State v. Jones

[Cite as State v. Jones, 2020-Ohio-2884.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2019-03-020
: OPINION
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:
ANDREW JONES, :
Appellant. :
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
Case No. 17CR33514
David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice
Drive, Lebanon, Ohio 45036, for appellee
Bryan Scott Hicks, P.O. Box 359, Lebanon, Ohio 45036, for appellant
RINGLAND, J.
{¶ 1} Appellant, Andrew Jones, appeals his conviction in the Warren County Court
of Common Pleas for illegal voting. For the reasons outlined below, we affirm.
{¶ 2} Prior to September 2015, Jones and his wife ("Wife") jointly owned and
resided at a home located at 8633 Cheshire Court in Franklin, Ohio. In September 2015,
after divorce proceedings were initiated between the couple, Wife moved to 7103 Country
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Walk Drive in Franklin, Ohio. After moving to Country Walk Drive, Wife updated her address
with the post office to reflect that she had moved from Cheshire Court to Country Walk
Drive. In her address-change request, Wife included herself and the couple's children, but
did not include Jones. The couple's divorce was finalized in December 2015, and they sold
the home on Cheshire Court in May of 2016. The new owner, Mr. Lamkin, moved into the
Cheshire Court home on May 5, 2016.
{¶ 3} On August 29, 2016, the Warren County Board of Elections ("Board of
Elections") received an application from Jones requesting an absentee voter's ballot for the
general election on November 8, 2016. In completing the application, Jones listed 8633
Cheshire Court as his home address, and requested the Board of Elections to send the
absentee ballot to a P.O. Box in Franklin, Ohio. Jones signed the application, declaring,
"under penalty of election falsification, [that he was] a qualified elector and that the
statements above [were] true to the best of [his] knowledge and belief."
{¶ 4} Prior to Jones' submission of his absentee ballot application, the address
associated with his voter record had been changed to 7103 Country Walk Drive through the
National Change of Address system ("NCOA"). Such a change occurs automatically when
a person's address is updated with the U.S. Postal Service. Thus, upon receiving Jones'
application, the Board of Elections noticed the address Jones provided, 8633 Cheshire
Court, did not match the address listed in his voter record. Because Jones' address did not
match his voter record, the Board of Elections rejected his application and sent Jones a
standard problem letter on August 30, 2016. The problem letter notified Jones of the
address problem and detailed how he could remedy the situation. The Board of Elections
did not receive a response to the problem letter.
{¶ 5} On or about September 7, 2016, Jones met with the Warren County Director
of Elections to discuss the rejection of his absentee ballot application. Specifically, Jones
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wanted the Board of Elections to change his address back to the Cheshire Court address,
as he did not authorize the change. At that time, the Director informed Jones that the
Director would not change his address back to the Cheshire Court address and indicated
that Jones was required to vote based on the location of his current address. In response,
Jones stated he would "take care of this some other time[.]"
{¶ 6} On November 1, 2016, Jones returned to the Board of Elections office to cast
a provisional ballot and vote early. At that time, Jones completed a provisional ballot, and
provided his name, birthdate, the last four digits of his social security number, and his
current address. On the ballot, Jones indicated his current address was 8633 Cheshire
Court, Franklin, Ohio, which placed him in the 145th precinct in Warren County. Jones
signed the provisional ballot, affirming he understood that "knowingly providing false
information is a violation of the law and subjects [him] to criminal prosecution," and declaring
that the "above statements [were] true and correct to the best of [his] knowledge and belief."
Jones cast his ballot for the general election that day, including his vote on issues pertaining
specifically to the 145th precinct in Warren County.
{¶ 7} Although Jones cast his ballot on November 1, 2016 at the Board of Elections
office, his vote was ultimately not counted. Specifically, through the Board of Elections'
audit process of provisional ballots, it was determined the address information provided by
Jones did not match his voter information. Due to the deviation, the Board of Directors sent
an acknowledgment notice to Jones at the Cheshire Court address, in an attempt to confirm
that Jones lived there. The notice was returned to the Board of Elections by the U.S. Post
Office, and indicated that Jones lived at 7104 Country Walk Drive, not at the Cheshire Court
address. In light of the returned notice, the Board of Elections rejected Jones' provisional
ballot before it was processed.
{¶ 8} Thereafter, the Board of Elections held a meeting where its members voted
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to refer the matter to the Warren County Prosecutor's Office. After an investigation by the
Lebanon Police Department, Jones was indicted by the Warren County Grand Jury for one
count of illegal voting and one count of falsification. The matter proceeded to a jury trial at
the conclusion of which Jones was found guilty of both counts. The two counts merged for
sentencing purposes and the state elected to proceed in sentencing for the illegal voting
charge. After a hearing, the trial court sentenced Jones to 18 months in prison.
{¶ 9} Jones timely appealed his illegal voting conviction, setting forth two
assignments of error for our review. For the ease of discussion, Jones' two assignments of
error will be discussed together.
{¶ 10} Assignment of Error No. 1:
{¶ 11} ANDREW JONES WAS A QUALIFIED ELECTOR.
{¶ 12} Assignment of Error No. 2:
{¶ 13} THE VERDICT WAS AGAINST THE SUFFICIENCY OF THE EVIDENCE.
{¶ 14} In his assignments of error, Jones argues that his illegal voting conviction is
not supported by sufficient evidence because the state failed to prove that he was not a
qualified elector of Warren County and Precinct 145.
{¶ 15} Whether the evidence presented at trial is legally sufficient to sustain a verdict
is a question of law. State v. Thompkins, 78 Ohio St. 3d 380, 386, 1997-Ohio-52; State v.
Grinstead, 194 Ohio App. 3d 755, 2011-Ohio-3018, ¶ 10 (12th Dist.). When reviewing the
sufficiency of the evidence underlying a criminal conviction, an appellate court examines
the evidence in order to determine whether such evidence, if believed, would convince the
average mind of the defendant's guilt beyond a reasonable doubt. State v. Paul, 12th Dist.
Fayette No. CA2011-10-026, 2012-Ohio-3205, ¶ 9. Therefore, "[t]he relevant inquiry is
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
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reasonable doubt." State v. Jenks, 61 Ohio St. 3d 259 (1991), paragraph two of the syllabus.
{¶ 16} Jones was convicted of illegal voting in violation of R.C. 3599.12(A)(1), which
provides that "[n]o person shall *** [v]ote or attempt to vote in any primary, special, or
general election in a precinct in which that person is not a legally qualified elector[.]" A
qualified elector is defined as:
Every citizen of the United States who is of the age of eighteen
years or over and who has been a resident of the state thirty
days immediately preceding the election at which the citizen
offers to vote, is a resident of the county and precinct in which
the citizen offers to vote, and has been registered to vote for
thirty days, has the qualifications of an elector and may vote at
all elections in the precinct in which the citizen resides.
R.C. 3503.01(A).
{¶ 17} At issue in the instant matter is whether Jones was a resident of Warren
County and Precinct 145, the county and precinct in which he attempted to vote. It is
undisputed that the state has "unquestioned power to impose reasonable residence
restrictions on the availability of the ballot." Kyser v. Board of Elections, 36 Ohio St. 2d 17,
19 (1973). In determining the residence of a person offering to vote, all registrars and
officials are governed by R.C. 3503.02. Relevant to this appeal, R.C. 3503.02 states the
following regarding a person's residency:
(A) That place shall be considered the residence of a person in
which the person's habitation is fixed and to which, whenever
the person is absent, the person has the intention of returning.
(B) A person shall not be considered to have lost the person's
residence who leaves the person's home and goes into another
state or county of this state, for temporary purposes only, with
the intention of returning.
(C) A person shall not be considered to have gained a
residence in any county of this state into which the person
comes for temporary purposes only, without the intention of
making such county the permanent place of abode.
***
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(I) If a person does not have a fixed place of habitation, but has
a shelter or other location at which the person has been a
consistent or regular inhabitant and to which the person has the
intention of returning, that shelter or other location shall be
deemed the person's residence for the purpose of registering to
vote.
{¶ 18} At trial, the state presented testimony from the Warren County Director of
Elections, Mr. Lamkin, Wife, and the officer with the Lebanon Police Department who
investigated the case. The Director of Elections testified that he oversees the day-to-day
operations of his office and manages the elections in Warren County. According to the
Director, the Board of Elections confirms all Warren County registrants' addresses when
they update or change their address. This is partly because a voter's precinct is determined
by his current address. According to the Director, an individual precinct can have its own
ballot or election issues and only individuals residing in the precinct are able to vote on
precinct-specific issues. Thus, a person who moves outside the county or precinct cannot
vote in his old precinct or county. When a provisional ballot is cast, the Board of Elections
verifies that the information on the ballot, including the voter's address, is accurate before
the vote can be counted. While a person is required to register to vote 30 days before the
upcoming election, he can vote in person at the Board of Elections office or at his polling
location if he fails to timely register.
{¶ 19} The Director then described the interactions he and his office had with Jones
throughout 2016. The Director indicated Jones applied for an absentee ballot, which was
ultimately rejected because his listed address did not match the address identified in his
voter's record. Specifically, Jones listed Cheshire Court as his current address on his
application, which is in a different precinct than the Country Walk Drive address identified
in his voter's record. The Director indicated Jones did not update his address himself,
however, it was updated automatically through the NCOA system. At that point, the Board
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of Elections attempted to resolve the issue with Jones via a problem letter. Jones did not
respond to the letter, but later met with the Director to discuss the unauthorized change of
his address. During the meeting, Jones requested his address be returned to the Cheshire
Court address, which the Director declined to do. Instead, the Director explained to Jones
that he was required to vote based upon his current address. Jones ultimately returned to
the Board of Elections two months later and cast a provisional ballot using the Cheshire
Court address. During an audit process, the Board of Elections attempted to confirm that
Jones lived at Cheshire Court, but was unable to do so. As a result, Jones' ballot was
rejected and not counted.
{¶ 20} Mr. Lamkin, the new owner of the home at 8633 Cheshire Court, testified that
he moved into the home on May 6, 2016, and that he had never met Jones. Lamkin further
testified that after he moved into the home on Cheshire Court, Jones never lived or stayed
with Lamkin, including during October or November 2016.
{¶ 21} The jury also heard testimony from Wife, who testified that she and Jones sold
the home on Cheshire Court in May of 2016 and that the new owners moved in "within a
couple weeks" of the sale. Wife indicated Jones had never stayed with her at the Country
Walk address, nor had he lived in an area nearby. Wife testified she had not received any
change of address from Jones in October or November of 2016 and that, pursuant to the
terms of their divorce, Jones was required to provide such a change of address if he moved.
Wife further testified that she and Jones had two children, and that after the divorce, Jones
had scheduled visitation, including overnight visitation, with their son. Wife indicated her
son would visit with Jones at Jones' parents' house in Beavercreek, Ohio, which is located
in Greene County.
{¶ 22} The state then presented testimony from Officer Spanel with the Lebanon
Police Department. The officer testified that after the Director of Elections forwarded the
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Jones' matter to the police department, the officer was assigned to investigate the case in
February 2017. As a part of that investigation, the officer interviewed Jones in June 2017.
A video of the interview was admitted into evidence and played for the jury during the
officer's testimony. During the interview, Jones began by informing the officer that the day
after he and the officer initially spoke, he went to the Greene County Library, "got a new
voter registration, and took care of the problem." Jones then presented the officer with
paperwork evidencing his recent voter registration in Greene County. During the interview,
Jones admitted that he was no longer living at the Cheshire Court address at the time of
the November 2016 election, and that he had not been living there for approximately five
months by the time of the election. Jones claimed he must have "misremembered" part of
his poll worker training as he incorrectly believed that if he voted a certain precinct's ballot
in the primary election, he could vote the same precinct's ballot in the general election
because the two elections are part of the same cycle.
{¶ 23} Jones also told the officer that because of the divorce, he was uncertain if he
could provide enough evidence of where he was living. When the officer asked Jones when
he moved to the address in Greene County, which he used to register to vote, Jones
indicated that was his parents' address and that he wanted to "shield" their address as much
as possible. Jones also stated he was embarrassed to admit that he lives with his parents
because he had not had enough time "to recover" from the divorce. Jones further indicated
that the officer could send any paperwork relevant to his charges to his parents' address.
{¶ 24} Jones then discussed the primary reason why he wanted "to vote the ballot[,]"
in Warren County, which related to casting a vote against the attorney who represented
Wife in their divorce proceedings. In 2016, that attorney was running in the Republican
primary election for domestic relations judge. Jones stated he switched political parties
solely to vote against the attorney, which Jones felt was an "important vote to make against
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her" and that he "wish[ed he] could have done more." Jones indicated that voting against
the attorney was one reason why he wanted to keep his address in Warren County.
{¶ 25} In concluding the interview, Jones indicated he believed the Board of
Elections made a mistake in updating his address to Country Walk and felt he could not
correct it. The officer responded that the "hiccup" in this case is that Jones voted using the
Cheshire Court address when both he and the Board of Elections knew that he did not live
there. Jones responded that he misremembered his training from his "poll worker days,"
felt "handcuffed" by the rules, and felt he did not have enough time to change his address
and remain eligible to vote. As a result, he ultimately voted in Warren County "when he
probably should've voted in Greene County."
{¶ 26} The jury also heard testimony from Jones at trial. During his testimony, Jones
indicated there was not a good answer to where he was living on November 1, 2016 and
that he did not have a stable address in October 2016. However, Jones confirmed he did
not stay at 8633 Cheshire Court in October 2016 nor did he live with Wife at Country Walk
Drive. While Jones could not recall where he spent "every single night in the month of
October," he testified he had stayed at least one night of the month at his parents' home in
Beavercreek and spent a weekend camping in Hamilton County. Jones would not admit
that he was not living in Warren County in October 2016. Rather, Jones believed that
because he was in Warren County jail on election day, he remained a resident of Warren
County.
{¶ 27} Jones also testified that he went to the Board of Elections to discuss the
address problem, including that he did not reside at Country Walk as the Board of Elections
believed. In order to resolve the problem, Jones requested his address return to Cheshire
Court. Jones further stated that, although he did not have a fixed address, he would
frequently return to his parents' home, his storage unit in Warren County, Country Walk
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Drive to pick up his son, and his P.O. Box. He further indicated there were "other places
where [he] also [had] the intent to return," but did not disclose those locations. On cross-
examination Jones admitted that he had not stayed overnight at his storage unit or P.O.
Box, nor had he stayed overnight at the Country Walk address.
{¶ 28} Jones argues the state failed to prove that his residence was no longer in
Warren County. In support of his argument, Jones claims the evidence at trial showed
Jones did not have a fixed address, as he would stay with his parents in Greene County,
went camping in Hamilton County, maintained a storage unit and P.O. box in Warren
County, and picked his child up from Country Walk Drive. Thus, Jones concludes that
although he did not have a fixed place of habitation, he "clearly had the intent to remain
connected to Warren County." In the alternative, Jones claims that because he was in
Warren County Jail on election day, he was residing in Warren County that day.
{¶ 29} After considering the evidence presented at trial in a light most favorable to
the prosecution, we find the state presented sufficient evidence to prove that Jones' was
not a qualified elector of Warren County or Precinct 145 at the time he cast his provisional
ballot on November 1, 2016. That is, we find the state presented sufficient evidence that,
if believed, established Jones was not a resident of Warren County, and consequently
Precinct 145, at the time he attempted to vote.
{¶ 30} At trial, the state presented evidence that on November 1, 2016, Jones did
not have a fixed place of habitation. Jones appears to concede this point in his brief. As a
result, Jones' residence for the purposes of registering to vote was deemed to be any "other
location at which [he] ha[d] been a consistent or regular inhabitant and to which [he had]
the intention of returning." R.C. 3503.02(I). While Jones argues he was not consistently
staying at any one place in November 2016, the testimony presented at trial revealed that
Jones had moved in with his parents in Greene County after leaving Cheshire Court and
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was consistently staying at their address. Specifically, the record reflects that Jones had
overnight visits with his child at his parents' home during October and November of 2016
and that he had not provided Wife with any other address, which he was obligated to do
pursuant to the terms of their divorce. Jones also used his parents' address to receive
documents from Officer Spanel and ultimately registered to vote in Greene County based
upon his parents' address in early 2017. Although Jones stated he was embarrassed to
admit he was living with his parents, this does not change that he was, in fact, residing with
them after his divorce. In contrast, there is no evidence in the record to suggest that Jones
was regularly staying in or maintaining a residence in Warren County in 2016. As such,
considering Jones' apparent residency in Greene County and lack of any residential
connection to Warren County, we find that the state presented sufficient evidence that
Jones was not a resident of Warren County, and consequently Precinct 145, at the time he
attempted to vote.
{¶ 31} Jones argues his intent was "clearly" to return to Warren County and that he
had no intention of making Greene County his permanent place of abode. This appears to
be entirely based upon Jones' former residency at Cheshire Court. However, a person's
former status as a resident has no bearing on the determination of a person's current
residency. Kyser v. Board of Elections, 36 Ohio St. 2d 17 at 22. Rather, it is the present
intention which determines a person's residency status, i.e., his intention at the time of the
vote, and not his past intention some four months in the past, when he was living in a
stationary household in a certain place. Id. Here, the record is void of any efforts Jones
made to return to Warren County after moving from Cheshire Court. While Jones
maintained his storage unit and P.O. Box in Warren County, these are unrelated to his
residency on November 1, 2016. As Jones admitted, he could not physically reside in his
P.O. Box and had never stayed at his storage unit. Moreover, based upon his conversations
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with the Board of Elections and Officer Spanel, Jones attempted to vote using the Cheshire
Court residency despite selling that home several months before the election and having
no intention of returning to that address. Jones cannot have residence in a place where he
has not lived for several months and no longer owns, and to which he presently has no
intention of returning. Id.
{¶ 32} Furthermore, Jones did not provide at trial, to the Board of Elections, or Officer
Spanel, any address within Warren County where he consistently stayed and had an
intention of returning at the time he attempted to vote, and openly admitted he "probably
should have voted in Greene County." While Jones noted he was incarcerated in Warren
County on election day, that fact is irrelevant to his residency on November 1, 2016, the
day he cast his provisional ballot. As such, the record does not contain any evidence that
Jones resided in Warren County or Precinct 145, or maintained any intent to return to said
county or precinct, on November 1, 2016.
{¶ 33} In light of the above, we find the state presented sufficient evidence to support
Jones' conviction for illegal voting. Specifically, we find that at the time of the vote, Jones
did not have a fixed place of habitation in Warren County and was not regularly staying in
Warren County, nor did he have an intention to return to Warren County. Therefore,
because Jones was not a resident of Warren County and Precinct 145, the county and
precinct in which he attempted to vote, he was not a qualified elector. Accordingly, finding
no merit to Jones' claims, we overrule Jones' two assignments of error.
{¶ 34} Judgment affirmed.
HENDRICKSON, P.J., and S. POWELL, J., concur.
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