[Cite as State v. Crawford, 2019-Ohio-273.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                  :   JUDGES:
                                                :
                                                :   Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                      :   Hon. William B. Hoffman, J.
                                                :   Hon. Patricia A. Delaney, J.
 -vs-                                           :
                                                :   Case No. 18CA79
                                                :
 BRIAN CRAWFORD                                 :
                                                :
                                                :
        Defendant-Appellant                     :   OPINION


CHARACTER OF PROCEEDING:                            Appeal from the Richland County Court
                                                    of Common Pleas, Case No. 2007-CR-
                                                    411



JUDGMENT:                                           AFFIRMED




DATE OF JUDGMENT ENTRY:                             January 22, 2019




APPEARANCES:

 For Plaintiff-Appellee:                            For Defendant-Appellant:

 GARY BISHOP                                        BRIAN CRAWFORD, PRO SE
 RICHLAND CO. PROSECUTOR                            Inmate 540-154
 JOSEPH C. SNYDER                                   Marion Correctional Institution
 38 South Park Street                               P.O. Box 57
 Mansfield, OH 44902                                Marion, OH 43301
Richland County, Case No. 18CA79                                                       2

Delaney, J.

       {¶1} Appellant Brian A. Crawford appeals from the August 28, 2018 “Judgment

Entry Overruling Motion to Partially Vacate Void Judgment” of the Richland County Court

of Common Pleas. Appellee is the state of Ohio.

                        FACTS AND PROCEDURAL HISTORY

       {¶2} A statement of the facts underlying appellant’s criminal convictions is not

necessary to our resolution of this appeal.

       {¶3} In 2007, appellant was charged by indictment with 8 counts of rape, 15

counts of sexual battery, and 20 counts of gross sexual imposition. The matter proceeded

to trial by jury and appellant was found guilty as charged. Appellant was sentenced to an

aggregate prison term of 40 years.

       {¶4} We confirmed appellant’s convictions and sentence in State v. Crawford,

5th Dist. Richland No. 07 CA 116, 2008-Ohio-6260, appeal not allowed, 121 Ohio St.3d

1442, 2009-Ohio-1638, 903 N.E.2d 1224.

       {¶5} In 2008, appellant filed a motion for post-conviction relief pursuant to R.C.

2953.21 and the trial court overruled the petition as untimely. We affirmed that decision

in State v. Crawford, 5th Dist. Richland No. 09-CA-16, 2009-Ohio-5176, appeal not

allowed, 124 Ohio St.3d 1418, 2009-Ohio-6816, 919 N.E.2d 216.

       {¶6} In 2009, appellant filed an application to reopen his direct appeal pursuant

to App.R. 26(B). We dismissed the application as untimely, and the Ohio Supreme Court
Richland County, Case No. 18CA79                                                          3

declined jurisdiction of an appeal from that decision. State v. Crawford, 123 Ohio St.3d

1474, 2009-Ohio-5704, 915 N.E.2d 1255.1

       {¶7} On August 6, 2018, appellant filed a motion asserting his convictions were

void due to lack of subject-matter jurisdiction. The trial court found the motion to be an

untimely petition for post-conviction relief, that the argument was barred by res judicata,

and that the argument failed on its merits.

       {¶8} Appellant now appeals from the trial court’s decision overruling his motion.

       {¶9} Appellant raises one assignment of error:

                               ASSIGNMENT OF ERROR

       {¶10} “THE TRIAL COURT COMMITTED REVERSIBLE AND PREJUDICIAL

ERROR IN DENYING APPELLANT’S MOTION TO VACATE PARTIALLY VOID

JUDGMENT.”

                                        ANALYSIS

       {¶11} Appellant argues the trial court should have granted his motion to vacate a

“partially void judgment.” We disagree.

       {¶12} Appellant’s specific issue is the indictment states each offense occurred in

Richland County, but the evidence established some of the conduct occurred in Crawford

County.    Appellant thus challenges the sufficiency of the indictment, arguing his

convictions are “void” because the trial court lacked “subject-matter jurisdiction” over the

Crawford County allegations. This argument is misplaced for a number of reasons.




1 As appellee points out, appellant’s second proposed assignment of error raised the
same argument he makes here: his convictions are void due to a “jurisdictional defect,”
to wit, appellee did not properly indict him upon offenses citing a continuing course of
conduct which occurred in Richland and Crawford Counties.
Richland County, Case No. 18CA79                                                            4


       {¶13} In the instant case, appellee’s bill of particulars filed October 31, 2007

describes appellant’s course of criminal conduct which began in Richland County, Ohio

and continued when the family moved to Crawford County, Ohio. Appellant was therefore

aware of the alleged venue of the offenses.

       {¶14} First, appellant failed to timely object to the alleged defects in the

indictment.   He complains that each count of the indictment referred only to Richland

County, although appellee’s evidence established some of the conduct occurred in

Crawford County. The indictment does not reference Crawford County. As we will

address infra, appellant therefore challenges appellee’s assertion of proper venue in the

indictment. The Ohio Supreme Court has held that “when a defendant fails to object to

an indictment that is defective because the indictment did not include an essential

element of the charged offense, a plain error analysis is appropriate.” State v. Colon, 119

Ohio St.3d 204, 2008-Ohio-3749, 893 N.E.2d 169, ¶ 7; see also, State v. Frazier, 73 Ohio

St.3d 323, 332, 652 N.E.2d 1000 (1995). Pursuant to Crim.R. 52(B), “plain errors or

defects affecting substantial rights may be noticed although they were not brought to the

attention of the court.” The Ohio Supreme Court has examined this argument and found

that there is no plain error if the state asserted the venue of the offenses in the bill of

particulars. Where the state has provided a detailed bill of particulars which sets out the

location of the offenses, there is no plain error as to any of these counts in the indictment.

State v. Jackson, 141 Ohio St.3d 171, 2014-Ohio-3707, 23 N.E.3d 1023, ¶ 138.

       {¶15} Thus, in addition to failing to challenge the indictment in a timely manner,

appellant has not demonstrated plain error and the trial court did not err in refusing to

vacate his convictions on the basis of sufficiency of the indictment.
Richland County, Case No. 18CA79                                                           5


       {¶16} Next, appellant’s argument fails because he is challenging the venue of the

trial court, not subject-matter jurisdiction. Appellant repeatedly states his convictions are

void because Richland County did not have “subject-matter jurisdiction” over his criminal

conduct in Crawford County. Venue and subject-matter jurisdiction are distinct legal

concepts. State v. Wilson, 5th Dist. Richland No. 14CA16, 2014-Ohio-3286, ¶ 14, citing

State v. Bobinchuck, 9th Dist. Summit No. 19536, 2000 WL 1287296, *1 (Sept. 13, 2000).

“‘Jurisdiction’ means the courts' statutory or constitutional power to adjudicate the case.”

(Internal quotations and citations omitted.) Id., citing Pratts v. Hurley, 102 Ohio St.3d 81,

2004–Ohio–1980, ¶ 11. It is only when the trial court lacks subject-matter jurisdiction that

its judgment is void. Id. at ¶ 12. “Because subject-matter jurisdiction goes to the power of

the court to adjudicate the merits of a case, it can never be waived and may be challenged

at any time.” Id. at ¶ 11.

       {¶17} In contrast, venue is not jurisdictional. State v. Andrews, 148 Ohio App.3d

92, 2002–Ohio–787, ¶ 20 (10th Dist.) (stating venue “is neither a jurisdictional nor a

material element of a criminal offense”). Although “venue is not an essential element of a

charged offense,” the state must prove venue beyond a reasonable doubt unless the

defendant waives it. State v. Wheat, 10th Dist No. 05AP–30, 2005–Ohio–6958, ¶ 10,

citing State v. Headley, 6 Ohio St.3d 475, 477, 453 N.E.2d 716 (1983). A defendant

“waives the right to challenge venue when the issue is raised for the first time on appeal.”

Id., citing State v. Loucks, 28 Ohio App.2d 77, 78, 274 N.E.2d 773 (4th Dist.1971); Crim.R.

12(C)(2) (providing that “defenses or objections based on defects in the indictment” must

be raised before trial). “Venue is neither a jurisdictional issue nor a material element of a

criminal offense.” State v. McCartney, 55 Ohio App.3d 170, 563 N.E.2d 350 (9th
Richland County, Case No. 18CA79                                                            6

Dist.1988), citing Loucks, supra. “Venue is a personal privilege. It is a fact which the state

must prove beyond a reasonable doubt unless waived by the accused.” McCartney,

supra, citing State v. Headley, 6 Ohio St.3d 475, 477, 453 N.E.2d 716 (1983).

       {¶18} Appellant’s legal argument that venue did not properly lie in Richland

County is misplaced. As noted supra, the bill of particulars describes appellant’s course

of criminal conduct, beginning in Richland County, Ohio and continuing upon the family’s

move to Crawford County, Ohio. Appellant was therefore aware of the alleged venue of

the offenses. Because appellant committed offenses in different jurisdictions as part of a

course of criminal conduct, venue lies for all the offenses in any jurisdiction in which he

committed one of the offenses or any element. R.C. 2901.12(A), (C), and (H); State v.

Fowler, 27 Ohio App.3d 149, 500 N.E.2d 390 (8th Dist.1985), paragraph four of the

syllabus; State v. Beuke, 38 Ohio St.3d 29, 36, 526 N.E.2d 274 (1988).

       {¶19} Finally, appellant’s venue argument is barred by the doctrine of res judicata.

Under the doctrine of res judicata, a final judgment of conviction bars the defendant who

was represented by counsel from raising and litigating in any proceeding, except an

appeal from that judgment, any defense or claimed lack of due process that the defendant

raised or could have raised at the trial which resulted in that judgment of conviction or on

appeal from that judgment. State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967).

Appellant’s argument here could have been raised in his direct appeal. Therefore, the trial

court properly denied appellant's motion on this basis.

       {¶20} We conclude the indictment in the instant case is not defective for failure to

properly assert venue because appellee provided a detailed bill of particulars noting that

appellant’s criminal conduct in Richland and Crawford Counties. Appellant waived any
Richland County, Case No. 18CA79                                                          7


issue as to venue by failing to make the argument until his “motion to vacate partially void

judgment” and there has been no plain error. The argument fails on the merits because

venue lies for all of appellant’s offenses in any jurisdiction in which he committed the

offenses or any element. Lastly, appellant’s argument in the instant appeal is res judicata.

       {¶21} We conclude the trial court properly overruled appellant’s motion and the

sole assignment of error is overruled.

                                      CONCLUSION

       {¶22} The sole assignment of error is overruled and the judgment of the Richland

County Court of Common Pleas is affirmed.

By: Delaney, J.,

Gwin, P.J. and

Hoffman, J., concur.
