How Improper Venue In A Criminal Trial Can Lead To An Acquittal

If you walked up to a first year law student and asked said law student to explain to you venue, you would most likely see fear in law student’s face before he/she took off in the opposite direction.  The concept of venue and jurisdiction is hammered into every first year law student’s through their Civil Procedure class.  Although venue and jurisdiction is usually taught outside of the criminal context, it is as just important for criminal cases.  So important, as we will discuss in State v. Baker, 2013-Ohio-2398, it can led to an acquittal of criminal charges.

In Baker, Baker was indicted on three counts of trafficking in marijuana, two counts of possession of marijuana, two counts of cultivation of marijuana, two counts of possession of criminal tools, and one count of engaging in a pattern of corrupt pattern, after an undercover narcotics investigation took place.  Said investigation was throughout Hamilton County, Butler County, and Warren County.

This marijuana bust all started with a juvenile named Pagenstecher.  The Warren County Drug Task Force began to investigate Pagenstecher on suspicion of drug trafficking.  During their investigation, the police determined that Pagenstecher’s marijuana supplier was Lopez, who in turn purchased his marijuana from a wonderful couple known as the Lampes.  The Lampes grew their own marijuana for distribution and also purchased marijuana grown by Baker.  Bake had two grow houses with about 350 marijuana plants.

Wanting to get to Baker, the Drug Task Force managed to get Pagenstecher to rat out Lopez, who ratted out the Lampes, who ratted out Baker.  Eventually the Drug Task Force made it to Baker’s warehouse located in Butler County.  It was from there that Baker was arrested.

After a bench trial, Baker appealed his conviction to the appellate court arguing that the trial court erred by convicting him in an improper venue.  Let’s see how Baker made out.

The Ohio Constitution establishes a defendant’s right to a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed.  The Ohio State Supreme Court has stated that “the Ohio Constitution fixes venue, or the proper place to try a criminal matter.”  State v. Hampton, 2012-Ohio-5688.  Establishing the correct venue is imperative in order to give the defendant the right to be tried in the vicinity of his alleged criminal activity; the need to have venue is to limit the state from indiscriminately seeking a favorable location for trial or selecting a site that might be an inconvenience or disadvantage for the defendant.  State v. Meridy, 2005-Ohio-241.

The standard to establish venue is whether appellant has a significant nexus with the county where the trial was held, as determined by whether one or more of the elements of an offense occurred in the county in which the charge is brought.  State v. Stone, 2008-Ohio-5671.  Due to this, and pursuant to R.C. 2901.12, the trial of a criminal case in Ohio 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.

Although venue is not a material element of any offense charged, the state must nonetheless prove beyond reasonable doubt that the crime charged was committed in the county where the indictment was returned and the trial held, unless the issue of venue is waived by the defendant.  Meridy.  A conviction may not be had in a criminal case where the proof fails to show that the crime alleged in the indictment occurred in the county where the indictment was returned.  Hampton.

The venue statute 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.

The state, in Baker’s case, alleged that Warren County was the proper venue because Baker engaged in a pattern of corrupt activity within Warren County.  This was based on R.C. 2923.32 which states, “no person employed by, or associated with, any enterprise shall conduct or participate in, directly or indirectly, the affairs of the enterprise through a pattern of corrupt activity or the collection of an unlawful debt.”

Through the indictment, the state was alleging that Baker directly or indirectly conducted or participated in corrupt activity with a group of persons associated-in-fact to traffic marijuana in Warren County.

To support its claim, the state produced evidence that Baker sold marijuana to the Lampes, that the Lampes sold marijuana to Lopez, that Lopez sold marijuana to Pagenstecher, and that Pagenstecher sold marijuana in Warren County.  Thus, an element of engaging in a pattern of corrupt activity occurred when Pagenstecher sold marijuana in Warren County thereby providing venue in Warren County.

The appellate court, however, was quick to point out that the state failed to prove beyond a reasonable doubt that Baker was direct or indirect participant in the corrupt activity of a group of persons associated-in-fact conducting the affairs of an enterprise in Warren County.  To further its point, the appellate court pointed out that the state did not prove that the marijuana that Baker sold to the Lampes was the same marijuana that was eventually sold in Warren County by Pagenstecher.

After finding that the state failed to prove venue beyond reasonable doubt, the appellate court went on to state that a judgment of acquittal is to be entered when the state fails to prove venue, and that such acquittal was a final verdict as that term is used in R.C. 2945.67. State v. Hampton, 2012-Ohio-5688.  Thus, double jeopardy is attached and bars the State of Ohio from prosecuting Baker on the alleged charges.

While reading the facts of the case, I found the whole “he sold weed to this guy, and that guy sold weed to this guy, and that guy sold weed to this guy” to be very weak.  That is up there with Adam Sandler’s singing in his hit song Mel Gibson, “I know a guy, who knows a guy, who knows Mel Gibson!”

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