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IN THE COURT OF APPEALS OF IOWA No. 9-323 / 08-0859 Filed June 17, 2009

STATE OF IOWA, Plaintiff-Appellee, vs. VICTOR SERRATO, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Muscatine County, Mark J. Smith, Judge.

Victor Serrato appeals following his convictions and sentences for firstdegree murder and nonconsensual termination of a human pregnancy. REVERSED AND REMANDED FOR DISMISSAL.

Mark C. Smith, State Appellate Defender, and Theresa R. Wilson, Assistant Appellate Defender, for appellant. Thomas J. Miller, Attorney General, Sheryl A. Soich and Laura M. Roan, Assistant Attorneys General, Gary R. Allison, County Attorney, and Alan R. Ostergren, Assistant County Attorney, for appellee.

Heard by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.

2 DOYLE, J. Victor Serrato appeals his convictions of first-degree murder in violation of Iowa Code sections 707.1 and 707.2(1) (2005), and nonconsensual termination of a human pregnancy in violation of section 707.8(4). Among other things,

Serrato contends the State did not establish the requisite territorial jurisdiction to prosecute him in Iowa. Because we agree the State did not establish the

requisite territorial jurisdiction to prosecute him in Iowa as a matter of law, we reverse and remand for dismissal.1 I. Background Facts and Proceedings. On January 17, 2007, Victor Serrato was charged by an amended trial information with murder in the first degree and nonconsensual termination of a human pregnancy for the death of Miriam Carmona and her unborn child. Viewed in the light most favorable to the State, the jury could have found the following facts: On the evening of Saturday, October 21, 2006, Carmona was at the Escorpion Bar in Muscatine, Iowa. pregnant at that time. Serrato earlier that year. Just after midnight on the 22nd, Serratos girlfriend Angelica Chavez, who was pregnant with his child, arrived at the bar with her friend Esmerelda Perales. Carmona told Chavez that Serrato had fathered both womens children. Carmona and Chavez began arguing, and the fight got physical. Carmona Carmona was approximately six-months

She had been involved in a sexual relationship with

1

Because our determination of this issue is dispositive, we need not and do not address Serratos additional claims.

3 slapped Chavez and pulled Chavezs hair and tried to kick Chavez. The fight was broken up, and Chavez and Perales left the bar. Chavez was upset by the fight and Carmonas a ssertions. Both Chavez and Perales tried calling Serrato from their cell phones, but he did not answer, and their calls were forwarded to his voicemail. At that time, Serrato was at a dance in West Liberty. Chavezs phone died. Perales then received a call from Serrato and she told him about Carmonas actions. After talking to Perales,

Serrato drove to Muscatine and met Chavez and Perales at Chavezs house. Serrato was upset but not angry when he arrived at around 1:00 a.m. Chavez told Serrato that if he was the father of Carmonas baby, he had better take care of it. Serrato denied the baby was his, but told Chavez he would take care of Carmonas baby if it was his. Approximately ten minutes after arriving at

Chavezs house, Serrato went to the Escorpion Bar, located a few blocks from the house, to find Carmona. Between 1:30 and 1:45 a.m., Carmonas friend Marciela Garcia drove by the Escorpion Bar with her friend Dago and three other passengers. Garcia and another passenger observed Carmona and Serrato arguing in the Escorpion Bar parking lot, standing on opposite sides of a black pickup truck. Garcia pulled into the parking lot, got out of her car, and asked Carmona what was going on. Garcia could tell Carmona had been crying. Carmona told her that Serrato

denied he was the father of her child. Serrato asked Carmona if she was sure he was the father, and Carmona began hitting Serrato. She smacked Serrato on the side of his face with her cell phone. She kicked him on the leg. Serrato grabbed Carmonas hands, and pushed Carmona away. Garcias friend Dago got out of

4 Garcias car and broke up the fight, knocking Serrato to the ground. Dago told Serrato, "Youre never to hit a woman when--especially when shes pregnant." Because Garcia did not want the police summoned, she told Carmona she would be right back and dropped Dago off down the street. She and her other

passengers returned to the Escorpion Bar two or three minutes later, but Carmona was not there. Serrato and the black truck were also gone. Garcia did not see Carmona again. Both Perales and Chavez said Serrato was gone from the house for about twenty to thirty minutes after leaving for the bar. Perales left shortly after Serrato returned to the house. According to Chavez, Serrato spent the rest of the night at her house and that they slept in until about 1:00 p.m. the next afternoon. At approximately 6:30 p.m. on October 22, 2006, Carmonas body was discovered by passersby in a ditch approximately forty-seven feet from the side of a road in Rock Island County, Illinois, not far from the Iowa-Illinois bridge.2 A plastic bag was found next to her head, and her hair was entrapped in a portion of the bag. An autopsy was performed in Rockford, Illinois, by pathologist Dr. Mark Peters. He opined that the cause of Carmonas death was asphyxia due to manual strangulation and that the fetus died as a result of its mothers death. He further opined that Carmonas death was a homicide and that based upon lividity, Carmona would have been dead before 3:00 to 6:00 p.m. He testified that her death theoretically could have occurred as early as 2:00 a.m. or as late as 6:00 a.m.
2

Rock Island County, Illinois, is directly across the Mississippi River from Muscatine.

5 A homicide investigation was initiated, and Serrato was interviewed several times during the course of the investigation. The plastic bag found

entrapped in Carmonas hair was swabbed and sent for testing. No fingerprints were found on the bag; however, dried blood flakes were found inside the plastic bag. The flaked blood contained a mixture of DNA from two different sources, at least one of which was blood. The DNA matched the known DNA profiles of both Serrato and Carmona. It was also determined that Serrato was not the father of Carmonas baby. The State charged Serrato by an amended trial information with murder in the first degree in violation of Iowa Code sections 707.1 and 707.2(1), and nonconsensual termination of a human pregnancy in violation of section 707.8(4). Serrato moved to dismiss arguing the State failed to establish territorial jurisdiction. The motion was denied. A jury trial followed. After the State rested its case, Serrato moved for a verdict of acquittal. Among other things, Serrato argued the State failed to produce sufficient evidence to prove that any part of the offenses took place in Iowa. The State resisted, arguing there was evidence from which the jury could conclude that Serratos murderous intent, premeditation, and malice aforethought were formed in Iowa by reason of his conversation with Chavez and the circumstances of his fight with Carmona outside the Escorpion Bar. The State also argued there was physical evidence suggesting the death occurred in Iowa. The district court

denied Serratos motion, finding there was sufficient evidence to indicate the malice aforethought and/or premeditation by Serrato was formed at the time of his altercation with Carmona in the parking lot of the Escorpion Bar.

6 The jury found Serrato guilty as charged. Thereafter, Serrato filed a

motion in arrest of judgment and a motion for a new trial, asserting the evidence was insufficient to convict him of the charges and that the evidence was insufficient to establish the crimes took place in Iowa. The court denied the motions. Serrato was sentenced to life imprisonment for the first-degree murder conviction and an indeterminate term of imprisonment not to exceed twenty-five years for the nonconsensual termination of a human pregnancy conviction. Serrato appeals. II. Discussion. On appeal, Serrato contends the State did not establish the requisite territorial jurisdiction to prosecute him in Iowa. He first argues that the element of intent is not "conduct" within the meaning of our territorial jurisdiction statute, Iowa Code section 803.1, and thus intent alone is not sufficient to subject him to Iowas jurisdiction. Additionally, he argues the State did not present sufficient evidence to prove he formed any criminal intent while in Iowa. We review

jurisdictional claims for errors of law. Iowa R. App. P. 6.4; State v. Wedebrand, 602 N.W.2d 186, 188 (Iowa Ct. App. 1999). A. Use of Element of Intent to Invoke Territorial Jurisdiction. "Generally, jurisdiction necessary to prosecute a public offense rests in the courts of the state where the offense was committed." Wedebrand, 602 N.W.2d at 189 (citing State v. Liggins, 524 N.W.2d 181, 184 (Iowa 1994)). Iowas

criminal jurisdiction statute, patterned in part upon the Model Penal Code, is codified in Iowa Code section 803.1. State v. Wagner, 596 N.W.2d 83, 86 (Iowa 1999). Section 803.1 provides, in relevant part:

7 1. A person is subject to prosecution in this state for an offense which the person commits within or outside of this state, by the persons own conduct or that of another for which the person is accountable, if: (a) The offense is committed either wholly or partly within this state. .... 2. An offense may be committed partly within this state if conduct which is an element of the offense or a result of which constitutes an element of the offense occurs within this state. . . . Iowa Code

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