[Cite as State v. McCarty, 2012-Ohio-1721.]


                                       COURT OF APPEALS
                                      KNOX 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-
                                                 Case No. 11 CA 14
CHAD D. McCARTY

        Defendant-Appellant                      OPINION




CHARACTER OF PROCEEDING:                      Criminal Appeal from the Mount Vernon
                                              Municipal Court, Case No. 11CRB149


JUDGMENT:                                     Reversed and Vacated



DATE OF JUDGMENT ENTRY:                       April 18, 2012



APPEARANCES:

For Plaintiff-Appellee                        For Defendant-Appellant

WILLIAM D. SMITH                              JOHN A. DANKOVICH
DIRECTOR OF LAW                               PUBLIC DEFENDER
P. ROBERT BROEREN, JR.                        One Public Square
ASSISTANT DIRECTOR OF LAW                     Mount Vernon, Ohio 43050
5 North Gay Street, Suite 222
Mount Vernon, Ohio 43050
Knox County, Case No. 11 CA 14                                                          2

Wise, J.

       {¶1}     Defendant-Appellant Chad D. McCarty appeals his conviction and

sentence entered in the Mount Vernon Municipal Court on one count of Intimidation.

       {¶2}     Plaintiff-Appellee is the State of Ohio.

                         STATEMENT OF THE FACTS AND CASE

       {¶3}     On or about February 9, 2011, the City of Mount Vernon, Ohio

subpoenaed John Fisher to testify for the prosecution in a criminal case styled the City

of Mount Vernon, Ohio v. James A. Elkins, case 10TRC01583. The case was scheduled

to be tried to a jury on February 24, 2011.

       {¶4}     On February 15, 2011, at the request of Mr. Elkins, Appellant travelled to

Mr. Fisher's work place in Morrow County, Ohio and attempted to convince Mr. Fisher

not to appear and testify against Mr. Elkins through a variety of ploys.

       {¶5}     Mr. Fisher reported the contact to both the Office of the Knox County

Sheriff and the Office of Mount Vernon City Law Director, who requested that the Mount

Vernon City Police Department investigate the matter.

       {¶6}     As a result of such investigation, Appellant was arrested on February 16,

2011, and charged with one count of Intimidation, in violation of §2921.04(A).

       {¶7}     On March 23, 2011, Defendant filed a Motion to Dismiss for lack of

Jurisdiction.

       {¶8}     On March 25, 2011, the State filed a Motion in Opposition, and on March

29, 2011, Defendant filed a response.

       {¶9}     On April 6, 20 11, the Court entered judgment overruling Defendant's

Motion to Dismiss and finding that Mt. Vernon Municipal Court was the proper venue.
Knox County, Case No. 11 CA 14                                                            3


       {¶10} On June 6, 2011, Defendant changed his plea to no contest and was

found guilty of lntimidation by the trial court.

       {¶11} Appellant now appeals, assigning the following sole error for review:

                                 ASSIGNMENT OF ERROR

       {¶12} “I. THE TRIAL COURT ERRED IN FAILING TO DISMISS THIS CASE

FOR LACK OF TERRITORIAL SUBJECT MATTER JURISDICTION.”

                                               I.

       {¶13} In his sole assignment of error, Appellant argues that the trial court lacked

subject matter jurisdiction in this matter and erred in not dismissing his case. We agree.

       {¶14} More specifically, Appellant argues that the Mount Vernon Municipal Court

only has jurisdiction in Knox County, and that because the actions he allegedly took

which resulted in the Intimidation charge occurred in Morrow County, Mount Vernon

Municipal Court did not have subject matter jurisdiction over this matter.

       {¶15} Pursuant to R.C. 1901.01(B), Territorial Jurisdiction:

       {¶16} “The Mount Vernon municipal court has jurisdiction within Knox County.”

       {¶17} Further, R.C. 2901.12 Venue, provides:

       {¶18} “(A) 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.”

       {¶19} In this case, Appellant was charged with Intimidation of crime victim or

witness pursuant to R.C. 2921.04(A), which states:
Knox County, Case No. 11 CA 14                                                            4


       {¶20} “(A) No person shall knowingly attempt to intimidate or hinder the victim of

a crime in the filing or prosecution of criminal charges or a witness involved in a criminal

action or proceeding in the discharge of the duties of the witness.”

       {¶21} The State argues that “duty” of the witness in this case, having been duly

subpoenaed, was to appear in the Mount Vernon Municipal Court to testify against

James Elkins. The State argues therefore that the element of “attempt to intimidate or

hinder” occurred in Knox County and Mount Vernon Municipal Court had subject matter

jurisdiction to hear this matter.

       {¶22} We are not persuaded by the State’s argument. While it is true that the

case in which the witness was subpoenaed to testify is located in Knox County, the

witness was in Morrow County and the act of intimidation occurred in Morrow County.

We therefore find that Knox County lacked subject matter jurisdiction in this case and

that such matter should have been brought in Morrow County.

       {¶23} Based on the foregoing, we find that the trial court erred in denying

Appellant’s Motion to Dismiss.

       {¶24} The judgment of the Mount Vernon Municipal Court, Knox County, Ohio, is

hereby reversed, and Appellant’s conviction and sentence in this matter are vacated.

By: Wise, J.
Gwin, P. J., and
Farmer, J., concur.

                                              ___________________________________

                                              ___________________________________

                                              ___________________________________

                                                                  JUDGES
JWW/d 0326
Knox County, Case No. 11 CA 14                                                5


              IN THE COURT OF APPEALS FOR KNOX COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT




STATE OF OHIO                               :
                                            :
       Plaintiff-Appellee                   :
                                            :
-vs-                                        :         JUDGMENT ENTRY
                                            :
CHAD D. McCARTY                             :
                                            :
       Defendant-Appellant                  :         Case No. 11 CA 14




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Mount Vernon Municipal Court, Knox County, Ohio, is reversed.

Appellant’s conviction and sentence in this matter are vacated.

       Costs assessed to Appellee.




                                            ___________________________________


                                            ___________________________________


                                            ___________________________________

                                                                  JUDGES
