State v. Tupps, 2023 Ohio 2097

Defendant Jason Tupps and victim L.T. were married; by summer 2021 they frequently argued and L.T. made audio recordings of many interactions.
On the night of August 28–29, 2021 an audio recording captured L.T. sleeping with her phone recording and, she later testified, Tupps forcibly digitally penetrating her.
A subsequent September 9, 2021 recording documented another confrontation; police were later involved and Tupps was indicted for rape (first-degree felony) and domestic violence (first-degree misdemeanor).
At trial the State sought (and the court gave) a jury instruction on adoptive admissions based on Tupps’s silence on one recording; the jury convicted Tupps of rape but acquitted on the domestic-violence count.
At sentencing the court imposed an indefinite prison term of 5 to 7.5 years; on appeal Tupps challenged venue proof, the adoptive-admission instruction/repetition, statutory notification at sentencing, and constitutionality of the Reagan Tokes provisions.
The appellate court affirmed the conviction, rejected claims about the instruction, but reversed and remanded for resentencing because the court failed to give the mandatory R.C. 2929.19(B)(2)(c) notifications; constitutional challenges were not reached.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of venue proof (Crawford County)	State: testimony and circumstances show the assault occurred in the marital bedroom in Crestline, Crawford County.	Tupps: State never expressly proved the bedroom was in the Crestline/Crawford County home.	Affirmed — viewing all testimony in the light most favorable to the State, venue was proven beyond a reasonable doubt.
Adoptive-admission jury instruction & repetition	State: instruction appropriate because recording shows L.T. accused Tupps and he was silent, so jurors may infer adoption.	Tupps: instruction (and court’s repetition of a line) was misleading and emphasized his silence as admission.	Affirmed — instruction was legally correct and applicable; repetition did not create plain error or prejudice.
Compliance with R.C. 2929.19(B)(2)(c) at sentencing	State: (conceded) court omitted full statutory notifications.	Tupps: sentence invalid because mandatory statutory notifications were not given at hearing.	Reversed as to sentence — court must resentence after providing all R.C. 2929.19(B)(2)(c) notifications on the record.
Challenges to Reagan Tokes statute (vagueness/constitutionality)	State: defended statute (not reached).	Tupps: argued hearing provision vitiates due process and statute is unconstitutional.	Not reached — appellate court remanded for resentencing and declined to decide constitutional claims.

State v. Williams, 53 Ohio App.3d 1 (10th Dist. 1988) (discusses venue as place of trial and need to prove it unless waived)
State v. Barr, 158 Ohio App.3d 86 (7th Dist. 2004) (venue is not an element but must be proven beyond a reasonable doubt unless waived)
Toledo v. Taberner, 61 Ohio App.3d 791 (6th Dist. 1989) (venue need not be proven in express terms; may be shown by circumstances)
State v. White, 142 Ohio St.3d 277 (2015) (jury instructions must not be potentially misleading and must enable jury to weigh evidence)
State v. Adams, 144 Ohio St.3d 429 (2015) (standards for giving requested jury instructions)
State v. Barnes, 94 Ohio St.3d 21 (2002) (plain-error standard and its application)
State v. Long, 53 Ohio St.2d 91 (1978) (plain-error notice should be exercised with utmost caution)
State v. Jalowiec, 91 Ohio St.3d 220 (2001) (instructional errors judged in context of the entire charge)
State v. Price, 60 Ohio St.2d 136 (1979) (principle that single instruction must be viewed in overall charge)
State v. Marcum, 146 Ohio St.3d 516 (2016) (standard of review for felony sentencing appeals)
Zeller v. State, 123 Ohio St. 519 (1931) (trier of fact may, but is not required to, infer acquiescence from silence)