State v. Pinkelton ( 2019 )

[Cite as State v. Pinkelton, 2019-Ohio-5148.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio/City of Sylvania Court of Appeals No. L-18-1156
Appellee Trial Court No. CRB1701890
v.
Kendra M. Pinkelton DECISION AND JUDGMENT
Appellant Decided: December 13, 2019
*****
Christy Cole, Chief Prosecutor, and Heather L. Pentycofe,
Assistant Prosecutor, for appellee.
W. Alex Smith, for appellant.
*****
SINGER, J.
{¶ 1} Appellant, Kendra Pinkelton, is appealing the May 2, 2018 judgment of the
Sylvania Municipal Court finding her guilty of assault in violation of R.C. 2903.13.
Because the trial court correctly took judicial notice that the crime took place within the
court’s jurisdiction, we affirm.
{¶ 2} On October 7, 2017, the victim, B.B., went to a Wal-Mart store located at
the intersection of McCord Road and Airport Highway to purchase groceries. After
completing her shopping, she exited Wal-Mart and entered her vehicle to leave. As she
entered her vehicle, another car then pulled in next to B.B.’s vehicle. Appellant and
another woman exited their vehicle and began conversing behind B.B.’s car. Appellant
was also watching and walking with four children. As B.B. was trying to leave, she
yelled at appellant through her window to get out of her way. Appellant did not move
from behind B.B.’s car.
{¶ 3} B.B. then turns on her brake lights in order warn appellant she was
attempting to leave the parking space. Appellant continued to remain behind B.B.’s
vehicle. B.B. then began to slowly back up despite appellant still behind her vehicle.
Appellant pounded her fists on the vehicle as it is backing up into her. B.B. then exits the
vehicle and yells at appellant for hitting her vehicle. The two women then begin a
physical struggle during which appellant hit B.B. several times in the face.
{¶ 4} During the struggle, B.B. realizes that before exiting her vehicle she forgot
to put the car in park and the car is rolling backwards. B.B. hastily gets back in the car in
order to put the car in park. After B.B. enters the car, appellant pulls her by her leg back
out of the car and continues to hit B.B. B.B. sustained injuries to her face, neck, and
back.
{¶ 5} Appellant was charged with assault in violation of R.C. 2903.13. A bench
trial was held on April 11, 2018. During the bench trial, B.B. testified to the location of
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the Wal-Mart. B.B. testified that the store was located in the Spring Meadows shopping
center located at McCord and Airport Highway. Appellee asked the trial court to take
judicial notice that the Wal-Mart was in the jurisdiction of the court. Specifically,
appellee asked the court to take judicial notice that “there is only one Wal-Mart on
McCord in this court’s jurisdiction.” After some more information is gathered, the court
granted appellee’s motion over appellant’s objection.
{¶ 6} Following the close of appellee’s case, appellant made a motion for acquittal
under Crim.R. 29, in part, due to the lack of evidence regarding venue. The motion was
overruled and appellant was found guilty. Appellant was sentenced to 180 days in jail
with 177 of those days suspended. Appellant was also ordered to pay $1,053.58 in
restitution, was issued a no contact order for B.B., ordered to take anger management
class, and ordered to pay $150 in court costs and fees.
Law
{¶ 7} “‘An appellate court reviews a denial of a Crim.R. 29 motion for acquittal
using the same standard that is used to review a sufficiency of the evidence claim.’”
Toledo v. Williams, 6th Dist. Lucas No. L-17-1188, 2018-Ohio-4354, ¶ 8, quoting State v.
Reyes, 6th Dist. Wood No. WD-03-059, 2005-Ohio-2100, ¶ 21. “A challenge to a
conviction based upon the sufficiency of the evidence to support a conviction presents a
question of law on whether the evidence at trial is legally adequate to support a jury
verdict on all elements of a crime.” Id., citing State v. Thompkins, 78 Ohio St. 3d 380,
386, 678 N.E.2d 541 (1997). An appellate court does not weigh the credibility of
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witnesses when reviewing whether sufficient evidence to support a verdict exists. Id.,
citing State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492 (1991), paragraph two of the
syllabus. “A reviewing court considers whether the evidence at trial ‘if believed, would
convince the average mind of the defendant’s guilt beyond a reasonable doubt. The
relevant inquiry is whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of act could have found the essential elements of the crime
proven beyond a reasonable doubt.’” Id.
{¶ 8} “While venue is not an essential element of a charged offense, courts have
required that venue be proved by the state beyond a reasonable doubt unless it is waived
by the defendant.” State v. Marcum, 2018-Ohio-1135, 108 N.E.3d 1211, ¶ 15 (5th Dist.),
citing State v. Headley, 6 Ohio St. 3d 475, 477, 453 N.E.2d 716 (1983). It is not
necessary to prove venue in express terms as long as it is established by all the facts and
circumstances in the case. Id., citing State v. Dickerson, 77 Ohio St. 34, 82 N.E. 969
(1907), paragraph one of syllabus.
{¶ 9} Evid.R. 201(B)(1) permits a court to take judicial notice of generally-known
facts within the territorial jurisdiction of the trial court. Judicial notice may be taken that
a location is in a particular jurisdiction. State v. DePina, 5th Dist. Stark No.
2014CA00091, 2015-Ohio-2254, ¶ 23, citing State v. Walker, 5th Dist. Licking No.
01-CA-00091, 2002-Ohio-5101, ¶ 8.
{¶ 10} In regards to venue, we are reluctant to “cart blanche” allow the trial court
to take notice or allow “lax methods” of proof of a fact required to be proven by the state.
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Toledo v. Loggins, 6th Dist. Lucas No. L-06-1355, 2007-Ohio-5887, ¶ 19. Our
jurisprudence has required a street address to be established as well as some other
additional information to establish venue. Williams at ¶ 14; Loggins at ¶ 18-19; State v.
Wilson, 6th Dist. Huron No. H-13-002, 2014-Ohio-1005, ¶ 27-28 (Mar. 7, 2014).
{¶ 11} Further, the Seventh District determined that the indication of streets and
intersections was sufficient information for a court to take judicial notice that the crime
occurred within its jurisdiction. State v. Barr, 158 Ohio App. 3d 86, 2004-Ohio-3900,
814 N.E.2d 79, ¶ 25 (7th Dist.). In the Fifth District, testimony regarding the location of
a Wal-Mart store in a particular shopping center was sufficient for a court to take judicial
notice regarding venue. DePina at ¶ 21-23.
{¶ 12} On the other hand, the Fifth District did not find venue was properly
established because the address given by witnesses was in a city which lies within three
counties and therefore additional information was needed. Marcum at ¶ 18-19. In State
v. Myers, the Ninth District found that venue was not established because no information
regarding the city, county, or state was testified to at trial. State v. Myers, 9th Dist.
Summit No. 21874, 2004-Ohio-4195, ¶ 7-8. In Myers, the address where the crime took
place was testified to, but there was no information about which county the address was
in, so the appellate court found that venue had not been properly established. Id.
Analysis
{¶ 13} Here, testimony about the location of the crime was established through the
testimony of B.B. She testified as to the location of the Wal-Mart by indicating the
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intersection of streets where the Wal-Mart was located. She also testified as to what was
around the Wal-Mart, including the location of a bank and the specific name of the
shopping center. Appellee asked the court to take judicial notice that there was one Wal-
Mart on McCord within the court’s jurisdiction. The trial court granted that request and
took judicial notice that venue was properly before the trial court. Although there was no
evidence presented as to which specific city the alleged crime took place, a specific
intersection and shopping center were provided. This information places the crime
within the lower court’s jurisdiction.
{¶ 14} Therefore, appellant’s sole assignment of error is found not well-taken.
The judgment of the Sylvania Municipal Court is affirmed. Appellant is ordered to pay
the costs of this action pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Thomas J. Osowik, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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