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 prosecu

tions, the accused shall have the right to public trial by an impartial jury in the county in which the offense shall have been committed.” At issue in this case is whether that provi

sion implicitly requires the state to treat the location where the offense was committed as a material allegation, which it must prove beyond a reasonable doubt. The state contends that nothing in the wording of Article I, section 11, requires such proof. In the state’s view, the constitution merely grants a defendant a right to object—or waive objection— to improper venue, and in this case defendant waived that right by failing to assert it before trial. Defendant argues that, although the state is correct that Article I, section 11, itself does not say anything about requiring proof of venue as a part of the state’s case, this court’s cases nevertheless have read the section to impose that requirement, and, in this case, the state failed to satisfy it.

The Court of Appeals, adhering to those cases, con

cluded that the state was required to establish venue beyond a reasonable doubt and that, in this case, the state failed

to meet that burden. State v. Mills , 248 Or App 648, 274 P3d 230 (2012). The court consequently reversed the judg

ment of the trial court, which had rested on that court’s conclusion that the state’s proof of venue was adequate. We conclude that our earlier cases were mistaken in reading

Article I, section 11, to require the state to prove venue as a material allegation. The venue guarantee of that constitu

tional provision recognizes a right to a trial in a particular place, which right must be asserted before trial. We further conclude, however, that it would be unfair to hold that defen

dant in this case forfeited that right, given that, under the law at the time of trial, he was permitted to raise the issue during trial. We therefore reverse the decision of the Court of Appeals, reverse the judgment of the circuit court, and remand for further proceedings.

I. FACTS

The relevant facts are few and undisputed. A City of North Plains police officer determined that defendant was352 State v. Mills

driving a vehicle at 80 miles per hour near milepost 57 on Highway 26. The officer pursued defendant and stopped him near milepost 56. The officer asked defendant for his license, and defendant admitted that his license was suspended.

The state charged defendant with driving while his license was revoked. ORS 811.182. Defendant waived a jury, and the case was tried to the court. After the state rested, defendant moved for a judgment of acquittal, arguing that the state had failed to prove beyond a reasonable doubt that he had committed the offense in Washington County. The state argued that the evidence was sufficient to per

mit a reasonable factfinder to determine that defendant had committed the offense in North Plains, between mileposts 56 and 57 on Highway 26, all of which are located in Washington County. The trial court agreed with the state, denied defendant’s motion, and ultimately convicted defen

dant of the charged offense.

Defendant appealed, arguing that the facts adduced at trial were insufficient to satisfy the state’s burden of prov

ing venue beyond a reasonable doubt. The state first argued that venue should not be treated as a material allegation of an indictment that must be proved beyond a reasonable doubt. In the alternative, the state argued that the evidence that it had provided at trial sufficed to meet that burden.

The Court of Appeals reversed. The court first rejected the state’s argument that venue should not be treated as a material element of the state’s case, concluding that the argument was foreclosed by this court’s contrary case law. 248 Or App at 651 n 1. The court also rejected the state’s argument about the sufficiency of the evidence, concluding that it “would require speculation for a factfinder to infer that North Plains or mileposts 56 and 57 on Highway 26 are in Washington County.” Id. at 653.

II. ANALYSIS

On review, the state renews its argument that it should not be required to prove venue as a material allegation. The state acknowledges that this court has reached a contrary conclusion in a number of decisions. According to the state,

we should reconsider those decisions because none of themCite as 354 Or 350 (2013) 353

reflects any analysis. All simply state the conclusion that

Article I, section 11, requires the state to treat venue as a material allegation, which, the state notes, Article I, section 11, does not actually say. In that regard, the state observes

that Article I, section 11, declares a number of different rights—including a public trial, an impartial jury, a copy of the charging instrument, and the ability to meet witnesses face to face—none of which requires the state to prove any

thing as part of its case. The state contends that it makes no sense to select one of those rights and treat it as a material allegation that must be affirmatively proved at trial.

For his part, defendant acknowledges the state’s point that the bare text of Article I, section 11, does not say anything about treating venue as a material allegation that the state must prove beyond a reasonable doubt:

“It is true that nothing in the plain text of section 11 requires the state to prove to the jury that a defendant’s trial is public or that the jury is impartial. Likewise nothing in the text demands that the prosecution prove beyond a reasonable doubt that the crime took place in the county alleged in the charging document.”

Defendant nevertheless maintains that the constitution must be understood implicitly to have incorporated that require

ment. According to defendant, in light of the universal common-law view that venue was a material allegation that the state was required to prove, Article I, section 11, should be understood to have incorporated that common-law rule. At all events, defendant continues, that has been the manner in which this court has long construed the state constitu

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

The parties’ arguments thus require us to determine the meaning of a provision of the original state constitution, which we accomplish by examining the text of the provision in context, the historical circumstances of the adoption of the provision, and the case law that has construed it. Priest

v. Pearce , 314 Or 411, 415-16, 840 P2d 65 (1992). It is often stated that our goal is to determine the meaning most likely intended or understood by the framers of the constitution. See e.g.

, Doe v. Corp. of Presiding Bishop , 352 Or 77, 87, 280 P3d 377 (2012) (in interpreting the constitution, the court354 State v. Mills

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

nifies no more than what it would have been understood to signify when adopted in the mid-nineteenth century. State

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

pose of that analysis is not to freeze the meaning of the state constitution in the mid-nineteenth century.”). Instead, as we have more recently explained, our goal is to determine the meaning of the constitutional wording, informed by general principles that the framers would have understood were being advanced by the adoption of the constitution. State v.

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

A. Textual Analysis

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

“In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury in the county in which the offen[s]e shall have been committed; to be heard by himself and counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor.”

Or Const, Art I, § 11 (1857). 1 The phrasing of that section is significant in at least two respects that are pertinent to the

issue in this case.

First, as the state correctly observes and defendant concedes, nothing in the wording of Article I, section 11, itself says anything about requiring the state to prove anything, much less requiring the state to prove the location of the commission of the offense as a material allegation beyond a reasonable doubt. By its terms, the constitutional provision guarantees an accused in a criminal proceeding a right to have the trial occur in a particular place, that is, “the county in which the offen[s]e shall have been committed.” It does not specify anything about elements of proof.

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

tees concerning jury verdicts in first-degree murder trials.Cite as 354 Or 350 (2013) 355

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

tion 11, says anything about matters of proof. See Davis , 350 Or at 463-64 (particular clauses of Article I, section 11, must be construed in the context of the provision as a whole). To the contrary, the provision lists “a panoply of trial-related rights,” State v. Harrell/Wilson , 353 Or 247, 262, 297 P3d 461 (2013), that an accused in a criminal proceeding may assert or waive: the right to a public trial, to an impartial jury, to a trial in the county in which the offense was com

mitted, to be heard by defendant or counsel, to demand the nature and cause of the accusation, to have a copy of the accusation, to meet witnesses face to face, and to have com

pulsory process. Each of those rights pertains to the conduct of a criminal trial. None pertains to matters of substantive proof. See generally Wayne R. LaFave, et al. , 4 Criminal

Procedure § 16.1(g), 744 n 241 (3d ed 2007) (observing that those courts reading constitutional venue guarantees to require proof of venue “have not explained why the prose

cution bears an obligation to prove at trial that the [venue] prerequisite is met and not that other constitutional prereq

uisites are met ( e.g. , that the jury is impartial and that the case was brought to trial promptly enough * * *)”).

Notwithstanding the fact that there are no words that—at least by themselves—could reasonably be construed to create a requirement of proof, defendant suggests that

we should understand Article I, section 11, to function as a “synecdoche.” A “synecdoche” refers to a rhetorical “figure of speech by which a part is put for the whole.” Webster’s Third New Int’l Dictionary 2320 (unabridged ed 2002). In defendant’s view, the reference to the subject of venue in

Article I, section 11, can fairly be seen as a “marker” that implicitly incorporates not only a right to a trial in a partic

ular place, as the provision actually states, but also a right to require the state to prove the location of the commission

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

As other courts have observed, the rhetorical device of synecdoche is ill-suited for application to matters of legal interpretation. See, e.g.

, Reno v. American-Arab AntiDiscrimination Committee , 525 US 471, 482, 119 S Ct 936, 142 L Ed 2d 940 (1999) (“Not because Congress is too356 State v. Mills

unpoetic to use synecdoche, but because that literary device is incompatible with the need for precision in legislative drafting.”). That is because of the singular importance of the words included in—or omitted from—a given provision. It is simply not the province of the court to rewrite the text of the constitution to supply a provision that was not included.

That is not a matter of fastidious formalism. As this court has noted on many occasions, in construing the Oregon Constitution, the “best evidence” of what the framers of a constitutional provision intended to mean is the wording of the provision itself. See, e.g.

, Harrell , 353 Or at 255 (“[t]he

best evidence of the voters’ intent is the text and context of the provision itself”); Li v. State of Oregon , 338 Or 376, 388, 110 P3d 91 (2005) (“the text of the constitutional provision itself provides the best evidence of the voters’ intent”). Only

the text of the constitution received the consideration and approval of the voters who approved it, giving it the effect

of law. Cf. State v. Gaines , 346 Or 160, 171, 206 P3d 1042 (2009) (“there is no more persuasive evidence of the intent of the legislature” than a statute’s text because “[o]nly the text of a statute receives the consideration and approval of a majority of the members of the legislature, as required to have the effect of law”). Consequently, courts are obliged to respect not only what constitutional provisions state, but also what they do not. See, e.g.

, George v. Courtney , 344 Or 76, 85-86, 176 P3d 1265 (2008) (declining to read into

Article IV, section 10a, limitations on legislative authority that are not stated in its text).

Aside from that, the rhetorical device of synecdoche assumes a well-understood relationship between the part actually stated and the whole that is unstated. The classic examples are references to body parts—“head count,” “counting noses,” “all hands”—to connote whole persons, ref

erences to sailing ships as “sails,” and the like. In this case, the relationship between what Article I, section 11, says and what defendant suggests it implicitly signifies is not at all

so clear.

Defendant nevertheless argues that the connection

between what Article I, section 11, says and what it shouldCite as 354 Or 350 (2013) 357

be taken to mean becomes clearer when the historical cir

cumstances of the adoption of the provision are taken into

account. We turn to consideration of those circumstances.

B. Historical Circumstances

In defendant’s view, at the time of the adoption of the Oregon Constitution in 1857, the “dominant rule in force around the country” required the state to prove venue as a material element of its case. In support, defendant cites nineteenth-century treatises and some three-dozen examples of mid-nineteenth century trial and appellate court decisions, each of which refers to the prosecution’s obligation to prove venue as part of its substantive case. In that context, he contends, there can be “little doubt that [the framers] intended section 11 to embody that rule.”

The problem with defendant’s argument is that it conflates two distinct legal rules—the common-law rule requiring proof of venue to establish the jurisdiction of crim

inal courts and a defendant’s constitutional right to insist

on trial where the crime was committed. The two rules were derived from different historical sources and were developed to accomplish different purposes.

1

. The Common-Law Rules of Venue and Vicinage

At common law, it was long the general rule that proof of venue was necessary to establish the jurisdiction of the court presiding over the criminal trial. The rule had its roots in early notions about the authority of juries, which was limited to the particular communities from which they were

selected. See Allan R. Stein, Forum Non Conveniens and the Redundancy of Court-Access Doctrine , 133 U Pa L Rev 781, 798 (1985) (“The earliest venue rules grew out of the jury system.”).

The first jurors were witnesses selected preciselybecause 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 Coke358 State v. Mills

explained in his First Institutes , jurors were drawn from the vicinity of the crime—the “vicinage”—because “the inhab

itants whereof may have the better and more certaine knowledge of the fact.” 1 Sir Edward Coke, The First Part of the Institutes of the Laws of England *125a.

The authority of jurors stopped at the bounds of the county from which they had been appointed. See generally Theodore F.T. Plucknett, A Concise History of the Common

Law 127 (1956) (“[The jury’s] object was either to present the suspicions of the countryside, or, in the case of a petty jury, to express its final opinion. Consequently, the jury as a whole must come from the county concerned.”). They had no power to “take knowledge” of acts or events that might have taken place beyond the county boundaries. See Act of Parliament, 1548, 2 & 3 Edw. 6, ch. 24 (Eng.) (jurors under common law previously could “take no knowledge” of events in other counties); see also Albert Levitt, Jurisdiction over Crimes: The Territorial Commission Theory , 16 J Am Inst Crim L & Criminology 316, 327-28 (1925) (“The inquisitorial range of the jury was limited to the territorial area inhab

ited by the community.”); Glanville Williams, Venue and the Ambit of Criminal Law , 81 L Q Rev 276, 276 (1965) (“The ancient requirement of venue meant in effect that the juris

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

and the criminal courts as a whole were therefore limited
to what occurred in ‘the bodies’ of the counties[.]’ ”). Indeed, a jury’s pronouncement on matters that took place beyond county boundaries was considered grounds for a mistrial.

Over time, the role of juries shifted from that of

interested witnesses to neutral and detached fact finders. But assumptions about their underlying authority remained unaltered: The authority of jurors did not go beyond the boundaries of the county from which they were selected. See generally LaFave, 4 Criminal Procedure § 16.1(c) (commonlaw venue rule “is commonly traced to the use of the early jury as a factfinding body that relied upon its own knowl

edge”). Consequently, to establish the jury’s authority and thus avoid a later mistrial, prosecutors were required to prove that venue was proper.Cite as 354 Or 350 (2013) 359

The rule became a well-settled principle of 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 thiscourt 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 essen

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

Id. at 685. Similarly, in Holeman v. State , 13 Ark 105 (1852), the defendant was convicted of larceny. On appeal, she argued that the state had failed to establish venue, and the Arkansas Supreme Court agreed, explaining that, “[t]here is an utter failure in the proof as to the place where the supposed offense was committed. This would of itself constitute a fatal objection to the judgment, as without such proof there is a manifest defect of jurisdiction.” Id. at 106. 3

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

Mitchum v. State , 11 Ga 615 (1852), which was controlled by a constitutional provision expressly providing that the crim

inal jurisdiction of the superior courts extended only to the county in which the crime was committed. In that context, the court noted that, “to give jurisdiction, therefore, it was necessary to prove that [the crime] was committed in the County where the Court was sitting.” Id. at 616.

2

. The Constitutional Venue Right

Federal and state constitutional provisions con

cerning venue had a different source and were directed at a different concern. As we have noted, the rule that criminal trials must take place where the offense occurred (venue) and that juries must be drawn from that area (vicinage) took root in this country early on. In the years leading up to the American Revolution, however, tensions between the colonies—Massachusetts, in particular—and the British authorities led Parliament first to denounce, in 1768, “dar

ing insults offered to his Majesty’s authority, and audacious usurpations of the powers of government” and later to adopt, in 1769, a resolution requiring the trial of such treasonous acts in England. See generally William Wirt Blume, The Place of Trial of Criminal Cases , 43 Mich L Rev 59, 62-66

3 See also Vaughan v. State , 11 Miss 553 (1844) (“It is scarcely necessary to add, that the offence must be proved to have been committed in the county, as charged in the indictment, in order to bring it within the jurisdiction of the Court.”); State v. Chaney , 43 SCL 438 (1856) (rejecting, based on sufficiency of evidence, defendant’s
asserted “defect in the evidence to show[ ] that the offen[s]e was perpetrated in the jurisdiction”); Commonwealth v. Heikes , 26 Pa 513 (1856) (“As a general rule, place is only essential upon the question of jurisdiction.”).Cite as 354 Or 350 (2013) 361

(1944) (detailing history). 4 The problem—from the British point of view—was that colonial juries “all but nullified the

law of seditious libel in the colonies.” Albert W. Alschuler & Andrew G. Deiss, A Brief History of the Criminal Jury in the

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

Reaction from the colonies was swift. The Virginia House of Burgesses, after hearing the news of Parliament’s actions, adopted resolutions, known as the “Virginia Resolves,” declaring that

“ ‘all Trials for Treason, Misprison of Treason, or for any Felony or Crime whatsoever, committed and done in this his Majesty’s said Colony and Dominion, by any Person or Persons residing therein, ought of Right to be had, and con

ducted in and before his Majesty’s Courts, held within the said Colony.”

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

colonies soon followed. Id. at 63-65. Eventually, the Declaration of Independence itself denounced King George III “for trans

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

The frustration of the colonists with the British practice of transporting those accused of treason to England for trial led to the inclusion of a venue provision in the United States Constitution, Article III, section 2, which requires that the “Trial of all Crimes * * * shall be held in

the State where the said Crimes shall have been committed.”In addition, the Sixth Amendment includes a vicinage 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 provi

sions grew out of the framers’ concerns with the British

4 Specifically, Parliament voted to revive a statute from the days of Henry VIII, which authorized trial for treason committed outside the “realm” to be tried before the King’s Bench, in England. See generally Drew L. Kershen, Vicinage , 29 Okla L Rev 801, 805-07 (1976). In 1772 and 1774, Parliament again passed laws in response to its dissatisfaction with the way its criminal laws were being enforced in colonial courts. One, 12 Geo III, c. 24 (1772), provided that persons charged with destroying shipping equipment and supplies outside the realm could be tried in England. The other, 14 Geo III, c. 39 (1774), provided that persons charged with certain capital crimes would also be held in England.362 State v. Mills

practice of trying colonists in distant England. See gener

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

Practice and Procedure § 301 (4th ed 2009) (tracing history of federal constitutional venue and vicinage provisions to Virginia Resolves and reaction to deportation of colonists to England for trial); Comment, Multi-Venue and the Obscenity

Statutes , 115 U Pa L Rev 399, 413 (1967) (“the dangers the framers sought to guard against were clearly perceived” as responding to “a recent history of forced deportations to dis

tant places for trial”). Their purpose was avoiding hardship and inconvenience. As the United States Supreme Court explained in Hyde v. Shine , 199 US 62, 25 S Ct 760, 50 L Ed 90 (1905),

“we do not wish to be understood as approving the practice of indicting citizens of distant states in the courts of this District, where an indictment will lie in the state of the domicil[e] of such person, unless in exceptional cases, where

the circumstances seem to demand that this course shall be taken. To require a citizen to undertake a long journey across the continent to face his accusers, and to incur the expense of taking his witnesses, and of employing counsel in a distant city, involves a serious hardship, to which he ought not to be subjected if the case can be tried in a court of his own jurisdiction.”

Id. at 78. There was also concern that requiring an accused to travel great distances for trial posed a threat to a fair trial. Kershen, 29 Okla L Rev at 808 (“it seems clear that limitation of venue was considered to be necessary to insure a fair trial for persons accused of crime”).

State constitutional venue and vicinage guarantees were largely modeled after the Sixth Amendment. See Blume

,43 Mich L Rev at 67 (early state constitutional venue 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 guaran

tees were designed to preserve common-law notions of local criminal court jurisdiction. Likewise, nothing in the histor

ical record suggests that the constitutional guarantees were designed, in effect, to codify common-law criminal pleading and proof requirements.

That is borne out by the nineteenth-century case law. As we have noted above, a number of states’ appellate court decisions declare that venue must be pleaded and proven. But those decisions are common-law, not constitutional, decisions. The only mention of the constitutional venue right in antebellum cases concerns whether defendants properly invoked or waived their constitutional venue right by moving for a change of venue or the constitutionality of statutes authorizing trial in places other than the county in which the crime was committed. As the Missouri Supreme Court explained in State v. Wetherford , 25 Mo 439, 440 (1857), “[t]he constitutional right of trial by jury of the vicinage is intended for the benefit and protection of the accused,” which could be “waived, as it was by defendant, and a change of venue was procured.” 5 Indeed, defendant has not cited a single antebellum state court decision referring to the state constitutional venue right as the source of a requirement that the state prove venue as part of its substantive case,

and we are aware of none.

3

. Adoption of the Oregon Constitution

It was in that context that the framers of the Oregon Constitution drafted and adopted Article I, section 11. The provision was adopted as part of the original state constitu

tion in 1857, without recorded debate or discussion. Charles

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

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

v. State , 7 Md 135 (1854) (change of venue); State v. Alverez , 7 La Ann 283 (1852) (change of venue); Ex parte Block , 11 Ark 281 (1850) (constitutionality of statute providing for change of venue); State v. Burris , 4 Harr 582 (Del 1847) (change of venue); Steerman v. State , 10 Mo 503 (1847) (constitutionality of statute authoriz

ing change of venue); Dula v. State , 16 Tenn 511 (1835) (constitutionality of statute authorizing change of venue).364 State v. Mills

Henry Carey ed., The Oregon Constitution and Proceedings and Debates of the Constitutional Convention of 1857 , 310 (1926); see also Claudia Burton & Andrew Grade, A Legislative History of the Oregon Constitution of 1857—Part I (Articles I and II) , 37 Will L Rev 469, 518 (2001) (Article I, section 11, adopted without reported discussion or debate).

Its wording appears to have been derived from

Article I, section 13, of the Indiana Constitution of 1851. W.C. Palmer, The Sources of the Oregon Constitution , 5 Or L Rev 200, 201 (1926). The records of the constitutional con

vention that produced the 1851 Indiana Constitution contain no trace of debate or discussion concerning that state’s con

stitutional venue guarantee, either. See The Report of the Debates and Proceedings of the Convention for the Revision of the Constitution of Indiana 187 (1850).

Case law about venue from Indiana before, and even after, the time of the adoption of the Oregon Constitution

is consistent with the other antebellum cases that we have mentioned, in that it consistently refers to the rule requiring proof of venue as a common-law rule pertaining to a local court’s criminal jurisdiction. In Jackson v. State , 19 Ind 312 (1862), for example, the defendant was charged with unlaw

ful sale of intoxicating liquor in Grant County, Indiana. At trial, the evidence showed that the transaction took place “in Grant County,” without reference to any state. The Indiana Supreme Court concluded that the evidence was insufficient

to establish venue because “the evidence does not show that the sale was within the jurisdiction of the Court.” Id . at 313.

The decision does not mention the Indiana Constitution. See also Snyder v. State , 5 Ind 194 (1854) (citing only 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 framersCite as 354 Or 350 (2013) 365

might have understood that the common law required the state to establish venue as a jurisdictional prerequisite to prosecution in a particular county court. But there is a com

plete absence of evidence that they would have understood that requirement to be connected in any way to the constitu

tional venue guarantee.

We are left, then, with constitutional wording that even defendant concedes says nothing about requiring proof of venue as a material element of the state’s case, as well as contemporaneous history that fails even to hint at the possibility that the constitution was intended to have that effect. That leads to the obvious question of how this court came to hold—as defendant correctly observes that it did— that the venue guarantee of Article I, section 11, nevertheless has the effect of constitutionalizing the common-law rule of proof. To address that question, we turn to an examination of this court’s case law construing Article I, section 11.

C. Oregon Case Law

There are only a handful of such cases before the turn of the twentieth century. Consistently with the case law from other jurisdictions that we have described, all dis

cuss proof of venue solely in reference to the common-law rule and without mentioning Article I, section 11.

In State v. Johnson , 2 Or 115 (1864), the defendant stole a horse in the Washington territory and rode it into Wasco County, Oregon, where he was apprehended and charged with larceny. At trial in Wasco County, he asked the court to instruct the jury that, if it believed that he had stolen the horse in the Washington territory, it could not find him guilty of larceny, because venue was an element of the offense. The trial court declined to so instruct the jury, and the defendant was convicted. On appeal, he argued that the trial court had erred in failing to deliver his requested venue instruction. This court affirmed on the ground that, at common law, the offense of larceny “continues and accom

panies the thing stolen, from one State to another, as it does from one county to another in the same State.” Id. at 116. The court assumed the applicability of the common-law rule that venue must be proved, but ultimately held that the rule had been satisfied by proof that the larceny had continued366 State v. Mills

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

mention of Article I, section 11.

To similar effect is State v. Barnett , 15 Or 77, 14 P 737 (1887). There, the defendant came into possession of stolen funds in Umatilla County and then sent the money to a bank in Multnomah County. When authorities discovered that the money was not the defendant’s, he was charged with larceny and convicted of that offense in Multnomah County. The defendant argued on appeal that the court sit

ting in Multnomah County “was without jurisdiction to try the defendant,” because the larceny took place outside of Multnomah County. This court again cited the common-law rule that larceny follows the stolen property. Id . at 79. As in

Johnson , the court in Barnett assumed the applicability of the common-law rule requiring proof of venue as necessary to establishing the trial court’s jurisdiction without mention

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

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

ence to the defendant’s separate contention that he had been deprived of his constitutional right to demand the nature and cause of the action against him. Id. at 540-41. There

was no reference to Article I, section 11, in connection with the disposition of the defendant’s arguments about venue.

The first mention of Article I, section 11, as a source of the requirement that the state prove venue as a material allegation occurred in the 1923 decision in State v. Casey

, 108 Or 386, 213 P 771 (1923). In that case, the defendant was charged with and convicted of murder in MultnomahCite as 354 Or 350 (2013) 367

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

state had failed to establish venue. The court’s discussion of that issue, in its entirety, was as follows:

“ ‘ In all criminal prosecutions, the accused shall have the right to public trial * * [*] in the county in which the offense shall have been committed.’ Section 11, Article I, Const.

“The place where the crime was committed is a material and jurisdictional allegation contained in the indictment, which the plea of not guilty made by the defendant puts at issue and requires that the prosecution prove, beyond a

reasonable doubt.”

Id. at 402-03. Thus, the court’s analysis consisted of a quotation from Article I, section 11, followed by a single sentence summarizing what otherwise would appear to be the common-law rule requiring proof of venue to establish jurisdiction. There was no explanation or analysis. But the juxtaposition of the quotation, followed by the statement of the rule, appeared to suggest that the court—for the first

time—saw a connection between the two.

That, at any rate, is how subsequent cases interpreted Casey . In State v. Harvey , 117 Or 466, 242 P 440 (1926), the defendant challenged venue on appeal. The court rejected the argument, explaining:

“ ‘The accused shall have the right to public trial by an impartial jury [* * *] in the county in which the offense shall have been committed.’ Or. Const., [A]rt. I, § 11.

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

tion of the complaint and must be proved to the satisfaction of the jury beyond a reasonable doubt.”

Id. at 471 (emphasis added). The court then reviewed the evidence and found it sufficient to satisfy the state’s burden.

Id. Thus, in Harvey , the court for the first time explicitly linked the constitutional venue guarantee of Article I, section 11, with the common-law rule requiring proof of venue as a material allegation. But, as in Casey , the court provided no explanation for that linkage. It simply quoted

the constitution and stated the common-law rule.

After that, the court continued to quote Article I, section 11, and recite what had earlier been understood to be368 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 constitutional

ity of a “buffer” statute, by which the legislature provided that, when a crime has been committed within one mile of a county line, trial may occur in either county. In that case, the defendant had been charged and tried in Clackamas County for selling intoxicating liquor. The evidence at trial showed that the offense actually had been committed in Washington County, approximately 1,000 feet from the Clackamas County boundary. The defendant argued that the matter should have been dismissed for want of proof of venue. This court disagreed. The court concluded that the statute providing for trial somewhere other than where the offense was actually committed was “not an unreasonable exercise of legislative discretion.” Id. at 138. The court but

tressed its conclusion with a quotation from a Wisconsin Supreme Court decision concerning the intended meaning of that state’s constitutional venue guarantee, which this court noted was identical to this state’s guarantee:

“ ‘The object of this provision is to protect the defendant against a spirit of oppression and tyranny on the part of our rulers, and against a spirit of violence and vindictiveness on the part of the people; and also to secure the party accused

6 See also State v. Evans , 143 Or 603, 612-13, 22 P2d 496 (1933) (stating rule without citing authority); State v. Jones , 240 Or 129, 130-35, 400 P2d 524 (1965) (citing Casey

, Harvey

, Miller , and Evans ); State v.Cooksey , 242 Or 250, 251-52, 409 P2d 335 (1965) (citing Jones ); State v. Hutcheson , 251 Or 589, 591-92, 447 P2d 92 (1968) (citing Cooksey and Jones ); State v. Roper , 286 Or 621, 623-30, 595 P2d 1247 (1979); State v. Cervantes , 319 Or 121, 873 P2d 316 (1994) (citing Cooksey and

Jones ).Cite as 354 Or 350 (2013) 369

from being dragged to a trial at a distant part of the State, away from his friends and witnesses and neighborhood, and thus to be subject to the verdict of mere strangers, who may feel no common sympathy, or who may even cherishanimosities 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 dis

missed the defendant’s objections about venue by invoking the justification for the federal constitutional venue and vic

inage guarantees, not the common-law rule. See also State v. Roper , 286 Or 621, 628-29, 595 P2d 1247 (1979) (tracing ori

gins of constitutional venue guarantee not to common law,but to the Virginia Resolves and concerns about British deportation of colonists for trial in England).

D. Stare Decisis

To summarize, our analysis under Priest estab

lishes that the wording of the venue guarantee of Article I, section 11, by its terms, expresses a defendant’s right to a criminal trial in a particular place. It says nothing about limitations on the jurisdiction of circuit courts or about sub

stantive proof of criminal offenses or, for that matter, proof of anything at trial. The context of the venue guarantee—

the other clauses of Article I, section 11—lists other rights of a criminal defendant, none of which has ever been inter

preted to require particular proof at trial.

The historical circumstances fail to show that the framers of the Oregon Constitution would have understood the venue guarantee of Article I, section 11, to mean some

thing different from what we have noted that its wording suggests. The historical record shows only that the fram

ers would have understood that, while the common law may370 State v. Mills

have required proof of venue in order to establish the juris

diction of the trial court, the constitution guaranteed a right not to be dragged away to a distant place of trial—a right that would be subject to waiver if not asserted.

This court’s past case law nevertheless has con

cluded that proof of venue as a material allegation is required by Article I, section 11. Those cases, however, reached that conclusion without analysis. Since 1923, the court has sim

ply stated the conclusion. Certainly, in no case has this court examined the issue in accordance with the interpre

tive analysis that Priest requires.

In Stranahan v. Fred Meyer, Inc. , 331 Or 38, 53, 11 P3d 228 (2000), this court explained that the question whether to overrule a prior constitutional decision entails balancing two competing considerations: stability in the law and “the need to be able to correct past errors.” Sometimes, the court said, the need to correct past errors can outweigh the importance of stability. Id. “This court,” it explained, “is the body with the ultimate responsibility for construing ourconstitution, and, if we err, no other reviewing body can remedy that error.” Id.

Although this court does not lightly overrule an ear

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

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

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

that Article IV, section 1, does not extend so far as to confer that right. The contrary holding of Whiffen II was error, and it is disavowed.”

Id. at 65-66. 7

In this case, we confront a similar line of cases, which adopted an interpretation of Article I, section 11, that even defendant acknowledges finds no support in the word

ing of the constitution. As we have noted, the prior case law also finds no support in the historical circumstances of the adoption of the constitutional venue guarantee. Under the circumstances, we conclude that it is appropriate to over

rule Casey

, Harvey , and subsequent decisions holding that the venue guarantee of Article I, section 11, requires the state to prove venue beyond a reasonable doubt as a mate

rial allegation of every criminal case. 8

Accordingly, we hold that Article I, section 11, enumerates a defendant’s right to a trial in a particular place: “the county in which the offense shall have been committed.” It does not codify the common-law rule requiring the state to prove venue as a material allegation. The old common-law rule was one of jurisdiction. The constitutional guarantee is a matter of personal right, which—like other constitutional rights—may be forfeited if not timely asserted. Cf. State v.

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

7 See also Savastano , 354 Or at 95-96 (overruling prior constitutional decision because “application of the court’s methodology in Priest for interpreting consti

tutional provisions persuades us that [the prior case] * * * finds little support in the text or history” of the constitution); State v. Christian , 354 Or 22, 38-40, 307 P3d 429 (2013) (overruling prior constitutional case law that was not supported by analysis or explanation); Yancy v. Shatzer , 337 Or 345, 362, 97 P3d 1161 (2004) (overruling prior case that recognized exception to mootness doctrine “without undertaking any effort to determine whether such an exception was compatible with the scope of the judicial power granted under the Oregon Constitution”).

8 Defendant does not argue that, independently of Article I, section 11, there is a common law proof of venue requirement that survives the adoption of statutes pertaining to jurisdiction and venue in criminal cases. See, e.g. , ORS 131.305 to

131.415.372 State v. Mills

be precluded from asserting certain constitutional rights not timely asserted).

There remains the question of when the right must be asserted to avoid waiver. Courts in other jurisdictions that do not treat venue as a material allegation that must be proved at trial require a defendant to put venue at issue before trial by an appropriate motion; if an issue of fact is raised by such a motion, it is resolved at a pretrial eviden

tiary hearing by the court, with the prosecution bearing the burden of proof. See generally LaFave, 4 Criminal Procedure § 16.1(f) (citing cases). 9 The Washington Supreme Court, for example, has concluded that its state’s constitutional venue guarantee generally requires a defendant to raise the issue of venue before trial begins—that is, before the jury is empaneled, in the case of a jury trial, and before the court begins to hear evidence, in a trial to the court. State v. Dent

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

9 There is also an issue of the standard of proof, that is, whether the state must establish venue by a preponderance of the evidence or beyond a reasonable doubt. Other state courts addressing the issue have split. Some courts hold that the state must establish venue beyond a reasonable doubt. See, e.g.

, Bulloch v. State , 293 Ga 179, 187, 744 SE2d 763 (2013) (“Venue is a jurisdictional element of every crime and the state has the burden of proving venue beyond a reasonable doubt.”);

Peterson v. Houston , 284 Neb 861, 869, 824 NW2d 26 (2012) (“we have held that the State must prove proper venue beyond a reasonable doubt”); People v. Jones , 219 Ill 2d 1, 33, 845 NE2d 598 (2006) (“[V]enue was a material element of the offense and the state was required to prove the element beyond a reasonable doubt.”). Others hold that venue may be established by a preponderance of the evidence. State v. Roybal , 139 NM 341, 349, 132 P3d 598 (2006) (“[B]ecause venue is not an element of the crime charged, it may be established by a mere preponderance.”); State v.

Parker , 116 So 3d 744, 749 (La 2013) (“Objections to venue must be raised by a motion to quash to be ruled on by the court in advance of the trial. At the hearing, the burden is on the State to prove venue by a preponderance of the evidence.”);

Fulmer v. State , 401 SW3d 305, 317 (Tex App 2013) (“The State bears the burden of proving venue by a preponderance of the evidence.”). Most of the state courts concluding that the higher burden of proof applies, however, also hold that venue is a material allegation or element; conversely, most of those holding that the lesser standard applies conclude that venue is not a material allegation or element. In light of our disposition, we need not resolve that question in this case.

10 See also Derry v. Commonwealth , 274 SW3d 439, 442 (Ky 2008) (since venue is not “jurisdictional,” it is “waived” by failing to raise the issue before trial); State

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

tion, appellant waived the issue [of venue].”); State v. Allen , 293 NW2d 16, 18 (Iowa 1980) (“considering first the time for ruling upon a defendant’s venue objection, we conclude that the defendant must secure a ruling by the trial court before trial after the parties have had an opportunity for an evidentiary hearing or he waives the issue of improper venue”); Smith v. State , 116 Md App 43, 53, 695 A2d 575 (1997) (improper venue “must be raised by motion before trial”).Cite as 354 Or 350 (2013) 373

That seems to us an appropriate requirement. First, given that the purpose of the right is to protect a defen

dant from the hardship and potential unfairness of being required to stand trial in a distant place, it makes sense that the matter of venue should be resolved as soon as possi

ble before the trial itself. Second, requiring a timely pretrial objection precludes a defendant from waiting until the trial has begun to raise the issue of venue, thus creating the need to start the trial over again or, worse, spawning potential double-jeopardy problems. 11

We turn, then, to the disposition of this case. 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 guaran

tees but by statutes and rules of criminal procedure. In that regard, we note that Oregon statutes likewise prescribe requirements for challenging venue in criminal

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

lenge is predicated solely on Article I, section 11. We therefore express no opinion about the constitutionality, interpretation, or applicability of those statutes.

11 Under traditional analysis of the federal double-jeopardy guarantee, most courts conclude that dismissal for want of venue does not constitute an acquittal

and therefore does not bar a retrial. See, e.g.

, Burks v. United States , 437 US 1, 98 S Ct 2141, 57 L Ed 2d 1 (1978). But some state courts have concluded that con

stitutional double-jeopardy guarantees do preclude a retrial following dismissal for improper venue. See, e.g.

, Williams v. State , 634 NE2d 849 (Ind App 1994) (dis

missal for improper venue “brought an end to the jeopardy which had attached
when the first witness was sworn”).374 State v. Mills

will have the opportunity to contest—that Washington County is the appropriate venue. If the court concludes that the state has met its burden of establishing venue, the judg

ment of the circuit court must be reinstated.

The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.