State v. Lahmann, Ca2006-03-058 (4-16-2007)State v. Lahmann, Ca2006-03-058 (4-16-2007)
{¶ 1} Dеfendant-appellant, Elijah U. Lahmann, appeals his conviction and sentence in the Fairfield Municipal Court for criminal damaging.
{¶ 2} On November 16, 2005, Dan Lane was at his home at 5436 Lakeside Drive when at approximately 6:00 p.m., he and his mother heard a car pull up to their house. At first, Lane thought it was a friend whom he had invited to come over, but then Lane heard “a bunch of banging sounds.” Lane loоked out the window and saw appellant — whose sister
{¶ 3} Lane ran outside, with his mother following him, and saw appellant kicking the car. Upon seeing Lane, appellant started to run after him, threatening to “kick his ass.” Lane retreated to his house, pushing his mother back inside. When Lane‘s father came outside, apparently in resрonse to the shouting, appellant ran down the street, jumped in a truck, and drove off.
{¶ 4} On December 19, 2005, appellant was arrested and charged with one count of criminal damaging in violation of Fairfield Codified Ordinance (“FCO“) 541.03(a)(1), a misdemeanor of the second degree, and one count of menacing in violation of FCO 537.06(a), a misdemeanor of the fourth degree.
{¶ 5} On March 2, 2006, appеllant‘s case was tried to an acting judge of the Fairfield Municipal Court. The only witness called by the city of Fairfield was Lane, who testified to the facts related above. Appellant testified that he “wasn‘t in Fairfield that day at all.”
{¶ 6} At the close of evidence, the trial court found appellant not guilty of menacing, but guilty of criminal damaging. The trial court sentenced appellant to 90 days in the county jail, with 85 of those days suspended; imposed a $750 fine, with $500 suspended; and ordered appellant to serve two years of probation.
{¶ 7} Appellant now appeals his conviction and sentence for criminal damaging and assigns the following as error:
{¶ 8} Assignment of Error No. 1:
{¶ 9} “A DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE
{¶ 10} Appellant argues that his trial counsel provided him with constitutionally ineffective assistance by failing to raise a
{¶ 11} In order to prevail on an ineffective assistance of counsel claim, a criminal defendant must make the two-pronged showing set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052. First, a defendant must show that his counsel‘s performance was “deficient.” Id. at 687. This requires showing that counsel‘s performance “fell below an objective standard of reasonableness.” Id. at 688. Second, a defendant must show that his counsel‘s deficient performance prejudiced him. Id. at 687. This requires showing that “there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. A failure to make a sufficient showing on either the “performance” or “prejudice” prong of the Strickland standard will doom a defendant‘s ineffective assistance of counsel claim. Id. at 697.
{¶ 12}
{¶ 13} In ruling on a
{¶ 14} “`Venue’ commonly refers to the appropriate place of trial for a criminal prosecution * * * as between different geographical subdivisions within a state[.]” State v. Shrum (1982), 7 Ohio App.3d 244, 245, fn. 2. See, also, State v. Williams (1988), 53 Ohio App.3d 1, 5. By contrast, “jurisdiction” refers to the power of a court to hear and determine a case on its merits. Schrum; Oakwood v. Ferrante (1975), 44 Ohio App.2d 318, 320.
{¶ 15}
{¶ 16} “The purpose оf the venue requirement is to give the defendant the right to be tried in the vicinity of the alleged criminal activity, and to limit the state from indiscriminately seeking a favorable location for trial that might be an inconvenience or disadvantage to the defendant.” State v. Rankin, Clinton App. No. CA2004-06-015, 2005-Ohio-6165, ¶ 11, citing State v. Gentry (M.C. 1990), 61 Ohio Misc.2d 31, 34. See, also, State v. Meridy, Clermont App. No. CA2003-11-091, 2005-Ohio-241, ¶ 12, also citing Gentry.
{¶ 17} Venue is not a material element of any offense charged. State v. Smith, 87 Ohio St.3d 424, 435, citing State v. Headley (1983), 6 Ohio St.3d 475, 477. Indeed, the
{¶ 18} Trial courts have broad discretion to determine the facts that would establish venue. State v. Taberner (1989), 61 Ohio App.3d 791, 793. Venue need not be prоven in express terms; it may be established either directly or indirectly by all the facts and circumstances of the case. Headley, 6 Ohio St.3d at 477. If venue is not proven beyond a reasonable doubt, the defendant cannot be convicted unless he has waived this right. Taberner at 793, citing, among others, State v. Nevius (1947), 147 Ohio St. 263, paragraph three of the syllabus.
{¶ 19} When the prosecution fails to prove venue with respect to a charged criminal offense, the defendant is entitled to be discharged from that offense. See, e.g., State v. Trantham (1969), 22 Ohio App.2d 187, 189-190; State v. Gardner (1987), 42 Ohio App.3d 157, 158; and State v. Myers, Summit App. No. 21874, 2004-Ohio-4195.
{¶ 20} In this case, we conclude that the failure of appellant‘s trial counsel to raise a
{¶ 21} The only evidence the city presented in this case that could have arguably
{¶ 22} For instance, in Trantham, 22 Ohio App.2d 187, the Clermont County Court of Appeals2 found that evidence that “the alleged crime was committed in a house next to Siebert Apartments in Perintown on U.S. Route 50” was insufficient to prove venue where there was “no evidence that Perintown, the house, Siebert Apartments or U.S. Route 50 is in Clermont County or the state of Ohio.” Id. at 189-190.
{¶ 23} In State v. Giles (App. 1974), 68 O.O.2d 142, the court, citing Trantham, found insufficient evidence of venue where the state failed to present adequate proof that the address of a building where the defendant was apprehended, i.e., 5850 Robison Road, was in Hamilton County, Ohio. The court made this ruling even though other testimony at trial established that another apartmеnt, which had been recently burglarized, was located at 5842 Robison Road, which address was established as being in Cincinnati, in Hamilton County, Ohio. Id. at 142-143.
{¶ 24} In Gardner, 42 Ohio App.3d 157, the defendant was charged with assaulting the owner of a restaurant. The court found that the only clues as to the location of the offense were that the restaurant was located at “`1412 Vine’ across the street from the Red Horse Bar at `the corner nеxt to Krogers,’ and that defendant lived at 28 East Thirteenth Street `right around the corner from Krogers.‘” Id. The court found that these facts were “not sufficiently unique to permit the conclusion that the restaurant was in Hamilton County, Ohio.”
{¶ 25} In Myers, 2004-Ohio-4195, the court noted that while there was evidence presented by the state showing that the alleged assault occurred at the Suburb Inn on Arlington Street, there was no evidence presented as to where the offense took place in terms of a city, county, or state. Id. at ¶ 7. Thus, the Myers cоurt essentially held that the state could not establish venue with reference to a single street name. Id. Cf., State v. Simmons, Summit App. No. 22221, 2005-Ohio-1469, ¶ 18 (finding Myers distinguishable where the state elicited testimony as to the cities and county where the alleged crimes occurred), and State v. Brown, Mahoning App. No. 03-MA-32, 2005-Ohio-2939, ¶ 82 (where evidence showed that defendant lived on Market Street, and police officer who arrested defendant at defendant‘s address works street duty in Youngstown, jurоrs could infer that crime occurred in Youngstown, in Mahoning County, Ohio).
{¶ 26} The city concedes that it did not specifically have the victim in this case, Lane, testify that the events giving rise to the criminal damaging charge took place in Fairfield, Butler County, Ohio. Nevertheless, the city points out that Lane testified that all of the events that constituted the crime took place at 5436 Lakeside Drive, which is a street in Fairfield, Butler County, Ohio. The city then asserts that it is a matter of “common knowledge” that Lakeside Drive is within the boundaries of Fairfield, and that the trial court “took judicial notice that Lakeside Drive [i]s within its boundaries.” We disagree with these assertions.
{¶ 27}
{¶ 28} However, as one court has noted, if a trial court takes judicial notice of such matters as geographical locations and relationships in the absence of any evidence, stipulation or concession, the court should specify on thе record in express terms that of which it is taking judicial notice. State v. Davis (Feb. 2, 1983), Hamilton App. No. C-820231. Requiring a trial court to do so is fair and appropriate in light of
{¶ 29} In this case, the city never asked the trial court to take judicial notice that 5436 Lakeside Drive is in Fairfield, Butler County, Ohio, as the city was permitted to do under
{¶ 30} Furthermore, the cases cited by the city in support of its claim that the trial court could have taken judicial notice that Lakeside Drive is in Fairfield, Butler County, Ohio, are readily distinguishable from the case sub judice. For instance, in State v. Barr, 158 Ohio App.3d 86, the court found that a police officer‘s testimony “describing the intersections of streets and towns” involved in the officer‘s chase of a defendant was sufficient evidence to prove venue beyond a reasonable doubt. Id. at 92-93. Thus, Barr did not involve a case like
{¶ 31} The city also cites State v. Shuttlesworth (1995), 104 Ohio App.3d 281, which found that the state presented sufficient evidence of venue when it demonstrated that the crime had occurred in the city of Cadiz, in Harrison County, Ohio. Id. at 287. However, the Shuttlesworth court stated, “We agree that evidence as to one specific address, the VFW parking lot, would not necessarily support a conclusion that venue had been established.” Id. at 286-287.
{¶ 32} Furthermore, we also reject the city‘s contention that the trial court was able to take judicial notice that the offense took place in Fairfield, Butler County, Ohio, because all the events giving rise to the chargеs against him took place on a “Lakeside Drive” and it is a matter of “common knowledge” that this street is in Fairfield, in Butler County. In this regard, we agree with appellant‘s contention that it is a matter of “[c]ommon knowledge * * * that there are multiple streets with the same name located in different jurisdictions, counties, and cities.”
{¶ 33} Thus, even if it can be said that it is a matter of common knowledge that there is a Lakeside Drive in Fairfield, Butler County, Ohio, it certainly cannot be said it is a matter of common knowledge that there exists a 5436 Lakeside Drive in Fairfield, Butler County, Ohio, since that specific address may actually exist on a different Lakeside Drive in some other jurisdiction.
{¶ 34} In light of the foregoing, we conclude that testimony showing that an offense occurred at a particular street address, standing alone, is generally insufficient to prove venue, since such addresses often are not “sufficiently unique” to permit the conclusion that the address is located in a particular city or county. Consequently, the trial court could not take judicial notice pursuant to
{¶ 35} We also note that the city has made no argument with respect to whether the trial court could have taken judicial notice of the fact that 5436 Lakeside Drive is within the boundaries of Fairfield, in Butler County, Ohio, pursuant to
{¶ 36} Generally, a map of Fairfield would show there is a Lakeside Drive that is entirely within the city‘s jurisdictional limits. However, these maps usually will not show the specific street addresses on Fairfield‘s Lakeside Drive. Consequently, these maps will not establish whether a specific address on that street is actually located within Fairfield, Butler County, Ohio, and not in some other jurisdiction that also has a Lakeside Drive.
{¶ 37} A resort to the records of the county‘s recorder‘s office would reveal this type of information with respect to the specific address given in this case. However, one court of appeаls has found that a trial court was not allowed to take judicial notice pursuant to
{¶ 38} “There is no evidence in the record of this case that proves that plaintiffs were property owners and taxpayers of Jefferson County. When defense counsel called this fact to the attention of the trial court, counsel for plaintiffs asked the trial court, pursuant to
{¶ 39} ” * * *
{¶ 40} “Counsel for plaintiffs argued that the question whether plaintiffs were property ownеrs and taxpayers of Jefferson County could be readily determined at the county recorder‘s office in the courthouse.
{¶ 41} “The trial court in its `Findings of Fact’ found that plaintiffs were property owners and taxpayers of the city of Steubenville and the Indian Creek School District but did not state the basis of such finding.
{¶ 42} “We hold that placing the burden on the trial judge to check the records of the cоunty recorder‘s office to determine whether plaintiffs were property owners and taxpayers is not `capable of * * * ready determination’ within the meaning of
{¶ 43} “Therefore, we hold that the trial judge could not take judicial notice that plaintiffs were property owners and taxpayers under the facts of this case.” Country Club Hills Homeowners Assn., 5 Ohio App.3d at 79.
{¶ 44} It must be noted that Country Club Hills Homeowners Assn. was decided in 1981, and it has arguably become easier to access the records of the county recorder‘s office via the internet. Nevertheless, while access to those records may be easier, it still does not render any information that a court may be able to obtain over the internet “capable of * * * ready determination” within the meaning of
{¶ 45} In light of the foregoing, we conclude that appеllant has met his heavy burden under both the performance and prejudice prongs of the Strickland standard. Specifically, the failure of appellant‘s counsel to raise a
{¶ 46} Appellant also argues that his trial counsel provided him with ineffective assistance by failing to file a timely notice of alibi with respect to a number of witnesses who were allegedly willing to testify that aрpellant was not in Fairfield on the day in question. However, this argument has been rendered moot as a result of our ruling on the issue of venue. See
{¶ 47} Appellant‘s first assignment of error is sustained.
{¶ 48} Assignment of Error No. 2:
{¶ 49} “THE TRIAL COURT ERRED WHEN IT ENTERED A JUDGMENT AGAINST THE DEFENDANT WHICH WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE TO FIND DEFENDANT GUILTY.”
{¶ 50} Assignment of Error No. 3:
{¶ 51} “THE TRIAL COURT ERRED WHEN IT ENTERED A JUDGMENT AGAINST THE DEFENDANT WHICH WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE PRESENTED AT TRIAL.”
{¶ 52} In his second and third assignment of error, appellant argues that his conviction and sentence for criminal damaging are against the sufficiency and manifest weight of the evidence. However, both of these arguments have been rendered moot as a result of our
{¶ 53} The trial court‘s judgment is reversed and defendant is ordered discharged from the offense of criminal damaging.
POWELL, P.J. and YOUNG, J., concur.