Ohio Supreme Court deals with the issue of venue

Paul Pfiefer
By Paul Pfiefer

On the evening of December 20, 2005, Byron Woods and his family were the victims of one of the most terrifying situations that can confront any family – a home invasion. The intruder broke into the Wood’s apartment brandishing a handgun and wearing a dark coat and a bandanna over his face. He ordered Byron and his son to lie on the floor.

Rather than comply, Byron tried to fight back. He grabbed the assailant and the two began to struggle. The assailant slipped out of his coat, got free and shot Byron several times. He then escaped the apartment. but he left the coat behind.

The fallen coat became important, because a forensic scientist was able to retrieve enough epithelial cells from it to develop a DNA profile. Nearly three years later, in August 2008, the DNA was found to match that of Emmanuel Hampton, who was 17 at the time he shot Byron.

Hampton was arrested and, in March 2010, a Franklin County grand jury indicted him on a number of charges including attempted murder, felonious assault and aggravated burglary. The indictment alleged that he committed the offense in Franklin County. Hampton waived a jury trial, and the case was tried to the court.

After trial began, but before the state rested, the investigating detective testified that he had just learned that these offenses had occurred in Fairfield County, not in Franklin County. When the state concluded its case-in-chief, the defense moved for acquittal based on the lack of evidence identifying Hampton as the assailant and based on a lack of venue.

The court denied the motion for acquittal on lack of identification, withheld its ruling on acquittal for failure to establish venue, but permitted the parties to conduct further research on the venue issue. At a later hearing on the venue issue, the court denied the state’s motion for a mistrial, concluded that the state had not proved venue, and granted the defense motion for acquittal.

The state filed an appeal, but after the court of appeals denied the state’s motion for leave to appeal, the case came before us – the Supreme Court of Ohio.

Hampton’s attorneys argued that the Ohio Constitution provides a right to have a criminal case heard in the county where the crime is alleged to have been committed and they contended that the state’s failure to present any evidence of proper venue should result in an acquittal because evidence of venue is required to sustain a conviction.

We first had to consider whether a judgment to grant an acquittal based on lack of venue is a “final verdict” as that term is used in the Ohio law that covers the process of appeals.

The law in question provides that the state may appeal “any decision of a trial court in a criminal case” where the decision “grants a motion to dismiss all or part of an indictment…and may appeal by leave of the court…any other decision, except the final verdict, of the trial court in a criminal case.”

In addition to that law, there is also Criminal Rule 29, one of the rules that governs the process of criminal trials. Criminal Rule 29 states that the court shall grant an acquittal “if the evidence is insufficient to sustain a conviction…”

The trial court granted an acquittal and discharged Hampton in accordance with Criminal Rule 29 because the state had failed to prove that any of the alleged offenses had been committed in Franklin County.

So, was the court’s order to grant an acquittal for lack of venue a “final verdict” as defined in the law? We concluded that the court of appeals properly dismissed the state’s appeal of an order of acquittal because the trial court plainly entered a “final verdict” within

the meaning of the law.

The state had also suggested that lack of venue cannot result in an acquittal under Criminal Rule 29 because motions under that rule are limited to claims of lack of proof of one or more material elements of the offense. The state argued that venue is not a material element of the offense. material element of the offense.

But the Ohio Constitution provides an accused the right to “a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed.” In prior cases, we have stated, “A conviction may not be had in a criminal case where the proof fails to show that the crime alleged in the indictment occurred in the county where the indictment was returned.” If the state fails to produce evidence of proper venue, then the evidence is insufficient to sustain a conviction of such offense.

Criminal Rule 29 is clear and straightforward and does not limit its application to elements of the offense alone – the trial judge may grant an acquittal when there is a failure of proof to sustain a conviction. Nothing in the Constitution, Ohio Law, or the Criminal Rules requires a defendant to raise the issue of venue before trial. The state has the obligation to ensure the proper venue within the indictment, for the indictment puts the defendant on notice and the state to its proof.

Justice Judith Ann Lanzinger, in writing our majority opinion said, “Over a century of well-established jurisprudence clearly mandates that a motion for judgment of acquittal must be granted when the evidence is insufficient for reasonable minds to find that venue is proper.” In this case, it was undisputed that all of the events in question occurred in Fairfield County, not Franklin County, as alleged in the indictment.

Therefore, by a four-to-three vote, we affirmed the judgment of the court of appeals denying the state’s motion for leave to appeal. It may not be a satisfying result, but under the rules of procedure and the well-established common law, a judgment of acquittal may be entered when the state has failed at trial to prove the venue of the offense as alleged in the indictment.

Paul Pfeifer is an Ohio Supreme Court Justice.