[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Wogenstahl, Slip Opinion No. 2017-Ohio-6873.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                          SLIP OPINION NO. 2017-OHIO-6873
         THE STATE OF OHIO, APPELLEE, v. WOGENSTAHL, APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
    may be cited as State v. Wogenstahl, Slip Opinion No. 2017-Ohio-6873.]
Reopened direct appeal of capital-murder conviction—Ohio trial court had
        jurisdiction over aggravated-murder charge under R.C. 2901.11(D)
        because the victim was killed in either Ohio or Indiana and it cannot
        reasonably be determined in which state the murder took place—Judgment
        affirmed.
       (No. 1995-0042—Submitted April 4, 2017—Decided July 25, 2017.)
        REOPENED APPEAL from the Court of Appeals for Hamilton County,
                                       No. C-930222.
                                    ________________
        KENNEDY, J.
        {¶ 1} Appellant, Jeffrey Wogenstahl, was convicted of the 1991 kidnapping
and murder of ten-year-old Amber Garrett. Her body was discovered in a wooded
area in Bright, Indiana. We reopened Wogenstahl’s direct appeal of his capital-
                             SUPREME COURT OF OHIO




murder conviction to consider a single question: Did the trial court have jurisdiction
over Wogenstahl’s aggravated-murder charge? See 145 Ohio St.3d 1455, 2016-
Ohio-2807, 49 N.E.3d 318; 145 Ohio St.3d 1467, 2016-Ohio-2956, 49 N.E.3d
1310.
        {¶ 2} We now answer that question in the affirmative. Because we find that
it cannot be determined whether Amber Garrett was murdered in Ohio or Indiana,
we hold that Ohio had jurisdiction over the aggravated-murder charge under R.C.
2901.11(D).
        {¶ 3} Wogenstahl asserts three propositions of law: (1) “An Ohio court
lacks subject matter jurisdiction when the state fails to prove such jurisdiction
beyond a reasonable doubt. Any resulting conviction is void and violates a
defendant’s constitutional rights to fair trial and due process. U.S. Const.
amends. VI and XIV,” (2) “A defendant is denied the effective assistance of
counsel, when a trial court lacks subject matter jurisdiction and defense counsel
fails to raise the issue. U.S. Const. amends. VI and XIV,” and (3) “Trial of a
defendant in a court without subject matter jurisdiction would necessarily violate
the defendant’s substantive and procedural constitutional rights to a fair trial and
due process. U.S. Const. amends. VI and XIV.” Because we determine, in
addressing the first proposition of law, that the evidence shows that the trial court
did have jurisdiction here, the second and third propositions of law are moot.
                                  Evidence at trial
        {¶ 4} Amber Garrett lived in Harrison, Ohio, with her mother, Peggy, and
four siblings. On the night of November 23, 1991, Peggy Garrett asked her 16-
year-old son, Eric, to babysit for Amber and two of her siblings. Peggy left home
after 11:00 p.m. to meet her friend, Lynn, at a nearby bar.
        {¶ 5} Sometime later that night, Peggy and Lynn drove to a second bar, the
Miamitown Lounge, where they saw Wogenstahl. Peggy had known Wogenstahl




                                          2
                                     January Term, 2017




for about six weeks.1 At the Miamitown, she told him that her son Justin was gone
for the weekend and that Eric was home with the other children.
         {¶ 6} Peggy, Lynn, and Wogenstahl left the bar to smoke marijuana
together in Wogenstahl’s car, and when they went back in, the bar was closing.
They went to another bar, the Flicker Inn, for a drink. Peggy estimated that they
arrived around 2:20 a.m.
         {¶ 7} When the Flicker Inn was closing, Wogenstahl invited the women
back to his apartment to smoke more marijuana. They declined. Peggy and Lynn
parted from Wogenstahl and went to a Waffle House, arriving around 3:00 or 3:15
a.m.
         {¶ 8} Meanwhile, around 3:00 a.m., Wogenstahl knocked on the door of the
Garretts’ apartment.        He told Eric that Peggy needed him at Troy Beard’s
apartment, which was three blocks away. It took Eric five or ten minutes to dress,
after which he left the house with Wogenstahl, locking the door behind him.
         {¶ 9} According to Eric, Wogenstahl drove him to within a block of Beard’s
apartment but would not drive any closer because he did not want Peggy to see him
giving Eric a ride. He promised to pull around the block and wait for Eric. But
when Eric reemerged from Beard’s apartment building, after discovering that
Peggy had not been there all evening, Wogenstahl was gone.
         {¶ 10} After looking around a few minutes, Eric walked home. He arrived
to find the door closed but unlocked. Concerned, he checked on the children, and
he discovered that Amber was not there. However, he thought that maybe she had
never been in the bedroom at all that night, that “maybe she spent the night with
one of her friends,” and that he had just assumed all night she was sleeping in the
bedroom.


1
 It is unclear how well Wogenstahl knew the Garrett family, but there are indications that they were
on friendly terms. For example, Peggy testified that on the afternoon of November 23, Wogenstahl
had “dropped by” the apartment to ask Peggy if she planned to do anything that night.




                                                 3
                             SUPREME COURT OF OHIO




       {¶ 11} According to Eric, it was 3:10 a.m. when he arrived at Beard’s
apartment. And it was “close to 3:30” when he returned to the apartment and found
that Amber was gone.
       {¶ 12} Wogenstahl admitted going to the Garretts’ apartment at 3:00 a.m.
Initially, he told police that he was playing a prank, alleging that he and Eric
“always mess with each other.” At trial, he testified that he had gone to the
apartment to buy marijuana from Eric. He told the jury, “Eric had asked me would
I give him a ride down to where Peggy was so he could give her a quarter ounce of
reefer.” He claimed that after driving Eric to a spot near Beard’s apartment, he
went home to bed.
       {¶ 13} The town of Harrison, where Amber Garrett lived, sits on the Ohio-
Indiana border. State Street is the dividing line between Harrison, Ohio, and West
Harrison, Indiana; the state line runs down the middle of the street. To get from
Harrison to Bright, Indiana, one follows State Street south until it curves and
crosses fully into Indiana, at which point it becomes Jamison Road. The distance
from Harrison, Ohio, to the place where Amber’s body was found is approximately
four miles.
       {¶ 14} At 3:15 a.m. on November 24, an employee working at a United
Dairy Farmers (“UDF”) store on State Street in Harrison saw a car drive past on
State Street, headed toward Bright. The driver was a man. As it passed the UDF,
the interior of the car was illuminated by the headlights of another vehicle, and she
was able to see two people inside. She later testified:


       A:      * * * I seen a male silhouette and what looked like to be a
               young girl sitting in the seat. First I could not tell until she
               had moved.
       Q:      Did you see some movement in the car?
       A:      Yes.




                                          4
                                 January Term, 2017




       Q:      What did you see?
       A:      I seen what looked like they were getting up and stretching
               and then laying back on the car door asleep.
       Q:      Were both people in the front seat of the car?
       A:      Yes, they were.


       {¶ 15} Four miles away, a resident on Jamison Road, awoke in the middle
of the night to use the restroom. On the way, he noted that the time on his digital
clock was 3:13 a.m. Sometime after he returned to bed, he heard an automobile
driving up the road. Looking out the window, he saw a car driving slowly down
Jamison Road in the direction of Harrison, as if coming from Bright. When the car
reached a curve in the road near his home, he saw it pull off to the side of the road,
and he saw the headlights go out. On direct examination, he testified that he had
heard the car “maybe five minutes or longer” after returning to bed from using the
restroom, but on cross-examination, he indicated that he had fallen “partially
asleep” and could not say what time it was when he heard the car.
       {¶ 16} Three people testified that they had driven passed the stopped car on
Jamison Road that night. At “right around 3:38, 3:39, 3:40,” a female motorist
drove down Jamison Road, traveling from her job in Harrison to her home in Bright.
She saw a car on the side of the road with its headlights off and a man standing by
the rear door on the driver’s side of the car.
       {¶ 17} At approximately 3:40 a.m., a male motorist passed a car stopped on
the roadside with its headlights off and its trunk open. He saw a man at the back of
the car near the open trunk.
       {¶ 18} Finally, also around 3:40 a.m., a second male motorist saw the car
parked on the side of the road. He was driving from Bright toward Harrison and
came upon the vehicle. As he drove past, someone in the car turned the headlights
on, but he did not see the car pull back onto the road.




                                           5
                             SUPREME COURT OF OHIO




       {¶ 19} Shortly thereafter, around 3:45 or 4:00 o’clock, the UDF employee
again saw the car she had seen drive past earlier in the direction of Bright. It was
parked at a self-serve car wash cater-cornered from the UDF. The car then pulled
into the UDF lot, and the driver came in to buy cigarettes. She testified that he had
what looked like blood and dirt under his fingernails. He then left and drove up
State Street in the direction away from Bright.
       {¶ 20} The UDF employee, the first male motorist, and the female motorists
each identified Wogenstahl as the man they had seen that night, and all three, and
the second male motorist, agreed that the picture of Wogenstahl’s car matched his
or her memory of the car he or she had seen that night.
       {¶ 21} Peggy Garrett reported her daughter missing on the afternoon of
Sunday, November 24. Police searched for Amber for three days without success.
And then on Wednesday, November 27, the Jamison Road resident directed police
to the spot where he had seen the car pull off along Jamison Road. Police
discovered Amber’s body down a steep embankment, in an area overgrown with
prickly bushes and weeds, not far from the spot where witnesses had seen the car
parked on Jamison Road.
       {¶ 22} The cause of death was multiple stab wounds and blunt trauma to the
head. The deputy coroner testified that the stab wounds alone would have been
fatal and that the head trauma alone would have been fatal. Amber had 11 stab
wounds to her neck, shoulder, chest, and armpit, as well as defensive wounds on
her forearms. The blunt-trauma injuries were consistent with having been caused
by an automobile jack handle. In the trunk of Wogenstahl’s car, police found a jack
with a missing handle.
       {¶ 23} The state presented evidence that the murder had not occurred in the
area where Amber’s body had been found. The deputy coroner testified that it was
reasonable to conclude that she had been carried through the thorny area after she
was killed. He based this conclusion on two observations. First, the multiple thorn




                                         6
                                January Term, 2017




scratches on her body “appear[ed] to be postmortem injuries.” Second, her bare
feet were clean and unscratched, suggesting that she had not walked through the
area.
          {¶ 24} Amber’s body was discovered in Bright, Indiana. But the state
offered no theory as to where she had been murdered.
                              Procedural background
          {¶ 25} Count 1 of the indictment against Wogenstahl alleged that he
purposely caused the death of Amber Garrett in Hamilton County, Ohio. In closing
argument at trial, the state took the position that venue was proper in Ohio so long
as the kidnapping occurred here and that it was therefore unnecessary for the state
to prove where the murder occurred. But the question of jurisdiction was never
directly raised.
          {¶ 26} Wogenstahl was convicted of aggravated murder (with three capital
specifications), kidnapping, and aggravated burglary and was sentenced to death.
His convictions and capital sentence were affirmed on direct appeal. 1st Dist.
Hamilton No. C-930222, 1994 WL 686898; 75 Ohio St.3d 344, 662 N.E.2d 311
(1996).
          {¶ 27} On October 9, 2015, he filed a motion to stay his execution and
reopen his appeal, alleging that the trial court had lacked jurisdiction over the
aggravated-murder charge. Because a challenge to subject-matter jurisdiction
cannot be waived or forfeited and may be raised at any time, State v. Mbodji, 129
Ohio St.3d 325, 2011-Ohio-2880, 951 N.E.2d 1025, ¶ 10, this court granted the
motion and agreed to review the case to determine whether the trial court had
properly exercised jurisdiction over the aggravated-murder charge. 145 Ohio St.3d
1455, 2016-Ohio-2807, 49 N.E.3d 318; 145 Ohio St.3d 1467, 2016-Ohio-2956, 49
N.E.3d 1310.




                                         7
                               SUPREME COURT OF OHIO




                                        Analysis
        {¶ 28} At the time of Amber’s murder and until 2005, R.C. 2901.11, Ohio’s
criminal-law jurisdiction statute, provided:


               (A) A person is subject to criminal prosecution and
        punishment in this state if any of the following occur:
               (1) The person commits an offense under the laws of this
        state, any element of which takes place in this state.
               ***
               (B) In homicide, the element referred to in division (A)(1) of
        this section is either the act that causes death, or the physical contact
        that causes death, or the death itself. If any part of the body of a
        homicide victim is found in this state, the death is presumed to have
        occurred in this state.


Am.Sub.H.B. No. 565, 147 Ohio Laws, Part II, 4493, 4498 (eff. March 30, 1999
through July 12, 2005); Am.Sub.H.B. No. 511, 134 Ohio Laws, Part II, 1866, 1893-
1894 (in effect at the time of Amber’s murder). In State v. Yarbrough (decided
after Wogenstahl’s conviction), this court construed the statute to mean that “a
murderer acting alone who plans his crime in Ohio and carries it out in another state
cannot be tried in Ohio for his or her crime.” 104 Ohio St.3d 1, 2004-Ohio-6087,
817 N.E.2d 845, ¶ 55. Yarbrough kidnapped two people in Steubenville, Ohio,
then drove them across the state line to Washington County, Pennsylvania, where
he shot them. Id. at ¶ 6-10. This court reversed Yarbrough’s aggravated-murder
convictions because the trial court had lacked subject-matter jurisdiction, but it
affirmed his convictions for robbery, burglary, and kidnapping. Id. at ¶ 1.2

2
 In 2005, the General Assembly amended R.C. 2901.11 prospectively in response to Yarbrough.
Sub.S.B. No. 20, 151 Ohio Laws, Part I, 10.




                                            8
                                January Term, 2017




       {¶ 29} In Yarbrough, there was no dispute that the fatal shots occurred in
Pennsylvania and that the victims died there. In this case, the location of the murder
is in dispute. Wogenstahl contends that the evidence at trial proved that Amber was
killed in Indiana. But the state claims that the evidence supports a theory that
Amber was killed in Wogenstahl’s Ohio apartment. Under R.C. 2901.11(D), which
is the same now as it was at the time of the murder, the trial court had jurisdiction
if the evidence establishes that the murder occurred in Ohio or if the evidence is
insufficient to say with confidence in which state the murder occurred. R.C.
2901.11(D) provides:


               When an offense is committed under the laws of this state,
       and it appears beyond a reasonable doubt that the offense or any
       element thereof took place either in Ohio or in another jurisdiction
       or jurisdictions, but it cannot reasonably be determined in which it
       took place, the offense or element is conclusively presumed to have
       taken place in this state for purposes of this section.


       {¶ 30} Although we find that the evidence does not support the state’s
theory that Amber was murdered in Wogenstahl’s apartment, we also find that it
does not prove, as Wogenstahl asserts, that she was murdered in Indiana.
              Evidence that the state asserts supports its theory that
                 the murder occurred in Wogenstahl’s apartment
       {¶ 31} In its brief, the state asserts the theory that Amber was murdered in
Wogenstahl’s apartment in Ohio. Describing Wogenstahl’s bathroom as “littered
with blood smears and stains,” the state contends that it is reasonable to conclude




                                          9
                               SUPREME COURT OF OHIO




that the act that caused Amber’s death occurred in Wogenstahl’s Ohio apartment.
But the state has overstated the probative value of the blood evidence.
         {¶ 32} Two towels with small bloodstains were recovered from
Wogenstahl’s apartment. Testing of one towel indicated that the blood was from a
human but was not from Amber. Testing of the other towel was inconclusive as to
whether the blood was from a human or an animal. This is significant because
Wogenstahl testified that just days before Amber’s murder, his cat fell off the
shower-curtain rod, knocking out a tooth and bleeding on the side of the tub and
the toilet. Police also recovered a paper napkin “with a single drop of what
appeared to be blood on it.” However, the serology report does not indicate that a
napkin was tested for blood.
         {¶ 33} Finally, investigators recovered “very small amounts” of blood from
the outside of Wogenstahl’s bathtub. But the blood from the bathtub was never
typed. In fact, contrary to the state’s description of a room “littered with blood
smears and stains,” the reason the blood found in the bathroom was not tested to
determine whether it was human blood is that the specimens were so small that such
testing would have consumed the entire sample.
         {¶ 34} In summary, there is no evidence to support the theory the state
advances in its brief because there was no evidence that Amber’s blood was found
in Wogenstahl’s apartment. To the contrary, she was affirmatively excluded as the
source of at least one stain. The evidence at trial never eliminated Wogenstahl as
the source of the small amount of blood found in his own bathroom. And the
quantities of blood found were quite small, although Amber was stabbed at least 11
times.
         {¶ 35} In addition to the blood evidence, the state asserts that the fact that
gum wrappers were found in Wogenstahl’s apartment indicates that she was
murdered there. The gum wrappers are significant, the state argues, because the
deputy coroner testified that he had found a wad of chewing gum in Amber’s




                                           10
                                     January Term, 2017




esophagus and concluded that Amber either swallowed it just prior to her death or
partially regurgitated it near the time of her death.
        {¶ 36} The gum wrappers suggest, at most, that Amber may have been in
Wogenstahl’s apartment at some time. But no testimony matched the type of gum
in her esophagus to the wrappers in the apartment. And even if the gum did match
the wrappers, it would not prove that she was stabbed or bludgeoned in the
apartment.
        {¶ 37} Finally, the state relies on the testimony of Bruce Wheeler, a
jailhouse informant. Wheeler offered an ambiguous account of the crime based on
the details that Wogenstahl allegedly confessed to him.


                   Q:     So he took her out of this house. Did he say where
        he went with her?
                   A:     No. He didn’t say where but he said he took her in
        his car.


According to Wheeler, Wogenstahl raped Amber twice,3 and on the second
occasion, she fought back, which is when Wogenstahl stabbed her.


                   Q:     Did he tell you what he did with Amber Garrett’s
        body after he had taken her life?
                   A:     Yeah. He told me she was in his car and he told me
        he took her somewhere to dump her * * *. * * *
                   ***



3
  Wheeler’s testimony regarding the rapes was contradicted by the coroner, who testified there was
no evidence of sexual abuse.




                                               11
                                 SUPREME COURT OF OHIO




                 Q:       Now you said that he took her out in the car and he
        played with her?
                 A:       Yes.


(Emphasis added.) Although far from dispositive, Wheeler’s account suggests that
the entire sequence of events occurred in the car, not in Wogenstahl’s apartment.
His testimony does not establish whether the car was in Ohio or Indiana at the time
of the murder.
        {¶ 38} Elsewhere in his testimony, Wheeler, describing the evidence that
Wogenstahl got rid of after the crime, said, “He told me he threw the key [to the
Garretts’ apartment]4 in the woods earlier and he said some towels or sheets or one
of the two or some kind of wrapping that he wrapped her in at one time.” The state
seizes on this statement as proof that Amber must have been in Wogenstahl’s
apartment at the time of the attack. According to the state, if he killed Amber in
the car, then “it is illogical that he would then take the time to wrap her in some
towels or sheets he conveniently had in his car before taking her body the short
distance into those bushes.”
        {¶ 39} The state’s argument assumes more facts than Wheeler supplied.
Wheeler never said that Wogenstahl wrapped Amber’s body in a sheet or towel.
The night she was abducted, in late November, the weather was cold and windy,
with temperatures possibly below freezing. When her body was found, Amber was
wearing a lightweight dress and no coat. Wheeler’s ambiguous testimony about
“some kind of wrapping that he wrapped her in at one time” may have referred to
a sheet that Wogenstahl used to keep her warm when he first kidnapped her, which
could have come from Amber’s home. And the state’s theory that Wogenstahl
stabbed Amber multiple times in his apartment, wrapped her body in a sheet, and

4
 Wheeler’s testimony that Wogenstahl used a stolen key to enter the Garretts’ apartment is at odds
with the state’s theory that the intruder picked the lock.




                                               12
                                        January Term, 2017




carried her to his car is difficult to reconcile with the testimony of the UDF
employee, who saw a girl sitting upright in the car and stretching.
         {¶ 40} The state has also pointed to the blood drop on a door handle inside
Wogenstahl’s car as a basis for Ohio to assert jurisdiction. But even assuming that
the blood came from Amber,5 Wogenstahl’s car could have been in either
jurisdiction when the blood was deposited on the handle.
         {¶ 41} Moreover, the timeline established by the evidence further erodes
the state’s theory that Wogenstahl took Amber back to his apartment after
abducting her.        Even viewing the evidence in a light most favorable to the
prosecution, a rational trier of fact could not have concluded that Amber was killed
in Wogenstahl’s apartment.
                          Evidence that Wogenstahl asserts proves
                             that the murder occurred in Indiana
         {¶ 42} Wogenstahl contends that the evidence proves that the murder
occurred in Indiana. His argument is founded almost entirely upon the UDF
employee’s testimony that she saw Amber alive at 3:15 a.m. in a car headed out of
state. Because the state line bisects State Street, the vehicle was actually in Indiana
at the moment the UDF employee, standing in Ohio, saw it pass.                                  And as
Wogenstahl correctly points out, at no point south of the UDF does the Indiana side
of State Street veer back into Ohio before becoming Jamison Road, which is
entirely in Indiana. Therefore, according to Wogenstahl, since Amber was alive at
3:15 a.m., her murder must have occurred in Indiana.




5
  The evidence at trial did not establish that the spot of blood, about 1/25 the size of a dime, came
from Amber. A forensic serologist testified that the white-blood-cell allotypes in the sample were
consistent with Amber’s blood and appear in about 5 percent (1 in 19) of the Caucasian population.
He testified, “I can say that [the blood] is similar to hers, but I cannot say whether it is hers or not.”
In fact, he could not even testify that the bloodstain was recent, conceding that it may have been as
much as ten years old.




                                                   13
                             SUPREME COURT OF OHIO




       {¶ 43} There are two problems with Wogenstahl’s argument.               First,
although the Indiana side of State Street itself does not enter Ohio, there are side
streets that intersect State Street that do lead into Ohio, and Wogenstahl could have
turned down one of them before returning to Indiana.            Second, and more
importantly, R.C. 2901.11(B) would allow Ohio to assert jurisdiction if the victim’s
death occurred in Ohio or if the fatal act occurred in Ohio, even if death ultimately
occurred in another jurisdiction. The UDF employee’s testimony may establish
that Amber was alive at 3:15, but it does not show that she was unharmed. The
fatal injuries may have been inflicted earlier. Therefore, Wogenstahl has not shown
that Ohio does not have jurisdiction.
       {¶ 44} Wogenstahl also asserts that we found in our earlier opinion in this
case that the murder occurred in Indiana. In support of this assertion, he quotes the
following language from that opinion:


       Appellant physically restrained Amber and bound her arms in the
       clothing she was wearing. A knife was held to Amber’s neck. She
       was transported in appellant’s vehicle across the Ohio-Indiana
       border.


75 Ohio St.3d at 367, 662 N.E.2d 311. In isolation, this sentence could be read to
suggest that Amber was alive when the pair crossed the state line. But the very next
sentence in the opinion reads,


       At some point, appellant killed Amber when he realized that he could
       not return her to the apartment without being identified as the
       perpetrator of the aggravated burglary and/or kidnapping offenses.




                                         14
                                 January Term, 2017




(Emphasis added). Id. Plainly, we took no position as to when in the sequence of
events the murder occurred.
        {¶ 45} Finally, Wogenstahl asserts that at trial, the state alleged that the
murder had occurred in Indiana. In closing argument, the prosecutor described
Amber dying under the juniper tree where she was found. However, as the trial
judge instructed the jurors, closing arguments are not evidence. State v. Maurer,
15 Ohio St.3d 239, 269, 473 N.E2d 768 (1984). Moreover, as discussed above,
Ohio can claim jurisdiction if the fatal blow was struck in Ohio, even if she survived
long enough to die in Indiana.
        {¶ 46} The evidence does not establish that the murder occurred in Indiana.
        {¶ 47} We find that it cannot be determined whether Amber was murdered
in Ohio or Indiana. Therefore, under R.C. 2901.11(D), the offense is conclusively
presumed to have taken place in Ohio. Accordingly, we hold that Ohio had
jurisdiction over the aggravated-murder charge.
                                                                 Judgment affirmed.
        O’DONNELL, FRENCH, CARR, and GALLAGHER, JJ., concur.
        FRENCH, J., concurs, with an opinion.
        O’CONNOR, C.J., dissents, with an opinion joined by O’NEILL, J.
        DONNA J. CARR, J., of the Ninth District Court of Appeals, sitting for
Fischer, J.
        EILEEN T. GALLAGHER, J., of the Eighth District Court of Appeals, sitting
for DeWine, J.
                                 _________________
        FRENCH, J., concurring.
        {¶ 48} I agree with the majority’s conclusion that the location of Amber
Garrett’s murder cannot be determined and that jurisdiction is therefore proper in
Ohio under R.C. 2901.11(D). I write separately because I believe that there is a
reasonable question as to the constitutionality of that statute and that this court




                                         15
                             SUPREME COURT OF OHIO




should have invited the parties to brief the issue before determining whether to
uphold Wogenstahl’s capital conviction.
        {¶ 49} The version of R.C. 2901.11(D) in effect at the time of the murder,
which is substantially similar to the current version, provided:


                When an offense is committed under the laws of this state,
        and it appears beyond a reasonable doubt that the offense or any
        element thereof took place either in Ohio or in another jurisdiction
        or jurisdictions, but it cannot reasonably be determined in which it
        took place, such offense or element is conclusively presumed to
        have taken place in this state for purposes of this section.


Am.Sub.H.B. No. 511, 134 Ohio Laws, Part II, 1866, 1893. Applying the statute
to the facts of this case, since the state proved that a murder occurred but was unable
to prove whether it occurred in Ohio or Indiana, the trial court and the jury had to
conclusively presume that it occurred in Ohio for purposes of determining
jurisdiction.
        {¶ 50} There is at least a colorable argument that the conclusive
presumption of jurisdiction in R.C. 2901.11(D) violates the Due Process Clause of
the Fourteenth Amendment to the United States Constitution.             A conclusive
presumption is one type of mandatory presumption, the other type being a
rebuttable presumption:


        A conclusive presumption removes the presumed element from the
        case once the State has proved the predicate facts giving rise to the
        presumption.    A rebuttable presumption does not remove the
        presumed element from the case but nevertheless requires the jury




                                          16
                                 January Term, 2017




        to find the presumed element unless the defendant persuades the jury
        that such a finding is unwarranted.


Francis v. Franklin, 471 U.S. 307, 314, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985), fn.
2. A mandatory presumption violates the Due Process Clause if it relieves the state
of the burden of persuasion as to an element of an offense, either by creating an
irrebuttable presumption or by shifting the burden of proof to the criminal
defendant. Id. at 325; Sandstrom v. Montana, 442 U.S. 510, 523-524, 99 S.Ct.
2450, 61 L.Ed.2d 39 (1979).
        {¶ 51} By its plain terms, R.C. 2901.11(D) creates a mandatory
presumption of jurisdiction: the jurisdiction of the Ohio courts is “conclusively”
presumed. It appears, then, that R.C. 2901.11(D) violates the rule of Francis and
Sandstrom if jurisdiction is an element of the offense that the state bears the burden
of proving. This court has not directly addressed that question. I note, however,
that this court has held that venue is an element of the crime that the state must
prove beyond a reasonable doubt. State v. Hampton, 134 Ohio St.3d 447, 2012-
Ohio-5688, 983 N.E.2d 324, ¶ 1-2, 22.
        {¶ 52} The foregoing should not be read to suggest any final conclusion as
to the constitutionality of the statute, only that the issue is worthy of consideration.
And because counsel for the defendant failed to raise the issue, I believe that the
court should have asked the parties to brief the constitutionality of R.C. 2901.11(D).
A challenge to subject-matter jurisdiction cannot be waived or forfeited and may
be raised at any time, State v. Mbodji, 129 Ohio St.3d 325, 2011-Ohio-2880, 951
N.E.2d 1025, ¶ 10, even by this court sua sponte, State v. Noling, 136 Ohio St.3d
163, 2013-Ohio-1764, 992 N.E.2d 1095, ¶ 10.
        {¶ 53} But presuming the constitutionality of the statute, I agree with the
majority’s disposition of Wogenstahl’s appeal.
                                _________________




                                          17
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       O’CONNOR, C.J., dissenting.
       {¶ 54} The jurisdictional error in this case bears a remarkable resemblance
to the one we unanimously corrected in State v. Yarbrough, 104 Ohio St.3d 1, 2004-
Ohio-6087, 817 N.E.2d 845. Here, as in Yarbrough, our duty compels an outcome
that is regrettable because of the grief it would cause the family and friends of the
victim. But it is an outcome that is necessary to preserve the integrity of the
criminal-justice system in Ohio. As we stated in Yarbrough, one expects diligence
by those participating in the prosecution of a defendant subject to the ultimate
penalty of death; failing to ensure that this state has jurisdiction in such a case is a
tremendous error and is a disservice to the citizens of Ohio and the victims of
violent crime. Id. at ¶ 4. We cannot ignore our duty to correct such an error.
       {¶ 55} The majority correctly finds that the evidence does not support the
state’s theory that Amber Garrett was killed in appellant Jeffrey Wogenstahl’s
apartment in Ohio. But I disagree with the majority’s conclusion that there is proof
beyond a reasonable doubt that the murder could have occurred in Ohio. Based on
the chronology of events established by the testimony of the state’s own witnesses,
it can reasonably be determined that Amber was murdered in Indiana. Thus, the
statutory presumption in R.C. 2901.11(D) permitting Ohio to exercise jurisdiction
over Wogenstahl’s aggravated-murder charge does not apply. Accordingly, I
respectfully dissent.
       {¶ 56} The majority holds that “a rational trier of fact could not have
concluded that Amber was killed in Wogenstahl’s apartment,” which is in Ohio, in
part because “the timeline established by the evidence * * * erodes the state’s
theory.” Majority opinion at ¶ 41. That same timeline makes it impossible for a
rational trier of fact to conclude that she was killed anywhere in Ohio.
       {¶ 57} The state’s witnesses established a clear and consistent timeline.
Eric, Amber’s sibling who was babysitting Amber on the night she disappeared,




                                          18
                               January Term, 2017




testified that Wogenstahl arrived at their apartment around 3:00 a.m. Eric’s
estimate of Wogenstahl’s arrival time is consistent with the testimony of Amber’s
mother, Peggy Garrett, who stated that she was with Wogenstahl at the Flicker Inn
from approximately 2:20 a.m. until she left for Waffle House, which she reached
around 3:00 or 3:15 a.m. Taken together, the testimony of Eric and Garrett establish
that the events that led to Amber’s murder began, at the earliest, around 3:00 a.m.
       {¶ 58} According to Eric’s testimony, Wogenstahl spent “five or ten
minutes” in the Garretts’ home before departing with Eric on the pretextual trip to
Troy Beard’s apartment. Here again, Eric’s testimony sets the time parameters: it
was 3:10 a.m. when Wogenstahl dropped him off a block away from Beard’s
apartment and “close to 3:30” by the time Eric walked back home to find the door
unlocked and Amber gone. Thus, the testimony established that Amber was
abducted no earlier than 3:10 a.m. and no later than 3:30 a.m.
       {¶ 59} The UDF employee’s testimony was consistent with and further
narrowed this timeline. She testified that she saw Wogenstahl and a young female
passenger drive past the UDF, heading south on the Indiana side of State Street at
3:15 a.m. The critical detail in the employee’s testimony is that the passenger, who
must have been Amber, was alive at the moment the car passed the UDF.


               I seen what looked like they were getting up and stretching
       and then laying back on the car door asleep.
               ***
               * * * All I could tell from the silhouette [of the passenger]
       was that when the person moved that there was a little bit of hair that
       moved forward and then it was brushed back a little bit and they laid
       back down.




                                         19
                            SUPREME COURT OF OHIO




       {¶ 60} This fact merits emphasis: the UDF employee saw Wogenstahl’s
vehicle traveling south on State Street (i.e., moving from right to left past the
employee standing in front of the UDF store and facing State Street). The state line
runs down the middle of State Street. So when the UDF employee saw Amber alive
at 3:15 a.m., Wogenstahl and his victim had already crossed over into Indiana.
       {¶ 61} As the majority concedes, the west side of State Street, the
southbound lane, does not reenter Ohio. Majority opinion at ¶ 42. Instead, State
Street becomes Jamison Road, which runs southwest entirely in Indiana.
       {¶ 62} Twenty-five minutes after Wogenstahl passed the UDF store,
multiple witnesses saw him and/or his parked car along the side of Jamison Road
in Indiana, at a spot roughly four miles from Harrison. Three of the witnesses were
drivers of passing cars, and they each testified that Wogenstahl’s car was at the
Jamison Road location in Indiana at approximately 3:40 a.m. Amber’s body was
discovered in the vicinity where the witnesses saw Wogenstahl’s car stopped on the
side of Jamison Road.
       {¶ 63} Amber died from multiple stab wounds and from blunt trauma to her
head; either would have been fatal. One passing motorist testified that he saw
Wogenstahl’s car with its trunk open by the side of Jamison Road in Indiana at
approximately 3:40 a.m. And as he passed the car, the witness saw a man who
“looked like [he] was getting something out of the trunk maybe.” Police later found
an automobile jack in the trunk of Wogenstahl’s car that was missing its handle.
And the deputy coroner testified that the blunt-trauma injuries to Amber’s head
were consistent with having been caused by a jack handle. Taken together, the
testimony of the motorist and the coroner strongly support the conclusion that the
assault that caused these injuries occurred by the side of Jamison Road in Indiana.
By “around 3:45 or 4 o’clock,” according to the UDF employee, Wogenstahl was
back in Harrison, where the UDF employee saw him at the self-serve car wash.




                                        20
                                      January Term, 2017




         {¶ 64} Thus, the evidence reasonably suggests that Amber was alive when
she was taken from Ohio, that she was seen alive in Wogenstahl’s vehicle in
Indiana, that the vehicle in which she was traveling did not return to Ohio with her
in it, that she was assaulted in Indiana, and that she died in Indiana.
         {¶ 65} Rather than draw the obvious conclusion from the evidence, the
majority holds that Ohio had jurisdiction based on the supposition that “[t]he fatal
injuries may have been inflicted earlier” than 3:15 a.m., when Amber was seen alive
in Wogenstahl’s car in Indiana. Majority opinion at ¶ 43. But the evidence does
not support this conjecture, and in fact, the evidence presented at trial does not
allow for this possibility.
         {¶ 66} If Wogenstahl inflicted the fatal injuries in Ohio earlier than 3:15
a.m., then he took only five minutes to drive from where he dropped Eric off near
Beard’s apartment (which he did at 3:10 a.m.) to the Garretts’ home, break in,
abduct Amber, inflict the fatal injuries, then drive with Amber on the Indiana side
of State Street (where he was seen driving past with Amber at 3:15 a.m.).
         {¶ 67} But there is no evidence that this hypothetical scenario occurred.
Investigators found no blood in Amber’s home, and the blood found in
Wogenstahl’s apartment did not indicate Amber as the source.6 The UDF employee
did not testify that the girl in the car was bloody or appeared to be in distress. And
the only blood evidence found in the car—a spot measuring 1/25 the size of a dime
on the rear, driver-side interior door handle—was inconclusive and may have been
as much as ten years old.




6
  Although the majority does not adopt the theory, the state suggests that the blood evidence is
relevant to permit a finding of jurisdiction in Ohio under R.C. 2901.11(B), which provides that a
victim’s death is presumed to have occurred in Ohio if any part of the victim’s body is found in the
state. But the blood was not conclusively linked to Amber. And the suggestion that blood would
be considered “any part of the body” under the statute is a novel theory that would be inappropriately
adopted here given the absence of any link between the blood and the victim.




                                                 21
                                SUPREME COURT OF OHIO




          {¶ 68} In the alternative, the majority adopts the state’s suggestion that after
passing the UDF at 3:15 a.m., Wogenstahl may have diverted back into Ohio before
the motorists saw him on Jamison Road in Indiana at 3:40 a.m. The majority states,
“[T]here are side streets that intersect State Street that do lead into Ohio, and
Wogenstahl could have turned down one of them before returning to Indiana.”
(Emphasis added.) Majority opinion at ¶ 43. The state nominates Sunset Avenue
and Whitewater Drive as possible routes back into Ohio. What is the basis for this
conjecture?
          {¶ 69} The UDF is on the corner of State and Sunset.7 The UDF employee
testified that when she saw Wogenstahl’s car at 3:15 a.m., it “was going too fast”
to turn into the UDF and it “kept on going by.” This testimony precludes any
possibility that Wogenstahl turned onto Sunset Avenue. And the prosecution’s
timeline makes it a virtual impossibility that Wogenstahl had time for a side trip by
turning east on Whitewater Drive.
          {¶ 70} Thus, although there is evidence that the fatal injuries and the death
both occurred in Indiana, there is no evidence that either the injuries or the death
occurred in Ohio. Nonetheless, the majority asserts that either scenario is equally
likely so it cannot reasonably be determined in which state the murder took place.
I disagree. Conjecture cannot establish beyond a reasonable doubt that the offense
could have taken place in Ohio.
          {¶ 71} Based on the record, it is not reasonably ambiguous where the fatal
injuries or death occurred. The evidence points to Indiana. As a result, the state of
Ohio had no jurisdiction pursuant to R.C. 2901.11 over Wogenstahl’s murder
charge. Thus, his aggravated-murder conviction is void and should be vacated.
Wogenstahl’s remaining convictions for kidnapping and aggravated burglary,


7
    https://www.google.com/maps/@39.2552694,-84.8191324,19.55z.




                                            22
                                      January Term, 2017




crimes that the state did demonstrate occurred in Ohio, would not be disturbed by
this holding.
         {¶ 72} Because Wogenstahl’s Ohio conviction for aggravated murder is
void for lack of jurisdiction, double jeopardy would not bar his retrial in Indiana.
See, e.g., In re S.J., 106 Ohio St.3d 11, 2005-Ohio-3215, 829 N.E.2d 1207, ¶ 14
(noting that a claim of former jeopardy cannot be based on a void judgment);
Montana v. Hall, 481 U.S. 400, 402, 107 S.Ct. 1825, 95 L.Ed.2d 354 (1987) (“It is
a ‘venerable principl[e] of double jeopardy jurisprudence’ that ‘the successful
appeal of a judgment of conviction, on any ground other than the insufficiency of
the evidence to support the verdict, * * * poses no bar to further prosecution on the
same charge’ ” [brackets sic]), quoting United States v. Scott, 437 U.S. 82, 90-91,
98 S.Ct. 2187, 57 L.Ed.2d 65 (1978). And any purported uncertainty as to the
location of the murder will not benefit Wogenstahl a second time. Under current
Indiana law, “[i]f the body of a homicide victim is found in Indiana, it is presumed
that the result occurred in Indiana.”8 Ind.Code 35-41-1-1(c). This jurisdictional
provision has been substantively unchanged since it was enacted in 1976. See Ind.
Acts 1976, Pub.Law No. 148-1976, section 1.                        Therefore, it appears that
Wogenstahl will not be able to escape the jurisdiction of the Indiana courts.9
         {¶ 73} As we recognized in Yarbrough, “[t]he General Assembly has not
authorized an Ohio court of common pleas to exercise jurisdiction over the
prosecution of a defendant for the crime of aggravated murder when, as here, the
killing occurred in another state.” Id. at ¶ 1. Pursuant to the version of R.C. 2901.11
in effect at the time of this crime, the state of Ohio had no jurisdiction to try


8
  The Indiana statute makes clear that, in homicide cases, “result” refers to “either the death of the
victim or the bodily impact causing death.” Ind.Code 35-41-1-1(c).
9
  I note that Indiana law permits imposition of the death penalty in cases of felony murder predicated
on kidnapping, Ind.Code 35-50-2-9(b)(1)(E), as well as for the murder of a person under the age of
12, Ind.Code 35-50-2-9(b)(12). The same provisions were in effect in November 1991, at the time
of the crime. See Ind. Acts 1990, Pub.Law No. 1-1990, section 354.




                                                 23
                            SUPREME COURT OF OHIO




Wogenstahl for murder. His aggravated-murder conviction is void and should be
vacated, and Wogenstahl should be tried in Indiana for the murder.
       {¶ 74} For these reasons, I dissent.
       O’NEILL, J., concurs in the foregoing opinion.
                              _________________
       Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R.
Cummings and Sean M. Donovan, Assistant Prosecuting Attorneys, for appellee.
       Timothy Young, Ohio Public Defender, and Kimberly Rigby and Elizabeth
Arrick, Assistant Public Defenders, for appellant.
                              _________________




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