[Cite as State v. Musarra, 2026-Ohio-2531.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellant, : No. 113487 v. :
NICHOLAS MUSARRA, :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED IN PART, VACATED IN PART, AND REMANDED RELEASED AND JOURNALIZED: July 2, 2026
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-21-662718-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Daniel T. Van, Tasha L. Forchione, and Michael R. Wajda, Assistant Prosecuting Attorneys, for appellant.
Cullen Sweeney, Cuyahoga County Public Defender, and Aaron T. Baker, Assistant Public Defender, for appellee.
EILEEN A. GALLAGHER, J.:
This matter is before us on remand from the Supreme Court of Ohio
after it reversed and remanded this court’s summary dismissal of State v. Musarra, 8th Dist. No. 113487.1 The case proceeded to a trial by jury and, after the State
rested, the trial court granted Nicholas Musarra’s (“Musarra”) Crim.R. 29 motion
for acquittal based on a finding that the State presented insufficient evidence of
venue. The State appealed and this court dismissed the case, presumably following
State v. Hampton, 2012-Ohio-5688, ¶ 25, which held that an order granting a
Crim.R. 29 motion for acquittal “due to the state’s failure to establish venue” is not
reviewable on appeal.
The State appealed to the Supreme Court of Ohio which overruled
Hampton and found that the State may appeal as of right under R.C. 2945.67(A) “a
decision terminating a prosecution based on insufficient evidence of venue . . . .”
State v. Musarra, 2025-Ohio-5058, ¶ 26.
In light of Musarra, we reverse the trial court’s judgment, vacate the
journal entry granting an acquittal and remand this case for a new trial or further
proceedings as provided by law and consistent with this opinion.
I. Facts and Procedural History
On October 29, 2021, Musarra was indicted for two counts of rape and
one count of sexual battery. Musarra’s indictment alleges he committed these
crimes in Cuyahoga County, Ohio. The alleged victim was Jane Doe (“Doe”),
Musarra’s coworker at Nora’s Public House (“Nora’s”) in Willoughby, Ohio and the
1 The Supreme Court affirmed our dismissal of State v. Musarra, 8th Dist. No.
113486, which was consolidated with Case No. 113487. Only Case No. 113487 is at issue in this appeal. alleged incident took place on August 6, 2020. According to the Supreme Court’s
opinion in Musarra at ¶ 3,
The evidence at trial showed that Doe and Musarra had several drinks after work one night and that afterwards, Musarra drove the two of them to his home in Doe’s car. The plan was that Doe would call a rideshare from Musarra’s home. Doe requested a rideshare from Lyft but fell asleep before it arrived. According to Doe, she awoke to Musarra having vaginal intercourse with her. Doe fled Musarra’s home in her car.
After the State rested its case, defense counsel moved for a judgment of
acquittal pursuant to Crim.R. 29(A). Specifically, defense counsel argued, in part,
and pertinent to this appeal, that the State failed to present sufficient evidence of
venue. According to Musarra, Doe testified that she did not know where the alleged
sexual assault took place and there was no evidence that the incident occurred at
“the address that is purportedly associated with” Musarra. The State, on the other
hand, argued Doe testified that, as she and Musarra were driving to his house, she
recalled a sign for E. 185th Street, which is in Cuyahoga County and the detective
who investigated this case testified that the incident occurred at Musarra’s house,
which was located at 18224 LaSalle Road, Cleveland, Ohio, which is in Cuyahoga
County.
The court denied Musarra’s motion for acquittal but reserved the right
to revisit its ruling and ordered the parties to submit additional case law regarding
the issue of venue. Musarra then called two witnesses to testify in his case-in-chief.
When trial reconvened the next day, the court went on the record and granted Musarra’s Crim.R. 29 motion for acquittal, finding that “the facts that were elicited
during this trial have not established venue . . . .”
In reversing this court’s summary dismissal of the State’s appeal, the
Musarra Court held as follows: “Despite the trial court’s labeling its decision a
judgment of acquittal, a determination that venue has not been established is not
equivalent to a determination that the elements of an offense have not been proved.
Therefore, the trial court’s decision was a dismissal of the indictment, not a
judgment of acquittal.” Id., 2025-Ohio-5058, at ¶ 2. The Musarra Court further
stated that the State may appeal a dismissal of an indictment and instructed this
court that this appeal is “ripe for review.” Id. at ¶ 25-27. See also R.C. 2945.67(A)
(“A prosecuting attorney . . . may appeal as a matter of right any decision of a trial
court in a criminal case . . . which . . . grants a motion to dismiss . . . an indictment
. . . .”).
On appeal, the State assigns one error for our review:
I. The trial court erred in terminating the prosecution for insufficient venue.
II. Law and Analysis
A. Venue in General
Pursuant to R.C. 2901.12(A), “[t]he trial of a criminal case in this state
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.” See
also Crim.R. 18(A) (“The venue of a criminal case shall be as provided by law.”);
Ohio Const. Art. I, § 10 (“In any trial, in any court, the party accused shall be allowed . . . to have . . . a speedy public trial by an impartial jury of the county in which the
offense is alleged to have been committed . . . .”).
This court has held that “it is not essential that the venue of the crime
be proved in express terms, provided it is established by all the facts and
circumstances beyond a reasonable doubt that the crime was committed in the
county and state as alleged in the indictment or criminal affidavit.” State v. Hollins,
2020-Ohio-4290, ¶ 36 (8th Dist.). “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 (2000). See also State v. Roman-Navarre, 2025-Ohio-3156, ¶ 126
(5th Dist.) (Venue “may be inferred from the facts and circumstances presented at
trial.”).
B. Dismissal of Indictment Based on Insufficient Evidence of Venue is an Issue of First Impression
The parties argue, and this court agrees, that this issue is one of first
impression in Ohio. In 2012, the Hampton Court noted that “[o]ver a century of
well-established jurisprudence clearly mandates that a motion for judgment of
acquittal must be granted when the evidence is insufficient for reasonable minds to
find that venue is proper.” Hampton, 2012-Ohio-5688, at ¶ 24. However, in 2023,
the United States Supreme Court released Smith v. United States, 599 U.S. 236, 254
(2023), which held that a court’s “decision that venue . . . was improper did not
adjudicate [the defendant’s] culpability. It thus does not trigger the Double
Jeopardy Clause.” Musarra, 2025-Ohio-5058, cited Smith to overrule Hampton.
Our research reveals that Ohio cases with similar procedural postures as this case — ending a criminal proceeding at the defendant’s request based on the State
presenting insufficient evidence of venue — are based on Crim.R. 29 motions for
acquittal.
Indeed, Crim.R. 29(A) contemplates situations in which the defendant
requests a judgment entry of acquittal “if the evidence is insufficient to sustain a
conviction” of an offense charged.2 Under Hampton, this used to encompass venue.
Hampton at ¶ 20. Under Musarra, it no longer does. “[V]enue is a fact necessary
to show compliance with a defendant’s constitutional and statutory rights.
However, venue is not a fact necessary to show whether an offense has been
committed.” Id. at ¶ 17. In other words, “venue is not an element of an offense.” Id.
at ¶ 12. As a result, Musarra held that Crim.R. 29 is not applicable to the court’s
decision on venue in this case. Musarra at ¶ 15.
Crim.R. 48, which governs dismissals of criminal indictments, also
does not apply to this case. To be sure, Crim.R. 48(A) contemplates situations in
which the State requests leave to dismiss an indictment, and Crim.R. 48(B)
contemplates situations in which the court sua sponte dismisses an indictment over
objection by the State. Neither of these situations occurred in this case.
Furthermore, Crim.R. 12 governs pretrial motions and is also inapplicable to this
case, because Musarra did not file a pretrial motion regarding venue. Additionally,
R.C. 2945.08 governs “prosecution in wrong county,” and this statute is also
2 Crim.R. 29(A) also contemplates sua sponte acquittals for insufficient evidence,
but that did not occur in this case. inapplicable to this case, because Musarra’s argument is not that the State alleged
the offenses occurred in the wrong county. Rather, Musarra’s argument is that the
State failed to prove the offenses occurred in the county the State alleged in the
indictment.
C. Standard of Review
The parties in this case disagree on the standard of review we are to
apply to the trial court’s decision on venue. The State argues that we should apply a
de novo or sufficiency of the evidence standard. Musarra argues that we should
apply a de novo, abuse of discretion or manifest weight of the evidence standard.
Because this is an issue of first impression, research reveals inconsistent holdings
on the standard of review as well. Dismissals of indictments can be based on several
reasons, e.g., defective indictments, statutes of limitations, failure to prosecute or
speedy trial violations. None of the aforementioned reasons to dismiss an
indictment applies to the case at bar.
The standard of review appellate courts apply to these scenarios varies
from, inter alia, abuse of discretion (State v. Matthews, 2021-Ohio-3556, ¶ 13 (3d
Dist.); Cleveland v. Gatens, 2021-Ohio-313, ¶ 28 (8th Dist.); State v. Cooper, 2026-
Ohio-101, ¶ 10 (1st Dist.)) to de novo (State v. Knox, 2016-Ohio-5519, ¶ 12 (8th
Dist.); State v. Davis, 2008-Ohio-6741, ¶ 22 (9th Dist.); In re D.C., 2017-Ohio-114,
¶ 14 (10th Dist.)) to a mixed standard similar to reviewing a motion to suppress (In
re AJS, 2008-Ohio-5307, ¶ 51; State v. Cook, 2009-Ohio-4917, ¶ 25 (6th Dist.); State
v. Hahaj, 2025-Ohio-52, ¶ 15 (1st Dist.)). At the time of the court proceeding at issue in this case, both parties,
and the trial court, operated under the presumption that Musarra’s Crim.R. 29
motion for acquittal was just that — a motion for acquittal. The standard of review
for Crim.R. 29 motions for acquittal is well established: “A Crim.R. 29 motion
questions the sufficiency of the evidence, and we apply the same standard of review
to a trial court’s ruling on a Crim.R. 29 motion as we do in reviewing challenged to
the sufficiency of the evidence presented at trial.” State v. McQuistion, 2024-Ohio-
3011, ¶ 24 (8th Dist.).
Because the standard of review applicable to this situation was not in
dispute, it was not raised or argued by the parties in the trial court and the trial court
did not pass upon this issue. Typically, a “court of appeals cannot consider [an] issue
for the first time without the trial court having had an opportunity to address the
issue.” State v. Peagler, 76 Ohio St.3d 496, 501 (1996). See also State v. Fletcher,
2023 Ohio App. LEXIS 4687 (8th Dist. Nov. 16, 2023) (recently citing this
proposition of law from Peagler with approval). Nonetheless, in Musarra, the Ohio
Supreme Court instructed us to review the State’s appeal. Musarra, 2025-Ohio-
5058, at ¶ 2 (“The judgment of the Eighth District is reversed, and the cause is
remanded to that court for consideration of the State’s appeal as of right.”).
Upon review, we find that we need not conclusively reach the standard
of review issue because, under any standard, the State presented ample evidence
demonstrating that venue was proper in the Cuyahoga County Common Pleas Court
in order to withstand a motion to dismiss. D. Testimony and Evidence Concerning Venue
Our review of the testimony and evidence presented at Musarra’s trial
prior to the State resting its case reflects the following concerning venue.
The Cleveland police officer who responded to a dispatch call
concerning a sexual assault on August 6, 2020, testified that the victim was Doe, she
was in the process of having a rape kit performed at University Hospitals in
Cleveland, she refused to give the name of the suspect and the incident occurred at
approximately 3:45 a.m. at “her alleged assailant’s home.” According to this police
officer, Doe said she left Nora’s with the alleged assailant and she had no memory of
the drive from Nora’s to her alleged assailant’s house. Doe did not recall where the
alleged assailant lived but did remember passing a sign that said E. 185th Street.
Doe testified that, on the night of August 5, 2020, she and Musarra
were bartending at Nora’s. After Nora’s closed, Doe, Musarra and another
bartender, Anthony Garcia (“Garcia”), stayed and drank alcohol. When she realized
she was too drunk to drive, Doe planned to take a rideshare to her mother’s house,
which was five minutes from Nora’s. Garcia went home and left Musarra and Doe
at Nora’s. Musarra told Doe that he did not have his car, but he needed to get home.
According to Doe, Musarra presented with the following plan: “And that’s kind of
when this plan to — for him to drive my car with me to his house and then I would
Uber from there and he could bring it back to the bar, and I would pick it up.”
Doe testified that she was “very drunk” at this point and agreed to the
plan. Doe also testified that Musarra’s house was closer to her house in University Heights, which is in Cuyahoga County, than it was to Nora’s or her mother’s house,
so she would take a rideshare home rather than take a rideshare to her mother’s.
According to Doe, they got into her car and Musarra started to drive. Doe testified
that she did not know to where they were driving. When they arrived at Musarra’s
house, they entered through the back door to the basement where there was a
mattress on the floor and a couch. Doe removed her shoes and fell asleep on the
mattress.
According to Doe, the next thing she remembered was waking up to
Musarra on top of her having vaginal intercourse with her. Doe jumped up and
yelled. Musarra told Doe to lower her voice or she “would wake somebody up.” Doe
ran out of the house and drove home. Doe further testified that she later viewed a
receipt from the rideshare company Lyft, and it said she had ordered a car before
she fell asleep, but it was cancelled by the driver at 3:39 a.m.
Doe testified that, ultimately, she told the Cleveland police that
Musarra was the person who raped her.
During her testimony, Doe agreed or confirmed that: Musarra offered
to drive her “to his home”; on the night of the incident, they were “at Nick’s house”
and they walked “down into the basement”; she did not recall the drive from “Nora’s
to Nick’s house,” “from Nora’s to Mr. Musarra’s house” and “the ride between Nora’s
and Nick’s residence.” She also testified about “going into the basement and making
a joke [to Musarra] that, you’re 30, and like this is where you live.” Additionally,
Doe was asked about events that happened “once you were at Nick’s residence.” The emergency room doctor who treated Doe for sexual assault on the
morning of August 6, 2020 testified that, according to Doe’s medical records, the
alleged rape occurred at approximately 3:45 a.m. The location of the assault was a
“[b]asement apartment . . . [o]ff 185th near Collinwood.”
Garcia, the third bartender who drank at Nora’s with Doe and Musarra
after work on August 5, 2020, testified that he left Doe and Musarra at the bar and
went home between 11:00 p.m. and midnight. According to Garcia, August 5, 2020
could have been around the time when Musarra did not have a car. Garcia recalled
this because he gave Musarra a ride home “a handful of times” after work. Garcia
testified that he next saw Musarra one or two days later at work and Musarra told
Garcia that he and Doe had “hooked up.”
Taylor Sterling (“Sterling”) testified that she is a bartender at Nora’s
and she worked with both Musarra and Doe during the summer of 2020. A rumor
spread amongst coworkers that, on the night of August 5, 2020, Musarra, Doe and
Garcia stayed at Nora’s after work and had drinks and, at some point, Doe and
Musarra went “home together.” Sterling clarified that “home” was “his place,” “his
residence” and “Nick’s house.” Sterling spoke with Musarra who said, “it was
consensual, and then [Doe] just got up and like freaked out and left.” According to
Sterling, Doe told her a “separate” story about what happened that night, although
Sterling did not testify about what Doe said to her. Asked if it was her understanding
that Doe and Musarra went back to Musarra’s house that night, Sterling answered,
“As far as — yes, it was.” Cleveland Police Detective Richard Jackson (“Jackson”) testified that
he investigated a case involving Doe and Musarra. Asked for the location of the
incident he was investigating, Jackson testified as follows:
A: I believe it was the 185th area — East 185th area.
Q: What city?
A: City of Cleveland.
Q: What county?
A: Cuyahoga County.
Jackson testified that Doe eventually told him the alleged assailant
was Musarra. Once, Musarra was identified, Jackson went to Nora’s to interview
employees and obtain more information and Jackson located Musarra’s address by
conducting a search on OHLEG.3 Jackson testified that he “went to . . . Musarra’s
house to see if I could talk to him [and] get a statement from him.” When Jackson
went to Musarra’s house, he spoke with Musarra’s brother. Jackson was shown his
report of this case and identified Musarra’s address as 18224 LaSalle Road,
Cleveland, Ohio. Jackson further testified that this address is in Cuyahoga County.
According to Jackson, Musarra was not home at the time, but Jackson left his
business card with Musarra’s brother. Jackson attempted to talk to Musarra’s
mother, who also lived at 18224 LaSalle Road. Musarra later called Jackson.
Jackson testified about photographs he took of Musarra’s house at
18224 LaSalle Road that were introduced into evidence by the State at trial. Asked
3 The acronym OHLEG is neither defined nor explained in the trial transcript. why he took photographs of the house on LaSalle, Jackson responded, “That’s where
the incident occurred.”
E. Analysis
In Highland Hills v. Safford, 2026-Ohio-456 (8th Dist.), this court
affirmed the defendant’s misdemeanor conviction for a traffic violation and
overruled the defendant’s assignment of error alleging that the municipality failed
to prove venue. Specifically, this court found as follows:
In this case, venue was established by both direct and circumstantial evidence. Olson, the driver of the Dodge Ram, testified that the accident occurred in Highland Hills. The Highland Hills Police Department responded to the scene. The detective wore his city-issued police uniform and drove a marked vehicle, with “Highland Hills Police” printed in large letters on the side of the vehicle. This vehicle is easily seen in the detective’s body-cam video.
Detective Fike’s testimony identified the location as the intersection of Warrensville Center Road and Northfield Road, which is in Highland Hills. Detective Fike also twice testified that the accident occurred in Highland Hills.
Additionally, the citation, which Detective Fike testified to, noted the location of the accident as having occurred in Highland Hills, Cuyahoga County, Ohio.
Id. at ¶ 17-19.
In Parma v. Gardner, 2025-Ohio-5517 (8th Dist.), this court affirmed
the defendant’s conviction for disorderly conduct, among other offenses, and
overruled the defendant’s assignment of error alleging that the municipality failed
to prove venue. Specifically, this court found that Parma police officers arrested the
defendant at Marc’s on West Ridgewood, which was where the disorderly conduct took place. Id. at ¶ 31. Video evidence shows Parma police vehicles at the scene and
the defendant is heard yelling that she is in Parma.
In In re S.H., 2026-Ohio-1077 (1st Dist.), the court affirmed the
juvenile’s delinquency adjudication and overruled the juvenile’s assignment of error
alleging that the State failed to prove venue. Specifically, the court found as follows:
Here, the evidence includes more than just a responding police department and a road name. Here, the evidence presented by the State includes mention of two responding police departments (Indian Hill and Montgomery), several road names that are all in the same area and connect in some manner (Kugler Mill, Given, Camargo, Keller, [and] Spooky Hollow), several landmarks (the Little Red Schoolhouse and the Livingston Lodge), and descriptions of the area (“rural type feel, a lot of trees, no businesses, one hundred percent residential”; forested; [and] no street lights), all of which identify the area in which this incident occurred as Indian Hill. Further, State’s exhibit No. S4 identifies the area of the accident on Given Road, which was a Livingston Lodge, as being located in “Cincinnati, Ohio.” Even further, the police report attached to the complaint is from the Indian Hill Rangers, the complaint was filed stamped in Hamilton County, and the police report was assigned a Hamilton County case number.
Id. at ¶ 17.
The State presented evidence, via Jackson’s testimony, that Musarra
lived at 18224 LaSalle Road in Cleveland, Ohio, which is in Cuyahoga County. This
evidence was corroborated by Doe’s testimony that she recalled a sign for E. 185th
Street when she and Musarra were driving to his house and Musarra’s house was
closer to her house in Cuyahoga County than it was to Nora’s. It is undisputed that
Nora’s is not in Cuyahoga County; rather, it is in Lake County, which is adjacent to
Cuyahoga County. Jackson further testified that he took photographs of 18224
LaSalle Road, which is in Cuyahoga County and is where Musarra lives, because it was where the sexual assault at issue in this case occurred. Jackson also testified
that Musarra’s brother and mother lived at 18224 LaSalle Road.
Doe’s medical records indicate that the sexual assault happened “[o]ff
185th near Collinwood.”
A Cleveland police officer testified that the incident occurred at Doe’s
“alleged assailant’s house.” Doe testified that the plan was to go to Musarra’s house
that night. Doe further testified that she and Musarra went to the basement of
Musarra’s house, she fell asleep and she woke as Musarra was raping her. Garcia’s
testimony corroborates the general timeline of events and establishes that Musarra
may have been without a vehicle at the time of the incident which, in turn,
corroborates Doe’s testimony that Musarra did not have a ride home that night.
Garcia further testified that Musarra said he and Doe had “hooked up” after the
three of them had drinks on the night of August 5, 2020.
Sterling testified that it was her understanding, through workplace
gossip, that Doe and Musarra went to his house on the night of August 5, 2020 and
that Musarra told her “it was consensual.”
In addition to the evidence presented at trial, we note that the Ohio
Supreme Court in Musarra found that the alleged sexual assault of Doe occurred at
Musarra’s house. Musarra, 2025-Ohio-5058, at ¶ 3.
Upon review on remand, we find that the trial court erred by
terminating this case for the State’s failure to establish venue, because all of the
State’s evidence presented at trial reveals that the alleged sexual assault occurred at 18224 LaSalle Road, Cleveland, Ohio, which is in Cuyahoga County. Question about
venue is simply not a reason this case should not have gone to the jury for
determination of Musarra’s guilt.
Accordingly, the State’s sole assignment of error is sustained.
Judgment reversed, journal entry of acquittal vacated and case
remanded to the trial court for a new trial or further proceedings as provided by law
and consistent with this opinion.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_________________________ EILEEN A. GALLAGHER, JUDGE
MICHELLE J. SHEEHAN, A.J., and TIMOTHY W. CLARY, J., CONCUR