STATE OF OHIO v. THOMAS J. McCOLLUM
CASE NO. CA2014-11-077
TWELFTH APPELLATE DISTRICT OF OHIO CLERMONT COUNTY
8/17/2015
[Cite as State v. McCollum, 2015-Ohio-3286.]
D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee
Michael K. Allen & Associates, LLC, Joshua A. Engel, 5181 Natorp Bоulevard, Suite 210, Mason, Ohio 45040, for defendant-appellant
M. POWELL, J.
{1} Defendant-appellant, Thomas McCollum, appeals his conviction in the Clermont County Court of Common Pleas for rеceiving stolen property.
{2} Debra Irvin is an avid collector of gemstones and gold jewelry which she kept at her home. In 2013, Irvin lived with her former husband at 3517 Clover Road in Bethel, Ohio. Appellant is the son of Irvin‘s former husband. For financial reasons, appellant, his wife, and
{3} On October 22, 2013, appellant was indicted by the Clermont County Grand Jury on one сount of theft and one count of receiving stolen property. The state alleged that between June 1, 2013, and August 23, 2013, appellant stole several of Irvin‘s pieces of gold jewelry, many of which had gemstones, which he then pawned at four different pawn shops without Irvin‘s permission. A jury trial was held in May 2014. On May 7, 2014, the jury found appellant guilty of receiving stolen property but acquitted him of theft. Appellant was subsequently sentenced to 18 months in prison and ordered to pay Irvin $5,500 in restitution.
{4} Appellant appeals, raising two assignments of error.
{5} Assignment of Error No. 1:
{6} THE FAILURE OF THE STATE TO PRESENT SUFFICIENT EVIDENCE TO PROVE VENUE CONSTITUTES PLAIN ERROR.
{7} Appellant argues the trial court erred in denying his Crim.R. 29 motion becausе venue was not proven. Specifically, appellant argues the state failed to prove beyond a reasonable doubt that the stolen property was taken or received by appellant in Clermont County.
{8} Venue commonly refers to the appropriate place of trial for a criminal prosecution within a state. State v. Stone, 12th Dist. Warren No. CA2007-11-132, 2008-Ohio-5671, ¶ 16. The purpose of the venue requirement is to give the defendant the right to
{9} “Trial courts have broad discretion to determine the facts that would establish venue.” Id. at ¶ 18. Venue need not be proven in express terms; it may be established either directly or indirectly by all the facts and circumstances of the case. Id., citing State v. Headley, 6 Ohio St.3d 475 (1983).
{10} A defendant waives the right to challenge venue when the issue is raised for the first time on appeal. State v. Mielke, 12th Dist. Warren No. CA2012-08-079, 2013-Ohio-1612, ¶ 15. In the case at bar, appellant made a Crim.R. 29 motion for acquittal at the close of the state‘s case, arguing there was insufficient evidence to convict him of theft and receiving stolen property. However, appellant did not make any objection in his Crim.R. 29 motion with regard to venue.1 As a result, because appellant raises the issue for the first time on appeal, he has waived any challenge to venue but for plain error. Id. at ¶ 16.
{11} A plain error is any error or defect “affecting substantial rights [that] may be noticed although they were not brought to the attention of the court.”
{12} Appellant was convicted of receiving stolen property in violation of
{13} Ohio courts “have found sufficient proof of venue from testimony thаt a particular locality‘s police department investigated the alleged crime.” See State v. Norton, 2d Dist. Greene No. 97 CA 112, 1998 WL 853022 (Dec. 11, 1998) (evidence that officers employed by the Greеne County Sheriff‘s Department investigated a burglary committed in Bath Township was sufficient to prove venue in Greene County); State v. Woodson, 4th Dist. Ross No. 97-CA-2306, 1998 WL 51606 (Feb. 11, 1998) (evidence that a Ross County deputy sheriff investigatеd a robbery committed in Bainbridge was sufficient to establish venue in Ross County). Ohio courts have also held that reference to a street address only, without reference to a сity, county, or state, is insufficient to prove venue. See Lahmann, 2007-Ohio-1795 (evidence that an offense occurred at a particular street address, standing alone, is insufficient to establish venue); State v. Wilson, 6th Dist. Huron No. H-13-002, 2014-Ohio-1005.
{14} Upon reviewing the facts and circumstances presented prior to the denial of appellant‘s Crim.R. 29 motion, we find that venue was adequately, albeit not directly, established in Clermont County with regard to receiving stolen property. At trial, an officer
{15} In light of the foregoing, we find that venue was proper in Clermont County under
{16} Assignment of Error No. 2:
{17} TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT THAT THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO PROVE VENUE.
{18} Appellant argues his trial counsel was ineffective beсause he failed to object to the state‘s failure to establish venue beyond a reasonable doubt. Given our resolution of appellant‘s first assignment of error, apрellant second assignment of error is moot and we decline to address it. See State v. Sullivan, 1st Dist. Hamilton Nos. C-130628 and C-130629, 2014-Ohio-3112; State v. Jazdzewski, 4th Dist. Washington No. 14CA15, 2015-Ohio-2416 (trial counsel was not ineffective where venue was proper and thus, аn objection to venue would have been fruitless).
{19} Judgment affirmed.
S. POWELL, J., concurs.
PIPER, P.J., concurs separately.
PIPER, P.J., concurring separately.
{21} It may be only a matter оf time before circumstantial evidence is stretched so thin that it cannot meet the required burden of proof. In my opinion, this case came close. Prosecutors using circumstantial evidence and inferences to prove venue must take note of the risks involved. Not all inferences are reasonable and inferences drawn entirely upon inferences are impermissible. State v. Cooper, 147 Ohio App.3d 116, 2002-Ohio-617 (12th Dist.). For example, just because a law enforcement agency stopped a vehicle does not mean that the law enforcеment officer initiating the stop was within his or her jurisdiction. See State v. Brown, Slip Opinion No. 2015-Ohio-2438 (officer lacked authority to enforce a lane change violation on an interstate highway and search of vehicle was unreasonable as it was an extra-territorial stop).
{22} While venue need not be established by a direct question, it is by far the better practice. A direct question could easily eliminate a number of these cases where the proof of venue is being challenged because of a reliance upon circumstantial evidencе. Prosecutors have routine questions they ask, such as identification of the alleged perpetrator. Venue should also be a routine question. The importance of proving venue with a direct question is not aimed at compliance with a technicality, but rather to satisfy Ohio law. Training for assistant prosecutors should be accordingly.