Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office
Change of venue
R.C. 2901.12 -- Venue.
R.C. 2931.29 -- Procedure on change of venue.
Criminal Rule 18 -- Venue and Change of venue.
State v. Gonzalez, 188 Ohio App. 3d
2010-Ohio-982 – Rule 29 motion maintained the prosecution in a sexual
imposition case had failed to prove venue. The trial court overruled the motion
based on the prosecutor’s assertion the victim testified the incident took place
in “Richwood,” apparently a town in Union County. On review of the record, there
was no such testimony. Nor was venue otherwise established. Reversed. The
prosecutor made the pitch at oral argument that venue could be inferred from the
fact the investigation officer’s jurisdiction was within that of the court. ¶8:
“Arguments presented for the first time on appeal will not be addressed by the
appellate court.” See State v. Awan (1986) 22 Ohio St. 3d 120.
In re W.W., 190 Ohio App. 3d 653,
2010-Ohio-5305 – Juvenile court dismissed abuse proceedings for lack of
venue, apparently mistakenly believing that the child welfare agency that
brought the action had to prove the abuse occurred or the child lived in the
city of Painesville, though he actually lived in Painesville Township. Both are
in Lake County. Court did not lack jurisdiction. Venue was proper. Even if it
were not, the court could transfer the case to a county where venue was proper.
While a dismissal based on lack of venue is generally not appealable, it is here
because the court dismissed for lack of jurisdiction.
State v. Moller, Greene App. No.
2002-Ohio-1890 -- Northern Ohio defendant was disappointed to learn
that the 14-year old girl he met in a chat room was an undercover officer in
Xenia. Venue lay in Greene County because the defendant travelled there to
engage in sex with a minor, not because the Xenia Police had engaged in an
Internet conversation with someone at a remote location.
State v. Jalowiec (2001), 91 Ohio St. 3d
220, 229 -- Though homicide took place in Cuyahoga County, venue lay in Lorain
County as that is where prior calculation and design occurred.
State v. DeBoe, Huron App. No. H-02-057,
2004-Ohio-403 -- Defendant could be tried for theft of car in Lucas County along
with other offenses arising from the same course of criminal conduct committed
in Huron County.
State v. Shaw (1999), 134 Ohio App. 3d 316
-- State failed to prove venue in a prosecution for sexual imposition, unlawful
restraint and assault. Description of area where offense occurred did not place
it within Greene County. Nor did hearsay testimony of deputy to the effect that
Dayton Police stopped investigating after determining offense took place in
State v. Kiefer (2000), 104 Ohio Misc. 2d
37 -- State failed to prove venue in an underage drinking case. Dismissed on
Rule 29 motion. Not guilty plea did not waive state's obligation to prove venue.
Nor was the issue one that must be raised by pretrial motion such as when an
indictment returned in one county specifically charges conduct in another.
State v. Barr, 158 Ohio App. 3d 86,
2004-Ohio-3900 -- Venue may be established indirectly by the totality of the
facts and circumstances of the case, such as street and town names. Two issues
are presented: (1) Whether a case is properly venued in the trial court. (2)
Whether a crime took place within that venue.
State v. Singleton (February 26, 2002),
Franklin Co. App. No. 01AP-632,
2002-Ohio-784 -- Reversal where a Rule 29 motion
was granted following opening statements because venue was concluded not to lie
in Franklin County. Retrial is not barred since double jeopardy does not attach
until the court begins to hear evidence.
State v. Andrews, 148 Ohio App. 3d 92,
2002-Ohio-787 -- The allegation in the indictment that an offense was committed
in Franklin County is sufficient to defeat a motion to dismiss based upon
improper venue. However,
R.C. 2901.12(K) permits venue to be changed upon motion
of the defense when it appears trial should be held in another county for the
convenience of the parties and in the interest of justice. Such removal will not
be overturned unless it is clearly shown the court abused its discretion.
State v. Farthing, 146 Ohio App. 3d
2001-Ohio-7077 -- Defendant was apparently on parole in Greene County, but
the APA did not maintain a local office and the P.O. worked out of another
county. Statements leading to charges were made at a prison in Pickaway County.
Greene County was not the proper venue for trial of a retaliation charge.
State v. Headley (1983), 6 Ohio St. 3d
475, 477 -- Though venue is not an element of the offense charged, it is a fact
which must be proven beyond a reasonable doubt. Also see State v. Draggo
(1981), 65 Ohio St. 2d 88; State v. McCartney (1988), 55 Ohio App. 3d 170
(venue is a personal privilege).
State v. Dickinson (1907), 77 Ohio St. 34
-- Venue need not be proven in express terms, so long as it is established by
all the facts and circumstances in the case. Also see State v. Gribble
(1970), 24 Ohio St. 2d 85, paragraph two of the syllabus; State v. Khong
(1985), 29 Ohio App. 3d 19, 29-30; State v. Collins (1977), 60 Ohio App.
2d 116, 124-125.
State v. Gardner (1987), 42 Ohio App. 3d
157 -- Headnote: "A conviction cannot be supported when the evidence is not
sufficient to establish venue beyond a reasonable doubt, despite the failure of
counsel to bring the insufficiency to the attention of the trial court."
State v. Sutton (1979), 64 Ohio App. 2d
105, 107-109 -- Under the rule of priority, the first county to prosecute has
priority. However, the entry of a nolle in that county allows another county to
State v. Williams (1988), 53 Ohio App. 3d
1 -- Criminal Rule 7(D) permits amendment of an indictment with respect to
State v. Beuke (1988), 38 Ohio St. 3d 29
-- Syllabus: "(1) 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].) (2) Consistent with the Sixth Amendment to the
United States Constitution, a person who commits a crime partly in one state and
partly in another state may be tried in either state." Also see State v.
(1985), 27 Ohio App. 3d 149, 145 (residence in county at least part of each of
years charged in counts based on a continuing course of conduct); State v.
Draggo (1981), 65 Ohio St. 2d 88 (theft in office charge - defendant's
paychecks issued in Franklin County).
State v. Urvan (1982), 4 Ohio App. 3d 151
-- Headnote 2: "The state may not, either by design or inadvertence, separate
charges originating in one 'course of criminal conduct' and pursue them
separately in the courts of more than one county even though venue could be laid
in any one of the counties under
R.C. 2901.12(H)." Also see
State v. Anderson
(1989), 57 Ohio App. 3d 108 -- Only one OMVI prosecution allowed of an already
drunk driver who operated in two counties. Compare State v. Mutter
(1983), 14 Ohio App. 3d 356 (prosecution allowed where drug sales were in
separate counties); State v. Amato (1989), 55 Ohio App. 3d 32 (construed
as separate courses of criminal conduct).
State v. Miller (1989), 63 Ohio App. 3d
479, 485 -- When it cannot be determined in which county an offense took place,
but it is clear it occurred in one of several counties, venue lies in any of the
counties. Also see State v. Cremeans (1982), 5 Ohio App. 3d 8.
State v. Chintalpalli (2000), 88 Ohio St.
3d 43 -- Ohio court had jurisdiction to prosecute father for nonsupport, even
though he no longer lived in state, since support order arose form an Ohio
divorce. Venue was proper in the county where the divorce was granted.
Fairfield v. McRoberts (1995), 100 Ohio
App. 3d 476 -- Threats were made during a phone call between counties. Venue lay
in either county, since the element of the victim's belief of impending physical
harm occurred in the county where she heard the threats. See dissent.
State v. Tinch (1992), 84 Ohio App. 111,
119-120 -- Venue lies where the body is found, even though it is not shown where
the homicide occurred.
State v. Pumpelly (1991), 77 Ohio App. 3d
470 -- Venue lies in the county where an offer to sell drugs was made, even
though the transaction may have been completed in another county.
State v. Hackworth (1992), 80 Ohio App. 3d
363 -- Venue lay in the county where a drug sale was arranged, even though
delivery took place elsewhere.
State v. Haddix (1994), 93 Ohio App. 3d
470, 479 -- In a RICO prosecution, venue lies in the county where the conspiracy
to steal was hatched, even though the theft took place in a different county.
State v. Giffin (1991), 62 Ohio App. 3d
392 -- (1) Where some elements of the offense of engaging in a pattern of
corrupt activity occurred in Franklin County, venue also lay in Franklin County
for trial of predicate offenses committed elsewhere. (2)
does not allow an organized crime task force to fix venue in a jurisdiction not
otherwise proper under
State v. Fields (1992), 84 Ohio App. 3d
423 -- If venue was not proper as to one of three closely related charges, it
was not proper as to the other two.
State v. Shuttlesworth (1995), 104 Ohio
App. 3d 282, 286-287 -- Though there may not have been testimony naming the
county in which the incident occurred, references to address, nearby landmarks,
and the municipal police department involved were sufficient to support finding
In re Meyer (1994), 98 Ohio App. 3d 189,
192-193 -- Agency's complaint seeking permanent custody of children was filed in
Defiance County one month after the family had moved to Paulding County.
Apparently the children remained wards of the Defiance County court and were not
the wards of any other Ohio court. Thus the court had jurisdiction. Pursuant to
R.C. 2151.271 and Juv. R. 11 venue is a matter within the discretion of the
court, and was also proper.
Return to top of page
Skilling v. United States (2010), 130
S.Ct. 2896 – Extensive pretrial publicity does not compel a change of venue. The
court sets the bar at the level of Rideau v. Louisiana (1963), 373 U.S.
723 where a televised confession was played several times on TV, in effect
serving as the defendant’s guilty plea.
State v. Prade (2000), 139 Ohio App. 3d
676, 686 -- A complete transcript of voir dire is essential for consideration of
an assignment of error concerning change of venue.
State v. Lynch, 98 Ohio St. 3d 514, ¶ 37
-- "The absence of defense challenges for pretrial publicity, and the failure to
exhaust defense peremptory challenges, indicate that the defense was not
particularly troubled by the jury's exposure to pretrial publicity once voir
dire was completed."
State v. Gross, 97 Ohio St. 3d 121,
2002-Ohio-5524, ¶28-30 -- No error in denial of a change of venue motion where
the court excused over one hundred prospective jurors because they knew an
individual involved in the case or had formed an opinion regarding guilt or
innocence, and seated no jurors so affected.
Sheppard v. Maxwell (1966), 384 U.S. 333,
362 -- "Due process requires that the accused receive a trial by an impartial
jury free from outside influences. Given the pervasiveness of modern
communications and the difficulty of effacing prejudicial publicity from the
minds of the jurors, the trial courts must take strong measures to ensure that
the balance is never weighted against the accused." Identifiable prejudice need
not be shown if the totality of the circumstances raises the probability of
Irvin v. Dowd (1960), 366 U.S. 717 --
Second change of venue should have been granted where problems arising from
adverse pretrial publicity existed in adjacent county to which trial had been
State v. Herring (1984), 21 Ohio App. 3d
18 -- "In the absence of a clear and manifest showing by the defendant that
pretrial publicity was so pervasive and prejudicial that an attempt to seat a
jury would be a vain act, and in the interest of judicial economy, convenience
and expense to the taxpayer, a good faith effort should be made to empanel a
jury before the trial court grants a motion for a change of venue."
State v. Potter (1989), 64 Ohio App. 3d
549 -- Though the court may attempt to seat a jury before passing on a motion
for a change of venue, it is not required to do so and may simply grant the
State v. Swiger (1966), 5 Ohio St. 2d 151
-- Paragraph one of the syllabus: "The examination of jurors upon their voir
dire affords the best test as to whether prejudice exists in the community
against the defendant, and where it appears that opinions as to the guilt of the
defendant of those called for examination for jurors are not fixed but would
yield readily to evidence, it is not error to overrule an application for a
change of venue, in absence of a clear showing of an abuse of discretion." Also
see State v. Maurer
(1984), 15 Ohio St. 3d 239, 249-252; State v. Osborne (1976), 49 Ohio St.
2d 135, 139-141; State v. Bayless (1976), 48 Ohio St. 2d 98; State v.
Booher (1988), 54 Ohio App. 1, 13-15.
State v. Lundgren (1995), 73 Ohio St. 3d
474, 478-480 -- Though a change of venue might have been prudent, no abuse of
discretion was demonstrated where the trial judge readily excused those in the
venire who had formed fixed opinions or were otherwise unsuitable. The jurors
selected did not appear to have been exposed to media publicity, and did not
appear to have formed more than tentative opinions which they said they were
prepared to put aside. Despite survey, this was not one of the rare cases in
which prejudice may be presumed. Nor was the court obligated to order a new
trial in view of the change of venue granted a codefendant. Also see State v.
Davis (1996), 76 Ohio St. 3d 107, 110-112.
State v. Gumm (1995), 73 Ohio St. 3d 413,
430-431 -- Defendant's claim a change of venue should have been granted was not
aided by the failure of trial counsel to challenge for cause those jurors
exposed to pretrial publicity. Companion case: State v. Bies (1996), 74
Ohio St. 3d 320, 323-324.
State v. Nobles (1995), 106 Ohio App. 3d
246, 257-261 -- No error of constitutional dimension for inquiry into exposure
to pretrial publicity to be done entirely from the bench. No indication that
counsel asked to participate or took exception to questions asked.
State v. Johnson (1972), 31 Ohio St. 2d
106 -- Paragraph three of the syllabus: "In a trial where defendant offered the
only evidence on his motion for a change of venue, the failure of the
prosecution to offer any evidence contra such motion does not necessarily
establish a prima facie case for the granting of a change of venue. The
possibility of bias or prejudice, or danger of an unfair trial as set forth in
the motion to transfer the cause is directed to the discretion of the trial
State v. Fairbanks (1972), 32 Ohio St. 2d
34 -- A single newspaper article and several radio broadcasts shortly after the
defendant's arrest, none of which were inflammatory, did not give rise to the
reasonable likelihood that the defendant would not receive a fair trial.
State v. Kassow (1971), 28 Ohio St. 2d
141, 149 -- A transcript of jury selection is essential to preserve for appeal
claims of prejudice against the defendant, arising from pretrial publicity,
warranting a change of venue.
State v. Milo (1986), 28 Ohio App. 3d 60
-- Trial was moved to Franklin County from Summit County but subsequent motion
for a new trial was filed in Summit County. Though Franklin County may have been
the proper place to file the motion, jurisdiction of the court of appeals is
determined by the county of actual filing and appeal from Summit County Court of
Common Pleas does not lie to the Franklin County Court of Appeals.
Return to top of page