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 judgment 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 provides that, among other things, “[i]n 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.” At issue in this case is whether that provision 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, concluded 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 judgment 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 constitutional 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 defendant 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 permit 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 defendant of the charged offense.

Defendant appealed, arguing that the facts adduced 

at trial were insufficient to satisfy the state’s burden of proving 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 anything 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 requirement. 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 constitutional 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 understood to mean that the purpose of the Priest analysis is to 

fossilize the meaning of the state constitution so that it signifies 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 purpose 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 guarantees concerning jury verdicts in first-degree murder trials.
Cite as 354 Or 350 (2013) 355

Second, and relatedly, nothing else in Article I, section 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 committed, 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 compulsory 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 prosecution bears an obligation to prove at trial that the [venue] 

prerequisite is met and not that other constitutional prerequisites 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 particular 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 AntiDiscrimination 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, references 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 circumstances 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 criminal 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 inhabitants. See generally John Marshall Mitnick, From NeighborWitness 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 inhabitants 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 inhabited 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 jurisdiction 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) (commonlaw venue rule “is commonly traced to the use of the early 

jury as a factfinding body that relied upon its own knowledge”). 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 nineteenthcentury 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 midnineteenth 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 essential 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 criminal 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 concerning 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, “daring 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 conducted 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 transporting 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 provision, 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 provisions 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 generally 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 distant 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 provisions “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 guarantees were designed to preserve common-law notions of local 

criminal court jurisdiction. Likewise, nothing in the historical 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 constitution 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 authorizing 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 convention that produced the 1851 Indiana Constitution contain 

no trace of debate or discussion concerning that state’s constitutional 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 unlawful 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 commonlaw 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 complete absence of evidence that they would have understood 

that requirement to be connected in any way to the constitutional 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 discuss 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 accompanies 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 sitting 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 mentioning Article I, section 11. See also State v. Chew Muck You, 

20 Or 215, 216-21, 25 P 355 (1890) (state satisfied commonlaw 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 reference 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 allegation 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 followed 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 constitutionality 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 buttressed 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 necessity 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 commonlaw 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 dismissed the defendant’s objections about venue by invoking 

the justification for the federal constitutional venue and vicinage guarantees, not the common-law rule. See also State v. 

Roper, 286 Or 621, 628-29, 595 P2d 1247 (1979) (tracing origins of constitutional venue guarantee not to common law,

but to the Virginia Resolves and concerns about British deportation of colonists for trial in England). 

D. Stare Decisis

To summarize, our analysis under Priest establishes 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 substantive 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 interpreted 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 something different from what we have noted that its wording 

suggests. The historical record shows only that the framers would have understood that, while the common law may 
370 State v. Mills

have required proof of venue in order to establish the jurisdiction 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 concluded 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 simply stated the conclusion. Certainly, in no case has this 

court examined the issue in accordance with the interpretive 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 remedy that error.” Id.

Although this court does not lightly overrule an earlier constitutional decision, see Farmers Ins. Co. v. Mowry,

350 Or 686, 693-94, 261 P3d 1 (2011) (reviewing considerations 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 private 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 private 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 wording 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 overrule 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 material 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 constitutional 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 evidentiary 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 objection, 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 defendant from the hardship and potential unfairness of being 

required to stand trial in a distant place, it makes sense 

that the matter of venue should be resolved as soon as possible before the trial itself. 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. Consistently 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 guarantees 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 challenge 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 constitutional double-jeopardy guarantees do preclude a retrial following dismissal 

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