[Cite as State v. Williams, 2015-Ohio-3932.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

STATE OF OHIO                                         C.A. No.       14CA010641

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
JOHN L. WILLIAMS                                      COURT OF COMMON PLEAS
                                                      COUNTY OF LORAIN, OHIO
        Appellant                                     CASE No.   14CR089566

                                 DECISION AND JOURNAL ENTRY

Dated: September 28, 2015



        SCHAFER, Judge.

        {¶1}     Defendant-Appellant, John L. Williams, appeals from his convictions in the

Lorain County Court of Common Pleas. For the reasons set forth below, we reverse.

                                                 I.

        {¶2}     John L. Williams was indicted by a Lorain County Grand Jury with two counts of

rape in violation of R.C. 2907.02(A)(1)(b), a first degree felony. Mr. Williams pled not guilty

and filed a motion to dismiss the indictment for lack of venue. The trial court held a hearing on

the matter and summarily denied Mr. Williams’ motion. The case then proceeded to a two-day

jury trial.

        {¶3}     The testimony at trial established that in February of 2014, John L. Williams, age

47, met 11-year-old A.S. on a social media website. The two sent messages to each other online

and talked on the phone. That same day, A.S. called Mr. Williams and asked if he wanted to

“chill.” He said yes and the two made plans to meet. That afternoon, Mr. Williams met A.S. at a
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gas station near her home in Lorain County. Mr. Williams then drove A.S. to a motel located in

Cuyahoga County where they engaged in sexual intercourse twice. Mr. Williams later drove

A.S. to a hotel in Cleveland and dropped her off there. A.S. then called her aunt to pick her up

and take her home.

          {¶4}   At the conclusion of the State’s case-in-chief, Mr. Williams renewed his objection

concerning lack of venue and made a Crim.R. 29 motion for acquittal.                The trial court

respectively overruled and denied Mr. Williams’ objection and motion. The defense rested

without calling any witnesses.

          {¶5}   On July 25, 2014, a jury found Mr. Williams guilty of both counts in the

indictment. The trial court sentenced Mr. Williams to serve 10 years to life in prison on each

count and ordered the sentences to be served consecutively. The trial court also labeled Mr.

Williams as a Tier III sexual offender.

          {¶6}   Mr. Williams now appeals and raises six assignments of error for this Court’s

review.

                                                 II.

                                   ASSIGNMENT OF ERROR I

          THE TRIAL COURT ERRED IN CONVICTING APPELLANT OF ALLEGED
          OFFENSES THAT WERE COMMITTED OUTSIDE THE COUNTY WHERE
          THE TRIAL WAS HELD.

          {¶7}   In his first assignment of error, Mr. Williams argues that the trial court erred in

overruling his motion for acquittal under Crim.R. 29 because the State failed to present sufficient

evidence establishing venue for the two rape charges. Specifically, Mr. Williams contends that

because he was tried and convicted in Lorain County for offenses that were committed in

Cuyahoga County, his rape convictions must be vacated. We agree.
                                                3


       {¶8}    Under Crim.R. 29(A), a defendant is entitled to acquittal on a charge against him

“if the evidence is insufficient to sustain a conviction * * *.” Whether a conviction is supported

by sufficient evidence is a question of law that this Court reviews de novo. State v. Thompkins,

78 Ohio St.3d 380, 386 (1997); State v. West, 9th Dist. Lorain No. 04CA008554, 2005–Ohio–

990, ¶ 33. This Court must determine whether, viewing the evidence in a light most favorable to

the prosecution, it would have convinced an average juror of Mr. Williams’ guilt beyond a

reasonable doubt. State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.

       {¶9}    Venue is proper in any county where the offense, or any element of the offense,

was committed. R.C. 2901.12(A). While venue is not a material element of an offense, the State

must prove venue beyond a reasonable doubt unless it is waived by the defendant. State v.

Headley, 6 Ohio St.3d 475, 477 (1983), citing State v. Draggo, 65 Ohio St.2d 88, 90 (1981).

“Express evidence establishing venue is not necessary as long as the facts and circumstances of

the case show beyond a reasonable doubt that the crime was committed in the county and state

named in the indictment.” State v. Simpson, 9th Dist. Summit No. 21475, 2004-Ohio-602, ¶ 72,

citing State v. Dickerson, 77 Ohio St. 34 (1907), paragraph one of the syllabus; Headley at 477.

       {¶10} When the parties addressed this matter in the trial court, the State relied on R.C.

2901.12(C) and (H) in arguing that venue was proper in Lorain County. R.C. 2901.12(C)

provides, in relevant part, that “[w]hen the offense involved the * * * unlawful taking or enticing

of another, the offender may be tried in any jurisdiction from which or into which * * * the

victim was taken * * * or enticed.” However, it appears that the State abandoned its theory that

venue was proper under subsection (C), as the State did not request the trial court to instruct the

jury on that subsection, and the only reference to that subsection within its appellate brief is a
                                                 4


quote of the subsection with no analysis as to whether subsection (C) applies to the facts of this

case.

        {¶11} With respect to R.C. 2901.12(H), that subsection provides, in part:

        When an offender, as part of a course of criminal conduct, commits offenses in
        different jurisdictions, the offender may be tried for all of those offenses in any
        jurisdiction in which one of those offenses or any element of one of those offenses
        occurred. Without limitation on the evidence that may be used to establish the
        course of criminal conduct, any of the following is prima-facie evidence of a
        course of criminal conduct:

        (1) The offenses involved the same victim, or victims of the same type or from
            the same group.

        (2) The offenses were committed by the offender in the offender's same
            employment, or capacity, or relationship to another.

        (3) The offenses were committed as part of the same transaction or chain of
            events, or in furtherance of the same purpose or objective.

        (4) The offenses were committed in furtherance of the same conspiracy.

        (5) The offenses involved the same or a similar modus operandi.

        (6) The offenses were committed along the offender's line of travel in this state,
            regardless of the offender's point of origin or destination.

(Emphasis added.) The State contends that Mr. Williams’ offenses were committed as part of the

same transaction or chain of events, or in furtherance of the same purpose or objective under

R.C. 2901.12(H)(3). Specifically, the State argues that Mr. Williams’ conduct of picking up A.S.

in Lorain County and driving her to Cuyahoga County to have sexual intercourse constituted a

continuous course of conduct that allows him to be both indicted and tried in either Lorain or

Cuyahoga County. But, a plain reading of R.C. 2901.12(H) forecloses such a view.

        {¶12} It is well-established that if the language of a statute is plain and unambiguous,

there is no need for a court to apply further rules of statutory interpretation. State v. Siferd, 151

Ohio App.3d 103, 2002–Ohio–6801, ¶ 33 (3d Dist.). Words and phrases must be read in context
                                                5


and given their usual, normal, and customary meanings. R.C. 1.42; Proctor v. Kardassilaris, 115

Ohio St.3d 71, 2007–Ohio–4838, ¶ 12.

       {¶13} As stated above, the State misapprehends the proper scope of R.C. 2901.12(H). A

review of R.C. 2901.12(H), particularly the language that a defendant “may be tried for all of

those offenses” in any county in which an element of any of the offenses occurred, leads us to

conclude that unindicted offenses cannot serve as a basis for venue under the statute. As such,

we are restrained, by the plain terms of R.C. 2901.12(H), to only considering the offenses that

are charged in a criminal matter. Accordingly, although Williams may have engaged in criminal

activity in Lorain County,1 we may not consider any such uncharged conduct when deciding

whether venue exists in this matter. See State v. Hatfield, 4th Dist. Athens No. 1413, 1990 WL

54884, * 7 (Apr. 19, 1990) (“There is no provision in R.C. 2901.12(H) that allows a trial court to

assert venue where the defendant is being tried only on one offense, for which venue cannot be

proven under R.C. 2901.12(A), by alluding to criminal conduct that remains uncharged,

regardless of its similar nature or connection to the offense with which the defendant is

charged.”). Here, Mr. Williams was charged with two counts of rape in violation of R.C.

2907.02(A)(1)(b), which proscribes “engag[ing] in sexual conduct with another [when] * * *

[t]he other person is less than thirteen years of age, whether or not the offender knows the age of

the other person.” The elements of this offense are only satisfied when a person engages in

sexual conduct. According to the testimony elicited at trial, Mr. Williams had vaginal intercourse


       1
          The result of this matter could very well have been different had Mr. Williams been
indicted for his activities in Lorain County. For instance, his action of picking up a child in
Lorain County and driving her to a motel in Cuyahoga County could produce criminal liability
for a variety of offenses, including kidnapping, R.C. 2905.01(A)(2), criminal child enticement,
R.C. 2905.05(B), and interference with custody, R.C. 2919.23(A)(1), (B). Absent some other
charge arising from Mr. Williams’ conduct in Lorain County, we are unable to find that the
venue statute is satisfied.
                                                 6


with 11-year-old A.S. on two different occasions while at a motel in Cuyahoga County, so the

elements of the charged offenses in this case were only satisfied there. There is no evidence in

the record showing or suggesting that Mr. Williams engaged in any sexual conduct with A.S.

either in Lorain County or while in transit to Cuyahoga County, which is fatal to the State’s

argument. The mere fact that A.S. was picked up in Lorain County is immaterial to the elements

outlined in R.C. 2907.02(A)(1)(b).

       {¶14} The State cites to three cases within its brief in support of the proposition that

Lorain County was the proper venue to try Mr. Williams simply by virtue of him picking up a

child and transporting her across county lines to have sexual intercourse. However, those cases

are all distinguishable from the present case.

       {¶15} For example, in State v. Rhodes, 8th Dist. Cuyahoga No. 42404, 1980 WL 355523

(Dec. 11, 1980), the defendant broke into a home in Cuyahoga County and proceeded to

handcuff the victim, steal money and items from the home, and abduct the victim at gunpoint.

When the victim attempted to escape, the defendant hit the victim twice on the head with his gun

and shot him in the leg. The defendant then placed the victim into his vehicle and drove to a

house located in Lake County. There, the defendant handcuffed the victim to a tree in a wooded

area behind the house and raped the victim. The defendant was indicted, tried, and convicted in

Cuyahoga County on two counts of felonious assault, one count of aggravated burglary, and one

count of rape. The Eighth District Court of Appeals rejected the defendant’s challenge to the

rape conviction based upon venue because the “transporting and confinement of the victim [from

Cuyahoga County to Lake County] were acts in furtherance of one of the necessary elements

through which the rape was to be accomplished in Lake County.” Id. at * 2.
                                               7


       {¶16} This matter implicates an entirely different factual scenario. Unlike the defendant

in Rhodes, Mr. Williams did not commit any of the elements of rape under R.C.

2907.02(A)(1)(b), or any other charged criminal conduct, in Lorain County. Therefore, the

State’s reliance upon Rhodes is misplaced. The State’s other authority is equally inapplicable.

See State v. Meridy, 12th Dist. Clermont No. CA2003-11-091, 2005-Ohio-241 (determining

venue to be proper in Clermont County where defendant was charged and convicted of

trafficking drugs in Hamilton County, but planned and agreed to the sale during telephone

conversations in Clermont County); State v. Forster, 2d Dist. Greene No. 1133, 1980 WL

352395 (Nov. 6, 1980) (concluding venue was proper in Greene County where defendant was

convicted of contributing to the unruliness of a minor in violation of former R.C. 2151.41 and

one of the elements of the offense was committed in Greene County).

       {¶17} Accordingly, Mr. Williams’ first assignment of error is sustained.

                                ASSIGNMENT OF ERROR II

       APPELLANT’S CONVICTIONS MUST BE VACATED BECAUSE THE
       GRAND JURY LACKED JURISDICTION TO INDICT APPELLANT FOR
       OFFENSES COMMITTED OUTSIDE OF THE COUNTY WHERE THE
       GRAND JURY WAS IMPANELED AND SWORN.


                               ASSIGNMENT OF ERROR III

       THE TRIAL COURT COMMITTED PREJUDICIAL ERROR AND VIOLATED
       APPELLANT’S RIGHTS UNDER THE SIXTH AMENDMENT TO THE
       CONSTITUTION OF THE UNITED STATES AND ARTICLE I, SECTION 10,
       OF THE CONSTITUTION OF OHIO, BY INTERFERING WITH AND
       LIMITING DEFENSE COUNSEL’S CROSS-EXAMINATION OF THE
       INVESTIGATING OFFICER.
                                                 8


                                 ASSIGNMENT OF ERROR IV

       THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY REFUSING
       TO GIVE AN INSTRUCTION OF THE LESSER INCLUDED OFFENSE OF
       GROSS SEXUAL IMPOSITION.

                                 ASSIGNMENT OF ERROR V

       APPELLANT’S CONVICTION IS AGAINST THE MANIFEST WEIGHT OF
       THE EVIDENCE.

                                 ASSIGNMENT OF ERROR VI

       THE TRIAL COURT ABUSED ITS DISCRETION AND DENIED
       APPELLANT HIS CONSTITUTIONAL RIGHTS TO COUNSEL AND TO A
       JURY TRIAL BY BARRING DEFENSE FROM COMMENTING ON THE
       CREDIBILITY OF THE ALLEGED VICTIM DURING CLOSING
       ARGUMENT.

       {¶18} Our resolution of Mr. Williams’ first assignment of error renders his remaining

assignments of error moot and we decline to address them. See App.R. 12(A)(1)(c).

                                                III.

       {¶19} Mr. Williams’ first assignment of error is sustained. The judgment of the Lorain

County Court of Common Pleas is reversed and this matter is remanded for further proceedings

consistent with this opinion.

                                                                              Judgment reversed
                                                                            and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.
                                                9


       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                    JULIE A. SCHAFER
                                                    FOR THE COURT



HENSAL, P. J.
MOORE, J.
CONCUR.


APPEARANCES:

JONATHAN GARVER, Attorney at Law, for Appellant.

DENNIS P. WILL Prosecuting Attorney, and MARY R. SLANCZKA, Assistant Prosecuting
Attorney, for Appellee.
