Venue Vexation

When you open a discussion by saying “I came across a really interesting venue issue the other day,” reactions typically range from “I doubt it” to “could we please talk about something else?”

But hear me out on this one — it’s a puzzler.

The Scenario

Two people get in a car in Asheville, planning to drive to Wilmington for a long weekend. When they arrive, instead of heading to the beach, the driver pulls into the nearest police station. He walks in and informs the desk officer that at some point during the trip, he got into an argument with the passenger, pulled out a knife and stabbed him in the chest, killing him almost instantly. The driver says that he “zoned out” afterward, and he has no idea whether the homicide happened 5 minutes or 5 hours ago. The medical examiner is able to give a rough estimate of the time of death (a window of a few hours, give or take) but on these facts that means the stabbing could have taken place in a number of different counties. Did the homicide occur in Davie? Forsyth? Guilford? Alamance? Orange? Sure, maybe. Or maybe not. We don’t know.

Where is the proper venue for prosecuting this case?

The Statutes We Have

In the vast majority of cases, determining the proper venue is far more obvious and simple. The crime occurred in X county, so venue lies in X county. See G.S. 15A-131(a), (c) (venue “lies in the county where the charged offense occurs”). Additionally, a crime “occurs” in a county if “any act or omission constituting part of the offense” occurs within that county. G.S. 15A-131(d).

Occasionally, the acts constituting an offense may span more than one county (e.g., a kidnapping that crosses three counties), in which case each county has “concurrent venue” to hear the case. G.S. 15A-132(a). Similarly, if there were multiple separate offenses committed across several counties, but those offenses are joinable (e.g., an abduction in X county and a related murder in Y county), each county has “concurrent venue as to all charged offenses.” G.S. 15A-132(b). Whichever county is the first to issue criminal process then obtains “exclusive venue.” G.S. 15A-132(c). If that county dismisses its charges, another county with concurrent venue may bring its own charges and become the new exclusive venue. See State v. Paige, 316 N.C. 630 (1986).

Finally, there are several “offense specific” venue statutes that cover particular scenarios such as a sex offense that involves transporting the victim (G.S. 15A-136), an assault in one county resulting in death in another (G.S. 15-130, 133), identity theft (G.S. 14-113.21), an offense that occurs in more than one state (G.S. 15A-134), and more. But all of those statutes are premised on knowing where the acts constituting the offense actually took place.

The Statute We Don’t Have

None of the statutes above are a good fit for this particular situation. This was neither an ongoing offense that spanned multiple counties, such as a kidnapping, nor is there a joinable offense that can be pinned down to a specific county, such as an attempt to conceal the death. This was an isolated incident that happened in one and only one location — we just don’t know where that location was.

Some other states have venue statutes that account for this kind of uncertainty. For example, Georgia has a statute for crimes committed “while in transit” which states that “[i]f a crime is committed upon any railroad car, vehicle, watercraft, or aircraft traveling within this state and it cannot readily be determined in which county the crime was committed, the crime shall be considered as having been committed in any county in which the crime could have been committed through which the railroad car, vehicle, watercraft, or aircraft has traveled.” Ga. Code Ann. 17-2-2(e) (emphasis added). See, e.g., Short v. State, 276 Ga. App. 340, 623 S.E.2d 195 (2005).

As far as I can tell, the closest analogue we have under North Carolina law is G.S. 15-129, which states that if an offense is committed on a body of water, venue to investigate and prosecute the case is proper “in either of the two counties which may be nearest to the place where the offense was committed.” That seems to address some of the same concerns covered by the Georgia statute, but of course it’s not much help in resolving cases that happen on dry land.

Let’s Play This Out…

Based on its position right in the middle of the medical examiner’s time frame, Guilford County decides to bring the homicide charge, arguing that it probably happened there. If the defendant fails to make a timely challenge to venue in Guilford County, the state’s problem is solved: “Allegations of venue in any criminal pleading become conclusive in the absence of a timely motion to dismiss for improper venue[.]” G.S. 15A-135.

But if the defendant does contest venue, the state bears the burden of showing that it is proper. “It is clear that when a defendant makes a motion to dismiss for improper venue in North Carolina, the burden is on the State to prove by a preponderance of the evidence that the offense occurred in the county named in the indictment.” State v. Louchheim, 32 N.C. App. 271 (1978), aff’d, 296 N.C. 314 (1979). If the Guilford County prosecutors are unable to meet that burden, the charge will be dismissed. See generally G.S. 15A-952(b)(5).

Double jeopardy would not bar any other county with a claim to proper venue from making its own attempt, but won’t the same problem face each subsequent county? If no county can show by a preponderance of the evidence that the crime occurred there, the defendant could prevail on motion to dismiss after motion to dismiss, until there was nowhere left to bring charges. In effect, the state would be left without the ability to prosecute a homicide.

So It’s a Perfect Crime? The Defendant Can’t Be Tried Anywhere?

Surely not. First of all, I realize that this scenario is unlikely to occur in real life. Most of the time, the state will have something else that helps narrow down the location of the crime. Phone records, security tapes from a gas station, traffic cameras, eyewitnesses — something. If nothing else, evidence showing that a homicide victim’s body was found in a particular county is considered prima facie evidence that the homicide occurred in that county, which is sufficient to establish venue there. See State v. Batdorf, 293 N.C. 486 (1977).

But it does not seem too farfetched to imagine that there could be other types of cases where it is not possible to pin down the exact location of the offense, and two or even three different counties may all be equally likely to be the place where the crime occurred. Imagine a drug manufacturer operating out of a mobile meth lab, or a homicide where the body is never found, or a human trafficking victim who doesn’t know exactly where she was taken or held. We know the offense happened, but did any “act or ommission constituting a part of the offense” happen in this county? Maybe, maybe not….

The idea that this could lead to a series of dismissals for improper venue, leaving the state with no ability to prosecute the case, would be contrary to the legislative intent of the venue statutes as a whole. In response to State v. Randolph, 312 N.C. 198 (1984), where the North Carolina Supreme Court held that a venue defect was jurisdictional and dismissed the convictions for out-of-county offenses, the General Assembly passed G.S. 15A-631 in 1985, which clarified that “the place for returning a presentment or indictment is a matter of venue and not jurisdiction.” In other words, challenges to where a case should be tried are not supposed to be dispositive as to whether the case can be tried at all.

Seriously, though – what’s the answer here?

I’m not certain. Obviously the state’s first and best remedy in every case is to dig deeper and try to figure out where the crime occurred. But if that’s not possible, and in the absence of a statute like the one Georgia has for cases where venue “cannot readily be determined” (or an appellate case imparting a comparable interpretation to our existing statutes), I think the state’s only option is to try to fit a square peg into a round hole.

Returning to our original homicide example, perhaps New Hanover should charge it, relying on the fact that the body was discovered in that county as prima facie evidence that the homicide likely occurred there (even though the medical examiner’s time of death indicates otherwise)? Or perhaps another county located along their travel route could charge the homicide, and argue that the entire journey in the car was part of the “act” constituting the offense (even though the homicide seems to be unrelated to their travel)?

I’m not very satisfied with these answers, so if any readers have suggestions, thoughts or experiences to share in the comments, please do.

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