State v. Dockery

• Court: Ohio Court of Appeals
• Decided: June 12, 2026
• Docket: C-250359
• Status: Published

Opinion

[Cite as State v. Dockery, 2026-Ohio-2207.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-250359 TRIAL NO. 25/CRB/5223 Plaintiff-Appellee, :

vs. :

LINWOOD DOCKERY, : JUDGMENT ENTRY

Defendant-Appellant. :

This cause was heard upon the appeal, the record, the briefs, and arguments. For the reasons set forth in the Opinion filed this date, the judgment of the trial court is vacated and the cause remanded. Further, the court holds that there were reasonable grounds for this appeal, allows no penalty, and orders that costs be taxed to Appellee. The court further orders that (1) a copy of this Judgment with a copy of the Opinion attached constitutes the mandate, and (2) the mandate be sent to the trial court for execution under App.R. 27.

To the clerk: Enter upon the journal of the court on 6/12/2026 per order of the court.

By:_______________________ Administrative Judge [Cite as State v. Dockery, 2026-Ohio-2207.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-250359 TRIAL NO. 25/CRB/5223 Plaintiff-Appellee, :

LINWOOD DOCKERY, : OPINION

Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Vacated and Cause Remanded

Date of Judgment Entry on Appeal: June 12, 2026

Emily Smart Woerner, City Solicitor, Susan M. Zurface, Chief Prosecuting Attorney, and Robert E. Rickey, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Christine Y. Jones, Assistant Public Defender, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

NESTOR, Judge

{¶1} After a bench trial, the court found Linwood Dockery guilty of criminal

damaging. He now appeals arguing the State did not prove venue beyond a reasonable

doubt. We agree. Consequently, his other assignments of error are moot. We vacate

his conviction and remand the cause so that the trial court can dismiss the charge.

I. Factual and Procedural History

{¶2} On April 1, 2025, Dockery arrived at the residence of Damon Smith. In

footage from Smith’s house, Dockery was across the street.1 Eventually, Dockery

walked up to Smith’s front door and asked for “Damon.” A woman responded through

a Ring doorbell that Damon was not home. Dockery then went across the street and

threw a log at a 1975 Buick. The Buick and the property it was parked on belonged to

Smith.

{¶3} The matter proceeded to a bench trial where Smith testified. Smith

stated that he had seen Dockery before at Doug’s Automotive, which was “right down

the street,” from his house. The State asked if Doug’s Automotive was “in the City of

Cincinnati, Hamilton County, State of Ohio?” and Smith answered, “Yes, it is.” The

alleged crime did not occur at Doug’s Automotive.

{¶4} Smith testified that on April 1, 2025, he was away from home when his

Ring camera alerted him to movement at his house. The video showed Dockery

throwing a log at the Buick. When asked if he consented to Dockery’s acts, Smith

stated that he did not. In the video, there are trashcans that may be marked “City of

Cincinnati” in the bottom right of the frame.

{¶5} Smith testified that he owned the property that the car was parked on,

1 The State introduced the footage at trial.

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and that he was in possession of the car’s keys. The car itself belongs to his sons who

are in the military.

{¶6} Officer Joshua Condon also testified at trial. The defense called Officer

Condon to identify the defendant. Importantly, Officer Condon was not asked and did

not testify what police department he worked for.

{¶7} The trial court found Dockery guilty of criminal damaging. The court

did not sentence Dockery that day because it wanted to give Smith the chance to

produce evidence for restitution. Smith had text messages suggesting costs, but the

trial court requested receipts.

{¶8} At the sentencing, Smith did not appear nor did he submit any receipts

to support a restitution amount. The court noted, if Smith wanted to recover, “he is

going to have to sue him civilly.” The court sentenced Dockery to 90 days in the

Hamilton County Justice Center, with 88 days suspended and credit for 12 days.2 The

court also placed Dockery on community control for 11 months. Dockery timely

appealed.

{¶9} After oral arguments, we requested supplemental briefing on the issue

of venue. We asked if the trashcans that appeared in Smith’s Ring camera footage

could circumstantially prove venue. Secondly, we asked if the State failed to establish

venue, what was the proper remedy considering State v. Musarra, 2025-Ohio-5058?

II. Analysis

{¶10} Dockery brings three assignments of error. First, he argues the State

failed to present sufficient evidence of venue. Second, he argues his conviction was

based on insufficient evidence and that it was contrary to the manifest weight of the

2 Dockery raised an assignment of error related to his sentence. The State conceded any error in the sentence. We do not reach this issue because it is moot.

4 OHIO FIRST DISTRICT COURT OF APPEALS

evidence. Last, he argues the trial court erred in its sentencing. Because we find merit

in his first assignment, the other two are moot.

A. First Assignment of Error

1. Venue

{¶11} In his first assignment of error, Dockery argues the State did not prove

venue beyond a reasonable doubt. Dockery acknowledges that he did not argue this

below, so he has waived everything but plain error on appeal. With venue, we still

review for plain error. State v. Sullivan, 2014-Ohio-3112, ¶ 9 (1st Dist.), citing State v.

Gardner, 42 Ohio App.3d 157, 158 (1st Dist. 1987).

{¶12} “Under Article I, Section 10, of the Ohio Constitution, a criminal

defendant has the right to a trial in ‘the county in which the offense is alleged to have

been committed.’” Sullivan at ¶ 7, quoting State v. Headley, 6 Ohio St.3d 475, 477

(1983). “‘Venue need not be shown by direct evidence, but may be proved by the

evidence as a whole or by circumstantial evidence.’” Id. at ¶ 8, quoting State v. Tapke,

2007-Ohio-5124, ¶ 59 (1st Dist.). If there are any “facts from which reasonable minds

could conclude beyond a reasonable doubt that the offense[] occurred in [Cincinnati],”

then we can hold that the State proved venue. Id. at ¶ 11.

{¶13} In Sullivan, “the words ‘Hamilton County,’ ‘Cincinnati,’ or even ‘Ohio’

were never mentioned.” Id. at ¶ 10. Additionally, the testifying officer did not say

which police department he worked for. Id. The victim named many streets which

exist in Cincinnati, Ohio. Id. However, “these references [were] not sufficiently

unique to permit the conclusion that the offenses occurred in Hamilton County, Ohio.”

Id. at ¶ 11.

{¶14} The record in this case has much less evidence of venue than that in

Sullivan. Here, the State asked Smith if Doug’s Automotive was in Cincinnati, Ohio.

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He answered in the affirmative. The offense took place at Smith’s house which he

testified is “right down the street” from Doug’s Automotive. The State argues that

since Doug’s Automotive is in Cincinnati, Ohio, Smith’s house is also in Cincinnati,

Ohio. We cannot draw such a conclusion.

{¶15} While the record has references to Dockery’s home being on a well-

known Cincinnati street and Smith’s home being within that two-mile radius, the State

did not present those facts at trial. Similarly, the State argues in its brief that the

complaint refers to Cincinnati, Ohio. The State also did not introduce the complaint

at trial. Additionally, Officer Condon worked for the Cincinnati Police Department,

but he did not testify to that. The State says in its brief, “Cincinnati Police Officer

Joshua Condon investigated the offense, and ‘CPD is a police department commonly

known to be in Hamilton County, Ohio.’ (T.d. 1, 2; 6/2/25 T.p. 17-19); Walker, 2025-

Ohio-975 at ¶ 52.” But that internal quote is from State v. Walker, 2025-Ohio-975, ¶

52 (1st Dist.). Officer Condon did not say he worked for CPD at trial, nor did he say

anything remotely similar. The defense called him as a witness and his testimony

began with being asked to spell his name. He said, “Sure. My last name is spelled C-

o-n-d-o-n, my first name is Joshua, and my Badge Number is P329.” Immediately

after, the defense questioned him about the facts related to identification and

possession but not venue. The State did not cross examine Officer Condon, so the

State did not ask him anything to prove venue.

{¶16} Also present in the Ring footage are trashcans that appear to be marked

“City of Cincinnati.” This court asked the parties if such evidence might

circumstantially prove venue. For the State to prove venue, there must be “facts from

which reasonable minds could conclude beyond a reasonable doubt that the offenses

occurred” in Cincinnati. Sullivan, 2014-Ohio-3112, at ¶ 11 (1st Dist.). Dockery states

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in his supplemental brief, “the label on the trashcans is obstructed; thus, reasonable

minds could disagree on whether the trashcan is sufficiently labeled as a can issued by

the City of Cincinnati.” We agree.

{¶17} We conclude that the State failed to prove venue beyond a reasonable

doubt.

2. Remedy

{¶18} When the State has failed to prove venue in the past, we reversed the

judgment and discharged the defendant from further prosecution. State v. Quattara,

2025-Ohio-2850, ¶ 16, 18 (1st Dist.). However, The Ohio Supreme Court has recently

reiterated that “venue is not an element of an offense.” State v. Musarra, 2025-Ohio-

5058. Musarra overturned State v. Hampton, 2012-Ohio-5688.

{¶19} In Hampton, the Ohio Supreme Court held “[t]he failure to establish

venue in a criminal felony trial is a basis for acquittal, and therefore, an acquittal order

based on the failure to establish venue is a final verdict, and the state may not appeal

from the order.” Hampton at ¶ 2.

{¶20} In Musarra, the trial court granted a judgment of acquittal under

Crim.R. 29(A) because the State did not prove that the crime occurred in Cuyahoga

County. Musarra at ¶ 1. The State tried to appeal, but the Eighth District dismissed

the appeal relying on Hampton. Id. The Supreme Court reversed the Eighth District,

holding that “insufficient evidence of venue is not a basis for a judgment of acquittal

under Crim.R. 29,” which allowed the State to bring the appeal. Id. at ¶ 15. The Ohio

Supreme Court cited to Smith v. United States, 599 U.S. 236 (2023). Id.

{¶21} In Smith, the Supreme Court of the United States held in a unanimous

decision that a trial in an improper venue does not bar retrial. Smith at 254. After a

jury found the defendant guilty in Smith, the defendant moved for a judgment of

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acquittal based on improper venue under Fed.R.Crim.Proc. 29. Id. at 240. The district

court denied his motion. Id. He appealed and the Eleventh Circuit held that venue

was improper. Id. But the Eleventh Circuit held “the ‘remedy for improper venue is

vacatur of the conviction, not acquittal or dismissal with prejudice[.]’” Id. at 241. This

outcome was permissible because the “‘Double Jeopardy [C]lause is not implicated by

a retrial in a proper venue.’” Id. On appeal, the Supreme Court of the United States

agreed. Id. at 239. It held that culpability invokes the Double Jeopardy Clause. Id.

at 253. Since venue does not invoke culpability, venue does not invoke the Double

Jeopardy Clause. Id. at 253-254. As a result, the United States could retry Smith in

the proper venue. Id.

{¶22} Smith differs from the instant case because here the State simply failed

to prove venue. Musarra deals with the same factual issue but it is procedurally

different. Musarra relies on Smith, but Musarra does not explicitly say the State can

retry that defendant if venue was not proven. Neither case is entirely on point.

{¶23} Musarra simply overrules Hampton and allows the State to appeal the

issue of failure to prove venue. Importantly though, Musarra clearly reiterates that

venue does not implicate the Double Jeopardy Clause. Musarra, 2025-Ohio-5058, at

¶ 15. In the past, when the State failed to prove venue, appellate courts have not given

justification for why the remedy is discharge. That was simply the remedy.3

Assumably, the reason was a potential double jeopardy violation. In light of Musarra,

we can no longer justify a defendant’s discharge with the Double Jeopardy Clause.

{¶24} Smith explicitly allows for retrial. Smith, 599 U.S. 236 at 239. Musarra

3 See Sullivan, 2014-Ohio-3112, at ¶ 12 (1st Dist.); Quattara, 2025-Ohio-2850, at ¶ 18 (1st Dist.);

State v. Shaw, 134 Ohio App.3d 316, 320 (2d Dist. 1999); State v. Hester, 1979 Ohio App. LEXIS 12480, *8 (4th Dist. May 24, 1979); State v. Deng, 2009-Ohio-4101, ¶ 32 (11th Dist.); State v. Smith, 2020-Ohio-4008, ¶ 35 (12th Dist.).

8 OHIO FIRST DISTRICT COURT OF APPEALS

implies the State may refile charges against a defendant if the State does not prove

venue before it rests its case. See Musarra at ¶ 24-25. We believe that these cases

together guide us to vacate the conviction and dismiss the charge due to the State’s

failure to prove venue. We therefore vacate Dockery’s conviction and remand the

cause so the trial court may dismiss the charge.

{¶25} Accordingly, we sustain appellant’s first assignment of error. Having

sustained his first assignment of error, we hold the other assignments are moot.

III. Conclusion

{¶26} We vacate the conviction and remand the cause so the trial court may

dismiss the charge.

Judgment vacated and cause remanded.

CROUSE, P.J., and MOORE, J., concur.