[Cite as State v. Gonzalez, 188 Ohio App.3d 121, 2010-Ohio-982.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               UNION COUNTY




THE STATE OF OHIO,

         APPELLEE,                                                 CASE NO. 14-09-09

         v.

GONZALEZ,                                                          OPINION

         APPELLANT.




                       Appeal from Marysville Municipal Court
                            Trial Court No. 9 CRB 1314

                                     Judgment Reversed

                            Date of Decision: March 15, 2010




APPEARANCES:

        Victoria Stone-Moledor, for appellee.

        Alison Boggs, for appellant.


        WILLAMOWSKI, Presiding Judge.
Case No. 14-09-09


       {¶1} This appeal is brought by defendant-appellant, Hector P. Gonzalez,

from the judgment of the Marysville Municipal Court finding him guilty of sexual

imposition. Although this appeal has been placed on the accelerated calendar, this

court elects to issue a full opinion pursuant to Loc.R. 12(5). For the reasons set

forth below, the judgment is reversed.

       {¶2} On November 25, 2008, a complaint was filed with the trial court

alleging that Gonzalez had committed the offense of sexual imposition in violation

of R.C. 2907.06(A)(4), a misdemeanor of the third degree. Gonzalez entered a

not-guilty plea on December 9, 2008. A bench trial was held on April 24, 2009.

At the conclusion of the trial, Gonzalez was found guilty and immediately

sentenced to 60 days in jail with service to begin immediately. Gonzalez was also

ordered to pay a $500 fine and court costs. Finally, Gonzalez was placed on

community control for three years. On that same day, the trial court issued a

commitment for fine requiring him to be jailed immediately until the fine was

paid, secured to be paid, or otherwise discharged.

       {¶3} On April 27, 2009, Gonzalez was returned to the trial court for

resentencing. The trial court imposed exactly the same sentence, but also advised

Gonzalez of his duty to register as a Tier I offender. On April 30, 2009, Gonzalez

filed this appeal and requested a stay of further execution of sentence. This court




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granted the stay on May 22, 2009. Gonzalez raises the following assignments of

error.

                              First Assignment of Error

              There was insufficient evidence for the trial court to find
         [Gonzalez] guilty of sexual imposition.

                             Second Assignment of Error

               The trial court’s decision was against the manifest weight of
         the evidence.

                              Third Assignment of Error

                The trial court’s policy of increasing [Gonzalez’s] jail
         sentence through the commitment paperwork for the non-payment
         of fines violated [Gonzalez’s] due process rights and is a violation
         of [R.C. 2947.14].

                             Fourth Assignment of Error

               The trial court erred when it overruled [Gonzalez’s] Criminal
         Rule 29 motion regarding the lack of evidence and the failure to
         prove venue.

The assignments of error will be considered out of order.

         {¶4} Gonzalez claims in the fourth assignment of error that the trial court

erred in denying his Crim.R. 29 motion after the state failed to prove venue

beyond a reasonable doubt. “Venue is not a material element of any crime but,

unless waived, is a fact that must be proven at trial beyond a reasonable doubt.”

State v. Barr, 158 Ohio App.3d 86, 2004-Ohio-3900, 814 N.E.2d 79, ¶14.




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Case No. 14-09-09


              The Ohio Constitution establishes the right of the accused to
       have a “trial by an impartial jury of the county in which the offense
       is alleged to have been committed.” Section 10, Article I, Ohio
       Constitution. R.C. 2901.12 guarantees that right by requiring that a
       criminal trial shall be held in a court with subject matter jurisdiction
       in the “territory of which the offense or any element thereof was
       committed.” Crim.R. 18 provides that the venue of a case shall be
       that as set by law.

              Therefore, unless the prosecution proves beyond a reasonable
       doubt that the crime alleged was committed in the county where the
       trial was held or the defendant waives this right, the defendant
       cannot be convicted. State v. Headley (1983), 6 Ohio St.3d 475,
       477, 6 OBR 526, 528, 453 N.E.2d 716, 718-19; State v. Draggo
       (1981), 65 Ohio St.2d 88, 90, 19 O.O.3d 294, 295, 418 N.E.2d
       1343, 1345; and State v. Nevius (1947), 147 Ohio St. 263, 34 O.O.
       210, 71 N.E.2d 258, paragraph three of the syllabus. Ideally, the
       prosecutor will directly establish venue. However, venue need not
       be proven in express terms. The Supreme Court of Ohio has
       permitted venue to be established by the totality of the facts and
       circumstances of the case. State v. Headley, supra; State v. Gribble
       (1970), 24 Ohio St.2d 85, 889-90, 53 O.O.2d 222, 224, 263 N.E.2d
       904, 906-907; and State v. Dickerson (1907), 77 Ohio St. 34, 82
       N.E. 969, paragraph one of the syllabus. The trial court has broad
       discretion to determine the facts which would establish venue.
       Therefore, the court’s decision should not be overturned on appeal
       unless it is contrary to the manifest weight of the evidence. State v.
       Giles (1974), 68 O.O.2d 142, 322 N.E.2d 362.

Toledo v. Taberner (1989), 61 Ohio App.3d 791, 793, 573 N.E.2d 1173.

      {¶5} Here the issue of venue was raised by Gonzalez at trial on a Crim.R.

29 motion. The state’s response was that it believed that the victim had testified

that the offense occurred in Richwood. The trial court overruled the motion based

upon his belief that the testimony of the victim was that the offense occurred in

Union County. However, a review of the record reveals that this testimony did


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Case No. 14-09-09


not occur. The only question asked about where the offense occurred came from

the state, when it asked the victim what the address of the house was. The victim

responded that she did not know. No other witness was asked about where the

offense occurred or even for any identifying landmarks from which the trial court

could reasonably discern where the offense occurred. The only evidence before

the trial court was that the offense occurred at the home of Gonzalez. However,

no evidence was presented as to where this house was located.1 Although the

state presented the testimony of multiple witnesses who would have knowledge of

the location of the house, the state failed to ask them where the incident occurred

and whether this location was in Union County. This court also notes that the

state presented no argument on this issue in its brief, thus apparently conceding

Gonzalez’s assignment of error. It was not until oral argument that the state

addressed the issue, which was that the investigating officer’s jurisdiction was

within Union County. Again, this information was not presented at trial, but is

just something of which the state asks us to take judicial notice. This court notes

that the trial court did not take judicial notice of this fact. Thus, this court would

be the one determining an essential fact of the case, not the trial court.

        {¶6} Ohio courts, including this court, have long recognized that legal

issues that are not raised at the trial court may not be raised for the first time on


1
    Even though appellant testified himself, no one asked him for his address, whether he lived in
Richwood, or even whether he lived in Union County.


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Case No. 14-09-09


appeal. State v. Childs (1968), 14 Ohio St.2d 56, 236 N.E.2d 545; State v. Awan

(1986), 22 Ohio St.3d 120, 489 N.E.2d 277; Lillie v. Meachem, 3d Dist. No. 1-09-

09, 2009-Ohio-4934, State v. Pilgrim, 184 Ohio App.3d 675, 2009-Ohio-5357.2

         {¶7} In this case, Gonzalez raised the state’s failure to prove venue

beyond a reasonable doubt in a Crim.R. 29 motion. The state presented its

argument as to why the evidence was sufficient, but this argument was not

supported by the evidence. Now the state wishes us to take judicial notice that the

jurisdiction of the investigating officer was within the jurisdiction of the trial

court. Additionally, we would need to presume that the officer was acting within

his jurisdiction because no testimony was presented on this issue. Judicial notice

may be taken of facts that are capable of accurate and ready determination by

resort to sources whose accuracy cannot reasonably be questioned. Evid.R. 201.

However, the Ohio Supreme Court has held that although venue need not be

proven in express terms, it must be clear from the evidence that no other inference

can reasonably be drawn by the finder of fact than the offense occurred within the

jurisdiction of the court. Dickerson, 77 Ohio St. at 56 (holding that venue was

proven indirectly when the location of the body was provided in testimony, a

location as identified in testimony could be found in the county, and the county


2
  Generally, the use of this principle in criminal cases has been to prevent a defendant from changing his
theory of the case on appeal from that presented to the trial court. However, an appellate court must apply
the same legal standards to the state as would be applied to a defendant. It is not the task of this court to
save the state from its own mistakes.


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Case No. 14-09-09


coroner testified that he was the coroner for that county). The Ohio Supreme

Court noted that appellate courts should be careful not to encourage lax methods

of establishing necessary facts. Id.; see also State v. Burkhalter, 6th Dist. No. L-

05-1111, 2006-Ohio-1623. In Burkhalter, the Sixth District Court of Appeals

held that a trial court may take judicial notice of jurisdiction when the evidence

presented leads to the conclusion that the offense must have occurred within the

jurisdiction of the trial court. Id. at ¶18-19. This case is distinguishable because

in Burkhalter, the officer testified as to the road and direction of travel of the

defendant and his own location when he clocked the defendant’s vehicle. He

failed to testify that this location was within his jurisdiction. By looking at a map,

the trial court was able to determine that defendant’s vehicle had to be within the

officer’s jurisdiction when he was speeding. Here, there is no evidence as to

where the offense occurred or that the location was within the county. This is not

sufficient for a determination of venue beyond a reasonable doubt.

       {¶8} Additionally, this argument was first presented by the state on

appeal at oral argument. Arguments presented for the first time on appeal will not

be addressed by the appellate court. See Awan, 22 Ohio St.3d 120. Thus, the trial

court should have granted Gonzalez’s Crim.R. 29 motion. The fourth assignment

of error is sustained.




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Case No. 14-09-09


       {¶9} Having sustained the fourth assignment of error, we hold that the

judgment of conviction cannot stand.      It is mandatory that venue be proven

beyond a reasonable doubt before a conviction can be sustained. Dickerson, 77

Ohio St. 34. Since venue was not proven, the judgment of conviction must be

reversed and the defendant dismissed. Having reversed the conviction, we find

that the first three assignments of error addressing the sufficiency and the

manifest weight of the evidence and the sentence are moot and need not be

addressed by this court.

       {¶10} For the reasons set forth above, the judgment of the Marysville

Municipal Court is reversed, and the defendant is dismissed.

                                                               Judgment reversed.

       SHAW and PRESTON, JJ., concur.




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