State v. Bussell

2025 Ohio 699

• Court: Ohio Court of Appeals
• Decided: March 3, 2025
• Docket: CA2024-06-040
• Status: Published

Opinion

[Cite as State v. Bussell, 2025-Ohio-699.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2024-06-040

: OPINION - vs - 3/3/2025 :

DANNY J. BUSSELL, :

Appellant. :

CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 23CR40800

David P. Fornshell, Warren County Prosecuting Attorney, and Kirsten A. Brandt, Assistant Prosecuting Attorney, for appellee.

Engel and Martin, LLC, and Joshua A. Engel, for appellant.

PIPER, J.

{¶ 1} Appellant, Danny J. Bussell, appeals the conviction he received in the

Warren County Court of Common Pleas after a jury found him guilty of one count of third-

degree felony gross sexual imposition in violation of R.C. 2907.05(A)(4). For the reasons

outlined below, we affirm in part, reverse in part, and remand for the limited purpose of

permitting the trial court to employ the postrelease control correction procedures set forth Warren CA2024-06-040

in R.C. 2929.191.1

{¶ 2} On July 24, 2023, the Warren County Grand Jury returned a three-count

indictment. The indictment charged Bussell with one count of first-degree felony rape in

violation of R.C. 2907.02(A)(1)(b), and two counts of third-degree felony gross sexual

imposition, one in violation of R.C. 2907.05(B) and the other in violation of R.C.

2907.05(A)(4). The charges arose after it was alleged Bussell engaged in sexual conduct

and sexual contact with, and touched the genitalia of, the child victim, Paige, at various

times between January 1, 2012 through October 12, 2013 and January 1, 2012 through

December 31, 2014.2 This included allegations that Bussell had, on at least one occasion,

touched Paige's leg and upper thigh for the purpose of his own sexually gratification.

{¶ 3} On April 18 and 19, 2024, the matter proceeded to a two-day jury trial.

Following the trial, the jury returned verdicts finding Bussell not guilty of rape and gross

sexual imposition in violation of R.C. 2907.02(A)(1)(b) and 2907.05(B), but guilty of gross

sexual imposition in violation of R.C. 2907.05(A)(4). Pursuant to that statute, no person

shall have "sexual contact" with a person less than 13 years of age. The term "sexual

contact" is defined by R.C. 2907.01(B) to mean "any touching of an erogenous zone of

another, including without limitation the thigh, genitals, buttock, pubic region, or, if the

person is a female, a breast, for the purpose of sexually arousing or gratifying either

person."

{¶ 4} On June 25, 2024, the trial court held a sentencing hearing where it

sentenced Bussell to serve a total of 24 months in prison, less 19 days of jail-time credit.

The trial court also classified Bussell a Tier II sex offender/child victim offender. The trial

1. "R.C. 2929.191 provides a statutory remedy to correct a trial court's failure to properly impose postrelease control." State v. Langford, 2016-Ohio-456, ¶ 16 (12th Dist.), citing State v. Singleton, 2009- Ohio-6434, ¶ 23.

2. This court has provided the victim with a fictious name for purposes of issuing this opinion.

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court, however, failed to notify Bussell that he would be subject to a mandatory five-year

term of postrelease control upon his release from prison. The following day, June 26,

2024, Bussell filed a notice of appeal. Following briefing, on February 5, 2025, Bussell's

appeal was submitted to this court for consideration. Bussell's appeal now properly

before this court for decision, Bussell has raised three assignments of error for review.

{¶ 5} Assignment of Error No. 1:

{¶ 6} THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR

ACQUITTAL AND THE JURY ERRED IN FINDING APPELLANT GUILTY OF GROSS

SEXUAL IMPOSITION AS THE FINDING WAS NOT SUPPORTED BY SUFFICIENT

EVIDENCE AND WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 7} In his first assignment of error, Bussell argues the trial court erred by

denying his Crim.R. 29(A) motion for acquittal and that the jury's verdict finding him guilty

of gross sexual imposition in violation of R.C. 2907.05(A)(4) was not supported by

sufficient evidence and was against the manifest weight of the evidence. This is because,

according to Bussell, the record is devoid of any evidence to establish, beyond a

reasonable doubt, that Warren County was a proper venue for his trial. We disagree.

{¶ 8} "'Venue commonly refers to the appropriate place of trial for a criminal

prosecution within a state.'" State v. Baker, 2020-Ohio-2882, ¶ 20 (12th Dist.), quoting

State v. Meridy, 2005-Ohio-241, ¶ 12 (12th Dist.). "The importance of venue is to give

the defendant the right to be tried in the vicinity of his alleged criminal activity." State v.

Davis, 2017-Ohio-495, ¶ 21 (12th Dist.). Venue is not jurisdictional. State v. Lampe,

2015-Ohio-3837, ¶ 18 (12th Dist.). Venue is also not a material element to any offense

charged. State v. Kyles, 2023-Ohio-489, ¶ 116 (12th Dist.). Venue is nevertheless "a

fact that the state must prove beyond a reasonable doubt." State v. McCollum, 2015-

Ohio-3286, ¶ 8 (12th Dist.), citing State v. Stone, 2008-Ohio-5671, ¶ 17 (12th Dist.).

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"When the state fails to prove venue with respect to a charged criminal offense, the

defendant is entitled to be discharged from that offense." Id., citing State v. Lahmann,

2007-Ohio-1795, ¶19 (12th Dist.).

{¶ 9} "Pursuant to R.C. 2901.12(A), venue lies in any jurisdiction in which the

offense or any element of the offense was committed." State v. Vunda, 2014-Ohio-3449,

¶ 29 (12th Dist.). Similarly, Article I, Section 10 of the Ohio Constitution provides criminal

defendants with the right to a jury trial in the county in which the offense is alleged to have

been committed. State v. Moore, 2022-Ohio-1460, ¶ 14. "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, 2014-Ohio-3707, ¶ 144. That is to say,

venue need not be established by direct evidence but may instead be established

circumstantially. State v. Warman, 2017-Ohio-244, ¶ 31 (12th Dist.). Venue is

established where there is a "sufficient nexus" between the defendant and the county

where the trial is held. State v. Jordan, 2015-Ohio-575, ¶ 16 (12th Dist.). Therefore, "[a]s

long as there is a sufficient nexus between the defendant and the county of the trial, venue

is satisfied." State v. Smith, 2012-Ohio-4644, ¶ 26 (12th Dist.).

{¶ 10} Bussell argues the state failed to establish Warren County as a proper

venue for his trial because the victim, Paige, could not remember what street they were

on or what store they were going to when he began rubbing his hand up her leg and onto

her upper thigh so as to support his conviction for gross sexual imposition in violation of

R.C. 2907.05(A)(4). Bussell argues that this is problematic since he lives just five-minutes

away from the county line separating Warren County from its neighboring Butler County.

{¶ 11} However, as a simple review of the record reveals, Paige specifically

testified that Bussell began rubbing his hand up her leg and onto her upper thigh shortly

after they left Bussell's home in Mason to run a "short errand" while they were still

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"somewhere" in Warren County.3 Paige also testified, when asked how she knew Bussell

had touched her while they were still "somewhere" in Warren County, that it was because

she "remember[s] going to a store around there and it wasn't very long after [they] left"

Bussell's home that Bussell began touching her leg and thigh. Given its verdict, the jury

clearly found Paige's testimony as to where this incident took place credible, thereby

establishing Warren County as a proper venue for Bussell's trial beyond a reasonable

doubt. Therefore, because the record in this case establishes the requisite "sufficient

nexus" to render Warren County a proper venue to hold Bussell's trial beyond a

reasonable doubt, Bussell's first assignment of error lacks merit and is overruled.

{¶ 12} Assignment of Error No. 2:

{¶ 13} THE TRIAL COURT ERRED BY GIVING A PREJUDICIAL JURY

INSTRUCTION AS TO CONTINUING COURSE OF CONDUCT.

{¶ 14} In his second assignment of error, Bussell argues it was error for the trial

court to give a "continuing course of conduct" instruction to the jury pursuant to R.C.

2901.12(H). Specifically, Bussell argues that it was error to instruct the jury on continuing

course of conduct as follows:

When an offender commits an offense or commits offenses in different jurisdictions as part of continuing course of criminal conduct, he may be tried and convicted for all offenses in any one jurisdiction in which the offender committed one of the offenses or any element of one of those offenses.

{¶ 15} Bussell claims this instruction is "not clear," is "misleading," and resulted in

prejudice to him because "there was otherwise insufficient evidence to support venue" to

support his conviction for gross sexual imposition in violation of R.C. 2907.05(A)(4).

Venue, however, was plainly established through Paige's testimony as set forth above in

3. The record indicates that Mason is a city located within Warren County.

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Bussell's first assignment of error. Therefore, any error the trial court may have made by

giving the above continuing course of conduct instruction to the jury in this case—of which

we have found none—would be considered harmless. "An error is harmless where there

is no reasonable possibility that it contributed to an accused's conviction, such as where

there is overwhelming evidence of the accused's guilt or some other indicia that the error

did not contribute to the conviction." State v. Kyles, 2024-Ohio-998, ¶ 27 (12th Dist.).

Accordingly, finding any error the trial court may have made by instructing the jury on

continuing course of conduct was, at worst, harmless, Bussell's second assignment of

error also lacks merit and is overruled.

{¶ 16} Assignment of Error No. 3:

{¶ 17} THE TRIAL COURT ERRED IN SENTENCING APPELLANT AS HIS

SENTENCE IS CLEARLY AND CONVINCINGLY CONTRARY TO LAW.

{¶ 18} In his third assignment of error, Bussell argues the trial court's decision

sentencing him to serve 24 months in prison was clearly and convincingly contrary to law.

Bussell supports this claim by arguing that there is "no indication on the record" the trial

court "made a careful and substantial deliberation as to relevant statutory considerations"

at sentencing. This would include, most notably, consideration of the purposes of felony

sentencing set forth in R.C. 2929.11 and the seriousness and recidivism factors listed in

R.C. 2929.12. However, "[t]he fact that the trial court did not expressly cite to R.C.

2929.11 and 2929.12 during the sentencing hearing is immaterial, considering it

specifically cited to both statutes within its sentencing entry." State v. Julious, 2016-Ohio-

4822, ¶ 11 (12th Dist.). Such is the case here.

{¶ 19} Within its sentencing entry, the trial court expressly stated that it had

considered, among other things, the record, any arguments of counsel, any statements

of the parties, any statements or other information in mitigation, as well as "the purposes

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and principles of sentencing in R.C. § 2929.11, the seriousness and recidivism factors in

R.C. § 2929.12, and all other relevant sentencing statutes." "This court has previously

determined that such language in the judgment entry defeats a claim that the trial court

failed to consider statutory sentencing guidelines." State v. Peck, 2016-Ohio-1578, ¶ 9

(12th Dist.). Therefore, because this court has already determined that the above

language in a trial court's sentencing entry defeats a claim that the trial court failed to

consider the necessary statutory sentencing guidelines, R.C. 2929.11 and 2929.12,

Bussell's first argument lacks merit.

{¶ 20} Bussell also argues the trial court erred by failing to advise him at

sentencing that he would be subject to a mandatory five-year postrelease control term

upon his release from prison. The state concedes, and we agree, that Bussell's argument

has merit. This is because, as the record indicates, the trial court failed to provide Bussell

with the required postrelease control notification at his sentencing hearing. This holds

true even though Bussell received notice of that mandatory postrelease control term, and

the consequences of violating the terms of that mandatory postrelease control term, as

part of the trial court's sentencing entry. State v. Smith, 2022-Ohio-1547, ¶ 5 (12th Dist.).

Therefore, because the trial court failed to properly advise Bussell of postrelease control

at the sentencing hearing, we sustain Bussell's second argument on that basis.

Accordingly, finding merit to this portion of Bussell's third assignment of error only, we

reverse and remand this case to the trial court for the limited purpose of permitting the

trial court to employ the postrelease control correction procedures set forth in R.C.

2929.191. Bussell's conviction in all other respects is affirmed.

{¶ 21} Judgment affirmed in part, reversed in part, and remanded.

HENDRICKSON, P.J., and M. POWELL, J., concur.

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