[Cite as State v. Crawford, 2019-Ohio-273.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. William B. Hoffman, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 18CA79 : BRIAN CRAWFORD : : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No. 2007-CR- 411
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: January 22, 2019
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
GARY BISHOP BRIAN CRAWFORD, PRO SE RICHLAND CO. PROSECUTOR Inmate 540-154 JOSEPH C. SNYDER Marion Correctional Institution 38 South Park Street P.O. Box 57 Mansfield, OH 44902 Marion, OH 43301 Richland County, Case No. 18CA79 2
Delaney, J.
{¶1} Appellant Brian A. Crawford appeals from the August 28, 2018 “Judgment
Entry Overruling Motion to Partially Vacate Void Judgment” of the Richland County Court
of Common Pleas. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} A statement of the facts underlying appellant’s criminal convictions is not
necessary to our resolution of this appeal.
{¶3} In 2007, appellant was charged by indictment with 8 counts of rape, 15
counts of sexual battery, and 20 counts of gross sexual imposition. The matter proceeded
to trial by jury and appellant was found guilty as charged. Appellant was sentenced to an
aggregate prison term of 40 years.
{¶4} We confirmed appellant’s convictions and sentence in State v. Crawford,
5th Dist. Richland No. 07 CA 116, 2008-Ohio-6260, appeal not allowed, 121 Ohio St.3d
1442, 2009-Ohio-1638, 903 N.E.2d 1224.
{¶5} In 2008, appellant filed a motion for post-conviction relief pursuant to R.C.
2953.21 and the trial court overruled the petition as untimely. We affirmed that decision
in State v. Crawford, 5th Dist. Richland No. 09-CA-16, 2009-Ohio-5176, appeal not
allowed, 124 Ohio St.3d 1418, 2009-Ohio-6816, 919 N.E.2d 216.
{¶6} In 2009, appellant filed an application to reopen his direct appeal pursuant
to App.R. 26(B). We dismissed the application as untimely, and the Ohio Supreme Court Richland County, Case No. 18CA79 3
declined jurisdiction of an appeal from that decision. State v. Crawford, 123 Ohio St.3d
1474, 2009-Ohio-5704, 915 N.E.2d 1255.1
{¶7} On August 6, 2018, appellant filed a motion asserting his convictions were
void due to lack of subject-matter jurisdiction. The trial court found the motion to be an
untimely petition for post-conviction relief, that the argument was barred by res judicata,
and that the argument failed on its merits.
{¶8} Appellant now appeals from the trial court’s decision overruling his motion.
{¶9} Appellant raises one assignment of error:
ASSIGNMENT OF ERROR
{¶10} “THE TRIAL COURT COMMITTED REVERSIBLE AND PREJUDICIAL
ERROR IN DENYING APPELLANT’S MOTION TO VACATE PARTIALLY VOID
JUDGMENT.”
ANALYSIS
{¶11} Appellant argues the trial court should have granted his motion to vacate a
“partially void judgment.” We disagree.
{¶12} Appellant’s specific issue is the indictment states each offense occurred in
Richland County, but the evidence established some of the conduct occurred in Crawford
County. Appellant thus challenges the sufficiency of the indictment, arguing his
convictions are “void” because the trial court lacked “subject-matter jurisdiction” over the
Crawford County allegations. This argument is misplaced for a number of reasons.
1 As appellee points out, appellant’s second proposed assignment of error raised the same argument he makes here: his convictions are void due to a “jurisdictional defect,” to wit, appellee did not properly indict him upon offenses citing a continuing course of conduct which occurred in Richland and Crawford Counties. Richland County, Case No. 18CA79 4
{¶13} In the instant case, appellee’s bill of particulars filed October 31, 2007
describes appellant’s course of criminal conduct which began in Richland County, Ohio
and continued when the family moved to Crawford County, Ohio. Appellant was therefore
aware of the alleged venue of the offenses.
{¶14} First, appellant failed to timely object to the alleged defects in the
indictment. He complains that each count of the indictment referred only to Richland
County, although appellee’s evidence established some of the conduct occurred in
Crawford County. The indictment does not reference Crawford County. As we will
address infra, appellant therefore challenges appellee’s assertion of proper venue in the
indictment. The Ohio Supreme Court has held that “when a defendant fails to object to
an indictment that is defective because the indictment did not include an essential
element of the charged offense, a plain error analysis is appropriate.” State v. Colon, 119
Ohio St.3d 204, 2008-Ohio-3749, 893 N.E.2d 169, ¶ 7; see also, State v. Frazier, 73 Ohio
St.3d 323, 332, 652 N.E.2d 1000 (1995). Pursuant to Crim.R. 52(B), “plain errors or
defects affecting substantial rights may be noticed although they were not brought to the
attention of the court.” The Ohio Supreme Court has examined this argument and found
that there is no plain error if the state asserted the venue of the offenses in the bill of
particulars. Where the state has provided a detailed bill of particulars which sets out the
location of the offenses, there is no plain error as to any of these counts in the indictment.
State v. Jackson, 141 Ohio St.3d 171, 2014-Ohio-3707, 23 N.E.3d 1023, ¶ 138.
{¶15} Thus, in addition to failing to challenge the indictment in a timely manner,
appellant has not demonstrated plain error and the trial court did not err in refusing to
vacate his convictions on the basis of sufficiency of the indictment. Richland County, Case No. 18CA79 5
{¶16} Next, appellant’s argument fails because he is challenging the venue of the
trial court, not subject-matter jurisdiction. Appellant repeatedly states his convictions are
void because Richland County did not have “subject-matter jurisdiction” over his criminal
conduct in Crawford County. Venue and subject-matter jurisdiction are distinct legal
concepts. State v. Wilson, 5th Dist. Richland No. 14CA16, 2014-Ohio-3286, ¶ 14, citing
State v. Bobinchuck, 9th Dist. Summit No. 19536, 2000 WL 1287296, *1 (Sept. 13, 2000).
“‘Jurisdiction’ means the courts' statutory or constitutional power to adjudicate the case.”
(Internal quotations and citations omitted.) Id., citing Pratts v. Hurley, 102 Ohio St.3d 81,
2004–Ohio–1980, ¶ 11. It is only when the trial court lacks subject-matter jurisdiction that
its judgment is void. Id. at ¶ 12. “Because subject-matter jurisdiction goes to the power of
the court to adjudicate the merits of a case, it can never be waived and may be challenged
at any time.” Id. at ¶ 11.
{¶17} In contrast, venue is not jurisdictional. State v. Andrews, 148 Ohio App.3d
92, 2002–Ohio–787, ¶ 20 (10th Dist.) (stating venue “is neither a jurisdictional nor a
material element of a criminal offense”). Although “venue is not an essential element of a
charged offense,” the state must prove venue beyond a reasonable doubt unless the
defendant waives it. State v. Wheat, 10th Dist No.
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[Cite as State v. Crawford, 2019-Ohio-273.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. William B. Hoffman, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 18CA79 : BRIAN CRAWFORD : : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No. 2007-CR- 411
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: January 22, 2019
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
GARY BISHOP BRIAN CRAWFORD, PRO SE RICHLAND CO. PROSECUTOR Inmate 540-154 JOSEPH C. SNYDER Marion Correctional Institution 38 South Park Street P.O. Box 57 Mansfield, OH 44902 Marion, OH 43301 Richland County, Case No. 18CA79 2
Delaney, J.
{¶1} Appellant Brian A. Crawford appeals from the August 28, 2018 “Judgment
Entry Overruling Motion to Partially Vacate Void Judgment” of the Richland County Court
of Common Pleas. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} A statement of the facts underlying appellant’s criminal convictions is not
necessary to our resolution of this appeal.
{¶3} In 2007, appellant was charged by indictment with 8 counts of rape, 15
counts of sexual battery, and 20 counts of gross sexual imposition. The matter proceeded
to trial by jury and appellant was found guilty as charged. Appellant was sentenced to an
aggregate prison term of 40 years.
{¶4} We confirmed appellant’s convictions and sentence in State v. Crawford,
5th Dist. Richland No. 07 CA 116, 2008-Ohio-6260, appeal not allowed, 121 Ohio St.3d
1442, 2009-Ohio-1638, 903 N.E.2d 1224.
{¶5} In 2008, appellant filed a motion for post-conviction relief pursuant to R.C.
2953.21 and the trial court overruled the petition as untimely. We affirmed that decision
in State v. Crawford, 5th Dist. Richland No. 09-CA-16, 2009-Ohio-5176, appeal not
allowed, 124 Ohio St.3d 1418, 2009-Ohio-6816, 919 N.E.2d 216.
{¶6} In 2009, appellant filed an application to reopen his direct appeal pursuant
to App.R. 26(B). We dismissed the application as untimely, and the Ohio Supreme Court Richland County, Case No. 18CA79 3
declined jurisdiction of an appeal from that decision. State v. Crawford, 123 Ohio St.3d
1474, 2009-Ohio-5704, 915 N.E.2d 1255.1
{¶7} On August 6, 2018, appellant filed a motion asserting his convictions were
void due to lack of subject-matter jurisdiction. The trial court found the motion to be an
untimely petition for post-conviction relief, that the argument was barred by res judicata,
and that the argument failed on its merits.
{¶8} Appellant now appeals from the trial court’s decision overruling his motion.
{¶9} Appellant raises one assignment of error:
ASSIGNMENT OF ERROR
{¶10} “THE TRIAL COURT COMMITTED REVERSIBLE AND PREJUDICIAL
ERROR IN DENYING APPELLANT’S MOTION TO VACATE PARTIALLY VOID
JUDGMENT.”
ANALYSIS
{¶11} Appellant argues the trial court should have granted his motion to vacate a
“partially void judgment.” We disagree.
{¶12} Appellant’s specific issue is the indictment states each offense occurred in
Richland County, but the evidence established some of the conduct occurred in Crawford
County. Appellant thus challenges the sufficiency of the indictment, arguing his
convictions are “void” because the trial court lacked “subject-matter jurisdiction” over the
Crawford County allegations. This argument is misplaced for a number of reasons.
1 As appellee points out, appellant’s second proposed assignment of error raised the same argument he makes here: his convictions are void due to a “jurisdictional defect,” to wit, appellee did not properly indict him upon offenses citing a continuing course of conduct which occurred in Richland and Crawford Counties. Richland County, Case No. 18CA79 4
{¶13} In the instant case, appellee’s bill of particulars filed October 31, 2007
describes appellant’s course of criminal conduct which began in Richland County, Ohio
and continued when the family moved to Crawford County, Ohio. Appellant was therefore
aware of the alleged venue of the offenses.
{¶14} First, appellant failed to timely object to the alleged defects in the
indictment. He complains that each count of the indictment referred only to Richland
County, although appellee’s evidence established some of the conduct occurred in
Crawford County. The indictment does not reference Crawford County. As we will
address infra, appellant therefore challenges appellee’s assertion of proper venue in the
indictment. The Ohio Supreme Court has held that “when a defendant fails to object to
an indictment that is defective because the indictment did not include an essential
element of the charged offense, a plain error analysis is appropriate.” State v. Colon, 119
Ohio St.3d 204, 2008-Ohio-3749, 893 N.E.2d 169, ¶ 7; see also, State v. Frazier, 73 Ohio
St.3d 323, 332, 652 N.E.2d 1000 (1995). Pursuant to Crim.R. 52(B), “plain errors or
defects affecting substantial rights may be noticed although they were not brought to the
attention of the court.” The Ohio Supreme Court has examined this argument and found
that there is no plain error if the state asserted the venue of the offenses in the bill of
particulars. Where the state has provided a detailed bill of particulars which sets out the
location of the offenses, there is no plain error as to any of these counts in the indictment.
State v. Jackson, 141 Ohio St.3d 171, 2014-Ohio-3707, 23 N.E.3d 1023, ¶ 138.
{¶15} Thus, in addition to failing to challenge the indictment in a timely manner,
appellant has not demonstrated plain error and the trial court did not err in refusing to
vacate his convictions on the basis of sufficiency of the indictment. Richland County, Case No. 18CA79 5
{¶16} Next, appellant’s argument fails because he is challenging the venue of the
trial court, not subject-matter jurisdiction. Appellant repeatedly states his convictions are
void because Richland County did not have “subject-matter jurisdiction” over his criminal
conduct in Crawford County. Venue and subject-matter jurisdiction are distinct legal
concepts. State v. Wilson, 5th Dist. Richland No. 14CA16, 2014-Ohio-3286, ¶ 14, citing
State v. Bobinchuck, 9th Dist. Summit No. 19536, 2000 WL 1287296, *1 (Sept. 13, 2000).
“‘Jurisdiction’ means the courts' statutory or constitutional power to adjudicate the case.”
(Internal quotations and citations omitted.) Id., citing Pratts v. Hurley, 102 Ohio St.3d 81,
2004–Ohio–1980, ¶ 11. It is only when the trial court lacks subject-matter jurisdiction that
its judgment is void. Id. at ¶ 12. “Because subject-matter jurisdiction goes to the power of
the court to adjudicate the merits of a case, it can never be waived and may be challenged
at any time.” Id. at ¶ 11.
{¶17} In contrast, venue is not jurisdictional. State v. Andrews, 148 Ohio App.3d
92, 2002–Ohio–787, ¶ 20 (10th Dist.) (stating venue “is neither a jurisdictional nor a
material element of a criminal offense”). Although “venue is not an essential element of a
charged offense,” the state must prove venue beyond a reasonable doubt unless the
defendant waives it. State v. Wheat, 10th Dist No. 05AP–30, 2005–Ohio–6958, ¶ 10,
citing State v. Headley, 6 Ohio St.3d 475, 477, 453 N.E.2d 716 (1983). A defendant
“waives the right to challenge venue when the issue is raised for the first time on appeal.”
Id., citing State v. Loucks, 28 Ohio App.2d 77, 78, 274 N.E.2d 773 (4th Dist.1971); Crim.R.
12(C)(2) (providing that “defenses or objections based on defects in the indictment” must
be raised before trial). “Venue is neither a jurisdictional issue nor a material element of a
criminal offense.” State v. McCartney, 55 Ohio App.3d 170, 563 N.E.2d 350 (9th Richland County, Case No. 18CA79 6
Dist.1988), citing Loucks, supra. “Venue is a personal privilege. It is a fact which the state
must prove beyond a reasonable doubt unless waived by the accused.” McCartney,
supra, citing State v. Headley, 6 Ohio St.3d 475, 477, 453 N.E.2d 716 (1983).
{¶18} Appellant’s legal argument that venue did not properly lie in Richland
County is misplaced. As noted supra, the bill of particulars describes appellant’s course
of criminal conduct, beginning in Richland County, Ohio and continuing upon the family’s
move to Crawford County, Ohio. Appellant was therefore aware of the alleged venue of
the offenses. Because appellant committed offenses in different jurisdictions as part of a
course of criminal conduct, venue lies for all the offenses in any jurisdiction in which he
committed one of the offenses or any element. R.C. 2901.12(A), (C), and (H); State v.
Fowler, 27 Ohio App.3d 149, 500 N.E.2d 390 (8th Dist.1985), paragraph four of the
syllabus; State v. Beuke, 38 Ohio St.3d 29, 36, 526 N.E.2d 274 (1988).
{¶19} Finally, appellant’s venue argument is barred by the doctrine of res judicata.
Under the doctrine of res judicata, a final judgment of conviction bars the defendant who
was represented by counsel from raising and litigating in any proceeding, except an
appeal from that judgment, any defense or claimed lack of due process that the defendant
raised or could have raised at the trial which resulted in that judgment of conviction or on
appeal from that judgment. State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967).
Appellant’s argument here could have been raised in his direct appeal. Therefore, the trial
court properly denied appellant's motion on this basis.
{¶20} We conclude the indictment in the instant case is not defective for failure to
properly assert venue because appellee provided a detailed bill of particulars noting that
appellant’s criminal conduct in Richland and Crawford Counties. Appellant waived any Richland County, Case No. 18CA79 7
issue as to venue by failing to make the argument until his “motion to vacate partially void
judgment” and there has been no plain error. The argument fails on the merits because
venue lies for all of appellant’s offenses in any jurisdiction in which he committed the
offenses or any element. Lastly, appellant’s argument in the instant appeal is res judicata.
{¶21} We conclude the trial court properly overruled appellant’s motion and the
sole assignment of error is overruled.
CONCLUSION
{¶22} The sole assignment of error is overruled and the judgment of the Richland
County Court of Common Pleas is affirmed.
By: Delaney, J.,
Gwin, P.J. and
Hoffman, J., concur.