873 P.2d 316 (Or. 1994), SC S40204, State v. Cervantes

Docket NºCC 90CR2935; CA A68493; SC S40204.
Citation873 P.2d 316, 319 Or. 121
Opinion JudgeUNIS, J.
Party NameSTATE of Oregon, Petitioner on Review, v. Antonio Mendoza CERVANTES, Respondent on Review.
AttorneyKaye E. Sunderland, Assistant Attorney General, Salem, argued the cause on behalf of petitioner on review. With her on the petition were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General, Salem. Peter Gartlan, Deputy Public Defender, Salem, argued the cause on be...
Case DateMay 26, 1994
CourtSupreme Court of Oregon

Page 316

873 P.2d 316 (Or. 1994)

319 Or. 121

STATE of Oregon, Petitioner on Review,

v.

Antonio Mendoza CERVANTES, Respondent on Review.

CC 90CR2935; CA A68493; SC S40204.

Supreme Court of Oregon.

May 26, 1994

Argued and Submitted November 3, 1993.

Resubmitted May 18, 1994.

Reconsideration Denied July 5, 1994.

Page 317

[319 Or. 122] Kaye E. Sunderland, Asst. Atty. Gen., Salem, argued the cause on behalf of petitioner on review. With her on the petition were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Peter Gartlan, Deputy Public Defender, Salem, argued the cause on behalf of respondent on review. With him on the response to the petition was Sally L. Avera, Public Defender, Salem.

Before CARSON, C.J., and GILLETTE, VAN HOOMISSEN, FADELEY, UNIS, and GRABER, JJ.

[319 Or. 123] UNIS, Justice.

Article I, section 11, of the Oregon Constitution guarantees a criminal defendant the right to a trial "in the county in which the offense shall have been committed." This venue requirement is a material allegation of the indictment that must be proven beyond a reasonable doubt. State v. Cooksey, 242 Or. 250, 251, 409 P.2d 335 (1965); State v. Jones, 240 Or. 129, 130, 400 P.2d 524 (1965). The issue in this criminal case is whether the state introduced sufficient evidence to establish venue beyond a reasonable doubt. We hold that it did.

After a jury trial, defendant was found guilty of rape in the second degree, ORS 163.365. Because defendant was convicted by a jury, we state the facts in the light most favorable to the state. State v. McDonnell, 313 Or. 478, 480, 837 P.2d 941 (1992). At the time of trial, defendant was 29 years old, and the victim was 12 years old. According to the victim, defendant was her "boyfriend." The victim lived with her parents in the City of Coos Bay. After an argument with her father, the victim ran away from home. She went to the home of another 12-year-old girl, who also lived in the City of Coos Bay, to spend the night. Defendant and his friend, Valdovinos, were also at the home of the victim's friend.

The next day, the victim, her friend, Valdovinos, and defendant went to the Pacific Empire Motel, where defendant had sexual intercourse with the victim. Later that night, City of Coos Bay police officers, in response to a runaway child report made by the victim's father, identified defendant's automobile in the parking lot of the motel. The officers then found and arrested defendant at the motel.

At trial, no witness testified that the Empire Pacific Motel is in the City of Coos Bay or that either the motel or the City of Coos Bay is in Coos County. At the end of the state's case-in-chief, defendant moved for a judgment of acquittal pursuant to ORS 136.445. 1 The trial court denied the motion, and defendant presented his case-in-chief.

[319 Or. 124] At the end of all the evidence, defendant again moved for a judgment of acquittal,

Page 318

specifically asserting that the state had failed to introduce sufficient evidence from which the jury could find that the crime had occurred in Coos County. The state then asked the trial court to take judicial notice 2 that the Pacific Empire Motel is in the City of Coos Bay and Coos County or, in the alternative, to allow the state to reopen its case to present evidence of venue. The court denied...

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112 practice notes
  • 21 P.3d 128 (Or.App. 2001), CA A106786, State v. Riddell
    • United States
    • Oregon Court of Appeals of Oregon
    • February 28, 2001
    ...ORS 164.245. 1 We reverse and remand for a new trial. We state the facts in the light most favorable to the state. State v. Cervantes, 319 Or. 121, 125, 873 P.2d 316 (1994). On March 2, 1999, defendant was "freeze modeling" on top of a newspaper box on Pioneer Courthouse Square (t......
  • 220 P.3d 748 (Or.App. 2009), A136163, State v. Backstrand
    • United States
    • Oregon Court of Appeals of Oregon
    • November 4, 2009
    ...for further proceedings. Because defendant was convicted, we view the facts in the light most favorable to the state. State v. Cervantes, 319 Or. 121, 125, 873 P.2d 316 (1994). Deputy Gerba of the Washington County Sheriff's Department was in his patrol car, observing an adult bookstore tha......
  • 283 P.3d 414 (Or.App. 2012), A143812, State v. McDaniel
    • United States
    • Oregon Court of Appeals of Oregon
    • July 25, 2012
    ...whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Cervantes, 319 Or. 121, 125, 873 P.2d 316 (1994). Because of the allocation to the state of the burden of proof on defendant's entrapment defense, that inquiry includes ......
  • 12 P.3d 560 (Or.App. 2000), CA A101648, State v. Beason
    • United States
    • Oregon Court of Appeals of Oregon
    • October 11, 2000
    ...the facts and all reasonable inferences that properly may be drawn from them in the light most favorable to the state. State v. Cervantes, 319 Or. 121, 125, 873 P.2d 316 (1994). Paramedics responding to a 9-1-1 call at defendant's residence found an unconscious infant who was not breathing.......
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112 cases
  • 21 P.3d 128 (Or.App. 2001), CA A106786, State v. Riddell
    • United States
    • Oregon Court of Appeals of Oregon
    • February 28, 2001
    ...ORS 164.245. 1 We reverse and remand for a new trial. We state the facts in the light most favorable to the state. State v. Cervantes, 319 Or. 121, 125, 873 P.2d 316 (1994). On March 2, 1999, defendant was "freeze modeling" on top of a newspaper box on Pioneer Courthouse Square (t......
  • 220 P.3d 748 (Or.App. 2009), A136163, State v. Backstrand
    • United States
    • Oregon Court of Appeals of Oregon
    • November 4, 2009
    ...for further proceedings. Because defendant was convicted, we view the facts in the light most favorable to the state. State v. Cervantes, 319 Or. 121, 125, 873 P.2d 316 (1994). Deputy Gerba of the Washington County Sheriff's Department was in his patrol car, observing an adult bookstore tha......
  • 283 P.3d 414 (Or.App. 2012), A143812, State v. McDaniel
    • United States
    • Oregon Court of Appeals of Oregon
    • July 25, 2012
    ...whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Cervantes, 319 Or. 121, 125, 873 P.2d 316 (1994). Because of the allocation to the state of the burden of proof on defendant's entrapment defense, that inquiry includes ......
  • 12 P.3d 560 (Or.App. 2000), CA A101648, State v. Beason
    • United States
    • Oregon Court of Appeals of Oregon
    • October 11, 2000
    ...the facts and all reasonable inferences that properly may be drawn from them in the light most favorable to the state. State v. Cervantes, 319 Or. 121, 125, 873 P.2d 316 (1994). Paramedics responding to a 9-1-1 call at defendant's residence found an unconscious infant who was not breathing.......
  • Request a trial to view additional results