State v. Williams

64 May 17, 2023 No. 261

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

ALEXANDER TYNELL WILLIAMS,

Defendant-Appellant.

Washington County Circuit Court

20CR10927; A175260

Andrew Erwin, Judge.

Argued and submitted September 27, 2022.

Rond Chananudech, Deputy Public Defender, argued

the cause for appellant. Also on the briefs was Ernest G.

Lannet, Chief Defender, Criminal Appellate Section, Office

of Public Defense Services. Alex Williams filed the supple-

mental 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.

Cite as 326 Or App 64 (2023) 65

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 mis-

treatment, 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 transporta-

tion 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 con-

duct 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 deter-

mined 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 vari-

ety 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.

Cite as 326 Or App 64 (2023) 67

We review questions of subject matter jurisdiction

for errors of law. Wallace v. State ex rel PERB, 245 Or App 16,

18, 263 P3d 1020 (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 juris-

diction over these offenses. Accordingly, under these unusual

procedural circumstances, the trial court was required to

dismiss the case because it lacked subject matter jurisdic-

tion. 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 dis-

miss the case, citing State v. Mills, 354 Or 350, 312 P3d 515

(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 uncer-

tainty 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 investi-

gations 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 defen-

dant’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 loca-

tion 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 chil-

dren] 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 coun-

sel began by stating “agreements or stipulations” that the

parties had made, including that “the state is conceding

Cite as 326 Or App 64 (2023) 69

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 argu-

ment’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 preponder-

ance—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 stipu-

lated 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 eviden-

tiary 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, mean-

ing 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 dis-

miss 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

Cite as 326 Or App 64 (2023) 71

territorial limits.” Wayne R. LaFave, Jerold H. Israel et al.,

4 Criminal Procedure § 16.4(c) (4th ed 2022) (internal foot-

notes omitted). “Conversely, there can be no territorial juris-

diction where conduct and its results both occur outside the

state’s territory.” Id.; see also, e.g., State v. Smith, 421 NW

2d 315, 318 (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 juris-

diction 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 funda-

mental 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, 15 Or 77, 80, 14 P 737 (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 vari-

ous theft-related offenses notwithstanding that some of the

conduct giving rise to the offenses occurred in other juris-

dictions; 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, 2 Or

115, 116 (1864) (holding that larceny is a continuing offense,

allowing conviction based on continued possession of sto-

len 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 geo-

graphic boundaries.

72 State v. Williams

Barnett, 15 Or at 80 (“The offender, who has obtained a felo-

nious possession without the state, cannot bring the prop-

erty stolen or embezzled within the state, with the intent

to appropriate or convert it to his own use, without violat-

ing the laws of this jurisdiction, and rendering him liable

to its punishments.”); State v. Chew Muck You, 20 Or 215,

221, 25 P 355 (1890) (offense “was within the jurisdiction

of the [Oregon] court which tried and convicted” the defen-

dant because one of the conduct elements took place in

Oregon).

Later cases employ similar reasoning. See, e.g., State

v. Olson, 91 Or App 290, 292, 754 P2d 626 (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, 212 US 315, 29 S Ct

383, 53 L Ed 528 (1909). That was true notwithstanding the

fact that Congress had granted the two states “concurrent

jurisdiction” over the area where he was fishing. Id. at 321.

The Court noted that the purpose of the grant of concur-

rent 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 pur-

pose, 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.”

Id. at 320.

Cite as 326 Or App 64 (2023) 73

Nevertheless, the Court held, without extended

explanation, that, notwithstanding the congressional grant

to Oregon of jurisdiction outside its boundaries (to the north-

ern edge of the Columbia), traditional conceptions of territo-

rial 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 pros-

ecuted and punished by the state of Oregon.” Id.; see also

State v. Alexander, 44 Or App 557, 560, 607 P2d 181, aff’d,

289 Or 743, 617 P2d 1376 (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 com-

ponent to those limits. Estate of Michelle Schwarz v. Philip

Morris Inc., 206 Or App 20, 52, 135 P3d 409 (2006), aff’d,

348 Or 442, 235 P3d 668, adh’d to on recons, 349 Or 521, 246

P3d 479 (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 juris-

diction. A state has an interest in protecting its own con-

sumers and its own economy; however, a state does not have

a valid interest under the Due Process Clause in punish-

ing 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 juris-

diction 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 prosecu-

tion under the laws of this state for an offense that the per-

son 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, 324 Or 380, 382-83, 927 P2d

79 (1996) (“Lack of subject matter jurisdiction properly may

be raised for the first time on appeal.” (Internal quotation

marks omitted.)). Defendant argues that territorial jurisdic-

tion 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 territo-

rial 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, 221

US 280, 285, 31 S Ct 558, 55 L Ed 735 (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.

Cite as 326 Or App 64 (2023) 75

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, regard-

less of where the offense takes place. We disagree. Although

the permissible outer limits of a state’s territorial jurisdic-

tion 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 commit-

ted within Oregon’s territorial jurisdiction. Barnett, 15 Or

at 80 (“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, 212 US at 321 (rejecting the Oregon

Supreme Court’s attempt to convict a defendant for con-

duct allowed under Washington law that took place within

Washington’s territorial boundaries, notwithstanding a con-

gressional 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, respec-

tively, intended Oregon courts’ power to be limited by the

principle of territorial jurisdiction.

The state next contends that “territorial jurisdic-

tion 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 ter-

ritorial 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 proceed-

ings that a court may hear and over which the court may

exercise judicial power.” Dept. of Human Services v. C. M. H.,

368 Or 96, 108, 486 P3d 772 (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.”

Id. at 109 (emphasis in original).

We conclude that territorial jurisdiction is a type of

subject matter jurisdiction. It is difficult to think of a prin-

ciple that more clearly addresses “the scope of proceedings

that a court may hear and over which the court may exer-

cise judicial power,” C. M. H., 368 Or at 108, than the prin-

ciple 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 jurisdic-

tional 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 proceed-

ings 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 consti-

tution 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, 262 Or 559, 566, 499 P2d 1309

(1972) (internal quotation marks omitted; uppercase modi-

fied). 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 any-

thing about offenses that do not meet those requirements.

See also Nielsen, 212 US at 321 (Oregon may not prosecute

Cite as 326 Or App 64 (2023) 77

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 exer-

cise authority, they are treated procedurally as presenting

issues of subject matter jurisdiction.”); see also, e.g., People v.

Simon, 25 Cal 4th 1082, 1096, 25 P3d 598, 608 (2001) (not-

ing 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, 238 SW3d 145, 149 (Mo 2007) (“Jurisdictional doc-

trine prevents courts from holding trials when the crime at

issue occurred out of state; a state court lacks the author-

ity to enforce criminal law unless the conduct, or some sub-

stantial portion of it, occurred within the state.”); Smith v.

State, 116 Md App 43, 52-53, 695 A2d 575, 580 (1997) (terri-

torial 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., 368

Or at 109; Webb, 324 Or at 382.

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, 288 Or App 278, 406 P3d 123

(2017), rev den, 362 Or 545, cert den, 139 S Ct 158 (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 resi-

dence 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 acknowl-

edged 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, crimi-

nal 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 argu-

ment, though it still went to venue: The defendant con-

tended “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 unpre-

served, 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 jurisdic-

tion argument, but that that argument was not renewed on

appeal: “We note that defendant moved at trial for a judg-

ment 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

Cite as 326 Or App 64 (2023) 79

is a type of subject matter jurisdiction, the issue could have

been raised sua sponte, Weatherspoon v. Allstate Ins. Co., 193

Or App 330, 333, 89 P3d 1277, rev den, 327 Or 227 (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 evi-

dence 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 argu-

ments 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 appro-

priate 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 deter-

mined 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, 172 Or App 462, 469, 18

P3d 1111 (2001) (rejecting wife’s contention that “husband

either consented to subject matter jurisdiction by the trial

court, waived his right to contest subject matter jurisdic-

tion, or is otherwise estopped from asserting lack of sub-

ject matter jurisdiction due to principles of invited error”;

explaining that “[w]e consider jurisdictional issues regard-

less 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, 202 Or App

622, 627, 123 P3d 325 (2005) (when a party makes a stipula-

tion, which is a statement made “for the purpose of dispens-

ing with the need for proof,” the stipulated fact is “conclu-

sively 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 argu-

ing 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 com-

mitted 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, 202 Or App at 627. None of

defendant’s arguments involved any such statements; to the

contrary, as we will discuss further below, the state stipu-

lated 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 stip-

ulate 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.

Cite as 326 Or App 64 (2023) 81

Second, it is clear from the discussion at the hear-

ing that the parties did not recognize that ORS 131.325

applies only to offenses within Oregon’s territorial jurisdic-

tion. 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] vio-

lated.” Although that failure to recognize the limitations of

ORS 131.325 might pose a problem for defendant if preserva-

tion 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 prop-

erly 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 juris-

diction, 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 crim-

inal 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 sub-

ject 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 juris-

diction, but the allegation is all that is necessary to conclu-

sively establish the court’s power to act.

We agree with the state to the extent that, under

ordinary circumstances, filing a charging instrument prop-

erly alleging that an offense took place within Oregon’s ter-

ritorial jurisdiction authorizes the court to hold a trial or

some other proceeding to determine the truth of those alle-

gations. See generally Clawson v. Prouty, 215 Or 244, 249,

333 P2d 1104 (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 govern-

ments. Nielsen, 212 US 315; Estate of Michelle Schwarz, 206

Or App at 52 (to permit Oregon courts to act extraterrito-

rially 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 (terri-

torial jurisdiction implicates due process); State v. Baldwin,

305 A2d 555, 560-61 (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

Cite as 326 Or App 64 (2023) 83

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 ulti-

mately 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 crimi-

nal defendant challenges the power of Oregon courts to adju-

dicate an offense, the state bears the burden to prove—not

just allege—that the court has subject matter jurisdiction.

In State v. Hill, 277 Or App 751, 373 P3d 162, rev den, 360 Or

568 (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 notwith-

standing the Supreme Court’s recent holding that “the alle-

gations and the pleadings [can] be sufficient to bring a case

within the scope of a court’s subject matter jurisdiction.”

C. M. H., 368 Or at 116-17 (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 proceed-

ing. As a consequence of both of those points, none of those

cases implicated federal law or constitutional rights of crim-

inal defendants. By contrast, as established by the United

States Supreme Court, territorial jurisdiction limits states’

power to prosecute crimes, Nielsen, 212 US at 321.

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 ter-

ritorial jurisdiction either beyond a reasonable doubt or by a

preponderance of the evidence. See, e.g., State v. Willoughby,

181 Ariz 530, 536-39, 892 P2d 1319, 1325-26 (Ariz 1995)

(concluding that the majority view requires proof of territo-

rial jurisdiction beyond a reasonable doubt, rather than a

preponderance of the evidence, and adopting that rule; col-

lecting 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 SD 32, ¶ 5,

878 NW 2d 105, 107 (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, 878 NW 2d at 107; see also State v. Janssen, 371

NW 2d 353, 356 (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 terri-

torial jurisdiction follows from the authorities it cites, neither of which addresses

the issue. 2016 SD 32 at ¶ 5, 878 NW 2d at 107 (citing Janssen, 371 NW 2d at

356 (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, 58 NE 491, 493 (1900) (the “juris-

diction” of an Indiana circuit court to adjudicate offenses that occurred in a dif-

ferent county—not a different state—is established by the indictment)); see Mills,

354 Or at 364 (in the nineteenth century, Indiana courts used the term “jurisdic-

tion” to refer to what we now recognize as venue).

Cite as 326 Or App 64 (2023) 85

In this case, the state filed an indictment alleg-

ing 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 inappro-

priate; the state’s stipulation means that it is “conclusively

proven” that the location of the offenses cannot be identi-

fied among the three possibilities—Washington County,

Multnomah County, and Clark County, Washington. Porter,

202 Or App at 627.

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 know-

ingly 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, 202 Or App at 627 (“The effect of a stip-

ulation 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

id. (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.