Craig’s
dent occurred at
the mouth of
Concurrent
on rivers is
Creek which
located in the Common-
powers
the
of two
over one and
Kentucky
wealth of
as it enters the Ohio
place.
Oregon
the same
Nielsen v. State
during
River east of the Markland Dam
384,
383,
212 U.S.
29 S.Ct.
53
storm. The accident resulted in Robert
528,
jurisdic
L.Ed.
529. Concurrent Indiana
Benham,
Rogers
Timothy
Beatrice
tion over the Ohio River has been contem
Rogers being
into
thrown
the water from a
plated
both state and federal
law.
In
pontoon boat.
1784, Virginia conveyed
territory
its
north
County,
2. Authorities
from Boone
west of the Ohio River to the United States.
Kentucky,
County, Kentucky,
and Kenton
1789,
Virginia
In
Compact,
enacted
searched for and recovered the bodies of
Virginia legislature,
territory
ceded
for
Rogers
Timothy Rogers.
Beatrice
the formation of the Commonwealth of Ken
tucky.
Virginia Compact provided
The
for
10. The Certificates of Death issued
condition,
Kentucky upon
the creation of
Kentucky
the Commonwealth of
for both
alia,
navigation
inter
“that the use and
of the
persons
identified
location of their
Ohio,
territory
river
so far as the
Warsaw,
County,
deaths as
Gallatin
Ken-
state,
proposed
territory
or the
which shall
tucky.
remain within the limits of this common
Record at 3.2
thereon,
wealth lies
shall be free and com
States,
Appeals
The Court of
treated this interloc- mon to
the citizens of
United
utory appeal
presenting
jurisdictions
respective
as
the issue of
of the Common
may “prosecute
proposed
whether Indiana
a defendant wealth and of the
state on the river
aforesaid,
only
for criminal acts on the
side of the
as
shall
be concurrent
River,” Benham,
may possess
pact,
Hening,
implement
St. at L.
“What
Indiana’s
statutes
such
jurisdiction.
Virginia compact
certainly
most
concurrent
conferred on
courts have
Ohio,
right
granted
such
as is
States north
them
state
mark
constitution and statutes.
administer the law below low-water
Car
river_”
penter
v. State
Wedding,
U.S.
The Constitution of
(emphasis
S.Ct. at
trial charges. all grant the motion dismiss Because of the defendant’s failure to Appellant Appeals to the of Brief at charged all establish that inaccurate,4 agreement 3. The asserted is necessarily conduct occurred on the Ken represent interpret we this claim to but tucky side Indiana’s southern territori upon trial defendant’s reliance court’s boundary jurisdic al so as to demonstrate a finding charged that the offenses occurred on conviction, impediment tional deter we southern side Indiana’s mine that the trial court’s denial of defen appeal, line. In this Record dant’s motion dismiss not erroneous. argue not such the defendant does find- trial, however, the event ing is erroneous but rather assumes its accu- required prove territorial be jurisdic- racy as a his claim no basis for doubt, yond McKinney a reasonable v. State tion. Ind.App., 553 N.E.2d review, however, appellate proving On a will then the burden judgment trial court be if components affirmed sus sufficient of each of the record, tainable basis even offenses within the occurred though theory not on a used the trial pursuant boundaries to Ind.Code (1983), Ind., court. Havert v. Caldwell 35-41-l-l(a)(l). Despite the defendant’s judgment of the trial court is affirmed. allegation contrary, to the the record does any agreement by not contain the State that *6 entirely offenses occurred on the SHEPARD, C.J., and DeBRULER Indiana-Kentucky side of the ter JJ., GIVAN, concur. boundary ritorial line. The defendant did support
not motion to his dismiss with SULLIVAN, J., separate dissents with affidavit his claim that establish opinion. entirely charged offense occurred outside the SULLIVAN, of Justice, boundaries Indiana. The rec dissenting. before ord the trial court at the time of respectfully I I dissent because believe the ruling clearly on the motion to dismiss fails majority incorrectly has construed support the defendant’s assertion that the statute, Indiana criminal Indiana charged offenses occurred outside Indiana’s adopt § Code I 35-41-1-1. would the schol- territorial boundaries. arly opinion and well-reasoned written It alleg is true that an information Judge of Appeals Baker the Court of in this ing the commission of a criminal offense case,1 an of with additional discussion must state the offense with history of our criminal statute particularity to sufficient show the of clearly why which I believe demonstrates fense was committed within the majority is incorrect. charge court where the is be filed. majority’s I (1991), Ind., agree analysis do with the Weaver State 583 141; 35-34-1-2(a)(7). both However, § the federal and constitutional Ind.Code I upon agree issues involved this case. And as motion to dismiss which claims that jur- majority’s well with impediment there “exists conclusions that some granted as to conviction of the defendant isdiction is extensive offense 35-34-l-4(a)(10), juris- § charged,” legislature Ind.Code and that venue and “by required prove prepon- thing. defendant is diction are not the same But as the would, however, supra. Judge change 4. See footnote 1. I Baker's foot- note to the War Between the reference States name, its correct the Civil War. (the R.S.1852, jur- p. eh. “1852 history our current criminal following Act”). clear, makes our and venue statutes isdiction today through au-
legislature has from 1852 provided 1852 Act which It is the the entire over thorized criminal jurisdictional authority prosecution for the opposite Indiana. Ohio River in the crimes committed on the Ohio majority: Welsh v. three cases cited history in 1851 when our fore- This starts 888; Doug as fol- 126 Ind. 25 N.E. provided in our constitution State fathers 171; N.E. lows: an 55. The v. State Carlisle ... have con- of Indiana shall The State majority says that these cases were “decided jurisdiction, in civil and current present ‘occur in before the enactment of the cases, Kentucky on the the State of 35-41- Indiana’ limitation Illinois on the State of Ohio River and with 1(a).” misleading. I think this statement River, far as said rivers so the Wabash fact, Act of the 1852 re- boundary between this the common form any change whatsoever mained law without respectively. and said States way until 1978.2 from 1852 all the Const, (1851). 14, § 2 art. Meanwhile, 1977, following in 1976 and granting legislature enacted statute Indiana Criminal Law years of work full of this constitu- jurisdiction to the extent Commission, entirely Study an new Indiana session, very provision in the first tional A. was enacted. See William criminal code Assembly following adoption, of the General Kerr, Revised Forward: Indiana’s New and new constitution: (1978); Code, 11 Ind.L.Rev. Wil Criminal Kerr, Forward: Indiana’s Bicenten liam A. several proper That the courts of the (1976). Code, 10 Ind.L.Rev. nial Criminal bordering on the in this State counties innovations of the new code One of the on Wabash river as far creation, time, entirely an for the first up river forms the line as said statute, free-standing Illinois, this State and the State of between (West 1978). This result 35-41-1-1 jurisdiction of com- all offences shall *7 present “occur in in ed the enactment penal laws of this State against mitted the jurisdictional in stat language the rivers, Indiana” opposite to said counties on said way repeal in change or ute but did not respectively. 1978, 1905, legislature repealed Indiana Code legislature adopted a new Crimi- In In 2. 1978, 2, § § Acte P.L. 17-1-1-84. Act which included nal Law Procedure 1981, replaced 1905, legislature Indiana Code In language of the 1852 Act verbatim. Acts 35-32-2-l(g) 1.1—2—1(g) § which § 169, 7, p. § ch. 35— reads as follows: 1971, legislature codified this In portions on the an offense is committed If Code, again verbatim. Ind. in the new Indiana they form a Wabash Rivers where the Ohio or (1971). § Code 17-1-1-84 state, may this trial part of the boundaries of 1973, following legislature enacted the adjacent county to the that is be had in the part of a new venue statute: boundaries, subsection as projected if whose river and any navigable If a is committed on crime would include the across state, maybe bordering trial had on this waters offense was committed. where the navigable county opposite 1981, 298, Water provision to such §§ in the 1 and 9. This Acte P.L. today. the crime was committed. where in effect remains 1.1—2—1(g), by Thus, provided § as added Acts Act and its successors the 1852 35— 1973, 325, § § 17-1-1-84 jurisdiction 1. Indiana Code for offenses P.L. and venue rules both the unchanged. from 1852 to 1978. remained on the Ohio River committed legislature jurisdiction a enacted rules In 1976 and October Effective code, jurisdictional § including provided by Code 35—41-1-1. new criminal were that, provided by my Indiana Code and the view of rules were statute in view The venue Code, super- July 1.1—2—1(g) until § maintained the from comments to the official 35— July (g) by Riv- Indiana Code 35-32-2-1 principle over the entire Ohio ceded text, changes reduced the extent of these 17-1-1-84 1981. None er. See infra. by the 1852 Act. authorized unchanged. remained Code, the law created the 1852Act and affirmed Indiana Criminal the State of Indiana Carlisle, Welsh, Dougan, supra.3 in legislative authority continues to have to en- its force criminal laws on all of legislature That there was no intent reason, opposite Indiana. For this I change re- rules with Judge analysis believe that Baker’s cor- spect to crimes committed on the Ohio River majority’s rect and opinion. dissent from the crystal by language is made clear at the commentary official4 new outset published
Indiana criminal which was code
the 1978 edition West’s Annotated Indiana provides: commentary
Code. The official section,
As this reflected modern permit application
view is penal
state’s law to a transaction even entirely
though it did not occur within the STIDHAM, Appellant, state. Matthew v. general developed has rule Indiana, Appellee. STATE of legislative state exercise over conduct which occurs within the state. No. 18S00-9310-CR-1146. However, Indiana and have con- Supreme Court of Indiana. impose current their crimi- upon occurring nal laws conduct on the July State, Dougan u Ohio River. (1890); State,
Ailing,
State,
(1869).
phis Pikey, Co. v. Cincinnati Packet (1895). N.E. Thompson, Commentary
Charles A. (West 1978).
Indiana Code 35-41-1-1 legislature clearly
Because the pro-
vided in criminal law matters
over the entire Ohio River from legislature and because the did not grant any way
restrict this replaced
when the 1852 Act was the 1976 *8 dissent, refuting (1978) majority argues this Indiana Code as "official comments." legislature’s failure to enact Indiana Perhaps these comments were not denominated 11.1—1—3(c) providing 35— legislature they present as "official” but proposed by over Ohio River as the Indiana scholarly provi- and detailed discussion of the Study legis- Criminal Law Commission indicates sions the Indiana criminal code one written lative intent restrict in effect itself, very draftsmen the code Charles response, since 1852. In I refer reader Thompson, Reporter A. the first of the Indiana absolutely footnote 2 this dissent. There Commission, Study Criminal Law suc- his legislature no reason for the 1976 or 1977 cessor, court, Bobby Jay e.g., Small. This Greider provision majority enact referred to 385 N.E.2d 17-1-1-84, because Indiana Code which al- 424, 426, Appeals, e.g., the Court Smith v. ready provided jurisdiction over the entire Ohio Ind.App., was in full force and Circuit, e.g., our brethren the Seventh effect. It is more reasonable to assume that the Duckworth, (7th legislature adopt did not the Commission lan- Williams v. 738 F.2d guage simply dupli-. Cir.1984), because it would have been regarded Commentary au- existing cative law. usage, thoritative. I submit that our courts’ we have made these "official.” comments majority my 4. The takes issue reference Commentary published in West's Annotated