State v. Cervantes

• Decision Date: 05 July 1994
• Citation: 319 Or. 121,873 P.2d 316
• Parties: STATE of Oregon, Petitioner on Review, v. Antonio Mendoza CERVANTES, Respondent on Review. CC 90CR2935; CA A68493; SC S40204.
• Court: Oregon Supreme Court

Page 316

873 P.2d 316

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.

Argued and Submitted November 3, 1993.

Resubmitted May 18, 1994.

Decided May 26, 1994.

Reconsideration Denied July 5, 1994.

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.

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.

At the end of all the evidence, defendant again moved for a judgment of acquittal 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 defendant's motion, stating:

"I feel there is sufficient evidence for this Court to--for the jury to make a determination. In addition as to the venue, it's the Coos Bay Police Department. And the schools have been referred to, attended by the student--by the victim in this case. I think there's sufficient evidence for the jury to find that venue."

The trial court did not take judicial notice and did not allow the state to reopen its case. ³

On appeal, defendant assigned as error the failure of the trial court to grant his motion for a judgment of acquittal. The state responded that sufficient evidence was presented at trial from which the jury could find venue. The Court of Appeals held that insufficient evidence had been presented by the state for the jury to find venue and, therefore, reversed defendant's conviction. State v. Cervantes, 118 Or.App. 429, 848 P.2d 118 (1993). We allowed the state's petition for review and now reverse the decision of the Court of Appeals.

In determining whether there is sufficient evidence to support a conviction in a criminal case, we must determine whether, viewing the evidence in the light most favorable to the state, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v King, 307 Or. 332, 339, 768 P.2d 391 (1989). That standard of review applies to the material allegation of venue. In making that determination, this court resolves any conflicts in the evidence in favor of the state and gives the state the benefit of all reasonable inferences that properly may be drawn. State v. Krummacher, 269 Or. 125, 137-38, 523 P.2d 1009 (1974). Our decision is not whether we believe that defendant is guilty beyond a reasonable doubt, but whether the evidence is sufficient for a jury to have so found. State v. King, supra, 307 Or. at 339, 768 P.2d 391.

There was no direct evidence in this case that the crime occurred in Coos County. Venue need not be proved by direct evidence, however. Rather, venue may be established by circumstantial evidence. State v. Miranda, 309 Or. 121, 130, 786 P.2d 155, cert. den. 498 U.S. 879, 111 S.Ct. 212, 112 L.Ed.2d 171 (1990).

Viewing the evidence in a light most favorable to the state and giving the state the benefit of all reasonable inferences that properly may be drawn, we conclude that there was sufficient evidence for the jury to find that the crime occurred in the City of Coos Bay. There was testimony that the crime was investigated by the Coos Bay police and that they made the arrest at the Pacific Empire Motel. There was also testimony that when the police returned to the motel after transporting defendant from there to jail, they "came back to Coos Bay." From that testimony, we believe that a rational jury reasonably could infer beyond a reasonable doubt that the crime occurred in the City of Coos Bay. We must determine, therefore, if there is sufficient evidence in the record from which the jury reasonably could infer that the City of Coos Bay is located in Coos County. We conclude that there is.

During the state's rebuttal, the following testimony of Mary Lou Lakey was presented:

"[Prosecutor:] Ms. Lakey, what do you do?

"[Witness:] I'm the coordinator for the Crime Victims' Assistance office in Coos County.

"[Prosecutor:] What does that person, basically, do?

"[Witness:] Our job is to be a liaison between the law enforcement and District Attorney's office and the victims. Explain what the law enforcement's doing, explain what the District Attorney is doing and then to help the victim go through the Court process.

"[Prosecutor:] Were you present prior to the Grand Jury proceedings on December 7, 1990, and did you speak to the victim * * *?

"[Witness:] At Grand Jury?

"[Prosecutor:] Prior to Grand Jury that day?

"[Witness:] Yes, I did." (Emphasis added.)

From the foregoing testimony, we believe that the jury could reasonably infer that Ms. Lakey met with the victim while acting in her official capacity as the coordinator for the Coos County Crime Victims' Assistance office. As noted above, there was testimony that the victim was a resident of the City of Coos Bay. There was also testimony that the law enforcement agency that investigated the crime at the motel and that made the arrest at the motel was the Coos Bay Police Department. We believe that the jury reasonably could infer that the City of Coos Bay is in Coos County based on the fact that the coordinator for the Coos County Victims' Assistance office, who acts as a liaison between the police, the prosecutor, and the victim, had contact with the victim while acting in her official capacity, where both the victim and the law enforcement agency were located in the City of Coos Bay.

Viewing the evidence and all reasonable inferences in a light most favorable to the state, we conclude that a rational trier of fact could have found beyond a reasonable doubt that the offense in this case was committed in Coos County. Accordingly, ...