Attorney for Appellant Attorneys for Appellee
Annette Fancher Bishop Steve Carter
Carmel, Indiana Attorney General of
Indiana
Christopher C.T. Stephen
Deputy Attorney General
Indianapolis, Indiana
________________________________________________________________________
In the
Indiana Supreme Court
_________________________________
No. 29S02-0301-CR-22
Harry Baugh,
Appellant (Defendant below),
v.
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
Boehm, Justice.
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 Baugh’s 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 Baugh’s
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 defendant’s 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.
Constitutionality
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 day’s 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.
Baugh’s 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. 632, 639, 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).
Conclusion
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.