Territorial Jurisdiction in Ohio Post-Wogenstahl.

AuthorKerfoot, Ryan


"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed...." (1)

In 1991, ten-year old Amber Garrett disappeared from her home in Harrison, Ohio, a town lying on the Ohio-Indiana border. (2) Authorities would later find Amber's body near Bright, Indiana, not far from the Ohio border. (3) Her cause of death was multiple stab wounds and blunt force trauma to the head--injuries that did not occur in the area where authorities found her body. (4) An investigation implicated Jefferey Wogenstahl, an acquaintance of Amber's mother. (5) The State of Ohio subsequently indicted Wogenstahl for Amber's murder. (6) Wogenstahl was convicted of aggravated murder in the Ohio Court of Common Pleas and was sentenced to death. (7)

Wogenstahl's case made its way to the Supreme Court of Ohio, where he challenged Ohio's jurisdiction over his case. (8) Wogenstahl asserted that the evidence presented at his trial proved Amber's murder occurred in Indiana because an eyewitness observed Amber alive in a car heading in the direction of Indiana. (9) The State of Ohio, for its part, suggested that the death occurred in Ohio because evidence showed that Wogenstahl had taken Amber to his Ohio apartment. (10) The majority opinion written by Justice Sharon L. Kennedy found neither of these arguments persuasive and concluded that the location of Amber's murder could not be conclusively determined. (11)

Without any conclusive determination of where the murder took place, the majority relied on Subsection (D) of Ohio's criminal law jurisdiction statute. (12) Subsection (D) provides:

When an offense is committed under the laws of this state, and it appears beyond a reasonable doubt that the offense or any element of the offense took place either in this state or in another jurisdiction or jurisdictions, but it cannot reasonably be determined in which it took place, the offense or element is conclusively presumed to have taken place in this state for purposes of this section. (13) Relying on this provision, the court presumed that Amber's murder took place in Ohio and jurisdiction was therefore proper in the state for Wogenstahl's aggravated murder prosecution. (14)

The Wogenstahl majority ended its analysis there, finding a conclusive, statutory grant of jurisdiction to the Ohio courts. (15) Justice Judith L. French, however, raised in her concurring opinion a potential problem with this conclusion: "there is a reasonable question as to the constitutionality" of Subsection (D). (16) Although declining to make a conclusion on the constitutionality of the statute, Justice French highlighted decisions from the Supreme Court of the United States which hold that mandatory presumptions that remove the burden of proof from the prosecution violate the Due Process Clause of the Fourteenth Amendment. (17) Because, "by its plain terms," Subsection (D) creates a mandatory presumption of jurisdiction, Justice French wrote that "it appears, then, that [Subsection (D)] violates the rule [from the Supreme Court of the United States] if jurisdiction is an element of the offense that the state bears the burden of proving." (18)

This comment seeks to answer the question left unanswered by Justice French's concurring opinion: whether Subsection (D) of Ohio's criminal jurisdiction statute is constitutional under the Due Process Clause of the Fourteenth Amendment. Part I will provide background on territorial jurisdiction in the United States. This section will address both the common-law development of territorial jurisdiction and the typical state statutes that define a state's territorial jurisdiction. This part will conclude that territorial jurisdiction is fundamentally about sovereign power and as such is generally confined by a state legislature's willingness to enforce its laws. Despite this, states tend to restrict their jurisdiction to cases where there is a sufficient territorial connection between the criminal conduct and the state. Part II will then address the due process limits associated with creating evidentiary presumptions. This section will ultimately conclude that territorial-scope statutes that create mandatory presumptions violate due process because territorial jurisdiction is a necessary fact that the prosecution must prove to ensure a fair, non-arbitrary prosecution. Part III will then look at two specific territorial-scope provisions that create evidentiary presumptions: (1) a presumption of jurisdiction when a body is found in the state; and (2) the presumption in Subsection (D) of Ohio's statute that creates a presumption whenever the jurisdiction cannot be reasonably determined. Part III will conclude that while the first type of presumption is constitutional because it provides for a permissive inference with a reasonable connection to the state, the one in Subsection (D) does not survive constitutional muster because it creates a mandatory presumption. Part IV will present some potential solutions to address the problems with Subsection (D), including whether Wogenstahl can be re-prosecuted in Indiana.


    1. Common Law Background

      Jurisdiction refers to a variety of limitations on a court's authority to try a particular action or charge. (19) The subject of this comment deals exclusively with territorial jurisdiction, those limits on authority stemming from "the permissible geographic scope of penal legislation." (20) The authority of a state to enforce its laws has historically been limited by its territorial boundaries. (21) At common law, this "territorial principle" was the exclusive grounding for jurisdiction; a government could enforce its laws over a criminal defendant only if the offense conduct took place, or the result of the criminal conduct happened, within its territorial limits. (22) The territorial principle has its roots in the concept of sovereignty. (23) Because the criminal breached the King's (or Queen's) peace, the monarch was entitled under the law to remedy the damage to his or her dignity by punishing the offender. (24) This naturally limited jurisdiction only to the extent where there could be an affront to the monarch's dignity, i.e. within the monarch's realm. (25)

      The location of the prosecution in medieval England was further restricted by the right to a trial by a "jury of the vicinage," a jury made up of citizens of the county in which the crime took place. (26) A defendant could only be tried under the common law in the county where he or she committed the offense and nowhere else. (27) The reasoning for this being that only a jury of the vicinage could fully understand the facts of the case to effectively adjudicate the crime. (28) Common-law courts were therefore required to select a single jurisdiction where the defendant could be tried. (29) Courts would choose this jurisdiction by selecting a single locus where the "gist of the offense" occurred, which would then be the sole forum where the government could prosecute the defendant. (30) In the case of murder, for example, the offense occurred in the jurisdiction where the fatal force "struck" the victim because the gist of the homicide offense was causing the death, not the death itself. (31)

      At the time of the Founding, the place of a criminal prosecution was a concern to the Framers. (32) Their complaints against King George III, after all, included one "[f]or transporting [colonists] beyond Seas to be tried for pretended offences." (33) Consequently, two provisions of the Constitution preserve a right to be tried in the state where the crime shall have been committed: Article III (34) and the Sixth Amendment. (35) Concerns about Article III not adequately guaranteeing the commonlaw right to a "jury of the vicinage" indeed formed part of the impetus for drafting the Sixth Amendment in the first place. (36)

      The applicability of these provisions on the states, however, is dubious. Most obviously, the Supreme Court (37) and state supreme courts (38) have ruled that the specific provision in Article III applies only to criminal proceedings in federal courts. On the other hand, the so-called "vicinage clause" in the Sixth Amendment, the portion of the amendment requiring a trial by a jury in the judicial district where the crime was committed, has not been incorporated along with the rest of the Sixth Amendment's "jury clause." (39) The United States Senate, at the time the Sixth Amendment was being drafted, opposed the original wording of the Amendment, which included an explicit requirement that juries be drawn from the "vicinage." (40) In a letter to Edmund Pendleton discussing the Senate's debates on the amendment, James Madison indicated that the Senate did not consider a constitutional amendment preserving the right to a jury of the "vicinage" necessary because the then-pending Judiciary Act of 1789 would adequately preserve that right. (41) Because the Judiciary Act applied to the federal court system and not the states, the Framers likely viewed this provision as restricting the federal government from prosecuting citizens in any judicial district, rather than codifying a right to be tried within the territory where a crime was committed in every criminal proceeding.

      Although the Constitution does not explicitly guarantee to the defendant the right to be tried where the crime was committed, the concept of territorial jurisdiction nonetheless serves an important role in our system of federalism. Chief Justice John Marshall in Schooner...

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