State v. Turner

¶1concurring.

¶2I 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.

¶3Article 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 P2d 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 *467Oregon. 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.

¶4Further, 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 *468County. 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 becomes what evidence is necessary in order to prove venue for purposes of Article I, section 11, when defendant could have complied with ORS 181.599 (2005) by reporting in any county.1

¶5It is axiomatic that the legislature, by enactment of statutes, cannot trump or circumvent the requirement in Article I, section 11, as interpreted by the Supreme Court in Cervantes, and presumably the legislature was aware that the state was constitutionally required to prove venue as part of its allegations against defendant for his failure to report. Moreover, it is inferable that the legislature’s silence regarding a county in which reporting must occur was intended to facilitate reporting by sex offenders. Those understandings lead to the conclusion that the legislature must have contemplated that venue requirements for purposes of ORS 181.599 (2005) are governed by the more general venue statutes.

¶6ORS 131.305(1) provides that, subject to certain exceptions, “criminal actions shall be commenced and tried in the county in which the conduct that constitutes the offense or a result that is an element of the offense occurred.” Here, the failure to report in any county may be the “result” that the legislature had in mind for purposes of ORS 131.305(1). However, the state does not argue in this case that the stipulation of facts complies in that regard with ORS 131.305(1).

¶7Another general venue statute that the legislature could have contemplated as applicable to ORS 181.599 (2005) is ORS 131.325. It provides that, if an offense is committed within the State of Oregon “and it cannot readily be determined within which county the commission took place,” trial *469may be held in the county in which the defendant resides or is found. However, the applicability of ORS 131.325 to 181.599 (2005) is problematic because ORS 131.325 assumes the existence of a site of a crime and circumstances where the site cannot be readily determined, whereas ORS 181.599 (2005) evidences a legislative intention to dispense with a particular location for reporting. Again, the state does not rely on ORS 131.325 in this case.

¶8My purpose in making the above observations is to alert the legislature to the ramifications of its omission of any requirement under ORS 181.599 as to where reporting must occur, in the event of a desire for a “legislative fix.” To summarize: As this court views the applicable law, the state must prove venue beyond a reasonable doubt as part of its case-in-chief under ORS 181.599 (2005), because venue is a material allegation that must be proved under Article I, section 11. The practical problem for practitioners under the statute is in discerning what evidence will satisfy the state’s burden in that regard. On the latter issue, my observations should not be understood as expressing any reasoning, decision, or will of the court, but are offered merely to help inform the conundrum that the statute creates regarding the site of the crime of failing to report as a sex offender.