STATE OF OHIO v. TINA MARIE WRIGHT
Case No. 15CA31
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ATHENS COUNTY
Released: 10/31/16
[Cite as State v. Wright, 2016-Ohio-7654.]
McFarland, J.
DECISION AND JUDGMENT ENTRY
Timоthy Young, Ohio Public Defender, and Carrie Wood, Ohio Assistant Public Defender, Columbus, Ohio, for Appellant.
Keller J. Blackburn, Athens County Prosecuting Attorney, and Merry M. Saunders, Athens County Assistant Prosecuting Attorney, Athens, Ohio, for Appellee.
McFarland, J.
{1} Tina Marie Wright appeals from the judgment of the Athens County Court of Common Pleas convicting her of two counts of interference with custody and sentencing her to community control.
{2} Wright initially asserts that the trial court erred in denying her motion for judgment of acquittal at the close of the evidence because there was insufficient evidence of venue in Athens County when she, her husband Phillip, and their children did not reside in that county when the crimes occurred. Venue is established when one of the elements of the offense occurs in the county in which
{3} Wright next contends that the trial court erred in denying her motion for judgment of acquittal at the close of the evidence because there was insufficient evidence to support her conviction of the crimes of interference with custody. The convictions were premised on her violations of two orders issued by the Athens County Court of Common Pleas in the pending divorce case. She claims that there was insufficient evidence that she interfered with the first order, which granted her custody of their two youngest children, because any violation would have simply impacted the visitation portion of the order. We reject this claim because the plain
{4} Therefore, because the evidence introduced at trial was sufficient to establish venue and the elements of the two custodial interference offenses, we overrule Wright‘s assignments of error and affirm the judgment of the trial court.
I. FACTS
{5} In October 2014, the Athens County Grand Jury returned an indictment charging Wright with two counts of interference with custody in violation of
{6} The case proceeded to a two-day jury trial at which the state presented the testimony of Phillip, one of their children, S.A.W., аnd Athens County Sheriff‘s Lieutenant John A. Morris, as well as exhibits including certified copies of the pending divorce case and two orders issued in that case. The defense presented the testimony of Wright and one of her friends, Linda Sheets. The following pertinent facts were adduced.
{7} Wright and Phillip married in Delaware, Ohio in May 1997. They had three children, A.W., born in 1997, S.A.W., born in 2000, and S.J.R.W., born in 2009. Their marriage eventually deteriorated, with Phillip accusing Wright of engaging in numerous affairs and Wright accusing Phillip of disinterest and abuse.
{8} In May 2014, Wright filed a complaint for divorce in the Athens County Court of Common Pleas, listing a Washington County address for herself and a Licking County аddress for Phillip. Around that time, Wright called Athens County Deputy Sheriff Greg Poston, who introduced her to Stacy Crook, and she tried to obtain a civil protection order. She was unable to get a civil protection
{9} On August 6, 2014, the Athens County Court of Common Pleas issued a temporary order designating Wright the legal custodian and residential parent of the twо youngest of their minor children, S.A.W. and S.J.R.W, and designating Phillip the legal custodian and residential parent of the oldest child, A.W. The order further set forth visitation for Phillip with S.A.W. and S.J.R.W. and designated that the children would be exchanged at a halfway point from where they lived. The designated exchange location was a Bob Evans restaurant in Muskingum County. The order also contained a provision that “[a]t any time that [Wright] elects to take a vacation/road trip with her boyfriend, Joseph Knece, the children shall reside with [Phillip].” In accordance with the order, Phillip had visitation with S.A.W. and S.J.R.W. in August, until he went to pick them up later in the month аnd they did not appear.
{10} After a one-week visitation with their father, S.A.W. and S.J.R.W. learned that Wright and her boyfriend had packed their belongings, and they left for Texas from Wright‘s sister‘s residence at some undisclosed location on August 27, 2014 without telling the Athens County court or Phillip. On the same date that
{11} On cross-examination, Wright admitted that she violated the Athens County court‘s August 6, 2014 order by taking S.A.W. and S.J.R.W. to Texas and depriving Phillip of his right to spend parenting time with them, but claimed that she “answer[ed] to a higher authority.”
{12} Phillip filed a motion for contempt and Wright was served by certified mail at a Madison County, Ohio address. Wright did not appear for a hearing on Phillip‘s motion, and on September 23, 2014, the Athens County Court of Common Pleas issued an order designating Phillip as the legal custodian and residential parent of all three of their children, A.W., S.A.W., and S.J.R.W. The order further specified that law enforcement would assist Phillip in effecting the order to remove the two younger children from Wright wherever she may be found and place them in Phillip‘s custody.
{13} Phillip later contacted Lt. Morris of the Athens County Sheriff‘s Department to attempt to enforce the September 23, 2014 court order. He gave the
{14} Lt. Morris was able to call a trucking company that Wright‘s boyfriend worked for and obtain telephone numbers where Wright could be reached. He left messages for Wright to call him back. About forty minutes after he had left messages for her, Wright called him back. Lt. Morris informed Wright about the Athens County court‘s September 23, 2014 order, which granted custody of the children to Phillip, and that she needed to bring S.A.W. and S.J.R.W. back to Phillip in Ohio. Lt. Morris further advised her of the consequences of her not returning the children, including possible charges and a warrant for her arrest, but shе responded that she would just have to deal with that when the time comes. She told Lt. Morris that she was in West Virginia, although she was actually in Texas.
{15} Wright admitted at trial that despite being informed by Lt. Morris about the consequences of her not complying with the Athens County court orders, she refused to bring the children back to Ohio and she knew that she did not have the right to take the children to Texas or to keep them there from Phillip. She testified that she did not follow the orders because she did not agree with them.
{16} About a week later, after Wright refused to return the children, Lt. Morris filed charges against her for interference with custоdy and a nationwide warrant was issued for her arrest. She was arrested in Texas in mid-October 2014, and was returned to Ohio thereafter. The younger children who had been with her were placed in the temporary custody of children services and were picked up by Phillip the next morning.
{17} At the conclusion of the evidence, Wright made a motion for judgment of acquittal on two grounds: (1) that the state never identified Wright as the person who was the subject of the two Athens County court orders; and (2) the state failed to establish that the venue of the charged offenses was in Athens County. For the venue portion of her motion, the state responded that the one of the elements of the interference with custody offenses was that the state prove that Wright took and kept the children without privilege, which required that it be established through the evidence of the Athens County court orders. The trial court denied Wright‘s motion.
{18} The jury returned verdicts finding Wright guilty of both charges of interference with custody, and the trial court sentenced her to five years of community control for each offense. This appeal ensued.
II. ASSIGNMENTS OF ERROR
{19} Wright assigns the following errors for our review:
- THE TRIAL COURT VIOLATED TINA WRIGHT‘S RIGHTS TO DUE PROCESS AND A FAIR TRIAL WHEN, IN THE ABSENCE OF SUFFICIENT EVIDENCE OF VENUE, IT FAILED TO GRANT HER CRIM.R. 29 MOTIONS AS TO BOTH COUNTS OF INTERFERENCE WITH CUSTODY.
- THE TRIAL COURT VIOLATED TINA‘S RIGHTS TO DUE PROCESS AND A FAIR TRIAL WHEN, IN THE ABSENCE OF SUFFICIENT EVIDENCE, IT FAILED TO GRANT HER CRIM.R. 29 MOTIONS AS TO INTERFERENCE WITH CUSTODY.
III. STANDARD OF REVIEW
{20} Wright‘s assignments of error challenge the trial court‘s denial of her
{21} Under
{22} “When a court reviews a record for sufficiency, ‘[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.’ ” State v. Maxwell, 139 Ohio St.3d 12, 9
IV. LAW AND ANALYSIS
A. Venue
{23} In her first assignment of error, Wright asserts that the trial court erred in denying her motion for acquittal because there was insufficient evidence of venue to support her two convictions for interference with custody.
{24}
{25} Venue is not a material element of any offense charged; the elements of the offense charged are separate and distinct. State v. Jackson, 141 Ohio St.3d 171, 2014-Ohio-3707, 23 N.E.3d 1023, ¶ 143. Venue is also not jurisdictional and may be waived. See State v. Jordan, 12th Dist. Warren No. CA2014-04-051, 2015-Ohio-575, ¶ 29; Jackson at ¶ 143.
{26} Nevertheless, venue is a fact that must be proven beyond a reasonable doubt unless it is waived by the defendant. Jackson at ¶ 143, citing State v. Headley, 6 Ohio St.3d 475, 477, 453 N.E.2d 716 (1983). ” ‘[I]t 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. Hampton, 134 Ohio St.3d 447, 2012-Ohio-5688, 983 N.E.2d 324, ¶ 19, quoting State v. Dickerson, 77 Ohio St. 34, 82 N.E. 969 (1907), paragraph one of the syllabus. “[A] judgment of acquittal may be entered when the state has failed to prove the venue of the offense as alleged in the indictment.” Hampton at ¶ 24.
{27} “The purpose of 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 indisсriminately seeking a favorable location for trial that might be an
{28} Wright argues that because she was a Washington County resident and Phillip was a Licking County resident when she absconded to Texas with their two youngest children, the designated drop-off area for parenting-time exchanges was in Muskingum County, and there was no evidence that she even drove through Athens County when she left from her sister‘s home and travelled to Texas with the children, the state failed to establish that Athens County was a proper venue for the offenses of interference with custody.
{29} But as previously stated, venue is established when one of the elements of the offenses occurs in the county in which the case is tried. See
{30} One of the elements of the offense of interference with custody requires that the person absconding with the child do so without any privilege in that regard. That element in this case required that the state establish that Wright lacked any right to take S.A.W. and S.J.R.W. to Texas and keep them there in violation of the Athens County сourt orders in the pending divorce case between Wright and Phillip. The divorce case had been initiated in Athens County by Wright herself, and she had contacted the Athens County Sheriff‘s Department to attempt to obtain a protection order against Phillip before she filed for divorce in that county. Because the “without privilege to do so” element of the interference with custody offenses occurred in Athens County, the fact that Wright, Phillip, and the children may not have been residents there on the August 27, 2014 date she
{31} This result is supported by a reasonable construction of precedent. In Chintalapalli, 88 Ohio St.3d 43, 723 N.E.2d 111, the Supreme Court of Ohio concluded that the Erie County Court of Common Pleas had both jurisdiction and venue to try a defendant for criminal nonsupport notwithstanding the fact that after their divorce, the plaintiff obligee, the defendant obligor, and their children no longer resided in Erie County. The court held that “[t]he act of failing to provide child support occurs in at least two venues: (1) the place where the defendant resides, and (2) the place where the defendant was required to perform a legal obligation.” Id. at syllabus.
{32} As in Chintalapalli, one of the elements of the offense was in the place that issued the orders setting forth the parents’ custodial and parenting rights. Although the evidence in that case was admittedly more extensive (the parents lived in Erie County before their divorce, the divorce decree obligating the defendant to make child-support payments was issued in Erie County, and the child support enforcement agency collected the payments the defendant was required to pay in Erie County), the critical fact remains that the orders that Wright knowingly violated here were issued by the same Athеns County court in which she initiated the divorce action. Id. at 45-46. Although she fortuitously voluntarily dismissed
{33} Finally, as the Supreme Court in Chintalapalli emphasized, ” [v]enue is satisfied where there is sufficient nexus between the defendant and the county of the trial.” Id. at 45. As discussed, Wright initiated the Athens County divorce case that ultimately generated the orders that she admitted she violated by taking and keeping her two younger children to Texas, far away from Phillip. Around that time, she contacted the Athens County Sheriff‘s Department to аssist her in attempting to get a protection order against Phillip. Here, Phillip testified that when he could not locate the children after Wright failed to show up with them for his court-ordered visitation, he gave the police her last known address in the Athens area and that Wright had represented to the Athens County court that she had planned on getting a new apartment or house in that area. While attempting to extricate herself from the purported burden of being tried in Athens County based on a violation of the orders issued by the Athens County court, she simultaneously attempts to rely on the benefit of the August 6, 2014 ordеr issued by that same court to claim that she had custody of the two younger children so that she could take them where she pleased. It would be nonsensical to allow her to accept the benefits of that order without accepting its burdens. This is not a case in which the
{34} Therefore, after viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could have found that the state had proven that Athens County was a proper venue for the criminal charges. We overrule Wright‘s first assignment of error.
B. Interference with Custody
{35} In her second assignment of error, Wright contends that the trial court erred in denying her motion for acquittal because there was insufficient evidence to establish the essential elements of interference with custody. As noted, the convictions were premised on her violations of the two orders issued by the Athens County Court of Common Pleas in the pending divorce case.
{36} She initially claims that there was insufficient evidence that she interfered with the Athens County court‘s first (August 6, 2014) order, which granted her custody of S.A.W. and S.J.R.W., because any violation would have simply impacted Phillip‘s visitation rights. We reject this claim because the plain language of
{37} In addition, Wright conceded on cross-examination at trial that she violated the August 6, 2014 order when she took her younger two children to Texas. That order specified that the children would reside with Phillip anytime Wright went on a vacation or road trip with her boyfriend.
{38} Furthermore, Wright also admitted thаt she violated the Athens County court‘s second (September 23, 2014) order, which granted custody of the children to Phillip, by keeping the children in Texas. Thus, Wright‘s first claim in her second assignment of error is meritless.
{39} She next argues that there was insufficient evidence that she interfered with the Athens County court‘s second order because it was never properly served on her. She cites State v. Smith, 136 Ohio St.3d 1, 2013-Ohio-1698, 989 N.E.2d 972, in support of her argument. In Smith, at the syllabus, the
{40} Conversely,
{41} Moreover, she admitted to violating both Athens County court orders, and the state was only required to prove that she knowingly or recklessly violated one.
{42} Therefore, after viewing the evidence in a light most favorable to the state, any rational trier of fact could have found the essential elements of the charged offenses of interference with custody proven beyond a reasonаble doubt. We overrule Wright‘s second assignment of error.
V. CONCLUSION
{43} The trial court properly denied Wright‘s
JUDGMENT AFFIRMED.
{44} I respectfully dissent from the lead opinion.
{45} I would sustain Tina Marie Wright‘s first assignment of error and conclude that venue was not established beyond a reasonable doubt in the proceedings below. Accordingly, I would reverse the judgment of the trial court and find Wright‘s second assignment of error to be moot.
{46} In the case sub judice, I do not believe that the State presented sufficient evidence to establish that venue was proper in Athens County because no evidence was presented indicating that Wright committed any elements of the offenses in Athens County. While S.A.W. testified that he, S.J.R.W., and Wright lived in “Little Hocking” during the time that Wright was legal custodian, no evidence was presented that Little Hocking is located in Athens County. Moreover, S.A.W. testified that Wright drove him and S.J.R.W. to Texas either the day of or the day after they were done spending the weekend with their dad. He further testified that when his mother picked him up from visitation time with his dad, his belongings were “pre-packed” and already in Wright‘s vehicle. Wright, meanwhile, testified that she left for Texas with the children from her sister‘s house. There was no indication where the sister‘s house is located. Given the above evidence, I do not believe that a rational fact-finder could determine that Wright enticed, took, kept, or harbored the children from or into Athens County. See
{47} I also disagree with the lead opinion‘s determination that because reference to the Athens’ County orders is necessary to prove that Wright acted “without privilege” when she took the children to Texas, that an element of the offense occurred in Athens County, or that there is a sufficient nexus between Wright and Athens County thus making venue proper. Rather I would conclude
{48} In Chintalapalli, the defendant was convicted in Erie County, Ohio, of three counts of nonsupport of dependents, based on his failure to make child support payments as required undеr a divorce decree. Chintalapalli at 44. The defendant was not a resident of Erie County, Ohio, at the time of non-payment and the defendant‘s ex-wife and children had moved from Erie County to Pennsylvania. Id. On appeal, the appellate court reversed the convictions on the basis that the trial court lacked jurisdiction. Id. The Ohio Supreme Court allowed the discretionary appeal and was presented two questions: (1) “whether the trial court in Erie County properly exercised jurisdiction over [defendant] even though he and his family resided outside Ohio when he failed to make required child support payments“, and (2) “if jurisdiction was present, whether venue was proper.” Id. After determining that the trial court properly exercised jurisdiction over the defendant, the Court stated the following in regards to venue:
Mr. Chintalapalli lived with Mrs. Chintalapalli in Erie County, Ohio. Mrs. Chintalapalli gave birth to their children in Erie County. The divorce decree that obligated Mr. Chintalapalli to make child support payments was issued in Erie County. The CSEA collects the payments Mr. Chintalapalli is required to pay in Erie County. When Mr.
Chintalapalli does not make child support payments, part of that act occurs in Erie County. These facts provide ample evidence to establish a sufficient nexus between Mr. Chintalapalli and Erie County.
Id. at 45-46. Thus, the Ohio Supreme Court determined that venue in Erie County was proper. Id. at 46.
{49} Here, other than the temporary custody orders that were issued from the Athens County court, Wright has no apparent connection or nexus to Athens County. Wright and Phillip were married in Delaware, Ohio. Phillip testified that the family moved to Delaware, Ohio, in 2002. There was no indication at trial of where the family lived prior to 2002 or after 2002. There was no testimony or other evidence regarding the children‘s place of birth. At the time of trial Phillip was living in Newark, Ohio. Phillip testified that after he and Wright separated in February 2014, Wright may have lived in the Athens area, but by the time Wright had absconded to Texas he did not believe she was still living at that location. Wright testified that she left Ohio from her sister‘s house, but there was no indication where that house is located. Visitation exchanges took place in Zanesville, Ohio. Simply put, unlike the circumstances in Chintalapalli, there is not enough record evidence that connects Wright or the offenses to Athens County. While the temporary orders issued from the Athens County court are useful in
{50} For all the foregoing reasons, I would hold that the trial court erred in overruling Wright‘s Criminal Rule 29 motion for acquittal because the State did not provide sufficient evidence to establish that venue was proper in Athens County beyond a reasonable doubt. Accordingly, I would sustain Wright‘s first assignment of error. Additionally, because this resolution of Wright‘s first assignment of error would render her remaining assignment of error moot; I would decline to address it. See
It is ordered that the JUDGMENT IS AFFIRMED and that costs are assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Athens County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Abele, J.: Concurs in Judgment and Opinion.
Hoover, J.: Dissents with Dissenting Opinion.
For the Court,
BY: Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.