This case requires us to determine whether the statutory venue provisions set forth for the crime of identity fraud in OCGA § 16-9-125 satisfy the mandate of the Georgia Constitution that a criminal case must be tried in the county where the crime was committed. We find, as more fully discussed below, that OCGA § 16-9-125 as it is currently drafted is unconstitutional to the limited extent that it provides that venue for identity fraud is proper in the county where the victim resides or is found, irrespective of whether the defendant obtains or records identifying information of the victim or accesses or attempts to access the resources of the victim in the county of the victim’s residence. The record shows that, sometime between November 22, 2003 and December 31, 2003, Owanna Lloyd, a resident of Clayton County, misplaced his wallet in Fulton County. Later, Mayze took Lloyd’s wallet and, using the information it contained, accessed Lloyd’s credit history at least once in DeKalb County. Mayze was subsequently arrested and charged in Clayton County with two counts of identity fraud. OCGA § 16-9-121. It is undisputed that Lloyd’s residence is the sole nexus between Mayze’s crimes and Clayton County. After being charged and indicted, Mayze filed a special and general demurrer to the indictment, contending that the statutory provision placing venue for the crime of identity fraud in the county where “the victim resides or is found” violated our constitution’s venue mandate. After a hearing, the trial court granted Mayze’s demurrer, and the State appeals.
Art. VI, Sec. 2, Par. VI of the Georgia Constitution provides: “All criminal cases shall be tried in the county where the crime was committed, except cases in the superior courts where the judge is satisfied that an impartial jury cannot be obtained in such county.”1 In criminal cases, venue requirements generally are for the benefit of the defendant, and “venue is a jurisdictional fact that must be proved by the prosecution beyond a reasonable doubt.” Graves v. State , 269 Ga. 772, 773 1 504 SE2d 679 1998. Addressing venue for the crime of identity fraud, OCGA § 16-9-125 states, in turn: The General Assembly finds that identity fraud involves the use of identifying information which is uniquely personal to the consumer or business victim of that identity fraud and which information is considered to be in the lawful possession of the consumer or business victim wherever the consumer or business victim currently resides or is found. Accordingly, the fraudulent use of that information involves the fraudulent use of information that is, for the purposes of this article, found within the county where the consumer or business victim of the identity fraud resides or is found. Accordingly, in a proceeding under this article, the crime will be considered to have been committed in any county where the person whose means of identification or financial information was appropriated resides or is found, or in any county in which any other part of the offense took place, regardless of whether the defendant was ever actually in such county. We must now determine whether OCGA § 16-9-125 satisfies the mandate of Art. VI, Sec. 2, Par. VI of the Georgia Constitution and accurately describes the places where identity fraud is committed.
