State v. Pearce , 2017 Ohio 8386 ( 2017 )

[Cite as State v. Pearce, 2017-Ohio-8386.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. Patricia A. Delaney, P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
:
-vs- :
: Case No. 17-COA-013
GREGORY A. PEARCE :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Ashland County
Court of Common Pleas, Case No. 15-CRI-
068
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 30, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHRISTOPHER TUNNELL MATTHEW MALONE
VICTOR PEREZ 10 East Main Street
110 Cottage Street Ashland, OH 44805
Ashland, OH 44805
Ashland County, Case No. 17-COA-013 2
Gwin, J.
{¶1} Appellant Gregory A. Pearce ["Pearce"] appeals his conviction and
sentence after a jury trial in the Ashland County Court of Common Pleas for one count
of domestic violence in violation of R.C. 2919.25(A), a felony of the third degree due to
two prior convictions for domestic violence.
Facts and Procedural History
{¶2} LaShell Cordwell met Pearce through social media. Shortly after meeting
him, she and two of her children moved to Pearce’s home. This was a romantic
relationship, and they shared household expenses.
{¶3} On April 11, 2015, Pearce and Cordwell were drinking alcohol before going
to their friend David Hazelton's house located at 240 State Route 604, in Polk, Ashland
County, Ohio. While at Hazelton’s house, the couple consumed more alcohol. Cordwell
admitted smoking marihuana. When the couple decided to go home, Cordwell believed
that Pearce was too drunk to drive. Cordwell testified, "I got in the driver's seat and I was
going to drive home... He wanted to drive so he hit me in the nose and I got in the
passenger's seat and we went home.” 1T. at 32. She then testified that she "started
bleeding on the lips.” Id. Upon arriving home, located at 107 West Congress Street,
Ashland, Ohio, Cordwell was able to slip away. She walked to the Polk Market and Deli
where she told an employee at the store that Pearce hit her. Cordwell used the store’s
telephone to call her mother. Cordwell’s brother, Curtis Stackhouse, called the police.
{¶4} Hazelton’s recollection of the events that transpired that evening differed
from Cordwell’s recollection. Hazelton recalled that he did not see Pearce strike Cordwell.
Rather, the couple argued and it was decided that Pearce would drive the car. The couple
Ashland County, Case No. 17-COA-013 3
returned a short time after leaving to look for a missing cell phone. At this time,
approximately five minutes after they had initially left, Hazelton noticed blood on
Cordwell’s face. (1T. at 93).
{¶5} Curtis Stackhouse testified that on April 11, 2015, Cordwell did not tell him
any details concerning her altercation with Pearce. 1T. at 105. However, he further
testified without objection that he had spoken to Cordwell since that time and she related
that Pearce backhanded her in the nose during the time that the couple was in the car in
route to their home. 1T. at 106.
{¶6} Deputy Kyle Pigeon of the Ashland County Sheriff's Office testified that he
had responded to 107 West Congress St. in Polk where Pearce was refusing to come out
of his home. He further testified that Polk is in Ashland County, Ohio. Deputy Pigeon
testified that State Route 604, where Mr. Hazelton lived, is the county line between
Ashland and Wayne counties. 1T. at 141.
{¶7} At the close of the State's case, Pearce moved the trial court for an acquittal
pursuant to Crim. R. 29 alleging that venue had not been proven. 1T. at 144. The trial
court overruled that motion after taking it under advisement and researching the issue.
2T. at 161.
{¶8} The jury convicted Pearce of domestic violence and further found that he
had been convicted of domestic violence on two prior occasions.
Assignment of Error
{¶9} Pearce raises one assignment of error,
{¶10} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW BY FAILING TO
GRANT APPELLANT'S CRIMINAL RULE 29 MOTION FOR ACQUITTAL.”
Ashland County, Case No. 17-COA-013 4
Law and Analyses
Standard of Review.
{¶11} In determining whether a trial court erred in overruling an appellant's motion
for judgment of acquittal, the reviewing court focuses on the sufficiency of the evidence.
See, e.g., State v. Carter, 72 Ohio St. 3d 545, 553, 651 N.E.2d 965(1995); State v. Jenks,
61 Ohio St. 3d 259, 273, 574 N.E.2d 492 (1991), superseded by State constitutional
amendment on other grounds in State v. Smith, 80 Ohio St. 3d 89, 684 N.E.2d 668 (1997).
“Sufficiency of the evidence is a legal standard that tests whether the evidence introduced
at trial is legally sufficient to support a verdict.” State v. Cassell, 10th Dist. No. 08AP-
1093, 2010-Ohio-1881, 2010 WL 1731238, ¶ 36, citing State v. Thompkins, 78 Ohio St. 3d
380, 386, 678 N.E.2d 541 (1997).
{¶12} In reviewing a challenge to the sufficiency of the evidence, an appellate
court must determine “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 reasonable doubt.” State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492
(1991), paragraph two of the syllabus. Where the evidence, “if believed, would convince
the average mind of the defendant’s guilt beyond a reasonable doubt,” it is sufficient to
sustain a conviction. Id.
Legal Standard - Venue.
{¶13} Section 10 of Article I of the Ohio Constitution requires that: “* * * [i]n any
trial, in any court, the party accused shall be allowed * * * a speedy public trial by an
impartial jury of the county in which the offense is alleged to have been committed * * *. “
Crim.R. 18(A) states that, “(t)he venue of a criminal case shall be as provided by law.”
Ashland County, Case No. 17-COA-013 5
{¶14} “[J]urisdiction and venue are not the same, as the former denotes the power
of the court to hear the case and the latter denotes the situs of trial.” State v. Giffin, 62
Ohio App. 3d 396, 403, 575 N.E.2d 887 (10th Dist. 1991), citing State v. Loucks, 28 Ohio
App.2d 77, 274 N.E.2d 773 (4th Dist. 1971). Proper venue insures that “the state [does
not] indiscriminately [seek] a favorable location for trial or [select] a site that might be an
inconvenience or disadvantage to the defendant.” State v. Meridy, 12th Dist. No.
CA2003-11-091, 2005-Ohio-241, 2005 WL 123993, ¶ 12, quoting State v. Gentry, 61 Ohio
Misc.2d 31, 34, 573 N.E.2d 220 (1990).
{¶15} While venue is not a material element of the offense as charged, it is a fact
that the state must prove beyond a reasonable doubt unless waived by a criminal
defendant. State v. Hampton, 134 Ohio St. 3d 447, 2012-Ohio-5688, 983 N.E.2d 324, ¶
22; State v. Birt, 12th Dist. Butler No. CA2012-02-031, 2013-Ohio-1379, 5 N.E.3d 1000,
¶ 27. “Venue need not be proven in express terms; it may be established either directly
or indirectly by all the facts and circumstances of the case.” State v. Jackson, 141 Ohio
St.3d 171, 2014-Ohio-3707, 23 N.E.3d 1023, ¶ 144.
{¶16} In State v. Engle, this court observed,
In addition, although ‘the venue requirement is principally a
protection for the defendant,’ Cabrales, 524 U.S. at 9, 118 S. Ct. 1772, 141
L. Ed. 2d 1, other policy considerations are relevant to the proper venue in
particular cases. To determine whether the application of a venue provision
in a given prosecution comports with constitutional safeguards, a court
should ask whether the criminal acts in question bear ‘substantial contacts'
with any given venue. United States v. Reed, 773 F.2d 477, 481 (2d Cir.
Ashland County, Case No. 17-COA-013 6
1985). The substantial contacts rule offers guidance on how to determine
whether the location of venue is constitutional, especially in those cases
where the defendant's acts did not take place within the district selected as
the venue for trial. While it does not represent a formal constitutional test,
Reed is helpful in determining whether a chosen venue is unfair or
prejudicial to a defendant. This test takes into account four main factors:
(1) the site of the crime, (2) its elements and nature, (3) the place where the
effect of the criminal conduct occurs, and (4) suitability of the venue chosen
for accurate fact-finding. See id. at 481.” United State v. Saavedra (2nd Cir.,
2000), 233 F.3d 85, 92-93.
5th Dist. Fairfield No. 03-CA-84, 2005-Ohio-276, ¶43. Ohio’s venue statute further
provides that when an offender commits offenses in different jurisdictions as part of a
course of criminal conduct, venue lies for all the offenses in any jurisdiction in which the
offender committed one of the offenses or any element thereof. R.C. 2901.12(H).
Offenses “committed as part of the same transaction or chain of events, or in furtherance
of the same purpose or objective” serve as “prima facie evidence of a course of criminal
conduct.” R.C. 2901.12(H)(3).
The evidence in the case at bar establishes venue in Ashland County, Ohio.
{¶17} In the case at bar, both Pearce and Cordwell live in Ashland County. (1T.
at 59; 70, 77-78). The store clerk present on April 11, 2015 testified that the store was
located in Ashland County, Ohio. (1T. at 86). Mr. Hazelton testified that his home is
located in Ashland County, Ohio. (1T. at 90). The dispatcher for the Ashland County
Sherriff’s Office received the call from Mr. Stackhouse on April 11, 2015. (1T. at 98-99).
Ashland County, Case No. 17-COA-013 7
Three deputies from the Ashland County Sheriff’s Department testified concerning their
involvement in the gathering of evidence and the arrest of Pearce. (1T. at 112; 119; 136).
The record does not contain evidence that venue was proper in any other county. Pearce
has not argued any identifiable prejudice resulted in his being tried in Ashland County.
{¶18} It clearly appears beyond a reasonable doubt from all the evidence that the
criminal transaction occurred in Ashland County, Ohio. “The venue need not be proved
in express terms, where the evidence is such in the state’s case that no other inference
can be reasonably drawn by the jury.” State v. Dickerson, 77 Ohio St. 34, 56, 82 N.E.
969(1907), citing Tinney v. State, 111 Ala. 74, 20 So. 597.
Conclusion.
{¶19} For all of these reasons, we overrule Pearce’s sole assignment of error.
{¶20} The judgment of the Ashland County Court of Common Pleas is affirmed.
By Gwin, J.,
Delaney, P.J., and
Hoffman, J., concur