State v. Schultz

2024 Ohio 405

• Court: Ohio Court of Appeals
• Decided: February 5, 2024
• Docket: 2023-P-0040
• Status: Published

Opinion

[Cite as State v. Schultz, 2024-Ohio-405.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY

STATE OF OHIO, CASE NO. 2023-P-0040 CITY OF RAVENNA,

Plaintiff-Appellee, Criminal Appeal from the Municipal Court, Ravenna Division - vs -

RICHARD E. SCHULTZ, Trial Court No. 2022 CRB 02707 R

Defendant-Appellant.

OPINION

Decided: February 5, 2024 Judgment: Affirmed

Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

Thomas C. Loepp, 3580 Darrow Road, Stow, OH 44224 (For Defendant-Appellant).

EUGENE A. LUCCI, P.J. {¶1} Appellant, Richard E. Schultz, appeals from the judgment of the Portage

County Municipal Court, Ravenna Division, finding him in violation of a protection order.

At issue is whether the state of Ohio/city of Ravenna established proper venue and

whether the conviction is supported by sufficient, credible evidence. We affirm.

{¶2} Appellant and the victim (“D.M.”) were formerly married. Due to various

issues that arose between the parties, D.M. filed for and obtained a domestic violence

civil protection order in January 2020 and February 2020, respectively. The terms of the

order are to remain in full force and effect until January 3, 2025. Pursuant to the order, appellant was ordered to communicate with D.M. only through the “Our Family Wizard”

(“OFW” or “app”) application, and such communications were required to relate to the

parties’ children. According to D.M., each individual using the app possesses a unique

user name and either party is capable of sending email messages. The order provides

that “[t]he parties shall utilize [OFW] for all communications regarding the parties’ minor

children. Said communications shall be limited to child-related issues and shall not

constitute a violation of this consent agreement and domestic violence civil protection

order.”

{¶3} On October 12, 2022, at 9:35 a.m., appellant sent D.M. a message on OFW

which provided:

{¶4} “You are to immediately stop preventing me from seeing my children. You

have refused to respond and set up visits immediately[.] What you have done and

continue to do to my children is clearly unethical and will result on [sic] consequences for

you and Brandon Kohrs [sic].”

{¶5} According to D.M., however, appellant only has supervised visits with a

specific supervisor who appellant must contact to set up visits. D.M. testified she did not

prevent appellant from seeing the parties’ children and has never blocked appellant’s

visitation. Indeed, she observed she had no say in when or if appellant sees the children.

Moreover, D.M. stated that Brandon Kohrs was/is the guardian ad litem (“GAL”) in the

parties’ domestic case. D.M. testified that neither she nor appellant had any input as to

who the court would select as a GAL. After reviewing the message on OFW, however,

D.M. maintained that appellant’s communication related not to the parties’ children, but

to “consequences” to her and potentially to the GAL.

Case No. 2023-P-0040 {¶6} Later in the morning of October 12, 2022, at 11:58 a.m., appellant sent the

following message to D.M. on the app:

{¶7} “You are the only person preventing my kids from seeing me and they will

eventually know this. You clearly don’t care about the well-being of my kids because any

ethical human being would NOT do this to children. You can lie to them and pretend

anything you want to but the truth is in writing in all of these messages and I felt sad for

my kids.” (Emphasis sic.)

{¶8} Regarding this message, D.M. stated she did not prevent appellant from

seeing the parties’ children. She testified she was not in charge of when and how

appellant could see the children. She further observed that even if she wished to prevent

appellant from seeing the children, such an outcome was not within her control. She

additionally stated she never lied to appellant. After the second message, D.M. contacted

the Portage County Sheriff’s Office because, she testified, she was worried for her safety.

She claimed she was “alarmed” because “[t]here has been violence in the past and I said,

and I was worried he was going to come after me.” She testified she notified law

enforcement of the messages on the afternoon of October 12, 2022, as soon as she

returned home from work.

{¶9} Deputy Joshua Brown responded to D.M.’s call at her residence in the city

of Hiram, Portage County, Ohio. The officer received D.M.’s statement, called the

prosecutor, and determined to move forward with a violation. During appellant’s

testimony, he stated that he believed the protection order had been lifted when he

contacted D.M. He also stated that, if he had another opportunity to re-send the first

communication, he would have qualified his statement indicating D.M. would experience

Case No. 2023-P-0040 “legal” consequences if she withheld the children. Still, appellant testified that he could

“possibly” understand how D.M. may have been interpreted to imply “nonlegal”

consequences, such as some form of threat. He additionally asserted that his messages

were “about the children” and the order was somewhat subjective regarding the

parameters of children topics the parties could or should discuss.

{¶10} After a jury trial, the trial court found appellant in violation of the protection

order and this appeal follows. Appellant’s first assignment of error provides:

{¶11} “The trial court erred in determining that venue had been proven.”

{¶12} We initially point out that appellant did not object to the insufficiency of

evidence relating to venue. Where an appealing party did not specifically argue the

insufficiency of proof of venue in making his motion for judgment of acquittal at trial, it

would be proper to consider proof of venue waived. State v. Jackson, 141 Ohio St.3d 171,

2014-Ohio-3707, 23 N.E.3d 1023, ¶ 141-142, citing State v. Weber, 2d Dist. Montgomery

No. 25508, 2013-Ohio-3172, ¶ 33 (defendant’s failure to object at trial that the state failed

to prove the offense occurred in the county where he was tried constitutes waiver of the

issue). We, however, find it appropriate to consider the argument under a plain error

analysis since the failure to prove venue does affect a substantial right. State v. Martin,

10th Dist. Franklin Nos. 02AP33, 02AP34, 2002-Ohio-4769, ¶ 27; see also State v.

Woodson, 4th Dist. Ross No. 97-CA-2306, 1998 WL 51606, *3 (Feb. 11, 1998) (plain

error to an insufficient proof of venue claim).

{¶13} The test for noticing plain error is whether the outcome of the trial would

clearly have been otherwise except for the error. State v. Stallings, 89 Ohio St.3d 280,

285, 731 N.E.2d 159 (2000); State v. Brust, 10th Dist. Franklin No. 99AP-509, 2000 WL

Case No. 2023-P-0040 311921, ¶ 4, (Mar. 28, 2000). “[N]otice of plain error is taken with utmost caution only

under exceptional circumstances and only when necessary to prevent a manifest

miscarriage of justice.” State v. Hairston, 10th Dist. Franklin No. 01AP-252, 2001 WL

1143191, (Sept 28, 2001).

{¶14} Venue generally refers to the proper place of trial for a criminal prosecution

within a state. See, e.g., State v. Meridy, 12th Dist. Clermont No. CA2003-11-091, 2005-

Ohio-241, ¶ 12. Establishing the correct venue is necessary in order to “‘give the

defendant the right to be tried in the vicinity of his alleged criminal activity[.]’” (Emphasis

sic.) Id. at ¶ 12, quoting State v. Gentry, 61 Ohio Misc.2d 31, 573 N.E.2d 220 (M.C.

1990); see also State v. Hendrix, 11th Dist. Lake No. 2011-L-043, 2012-Ohio-2832, ¶ 92;

State v. Webster, 8th Dist. Cuyahoga No. 102833, 2016-Ohio-2624, ¶ 78; State v.

Crowder, 5th Dist. Delaware No. 19 CAA 01 0005, 2019-Ohio-3627, ¶16; State v. Rivera,

6th Dist. Lucas No. L-13-1177, 2014-Ohio-2690, ¶ 19. “The necessity of proving venue

is to prevent the state from indiscriminately seeking a favorable location for trial or

selecting an inconvenient forum that could disadvantage a criminal defendant.” Hendrix

at ¶ 92, citing Meridy at ¶ 12.

{¶15} In a criminal case, venue is not a material element, but the state must still

prove venue beyond a reasonable doubt. State v. Headley, 6 Ohio St.3d 475, 477, 453

N.E.2d 716 (1983). Venue need not be proven in express terms. Id. Rather, it can be

established by all of the facts and circumstances viewed in the light most favorable to the

state. Id. In addition, a trial court has broad discretion to determine the facts which would

establish venue. See, e.g., State v. Mills, 6th Dist. Williams No. WM-09-014, 2010-Ohio-

4705, ¶ 22; State v. McVety, 3d Dist. Logan No. 8-16-19, 2017-Ohio-2796, ¶ 10.

Case No. 2023-P-0040 {¶16} Circumstantial evidence may be used to establish venue. State v. May,

2015-Ohio-4275, 49 N.E.3d 736, ¶ 24 (8th Dist.); State v. Wheat, 10th Dist. Franklin No.

05AP-30, 2005-Ohio-6958, ¶ 10, 13 (although no witness testified that offenses at issue

occurred in Franklin County, state presented sufficient circumstantial evidence as to the

location of the crime to establish venue); State v. Martin, 10th Dist. Franklin Nos. 02AP33,

02AP34, 2002-Ohio-4769, ¶ 27-30 (where there was no direct testimony that offense at

issue occurred in Franklin County, sufficient circumstantial evidence existed to establish

venue based on testimony of responding police officer that he was employed by the city

of Columbus, assigned to the Franklin County area and dispatched to a specific address

in the area and video that showed that location of offense was in an urban setting and

there was no evidence to suggest that the offense occurred outside Franklin

County); State v. Norton, 2d Dist. Greene No. 97 CA 112, 1998 WL 853022, *7-8 (Dec.

11, 1998) (evidence that officers employed by the Greene County Sheriff’s Department

investigated a burglary committed in Bath Township was sufficient to establish venue in

Greene County).

{¶17} Pursuant to Ohio’s venue statute, “[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.” R.C. 2901.12(A).

Consequently, the requirement of “[v]enue is satisfied where there is a sufficient nexus

between the defendant and the county of the trial.” (Citation omitted.) State v.

Chintalapalli, 88 Ohio St.3d 43, 45, 723 N.E.2d 111 (2000).

{¶18} With these points in mind, R.C. 2901.12 provides, in relevant part:

Case No. 2023-P-0040 (G) When it appears beyond a reasonable doubt that an offense or any element of an offense was committed in any of two or more jurisdictions, but it cannot reasonably be determined in which jurisdiction the offense or element was committed, the offender may be tried in any of those jurisdictions.

(H) When an offender, as part of a course of criminal conduct, commits offenses in different jurisdictions, the offender may be tried for all of those offenses in any jurisdiction in which one of those offenses or any element of one of those offenses occurred. Without limitation on the evidence that may be used to establish the course of criminal conduct, any of the following is prima-facie evidence of a course of criminal conduct:

(1) The offenses involved the same victim, or victims of the same type or from the same group.

(2) The offenses were committed by the offender in the offender’s same employment, or capacity, or relationship to another.

(3) The offenses were committed as part of the same transaction or chain of events, or in furtherance of the same purpose or objective.

(4) The offenses were committed in furtherance of the same conspiracy.

(5) The offenses involved the same or a similar modus operandi.

(6) The offenses were committed along the offender’s line of travel in this state, regardless of the offender’s point of origin or destination.

(I)(1) When the offense involves a computer, computer system, computer network, telecommunication, telecommunications device, telecommunications service, or information service, the offender may be tried in any jurisdiction containing any location of the computer, computer system, or computer network of the victim of the offense, in any jurisdiction from which or into which, as part of the offense, any writing, data, or image is disseminated or 7

Case No. 2023-P-0040 transmitted by means of a computer, computer system, computer network, telecommunication, telecommunications device, telecommunications service, or information service, or in any jurisdiction in which the alleged offender commits any activity that is an essential part of the offense.

{¶19} A “telecommunications device” is defined as, among other things, any

instrument that facilitates telecommunication, including a computer or personal

communications device. R.C. 2913.01(Y); R.C. 2901.12(I)(2). The OFW app falls

squarely within the description of a telecommunications device.

{¶20} Here, D.M. lived in Portage County and, on the protection order, appellant’s

address is listed in Aurora, Portage County, Ohio. No evidence was offered to undermine

these points. Moreover, there was nothing on record to indicate the messages were sent

or received from a party not residing or located in Portage County. Also, there were no

references that the parties otherwise resided, were employed, or conducted general

activities or business outside of Portage County. Although there was no direct evidence

submitted that appellant sent the alleged offending messages from his listed residence,

and D.M. did not specifically testify she received the messages in Portage County (she

stated she notified the Portage County Sheriff’s Office once she returned home from

work), there was adequate circumstantial evidence to establish venue. In light of these

points, we conclude there was sufficient evidence to establish jurisdiction by the common

pleas court, including venue.

{¶21} Further, Evid.R. 201(B)(1) permits a court to take judicial notice of generally

known facts within its territorial jurisdiction. Streetsboro (D.M.’s address according to the

DVCOP) and Aurora (appellant’s address according to the DVCPO), and Hiram (where

police located D.M. pursuant to her call relating to the alleged violation), all are within

Case No. 2023-P-0040 Portage County, Ohio. In this respect, Portage County, as a proper venue, could be

judicially noticed.

{¶22} Furthermore, even though Ohio’s venue statute permits prosecution in any

venue in which any element of the offense occurred, the record establishes that the only

venue in which the parties might be or were located was Portage County. There was

prima facie evidence that both parties lived in Portage County and that the messages

were sent from the app monitored by Portage County by way of the protection order.

Portage County, Ohio, was the only county with any contacts to the parties and thus

Portage County was the only venue in which the evidence indicated any element of this

matter occurred. Without some evidence suggesting appellant or appellee were outside

of Portage County, or that no element of the crime occurred within that venue, there is no

evidence to undermine, let alone refute, the circumstantial proof of venue in Portage

County, Ohio. We therefore find no error, let alone plain error in Portage County

exercising venue in this matter.

{¶23} Appellant’s first assignment of error lacks merit.

{¶24} Appellant’s second and third assignments of error provide:

{¶25} “[2.] The trial court’s decision is against the manifest weight of the evidence.

{¶26} “[3.] There was insufficient evidence of the defendant’s guilt.”

{¶27} Appellant contends that the conviction is both based upon insufficient

evidence and is also against the manifest weight of the evidence.

When the appellant challenges both the sufficiency and the manifest weight of the state’s evidence in an appeal, the appellate court need only address the manifest weight argument because the conclusion that a verdict is not against the manifest weight necessarily entails the additional holding that it is also supported by sufficient evidence. 9

Case No. 2023-P-0040 (Citations omitted.) State v. Masters, 11th Dist. Lake No. 2019-L-037, 2020-Ohio-864, ¶

17.

{¶28} With this principle in mind, a court reviewing a challenge to the manifest

weight of the evidence observes the entire record, weighs the evidence and all

reasonable inferences, considers the credibility of the witnesses and determines whether,

in resolving conflicts in the evidence, the jury clearly lost its way and created such a

manifest miscarriage of justice that the conviction must be reversed and a new trial

ordered. State v. Schlee, 11th Dist. Lake No. 93-L-082, 1994 WL 738452, *5 (Dec. 23,

1994). Put differently, the court must assess conflicting testimony, review rational

inferences that may be drawn from the evidence, and evaluate the strength of the

conclusions drawn therefrom. A challenge to the weight of the evidence requires a court

to consider whether the state met its burden of persuasion. State v. McFeely, 11th Dist.

Ashtabula No. 2008-A-0067, 2009-Ohio-1436, ¶ 78.

{¶29} Under his second and third assignments of error, appellant reiterates his

argument that venue was not established. Pursuant to our analysis of his first assignment

of error, this challenge lacks merit.

{¶30} Next, appellant claims that his testimony was sufficiently credible to

establish he did not act in a reckless manner in sending the messages because (1) he

believed the consequences he mentioned were legal in nature and (2) he believed the

restraining order had been lifted. We do not agree.

{¶31} Violating a protection order is established beyond a reasonable doubt when

a defendant recklessly violates the terms of “[a] protection order issued or consent

agreement approved pursuant to section 2919.26 or 3113.31 of the Revised Code.” R.C.

Case No. 2023-P-0040 2919.27(A)(1). “A person acts recklessly when, with heedless indifference to the

consequences, the person disregards a substantial and unjustifiable risk that the person’s

conduct is likely to cause a certain result or is likely to be of a certain nature.” R.C.

2901.22(C).

{¶32} The evidence established that in January 2020, D.M. sought and received

a five-year domestic violence civil protection order. Appellant and D.M. signed the

agreement and acknowledged “I have read this Consent Agreement and Civil Protection

Order and agree to its terms.” Moreover, both parties agreed to use the OFW app to

communicate with each other regarding their children. The order also provided that “[t]he

persons protected by this order cannot give you legal permission to change or violate this

order. If you violate any terms of this order, even with the protected person’s permission,

you may be arrested. Only the court can change this order. You act at your own risk if

you disregard this warning.”

{¶33} Appellant sent the messages, which D.M. construed as “threats” with

knowledge of the duration and parameters of the protection order. Further, the content of

the messages stated that D.M.’s actions of allegedly preventing appellant from seeing the

children and that her “unethical” behavior will result in “consequences” for her and the

GAL. D.M. testified she had no control over appellant’s visitation; rather, he was required

to have supervised visitation which was arranged by a third party.

{¶34} The jury was free to weigh the evidence and determine whether appellant’s

testimony was credible. Appellant was aware of the duration and scope of the order. In

light of D.M.’s testimony relating to appellant’s ability to visit the children, the jury could

conclude the messages were not sent to facilitate amicable visitation. Instead, it could

Case No. 2023-P-0040 reasonably conclude that appellant, with heedless indifference to the consequences, sent

the messages to badger, harass, or threaten D.M. in violation of the terms of the order.

The jury’s verdict is not against the manifest weight of the evidence and, as such, is

supported by sufficient evidence beyond a reasonable doubt.

{¶35} Appellant’s second and third assigned errors are without merit.

{¶36} The judgment of the Portage County Municipal Court, Ravenna Division, is

affirmed.

JOHN J. EKLUND, J.,

ROBERT J. PATTON, J.,

concur.

Case No. 2023-P-0040