State v. O'NEALL

836 P.2d 758, 115 Or. App. 62, 1992 Ore. App. LEXIS 1688
CourtCourt of Appeals of Oregon
DecidedAugust 26, 1992
DocketC87-12-33738, C89-12-37089; CA A66434 (Control), A66435
StatusPublished
Cited by9 cases

This text of 836 P.2d 758 (State v. O'NEALL) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. O'NEALL, 836 P.2d 758, 115 Or. App. 62, 1992 Ore. App. LEXIS 1688 (Or. Ct. App. 1992).

Opinions

[64]*64DEITS, J.

Defendant was convicted on two counts of first degree kidnapping, ORS 163.235, one count of first degree sexual penetration with a foreign object, ORS 163.411, three counts of first degree rape, ORS 163.375, three counts of third degree rape, ORS 163.355, and one count each of first degree sodomy, ORS 163.045, third degree sodomy, ORS 163.385, and first degree sexual abuse. ORS 163.425. He argues that his motion for judgment of acquittal on the third degree rape and sodomy charges should have been granted, because the state did not prove venue. He also argues that the trial court erred by not merging his two kidnapping convictions for sentencing and by failing to state on the record its reasons for imposing consecutive sentences. We affirm.

In the early morning of January 17,1987, defendant abducted a 14-year-old girl who was walking home from a convenience store in North Portland. He had parked his semi-truck near an 1-5 overpass ramp. When the girl passed by, defendant approached her from behind, pushed an object against her back, told her that it was a gun, dragged her across the street and down the embankment to his truck and pulled her into the sleeping compartment of the cab. Defendant got into the truck, locked the doors and ordered her to stay still. He began driving south on 1-5 and drove for approximately 20 to 30 minutes. He then stopped the truck in a parking area, which the girl testified did not appear to be an official rest area, because it did not have rest rooms or any other facilities. Defendant climbed into the sleeping compartment and, over the next four hours, repeatedly raped, sodomized and otherwise molested the girl. He agreed to let her go only after she promised not to tell anyone what had happened. He drove approximately another 15 minutes and left her at the side of a gravel road. She walked to a service station in Aurora, which is in Marion County. When she arrived home, she told her parents and the police what had happened.

Defendant first assigns as error the trial court’s denial of his motion for judgment of acquittal on the three counts of third degree rape and the third degree sodomy count on the basis that the state had failed to prove venue in Multnomah County. The trial court denied the motion on the [65]*65ground that the victim’s age is a material element of those crimes and that, because she was under 16 years old when she was in Multnomah County, venue was proven. Defendant concedes that the first degree kidnapping and the rape and first degree sodomy charges were properly tried in Multnomah County, because an element of each of those crimes is forcible compulsion and his use of force began in Multnomah County. However, he contends that the trial court erred in denying his motion with respect to the charges of third degree rape and sodomy, because forcible compulsion is not an element of those crimes and age is not an element of a crime that may be used to establish venue. Defendant argues:

“[T]he evidence showed that none of the conduct or results constituting the third-degree sexual assaults occurred in Multnomah County. Therefore, only Marion County had venue, and the court should have granted defendant’s motion for judgment of acquittal.”

The state first argues that defendant waived any challenge to venue, because he did not make a pretrial motion for a change of venue pursuant to ORS 131.305, but raised the issue for the first time in his motion for judgment of acquittal. However, as we held in State v. McCown, 113 Or App 627, 630, 833 P2d 1321 (1992), because the state must prove venue, a defendant may challenge venue in the same manner as he could the sufficiency of proof of any other required fact. Defendant’s challenge was properly preserved by his motion for judgment of acquittal.

Venue is a material allegation and must be proven beyond a reasonable doubt. State v. Guest, 103 Or App 594, 598, 798 P2d 708 (1990), rev den 311 Or 187 (1991). Article I, section 11, of the Oregon Constitution provides:

“In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury in the county in which the offense shall have been committed.”

ORS 131.305(1) provides:

“Except as otherwise provided in ORS 131.305 to 131.415, criminal actions shall he 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.”

[66]*66We do not agree with the trial court that proof that the victim was under age 16 when she was in Multnomah County was sufficient to establish venue in Multnomah County. The victim’s age does not comprise any “conduct that constitutes the offense,” nor is it a “result that is an element of the offense,” as required by ORS 131.305(1). We conclude, however, that there was sufficient evidence for the jury to have concluded that the state proved venue. In reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to the prosecution to determine whether a rational trier of fact could have found the elements of a crime beyond a reasonable doubt. State v. Krummacher, 269 Or 125, 137, 523 P2d 1009 (1974). Venue maybe established by circumstantial evidence and inferred by the jury from all of the facts in the case. State v. Bowling, 243 Or 344, 347, 413 P2d 421 (1966). When the evidence supports the conclusion that conduct may have occurred in more than one county, it is not error to let the jury decide the factual issue of the place of the criminal conduct. 243 Or at 347.

Defendant abducted the girl in North Portland, near Lombard Street, which is in Multnomah County. Travelling south from that point, there are five county lines before the Aurora exit. There is no evidence that defendant stayed on 1-5. The girl testified that, because defendant had threatened her, she peeked through the curtains to the road only once or twice. From what she saw, she thought that the place where defendant assaulted her was off a “two-lane highway” and not an official rest area. A number of maps were admitted at trial, showing the location of 1-5, Pacific Highway and Highway 99, all accessible southward from the point of the abduction. The jury could infer from the evidence that defendant drove off 1-5 onto smaller, less travelled roads within Multnomah County.

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State v. O'NEALL
836 P.2d 758 (Court of Appeals of Oregon, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
836 P.2d 758, 115 Or. App. 62, 1992 Ore. App. LEXIS 1688, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-oneall-orctapp-1992.