State v. Spivery

[Cite as State v. Spivery, 2023-Ohio-1603.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2022-10-056
: OPINION
- vs - 5/15/2023
:
KEMUEL D. SPIVERY, :
Appellant. :
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Case No. 2020-CR-00557
Mark J. Tekulve, Clermont County Prosecuting Attorney, and Nicholas A. Horton, Assistant
Prosecuting Attorney, for appellee.
Michael J. Trapp, for appellant.
S. POWELL, P.J.
{¶ 1} Appellant, Kemuel D. Spivery, appeals his conviction in the Clermont County
Court of Common Pleas after a jury found him guilty of two counts of aggravated trafficking
in drugs, one a second-degree felony and the other a first-degree felony. For the reasons
outlined below, we affirm.
Clermont CA2022-10-056
Facts and Procedural History
{¶ 2} On July 21, 2020, the Clermont County Grand Jury returned an indictment
charging Spivery with two counts of aggravated trafficking in drugs, both in violation of R.C.
2925.03(A)(1).1 The first count, Count 1, charged Spivery with one count second-degree
felony aggravated trafficking in drugs. This charge arose after Spivery sold approximately
five ounces of methamphetamine to the buyer, Janelle, while in Springdale, Hamilton
County, Ohio on January 6, 2020.2 The second count, Count 2, charged Spivery with one
count first-degree felony aggravated trafficking in drugs. This charge arose after Spivery
sold an additional six ounces of methamphetamine to Janelle while in Springdale, Hamilton
County, Ohio on January 7, 2020. Both counts also included forfeiture specifications for
the vehicle Spivery used to effectuate both the January 6 and January 7, 2020 drug sales,
as well as $14,007 in cash found in Spivery's possession at the time of his arrest. 3
{¶ 3} From July 26 to 28, 2022, the trial court held a three-day jury trial on the
matter. During trial, the state presented evidence that Spivery had sent text messages to
Janelle offering to sell her methamphetamine at an address located in Hamilton County,
Ohio while Janelle was physically present, receiving, and responding to Spivery's text
messages while in Clermont County, Ohio. The state also presented evidence that the text
message exchanges between Spivery and Janelle ultimately resulted in Spivery selling five
ounces of methamphetamine to Janelle on January 6, 2020, with Spivery selling an
additional six ounces of methamphetamine to Janelle on January 7, 2020. The state
1. R.C. 2925.03(A)(1) makes it unlawful for any person to knowingly "[s]ell or offer to sell a controlled
substance or a controlled substance analog[.]" "Methamphetamine is a controlled substance." State v. Phifer,
2d Dist. Clark No. 2020-CA-13, 2021-Ohio-521,¶ 17, citing R.C. 2925.11(II).
2. To protect the buyer's identity, we will refer to the buyer as "Janelle" rather than by the buyer's actual name
or initials.
3. The record indicates that Spivery was arrested after he was involved in another drug transaction in Hamilton
County, Ohio on January 9, 2020.
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provided further evidence that both sales occurred in a parking lot located in Springdale,
Hamilton County, Ohio.
{¶ 4} Following deliberations, the jury returned a verdict finding Spivery guilty of
both charges and their accompanying forfeiture specifications. Several weeks later, on
September 12, 2022, the trial court held a sentencing hearing where it sentenced Spivery
to serve an aggregate mandatory minimum term of 10 years in prison with a maximum
aggregate term of 13 years in prison, less 132 days of jail-time credit. The trial court also
ordered the forfeiture of the vehicle Spivery used to effectuate both the January 6 and
January 7, 2020 drug sales, as well as the $14,007 in cash found in Spivery's possession
at the time of his arrest. Spivery now appeals his conviction, raising two assignments of
error for review.
Spivery's Two Assignments of Error
{¶ 5} In his two assignments of error, Spivery argues that neither his conviction for
Count 1, second-degree felony aggravated trafficking of drugs, nor his conviction for Count
2, first-degree felony aggravated trafficking of drugs, were supported by sufficient evidence.
Under these circumstances, we apply the following standard of review.
Sufficient Evidence Standard of Review
{¶ 6} "A claim challenging the sufficiency of the evidence invokes a due process
concern and raises the question whether the evidence is legally sufficient to support the
jury verdict as a matter of law." State v. Clinton, 153 Ohio St.3d 422, 2017-Ohio-9423, ¶
165, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). "The 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
reasonable doubt.'" State v. Roper, 12th Dist. Clermont No. CA2021-05-019, 2022-Ohio-
244, ¶ 39, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.
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"This test requires a determination as to whether the state has met its burden of production
at trial." State v. Thompson, 12th Dist. Butler No. CA2022-09-080, 2023-Ohio-559, ¶ 34.
"If the state fails to present sufficient evidence on every element of an offense, then
convicting a defendant for that offense violates the defendant's right to due process of law."
State v. Messenger, Slip Opinion No. 2022-Ohio-4562, ¶ 13.
Spivery's First Argument
{¶ 7} Initially, Spivery argues the text message exchange between himself and
Janelle that led to the January 6, 2020 sale was insufficient to prove he "offered" to sell
Janelle drugs in violation of R.C. 2925.03(A)(1). Therefore, according to Spivery, his
conviction for Count 1, second-degree felony aggravated trafficking in drugs, must be
reversed. We disagree.
{¶ 8} The term "offer" as used in R.C. 2925.03(A)(1) is not statutorily defined. The
Ohio Supreme Court, however, has defined the term "offer" to mean "'to declare one's
readiness or willingness'" to sell a controlled substance. State v. Scott, 69 Ohio St.2d 439,
440 (1982), quoting Webster's New Collegiate Dictionary (1976). This court has also
defined the term "offer" to mean "to declare one's readiness or willingness to sell a
controlled substance or to present a controlled substance for acceptance or rejection."
State v. Aldrich, 12th Dist. Madison No. CA2006-10-044, 2008-Ohio-1362, ¶ 21. The term
"offer" has also been defined by several other Ohio appellate courts to mean "to present for
acceptance or rejection." See State v. Nucklos, 171 Ohio App.3d 38, 2007-Ohio-1025, ¶
29 (2d Dist.); State v. Cabrales, 1st Dist. Hamilton No. C-050682, 2007-Ohio-857, ¶ 41;
State v. Sheffey, 11th Dist. Ashtabula No. 2003-A-0011, 2004-Ohio-2204, ¶ 13; and State
v. Drane, 6th Dist. Lucas No. L-92-319, 1993 Ohio App. LEXIS 3259, *6 (June 30, 1993).
{¶ 9} Given these definitions, and when considering the totality of the
circumstances presented in this case, we find the state provided sufficient evidence to prove
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Spivery "offered" to sell drugs to Janelle on January 6, 2020. This offer occurred after
Janelle contacted Spivery via text message and stated that she was "36 mins out" and in
"need" of five ounces of methamphetamine.4 The fact that Spivery responded to Janelle's
text message with "Ok," followed by an address where Janelle could meet him to complete
the sale, rather than with an express written offer to sell Janelle drugs using basic contract
language, is of no consequence when considering the illegality of the offer being made.
See State v. Bazzy, 86 Ohio App.3d 546, 548-549 (2d Dist.1993) ("whether an offer to sell
a controlled substance has, in fact, been made depends upon the totality of the
circumstances and the language used" because "participants in a drug transaction are not
likely to use either precise legal terms to define the transaction, or precise scientific terms
to describe the merchandise").
{¶ 10} What matters is that, under the facts and circumstances of this case, which
includes evidence that Spivery had sold Janelle drugs multiple times prior to the January 6,
2020 sale, both Spivery and Janelle knew that an agreement had been reached via text
message for Spivery to sell Janelle five ounces of methamphetamine once she arrived at
the address Spivery had provided to her.5 See, e.g., Aldrich, 2008-Ohio-1362 at ¶ 16-23
(appellant made an offer to sell drugs to an undercover officer where appellant "nodded his
head in the affirmative" after the undercover officer asked appellant to sell him drugs).
Therefore, because there was sufficient evidence to prove Spivery had offered to sell drugs
to Janelle on January 6, 2020 in violation of R.C. 2925.03(A)(1), Spivery's conviction for
4. The text message Janelle initially sent to Spivery stated, "Can you call me." Spivery never responded.
Janelle then text messaged Spivery, "Hey I need 5 an[d] I'm 36 mins out." Spivery responded to this text
message a few minutes later stating, "Ok," followed a few seconds later with an address where Janelle could
meet him to complete the sale.
5. The record contains evidence that Spivery had sold Janelle four ounces of methamphetamine on January
4, 2020, after Janelle text messaged Spivery, "Need 4." The record indicates that this was just one of the
many times Janelle had purchased methamphetamine from Spivery after Janelle's boyfriend, who had also
purchased methamphetamine from Spivery, was sent to prison.
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Count 1, second-degree felony aggravated trafficking in drugs, must be affirmed.
Accordingly, Spivery's first argument lacks merit.
Spivery's Second, Alternative Argument
{¶ 11} Alternatively, Spivery argues the state failed to provide sufficient evidence to
prove Janelle was physically present within Clermont County when he responded to her
text message offering to sell her drugs on January 6, 2020. This lack of evidence, according
to Spivery, renders Clermont County an improper venue for that offense, thereby requiring
his conviction for Count 1, second-degree felony aggravated trafficking in drugs, be
reversed. We again disagree.
{¶ 12} "'Venue commonly refers to the appropriate place of trial for a criminal
prosecution within a state.'" State v. Baker, 12th Dist. Butler No. CA2019-08-146, 2020-
Ohio-2882, ¶ 20, quoting State v. Meridy, 12th Dist. Clermont. No. CA2003-11-091, 2005-
Ohio-241, ¶ 12. "The importance of venue is to give the defendant the right to be tried in
the vicinity of his alleged criminal activity." State v. Davis, 12th Dist. Clinton No. CA2015-
12-022, 2017-Ohio-495, ¶ 21. Venue is not jurisdictional. State v. Lampe, 12th Dist. Warren
No. CA2015-03-028, 2015-Ohio-3837, ¶ 18. Venue is also not a material element to any
offense charged. State v. Kyles, 12th Dist. Butler Nos. CA2021-11-141 and CA2021-11-
142, 2023-Ohio-489, ¶ 116. However, although neither jurisdictional nor a material element
to any charged offense, venue is nevertheless "a fact that the state must prove beyond a
reasonable doubt." State v. McCollum, 12th Dist. Clermont No. CA2014-11-077, 2015-
Ohio-3286, ¶ 8, citing State v. Stone, 12th Dist. Warren No. CA2007-11-132, 2008-Ohio-
5671, ¶ 17. "When the state fails to prove venue with respect to a charged criminal offense,
the defendant is entitled to be discharged from that offense." Id., citing State v. Lahmann,
12th Dist. Butler No. CA2006-03-058, 2007-Ohio-1795, ¶19.
{¶ 13} "Pursuant to R.C. 2901.12(A), venue lies in any jurisdiction in which the
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offense or any element of the offense was committed." State v. Vunda, 12th Dist. Butler
Nos. CA2012-07-130 and CA2013-07-113, 2014-Ohio-3449, ¶ 29. Similarly, Article I,
Section 10 of the Ohio Constitution provides criminal defendants with the right to a jury trial
in the county in which the offense is alleged to have been committed. State v. Moore, 169
Ohio St.3d 18, 2022-Ohio-1460, ¶ 14. "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, citing State v. Headley, 6
Ohio St.3d 475, 477 (1983). That is to say, venue need not be established by direct
evidence, but may instead be established circumstantially. State v. Warman, 12th Dist.
Butler No. CA2016-02-029, 2017-Ohio-244, ¶ 31. Venue is established where there is a
"sufficient nexus" between the defendant and the county where the trial is held. State v.
Jordan, 12th Dist. Warren No. CA2014-04-051, 2015-Ohio-575, ¶ 16. Therefore, "[a]s long
as there is a sufficient nexus between the defendant and the county of the trial, venue is
satisfied." State v. Smith, 12th Dist. Warren Nos. CA2012-02-017 and CA2012-02-018,
2012-Ohio-4644, ¶ 26.
{¶ 14} Upon review, we find the record in this case establishes the requisite
"sufficient nexus" necessary to render Clermont County a proper venue to try and convict
Spivery for second-degree felony aggravated trafficking in drugs as set forth in Count 1 of
the indictment. This is because, despite Spivery's claims, the record contains sufficient
evidence to prove Janelle was in Clermont County when Spivery sent a text message to
Janelle offering to sell her five ounces of methamphetamine on January 6, 2020. This is
evidenced by the data retrieved from a GPS tracker attached to Janelle's car that indicated
Janelle was in Clermont County when she initially text messaged Spivery stating that she
was "36 mins out" and asking Spivey whether he could sell her five ounces of
methamphetamine that day. Spivery responded "Ok" to Janelle's text message a few
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minutes later at a time when Janelle would have still been physically present within
Clermont County. Therefore, because the record in this case establishes the requisite
"sufficient nexus" to render Clermont County a proper venue to try Spivery for Count 1,
second-degree felony aggravated trafficking in drugs, Spivery's second, alternative
argument also lacks merit.
Spivery's Third Argument
{¶ 15} Lastly, Spivery argues the text message exchange between himself and
Janelle that led to the January 7, 2020 sale was insufficient to prove he "offered" to sell
Janelle drugs in violation of R.C. 2925.03(A)(1), thereby requiring his conviction for Count
2, first-degree felony aggravated trafficking in drugs, be reversed. However, just as with
the text message exchange between Spivery and Janelle that led up to the January 6, 2020
sale, the state provided sufficient evidence to prove Spivery also offered to sell drugs to
Janelle on January 7, 2020. This offer occurred after Janelle contacted Spivery via text
message, while physically present within Clermont County, Ohio, and asked Spivery if he
could sell her an additional six ounces of methamphetamine.6 Spivery responded a few
seconds later, "Ok." Spivery then sent another text message to Janelle instructing her to
meet him at the "same place" where they had met the day before, on January 6, 2020.7
{¶ 16} Again, just as with the January 6, 2020 sale, the fact that Spivery responded
to Janelle's text message with "Ok," followed by instructions on where to meet, rather than
an express written offer to sell Janelle drugs using basic contract language is of no
6. We note that the complete text message exchange between Janelle and Spivery began with Janelle asking
Spivery, "You good." Spivery responded, "Yea." Janelle then text messaged Spivery, "Need 6." Spivery
responded with, "Ok." Spivery then confirmed that Janelle was to meet him at the "same place" where they
met the day before, on January 6, 2020.
7. The record indicates that Janelle was at the Clermont County Sheriff's Office when Spivery text messaged
her and offered to sell her drugs on January 7, 2020. The Clermont County Sheriff's Office is located on State
Route 222 in Batavia, Clermont County, Ohio.
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consequence when considering the illegality of the offer being made. This is because, just
as with the January 6, 2020 sale, both Spivery and Janelle knew an agreement had been
reached for Spivery to sell Janelle an additional six ounces of methamphetamine on
January 7, 2020 at the same place where they had met to complete the January 6, 2020
sale. Therefore, just as with Spivery's first argument challenging the sufficiency of the
evidence regarding the January 6, 2020 sale, Spivery's third argument challenging the
sufficiency of the evidence as it relates to the January 7, 2020 sale likewise lacks merit.
Conclusion
{¶ 17} For the reasons outlined above, and finding no merit to any of the arguments
raised by Spivery herein, Spivery's two assignments of error challenging his conviction for
two counts of aggravated trafficking in drugs, one a second-degree felony and the other a
first-degree felony, are overruled. This is because both charges set forth in the indictment,
Count 1 and Count 2, were supported by sufficient evidence. This includes sufficient
evidence to support Clermont County being a proper venue where Spivery could be tried
and convicted of selling drugs to Janelle on both January 6 and 7, 2020.
{¶ 18} Judgment affirmed.
HENDRICKSON and M. POWELL, JJ., concur.
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