State v. Tirado
| Decision Date | 17 February 1993 |
| Parties | STATE of Oregon, Respondent, v. Angel Monserrate TIRADO, Appellant. 90-4279-C; CA A69172. |
| Court | Oregon Court of Appeals |
Mary M. Reese, Deputy Public Defender, Salem, argued the cause for appellant. With her on the brief was Sally L. Avera, Public Defender, Salem.
Ann F. Kelley, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were Charles S. Crookham, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.
Before RICHARDSON, C.J., and DEITS and DURHAM, JJ.
Defendant appeals his conviction for driving under the influence of intoxicants. ORS 813.010. The issue is whether the state proved venue in Jackson County. We reverse.
At the close of the state's case, defendant moved for a judgment of acquittal, contending that the state had failed to establish venue. The court denied the motion. Venue must be established beyond a reasonable doubt. Or.Const., Art. I, § 11; State v. O'Neall, 115 Or.App. 62, 66, 836 P.2d 758, rev. den. 314 Or. 574, 840 P.2d 1296 (1992). The state may prove venue through either direct or 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). The trial court may take judicial notice of venue facts, but it must inform the jury if it does. State v. Jones, 240 Or. 129, 132, 400 P.2d 524 (1965). The court did not take judicial notice in this case.
We review the evidence in the light most favorable to the state to determine whether any rational trier of fact could have found venue in Jackson County beyond a reasonable doubt. See State v. Stacy, 113 Or.App. 141, 143, 830 P.2d 624, rev. den. 314 Or. 176, 836 P.2d 1345 (1992). The evidence showed that a federal law enforcement officer stopped defendant on Avenue "G," one-half mile from the White City Veteran's Administration Domiciliary. He was arrested by an Oregon state officer assigned to patrol Highway 62. No evidence placed those locations in Jackson County.
The state argues that the court could have taken judicial notice that White City is in Jackson County. That is irrelevant; it did not do that. The state also asserts that it proved venue through circumstantial evidence. It did not.
In State v. Cooksey, 242 Or. 250, 409 P.2d 335 (1965), a state police officer testified that he was north of Roseburg in Douglas County when he was sent to the police station in Winston. From there, he drove 15 minutes to reach the crime scene, which was about 3/4 of a mile past the Porter Creek Store on Highway 42 and then another 25 minutes from there to Roseburg. The court held that the state had not proved venue, because it had not shown how far Winston was from the border of Douglas County. The jurors could not determine from the evidence if the crime had occurred in Douglas County.
The same rule applies here. The state did not prove that Avenue "G," the Veteran's Administration Domiciliary and Highway 62 are in Jackson County or that defendant drove in Jackson County. The state argues that there is only one such domiciliary in Oregon, that it is in White City, that White City is near Medford and that it is common knowledge that Medford is in Jackson County. None of those facts was proved through evidence at trial. 1 Because of the state's failure to prove venue, the court erred in...
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State v. Cervantes
...The state may not establish venue on the basis of "common knowledge" that a city is located in a particular county. State v. Tirado, 118 Or.App. 294, 846 P.2d 1201 (1993). Defendant was accused and convicted of committing a serious crime. The state had a commensurately serious obligation to......
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State v. Mills
...area is a mess, a judicially created mess. By a “mess,” I mean that—beginning with Cervantes and then continuing through our decisions in Tirado, Means, Davis, and up to today—it is impossible to identify a coherent principle that reconciles the outcomes of those cases. 1 And that has not b......
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State v. Davis
...urges that this case is controlled by our decisions in State v. Means, 213 Or.App. 268, 160 P.3d 1001 (2007), and State v. Tirado, 118 Or.App. 294, 846 P.2d 1201 (1993), where we held that the evidence was insufficient to allow a jury to infer that venue had been proved. The state replies t......