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My husband was accused of sexual assault on his daughter. The…

My husband was accused of...
My husband was accused of sexual assault on his daughter. The charges were just filed this week, but the alleged incident happened in 2008. Also, the alleged event occured in La Plata county, CO, but this was investigated in Archuleta county, CO. Is this legal?
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Answered in 6 minutes by:
6/15/2012
TexLaw
TexLaw, Attorney
Category: Criminal Law
Satisfied Customers: 4,430
Experience: Lead trial/International commercial attorney licensed 11 yrs
Verified

Zachary D. Norris :

Hi,

Zachary D. Norris :

I'd be happy to assist you today.

Zachary D. Norris :

Please stand by while I look at the Colorado statutes.

Zachary D. Norris :

In Colorado, sexual assault has a 10 year statute of limitations.

Zachary D. Norris :

Further, the fact that the assault occurred in one county but is being investigated and charged in another county does not matter. The State of Colorado may bring the charges wherever it finds jurisdiction over the accused.

Zachary D. Norris :

So, in short, yes, the state's actions are legal.

Zachary D. Norris :

Does this answer your questions?

Customer:

I suppose, but I don't understand how a crime committed in one county can be in the jurisdiction of another county?

Zachary D. Norris :

The State is the party that can prosecute the crime, and they can do it wherever there is personal jurisdiction over the accused. Jurisdiction only has to do with whether or not a court has the power to bring a person to court

Customer:

Doesn't the investigation at least have to be done where the crime was commited?

Customer:

Before they can even say, "Yes a crime was committed," and hand it over to the DA?

Zachary D. Norris :

So, because the accused is now in Archuleta county, the state is choosing to bring the charges there. The fact that the investigation is taking place in Archuleta county instead of La Plata has to do with the fact that the accused is present in that county. They are investigating him, but will also have to investigate the scene of the alleged crime as well. But the fact that this occurred in a different county has more to do with cooperation between different sheriff/police departments.

Zachary D. Norris :

There is nothing illegal in the fact that the investigation is being done by a different county than where the alleged crime took place.

Zachary D. Norris :

However, it may result in a weakness in the case, if any is actually brought by the DA

Customer:

Actually the accused lives in New Mexico, not Archuleta co. The vicXXXXX XXXXXves in Archuleta county.

Zachary D. Norris :

I see. So at this point, any prosecution will result in an extradition request between NM and CO

Customer:

Archuleta co has already issued a warrant for his arrest

Zachary D. Norris :

So, if the accused comes into CO, he can be arrested, but he will not be arrested in NM until an extradition request has been completed.

Customer:

so what you are saying is any police department can investigate any crime in any county within that state?

Zachary D. Norris :

Yes.

Zachary D. Norris :

It is the perogative of the department

Customer:

Whats the point of jurisdiction? Maybe a legal definition of jurisdiction would b helpful. It was a police officer friend who pointed it out. He didnt think they could do that.

Zachary D. Norris :

Sure, jurisdiction is a very complicated legal concept. It is often misunderstood by law enforcement.

Zachary D. Norris :

There are two types of jurisdiction, personal jurisdiction and subject matter jurisdiction.

Zachary D. Norris :

Personal jurisdiction is the power of a particular court to force a person to come into the court to answer a charge

Zachary D. Norris :

Subject matter jurisdiction is a determination (set by statute) that a particular court may hear a particular kind of case.

Zachary D. Norris :

So, for example, for a court in Archuleta county to get jurisdiction over your husband in New Mexico, it must find that a crime was committed in Colorado and then have an extradition agreement from NM to arrest your husband and bring him to Colorado.

Zachary D. Norris :

When he is brought to Colorado, the court then has personal jurisdiction over him.

Zachary D. Norris :

It finds that a crime was committed generally though either a grand jury or by motion of the DA

Zachary D. Norris :

Finding that a crime is committed is not the same as finding an accused guilty of a crime.

Zachary D. Norris :

It only will empower the DA to bring the case and, in this case, allow the State of CO to request extradition from NM.

Customer:

I looked it up in the dictionary just to be clear. The definition of the word I was specifically asking about is "the extent or range the law enforcement has." For instance, Colorado is not going to investigate a crime that happened in New Mexico.

Customer:

THey would say, "that's out of our jurisdiction." Meaning out of the reach of that particular law enforcement agency.

Zachary D. Norris :

Personal jurisdiction becomes an issue in courts when we talk about one state prosecuting a crime which occurred in another state. For counties within the same state, it is not an issue. When referring to law enforcement, you are absolutely correct. If the crime happened in New Mexico, then law enforcement in Colorado does not have jurisdiction over the crime, New Mexico does. And yes, they would say "that's out of our jurisdiction.

Zachary D. Norris :

Now, there can be cross-jurisdictional cooperation between law enforcement agencies. But, I don't think this is what is going on in this case.

Zachary D. Norris :

Is there anything further you want to ask about this issue?

Zachary D. Norris :

My understanding of your situation is that an arrest warrant has been issued, but that a criminal charge has not yet been accepted by the DA?

Customer:

I wasnt talking about the court being able to prosecute. I understand that crossing county lines. I mean the investigation. Let say I live in Archuleta county, and someone breaks into my house so I call La Plata sherriffs office (lets say for arguments sake they are closer). But when I call dispatch, they are going to tell me I need to call Archulta co because my house falls out of their jurisdiction, correct? I don't mean to harp on it, I just want to be clear we are talking about the same thing.

Zachary D. Norris :

right. I get what you are saying

Zachary D. Norris :

And you are correct in your example.

Zachary D. Norris :

But your example isn't exactly like the facts of your case.

Customer:

Oh yes, they are charging him with a 3 degree felony.

Zachary D. Norris :

In this point, there is an allegation that a crime was committed in the past. The victim is located in one county, and thus the investigation occurs in that county. It's not like a crime against property.

Customer:

So the crime took place in La Plata co, but was reported and investigated in Archuleta co.....how is that different?

Customer:

OK lets change my house being broken into, to me being beaten up, in my above example.

Zachary D. Norris :

The county where the victim is has an interest in investigating and prosecuting the crime. And back to your example, the fact that the La Plata sheriff's office would say "that is out of our jurisdiction' is really one of discretionary use of funds. There is no law that would prevent the La Plata sheriff from investigating a crime in Archuleta county.

Zachary D. Norris :

The "jurisdiction" of the particular law enforcement agency is not something you can generally use to stop an investigation.

Zachary D. Norris :

It is a political designation...meaning that the La Plata county sheriff is responsible for La Plata county.

Zachary D. Norris :

But that does not mean he couldn't investigate a crime in a different county.

Zachary D. Norris :

If there was a tie to his county

Zachary D. Norris :

In this case Archuleta county is investigating because the tie to the county is the presence of the alleged victim.

Customer:

ok one more thing. Youve earned your money :)

Zachary D. Norris :

No worries. I'm here to help

Customer:

I know of a case where a man beat up another man in FL near a naval base. The defendant was taken into custody by FL police, but then the naval police came and picked him up that night. THey said they had jurisdiction over that individual and it DID stop any further investigation by the FL police.

Zachary D. Norris :

This is a matter of military law enforcement vs state law enforcement. A military law enforcement investigation will halt a state law enforcement investigation because the military law enforcement has superior jurisdiction over the matter. In essence, federal trumps the state.

Zachary D. Norris :

That is due to the US Constitution providing the superior jurisdiction to a federal law enforcement agency through the laws coming out of the Supremacy Clause.

Zachary D. Norris :

And also relates to the US Supreme Court's ruling in the International Shoes case

Zachary D. Norris :

Basically, its just like on the movies...when the FBI arrives on the scene, they get to order the local law enforcement around.

Customer:

ok. I figured. just wondering. You are an attorney correct?

Zachary D. Norris :

I'm an attorney licensed in the state of Texas and by the US federal district courts. :-)

Customer:

Ah, good for you;) Can i ask more about my case?

Zachary D. Norris :

go for it

Customer:

OK, where to start. THis all started with an emergency hearing to restrict parenting time by the ex wife back in May '11.

Zachary D. Norris :

oik

Zachary D. Norris :

ok

Zachary D. Norris :

It seems we are having some technical difficulties. I'm going to switch us over to Q&A. It's a bit slower, but it works just as well. Send me your follow up question about the family law case.

Customer:

We had been having both girls (McKenzie now 13 and Molly now 8)every other weekend for 4 years pretty consistantly. In early 2011, Mckenzie started not wanting to come to our house as much. Her mother and I would text and could speak to each other with some diplomacy, which my husband and her could not. They hate each other. Like I SAID MCK was getting older and was wanting to spend more time with her friends and less time with us in a different town. You know what, this is VERY involved and I'm sleepy. I'll cut to the chase

Customer:

The first allegation was just inappropriate touching where she said my husband said something about her growing boobs, touched her on the boobs and slapped her on the butt as she walked past (all in the presence of another friend of ours). this was investigated by Child Protective Services and a forensic interview was done on both girls. By the way I was also there when the alleged event occured as well as the other mans wife. The victim stated that we had left which was untrue. Anyway, the CPS investigation was inconclusive and they said nothing more should be done.

Customer:

are you still there?

TexLaw
TexLaw, Attorney
Category: Criminal Law
Satisfied Customers: 4,430
Experience: Lead trial/International commercial attorney licensed 11 yrs
Verified
TexLaw and 87 other Criminal Law Specialists are ready to help you
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Hi,

I've read what you said, but I'm not sure what your question is.

If you are still there let me know. If you are happy with my work on the previous issue, please press accept. I'll continue to be available to you to discuss this follow up question if you want to take it up tomorrow or on a later date.

Best Regards,
Zachary D. Norris
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Category: Criminal Law
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