State v. Wright ( 2016 )

[Cite as State v. Wright, 2016-Ohio-7654.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ATHENS COUNTY
STATE OF OHIO, :
: Case No. 15CA31
Plaintiff-Appellee, :
:
v. : DECISION AND JUDGMENT
: ENTRY
TINA MARIE WRIGHT, :
:
Defendant-Appellant. : Released: 10/31/16
APPEARANCES:
Timothy Young, Ohio Public Defender, and Carrie Wood, Ohio Assistant Public
Defender, Columbus, Ohio, for Appellant.
Keller J. Blackburn, Athens County Prosecuting Attorney, and Merry M. Saunders,
Athens County Assistant Prosecuting Attorney, Athens, Ohio, for Appellee.
McFarland, J.
{¶1} Tina Marie Wright appeals from the judgment of the Athens County
Court of Common Pleas convicting her of two counts of interference with custody
and sentencing her to community control.
{¶2} Wright initially asserts that the trial court erred in denying her motion
for judgment of acquittal at the close of the evidence because there was insufficient
evidence of venue in Athens County when she, her husband Phillip, and their
children did not reside in that county when the crimes occurred. Venue is
established when one of the elements of the offense occurs in the county in which
Athens App. No. 15CA31 2
the case is tried, and one of the elements of interference with custody is that the
interference be unprivileged. Two Athens County orders in a divorce case
instituted by Wright herself established that her and her boyfriend absconding with
two of her children to Texas was unprivileged. Similarly, the Supreme Court of
Ohio held that even though the parents and the children no longer resided in the
same county as the one in which a child-support order was issued did not deprive
the county court that issued the order from being the proper venue for a criminal
nonsupport action. Venue is satisfied where there is a sufficient nexus between the
defendant and the county of the trial, and that nexus exists here because the orders
upon which the custodial interference crimes were based were issued by the same
court in the same divorce case initiated by Wright herself. We reject Wright’s first
assertion.
{¶3} Wright next contends that the trial court erred in denying her motion
for judgment of acquittal at the close of the evidence because there was insufficient
evidence to support her conviction of the crimes of interference with custody. The
convictions were premised on her violations of two orders issued by the Athens
County Court of Common Pleas in the pending divorce case. She claims that there
was insufficient evidence that she interfered with the first order, which granted her
custody of their two youngest children, because any violation would have simply
impacted the visitation portion of the order. We reject this claim because the plain
Athens App. No. 15CA31 3
language of the statute does not preclude conviction of a legal custodian for
interference with the visitation or parenting rights of a noncustodial parent. And
Wright conceded that she knew she violated this order when she took her two
younger children to Texas. She further claims that there was insufficient evidence
that she interfered with the second order, which granted her husband custody of all
of their children, because it was never properly served on her. This claim is
meritless because unlike the case she cites involving a different offense, the statute
proscribing interference with custody does not require that the order establishing
that enticing, taking, keeping, or harboring a child is unprivileged be served on the
person; it only requires that the person know or be reckless that he or she is
without privilege to do so. The uncontroverted testimony is that Wright knew
about the second order when she was advised by a police officer about it, but she
refused to cooperate and instead was willing to face the consequences of violating
the order if she were ultimately arrested.
{¶4} Therefore, because the evidence introduced at trial was sufficient to
establish venue and the elements of the two custodial interference offenses, we
overrule Wright’s assignments of error and affirm the judgment of the trial court.
I. FACTS
{¶5} In October 2014, the Athens County Grand Jury returned an indictment
charging Wright with two counts of interference with custody in violation of R.C.
Athens App. No. 15CA31 4
2919.23(A)(1), a felony of the fifth degree. The offenses stemmed from Wright
removing her two youngest children from the state and keeping them from their
father, her husband Phillip, in violation of two orders issued by the Athens County
Court of Common Pleas in their pending divorce case. Following her arrest in
Texas and her return to Ohio, she entered a plea of not guilty to the charges.
{¶6} The case proceeded to a two-day jury trial at which the state presented
the testimony of Phillip, one of their children, S.A.W., and Athens County
Sheriff’s Lieutenant John A. Morris, as well as exhibits including certified copies
of the pending divorce case and two orders issued in that case. The defense
presented the testimony of Wright and one of her friends, Linda Sheets. The
following pertinent facts were adduced.
{¶7} Wright and Phillip married in Delaware, Ohio in May 1997. They had
three children, A.W., born in 1997, S.A.W., born in 2000, and S.J.R.W., born in
2009. Their marriage eventually deteriorated, with Phillip accusing Wright of
engaging in numerous affairs and Wright accusing Phillip of disinterest and abuse.
{¶8} In May 2014, Wright filed a complaint for divorce in the Athens
County Court of Common Pleas, listing a Washington County address for herself
and a Licking County address for Phillip. Around that time, Wright called Athens
County Deputy Sheriff Greg Poston, who introduced her to Stacy Crook, and she
tried to obtain a civil protection order. She was unable to get a civil protection
Athens App. No. 15CA31 5
order because the police determined that there was insufficient evidence that
Phillip was harassing or threatening her. Phillip filed an answer and a
counterclaim for divorce in the Athens County case and also filed a complaint for
divorce in Licking County.
{¶9} On August 6, 2014, the Athens County Court of Common Pleas issued
a temporary order designating Wright the legal custodian and residential parent of
the two youngest of their minor children, S.A.W. and S.J.R.W, and designating
Phillip the legal custodian and residential parent of the oldest child, A.W. The
order further set forth visitation for Phillip with S.A.W. and S.J.R.W. and
designated that the children would be exchanged at a halfway point from where
they lived. The designated exchange location was a Bob Evans restaurant in
Muskingum County. The order also contained a provision that “[a]t any time that
[Wright] elects to take a vacation/road trip with her boyfriend, Joseph Knece, the
children shall reside with [Phillip].” In accordance with the order, Phillip had
visitation with S.A.W. and S.J.R.W. in August, until he went to pick them up later
in the month and they did not appear.
{¶10} After a one-week visitation with their father, S.A.W. and S.J.R.W.
learned that Wright and her boyfriend had packed their belongings, and they left
for Texas from Wright’s sister’s residence at some undisclosed location on August
27, 2014 without telling the Athens County court or Phillip. On the same date that
Athens App. No. 15CA31 6
she left Ohio with the children, Wright voluntarily dismissed her complaint for
divorce in Athens County, but the case remained pending because of Phillip’s
counterclaim for divorce. Wright claimed that she had to voluntarily dismiss her
divorce action because that was the only way Phillip would have let her go.
Wright enrolled the two younger children in school in Texas, and they rented a
place there.
{¶11} On cross-examination, Wright admitted that she violated the Athens
County court’s August 6, 2014 order by taking S.A.W. and S.J.R.W. to Texas and
depriving Phillip of his right to spend parenting time with them, but claimed that
she “answer[ed] to a higher authority.”
{¶12} Phillip filed a motion for contempt and Wright was served by
certified mail at a Madison County, Ohio address. Wright did not appear for a
hearing on Phillip’s motion, and on September 23, 2014, the Athens County Court
of Common Pleas issued an order designating Phillip as the legal custodian and
residential parent of all three of their children, A.W., S.A.W., and S.J.R.W. The
order further specified that law enforcement would assist Phillip in effecting the
order to remove the two younger children from Wright wherever she may be found
and place them in Phillip’s custody.
{¶13} Phillip later contacted Lt. Morris of the Athens County Sheriff’s
Department to attempt to enforce the September 23, 2014 court order. He gave the
Athens App. No. 15CA31 7
police all the information he had about Wright, including that they might have
been traveling in her boyfriend’s semi-trailer. Phillip also gave the police the last
address he had for her in the Athens area. Though he knew she no longer lived
there, he relied on Wright’s representations in the Athens County divorce case that
she planned on getting a new apartment or house in the Athens area.
{¶14} Lt. Morris was able to call a trucking company that Wright’s
boyfriend worked for and obtain telephone numbers where Wright could be
reached. He left messages for Wright to call him back. About forty minutes after
he had left messages for her, Wright called him back. Lt. Morris informed Wright
about the Athens County court’s September 23, 2014 order, which granted custody
of the children to Phillip, and that she needed to bring S.A.W. and S.J.R.W. back to
Phillip in Ohio. Lt. Morris further advised her of the consequences of her not
returning the children, including possible charges and a warrant for her arrest, but
she responded that she would just have to deal with that when the time comes. She
told Lt. Morris that she was in West Virginia, although she was actually in Texas.
{¶15} Wright admitted at trial that despite being informed by Lt. Morris
about the consequences of her not complying with the Athens County court orders,
she refused to bring the children back to Ohio and she knew that she did not have
the right to take the children to Texas or to keep them there from Phillip. She
testified that she did not follow the orders because she did not agree with them.
Athens App. No. 15CA31 8
{¶16} About a week later, after Wright refused to return the children, Lt.
Morris filed charges against her for interference with custody and a nationwide
warrant was issued for her arrest. She was arrested in Texas in mid-October 2014,
and was returned to Ohio thereafter. The younger children who had been with her
were placed in the temporary custody of children services and were picked up by
Phillip the next morning.
{¶17} At the conclusion of the evidence, Wright made a motion for
judgment of acquittal on two grounds: (1) that the state never identified Wright as
the person who was the subject of the two Athens County court orders; and (2) the
state failed to establish that the venue of the charged offenses was in Athens
County. For the venue portion of her motion, the state responded that the one of
the elements of the interference with custody offenses was that the state prove that
Wright took and kept the children without privilege, which required that it be
established through the evidence of the Athens County court orders. The trial
court denied Wright’s motion.
{¶18} The jury returned verdicts finding Wright guilty of both charges of
interference with custody, and the trial court sentenced her to five years of
community control for each offense. This appeal ensued.
II. ASSIGNMENTS OF ERROR
{¶19} Wright assigns the following errors for our review:
Athens App. No. 15CA31 9
1. THE TRIAL COURT VIOLATED TINA WRIGHT’S RIGHTS
TO DUE PROCESS AND A FAIR TRIAL WHEN, IN THE
ABSENCE OF SUFFICIENT EVIDENCE OF VENUE, IT
FAILED TO GRANT HER CRIM.R. 29 MOTIONS AS TO
BOTH COUNTS OF INTERFERENCE WITH CUSTODY.
2. THE TRIAL COURT VIOLATED TINA’S RIGHTS TO DUE
PROCESS AND A FAIR TRIAL WHEN, IN THE ABSENCE OF
SUFFICIENT EVIDENCE, IT FAILED TO GRANT HER
CRIM.R. 29 MOTIONS AS TO INTERFERENCE WITH
CUSTODY.
III. STANDARD OF REVIEW
{¶20} Wright’s assignments of error challenge the trial court’s denial of her
Crim.R. 29 motion for judgment of acquittal.
{¶21} Under Crim.R. 29(A), “[t]he court on motion of a defendant * * *,
after the evidence on either side is closed, shall order the entry of acquittal * * *, if
the evidence is insufficient to sustain a conviction of such offense or offenses.” “A
motion for acquittal under Crim.R. 29(A) is governed by the same standard as the
one for determining whether a verdict is supported by sufficient evidence.” State
v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37; State v.
Husted, 2014-Ohio-4978, 23 N.E.3d 253, ¶ 10 (4th Dist.).
{¶22} “When a court reviews a record for sufficiency, ‘[t]he relevant
inquiry is whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime proven beyond a reasonable doubt.’ ” State v. Maxwell, 139 Ohio St.3d 12, 9
Athens App. No. 15CA31 10
N.E.3d 930, 2014-Ohio-1019, ¶ 146, quoting State v. Jenks, 61 Ohio St.3d 259,
574 N.E.2d 492 (1991), paragraph two of the syllabus; Jackson v. Virginia, 443
U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In making its ruling a court does
not weigh the evidence but simply determines whether the evidence, if believed, is
adequate to support a conviction. In other words, the motion does not test the
rational persuasiveness of the state's case, but merely its legal adequacy. State v.
Reyes-Rosales, 4th Dist. Adams No. 15CA1010, 2016-Ohio-3338, ¶ 15.
IV. LAW AND ANALYSIS
A. Venue
{¶23} In her first assignment of error, Wright asserts that the trial court
erred in denying her motion for acquittal because there was insufficient evidence
of venue to support her two convictions for interference with custody.
{¶24} Crim.R. 18(A) states that “[t]he venue of a criminal case shall be as
provided by law.” Article I, Section 10 of the Ohio Constitution provides an
accused with the right to “a speedy public trial by an impartial jury of the county in
which the offense is alleged to have been committed.” Additionally, R.C. 2901.12
codifies “the statutory foundation for venue” by providing that the “trial of a
criminal case in this state shall be held in a court having jurisdiction of the subject
matter, and in the territory of which the offense or any element of the offense was
committed.” See State v. Mercer, 4th Dist. Ross No. 14CA3448, 2015-Ohio-3040,
Athens App. No. 15CA31 11
¶ 8, quoting State v. Draggo, 65 Ohio St.2d 88, 80, 418 N.E.2d 1343 (1981), and
R.C. 2901.12(A).
{¶25} Venue is not a material element of any offense charged; the elements
of the offense charged are separate and distinct. State v. Jackson, 141 Ohio St.3d
171, 2014-Ohio-3707, 23 N.E.3d 1023, ¶ 143. Venue is also not jurisdictional and
may be waived. See State v. Jordan, 12th Dist. Warren No. CA2014-04-051,
2015-Ohio-575, ¶ 29; Jackson at ¶ 143.
{¶26} Nevertheless, venue is a fact that must be proven beyond a reasonable
doubt unless it is waived by the defendant. Jackson at ¶ 143, citing State v.
Headley, 6 Ohio St.3d 475, 477, 453 N.E.2d 716 (1983). “ ‘[I]t is not essential that
the venue of the crime be proven in express terms, provided it be established by all
the facts and circumstances in the case, beyond a reasonable doubt, that the crime
was committed in the county and state as alleged in the indictment.’ ” State v.
Hampton, 134 Ohio St.3d 447, 2012-Ohio-5688, 983 N.E.2d 324, ¶ 19, quoting
State v. Dickerson, 77 Ohio St.34, 82 N.E. 969 (1907), paragraph one of the
syllabus. “[A] judgment of acquittal may be entered when the state has failed to
prove the venue of the offense as alleged in the indictment.” Hampton at ¶ 24.
{¶27} “ ‘The purpose of the venue requirement is to give the defendant the
right to be tried in the vicinity of the alleged criminal activity, and to limit the state
from indiscriminately seeking a favorable location for trial that might be an
Athens App. No. 15CA31 12
inconvenience or disadvantage to the defendant.’ ” State v. Webster, 8th Dist.
Cuyahoga No. 102833, 2016-Ohio-2624, ¶ 78, quoting State v. Koval, 12th Dist.
Warren No. CA2005–06–083, 2006-Ohio-5377, ¶ 9; see also Mercer, 2015-Ohio-
3040, at ¶ 9. Consequently, the requirement of “[v]enue is satisfied where there is
a sufficient nexus between the defendant and the county of the trial.” State v.
Chintalapalli, 88 Ohio St.3d 43, 45, 723 N.E.2d 111 (2000), citing Draggo, 65
Ohio St.2d at 92, 418 N.E.2d 1343.
{¶28} Wright argues that because she was a Washington County resident
and Phillip was a Licking County resident when she absconded to Texas with their
two youngest children, the designated drop-off area for parenting-time exchanges
was in Muskingum County, and there was no evidence that she even drove through
Athens County when she left from her sister’s home and travelled to Texas with
the children, the state failed to establish that Athens County was a proper venue for
the offenses of interference with custody.
{¶29} But as previously stated, venue is established when one of the
elements of the offenses occurs in the county in which the case is tried. See R.C.
2901.12(A) (“The trial of a criminal case in this state shall be held in a court * * *
in the territory of which the offense or any element of the offense was committed”
[emphasis added]). R.C. 2919.23(A) provides that “[n]o person, knowing the
person is without privilege to do so or being reckless in that regard, shall entice,
Athens App. No. 15CA31 13
take, keep, or harbor a person identified in division (A)(1), (2), or (3) of this
section from the parent, guardian, or custodian of the person identified in division
(A)(1), (2), or (3) of this section: (1) A child under the age of eighteen * * *.” The
elements of the charge of interference with custody are: (1) a person; (2) without
privilege to do so; (3) knowingly or recklessly; (4) entices, takes, keeps, or
harbors; (5) a child under 18 years of age; and (6) from a parent, guardian, or
custodian of the child. See, e.g., State v. Strayer, 5th Dist. Knox No. 02CA29,
2003-Ohio-2941, ¶ 47.
{¶30} One of the elements of the offense of interference with custody
requires that the person absconding with the child do so without any privilege in
that regard. That element in this case required that the state establish that Wright
lacked any right to take S.A.W. and S.J.R.W. to Texas and keep them there in
violation of the Athens County court orders in the pending divorce case between
Wright and Phillip. The divorce case had been initiated in Athens County by
Wright herself, and she had contacted the Athens County Sheriff’s Department to
attempt to obtain a protection order against Phillip before she filed for divorce in
that county. Because the “without privilege to do so” element of the interference
with custody offenses occurred in Athens County, the fact that Wright, Phillip, and
the children may not have been residents there on the August 27, 2014 date she
Athens App. No. 15CA31 14
removed the children from Ohio to Texas does not deprive Athens County from
venue to try Wright for those offenses.
{¶31} This result is supported by a reasonable construction of precedent. In
Chintalapalli, 88 Ohio St.3d 43, 723 N.E.2d 111, the Supreme Court of Ohio
concluded that the Erie County Court of Common Pleas had both jurisdiction and
venue to try a defendant for criminal nonsupport notwithstanding the fact that after
their divorce, the plaintiff obligee, the defendant obligor, and their children no
longer resided in Erie County. The court held that “[t]he act of failing to provide
child support occurs in at least two venues: (1) the place where the defendant
resides, and (2) the place where the defendant was required to perform a legal
obligation.” Id. at syllabus.
{¶32} As in Chintalapalli, one of the elements of the offense was in the
place that issued the orders setting forth the parents’ custodial and parenting rights.
Although the evidence in that case was admittedly more extensive (the parents
lived in Erie County before their divorce, the divorce decree obligating the
defendant to make child-support payments was issued in Erie County, and the child
support enforcement agency collected the payments the defendant was required to
pay in Erie County), the critical fact remains that the orders that Wright knowingly
violated here were issued by the same Athens County court in which she initiated
the divorce action. Id. at 45-46. Although she fortuitously voluntarily dismissed
Athens App. No. 15CA31 15
her complaint the same day she absconded with the children to Texas, by that time
Phillip had filed an answer and counterclaim for divorce so that the case remained
pending.
{¶33} Finally, as the Supreme Court in Chintalapalli emphasized, “[v]enue
is satisfied where there is sufficient nexus between the defendant and the county of
the trial.” Id. at 45. As discussed, Wright initiated the Athens County divorce case
that ultimately generated the orders that she admitted she violated by taking and
keeping her two younger children to Texas, far away from Phillip. Around that
time, she contacted the Athens County Sheriff’s Department to assist her in
attempting to get a protection order against Phillip. Here, Phillip testified that
when he could not locate the children after Wright failed to show up with them for
his court-ordered visitation, he gave the police her last known address in the
Athens area and that Wright had represented to the Athens County court that she
had planned on getting a new apartment or house in that area. While attempting to
extricate herself from the purported burden of being tried in Athens County based
on a violation of the orders issued by the Athens County court, she simultaneously
attempts to rely on the benefit of the August 6, 2014 order issued by that same
court to claim that she had custody of the two younger children so that she could
take them where she pleased. It would be nonsensical to allow her to accept the
benefits of that order without accepting its burdens. This is not a case in which the
Athens App. No. 15CA31 16
state manipulated the venue provisions to obtain a favorable location for the
criminal trial that would be a serious disadvantage or inconvenience for the
defendant. In effect, Wright herself chose the venue for the case by initiating the
Athens County divorce case that ultimately resulted in the two orders upon which
her criminal charges of interference with custody were premised.
{¶34} Therefore, after viewing the evidence in a light most favorable to the
prosecution, a rational trier of fact could have found that the state had proven that
Athens County was a proper venue for the criminal charges. We overrule Wright’s
first assignment of error.
B. Interference with Custody
{¶35} In her second assignment of error, Wright contends that the trial court
erred in denying her motion for acquittal because there was insufficient evidence to
establish the essential elements of interference with custody. As noted, the
convictions were premised on her violations of the two orders issued by the Athens
County Court of Common Pleas in the pending divorce case.
{¶36} She initially claims that there was insufficient evidence that she
interfered with the Athens County court’s first (August 6, 2014) order, which
granted her custody of S.A.W. and S.J.R.W., because any violation would have
simply impacted Phillip’s visitation rights. We reject this claim because the plain
language of R.C. 2919.23(A)(1) does not preclude conviction of a custodial parent
Athens App. No. 15CA31 17
for interference with the visitation or parenting rights of a noncustodial parent. An
appellate court has similarly expressly rejected this contention. See, e.g., Toledo v.
Parra, 6th Dist. Lucas No. L-12-1261, 2013-Ohio-3182, ¶ 12 (a custodial parent
can be criminally prosecuted for interference with custody in violation of R.C
2919.23(A)(1) or a comparable municipal ordinance if she without privilege
knowingly interferes with the court-ordered visitation of the noncustodial parent).
We agree with the conclusion of that court, and Wright cites no persuasive
authority that has held otherwise.
{¶37} In addition, Wright conceded on cross-examination at trial that she
violated the August 6, 2014 order when she took her younger two children to
Texas. That order specified that the children would reside with Phillip anytime
Wright went on a vacation or road trip with her boyfriend.
{¶38} Furthermore, Wright also admitted that she violated the Athens
County court’s second (September 23, 2014) order, which granted custody of the
children to Phillip, by keeping the children in Texas. Thus, Wright’s first claim in
her second assignment of error is meritless.
{¶39} She next argues that there was insufficient evidence that she
interfered with the Athens County court’s second order because it was never
properly served on her. She cites State v. Smith, 136 Ohio St.3d 1, 2013-Ohio-
1698, 989 N.E.2d 972, in support of her argument. In Smith, at the syllabus, the
Athens App. No. 15CA31 18
Supreme Court of Ohio held that “[t]o sustain a conviction for a violation of a
protection order pursuant to R.C. 2919.27(A)(2), the state must establish, beyond a
reasonable doubt, that it served the defendant with the order before the alleged
violation.” Smith is distinguishable because R.C. 2919.27(A)(2) required that the
protection order be “issued pursuant to [R.C.] 2903.214,” which required that the
order be served on the defendant.
{¶40} Conversely, R.C. 2919.23(A)(1), interference with custody, does not
require that the defendant be served with the court order that establishes that the
enticing, taking, keeping, or harboring of a child was done without privilege to do
so. R.C. 2919.23(A)(1) requires only that the defendant know or be reckless that
he or she is without privilege to entice, take, keep, or harbor the child. Wright
conceded that she knew about the second order when she was advised by a police
officer about it, but she refused to cooperate and instead was willing to face the
consequences of violating the order if she were ultimately arrested. She attempted
to justify her noncomplicance because she was following a higher authority and
she did not agree with the orders.
{¶41} Moreover, she admitted to violating both Athens County court orders,
and the state was only required to prove that she knowingly or recklessly violated
one.
Athens App. No. 15CA31 19
{¶42} Therefore, after viewing the evidence in a light most favorable to the
state, any rational trier of fact could have found the essential elements of the
charged offenses of interference with custody proven beyond a reasonable doubt.
We overrule Wright’s second assignment of error.
V. CONCLUSION
{¶43} The trial court properly denied Wright’s Crim.R. 29(A) motion for
acquittal. Having overruled her assignments of error, we affirm the judgment of
the trial court.
JUDGMENT AFFIRMED.
Athens App. No. 15CA31 20
Hoover, J., dissenting:
{¶44} I respectfully dissent from the lead opinion.
{¶45} I would sustain Tina Marie Wright’s first assignment of error and
conclude that venue was not established beyond a reasonable doubt in the
proceedings below. Accordingly, I would reverse the judgment of the trial court
and find Wright’s second assignment of error to be moot.
{¶46} In the case sub judice, I do not believe that the State presented
sufficient evidence to establish that venue was proper in Athens County because no
evidence was presented indicating that Wright committed any elements of the
offenses in Athens County. While S.A.W. testified that he, S.J.R.W., and Wright
lived in “Little Hocking” during the time that Wright was legal custodian, no
evidence was presented that Little Hocking is located in Athens County. Moreover,
S.A.W. testified that Wright drove him and S.J.R.W. to Texas either the day of or
the day after they were done spending the weekend with their dad. He further
testified that when his mother picked him up from visitation time with his dad, his
belongings were “pre-packed” and already in Wright’s vehicle. Wright,
meanwhile, testified that she left for Texas with the children from her sister’s
house. There was no indication where the sister’s house is located. Given the above
evidence, I do not believe that a rational fact-finder could determine that Wright
enticed, took, kept, or harbored the children from or into Athens County. See R.C.
Athens App. No. 15CA31 21
2901.12(C) (“When the offense involved * * * the unlawful taking or enticing of
another, the offender may be tried in any jurisdiction from which or into which the
* * * victim was taken, received, or enticed.”). Rather, the more reasonable
conclusion, based on the evidence presented, is that Wright left with the children
from the exchange place in Zanesville, or from her sister’s home at an unknown
location. Furthermore, no evidence was presented indicating that Wright and the
children travelled through Athens County while on their way to Texas. See R.C.
2901.12(B) (“When the offense or any element of the offense was committed in [a]
* * * motor vehicle * * * in transit, and it cannot reasonably be determined in
which jurisdiction the offense was committed, the offender may be tried in any
jurisdiction through which the * * * motor vehicle * * * passed.”), and R.C.
2901.12(G) (“When it appears beyond a reasonable doubt that an offense or any
element of an offense was committed in any of two or more jurisdictions, but it
cannot reasonably be determined in which jurisdiction the offense or element was
committed, the offender may be tried in any of those jurisdictions.”).
{¶47} I also disagree with the lead opinion’s determination that because
reference to the Athens’ County orders is necessary to prove that Wright acted
“without privilege” when she took the children to Texas, that an element of the
offense occurred in Athens County, or that there is a sufficient nexus between
Wright and Athens County thus making venue proper. Rather I would conclude
Athens App. No. 15CA31 22
that the case cited by the lead opinion, State v. Chintalapalli, 88 Ohio St.3d 43,
723 N.E.2d 111 (2000), is distinguishable.
{¶48} In Chintalapalli, the defendant was convicted in Erie County, Ohio,
of three counts of nonsupport of dependents, based on his failure to make child
support payments as required under a divorce decree. Chintalapalli at 44. The
defendant was not a resident of Erie County, Ohio, at the time of non-payment and
the defendant’s ex-wife and children had moved from Erie County to
Pennsylvania. Id. On appeal, the appellate court reversed the convictions on the
basis that the trial court lacked jurisdiction. Id. The Ohio Supreme Court allowed
the discretionary appeal and was presented two questions: (1) “whether the trial
court in Erie County properly exercised jurisdiction over [defendant] even though
he and his family resided outside Ohio when he failed to make required child
support payments”, and (2) “if jurisdiction was present, whether venue was
proper.” Id. After determining that the trial court properly exercised jurisdiction
over the defendant, the Court stated the following in regards to venue:
Mr. Chintalapalli lived with Mrs. Chintalapalli in Erie County, Ohio.
Mrs. Chintalapalli gave birth to their children in Erie County. The
divorce decree that obligated Mr. Chintalapalli to make child support
payments was issued in Erie County. The CSEA collects the payments
Mr. Chintalapalli is required to pay in Erie County. When Mr.
Athens App. No. 15CA31 23
Chintalapalli does not make child support payments, part of that act
occurs in Erie County. These facts provide ample evidence to
establish a sufficient nexus between Mr. Chintalapalli and Erie
County.
Id. at 45-46. Thus, the Ohio Supreme Court determined that venue in Erie County
was proper. Id. at 46.
{¶49} Here, other than the temporary custody orders that were issued from
the Athens County court, Wright has no apparent connection or nexus to Athens
County. Wright and Phillip were married in Delaware, Ohio. Phillip testified that
the family moved to Delaware, Ohio, in 2002. There was no indication at trial of
where the family lived prior to 2002 or after 2002. There was no testimony or other
evidence regarding the children’s place of birth. At the time of trial Phillip was
living in Newark, Ohio. Phillip testified that after he and Wright separated in
February 2014, Wright may have lived in the Athens area, but by the time Wright
had absconded to Texas he did not believe she was still living at that location.
Wright testified that she left Ohio from her sister’s house, but there was no
indication where that house is located. Visitation exchanges took place in
Zanesville, Ohio. Simply put, unlike the circumstances in Chintalapalli, there is
not enough record evidence that connects Wright or the offenses to Athens County.
While the temporary orders issued from the Athens County court are useful in
Athens App. No. 15CA31 24
establishing that Wright acted the “without privilege”, they alone do not create a
sufficient nexus between Wright and Athens County.
{¶50} For all the foregoing reasons, I would hold that the trial court erred in
overruling Wright’s Criminal Rule 29 motion for acquittal because the State did
not provide sufficient evidence to establish that venue was proper in Athens
County beyond a reasonable doubt. Accordingly, I would sustain Wright’s first
assignment of error. Additionally, because this resolution of Wright’s first
assignment of error would render her remaining assignment of error moot; I would
decline to address it. See App.R. 12(A)(1)(c).
Athens App. No. 15CA31 25
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that costs are
assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Athens County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON
BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR
THIS COURT, it is temporarily continued for a period not to exceed sixty days
upon the bail previously posted. The purpose of a continued stay is to allow
Appellant to file with the Supreme Court of Ohio an application for a stay during
the pendency of proceedings in that court. If a stay is continued by this entry, it
will terminate at the earlier of the expiration of the sixty day period, or the failure
of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the
forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses
the appeal prior to expiration of sixty days, the stay will terminate as of the date of
such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
Abele, J.: Concurs in Judgment and Opinion.
Hoover, J.: Dissents with Dissenting Opinion.
For the Court,
BY: _________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.