State v. Williams

                                         64

       Argued and submitted September 27, 2022, reversed May 17, 2023


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                ALEXANDER TYNELL WILLIAMS,
                      Defendant-Appellant.
                 Washington County Circuit Court
                      20CR10927; A175260
                                    

    Defendant appeals a judgment of conviction for first-degree assault and first-degree criminal mistreatment. Before his trial, which took place in Washington
County, defendant moved to dismiss the charges, contending that Washington
County was not the proper venue for the trial. In the course of litigating that motion,
the state presented its evidence of exactly where and when the offenses had taken
place. That evidence indicated that the offenses had occurred at an unknown and
undiscoverable time and place during an approximately 3.5-hour window, during
which time defendant, the victim, and two other children, who were three and
four years old, had traveled on public transportation between Hillsboro, Oregon,
and Vancouver, Washington. The state “stipulated” orally and asserted in its briefing that it would not be able to prove whether the charged conduct and results
took place in Washington County, Oregon; Multnomah County, Oregon; or Clark
County, Washington. The trial court found, and several times reiterated, that the
state had not proved, and would not be able to prove, in which county, or state, the
offenses took place. It determined that Washington County was an appropriate
venue because “the location of the crime could not be ascertained,” ORS 131.325,
and, the court found, Washington County was defendant’s place of residence.
Accordingly, the court denied defendant’s motion to dismiss. On appeal, defendant contends that the court erred in denying the motion to dismiss because the
state’s evidence and “stipulation” established that the state would not prove that
the offenses occurred in Oregon, and, consequently, the trial court, and Oregon
courts as a whole, lack territorial or subject matter jurisdiction over the crime.
Held: The Court of Appeals held that the record created on defendant’s motion
to dismiss, coupled with the state’s stipulation that it would not prove whether
the offenses occurred in Washington County, Oregon, Multnomah County, Oregon,
or Clark County, Washington, demonstrates, beyond dispute, that the state cannot show that Oregon courts have subject matter jurisdiction over these offenses.
Accordingly, under these unusual procedural circumstances, the trial court was
required to dismiss the case because it lacked subject matter jurisdiction.
    Reversed.



    Andrew Erwin, Judge.
   Rond Chananudech, Deputy Public Defender, argued
the cause for appellant. Also on the briefs was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Office
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of Public Defense Services. Alex Williams filed the supplemental brief pro se.
   Peenesh Shah, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
  Before Aoyagi, Presiding Judge, and Joyce, Judge, and
James, Judge pro tempore.
   JAMES, J. pro tempore.
   Reversed.
66                                                       State v. Williams

           JAMES, J., pro tempore
         Defendant appeals a judgment of conviction for first-degree assault, ORS 163.185, and first-degree criminal mistreatment, ORS 163.205, for conduct against an infant.1
Before his trial, which took place in Washington County,
defendant moved to dismiss the charges, contending that
Washington County was not the proper venue for the trial.
In the course of litigating that motion, the state presented
its evidence of exactly where and when the offenses had
taken place. That evidence indicated that the offenses had
occurred at an unknown and undiscoverable time and place
during an approximately 3.5-hour window, during which
time defendant, the victim, and two other children, who were
three and four years old, had traveled on public transportation between Hillsboro, Oregon, and Vancouver, Washington.
The state “stipulated” orally and asserted in its briefing
that it would not be able to prove whether the charged conduct and results took place in Washington County, Oregon;
Multnomah County, Oregon; or Clark County, Washington.
The trial court found, and several times reiterated, that
the state had not proved, and would not be able to prove,
in which county, or state, the offenses took place. It determined that Washington County was an appropriate venue
because “the location of the crime could not be ascertained,”
ORS 131.325, and, the court found, Washington County was
defendant’s place of residence. Accordingly, the court denied
defendant’s motion to dismiss.
         On appeal, defendant assigns error to, among other
things, the denial of his motion to dismiss. However, he
no longer challenges the court’s decision as to venue. He
now contends that the court erred in denying the motion
to dismiss because the state’s evidence and “stipulation”
established that the state would not prove that the offenses
occurred in Oregon, and, consequently, the trial court, and
Oregon courts as a whole, lack territorial or subject matter
jurisdiction over the crime. The state responds with a variety of arguments about the nature of and proper procedure
for raising territorial jurisdiction.

    1
      Defendant was also found guilty of one count of third-degree assault, which
the trial court merged with the verdict on first-degree assault.
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          We review questions of subject matter jurisdiction
for errors of law. Wallace v. State ex rel PERB, 

, 

 (2011). As explained below, we agree with
defendant that the record created on defendant’s motion to
dismiss, coupled with the state’s stipulation that it would not
prove whether the offenses occurred in Washington County,
Oregon, Multnomah County, Oregon, or Clark County,
Washington, demonstrates, beyond dispute, that the state
cannot show that Oregon courts have subject matter jurisdiction over these offenses. Accordingly, under these unusual
procedural circumstances, the trial court was required to
dismiss the case because it lacked subject matter jurisdiction. We reverse defendant’s convictions. That disposition
obviates the need to address defendant’s other assignments
of error.
                         I.   FACTS
         The relevant facts are procedural. Defendant was
indicted in Washington County on seven counts, and the
indictment alleged that each offense had taken place in
Washington County. Before trial, defendant moved to dismiss the case, citing State v. Mills, 

, 

(2013), and contending that “Washington County is not a
proper venue.” The state initially responded that a motion
to dismiss for lack of venue is improper; rather, the state
contended, a defendant may move for a change of venue,
but “must tell the court where his trial should occur.” In
reply, defendant disagreed, and further asserted that “to
require a defendant to suggest an appropriate venue raises
constitutional questions under both Article I, section 12,
of the Oregon Constitution and [the Fifth Amendment to]
the United States Constitution” because it would require
the defendant to make admissions about where the crime
occurred or other facts that could be used against defendant.
        In his recitation of the facts, defendant pointed out
the uncertainty of the location of the offenses:
      “On November 24, 2019, Defendant arrived to pick up
   the alleged victims and transport them back to Vancouver,
   WA. TriMet video places the Defendant on a MAX train
   from Hillsboro through Portland, OR, before making his
   way to Vancouver, WA. In total, Defendant was with the
68                                             State v. Williams

     children in three separate counties and two separate states
     during this period.”
He argued that, combined with the fact that the evidence
indicated that he resided in Multnomah County, that uncertainty meant that venue was not proper in Washington
County:
     “For the State to prove Washington County is the proper
     venue, they must show either the act or result elements of
     the crimes occurred in Washington County. The investigations by Hillsboro Police do not definitively answer the
     question of where the alleged conduct took place, nor could
     they determine when the children were injured. Because
     the State cannot definitively say where the elements of
     the crime occurred, they cannot prove they occurred in
     Washington County.”
          The state filed an additional response to defendant’s reply. In the introduction, it succinctly summarized
its position:
     “The State concedes the location of the crime cannot be
     readily determined. Per ORS 131.325, when the location
     of a crime committed within the state or a statute that
     governs conduct outside the state is violated and the location cannot be determined, the proper venue is the one in
     which the Defendant resides, or if the defendant has no
     fixed residence in this state, the trial can be held in the
     county in which the defendant is apprehended or to which
     the defendant is extradited. The Defendant is a resident of
     Washington County, or does not have a fixed residence, as
     such Washington County is the proper venue.”
The state noted that defendant “took the boys on a train at
5:30 pm … from Washington County, through Multnomah
County, and up into Washington State,” arriving at their
home in Washington State around 9:00 p.m. It asserted that
the evidence showed that the victim’s injuries “occurred
sometime after 5:30 pm and before [defendant and the children] arrived at the victim’s home at 9 pm.” It concluded,
“The State will be unable to prove the exact location where
or the exact time the injuries were delivered.”
        At the hearing on defendant’s motion, defense counsel began by stating “agreements or stipulations” that the
parties had made, including that “the state is conceding
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that they cannot prove where the incidents in this case
occurred.” The prosecutor agreed: “We are in agreement
that we will not be able to prove venue to you. I’m going to
be calling Detective Tobby Cook, the lead detective in this
case, to generally put on the record … the three locations
that we believe this could have happened in.”
            The court explained its understanding of what was
at issue:
      “Because the way I see this case and the way the argument’s going to come down to is—and it seems like it’s not
   contested as far as purposes of argument is concerned—
   that we’re dealing with at least three separate locations,
   meaning Washington County, Multnomah County, and
   then up to Vancouver, Washington[.]
       “And it’s not really a contested issue that he was in each
   of those three areas at least at some point during those
   times and that the argument by the defense of why a venue
   would be more proper somewhere else—maybe Multnomah
   County, but definitely not Washington County according to
   the defense, that’s why they did a motion to dismiss—is
   that the state is not going to be able to prove at trial, at
   least beyond a reasonable doubt or maybe by a preponderance—we’ll get to that later—but where the act, the alleged
   act or acts occurred.
       “Was it in Washington County? Was it in Multnomah
   County or was it in the State of Washington during this
   period of time? Maybe it was all three, maybe it was just
   one, maybe it was in Washington County. And then why
   [sic: how] do we pick the correct venue?”
         The state presented evidence from the detective
that conformed to the parties’ summaries: Defendant and
the victim boarded a MAX train in Hillsboro, in Washington
County, around 5:30 p.m., traveled through Multnomah
County, and arrived at the victim’s home in Clark County,
Washington around 9:00 p.m. The detective testified that
his investigation indicated that the victim could have been
injured on the MAX train or off the MAX train and in any
of those three counties.
        In closing, the state reiterated that, not only was it
conceding that the location of the crime could not readily be
determined for purposes of venue under ORS 131.325, but
70                                                  State v. Williams

that, at trial, it would not be able to prove where the crime
took place:
     “[O]bviously the state concedes and we have both stipulated that we’re not going to be able to prove … where
     exactly this assault took place. This could have taken place
     in the County of Washington. It could have taken place in
     Multnomah County. It could have taken place as they were
     passing through multiple counties on a train. It could have
     taken place up in Clark County.”
         However, it noted that that lack of proof was not
fatal as a matter of determining venue:
         “Fortunately, venue is not a material issue and does
     not need to be established to a jury. As Your Honor knows,
     Mills says that it needs to be resolved pretrial in an evidentiary hearing such as this one, and that the entire reason
     for the venue requirement is to protect the defendant from
     hardship and inconvenience in the place of his trial, meaning it doesn’t give him a right to not be tried at all. It simply
     gives him a right to a convenient location for a trial so that
     he’s not being dragged all over the state of Oregon.”
         The trial court again agreed that the state had not
proved, and could not prove, where the offense had taken
place. It held that a motion to dismiss for lack of venue was
not proper, and, consequently, it treated the motion to dismiss as a motion for a change of venue. It held that, under
ORS 131.325, venue was proper in Washington County
because defendant had a “fixed residence” in Hillsboro.
Accordingly, it denied the motion.
         As explained above, defendant appeals, asserting
that the evidence adduced at the hearing, coupled with
the state’s variously characterized agreement, stipulation,
or concession that it would not be able to prove where the
offenses took place, demonstrated that Oregon courts lack
the judicial power to adjudicate these offenses.
     II. TERRITORIAL JURISDICTION GENERALLY
         “Under the common law, the exclusive grounding
of state jurisdiction is the territorial principle: a state has
power to make conduct or the result of conduct a crime only
if the conduct takes place or the result happens within its
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territorial limits.” Wayne R. LaFave, Jerold H. Israel et al.,
4 Criminal Procedure § 16.4(c) (4th ed 2022) (internal footnotes omitted). “Conversely, there can be no territorial jurisdiction where conduct and its results both occur outside the
state’s territory.” Id.; see also, e.g., State v. Smith, 

 (Minn 1988) (“The theory of jurisdiction to hear
criminal cases has its roots in the common law and has been
carried forward in the Constitutions of this state and the
United States. From its common law roots, criminal jurisdiction has been premised on the concept of territorialism.
Jurisdiction depends on where the crime was committed.”).
         Oregon courts have not often stated the territorial
principle of jurisdiction, perhaps because it is so fundamental that stating it has not been considered necessary.
However, in 1887, in connection with a larceny prosecution,
the Oregon Supreme Court held, “ ‘Our courts, indeed, have
no occasion, neither have they jurisdiction, to try prisoners
for larcenies committed abroad, against the laws of foreign
governments.’ ” State v. Barnett, 

, 

 (1887)
(quoting Joel Prentiss Bishop, Commentaries on the Criminal
Law § 138 (1858)).
         Despite the lack of explicit statements, the concept
of territorial jurisdiction undergirds the analysis in many
Oregon cases. In three early cases, the Supreme Court
explained that Oregon courts have jurisdiction over various theft-related offenses notwithstanding that some of the
conduct giving rise to the offenses occurred in other jurisdictions; when some combination of conduct and results of
the crime occurred in Oregon, that was enough to establish
territorial jurisdiction in Oregon.2 State v. Johnson, 

 (1864) (holding that larceny is a continuing offense,
allowing conviction based on continued possession of stolen property in Oregon where taking occurred out of state;
disagreeing with states holding “that the offense would not
continue if the original taking was without the State, as the
offense would be beyond the jurisdiction of their courts”);
    2
      As explained below, the requirements for territorial jurisdiction are now
codified at ORS 131.205 to 131.235. However, as explained in the text, since before
statehood, Oregon courts have recognized that their jurisdiction over criminal
cases is limited by a relationship between the criminal acts and Oregon’s geographic boundaries.
72                                             State v. Williams

Barnett, 

 (“The offender, who has obtained a felonious possession without the state, cannot bring the property stolen or embezzled within the state, with the intent
to appropriate or convert it to his own use, without violating the laws of this jurisdiction, and rendering him liable
to its punishments.”); State v. Chew Muck You, 

, 

 (1890) (offense “was within the jurisdiction
of the [Oregon] court which tried and convicted” the defendant because one of the conduct elements took place in
Oregon).
        Later cases employ similar reasoning. See, e.g., State
v. Olson, 

, 

 (1988) (rejecting
the defendant’s argument that “the trial court should have
dismissed the [theft charge] for lack of jurisdiction, because
no element of the crime occurred in Oregon,” because the
defendant had obtained the victim’s money in Oregon by
having the victim transfer it to a location in Oregon).
         A leading United States Supreme Court case
addressing the outer limits of territorial jurisdiction also
arose in Oregon. In 1909, the United States Supreme
Court held that the judicial power of the State of Oregon
did not extend to convicting a fisherman on the Columbia
River for violating Oregon law when he was fishing legally
under Washington law within the territorial boundaries of
Washington. Nielsen v. State of Oregon, 

, 

, 

 (1909). That was true notwithstanding the
fact that Congress had granted the two states “concurrent
jurisdiction” over the area where he was fishing. 

.
The Court noted that the purpose of the grant of concurrent jurisdiction was to avoid problems with the exercise of
territorial jurisdiction that could arise because the precise
location of the boundary between Oregon and Washington
was uncertain:
        “Undoubtedly one purpose, perhaps the primary purpose, in the grant of concurrent jurisdiction, was to avoid
     any nice question as to whether a criminal act sought to be
     prosecuted was committed on one side or the other of the
     exact boundary in the channel, that boundary sometimes
     changing by reason of the shifting of the channel.”

.
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         Nevertheless, the Court held, without extended
explanation, that, notwithstanding the congressional grant
to Oregon of jurisdiction outside its boundaries (to the northern edge of the Columbia), traditional conceptions of territorial jurisdiction resolved the case: “[F]or an act done within
the territorial limits of the state of Washington, under
authority and license from that state, one cannot be prosecuted and punished by the state of Oregon.” Id.; see also
State v. Alexander, 

, 

, aff’d,

, 

 (1980) (“We do not know whether
the offenses occurred within the State of Washington or the
State of Oregon, but only that they occurred on the Columbia
River, which forms the boundary between the two states. In
the absence of an overriding federal act curing the problem,
only the state in which the offenses occurred would have
jurisdiction to prosecute the offender.”).

         The Court has not clearly articulated what federal
law, exactly, is the source of the territorial limits on the
jurisdiction of state courts. However, we, along with many
other courts, have noted that there is a due process component to those limits. Estate of Michelle Schwarz v. Philip
Morris Inc., 

, 

 (2006), aff’d,

, 

, adh’d to on recons, 

, 

 (2010) (The United States Supreme Court’s concern
in cases regarding punitive damages “is that when a state
punishes a defendant for harm caused in another state—in
contrast to using evidence of actions in other states to show
the reprehensibility of the defendant’s actions that affected
people within the state—it acts outside its territorial jurisdiction. A state has an interest in protecting its own consumers and its own economy; however, a state does not have
a valid interest under the Due Process Clause in punishing a defendant for harm that is caused and occurs outside
its jurisdiction.”); see also, e.g., State v. Sumulikoski, 221
NJ 93, 109, 110 A3d 856, 866 (2015) (“The extraterritorial
application of state criminal law is subject to due process
analysis.”).

         Oregon’s territorial jurisdiction is now defined by
statute. Although the statutory grant of territorial jurisdiction expands its limits somewhat beyond the traditional
74                                                         State v. Williams

scope of territorial jurisdiction allowed at common law, the
statutes are still organized around the fundamental point
that Oregon courts’ jurisdiction over criminal offenses is
limited by Oregon’s territorial boundaries. As relevant here,
ORS 131.215(1) provides that “a person is subject to prosecution under the laws of this state for an offense that the person commits by the conduct of the person … if … [e]ither
the conduct that is an element of the offense or the result
that is an element occurs within this state.”3 ORS 131.205
defines “this state” as “the land and water and the airspace
above the land and water with respect to which the State of
Oregon has legislative jurisdiction.”
       III.   SUBJECT MATTER JURISDICTION AND
              PRESERVATION-RELATED ISSUES
A. Territorial Jurisdiction is a Type of Subject Matter
   Jurisdiction
          With that background, we arrive at the first issue
that the parties dispute: whether territorial jurisdiction is a
type of subject matter jurisdiction. Defendant contends that
it is, with the consequence that it may be raised for the first
time on appeal. State v. Webb, 

, 

 (1996) (“Lack of subject matter jurisdiction properly may
be raised for the first time on appeal.” (Internal quotation
marks omitted.)). Defendant argues that territorial jurisdiction limits the scope of Oregon courts’ power to adjudicate
criminal cases.

    3
      ORS 131.215(2) to (6) address situations that may not qualify for territorial jurisdiction under ORS 131.215(1) but nevertheless have some connection
to Oregon that justifies territorial jurisdiction. Related statutes also provide for
exceptions to ORS 131.215(1) when certain kinds of results are at issue (including
those that risk conflict with the law of the place where the result takes place),
ORS 131.225, and provide special rules for criminal homicide, ORS 131.235,
including a rule that, “[i]f the body, or a part thereof, of a criminal homicide
victim is found within this state, it shall be prima facie evidence that the result
occurred within this state,” ORS 131.235(2). See generally Strasheim v. Daily, 

, 

, 

 (1911) (“Acts done outside a jurisdiction, but
intended to produce and producing detrimental effects within it, justify a state
in punishing the cause of the harm as if he had been present at the effect, if the
state should succeed in getting him within its power.”).
          Neither party contends that Oregon could have territorial jurisdiction
over this case under any provision of ORS 131.215 other than ORS 131.215(1).
Likewise, no one contends that any other provision of ORS 131.215 to 131.235
applies. Like the parties, we do not perceive that any of those provisions apply.
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          The state advances several arguments in response.
First, it appears to deny that the territorial principle of
jurisdiction exists; it contends that Article VII (Amended),
section 9, of the Oregon Constitution grants Oregon courts
subject matter jurisdiction to hear all criminal cases, regardless of where the offense takes place. We disagree. Although
the permissible outer limits of a state’s territorial jurisdiction are not entirely clear—and, by statute, many states,
including Oregon, have defined their territorial jurisdiction
more broadly than the common law would have allowed—it
is beyond reasonable dispute that Oregon courts’ power to
adjudicate criminal offenses is limited to offenses committed within Oregon’s territorial jurisdiction. Barnett, 

 (“Our courts, indeed, have no occasion, neither have
they jurisdiction, to try prisoners for larcenies committed
abroad, against the laws of foreign governments.”); ORS
131.215 (imposing territory-based limits on the offenses for
which “a person is subject to prosecution under the laws of
this state”); see Nielsen, 

 (rejecting the Oregon
Supreme Court’s attempt to convict a defendant for conduct allowed under Washington law that took place within
Washington’s territorial boundaries, notwithstanding a congressional grant of concurrent jurisdiction over the location
of the conduct). Moreover, although we need not delve into
this question here, it appears to us extremely likely that, in
enacting Article VII (Original) and Article VII (Amended) of
the Oregon Constitution, the framers and the voters, respectively, intended Oregon courts’ power to be limited by the
principle of territorial jurisdiction.
         The state next contends that “territorial jurisdiction is more like personal jurisdiction than it is like subject
matter jurisdiction.” It contends that territorial jurisdiction
cannot be a form of subject matter jurisdiction because territorial jurisdiction is, as the state puts it, “a fact-specific
limit on a court’s authority over a particular case,” whereas
subject matter jurisdiction refers to “the scope of proceedings that a court may hear and over which the court may
exercise judicial power.” Dept. of Human Services v. C. M. H.,

, 

 (2021). The state notes that, in
C. M. H., the court distinguished between subject matter
jurisdiction and other concepts that are sometimes referred
76                                           State v. Williams

to as “jurisdiction,” which “focus more narrowly on a court’s
authority to take particular action in a case that comes
within the scope of the court’s subject matter jurisdiction.”

 (emphasis in original).

          We conclude that territorial jurisdiction is a type of
subject matter jurisdiction. It is difficult to think of a principle that more clearly addresses “the scope of proceedings
that a court may hear and over which the court may exercise judicial power,” C. M. H., 

, than the principle that a state’s “power to make conduct or the result of
conduct a crime,” and thus subject to prosecution under the
state’s laws, is limited by the state’s territorial boundaries.
LaFave, et al., 4 Criminal Procedure § 16.4(c); see also id.
§ 16.1(a) (describing territorial jurisdiction as “the jurisdictional limits that restrict by reference to the geographical
locus of the offense the authority of the judiciary to apply
the laws of the particular government (national, state, or
municipality) of which it is a part”).

         ORS 131.215 limits the scope of criminal proceedings over which Oregon courts may exercise judicial power:
“[A] person is subject to prosecution under the laws of this
state for an offense” only if the offense meets the criteria in
one of the six subsections that follow. If the offense is not
one that qualifies under at least one of the subsections, no
person is subject to prosecution for that offense under the
laws of this state. In that case, prosecution for that offense
is beyond the scope of proceedings that Oregon courts may
hear.

         Subject matter jurisdiction “exists when the constitution or the legislature or the [common] law has told this
court to do something about this kind of dispute.” School
Dist. No. 1, Mult. Co. v. Nilsen, 

, 

(1972) (internal quotation marks omitted; uppercase modified). The legislature has told Oregon courts to do something
about prosecutions for offenses that meet the requirements
of ORS 131.215. And—in accordance with federal law—by
implication, it has prohibited Oregon courts from doing anything about offenses that do not meet those requirements.
See also Nielsen, 

 (Oregon may not prosecute
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an Oregon offense where the acts and results took place in
Washington and were legal there).
         Thus, territorial jurisdiction is a type of subject
matter jurisdiction. LaFave, et al., 4 Criminal Procedure
§ 16.4(a) n 2 (“Since territorial jurisdictional limits operate
to restrict the subject matter over which the court can exercise authority, they are treated procedurally as presenting
issues of subject matter jurisdiction.”); see also, e.g., People v.
Simon, 25 Cal 4th 1082, 1096, 

 (2001) (noting that venue “does not involve a question of ‘fundamental’
or ‘subject matter’ jurisdiction over a proceeding”; “[i]f the
crime is one over which California can and does exercise its
legislative jurisdiction because it was committed in whole
or in part within the state’s territorial borders, California
courts have jurisdiction to try the defendant” (emphasis in
original; some internal quotation marks omitted)); State v.
Taylor, 

 (Mo 2007) (“Jurisdictional doctrine prevents courts from holding trials when the crime at
issue occurred out of state; a state court lacks the authority to enforce criminal law unless the conduct, or some substantial portion of it, occurred within the state.”); Smith v.
State, 116 Md App 43, 52-53, 

 (1997) (territorial jurisdiction is subject matter jurisdiction and may be
raised, by a litigant or by a court sua sponte, at any time).
Defendant was not required to raise the issue of territorial
jurisdiction below before raising it on appeal. C. M. H., 

; Webb, 

.
B.    Invited Error, Waiver, and Concession Do Not Prevent
      Review, and Defendant Did Not Stipulate That the
      Offenses Were Committed in Oregon
      1.   State v. Walsh
         The state argues that the outcome in this case is
controlled by State v. Walsh, 

, 

(2017), rev den, 

, cert den, 

 (2018),
in which, on appeal, we rejected a defendant’s newly raised
argument about venue under ORS 131.325 because it was
not preserved. ORS 131.325 provides as follows:
        “If an offense is committed within the state and it cannot
     readily be determined within which county the commission
78                                               State v. Williams

     took place, or a statute that governs conduct outside the
     state is violated, trial may be held in the county in which
     the defendant resides, or if the defendant has no fixed residence in this state, in the county in which the defendant is
     apprehended or to which the defendant is extradited.”

In Walsh, before the trial court, the defendant had acknowledged uncertainty about whether the offense had taken
place in Oregon at all but had argued that venue was proper
in Crook County, Oregon, not Washington County (the place
of trial) because the offense had likely taken place in Crook
County. 288 Or App at 280-81; see ORS 131.305(1) (“Except
as otherwise provided in ORS 131.305 to 131.415, 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.”). That is, the
defendant had argued that it could readily be determined
that the crime had taken place in Crook County, so that
was where venue was appropriate. Walsh, 288 Or App at
280-81.
        On appeal, the defendant made a different argument, though it still went to venue: The defendant contended “that the trial court erred because the state failed
to establish that the [conduct took place] in Oregon, which
ORS 131.325 required the state to establish for ORS 131.325
to apply and permit venue to be established in Washington
County.” Id. at 281. We rejected that argument as unpreserved, explaining that the new argument “conflicts with
the argument that he made below.” Id. at 282.
         In a footnote in Walsh, we noted that, before the
trial court, the defendant had raised a territorial jurisdiction argument, but that that argument was not renewed on
appeal: “We note that defendant moved at trial for a judgment of acquittal on the charges related to the photograph
on the ground that the state had failed to prove that the
photograph had been taken in Oregon and that Oregon
therefore lacked jurisdiction over those crimes. Defendant
has not assigned error on appeal to the court’s denial of that
motion.” Id. at 282 n 1 (emphasis added). For that reason, we
did not address territorial jurisdiction in that case. In light
of our conclusion in this opinion that territorial jurisdiction
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is a type of subject matter jurisdiction, the issue could have
been raised sua sponte, Weatherspoon v. Allstate Ins. Co., 

, 

, rev den, 

 (2004)
(“[S]ubject matter jurisdiction is never waived and can be
raised by any party or by the court sua sponte at any stage
of the proceedings.”), but was not.

        Our holding in Walsh has no application here
because defendant’s appellate argument is not about venue.
Instead, in this case, defendant argues on appeal that the
court lacked territorial jurisdiction because the state’s evidence and concessions, and the court’s findings, established
that the state could not prove that the crime took place in
Oregon. As we have explained, that argument implicates
the court’s subject matter jurisdiction, which, unlike arguments about venue, including the one that we addressed in
Walsh, is not subject to the preservation requirement.

    2. Waiver, Concession, and Invited Error

         The state also argues that defendant invited the
error or conceded, as a legal matter, that the court had
subject matter jurisdiction when he argued, in response
to the state’s contention that he had to identify an appropriate venue, that, if venue was proper anywhere, it was in
Multnomah County because that was more likely the county
where defendant resided. See ORS 131.325 (“If an offense is
committed within the state and it cannot readily be determined within which county the commission took place …
trial may be held in the county in which the defendant
resides[.]”). We reject those arguments. Because territorial
jurisdiction is subject matter jurisdiction, neither consent,
nor waiver, nor invited error prevents us from addressing
it on appeal. Chester and Chester, 

, 

 (2001) (rejecting wife’s contention that “husband
either consented to subject matter jurisdiction by the trial
court, waived his right to contest subject matter jurisdiction, or is otherwise estopped from asserting lack of subject matter jurisdiction due to principles of invited error”;
explaining that “[w]e consider jurisdictional issues regardless of when they are presented,” “[j]urisdiction cannot
be conferred by the parties by consent, nor can the want
80                                             State v. Williams

of jurisdiction be remedied by waiver, or by estoppel,” and
“[l]ikewise, subject matter jurisdiction is not susceptible
to the principle of invited error” (internal quotation marks
omitted)).
     3.   Stipulation
         We do agree with the state’s implicit premise that,
if defendant had stipulated to facts showing that the
offenses were ones over which the court had subject matter
jurisdiction—in this case, the relevant fact would be that
the offenses or the victim’s injuries took place in Oregon—
then that factual agreement could have given the trial court
subject matter jurisdiction. See State v. Porter, 

, 

 (2005) (when a party makes a stipulation, which is a statement made “for the purpose of dispensing with the need for proof,” the stipulated fact is “conclusively proven and can be withdrawn only for fraud, mutual
mistake or the actual absence of consent” (internal citation
omitted)). However, we disagree with the state that, by arguing that, if anywhere, venue might be proper in Multnomah
County under ORS 131.325, defendant stipulated to the fact
that the offenses occurred in Oregon.
          ORS 131.325 applies only when “an offense is committed within the state.” See 326 Or App at 77-78 (setting
out text of ORS 131.325). Consequently, in the state’s view,
when defendant failed to take issue with the state’s premise
that ORS 131.325 applied, he agreed, as a factual matter,
that the offenses were committed in Oregon. That argument
fails for two reasons. First, as noted, to bind itself to a fact, a
party must make a statement “for the purpose of dispensing
with the need for proof.” Porter, 

. None of
defendant’s arguments involved any such statements; to the
contrary, as we will discuss further below, the state stipulated that the location of the offenses was not identifiable,
including whether they took place in Oregon or Washington.
As further evidence that defendant did not intend to stipulate to any facts, we note that he argued that it would
violate his rights under Article I, section 12, and the Fifth
Amendment to be required to suggest a proper venue for
the trial. Defendant did not stipulate that the offenses took
place in Oregon.
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         Second, it is clear from the discussion at the hearing that the parties did not recognize that ORS 131.325
applies only to offenses within Oregon’s territorial jurisdiction. For example, in the course of summarizing why venue
was proper in Washington County under ORS 131.325, the
state noted expressly that “[t]his could have taken place
in the County of Washington. It could have taken place in
Multnomah County. It could have taken place as they were
passing through multiple counties on a train. It could have
taken place up in Clark County.” (Emphasis added.) No one—
not the state, not the court, not defendant—recognized that
the fact that the state could not prove where the offenses
or the results took place (and the offense did not fall under
a statute governing conduct outside of Oregon) meant that
ORS 131.325 did not apply because the offenses could not
be shown to have been “committed within the state” or that
“a statute that governs conduct outside the state [was] violated.” Although that failure to recognize the limitations of
ORS 131.325 might pose a problem for defendant if preservation were required, it does not demonstrate that he intended
to stipulate, as a factual matter, that the offenses took place
in Oregon.
           IV. ALLEGATIONS AND PROOF
           OF TERRITORIAL JURISDICTION
         Having concluded that territorial jurisdiction is
a type of subject matter jurisdiction and, thus, does not
require preservation and that defendant’s argument is properly before us on appeal, we turn to the merits. Defendant
contends that the court erred because, by the time it denied
his motion to dismiss, the state had presented its evidence
of the location of the offenses, which showed that the state
could not prove that the offenses took place in Oregon, and
had stipulated that its case could not and would not include
proof that the offenses were committed in Oregon.
          The state responds with two final arguments:
First, it contends, the court had subject matter jurisdiction
because the indictment alleged that the offenses took place
in Oregon. Second, and alternatively, it argues that, if we
conclude that, in order to demonstrate subject matter jurisdiction, the state had to actually prove that the offenses took
82                                           State v. Williams

place in Oregon, we should remand for the state to put on
that proof. As explained below, we reject those arguments.
         We begin with the state’s argument that, in a criminal case, once the state alleges in a charging instrument
that an offense was committed within Oregon’s territorial
jurisdiction, the question of where the crime occurred is a
simple matter of proof that does not affect the court’s subject matter jurisdiction. In the state’s view, a defendant may
move for a judgment of acquittal on the ground that the
offense was not committed within Oregon’s territorial jurisdiction, but the allegation is all that is necessary to conclusively establish the court’s power to act.
         We agree with the state to the extent that, under
ordinary circumstances, filing a charging instrument properly alleging that an offense took place within Oregon’s territorial jurisdiction authorizes the court to hold a trial or
some other proceeding to determine the truth of those allegations. See generally Clawson v. Prouty, 

,

 (1959) (a court “necessarily has jurisdiction”
to determine its own jurisdiction (internal quotation marks
omitted)). However, considering the nature and significance
of territorial jurisdiction, we disagree that the filing of the
charging instrument can conclusively resolve the question
of Oregon courts’ subject matter jurisdiction over an offense.
          As explained above, territorial jurisdiction is a limit
on the judicial power of the State of Oregon. The origins
of that limitation are in the common law, and the doctrine
is further rooted in federal law, including due process, and
in proper regard for the relationship between state governments. Nielsen, 

; Estate of Michelle Schwarz, 

 (to permit Oregon courts to act extraterritorially in the context of punitive damages “would offend the
principles of federalism on which Due Process is based”); see
also, e.g., Sumulikoski, 221 NJ at 109, 110 A3d at 856 (territorial jurisdiction implicates due process); State v. Baldwin,

 (Me 1973) (explaining that, because
state courts need not give full faith and credit to another
state court’s determination of jurisdiction, allowing proof
of territorial jurisdiction by anything less than the highest
standard of proof increases the risk that a defendant who
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commits a crime near the border of two states may stand
trial twice or even be convicted twice—once in each of the
two states—for the same crime, without double jeopardy
protections). Under the state’s proposed approach, Oregon
courts would conclusively have territorial jurisdiction to
adjudicate any case in which an offense is alleged to have an
adequate connection to Oregon to bring it within Oregon’s
territorial jurisdiction—regardless of what facts are ultimately adduced on that topic. That approach is inconsistent
with the nature of the limitation on Oregon’s judicial power
that territorial jurisdiction represents.

         Further, our case law indicates that, when a criminal defendant challenges the power of Oregon courts to adjudicate an offense, the state bears the burden to prove—not
just allege—that the court has subject matter jurisdiction.
In State v. Hill, 

, 

, rev den, 

 (2016), we considered an analogous question regarding
subject matter jurisdiction over certain offenses that take
place in Indian country, as that area is defined by Congress.
In response to the defendant’s argument that the court had
erred in entering his convictions without first finding that
he was non-Indian—which was necessary for the court to
have subject matter jurisdiction—we concluded that “the
burden of proving jurisdictional facts in Oregon criminal
cases ultimately lies with the state.” Id. at 766 (emphasis
added). Because the issue had not been litigated below, we
concluded, “we cannot determine whether the trial court
had subject matter jurisdiction,” and, accordingly, vacated
the defendant’s convictions and remanded for the trial
court to take evidence on the defendant’s non-Indian status.
Id. at 763-64. Under our holding in Hill, in a criminal case,
the state bears the burden of proving—not just alleging—
facts establishing the court’s subject matter jurisdiction.

        We conclude that territorial jurisdiction cannot be
conferred by a charging instrument. That is so notwithstanding the Supreme Court’s recent holding that “the allegations and the pleadings [can] be sufficient to bring a case
within the scope of a court’s subject matter jurisdiction.”
C. M. H., 

-17 (citing cases addressing district
court jurisdiction of forcible entry and detainer actions,
84                                                         State v. Williams

subject matter jurisdiction of probate courts, and equity
jurisdiction, and holding that the rule applied to ORS
419B.100, which confers jurisdiction on juvenile courts).
Critically, neither C. M. H. nor any of the cases it cited
involved the question of the power of the State of Oregon
as a whole to address the subject matter of the case; they
all involved questions of which court, among various Oregon
courts, was the proper court to hear the case. Further, none
of the cases that the court cited involved a criminal proceeding. As a consequence of both of those points, none of those
cases implicated federal law or constitutional rights of criminal defendants. By contrast, as established by the United
States Supreme Court, territorial jurisdiction limits states’
power to prosecute crimes, Nielsen, 

.
          Finally, we note that nearly all the state courts that
have considered territorial jurisdiction in criminal cases
have concluded that, in order to establish the state courts’
authority to adjudicate an offense, the state must prove territorial jurisdiction either beyond a reasonable doubt or by a
preponderance of the evidence. See, e.g., State v. Willoughby,
181 Ariz 530, 536-39, 

 (Ariz 1995)
(concluding that the majority view requires proof of territorial jurisdiction beyond a reasonable doubt, rather than a
preponderance of the evidence, and adopting that rule; collecting cases).4
      4
        We have found a single out-of-state case stating, without analysis, that an
indictment can confer territorial jurisdiction. State v. Sanders, 

,

 (2016). That case is not persuasive for two reasons. First, it
appears that the court did not need to address the sufficiency of the indictment,
alone, to establish territorial jurisdiction, because the defendant had admitted to
all of the facts in it, including that the offense had taken place in South Dakota,
when he pleaded guilty. Id. at ¶ 4, 

; see also State v. Janssen, 

 (SD 1985) (“[A] plea of guilty, if voluntarily and understandably
made, is conclusive as to the defendant’s guilt, admitting all the facts charged
….”).
    Second, we do not understand how the Sanders court’s statement about territorial jurisdiction follows from the authorities it cites, neither of which addresses
the issue. 

, 

 (citing Janssen, 

 (a procedural error in failing to hold a preliminary hearing does not deprive
South Dakota courts of their otherwise existing authority to act on a charging
instrument) and State v. Osborn, 155 Ind 385, 

 (1900) (the “jurisdiction” of an Indiana circuit court to adjudicate offenses that occurred in a different county—not a different state—is established by the indictment)); see Mills,

 (in the nineteenth century, Indiana courts used the term “jurisdiction” to refer to what we now recognize as venue).
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         In this case, the state filed an indictment alleging that the offenses occurred in Oregon—in Washington
County. That entitled the state to an opportunity to prove
that those allegations were true. If they were, the court
had subject matter jurisdiction. If they were not, the court
lacked subject matter jurisdiction and had to dismiss the
case. Given that understanding, all that remains is for us to
consider the significance of the state’s stipulation that the
location of the conduct and results of the offenses could not
be proved.
         The state contends that, because defendant did not
raise territorial jurisdiction before the trial court, the state
lacked a full opportunity to prove that the offenses took
place in Oregon. It argues that we should remand to give it
that opportunity. By contrast, defendant asserts that, at the
hearing on his motion to dismiss for lack of venue, the state
had a full opportunity, and incentive, to prove the offenses’
location—to show that venue was proper in Washington
County under ORS 131.305(1), which states the basic rule
that “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.” Instead
of proving in which county or state the offenses took place,
the state stipulated that the offenses’ location could not be
proved. Given that, defendant contends, a remand is inappropriate; the state’s stipulation means that it is “conclusively
proven” that the location of the offenses cannot be identified among the three possibilities—Washington County,
Multnomah County, and Clark County, Washington. Porter,

.
         We agree with defendant. Although some iterations
of the state’s statements about what it could and could not
prove were focused on proving location for purposes of venue,
other statements demonstrate that the state was knowingly acknowledging that it was equally possible that the
crime had taken place in any of the three counties, and that
acknowledgment was for the purpose of dispensing with any
further need to prove that point, either at the hearing or at
trial. See Porter, 

 (“The effect of a stipulation depends on the intention of the party that makes
it; that party must knowingly make the statement for the
86                                          State v. Williams

purpose of dispensing with the need for proof.”); accord

 (noting that a stipulation differs from “[a] statement in
opening argument that merely predicts what the evidence
will show” and from “a mere casual statement by one party
in the absence of evidence that the statement resulted from
a formal agreement between the parties that a fact need not
be proved”).
         We recognize that the state’s stipulation was made
in conjunction with an understanding shared by the parties
and the court that, to obtain a conviction, the state did not
actually have to prove the location of the crime. However,
under these particular circumstances—where, in addition to
making the stipulation, the state had reason to present, and
did present, its evidence of where the offenses took place and,
given that evidence, the trial court found that the state had
not proved and would not be able to prove where the offenses
took place—we conclude that a remand is not appropriate.
By the time the court denied defendant’s motion to dismiss,
the record conclusively demonstrated that the offenses may
have taken place in Clark County, Washington, and the
state’s repeated stipulation and concession demonstrated
that it would be unable to prove that “[e]ither the conduct
that is an element of the offense or the result that is an
element” occurred in Oregon. ORS 131.215(1). Given that,
it could not be determined that an Oregon court possessed
territorial jurisdiction over the case, and the trial court was
required to dismiss the case.
        Reversed.