Submitted: May 30, 2014.
Coos County Circuit Court. 12CR0279. Michael J. Gillespie, Judge.
Peter Gartlan, Chief Defender, and Alice Newlin-Cushing, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Ryan Kahn, Assistant Attorney General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
[264 Or.App. 181] PER CURIAM
Defendant appeals a judgment of conviction for one count of failure to register as a sex offender, former ORS 181.599 (2009),
renumbered as ORS 181.812 (2013). He assigns error to the trial court's denial of his motion for judgment of acquittal, arguing that the state failed to prove beyond a reasonable doubt that he had committed the offense in Coos County, the county in which the state prosecuted the offense. After defendant filed his brief in this case, the Supreme Court decided State v. Mills, 354 Or. 350, 312 P.3d 515 (2013), in which it held that Article I, section 11, of the Oregon Constitution does not require the state to prove venue beyond a reasonable doubt at trial; rather, a defendant must put venue at issue in a pretrial motion. Id. at 372-73. Concluding " that it would be unfair to [the] defendant to hold that he [had] forfeited the opportunity to challenge venue, in light of the fact that the law in effect at the time of trial permitted him to wait until the state rested to raise the issue," id. at 373, the Supreme Court reversed the trial court's judgment and remanded for further proceedings, explaining:
" If, on remand, [the] defendant elects not to challenge venue under Article I, section 11, the trial court judgment must be reinstated. If [the] defendant challenges venue under Article I, section 11, the trial court may hold an evidentiary hearing at which the state will have the opportunity to establish--and [the] defendant will have the opportunity to contest--that Washington County is the appropriate venue."
Id. at 373-74.
To the extent that subsequent cases have presented the same unfairness that the Supreme Court identified in Mills, we have employed the same remedy. E.g., State v. Sharp, 261 Or.App. 554, 323 P.3d 519, modified on recons, 262 Or.App. 327, 323 P.3d 979 (2014); State v. Parsons, 259 Or.App. 344, 314 P.3d 343 (2013). Nevertheless, the state argues that a remand is not necessary in this case, because the record unquestionably establishes that defendant resided in Coos County at the time of trial, which could make Coos County a county in which the charge against defendant could be [264 Or.App. 182] prosecuted. See ORS 131.325 (providing that " trial may be held in the county in which the defendant resides" ). We recently rejected a similar argument in State v. Weilert, 261 Or.App. 529, 323 P.3d 513 (2014), concluding that, in deciding Mills, the Supreme Court " chose[ ] not to make assumptions about how the defendant might have been able to undermine the state's evidence concerning venue." Id. at 533. Accordingly, when, as here, " it is at least theoretically possible that defendant could have developed a different record had he elected to make a pretrial challenge to venue," id., and, because defendant's decision to challenge venue at the close of the state's evidence at trial was appropriate under the law in effect at the time, " it would be unfair to defendant to hold that he [had] forfeited the opportunity to challenge venue." Mills, 354 Or. at 373.
Accordingly, we reverse the trial court's judgment and remand for further proceedings ...