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Final Copy 286 Ga. 706 S09G1130. THE STATE v. DIXON.

Nahmias, Justice. A DeKalb County jury convicted Andrew Dixon, Jr., on two counts of armed robbery for stealing a truck and personal belongings from a man at a DeKalb County car wash. Dixon admitted at trial that he stole the truck but claimed he took it from a gas station in Clayton County. He requested that the trial court instruct the jury on the lesser included offense of theft by taking. The trial court refused, noting that a DeKalb County jury could not convict him of a theft by taking that took place entirely in Clayton County. The Court of Appeals reversed. See Dixon v. State, 296 Ga. App. 716 (675 SE2d 500) (2009). We granted the State's petition for certiorari, and we now hold that the trial court properly declined to instruct the jury on a lesser included offense when there was no evidence the included crime was committed in the county in which the defendant was being tried. We therefore reverse the Court of Appeals' decision to the contrary.

1.

At 12:30 a.m. on July 28, 2002, John Bean was detailing his

girlfriend's truck at a DeKalb County car wash. Dixon approached and asked Bean if he had change for a five-dollar bill. Bean answered no, and Dixon walked away. Dixon returned a few minutes later armed with a pistol and demanded the truck. Bean said the keys were in the ignition. Dixon ordered Bean to empty his pockets. Dixon took Bean's wallet and pocketknife and a pack of Newport cigarettes, got in the truck, and fled. The truck was equipped with OnStar, which has GPS tracking capability. Consequently, less than two hours later, the police found Dixon seated in the driver's seat of the truck at an apartment complex in Clayton County. Bean's cell phone charger was draped around Dixon's neck, and he had an open pack of Newport cigarettes. Bean's wallet and pocketknife were not recovered. Bean identified Dixon as the armed robber in a photo lineup the following day and later in person at the preliminary hearing and at trial. Dixon testified in his own defense. He said that he had walked to a gas station in Clayton County to buy a pack of cigarettes when he came across Bean's truck, unoccupied, with the engine running. Dixon claimed that he drove off in the truck, but after having second thoughts, he parked it at an apartment 2

complex less than a mile away, and the police arrived 30 seconds later and arrested him. Thus, Dixon admitted that he took the vehicle, but claimed he did so in Clayton County, not DeKalb County, and was unarmed. Dixon was charged with two counts of armed robbery. The trial court denied his written request to instruct the jury on the lesser included offense of theft by taking. The jury convicted Dixon on both counts of armed robbery, and Dixon appealed. The Court of Appeals reversed, holding that the trial court erred in refusing to give the requested instruction. The Court of Appeals recited the rule that "`(w)here a case contains some evidence, no matter how slight, that shows that the defendant committed a lesser offense, then the court should charge the jury on that offense.'" Dixon, 296 Ga. App. at 718 (quoting Edwards v. State, 264 Ga. 131, 133 (442 SE2d 444) (1994)). The Court of Appeals noted the trial court's concern that there was no evidence that Dixon committed the lesser included offense of theft by taking in DeKalb County but found that Dixon made an offer to waive venue, thereby entitling him to the requested instruction. We granted the State's petition for certiorari and directed the parties to address the following issue: 3

Whether the Court of Appeals erred in holding that the trial court was required to charge on an included offense when there was no evidence the included crime was committed in the county in which the defendant was being tried. 2. Under the Georgia Constitution of 1983, venue is a jurisdictional

element of every crime. See Jones v. State, 272 Ga. 900, 901 (537 SE2d 80) (2000).1 It is a "constitutional requirement," not just a "procedural nicety." Graham v. State, 275 Ga. 290, 292 (565 SE2d 467) (2002). When a defendant pleads not guilty, the State must prove, beyond a reasonable doubt, every element of the crime charged, including venue. See Tompkins v. State, 278 Ga. 857, 857 (607 SE2d 891) (2005). Failure to prove venue beyond a reasonable doubt renders the verdict contrary to law, results in insufficiency of the evidence, and warrants reversal on appeal. See Jones, 272 Ga. at 901-902. Dixon argues that the DeKalb County jury could have convicted him of a theft by taking purportedly committed in Clayton County, because he validly waived venue for such a charge. He concedes that without a venue waiver, he

See Ga. Const. of 1983, Art. VI, Sec. II, Par. VI ("[A]ll 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."). See also OCGA

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