[Cite as State v. Castor, 2014-Ohio-5236.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                :       JUDGES:
                                             :       Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                   :       Hon. Sheila G. Farmer, J.
                                             :       Hon. John W. Wise, J.
-vs-                                         :
                                             :
GEORGE CASTOR                                :       Case No. 14 CAA 01 0004
                                             :
        Defendant-Appellant                  :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 13-CRI-10-0505




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    November 24, 2014




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

BRIAN J. WALTER                                      WILLIAM T. CRAMER
140 North Sandusky Street                            470 Olde Worthington Road
Delaware, OH 43015                                   Suite 200
                                                     Westerville, OH 43082
Delaware County, Case No. 14 CAA 01 0004                                               2

Farmer, J.

       {¶1}    On October 29, 2013, the Delaware County Grand Jury indicted appellant,

George Castor, on forty-two counts involving burglaries (R.C. 2911.12), possession of

criminal tools (R.C. 2923.24), theft (R.C. 2913.02), and receiving stolen property (R.C.

2913.51).     Thirty-one of the counts occurred in Franklin County and the remaining

eleven occurred in Delaware County.

       {¶2}    A jury trial commenced on November 12, 2013. At the conclusion of the

state's case-in-chief, the prosecutor dismissed five counts and amended others. The

jury found appellant not guilty of one of the burglary counts, and guilty of thirty-six

counts, to wit: twelve counts of burglary in the second degree, eight counts of burglary

in the third degree, one count of attempting to commit burglary in the fourth degree, two

counts of possessing criminal tools in the fifth degree, one count of theft in the fourth

degree, and twelve counts of receiving stolen property, six in the fifth degree and six

misdemeanors in the first degree. By amended judgment entry filed December 20,

2013, the trial court merged some of the counts and sentenced appellant to an

aggregate term of thirty-four years in prison.

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

consideration. Assignments of error are as follows:

                                             I

       {¶4}    "R.C. 2901.12(H) VIOLATES THE OHIO CONSTITUTION, ARTICLE I,

SECTION 10, AND THE SIXTH AMENDMENT TO THE U.S. CONSTITUTION BY

ALLOWING FOR A JURY TRIAL IN A COUNTY OTHER THAN THAT IN WHICH THE

OFFENSE WAS COMMITTED."
Delaware County, Case No. 14 CAA 01 0004                                               3


                                            II

      {¶5}   "APPELLANT WAS DEPRIVED OF HIS RIGHTS TO THE EFFECTIVE

ASSISTANCE       OF     COUNSEL       UNDER        THE   SIXTH     AND    FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION AND THE OHIO

CONSTITUTION, ARTICLE I, SECTION 10, BECAUSE COUNSEL FAILED TO ARGUE

THAT THE VENUE STATUTE WAS UNCONSTITUTIONAL."

                                            III

      {¶6}   "VENUE WAS NOT PROPER IN DELAWARE COUNTY FOR COUNTS

ONE THROUGH THIRTY-ONE BECAUSE THE EVIDENCE FAILED TO SHOW A

UNIFYING COURSE OF CRIMINAL CONDUCT AS REQUIRED BY R.C. 2901.12(H)."

                                            IV

      {¶7}   "APPELLANT'S RIGHTS TO DUE PROCESS UNDER THE STATE AND

FEDERAL CONSTITUTIONS WERE VIOLATED BY THE USE OF AN EYEWITNESS

IDENTIFICATION        DERIVED       FROM          AN   IMPERMISSIBLY       SUGGESTIVE

PHOTOGRAPHIC LINEUP."

                                           I, II

      {¶8}   Appellant claims R.C. 2901.12(H) is unconstitutional and his trial counsel

was ineffective for failing to raise the issue of venue. We disagree.

      {¶9}   R.C. 2901.12 governs venue. Subsection (H) 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
Delaware County, Case No. 14 CAA 01 0004                                                     4


       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.

              (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.



       {¶10} We note this constitutional argument was not made to the trial court. " 'An

appellate court will not consider any error, including constitutional error, which counsel

for a complaining party could have, but failed to call to the trial court's attention at a time

when such error could have been avoided by the trial court.' In re 730 Chickens (1991),

75 Ohio App.3d 476, 488, 599 N.E.2d 828, citing, State v. 1981 Dodge Ram Van

(1988), 36 Ohio St.3d 168, 170, 522 N.E.2d 524."             In re Retaining Vorys, Sater,
Delaware County, Case No. 14 CAA 01 0004                                                 5

Seymour & Pease, L.L.P., as Special Counsel, 192 Ohio App.3d 357, 2011-Ohio-640, ¶

24.

      {¶11} Because the constitutionality of the statute was not raised at the trial level,

we deny Assignment of Error I.

      {¶12} Appellant claims his trial counsel was ineffective for not making a

constitutional challenge to R.C. 2901.12(H).

      {¶13} The standard this issue must be measured against is set out in State v.

Bradley, 42 Ohio St.3d 136 (1989), paragraphs two and three of the syllabus. Appellant

must establish the following:



             2. Counsel's performance will not be deemed ineffective unless and

      until counsel's performance is proved to have fallen below an objective

      standard of reasonable representation and, in addition, prejudice arises

      from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2

      O.O.3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S.

      668, 104 S.Ct. 2052, 80 L.Ed.2d 674, followed.)

             3. To show that a defendant has been prejudiced by counsel's

      deficient performance, the defendant must prove that there exists a

      reasonable probability that, were it not for counsel's errors, the result of

      the trial would have been different.
Delaware County, Case No. 14 CAA 01 0004                                                 6

       {¶14} As the Supreme Court of Ohio explained in State v. Draggo, 65 Ohio St.2d

88, 90-91 (1981), in reviewing former R.C. 2901.12(G) and (H), the statutes embrace

the mobility of our society:



              Venue is not a material element of any offense charged.            The

       elements of the offense charged and the venue of the matter are separate

       and distinct. State v. Loucks (1971), 28 Ohio App.2d 77, 274 N.E.2d 773,

       and Carbo v. United States (C.A.9, 1963), 314 F.2d 718.            Yet, in all

       criminal prosecutions, venue is a fact that must be proved at trial unless

       waived. State v. Nevius (1947), 147 Ohio St. 263, 71 N.E.2d 258.

              R.C. 2901.12(G) and (H) are statutory reflections of the modern

       mobility of criminals to perform unlawful deeds over vast geographical

       boundaries. The above-noted statutory provisions effectuate a sensible,

       efficient approach to justice by permitting one court to hear a matter which

       has roots in several court jurisdictions.

              Dissection of the relevant provisions, namely R.C. 2901.12(A) and

       (H) and, more specifically, (G), explicitly denotes that venue is proper if " *

       * * (the) offense or any element" was committed in the court's jurisdiction.



       {¶15} Since 1988, the Ohio General Assembly expanded the types of criminal

cases that could be tried intra-jurisdictional. It is uncontested that the first thirty-one

counts of the indictment occurred in Franklin County and the remaining eleven counts

occurred in Delaware County. At the conclusion of the state's case-in-chief, defense
Delaware County, Case No. 14 CAA 01 0004                                               7


counsel made a Crim.R. 29 motion for acquittal and strenuously objected to venue and

a course of criminal conduct for the counts that occurred in Franklin County. T. at 1006-

1048.     Although defense counsel did not specifically attack venue as to the

constitutionality of R.C. 2901.12(H), he articulated the lack of proof of a course of

criminal conduct, emphasizing R.C. 2901.12(H)(1), (4), and (5). In response to the

motion, the prosecutor outlined the following (T. at 1009-1010):



              Count One did occur in Franklin County. However, it does show

        some of the same characteristics that we were talking about in the other

        incidences, something repeated three separate ways. We have shown a

        course of criminal conduct.

              First being the offense involved the victim, same type of the same

        group, being apartment tenants.

              Secondly, the offense was committed as a part of the same

        transaction or chain of events or in furtherance of the same pure objective;

        all of the counts occurred over a period of time, ten different dates, all

        occurred within a three months' time period of each other.

              There's no large gap here. In fact, the last one in Franklin County

        is on August 2nd, first one we have in Delaware County is August 7th,

        which is five days later, they all, again, all of the burglaries in the

        apartment complexes. Additionally, these occurred at the same times,

        and the same general items were taken in each case: TV's; laptops; video

        game systems, jewelry, all of these items that are resale pawn value, they
Delaware County, Case No. 14 CAA 01 0004                                                     8


       are not stealing items that can't be pawned for money. We believe the

       evidence has shown all the same chain of events, all committed for the

       same purpose or objective.

              Finally, and probably most importantly, is the offense involves the

       same or similar modus operandi, it does not single one of the burglary

       counts that occurred in a home; every time it was in an apartment; every

       time it was in an apartment complex with multiple units; every single time it

       was in the daytime; and I believe all but one case there was force used to

       a door to gain entry; there's not a situation where windows were smashed

       or a glass door smashed to gain entry. Also, all of them we'll see pry bar

       marks.

              Many times an individual was observed with a clipboard in the area

       beforehand. We have the same types of vans that are used in all of the

       offenses, and in the numerous times indicated. The witnesses see a van

       being present, and Mr. Castor did generally in both cases get into this type

       of vehicle.



       {¶16} At the time of the trial, the case of State v. DeBoe, 6th Dist. Huron No. H-

02-057, 2004-Ohio-403 was unchallenged. In DeBoe at ¶ 37-38, our brethren from the

Sixth District specifically addressed the constitutionality of R.C. 2901.12(H) as follows:



              For a statute to be declared unconstitutional, "it must appear

       beyond a reasonable doubt that the legislation and constitutional
Delaware County, Case No. 14 CAA 01 0004                                                 9

     provisions are clearly incompatible."           State ex rel. Dickman v.

     Defenbacher (1955), 164 Ohio St. 142, 128 N.E.2d 59, paragraph one of

     the syllabus. Accord State v. Thompkins (1996), 75 Ohio St.3d 558, 560,

     664 N.E.2d 926. "Further, doubts regarding the validity of a legislative

     enactment are to be resolved in favor of the statute." State v. Gill (1992),

     63 Ohio St.3d 53, 55, 584 N.E.2d 1200, citing State ex rel. Swetland v.

     Kinney (1982), 69 Ohio St.2d 567, 433 N.E.2d 217.

            The Ohio Constitution guarantees to its citizens, "a speedy trial by

     an impartial jury of the county in which the offense is alleged to have been

     committed * * *." Section 10, Article 1, Ohio Constitution. The primary

     purpose of this constitutional provision is to fix the place of trial. State v.

     Fendrick (1907), 77 Ohio St. 298, 300, 82 N.E. 1078. This constitutional

     principle was embodied by the legislature in R.C. 2901.12, which provides

     that, "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."              The statutory "any

     element" rule was approved by the Ohio Supreme Court in State v.

     Draggo (1981), 65 Ohio St.2d 88, 418 N.E.2d 1343. R.C. 2901.12 merely

     provides the criteria for which territory an offender may be tried for multiple

     offenses which involve different jurisdictions or venues.           Since R.C.

     2901.12 does not deprive an offender of his right to a properly venued jury

     trial, it is not incompatible with the Ohio Constitution. Therefore, R.C.

     2901.12 is not unconstitutional.
Delaware County, Case No. 14 CAA 01 0004                                               10




      {¶17} Appellant argues two cases that support his attack on the constitutionality

of R.C. 2901.12(H), State v. Chalikes, 122 Ohio St. 35 (1930) and State v. Nevius, 147

Ohio St. 263 (1947).     These cases were decided long before the Modern Courts

Amendment (1968) and R.C. 2901.12 were enacted. These cases challenged venue on

a single count, not a series of criminal acts linked together via similarity of victim and

modus operandi, and in furtherance of the same criminal conspiracy. Therefore, we find

the cases to be inapplicable sub judice.

      {¶18} Using the two-prong test of Bradley and Strickland, we find defense

counsel properly articulated the venue issue to the trial court, and do not find any

deficiency in his performance.

      {¶19} Assignments of Error I and II are denied.

                                            III

      {¶20} Appellant claims R.C. 2901.12(H) does not apply to the first thirty-one

counts because the evidence failed to show a unifying course of criminal conduct as

required in the statute. We disagree.

      {¶21} The evidence establishes certain factors that are applicable to R.C.

2901.12(H)(1), (4), and (5) to determine a course of criminal conduct including the same

type of victim (dwellers of apartment complexes), same or similar modus operandi

(daytime, pry bar use, maintenance person disguise, minivan, similar objects stolen),

and "furtherance of the same conspiracy." T. at 88-92, 99, 101-103, 128, 130-132, 152,

168, 170-172, 182-183, 210-212, 217, 222, 225, 229-230, 234, 237-239, 246, 248-249,

257-260, 262, 264-265, 272-273, 331-332, 342, 347-349, 355, 357-358, 440, 444, 450,
Delaware County, Case No. 14 CAA 01 0004                                               11


453-454, 466, 474, 476, 530, 533, 547-548, 566-570, 610, 720, 722, 726, 731, 743-745,

753, 764, 772, 774-777, 804, 809-810, 827, 833, 835, 865.

          {¶22} The indictment set forth a time frame of the offenses from May 24, 2013 to

August 21, 2013, beginning in Franklin County and terminating in Delaware County.

The forty-two count indictment included burglaries, an attempted burglary, a theft,

possession of criminal tools, and receiving stolen property. The burglaries and thefts

were from apartments broken into with a pry bar during the daylight, working hours (with

the exception of one), when the victims were unlikely to be home. With the exception of

two apartments, all were cluster apartments in complexes and numerous apartments

were entered in to in each complex. The counts did not include a single home.

          {¶23} Of note, all of the Franklin County addresses, except for the Canal

Winchester address, are within the immediate proximity of the northwest loop of I-270.

          {¶24} The types of property taken were televisions, laptops, video game

systems, electronic equipment, guitars, blankets, and jewelry. T. at 91-92, 103, 132,

172, 217, 229-230, 239, 249, 265, 342, 355, 357-358, 450, 453-454, 474, 476, 533,

731, 753, 775-776, 809-810. At the first burglary, a silver Chevy Venture minivan was

stolen.     T. at 103, 106.    Witnesses identified the same type of minivan at other

burglaries. T. at 152, 183, 262, 272, 347, 827. A clipboard was also stolen, seen at

subsequent burglaries and ultimately recovered during appellant's arrest. T. at 132,

259-260, 273, 348, 610, 764, 865, 942-943. A partial license plate number on the

minivan was identified and later the same plate, as well as other license plates, were

recovered during appellant's arrest.      T. at 946-947.    Items that appellant used in

disguising himself were also recovered during his arrest (red hat, pry bar, bucket of
Delaware County, Case No. 14 CAA 01 0004                                               12


tools, clipboard). T. at 578-583, 927-928, 930-932, 942-947. Appellant's DNA was

identified on the red hat. T. at 647-648, 651-653. Appellant had pawned many of the

stolen items. T. at 388-396.

       {¶25} All of these similarities do not imply simple coincidences, but a definitive

pattern of burglaries by the same individual. The ultimate connections were the items

seized in the minivan during appellant's arrest. These items were specifically identified

by witnesses who observed appellant and/or the minivan at the scene of various

burglaries (North High Street Apartments, Sanctuary Village, North Star Avenue

Apartments).

       {¶26} We find the facts were sufficient for prosecution of the Franklin County

offenses in Delaware County under R.C. 2901.12(H).

       {¶27} Assignment of Error III is denied.

                                            IV

       {¶28} Appellant claims the trial court erred in permitting identification testimony

derived from an impermissibly suggestive photographic lineup. We disagree.

       {¶29} In State v. Wills, 120 Ohio App.3d 320, 325 (8th Dist.1997), our brethren

from the Eighth District explained the following:



               When deciding motions to suppress photographic identification

       procedures, the courts must determine whether the photos or procedures

       used were "so impermissibly suggestive as to give rise to a very

       substantial likelihood of irreparable misidentification." Simmons v. United

       States (1968), 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247,
Delaware County, Case No. 14 CAA 01 0004                                                 13


       1253. Suggestiveness depends on several factors, including the size of

       the array, its manner of presentation, and its contents. Reese v. Fulcomer

       (C.A.3, 1991), 946 F.2d 247, 260. Stated otherwise, the test is "whether

       the picture of the accused, matching descriptions given by the witness, so

       stood out from all of the photographs as to suggest to an identifying

       witness that [that person] was more likely to be the culprit." Jarrett v.

       Headley (C.A.2, 1986), 802 F.2d 34, 41.



       {¶30} We note appellant never filed a motion to suppress. On the fifth day of

trial, defense counsel moved for a mistrial and to dismiss the indictment based upon an

improperly created photo lineup (State's Exhibit 41). Despite the lack of a motion to

suppress, the trial court entertained the issue, ruling as follows in a judgment entry filed

November 19, 2013:



              The Court specifically finds that the State did not violate the terms

       of §2933.83.

              The Court must now turn to the case law. In considering the case

       law, the Court finds the "photo array" complained of was not "unusually

       suggestive." The Court finds the features of the Defendant are greatly

       similar to the other individuals whose pictures were used.           State v.

       Hudson, 2009 WL 252362 and State v. Gloss, 2010 WL 3377784. The

       fact that all five of the other photos were Hispanic does not mean that the

       others did not have features similar to the Defendant. Furthermore, the
Delaware County, Case No. 14 CAA 01 0004                                               14


      photo line-up included men that fit within the general description given by

      the witness. State v. Gomez, 2005 WL 742702.

             The Court does not find the photo array to be suggestive. The

      Defendant's motion is therefore Overruled.



      {¶31} The testimony concerning the identification of appellant using the photo

array occurred during the second day of trial. Stephany Bevan testified she immediately

identified photograph number three as the perpetrator because of his eyes. T. at 281-

282. She did not know if the photograph was of a Hispanic, but the eyes were the

determining factor. T. at 285.

      {¶32} Columbus Police Detective Richard Moore testified to showing the blind

photo array to Ms. Bevan. T. at 291. Detective Moore was not responsible for the

make-up of the array so as not to show any favoritism to the suspect. T. at 289-290.

      {¶33} Columbus Police Detective Kevin Grooms made up the photo array after

appellant was already a suspect (State's Exhibit 177). T. at 626. He used the most

recent photograph of appellant. T. at 626-627. In setting up the photo array, Detective

Grooms used identifying characteristics to match other photographs to the suspect's. T.

at 627-628. He used "[m]ale, Hispanic, age range." T. at 628. He entered Hispanic

because appellant reminded him of a military friend who was Hispanic and his name

was of Hispanic origin. Id. Both the photo array and the number three photograph

identified by Ms. Bevan were marked and received as State's Exhibits 41 and 177

without objection.
Delaware County, Case No. 14 CAA 01 0004                                       15


      {¶34} Given the testimony of Ms. Bevan and Detective Grooms and the exhibits

themselves, we find the photo array was not impermissibly suggestive and did not

cause appellant to stand out from the others.

      {¶35} Assignment of Error IV is denied.

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

hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Wise, J. concur.




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