State v. Brown-Bowman
This text of 2017 Ohio 7974 (State v. Brown-Bowman) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
[Cite as State v. Brown-Bowman, 2017-Ohio-7974.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : Hon. Earle E. Wise, Jr., J. -vs- : : DANIEL BROWN-BOWMAN : Case No. 2017CA00059 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2016CR1378
JUDGMENT: Affirmed
DATE OF JUDGMENT: September 29, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO STEVEN A. REISCH Prosecuting Attorney 201 Cleveland Avenue, SW By: KRISTINE W. BEARD Suite 104 Assistant Prosecuting Attorney Canton, OH 44702 110 Central Plaza South Suite 510 Canton, OH 44702-1413 Stark County, Case No. 2017CA00059 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant, Daniel Brown-Bowman, appeals his April 6, 2017
conviction in the Court of Common Pleas of Stark County, Ohio. Plaintiff-Appellee is the
state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On April 2, 2016, a confidential informant sent a text message to appellant
to arrange a drug buy (methamphetamine). The informant was located at the Alliance
Police Department in Stark County, Ohio when he sent the text.
{¶ 3} Appellant responded to the text, and the informant met appellant at
appellant's residence located within the bordering county of Mahoning County, Ohio and
completed the drug purchase. Based upon what was observed during this sale, a
search warrant was executed on appellant's residence. As a result, appellant was
charged in Mahoning County with manufacturing methamphetamine and subsequently
pled guilty to illegal possession/assembly of chemicals for manufacturing drugs.
Appellant was sentenced to four years in prison.
{¶ 4} On August 1, 2016, the Stark County Grand Jury indicted appellant on one
count of trafficking in drugs in violation of R.C. 2925.03 stemming from the drug buy in
Mahoning County. The subject drug buy was not included in the charges appellant
faced in Mahoning County. On November 29, 2016, appellant filed a motion to dismiss
the indictment based on improper venue because the drug buy occurred in Mahoning
County. A hearing was held on December 28, 2016. By judgment entry filed March 21,
2017, the trial court denied the motion, finding "an element of the offense of drug Stark County, Case No. 2017CA00059 3
trafficking, namely the offer to sell a controlled substance, occurred here in Stark
County, Ohio."
{¶ 5} On March 30, 2017, appellant pled no contest to the charge. By judgment
entry filed April 6, 2017, the trial court found appellant guilty and sentenced him to
eighteen months in prison, to be served concurrently with the Mahoning County
sentence.
{¶ 6} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶ 7} "THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO
DISMISS BASED UPON IMPROPER VENUE."
{¶ 8} In his sole assignment of error, appellant claims the trial court erred in
denying his motion to dismiss based upon improper venue. We disagree.
{¶ 9} " 'Venue' commonly refers to the appropriate place of trial for a criminal
prosecution (or dispute) as between different geographical subdivisions within a state, it
being assumed that the court or courts involved have subject matter or territorial
jurisdiction." State v. Shrum, 7 Ohio App.3d 244, fn. 2, 455 N.E.2d 531 (1st Dist.1982).
"Venue is satisfied where there is a sufficient nexus between the defendant and the
county of the trial." State v. Chintalapalli, 88 Ohio St.3d 43, 45, 723 N.E.2d 111 (2000),
citing State v. Draggo, 65 Ohio St.2d 88, 92, 418 N.E.2d 1343 (1981).
{¶ 10} R.C. 2901.12 governs venue. Subsection (A) states: "The trial of a
criminal case in this state shall be held in a court having jurisdiction of the subject Stark County, Case No. 2017CA00059 4
matter, and * * * in the territory of which the offense or any element of the offense was
committed." Subsection (H)(3) states the following:
(H) When an offender, as part of a course of criminal conduct,
commits offenses in different jurisdictions, the offender may be tried for all
of those offenses in any jurisdiction in which one of those offenses or any
element of one of those offenses occurred. Without limitation on the
evidence that may be used to establish the course of criminal conduct,
any of the following is prima-facie evidence of a course of criminal
conduct:
(3) The offenses were committed as part of the same transaction or
chain of events, or in furtherance of the same purpose or objective.
{¶ 11} Appellant argues venue in this case was improper because the only
connection between appellant and Stark County is the text sent from the informant from
the Alliance Police Department located in Stark County arranging the drug buy which
occurred in Mahoning County.
{¶ 12} In State v. Tucker, 5th Dist. Fairfield No. 98CA25, 1999 WL 333120 (April
27, 1999), this court reviewed a similar challenge to venue. As explained by the court at
*3:
For purposes of R.C. 2925.03(A), the phrase, "offer to sell a
controlled substance", means to declare one's readiness or willingness to Stark County, Case No. 2017CA00059 5
sell a controlled substance or to present a controlled substance for
acceptance or rejection. State v. Henton (July 14, 1997), Ashtabula App.
No. 96-A-0015, unreported (Citation omitted). The issue of whether a
defendant has knowingly made an offer to sell a controlled substance in
any given case must be determined by an examination of the totality of the
circumstances, including "the dialogue and course of conduct of the
accused". State v. Patterson (1982), 69 Ohio St.2d 445, 447, 432 N.E.2d
802.
{¶ 13} In Tucker, the informant sent a page to the defendant from Fairfield
County, Ohio and the drug buy occurred in Franklin County, Ohio. The court concluded,
"appellant's answering the page constitutes an offer to sell." The defendant returning
the page to a telephone number in Fairfield County "is tantamount to an offer to sell in
Fairfield County."
{¶ 14} In the case sub judice, the informant sent a text from the Alliance Police
Department in Stark County to appellant to set up a drug buy, requesting "the usual,"
meaning a "$20 bindle of methamphetamine." T. at 8-10. While still at the Alliance
Police Department, the informant received a response from appellant, texting back, " 'U
know where I'm at.' You can come through, 'just let me know when you're close.' " T. at
10. Alliance Police Detective Bob Rajcan was standing right next to the informant when
he was texting and receiving appellant's responses. T. at 19. The responses were
coming from a telephone number belonging to appellant. T. at 21. The informant Stark County, Case No. 2017CA00059 6
traveled to appellant's residence to complete the drug buy. Appellant's residence was
located just within the bordering county of Mahoning County. T. at 12-13.
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