[Cite as State v. Jones, 2020-Ohio-2884.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                            WARREN COUNTY




 STATE OF OHIO,                                   :

        Appellee,                                 :     CASE NO. CA2019-03-020

                                                  :            OPINION
     - vs -                                                     5/11/2020
                                                  :

 ANDREW JONES,                                    :

        Appellant.                                :




      CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                           Case No. 17CR33514


David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice
Drive, Lebanon, Ohio 45036, for appellee

Bryan Scott Hicks, P.O. Box 359, Lebanon, Ohio 45036, for appellant



        RINGLAND, J.

        {¶ 1} Appellant, Andrew Jones, appeals his conviction in the Warren County Court

of Common Pleas for illegal voting. For the reasons outlined below, we affirm.

        {¶ 2} Prior to September 2015, Jones and his wife ("Wife") jointly owned and

resided at a home located at 8633 Cheshire Court in Franklin, Ohio. In September 2015,

after divorce proceedings were initiated between the couple, Wife moved to 7103 Country
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Walk Drive in Franklin, Ohio. After moving to Country Walk Drive, Wife updated her address

with the post office to reflect that she had moved from Cheshire Court to Country Walk

Drive. In her address-change request, Wife included herself and the couple's children, but

did not include Jones. The couple's divorce was finalized in December 2015, and they sold

the home on Cheshire Court in May of 2016. The new owner, Mr. Lamkin, moved into the

Cheshire Court home on May 5, 2016.

      {¶ 3} On August 29, 2016, the Warren County Board of Elections ("Board of

Elections") received an application from Jones requesting an absentee voter's ballot for the

general election on November 8, 2016. In completing the application, Jones listed 8633

Cheshire Court as his home address, and requested the Board of Elections to send the

absentee ballot to a P.O. Box in Franklin, Ohio. Jones signed the application, declaring,

"under penalty of election falsification, [that he was] a qualified elector and that the

statements above [were] true to the best of [his] knowledge and belief."

      {¶ 4} Prior to Jones' submission of his absentee ballot application, the address

associated with his voter record had been changed to 7103 Country Walk Drive through the

National Change of Address system ("NCOA"). Such a change occurs automatically when

a person's address is updated with the U.S. Postal Service. Thus, upon receiving Jones'

application, the Board of Elections noticed the address Jones provided, 8633 Cheshire

Court, did not match the address listed in his voter record. Because Jones' address did not

match his voter record, the Board of Elections rejected his application and sent Jones a

standard problem letter on August 30, 2016. The problem letter notified Jones of the

address problem and detailed how he could remedy the situation. The Board of Elections

did not receive a response to the problem letter.

      {¶ 5} On or about September 7, 2016, Jones met with the Warren County Director

of Elections to discuss the rejection of his absentee ballot application. Specifically, Jones

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wanted the Board of Elections to change his address back to the Cheshire Court address,

as he did not authorize the change. At that time, the Director informed Jones that the

Director would not change his address back to the Cheshire Court address and indicated

that Jones was required to vote based on the location of his current address. In response,

Jones stated he would "take care of this some other time[.]"

       {¶ 6} On November 1, 2016, Jones returned to the Board of Elections office to cast

a provisional ballot and vote early. At that time, Jones completed a provisional ballot, and

provided his name, birthdate, the last four digits of his social security number, and his

current address. On the ballot, Jones indicated his current address was 8633 Cheshire

Court, Franklin, Ohio, which placed him in the 145th precinct in Warren County. Jones

signed the provisional ballot, affirming he understood that "knowingly providing false

information is a violation of the law and subjects [him] to criminal prosecution," and declaring

that the "above statements [were] true and correct to the best of [his] knowledge and belief."

Jones cast his ballot for the general election that day, including his vote on issues pertaining

specifically to the 145th precinct in Warren County.

       {¶ 7} Although Jones cast his ballot on November 1, 2016 at the Board of Elections

office, his vote was ultimately not counted. Specifically, through the Board of Elections'

audit process of provisional ballots, it was determined the address information provided by

Jones did not match his voter information. Due to the deviation, the Board of Directors sent

an acknowledgment notice to Jones at the Cheshire Court address, in an attempt to confirm

that Jones lived there. The notice was returned to the Board of Elections by the U.S. Post

Office, and indicated that Jones lived at 7104 Country Walk Drive, not at the Cheshire Court

address. In light of the returned notice, the Board of Elections rejected Jones' provisional

ballot before it was processed.

       {¶ 8} Thereafter, the Board of Elections held a meeting where its members voted

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to refer the matter to the Warren County Prosecutor's Office. After an investigation by the

Lebanon Police Department, Jones was indicted by the Warren County Grand Jury for one

count of illegal voting and one count of falsification. The matter proceeded to a jury trial at

the conclusion of which Jones was found guilty of both counts. The two counts merged for

sentencing purposes and the state elected to proceed in sentencing for the illegal voting

charge. After a hearing, the trial court sentenced Jones to 18 months in prison.

       {¶ 9} Jones timely appealed his illegal voting conviction, setting forth two

assignments of error for our review. For the ease of discussion, Jones' two assignments of

error will be discussed together.

       {¶ 10} Assignment of Error No. 1:

       {¶ 11} ANDREW JONES WAS A QUALIFIED ELECTOR.

       {¶ 12} Assignment of Error No. 2:

       {¶ 13} THE VERDICT WAS AGAINST THE SUFFICIENCY OF THE EVIDENCE.

       {¶ 14} In his assignments of error, Jones argues that his illegal voting conviction is

not supported by sufficient evidence because the state failed to prove that he was not a

qualified elector of Warren County and Precinct 145.

       {¶ 15} Whether the evidence presented at trial is legally sufficient to sustain a verdict

is a question of law. State v. Thompkins, 78 Ohio St. 3d 380, 386, 1997-Ohio-52; State v.

Grinstead, 194 Ohio App.3d 755, 2011-Ohio-3018, ¶ 10 (12th Dist.). When reviewing the

sufficiency of the evidence underlying a criminal conviction, an appellate court examines

the evidence in order to determine whether such evidence, if believed, would convince the

average mind of the defendant's guilt beyond a reasonable doubt. State v. Paul, 12th Dist.

Fayette No. CA2011-10-026, 2012-Ohio-3205, ¶ 9. Therefore, "[t]he relevant inquiry is

whether, after viewing the evidence in a light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime proven beyond a

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

       {¶ 16} Jones was convicted of illegal voting in violation of R.C. 3599.12(A)(1), which

provides that "[n]o person shall *** [v]ote or attempt to vote in any primary, special, or

general election in a precinct in which that person is not a legally qualified elector[.]" A

qualified elector is defined as:

              Every citizen of the United States who is of the age of eighteen
              years or over and who has been a resident of the state thirty
              days immediately preceding the election at which the citizen
              offers to vote, is a resident of the county and precinct in which
              the citizen offers to vote, and has been registered to vote for
              thirty days, has the qualifications of an elector and may vote at
              all elections in the precinct in which the citizen resides.

R.C. 3503.01(A).

       {¶ 17} At issue in the instant matter is whether Jones was a resident of Warren

County and Precinct 145, the county and precinct in which he attempted to vote. It is

undisputed that the state has "unquestioned power to impose reasonable residence

restrictions on the availability of the ballot." Kyser v. Board of Elections, 36 Ohio St. 2d 17,

19 (1973). In determining the residence of a person offering to vote, all registrars and

officials are governed by R.C. 3503.02. Relevant to this appeal, R.C. 3503.02 states the

following regarding a person's residency:

              (A) That place shall be considered the residence of a person in
              which the person's habitation is fixed and to which, whenever
              the person is absent, the person has the intention of returning.

              (B) A person shall not be considered to have lost the person's
              residence who leaves the person's home and goes into another
              state or county of this state, for temporary purposes only, with
              the intention of returning.

              (C) A person shall not be considered to have gained a
              residence in any county of this state into which the person
              comes for temporary purposes only, without the intention of
              making such county the permanent place of abode.

              ***


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               (I) If a person does not have a fixed place of habitation, but has
               a shelter or other location at which the person has been a
               consistent or regular inhabitant and to which the person has the
               intention of returning, that shelter or other location shall be
               deemed the person's residence for the purpose of registering to
               vote.

       {¶ 18} At trial, the state presented testimony from the Warren County Director of

Elections, Mr. Lamkin, Wife, and the officer with the Lebanon Police Department who

investigated the case. The Director of Elections testified that he oversees the day-to-day

operations of his office and manages the elections in Warren County. According to the

Director, the Board of Elections confirms all Warren County registrants' addresses when

they update or change their address. This is partly because a voter's precinct is determined

by his current address. According to the Director, an individual precinct can have its own

ballot or election issues and only individuals residing in the precinct are able to vote on

precinct-specific issues. Thus, a person who moves outside the county or precinct cannot

vote in his old precinct or county. When a provisional ballot is cast, the Board of Elections

verifies that the information on the ballot, including the voter's address, is accurate before

the vote can be counted. While a person is required to register to vote 30 days before the

upcoming election, he can vote in person at the Board of Elections office or at his polling

location if he fails to timely register.

       {¶ 19} The Director then described the interactions he and his office had with Jones

throughout 2016. The Director indicated Jones applied for an absentee ballot, which was

ultimately rejected because his listed address did not match the address identified in his

voter's record. Specifically, Jones listed Cheshire Court as his current address on his

application, which is in a different precinct than the Country Walk Drive address identified

in his voter's record. The Director indicated Jones did not update his address himself,

however, it was updated automatically through the NCOA system. At that point, the Board


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of Elections attempted to resolve the issue with Jones via a problem letter. Jones did not

respond to the letter, but later met with the Director to discuss the unauthorized change of

his address. During the meeting, Jones requested his address be returned to the Cheshire

Court address, which the Director declined to do. Instead, the Director explained to Jones

that he was required to vote based upon his current address. Jones ultimately returned to

the Board of Elections two months later and cast a provisional ballot using the Cheshire

Court address. During an audit process, the Board of Elections attempted to confirm that

Jones lived at Cheshire Court, but was unable to do so. As a result, Jones' ballot was

rejected and not counted.

      {¶ 20} Mr. Lamkin, the new owner of the home at 8633 Cheshire Court, testified that

he moved into the home on May 6, 2016, and that he had never met Jones. Lamkin further

testified that after he moved into the home on Cheshire Court, Jones never lived or stayed

with Lamkin, including during October or November 2016.

      {¶ 21} The jury also heard testimony from Wife, who testified that she and Jones sold

the home on Cheshire Court in May of 2016 and that the new owners moved in "within a

couple weeks" of the sale. Wife indicated Jones had never stayed with her at the Country

Walk address, nor had he lived in an area nearby. Wife testified she had not received any

change of address from Jones in October or November of 2016 and that, pursuant to the

terms of their divorce, Jones was required to provide such a change of address if he moved.

Wife further testified that she and Jones had two children, and that after the divorce, Jones

had scheduled visitation, including overnight visitation, with their son. Wife indicated her

son would visit with Jones at Jones' parents' house in Beavercreek, Ohio, which is located

in Greene County.

      {¶ 22} The state then presented testimony from Officer Spanel with the Lebanon

Police Department. The officer testified that after the Director of Elections forwarded the

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Jones' matter to the police department, the officer was assigned to investigate the case in

February 2017. As a part of that investigation, the officer interviewed Jones in June 2017.

A video of the interview was admitted into evidence and played for the jury during the

officer's testimony. During the interview, Jones began by informing the officer that the day

after he and the officer initially spoke, he went to the Greene County Library, "got a new

voter registration, and took care of the problem." Jones then presented the officer with

paperwork evidencing his recent voter registration in Greene County. During the interview,

Jones admitted that he was no longer living at the Cheshire Court address at the time of

the November 2016 election, and that he had not been living there for approximately five

months by the time of the election. Jones claimed he must have "misremembered" part of

his poll worker training as he incorrectly believed that if he voted a certain precinct's ballot

in the primary election, he could vote the same precinct's ballot in the general election

because the two elections are part of the same cycle.

       {¶ 23} Jones also told the officer that because of the divorce, he was uncertain if he

could provide enough evidence of where he was living. When the officer asked Jones when

he moved to the address in Greene County, which he used to register to vote, Jones

indicated that was his parents' address and that he wanted to "shield" their address as much

as possible. Jones also stated he was embarrassed to admit that he lives with his parents

because he had not had enough time "to recover" from the divorce. Jones further indicated

that the officer could send any paperwork relevant to his charges to his parents' address.

       {¶ 24} Jones then discussed the primary reason why he wanted "to vote the ballot[,]"

in Warren County, which related to casting a vote against the attorney who represented

Wife in their divorce proceedings. In 2016, that attorney was running in the Republican

primary election for domestic relations judge. Jones stated he switched political parties

solely to vote against the attorney, which Jones felt was an "important vote to make against

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her" and that he "wish[ed he] could have done more." Jones indicated that voting against

the attorney was one reason why he wanted to keep his address in Warren County.

       {¶ 25} In concluding the interview, Jones indicated he believed the Board of

Elections made a mistake in updating his address to Country Walk and felt he could not

correct it. The officer responded that the "hiccup" in this case is that Jones voted using the

Cheshire Court address when both he and the Board of Elections knew that he did not live

there. Jones responded that he misremembered his training from his "poll worker days,"

felt "handcuffed" by the rules, and felt he did not have enough time to change his address

and remain eligible to vote. As a result, he ultimately voted in Warren County "when he

probably should've voted in Greene County."

       {¶ 26} The jury also heard testimony from Jones at trial. During his testimony, Jones

indicated there was not a good answer to where he was living on November 1, 2016 and

that he did not have a stable address in October 2016. However, Jones confirmed he did

not stay at 8633 Cheshire Court in October 2016 nor did he live with Wife at Country Walk

Drive. While Jones could not recall where he spent "every single night in the month of

October," he testified he had stayed at least one night of the month at his parents' home in

Beavercreek and spent a weekend camping in Hamilton County. Jones would not admit

that he was not living in Warren County in October 2016. Rather, Jones believed that

because he was in Warren County jail on election day, he remained a resident of Warren

County.

       {¶ 27} Jones also testified that he went to the Board of Elections to discuss the

address problem, including that he did not reside at Country Walk as the Board of Elections

believed. In order to resolve the problem, Jones requested his address return to Cheshire

Court. Jones further stated that, although he did not have a fixed address, he would

frequently return to his parents' home, his storage unit in Warren County, Country Walk

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Drive to pick up his son, and his P.O. Box. He further indicated there were "other places

where [he] also [had] the intent to return," but did not disclose those locations. On cross-

examination Jones admitted that he had not stayed overnight at his storage unit or P.O.

Box, nor had he stayed overnight at the Country Walk address.

      {¶ 28} Jones argues the state failed to prove that his residence was no longer in

Warren County. In support of his argument, Jones claims the evidence at trial showed

Jones did not have a fixed address, as he would stay with his parents in Greene County,

went camping in Hamilton County, maintained a storage unit and P.O. box in Warren

County, and picked his child up from Country Walk Drive. Thus, Jones concludes that

although he did not have a fixed place of habitation, he "clearly had the intent to remain

connected to Warren County." In the alternative, Jones claims that because he was in

Warren County Jail on election day, he was residing in Warren County that day.

      {¶ 29} After considering the evidence presented at trial in a light most favorable to

the prosecution, we find the state presented sufficient evidence to prove that Jones' was

not a qualified elector of Warren County or Precinct 145 at the time he cast his provisional

ballot on November 1, 2016. That is, we find the state presented sufficient evidence that,

if believed, established Jones was not a resident of Warren County, and consequently

Precinct 145, at the time he attempted to vote.

      {¶ 30} At trial, the state presented evidence that on November 1, 2016, Jones did

not have a fixed place of habitation. Jones appears to concede this point in his brief. As a

result, Jones' residence for the purposes of registering to vote was deemed to be any "other

location at which [he] ha[d] been a consistent or regular inhabitant and to which [he had]

the intention of returning." R.C. 3503.02(I). While Jones argues he was not consistently

staying at any one place in November 2016, the testimony presented at trial revealed that

Jones had moved in with his parents in Greene County after leaving Cheshire Court and

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was consistently staying at their address. Specifically, the record reflects that Jones had

overnight visits with his child at his parents' home during October and November of 2016

and that he had not provided Wife with any other address, which he was obligated to do

pursuant to the terms of their divorce. Jones also used his parents' address to receive

documents from Officer Spanel and ultimately registered to vote in Greene County based

upon his parents' address in early 2017. Although Jones stated he was embarrassed to

admit he was living with his parents, this does not change that he was, in fact, residing with

them after his divorce. In contrast, there is no evidence in the record to suggest that Jones

was regularly staying in or maintaining a residence in Warren County in 2016. As such,

considering Jones' apparent residency in Greene County and lack of any residential

connection to Warren County, we find that the state presented sufficient evidence that

Jones was not a resident of Warren County, and consequently Precinct 145, at the time he

attempted to vote.

       {¶ 31} Jones argues his intent was "clearly" to return to Warren County and that he

had no intention of making Greene County his permanent place of abode. This appears to

be entirely based upon Jones' former residency at Cheshire Court. However, a person's

former status as a resident has no bearing on the determination of a person's current

residency. Kyser v. Board of Elections, 36 Ohio St. 2d 17 at 22. Rather, it is the present

intention which determines a person's residency status, i.e., his intention at the time of the

vote, and not his past intention some four months in the past, when he was living in a

stationary household in a certain place. Id. Here, the record is void of any efforts Jones

made to return to Warren County after moving from Cheshire Court.               While Jones

maintained his storage unit and P.O. Box in Warren County, these are unrelated to his

residency on November 1, 2016. As Jones admitted, he could not physically reside in his

P.O. Box and had never stayed at his storage unit. Moreover, based upon his conversations

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with the Board of Elections and Officer Spanel, Jones attempted to vote using the Cheshire

Court residency despite selling that home several months before the election and having

no intention of returning to that address. Jones cannot have residence in a place where he

has not lived for several months and no longer owns, and to which he presently has no

intention of returning. Id.

       {¶ 32} Furthermore, Jones did not provide at trial, to the Board of Elections, or Officer

Spanel, any address within Warren County where he consistently stayed and had an

intention of returning at the time he attempted to vote, and openly admitted he "probably

should have voted in Greene County." While Jones noted he was incarcerated in Warren

County on election day, that fact is irrelevant to his residency on November 1, 2016, the

day he cast his provisional ballot. As such, the record does not contain any evidence that

Jones resided in Warren County or Precinct 145, or maintained any intent to return to said

county or precinct, on November 1, 2016.

       {¶ 33} In light of the above, we find the state presented sufficient evidence to support

Jones' conviction for illegal voting. Specifically, we find that at the time of the vote, Jones

did not have a fixed place of habitation in Warren County and was not regularly staying in

Warren County, nor did he have an intention to return to Warren County. Therefore,

because Jones was not a resident of Warren County and Precinct 145, the county and

precinct in which he attempted to vote, he was not a qualified elector. Accordingly, finding

no merit to Jones' claims, we overrule Jones' two assignments of error.

       {¶ 34} Judgment affirmed.


       HENDRICKSON, P.J., and S. POWELL, J., concur.




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