State Of Or. v. Turner

• Citation: 235 Or.App. 462,234 P.3d 993
• Decision Date: 09 June 2010
• Docket Number: C080252CR,A140117.
• Parties: STATE of Oregon, Plaintiff-Respondent,v.George John TURNER, Defendant-Appellant.
• Court: Court of Appeals of Oregon

235 Or.App. 462

234 P.3d 993

STATE of Oregon, Plaintiff-Respondent,v.George John TURNER, Defendant-Appellant.

C080252CR; A140117.

Court of Appeals of Oregon.

Submitted April 29, 2010.

Decided June 9, 2010.

Peter Gartlan, Chief Defender, and Susan F. Drake, Senior Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Anna M. Joyce, Assistant Attorney General, filed the brief for respondent.

Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and EDMONDS, Senior Judge.

HASELTON, P.J.

Defendant appeals a judgment of conviction for one count of failure to report as a sex offender, ORS 181.599 (2005).¹ On appeal, defendant assigns error to the trial court's denial of his motion for judgment of acquittal on the ground that the state failed to prove venue. For the reasons that we will explain, we reverse.

Defendant, a registered sex offender, was tried on stipulated facts as stated by the prosecutor at trial:

“[T]he defendant last reported his residence to be at the Washington County Community Correction Center here in Hillsboro, Washington County, Oregon on April 30th, 2007. He was released from that facility on October 30th, 2007. On that particular date he had a conversation with an employee at that center whereby the employee told him that he needed to register upon his release of his new address.

“In addition in that particular conversation there was mention that he might be living with his brother of Multnomah County, however there was no mention of where this particular residence was and there was no knowledge of where his address was going to be. No one knew where he was going to be living and knew subsequently where he was residing.

“A police officer did an investigation on November 16th, 2007. The defendant had no[t] registered his new address;

this was after the ten day grace period the State gives a person to register. And as of December 14th, 2007 the day this was indicted-actually this was indicted in January of '08, the defendant still had not registered and had not updated his new address.”

Of significance, the stipulated facts did not include any information concerning where the offense was committed, where defendant resided, or where defendant was arrested.

Defendant moved for a judgment of acquittal on the ground that the state failed to prove venue. The trial court denied the motion. Defendant appealed.

On appeal, defendant contends that, because venue “is a material allegation that must be proven beyond a reasonable doubt,” the trial court erred in denying his motion for judgment of acquittal where the stipulated facts “were insufficient to prove that venue for defendant's failure to register existed in Washington County.” The state acknowledges that “[t]he stipulated facts include no information about where defendant was arrested or where he committed the offense of having failed to register as a sex offender.” Nonetheless, the state contends that

“Oregon appellate courts have generally treated venue as a material allegation of the indictment that must be proven beyond a reasonable doubt. However, it would be proper to correct the long-standing confusion regarding the role of venue in criminal trials, both to bring the analysis in line with the framers' intent and to prevent miscarriages of justice. Oregon courts should cease to treat venue as an element, except in instances where a crime may have occurred outside of this state.”

(Internal quotation marks and citations omitted.)

“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. Cervantes, 319 Or. 121, 125, 873 P.2d 316 (1994). As the Supreme Court stated in Cervantes, “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.” Id. at 123, 873 P.2d 316.

Here, we agree with defendant and the state that the stipulated facts contained no direct information concerning venue and no information from which venue could be inferred.² Cf. State v. Macnab, 222 Or.App. 332, 194 P.3d 164 (2008) (discussing the use of circumstantial evidence from which venue may be inferred). We also decline the state's invitation to cease treating venue as a material allegation that must be proved beyond a reasonable doubt. That is so because we remain bound by Supreme Court precedent until such time as that court reconsiders and disavows it. Accordingly, the trial court erred in denying defendant's motion for judgment of acquittal.

Reversed.

EDMONDS, S.J., concurring.

I agree with the majority's disposition of this case in light of the state's concession. In its brief, the state concedes, “The stipulated facts include no information about where defendant was arrested or where he committed the offense of having failed to register as a sex offender.” The state proceeds to make only one argument on appeal-that defendant waived his right to object to venue. In light of the state's position, the majority correctly holds that Article I, section 11, of the Oregon Constitution disposes of the state's argument. I write separately to express the following personal observations.

Article I, section 11, provides, in part, that, “[i]n all criminal prosecutions, the accused shall have the right to public trial by an impartial jury in the county in which the offense shall have been committed[.]” Pursuant to Article I, section 11, the Supreme Court, in State v. Cervantes, 319 Or. 121, 123, 873 P.2d 316 (1994), held that venue is a material allegation that must be proved beyond a reasonable doubt in order to convict a person of a criminal offense in the State of Oregon. Nonetheless, the state argues that venue under Article I, section 11, should not be viewed as a necessary allegation for the state to prove a crime charged under ORS 181.599 (2005), but only a right that can be waived. In this case, the state submits that defendant waived his right in light of the fact that defendant made no motion for a change of venue. However, I understand the concept of waiver to connote a voluntary relinquishment of a known right. In my view, the mere failure of a defendant to move for a change of venue could not constitute a voluntary relinquishment of his right under Article I, section 11, to require the state to prove venue in light of the Supreme Court's holding in Cervantes. In other words, defendant could properly assume that such a motion was not necessary in light of the established burden under the law of the state to prove venue as a material allegation. I would therefore conclude on the facts in this case that, even if the right under Article I, section 11, to object to venue is subject to the doctrine of waiver, there is insufficient evidence in this case that defendant, in fact, waived that right.

Further, the gravamen of the crime alleged under ORS 181.599 (2005) is defendant's failure to report within a prescribed time period to the Department of State Police, a chief of police or a county sheriff, or to the supervising agency. ORS 181.595(3) (2005). The venue issue arises in this case because ORS 181.595(3) (2005) is silent regarding a requirement as to where a defendant must report in order to comply with the requirements of the statute. In this case, defendant was released from the Washington County Community Correction Center on October 30, 2007. Under the governing statute, he was required to report within 10 days of his release. Defendant could have complied with that requirement by reporting with any one of the statutorily enumerated agencies at any location in the state. He was indicted in Washington County on January 18, 2008, for failing to report. The indictment alleges that “on or between November 10, 2007 to December 14, 2007, in Washington County, Oregon,” defendant “fail[ed] to report, as required, to [an] appropriate agency or official.” The indictment appears to allege that defendant was in violation of his statutory duty to report during that period of time while in Washington County. Ordinarily, venue is demonstrated by proof regarding where a crime is committed. But the governing statute in this case does not by its terms require defendant to report in Washington County despite the allegation in the indictment. Indeed, defendant could have complied with ORS 181.599 (2005) by reporting in any county. So the question...