Attorney for Appellant Attorneys for Appellee
Annette Fancher Bishop Steve Carter
Carmel, Indiana Attorney General of Indiana
Christopher C.T. Stephen
Deputy Attorney General
Indiana Supreme Court
Appellant (Defendant below),
State of Indiana,
Appellee (Plaintiff below).
Appeal from the Hamilton Superior Court, No. 29D04-0102-DF-858
The Honorable J. Richard Campbell, Judge
On Petition To Transfer from the Indiana Court of Appeals, No. 29A02-0202-CR-167
January 15, 2004
Harry Baugh was arrested for driving while intoxicated on a street whose center
lane is the border of two counties. He contends that the statute
allowing for a trial in either county is unconstitutional because he drove on
only one side of the road and has a right to be tried
in the county where the crime occurred. We hold that dangerous driving
on a highway creates risk on all lanes of the highway, and invades
interests of both counties in the case of a road that forms their
common border. Therefore venue in either county was proper.
Factual and Procedural Background
Just after 3:00 a.m. on January 31, 2001, Officer Derek Shelley of the
Carmel Police Department observed Baughs car weaving and speeding eastbound on 96th Street,
which forms the boundary between Marion and Hamilton Counties. Shelley pulled Baugh
over and asked Baugh if he had been drinking. Baugh admitted he
had, and Shelley administered a field sobriety test, which Baugh failed. Shelley
then took Baugh to the Carmel Police Station, in Hamilton County, where a
chemical test revealed Baughs blood alcohol level was .10, above the legal limit.
Baugh was charged in Hamilton County with operation of a motor vehicle with
a specific amount of alcohol in the body, a Class C misdemeanor; operating
while intoxicated, a Class A misdemeanor; and operating while intoxicated within five years
of a previous conviction for the same offense, a Class D felony.
At the conclusion of the evidence in a bench trial, Baugh moved for
Judgment on the Evidence arguing that the State had failed to prove the
proper venue was Hamilton County. The trial court denied the motion and
found Baugh guilty on all three counts. Baugh was sentenced to three
years imprisonment, with all but 180 days suspended, and an additional eighteen months
of probation. Baugh appealed, and the Court of Appeals reversed. Indiana
Code section 35-32-2-1(i) (2000) provides for venue in either county when the crime
occurs on a highway bordering two counties. The Court of Appeals held
that when all evidence points to the existence of venue in a particular
county, the statute must yield to the defendants state constitutional right to be
tried in the county where the crime is committed.
Baugh v. State,
781 N.E.2d 1141, 1144 (Ind. Ct. App. 2002). We granted transfer, and
now affirm the trial court.
The right to be tried in the county in which an offense was
committed is a constitutional and a statutory right. Ind. Const. Art. I,
§ 13; Ind. Code § 35-32-2-1(a) (2000); Alkhalidi v. State, 753 N.E.2d 625,
628 (Ind. 2001). Venue is not an element of the offense.
Id. Accordingly, although the State is required to prove venue, it may
be established by a preponderance of the evidence and need not be proven
beyond a reasonable doubt. Id.
The Indiana Constitution provides that, [i]n all criminal prosecutions, the accused shall have
the right to a public trial . . . in the county where
the offense has been committed . . . . Ind. Const. Art.
I, § 13. Indiana Code section 35-32-2-1 provides in part, [i]f an
offense is committed on a public highway . . . that runs on
and along a common boundary shared by two (2) or more counties, the
trial may be held in any county sharing the common boundary. I.C.
§ 35-32-2-1(i). A public highway is a street, an alley, a road,
a highway, or a thoroughfare in Indiana, including a privately owned business parking
lot and drive, that is used by the public or open to use
by the public. I.C. § 9-25-2-4 (1998). Baugh does not challenge
the fact that he was arrested on a highway as defined by the
statute. Rather, he argues that because the State failed to show a
nexus between the location of the crime and the venue for trial, subsection
(i) is unconstitutional as applied to him. We disagree.
In this case, the Court of Appeals reasoned that
Navaretta v. State, 726
N.E.2d 787 (Ind. 2000), allowed venue in an adjacent county when it could
not readily be determined in which county the offense occurred. The court
concluded that the venue statute applies only in situations where the evidence of
location of the crime is inconclusive. In contrast, here the evidence was
conclusive that Baugh never entered Hamilton County, so he contends Navaretta did not
apply by its terms. We agree that Navaretta does not confer venue
on Hamilton County under the facts of this case, but neither does that
decision preclude it.
Venue is not limited to the place where the defendant acted. To
the contrary, the legislature may provide for concurrent venue when elements of the
crime are committed in more than one county.
Joyner v. State, 678
N.E.2d 386, 390-91 (Ind. 1997). Similarly, where the precise location of the
act is unknowable, a defendant may not avoid trial on this basis.
Cutter v. State, 725 N.E.2d 401, 409 (Ind. 2000). We live in
an age of easy automobile access to neighboring county seats. County venue
stems from the notion that every citizen should have access to the seat
of government within a days ride on horseback. Baugh would insist on
linking venue to the county where he acted, to the exclusion of the
county whose citizens were endangered by his actions. Hamilton County and Marion
County officers properly patrol 96th Street and the legislature has deemed that each
should be able to arrest and participate in the prosecution of a violation
arising there without the waste of time and the delay involved in a
trial in another county. The statute recognizes this practicality.
Baughs offense had a sufficient nexus to Hamilton County on the undisputed facts.
Drunk driving poses a public danger, particularly to the public sharing the
roadway with the impaired driver.
See State v. Gerschoffer, 763 N.E.2d 960,
971 (Ind. 2002). Baugh argues that because he drove on the south
side of 96th Street, his offense occurred solely in Marion County and lacked
a nexus to Hamilton County. We have held that inadvertent consequences in
another county may not support venue over an offense committed solely in one
county. Wurster v. State, 715 N.E.2d 341, 350 (Ind. 1999) (Bureau of
Motor Vehicles processing of a false affidavit in Marion County, after the defendant
filed it in another county did not create a sufficient nexus for venue
in Marion County). However, if the defendant directs acts into a county,
venue is proper in that county. State v. Moles, 166 Ind. App.
337 N.E.2d 543, 550 (1975) (resident of another county mailing tax
returns to Marion County for filing with the State was sufficient nexus to
create venue in Marion County). Dangerous operation of a vehicle on one
side of a highway is a hazard to the entire road, even in
the case of a divided highway. Moreover, erratic driving on a road
patrolled by law enforcement officers from two counties is observable by both, and
requires both to respond. This is also an intrusion into both counties
and an imposition on the resources of both. Operators of vehicles know
or should know they trigger consequences on both sides of the road.
A driver on a border road thus knowingly imposes hazards in both counties.
Because the risks created by drunken driving on a boundary road do
not stop at the county boundary, a sufficient nexus exists between the place
of operation and either county. This is an application of the same
principles that justify concurrent venue where the defendant acts in one county and
the victim is in another, I.C. § 35-32-2-1(b), and allow for proper venue
in a homicide case in the county where the cause of death is
inflicted, the county where death occurs, or the county where the body is
found. I.C. § 35-32-2-1(c).
In short, we agree with those courts in other states with similar constitutional
venue limits who have held that the legislature may establish concurrent venue for
violations on or near borders.
See State v. Swainston, 676 P.2d 1153,
1154 (Ariz. Ct. App. 1984); State v. McCown,
833 P.2d 1321, 1322 (Or.
Ct. App. 1992).
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.