State v. Michael Sumulikoski / State v. Artur Sopel (072957)

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
State of New Jersey v. Michael Sumulikoski; State of New Jersey v. Artur Sopel (A-3/4-13) (072957)
Argued September 24, 2014 -- Decided March 18, 2015
PER CURIAM
In this appeal, the Court considers whether the State can prosecute offenses that occurred in Germany in a
New Jersey courtroom.
In February 2011, a group of students from Paramus Catholic High School traveled to Europe as part of a
school-sponsored trip. Defendants Michael Sumulikoski and Artur Sopel, who both worked at the school, served as
the sole chaperones for a portion of the group that went to Germany. One week after the trip ended, a teacher
reported that sexual misconduct had occurred between the chaperones and students during the trip. An investigation
revealed that defendants had engaged in multiple acts of sexual misconduct with three seventeen-year-old female
students while in Germany.
A Bergen County Grand Jury charged Sumulikoski with three counts of second-degree sexual assault
(Counts 2, 3, and 4), one count of second-degree endangering the welfare of a child by engaging in sexual contact
(Count 1), and two counts of second-degree endangering the welfare of a child by allowing Sopel to perform
unlawful acts in the victim’s presence (Counts 5 and 6). The Grand Jury charged Sopel with six counts of second-
degree sexual assault (Counts 8, 9, and 13 through 16) and two counts of second-degree endangering the welfare of
a child by engaging in sexual contact (Counts 7 and 12). Sopel also is charged with several additional offenses that
are not part of this appeal, including one count of endangering and six counts of sexual assault relating to acts from
2010 involving another seventeen-year-old victim (Counts 19-25), two counts of witness tampering (Counts 10 and
17), and two counts of endangering the welfare of a child with respect to the witness tampering (Counts 11 and 18).
Defendants moved to dismiss the sexual assault and endangerment charges involving conduct in Germany,
asserting that the State lacked territorial jurisdiction to prosecute the offenses in New Jersey. The trial court denied
the motions, focusing on N.J.S.A. 2C:1-3(a)(1), which allows for jurisdiction in New Jersey when “[e]ither the
conduct which is an element of the offense or the result which is such an element occurs within this State.” The
court concluded that material elements of both offenses – having “supervisory or disciplinary power” over a victim
(sexual assault), and “assuming the responsibility for the care of a child” (endangerment) – occurred in New Jersey
and constitute “conduct” sufficient to establish territorial jurisdiction.
Defendants appealed, and the Appellate Division affirmed substantially for the reasons set forth by the trial
court. The panel reasoned that the fact that some material elements of the offenses occurred in Germany does not
deprive the State of territorial jurisdiction since the “foundational elements” occurred in New Jersey. Moreover, the
panel found that there was a factual nexus between the crimes and New Jersey because the children were entrusted
to defendants’ care here, a legal obligation which ended upon their return.
Defendants moved for leave to appeal, and the State joined in the request. This Court granted the motions.
215 N.J. 481 (2013).
HELD: Under existing statutory law, a basis for territorial jurisdiction is established when “conduct” that is an
element of an offense occurs in New Jersey. In this case, there is no basis for territorial jurisdiction in New Jersey
because the elements of the charged crimes that related to defendants’ conduct occurred entirely overseas.
1. In order for the State to prosecute a crime in New Jersey, there must be territorial jurisdiction. At common law,
the requirement for territorial jurisdiction meant that a state could prosecute only those crimes committed within its
territorial borders, but this notion has relaxed over time. It has now become common for states to invoke
jurisdiction whenever any act pertaining to an offense occurs or takes effect within the forum state. Similarly, the
1
“effects doctrine” provides another basis for jurisdiction, allowing a state to prosecute a crime when criminal acts
done outside its jurisdiction are intended to produce, or do produce, detrimental effects within it. In New Jersey,
courts have broadly interpreted the statute on territorial jurisdiction, N.J.S.A. 2C:1-3, to apply to offenses committed
partly outside of the State so long as there is a direct nexus to New Jersey. (pp. 11-12)
2. The focus in this case is on N.J.S.A. 2C:1-3(a)(1), which allows for territorial jurisdiction in a criminal case when
“[e]ither the conduct which is an element of the offense or the result which is such an element occurs within this
State.” In order to meet this requirement, the State must offer proof of conduct or result without reliance on relevant
attendant circumstances. A defendant’s status, including his or her legal rights, duties, liabilities, and other legal
relations, cannot alone provide a basis for jurisdiction. For example, in bigamy cases where the second marriage
occurred outside of the state that is seeking to assert jurisdiction, courts have repeatedly found that the first marriage
only establishes the defendant’s status as a married person and does not provide a basis for territorial jurisdiction.
(pp. 13-18)
3. Here, the indictment alleges multiple violations of the sexual assault statute, N.J.S.A. 2C:14-2, which requires the
State to prove several elements beyond a reasonable doubt, including the victim’s age, and that an act of sexual
penetration occurred. Since age is a status that cannot afford jurisdiction, and all of the acts of sexual misconduct
allegedly occurred in Germany, the State attempts to establish territorial jurisdiction through an element of the
offense requiring that the defendant had “supervisory or disciplinary power of any nature or in any capacity over the
victim.” N.J.S.A. 2C:14-2(c)(3)(b). However, that element does not describe conduct or an affirmative act. Rather,
it describes a person’s status - the nature and accompanying duties of a relationship - which cannot provide a basis
for jurisdiction under N.J.S.A. 2C:1-3(a). Where, as here, all of the elements of an offense that relate to conduct
took place outside of the State’s borders, jurisdiction lies elsewhere. Thus, the State lacks authority in this matter to
prosecute the alleged acts of sexual assault in New Jersey. (pp. 18-20)
4. The indictment also alleges multiple violations of the endangering statute, N.J.S.A. 2C:24-4(a)(1). As with the
sexual assault statute, several elements of the endangering statute cannot support territorial jurisdiction, including
the victim’s status as a child and the fact that all of the alleged acts of sexual conduct occurred overseas. Thus, the
State’s focus is on that element of the offense requiring that the defendant either had a “legal duty” for the child’s
care or had “assumed” that responsibility. While “having a legal duty” describes a status that cannot provide a basis
for territorial jurisdiction, the second clause of this element presents a closer question in light of how it is phrased.
Specifically, it is addressed to any person “who has assumed responsibility for the care of a child,” which can be
read to mean that a person has engaged in conduct to take on a responsibility. However, the same is true of marriage
where the affirmative steps that provide a legal status do not amount to conduct providing a basis for territorial
jurisdiction. Reading the statute broadly in order to suggest that a person who takes on the status of a chaperone has
engaged in conduct raises significant due process concerns and could sweep in behavior that is attenuated, if not
completely divorced, from any criminal conduct. To the extent that there is an unresolved ambiguity in the statute,
the rule of lenity also cautions against reading the law against defendants. Thus, the element of assumption of
responsibility does not support territorial jurisdiction over the endangering charges in question. (pp. 20-26)
5. The Court recognizes that the outcome here may be unsettling. However, it is driven by existing statutory law,
which requires that “conduct” that is an element of the offense occur in New Jersey. Although the Legislature may
consider amending the law, nothing in the sexual assault or endangering statutes as currently written suggests that
those laws were intended to apply to conduct by a teacher/chaperone, outside of this State, directed against a student
in the person’s care, in a manner that comports with due process. (pp. 26-27)
The judgment of the Appellate Division is REVERSED, Counts 1 through 9, and 12 through 16 of the
indictment are DISMISSED, and the matter is REMANDED to the trial court for further proceedings on the
remaining charges, Counts 10, 11, and 17 through 25.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, and
SOLOMON; and JUDGE CUFF (temporarily assigned) join in this PER CURIAM opinion. JUSTICE
ALBIN did not participate.
2
SUPREME COURT OF NEW JERSEY
A-3/4 September Term 2013
072957
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MICHAEL SUMULIKOSKI,
Defendant-Appellant.
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ARTUR SOPEL,
Defendant-Appellant.
Argued September 24, 2014 – Decided March 18, 2015
On appeal from the Superior Court, Appellate
Division.
Philip A. De Vencentes argued the cause for
appellant Michael Sumulikoski (Galantucci &
Patuto, attorneys).
Alan L. Zegas argued the cause for appellant
Artur Sopel (Law Offices of Alan L. Zegas
and Flood & Basile, attorneys; Mr. Zegas,
Raymond F. Flood, and Terel L. Klein, on the
brief).
David A. Malfitano, Assistant Prosecutor,
argued the cause for respondent (John L.
Molinelli, Bergen County Prosecutor,
attorney; Mr. Malfitano and Kenneth M.
Ralph, Senior Assistant Prosecutor, on the
letter briefs).
3
Brian J. Uzdavinis, Deputy Attorney General,
argued the cause for amicus curiae Attorney
General of New Jersey (John J. Hoffman,
Acting Attorney General, attorney).
PER CURIAM
This case involves the prosecution of a permanent
substitute teacher and a school administrator who chaperoned a
group of high school students on an overseas class trip.
Defendants allegedly sexually assaulted three 17-year-old female
students during the trip, and the Bergen County Prosecutor’s
Office indicted defendants for multiple counts of sexual assault
and endangering the welfare of a child.
All of the acts of misconduct allegedly occurred in
Germany. Neither the indictment nor the record suggests that
defendants planned or committed acts of sexual assault or
endangering in New Jersey. Defendants accordingly moved to
dismiss the charges on the ground that the State cannot
establish territorial jurisdiction to proceed here.
At the core of this appeal is this basic question: whether
the State can prosecute offenses that occurred in Germany in a
New Jersey courtroom. The State’s authority is limited by
existing statutes and due process concerns. It has the power to
prosecute crimes that occurred here either in whole or in part;
but to establish territorial jurisdiction in a case like this,
some “conduct” that is an element of the offense must take place
in New Jersey. See N.J.S.A. 2C:1-3(a)(1). The issue presented
4
thus turns on whether two elements of the crimes charged --
having “supervisory or disciplinary power” over the victims and
“assum[ing] responsibility for the care of a child” --
constitute “conduct” that satisfies the jurisdictional
requirement. Because the elements instead relate to defendants’
status as chaperones, and not their conduct, there is no basis
for territorial jurisdiction in New Jersey under existing law.
For reasons that follow, we have no choice but to reverse
the judgment of the Appellate Division and dismiss a number of
counts in the indictment. The case may proceed on counts
relating to witness tampering and a separate series of
allegations of sexual assault against a victim in New Jersey.
I.
The record at this stage is limited. The following
information is drawn largely from the indictment and testimony
before the grand jury.
From February 17 to 27, 2011, a group of students from
Paramus Catholic High School traveled to Europe as part of a
school-sponsored trip. The students visited Amsterdam and
Belgium together and then split into two groups; most traveled
on to France, and seventeen students went to Germany.
Defendants Michael Sumulikoski and Artur Sopel were the
only chaperones who accompanied the group to Germany. Both
worked at Paramus Catholic High School. Sumulikoski, who was
twenty-eight years old at the time, was a permanent substitute
5
teacher and an athletic coach. Sopel, then age thirty-one, was
the vice president of operations. Both agreed to serve as
chaperones. At oral argument, the State represented in general
that both had conversations and signed documents that spelled
out their responsibilities as chaperones.
A week after the trip ended, a teacher contacted the
Division of Youth and Family Services1 and reported that sexual
misconduct had occurred between the chaperones and students
during the trip. An investigation followed. It uncovered
evidence that the chaperones engaged in acts of sexual
misconduct with three seventeen-year-old students, Jill, Kate,
and Anne. (We use pseudonyms to protect the identity of the
victims, who were underage at the time.)
Each of the victims spoke with a sergeant from the
prosecutor’s office on one or more occasions. They recounted a
number of events that took place during the trip. We focus
briefly on the acts of sexual misconduct in Germany, which form
the basis for the indictment. Jill stated that she and
Sumulikoski performed oral sex on each other and had sexual
intercourse. Kate recounted that Sopel inserted his finger into
her vagina and had sexual intercourse with her. Anne stated
that Sopel put his finger in her vagina and had sexual
1 Effective June 29, 2012, the Division of Youth and Family
Services was renamed the Division of Child Protection and
Permanency. L. 2012, c. 16, § 20.
6
intercourse with her on two different occasions. Jill and Kate
also relayed that Sopel spoke with each of them about what to
say to the authorities.
A Bergen County Grand Jury indicted defendants on December
21, 2011. Sumulikoski stands charged with three counts of
sexual assault in the second-degree, N.J.S.A. 2C:14-2(c)(3)(b)
(Counts 2, 3, and 4, relating to Jill); one count of endangering
the welfare of a child (Jill) in the second-degree by engaging
in sexual contact, N.J.S.A. 2C:24-4(a) (Count 1); and two counts
of endangering the welfare of a child in the second-degree by
allowing Sopel to perform unlawful acts in the presence of the
victim (Kate and Anne, respectively), N.J.S.A. 2C:24-4(a)
(Counts 5 and 6).
Sopel is charged in nineteen counts, eight of which are
relevant to this appeal. Specifically, Sopel is accused of six
counts of sexual assault in the second-degree, N.J.S.A. 2C:14-
2(c)(3)(b) (Counts 8 and 9, relating to Kate, and Counts 13, 14,
15, and 16, relating to Anne); and two counts of endangering the
welfare of a child in the second-degree by engaging in sexual
contact, N.J.S.A. 2C:24-4(a) (Count 7, relating to Kate, and
Count 12, relating to Anne).
Sopel is also charged with one count of endangering and six
counts of sexual assault relating to acts in 2010 which involve
another seventeen-year-old victim (Counts 19 through 25); two
counts of witness tampering (Counts 10 and 17, relating to Kate
7
and Anne, respectively); and two counts of endangering the
welfare of a child, which are connected to the witness tampering
charges (Counts 11 and 18, relating to Kate and Anne,
respectively). The indictment alleges that these eleven
offenses were committed only in Bergen County, and defendants do
not argue that the charges cannot proceed in New Jersey. They
are not part of this appeal.
Defendants moved to dismiss the sexual assault and
endangerment charges that involve conduct in Germany. They
asserted that the State lacked territorial jurisdiction to
prosecute the offenses here. In a detailed, written opinion,
the trial court denied the motions. The trial judge reviewed
the evolution of the concept of territorial jurisdiction and
focused in particular on N.J.S.A. 2C:1-3(a)(1). That section
allows for jurisdiction in New Jersey when “[e]ither the conduct
which is an element of the offense or the result which is such
an element occurs within this State.”
The court concluded that elements of both offenses --
having “supervisory or disciplinary power” over a victim (under
the sexual assault statute), and “assuming the responsibility
for the care of a child” (under the endangerment statute) --
constitute “conduct” that is a “material element of the offenses
charged.” The trial court distinguished case law that limits
where a bigamy prosecution may be brought; the court observed
that “the status of a teacher,” unlike the status of a married
8
person, “presupposes conduct.” As a result, the trial judge
concluded that territorial jurisdiction for the offenses could
be found in New Jersey.
In an unpublished opinion, the Appellate Division affirmed
substantially for the reasons set forth by the trial judge. It
noted that because the above “foundational elements” occurred in
New Jersey, “the fact that additional material elements of the
offenses occurred in Germany does not deprive the State of
territorial jurisdiction to prosecute the offenses.” In
addition, the panel found that “[t]his case bears a factual
nexus between the crimes and New Jersey, namely, that parents
entrusted their children to defendants in this state, and that
legal obligation ended upon their return to New Jersey.”
Each defendant filed a motion for leave to appeal, and the
State joined in the request. We granted the motions. 215 N.J.
481 (2013). We also granted the Attorney General’s motion for
leave to appear as amicus curiae.
II.
Sumulikoski argues that he cannot be compelled to stand
trial in New Jersey for a crime allegedly committed in a foreign
country. He claims that all of the alleged acts of conduct in
this case took place in Germany, and that there is no evidence
of a conspiracy or any preparatory act or attempt that occurred
in New Jersey. As a result, he argues that there is no
territorial jurisdiction to proceed here.
9
Sumulikoski maintains that having “supervisory or
disciplinary power” over the victim and “having assumed the
responsibility for the care of a child” are facts or
circumstances that define a relationship, but not “conduct.” As
a result, he contends that the elements cannot provide a basis
for territorial jurisdiction under N.J.S.A. 2C:1-3(a)(1).
Sumulikoski submits that the statute confers jurisdiction upon
New Jersey only when prohibited conduct or results occur here.
Even if the elements were considered conduct, he contends that
they could not confer jurisdiction unless they were accompanied
by a culpable mental state. Sumulikoski also argues that to
extend jurisdiction in this case would implicate due process
concerns under the Federal and State Constitutions.
Sopel advances similar arguments. He stresses that to try
him in New Jersey for conduct that occurred in Germany would
upend an established body of law and violate his constitutional
due process rights. He argues that a duty of care that arises
from a person’s supervisory role or assumption of responsibility
is not conduct; it is a status or circumstance that cannot
provide a jurisdictional tie under N.J.S.A. 2C:1-3(a). Sopel
contends that it is not enough for an element of an offense to
occur within this state. For New Jersey to have criminal
jurisdiction, he asserts that some forbidden act of conduct must
have occurred here. In this case, Sopel argues that because all
of the alleged forbidden conduct took place in Germany, New
10
Jersey lacks territorial jurisdiction. To the extent that
N.J.S.A. 2C:1-3(a) might be read otherwise, he submits that the
statute must be strictly construed against the State. Sopel
also claims that the statute provides no notice that individuals
may be prosecuted in New Jersey for conduct committed abroad.
The State argues that the most important factor to assess
jurisdiction “is the fact that the assumption of the duty to
properly supervise the children by both defendants occurred in
New Jersey and never terminated until all parties returned from
Europe.” Without that assumption of duty, the State argues, no
crime would have occurred. The State maintains that “the
relationship of teacher and student, which creates the duty, was
unambiguously established in New Jersey” and did not exist
before defendants voluntarily agreed to serve as chaperones.
The State asserts that, to assume that duty, defendants signed
documents and had conversations about their responsibilities
before the trip started. Because “the most important element of
the crimes” occurred in New Jersey, the State contends, it is
irrelevant that “the actual sexual relations” took place abroad.
As a result, the State maintains that jurisdiction is proper
here.
The Attorney General, as amicus, also argues that
defendants are subject to prosecution in New Jersey because of
“their affirmative acts of assuming responsibility in this State
for the supervision and care” of victims during the trip.
11
According to the Attorney General, that assumption of
responsibility “plainly amounts to ‘conduct’ that supports a
finding of jurisdiction.” The Attorney General submits that
“forbidden conduct” in New Jersey is not required to confer
jurisdiction; instead, defendants need only have intended to
become chaperones while in New Jersey. Because defendants
“actively and voluntarily embraced” their supervisory roles in
New Jersey, the Attorney General maintains that they can be
prosecuted here.
III.
There must be territorial jurisdiction in New Jersey for
the State to prosecute a crime here. State v. Denofa, 187 N.J.
24, 36 (2006). The State has the power to prosecute crimes that
occurred within its borders but may not bring charges for
offenses committed entirely in another state or country. Ibid.If the commission of an offense spans jurisdictional boundaries,
more than one jurisdiction may prosecute the crime. Heath v.
Alabama, 474 U.S. 82, 93, 106 S. Ct. 433, 440, 88 L. Ed. 2d 387,
397 (1985).
At common law, a state could prosecute only those crimes
committed within its territorial borders. See Model Penal Code
and Commentaries, comment 1 on § 1.03, at 36 (1980); see also 2
Final Report of the New Jersey Criminal Law Revision Commission,
12
comment on § 2C:1-3, at 7 (1971) (noting “the completed act” had
to occur in New Jersey to allow for prosecution here). The
notion of strict territoriality relaxed over time, and it has
become common for state courts to invoke jurisdiction “whenever
any act pertaining to the criminal transaction occurs or takes
effect within the forum state, even [if] the major activity took
place elsewhere.” B. J. George, Jr., Extraterritorial
Application of Penal Legislation, 64 Mich. L. Rev. 609, 622
(1966). The “effects doctrine,” first articulated by Justice
Oliver Wendell Holmes, affords another basis for jurisdiction:
“Acts done outside a jurisdiction, but intended to produce and
producing detrimental effects within it, [can] justify a State
in punishing the cause of the harm. . . .” Strassheim v. Daily,
221 U.S. 280, 285, 31 S. Ct. 558, 560, 55 L. Ed. 735, 738 (1911)
(citations omitted).
In 1962, the Model Penal Code incorporated these more
expansive interpretations of territorial jurisdiction. It
identified six bases for jurisdiction that extended beyond
traditional territorial boundaries. See Model Penal Code, §
1.03 & comment 1, 35-37 (1962). The Legislature codified those
provisions at N.J.S.A. 2C:1-3 when it enacted the Code of
Criminal Justice in 1978. See Denofa, supra, 187 N.J. at 38 n.7
(“Our statutory construction for territorial jurisdiction
follows the Model Penal Code.”); State v. Bragg, 295 N.J.
Super. 459, 464 (App. Div. 1996) (citing N.J.S.A. 2C:1-3 and
13
noting that “the law of jurisdiction was substantially
modified”). Since then, courts have “broadly interpreted” New
Jersey’s statute on territorial jurisdiction to apply “to
offenses committed partly outside of the State.” State v.
Streater, 233 N.J. Super. 537, 543 (App. Div.) (citations
omitted), certif. denied, 117 N.J. 667 (1989). As the language
of N.J.S.A. 2C:1-3 makes clear, though, the various methods that
allow for jurisdiction in a criminal case all require a direct
nexus to New Jersey.
The statute provides in part as follows:
a. Except as otherwise provided in this
section, a person may be convicted under the
law of this State of an offense committed by
his own conduct or the conduct of another for
which he is legally accountable if:
(1) Either the conduct which is an element of
the offense or the result which is such an
element occurs within this State;
(2) Conduct occurring outside the State is
sufficient under the law of this State to
constitute an attempt to commit a crime within
the State;
(3) Conduct occurring outside the State is
sufficient under the law of this State to
constitute a conspiracy to commit an offense
within the State and an overt act in
furtherance of such conspiracy occurs within
the State;
(4) Conduct occurring within the State
establishes complicity in the commission of,
or an attempt, or conspiracy to commit, an
offense in another jurisdiction which also is
an offense under the law of this State;
14
(5) The offense consists of the omission to
perform a legal duty imposed by the law of
this State with respect to domicile, residence
or a relationship to a person, thing or
transaction in the State; or
(6) The offense is based on a statute of this
State which expressly prohibits conduct
outside the State, when the conduct bears a
reasonable relation to a legitimate interest
of this State and the actor knows or should
know that his conduct is likely to affect that
interest.
[N.J.S.A. 2C:1-3(a).]
The State now relies on subsection (1) to assert jurisdiction.2
In particular, the focus in this case is on the language,
“conduct which is an element of the offense [that] occurs within
this State.”
The criminal code defines “conduct” as “an action or
omission and its accompanying state of mind, or, where relevant,
a series of acts and omissions.” N.J.S.A. 2C:1-14(d). By
contrast, the code defines an “element of an offense” more
broadly as
(1) such conduct or (2) such attendant
circumstances or (3) such a result of
conduct as
(a) Is included in the description of the
forbidden conduct in the definition of the
offense. . . .
2 The trial court rejected the State’s argument that subsection
(5) and N.J.S.A. 2C:1-3(g) also conferred jurisdiction. The
State did not appeal those determinations.
15
[N.J.S.A. 2C:1-14(h).]
In short, then, to meet the requirement of territorial
jurisdiction, the State must offer proof of “conduct” or
“result,” as defined in N.J.S.A. 2C:1-3, but cannot rely on
relevant attendant circumstances.
Under the statute, a defendant’s status alone does not
provide a basis for jurisdiction. “Status” is defined as “[a]
person’s legal condition, whether personal or proprietary; the
sum total of a person’s legal rights, duties, liabilities, and
other legal relations.” Black’s Law Dictionary 1542 (9th ed.
2009). Parents or guardians, for example, have a legal duty to
care for a child by virtue of their status. See, e.g., D.W. v.
R.W., 212 N.J. 232, 246 (2012).
A number of cases have examined those principles in the
context of a prosecution for bigamy. In State v. Ishaque, for
example, the defendant was married in a civil ceremony in New
Jersey. 312 N.J. Super. 207, 208 (Law Div. 1997). Three years
later, he traveled to Pakistan and married someone else there.
Ibid. Upon his return to New Jersey, he was charged with
bigamy. Ibid.Under N.J.S.A. 2C:24-1(a), “[a] married person is guilty of
bigamy . . . if he contracts or purports to contract another
marriage.” The court dismissed that charge for lack of
territorial jurisdiction after it analyzed N.J.S.A. 2C:1-3. The
court reasoned that “the act or the conduct constituting the
16
offense of bigamy” took place only in Pakistan. Id. at 211
(emphasis added). Defendant’s marital status, an element of the
offense that had been established in New Jersey, did not afford
a basis for jurisdiction. The court also noted that New
Jersey’s bigamy statute does not “expressly prohibit[] (such)
conduct (when it occurs) outside” New Jersey. Id. at 212
(quoting N.J.S.A. 2C:1-3(a)(6)) (brackets added). “Nothing” in
the code, the court explained, “suggests the Legislature
intended to make a bigamous marriage contracted outside New
Jersey an offense against the laws of this state, nor to expand
the jurisdiction of this state’s courts to prosecute one for
committing bigamy elsewhere.” Ibid.
Commonwealth v. Seiders, 11 A.3d 495 (Pa. Super. Ct. 2010),
reached a similar result when it dismissed a bigamy charge for
lack of jurisdiction. The appellate court explained that “[o]f
bigamy’s two elements, the first element, being married, is an
attendant circumstance or accompanying fact of the actor’s
being; it is not conduct.” Id. at 499. As a result, the
element could not confer jurisdiction when a second marriage
occurred outside the state.
In both cases, to be sure, defendants initially took
affirmative steps to get married. They not only decided to
marry a partner but also applied for a marriage license and
participated in a ceremony in the first state. Yet those acts
did not constitute conduct under the bigamy statute; they
17
instead established each defendant’s status as a “married
person” under the law. That status alone does not permit the
state where the first marriage took place to invoke territorial
jurisdiction and prosecute a bigamy charge.
Likewise, for the purposes of an escape statute, the
requirement that a defendant be a convicted felon “does not
describe ‘conduct’” but instead “describes a status.” State v.
Wagner, 596 N.W.2d 83, 86 (Iowa 1999). An Iowa inmate who
escaped from custody while outside the state could therefore not
be prosecuted for escape in Iowa. Id. at 88.
State v. Sanders, 230 N.J. Super. 233 (App. Div. 1989),
also helps illustrate the important distinction between conduct
and status. In that case, the defendant was prosecuted for
endangering the welfare of a child and child abuse after she
boarded a bus in Atlantic City with her two-day-old baby. Id.
at 235. She later abandoned the child in a bus station in
Pennsylvania. Ibid. At her guilty plea, the defendant admitted
that she left New Jersey by bus for the express purpose of
abandoning her child in Philadelphia. Ibid.The Appellate Division found that the defendant’s factual
basis was sufficient to support both the guilty plea and
jurisdiction in New Jersey. Ibid. The panel noted but did not
rely on the defendant’s legal duty for the care of her child to
find jurisdiction. Id. at 237. Instead, the panel found that
defendant “took a substantial step in this state” toward
18
neglecting the child. Ibid. That conduct, the court concluded,
established an attempt to endanger in New Jersey. Ibid. Once
again, a court looked to a defendant’s conduct -- and not status
or other circumstances -- to sustain territorial jurisdiction.
IV.
Defendants properly brought their motion to dismiss based
on territorial jurisdiction early in the proceedings. See
Denofa, supra, 187 N.J. at 43. To assess their claims, we
consider the above principles in light of the specific charges
of sexual assault and endangering.
A.
Sexual Assault
The indictment alleges multiple violations of N.J.S.A.
2C:14-2, which provides in part as follows:
c. An actor is guilty of sexual assault if he
commits an act of sexual penetration with
another person under any one of the following
circumstances:
. . . .
(3) The victim is at least 16 but less than
18 years old and:
. . . .
(b) The actor has supervisory or disciplinary
power of any nature or in any capacity over
the victim.
[N.J.S.A. 2C:14-2(c)(3)(b).]
19
To convict a defendant under N.J.S.A. 2C:14-2(c)(3)(b), the
State must prove the following elements beyond a reasonable
doubt:
(1) defendant committed an act of sexual penetration with
the victim;
(2) at the time of the penetration, the victim was at least
sixteen years old but less than eighteen years old;
(3) defendant had supervisory or disciplinary power of any
nature or in any capacity over the victim; and
(4) defendant acted knowingly.
See N.J.S.A. 2C:14-2(c)(3)(b); see also Model Jury Charge
(Criminal), “Sexual Assault, Victim At Least 16 But Less Than 18
(N.J.S.A. 2C:14-2(c)(3))” (Mar. 10, 2008).
The State relies on the third element to establish
jurisdiction: “the actor has supervisory or disciplinary power
of any nature or in any capacity over the victim.” N.J.S.A.
2C:14-2(c)(3)(b). The element, though, does not describe
conduct or an affirmative act; it describes a person’s status --
the nature and accompanying duties of a relationship. Because
status or “attendant circumstances” cannot provide a basis for
jurisdiction under N.J.S.A. 2C:1-3(a), the third element
standing alone cannot afford jurisdiction.
For that reason, the allegations in this case do not
support territorial jurisdiction for sexual assault. The
victim’s age is a circumstance or status that cannot afford
20
jurisdiction. In addition, all of the acts of sexual misconduct
allegedly occurred in Germany; the State does not allege that
defendants took any preparatory steps in that regard in New
Jersey. To establish jurisdiction, the State instead relies
solely on the fact that defendants had supervisory or
disciplinary power over the students -- a circumstance or status
that does not satisfy the territorial jurisdiction statute.
When, as here, all of the elements of an offense that
relate to conduct took place outside the State’s borders,
jurisdiction lies elsewhere -- in the state or country where the
conduct occurred. See N.J.S.A. 2C:1-3(a). Under the statute,
therefore, the State lacks authority in this matter to prosecute
the alleged acts of sexual assault in New Jersey.
B.
Endangering
The indictment also alleges multiple violations of N.J.S.A.
2C:24-4(a)(1), which provides that “[a]ny person having a legal
duty for the care of a child or who has assumed responsibility
for the care of a child who engages in sexual conduct which
would impair or debauch the morals of the child is guilty of a
crime of the second degree.”
The endangering statute applies broadly to a variety of
relationships. It of course extends to a “violation of the duty
that a parent owes to a child.” State v. Miller, 108 N.J. 112,
118-19 (1987); see also Model Penal Code, supra, comment 1 on §
21
230.4, at 444 (endangering welfare of children “enforces the
special duties that adults have toward children”).
The plain language of the statute encompasses other
relationships as well. Borrowing concepts from Title 9, this
Court has observed that the child endangerment statute applies
“to a person who has ‘assumed the care of a child’ or is ‘living
with the child’ or has a ‘general right to exercise continuing
control and authority over’ the child.” State v. Galloway, 133
N.J. 631, 659 (1993).3 The assumption of responsibility in
question can be formal or informal; it can be based on custody
situations and less-structured relations. Id. at 661.
Depending on the circumstances, the statute can also apply to
the relationship between a teacher or high school athletic coach
and a student. See, e.g., State v. McInerney, 428 N.J. Super.
432, 434, 441-44 (App. Div. 2012).
Furthermore, the profound harm that can be inflicted on a
child by one who holds a position of trust is what propels the
offense of endangering from a third- to a second-degree offense.
See N.J.S.A. 2C:24-4(a)(1); Galloway, supra, 133 N.J. at 661.
3 Galloway addressed a related part of the endangering statute,
N.J.S.A. 2C:24-4(a)(2). The case distinguished between those
who assume “a general and ongoing responsibility” for the
supervision and care of a child and others who assume “only
temporary, brief, or occasional caretaking functions.”
Galloway, supra, 133 N.J. at 661.
22
The State must prove the following elements beyond a
reasonable doubt to convict a person of second-degree
endangerment:
(1) the victim was a child;
(2) defendant knowingly engaged in sexual conduct, which
would impair or debauch the morals of a child; and
(3) defendant (a) had a legal duty for the care of the
child or (b) had assumed responsibility for the care of the
child.
See N.J.S.A. 2C:24-4(a)(1); see also Model Jury Charge
(Criminal), “Endangering the Welfare of a Child, Sexual Conduct
(Second Degree) (N.J.S.A. 2C:24-4(a)(1))” (Apr. 7, 2014).
Once again, the victim’s status as a child cannot support
territorial jurisdiction, and all of the alleged acts of sexual
conduct occurred entirely overseas. Our focus is therefore on
the third element. It encompasses two related categories:
individuals “having a legal duty” for the care of a child, and
others who have “assumed” that responsibility. The State must
only prove one of those facts; in this case, it asserts
jurisdiction based on the latter -- defendants’ assumption of
responsibility for the care of the students.
Both phrases, however, raise the same concerns that the
sexual assault statute did. “Having a legal duty” -- like
having “supervisory or disciplinary power” -- describes a
defendant’s status, but not his conduct. It is an attendant
23
circumstance that does not provide a basis for territorial
jurisdiction. See N.J.S.A. 2C:1-3(a)(1); N.J.S.A. 2C:1-14(d), -
14(h).
The second clause of the third element presents a closer
question because of how it is phrased: It is addressed to any
person “who has assumed responsibility for the care of a child.”
N.J.S.A. 2C:24-4(a)(1) (emphasis added). The phrase refers to a
status that a person has taken on, and status cannot support
territorial jurisdiction.
The language, however, can also be read to mean that a
person has acted affirmatively to take on a responsibility -- in
other words, that he has engaged in conduct. But the same is
true when a person gets married. He or she takes steps that
provide a certain legal status. Those steps, though, do not
amount to conduct that can provide a basis for territorial
jurisdiction. See Ishaque, supra, 312 N.J. Super. at 211;
Seiders, supra, 11 A.3d at 499. Likewise, teachers who assume
responsibility as chaperones take on a certain status that
carries important obligations, but that status cannot sustain
territorial jurisdiction under N.J.S.A. 2C:1-3(a)(1).
A broader reading of the statute -- that a person who takes
on the status of a chaperone has engaged in conduct -- raises a
number of concerns. Among them are the due process claims that
defendants have asserted. Nothing in the endangering statute
expressly suggests that defendants could be prosecuted in New
24
Jersey for conduct that took place in a foreign country. Cf.
N.J.S.A. 2C:1-3(a)(6). As a result, defendants argue they
lacked notice that they could be prosecuted in New Jersey for
crimes committed overseas.
The extraterritorial application of state criminal law is
subject to due process analysis. See, e.g., Lea Brilmayer &
Charles Norchi, Federal Extraterritoriality and Fifth Amendment
Due Process, 105 Harv. L. Rev. 1217, 1219-20 (1992). The
essential inquiry in any due process analysis is what
“fundamental fairness” requires. See Lassiter v. Dep’t of Soc.
Servs., 452 U.S. 18, 24-25, 101 S. Ct. 2153, 2158, 68 L. Ed. 2d
640, 648 (1981); see also Model Penal Code, supra, comment 1 on
§ 1.03, at 40 (“[A] state should have jurisdiction over those
whose conduct affects persons in the state or an interest of the
state, provided that it is not unjust under the circumstances to
subject the defendant to the laws of the state.”); United States
v. Davis, 905 F.2d 245, 248-49 (9th Cir. 1990), cert. denied,
498 U.S. 1047, 111 S. Ct. 753, 112 L. Ed. 2d 773 (1991) (“We
require Congress make clear its intent to give extraterritorial
effect to its statutes. . . . In order to apply
extraterritorially a federal criminal statute to a defendant
consistently with due process, there must be a sufficient nexus
between the defendant and the United States, so that such
application would not be arbitrary or fundamentally unfair.”
(internal citations omitted)).
25
Here, the State does not allege that defendants committed
any acts in New Jersey to prepare for crimes in Germany, formed
any culpable intent while in New Jersey, or took any steps in
New Jersey in furtherance of a scheme to commit sexual assault
or endangering while abroad. Cf. Sanders, supra, 230 N.J.
Super. at 237. Nor did the grand jury hear any such evidence.
Under the State’s reading of the statute, a defendant’s
assumption of responsibility could sweep in behavior that is
attenuated, if not completely divorced, from any criminal
conduct. The behavior could be both innocent and far removed in
time. Although the State, to its credit, has asked for a narrow
ruling tied to the facts of this case, it is difficult to
articulate a limiting principle that would cabin in the
expansive concept of territorial jurisdiction proposed, which
invites due process concerns.
To the extent that there is an unresolved ambiguity in the
language of the endangering statute, the rule of lenity also
cautions against reading the law against a defendant. See State
v. Regis, 208 N.J. 439, 451-52 (2011) (“The rule of lenity
derives from the principle that ‘[n]o one shall be punished for
a crime unless both that crime and its punishment are clearly
set forth in positive law.’” (quoting In re DeMarco, 83 N.J. 25,
36 (1980))).
For those reasons, the element of assumption of
responsibility, coupled with the allegations in this case, do
26
not support territorial jurisdiction over the endangering
charges in question.
V.
We recognize that the outcome here may be unsettling. It
is troubling to think that a teacher responsible for the care of
young adults can sexually assault them on a school trip abroad
and not be subject to prosecution in our State. That outcome,
though, is driven by existing statutory law, which requires that
“conduct” that is an element of the offense occur here. See
N.J.S.A. 2C:1-3.
The Legislature may consider amending the law. As noted
earlier, N.J.S.A. 2C:1-3(a)(6) provides that territorial
jurisdiction may also be found for an offense “based on a
statute of this State which expressly prohibits conduct outside
the State, when the conduct bears a reasonable relation to a
legitimate interest of this State and the actor knows or should
know that his conduct is likely to affect that interest.” See 2
Final Report, supra, comment on § 2C:1-3, at 8; Model Penal
Code, supra, comment 6 on § 1.03, at 54-56; see also 4 Wayne R.
LaFave, Criminal Procedure § 16.4(c), at 856-57 (noting limits
of territorial jurisdiction when conduct occurs outside state’s
borders). Nothing in the sexual assault or endangering statutes
expressly suggests that those laws were intended to apply to
conduct by a teacher/chaperone, outside of this State, directed
27
against a student in the person’s care, in a manner that
comports with due process.
For the reasons set forth above, we are required to reverse
the judgment of the Appellate Division. We dismiss Counts 1
through 9, and 12 through 16. We remand for further proceedings
on the remaining charges, Counts 10, 11, and 17 through 25.
CHIEF JUSTICE RABNER, JUSTICES LaVECCHIA, PATTERSON,
FERNANDEZ-VINA, and SOLOMON, and JUDGE CUFF (temporarily
assigned) join in this opinion. JUSTICE ALBIN did not
participate.
28
SUPREME COURT OF NEW JERSEY
NO. A-3/4 SEPTEMBER TERM 2013
ON APPEAL FROM Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MICHAELSUMULIKOSKI,
Defendant-Appellant.
______________________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ARTUR SOPEL,
Defendant-Appellant.
DECIDED March 18, 2015
Chief Justice Rabner PRESIDING
OPINION BY Per Curiam
CONCURRING/DISSENTING OPINION BY
DISSENTING OPINION BY
REVERSE/
CHECKLIST
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN ------------------------ ----------------------
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
6
1