State v. Gonzalez , 188 Ohio App. 3d 121 ( 2010 )

[Cite as State v. Gonzalez, 188 Ohio App.3d 121, 2010-Ohio-982.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY
THE STATE OF OHIO,
APPELLEE, CASE NO. 14-09-09
v.
GONZALEZ, OPINION
APPELLANT.
Appeal from Marysville Municipal Court
Trial Court No. 9 CRB 1314
Judgment Reversed
Date of Decision: March 15, 2010
APPEARANCES:
Victoria Stone-Moledor, for appellee.
Alison Boggs, for appellant.
WILLAMOWSKI, Presiding Judge.
Case No. 14-09-09
{¶1} This appeal is brought by defendant-appellant, Hector P. Gonzalez,
from the judgment of the Marysville Municipal Court finding him guilty of sexual
imposition. Although this appeal has been placed on the accelerated calendar, this
court elects to issue a full opinion pursuant to Loc.R. 12(5). For the reasons set
forth below, the judgment is reversed.
{¶2} On November 25, 2008, a complaint was filed with the trial court
alleging that Gonzalez had committed the offense of sexual imposition in violation
of R.C. 2907.06(A)(4), a misdemeanor of the third degree. Gonzalez entered a
not-guilty plea on December 9, 2008. A bench trial was held on April 24, 2009.
At the conclusion of the trial, Gonzalez was found guilty and immediately
sentenced to 60 days in jail with service to begin immediately. Gonzalez was also
ordered to pay a $500 fine and court costs. Finally, Gonzalez was placed on
community control for three years. On that same day, the trial court issued a
commitment for fine requiring him to be jailed immediately until the fine was
paid, secured to be paid, or otherwise discharged.
{¶3} On April 27, 2009, Gonzalez was returned to the trial court for
resentencing. The trial court imposed exactly the same sentence, but also advised
Gonzalez of his duty to register as a Tier I offender. On April 30, 2009, Gonzalez
filed this appeal and requested a stay of further execution of sentence. This court
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granted the stay on May 22, 2009. Gonzalez raises the following assignments of
error.
First Assignment of Error
There was insufficient evidence for the trial court to find
[Gonzalez] guilty of sexual imposition.
Second Assignment of Error
The trial court’s decision was against the manifest weight of
the evidence.
Third Assignment of Error
The trial court’s policy of increasing [Gonzalez’s] jail
sentence through the commitment paperwork for the non-payment
of fines violated [Gonzalez’s] due process rights and is a violation
of [R.C. 2947.14].
Fourth Assignment of Error
The trial court erred when it overruled [Gonzalez’s] Criminal
Rule 29 motion regarding the lack of evidence and the failure to
prove venue.
The assignments of error will be considered out of order.
{¶4} Gonzalez claims in the fourth assignment of error that the trial court
erred in denying his Crim.R. 29 motion after the state failed to prove venue
beyond a reasonable doubt. “Venue is not a material element of any crime but,
unless waived, is a fact that must be proven at trial beyond a reasonable doubt.”
State v. Barr, 158 Ohio App.3d 86, 2004-Ohio-3900, 814 N.E.2d 79, ¶14.
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Case No. 14-09-09
The Ohio Constitution establishes the right of the accused to
have a “trial by an impartial jury of the county in which the offense
is alleged to have been committed.” Section 10, Article I, Ohio
Constitution. R.C. 2901.12 guarantees that right by requiring that a
criminal trial shall be held in a court with subject matter jurisdiction
in the “territory of which the offense or any element thereof was
committed.” Crim.R. 18 provides that the venue of a case shall be
that as set by law.
Therefore, unless the prosecution proves beyond a reasonable
doubt that the crime alleged was committed in the county where the
trial was held or the defendant waives this right, the defendant
cannot be convicted. State v. Headley (1983), 6 Ohio St.3d 475,
477, 6 OBR 526, 528, 453 N.E.2d 716, 718-19; State v. Draggo
(1981), 65 Ohio St.2d 88, 90, 19 O.O.3d 294, 295, 418 N.E.2d
1343, 1345; and State v. Nevius (1947), 147 Ohio St. 263, 34 O.O.
210, 71 N.E.2d 258, paragraph three of the syllabus. Ideally, the
prosecutor will directly establish venue. However, venue need not
be proven in express terms. The Supreme Court of Ohio has
permitted venue to be established by the totality of the facts and
circumstances of the case. State v. Headley, supra; State v. Gribble
(1970), 24 Ohio St.2d 85, 889-90, 53 O.O.2d 222, 224, 263 N.E.2d
904, 906-907; and State v. Dickerson (1907), 77 Ohio St. 34, 82
N.E. 969, paragraph one of the syllabus. The trial court has broad
discretion to determine the facts which would establish venue.
Therefore, the court’s decision should not be overturned on appeal
unless it is contrary to the manifest weight of the evidence. State v.
Giles (1974), 68 O.O.2d 142, 322 N.E.2d 362.
Toledo v. Taberner (1989), 61 Ohio App.3d 791, 793, 573 N.E.2d 1173.
{¶5} Here the issue of venue was raised by Gonzalez at trial on a Crim.R.
29 motion. The state’s response was that it believed that the victim had testified
that the offense occurred in Richwood. The trial court overruled the motion based
upon his belief that the testimony of the victim was that the offense occurred in
Union County. However, a review of the record reveals that this testimony did
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Case No. 14-09-09
not occur. The only question asked about where the offense occurred came from
the state, when it asked the victim what the address of the house was. The victim
responded that she did not know. No other witness was asked about where the
offense occurred or even for any identifying landmarks from which the trial court
could reasonably discern where the offense occurred. The only evidence before
the trial court was that the offense occurred at the home of Gonzalez. However,
no evidence was presented as to where this house was located.1 Although the
state presented the testimony of multiple witnesses who would have knowledge of
the location of the house, the state failed to ask them where the incident occurred
and whether this location was in Union County. This court also notes that the
state presented no argument on this issue in its brief, thus apparently conceding
Gonzalez’s assignment of error. It was not until oral argument that the state
addressed the issue, which was that the investigating officer’s jurisdiction was
within Union County. Again, this information was not presented at trial, but is
just something of which the state asks us to take judicial notice. This court notes
that the trial court did not take judicial notice of this fact. Thus, this court would
be the one determining an essential fact of the case, not the trial court.
{¶6} Ohio courts, including this court, have long recognized that legal
issues that are not raised at the trial court may not be raised for the first time on
1
Even though appellant testified himself, no one asked him for his address, whether he lived in
Richwood, or even whether he lived in Union County.
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Case No. 14-09-09
appeal. State v. Childs (1968), 14 Ohio St.2d 56, 236 N.E.2d 545; State v. Awan
(1986), 22 Ohio St.3d 120, 489 N.E.2d 277; Lillie v. Meachem, 3d Dist. No. 1-09-
09, 2009-Ohio-4934, State v. Pilgrim, 184 Ohio App.3d 675, 2009-Ohio-5357.2
{¶7} In this case, Gonzalez raised the state’s failure to prove venue
beyond a reasonable doubt in a Crim.R. 29 motion. The state presented its
argument as to why the evidence was sufficient, but this argument was not
supported by the evidence. Now the state wishes us to take judicial notice that the
jurisdiction of the investigating officer was within the jurisdiction of the trial
court. Additionally, we would need to presume that the officer was acting within
his jurisdiction because no testimony was presented on this issue. Judicial notice
may be taken of facts that are capable of accurate and ready determination by
resort to sources whose accuracy cannot reasonably be questioned. Evid.R. 201.
However, the Ohio Supreme Court has held that although venue need not be
proven in express terms, it must be clear from the evidence that no other inference
can reasonably be drawn by the finder of fact than the offense occurred within the
jurisdiction of the court. Dickerson, 77 Ohio St. at 56 (holding that venue was
proven indirectly when the location of the body was provided in testimony, a
location as identified in testimony could be found in the county, and the county
2
Generally, the use of this principle in criminal cases has been to prevent a defendant from changing his
theory of the case on appeal from that presented to the trial court. However, an appellate court must apply
the same legal standards to the state as would be applied to a defendant. It is not the task of this court to
save the state from its own mistakes.
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Case No. 14-09-09
coroner testified that he was the coroner for that county). The Ohio Supreme
Court noted that appellate courts should be careful not to encourage lax methods
of establishing necessary facts. Id.; see also State v. Burkhalter, 6th Dist. No. L-
05-1111, 2006-Ohio-1623. In Burkhalter, the Sixth District Court of Appeals
held that a trial court may take judicial notice of jurisdiction when the evidence
presented leads to the conclusion that the offense must have occurred within the
jurisdiction of the trial court. Id. at ¶18-19. This case is distinguishable because
in Burkhalter, the officer testified as to the road and direction of travel of the
defendant and his own location when he clocked the defendant’s vehicle. He
failed to testify that this location was within his jurisdiction. By looking at a map,
the trial court was able to determine that defendant’s vehicle had to be within the
officer’s jurisdiction when he was speeding. Here, there is no evidence as to
where the offense occurred or that the location was within the county. This is not
sufficient for a determination of venue beyond a reasonable doubt.
{¶8} Additionally, this argument was first presented by the state on
appeal at oral argument. Arguments presented for the first time on appeal will not
be addressed by the appellate court. See Awan, 22 Ohio St.3d 120. Thus, the trial
court should have granted Gonzalez’s Crim.R. 29 motion. The fourth assignment
of error is sustained.
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{¶9} Having sustained the fourth assignment of error, we hold that the
judgment of conviction cannot stand. It is mandatory that venue be proven
beyond a reasonable doubt before a conviction can be sustained. Dickerson, 77
Ohio St. 34. Since venue was not proven, the judgment of conviction must be
reversed and the defendant dismissed. Having reversed the conviction, we find
that the first three assignments of error addressing the sufficiency and the
manifest weight of the evidence and the sentence are moot and need not be
addressed by this court.
{¶10} For the reasons set forth above, the judgment of the Marysville
Municipal Court is reversed, and the defendant is dismissed.
Judgment reversed.
SHAW and PRESTON, JJ., concur.
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