THE STATE OF OHIO, APPELLANT, v. HAMPTON, APPELLEE.
No. 2011-1473
Supreme Court of Ohio
Submitted May 22, 2012—Decided December 6, 2012.
134 Ohio St.3d 447, 2012-Ohio-5688
Judgment affirmed in part and reversed in part, and cause remanded.
O‘CONNOR, C.J., and LUNDBERG STRATTON, O‘DONNELL, LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
William D. Mason, Cuyahoga County Prosecuting Attorney, and Daniel T. Van, Assistant Prosecuting Attorney, for appellant.
Robert L. Tobik, Cuyahoga County Public Defender, and Nathaniel J. McDonald, Assistant Public Defender, for appellee.
THE STATE OF OHIO, APPELLANT, v. HAMPTON, APPELLEE.
[Cite as State v. Hampton, 134 Ohio St.3d 447, 2012-Ohio-5688.]
(No. 2011-1473—Submitted May 22, 2012—Decided December 6, 2012.)
LANZINGER, J.
{¶ 1} The issue in this appeal is whether a judgment of a court purporting to grant an acquittal based on lack of venue is a “final verdict” as that term is defined in
Facts and Procedural History
{¶ 3} On the evening of December 30, 2005, Byron Woods and his family were the victims of a home invasion in which Woods suffered serious injury from gunshot wounds. The assailant escaped. In August 2008, DNA recovered from a coat at the scene was found to match the DNA of Emmanuel Hampton, who was 17 years old on December 30, 2005.
{¶ 4} On March 5, 2010, following a bindover from Franklin County Juvenile Court, a Franklin County grand jury indicted Hampton on a number of charges including attempted murder, felonious assault, aggravated burglary, and two counts of kidnapping, all with firearm specifications, and an additional count of having a weapon while under disability. The indictment alleged that he committed the offenses in Franklin County. Hampton waived a jury trial, and the case was tried to the court.
{¶ 5} 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 person who had committed the crimes and based on a lack of venue. The court then denied the motion for acquittal based 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. The defense rested its case without presenting any evidence and with the understanding that the court had not yet rendered a decision on its acquittal motion. The defense renewed its motion for acquittal, and in response, the state moved to dismiss one count of kidnapping and the weapons-under-disability charge, and the court dismissed those charges with prejudice. At a 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.
{¶ 6} The state appealed as of right and also moved for leave to appeal. The appellate court concluded, “A judgment of acquittal is a final verdict for purposes of
{¶ 7} We accepted the state‘s discretionary appeal, State v. Hampton, 130 Ohio St.3d 1475, 2011-Ohio-6124, 957 N.E.2d 1167, and now consider three propositions of law:
Proposition of Law No. 1. In determining whether a trial court ruling is a “final verdict” because it is based on Crim.R. 29, an appellate court must review the actual nature of the ruling, not just the label the trial court attached to the ruling. If the record shows that the trial court‘s ruling went beyond the sufficiency-of-evidence review allowed by Crim.R. 29, the State can appeal pursuant to
R.C. 2945.67(A) .Proposition of Law No. 2. Lack of venue cannot result in an “acquittal” under Crim.R. 29 because motions under that rule are limited to claims of lack of proof of one or more material elements of the offense. Venue is not a material element of the offense.
Proposition of Law No. 3. A trial court‘s granting of a Crim.R. 29 motion for judgment of acquittal is not a “final verdict.” The State can appeal such a ruling by leave of court under
R.C. 2945.67(A) when such an appeal does not violate double jeopardy. (State ex rel. Yates v. Court of Appeals for Montgomery Cty., 32 Ohio St.3d 30, 512 N.E.2d 343 (1987), overruled.)
{¶ 8} Hampton urges 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 contends that the state‘s failure to present any evidence of proper venue in its case-in-chief should result in an acquittal because evidence of venue is required to sustain a conviction. He maintains that a reviewing court should not look beyond the court‘s judgment to determine whether or not that court has acquitted an accused and claims that an attempt to appeal an order purporting to acquit a defendant for lack of venue violates double-jeopardy protections.
{¶ 9} Thus, we are asked to consider whether a judgment purporting to grant an acquittal based on lack of venue is a “final verdict” as that term is used in
Law and Analysis
{¶ 10} The state‘s first and third propositions of law are interrelated and will be discussed together. In these propositions, the state argues that the judgment of acquittal issued by the trial court under Crim.R. 29 is appealable under
{¶ 11}
{¶ 12} In State v. Keeton, 18 Ohio St.3d 379, 481 N.E.2d 629 (1985), and Yates, 32 Ohio St.3d 30, 512 N.E.2d 343, we examined whether a judgment of acquittal is a “final verdict” for purposes of
{¶ 13} Crim.R. 29(A) states: “The court * * * shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses.” The trial court‘s judgment entry granted an acquittal and discharged Hampton “pursuant to Rule 29 of the Ohio Rules of Criminal Procedure based strictly on the issue of Venue.” Thus, the trial court granted Hampton‘s motion to acquit pursuant to Crim.R. 29 because the state had failed to prove that any of the alleged offenses had been committed in Franklin County as alleged in the indictment.
{¶ 14} Similar to the issue in Yates, the issue in this case is whether a court‘s order purporting to grant an acquittal for lack of venue is a “final verdict” for purposes of
{¶ 15} The Tenth District Court of Appeals properly dismissed the state‘s appeal of an order of acquittal. “A court of record speaks only through its journal and not by oral pronouncement or mere written minute or memorandum.” Schenley v. Kauth, 160 Ohio St. 109, 113 N.E.2d 625 (1953), paragraph one of the syllabus. Here, the trial court plainly entered a “final verdict” within the meaning of
{¶ 16} The Tenth District Court of Appeals did not err in dismissing the state‘s appeal. The state had no right to have the order of acquittal reviewed.
{¶ 17} The court of appeals set forth its analysis and followed precedent. Although the state wished the court of appeals to determine whether the trial court had erred in not granting a mistrial, the court of appeals could not do so. There is no reason to overrule the clear pronouncement in Yates that a judgment of acquittal is not appealable by the state as a matter of right or by leave to appeal pursuant to
II. An Acquittal May Be Based upon Lack of Evidence of Venue
{¶ 18} In the state‘s second proposition of law, the state suggests that lack of evidence of venue cannot result in an “acquittal” under Crim.R. 29 because motions under that rule are limited to claims of lack of proof of one or more material elements of the offense. Venue, the state argues, is not a material element of the offense.
{¶ 19} The Ohio Constitution, Article I, Section 10 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.” We have stated, “Section 10, Article I of the Ohio Constitution fixes venue, or the proper place to try a criminal matter * * *” State v. Headley, 6 Ohio St.3d 475, 477, 453 N.E.2d 716 (1983). We have also 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.” State v. Nevius, 147 Ohio St. 263, 71 N.E.2d 258 (1947), paragraph three of the syllabus. We have also stated that “it is not essential that the venue of the crime be proven in express terms, provided it be established by all the facts and circumstances in the case, beyond a reasonable doubt, that the crime was committed in the county and state as alleged in the indictment.” State v. Dickerson, 77 Ohio St. 34, 82 N.E. 969 (1907), paragraph one of the syllabus.
{¶ 20} Under Article I, Section 10 and
{¶ 21} In Nevius, we affirmed the decision of the court of appeals as it related to the finding of insufficient evidence relating to venue, but we then reversed the order of the court of appeals remanding the matter for a new trial, instead ruling that the trial court should have granted a directed verdict in favor of the defendant on count four of the indictment, and we discharged the defendant
{¶ 22} In arguing that insufficient proof of venue does not justify acquittal, the state would limit application of Crim.R. 29 to situations in which the elements of the offense have not been proved beyond a reasonable doubt. The plain language of the rule itself does not distinguish between “material” elements and “immaterial” elements. Instead, the plain language of the rule itself simply indicates that a judgment of acquittal is appropriate when “the evidence is insufficient to sustain a conviction of such offense or offenses.” If the state fails to produce evidence of proper venue, then the evidence is insufficient to sustain a conviction of such offense or offenses. But, as stated above, Crim.R. 29 does not limit itself to elements or “material” elements of the offense. The question is whether “the evidence is insufficient to sustain a conviction of such offense.” (Emphasis added.) Most jurisdictions place some burden upon the state to prove venue—whether it be beyond a reasonable doubt, by a preponderance of the evidence, or by some evidence—because it is a fact of the crime. See 4 LaFave, Criminal Procedure, Section 16.1(c), at 714 (3d Ed.2007). And Ohio has required proof of venue beyond a reasonable doubt to sustain a conviction. Knight v. State, 54 Ohio St. 365, 377, 43 N.E. 995 (1896); Dickerson, 77 Ohio St. 34, 82 N.E. 969, paragraph one of the syllabus; Nevius, 147 Ohio St. 263, 71 N.E.2d 258.
{¶ 23} Crim.R. 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, statutes, or 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. The General Assembly has given the state considerable flexibility with respect to establishing venue when the state cannot determine the precise location at which the offense took place. See, e.g.,
{¶ 24} 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. Here, it is undisputed that all of the events in question occurred in Fairfield County, not in Franklin County, as alleged in the indictment. Under Headley, Crim.R. 29,
{¶ 25} A court order purporting to acquit a defendant due to the state‘s failure to establish venue is a “final verdict” as that term is used in
Judgment affirmed.
O‘CONNOR, C.J., and PFEIFER and MCGEE BROWN, JJ., concur.
O‘DONNELL, LUNDBERG STRATTON, and CUPP, JJ., dissent.
O‘DONNELL, J., dissenting.
{¶ 26} Respectfully, I dissent.
{¶ 27} The question presented by this case is whether an order of a trial court purporting to acquit an accused of felony offenses for the failure of the state to establish venue is a final verdict subject to appeal.
{¶ 28} Because venue is a procedural matter and concerns only the location where a trial is to be held, it is not a material element of any offense in Ohio and has nothing to do with the guilt or innocence of an accused. Accordingly, dismissal of an indictment for improper venue does not implicate the sufficiency of the evidence, is not an adjudication on the merits, is distinguishable from an acquittal, and is not a final verdict that deprives the state of the opportunity to appeal.
{¶ 29} Accordingly, I would reverse the judgment of the court of appeals and remand the case to the trial court for further proceedings consistent with this opinion.
Facts and Procedural History
{¶ 30} According to the state‘s allegations and the testimony offered at trial, on the evening of December 30, 2005, Emmanuel Hampton, a 17-year-old teenager at the time, broke into an apartment brandishing a handgun and wearing a bandanna over his face and a dark coat. He ordered Byron Woods and his son to lie on the floor. However, Woods grabbed Hampton and the two began to struggle. Hampton slipped out of his coat, shot Woods several times, and escaped, but left the coat behind. In response to a 9-1-1 call from one of the children, Columbus Police detectives Lowell Titus of the robbery squad and David Alan Remy of the crime scene search unit arrived at the apartment and, as a part of their investigation, recovered the coat. A forensic scientist extracted epithelial cells from a cuff of the coat, developed a DNA profile, and entered it
{¶ 31} The state filed a delinquency complaint in the Franklin County Juvenile Court, and that court found probable cause to conclude that Hampton had committed aggravated burglary and felonious assault and transferred the case to the general division of the common pleas court. Subsequently, a grand jury indicted Hampton for attempted murder, felonious assault, aggravated burglary, and two counts of kidnapping, all with firearm specifications, as well as an additional count of having a weapon while under disability. He waived a jury trial, and the case was tried to the court.
{¶ 32} After trial began but before the state rested, Detective Kirby testified that he had just learned that the offenses 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 person who had committed the crimes and on improper venue. The court denied the motion for acquittal based on lack of identification and withheld its ruling on acquittal for failure to establish venue, pending further research by the parties on the venue issue. The defense rested its case without presenting any evidence and with the understanding that the court would render a decision on its acquittal motion. The defense renewed its motion for acquittal, and in response, the state moved to dismiss one count of kidnapping and the weapons-under-disability charge, which the court dismissed with prejudice. At a 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.
{¶ 33} The state appealed as of right and also moved for leave to appeal. The appellate court concluded, “A judgment of acquittal is a final verdict for purposes of
Law and Analysis
R.C. 2945.67(A)
{¶ 34}
{¶ 35} In State v. Keeton, 18 Ohio St.3d 379, 481 N.E.2d 629 (1985), and State ex rel. Yates v. Montgomery Cty. Court of Appeals, 32 Ohio St.3d 30, 512 N.E.2d 343 (1987), we explained that a judgment of acquittal is a “final verdict” for purposes of
{¶ 36} Thus, neither Keeton nor Yates answers the question of whether a judgment of acquittal based on failure to establish venue is a final verdict, nor do those cases explain whether appellate courts should look to the form or the substance of an order in determining whether it is, in fact, an acquittal.
Acquittal
{¶ 37} In United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977), the court stated, “[W]hat constitutes an ‘acquittal’ is not to be controlled by the form of the judge‘s action.” Rather, a court “must determine whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.” (Emphasis added.) Further, the court has emphasized in such circumstances that “the trial judge‘s characterization of his own action cannot control the classification of the action.” United States v. Scott, 437 U.S. 82, 96, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978), quoting United States v. Jorn, 400 U.S. 470, 478, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971), fn. 7.
{¶ 38} Appellate courts therefore look to the substance and effect of the order—not its form or its judicial characterization—to determine whether the trial court entered an acquittal, focusing on whether the court resolved any factual element of the offense in favor of the accused. United States v. Appawoo, 553 F.2d 1242, 1244 (10th Cir.1977); United States v. Council, 973 F.2d 251, 254 (4th Cir.1992); United States v. Maker, 751 F.2d 614, 622 (3d Cir.1984); United States v. Gonzales, 617 F.2d 1358, 1362 (9th Cir.1980); Commonwealth v. McDonough, 533 Pa. 283, 290, 621 A.2d 569 (1993); State v. Korsen, 138 Idaho 706, 717, 69 P.3d 126, 137 (2003); Derry v. Commonwealth, 274 S.W.3d 439, 444–445 (Ky.2008); Kendall v. State, 429 Md. 476, 486, 56 A.3d 223 (2012).
Venue
{¶ 39} Venue concerns only the situs—i.e., the place—where the trial is to be conducted. Morrison v. Steiner, 32 Ohio St.2d 86, 87, 290 N.E.2d 841 (1972),
{¶ 40} More important, however, “[v]enue is not a material element of any offense charged. The elements of the offense charged and the venue of the matter are separate and distinct.” State v. Draggo, 65 Ohio St.2d 88, 90, 418 N.E.2d 1343 (1981). We recognized in Draggo that the elements of the offense charged “must be gathered wholly from statute and not aliunde,” id. at 91, and that venue is not an element of any statutorily defined offense. Id. We reaffirmed that venue is not a material element of the offense in State v. Headley, 6 Ohio St.3d 475, 477, 453 N.E.2d 716 (1983), a view that accords with decisions from multiple jurisdictions and the federal judiciary. E.g., Derry v. Commonwealth, 274 S.W.3d 439, 444 (Ky.2008); State v. Allen, 293 N.W.2d 16, 20 (Iowa 1980); Randall v. Virginia, 183 Va. 182, 187, 31 S.E.2d 571 (1944); United States v. Griley, 814 F.2d 967, 973 (4th Cir.1987); United States v. Davis, 689 F.3d 179, 185 (2d Cir.2012) (“Despite its constitutional pedigree, venue is not an element of any crime * * *” [emphasis sic]).
{¶ 41} I recognize that the Ohio Constitution, Article I, Section 10 affords 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 addition,
{¶ 42} Notwithstanding these provisions, we have held that the failure to establish venue may be waived by the accused. Draggo, 65 Ohio St.2d at 90, 418 N.E.2d 1343; Headley, 6 Ohio St.3d at 477, 453 N.E.2d 716. Further, venue may be changed pursuant to
Remedy
{¶ 43}
{¶ 44} The New Hampshire Supreme Court‘s decision in In re State (State v. Johanson), 156 N.H. 148, 932 A.2d 848 (2007), is instructive here. There, the
Because “[v]enue has nothing whatever to do with the guilt or innocence of a defendant,” State v. Hutcherson, 790 S.W.2d 532, 535 (Tenn.1990), dismissal of an indictment for improper venue is not an adjudication on the merits and is thus distinguishable from a verdict of acquittal. [State v.] Roybal, [139 N.M. 341,] 132 P.3d [598] at 605 [(Ct.App.2006)]. Under these circumstances, double jeopardy is not implicated by the trial court‘s erroneous order dismissing the indictment and directing a verdict for the respondent.
{¶ 45} Similarly, in United States v. Kaytso, 868 F.2d 1020 (9th Cir.1988), the Ninth Circuit Court of Appeals held that the dismissal of an indictment based on the failure of the government to establish venue at the close of its case-in-chief “cannot be considered an acquittal and so is not shielded by the double jeopardy clause.” (Emphasis added.) Id. at 1021. In that case, the victim could not recall the exact location of the crime, the trial court dismissed the action without prejudice, and the government reindicted him in a proper venue. Noting that “the double jeopardy clause does not preclude a second prosecution where a defendant successfully moves to terminate proceedings against him on a basis unrelated to factual guilt or innocence,” the court explained that venue is not an essential element of the offense but rather “is wholly neutral, a matter of procedure. * * * Thus, the failure to establish venue does not go to guilt or innocence.” Id. Accordingly, the appellate court held that the dismissal for lack of venue did not amount to an acquittal and did not bar retrial.
{¶ 46} Venue is therefore a procedural issue involving the appropriate place for trial of an accused on a criminal charge, not a substantive question relating to guilt or innocence of the crime. Wilkett v. United States, 655 F.2d 1007, 1012 (10th Cir.1981); Kaytso at 1021; Hart-Williams, 967 F.Supp. at 76; In re State, 156 N.H. at 157–158, 932 A.2d 848; People v. Posey, 32 Cal.4th 193, 211, 8 Cal.Rptr.3d 551, 82 P.3d 755 (2004). As Professor Wayne LaFave explains in his authoritative treatise on criminal procedure: “a trial court‘s ruling that the prosecution‘s case-in-chief failed to establish venue, though framed as a judgment
{¶ 47} Conducting a trial in an improper venue is not a basis to acquit an accused. See United States v. Hernandez, 189 F.3d 785 (9th Cir.1999), fn. 5 (rejecting a contention that in a case of improper venue, a judgment of acquittal is the appropriate remedy); Hart-Williams, 967 F.Supp. at 75 (“As venue is not an element of a criminal offense, there is no legal basis for the request for an instruction to acquit if the jury finds that venue was not proven“); Derry v. Commonwealth, 274 S.W.3d at 444 (“Because venue and the determination of any facts related to it do not affect guilt, a court‘s decision to terminate a trial for want of proper venue cannot amount to an acquittal“). And the trial court‘s determination that venue is improper is not a resolution in favor of the accused on any of the factual elements of the offenses charged.
{¶ 48} Rather, if the state fails to prove venue in a criminal case or if it is established that a crime occurred in a county different from where the trial is held, the trial court should dismiss the indictment or transfer the case for prosecution to the county where the offense occurred without any double-jeopardy concerns.
{¶ 49} Examining the impact of the action taken by the trial court here, it is manifest that the trial court should have declared a mistrial or dismissed this case without prejudice and transferred it to the proper county in accordance with
{¶ 50} Accordingly, I would reverse the judgment of the court of appeals and remand the case to the trial court with instructions to transfer it to the proper county for trial.
LUNDBERG STRATTON and CUPP, JJ., concur in the foregoing opinion.
Ron O‘Brien, Franklin County Prosecuting Attorney, and Steven L. Taylor, Chief Counsel, Appellate Division, for appellant.
Tyack, Blackmore, Liston & Nigh Co., L.P.A., and Jonathan T. Tyack, for appellee.
Timothy Young, Ohio Public Defender, and Valerie Kunze, Assistant Public Defender, urging affirmance for amicus curiae Ohio Public Defender.
Robert L. Tobik, Cuyahoga County Public Defender, and John T. Martin, Assistant Public Defender, urging affirmance for amicus curiae Cuyahoga County Public Defender.