State v. Spivery

2023 Ohio 1603

• Court: Ohio Court of Appeals
• Decided: May 15, 2023
• Docket: CA2022-10-056
• Status: Published

Opinion

[Cite as State v. Spivery, 2023-Ohio-1603.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2022-10-056

: OPINION - vs - 5/15/2023 :

KEMUEL D. SPIVERY, :

Appellant. :

CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2020-CR-00557

Mark J. Tekulve, Clermont County Prosecuting Attorney, and Nicholas A. Horton, Assistant Prosecuting Attorney, for appellee.

Michael J. Trapp, for appellant.

S. POWELL, P.J.

{¶ 1} Appellant, Kemuel D. Spivery, appeals his conviction in the Clermont County

Court of Common Pleas after a jury found him guilty of two counts of aggravated trafficking

in drugs, one a second-degree felony and the other a first-degree felony. For the reasons

outlined below, we affirm. Clermont CA2022-10-056

Facts and Procedural History

{¶ 2} On July 21, 2020, the Clermont County Grand Jury returned an indictment

charging Spivery with two counts of aggravated trafficking in drugs, both in violation of R.C.

2925.03(A)(1).1 The first count, Count 1, charged Spivery with one count second-degree

felony aggravated trafficking in drugs. This charge arose after Spivery sold approximately

five ounces of methamphetamine to the buyer, Janelle, while in Springdale, Hamilton

County, Ohio on January 6, 2020.2 The second count, Count 2, charged Spivery with one

count first-degree felony aggravated trafficking in drugs. This charge arose after Spivery

sold an additional six ounces of methamphetamine to Janelle while in Springdale, Hamilton

County, Ohio on January 7, 2020. Both counts also included forfeiture specifications for

the vehicle Spivery used to effectuate both the January 6 and January 7, 2020 drug sales,

as well as $14,007 in cash found in Spivery's possession at the time of his arrest. 3

{¶ 3} From July 26 to 28, 2022, the trial court held a three-day jury trial on the

matter. During trial, the state presented evidence that Spivery had sent text messages to

Janelle offering to sell her methamphetamine at an address located in Hamilton County,

Ohio while Janelle was physically present, receiving, and responding to Spivery's text

messages while in Clermont County, Ohio. The state also presented evidence that the text

message exchanges between Spivery and Janelle ultimately resulted in Spivery selling five

ounces of methamphetamine to Janelle on January 6, 2020, with Spivery selling an

additional six ounces of methamphetamine to Janelle on January 7, 2020. The state

1. R.C. 2925.03(A)(1) makes it unlawful for any person to knowingly "[s]ell or offer to sell a controlled substance or a controlled substance analog[.]" "Methamphetamine is a controlled substance." State v. Phifer, 2d Dist. Clark No. 2020-CA-13, 2021-Ohio-521,¶ 17, citing R.C. 2925.11(II).

2. To protect the buyer's identity, we will refer to the buyer as "Janelle" rather than by the buyer's actual name or initials.

3. The record indicates that Spivery was arrested after he was involved in another drug transaction in Hamilton County, Ohio on January 9, 2020. -2- Clermont CA2022-10-056

provided further evidence that both sales occurred in a parking lot located in Springdale,

Hamilton County, Ohio.

{¶ 4} Following deliberations, the jury returned a verdict finding Spivery guilty of

both charges and their accompanying forfeiture specifications. Several weeks later, on

September 12, 2022, the trial court held a sentencing hearing where it sentenced Spivery

to serve an aggregate mandatory minimum term of 10 years in prison with a maximum

aggregate term of 13 years in prison, less 132 days of jail-time credit. The trial court also

ordered the forfeiture of the vehicle Spivery used to effectuate both the January 6 and

January 7, 2020 drug sales, as well as the $14,007 in cash found in Spivery's possession

at the time of his arrest. Spivery now appeals his conviction, raising two assignments of

error for review.

Spivery's Two Assignments of Error

{¶ 5} In his two assignments of error, Spivery argues that neither his conviction for

Count 1, second-degree felony aggravated trafficking of drugs, nor his conviction for Count

2, first-degree felony aggravated trafficking of drugs, were supported by sufficient evidence.

Under these circumstances, we apply the following standard of review.

Sufficient Evidence Standard of Review

{¶ 6} "A claim challenging the sufficiency of the evidence invokes a due process

concern and raises the question whether the evidence is legally sufficient to support the

jury verdict as a matter of law." State v. Clinton, 153 Ohio St.3d 422, 2017-Ohio-9423, ¶

165, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). "The relevant inquiry is

'whether, after viewing the evidence in a light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime proven beyond a

reasonable doubt.'" State v. Roper, 12th Dist. Clermont No. CA2021-05-019, 2022-Ohio-

244, ¶ 39, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.

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"This test requires a determination as to whether the state has met its burden of production

at trial." State v. Thompson, 12th Dist. Butler No. CA2022-09-080, 2023-Ohio-559, ¶ 34.

"If the state fails to present sufficient evidence on every element of an offense, then

convicting a defendant for that offense violates the defendant's right to due process of law."

State v. Messenger, Slip Opinion No. 2022-Ohio-4562, ¶ 13.

Spivery's First Argument

{¶ 7} Initially, Spivery argues the text message exchange between himself and

Janelle that led to the January 6, 2020 sale was insufficient to prove he "offered" to sell

Janelle drugs in violation of R.C. 2925.03(A)(1). Therefore, according to Spivery, his

conviction for Count 1, second-degree felony aggravated trafficking in drugs, must be

reversed. We disagree.

{¶ 8} The term "offer" as used in R.C. 2925.03(A)(1) is not statutorily defined. The

Ohio Supreme Court, however, has defined the term "offer" to mean "'to declare one's

readiness or willingness'" to sell a controlled substance. State v. Scott, 69 Ohio St.2d 439,

440 (1982), quoting Webster's New Collegiate Dictionary (1976). This court has also

defined the term "offer" to mean "to declare one's readiness or willingness to sell a

controlled substance or to present a controlled substance for acceptance or rejection."

State v. Aldrich, 12th Dist. Madison No. CA2006-10-044, 2008-Ohio-1362, ¶ 21. The term

"offer" has also been defined by several other Ohio appellate courts to mean "to present for

acceptance or rejection." See State v. Nucklos, 171 Ohio App.3d 38, 2007-Ohio-1025, ¶

29 (2d Dist.); State v. Cabrales, 1st Dist. Hamilton No. C-050682, 2007-Ohio-857, ¶ 41;

State v. Sheffey, 11th Dist. Ashtabula No. 2003-A-0011, 2004-Ohio-2204, ¶ 13; and State

v. Drane, 6th Dist. Lucas No. L-92-319, 1993 Ohio App. LEXIS 3259, *6 (June 30, 1993).

{¶ 9} Given these definitions, and when considering the totality of the

circumstances presented in this case, we find the state provided sufficient evidence to prove

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Spivery "offered" to sell drugs to Janelle on January 6, 2020. This offer occurred after

Janelle contacted Spivery via text message and stated that she was "36 mins out" and in

"need" of five ounces of methamphetamine.4 The fact that Spivery responded to Janelle's

text message with "Ok," followed by an address where Janelle could meet him to complete

the sale, rather than with an express written offer to sell Janelle drugs using basic contract

language, is of no consequence when considering the illegality of the offer being made.

See State v. Bazzy, 86 Ohio App.3d 546, 548-549 (2d Dist.1993) ("whether an offer to sell

a controlled substance has, in fact, been made depends upon the totality of the

circumstances and the language used" because "participants in a drug transaction are not

likely to use either precise legal terms to define the transaction, or precise scientific terms

to describe the merchandise").

{¶ 10} What matters is that, under the facts and circumstances of this case, which

includes evidence that Spivery had sold Janelle drugs multiple times prior to the January 6,

2020 sale, both Spivery and Janelle knew that an agreement had been reached via text

message for Spivery to sell Janelle five ounces of methamphetamine once she arrived at

the address Spivery had provided to her.5 See, e.g., Aldrich, 2008-Ohio-1362 at ¶ 16-23

(appellant made an offer to sell drugs to an undercover officer where appellant "nodded his

head in the affirmative" after the undercover officer asked appellant to sell him drugs).

Therefore, because there was sufficient evidence to prove Spivery had offered to sell drugs

to Janelle on January 6, 2020 in violation of R.C. 2925.03(A)(1), Spivery's conviction for

4. The text message Janelle initially sent to Spivery stated, "Can you call me." Spivery never responded. Janelle then text messaged Spivery, "Hey I need 5 an[d] I'm 36 mins out." Spivery responded to this text message a few minutes later stating, "Ok," followed a few seconds later with an address where Janelle could meet him to complete the sale.

5. The record contains evidence that Spivery had sold Janelle four ounces of methamphetamine on January 4, 2020, after Janelle text messaged Spivery, "Need 4." The record indicates that this was just one of the many times Janelle had purchased methamphetamine from Spivery after Janelle's boyfriend, who had also purchased methamphetamine from Spivery, was sent to prison. -5- Clermont CA2022-10-056

Count 1, second-degree felony aggravated trafficking in drugs, must be affirmed.

Accordingly, Spivery's first argument lacks merit.

Spivery's Second, Alternative Argument

{¶ 11} Alternatively, Spivery argues the state failed to provide sufficient evidence to

prove Janelle was physically present within Clermont County when he responded to her

text message offering to sell her drugs on January 6, 2020. This lack of evidence, according

to Spivery, renders Clermont County an improper venue for that offense, thereby requiring

his conviction for Count 1, second-degree felony aggravated trafficking in drugs, be

reversed. We again disagree.

{¶ 12} "'Venue commonly refers to the appropriate place of trial for a criminal

prosecution within a state.'" State v. Baker, 12th Dist. Butler No. CA2019-08-146, 2020-

Ohio-2882, ¶ 20, quoting State v. Meridy, 12th Dist. Clermont. No. CA2003-11-091, 2005-

Ohio-241, ¶ 12. "The importance of venue is to give the defendant the right to be tried in

the vicinity of his alleged criminal activity." State v. Davis, 12th Dist. Clinton No. CA2015-

12-022, 2017-Ohio-495, ¶ 21. Venue is not jurisdictional. State v. Lampe, 12th Dist. Warren

No. CA2015-03-028, 2015-Ohio-3837, ¶ 18. Venue is also not a material element to any

offense charged. State v. Kyles, 12th Dist. Butler Nos. CA2021-11-141 and CA2021-11-

142, 2023-Ohio-489, ¶ 116. However, although neither jurisdictional nor a material element

to any charged offense, venue is nevertheless "a fact that the state must prove beyond a

reasonable doubt." State v. McCollum, 12th Dist. Clermont No. CA2014-11-077, 2015-

Ohio-3286, ¶ 8, citing State v. Stone, 12th Dist. Warren No. CA2007-11-132, 2008-Ohio-

5671, ¶ 17. "When the state fails to prove venue with respect to a charged criminal offense,

the defendant is entitled to be discharged from that offense." Id., citing State v. Lahmann,

12th Dist. Butler No. CA2006-03-058, 2007-Ohio-1795, ¶19.

{¶ 13} "Pursuant to R.C. 2901.12(A), venue lies in any jurisdiction in which the

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offense or any element of the offense was committed." State v. Vunda, 12th Dist. Butler

Nos. CA2012-07-130 and CA2013-07-113, 2014-Ohio-3449, ¶ 29. Similarly, Article I,

Section 10 of the Ohio Constitution provides criminal defendants with the right to a jury trial

in the county in which the offense is alleged to have been committed. State v. Moore, 169

Ohio St.3d 18, 2022-Ohio-1460, ¶ 14. "Venue need not be proven in express terms; it may

be established either directly or indirectly by all the facts and circumstances of the case."

State v. Jackson, 141 Ohio St.3d 171, 2014-Ohio-3707, ¶ 144, citing State v. Headley, 6

Ohio St.3d 475, 477 (1983). That is to say, venue need not be established by direct

evidence, but may instead be established circumstantially. State v. Warman, 12th Dist.

Butler No. CA2016-02-029, 2017-Ohio-244, ¶ 31. Venue is established where there is a

"sufficient nexus" between the defendant and the county where the trial is held. State v.

Jordan, 12th Dist. Warren No. CA2014-04-051, 2015-Ohio-575, ¶ 16. Therefore, "[a]s long

as there is a sufficient nexus between the defendant and the county of the trial, venue is

satisfied." State v. Smith, 12th Dist. Warren Nos. CA2012-02-017 and CA2012-02-018,

2012-Ohio-4644, ¶ 26.

{¶ 14} Upon review, we find the record in this case establishes the requisite

"sufficient nexus" necessary to render Clermont County a proper venue to try and convict

Spivery for second-degree felony aggravated trafficking in drugs as set forth in Count 1 of

the indictment. This is because, despite Spivery's claims, the record contains sufficient

evidence to prove Janelle was in Clermont County when Spivery sent a text message to

Janelle offering to sell her five ounces of methamphetamine on January 6, 2020. This is

evidenced by the data retrieved from a GPS tracker attached to Janelle's car that indicated

Janelle was in Clermont County when she initially text messaged Spivery stating that she

was "36 mins out" and asking Spivey whether he could sell her five ounces of

methamphetamine that day. Spivery responded "Ok" to Janelle's text message a few

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minutes later at a time when Janelle would have still been physically present within

Clermont County. Therefore, because the record in this case establishes the requisite

"sufficient nexus" to render Clermont County a proper venue to try Spivery for Count 1,

second-degree felony aggravated trafficking in drugs, Spivery's second, alternative

argument also lacks merit.

Spivery's Third Argument

{¶ 15} Lastly, Spivery argues the text message exchange between himself and

Janelle that led to the January 7, 2020 sale was insufficient to prove he "offered" to sell

Janelle drugs in violation of R.C. 2925.03(A)(1), thereby requiring his conviction for Count

2, first-degree felony aggravated trafficking in drugs, be reversed. However, just as with

the text message exchange between Spivery and Janelle that led up to the January 6, 2020

sale, the state provided sufficient evidence to prove Spivery also offered to sell drugs to

Janelle on January 7, 2020. This offer occurred after Janelle contacted Spivery via text

message, while physically present within Clermont County, Ohio, and asked Spivery if he

could sell her an additional six ounces of methamphetamine.6 Spivery responded a few

seconds later, "Ok." Spivery then sent another text message to Janelle instructing her to

meet him at the "same place" where they had met the day before, on January 6, 2020.7

{¶ 16} Again, just as with the January 6, 2020 sale, the fact that Spivery responded

to Janelle's text message with "Ok," followed by instructions on where to meet, rather than

an express written offer to sell Janelle drugs using basic contract language is of no

6. We note that the complete text message exchange between Janelle and Spivery began with Janelle asking Spivery, "You good." Spivery responded, "Yea." Janelle then text messaged Spivery, "Need 6." Spivery responded with, "Ok." Spivery then confirmed that Janelle was to meet him at the "same place" where they met the day before, on January 6, 2020.

7. The record indicates that Janelle was at the Clermont County Sheriff's Office when Spivery text messaged her and offered to sell her drugs on January 7, 2020. The Clermont County Sheriff's Office is located on State Route 222 in Batavia, Clermont County, Ohio. -8- Clermont CA2022-10-056

consequence when considering the illegality of the offer being made. This is because, just

as with the January 6, 2020 sale, both Spivery and Janelle knew an agreement had been

reached for Spivery to sell Janelle an additional six ounces of methamphetamine on

January 7, 2020 at the same place where they had met to complete the January 6, 2020

sale. Therefore, just as with Spivery's first argument challenging the sufficiency of the

evidence regarding the January 6, 2020 sale, Spivery's third argument challenging the

sufficiency of the evidence as it relates to the January 7, 2020 sale likewise lacks merit.

Conclusion

{¶ 17} For the reasons outlined above, and finding no merit to any of the arguments

raised by Spivery herein, Spivery's two assignments of error challenging his conviction for

two counts of aggravated trafficking in drugs, one a second-degree felony and the other a

first-degree felony, are overruled. This is because both charges set forth in the indictment,

Count 1 and Count 2, were supported by sufficient evidence. This includes sufficient

evidence to support Clermont County being a proper venue where Spivery could be tried

and convicted of selling drugs to Janelle on both January 6 and 7, 2020.

{¶ 18} Judgment affirmed.

HENDRICKSON and M. POWELL, JJ., concur.

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