2018 Ohio 1135
Oh. Ct. App. 5th Dist. Fairfie...2018Background
- On January 12, 2017, a man stole over $4,000 in merchandise (flea and tick medication) from a Petco in Reynoldsburg; three employees witnessed the theft and one took photos.
- Fairfield County Grand Jury indicted James Marcum for fifth-degree felony theft (R.C. 2913.02).
- At the close of the state's case, Marcum moved for acquittal under Crim.R. 29 but did not argue lack of venue; the trial court sua sponte raised venue and denied the motion without permitting the state to reopen to prove venue.
- The jury convicted Marcum and he was sentenced to six months in prison; Marcum appealed.
- On appeal, Marcum conceded he waived a contemporaneous venue objection but argued plain error because the state presented no evidence that the Petco was located in Fairfield County; Reynoldsburg spans three counties (Licking, Fairfield, Franklin).
- The appellate court found venue was not proven and that the trial court’s failure to require proof or take judicial notice of venue was plain error, reversed the conviction for insufficient evidence, and declined to address remaining assignments of error as moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court should have granted a Crim.R. 29 acquittal for insufficient evidence | State argued sufficient circumstantial facts existed for reasonable minds to find venue in Fairfield County | Marcum argued the state failed to prove venue beyond a reasonable doubt (Reynoldsburg spans three counties) | Reversed: conviction vacated for lack of sufficient evidence as venue was not proven and constitutes plain error |
Key Cases Cited
- Long v. State, 53 Ohio St.2d 91 (1978) (plain-error standard for unpreserved trial errors)
- Spaulding v. State, 151 Ohio St.3d 378 (2016) (Crim.R. 29 sufficiency standard mirrors Jackson/Jenks analysis)
- Jenks v. State, 61 Ohio St.3d 259 (1991) (standard for sufficiency: evidence viewed in light most favorable to prosecution)
- Headley v. State, 6 Ohio St.3d 475 (1983) (venue must be proved beyond a reasonable doubt absent waiver)
- Dickerson v. State, 77 Ohio St. 34 (1907) (venue may be proved by facts and circumstances; need not be express testimony)
- Barr v. State, 158 Ohio App.3d 86 (2004) (judicial notice may establish that a known location lies within the court’s county when direct proof is lacking)