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Appellant argues venue was not proven in Warren County; state says issue waived
Summary
Appellant counsel argued the prosecution failed to prove venue by a preponderance and that venue may be jurisdictional in criminal cases; the state countered that venue was waived by not raising it at the earliest trial stages and urged the court to treat it as forfeited on appeal.
Drew Justice, attorney for appellant Lorenzo Brown, told the appellate panel that the trial record contains insufficient proof that the shooting occurred in Warren County and asked the court to order relief, including a new trial or dismissal where appropriate.
Justice argued the prosecution’s evidence tying the incident to “West Riverside Apartments” in McMinnville did not establish by a preponderance that the crime occurred within Warren County. He said the record lacked proof that McMinnville is entirely within Warren County and noted that the state’s proof that the injured person was taken to a Warren County hospital is not probative of where the offense occurred. “So even if that complex is partly in McMinnville, it would prove that the specific crime happens in McMinnville. That's even assuming that we could prove that we had any evidence that McMinnville is even in Warren County, which we don't,” Justice told the panel.
The state, through Alan Groves, responded that venue challenges were waived because the defense did not raise venue at the earliest permissible points in the trial — for example, at the Rule 29 motion for judgment of acquittal or specifically in the motion for new trial — and cited controlling precedent that the remedy for lack of venue is generally a new trial rather than dismissal. Groves said jurors could reasonably infer McMinnville lies within Warren County and that the totality of witness testimony, addresses and law-enforcement response supported venue by preponderance.
The parties contested whether venue in criminal cases is jurisdictional and therefore unwaivable. Justice argued the cases the state cited distinguish civil venue (where venue is a matter of convenience) from criminal venue, and he urged the panel to treat criminal venue as a jurisdictional issue that cannot be forfeited. Groves urged the court to follow more recent decisions and treat venue as distinct from subject-matter jurisdiction, meaning it can be forfeited if not timely raised.
The court asked whether the record is sufficient for the panel to infer venue from the jury instructions and testimony; the defense said no and suggested the trial court could have taken judicial notice of municipal boundaries but did not do so. No ruling was announced at argument; the matter remains under advisement.
