State v. Palmore

66                   November 19, 2025             No. 988

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
              YEHEZKE’L ARYAN PALMORE,
                   Defendant-Appellant.
              Clackamas County Circuit Court
                   22CR57002; A181494

     Ann M. Lininger, Judge.
     Submitted October 23, 2024.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Peter G. Klym, Deputy Public Defender, Oregon
Public Defense Commission, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin
Gutman, Solicitor General, and Patrick M. Ebbett, Assistant
Attorney General, filed the brief for respondent.
  Before Shorr, Presiding Judge, Powers, Judge, and
Pagán, Judge.
     PAGÁN, J.
     Affirmed.
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         PAGÁN, J.
          Defendant appeals his judgment of conviction for
first-degree trespass, fourth-degree assault constituting
domestic violence, carrying a concealed weapon, and two
counts of harassment, stemming from two separate domestic violence incidents with the same victim, CK. Defendant’s
sole assignment of error argues that the trial court erred
when it denied his motion for a mistrial on venue grounds.
Because we disagree with defendant’s assertion that State v.
Mills, 

, 

 (2013), created an exception
that would apply in this circumstance, we affirm.
         Stating only the background relevant to our
analysis, we begin with the indictment. The state, in
Clackamas County, brought an indictment charging defendant with 7 counts: (1) first-degree burglary, ORS 164.225;
(2) strangulation, ORS 163.187; (3) fourth-degree assault
constituting domestic violence, ORS 163.160; (4) carrying
a concealed weapon, ORS 166.240; (5) harassment, ORS
166.065; (6) fourth-degree assault constituting domestic violence, ORS 163.160; and (7) harassment, ORS 166.065. The
state’s allegations spanned two separate dates: November
2, 2022, which was addressed by Counts 6 and 7, and
November 25, 2022, which was addressed by Counts 1
through 5. Defendant focuses his appeal on Counts 6 and 7,
which stated:
       “The defendant, on or about November 2, 2022, in
   Clackamas County, Oregon, did unlawfully and intentionally, knowingly and/or recklessly cause physical injury to
   [CK]. The state further alleges this act constitutes a crime
   of domestic violence.
      “…
       “The defendant, on or about November 2, 2022, in
   Clackamas County, Oregon, did unlawfully and intentionally harass or annoy [CK] by subjecting [CK] to offensive
   physical contact.”
(Emphases added.)
        Defendant did not file a motion challenging venue
before trial. Thus, we state the testimony that was presented at trial relevant to the issues on appeal.
68                                             State v. Palmore

         CK testified that on November 2, she, her friend,
and defendant went to get food early in the morning, and CK
and defendant began arguing. That the argument caused
her friend, who was driving, to pull over in a Safeway parking lot across from a Taco Bell in the City of Gresham, which
is in Multnomah County. CK and defendant got out of the
car and defendant grabbed CK by her hoodie and threw her
into the car. That testimony was the basis of Counts 6 and 7.
          CK also testified that on November 25, she and
defendant had plans for defendant to come over to her house
in Damascus, which is in Clackamas County, and hang out
later in the day. Defendant was intoxicated when he arrived,
and she had also been drinking. After some time watching
videos in her room, the mood shifted, defendant went to
smoke a cigarette in the garage, and CK joined him. The
two got into CK’s car and argued. At some point, CK reached
for the keys in the ignition, and defendant ripped the key
lanyard out of her hand, slicing her palm and breaking the
skin. Defendant bit her lip, causing her to leave the vehicle
and re-enter her home. Defendant forced his way into the
home, pushed and choked CK, and left before a roommate
could call police. That testimony was presented in support
of Counts 1 through 5.
         After CK testified about the November 2 incident in
Gresham, defendant raised the potential venue issue for the
first time. Defendant moved for a mistrial, claiming that the
November 2 incident was improperly pleaded and improperly
introduced “other acts” evidence. The court requested briefing on that matter, and the parties presented their arguments the following day. The court denied the motion for
mistrial, concluding that defendant waived the venue objection by failing to raise it before trial. Subsequently, a jury
convicted defendant on Counts 1, 3, 4, 5, and 7. Defendant
timely appealed, raising denial of the motion for mistrial as
his sole assignment of error.
          Whether a mistrial should have been granted is
reviewed for abuse of discretion. State v. Bowen, 

, 

 (2006) cert den, 

 (2007). A trial
court abuses its discretion when it denies the defendant a
fair trial. See 

 (stating that a trial court does not abuse its
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discretion by denying defendant’s motion for mistrial unless
the prosecutorial misconduct at issue denied the defendant
a fair trial).
         Article I, section 11, of the Oregon Constitution provides, “In 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.” In Mills,
the Oregon Supreme Court clarified the nature of that right,
stating that it was a personal right, which could be waived,
and that the constitutional provision did not codify the common law rule that required the state to prove venue as a part
of its substantive case. 

. It concluded, “[G]iven
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, it makes sense that the matter of venue should be resolved as soon as possible before
the trial itself.” 

. Furthermore, the court reasoned,
“[R]equiring 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.” 

         Defendant argues that Mills implies an unfairness
exception to the waiver of venue rule it sets out. Defendant
points to the court’s approving citation to Washington State
law, specifically the case State v. Dent, 123 Wash2d 467, 479,

 (1994), to support that argument. Mills, 

. Defendant claims that because Washington State
law and Dent articulate a possible exception in instances
where the defendant only learns of a venue issue after trial
has begun, the Oregon Supreme Court implicitly adopted
the same rule. Additionally, defendant argues that the
court created an exception to waiver based on “unfairness”
because the Mills court determined that it would be unfair
to hold that the defendant had waived his venue challenge
by not raising the issue pretrial given that Mills was overruling prior law that did allow the defendant to raise his
venue challenge when he did. See 

.
         We disagree with defendant’s reading of Mills. To
illustrate how waiver of venue should be treated going forward, the Mills court cited a Washington State Supreme
70                                           State v. Palmore

Court decision, Dent, approving of how Washington’s “constitutional venue guarantee generally requires a defendant
to raise the issue of venue before trial begins.” 

 at 372
(citing Dent, 123 Wash2d at 479). While Dent expressly discussed potential factual and statutory exceptions to the
requirement to raise venue pretrial, Dent, 123 Wash2d at
480, the Mills court did not address, let alone adopt, the
exceptions laid out in Dent, nor suggest that any exception
Dent discussed—in dictum—would be applicable in Oregon,
see Mills, 

.
         We also conclude that the facts in this case would not
give rise to such an exception even if it existed. Defendant
claims that he did not have the knowledge necessary to
raise a venue challenge until he heard CK testify and identify the November 2 incident as taking place in Gresham,
across the county line. But defendant and his counsel did
have the information necessary to gather that knowledge
before trial. Defendant had access to the video of the incident, grand jury testimony identifying the names of the
stores where the incidents took place well before trial. In
such circumstances, where defendant had months to investigate and clarify the locations in the discovery he was provided, we cannot say that fairness would dictate allowing an
exception to the requirement that he raise the venue issue
before trial, even if we were to conclude that Mills might
allow for such an exception.
        Affirmed.