State v. Headley

• Decision Date: 07 September 1983
• Docket Number: No. 82-835,82-835
• Citation: 6 OBR 526,453 N.E.2d 716,6 Ohio St.3d 475
• Parties: , 6 O.B.R. 526 The STATE of Ohio, Appellant and Cross-Appellee, v. HEADLEY, Appellee and Cross-Appellant.
• Court: Ohio Supreme Court

Page 475

6 Ohio St.3d 475

453 N.E.2d 716, 6 O.B.R. 526

The STATE of Ohio, Appellant and Cross-Appellee, v. HEADLEY, Appellee and Cross-Appellant.

No. 82-835.

Supreme Court of Ohio.

Sept. 7, 1983.

Syllabus by the Court

1. R.C. 2901.12(G) vests venue in the jurisdiction where the defendant's offense, or any element thereof, was committed.

2. The type of controlled substance involved in the crime of aggravated trafficking under R.C. 2925.03 is an essential element which must be included in the indictment, the omission of which cannot be cured by amendment under Crim.R. 7(D).

On July 2, 1981, appellee and cross-appellant, Robert J. Headley, was charged with one count of aggravated trafficking, a violation of R.C. 2925.03(A)(8). The indictment stated that appellee "did knowingly provide money or other items of value to another person with the purpose that the recipient of the money or items of value would use them to obtain controlled substances for the purpose of selling or offering to sell such controlled substances in amounts exceeding a bulk amount * * *."

On July 10, 1981, appellee moved to dismiss the indictment on grounds that it failed to allege an essential element of the crime, that is, the identity of the controlled substance. The trial court overruled this motion and permitted appellant to amend the indictment by adding the words, "to-wit: cocaine."

Appellee entered a plea of not guilty to the indictment and, following several pretrial hearings, the case proceeded to trial.

The state's evidence demonstrated that on May 31, 1981, a narcotics investigation was instituted to observe the conduct of Steven Cimino, a suspected drug dealer who was traveling in a private plane from Virginia Beach, Virginia to the Akron-Canton airport in Summit County, Ohio. Based upon a tip given by the pilot of the plane, Virginia Beach police officers suspected that Cimino's purpose in making the trip was to effectuate a drug deal. As a result, they placed an officer, George McClellan, on the plane as a co-pilot and arranged for several members of the Akron police force to keep Cimino under surveillance once the plane arrived.

After landing, Akron police officer Sergeant Arthur T. Greer observed Cimino exit from the plane and approach a public telephone. He dialed and waited several moments and then reported to his pilot that he had not been able to get in touch with "his man." Due to this, arrangements were made for Cimino, McClellan and the pilot to stay overnight at the Belden Village Sheraton Hotel located in Stark County.

At the hotel, Cimino checked into Room 302. Investigating officers from the Akron police department checked into the adjoining room, No. 304, and attempted to listen to and observe Cimino's activities.

The evening passed uneventfully. At 7:55 the following morning, however, McClellan called Sergeant Greer who was posted in Room 304 and reported that Cimino had made contact with "his man" and that the latter was coming to the hotel.

At approximately 10:00 a.m., Headley arrived at Cimino's room. Through the adjoining doorway, Greer was able to hear portions of the conversation which followed. At one point he heard Headley state, "I only got $36,000. I could write a check for the rest of it, * * * I even have a check writer." Cimino responded that he did not want a check and asked why appellee did not have the rest of the money. Headley explained that he was planning to meet his "man from Cleveland" for the rest of the money and invited Cimino to join him. Greer then heard Headley say the word "coke" which he understood to mean cocaine. Cimino responded, "250 a gram," and then "two and a half up front, three and a half final" which Greer believed related to the terms of sale.

Cimino agreed to accompany Headley to Cleveland and the two left in Headley's automobile. After going a short distance northerly on Interstate 77, they were stopped by the police in Jackson Township, also located in Stark County. The officers discovered a cocaine testing kit in the console of the car. In the trunk they found a bag containing a manila envelope stuffed with some $36,000 in cash. No drugs of any type were found.

The jury found appellee to be guilty as charged and judgment was entered upon the verdict. That judgment was reversed by the court of appeals which found that the state had failed to prove the action was properly venued in Summit County, and that the indictment was defective due to the failure to name the controlled substance involved.

The cause is now before this court pursuant to the allowance of a motion and cross-motion for leave to appeal.

Lynn C. Slaby, Pros. Atty., and Philip D. Bogdanoff, Akron, for appellant and cross-appellee.

William T. Whitaker and Elizabeth Reilly, Akron, for appellee and cross-appellant.

JAMES P. CELEBREZZE, Justice.

Appellant's first proposition of law concerns the court of appeal's finding on the issue of venue. Appellant asserts that this finding was in error in that the evidence was sufficient to demonstrate that some part of the offense with which appellee was charged was committed in Summit County.

Although it is not a material element of the offense charged, venue is a fact which must be proved in criminal prosecutions unless it is waived by the defendant. State v. Draggo (1981), 65 Ohio St.2d 88, 90, 418 N.E.2d 1343 . The standard of proof is beyond a reasonable doubt, although venue need not be proved in express terms so long as it is established by all the facts and circumstances in the case. State v. Dickerson (1907), 77 Ohio St. 34, 82 N.E. 969, paragraph one of the syllabus.

Section 10, Article I of the Ohio Constitution fixes venue, or the proper place to try a criminal matter, as follows: " * * * In any trial, in any court, the party accused shall be allowed * * * a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed * * *." Thus, the rule is that the place of trial is to be where the offense occurred.

Generally, this rule is preserved in R.C. 2901.12, Ohio's venue statute, although the Committee Comment to that statute notes that provision is also made for the mobile offender whose course of criminal conduct affects a number of jurisdictions. Accordingly, that statute provides, in material part, as follows:

"(A) The 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 thereof was committed.

" * * *

"(G) When it appears beyond a reasonable doubt that an offense or any element thereof 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 such jurisdiction.

"(H) When an offender, as part of a course of criminal conduct, commits offenses in different jurisdictions, he may be tried for all such offenses in any jurisdiction in which one such offense or any element thereof occurred. * * * " (Emphasis added.)

In this case, appellant asserts that Headley engaged in a course of criminal conduct that spanned several jurisdictions including Summit County. Appellant argues that Cimino attempted to contact Headley to complete the drug deal upon his arrival at the Akron-Canton airport in Summit County. Appellant contends that the crime as originally planned was intended to take place there. Appellant also asserts that Headley told Cimino that he lived on East Tuscarawas Extension and asks this court to take judicial notice of the fact that that road is located in Summit County. Finally, appellant points out that Headley and Cimino were stopped on Interstate 77 going in the direction of Cleveland which necessarily would have led them through Summit County. Based upon these facts, the state argues that the case was properly venued in Summit County under R.C. 2901.12(A), (G) and (H).

We must first note that, on its face, R.C. 2901.12(H) is not applicable to the facts at hand as that provision is concerned with the defendant who commits more than one offense. Here, appellee was indicted for a single count. We further find that appellant's venue argument under R.C. 2901.12(G) must also fail.

R.C. 2901.12(G) vests venue in the jurisdiction where the defendant's offense, or any element thereof, was committed. We do not agree with the appellant that this requirement was in any way modified by the "significant nexus" language of State v. Draggo, supra, 65 Ohio St.2d at 92, 418 N.E.2d 1343. Under that case, venue questions arising under R.C. 2901.12(G) must still be resolved by determining whether "any element" of the offense was committed within the jurisdiction where the trial is to take place. Id. at 91, 418 N.E.2d 1343.

Here, appellant was charged with violating R.C. 2925.03(A)(8). That section provides:

"(A) No person shall knowingly do any of the following:

" * * *

"(8) Provide money or other items of value to another person with the purpose that the recipient of the money or items of value would use them to obtain controlled substances for the purpose of selling or offering to sell such controlled substances in amounts exceeding a bulk amount or for the purpose of violating division (A)(3) of this section."

Appellant advances a most strained interpretation of the evidence adduced below in an effort to establish that appellee's criminal conduct bore some relationship to Summit County. We agree with the court below that this interpretation is not correct and is not supported by the record. First, the evidence is...