Frisbey v. State

Ruffin, Judge,

dissenting.

I dissent for the reasons stated in my dissent in Joiner v. State, 231 Ga. App. 61 (1) (497 SE2d 642) (1998).

In this case, the only evidence “proving” venue in DeKalb County was the police officer’s testimony that: (1) he worked for DeKalb County Public Safety; (2) he responded to a call “at McDonald’s on Evans Mill and 1-20”; and (3) he contacted “DeKalb Communications” to verify the existence of the Cobb County warrant. Accordingly, I cannot agree that this evidence is sufficient to prove venue beyond a reasonable doubt.

Our Supreme Court has made clear that “when the evidence is not conflicting and when no challenge to venue is raised at trial, slight evidence is sufficient to prove venue.” Minter v. State, 258 Ga. 629 (1) (373 SE2d 359) (1988). Nevertheless, in Graves v. State, 269 Ga. 772, 773-774 (1) (504 SE2d 679) (1998) the Supreme Court reiterated that “[v]enue is a jurisdictional fact that must be proved by the prosecution beyond a reasonable doubt. . . . When there is insufficient evidence of venue, the verdict rendered is contrary to law and without sufficient evidence to support it.” Graves, supra at 773 (1). In other words, the “slight evidence” rule was not meant to abrogate the State’s burden of proving every element of the crime alleged, including venue, beyond a reasonable doubt.

What constitutes slight evidence? This Court has repeatedly held that the street address is insufficient to prove venue. Waller v. State, 231 Ga. App. 323, 326 (498 SE2d 362) (1998) (physical precedent only); Clark v. State, 213 Ga. App. 313, 315 (3) (444 SE2d 806) (1994) (physical precedent only); Patterson v. State, 157 Ga. App. 233, 234 (276 SE2d 900) (1981). Consequently, the evidence that the incident occurred at Evans Mill and 1-20 does not establish venue.

In Joiner, supra, a majority of this Court held that slight evidence of venue may exist when a law enforcement officer testifies regarding which county he works for. The majority stated that “the State is at least entitled to an inference that the officer acted within his territorial jurisdiction.” (Punctuation omitted.) Id. at 61. However, this holding overly minimizes the State’s burden of proof. “[E]vidence showing only a bare suspicion is not sufficient. Testimony constituting mere surmise or conjecture most certainly lies within this latter category.” (Citations and punctuation omitted.) *887Brinkworth v. State, 222 Ga. App. 288, 290 (474 SE2d 9) (1996) (Ruffin, J., dissenting).

Decided March 11, 1999. Paul J. McCord, for appellant. J. Tom Morgan, District Attorney, Robert M. Coker, Assistant District Attorney, for appellee.

Joiner relied upon the Supreme Court’s decision in Minter, supra, for the proposition that evidence of which county the investigating officer worked for is sufficient to prove venue. Joiner, 231 Ga. App. at 62. However, in Minter, the police officer’s employer was not the only evidence of venue relied upon by the Supreme Court. In addition, the State established that the victim was taken to GriffinSpalding County Hospital, and the trial court took judicial notice that Griffin is wholly within Spalding County. Minter, 258 Ga. at 629-630.

Although Graves does not address what evidence the State must produce to establish venue, it does remind us that the State must prove venue beyond a reasonable doubt. Allowing the State to prove venue “by simply showing that the crime was investigated by an officer of the forum county” improperly absolves the State of its burden to prove venue. Hunter v. State, 191 Ga. App. 219, 221 (381 SE2d 525) (1989) (McMurray, P. J., dissenting). Consequently, I believe we should overrule Joiner and conclude that, to establish venue beyond a reasonable doubt, the State must do more than merely show the forum county for which the investigating officer worked.

Where venue is not established by the State, any ensuing judgment is void, although reversal of a conviction on this basis does not prevent retrial in a court where venue is proper and proven. Because the only evidence of venue in this case constituted mere conjecture, I believe the conviction should be reversed.

(Citations and punctuation omitted.) Accordingly, I dissent from the majority holding in Division 2. Brinkworth, supra at 291.