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Criminal Law Casebook
Franklin County Criminal Law Casebook
Reproduced with permission from:
David L. Strait
Franklin County Public Defender Office
-- Procedure on change of venue.
Criminal Rule 18 -- Venue and Change of venue.
Change of Venue
State v. Gonzalez
, 188 Ohio App. 3d 121,
– Rule 29 motion maintained the prosecution in a sexual imposition case had failed to prove venue. The trial court overruled the motion based on the prosecutor’s assertion the victim testified the incident took place in “Richwood,” apparently a town in Union County. On review of the record, there was no such testimony. Nor was venue otherwise established. Reversed. The prosecutor made the pitch at oral argument that venue could be inferred from the fact the investigation officer’s jurisdiction was within that of the court. ¶8: “Arguments presented for the first time on appeal will not be addressed by the appellate court.” See
State v. Awan
(1986) 22 Ohio St. 3d 120.
In re W.W.
, 190 Ohio App. 3d 653,
– Juvenile court dismissed abuse proceedings for lack of venue, apparently mistakenly believing that the child welfare agency that brought the action had to prove the abuse occurred or the child lived in the city of Painesville, though he actually lived in Painesville Township. Both are in Lake County. Court did not lack jurisdiction. Venue was proper. Even if it were not, the court could transfer the case to a county where venue was proper. While a dismissal based on lack of venue is generally not appealable, it is here because the court dismissed for lack of jurisdiction.
State v. Moller
, Greene App. No. 2001-CA-99,
-- Northern Ohio defendant was disappointed to learn that the 14-year old girl he met in a chat room was an undercover officer in Xenia. Venue lay in Greene County because the defendant travelled there to engage in sex with a minor, not because the Xenia Police had engaged in an Internet conversation with someone at a remote location.
State v. Jalowiec
(2001), 91 Ohio St. 3d 220, 229 -- Though homicide took place in Cuyahoga County, venue lay in Lorain County as that is where prior calculation and design occurred.
State v. DeBoe
, Huron App. No. H-02-057,
-- Defendant could be tried for theft of car in Lucas County along with other offenses arising from the same course of criminal conduct committed in Huron County.
State v. Shaw
(1999), 134 Ohio App. 3d 316 -- State failed to prove venue in a prosecution for sexual imposition, unlawful restraint and assault. Description of area where offense occurred did not place it within Greene County. Nor did hearsay testimony of deputy to the effect that Dayton Police stopped investigating after determining offense took place in Greene County.
State v. Kiefer
(2000), 104 Ohio Misc. 2d 37 -- State failed to prove venue in an underage drinking case. Dismissed on Rule 29 motion. Not guilty plea did not waive state's obligation to prove venue. Nor was the issue one that must be raised by pretrial motion such as when an indictment returned in one county specifically charges conduct in another.
State v. Barr
, 158 Ohio App. 3d 86,
-- Venue may be established indirectly by the totality of the facts and circumstances of the case, such as street and town names. Two issues are presented: (1) Whether a case is properly venued in the trial court. (2) Whether a crime took place within that venue.
State v. Singleton
(February 26, 2002), Franklin Co. App. No. 01AP-632,
-- Reversal where a Rule 29 motion was granted following opening statements because venue was concluded not to lie in Franklin County. Retrial is not barred since double jeopardy does not attach until the court begins to hear evidence.
State v. Andrews
, 148 Ohio App. 3d 92,
-- The allegation in the indictment that an offense was committed in Franklin County is sufficient to defeat a motion to dismiss based upon improper venue. However,
permits venue to be changed upon motion of the defense when it appears trial should be held in another county for the convenience of the parties and in the interest of justice. Such removal will not be overturned unless it is clearly shown the court abused its discretion.
State v. Farthing
, 146 Ohio App. 3d 720,
-- Defendant was apparently on parole in Greene County, but the APA did not maintain a local office and the P.O. worked out of another county. Statements leading to charges were made at a prison in Pickaway County. Greene County was not the proper venue for trial of a retaliation charge.
State v. Headley
(1983), 6 Ohio St. 3d 475, 477 -- Though venue is not an element of the offense charged, it is a fact which must be proven beyond a reasonable doubt. Also see
State v. Draggo
(1981), 65 Ohio St. 2d 88;
State v. McCartney
(1988), 55 Ohio App. 3d 170 (venue is a personal privilege).
State v. Dickinson
(1907), 77 Ohio St. 34 -- Venue need not be proven in express terms, so long as it is established by all the facts and circumstances in the case. Also see
State v. Gribble
(1970), 24 Ohio St. 2d 85, paragraph two of the syllabus;
State v. Khong
(1985), 29 Ohio App. 3d 19, 29-30;
State v. Collins
(1977), 60 Ohio App. 2d 116, 124-125.
State v. Gardner
(1987), 42 Ohio App. 3d 157 -- Headnote: "A conviction cannot be supported when the evidence is not sufficient to establish venue beyond a reasonable doubt, despite the failure of counsel to bring the insufficiency to the attention of the trial court."
State v. Sutton
(1979), 64 Ohio App. 2d 105, 107-109 -- Under the rule of priority, the first county to prosecute has priority. However, the entry of a nolle in that county allows another county to prosecute.
State v. Williams
(1988), 53 Ohio App. 3d 1 -- Criminal Rule 7(D) permits amendment of an indictment with respect to venue.
State v. Beuke
(1988), 38 Ohio St. 3d 29 -- Syllabus: "(1) When an offender commits offenses in different jurisdictions as part of a course of criminal conduct, venue lies for all the offenses in any jurisdiction in which the offender committed one of the offenses or any element thereof. (
.) (2) Consistent with the Sixth Amendment to the United States Constitution, a person who commits a crime partly in one state and partly in another state may be tried in either state." Also see
State v. Fowler
(1985), 27 Ohio App. 3d 149, 145 (residence in county at least part of each of years charged in counts based on a continuing course of conduct);
State v. Draggo
(1981), 65 Ohio St. 2d 88 (theft in office charge - defendant's paychecks issued in Franklin County).
State v. Urvan
(1982), 4 Ohio App. 3d 151 -- Headnote 2: "The state may not, either by design or inadvertence, separate charges originating in one 'course of criminal conduct' and pursue them separately in the courts of more than one county even though venue could be laid in any one of the counties under
." Also see
State v. Anderson
(1989), 57 Ohio App. 3d 108 -- Only one OMVI prosecution allowed of an already drunk driver who operated in two counties. Compare
State v. Mutter
(1983), 14 Ohio App. 3d 356 (prosecution allowed where drug sales were in separate counties);
State v. Amato
(1989), 55 Ohio App. 3d 32 (construed as separate courses of criminal conduct).
State v. Miller
(1989), 63 Ohio App. 3d 479, 485 -- When it cannot be determined in which county an offense took place, but it is clear it occurred in one of several counties, venue lies in any of the counties. Also see
State v. Cremeans
(1982), 5 Ohio App. 3d 8.
State v. Chintalpalli
(2000), 88 Ohio St. 3d 43 -- Ohio court had jurisdiction to prosecute father for nonsupport, even though he no longer lived in state, since support order arose form an Ohio divorce. Venue was proper in the county where the divorce was granted.
Fairfield v. McRoberts
(1995), 100 Ohio App. 3d 476 -- Threats were made during a phone call between counties. Venue lay in either county, since the element of the victim's belief of impending physical harm occurred in the county where she heard the threats. See dissent.
State v. Tinch
(1992), 84 Ohio App. 111, 119-120 -- Venue lies where the body is found, even though it is not shown where the homicide occurred.
State v. Pumpelly
(1991), 77 Ohio App. 3d 470 -- Venue lies in the county where an offer to sell drugs was made, even though the transaction may have been completed in another county.
State v. Hackworth
(1992), 80 Ohio App. 3d 363 -- Venue lay in the county where a drug sale was arranged, even though delivery took place elsewhere.
State v. Haddix
(1994), 93 Ohio App. 3d 470, 479 -- In a RICO prosecution, venue lies in the county where the conspiracy to steal was hatched, even though the theft took place in a different county.
State v. Giffin
(1991), 62 Ohio App. 3d 392 -- (1) Where some elements of the offense of engaging in a pattern of corrupt activity occurred in Franklin County, venue also lay in Franklin County for trial of predicate offenses committed elsewhere. (2)
does not allow an organized crime task force to fix venue in a jurisdiction not otherwise proper under
State v. Fields
(1992), 84 Ohio App. 3d 423 -- If venue was not proper as to one of three closely related charges, it was not proper as to the other two.
State v. Shuttlesworth
(1995), 104 Ohio App. 3d 282, 286-287 -- Though there may not have been testimony naming the county in which the incident occurred, references to address, nearby landmarks, and the municipal police department involved were sufficient to support finding on venue.
In re Meyer
(1994), 98 Ohio App. 3d 189, 192-193 -- Agency's complaint seeking permanent custody of children was filed in Defiance County one month after the family had moved to Paulding County. Apparently the children remained wards of the Defiance County court and were not the wards of any other Ohio court. Thus the court had jurisdiction. Pursuant to
and Juv. R. 11 venue is a matter within the discretion of the court, and was also proper.
Skilling v. United States
(2010), 130 S.Ct. 2896 – Extensive pretrial publicity does not compel a change of venue. The court sets the bar at the level of
Rideau v. Louisiana
(1963), 373 U.S. 723 where a televised confession was played several times on TV, in effect serving as the defendant’s guilty plea.
State v. Prade
(2000), 139 Ohio App. 3d 676, 686 -- A complete transcript of voir dire is essential for consideration of an assignment of error concerning change of venue.
State v. Lynch
, 98 Ohio St. 3d 514, ¶ 37 -- "The absence of defense challenges for pretrial publicity, and the failure to exhaust defense peremptory challenges, indicate that the defense was not particularly troubled by the jury's exposure to pretrial publicity once voir dire was completed."
State v. Gross
, 97 Ohio St. 3d 121,
, ¶28-30 -- No error in denial of a change of venue motion where the court excused over one hundred prospective jurors because they knew an individual involved in the case or had formed an opinion regarding guilt or innocence, and seated no jurors so affected.
Sheppard v. Maxwell
(1966), 384 U.S. 333, 362 -- "Due process requires that the accused receive a trial by an impartial jury free from outside influences. Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighted against the accused." Identifiable prejudice need not be shown if the totality of the circumstances raises the probability of prejudice.
Irvin v. Dowd
(1960), 366 U.S. 717 -- Second change of venue should have been granted where problems arising from adverse pretrial publicity existed in adjacent county to which trial had been moved.
State v. Herring
(1984), 21 Ohio App. 3d 18 -- "In the absence of a clear and manifest showing by the defendant that pretrial publicity was so pervasive and prejudicial that an attempt to seat a jury would be a vain act, and in the interest of judicial economy, convenience and expense to the taxpayer, a good faith effort should be made to empanel a jury before the trial court grants a motion for a change of venue."
State v. Potter
(1989), 64 Ohio App. 3d 549 -- Though the court may attempt to seat a jury before passing on a motion for a change of venue, it is not required to do so and may simply grant the motion.
State v. Swiger
(1966), 5 Ohio St. 2d 151 -- Paragraph one of the syllabus: "The examination of jurors upon their voir dire affords the best test as to whether prejudice exists in the community against the defendant, and where it appears that opinions as to the guilt of the defendant of those called for examination for jurors are not fixed but would yield readily to evidence, it is not error to overrule an application for a change of venue, in absence of a clear showing of an abuse of discretion." Also see
State v. Maurer
(1984), 15 Ohio St. 3d 239, 249-252;
State v. Osborne
(1976), 49 Ohio St. 2d 135, 139-141;
State v. Bayless
(1976), 48 Ohio St. 2d 98;
State v. Booher
(1988), 54 Ohio App. 1, 13-15.
State v. Lundgren
(1995), 73 Ohio St. 3d 474, 478-480 -- Though a change of venue might have been prudent, no abuse of discretion was demonstrated where the trial judge readily excused those in the venire who had formed fixed opinions or were otherwise unsuitable. The jurors selected did not appear to have been exposed to media publicity, and did not appear to have formed more than tentative opinions which they said they were prepared to put aside. Despite survey, this was not one of the rare cases in which prejudice may be presumed. Nor was the court obligated to order a new trial in view of the change of venue granted a codefendant. Also see
State v. Davis
(1996), 76 Ohio St. 3d 107, 110-112.
State v. Gumm
(1995), 73 Ohio St. 3d 413, 430-431 -- Defendant's claim a change of venue should have been granted was not aided by the failure of trial counsel to challenge for cause those jurors exposed to pretrial publicity. Companion case:
State v. Bies
(1996), 74 Ohio St. 3d 320, 323-324.
State v. Nobles
(1995), 106 Ohio App. 3d 246, 257-261 -- No error of constitutional dimension for inquiry into exposure to pretrial publicity to be done entirely from the bench. No indication that counsel asked to participate or took exception to questions asked.
State v. Johnson
(1972), 31 Ohio St. 2d 106 -- Paragraph three of the syllabus: "In a trial where defendant offered the only evidence on his motion for a change of venue, the failure of the prosecution to offer any evidence contra such motion does not necessarily establish a prima facie case for the granting of a change of venue. The possibility of bias or prejudice, or danger of an unfair trial as set forth in the motion to transfer the cause is directed to the discretion of the trial judge."
State v. Fairbanks
(1972), 32 Ohio St. 2d 34 -- A single newspaper article and several radio broadcasts shortly after the defendant's arrest, none of which were inflammatory, did not give rise to the reasonable likelihood that the defendant would not receive a fair trial.
State v. Kassow
(1971), 28 Ohio St. 2d 141, 149 -- A transcript of jury selection is essential to preserve for appeal claims of prejudice against the defendant, arising from pretrial publicity, warranting a change of venue.
State v. Milo
(1986), 28 Ohio App. 3d 60 -- Trial was moved to Franklin County from Summit County but subsequent motion for a new trial was filed in Summit County. Though Franklin County may have been the proper place to file the motion, jurisdiction of the court of appeals is determined by the county of actual filing and appeal from Summit County Court of Common Pleas does not lie to the Franklin County Court of Appeals.
David L. Strait
Copyright © Franklin County Public Defender and David L. Strait, 2015
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