[Cite as State v. Hampton, 134 Ohio St.3d 447, 2012-Ohio-5688.]




            THE STATE OF OHIO, APPELLANT, v. HAMPTON, APPELLEE.
        [Cite as State v. Hampton, 134 Ohio St.3d 447, 2012-Ohio-5688.]
Criminal procedure—Venue—R.C. 2945.67(A)—Acquittal based on improper
        venue not appealable.
    (No. 2011-1473—Submitted May 22, 2012—Decided December 6, 2012.)
              APPEAL from the Court of Appeals for Franklin County,
                          No. 10AP-1109, 2011-Ohio-3486.
                                ____________________
        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 R.C. 2945.67(A), which authorizes the state to appeal certain trial court
decisions either as a matter of right or by leave of court. In accordance with well-
established case law, the Tenth District Court of Appeals concluded here that the
order purporting to acquit Emmanuel Hampton for failure to establish venue was
a final verdict and could not be appealed. We affirm the court of appeals’
judgment.
        {¶ 2} The failure to establish venue in a criminal felony trial is a basis for
acquittal, and therefore, an acquittal order based on the failure to establish venue
is a final verdict, and the state may not appeal from the order.
                            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.
                               SUPREME COURT OF OHIO




         {¶ 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 R.C. 2945.67(A) and cannot be appealed by the state.” 2011-Ohio-
3486, ¶ 20.     It therefore denied the state’s motion for leave to appeal and
dismissed the state’s claimed appeal as a matter of right.




                                         2
                               January Term, 2012




       {¶ 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




                                        3
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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
R.C. 2945.67(A).
                                  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 R.C. 2945.67(A). The state then argues that the longstanding precedent
found in State ex rel. Yates v. Montgomery Cty. Court of Appeals, 32 Ohio St.3d
30, 512 N.E.2d 343 (1987), and its progeny should be overruled.
                    I. An Order of Acquittal Is Not Appealable
        {¶ 11} R.C. 2945.67(A) provides that the state “may appeal as a matter of
right any decision of a trial court in a criminal case * * * which decision grants a
motion to dismiss all or any part of an indictment, complaint, or information * * *
and may appeal by leave of the court to which the appeal is taken any other
decision, except the final verdict, of the trial court in a criminal case.”
        {¶ 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 R.C. 2945.67(A). In Keeton, a trial
judge directed judgments of acquittal on the basis that the chain of evidence was
not properly established and preserved. The state sought to appeal the ruling of
law underlying these judgments but did not appeal the judgments of acquittal.
The appellate court determined that it lacked jurisdiction to consider the state’s
appeal. On review, we held that a directed verdict of acquittal was a “final




                                           4
                                January Term, 2012




verdict” within the meaning of R.C. 2945.67(A) and that the state could not
appeal as a matter of right or by leave pursuant to R.C. 2945.67. Two years later,
in Yates, on petition for a writ of prohibition, we examined whether a judgment of
acquittal entered by a trial court pursuant to Crim.R. 29 was a final verdict within
the meaning of R.C. 2945.67. Following Keeton, we stated: “A judgment of
acquittal by the trial judge, based upon Crim.R. 29(C), is a final verdict within the
meaning of R.C. 2945.67(A) and is not appealable by the state as a matter of right
or by leave to appeal pursuant to that statute.” Yates, syllabus.
       {¶ 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 R.C. 2945.67(A).
       {¶ 15} The Tenth District Court of Appeals properly dismissed the state’s
appeal of an order of acquittal. “A court of record speaks only though 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 R.C. 2945.67(A), a judgment that is “not appealable by the state as a
matter of right or by leave to appeal pursuant to that statute.” Keeton, 18 Ohio
St.3d 379, 481 N.E.2d 629, paragraph two of the syllabus.




                                          5
                             SUPREME COURT OF OHIO




       {¶ 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 R.C. 2945.67(A). Yates, 32 Ohio St.3d 30, 512 N.E.2d 343.
        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.




                                         6
                                January Term, 2012




       {¶ 20} Under Article I, Section 10 and R.C. 2901.12, evidence of proper
venue must be presented in order to sustain a conviction for an offense. Headley
at 477, citing State v. Draggo, 65 Ohio St.2d 88, 90, 418 N.E.2d 1343 (1981);
State v. Gribble, 24 Ohio St.2d 85, 263 N.E.2d 904 (1970); Nevius, 147 Ohio St.
263, 71 N.E.2d 258.
       {¶ 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
accordingly on that count. Id. at 266-267, 287. This common-law concept of a
directed verdict has now been memorialized through Crim.R. 29.
       {¶ 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.




                                          7
                              SUPREME COURT OF OHIO




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., R.C. 2901.12(G), which allows for an
offense that was committed in any of two or more jurisdictions to be charged in
any of those jurisdictions.
       {¶ 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
Franklin County, as alleged in the indictment. Under Headley, Crim.R. 29, R.C.
2901.12, and the well-established common-law rule set forth in cases like Nevius,
a judgment of acquittal may be entered when the state has failed at trial to prove
the venue of the offense as alleged in the indictment.
                                    Conclusion
       {¶ 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 R.C.
2945.67(A), and therefore the state may not appeal as of right from the order.
Accordingly, the judgment of the appellate court denying the state’s motion for
leave to appeal and dismissing the appeal of right is affirmed.




                                         8
                                 January Term, 2012




                                                                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




                                           9
                              SUPREME COURT OF OHIO




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
into a DNA database. Almost three years later, Detective Kenneth Kirby of the
Columbus police received a “hit” from the Combined DNA Index System, which
matched the DNA sample with Hampton.              Police gathered additional DNA
samples from Hampton and Woods. These matched DNA recovered from the
cuff of the coat and DNA found in the blood on the coat.
       {¶ 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




                                          10
                                 January Term, 2012




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 R.C. 2945.67(A) and cannot be appealed by the state.” 2011-Ohio-
3486, ¶ 20.      It therefore denied the state’s motion for leave to appeal and
dismissed the state’s claimed appeal as a matter of right.
                                 Law and Analysis
                                  R.C. 2945.67(A)
          {¶ 34} R.C. 2945.67(A) provides that the state “may appeal as a matter of
right any decision of a trial court in a criminal case, * * * which decision grants a
motion to dismiss all or any part of an indictment, complaint, or information,
* * * and may appeal by leave of the court to which the appeal is taken any other
decision, except the final verdict, of the trial court in a criminal case.” (Emphasis
added.)
          {¶ 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 R.C. 2945.67(A) and therefore is not appealable by the state as a
matter of right or by leave to appeal. We recognized in Yates that the issue “is not
one of double jeopardy but rather whether a judgment of acquittal * * * is a final
verdict.” Id. at 32. Notably, both Keeton and Yates dealt with acquittals based on
insufficiency of the evidence attributed to the elements of the offenses and lack of
evidence of guilt.
          {¶ 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.




                                          11
                             SUPREME COURT OF OHIO




                                      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),
paragraph one of the syllabus; State ex rel. Elson v. Koehr, 856 S.W.2d 57, 59
(Mo.1993).
       {¶ 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




                                         12
                                 January Term, 2012




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, R.C. 2901.12
establishes a statutory requirement of venue in criminal cases, providing, “The
trial of a criminal case in this state shall be held in a court having jurisdiction of
the subject matter, and in the territory of which the offense or any element of the
offense was committed.”
       {¶ 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 R.C. 2901.12(K) “when it appears that a fair and impartial
trial cannot be held in the jurisdiction in which trial otherwise would be held, or
when it appears that trial should be held in another jurisdiction for the
convenience of the parties and in the interests of justice.”




                                          13
                             SUPREME COURT OF OHIO




                                      Remedy
       {¶ 43} R.C. 2945.08 sets forth the manner in which a trial court should
proceed when it is established that the offense occurred in a county different from
the one where the trial is being conducted: “If it appears, on the trial of a criminal
cause, that the offense was committed within the exclusive jurisdiction of another
county of this state, the court must direct the defendant to be committed to await a
warrant from the proper county for his arrest * * *.”
       {¶ 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
trial court directed a verdict and dismissed the indictment against Sven Johanson
for falsifying evidence based on a finding of improper venue. On petition for the
writ of certiorari, the Supreme Court held that Johanson waived any objection to
venue, and it vacated the dismissal and remanded to the trial court for retrial,
explaining that “[i]mproper venue is not an error that stems from the insufficiency
of evidence with respect to the guilt or innocence of the accused.” Noting that
venue is solely a matter of procedure, the court concluded:


       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.


Id. at 157-158.




                                         14
                                January Term, 2012




       {¶ 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 of acquittal, does not preclude retrial because venue is an element ‘more
procedural than substantive’ which does not go to culpability.” 6 Wayne R.
LaFave et al., Criminal Procedure, Section 25.3(a) (3d Ed.2012).
       {¶ 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




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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.
R.C. 2945.08; Crim.R. 18; see also United States v. Salinas, 373 F.3d 161, 170
(1st Cir. 2004); United States v. Brennan, 183 F.3d 139, 151 (2d Cir.1999).
        {¶ 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
R.C. 2945.08.       Notwithstanding the trial court’s mischaracterization of its
judgment as an acquittal, because the court did not resolve any factual elements of
the offenses charged in Hampton’s favor, the trial court’s order is not an acquittal.
In substance, the state has not appealed from a final verdict of acquittal, and it
therefore may appeal pursuant to R.C. 2945.67(A).
        {¶ 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.
                                __________________




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                               January Term, 2012




       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.
       Michael DeWine, Attorney General, Alexandra T. Schimmer, Solicitor
General, Lauren S. Kuley, Deputy Solicitor, pro hac vice, and Morgan A. Linn,
Assistant Attorney General, urging reversal for amicus curiae Ohio Attorney
General.
       Timothy Young, Ohio Public Defender, and Valerie Kunze, Assistant
State 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.
                           ______________________




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