State v. Mills

350 October 17, 2013 No. 52

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Petitioner on Review,

v.

KENNETH HERBERT MILLS,

Respondent on Review.

(CC D100632T; CA A145446; SC S060485)

En Banc

On review from the Court of Appeals.*

Argued and submitted March 12, 2013 at Willamette

University College of Law, Salem.

Ryan Kahn, Assistant Attorney General, Salem, argued

the cause and filed the brief for petitioner on review. With

him on the brief were Ellen F. Rosenblum, Attorney General,

and Anna M. Joyce, Solicitor General.

Morgen E. Daniels, Deputy Public Defender, Salem,

argued the cause and filed the brief for respondent on review.

With her on the brief was Peter Gartlan, Chief Defender,

Office of Public Defense Services.

LANDAU, J.

The decision of the Court of Appeals is reversed. The judg-

ment of the circuit court is reversed, and the case is remanded

to the circuit court for further proceedings.

Defendant moved for a judgment of acquittal, arguing that the state failed to

meet its burden to prove venue by not offering sufficient evidence that his crime

occurred in Washington County. The trial court denied defendant’s motion, and

the Court of Appeals reversed. Held: Venue is not a material allegation required

to be proved under Article I, section 11, of the Oregon Constitution.

The decision of the Court of Appeals is reversed. The judgment of the circuit

court is reversed, and the case is remanded to the circuit court for further

proceedings.

______________

* Appeal from Washington County Circuit Court, Michael J. McElligott,

Judge. 248 Or App 648, 274 P3d 230 (2012).

Cite as 354 Or 350 (2013) 351

LANDAU, J.

Article I, section 11, of the Oregon Constitution pro-

vides that, among other things, “[i]n all criminal prosecu-

tions, the accused shall have the right to public trial by an

impartial jury in the county in which the offense shall have

been committed.” At issue in this case is whether that provi-

sion implicitly requires the state to treat the location where

the offense was committed as a material allegation, which it

must prove beyond a reasonable doubt. The state contends

that nothing in the wording of Article I, section 11, requires

such proof. In the state’s view, the constitution merely

grants a defendant a right to object—or waive objection—

to improper venue, and in this case defendant waived that

right by failing to assert it before trial. Defendant argues

that, although the state is correct that Article I, section 11,

itself does not say anything about requiring proof of venue

as a part of the state’s case, this court’s cases nevertheless

have read the section to impose that requirement, and, in

this case, the state failed to satisfy it.

The Court of Appeals, adhering to those cases, con-

cluded that the state was required to establish venue beyond

a reasonable doubt and that, in this case, the state failed

to meet that burden. State v. Mills, 248 Or App 648, 274

P3d 230 (2012). The court consequently reversed the judg-

ment of the trial court, which had rested on that court’s

conclusion that the state’s proof of venue was adequate. We

conclude that our earlier cases were mistaken in reading

Article I, section 11, to require the state to prove venue as

a material allegation. The venue guarantee of that constitu-

tional provision recognizes a right to a trial in a particular

place, which right must be asserted before trial. We further

conclude, however, that it would be unfair to hold that defen-

dant in this case forfeited that right, given that, under the

law at the time of trial, he was permitted to raise the issue

during trial. We therefore reverse the decision of the Court

of Appeals, reverse the judgment of the circuit court, and

remand for further proceedings.

I. FACTS

The relevant facts are few and undisputed. A City

of North Plains police officer determined that defendant was

352 State v. Mills

driving a vehicle at 80 miles per hour near milepost 57 on

Highway 26. The officer pursued defendant and stopped him

near milepost 56. The officer asked defendant for his license,

and defendant admitted that his license was suspended.

The state charged defendant with driving while his

license was revoked. ORS 811.182. Defendant waived a jury,

and the case was tried to the court. After the state rested,

defendant moved for a judgment of acquittal, arguing that

the state had failed to prove beyond a reasonable doubt

that he had committed the offense in Washington County.

The state argued that the evidence was sufficient to per-

mit a reasonable factfinder to determine that defendant had

committed the offense in North Plains, between mileposts

56 and 57 on Highway 26, all of which are located in

Washington County. The trial court agreed with the state,

denied defendant’s motion, and ultimately convicted defen-

dant of the charged offense.

Defendant appealed, arguing that the facts adduced

at trial were insufficient to satisfy the state’s burden of prov-

ing venue beyond a reasonable doubt. The state first argued

that venue should not be treated as a material allegation

of an indictment that must be proved beyond a reasonable

doubt. In the alternative, the state argued that the evidence

that it had provided at trial sufficed to meet that burden.

The Court of Appeals reversed. The court first rejected

the state’s argument that venue should not be treated as

a material element of the state’s case, concluding that the

argument was foreclosed by this court’s contrary case law.

248 Or App at 651 n 1. The court also rejected the state’s

argument about the sufficiency of the evidence, concluding

that it “would require speculation for a factfinder to infer

that North Plains or mileposts 56 and 57 on Highway 26 are

in Washington County.” Id. at 653.

II. ANALYSIS

On review, the state renews its argument that it should

not be required to prove venue as a material allegation. The

state acknowledges that this court has reached a contrary

conclusion in a number of decisions. According to the state,

we should reconsider those decisions because none of them

Cite as 354 Or 350 (2013) 353

reflects any analysis. All simply state the conclusion that

Article I, section 11, requires the state to treat venue as a

material allegation, which, the state notes, Article I, section

11, does not actually say. In that regard, the state observes

that Article I, section 11, declares a number of different

rights—including a public trial, an impartial jury, a copy of

the charging instrument, and the ability to meet witnesses

face to face—none of which requires the state to prove any-

thing as part of its case. The state contends that it makes no

sense to select one of those rights and treat it as a material

allegation that must be affirmatively proved at trial.

For his part, defendant acknowledges the state’s

point that the bare text of Article I, section 11, does not say

anything about treating venue as a material allegation that

the state must prove beyond a reasonable doubt:

“It is true that nothing in the plain text of section 11

requires the state to prove to the jury that a defendant’s

trial is public or that the jury is impartial. Likewise nothing

in the text demands that the prosecution prove beyond a

reasonable doubt that the crime took place in the county

alleged in the charging document.”

Defendant nevertheless maintains that the constitution must

be understood implicitly to have incorporated that require-

ment. According to defendant, in light of the universal

common-law view that venue was a material allegation that

the state was required to prove, Article I, section 11, should

be understood to have incorporated that common-law rule.

At all events, defendant continues, that has been the manner

in which this court has long construed the state constitu-

tional venue guarantee, and that line of cases is controlling.

The parties’ arguments thus require us to determine

the meaning of a provision of the original state constitution,

which we accomplish by examining the text of the provision

in context, the historical circumstances of the adoption of

the provision, and the case law that has construed it. Priest

v. Pearce, 314 Or 411, 415-16, 840 P2d 65 (1992). It is often

stated that our goal is to determine the meaning most likely

intended or understood by the framers of the constitution.

See e.g., Doe v. Corp. of Presiding Bishop, 352 Or 77, 87, 280

P3d 377 (2012) (in interpreting the constitution, the court

354 State v. Mills

“attempt[s] to understand the provision, if possible, as the

framers would have understood it”). That should not be under-

stood to mean that the purpose of the Priest analysis is to

fossilize the meaning of the state constitution so that it sig-

nifies no more than what it would have been understood to

signify when adopted in the mid-nineteenth century. State

v. Davis, 350 Or 440, 446, 256 P3d 1075 (2011) (“The pur-

pose of that analysis is not to freeze the meaning of the state

constitution in the mid-nineteenth century.”). Instead, as we

have more recently explained, our goal is to determine the

meaning of the constitutional wording, informed by general

principles that the framers would have understood were

being advanced by the adoption of the constitution. State v.

Savastano, 354 Or 64, 72, ___ P3d ___ (2013).

A.  Textual Analysis

We begin with the text of Article I, section 11, which

provides:

“In all criminal prosecutions, the accused shall have the

right to public trial by an impartial jury in the county in

which the offen[s]e shall have been committed; to be heard

by himself and counsel; to demand the nature and cause

of the accusation against him, and to have a copy thereof;

to meet the witnesses face to face, and to have compulsory

process for obtaining witnesses in his favor.”

Or Const, Art I, § 11 (1857).1 The phrasing of that section is

significant in at least two respects that are pertinent to the

issue in this case.

First, as the state correctly observes and defendant

concedes, nothing in the wording of Article I, section 11, itself

says anything about requiring the state to prove anything,

much less requiring the state to prove the location of the

commission of the offense as a material allegation beyond a

reasonable doubt. By its terms, the constitutional provision

guarantees an accused in a criminal proceeding a right

to have the trial occur in a particular place, that is, “the

county in which the offen[s]e shall have been committed.” It

does not specify anything about elements of proof.

1

Article I, section 11, was amended in 1932 and 1934 by adding other guaran-

tees concerning jury verdicts in first-degree murder trials.

Cite as 354 Or 350 (2013) 355

Second, and relatedly, nothing else in Article I, sec-

tion 11, says anything about matters of proof. See Davis, 350

Or at 463-64 (particular clauses of Article I, section 11, must

be construed in the context of the provision as a whole). To

the contrary, the provision lists “a panoply of trial-related

rights,” State v. Harrell/Wilson, 353 Or 247, 262, 297 P3d

461 (2013), that an accused in a criminal proceeding may

assert or waive: the right to a public trial, to an impartial

jury, to a trial in the county in which the offense was com-

mitted, to be heard by defendant or counsel, to demand the

nature and cause of the accusation, to have a copy of the

accusation, to meet witnesses face to face, and to have com-

pulsory process. Each of those rights pertains to the conduct

of a criminal trial. None pertains to matters of substantive

proof. See generally Wayne R. LaFave, et al., 4 Criminal

Procedure § 16.1(g), 744 n 241 (3d ed 2007) (observing that

those courts reading constitutional venue guarantees to

require proof of venue “have not explained why the prose-

cution bears an obligation to prove at trial that the [venue]

prerequisite is met and not that other constitutional prereq-

uisites are met (e.g., that the jury is impartial and that the

case was brought to trial promptly enough * * *)”).

Notwithstanding the fact that there are no words

that—at least by themselves—could reasonably be construed

to create a requirement of proof, defendant suggests that

we should understand Article I, section 11, to function as a

“synecdoche.” A “synecdoche” refers to a rhetorical “figure

of speech by which a part is put for the whole.” Webster’s

Third New Int’l Dictionary 2320 (unabridged ed 2002). In

defendant’s view, the reference to the subject of venue in

Article I, section 11, can fairly be seen as a “marker” that

implicitly incorporates not only a right to a trial in a partic-

ular place, as the provision actually states, but also a right

to require the state to prove the location of the commission

of the offense as a material element of the offense itself.

As other courts have observed, the rhetorical device

of synecdoche is ill-suited for application to matters of

legal interpretation. See, e.g., Reno v. American-Arab Anti-

Discrimination Committee, 525 US 471, 482, 119 S Ct 936,

142 L Ed 2d 940 (1999) (“Not because Congress is too

356 State v. Mills

unpoetic to use synecdoche, but because that literary device

is incompatible with the need for precision in legislative

drafting.”). That is because of the singular importance of

the words included in—or omitted from—a given provision.

It is simply not the province of the court to rewrite the text of

the constitution to supply a provision that was not included.

That is not a matter of fastidious formalism. As this

court has noted on many occasions, in construing the Oregon

Constitution, the “best evidence” of what the framers of a

constitutional provision intended to mean is the wording of

the provision itself. See, e.g., Harrell, 353 Or at 255 (“[t]he

best evidence of the voters’ intent is the text and context of

the provision itself”); Li v. State of Oregon, 338 Or 376, 388,

110 P3d 91 (2005) (“the text of the constitutional provision

itself provides the best evidence of the voters’ intent”). Only

the text of the constitution received the consideration and

approval of the voters who approved it, giving it the effect

of law. Cf. State v. Gaines, 346 Or 160, 171, 206 P3d 1042

(2009) (“there is no more persuasive evidence of the intent

of the legislature” than a statute’s text because “[o]nly the

text of a statute receives the consideration and approval of

a majority of the members of the legislature, as required

to have the effect of law”). Consequently, courts are obliged

to respect not only what constitutional provisions state,

but also what they do not. See, e.g., George v. Courtney, 344

Or 76, 85-86, 176 P3d 1265 (2008) (declining to read into

Article IV, section 10a, limitations on legislative authority

that are not stated in its text).

Aside from that, the rhetorical device of synecdoche

assumes a well-understood relationship between the part

actually stated and the whole that is unstated. The classic

examples are references to body parts—“head count,”

“counting noses,” “all hands”—to connote whole persons, ref-

erences to sailing ships as “sails,” and the like. In this case,

the relationship between what Article I, section 11, says and

what defendant suggests it implicitly signifies is not at all

so clear.

Defendant nevertheless argues that the connection

between what Article I, section 11, says and what it should

Cite as 354 Or 350 (2013) 357

be taken to mean becomes clearer when the historical cir-

cumstances of the adoption of the provision are taken into

account. We turn to consideration of those circumstances.

B.  Historical Circumstances

In defendant’s view, at the time of the adoption

of the Oregon Constitution in 1857, the “dominant rule in

force around the country” required the state to prove venue

as a material element of its case. In support, defendant

cites nineteenth-century treatises and some three-dozen

examples of mid-nineteenth century trial and appellate

court decisions, each of which refers to the prosecution’s

obligation to prove venue as part of its substantive case. In

that context, he contends, there can be “little doubt that [the

framers] intended section 11 to embody that rule.”

The problem with defendant’s argument is that it

conflates two distinct legal rules—the common-law rule

requiring proof of venue to establish the jurisdiction of crim-

inal courts and a defendant’s constitutional right to insist

on trial where the crime was committed. The two rules were

derived from different historical sources and were developed

to accomplish different purposes.

1.  The Common-Law Rules of Venue and Vicinage

At common law, it was long the general rule that

proof of venue was necessary to establish the jurisdiction of

the court presiding over the criminal trial. The rule had its

roots in early notions about the authority of juries, which was

limited to the particular communities from which they were

selected. See Allan R. Stein, Forum Non Conveniens and

the Redundancy of Court-Access Doctrine, 133 U Pa L Rev

781, 798 (1985) (“The earliest venue rules grew out of the

jury system.”).

The first jurors were witnesses selected precisely

because of their familiarity with the locality and its inhabi-

tants. See generally John Marshall Mitnick, From Neighbor-

Witness to Judge of Proofs: The Transformation of the

English Civil Juror, 32 Am J Legal Hist 201 (1988). As Coke

358 State v. Mills

explained in his First Institutes, jurors were drawn from the

vicinity of the crime—the “vicinage”—because “the inhab-

itants whereof may have the better and more certaine

knowledge of the fact.” 1 Sir Edward Coke, The First Part of

the Institutes of the Laws of England *125a.

The authority of jurors stopped at the bounds of the

county from which they had been appointed. See generally

Theodore F.T. Plucknett, A Concise History of the Common

Law 127 (1956) (“[The jury’s] object was either to present

the suspicions of the countryside, or, in the case of a petty

jury, to express its final opinion. Consequently, the jury as

a whole must come from the county concerned.”). They had

no power to “take knowledge” of acts or events that might

have taken place beyond the county boundaries. See Act of

Parliament, 1548, 2 & 3 Edw. 6, ch. 24 (Eng.) (jurors under

common law previously could “take no knowledge” of events

in other counties); see also Albert Levitt, Jurisdiction over

Crimes: The Territorial Commission Theory, 16 J Am Inst

Crim L & Criminology 316, 327-28 (1925) (“The inquisitorial

range of the jury was limited to the territorial area inhab-

ited by the community.”); Glanville Williams, Venue and the

Ambit of Criminal Law, 81 L Q Rev 276, 276 (1965) (“The

ancient requirement of venue meant in effect that the juris-

diction of each court of assize was limited to its own county;

and the criminal courts as a whole were therefore limited

to what occurred in ‘the bodies’ of the counties[.]’ ”). Indeed,

a jury’s pronouncement on matters that took place beyond

county boundaries was considered grounds for a mistrial.

Over time, the role of juries shifted from that of

interested witnesses to neutral and detached fact finders.

But assumptions about their underlying authority remained

unaltered: The authority of jurors did not go beyond the

boundaries of the county from which they were selected. See

generally LaFave, 4 Criminal Procedure § 16.1(c) (common-

law venue rule “is commonly traced to the use of the early

jury as a factfinding body that relied upon its own knowl-

edge”). Consequently, to establish the jury’s authority and

thus avoid a later mistrial, prosecutors were required to

prove that venue was proper.

Cite as 354 Or 350 (2013) 359

The rule became a well-settled principle of nineteenth-

century common-law criminal practice. See, e.g., J. Chitty,

The Criminal Law 557-58 (1819) (“The prosecutor must in

general be prepared to show that the offense was committed

in the county where the venue is laid.”). But the rule was

a matter of jurisdiction, not of individual right. Thus, for

example, Wharton’s treatise on American criminal law stated

that “venue must correspond with the jurisdiction of the

court.” Francis Wharton, 2 A Treatise on the Criminal Law

of the United States § 277 (1857). “It is sufficient,” Wharton

explained, “to prove that [the facts] occurred within the

county or other extent of the court’s jurisdiction, otherwise

the defendant must be acquitted.” Id. § 601.2

The cases that defendant in this case proffers to this

court illustrate the point. Of the several dozen early- to mid-

nineteenth century cases that defendant cites, not one concerns

a state constitutional right to a jury trial in a particular place.

All but one concern the common-law rule that venue must

be proved to establish the court’s jurisdiction and the jury’s

authority. As the North Carolina Supreme Court explained

in State v. Fish, 26 NC 219 (1844), “[a]n indictment states the

place where the offen[s]e was committed, to enable the court

to see that it is within its jurisdiction. *  * The jurisdiction

*

of crimes is local, and generally the Superior Court of a

particular county is restricted to offen[s]es committed within

that county.” Id. at 220.

In Turner v. State, 28 Miss 684 (1855), for another

example, the plaintiff was convicted of manslaughter in

Yazoo County. On appeal, he argued that the state had

failed to establish venue, and the Mississippi High Court of

Errors and Appeals agreed, explaining:

“[I]t is very clear that the proof was insufficient. There was

no evidence offered, either direct or circumstantial, which

showed that the death occurred in the county of Yazoo, in

2

As LaFave explains, it was common for states not to give all their trial courts

authority to try the full range of violations of state criminal law. Some states

allocated different authority to different courts based on the nature or level of

offense, while others divided courts into “jurisdictional territories,” measured by

the county or municipal boundaries of their judicial districts. LaFave, 4 Criminal

Procedure § 16.1(a). Indeed, that practice is common to this day in states that have

not adopted unified state judicial systems. Id.

360 State v. Mills

which the bill of indictment was preferred. This was essen-

tial to give the circuit court of that county jurisdiction.”

Id. at 685. Similarly, in Holeman v. State, 13 Ark 105 (1852),

the defendant was convicted of larceny. On appeal, she

argued that the state had failed to establish venue, and

the Arkansas Supreme Court agreed, explaining that,

“[t]here is an utter failure in the proof as to the place where

the supposed offense was committed. This would of itself

constitute a fatal objection to the judgment, as without such

proof there is a manifest defect of jurisdiction.” Id. at 106.3

The one exception, if it may be called that, is

Mitchum v. State, 11 Ga 615 (1852), which was controlled by

a constitutional provision expressly providing that the crim-

inal jurisdiction of the superior courts extended only to the

county in which the crime was committed. In that context,

the court noted that, “to give jurisdiction, therefore, it was

necessary to prove that [the crime] was committed in the

County where the Court was sitting.” Id. at 616.

2.  The Constitutional Venue Right

Federal and state constitutional provisions con-

cerning venue had a different source and were directed at a

different concern. As we have noted, the rule that criminal

trials must take place where the offense occurred (venue)

and that juries must be drawn from that area (vicinage)

took root in this country early on. In the years leading up

to the American Revolution, however, tensions between the

colonies—Massachusetts, in particular—and the British

authorities led Parliament first to denounce, in 1768, “dar-

ing insults offered to his Majesty’s authority, and audacious

usurpations of the powers of government” and later to adopt,

in 1769, a resolution requiring the trial of such treasonous

acts in England. See generally William Wirt Blume, The

Place of Trial of Criminal Cases, 43 Mich L Rev 59, 62-66

3

See also Vaughan v. State, 11 Miss 553 (1844) (“It is scarcely necessary to add,

that the offence must be proved to have been committed in the county, as charged

in the indictment, in order to bring it within the jurisdiction of the Court.”); State v.

Chaney, 43 SCL 438 (1856) (rejecting, based on sufficiency of evidence, defendant’s

asserted “defect in the evidence to show[ ] that the offen[s]e was perpetrated in the

jurisdiction”); Commonwealth v. Heikes, 26 Pa 513 (1856) (“As a general rule, place

is only essential upon the question of jurisdiction.”).

Cite as 354 Or 350 (2013) 361

(1944) (detailing history).4 The problem—from the British

point of view—was that colonial juries “all but nullified the

law of seditious libel in the colonies.” Albert W. Alschuler &

Andrew G. Deiss, A Brief History of the Criminal Jury in the

United States, 61 U Chi L Rev 867, 874 (1994).

Reaction from the colonies was swift. The Virginia

House of Burgesses, after hearing the news of Parliament’s

actions, adopted resolutions, known as the “Virginia Resolves,”

declaring that

“

‘all Trials for Treason, Misprison of Treason, or for any

Felony or Crime whatsoever, committed and done in this

his Majesty’s said Colony and Dominion, by any Person or

Persons residing therein, ought of Right to be had, and con-

ducted in and before his Majesty’s Courts, held within the

said Colony.”

Blume, 43 Mich L Rev at 64. Similar resolutions from other

colonies soon followed. Id. at 63-65. Eventually, the Declaration

of Independence itself denounced King George III “for trans-

porting us beyond Seas, to be tried for pretended offences.”

The frustration of the colonists with the British

practice of transporting those accused of treason to England

for trial led to the inclusion of a venue provision in the

United States Constitution, Article III, section 2, which

requires that the “Trial of all Crimes *  * shall be held in

*

the State where the said Crimes shall have been committed.”

In addition, the Sixth Amendment includes a vicinage pro-

vision, guaranteeing that, in “all criminal prosecutions, the

accused shall enjoy the right to a speedy and public trial, by

an impartial jury of the State and district wherein the crime

shall have been committed.”

It is widely acknowledged that both those provi-

sions grew out of the framers’ concerns with the British

4

Specifically, Parliament voted to revive a statute from the days of Henry

VIII, which authorized trial for treason committed outside the “realm” to be tried

before the King’s Bench, in England. See generally Drew L. Kershen, Vicinage, 29

Okla L Rev 801, 805-07 (1976). In 1772 and 1774, Parliament again passed laws in

response to its dissatisfaction with the way its criminal laws were being enforced

in colonial courts. One, 12 Geo III, c. 24 (1772), provided that persons charged with

destroying shipping equipment and supplies outside the realm could be tried in

England. The other, 14 Geo III, c. 39 (1774), provided that persons charged with

certain capital crimes would also be held in England.

362 State v. Mills

practice of trying colonists in distant England. See gener-

ally Charles Alan Wright & Peter J. Henning, 2 Federal

Practice and Procedure § 301 (4th ed 2009) (tracing history

of federal constitutional venue and vicinage provisions to

Virginia Resolves and reaction to deportation of colonists to

England for trial); Comment, Multi-Venue and the Obscenity

Statutes, 115 U Pa L Rev 399, 413 (1967) (“the dangers the

framers sought to guard against were clearly perceived” as

responding to “a recent history of forced deportations to dis-

tant places for trial”). Their purpose was avoiding hardship

and inconvenience. As the United States Supreme Court

explained in Hyde v. Shine, 199 US 62, 25 S Ct 760, 50 L Ed

90 (1905),

“we do not wish to be understood as approving the practice

of indicting citizens of distant states in the courts of this

District, where an indictment will lie in the state of the

domicil[e] of such person, unless in exceptional cases, where

the circumstances seem to demand that this course shall

be taken. To require a citizen to undertake a long journey

across the continent to face his accusers, and to incur the

expense of taking his witnesses, and of employing counsel

in a distant city, involves a serious hardship, to which he

ought not to be subjected if the case can be tried in a court

of his own jurisdiction.”

Id. at 78. There was also concern that requiring an accused

to travel great distances for trial posed a threat to a fair

trial. Kershen, 29 Okla L Rev at 808 (“it seems clear that

limitation of venue was considered to be necessary to insure

a fair trial for persons accused of crime”).

State constitutional venue and vicinage guarantees

were largely modeled after the Sixth Amendment. See Blume,

43 Mich L Rev at 67 (early state constitutional venue pro-

visions “were products of the body of thought which produced

the Federal Constitution and together with the provisions of

that instrument established the patterns of language used

in the later constitutions”). And their concern likewise was

the hardship, inconvenience, and unfairness of requiring

defendants to travel great distances for trial. Id. at 78 (“The

problem of the early constitution writers was to guard

against the dangers of transportation[.]”).

Cite as 354 Or 350 (2013) 363

The constitutional venue and vicinage guarantees

were understood as rights of a criminal defendant, which

the defendant could raise or waive. Nothing in the historical

record suggests that the federal constitutional jury guaran-

tees were designed to preserve common-law notions of local

criminal court jurisdiction. Likewise, nothing in the histor-

ical record suggests that the constitutional guarantees were

designed, in effect, to codify common-law criminal pleading

and proof requirements.

That is borne out by the nineteenth-century case law.

As we have noted above, a number of states’ appellate court

decisions declare that venue must be pleaded and proven.

But those decisions are common-law, not constitutional,

decisions. The only mention of the constitutional venue right

in antebellum cases concerns whether defendants properly

invoked or waived their constitutional venue right by moving

for a change of venue or the constitutionality of statutes

authorizing trial in places other than the county in which

the crime was committed. As the Missouri Supreme Court

explained in State v. Wetherford, 25 Mo 439, 440 (1857),

“[t]he constitutional right of trial by jury of the vicinage

is intended for the benefit and protection of the accused,”

which could be “waived, as it was by defendant, and a change

of venue was procured.”5 Indeed, defendant has not cited a

single antebellum state court decision referring to the state

constitutional venue right as the source of a requirement

that the state prove venue as part of its substantive case,

and we are aware of none.

3.  Adoption of the Oregon Constitution

It was in that context that the framers of the Oregon

Constitution drafted and adopted Article I, section 11. The

provision was adopted as part of the original state constitu-

tion in 1857, without recorded debate or discussion. Charles

5

See also Ex parte Banks, 28 Ala 28 (1856) (change of venue); Starry v. Winning,

7 Ind 311 (1855) (constitutionality of statute providing for change of venue); Manly

v. State, 7 Md 135 (1854) (change of venue); State v. Alverez, 7 La Ann 283 (1852)

(change of venue); Ex parte Block, 11 Ark 281 (1850) (constitutionality of statute

providing for change of venue); State v. Burris, 4 Harr 582 (Del 1847) (change of

venue); Steerman v. State, 10 Mo 503 (1847) (constitutionality of statute authoriz-

ing change of venue); Dula v. State, 16 Tenn 511 (1835) (constitutionality of statute

authorizing change of venue).

364 State v. Mills

Henry Carey ed., The Oregon Constitution and Proceedings

and Debates of the Constitutional Convention of 1857, 310

(1926); see also Claudia Burton & Andrew Grade, A Legislative

History of the Oregon Constitution of 1857—Part I (Articles I

and II), 37 Will L Rev 469, 518 (2001) (Article I, section 11,

adopted without reported discussion or debate).

Its wording appears to have been derived from

Article I, section 13, of the Indiana Constitution of 1851.

W.C. Palmer, The Sources of the Oregon Constitution, 5 Or

L Rev 200, 201 (1926). The records of the constitutional con-

vention that produced the 1851 Indiana Constitution contain

no trace of debate or discussion concerning that state’s con-

stitutional venue guarantee, either. See The Report of the

Debates and Proceedings of the Convention for the Revision

of the Constitution of Indiana 187 (1850).

Case law about venue from Indiana before, and even

after, the time of the adoption of the Oregon Constitution

is consistent with the other antebellum cases that we have

mentioned, in that it consistently refers to the rule requiring

proof of venue as a common-law rule pertaining to a local

court’s criminal jurisdiction. In Jackson v. State, 19 Ind 312

(1862), for example, the defendant was charged with unlaw-

ful sale of intoxicating liquor in Grant County, Indiana. At

trial, the evidence showed that the transaction took place “in

Grant County,” without reference to any state. The Indiana

Supreme Court concluded that the evidence was insufficient

to establish venue because “the evidence does not show that

the sale was within the jurisdiction of the Court.” Id. at 313.

The decision does not mention the Indiana Constitution. See

also Snyder v. State, 5 Ind 194 (1854) (citing only common-

law venue rule); Harker v. State, 8 Blackf 540 (1847) (same).

4. Significance of the Historical Record

The historical context of the venue clause of Article I,

section 11, is as significant for what it does not show as for

what it shows. It makes clear that defendant is incorrect in

asserting that there can be “little doubt” that the framers,

in adopting the venue guarantee, intended to adopt the

common-law rule requiring the state to prove venue as a

material element of its case. There is actually significant

doubt about the assertion. As we have noted, the framers

Cite as 354 Or 350 (2013) 365

might have understood that the common law required the

state to establish venue as a jurisdictional prerequisite to

prosecution in a particular county court. But there is a com-

plete absence of evidence that they would have understood

that requirement to be connected in any way to the constitu-

tional venue guarantee.

We are left, then, with constitutional wording that

even defendant concedes says nothing about requiring proof

of venue as a material element of the state’s case, as well

as contemporaneous history that fails even to hint at the

possibility that the constitution was intended to have that

effect. That leads to the obvious question of how this court

came to hold—as defendant correctly observes that it did—

that the venue guarantee of Article I, section 11, nevertheless

has the effect of constitutionalizing the common-law rule of

proof. To address that question, we turn to an examination

of this court’s case law construing Article I, section 11.

C.  Oregon Case Law

There are only a handful of such cases before the

turn of the twentieth century. Consistently with the case

law from other jurisdictions that we have described, all dis-

cuss proof of venue solely in reference to the common-law

rule and without mentioning Article I, section 11.

In State v. Johnson, 2 Or 115 (1864), the defendant

stole a horse in the Washington territory and rode it into

Wasco County, Oregon, where he was apprehended and

charged with larceny. At trial in Wasco County, he asked

the court to instruct the jury that, if it believed that he had

stolen the horse in the Washington territory, it could not

find him guilty of larceny, because venue was an element of

the offense. The trial court declined to so instruct the jury,

and the defendant was convicted. On appeal, he argued that

the trial court had erred in failing to deliver his requested

venue instruction. This court affirmed on the ground that,

at common law, the offense of larceny “continues and accom-

panies the thing stolen, from one State to another, as it does

from one county to another in the same State.” Id. at 116.

The court assumed the applicability of the common-law rule

that venue must be proved, but ultimately held that the rule

had been satisfied by proof that the larceny had continued

366 State v. Mills

into Wasco County, where the trial occurred. There was no

mention of Article I, section 11.

To similar effect is State v. Barnett, 15 Or 77, 14

P 737 (1887). There, the defendant came into possession of

stolen funds in Umatilla County and then sent the money to

a bank in Multnomah County. When authorities discovered

that the money was not the defendant’s, he was charged

with larceny and convicted of that offense in Multnomah

County. The defendant argued on appeal that the court sit-

ting in Multnomah County “was without jurisdiction to try

the defendant,” because the larceny took place outside of

Multnomah County. This court again cited the common-law

rule that larceny follows the stolen property. Id. at 79. As in

Johnson, the court in Barnett assumed the applicability of

the common-law rule requiring proof of venue as necessary

to establishing the trial court’s jurisdiction without mention-

ing Article I, section 11. See also State v. Chew Muck You,

20 Or 215, 216-21, 25 P 355 (1890) (state satisfied common-

law rule requiring proof of venue in larceny case).

In State v. Branton, 33 Or 533, 56 P 267 (1899),

the defendant was charged with murder and convicted of

the offense. On appeal he challenged, among other things,

the adequacy of proof as to venue. The legislature recently

had altered the county lines close to where the killing had

occurred, and there was some dispute as to which county

was the site of the murder. The court resolved the question

on the evidence based on the common-law rule, ultimately

concluding that the facts were sufficient to establish that

“the court had jurisdiction.” Id. at 545. The court’s opinion

elsewhere did mention Article I, section 11, but only in refer-

ence to the defendant’s separate contention that he had been

deprived of his constitutional right to demand the nature

and cause of the action against him. Id. at 540-41. There

was no reference to Article I, section 11, in connection with

the disposition of the defendant’s arguments about venue.

The first mention of Article I, section 11, as a source

of the requirement that the state prove venue as a material

allegation occurred in the 1923 decision in State v. Casey,

108 Or 386, 213 P 771 (1923). In that case, the defendant

was charged with and convicted of murder in Multnomah

Cite as 354 Or 350 (2013) 367

County. On appeal, he argued, among other things, that the

state had failed to establish venue. The court’s discussion of

that issue, in its entirety, was as follows:

“ ‘In all criminal prosecutions, the accused shall have the

right to public trial * * [*] in the county in which the offense

shall have been committed.’ Section 11, Article I, Const.

“The place where the crime was committed is a material

and jurisdictional allegation contained in the indictment,

which the plea of not guilty made by the defendant puts

at issue and requires that the prosecution prove, beyond a

reasonable doubt.”

Id. at 402-03. Thus, the court’s analysis consisted of a

quotation from Article I, section 11, followed by a single

sentence summarizing what otherwise would appear to be

the common-law rule requiring proof of venue to establish

jurisdiction. There was no explanation or analysis. But the

juxtaposition of the quotation, followed by the statement of

the rule, appeared to suggest that the court—for the first

time—saw a connection between the two.

That, at any rate, is how subsequent cases interpreted

Casey. In State v. Harvey, 117 Or 466, 242 P 440 (1926), the

defendant challenged venue on appeal. The court rejected

the argument, explaining:

“ ‘The accused shall have the right to public trial by an

impartial jury [*  *] in the county in which the offense

*

shall have been committed.’ Or. Const., [A]rt. I, § 11.

“Therefore, the venue of the offense is a material allega-

tion of the complaint and must be proved to the satisfaction

of the jury beyond a reasonable doubt.”

Id. at 471 (emphasis added). The court then reviewed the

evidence and found it sufficient to satisfy the state’s burden.

Id. Thus, in Harvey, the court for the first time explicitly

linked the constitutional venue guarantee of Article I,

section 11, with the common-law rule requiring proof of

venue as a material allegation. But, as in Casey, the court

provided no explanation for that linkage. It simply quoted

the constitution and stated the common-law rule.

After that, the court continued to quote Article I,

section 11, and recite what had earlier been understood to be

368 State v. Mills

a common-law rule requiring proof of venue, usually fol-

lowed by a citation to prior cases doing the same thing.

In State v. Miller, 133 Or 256, 259, 289 P 1063 (1930), for

example, the court noted the defendant’s argument that the

state had failed to prove venue, cited Casey and Harvey, and

simply stated that “[t]he burden of proving the venue as

laid, and beyond a reasonable doubt, is upon the state.”6 In

none of its later venue decisions did the court explain how

the wording of the venue guarantee of Article I, section 11,

had been transformed into a requirement of substantive and

jurisdictional proof.

Moreover, this court’s cases have not been entirely

consistent on the point. In State v. Lehman, 130 Or 132, 279

P 283 (1929), for example, the issue was the constitutional-

ity of a “buffer” statute, by which the legislature provided

that, when a crime has been committed within one mile of

a county line, trial may occur in either county. In that case,

the defendant had been charged and tried in Clackamas

County for selling intoxicating liquor. The evidence at trial

showed that the offense actually had been committed in

Washington County, approximately 1,000 feet from the

Clackamas County boundary. The defendant argued that

the matter should have been dismissed for want of proof of

venue. This court disagreed. The court concluded that the

statute providing for trial somewhere other than where the

offense was actually committed was “not an unreasonable

exercise of legislative discretion.” Id. at 138. The court but-

tressed its conclusion with a quotation from a Wisconsin

Supreme Court decision concerning the intended meaning

of that state’s constitutional venue guarantee, which this

court noted was identical to this state’s guarantee:

“ ‘The object of this provision is to protect the defendant

against a spirit of oppression and tyranny on the part of our

rulers, and against a spirit of violence and vindictiveness on

the part of the people; and also to secure the party accused

6

See also State v. Evans, 143 Or 603, 612-13, 22 P2d 496 (1933) (stating rule

without citing authority); State v. Jones, 240 Or 129, 130-35, 400 P2d 524 (1965)

(citing Casey, Harvey, Miller, and Evans); State v.Cooksey, 242 Or 250, 251-52, 409

P2d 335 (1965) (citing Jones); State v. Hutcheson, 251 Or 589, 591-92, 447 P2d 92

(1968) (citing Cooksey and Jones); State v. Roper, 286 Or 621, 623-30, 595 P2d 1247

(1979); State v. Cervantes, 319 Or 121, 873 P2d 316 (1994) (citing Cooksey and

Jones).

Cite as 354 Or 350 (2013) 369

from being dragged to a trial at a distant part of the State,

away from his friends and witnesses and neighborhood,

and thus to be subject to the verdict of mere strangers, who

may feel no common sympathy, or who may even cherish

animosities or prejudices against him, as well as the neces-

sity of incurring the most oppressive expenses, or perhaps,

even to the inability of procuring the proper witnesses to

establish his innocence.’ ”

Id. at 136 (quoting State v. Robinson, 14 Minn 447, 450 (1869)).

Lehman is anomalous for at least two reasons. First,

if the constitutional venue guarantee embodied the common-

law rule requiring proof that the trial occurred where the

offense took place, it would seem that the result should have

been different. The undisputed evidence in Lehman was

that the offense occurred in Washington County, while the

trial occurred in Clackamas County. Second, the court dis-

missed the defendant’s objections about venue by invoking

the justification for the federal constitutional venue and vic-

inage guarantees, not the common-law rule. See also State v.

Roper, 286 Or 621, 628-29, 595 P2d 1247 (1979) (tracing ori-

gins of constitutional venue guarantee not to common law,

but to the Virginia Resolves and concerns about British depor-

tation of colonists for trial in England).

D.  Stare Decisis

To summarize, our analysis under Priest estab-

lishes that the wording of the venue guarantee of Article I,

section 11, by its terms, expresses a defendant’s right to a

criminal trial in a particular place. It says nothing about

limitations on the jurisdiction of circuit courts or about sub-

stantive proof of criminal offenses or, for that matter, proof

of anything at trial. The context of the venue guarantee—

the other clauses of Article I, section 11—lists other rights

of a criminal defendant, none of which has ever been inter-

preted to require particular proof at trial.

The historical circumstances fail to show that the

framers of the Oregon Constitution would have understood

the venue guarantee of Article I, section 11, to mean some-

thing different from what we have noted that its wording

suggests. The historical record shows only that the fram-

ers would have understood that, while the common law may

370 State v. Mills

have required proof of venue in order to establish the juris-

diction of the trial court, the constitution guaranteed a right

not to be dragged away to a distant place of trial—a right

that would be subject to waiver if not asserted.

This court’s past case law nevertheless has con-

cluded that proof of venue as a material allegation is required

by Article I, section 11. Those cases, however, reached that

conclusion without analysis. Since 1923, the court has sim-

ply stated the conclusion. Certainly, in no case has this

court examined the issue in accordance with the interpre-

tive analysis that Priest requires.

In Stranahan v. Fred Meyer, Inc., 331 Or 38, 53, 11

P3d 228 (2000), this court explained that the question

whether to overrule a prior constitutional decision entails

balancing two competing considerations: stability in the law

and “the need to be able to correct past errors.” Sometimes,

the court said, the need to correct past errors can outweigh

the importance of stability. Id. “This court,” it explained, “is

the body with the ultimate responsibility for construing our

constitution, and, if we err, no other reviewing body can rem-

edy that error.” Id.

Although this court does not lightly overrule an ear-

lier constitutional decision, see Farmers Ins. Co. v. Mowry,

350 Or 686, 693-94, 261 P3d 1 (2011) (reviewing considera-

tions that warrant overruling prior constitutional case law),

it has determined that the need to correct past errors may

outweigh the importance of stability when the application of

the court’s interpretive analysis in Priest demonstrates that

the earlier case or cases find little or no support in the text

or history of a disputed constitutional provision. Stranahan

itself illustrates the point. At issue in that case was whether

the court would adhere to a prior decision, Lloyd Corporation

v. Whiffen, 315 Or 500, 849 P2d 446 (1993) (Whiffen II), which

read Article IV, section 1, of the Oregon Constitution, to

create a right to collect initiative petition signatures on pri-

vate property. The court in Stranahan noted that Whiffen II

had been decided without engaging in the analysis required

by Priest and then proceeded to engage in that analysis.

Stranahan, 331 Or at 55. The court ultimately concluded

that,

Cite as 354 Or 350 (2013) 371

“after considering the text, the relevant case law, and

the history of the initiative and referendum provisions of

Article VI, section I, we have found nothing to support the

conclusion set out in Whiffen II, viz., that persons soliciting

signatures for initiative petitions may do so on certain pri-

vate property over the owner’s objection. We therefore hold

that Article IV, section 1, does not extend so far as to confer

that right. The contrary holding of Whiffen II was error,

and it is disavowed.”

Id. at 65-66.7

In this case, we confront a similar line of cases,

which adopted an interpretation of Article I, section 11, that

even defendant acknowledges finds no support in the word-

ing of the constitution. As we have noted, the prior case law

also finds no support in the historical circumstances of the

adoption of the constitutional venue guarantee. Under the

circumstances, we conclude that it is appropriate to over-

rule Casey, Harvey, and subsequent decisions holding that

the venue guarantee of Article I, section 11, requires the

state to prove venue beyond a reasonable doubt as a mate-

rial allegation of every criminal case.8

Accordingly, we hold that Article I, section 11,

enumerates a defendant’s right to a trial in a particular place:

“the county in which the offense shall have been committed.”

It does not codify the common-law rule requiring the state

to prove venue as a material allegation. The old common-law

rule was one of jurisdiction. The constitutional guarantee is

a matter of personal right, which—like other constitutional

rights—may be forfeited if not timely asserted. Cf. State v.

Steen, 346 Or 143, 151, 206 P3d 614 (2009) (a defendant may

7

See also Savastano, 354 Or at 95-96 (overruling prior constitutional decision

because “application of the court’s methodology in Priest for interpreting consti-

tutional provisions persuades us that [the prior case] *  * finds little support in

*

the text or history” of the constitution); State v. Christian, 354 Or 22, 38-40, 307

P3d 429 (2013) (overruling prior constitutional case law that was not supported

by analysis or explanation); Yancy v. Shatzer, 337 Or 345, 362, 97 P3d 1161 (2004)

(overruling prior case that recognized exception to mootness doctrine “without

undertaking any effort to determine whether such an exception was compatible

with the scope of the judicial power granted under the Oregon Constitution”).

8

Defendant does not argue that, independently of Article I, section 11, there

is a common law proof of venue requirement that survives the adoption of statutes

pertaining to jurisdiction and venue in criminal cases. See, e.g., ORS 131.305 to

131.415.

372 State v. Mills

be precluded from asserting certain constitutional rights not

timely asserted).

There remains the question of when the right must

be asserted to avoid waiver. Courts in other jurisdictions

that do not treat venue as a material allegation that must

be proved at trial require a defendant to put venue at issue

before trial by an appropriate motion; if an issue of fact is

raised by such a motion, it is resolved at a pretrial eviden-

tiary hearing by the court, with the prosecution bearing the

burden of proof. See generally LaFave, 4 Criminal Procedure

§ 16.1(f) (citing cases).9 The Washington Supreme Court,

for example, has concluded that its state’s constitutional

venue guarantee generally requires a defendant to raise the

issue of venue before trial begins—that is, before the jury is

empaneled, in the case of a jury trial, and before the court

begins to hear evidence, in a trial to the court. State v. Dent,

123 Wash 2d 467, 479, 869 P2d 392 (1994).10

9

There is also an issue of the standard of proof, that is, whether the state must

establish venue by a preponderance of the evidence or beyond a reasonable doubt.

Other state courts addressing the issue have split. Some courts hold that the state

must establish venue beyond a reasonable doubt. See, e.g., Bulloch v. State, 293

Ga 179, 187, 744 SE2d 763 (2013) (“Venue is a jurisdictional element of every

crime and the state has the burden of proving venue beyond a reasonable doubt.”);

Peterson v. Houston, 284 Neb 861, 869, 824 NW2d 26 (2012) (“we have held that the

State must prove proper venue beyond a reasonable doubt”); People v. Jones, 219 Ill

2d 1, 33, 845 NE2d 598 (2006) (“[V]enue was a material element of the offense and

the state was required to prove the element beyond a reasonable doubt.”). Others

hold that venue may be established by a preponderance of the evidence. State v.

Roybal, 139 NM 341, 349, 132 P3d 598 (2006) (“[B]ecause venue is not an element

of the crime charged, it may be established by a mere preponderance.”); State v.

Parker, 116 So 3d 744, 749 (La 2013) (“Objections to venue must be raised by a

motion to quash to be ruled on by the court in advance of the trial. At the hearing,

the burden is on the State to prove venue by a preponderance of the evidence.”);

Fulmer v. State, 401 SW3d 305, 317 (Tex App 2013) (“The State bears the burden

of proving venue by a preponderance of the evidence.”). Most of the state courts

concluding that the higher burden of proof applies, however, also hold that venue is

a material allegation or element; conversely, most of those holding that the lesser

standard applies conclude that venue is not a material allegation or element. In

light of our disposition, we need not resolve that question in this case.

10

See also Derry v. Commonwealth, 274 SW3d 439, 442 (Ky 2008) (since venue

is not “jurisdictional,” it is “waived” by failing to raise the issue before trial); State

v. Wood, 596 SW2d 394, 399 (Mo 1980) (“Having proceeded to trial without objec-

tion, appellant waived the issue [of venue].”); State v. Allen, 293 NW2d 16, 18 (Iowa

1980) (“considering first the time for ruling upon a defendant’s venue objection,

we conclude that the defendant must secure a ruling by the trial court before trial

after the parties have had an opportunity for an evidentiary hearing or he waives

the issue of improper venue”); Smith v. State, 116 Md App 43, 53, 695 A2d 575

(1997) (improper venue “must be raised by motion before trial”).

Cite as 354 Or 350 (2013) 373

That seems to us an appropriate requirement. First,

given that the purpose of the right is to protect a defen-

dant 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 possi-

ble before the trial itself. Second, requiring 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.11

We turn, then, to the disposition of this case. Con-

sistently with our holding, the state was not required by

Article I, section 11, to prove that the traffic stop occurred

in Washington County, given that defendant did not raise

the issue of venue until trial already had commenced. Under

the circumstances, however, we conclude that it would be

unfair to defendant to hold that he 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.

Accordingly, we reverse the decision of the Court of

Appeals and reverse the trial court judgment of the circuit

court and remand for further proceedings. If, on remand,

defendant elects not to challenge venue under Article I,

section 11, the trial court judgment must be reinstated. If

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 defendant

Referring to other state cases on matters of criminal trial procedure is not

always helpful, because they are often controlled not by constitutional guaran-

tees but by statutes and rules of criminal procedure. In that regard, we note that

Oregon statutes likewise prescribe requirements for challenging venue in criminal

cases. See generally ORS 131.305 to 131.415. In this case, defendant’s venue chal-

lenge is predicated solely on Article I, section 11. We therefore express no opinion

about the constitutionality, interpretation, or applicability of those statutes.

11

Under traditional analysis of the federal double-jeopardy guarantee, most

courts conclude that dismissal for want of venue does not constitute an acquittal

and therefore does not bar a retrial. See, e.g., Burks v. United States, 437 US 1, 98

S Ct 2141, 57 L Ed 2d 1 (1978). But some state courts have concluded that con-

stitutional double-jeopardy guarantees do preclude a retrial following dismissal

for improper venue. See, e.g., Williams v. State, 634 NE2d 849 (Ind App 1994) (dis-

missal for improper venue “brought an end to the jeopardy which had attached

when the first witness was sworn”).

374 State v. Mills

will have the opportunity to contest—that Washington

County is the appropriate venue. If the court concludes that

the state has met its burden of establishing venue, the judg-

ment of the circuit court must be reinstated.

The decision of the Court of Appeals is reversed.

The judgment of the circuit court is reversed, and the case

is remanded to the circuit court for further proceedings.