Section 13.29 General Venue Principles

• Library: Criminal Practice 2012 Supp

A. (§13.29) General Venue Principles

The Sixth Amendment to the United States Constitution guarantees trial by a jury of the state and district in which the crime was committed. State v. Garrett, 416 S.W.2d 116, 118–19 (Mo. 1967). Section 541.033, RSMo Supp. 2004, provides that prosecutions shall be in any county where an element of the offense was committed. Failure to prove venue can be fatal to the state’s case. When the evidence is insufficient to support a finding that venue for the charge of conviction was properly laid, a conviction cannot stand. State v. Poelker, 378 S.W.2d 491 (Mo. banc 1964).

Venue is a question of fact that ordinarily must be decided by the jury. United States v. Miller, 111 F.3d 747 (10^th Cir. 1997); State v. Seaton, 817 S.W.2d 535, 536 (Mo. App. E.D. 1991). But venue is not an integral part of an offense and does not need to be proved beyond a reasonable doubt or by direct evidence, but may be inferred by all the evidence. State v. Lingar, 726 S.W.2d 728, 732 (Mo. banc 1987), cert. denied, 484 U.S. 872 (1987); but see United States v. Netz, 758 F.2d 1308 (8^th Cir. 1985) (proof of venue is an essential element of the government’s case). If the evidence of venue is in conflict, the defendant is entitled to a jury instruction regarding it. Id.

Complaints regarding proper venue are waived if the defendant fails to object at trial or before. State v. Leigh, 423 S.W.2d 690 (Mo. 1968); State v. Davis, 107 S.W.3d 410 (Mo. App. W.D. 2003) (defendant filed motion for change of venue out of time by filing it over a year after arraignment and two months before trial); Winningham v. State, 646 S.W.2d 145 (Mo. App. S.D. 1983). But if the defendant has no notice of the defect until the government rests its case, an objection is timely at the close of the evidence. Netz, 758 F.2d 1308.

When a defendant requests a change of venue, there is no guarantee that the...