State v. Sullivan

[Cite as State v. Sullivan, 2014-Ohio-3112.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-130628
C-130629
Plaintiff-Appellee, : TRIAL NOS. 13TRD-26445A
13TRD-26445B
vs. :
O P I N I O N.
LISA SULLIVAN, :
Defendant-Appellant. :
Criminal Appeals From: Hamilton County Municipal Court
Judgments Appealed From Are: Reversed and Appellant Discharged
Date of Judgment Entry on Appeal: July 16, 2014
Terry Nestor, Interim City Solicitor, Charlie Rubenstein, City Prosecutor, and Eric
Cook, Assistant City Prosecutor, for Plaintiff-Appellee,
Josh Thompson, Office of the Hamilton County Public Defender, for Defendant-
Appellant.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
D INKELACKER , Judge.
{¶1} Following a bench trial, defendant-appellant Lisa Sullivan was convicted
of one count of failure to stop after an accident under R.C. 4549.02, and improper
backing under Cincinnati Municipal Code 506-28. She has filed timely appeals from the
trial court’s judgments. We find merit in her arguments, and we reverse her convictions.
{¶2} The record shows that Nicole Jackson and Sullivan were involved in a
minor traffic accident at the intersection of Bracket Wood and Shafer Avenues.
Jackson’s boyfriend was driving her car when the accident occurred, and Sullivan had a
male passenger in her car. According to Jackson, Sullivan’s car backed into her car,
causing damage.
{¶3} Jackson stated that Sullivan asked her not to call the police, and offered
to pay for the damage. Jackson did not agree to her request and called the police. While
Jackson was talking to some children who had witnessed the accident, and her boyfriend
was searching for his insurance information, Sullivan and her passenger got back into
Sullivan’s car and left the scene without exchanging personal information.
{¶4} Jackson attempted to follow Sullivan’s car, but lost it. She conducted her
own investigation by looking for the car at different apartment complexes in the area.
She eventually found Sullivan’s car, which had paint from Jackson’s car on it, at an
apartment complex at 3450 McHenry.
{¶5} Jackson gave police officer Michael Silberstein the license plate number
of the car she had found. Silberstein put together a photograph lineup to show to
Jackson. Jackson identified Sullivan as the driver of the car that hit her car.
{¶6} Sullivan presents three assignments of error for review. In her first
assignment of error, she contends that the evidence was insufficient to support her
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OHIO FIRST DISTRICT COURT OF APPEALS
convictions. She argues that the state failed to prove venue beyond a reasonable doubt.
This assignment of error is well taken.
{¶7} Under Article I, Section 10, of the Ohio Constitution, a criminal
defendant has the right to a trial in “the county in which the offense is alleged to have
been committed.” State v. Headly, 6 Ohio St.3d 475, 477, 453 N.E.2d 716 (1983); State
v. Keeling, 1st Dist. Hamilton No. C-010610, 2002-Ohio-3299, ¶ 22. R.C. 2901.12(A)
requires a defendant to be prosecuted in a court with subject-matter jurisdiction in the
“territory of which the offense or any element thereof was committed.” Keeling at ¶ 22.
Although venue is not an element of an offense, the state must prove it beyond a
reasonable doubt. Headly at 477; Keeling at ¶ 22.
{¶8} Venue need not be shown by direct evidence, but may be proved by the
evidence as a whole or by circumstantial evidence. State v. Tapke, 1st Dist. Hamilton
No. C-060494, 2007-Ohio-5124, ¶ 59, citing State v. Gribble, 24 Ohio St.2d 85, 263
N.E.2d 904 (1970). Venue is established where the testimony justifies the reasonable
inference that the violation occurred at the placed alleged in the indictment. Tapke at ¶
59.
{¶9} Sullivan did not raise the issue of whether the state had adequately
proved venue in the trial court. Nevertheless, the failure to prove venue is plain error.
State v. Gardner, 42 Ohio App.3d 157, 536 N.E.2d 1187 (1st Dist.1987). If the
prosecution does not present sufficient evidence to prove venue, the conviction must be
reversed. Keeling at ¶ 22; Gardner at 158.
{¶10} At trial, the words “Hamilton County,” “Cincinnati,” or even “Ohio” were
never mentioned. Even Officer Silberstein did not specify the police department for
which he worked. The testimony at trial revealed that the accident took place at the
intersection of Bracket Wood and Shafer Avenues. The state did not present any
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OHIO FIRST DISTRICT COURT OF APPEALS
evidence as to where those roads were located. Jackson testified that she found the car
that hit her car at 3450 McHenry, but there was no mention of what city, county, or state
in which that address was located. Jackson referred to three other streets in her
testimony: (1) Madison Road, where she had a job interview at Fifth Third Bank’s
Operation Center; (2) “Fischer,” which Schafer “runs into”’ and (3) and “Western
Northern Boulevard,” which “go[es] to Bracket [Wood].”
{¶11} We hold that these references are not sufficiently unique to permit the
conclusion that the offenses occurred in Hamilton County, Ohio. The record is devoid of
any other facts from which reasonable minds could conclude beyond a reasonable doubt
that the offenses occurred in Hamilton County. Therefore, the evidence was insufficient
to support the convictions. See Gardner at 157-158; State v. Giles, 322 N.E.2d 362, 364,
(1st Dist.1974); State v. Trantham, 22 Ohio App.2d 187, 189-190, 259 N.E.2d 752 (12th
Dist.1969).
{¶12} Consequently, we sustain Sullivan’s first assignment of error. We find
her second assignment of error, in which she argues that the convictions were against
the manifest weight of the evidence, and her third assignment of error, in which she
argues that she was denied the effective assistance of counsel, to be moot. We, therefore,
decline to address them. See App.R. 12(A)(1)(c); State v. Ritze, 154 Ohio App.3d 133,
2003-Ohio-4580, 796 N.E.2d 566, ¶ 11 (1st Dist.). We reverse the trial court’s judgments
and order Sullivan discharged from further prosecution for those offenses.
Judgments reversed and appellant discharged.
C UNNINGHAM , P.J., and F ISCHER , J., concur.
Please note:
The court has recorded its own entry this date.
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