State v. McVety , 2017 Ohio 2796 ( 2017 )

[Cite as State v. McVety, 2017-Ohio-2796.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASED NO. 8-16-19
v.
TIMOTHY JON McVETY, OPINION
DEFENDANT-APPELLANT.
Appeal from Logan County Common Pleas Court
Trial Court No. CR16-02-0055
Judgment Affirmed
Date of Decision: May 15, 2017
APPEARANCES:
Marc S. Triplett for Appellant
Eric C. Stewart for Appellee
Case No. 8-16-19
SHAW, J.
{¶1} Defendant-appellant, Timothy Jon McVety (“McVety”), appeals the
November 1, 2016 judgment of the Logan County Court of Common Pleas entering
his conviction for one count of Insurance Fraud, in violation of R.C. 2913.47(B)(1),
a felony of the fifth degree, and sentencing him to three years of community control
and thirty days in jail.
Facts and Procedural History
{¶2} On October 13, 2015, at approximately 4:30 p.m., Trevor Coomes was
driving a combine owned by Buckeye Agricultural Testing on Rusk Road in Miami
County when the drive coupler snapped causing the combine to fall into a roadside
ditch and roll. Mr. Coomes, who was not injured, called his employer, Jeffrey
Roeth, the owner of Buckeye Agricultural Testing, who immediately drove to the
scene of the accident, which was two to three miles from his place of business. Mr.
Roeth called Rob Hart, the owner of Hart’s Towing and Recovery, Inc., to assist
with extracting the combine from the ditch. Mr. Hart arrived to the accident at
approximately 5:00 p.m. and quickly ascertained that the combine was too large for
him to retrieve with his equipment. Mr. Hart called McVety, who owns McJack’s
Towing, LLC, for further assistance.
{¶3} McVety arrived to the scene and the people assembled there repeatedly
attempted to upright the combine, but were unsuccessful. The situation was
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complicated by the fact that expensive research equipment was mounted on the
combine. Eventually, Sandy’s Auto and Truck Service was contacted and a driver
with a semi equipped with a rotating boom arrived to the scene at approximately
8:00 p.m. With the arrival of the new equipment, the combine was able to be
extracted from the ditch and placed upon a trailer to be towed back to Buckeye
Agricultural Testing. The job was finished around 11:30 p.m.
{¶4} McVety told the other two tow companies that he would submit one bill
for the work of the three towing services on the job. McJack’s Towing submitted
an invoice totaling $19,412.25 to Western Reserve Insurance Company.
Representatives of Western Reserve were suspicious of the high amount on the
invoice, the fact that invoice stated that all three companies had performed ten hours
of work, which was inconsistent with the accident report, and that McJack’s had
already paid out $5,600 to Sandy’s and $6,600 to Hart’s. The fraud investigator
with Western Reserve contacted Sandy’s and Hart’s independently, discovered that
they had not been paid by McJack’s, and asked them to separately submit invoices
for their services on the job. Hart’s submitted an invoice for $3,210 and Sandy’s
for $643.50. The Logan County Sheriff’s Office was subsequently contacted as a
result of the fraud investigation by Western Reserve.
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Case No. 8-16-19
{¶5} On February 10, 2016, the Logan County Grand Jury indicted McVety
on one count of Insurance Fraud, in violation of R.C. 2913.47(B)(1), a felony of the
fourth degree. McVety entered a plea of not guilty.
{¶6} On September 15, 2016, a trial to the court was held, wherein several
witnesses testified.
{¶7} On November 1, 2016, the trial court issued a judgment entry
convicting McVety of a lesser included offense of fifth degree felony Insurance
Fraud and sentencing him to three years of community control and thirty days in
jail.
{¶8} McVety filed this appeal, asserting the following assignment of error.
THE TRIAL COURT’S VERDICT FINDING APPELLANT
GUILTY OF INSURANCE FRAUD IS NOT SUPPORTED BY
SUFFICIENT EVIDENCE.
{¶9} In his sole assignment of error, McVety claims that the prosecutor failed
to prove venue in this case. Specifically, he argues that the trial court erred in
finding him guilty of Insurance Fraud because the State failed prove beyond a
reasonable doubt that the fraudulent claim originated in Logan County.
{¶10} In a criminal case, venue is not a material element, but the State must
still prove venue beyond a reasonable doubt. State v. Headley, 6 Ohio St.3d 475,
477 (1983). “Venue 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
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(2000). Venue need not be proven in express terms. Id. Rather, it can be established
by all of the facts and circumstances viewed in the light most favorable to the State.
Id. In addition, it has been stated that a trial court has broad discretion to determine
the facts which would establish venue. See, e.g., State v. Mills, 6th Dist. Williams
No. WM-09-014, 2010-Ohio-4705, ¶ 22.
{¶11} While McVety failed to raise the issue of venue in the trial court, the
failure to prove venue is plain error. See State v. Gardner, 42 Ohio App.3d 157,
158 (1st Dist.1987). At trial, the State adduced both direct and circumstantial
evidence from numerous witnesses that McJack’s office was located in Russells
Point, which is situated in Logan County. Moreover, the invoice in question that
represents the charges for the services of all three towing companies to be
$19,412.25 and that Sandy’s and Hart’s were already paid $5,600 and $6,600
respectively, stated that McJack’s business address was in Russells Point. In
addition, this invoice with the same Logan County address was also attached to an
email sent by a McJack’s towing employee to the insurance adjuster. Thus, the
record reflects substantial, credible evidence from which the trial court could have
reasonably concluded that venue had been proved beyond a reasonable doubt. See
State v. Gribble, 24 Ohio St.2d 85 (1970), paragraph two of the syllabus.
{¶12} Moreover, if the State has demonstrated that the alleged crime
occurred in a particular location but failed to provide direct evidence that the
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location is in the appropriate county, Evid.R. 201(B)(1) permits judicial notice of
generally-known facts within the territorial jurisdiction of the trial court; thus
judicial notice may be taken that a location is in a particular county. State v. Depina,
5th Dist. Stark No. 2014CA00091, 2015-Ohio-2254, ¶ 23, citing State v. Barr, 158
Ohio App.3d 86, 2004-Ohio-3900 (7th Dist). As such, the fact that Russells Point
is a city within Logan County could be judicially noticed.
{¶13} Accordingly, the assignment of error is overruled and the judgment is
affirmed.
Judgment Affirmed
WILLAMOWSKI and ZIMMERMAN, J.J., concur.
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