State v. Nelms

[Cite as State v. Nelms, 2014-Ohio-3316.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
: Hon. John W. Wise, J.
-vs- :
:
DAVID NELMS : Case No. 13 CAA 07 0055
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 12CRI090362
JUDGMENT: Affirmed
DATE OF JUDGMENT: July 28, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KYLE ROHRER WILLIAM T. CRAMER
140 North Sandusky Street 470 Olde Worthington Road
3rd Floor Suite 200
Delaware, OH 43015 Westerville, OH 43082
Delaware County, Case No. 13 CAA 07 0055 2
Farmer, J.
{¶1} On September 28, 2012, the Delaware County Grand Jury indicted
appellant, David Nelms, on one count of engaging in a pattern of corrupt activity in
violation of R.C. 2923.32, one count of trafficking in persons in violation of R.C.
2905.32, one count of trafficking in heroin in violation of R.C. 2925.03, one count of
possession of heroin in violation of R.C. 2925.11, five counts of compelling prostitution
in violation of R.C. 2907.21, and eight counts of promoting prostitution in violation of
R.C. 2907.22. Fourteen of the counts included a human trafficking specification
pursuant to R.C. 2941.1422.
{¶2} On February 21, 2013, appellant filed a motion to dismiss for lack of
proper venue, claiming all but one of the alleged offenses did not occur in Delaware
County. A hearing was held on March 15, 2013. By judgment entry filed March 19,
2013, the trial court denied the motion.
{¶3} On June 11, 2013, appellant pled no contest to the engaging in a pattern
of corrupt activity and the possession of heroin counts. The remaining counts, including
the specifications, were dismissed. By judgment entry filed June 12, 2013, the trial
court found appellant guilty. By judgment entry filed June 25, 2013, the trial court
sentenced appellant to an aggregate term of twelve years in prison.
{¶4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶5} "THE DELAWARE COUNTY COURT OF COMMON PLEAS HAD NO
SUBJECT MATTER JURISDICTION OVER THIS CASE BECAUSE THE DELAWARE
Delaware County, Case No. 13 CAA 07 0055 3
COUNTY GRAND JURY HAD NO AUTHORITY TO RETURN AN INDICTMENT FOR
CRIMES COMMITTED IN FRANKLIN COUNTY."
I
{¶6} Appellant claims the trial court lacked subject matter jurisdiction as the
crimes alleged were committed in Franklin County, not Delaware County. We disagree.
{¶7} On February 21, 2013, appellant filed a motion to dismiss for lack of
proper venue, claiming the crimes were not committed in Delaware County and seeking
a change of venue. Appellant argued with the exception of a single count, the offenses
occurred in Franklin County, and the facts do not support a "course of criminal conduct"
theory for establishing venue under R.C. 2901.12(H) which states the following:
(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. 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.
Delaware County, Case No. 13 CAA 07 0055 4
(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.
{¶8} The state argues Count 1, engaging in a pattern of corrupt activity in
violation of R.C. 2923.32, has already been reviewed in light of the venue issue. As
explained by this court in State v Yates, 5th Dist. Licking No. 2009 CA 0059, 2009-Ohio-
6622, ¶ 51-55:
Appellant was convicted of one count of Engaging in a Pattern of
Corrupt Activity, one count of Theft, one count of Possession of Criminal
Tools, and one count of Forgery. Pursuant to R.C. 2901.12(H), if these
offenses constitute a course of criminal conduct, then venue lies for all
those offenses in any jurisdiction in which Appellant committed any one
offense or any element thereof. State v. Giffin (1991), 62 Ohio App.3d
396, 399, 575 N.E.2d 887.
In State v. Giffin, the Tenth District Court of Appeals held that a
prosecution for engaging in a pattern of corrupt activity in violation of R.C.
2923.32(A)(1) is properly venued in any county in which a portion of the
Delaware County, Case No. 13 CAA 07 0055 5
corrupt activity occurred or in which an organization formed for the
purpose of engaging in corrupt activity is based. See also, State v. Haddix
(1994), 93 Ohio App.3d 470, 638 N.E.2d 1096.
The defendant in Giffin, supra, was convicted of aggravated
burglary, aggravated robbery, theft, and engaging in a pattern of corrupt
activity based upon his activities in a burglary ring that conducted
burglaries in Fairfield, Pickaway, and Pike Counties. None of the offenses
were committed in Franklin County, but the defendant was tried in Franklin
County on those charges.
The evidence from the trial revealed that the hub of the burglary
ring was located in Franklin County. In finding that venue was proper in
Franklin County, although the defendant was not directly involved in the
Franklin County activity, the Tenth District stated:
"Consequently, if at least one element of one of the offenses
making up the course of criminal conduct was committed in Franklin
County, defendant's trial was properly venued in that jurisdiction. The
elements of a crime are the constituent parts of an offense which must be
proved by the prosecution to sustain a conviction. Elements necessary to
constitute a crime must be gathered wholly from the statute and not
aliunde. State v. Draggo (1981), 65 Ohio St.2d 88, 91, 19 O.O.3d 294,
295, 418 N.E.2d 1343, 1346.["]
Delaware County, Case No. 13 CAA 07 0055 6
{¶9} Appellant entered no contest pleas to one count of engaging in a pattern
of corrupt activity and one count of possession of heroin. Based upon the sufficiency to
establish proper venue, the remaining counts, as a part of appellant's criminal
enterprise, vests the jurisdiction of Delaware County. In support of this course of
criminal conduct theory, the state cited to fifteen incidents wherein hotels were rented
with appellant's online travel accounts for the purpose of prostitution. March 15, 2013 T.
at 5-6; June 11, 2013 T. at 16-17. The hotels were located in Delaware County. Id.For each of these, although appellant managed his prostitution enterprise from Franklin
County, his "employees" traveled to Delaware County and then returned to Franklin
County to pay appellant. March 15, 2013 T. at 5-6.
{¶10} Pursuant to R.C. Chapter 2939 and R.C. 2901.12(H), we find the trial
court's venue and the grand jury's jurisdiction were proper in Delaware County.
{¶11} The sole assignment of error is denied.
Delaware County, Case No. 13 CAA 07 0055 7
{¶12} The judgment of the Court of Common Pleas of Delaware County, Ohio is
hereby affirmed.
By Farmer, J.
Hoffman, P.J. and
Wise, J. concur.
SGF/sg 714