Determination of Proper Venue

2.12Determination of Proper Venue

A.General Rules Based on Political District and Location of Criminal Conduct

Common Law. “The general venue rule is derived from the common law” and requires a criminal trial to be tried by a jury in the county or city where the crime was committed. People v McBurrows, 504 Mich 308, 314 (2019). However, statutes exist that contain “certain exceptions to or expansions of the ‘general rule,’ allowing venue in locations besides the location provided for int he ‘general rule.’” Id. at 313. Accordingly, “identifying a proper venue is a two-step process: first, [the court] must identify the proper venue under the general rule; second, [it] must determine whether the statutes on which the People rely permit departure from the general rule.” Id. at 313-314. “[T]o identify where defendant’s crime was committed, [the court] must scrutinize the statute creating defendant’s offense.” Id. at 317. Two common ways to identify the prohibited conduct are to analyze the key verbs in the statute or inquire into the nature of the offense. Id. (holding “a violation of MCL 750.317a [(delivery of a controlled substance causing death)] occurs at the place of the delivery of the controlled substance,” rather than where the death occurred, because the statute punishes the act of inserting the controlled substance into the stream of commerce; “[t]hat consequences are felt elsewhere is immaterial, even if those consequences are required elements of the offense”).

MCL 600.8312 sets out general venue rules based on the type of district in which the criminal conduct took place.

First-Class Districts. For criminal actions in first-class districts, the proper venue is the county where the violation took place. MCL 600.8312(1). A first-class district is “a district consisting of 1 or more counties and in which each county comprising the district is responsible for maintaining, financing and operating the district court within its respective county[.]” MCL 600.8103(1).

Second-Class Districts. For criminal actions in second-class districts, the proper venue is in the district where the violation took place. MCL 600.8312(2). A second-class district is “a district consisting of a group of political subdivisions within a county and in which the county where such political subdivisions are situated is responsible for maintaining, financing and operating the district court[.]” MCL 600.8103(2).

Third-Class Districts. For criminal actions in third-class districts, the proper venue is “in the political subdivision where the violation took place, except that when the violation is alleged to have taken place within a political subdivision where the court is not required to sit, the action may be tried in any political subdivision within the district where the court is required to sit.” MCL 600.8312(3). A third class district is “a district consisting of 1 or more political subdivisions within a county and in which each political subdivision comprising the district is responsible for maintaining, financing and operating the district court within its respective political subdivision[.]” MCL 600.8103(3).

Other Exceptions. Several statutes provide exceptions to the general rule that venue is appropriate in the county in which the crime was committed. See McBurrows, 504 Mich at 313-314. The following subsections address some of these exceptions.

B.Criminal Conduct Near County Boundary Lines

When an offense is committed within one mile of the boundary line between two counties, the prosecution may take place in either county. MCL 762.3(1) provides:

“Any offense committed on the boundary line of 2 counties, or within 1 mile of the dividing line between them, may be alleged in the indictment to have been committed, and may be prosecuted and punished in either county.”

Additionally, with respect to criminal offenses cognizable in the district court, MCL 600.8312(4)(a) provides that if the “offense is committed on the boundary of 2 or more counties, districts, or political subdivisions or within 1 mile thereof, venue is proper in any of the counties, districts, or political subdivisions concerned.” See also MCL 762.3(3)(a).

C.Acts Occurring at More Than One Location

1.Felony Consisting of Two or More Acts

MCL 762.8 provides:

“Whenever a felony consists or is the culmination of 2 or more acts done in the perpetration of that felony, the felony may be prosecuted in any county where any of those acts were committed or in any county that the defendant intended the felony or acts done in perpetration of the felony to have an effect.”

For venue to be proper under the portion of MCL 762.8 providing for venue “in any county that the defendant intended the felony or acts done in perpetration of the felony to have an effect,” there must be evidence that the defendant intended the effect of his or her criminal actions to occur in that county. People v McBurrows, 504 Mich 308, 326-327 (2019). “For MCL 762.8 to apply, there must have been an ‘act[] done in the perpetration of [that] felony’ in [the county where the crime is charged].’” McBurrows, 504 Mich at 327, quoting MCL 762.8 (first alteration in the original). “[T]he Legislature’s use of the word ‘perpetration’ serves to limit the application of MCL 762.8 to the conduct of a criminal actor or his agent.” McBurrows, 504 Mich at 328.

In McBurrows, 504 Mich at 312, the defendant was charged in Monroe County with one count of delivery of a controlled substance (heroin mixed with fentanyl) causing death, MCL 750.317a. Although the victim ultimately died in Monroe County as a result of fentanyl toxicity, the drug transaction took place in Wayne County between defendant and an intermediary, who later provided the drugs to the victim. McBurrows, 504 Mich at 311. Where there was no allegation “that defendant endeavored to deliver [a] controlled substance to the decedent, or that he intended the decedent’s death, . . . MCL 762.8 [was] not an adequate basis for establishing venue in Monroe County . . . because the decedent’s acts (which were necessary to complete the elements of the offense) were unconnected to defendant’s and therefore did not implicate the decedent or make him culpable for defendant’s behavior.” McBurrows, 504 Mich at 328.

2.Fatal Force and Death in Different Counties

MCL 762.5 provides:

“If any mortal wound shall be given or other violence or injury shall be inflicted, or any poison shall be administered in 1 county by means whereof death shall ensue in another county, the offense may be prosecuted and punished in either county.”

In People v McBurrows, 504 Mich 308, 312 (2019), the defendant was charged in Monroe County with one count of delivery of a controlled substance (heroin mixed with fentanyl) causing death, MCL 750.317a. Although the victim ultimately died in Monroe County as a result of fentanyl toxicity, the drug transaction took place in Wayne County between defendant and an intermediary, who later provided the drugs to the victim. McBurrows, 504 Mich at 311. The Michigan Supreme Court concluded that venue was improper in Monroe County because “venue under MCL 762.5 requires more direct interaction with the victim[.]” McBurrows, 504 Mich at 326 (“[d]efendant neither imposed anything on the decedent nor gave anything to the decedent”). “The statute requires that a mortal wound be inflicted, or a poison be administered.” Id. (distinguishing People v Southwick, 272 Mich 258, 260 (1935), where venue was proper in the county where death occurred because “the defendant doctor provided [the decedent] with unlawful medical treatment”).

3.Criminal Conduct Involving Identity Theft and Related Offenses

Under MCL 762.10c, conduct prohibited by MCL 762.10c(2) may be prosecuted in any one of the following jurisdictions:

•where the offense occurred.

•where the information used to commit the violation was illegally used.

•where the victim resides.

MCL 762.10c(2) states that the jurisdiction described in MCL 762.10c(1) “applies to conduct prohibited under 1 or more of the following laws and to conduct that is done in furtherance of or arising from the same transaction as conduct prohibited under 1 or more of the following laws:”

•MCL 445.61—MCL 445.79c (Identity Theft Protection Act).

•Former MCL 750.285 (identity theft).

•MCL 28.295 (prohibited conduct relating to official state personal identification cards).

•MCL 257.310(7) (prohibited conduct relating to driver licenses).

•MCL 257.903 (false certification under Michigan Vehicle Code).

•MCL 750.157n—MCL 750.157r, MCL 750.157v, and MCL 750.157w (criminal use of financial transaction device).

•MCL 750.218 (false pretenses with intent to defraud).

•MCL 750.219a (obtaining telecommunications services with intent to avoid being charged).

•MCL 750.219e (preparing/submitting unauthorized loan application).

•MCL 750.248 (prohibited conduct relating to public records).

•MCL 750.248a (uttering/publishing a false, forged, altered, or counterfeit financial transaction device with intent to injure or defraud another person).

•MCL 750.249 (knowingly uttering/publishing as true a false, forged, altered, or counterfeit record or other instrument).

•MCL 750.362 (larceny by conversion).

•MCL 750.363 (larceny by false personation).

•MCL 750.539k (unauthorized use of a financial transaction device to secretly or surreptitiously capture or transmit personal identifying information.

If an individual is charged with multiple counts of identity theft under MCL 445.61—MCL 445.79c, or secretly or surreptitiously capturing or transmitting personal identifying information from a transaction that involves the use of a financial transaction device by a person who is not a party to a transaction under MCL 750.539k, and the violations could be prosecuted in more than one jurisdiction, all violations may be properly prosecuted in any of the applicable jurisdictions. MCL 762.10c(3).

4.Accessory After the Fact

Because commission of the underlying crime is an element of any accessory after the fact charge, the prosecution of such a charge is proper in the county where the underlying crime was committed, even when the actual assistance was rendered in a county different from the county in which the underlying crime occurred. People v King, 271 Mich App 235, 237, 242-243 (2006), citing MCL 762.8. Similarly, even when the assistance was rendered in a state other than Michigan, jurisdiction to try a defendant charged with accessory after the fact lies in Michigan because “MCL 762.2(2)(a) provides that Michigan has jurisdiction over any crime where any act constituting an element of the crime is committed within Michigan.” King, 271 Mich App at 243.¹

5.Aiding and Abetting

Under MCL 767.39, defendants may “’be prosecuted, indicted, [and] tried . . . as if [they] had directly committed’” the offense that they are charged with aiding and abetting. People v White, 509 Mich 96, 102 (2022), quoting MCL 767.39. “Under this law, aiding and abetting is not a distinct criminal act; rather, it is a theory of prosecution that imposes vicarious criminal liability on an accomplice for the acts of the principal.” Id. at 102. “The text of MCL 767.39 does not require that a defendant have any knowledge of the location of the offense [the defendant] aids or abets; having procured, counseled, aided, or abetted in the commission of the offense, the defendant can be prosecuted as if [the defendant] had directly committed such offense, such as in the venue where the offense was directly committed.” White, 509 Mich at 104 (cleaned up). Accordingly, “the county in which the criminal act of the principal occurred is a proper venue” “for a criminal prosecution under an aiding and abetting theory.”Id. at 96, 99 (holding that the proper venue for prosecution of defendant under the aiding and abetting statute was Livingston County where the principal—charged with delivery of a controlled substance causing death—allegedly purchased the controlled substance from defendant in Macomb County but delivered the controlled substance in Livingston County).

D.Location of Offense Impossible to Determine

MCL 762.3(2) provides:

“If it appears to the attorney general that a felony has been committed within the state and that it is impossible to determine within which county it occurred, the offense may be alleged in the indictment to have been committed and may be prosecuted and punished in such county as the attorney general designates. The state shall bear all expenses of such prosecution. The responsibility and the authority with reference to all steps in the prosecution of such case shall be the same, as between the prosecuting attorney of the county so designated and the attorney general, as though it were an established fact that the alleged criminal acts, if committed at all, were committed within that county.”

Additionally, with respect to criminal offenses cognizable in the district court, MCL 600.8312(4)(b) provides that if the “offense is committed in or upon any railroad train, automobile, aircraft, vessel, or other conveyance in transit, and it cannot readily be determined in which county, district, or political subdivision the offense was committed, venue is proper in any county, district, or political subdivision through or over which the conveyance passed in the course of its journey.” See also MCL 762.3(3)(b).

Furthermore, with respect to proceedings in the district court, MCL 762.3(3)(c) provides:

“With regard to state offenses cognizable by the examining magistrate and to examinations conducted for offenses not cognizable by the examining magistrate, the following special provisions apply:

* * *

(c) Except as otherwise provided in [MCL 762.3(3)(b)], if it appears to the attorney general that the alleged state offense has been committed within the state and that it is impossible to determine within which county, district or political subdivision it occurred, the violation may be alleged to have been committed and may be prosecuted and punished or the examination conducted in such county, district or political subdivision as the attorney general designates. The responsibility and the authority with reference to all steps in the prosecution of such case shall be the same, as between the prosecuting attorney of the county so designated and the attorney general, as though it were an established fact that the alleged criminal acts, if committed at all, were committed within that county, district or political subdivision.”

E.Proceedings in District Court

Special venue rules apply with respect to criminal offenses cognizable in the district court and to preliminary examinations conducted in the district court. MCL 600.8312(4) provides:

“With regard to state criminal violations cognizable by the district court, the following special provisions shall apply:

(a) If an offense is committed on the boundary of 2 or more counties, districts, or political subdivisions or within 1 mile thereof, venue is proper in any of the counties, districts, or political subdivisions concerned.

(b) If an offense is committed in or upon any railroad train, automobile, aircraft, vessel, or other conveyance in transit, and it cannot readily be determined in which county, district, or political subdivision the offense was committed, venue is proper in any county, district, or political subdivision through or over which the conveyance passed in the course of its journey.”

MCL 762.3(3) provides:

“With regard to state offenses cognizable by the examining magistrate and to examinations conducted for offenses not cognizable by the examining magistrate, the following special provisions apply:

(a) If an offense is committed on the boundary of 2 or more counties, districts or political subdivisions or within 1 mile thereof, venue is proper in any of the counties, districts or political subdivisions concerned.

(b) If an offense is committed in or upon any railroad train, automobile, aircraft, vessel or other conveyance in transit, and it cannot readily be determined in which county, district or political subdivision the offense was committed, venue is proper in any county, district or political subdivision through or over which the conveyance passed in the course of its journey.

A district court has no authority to grant a motion for change of venue before a preliminary examination is held. In re Attorney General, 129 Mich App 128, 132 (1983). MCL 762.7, the statute granting courts of record authority to change venue in criminal cases, is only applicable to circuit courts in felony cases. In re Attorney General, 129 Mich App at 131.²