State v. Armengau , 2019 Ohio 1010 ( 2019 )

[Cite as State v. Armengau, 2019-Ohio-1010.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 18AP-276
v. : (C.P.C. No. 13CR-2217)
Javier H. Armengau, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on March 21, 2019
On brief: Dave Yost, Attorney General, and Matthew J.
Donahue, for appellee.
On brief: Javier H. Armengau, pro se.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Defendant-appellant, Javier H. Armengau, appeals a March 26, 2018
judgment of the Franklin County Court of Common Pleas denying his motion to dismiss.
For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} The facts and procedural history of this case are outlined and detailed in cases
State v. Armengau, 10th Dist. No. 14AP-679, 2017-Ohio-4452, State v. Armengau, 10th
Dist. No. 16AP-355, 2017-Ohio-197, and State v. Armengau, 10th Dist. No. 17AP-852,
2018-Ohio-4299, and will not be repeated here except as relevant to the appeal before us.
{¶ 3} On August 12, 2014, appellant was sentenced and convicted pursuant to jury
verdicts finding him guilty of one count of public indecency (Count 2), four counts of sexual
battery (Counts 15, 16, 17, and 18), one count of kidnapping (Count 14), one count of rape
No. 18AP-276 2
(Count 10), and two counts of gross sexual imposition (Counts 2 and 3), involving multiple
victims. Appellant appealed.
{¶ 4} On June 22, 2017, this court, in a majority decision, affirmed the trial court
judgment in part, reversed in part, and remanded with instructions. In Armengau, 2017-
Ohio-4452, at ¶ 136, this court held:
In summary, appellant's first, second, fourth, fifth, sixth,
seventh, and ninth assignments of error are overruled.
Appellant's third and eighth assignments of error are
sustained. The judgment of the Franklin County Court of
Common Pleas is affirmed in part and reversed in part, and the
matter is remanded for resentencing as to Counts 10 [rape], 14
[kidnapping], 15 [sexual battery], and 17 [sexual battery]. The
court will vacate appellant's Tier III sex offender classification
and apply the sex offender classification under the law in effect
at the time of the offenses for which he was convicted.
{¶ 5} The case was remanded to the trial court. On March 27, 2018,1 the trial court
held a hearing to resentence appellant and address sex offender classification as instructed
in Armengau, 2017-Ohio-4452. On April 25, 2018, appellant appealed the trial court's
judgment. This appeal is currently pending before this court. See State v. Armengau, 10th
Dist. No. 18AP-300.
{¶ 6} Prior to the March 27, 2018 resentencing hearing in the trial court, on
January 16, 2018, appellant filed a "presentence motion for dismissal pursuant to Crim.R.
29 and the United States Constitution and the Ohio Constitution." Appellant moved the
court to dismiss Counts 8, 10, 14, 15, 16, 17, and 18. On March 26, 2018, the court denied
the motion finding it had previously denied appellant's Crim.R. 29 motion for acquittal and
found no good cause to grant or reconsider the motion at this time. Appellant timely
appealed. This is the trial court judgment pending before us now.
II. Assignments of Error
{¶ 7} Appellant appeals and assigns the following two assignments of error for our
review:
I. THE TRIAL COURT ERRED IN DENYING APPELLANT'S
PRE-RESENTENCING MOTION TO DISMISS PURSUANT
TO R. 29 OF THE OHIO RULES OF CRIMINAL PROCEDURE
AND THE OHIO CONSTITUTION AND THE UNITED
1 Corrected Judgment Entry was filed March 28, 2018.
No. 18AP-276 3
STATES CONSTITUTION AS NOTWITHSTANDING AN
AFFIRMING OF THE CONVICTIONS THE EVIDENCE AT
TRIAL WAS INSUFFICIENT TO SUPPORT CONVICTION ON
COUNTS 8, 10, 14, 15, 16, 17 AND 18 OF THE INDICTMENT
AS ACTUALLY CONFIRMED BY THE APPELLATE
DECISION OF JUNE 22, 2017.
A. Appellant was indicted for specific alleged crimes occurring
in Columbus, Ohio on unknown dates, weeks, months and
years but between January 1, 2002 and December 31, 2008 but
convicted for alleged offenses occurring in Marion, Ohio on
unknown dates, weeks, months or years but between January 1,
1999 and sometime in 2000.
B. Crim.R. 7(D) which was the basis for permitting and
affirming the convictions does not permit an amendment to an
indictment that changes the name or the identity of the
indicted crime and when an amendment changes the factual
basis for an amended charge to one at a different time and place
the identity of the crime has been changed rendering the
amendment legally impermissible.
C. A person can only stand trial, be convicted, sentenced and or
resentenced for a specific crime indicted by a grand jury and
any conviction requires that the state prove every essential
element of the indicted crime beyond a reasonable doubt and
the Ohio Supreme Court has determined that the location of
the crime (venue of the crime) is a fact and an essential element
of the indicted crime that must be proved beyond a reasonable
doubt to sustain a conviction.
D. A trial level court can and must dismiss a case against a
defendant upon a defendant's motion prior to resentencing
when the defendant provides the court with authority from the
Ohio Supreme Court and the United States Supreme Court that
confirms that the defendant was convicted for crimes for which
he was never charged, indicted or provided notice in advance
of trial.
II. THE TRIAL COURT ERRED IN DENYING APPELLANT'S
PRE-RESENTENCING MOTION TO DISMISS PURSUANT
TO R.29 OF THE OHIO RULES OF CRIMINAL PROCEDURE
AND THE OHIO CONSTITUTION AND THE UNITED
STATES CONSTITUTION AS NOTWITHSTANDING AN
AFFIRMING OF THE CONVICTIONS THE EVIDENCE AT
TRIAL WAS INSUFFICIENT TO SUPPORT CONVICTION ON
COUNTS 8, 10, 14, 15, 16, 17 AND 18 OF THE INDICTMENT
No. 18AP-276 4
AS FURTHER CONFIRMED BY THE APPELLATE DECISION
OF JUNE 22, 2017 AND THE COURT ERRED IN NOT
DISMISSING COUNTS 8, 10, 14, 15, 16, 17 AND 18 AS THE
CONVICTIONS WERE BASED ON CHARGES CONFIRMED
BY THIS COURT TO HAVE NEVER BEEN CHARGED OR
INDICTED OR NOTICED UNTIL MID-TRIAL.
A. The state is required to provide a defendant with notice of a
specific crime with reasonable particularity of time and place
for which he is to stand trial and providing a defendant with
notice of a specific incident upon which the state will rely for
conviction mid-trial and that was never indicted by a grand jury
and was never disclosed in advance of trial violates the Ohio
Constitution and the United States Constitution and a
defendant cannot be convicted, sentenced or resentenced of
such an alleged crime.
(Sic passim.)
III. Analysis
{¶ 8} We overrule both assignments of error on grounds of res judicata, law of the
case and because, on the merits,2 we see no cause to revisit the issues raised and previously
addressed by this court.
{¶ 9} In State v. Griffin, 138 Ohio St.3d 108, 2013-Ohio-5481, the Supreme Court
of Ohio explained the doctrine of res judicata:
Under the doctrine of res judicata, a final judgment of
conviction bars the convicted defendant from raising and
litigating in any proceeding, except an appeal from that
judgment, any defense or any claimed lack of due process that
was raised or could have been raised by the defendant at the
trial which resulted in that judgment of conviction or on an
appeal from that judgment.
Id. at ¶ 48, citing State v. Perry, 10 Ohio St.2d 175, 180 (1967). As discussed below,
appellant previously raised, or could have raised the issues he raises now.
{¶ 10} In State ex rel. Sharif v. McDonnell, 91 Ohio St.3d 46 (2001), the Supreme
Court explained the law of the case doctrine:
"Absent extraordinary circumstances, such as an intervening
decision by the Supreme Court, an inferior court has no
2We note that in addition to considering appellant's brief and reply brief, we have also considered his notices
of supplemental authority filed March 11, and March 19, 2019 and determine, notwithstanding, there is no
cause to remand the merits at issue raised and previously addressed by this court.
No. 18AP-276 5
discretion to disregard the mandate of a superior court in a
prior appeal in the same case. (State ex rel. Potain v. Mathews
[1979], 59 Ohio St. 2d 29, 32, approved and followed.)"
We explained that, under this doctrine, a reviewing court's
decision was the law in the reviewed case for all legal questions
and for all subsequent proceedings in the case. We observed
that "the rule is necessary to ensure consistency of results in a
case, to avoid endless litigation by settling the issues, and to
preserve the structure of superior and inferior courts as
designed by the Ohio Constitution." As it operates, "the
doctrine functions to compel trial courts to follow the mandates
of reviewing courts."
Id. at 47-48, quoting Nolan v. Nolan, 11 Ohio St.3d 1, 3 (1984), syllabus.
{¶ 11} The trial court had no discretion to disregard the mandate of this court's
previous ruling in Armengau, 2017-Ohio-4452, and we see no reason, on the merits, to
disregard the same. Our ruling in Armengau is addressed below.
{¶ 12} In his direct appeal, appellant raised nine assignments of error. As relevant3
here, appellant alleged:
[I.] The trial court erred in permitting the amendment of the
indictment and bill of particulars, which even after
amendment remained duplicative and lacked the requisite
specificity. That error, along with the State's own confusion
regarding the relevant conduct underlying these counts,
resulted in violations to Mr. Armengau's rights to due process
of law, a fair trial, jury unanimity, and the double jeopardy
protections to which he was entitled. Fifth, Sixth, and
Fourteenth Amendments, United States Constitution; Article
I, Sections 10 and 16, Ohio Constitution; Crim.R. 31(A).
***
[VI.] The trial court erred in denying Javier Armengau's
Crim.R. 29 motion for acquittal, and violated his rights to due
process and a fair trial when, in the absence of sufficient
evidence, it convicted him of counts 8, 10, 14, 15, 17, and 18.
Armengau, 2017-Ohio-4452, ¶ 53.
3Interwoven in his argument in support of his assignments of error, appellant raises the issue of other acts
evidence at page 54 of his brief. In Armengau, 2017-Ohio-4452, this court addressed the issue of other acts
evidence in its discussion of the second assignment of error. Appellant is referred to ¶ 68-80 in Armengau,
2017-Ohio-4452.
No. 18AP-276 6
{¶ 13} As to the first assignment of error in Armengau, 2017-Ohio-4452, this court
held:
Appellant's first assignment of error raises multiple issues
relating to the charges involving L.M. Appellant first asserts
that the trial court erred in allowing the state to amend the
indictment and bill of particulars. He also asserts that the trial
court allowed the state to try him for unindicted offenses.
Finally, he asserts that the indictment and bill of particulars
lacked specificity to differentiate duplicative offenses involving
L.M., and the result was a patchwork verdict that did not reflect
the jury unanimity required by Crim.R. 31(A). Appellant
asserts that the trial court erred in denying a mistrial based on
these errors, and that he was deprived of his due process rights
under the Fifth, Sixth, and Fourteenth Amendments, United
States Constitution, and Article I, Sections 10 and 16, Ohio
Constitution.
Article 1, Section 10 of the Ohio Constitution provides that "no
person shall be held to answer for a capital, or otherwise
infamous crime, unless on presentment or indictment of a
grand jury." This language "guarantees the accused that the
essential facts constituting the offense for which he is tried will
be found in the indictment of the grand jury." State v. Headley,
6 Ohio St.3d 475, 478 (1983). The state is entitled to state a
count in the indictment in bare statutory language. Crim.R.
7(B). A defendant seeking to clarify the facts of the criminal
allegations contained within the indictment may request a bill
of particulars "setting up specifically the nature of the offense
charge and of the conduct of the defendant alleged to constitute
the offense." Crim.R. 7(E). The purpose of the bill of particulars
is to "elucidate or particularize the conduct of the accused
alleged to constitute the charged offense." State v. Sellards, 17
Ohio St.3d 169, 171 (1985). However, "[a] bill of particulars is
not designed to provide the accused with specifications of
evidence or to serve as a substitute for discovery." Id.
1. The L.M. Charges and Amendments
Appellant points out that the charges with respect to L.M.
varied between the bill of particulars, the amended bill of
particulars, and yet again with L.M.'s testimony. For all
offenses, the time frame shifted: 2002 to 2008 inclusive in the
indictment, 1999 to 2008 inclusive after amendment of the
indictment at trial, and between 1998 and 2003 according to
L.M.'s testimony.
No. 18AP-276 7
The other particulars of the offenses varied as well. For
example, as indicted, Count 9 alleged vaginal rape. The first
bill of particulars described this as occurring on the couch in
appellant's Marion office, with the door locked and appellant's
hands in L.M's mouth to silence her. The first and second
amended bills of particulars did not alter this description.
When opposing the defense's Crim.R. 29 motion for acquittal
at the close of the state's case, the state, lacking any testimony
from L.M. concerning rape under these circumstances, argued
that this offense now rested on L.M.'s description of a possible
drugging rape occurring in appellant's Marion office, the first
incident she endured. The state's closing statements
maintained this theory, in direct contradiction to the state's
comments in opening statements, which represented the
drugging incident as an unindicted offense. (Tr. at 1463-69,
2355-56.) Based on those transformations, appellant now
asserts that he ultimately was tried (albeit acquitted) for the
crime of rape through induced intoxication, R.C.
2907.02(A)(1)(a), when the indictment charged rape through
submission by force or threat of force, R.C. 2907.02(A)(2).
Similarly, Count 10 of the indictment alleged oral rape, and the
conduct supporting this shifted over the course of trial. The
initial bill of particulars did not provide details for this offense.
The second amended bill of particulars specified that appellant
"did force [L.M.] to have oral sex with him in his Marion office
by telling her to 'do it' and forcing his penis into her mouth."
(June 22, 2014 Second Amended Bill of Particulars at 2).
Finally, Count 14 of the indictment alleged kidnapping with
purpose to engage in sexual activity. The first bill of particulars
tied this conduct to an office couch rape involving a locked door
and appellant's hand in the victim's mouth to silence her; after
the various amendments to the bills of particulars regarding
the three original counts of vaginal rape (Counts 9, 12, and 13)
in the indictment, this conduct matches only Count 9. (The
second amended bill of particulars described Counts 12 and 13
to conform to L.M.'s testimony of rapes in a white truck.) The
second amended bill of particulars further altered the facts so
that the kidnapping in Count 14 now alleged restraint of liberty
in furtherance of compelled oral sex, thus detaching Count 14
from the vaginal rape in Count 9 and attaching it to one of the
two oral rape counts, either Count 10 or 11.
There is no doubt that the evidence heard at trial forced a
steady evolution of the state's theory of the case for the offenses
No. 18AP-276 8
involving L.M. However, the law, in the form of Crim.R. 7(D),
contemplates that this circumstance will arise in many criminal
cases and the state will not be irremediably bound to the facts
available at the outset of trial: the state may amend the
indictment and bill of particulars so long as "no change is made
in the name or identity of the crime charged." Crim.R. 7(D);
State v. White, 10th Dist. No. 06AP-607, 2007-Ohio-3217, ¶ 17.
And even in cases where the state has not amended the bill of
particulars, "Crim.R. 33(E)(2) states that a verdict shall not be
set aside, nor shall any judgment of conviction be reversed
because of a variance between the allegations and the proof
unless the defendant is misled or prejudiced by the variance."
State v. Kersey, 124 Ohio App.3d 513, 518 (1st Dist.1997).
Ultimately, the initial lack of specificity and the court's
allowance of serial amendments did not materially prejudice
appellant. Apart from the dates of the offenses, which remained
imprecise, the charges against appellant were sufficiently
specific to allow an effective defense, which ultimately was
successful as to certain charges. With respect to the variations
in dates, appellant's defense did not rely on alibis or
impossibility for the open dates given in the indictment, and
"[t]he precise date and time a rape occurs is not an essential
element of the crime." State v. Reinhardt, 10th Dist. No. 04AP-
116, 2004-Ohio-6443, ¶ 20, citing State v. Madden, 15 Ohio
App.3d 130 (12th Dist.1984). Appellant's defense relied on
absolute denial of any sexual activity with L.M. outside of a
two-week consensual dating relationship whose timing did not
impact the charged crimes. The jury found appellant not guilty
of rape by induced intoxication under Count 9, the alleged
unindicted offense. Appellant cannot suggest prejudice from
the lack of specificity in the bill of particulars or the later
amendments.
2. Jury Unanimity
Finally, appellant argues that the complex, and allegedly
mismatched, assemblage of facts, testimony, indictment, and
amendments of the bill of particulars allowed the jury to
produce a "patchwork" verdict in violation of Ohio's
requirement of jury unanimity, under Crim.R. 31(A). Pursuant
to that rule, jurors must unanimously agree not only on the
defendant's guilt, but as to proof as to each element of the
crime. State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787,
¶ 37. While unanimity is not required on the manner in which
each element is satisfied in an "alternative means" case, the
distinction must be made between "alternative means" cases
No. 18AP-276 9
and "multiple acts" cases. Id. at ¶ 48-51. Appellant argues that
both the state's tactics and the court's jury instructions invited
a less-than-unanimous verdict.
In alternative-means cases, an offense may be committed in
more than one way and jury unanimity is required for the crime
itself but not the means by which it was committed. Gardner at
¶ 49. In multiple-acts cases, several different acts can constitute
the charged crime, and jury unanimity is required as to which
act or incident supports the crime. Id. at ¶ 50. In a multiple-
acts case, the jury must be unanimous as to which act or
incident constitutes the crime. To ensure this, the state must
specify the particular criminal act upon which it relies for
conviction, and the trial court must "instruct the jury that all of
them must agree that the same underlying criminal act has
been proved beyond a reasonable doubt." Id. It follows that in
a case where multiple crimes are charged, the jury must
unanimously agree on which underlying criminal act supports
any given charge.
Here, appellant's counsel requested a jury instruction expressly
advising the jury to consider each count separately,
uninfluenced by their conclusion as to any other count. This
was not given. The state requested an alternative-means
instruction, which was given. The court then advised the jury
only in general terms regarding unanimity, without elaborating
on the need to consider the counts independently: "Before you
can find the defendant guilty, you must unanimously agree on
your verdict." (Tr. at 3830.) Because counsel did not object to
the jury instructions as given, we review the issue under a
plain-error standard. State v. Hartman, 93 Ohio St.3d 274,
289 (2001). Plain error exists where the outcome of the trial
would clearly have been different but for the error. Crim.R.
52(B); State v. Biros, 78 Ohio St.3d 426, 431 (1997); State v.
Long, 53 Ohio St.2d 91, 97 (1978). The plain error rule must be
applied with the utmost caution and invoked only under
exceptional circumstances to prevent a manifest miscarriage of
justice. State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, at
¶ 62; State v. Cooperrider, 4 Ohio St.3d 226, 227 (1983).
Appellant argues that his case is a multiple-acts case, not an
alternative-means case, and that the state improperly led the
jury to believe that various acts, occurring in different places
and at different times, could support conviction for a given
count as long as jurors all agreed that some of the acts had been
committed, although not necessarily agreeing as to which ones.
Because L.M. testified, not only as to specifics, but as to
No. 18AP-276 10
continuous sexual conduct occurring on at least a weekly basis
over a period of years, he asserts that it becomes impossible to
ascertain which aspect of the testimony the jury unanimously
relied upon to convict for any particular criminal count.
The jury verdict reflects, to the contrary, that the jury was able
to clearly differentiate the various specifics supporting each
offense. L.M.'s general testimony of ongoing and continual
abuse does not compel the conclusion that the jury confused
the various specific incidents she described. These included
four specific incidents of vaginal or oral rape and an incident of
compelled fellatio in her Dublin apartment in which appellant
made L.M. lock her young child away in another room. L.M.'s
testimony was sufficiently precise in describing the major
incidents outlined above. While we, of course, do not take the
blanket position that a partial acquittal disproves all error, in
this case, under a plain error standard, the fact that the jury
refused to convict on some of these counts even while returning
a guilty verdict on the others tends to refute the possibility of a
patchwork verdict. We find that the outcome of the case would
not have been clearly different had the requested instruction
been given or the counts particularized more consistently in the
course of prosecution.
In summary, we conclude that appellant was not deprived of
his constitutional due process rights by the form of the
indictment, the subsequent amendment thereof, the form of
the bill of particulars through multiple amendments, and the
jury instructions provided by the court. We overrule appellant's
first assignment of error.
Id. at ¶ 54-67.
{¶ 14} As to the sixth assignment of error, this court held in Armengau, 2017-Ohio-
4452:
E. Venue
Appellant's sixth assignment of error asserts that appellant's
convictions under Counts 8, 10, 14, 15, 17, and 18 of the
indictment must be reversed because the state failed to
present evidence to support venue for those crimes as charged
in the indictment, and the trial court accordingly erred in
denying appellant's Crim.R. 29 motion made after the state
rested. We disagree.
Under Crim.R. 29(A), a court "shall order the entry of a
judgment of acquittal of one or more offenses * * * if the
No. 18AP-276 11
evidence is insufficient to sustain a conviction of such offense
or offenses." Because a Crim.R. 29 motion questions the
sufficiency of the evidence, "[w]e apply the same standard of
review to Crim.R. 29 motions as we use in reviewing the
sufficiency of the evidence." State v. Hernandez, 10th Dist.
No. 09AP-125, 2009-Ohio-5128, ¶ 6; State v. Tenace, 109
Ohio St.3d 255, 2006-Ohio-2417, ¶ 37; State v. Hubbard, 10th
Dist. No. 11AP-945, 2013-Ohio-2735, ¶ 16. "Sufficiency of the
evidence is a legal standard that tests whether the evidence
introduced at trial is legally sufficient to support a verdict."
State v. Cassell, 10th Dist. No. 08AP-1093, 2010-Ohio-1881,
¶ 36, citing State v. Thompkins, 78 Ohio St.3d 380, 386
(1997). In reviewing a challenge to the sufficiency of the
evidence, an appellate court must determine "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. Jenks, 61 Ohio St.3d 259 (1991), paragraph
two of the syllabus. Where the evidence, "if believed, would
convince the average mind of the defendant's guilt beyond a
reasonable doubt," it is sufficient to sustain a conviction. Id.;
see also State v. Neil, 10th Dist. No. 14AP-981, 2016-Ohio-
4762, ¶ 94; State v. Crosky, 10th Dist. No. 06AP-655, 2008-
Ohio-145, ¶ 43.
1. Legal Standards
Venue commonly refers to the appropriate place of trial for a
criminal prosecution within a state. "[J]urisdiction and venue
are not the same, as the former denotes the power of the court
to hear the case and the latter denotes the situs of trial." State
v. Giffin, 62 Ohio App.3d 396, 403 (10th Dist.1991), citing
State v. Loucks, 28 Ohio App.2d 77 (4th Dist.1971). Proper
venue insures that "the state [does not] indiscriminately
[seek] a favorable location for trial or [select] a site that might
be an inconvenience or disadvantage to the defendant." State
v. Meridy, 12th Dist. No. CA2003-11-091, 2005-Ohio-241,
¶ 12, quoting State v. Gentry, 61 Ohio Misc.2d 31, 34 (1990).
The fact that venue is not a restriction on territorial
jurisdiction is underscored by the provisions of Crim. R. 18(B)
and R.C. 2901.12(K), which provide for a change of venue if
the trial court finds that a fair and impartial jury cannot be
seated in the court where the action is pending.
Because venue is neither a jurisdictional nor a material
element of a criminal offense, the indictment is only required
to contain an allegation that the offense was committed within
No. 18AP-276 12
the jurisdiction of the court. State v. Andrews, 148 Ohio
App.3d 92 (10th Dist.2002). Even when multiple offenses are
alleged in an indictment, an indictment is not rendered
invalid where the "place has been stated once therein." State
v. Williams, 53 Ohio App.3d 1 (10th Dist.1988). While venue
is not a material element of the offense as charged, it is a fact
that the state must prove beyond a reasonable doubt unless
waived by a criminal defendant. State v. Hampton, 134 Ohio
St.3d 447, 2012-Ohio-5688, ¶ 22; State v. Birt, 12th Dist. No.
CA2012-02-031, 2013-Ohio-1379, ¶ 27. "Venue need not be
proven in express terms; it may be established either directly
or indirectly by all the facts and circumstances of the case."
State v. Jackson, 141 Ohio St.3d 171, 2014-Ohio-3707, ¶ 144.
The indictment in the present case alleged for each count that
the criminal conduct occurred "within the county of
Franklin." (May 20, 2013 Indictment, Counts 1 through 18.)
Appellant argues that for all but three of the counts for which
he was convicted, the state failed to prove venue because it
introduced no evidence at all that the crimes occurred in
Franklin County: for Counts 8 (gross sexual imposition, K.R.),
10 (rape, L.M.), 14 (kidnapping, L.M.), and 15, 17, and 18
(sexual battery, L.M.), the only evidence heard placed the
offenses in Marion County. In contrast, for Counts 2 and 3
(public indecency and gross sexual imposition, C.C.), and
Count 16 (sexual battery, L.M.), appellant concedes on appeal
that the evidence supported venue in Franklin County. At the
close of the state's case, the defense moved, unsuccessfully, for
a Crim.R. 29 acquittal for those incidents for which the
evidence established the location as Marion County.
Appellant argues that the trial court erred when it denied his
Crim.R. 29 motion.
The state responds that any deficiency in the indictment was
cured by subsequent amendment of either the indictment or
the bill of particulars. We disagree. It is the language of the
indictment that defines the venue for which the state bears the
burden of proof. Hampton, supra, at ¶ 23. As stated above,
the original indictment specified Franklin County as venue for
all crimes. The state never amended the venue allegation in
the indictment. Therefore, the state had to prove that venue
was proper in Franklin County.
The state also argues that all crimes took place as part of a
course of criminal conduct across several jurisdictions,
including Franklin County, establishing venue in Franklin
County under the course of criminal conduct terms of R.C.
No. 18AP-276 13
2901.12(H). We conclude that the state presented sufficient
evidence to prove venue under the course of criminal conduct
provisions in R.C. 2901.12(H).
2. Venue and Course of Criminal Conduct–R.C. 2901.12(H)
When an offender, as part of a course of criminal conduct,
commits offenses in different jurisdictions, the offender may
be tried for all of those offenses in any jurisdiction in which
one of those offenses or any element of one of those offenses
occurred. R.C. 2901.12(H). To establish a course of criminal
conduct, the statute provides in relevant part:
(H) * * * Without limitation on the evidence that may be used
to establish the course of criminal conduct, any of the
following is prima-facie evidence of a course of criminal
conduct:
(1) The offenses involved the same victim, or victims of the
same type or from the same group.
(2) The offenses were committed by the offender in the
offender’s same employment, or capacity, or relationship to
another.
(3) The offenses were committed as part of the same
transaction or chain of events, or in furtherance of the same
purpose or objective.
(4) The offenses were committed in furtherance of the same
conspiracy.
(5) The offenses involved the same or a similar modus
operandi.
(6) The offenses were committed along the offender’s line of
travel in this state, regardless of the offender’s point of origin
or destination.
R.C. 2901.12(H).
"R.C. 2901.12(G) and (H) are statutory reflections of the
modern mobility of criminals to perform unlawful deeds over
vast geographical boundaries." State v. Draggo, 65 Ohio St.2d
88, 90 (1981). Consistent with this multi-county venue, "a
grand jury of one county has authority to indict on offenses
occurring in other counties provided that those offenses are
No. 18AP-276 14
part of a course of criminal conduct." State v. Ahmed, 8th
Dist. No. 84220, 2005-Ohio-2999, ¶ 11. The Supreme Court of
Ohio confirmed the law as stated in Ahmed when it decided
Jackson at ¶ 131:
There is no constitutional or statutory provision that
prohibited the Cuyahoga County Grand Jury from indicting
Jackson for offenses that occurred in Erie and Lorain Counties
as part of a course of criminal conduct that included crimes
within Cuyahoga County. R.C. 2901.11 and 2901.12 permit a
grand jury to indict an offender for offenses that occurred
outside the county, provided that the offenses are part of the
same course of criminal conduct that took place in the county
in which the grand jury resides.
The present case involves a series of offenses that fit four of
the criteria enumerated in R.C. 2901.12(H). The victims were
"of the same type, or from the same group" under R.C.
2901.12(H)(1), because they are associated with appellant's
law practice as clients, relatives of clients, or employees. The
offenses were committed "in the offender's same employment,
or capacity, or relationship to another" under R.C.
2901.12(H)(2), again based on the centrality of appellant's law
practice in his selection of victims. The offenses involved "the
same or similar modus operandi" under R.C. 2901.12(H)(5),
based on the grooming and exploitation of vulnerable female
clients or relatives of clients. Finally, the offenses were
committed in furtherance of the same purpose or objective
(sexual gratification). R.C. 2901.12(H)(3).
A similar case involving abuse of clients in a professional
practice is persuasively on point. In Ahmed, the defendant, a
licensed obstetrician and gynecologist, operated medical
offices in several counties. The grand jury in Cuyahoga County
returned an indictment charging him with multiple counts of
rape, sexual imposition, and sexual battery involving 37
former patients. The indictment specified that the offenses
occurred at Ahmed's offices in Cuyahoga, Summit, and
Geauga counties. After disposing of the preliminary question
of whether the grand jury could return an indictment
addressing the out-of-county crimes, the Eighth District Court
of Appeals found that trial venue in Cuyahoga County for all
offenses was appropriate: "The evidence at trial revealed that
all of the victims were Ahmed's patients, all of the offenses
occurred at his medical offices while the victims were seeking
medical care from him, and while situated in a vulnerable
position. Further, each victim identified the office location
No. 18AP-276 15
where the offense(s) occurred. Based on this evidence, we find
that the State adequately proved that venue was proper."
Ahmed at ¶ 18.
Ahmed presented the same type of course of criminal conduct
that the state alleges here. Based on this precedent and
analysis of the applicable statutes governing venue, we
conclude that the state proved venue was proper in Franklin
County for Counts 8, 10, 14, 15, 17, and 18 of the indictment.
Citing Hampton, appellant argues that because the
indictment alleged the conduct associated with Counts 8, 10,
14, 15, 17, and 18 occurred in Franklin County, the state could
only establish venue by proving that the alleged conduct
occurred in Franklin County. We do not read Hampton so
restrictively. Hampton involved a situation where all of the
alleged criminal conduct occurred outside the county where
the case was venued. Therefore, R.C. 2901.12(H) was not
applicable. Moreover, the Hampton court noted that "[t]he
General Assembly has given the state considerable flexibility
with respect to establishing venue," citing R.C. 2901.12(G) as
an example. Hampton at ¶ 23. See also State v. Young, 9th
Dist. No. 15CA010803, 2017-Ohio-1400, ¶ 15-16 (finding no
authority for proposition that an indictment must include
"course of conduct" language when the state intends to
proceed under R.C. 2901.12(H)). Lastly, appellant was on
notice that the state would establish venue by proving the
conduct occurred in Franklin County "or otherwise properly
venued under R.C. 2901.12, the defendant, as part of a
criminal course of conduct as defined in R.C. 2901.12(H)(1),
which encompassed at least, Franklin and Marion Counties,
Ohio." (June 1, 2014 Bill of Particulars at 6.) As previously
noted, the indictment alleged and the state proved, that some
of the alleged criminal conduct occurred in Franklin County
and that the other offenses in Counts 8, 10, 14, 15, 17, and 18
were committed pursuant to a course of criminal conduct as
defined in R.C. 2901.12(H).
3. Conclusion
For all of these reasons, we overrule appellant's sixth
assignment of error.
Id. at ¶ 104-117.
No. 18AP-276 16
{¶ 15} Appellant argues before us now that our decision in Armengau, 2017-Ohio-
4452, raises additional questions which required the trial court to grant his pre-sentencing
motion to dismiss. He asks this court to consider the following issues:
Whether a trial level court who had a motion for dismissal
pending at the time of resentencing must dismiss a case when
the content of the appellate decision not only raises additional
questions as to whether Appellant was wrongfully convicted,
whether he received a fair trial based on prosecutorial
misconduct and standing trial for alleged crimes for which he
was never charged or indicted, but whether precedent that
was disregarded by this Court from the United States
Supreme Court and the Ohio Supreme Court and its own
Court should have resulted in Appellant's acquittal and
whether a trial court can even resentence a defendant when
his convictions are undeniably contrary to clearly established
state and federal law?
Whether a trial level Court must dismiss the relevant counts
in an indictment pursuant to motion when the appellate
decision confirms that Appellant was never charged or
indicted for the specific crimes for which he was tried and
convicted?
(Appellant's Brief at 7.)
{¶ 16} These are issues appellant could have raised in a motion to reconsider in
Armengau, 2017-Ohio-4452.4 Appellant did not file a motion to reconsider this court's
decision in Armengau, 2017-Ohio-4452.
{¶ 17} Appellant did, however, file an appeal with the Supreme Court. The Supreme
Court did not accept his appeal for review. See State v. Armengau, 2018-Ohio-365. The
Supreme Court also denied appellant's subsequent motion requesting reopening of appeal.
See State v. Armengau, 2018-Ohio-1600. The Supreme Court denied another motion filed
by appellant on April 30, 2018. Finally, the Supreme Court denied appellant's July 2, 2018
motion requesting the court grant motion and supplemental notice.
4 "The test generally applied to an application for reconsideration is whether the application calls to the court's
attention 'an obvious error in its decision or raises an issue for our consideration that was either not
considered at all or was not fully considered by us when it should have been.' " State v. Lawson, 10th Dist. No.
12AP-53, 2013-Ohio-803, ¶ 7, quoting Matthews v. Matthews, 5 Ohio App.3d 140, 143 (10th Dist.1981).
No. 18AP-276 17
{¶ 18} Finally, we note appellant has made another attempt to raise the same issues
raised in this appeal and in his direct appeal in his appeal of the resentencing now pending
before this court in State v. Armengau, 10th Dist. No. 18AP-300.5
{¶ 19} In Griffin at ¶ 52, the Supreme Court emphasized:
" '[P]ublic policy dictates that there be an end of litigation;
that those who have contested an issue shall be bound by the
result of the contest, and that matters once tried shall be
considered forever settled as between the parties.' * * * We
have stressed that '[the] doctrine of res judicata is not a mere
matter of practice or procedure inherited from a more
technical time than ours. It is a rule of fundamental and
substantial justice, "of public policy and of private peace,"
which should be cordially regarded and enforced by the
courts.' "
(Citations omitted.)
{¶ 20} For the reasons outlined above, we overrule appellant's first and second
assignments of error.
IV. Conclusion
{¶ 21} Having overruled appellant's two assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BROWN and LUPER SCHUSTER, JJ., concur.
5 See third assignment of error in case No. 18AP-300.