State v. Turner , 235 Or. App. 462 ( 2010 )

HASELTON, P. J.

Defendant appeals a judgment of conviction for one count of failure to report as a sex offender, ORS 181.599 (2005).¹ On appeal, defendant assigns error to the trial court’s denial of his motion for judgment of acquittal on the ground that the state failed to prove venue. For the reasons that we will explain, we reverse.

Defendant, a registered sex offender, was tried on stipulated facts as stated by the prosecutor at trial:

“[T]he defendant last reported his residence to be at the Washington County Community Correction Center here in Hillsboro, Washington County, Oregon on April 30th, 2007. He was released from that facility on October 30th, 2007. On that particular date he had a conversation with an employee at that center whereby the employee told him that he needed to register upon his release of his new address.

“In addition in that particular conversation there was mention that he might be living with his brother of Multnomah County, however there was no mention of where this particular residence was and there was no knowledge of where his address was going to be. No one knew where he was going to be living and knew subsequently where he was residing.

“A police officer did an investigation on November 16th, 2007. The defendant had no[t] registered his new address; this was after the ten day grace period the State gives a person to register. And as of December 14th, 2007 the day this was indicted — actually this was indicted in January of’08, the defendant still had not registered and had not updated his new address.”

Of significance, the stipulated facts did not include any information concerning where the offense was committed, where defendant resided, or where defendant was arrested.

Defendant moved for a judgment of acquittal on the ground that the state failed to prove venue. The trial court denied the motion. Defendant appealed.

On appeal, defendant contends that, because venue “is a material allegation that must be proven beyond a reasonable doubt,” the trial court erred in denying his motion for judgment of acquittal where the stipulated facts “were insufficient to prove that venue for defendant’s failure to register existed in Washington County.” The state acknowledges that “[t]he 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.” Nonetheless, the state contends that

“Oregon appellate courts have generally treated venue as a material allegation of the indictment that must be proven beyond a reasonable doubt. However, it would be proper to correct the long-standing confusion regarding the role of venue in criminal trials, both to bring the analysis in line with the framers’ intent and to prevent miscarriages of justice. Oregon courts should cease to treat venue as an element, except in instances where a crime may have occurred outside of this state.”

(Internal quotation marks and citations omitted.)

“In determining whether there is sufficient evidence to support a conviction in a criminal case, we must determine whether, viewing the evidence in the light most favorable to the state, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” State v. Cervantes, 319 Or 121, 125, 873 P2d 316 (1994). As the Supreme Court stated in Cervantes, “Article I, section 11, of the Oregon Constitution guarantees a criminal defendant the right to a trial ‘in the county in which the offense shall have been committed.’ This venue requirement is a material allegation of the indictment that must be proven beyond a reasonable doubt.” Id. at 123.

Here, we agree with defendant and the state that the stipulated facts contained no direct information concerning venue and no information from which venue could be inferred.² Cf. State v. Macnab, 222 Or App 332, 194 P3d 164 (2008) (discussing the use of circumstantial evidence from which venue may be inferred). We also decline the state’s invitation to cease treating venue as a material allegation that must be proved beyond a reasonable doubt. That is so because we remain bound by Supreme Court precedent until such time as that court reconsiders and disavows it. Accordingly, the trial court erred in denying defendant’s motion for judgment of acquittal.

Reversed.

1 ORS 181.599 (2005) provided, in part:

“(1) A person who is required to report as a sex offender and who has knowledge of the reporting requirement commits the crime of failure to report as a sex offender if the person fails, as required by ORS 181.595, 181.596 or 181.597, to:

«S¡! * * * *

“(c) Report following a change of residence * * *[.]”

In turn, ORS 181.595(3)(b)(A) (2005) provided that, after initially reporting as a sex offender, a person was required to report in person “[wlithin 10 days of a change of residence.”

ORS 181.595 was amended in 2009. See Or Laws 2009, ch 204, § 1; Or Laws 2009, ch 713, § 20. Those amendments, however, do not apply in this case. See Or Laws 2009, ch 204, § 10; Or Laws 2009, ch 713, § 24(1). Similarly, ORS 181.599 was amended and certain paragraphs were renumbered in 2009, but those amendments do not apply in this case. See Or Laws 2009, ch 204, §§ 4,10; Or Laws 2009, ch 713, §§ 5, 5a, 24.

2 To the extent that there is some question as to where venue properly lies when a defendant is charged with failure to report as a sex offender, this case does not raise that issue because the state failed to adduce any evidence as to venue.