[Cite as State v. Nelms, 2014-Ohio-3316.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                :       JUDGES:
                                             :       Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                   :       Hon. Sheila G. Farmer, J.
                                             :       Hon. John W. Wise, J.
-vs-                                         :
                                             :
DAVID NELMS                                  :       Case No. 13 CAA 07 0055
                                             :
        Defendant-Appellant                  :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 12CRI090362




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    July 28, 2014




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

KYLE ROHRER                                          WILLIAM T. CRAMER
140 North Sandusky Street                            470 Olde Worthington Road
3rd Floor                                            Suite 200
Delaware, OH 43015                                   Westerville, OH 43082
Delaware County, Case No. 13 CAA 07 0055                                               2

Farmer, J.

       {¶1}   On September 28, 2012, the Delaware County Grand Jury indicted

appellant, David Nelms, on one count of engaging in a pattern of corrupt activity in

violation of R.C. 2923.32, one count of trafficking in persons in violation of R.C.

2905.32, one count of trafficking in heroin in violation of R.C. 2925.03, one count of

possession of heroin in violation of R.C. 2925.11, five counts of compelling prostitution

in violation of R.C. 2907.21, and eight counts of promoting prostitution in violation of

R.C. 2907.22.     Fourteen of the counts included a human trafficking specification

pursuant to R.C. 2941.1422.

       {¶2}   On February 21, 2013, appellant filed a motion to dismiss for lack of

proper venue, claiming all but one of the alleged offenses did not occur in Delaware

County. A hearing was held on March 15, 2013. By judgment entry filed March 19,

2013, the trial court denied the motion.

       {¶3}   On June 11, 2013, appellant pled no contest to the engaging in a pattern

of corrupt activity and the possession of heroin counts. The remaining counts, including

the specifications, were dismissed. By judgment entry filed June 12, 2013, the trial

court found appellant guilty.   By judgment entry filed June 25, 2013, the trial court

sentenced appellant to an aggregate term of twelve years in prison.

       {¶4}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                            I

       {¶5}   "THE DELAWARE COUNTY COURT OF COMMON PLEAS HAD NO

SUBJECT MATTER JURISDICTION OVER THIS CASE BECAUSE THE DELAWARE
Delaware County, Case No. 13 CAA 07 0055                                               3


COUNTY GRAND JURY HAD NO AUTHORITY TO RETURN AN INDICTMENT FOR

CRIMES COMMITTED IN FRANKLIN COUNTY."

                                            I

      {¶6}   Appellant claims the trial court lacked subject matter jurisdiction as the

crimes alleged were committed in Franklin County, not Delaware County. We disagree.

      {¶7}   On February 21, 2013, appellant filed a motion to dismiss for lack of

proper venue, claiming the crimes were not committed in Delaware County and seeking

a change of venue. Appellant argued with the exception of a single count, the offenses

occurred in Franklin County, and the facts do not support a "course of criminal conduct"

theory for establishing venue under R.C. 2901.12(H) which states the following:



             (H) 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.
Delaware County, Case No. 13 CAA 07 0055                                               4


             (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.



      {¶8}   The state argues Count 1, engaging in a pattern of corrupt activity in

violation of R.C. 2923.32, has already been reviewed in light of the venue issue. As

explained by this court in State v Yates, 5th Dist. Licking No. 2009 CA 0059, 2009-Ohio-

6622, ¶ 51-55:



             Appellant was convicted of one count of Engaging in a Pattern of

      Corrupt Activity, one count of Theft, one count of Possession of Criminal

      Tools, and one count of Forgery. Pursuant to R.C. 2901.12(H), if these

      offenses constitute a course of criminal conduct, then venue lies for all

      those offenses in any jurisdiction in which Appellant committed any one

      offense or any element thereof. State v. Giffin (1991), 62 Ohio App.3d

      396, 399, 575 N.E.2d 887.

             In State v. Giffin, the Tenth District Court of Appeals held that a

      prosecution for engaging in a pattern of corrupt activity in violation of R.C.

      2923.32(A)(1) is properly venued in any county in which a portion of the
Delaware County, Case No. 13 CAA 07 0055                                           5


     corrupt activity occurred or in which an organization formed for the

     purpose of engaging in corrupt activity is based. See also, State v. Haddix

     (1994), 93 Ohio App.3d 470, 638 N.E.2d 1096.

            The defendant in Giffin, supra, was convicted of aggravated

     burglary, aggravated robbery, theft, and engaging in a pattern of corrupt

     activity based upon his activities in a burglary ring that conducted

     burglaries in Fairfield, Pickaway, and Pike Counties. None of the offenses

     were committed in Franklin County, but the defendant was tried in Franklin

     County on those charges.

            The evidence from the trial revealed that the hub of the burglary

     ring was located in Franklin County. In finding that venue was proper in

     Franklin County, although the defendant was not directly involved in the

     Franklin County activity, the Tenth District stated:

            "Consequently, if at least one element of one of the offenses

     making up the course of criminal conduct was committed in Franklin

     County, defendant's trial was properly venued in that jurisdiction. The

     elements of a crime are the constituent parts of an offense which must be

     proved by the prosecution to sustain a conviction. Elements necessary to

     constitute a crime must be gathered wholly from the statute and not

     aliunde. State v. Draggo (1981), 65 Ohio St.2d 88, 91, 19 O.O.3d 294,

     295, 418 N.E.2d 1343, 1346.["]
Delaware County, Case No. 13 CAA 07 0055                                                6


      {¶9}   Appellant entered no contest pleas to one count of engaging in a pattern

of corrupt activity and one count of possession of heroin. Based upon the sufficiency to

establish proper venue, the remaining counts, as a part of appellant's criminal

enterprise, vests the jurisdiction of Delaware County.     In support of this course of

criminal conduct theory, the state cited to fifteen incidents wherein hotels were rented

with appellant's online travel accounts for the purpose of prostitution. March 15, 2013 T.

at 5-6; June 11, 2013 T. at 16-17. The hotels were located in Delaware County. Id.

For each of these, although appellant managed his prostitution enterprise from Franklin

County, his "employees" traveled to Delaware County and then returned to Franklin

County to pay appellant. March 15, 2013 T. at 5-6.

      {¶10} Pursuant to R.C. Chapter 2939 and R.C. 2901.12(H), we find the trial

court's venue and the grand jury's jurisdiction were proper in Delaware County.

      {¶11} The sole assignment of error is denied.
Delaware County, Case No. 13 CAA 07 0055                                       7


      {¶12} The judgment of the Court of Common Pleas of Delaware County, Ohio is

hereby affirmed.

By Farmer, J.

Hoffman, P.J. and

Wise, J. concur.




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