Appeal from the District Court of Carbon County The Honorable Wade E. Waldrip, Judge.
The opinion of the court was delivered by: Kite, Chief Justice.
Before KITE, C. J., and GOLDEN, HILL, VOIGT*fn1, and BURKE, JJ.
[¶1] Mr. Dawes appeals from the judgment and sentence entered by the district court after a jury found him guilty of larceny by bailee for converting to his own use funds his employer had placed in a Wyoming checking account. In various ways, Mr. Dawes challenges the district court‟s authority to try him in Wyoming because he had never been in the state until he was extradited to face the charge in this case. He also argues that, as a matter of law, his conviction was improper because he was listed as a joint owner on the account and could not, therefore, be convicted for converting money that belonged to him. In a related issue, Mr. Dawes claims that the district court committed plain error in its response to the jury's question about the definition of the "owner" of the money.
[¶2] We conclude that Mr. Dawes was properly charged and tried in Wyoming because he converted funds located in this state. In addition, the district court correctly allowed the jury to determine, as a matter of fact, whether the funds in the account belonged to Mr. Dawes or his employer. Finally, the district court did not err when it responded to the jurors' question by telling them that the determination of who owned the money was a factual issue for them to decide.
[¶4] Mr. Dawes presents several issues on appeal:
I. Was it error for the court to entertain subject matter jurisdiction over an alleged crime that occurred outside the boundaries of the State of Wyoming?
II. Did the trial court abuse its discretion by denying Mr. Dawes' motion for judgment of acquittal in light of the fact that there was insufficient evidence to prove the requisite elements of the charged crime of larceny by bailee and the variance between the information and proof was prejudicial to Mr. Dawes?
III. Did the trial court abuse its discretion by denying Mr. Dawes' motion to dismiss for defects in the institution of the prosecution?
IV. Did the district court commit plain error in its response to the jury's note?
Although phrased differently, the State's statement of the issues is similar.
[¶5] Mr. Dawes was a California resident, and the victim, Mary Storer, lived in California during the winters. In the 1990s, Ms. Storer employed Mr. Dawes to pay her household bills. The original arrangement was for Ms. Storer to collect the bills and give them to Mr. Dawes, who took them home, made out the checks and returned them for her signature.
[¶6] Ms. Storer also owned a home in Saratoga, Wyoming, and spent summers there. Payments were often late when Ms. Storer was in Saratoga because it took so much time to transfer the paperwork between California and Wyoming. To remedy the situation, Ms. Storer opened a checking account at Rawlins National Bank in Carbon County, Wyoming. The account listed Ms. Storer and Mr. Dawes as joint owners with right of survivorship and required only one signature to negotiate checks. Ms. Storer transferred $5,000 per month into the account, although the amount was later increased to $10,000 per month when Mr. Dawes told Ms. Storer that the original amount was insufficient to cover her bills. The address on Ms. Storer's bills was changed so they went directly to Mr. Dawes. He then paid the bills and provided her with a monthly report.
[¶7] In 2008, the bank notified Ms. Storer that the account was overdrawn. When she investigated the incident, she discovered many unauthorized transactions. The State charged Mr. Dawes with larceny by bailee in violation of Wyo. Stat. Ann. § 6-3-402(b) (LexisNexis 2009).*fn2
[¶8] Mr. Dawes filed two motions to dismiss. The first challenged the district court's subject matter jurisdiction on the basis that Mr. Dawes had never been to Wyoming before being extradited on the larceny charge and he had not committed any crime in Wyoming. He argued in his second motion that, as a matter of law, he could not be convicted of larceny by bailee because he was a joint owner of the account. The district court denied both motions.
[¶9] At trial, the State presented evidence showing that between 2006 and 2008, Mr. Dawes wrote more than $195,000 in checks on the joint account for his personal expenses without Ms. Storer's approval. The jury found Mr. Dawes guilty of larceny by bailee, and the district court sentenced him to serve two to six years in prison. Mr. Dawes appealed.
1. Subject Matter Jurisdiction
[¶10] Jurisdiction is a question of law we consider de novo, without regard for the district court's determination. Innis v. State, 2003 WY 66, ¶ 8, 69 P.3d 413, 417 (Wyo. 2003). Subject matter jurisdiction is "essential to a prosecution for a criminal offense" and, unlike personal jurisdiction, it cannot be waived.*fn3 Rios v. State, 733 P.2d 242, 244 (Wyo. 1987). See also, Taylor v. State, 658 P.2d 1297, 1300 n.3 (Wyo. 1983).
[¶11] Mr. Dawes maintains that the district court did not have subject matter jurisdiction to prosecute him for larceny by bailee because he had never been to Wyoming and did not commit any part of the charged crime in Wyoming. Our case law reveals that the scope of a Wyoming district court's criminal jurisdiction is broader than Mr. Dawes acknowledges.
[¶12] In Rios,this Court considered the defendant's claim that he could not be prosecuted in Wyoming for interference with child custody because, at the time of the crime, neither the child nor the defendant had ever been to Wyoming. Id. at 243. We stated that, under the common law, ""a state has power to make conduct or the result of conduct a crime if the conduct takes place or the result happens within its territorial limits.'" Id. at 245, quoting W. LaFave & A. Scott, Criminal Law § 17 at 118 (1972). We noted that many states have exercised criminal subject matter jurisdiction beyond the common law precepts and held that they have jurisdiction to prosecute acts which occur outside the state if the criminal act "produced an effect within the state." Rios, 733 P.2d at 249. Many states also exercise jurisdiction if any element of the crime occurs within the state. Id. at 247-48. Applying the "effect within the state" rationale to the facts presented in Rios, we concluded that Wyoming had jurisdiction to prosecute Mr. Rios for interference with child custody even though neither he nor the child had been to Wyoming. ...