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CLASS #2 FOR CRIMINAL LAW

PERSONAL JURISDICTION, SUBJECT MATTER JURISDICTION (CRIMINAL COURTS

& JUVENILE COURT) & VENUE Professor Byron L. Warnken -- University of Baltimore School of Law

Copyright 2011, 2006. All rights reserved.

CRIMINAL SUBJECT MATTER JURISDICTION (federal & state courts) VENUE (political

subdivision in

Maryland)

PERSONAL/ TERRITORIAL JURISDICTION

(Maryland)

JUVENILE SUBJECT MATTER JURISDICTION

United States Government Maryland Circuit Court

Maryland District Court

Federal power in state

owned & controlled territory

limited to express

constitutional powers & implied

constitutional powers, as

necessary & proper &

when federal law preempts

state law

Situs/locus of key element of affirmative act or continuous scheme or where omitted act

should have taken place

Not an element & rebuttably presumed until issue generated; if generated, venue is issue of fact w/

& burden of persuasion on State

Exclusive jurisdiction

Motor vehicle

laws

Misdemeanor w/ penalty less than 3

years or

$2,500

Almost all

felonies

Crimes arising from

same transaction as

crime in exclusive

Circuit Court

jurisdiction

Jury trials

Concurrent jurisdiction

Misdemeanors w/ penalty of at least 3 years or $2,500

Felony theft, bad check, credit

card, & forgery/uttering

Concurrent jurisdiction between federal & state governments: Federal Assimilative Crimes Act & state law in federal enclaves inside state; concurrent jurisdiction by agreement/statute, e.g.,

national forests.

Common law Maryland law

Under age 7: No criminal

capacity

Under age 14: No

criminal capacity for

rape & presumption

of no criminal

capacity for

other crimes

Age 14: Criminal

capacity

Step #1 Start as adult

At least age 18: All offenses are criminal

Age 16: Most felonies against persons (&

attempts), handguns, & vehicle/boat offenses are

criminal

Age 14: Death/life offenses (1

st degree murder, rape, &

sex offenses, plus their

inchoate crimes)

Step #1 State as juvenile

Under age 14: No criminal capacity

Ages 14 to 18: No

criminal capacity

(except for offenses

made adult at

age 16 or age 14)

Step #2 Stay as adult or

transfer (reverse waive) to juvenile

Step #2 Stay as juvenile

or waive to adult

Waive juvenile juris. & invoke criminal juris.

(burden on State by

preponderance of the evidence)

Transfer from crim. juris. to juv. juris. (reverse waiver)

(burden on defense by preponderance of

evidence)

Ages 15 through 17: All offenses

waiveable

Ages 14 through 17: All offenses

Under age 14: Death/life offenses

No transfer if prior transfer & adjudicated

delinquent; prior conviction, or 1

st

degree murder at age 16

Factors for waiver/transfer: Age, mental & physical condition, amenability to juvenile

treatment, nature of offense & participation, & public safety (assume delinquency allegations are correct for waiver of juvenile juris.; do not assume

charges are correct for transfer from criminal juris. to juvenile juris.)

By a preponderance of the evidence

Beyond a reasonable

doubt

Common carrier any county where carrier

travels

Homicide where death

blow inflicted

Chesapeake Bay where arrested

or first brought

Rape/sex offense where transportation

offered, solicited, begun,

continued, or ended

Broad federal power in federally owned &

controlled territory (D.C.,

U.S. territories,

internal waters not in

a state, & U.S. territorial

waters

Concurrent jurisdiction between U.S. & foreign governments on U.S. ships & aircraft on/over high seas & foreign ships on high-seas

(based on treaty or agreement)

PERSONAL/ TERRITORIAL JURISDICTION

(federal courts)

Territorial jurisdiction in

particular federal district

National/ citizenship

theory jurisdiction to

control conduct of

U.S. citizens for acts

against others outside federal

jurisdiction

Protective principle

jurisdiction to protect U.S. citizens from acts of others

outside federal jurisdiction

No federal power when

10th Amendment

reserves power

to the states

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PERSONAL JURISDICTION, SUBJECT MATTER JURISDICTION

(CRIMINAL COURTS & JUVENILE COURT), & VENUE

I. Power of governments or sovereigns to create substantive criminal law

A. Limitations under substantive due process: The power of a government or

sovereign to create substantive criminal law is criminal jurisdiction in its broadest

sense. In Rice v. State, 311 Md. 116 (1987), the Court of Appeals held that, subject

to constitutional limitations, the legislature has broad power to define what acts shall

constitute criminal offenses. Accord Greenwald v. State, 221 Md. 235 (1959). The

issue is whether the United States Constitution, under its Fifth and Fourteenth

Amendment substantive due process analysis, precludes the government from

controlling certain conduct. Such substantive due process limitations typically

involve the right of privacy. In Lawrence v. Texas, 539 U.S. 558 (2003), the

Supreme Court held that the government or sovereign may not control sexual

conduct that is factually private, factually consensual, among adults, when non-

commercial, and when not involving incest. See, e.g., Roe v. Wade, 410 U.S. 113

(1973) (right to terminate a pregnancy, subject to certain limitations); Loving v.

Virginia, 388 U.S. 1 (1967) (right to marry); Skinner v. Oklahoma, 316 U.S. 535

(1942) (right to procreation); Prince v. Massachusetts, 321 U.S. 158 (1944) (limits on

religious freedom that interfere with the welfare of a child); Pierce v. Society of

Sisters, 268 U.S. 510 (1925) (right of parents to direct the education of their

children); Meyer v. Nebraska, 262 U.S. 390 (1923) (right to education and language);

Smith v. California, 361 U.S. 147 (1959) (right to freedom of expression in books).

B. Limitation under federalism: Under federalism, if the government can control

conduct, is that power to control conduct exclusively with the federal government,

exclusively with the state governments, or shared by the federal government and the

state government?

1. Federal government: Federal law is enacted by Congress.

a. Congressional power to enact laws that control conduct in

federally owned & controlled territory: The federal government

has broad police powers, under the Fifth Amendment Due Process

Clause, to enact laws that control conduct in federally owned and

controlled territory in the interest of the public health, safety, and

welfare.

(1) District of Columbia - U.S. Const. art. 1, 8, cl. 17

(2) United States territories, e.g., Puerto Rico (U.S. Const. art.

IV, 2, cl. 2)

(3) Federal enclaves within states, e.g., military installations,

federal buildings, national parks and forests

(a) Assimilative Crimes Act: The Assimilative Crimes

Act adopts, as federal law, the substantive criminal

law, of that state, to be applied in federal enclaves in

that state if there is no controlling federal law. 18

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U.S.C. 13.

(b) Concurrent federal/state power to control conduct:

Congress may provide that state in which federal

enclave is located also has power to control conduct,

e.g., national forests.

(4) On water

(a) Internal United States waters not in any state:

This includes concurrent federal and state power to

control conduct, pursuant to federal statute, if the

conduct is committed on internal United States waters

not located in any state.

(b) United States territorial waters: This includes

exclusive United States power to control conduct,

pursuant to international laws and treaties with

foreign governments, if the conduct is committed on

waters up to 12 miles beyond the United States

border.

(c) United States ships & aircraft in or over

international waters (high seas) or in foreign

waters or ports: This includes concurrent power,

with foreign governments, to control conduct,

pursuant to treaties with foreign governments, on

United States ships and aircraft located in

international waters or in foreign territorial waters or

ports.

(d) Foreign ships in international waters (high seas):

This includes concurrent power, with foreign

governments, to control conduct, pursuant to treaties

with foreign governments, on foreign ships when

located in international waters.

b. Congressional power to enact laws that control conduct in state

owned & controlled territory: The federal government has limited

powers, pursuant to the United States Constitution, to enact laws that

control conduct in state owned and controlled territory.

(1) Express constitutional powers: U.S. Const. art. I, 8,

provides 17 expressly enumerated congressional powers to

control conduct in state owned and controlled territory.

(a) Counterfeiting: To provide for punishment of

counterfeiting United States securities and coins.

U.S. Const. art. I, 8, cl. 6.

(b) Crimes in international waters: To define and

punish piracies and felonies committed on high seas.

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U.S. Const. art I., 8, cl. 10.

(2) Implied constitutional powers: These are laws that are

necessary and proper for carrying into execution the 17

expressly enumerated constitutional powers. U.S. Const. art.

I, 8, cl. 18. Most federal crimes in state owned and

controlled territory derive from the federal power under the

Commerce Clause. U.S. Const. art. I, 8, cl. 3.

(3) Pre-emption doctrine

(a) Federal pre-emption over state statutes: Under the

pre-emption doctrine, federal courts may interpret

congressional intent, in enacting federal legislation, as

indicating that Congress intended that the federal

government is the exclusive legislative body

governing particular conduct. U.S. Const. art. VI, cl.

2 (Supremacy Clause).

i. Pervasive legislation: Congress enacted

pervasive legislation in a given subject area.

Ward v. State, 280 Md. 485 (1976).

ii. Federal interests: The subject area is

dominated by federal interests.

iii. Federal enforcement: State legislation

would seriously hamper effective federal

enforcement.

(b) Federal pre-emption when there has been no

congressional legislation: The pre-emption doctrine

may be applied when Congress has not enacted

legislation in a given subject area, by balancing

federal and state interests. For example, there is state

legislation affects commerce, but the courts interpret

the subject area as requiring uniform national

treatment rather than a state-by-state approach.

c. International treaty: Under the Vienna Convention, diplomats, their

spouses, and their children benefit from sovereign immunity.

Sovereign immunity of the Defendant precludes a court in the United

States from obtaining jurisdiction over the Defendant. In Diallo v.

State, 413 Md. 678 (2010), the Court of Appeals held that the

Maryland court had jurisdiction over the Defendant because the

Defendant failed to prove that his father, who was serving in a

position equivalent to an Assistant Secretary General of the United

Nations, was in the country in his official capacity at the time of the

offense or the arrest.

2. State governments: State law is enacted by state legislatures. In Maryland,

that legislative body is the Maryland General Assembly.

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a. Tenth Amendment state powers: Powers that are not delegated to

the federal government are reserved to states. U.S. Const. amend. X.

In Fry v. United States, 421 U.S. 542 (1975), the Supreme Court

stated that the Tenth Amendment expressly announces the

constitutional policy that Congress may not exercise power in a

fashion that impairs the States integrity or their ability to function

effectively in a federal system.

b. Fourteenth Amendment police powers: States have broad police

powers, under the Fourteenth Amendment Due Process Clause, to

enact laws that control conduct in that state in the interest of the

public health, safety, and welfare. In Camfield v. United States, 167

U.S. 518 (1897), the Supreme Court stated that police power is as

broad as necessary to safeguard the public interests. In State v. J.M.

Seney Co., 134 Md. 437 (1919), the Court of Appeals stated: An

essential element of the police power is the right of the Legislature to

classify the conditions to which the power is applicable. . . . Unless a

classification adopted by the Legislature in the application of police

power is plainly arbitrary and capricious, its judgment on the subject

should be respected and sustained.

3. Concurrent powers of multiple governments to control conduct

a. Concurrent power between federal government & foreign

governments

(1) United States ships & aircraft in or over international

waters (high seas) or in foreign waters or ports:

Congress and a foreign government may provide, pursuant to

a treaty, concurrent power to control conduct on United States

ships and aircraft when located in international waters or in

foreign territorial waters or ports.

(2) Foreign ships in international waters (high seas):

Congress and a foreign government may provide, pursuant to

a treaty, concurrent power to control conduct on foreign ships

located in international waters.

b. Concurrent power between federal government & state

governments

(1) In federal enclaves within states: Congress may provide

that, in federal enclaves, states also have power to control

conduct, e.g., national forests.

(2) In state owned & controlled territory: In state owned and

controlled territory, the federal government may have power

to control conduct, pursuant to express or implied

constitutional powers, and simultaneously states have power

to control conduct, under their broad police powers, e.g.,

robbery of federally insured bank located within state owned

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and controlled territory.

c. Concurrent power between multiple state governments: Two

states may provide that both states have power to control particular

conduct, e.g., conduct committed on boundary waters if unlawful in

both states.

d. Concurrent power between state & local governments: Most state

criminal law is created at the state level. However, home rule

counties have power to create substantive criminal law. If they do,

there is the possibility of state pre-emption over local ordinances,

which is determined under the same analysis as federal pre-emption

over state statutes. Md. Ann. Code art. 1, 13.

4. Double jeopardy: The Double Jeopardy Clause of the Fifth Amendment,

made applicable to states through the Fourteenth Amendment Due Process

Clause, bars some multiple prosecutions. Benton v. Maryland, 395 U.S. 784

(1969).

a. No former jeopardy: The Double Jeopardy Clause is not violated if

two governments or sovereigns, with concurrent power to control

conduct, both prosecute the Defendant for the same conduct. The

Double Jeopardy Clause only protects against being twice placed in

jeopardy by the same sovereign. Bartkus v. Illinois, 359 U.S. 121

(1959) (federal court and state court are separate sovereigns); Heath

v. Alabama, 474 U.S. 82 (1985) (two states are separate sovereigns);

United States v. Wheeler, 435 U.S. 313 (1978) (federal court and

Native American tribunal court are separate sovereigns); Waller v.

Florida, 397 U.S. 387 (1970) (state court and municipal court are

same sovereign).

b. Collateral estoppel: The Double Jeopardy Clause may apply,

through the doctrine of collateral estoppel, if an ultimate fact

necessary for successful prosecution in the second jurisdiction has

been determined not to exist in the first jurisdiction. For example, the

Defendants presence as the criminal agent in the second jurisdiction

is negated by a not guilty verdict in the first jurisdiction when the

only defense offered consisted of an alibi witness. Ash v. Swenson,

397 U.S. 436 (1970).

II. Personal jurisdiction of a government or sovereign over the conduct & over the

Defendant: Assuming a government or sovereign has authority to control a particular

conduct, was there sufficient connection between that government or sovereign and the

Defendants conduct, such as to deem that government or sovereign to be the offended by the

Defendants conduct? Personal jurisdiction addresses the power of a government or

sovereign over that particular conduct and over the Defendant individually. Personal

jurisdiction is resolved under a territorial theory of jurisdiction, which is based on the situs or

locus of the offense.

A. Personal jurisdiction in state criminal cases

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1. Territorial jurisdiction: Personal jurisdiction in state courts is determined

on a territorial theory of jurisdiction. Whether the situs or locus of the offense

occurred in that sovereign. State v. Butler, 353 Md. 67, 72-73 (1999). The

common law rule, adopted by Maryland, requires that essential, key, or

vital element take place in Maryland. West v. State, 369 Md. 150, 158-59

(2002). In Breeding v. State, 220 Md. 193 (1959), the Court of Appeals held

that Maryland cannot punish a Defendant for a crime committed in another

state.

2. Situs or locus of the offense

a. Affirmative act offense: The situs or locus of an affirmative act

offense is the place where the prohibited conduct took place.

McDonald v. State, 61 Md. App. 461 (1985).

b. Omission to act or failure to act offense: The situs or locus of an

omission to act offense is the place where the omission to act took

place, i.e., where required act should have been performed.

c. Continuous scheme: Personal jurisdiction for one offense that is

part of continuous scheme may provide jurisdiction for other offenses

committed as part of that scheme. For example, one continuous

kidnapping with multiple assaults committed during a kidnapping.

d. Required result offense: If the offense requires a specific result, the

situs or locus of the offense is where the result occurs. It may be

sufficient if result was intended to take place in a jurisdiction, even if

the Defendant did not enter that jurisdiction. In Khalifa v. State, 382

Md. 400 (2004), the Court of Appeals held that, when the Defendant

detained a child outside of Maryland, with the intended consequence

of depriving the custodial parent father, who was in Maryland,

Maryland had personal jurisdiction over the Defendant.

3. Essential elements of situs or locus for certain offenses

a. Bribery: In Grindstaff v. State, 57 Md. App. 412 (1984), the Court

of Special Appeals held that the situs or locus of bribery is where the

bribe is offered, where payment is made, and/or where the official

duties sought to be affected take place.

b. Conspiracy: In Grandison v. State, 305 Md. 685 (1986), the Court of

Appeals held that the situs or locus of conspiracy is where the illegal

agreement is made and/or where an overt act in furtherance of that

illegal agreement occurs, even if the jurisdiction does not require an

overt act as an element of conspiracy.

c. Forgery: In Medley v. Warden, 210 Md. 649 (1956), the Court of

Appeals held that the situs or locus of forgery is where the forged

instrument is made or altered and/or where the forged instrument is

uttered.

d. Larceny: In Worthington v. State, 58 Md. 403 (1882), the Court of

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Appeals held that the situs or locus of larceny is where the taking

occurs. Under the continuing trespass theory, it is deemed to be a

new taking when the Defendant enters a new jurisdiction with the

fruits of an earlier larceny.

e. Murder or manslaughter: In Stout v. State, 76 Md. 317 (1892), the

Court of Appeals held that the situs or locus of murder or

manslaughter is where the death blow is inflicted and not where the

victim dies. For example, if the Defendant, while in State A, shoots

the victim in State B, and the victim flees to State C and dies, the

death blow was inflicted in State B.

f. Rape: In Jones v. State, 298 Md. 634 (1984), the Court of Appeals

held that the situs or locus of rape is where the rape occurs or where

the accompanying assault occurs.

4. Burdens

a. Burden of production: Territorial jurisdiction is not an element of

the offense and is rebuttably presumed to exist. If the Defendant

wishes to challenge the sovereigns power over him, by claiming that

the offense, if committed, occurred outside the boundaries of the

jurisdiction, the Defendant must satisfy the burden of production by

presenting evidence sufficient to generate a genuine dispute as to

whether the conduct occurred inside or outside the sovereign. In

Jones v. State, 172 Md. App. 444, cert. denied, 399 Md. 33 (2007),

the Court of Special Appeals held that the mere possibility that the

crime occurred outside Maryland was not evidence and the issue of

lack of territorial jurisdiction was not generated. In Butler, 353 Md.

67, the Court of Appeals held that when the body was found in a

vehicle in the District of Columbia, that generated an issue of

territorial jurisdiction, even though there was substantial evidence

that the murder occurred in Maryland. In West, 369 Md. 150, the

Court of Appeals held that there was uncontroverted evidence that the

victim was abducted in Maryland (no issue of lack of territorial

jurisdiction generated), and there was uncontroverted evidence that

the sex offense occurred in the District of Columbia (lack of

territorial jurisdiction generated and the issue was conclusively

resolved in favor of the Defendant). In Butler, 353 Md. 67, the Court

of Appeals held that the issue of territorial jurisdiction is not

generated by a bare allegation that the crime occurred outside

Maryland. Accord McDonald v. State, 61 Md. App. 461 (1985). In

Painter v. State, 157 Md. App. 1 (2004), the court of Appeals held

that the Defendant generated the issue of territorial jurisdiction, and

the trial court properly instructed the jury. In Jones, 172 Md. App.

444, the court of Special Appeals stated that the issue of territorial

jurisdiction may be generated by circumstantial evidence.

b. Burden of persuasion: Assuming that the Defendant generates an

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issue of territorial jurisdiction, in almost all jurisdictions, including

Maryland, the State must persuade the finder of fact, beyond a

reasonable doubt, that there is territorial jurisdiction. Butler, 353 Md.

67. If the State fails to show territorial jurisdiction the state may not

prosecute. In Maryland, this rule is not because territorial jurisdiction

is an element of the offense, but because territorial jurisdiction is vital

to the ability to prosecute. Thus, once generated, territorial

jurisdiction is a question of fact for the trier of fact. Without

territorial jurisdiction, there is no power to find the Defendant guilty

or sentence the Defendant. Thus, the burden of persuasion for

territorial jurisdiction must be the same burden as the burden of

persuasion as imposed on the State to convict, i.e., beyond a

reasonable doubt.

B. Personal jurisdiction in federal criminal cases

1. Territorial jurisdiction: Personal jurisdiction in federal courts is almost

always determined on a territorial theory of jurisdiction. The situs or locus of

the offense must take place in the federal district that is prosecuting, e.g., the

District of Maryland, the Eastern District of Pennsylvania.

2. Alternative tests

a. Personal jurisdiction based on national or citizenship theory:

National or citizenship theory of personal jurisdiction is based on the

federal governments authority to control the conduct of United

States citizens abroad, including United States ships or aircraft on or

over the seas or in foreign waters or ports.

b. Personal jurisdiction based on protective principle: Protective

principle theory of personal jurisdiction is based on protecting United

States citizens against acts committed against them by aliens abroad.

III. Criminal subject matter jurisdiction: Assuming a particular state has been offended by

the Defendants conduct, there is issue of which court within that state has subject matter

jurisdiction to hear the case.

A. Adult criminal jurisdiction versus juvenile jurisdiction: Legislatures establishes

criminal courts and juvenile courts, with subject matter jurisdiction influenced by the

age of the Defendant and the offense(s) charged. Sometimes, the legislature provides

for subject matter jurisdiction only in criminal court or only in juvenile court.

Sometimes, the legislature permits the prosecution and/or the Defendant to influence

subject matter jurisdiction, with the judge making the ultimate jurisdictional

determination. McBurney v. State, 280 Md. 21 (1977).

B. Criminal court of general jurisdiction versus criminal court of limited

jurisdiction: Legislatures establish criminal courts of both general subject matter

jurisdiction and limited subject matter jurisdiction. Criminal courts of general

jurisdiction usually have subject matter jurisdiction for felonies and/or offenses with

higher sentences and/or jury trials. Criminal courts of limited jurisdiction usually

have subject matter jurisdiction for misdemeanors and/or offenses with lower

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sentences and/or non-jury trials. Sometimes, the legislature permits the prosecution

to select which criminal court will have subject matter jurisdiction. Sometimes, the

legislature permits the Defendant to select which criminal court will have subject

matter jurisdiction. This usually occurs when the prosecution files criminal charges

in a non-jury criminal court, but the Defendant has a constitutional and/or statutory

right to a jury trial and elects a jury trial.

C. District Courts in Maryland: In Maryland, the District Court is a non-jury court of

limited jurisdiction. Md. Code Ann., Cts. & Jud. Proc. 1-601.

1. Structure: Maryland is divided into 12 judicial districts. Id. 1-602.

Maryland has 24 political subdivisions (23 counties and Baltimore City) and

24 District Courts, e.g., District Court of Maryland for Baltimore City,

District Court of Maryland for Baltimore County. Most counties have

multiple locations for the District Court, e.g., District Court of Maryland for

Baltimore County has three locations (Towson, Catonsville, and Essex).

2. Exclusive jurisdiction - Id. 4-301. In Smith v. State, 73 Md. App. 156

(1987), cert. denied, 311 Md. 719 (1988), the Court of Special Appeals held

that failure to comply with Md. Rule 4-301 does not divest the District Court

of jurisdiction.

a. Motor vehicle laws: The District Court has exclusive subject matter

jurisdiction over motor vehicle laws and the State Boat Act. Smith v.

State, 73 Md. App. 156 (1987).

b. Misdemeanors: The District Court has exclusive subject matter

jurisdiction over misdemeanors with a penalty less than three years or

$2,500.

3. Concurrent jurisdiction with Circuit Court - Md. Code Ann., Cts. & Jud.

Proc. 4-302.

a. Misdemeanors: The District Court has concurrent jurisdiction with

the Circuit Court for misdemeanors punishable by more than three

years incarceration or more than $2,500 fine.

b. Certain felonies: The District Court has concurrent jurisdiction with

the Circuit Court for felony theft, bad check, credit card, and forgery

and uttering.

D. Circuit Courts in Maryland: In Maryland, the Circuit Court is a court of general

jurisdiction, hearing cases either with a jury or without a jury. Id. 1-501.

1. Structure: Maryland is divided into eight judicial circuits. Id. 1-503.

Each of Marylands 24 political subdivisions has one Circuit Court, which is

located in the County Seat, e.g., Towson is the County Seat for Baltimore

County.

2. Exclusive jurisdiction - Id. 4-302

a. No District Court jurisdiction: The Circuit Court has exclusive

jurisdiction for offenses for which District Court lacks exclusive

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jurisdiction and lacks concurrent jurisdiction, i.e., felonies, except

theft, bad check, credit card, and forgery and uttering.

b. Jury trials: The Circuit Court has exclusive jurisdiction when the

Defendant is entitled to, and exercises, a constitutional and/or

statutory right to a jury trial. State v. Garner, 90 Md. App. 392

(1992).

(1) Sixth Amendment: The Sixth Amendment, made applicable

to states through the Fourteenth Amendment Due Process

Clause, provides the right to a jury trial when the authorized

incarceration exceeds six months on any one count. For

common law offenses without a statutory penalty, use the

actual sentence imposed and executed. See Lewis v. United

States, 518 U.S. 322 (1996); Duncan v. Louisiana, 391 U.S.

145 (1968).

(2) Maryland

(a) Circuit Court: The Defendant is entitled to a jury

trial when there is potential incarceration, Md. Rule 4-

311, unless the Defendant makes a knowing and

intelligent waiver of the right to a jury trial on the

record in open court. Md. Rule 4-246.

(b) District Court: Because there are no jury trials in the

District Court, if the potential sentence exceeds 90

days on any count, the Defendant may demand a jury

trial, which, upon demand, immediately and

irrevocably divests the District Court of subject matter

jurisdiction and transfers subject matter jurisdiction to

the Circuit Court. Md. Code Ann., Cts. & Jud. Proc.

4-302.

c. Same transaction: The Circuit Court has exclusive jurisdiction for

offenses arising from same circumstances as another offense for

which the Circuit Court has exclusive jurisdiction. Thompson v.

State, 278 Md. 41 (1976); Harris v. State, 94 Md. App. 266 (1992).

E. Problem solving divisions of the Circuit Court: The Circuit Court has

fundamental jurisdiction to try persons charged with a felony, which is same as the

jurisdiction of the problem solving courts, such as the Baltimore City Adult Felony

Drug Court. Therefore, drug court, or any other problem solving court, has authority

to try, convict, and sentence a Defendant. Brown v. State, 409 Md. 1 (2009).

IV. Juvenile jurisdiction: Juvenile status is also referred to as infancy, immaturity, and lack of

criminal capacity. Cases of juveniles are not adjudicated in adult criminal court, but rather

are adjudicated in a juvenile court in the juvenile justice system.

A. Common law

1. Under age seven: A person under age seven lacked criminal capacity.

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2. Under age 14

a. Rape: A person under age 14 lacked criminal capacity to commit

rape.

b. Other offenses: A person under age 14 was presumed to lack

criminal capacity, and the presumption was easier to rebut as the

individual approached age 14. Maryland and most other jurisdictions

have abrogated this common law principle. Md. Code Ann., Cts. &

Jud. Proc. 3-8A-05(d).

3. Age 14 or older: A person at least age 14 had adult criminal capacity.

B. Modern statutory approach

l. Juvenile justice systems: Juvenile justice systems make juveniles under a

certain age not subject to criminal jurisdiction, but rather subject to juvenile

jurisdiction for conduct that would be criminal if committed by an adult, but

which is considered only a delinquent act when committed by a juvenile.

a. Determining criminal court (adult) jurisdiction versus juvenile

court jurisdiction: Juvenile court jurisdiction balances the public

safety, the accountability to the victim, and rehabilitation. Md. Code

Ann., Cts. & Jud. Proc. 3-8A-02(a)(1). The issue is whether to treat

the individual as having adult criminal capacity or whether to place

the individual in the juvenile justice system.

b. Effect of juvenile court jurisdiction: The Defendants status and

record are deemed non-criminal, meaning that the act is deemed to be

a delinquent act rather than a criminal act. In re Davis, 17 Md. App.

98 (1973).

2. Maryland

a. Two-step process for determining jurisdiction: The jurisdictional

issue is the determination of whether jurisdiction is in the Circuit

Court, sitting as a juvenile court, or in the Circuit Court, sitting as

criminal court.

(1) Step one where jurisdiction starts: Step one does not

consider the facts of offense or the background of offender.

Step one determines which court juvenile or criminal

obtains jurisdiction, and it is resolved by examining three

documents.

(a) Jurisdictional statute

(b) Charging document: In In re Appeal No. 1258, 32

Md. App. 225 (1976), the Court of Special Appeals

held that, in a juvenile delinquency proceeding, the

delinquency petition is the charging document.

(c) Juveniles birth certificate

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(2) Step two where jurisdiction ends: Once it has been

determined, in step one, whether the criminal court or the

juvenile court has jurisdiction, step two determines whether

jurisdiction will remain with that court or will go to other

court. Step two examines the facts of the offense and the

background of the offender. In Crosby v. State, 71 Md. App.

56 (1987), the Court of Special Appeals held that, once

jurisdiction is transferred from juvenile court to circuit court

or from circuit court to juvenile court, the case may not be

transferred again.

b. Determining criminal court jurisdiction versus juvenile court

jurisdiction

(1) Specific age: The older the individual is, e.g., age 16, the

more likely it is that the individual will be subject to criminal

court jurisdiction. A persons at least 18 years old, at the time

of the conduct, is exclusively within the jurisdiction of

criminal court for all offenses. Md. Code Ann. Cts. & Jud.

Proc. 3-8A-05(a).

(2) Variable of age of juvenile & severity of offense charged:

More serious offenses will subject younger individuals to

criminal court jurisdiction. Id. 3-8A-03 & 3-8A-05.

(a) At least age 16 but less than age 18: A person at

least age 16, at the time of the conduct, is in criminal

court jurisdiction, subject to transfer or waiver of

jurisdiction, for certain actual or attempted offenses.

Id. 3-8A-03(d)(2)-(4).

i. Abduction & kidnapping

ii. Second degree murder

iii. Voluntary manslaughter

iv. Second degree rape

v. Second & third degree sexual offense

vi. Robbery with dangerous weapon

vii. Handgun offenses

viii. Carjacking

ix. First degree assault

x. Vehicle & boat offenses

(b) At least age 14 but less than age 18: A person at

least age 14, at the time of the conduct, is in criminal

court jurisdiction, subject to transfer or waiver of

jurisdiction, for offenses punishable by death or life,

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plus other offenses arising from the same transaction.

This is limited to first degree murder, first degree

rape, and first degree sex offense, plus inchoate

crimes thereof, i.e., attempt, solicitation, and

conspiracy. Id. 3-8A-03(d)(1).

(3) Variable of age & severity of facts of offense charged: The

two-step analysis balances the best interest of the juvenile and

the best interest of society.

(a) Waiver of juvenile court jurisdiction: The juvenile

court may waive its jurisdiction, sending the case to

Circuit Court, sitting as a criminal court. Id. 3-8A-

06; In re Franklin P., 366 Md. 306 (2001).

i. At least age 15 but less than age 18: A

juvenile at least age 15 is eligible for waiver

of juvenile court jurisdiction for all offenses.

Md. Code Ann., Cts. & Jud. Proc. 3-8A-

06(a)(1).

ii. Under age 15: A juvenile under age 15 is

only eligible for waiver of juvenile court

jurisdiction for offenses punishable by death

or life, plus other offenses arising from the

same transaction. Id. 3-8A-06(a)(2).

(b) Transfer (reverse waiver) from criminal court

jurisdiction

i. Transfer applicable: For most juveniles

under age 18, a criminal court may transfer

jurisdiction to juvenile court if the judge

believes that transfer is in the interests of the

juvenile and in the interests of society.

Transfer is referred to as reverse waiver.

Md. Code Ann., Crim. Proc. 4-202(b)(3).

ii. Transfer inapplicable

a. Previously adjudicated delinquent:

A juvenile may not be transferred

from criminal court jurisdiction to

juvenile jurisdiction if previously

transferred to juvenile court and

adjudicated delinquent. Id. 4-

202(c)(1).

b. Previously convicted: A juvenile

may not be transferred from criminal

court jurisdiction to juvenile

jurisdiction if, in an unrelated case, the

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juvenile was charged and convicted as

an adult. Md. Code Ann., Cts. & Jud.

Proc. 3-8A-03(d)(5).

c. First degree murder: A juvenile

may not be transferred from criminal

court jurisdiction to juvenile

jurisdiction if the Defendant is at least

age 16 and charged with first degree

murder. Md. Code Ann., Crim. Proc.

4-202(c)(3).

(c) Only one waiver or transfer: In Crosby v. State, 71

Md. App. 56 (1987), the Court of Special Appeals, in

the context of a case of a juvenile case, stated that,

once it has been decided whether the criminal court or

juvenile court is the best forum to handle the case,

judicial economy calls for the case to be tried in that

forum, because multiple waivers and transfers would

unproductively clog dockets and create a sense of

uncertainty.

i. Waiver of juvenile jurisdiction to criminal

jurisdiction: In Crosby, 71 Md. App. 56, the

Court of Special Appeals held that, if juvenile

jurisdiction is waived, and the case is sent to

criminal court, that determination is final and

the criminal court cannot thereafter send the

case back to juvenile court

ii. Transfer from criminal court to juvenile

court: If the criminal court transfers a case to

juvenile court, the juvenile court cannot

overrule the criminal court and re-waive

juvenile jurisdiction, sending the case for a

second time to criminal court. In re Glenn S.,

293 Md. 510 (1982). Likewise, in Smith v.

State, 399 Md. 565 (2007), the Court of

Appeals held that juvenile court cannot re-

waive juvenile jurisdiction by sending the

case to criminal court for sentencing.

(d) Factors for determining waiver or transfer in

either direction: The court either criminal court or

juvenile court must balance the interests of the

juvenile and the interests of society. Md. Code Ann.,

Cts. & Jud. Proc. 3-8A-06(e). The court must

consider the following five factors. In In re Baker, 17

Md. App. 714 (1973), the Court of Special Appeals

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held that it is not necessary that all five enumerated

factors be resolved against the juvenile to justify

waiving juvenile jurisdiction. Waiver of juvenile

jurisdiction is not an arithmetic-type calculation.

i. Age of the juvenile

ii. Mental & physical condition of the juvenile

iii. Amenability of the juvenile to juvenile treatment In re Randolph T., 292 Md. 97

(1981); In In re Bobby C., 48 Md. App. 249

(1981), the Court of Special Appeals held that

each of the five factors must be weighed in

relation to whether the child is fit or unfit for

juvenile rehabilitation.

iv. Nature of the offense & the juveniles

participation: The circumstances of the

crime are relevant to the waiver

determination. In re Murphy, 15 Md. App.

434 (1972); Hazel v. State, 12 Md. App. 144

(1971).

v. Public safety

(e) Proceedings & standard for waiver & transfer

(reverse waiver): Waiver and transfer (reverse

waiver) are both determined by a preponderance of

evidence. Md. Code Ann., Cts. & Jud. Proc. 3-8A-

06(b) & (d)(1); Md. Code Ann., Crim. Proc. 4-

202(b)(3).

i. State seeking waiver of juvenile jurisdiction

in order to try the Defendant as an adult:

When the State seeks waiver of juvenile

jurisdiction, the burden on persuasion is on

the State. For purposes of that proceeding, the

juvenile master must assume that the

allegations in the juvenile delinquency

petition are correct. Md. Code Ann., Cts. &

Jud. Proc. 3-8A-06(d)(2). In In re Baker, 17

Md. App. 714 (1973), the Court of Special

Appeals acknowledged that some juveniles

are not able to benefit from specialized

treatment of youths.

ii. Juvenile seeking reverse waiver of

criminal jurisdiction in order to be tried as

a juvenile: When the juvenile seeks transfer

(reverse waiver) from criminal jurisdiction

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to juvenile jurisdiction, the burden of

persuasion is on the Defendant. For purposes

of that proceeding, the Circuit Court judge

may not assume that the allegations in the

criminal charges are correct. Whaley v. State,

186 Md. App. 429 (2009).

(f) Constitutionality of preponderance of the

evidence: A juvenile court may waive juvenile

jurisdiction if the State persuades the juvenile court,

by a preponderance of the evidence, that the juvenile

is not amenable to juvenile rehabilitation. Md. Code

Ann., Cts. & Jud. Proc. 3-8A-06. In In re Bobby C.,

48 Md. App. 249 (1981), the Defendant argued that

the preponderance of the evidence for waiver was a

constitutionally inadequate standard, and that due

process required that finding beyond a reasonable

doubt. The Court of Special Appeals rejected this

challenge, holding that the purpose of the waiver

hearing is to assess whether the juvenile is amenable

to juvenile rehabilitation, and not to determine

whether the juvenile committed the crime alleged. In

In re Samuel M., 293 Md. 83 (1982), the Court of

Appeals stated: Given the presumption of validity

which attaches to legislative enactments, the absence

of a constitutional right to treatment as a juvenile, the

overriding purpose of the waiver hearing as a

determinant of jurisdiction over the juvenile, and the

fact that the juvenile is not impermissibly required to

prove his innocence of the offenses charged prior to a

later trial accompanied by the full panoply of

constitutional safeguards, Marylands legislative

scheme of waiver is not violative of any of the

accuseds due process rights. Accord In re Randolph

T., 292 Md. 97 (1981), cert. denied, 455 U.S. 993

(1982).

(g) Appellate review: The standard on appeal is abuse of

discretion. In re Franklin P., 366 Md. 306 (2001), the

Court of Appeals held that, absent abuse of discretion

in determining waiver, waiver in a juvenile case is

committed to the sound discretion of the juvenile

judge.; Hazell v. State, 12 Md. App. 144, cert. denied,

263 Md. 715 (1971). In In re Franklin P., 366 Md.

306, the Court of Appeals held that waiver of juvenile

jurisdiction is not immediately appealable under the

collateral order doctrine. In In re Johnson, 17 Md.

App. 705 (1973), the Court of Special Appeals held

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that waiver of juvenile jurisdiction was an abuse of

discretion. In that case, an unlicensed 16-year old

drove, killing a two-year-old. The State sought

waiver by the juvenile court. At the hearing, a

minister testified that she was active in civic affairs,

was very concerned and upset about what happened,

and it would be better for her to be tried in juvenile

court. The juvenile court waived jurisdiction and the

Defendant appealed. The Court of Special Appeals

reversed the waiver decision, holding that the juvenile

court was unduly influenced by the nature of the

offense, and amenability to juvenile treatment was

not considered or not afforded proper weight. A

statement by the juvenile court that the five legislative

factors were considered does not divest the appellate

court of jurisdiction.

c. Effect of juvenile court jurisdiction

(1) Purpose: The purpose of juvenile jurisdiction is to balance

the public safety, the accountability to victim, and

rehabilitation of the juvenile. Md. Code Ann., Cts. & Jud.

Proc. 3-8A-02(a)(1).

(2) Juvenile court proceedings

(a) Right to counsel: The juvenile has the right to

counsel at every stage of the proceeding. Id. 3-8A-

20(a) & 32.

(b) Waiver hearing: In In re Franklin, 366 Md. 306, the

Court of Appeals stated: The purpose of the juvenile

waiver hearing is not to determine guilt or innocence,

but rather to determine whether or not the juvenile is a

fit subject for juvenile rehabilitative measures. An

adjudicatory hearing must be held within 30 days

after the waiver hearing. Md. Rule 11-114(b). In In

re Flowers, 13 Md. App. 414 (1971), the Court of

Special Appeals held that strict rules of evidence do

not apply in a waiver hearing. The Court noted that,

to rule on amenability to juvenile rehabilitation, the

court needs all available information. See Kent v.

United States, 383 U.S. 541 (1966).

(c) Merits of delinquency hearing: Juvenile court must

determine, without a jury, whether the evidence

establishes, beyond a reasonable doubt, that the

individual committed the act(s) that would be criminal

if under the jurisdiction of criminal court. Md. Code

Ann., Cts. & Jud. Proc. 3-8A-13(g) & 13-8A-

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18(c).

(d) Disposition hearing, if adjudicated delinquent: If

juvenile court finds delinquency, beyond a reasonable

doubt, it must determine whether the juvenile needs

guidance, treatment, or rehabilitation. Id. 3-8A-

01(m)(1). The juvenile court conducts a disposition

hearing, usually resulting in probation, supervision,

rehabilitation, drug and/or alcohol counseling, work,

civil fines and/or costs, commitment to the

Department of Health & Mental Hygiene, and/or

detention for rehabilitation. Id. 3-8A-19(d).

(3) Status under juvenile court jurisdiction - Id. 3-8A-01(j)-

(k) & 3-8A-23(a)(1)

(a) Delinquent juvenile: A delinquent juvenile is a

delinquent and is not a criminal.

(b) Delinquent act: The act of the juvenile delinquent is

a delinquent act and not a criminal act.

(c) Child in need of supervision (CINS): A child who

has committed acts relevant to juvenile status, e.g.,

habitual disobedience or truancy, danger to self or

others, may be a child in need of supervision. Md.

Code Ann., Cts. & Jud. Proc. 3-801(f).

(4) Standard for adjudication as delinquent juvenile: Juvenile

court resolves cases in a non-jury trial.

(a) Criminal offense: Juvenile court must determine

whether the evidence establishes, beyond a reasonable

doubt, that the juvenile committed the act that would

be criminal in criminal court. Id. 3-8A-13(g) &

13-8A-18(c).

(b) Rehabilitation: Juvenile court must determine

whether the juvenile needs guidance, treatment, or

rehabilitation. Id. 3-8A-01(m)(1) & 3-801(f).

(5) Collateral consequences

(a) Confidentiality: Juvenile records are confidential.

Id. 3-8A-27.

(b) Statements: Statements made by juveniles and

evidence admitted in the juvenile court proceeding are

inadmissible in other contexts, unless the juvenile is

charged with perjury and the evidence is otherwise

admissible. Id. 3-8A-12 & 3-8A-23(c).

(c) Civil disabilities: Civil disabilities that flow from a

2-20

criminal conviction cannot be imposed on juveniles.

Id. 3-8A-23(a).

(d) Delinquency admissibility: The fact that a juvenile

was adjudicated delinquent is inadmissible in a

criminal proceeding (except for sentencing), a

juvenile proceeding, or a civil proceeding. Id. 3-

8A-23(b).

(6) Termination of juvenile jurisdiction & custody: Juvenile

jurisdiction may not extend more than three years or beyond

age 21. While in juvenile custody, a juvenile may not be

treated with individuals who are in adult criminal custody.

Id. 3-8A-07(a), 22(c)(3), & 24(b)-(c).

(7) Parental consequences: Parents may be required to accept

consequences for acts committed by their children. Id. 3-

8A-28 to 30.

(a) Make restitution

(b) Pay for the childs support

(c) Pay a fine up to $2,500 for contributing to juvenile

delinquency

V. Venue: Assuming a particular state sovereign has been offended, with a particular court

having subject matter jurisdiction, there is an issue of which county, i.e., which political

subdivision, within that state is the correct place to litigate the case. This is an issue of

venue, which is not an issue of jurisdiction. However, venue is frequently confused with

personal jurisdiction because both personal jurisdiction over the Defendants conduct and

venue are determined on a territorial theory, i.e., the situs or locus of the offense. See

McBurney v. State, 280 Md. 21 (1977).

A. Situs or locus of the actus reus: Like territorial jurisdiction over the Defendants

person, venue is usually determined based on the situs or locus of the actus reus.

B. Burdens

1. Burden of production: Proper venue is rebuttably presumed to exist, and

the Defendant must present evidence to generate the issue of lack of venue.

In Smith v. State, 116 Md. App. 43, cert. denied, 347 Md. 254 (1997), the

Court of Special Appeals held that a bare allegation of improper venue is

insufficient.

2. Burden of persuasion: In Smith, the Court held that, if the Defendant

generates the issue of lack of venue, the State must persuade the finder of

fact, by a preponderance of the evidence, that there is venue in the political

subdivision where the case was tried. Id.

C. Common law: Venue was not an element at common law. Grandison v. State, 305

Md. 685 (1986); Smith, 116 Md. App. 43.

D. Statutory venue

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1. Crimes committed on common carriers: Venue is in any county from, to,

or through which the common carrier travels. Md. Code Ann., Crim. Proc.

4-201(f).

2. Murder & manslaughter: If the death blow is inflicted in County A, and

the victim dies in County B, venue is in County A, which is where the death

blow was inflicted. Id. 4-201(b). If the death blow is inflicted on the

Chesapeake Bay, and the victim dies in a county, venue is in county where

the victim died. Id. 4-201(d). If the death blow is inflicted in a county, but

victim dies on the Chesapeake Bay, venue is in county where the death blow

was inflicted. Id. 4-201(e).

3. Chesapeake bay offenses: If the crime is committed on the Chesapeake

Bay, venue is in the county where the Defendant is arrested or the county

where the Defendant is first brought. Id. 4-201(c).

4. Crimes committed on or near a county boundary: Venue is in county

where the Defendant was arrested. Id. 4-201(g).

5. Accessory before the fact: Venue is in county where the accessory before

the fact committed the act of accessoryship. Id. 4-204(d)(1).

6. Accessory after the fact: Venue is in county where the accessory after the

fact became an accessory after the fact. Id. 4-201(h).

7. Rape & sexual offenses: Venue is in any county where transportation is

offered, solicited, begun, continued, or ended. Md. Code Ann., Crim. Law.

3-316.

E. Waiver of improper venue: If lack of proper venue is not raised and generated

before trial, it is waived. Spencer v. State, 76 Md. App. 71 (1988); Lett v. State, 51

Md. App. 668, cert. denied, 294 Md. 442 (1982); Carter v. State, 38 Md. App. 400,

cert. denied, 282 Md. 730 (1978).

State v. Huebner, 305 Md. 601 (1986).

Orth, J.

The issue is whether the District Court or Circuit Court has subject matter jurisdiction. The

Defendants argue the Circuit Court, and the State argues the District Court. The District Court and

the Circuit Court agreed with the State. The Court of Special Appeals agreed with the Defendants.

We agree with Court of Special Appeals and hold that the Defendants are entitled to be tried, in the

first instance, in Circuit Court.

Male Defendant was charged with resisting arrest, motor vehicle tampering, and disorderly

conduct. Female Defendant was charged with assault and battery on a police officer, hindering a

police officer, and disorderly conduct. The Defendants made a timely demand for a jury trial. The

State attempted to defeat the jury trial election, and keep the cases in District Court, by announcing it

would not seek sentence in excess of 90 days, invoking Md. Code Ann., Cts. & Jud. Proc. 4-

302(d), whereby if the State and the trial court agree not to impose a sentence in excess of 90 days,

there is no right to a jury trial. In Kawamura v. State, 299 Md. 276 (1984), we held that section 4-

302(d)(2)(ii) is unconstitutional when applied to charges for which the Md. Decl. Rights guarantees

a jury trial -- in that case theft. In Fisher v. State, 305 Md. 357 (1985), we applied Kawamura to a

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DUI case.

In this case, when the cases were called, the State entered a nol pros to each charge, except

disorderly conduct and disturbing the peace. The Defendant objected, but the trial court ruled that

the States nol pros was proper, leaving disorderly conduct and disturbing the peace as the only

charges, with no right to a jury trial. Thus, jurisdiction remained in the District Court. The Circuit

Court concurred, but the Court of Special Appeals reversed. We granted the States certiorari

petition on whether the District Court retains jurisdiction, following a prayer for a jury trial, and,

thus, whether the nol pros entered by the State was valid as to the charges for which a jury trial is

demandable? The jury trial is demandable for assault and battery and resisting arrest.

The State acted improperly in entering a nol pros. The District Court is deprived of

jurisdiction if the Defendant is entitled to and demands a jury trial in District Court. The Defendants

were each entitled to a jury trial and, prior to trial, each demanded a jury trial, which deprived the

District Court of jurisdiction. Once the Circuit Court obtains jurisdiction, it has exclusive original

jurisdiction over all offenses arising from the same circumstances, even though it is otherwise in the

District Courts exclusive jurisdiction. Once the Circuit Court obtained jurisdiction, that jurisdiction

divested the District Court of jurisdiction. Thus, entry of a nol pros in District Court was a nullity.

The State argues that, when it entered a nol pros, the cases were in the jurisdiction of the

District Court, despite a prior timely demand for trial by jury, because the District Court judge had

not yet ruled on the jury trial demand when the State entered nol pros. The State argues that there

was no need for the District Court to rule on the jury trial demand because the remaining charges did

not entitle the Defendants to trial by jury.

The Defendants had no obligation to ask for ruling on their jury trial demands. Section 4-

302(d)(1)s deprivation of District Court jurisdiction requires the Defendant to be entitled to a jury

trial and to make a timely demand for a jury trial. Once timely demand for a jury trial is made, the

only function left for the District Court is to determine whether the Defendant is entitled to a jury

trial. If the District Court finds that the Defendant is entitled to a jury trial, jurisdiction in the Circuit

Court attaches, jurisdiction in the District Court terminates, and the case is transferred to the Circuit

Court. If the right to a jury trial is resolved against the Defendant, the jurisdiction of the District

Court is reinstated and trial proceeds. In either instance, the correctness of the ruling is subject to

appeal.

Md. Rule 4-247(a) authorizes the State to terminate a case by entering a nol pros on the

record in open court. Entry of nol pros is within discretion of the State, free from judicial control or

the Defendants consent. In this case, however, the State was stripped of its right by the demands for

a jury trial. The Defendants were constitutionally entitled to a jury trial, which they demanded

timely. Thus, when the State entered a nol pros in District Court, that court had already lost

jurisdiction, and the State had no right to dismiss any charge. Because the District Court did not

retain jurisdiction following the prayer for a jury trial, the States entry of a nol pros was ineffective.

We affirm the holding of the Court of Special Appeals, which held that the Circuit Court erred.

Affirmed.

Jones v. State, 172 Md. App. 444 (2007).

Eyler, D., J.

The Defendant argues that the trial court erred in rejecting territorial jurisdiction and should

have submitted that issue to the jury. We disagree and affirm.

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When the victim left a bar in Baltimore County, she tripped and hit her head. She

remembered being put in a car, being beaten in the face, having her ear sliced in half, and being

sodomized. The victim was left in Baltimore City. She called her sister, who took her to the

hospital. Investigation failed to produce a suspect. Six years later, DNA evidence from swabs taken

from the victims anus matched the Defendants DNA. The DNA evidence placed the likelihood

that the assailant was someone other than the Defendant at more than one in 70 quadrillion.

The victim testified that, for part of the time, she was being sodomized while the vehicle was

driven at a high speed. She knew that she was placed in the vehicle in Baltimore County and was

dragged out of the vehicle in Baltimore City. Between those times, she did not know where she was.

The following exchange between defense counsel and the victim ensued:

Q: The driver could have taken you on the Beltway?

A: I dont know.

Q. The driver could have taken you on the Baltimore-Washington Parkway toward the District

of Columbia, correct?

A. I dont know.

Q. The rape could have taken place in the District of Columbia in a vehicle, correct?

A. It could have, but it did not.

Q. How do you know?

A. Because I know.

Q. How do you know?

A. Because I know it did not. Why wouldnt they leave me in the District of Columbia then?

Q. You do not know whether it happened in the District of Columbia, in Virginia, or in

Maryland?

A. I dont know where it happened, but it happened in the vehicle.

Q. Do you remember over what period of time it took place?

A. I cant remember.

At the close of the States case, after making an MJOA, the Defendant rested and moved to

dismiss for lack of territorial jurisdiction. Defense counsel argued that the total evidence on

territorial jurisdiction was that the victim did not know where the sexual assault took place and only

knew that she was put in a vehicle in Baltimore County, was driven around, and wound up in

Baltimore City five hours later. The Defendant argued that the State failed to establish that the crime

took place in Maryland, and the court lacked personal jurisdiction. The trial court denied the

Defendants motion, stating that there was evidence from which the jury could infer that the assault

and sexual offense occurred in Baltimore County.

Defense counsel did not request a jury instruction on territorial jurisdiction and the trial court

did not give one. Neither counsel objected, even when asked. In closing argument, the only

reference to the location of the crime was defense counsels statement that the victims lacked

knowledge of where the crime occurred. Defense counsel did not ask the jury to make a factual

finding as to whether the sexual assault occurred in Maryland.

The Defendant argues that (1) the evidence generated an issue of territorial jurisdiction, i.e.,

whether the sexual assault was committed in Maryland; and (2) once generated, the issue was for the

jury, as fact finder, to decide beyond a reasonable doubt. The Defendant maintains that (1) the trial

court should have submitted the issue of territorial jurisdiction to the jury, instead of ruling on that

issue as a matter of law; and (2) by so ruling, the trial court foreclosed the Defendant from

2-24

requesting a jury instruction and from arguing reasonable doubt that the offense occurred in

Maryland.

The State argues that the Defendant did not preserve the issue for appeal because he did not

request a jury instruction on territorial jurisdiction or object to the absence of such an instruction.

The State further argues that, in any event, the trial court properly denied the motion to dismiss

because there was no issue of territorial jurisdiction and, if there was, it was an issue of fact for the

jury to decide only on request by the Defendant, which was not made.

Territorial jurisdiction describes the concept that only when an offense is committed within

boundaries of the territorial jurisdictional of the court may the case be tried in that jurisdiction. In

Maryland, territorial jurisdiction is not an element of the offense. However, when evidence exists

that the crime may have been committed outside Marylands territorial jurisdiction, and when the

Defendant disputes territorial jurisdiction in Maryland, the issue of where the crime was committed

is a fact to be determined by the trier of fact. Territorial jurisdiction may be proven by

circumstantial evidence.

For territorial jurisdiction to be a jury issue, evidence must generate a genuine dispute about

where the crime was committed. A bald conclusory assertion that the offense was not committed in

Marylands territorial jurisdiction is insufficient to create an issue of territorial jurisdiction. To

generate an issue of lack of personal jurisdiction, there must be some evidence to support it, and it is

insufficient to merely allege that the crime might have occurred outside Maryland. If, but only if,

the evidence generates an issue of territorial jurisdiction, must the State prove, beyond a reasonable

doubt, that the crime was committed in Maryland.

In State v. Butler, 353 Md. 67 (1999), the Defendant was convicted of murdering his

girlfriend, her brother, and her son. Bodies were found in an abandoned vehicle in the District of

Columbia. Two victims had been shot and one had been asphyxiated. There was evidence of a gun

being fired in the passenger compartment. The police were called when bystanders saw the vehicle

on fire. The Defendant was charged in Prince Georges County, Maryland, where he and his

girlfriend and her son lived.

The State introduced substantial evidence to support finding that the murders happened in

Maryland, and not in the District of Columbia, where the bodies were found. The Defendant made

an MJOA based on the lack of territorial jurisdiction. When the MJOA was denied, the Defendant

requested a jury instruction on territorial jurisdiction. The trial court denied the instruction, ruling

that, as a matter of law, the crimes were committed in Maryland. The Court of Appeals reversed,

holding that the Defendant generated an issue of territorial jurisdiction, which should have been

submitted to the jury.

In West v. State, 369 Md. 150 (2002), the Court of Appeals held that the State lacked

territorial jurisdiction to prosecute the Defendant for sex offenses. There was uncontradicted

evidence that the Defendant and an accomplice abducted the victim in Prince Georges County,

Maryland, and drove her into the District of Columbia, where they committed sex offenses against

her. Afterward, they drove away and directed the victim to exit the vehicle, which she did, while

still in the District of Columbia.

At trial, the Defendant moved to dismiss the sex offenses on grounds that the State lacked

territorial jurisdiction because the crimes took place in the District of Columbia. The trial court

denied the MJOA and instructed the jury on territorial jurisdiction. The jury found that Maryland

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had territorial jurisdiction and found the Defendant guilty. The Court of Appeals reversed, holding

that the uncontroverted evidence showed that the primary elements of crimes were committed in the

District of Columbia. Therefore, the evidence was legally insufficient to support territorial

jurisdiction in Maryland. The issue should have been decided, as a matter of law, in favor of the

Defendant.

In Painter, the State alleged that the Defendant stole cattle from farms in Frederick County,

Maryland, took them to Pennsylvania, and sold them there. The evidence was sufficient to create a

genuine factual dispute about whether the primary elements of theft were committed in Maryland,

such as to warrant a jury instruction on territorial jurisdiction. The trial court correctly instructed the

jury that, in order to convict, it had to find, beyond reasonable doubt, that the theft was committed in

Maryland.

In the case at bar, the Defendant did not preserve the issue of territorial jurisdiction and, in

any event, the evidence did not generate the issue. We disagree with the Defendant that the trial

courts ruling on the motion to dismiss precluded him from requesting a jury instruction on territorial

jurisdiction. In moving to dismiss, the Defendant was asking the trial court to rule, as a matter of

law, that the State lacked territorial jurisdiction. In denying that motion, the court stated that the

facts were sufficient to allow a reasonable juror to infer that the sexual assault occurred in Maryland.

Nothing about that ruling barred the Defendant from seeking a jury instruction on territorial

jurisdiction. Indeed, the trial courts ruling seemed to be based on a finding that territorial

jurisdiction was a factual issue and not a legal issue. In any event, by not asking the court to submit

the issue of territorial jurisdiction to the jury, the Defendant failed to preserve the issue for appeal.

Even if the issue had been preserved, we would affirm. Viewed most favorably to the

Defendant, evidence showed that the victim was put in a vehicle in Baltimore County, Maryland,

was driven around, was sexually assaulted, and was dumped in Baltimore City, near the City-County

line. The period of time that elapsed from when the victim was placed in the vehicle, at about 1:30

a.m., to when she made her way to a gas station at 5:50 a.m., was four hours and 20 minutes. The

Defendants argument is that because it is physically possible to drive from Randallstown to the

District of Columbia (or Pennsylvania) and to Baltimore City in four hours and 20 minutes, and

because the victim did not see where she was being driven, but knew that she travelling on high

speed roads sometime, the issue was generated over whether the sexual assault took place in

Maryland. We disagree.

Evidence of a mere possibility that the crime did not take place in Maryland is insufficient to

create a genuine factual dispute about territorial jurisdiction. In Butler, there was evidence that the

Defendant and the victims had been in the District of Columbia. The Defendants vehicle was found

there, and the victims bodies were inside the vehicle. There was a factual dispute over (1) whether

the killings occurred before the Defendant drove the victims into the District of Columbia, or (2)

whether the Defendant drove the victims into the District of Columbia and killed them there. The

Court of Appeals held that the evidence generated a genuine dispute about territorial jurisdiction,

which should have been submitted to the jury.

In this case, there is no evidence that the vehicle in which the victim was sexually assaulted

traveled outside of Maryland. During several hours, the driver could have driven to the District of

Columbia or to Pennsylvania, and back to Baltimore City, or to Virginia, or West Virginia, or

Delaware, or New Jersey, and back. The mere fact that it was physically possible for the Defendant

to drive the victim outside of Maryland and then back to Maryland, in that time, is speculation and is

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not evidence.

This case most closely resembles McDonald v. State, 61 Md. App. 461 (1985). There, the

Defendant was convicted of attempted second degree murder of his live-in girlfriend. They

resided in Germantown with victims two children. The Defendant and the victim went to dinner in

Gaithersburg. At 9:30 p.m., the victim called home and told her daughters that she and the

Defendant would be home shortly. They did not arrive home until 2:30 a.m. The victim sustained

serious injuries and did not recover enough to communicate what happened. Charges were brought

against the Defendant in Montgomery County. On appeal, the Defendant argued that the Circuit

Court lacked jurisdiction because the State had not proven that the crime was committed in

Maryland. This Court rejected that argument, explaining:

Evidence supports an inference that the beating took place in Montgomery

County. There was evidence that the Defendant and the victim were seen leaving a

restaurant in Gaithersburg about 9:30 p.m. The victims daughter observed the

Defendant carry the victim into their Germantown home at 2:30 a.m. Defendant

cannot point to any evidence that would indicate that the crime was committed

outside of Maryland. The Defendant speculates that location of the restaurant is

such that the Defendant and the victim could have traveled to other states and to the

District of Columbia.

Likewise, in this case, it is incumbent on the Defendant to do more than make a bare

allegation that the crime might have occurred outside of Maryland in order to generate an issue of

lack of jurisdiction. The evidence was legally insufficient to generate an issue of territorial

jurisdiction. Evidence that the driver of vehicle could have traveled outside of Maryland before the

crime was committed, and could have traveled back to Maryland after the crime was committed, is

not evidence.

Moreover, the victims testimony did not generate an issue of territorial jurisdiction.

Furthermore, the Baltimore Beltway, which is a high-speed road that divides the Randallstown area

of Baltimore County from inner Baltimore County and Baltimore City, does not cross a state line. It

would be guess work to surmise that that the vehicle was driven out of the state. With no more than

conjecture that the crime was committed outside of Maryland, the issue of territorial jurisdiction was

not generated. If the trial court had been asked to instruct on that issue, and had refused, the court

would not have erred.

Judgments affirmed.

Whaley v. State, 186 Md. App. 429 (2009).

Zarnoch, J.

The Defendant was 16 years old when the crime of robbery with a dangerous weapon was

committed. Prior to trial, he sought unsuccessfully to have his case transferred from Circuit Court to

juvenile court. The Defendant argues that the trial court abused its discretion, during the reverse

waiver hearing, by considering non-statutorily enumerated factors as a basis for denying transfer of

jurisdiction, when the evidence showed that the Defendant was fit for rehabilitation in the juvenile

system.

A case management specialist with the Department of Juvenile Services (DJS) presented the

waiver report, recommending that the court consider waiver of jurisdiction to the juvenile system

because the Defendant had not been afforded various juvenile services available. The witness was

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quizzed by the court on the ability of DJS to place the Defendant in a secure facility if he were

adjudicated delinquent. The trial court asked whether, if the Defendant committed robbery, there

were plans to address public safety. The witness testified that there was no plan because it was still

unknown what, if any, offense he would be adjudicated as delinquent. The State asked the witness

to assume that the Defendant committed attempted armed robbery. The witness testified that

placements may be difficult to obtain, but they are available. The witness had no answer for what

they would do if they were not available. The DJS report stated:

Few offenses pose more serious risk to public safety than the use of a weapon

in the commission of a felony or crime of violence. Although the offense is serious,

the weapon used was a BB gun. Young people who become involved in these

offenses can be held accountable under juvenile jurisdiction. Public safety can be

ensured under juvenile jurisdiction via various levels of commitment, including

placement in a secure confinement facility.

The witness testified that she examined (1) the defendants age, (2) the Defendants mental

and physical condition, (3) the defendants amenability to treatment, (4) the nature of the offense,

and (5) public safety. She stated that, despite the Defendants prior contacts with the juvenile justice

system, the Defendant had never been adjudicated and had not had an opportunity for any placement.

He should have an opportunity for services that are available to adjudicated youth. On cross-

examination, she was asked: Did you discuss the crime itself? She answered: No, I did not. I

discussed the five factors included in the reverse waiver report. Q. He is, for purposes of this

process, presumed to be guilty, correct? A. Im not sure; I assume thats right.

Another DJS witness, when asked by defense counsel whether there was a facility available if

the Defendant were adjudicated delinquent for armed robbery, he named three out-of-state facilities.

He testified that the Defendant might not be placed in a residential facility, but secure confinement

would address public safety. Q. Has DJS approved out-of-state placements when requested? A.

Yes. Court: Thats not what Im told. A. Its a lengthy process. If there are no facilities in

Maryland, we have kids who routinely go to Virginia. Court: So your department does not tell

you they will not fund out-of-state placement if that is what is ordered or recommended by the

Department? A. No.

The trial court denied reverse waiver, stating: I am to assume the charges are true. Im

looking at the conduct here. This does not appear to be an act of immaturity. They apparently

armed themselves in anticipation with BB guns and, by agreement, approached the victim and

attempted to rob him, and fired multiple times, striking the victim in the face. It does not get much

worse than that. Pointing to the Defendants disruptive behavior in school and prior contacts with

the juvenile justice system that did not lead to adjudications, the trial court stated:

I cannot find evidence to suggest that treatment in a juvenile facility would be

more effective than treatment available through the normal adult criminal justice

system or that DJS programs would outweigh my concerns regarding public safety.

Secure confinement placements are very limited resources within the DJS. The

nature of these charges would indicate that we would be looking at secure

confinement placement, and there are very lengthy delays in that process. He is

going to be 18 years old in 18 months.

For this offense, it appears that the criminal justice system would be able to

supervise him for up to five years, if necessary. He will be an adult soon. I find that

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his needs can be addressed through detention in the Division of Correction. I find

that the Defendant has not met his burden to demonstrate that transfer of jurisdiction

is in the Defendants interest or in societys interest. Reverse waiver is denied.

The Defendant argues that the trial court abused its discretion when it considered non-

statutorily enumerated factors in denying the Defendants motion for reverse waiver. He claims that

the trial court, in gauging the nature of alleged offense, improperly assumed guilt and, in weighing

amenability to treatment, impermissibly speculated about the likely sentence and the availability of

placement options in the juvenile system.

During a reverse waiver hearing, the court must consider: (1) the childs age; (2) the

childs mental and physical condition; (3) the childs amenability to treatment in an institution,

facility, or program available to delinquent children; (4) the nature of the alleged crime; and (5)

public safety. Md. Code Ann., Crim. Proc. 4-202(d). The burden is on the juvenile to demonstrate

that, under these five factors, transfer to juvenile system is in best interest of the juvenile and society.

Id. 4-202(b)(3). The trial courts weighing of the five factors court is reviewed by the appellate

court under the abuse of discretion standard. Whether assumption of guilt is permitted is a legal

question and is reviewable de novo.

The Defendant points to fact that there is an express directive to the juvenile court to assume

guilt in a hearing on waiver of juvenile jurisdiction, but that there is no such provision governing the

criminal courts consideration in reverse waiver hearings. The State argues that the trial court did

not presume guilt but, in assessing the nature of alleged crime, it could not look behind the charges

to determine if the Defendant was properly before the Circuit Court initially.

We believe that the relationship of these two statutes does shed meaning on whether

assumption of guilt, or even looking beyond charges, is permissible under section 4-202(d). It is

arguable that the factors for judicial consideration of waiver and reverse waiver are the same.

However, on closer examination, we find that the two statutes differ significantly. In 1975, both

statutory schemes were amended. For purposes of determining whether the juvenile court should

waive jurisdiction, the court was required to assume that the child committed the delinquent act.

Two years later, the Maryland General Assembly amended the waiver statute to require that the five

factors be determined both individually and in relation to each other.

The standard for the five-factor reverse waiver analysis mirrored, in many ways, but not all

ways, the standard for waiver of juvenile jurisdiction. The statute for a reverse waiver hearing

included the alleged nature of the crime, but it did not mention assumption of guilt. It can be

argued that 1975 legislation merely incorporated the guilty assumption in waiver situations from

earlier case law, and that the Maryland General Assembly, by adopting the five-factor waiver

analysis for reverse waiver, intended the same assumption to apply. However, this is not the most

likely explanation.

Ch. 554 (HB 384) and ch. 830 (HB 1654) were enacted in the same legislative session. Both

bills were considered by the same committees in the House and the Senate. Each related to the same

subject and could have been included in one bill. The failure to include the assumed guilt provision

in ch. 830 could only be seen as intentional. In In re Samuel M., 293 Md. 83, 96 (1982), the Court

of Appeals recognized that the assumption of guilt provision was different from the five statutory

criteria. This suggests that selection of the presumption or its omission was a considered legislative

decision.

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There are valid reasons for including assumption of guilt in only one of two statutory

schemes. Presumption of guilt in a juvenile waiver setting is mitigated by the fact that the burden of

persuasion to justify waiver of juvenile jurisdiction remains on the State, and the ultimate issue is the

childs fitness for rehabilitation. After waiver, a different court considers guilt or innocence.

Presumption of guilt for cases tried in criminal court creates a constitutional question. It could force

the Defendant to preview his defense just to obtain a reverse waiver. In addition, the judge hearing

the reverse waiver, assuming guilt, may be the judge who hears the criminal case.

Finally, assumption of guilt, for consideration of reverse waiver, could skew the analysis of

the five statutory factors because the nature of the alleged offense factor will almost invariably be

found by the court in favor of the State. It will also be linked to the public safety factor because

one assumed guilty of a serious offense will be deemed a threat to public safety and not amenable to

treatment. This seems to run contrary to the authorization to transfer jurisdiction to juvenile court

when it is in the childs interest.

In this case, the State argued for a presumption of guilt, and motions judge agreed, stating

that she was required to assume that the Defendant was guilty of being armed and shooting, when

deciding the reverse waiver question. There were indications that the Defendant may not have been

the principal perpetrator. Cartridges were found on the Co-Defendant, but not on the Defendant.

T