Argued and Submitted: January 08, 2014.
Wheeler County Circuit Court. 110002CR. John A. Wolf, Judge.
Brandon Callheim argued the cause for appellant. On the opening brief was Christopher A. McCormack.
Greg Rios, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General.
Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.
[261 Or.App. 530] HADLOCK, J.
Defendant was charged in Wheeler County Circuit Court with 28 counts of various sex offenses. At trial, defendant moved for judgment of acquittal on all counts, arguing that the state had failed to prove that the offenses occurred in Wheeler County. The trial court denied the motion, and a jury subsequently convicted defendant on all counts. Defendant appeals, assigning error to the denial of his motion for judgment of acquittal. After the parties submitted their briefs in this case, the Supreme Court issued its opinion in State v. Mills, 354 Ore 350, 312 P.3d 515 (2013), in which it held, contrary to its earlier decisions, that proper venue is not a material allegation that Article I, section 11, of the Oregon Constitution requires the state to prove beyond a reasonable doubt at trial. Rather, the court held, a criminal defendant has a waivable right to object--before trial--to improper venue. In a memorandum of additional authorities, defendant contends that we must remand this case to the trial court in order to give him an opportunity to object to venue as prescribed in Mills . We agree with defendant and therefore reverse and remand.
Because Mills controls our decision, we begin by summarizing that case. The defendant was stopped by a City of North Plains police officer near milepost 56 on Highway 26 for a traffic violation that the officer had observed near milepost 57. Id. at 351-52. He was charged with driving while his license was revoked. At trial in Washington County Circuit Court, after the state rested, the defendant moved for a judgment of acquittal, arguing that the state had failed to prove that he had committed the offense in Washington County. The trial court denied the motion and ultimately convicted the defendant. This court reversed, holding that the state had failed to meet its burden to establish venue beyond a reasonable doubt. State v. Mills, 248 Ore App 648, 274 P.3d 230 (2012). The Supreme Court took review of the case.
[261 Or.App. 531] In its earlier cases, the Supreme Court had held that, under Article I, section 11 of the Oregon Constitution, the location of an offense was a material allegation in the indictment that the state was required to prove beyond a reasonable doubt. See, e.g., State v. Harvey, 117 Ore 466, 242 P 440 (1926); see also Mills, 354 Ore at 365-69 (discussing Oregon cases). The court revisited the issue in Mills and concluded that the text of Article I, section 11, and the historical circumstances of the adoption of that provision did not support its earlier decisions. 354 Ore at 371. Instead, the court held, Article I, section 11, guarantees " a matter of personal right, which--like other
constitutional rights--may be forfeited if not timely asserted." Id. It concluded that, to avoid waiving the right, a defendant must put venue at issue in a pretrial motion. Id. at 372-73. The court found that to be appropriate for two reasons. First, it observed that " the purpose of the right is to protect a defendant from the hardship and potential unfairness of being required to stand trial in a distant place" and that " it makes sense that the matter of venue should be resolved as soon as possible before the trial itself." Id. at 373. Second, the court reasoned, " requiring a timely pretrial objection precludes a defendant from waiting until the trial has begun to raise the issue of venue, thus creating the need to start the trial over again or, worse, spawning potential double-jeopardy problems." Id.
The court then turned to the disposition of the case:
" Consistently with our holding, the state was not required by Article I, section 11, to prove that the traffic stop occurred in Washington County, given that defendant did not raise the issue of venue until trial already had commenced. Under the circumstances, however, we conclude that it would be unfair to defendant to hold that he forfeited the opportunity to challenge venue, in light of the fact that the ...