Yu-Ting Lin operates Generation Guns, a Houston, Texas based business, which imports from Taiwan and sells in this country certain products it labels as “airsoft guns.”1 [1 “Airsoft” guns are described as toy replicas that look like real guns, but shoot lightweight plastic pellets instead of metal BBs or live ammunition. . . . .] An-Hung Yao, vice-president of a bank in Houston, is a friend of Lin’s and has helped her by setting up bookkeeping and computer systems for Lin’s business, and by attending trade shows with her. As part of an investigation into potential trademark infringements, firearms manufacturer Heckler & Koch, Inc. (“H & K”), through a private consulting firm and in cooperation with the Indiana State Police, ordered airsoft guns from Generation Guns. H & K directed that the toy guns be shipped to an address in Huntington County, Indiana. Lin, Yao, or both were allegedly involved in the process of receiving the order, accepting payment, and effecting shipment of the airsoft guns. On the basis of H & K’s verification that the toys delivered to Huntington County were replicas of H & K’s real weapons, the Huntington County Prosecutor charged Lin and Yao with three counts each of Class D felony theft and Class D felony counterfeiting, and one count each of Class C felony corrupt business influence.
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Indiana Code section 35-41-1-1(b) provides “[a] person may be convicted under Indiana law of an offense if: (1) either the conduct that is an element of the offense, the result that is an element, or both, occur in Indiana.” (emphasis added). The Defendants argue the trial court lacks jurisdiction over this prosecution because neither the “conduct that is an element of” nor “the result that is an element” of the charged offenses occurred in Indiana. Br. in Opposition to Trans. at 10-11.
. . . . With respect to the charge of theft, the conduct prohibited by statute is “exert[ion of] unauthorized control.” I.C. § 35-43-4-2. The Defendants argue “[t]he only ‘exertion of control’ alleged by the State is the sale of airsoft guns.” Br. of Lin at 18. We first note that the charging informations – which the Defendants seek to dismiss on jurisdictional grounds – make no allegation concerning sale. Rather they simply track the language of the statute . . . . Second, contrary to the Defendants’ apparent claim, “exertion of control” is not limited to sale. Instead to “exert control” means to “obtain, take, carry, drive, lead away, conceal, abandon, sell, convey, encumber, or possess property, or to secure, transfer, or extend a right to property.” I.C. § 35-43-4-1. If at trial the State fails to prove beyond a reasonable doubt that the Defendants, in Indiana, engaged in any one or more of these several forms of exerting control over the property of Heckler & Koch then the Defendants will be entitled to acquittal, or perhaps judgment on the evidence. But this is a sufficiency of the evidence determination. At this stage of the proceedings we cannot say as a matter of law that the charging information is jurisdictionally infirm. . . . .
With respect to the charge of counterfeiting, the conduct prohibited by statute is “mak[ing] or utter[ing]” a written instrument. I.C. § 35-43-5-2(a)(1) (now I.C. § 35-31.5-2-345). [Footnote omitted.] Neither defendant makes a specific claim concerning this particular charge. Instead both generally insist that all relevant conduct in this case took place in either Taiwan or the state of Texas, and ground their argument on the meaning of the sale of goods as used in the Uniform Commercial Code. First, similar to “exert control” under the theft statute, “mak[ing] or utter[ing]” under the counterfeiting statute is not limited to the sale of goods. Rather, to “utter” means “to issue, authenticate, transfer, publish, deliver, sell, transmit, present, or use.” I.C. § 35-41-1-27. Second, even if the evidence later shows that the Defendants did not “sell” in Indiana property belonging to Heckler & Koch (within the meaning of the criminal statutes), this says nothing about whether the Defendants engaged in other forms of “making or uttering” a written instrument in Indiana.
Consistent with the approach taken by the Court of Appeals in this case, the Defendants also claim there cannot be a more expansive understanding of jurisdiction under the criminal law than under the civil law. See Br. in Opposition to Trans. at 12. We disagree. Writing for a unanimous Supreme Court, Justice Holmes laid down a broad basis for criminal territorial jurisdiction: “Acts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a State in punishing the cause of the harm as if he had been present at the effect . . . .” Strassheim v. Daily, 221 U.S. 280, 285 (1911). Further, “the scope of a state’s jurisdiction over defendants in criminal cases is bound up with the scope of its substantive criminal law” and criminal jurisdictional doctrine evolved quite independently from the doctrine of civil jurisdiction. Allan Erbsen, Impersonal Jurisdiction, 60 Emory L.J. 1, 37 (2010) (listing reasons for analyzing questions of criminal jurisdiction separately from questions of civil jurisdiction). Cf. In re Vasquez, 705 N.E.2d 606, 609 (Mass. 1999) (“The jurisprudence of personal jurisdiction has no bearing on the question whether a person may be brought to a State and tried there for crimes under that State’s laws.”) Today, criminal jurisdiction is for the most part a creature of expansive state statutes designed in part to permit prosecution for consequences felt within a state resulting from criminal acts occurring outside a state. See Wayne R. LaFave, et al., 4 Criminal Procedure § 16.4(c) at 847-49 (3d ed. 2007).
In sum, we cannot conclude that as a matter of law the Defendants engaged in no conduct nor effected any result in Indiana that was an element of either the theft or the counterfeiting charge. The trial court did not abuse its discretion in denying sub silentio Lin’s motion to dismiss for lack of jurisdiction.
Dickson, C.J., and David and Massa, JJ., concur.