STATE OF OHIO, Plaintiff-Appellee, -vs- BRIAN CRAWFORD, Defendant-Appellant
Case No. 18CA79
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
January 22, 2019
2019-Ohio-273
Hon. W. Scott Gwin, P.J., Hon. William B. Hoffman, J., Hon. Patricia A. Delaney, J.
CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No. 2007-CR-411; JUDGMENT: AFFIRMED
For Plaintiff-Appellee:
GARY BISHOP RICHLAND CO. PROSECUTOR JOSEPH C. SNYDER 38 South Park Street Mansfield, OH 44902
For Defendant-Appellant:
BRIAN CRAWFORD, PRO SE Inmate 540-154 Marion Correctional Institution P.O. Box 57 Marion, OH 43301
{¶1} Appellant Brian A. Crawford appeals from the August 28, 2018 “Judgment Entry Overruling Motion to Partially Vacate Void Judgment” of the Richland County Court of Common Pleas. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} A statement of the facts underlying appellant’s criminal convictions is not necessary to our resolution of this appeal.
{¶3} In 2007, appellant was charged by indictment with 8 counts of rape, 15 counts of sexual battery, and 20 counts of gross sexual imposition. The matter proceeded to trial by jury and appellant was found guilty as charged. Appellant was sentenced to an aggregate prison term of 40 years.
{¶4} We confirmed appellant’s convictions and sentence in State v. Crawford, 5th Dist. Richland No. 07 CA 116, 2008-Ohio-6260, appeal not allowed, 121 Ohio St.3d 1442, 2009-Ohio-1638, 903 N.E.2d 1224.
{¶5} In 2008, appellant filed a motion for post-conviction relief pursuant to
{¶6} In 2009, appellant filed an application to reopen his direct appeal pursuant to App.R. 26(B). We dismissed the application as untimely, and the Ohio Supreme Court
{¶7} On August 6, 2018, appellant filed a motion asserting his convictions were void due to lack of subject-matter jurisdiction. The trial court found the motion to be an untimely petition for post-conviction relief, that the argument was barred by res judicata, and that the argument failed on its merits.
{¶8} Appellant now appeals from the trial court’s decision overruling his motion.
{¶9} Appellant raises one assignment of error:
ASSIGNMENT OF ERROR
{¶10} “THE TRIAL COURT COMMITTED REVERSIBLE AND PREJUDICIAL ERROR IN DENYING APPELLANT’S MOTION TO VACATE PARTIALLY VOID JUDGMENT.”
ANALYSIS
{¶11} Appellant argues the trial court should have granted his motion to vacate a “partially void judgment.” We disagree.
{¶12} Appellant’s specific issue is the indictment states each offense occurred in Richland County, but the evidence established some of the conduct occurred in Crawford County. Appellant thus challenges the sufficiency of the indictment, arguing his convictions are “void” because the trial court lacked “subject-matter jurisdiction” over the Crawford County allegations. This argument is misplaced for a number of reasons.
{¶14} First, appellant failed to timely object to the alleged defects in the indictment. He complains that each count of the indictment referred only to Richland County, although appellee’s evidence established some of the conduct occurred in Crawford County. The indictment does not reference Crawford County. As we will address infra, appellant therefore challenges appellee’s assertion of proper venue in the indictment. The Ohio Supreme Court has held that “when a defendant fails to object to an indictment that is defective because the indictment did not include an essential element of the charged offense, a plain error analysis is appropriate.” State v. Colon, 119 Ohio St.3d 204, 2008-Ohio-3749, 893 N.E.2d 169, ¶ 7; see also, State v. Frazier, 73 Ohio St.3d 323, 332, 652 N.E.2d 1000 (1995). Pursuant to Crim.R. 52(B), “plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” The Ohio Supreme Court has examined this argument and found that there is no plain error if the state asserted the venue of the offenses in the bill of particulars. Where the state has provided a detailed bill of particulars which sets out the location of the offenses, there is no plain error as to any of these counts in the indictment. State v. Jackson, 141 Ohio St.3d 171, 2014-Ohio-3707, 23 N.E.3d 1023, ¶ 138.
{¶15} Thus, in addition to failing to challenge the indictment in a timely manner, appellant has not demonstrated plain error and the trial court did not err in refusing to vacate his convictions on the basis of sufficiency of the indictment.
{¶17} In contrast, venue is not jurisdictional. State v. Andrews, 148 Ohio App.3d 92, 2002–Ohio–787, ¶ 20 (10th Dist.) (stating venue “is neither a jurisdictional nor a material element of a criminal offense”). Although “venue is not an essential element of a charged offense,” the state must prove venue beyond a reasonable doubt unless the defendant waives it. State v. Wheat, 10th Dist No. 05AP–30, 2005–Ohio–6958, ¶ 10, citing State v. Headley, 6 Ohio St.3d 475, 477, 453 N.E.2d 716 (1983). A defendant “waives the right to challenge venue when the issue is raised for the first time on appeal.” Id., citing State v. Loucks, 28 Ohio App.2d 77, 78, 274 N.E.2d 773 (4th Dist.1971); Crim.R. 12(C)(2) (providing that “defenses or objections based on defects in the indictment” must be raised before trial). “Venue is neither a jurisdictional issue nor a material element of a criminal offense.” State v. McCartney, 55 Ohio App.3d 170, 563 N.E.2d 350 (9th Dist.1988), citing Loucks, supra. “Venue is a personal privilege. It is a fact which the state must prove beyond a reasonable doubt unless waived by the accused.” McCartney, supra, citing State v. Headley, supra.
{¶18} Appellant’s legal argument that venue did not properly lie in Richland County is misplaced. As noted supra, the bill of particulars describes appellant’s course of criminal conduct, beginning in Richland County, Ohio and continuing upon the family’s move to Crawford County, Ohio. Appellant was therefore aware of the alleged venue of the offenses. Because appellant committed offenses in different jurisdictions as part of a course of criminal conduct, venue lies for all the offenses in any jurisdiction in which he committed one of the offenses or any element.
{¶19} Finally, appellant’s venue argument is barred by the doctrine of res judicata. Under the doctrine of res judicata, a final judgment of conviction bars the defendant who was represented by counsel from raising and litigating in any proceeding, except an appeal from that judgment, any defense or claimed lack of due process that the defendant raised or could have raised at the trial which resulted in that judgment of conviction or on appeal from that judgment. State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967). Appellant’s argument here could have been raised in his direct appeal. Therefore, the trial court properly denied appellant‘s motion on this basis.
{¶20} We conclude the indictment in the instant case is not defective for failure to properly assert venue because appellee provided a detailed bill of particulars noting that appellant’s criminal conduct in Richland and Crawford Counties. Appellant waived any
{¶21} We conclude the trial court properly overruled appellant’s motion and the sole assignment of error is overruled.
CONCLUSION
{¶22} The sole assignment of error is overruled and the judgment of the Richland County Court of Common Pleas is affirmed.
By: Delaney, J.,
Gwin, P.J. and
Hoffman, J., concur.