State v. Oten

2024 Ohio 3004

• Court: Ohio Court of Appeals
• Decided: August 8, 2024
• Docket: 112467
• Status: Published

Opinion

[Cite as State v. Oten, 2024-Ohio-3004.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 112467 v. :

ANTONIO Z. OTEN, JR., :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: August 8, 2024

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-20-650975-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Kerry Sowul, Assistant Prosecuting Attorney, for appellee.

Erin R. Flanagan, for appellant.

FRANK DANIEL CELEBREZZE, III, J.:

Appellant Antonio Z. Oten, Jr. (“appellant”) challenges his conviction in

the Cuyahoga County Court of Common Pleas. After a thorough review of the

applicable law and facts, we affirm the judgment of the trial court. I. Factual and Procedural History

Appellant was charged with nine counts, including rape, gross sexual

imposition, abduction, unlawful sexual conduct with a minor, disseminating matter

harmful to juveniles, and aggravating menacing. The charges related to appellant’s

inappropriate relationship and sexual conduct with a 12-year-old girl.

Appellant pled guilty to two counts of unlawful sexual conduct with a

minor and one count of disseminating matter harmful to juveniles. The trial court

sentenced appellant to 24 months in prison and labeled him a Tier II sex offender.

Appellant then filed the instant appeal, raising one assignment of error

for our review:

The lower court’s findings of guilt were not supported by sufficient evidence in violation of appellant’s rights under the Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution and Section 10 of Article I of the Ohio Constitution.

II. Law and Analysis

In his sole assignment of error, appellant asserts that the record does

not contain sufficient evidence of venue in this matter.

As an initial matter, it appears that appellant is raising this argument

for the first time on appeal. He did not assert any issue with venue in the trial court

prior to his guilty plea or even seek to withdraw his plea on that basis. Accordingly,

this argument has been waived for purposes of appeal. However, even considering

his assertions, we find no merit to his argument. The indictment in this matter contained nine charges. Only Count 1,

the rape charge, contained any reference to venue, stating that the offense had

occurred in Cuyahoga County. Appellant correctly notes that there is no mention in

Counts 4, 6, or 8 — the charges to which he pled — as to any location where the

offenses occurred. Appellant further asserts that there were no factual statements

made at the plea hearing that would provide support for venue.

This court has addressed this issue in State v. Smith, 2015-Ohio-2266,

¶ 16 (8th Dist.):

Although venue is not a material element of any offense, “venue is a fact that must be proved beyond a reasonable doubt unless it is waived by the defendant.” State v. Jackson, 2014-Ohio-3707, ¶ 143. A guilty plea is not only an admission of the essential elements of the offense, it is also an admission of the facts alleged in an indictment, including venue. Crim.R. 11(B); State v. Pruitt, 8th Dist. Cuyahoga Nos. 86707 and 86986, 2006-Ohio-4106, ¶ 12; State v. McCartney, 55 Ohio App.3d 170, 563 N.E.2d 350 (9th Dist.1988).

We note that appellant is not arguing that the offenses did not take

place in Cuyahoga County; he is simply asserting that the State did not present

sufficient evidence related to venue to support his conviction. We are not persuaded

by appellant’s argument. In the instant case, the bill of particulars specified that

each offense, including Counts 4, 6, and 8, to which appellant pleaded guilty, was

committed in Euclid, Ohio. The trial court was permitted to take judicial notice that

the City of Euclid is located within Cuyahoga County. See Linndale v. Krill, 2003-

Ohio-1535, ¶ 7 (8th Dist.), citing Middleburg Hts. v. Milner, 2000 Ohio App. LEXIS 3037 (8th Dist. July 6, 2000), citing State v. Collins, 60 Ohio App.2d 116, 125 (3d

Dist. 1977).

Regardless, “‘[b]y entering a guilty plea, a defendant waives his right

to present manifest-weight-of-the-evidence or sufficiency-of-the-evidence attacks

against his convictions.’” State v. Shabazz, 2020-Ohio-799, ¶ 9-10 (8th Dist.),

quoting State v. Barrett, 2011-Ohio-2303 (2d Dist.), citing State v. Griggs, 2004-

Ohio-4415; State v. Rice, 2018-Ohio-5356, ¶ 7 (8th Dist.). Crim.R. 11(B)(1) provides

that “a plea of guilty is a complete admission of the defendant’s guilt.” Upon

pleading guilty, appellant relinquished his right to have the State prove his guilt

beyond a reasonable doubt. Id., citing State v. Patton, 2017-Ohio-1197, ¶ 16 (2d

Dist.).

Moreover, a challenge to venue must be raised before trial begins or it

is considered waived. State v. Chuparkoff, 2019-Ohio-2827, ¶ 19 (8th Dist.). “‘[A]

guilty plea precludes a defendant from challenging the factual issue of venue on

appeal.’” (Citations omitted.) Id., quoting State v. Fort, 2002-Ohio-5068, ¶ 45 (8th

Dist.). See also State v. Johnson, 2011-Ohio-4954 (8th Dist.) (summarily overruling

assigned error regarding venue because appellant’s guilty plea precluded him from

challenging the factual issue of venue).

Appellant’s sole assignment of error is overruled. III. Conclusion

Appellant’s plea of guilty constituted a waiver of the factual issue of

venue. His assignment of error is overruled, and the judgment of the trial court is

affirmed.

It is ordered that appellee recover from appellant 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. The defendant’s

conviction having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

FRANK DANIEL CELEBREZZE, III, JUDGE

LISA B. FORBES, P.J., and MICHAEL JOHN RYAN, J., CONCUR