[Cite as State v. Cornwell ,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY

STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 10CA7 : vs. : Released: February 18, 2011 : DALE E. CORNWELL, : DECISION AND JUDGMENT : ENTRY Defendant-Appellant. : _____________________________________________________________ APPEARANCES:

Michael D. Hess, Circleville, Ohio, for Appellant.

Judy C. Wolford, Pickaway County Prosecutor, and Matthew L. O’Leary, Pickaway County Assistant Prosecutor, Circleville, Ohio, for Appellee. _____________________________________________________________

McFarland, J.:

{¶1} Appellant, Dale Cornwell, appeals the judgment of the Pickaway

County Court of Common Pleas finding him guilty of complicity to robbery,

a felony of the second degree in violation of R.C. 2923.03 and R.C.

2911.02(A)(1) and petty theft, a first degree misdemeanor in violation of

R.C. 2913.02(A)(1). On appeal, he contends that he was denied his Sixth

Amendment right to the effective assistance of counsel when the State failed

to prove venue beyond a reasonable doubt, and his defense counsel

neglected to move for an acquittal pursuant to Criminal Rule 29 at the close Pickaway App. No. 10CA7 2

of the State’s case. Because we find that venue was established beyond a

reasonable doubt in the proceedings below, we affirm the judgment of the

trial court.

FACTS

{¶2} Appellant was indicted by a Pickaway County Grand Jury on

October 2, 2009, on one count of complicity to robbery, a felony of the

second degree in violation of R.C. 2923.03 and R.C. 2911.02(A)(1) and one

count of petty theft, a first degree misdemeanor in violation of R.C.

2913.02(A)(1). Appellant entered a plea of not guilty to the charges, and a

trial on the matter took place in the Pickaway County Court of Common

Pleas on December 14, 2009. The jury found Appellant guilty of the charges.

On February 3, 2010, the trial court sentenced Appellant to a five year term

of imprisonment on the complicity to robbery conviction, and a six month

term of imprisonment on the petty theft conviction, to be served

concurrently. Appellant now appeals the jury's verdict, asserting the

following assignment of error:

ASSIGNMENT OF ERROR

“I. MR. CORNWELL WAS DENIED HIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN THE STATE FAILED TO PROVE VENUE BEYOND A REASONABLE DOUBT AND DEFENSE COUNSEL NEGLECTED TO MOVE FOR AN ACQUITTAL PURSUANT TO CRIMINAL RULE 29 AT THE CLOSE OF THE STATE’S CASE.” Pickaway App. No. 10CA7 3

LEGAL ANALYSIS

{¶3} In his sole assignment of error, Appellant contends that he was

denied the effective assistance of counsel when the State failed to prove

venue beyond a reasonable doubt and his trial counsel neglected to move for

an acquittal pursuant to Crim.R. 29 at the close of the State’s case. In order

to demonstrate ineffective assistance of counsel, Appellant must meet two

requirements. First, Appellant must demonstrate that counsel's performance

was deficient by showing that counsel committed errors so serious that he or

she was not, in effect, functioning as counsel. Strickland v. Washington

(1984),

,

. Second, Appellant must

demonstrate that these errors prejudiced his defense.

In order to prove

that counsel's deficient performance prejudiced Appellant's defense,

Appellant must show that “there exists a reasonable probability that, were it

not for counsel's errors, the result of the trial would have been different.”

State v. Bradley (1989),

,

.

{¶4} Appellant grounds his ineffective assistance of counsel argument

on the fact that his counsel below did not object to the State’s failure to

establish venue beyond a reasonable doubt. “The essence of venue is that at

least one element of the offense charged occurred within the county in which

the defendant is tried.” State v. Elliott, Ross App No. 06CA2924, 2007- Pickaway App. No. 10CA7 4

Ohio-2178; citing, R.C. 2901.12(A). In all criminal prosecutions, venue is a

fact that must be proven at trial unless waived. State v. Beuke (1988),

,

. It is not necessary that the venue of a

crime be proven in express terms if it is established beyond a reasonable

doubt that the crime was committed in the county and state as alleged in the

indictment. State v. Dickerson (1907),

,

, syllabus.

Venue is not a material element of the offense charged because the elements

of the offense and the venue of the matter are separate and distinct. State v.

Draggo (1981),

,

.

{¶5} The right to urge the error that the prosecution did not properly

prove venue cannot be advanced for the first time in an appellate court. State

v. Loucks (1971),

,

. However, failure

to prove venue is a defect affecting a substantial right and is subject to

review under the plain error doctrine. State v. Woodson (Feb. 11, 1998),

Ross App. No. 97CA2306,

, at * 3.

{¶6} Notice of plain error under Crim.R. 52(B) is to be taken with the

utmost caution, under exceptional circumstances and only to prevent a

manifest miscarriage of justice. State v. Phillips,

, 80, 1995-

Ohio-171,

, citing State v. Long (1978),

,

, paragraph three of the syllabus. Under a plain error Pickaway App. No. 10CA7 5

analysis, reversal is warranted only when the outcome of the trial clearly

would have been different without the error.

{¶7} In the case sub judice, there was no error during Appellant's trial

that clearly affected the outcome of the case. At trial, the victim testified that

he had been in Columbus all day and received several calls from Appellant

and his son requesting a ride. The victim agreed to pick them up at the Ohio

Heights apartment complex and further testified that the acts of robbery and

petty theft took place in front of apartment number 13 at the Ohio Heights

apartment complex.

{¶8} Elizabeth Copley, who was a passenger in the victim’s car, also

testified at trial. She testified that she had fallen asleep in the car during the

trip back to Circleville, and that she and the victim were going to the Ohio

Heights apartment complex. Lolita Getman and Julia Pickering, residents of

the Ohio Heights apartment complex and witnesses to the crimes, also

testified at trial. Ms. Getman testified that she lived at 590 East Ohio Street,

Apt. 11 at Ohio Heights. Ms. Pickering testified that she lived at 590 East

Ohio Street, Apt. 14 at Ohio Heights.

{¶9} Appellant argues that because the words “Pickaway County”

were never mentioned at trial that venue was not established. We disagree.

By providing the exact street address, apartment number and name of the Pickaway App. No. 10CA7 6

apartment complex where the crimes occurred, the State provided the jury

with enough evidence to determine the location of Appellant’s offenses.

See, State v. Lewis, Pickaway App. No. 09CA7,

at ¶ 10

(reasoning that testimony regarding the state route, mile marker and street

name where the offense occurred was actually more precise than explicitly

stating the name of the county where the offense occurred); relying on State

v. Matz, Ashland App. No.

,

at ¶ 16.

{¶10} Viewing this evidence in the light most favorable to the

prosecution, any reasonable trier of fact could have found that the acts of

complicity to robbery and petty theft the victim alleged took place in

Circleville, Ohio and Pickaway County. Thus, venue in the case sub judice

was proper.

{¶11} As such, we find that venue was properly established below.

Further, we see no error in Appellant's trial counsel's failure to submit a

Crim.R. 29 motion based on Appellee's failure to prove the same.

Accordingly, we overrule Appellant's sole assignment of error and affirm the

judgment of the trial court.

JUDGMENT AFFIRMED. Pickaway App. No. 10CA7 7

Kline, J., concurring.

{¶12} I concur in judgment and opinion except for the opinion’s

reliance on the plain error standard of review.

{¶13} Here, Cornwell has based his argument on ineffective

assistance of counsel, and “[t]he prejudice required for ineffective assistance

of counsel is somewhat less than that required for plain error.” State v.

Richmond, Greene App. No. 2005-CA-105,

. See,

also, State v. Huff, Stark App. No. 2006CA00081,

(Hoffman, J., concurring) (“The plain error test is higher or more difficult

for a defendant to establish. While a finding of no prejudice in an

ineffective assistance of counsel claim would necessarily preclude a finding

of plain error based upon counsel’s alleged ineffectiveness, the same does

not apply inversely.”). Nevertheless, for the reasons mentioned in the

opinion, I would find that Cornwell’s argument also fails under an

ineffective-assistance analysis. Pickaway App. No. 10CA7 8

JUDGMENT ENTRY It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee recover of 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 Pickaway County Common Pleas Court to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.

Abele, J.: Concurs in Judgment and Opinion. Kline, J.: Concurs in Judgment and Opinion with Opinion.

For the Court,

BY: _________________________ Judge Matthew W. McFarland

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.