Complete Story
Reversal on Sufficiency of Evidence of Venue (and on sufficiency of evidence of Retaliation in violation of ORC 2921.05 (B))
State of Ohio v. Gerry L. Moore, 2020-Ohio-6781
Gerry L. Moore was charged with and convicted of a three (3) count indictment in late 2018 in Erie County, Ohio. Except, at the time of the events as alleged, he resided in Marion County, Ohio as a prisoner in the Marion County Correctional Facility.
Moore was charted with one (1) count of retaliation, one (1) count of attempted murder, and one (1) count of complicity in 2017 while he was imprisoned on a previous Erie County case that also involved his ex. The 2017 this decision relates to involved allegations of Moore plotting to, and/or threatening to, murder his ex -- who was residing in Erie County, Ohio -- while, Moore himself was residing in Marion County, Ohio as an inmate at the Marion County Correctional Facility.
Moore's counsel objected in writing and on the record against venue in Erie County. The state argued venue was appropriate in Erie County because "the [victim] reside[d] in Erie County, therefore if the Defendant's acts were completed the murder would take place in Erie County where [the victim] resides."
The Sixth District Court of Appeals responded to the state's argument with the following:
"Under the state's theory of venue, venue would be appropriate in Erie County under the following hypothetical scenario. While both the defendant and the victim were living in Erie County, Ohio, the victim filed charges against the defendant for felonious assault. Defendant is subsequently found guilty and sentenced to prison in Ohio for three years. In the meantime, the victim moves to Ann Arbor, Michigan, but because the prior prosecution took place in Erie County, the defendant is brought to trial again in Erie County notwithstanding the fact that both he and victim are now Michigan residents, a result that is divorced from the language of 2901.12."
Finding that none of the elements of any of the offenses as charged took place in Erie County (and instead, in Marion County) the Sixth District reversed and vacated Moore's convictions. Interesting and of note: venue is actually a fact that must be proven beyond a reasonable doubt by the state, necessitating a fact finder. Therefore, challenges related to venue must be made at trial as opposed to being raised in pre-trial litigation motion practice.
The Sixth also reversed Moore's conviction on Count 1 for Retaliation in violation of Ohio Revised Code section 2921.05(B) on sufficiency of the evidence. Even in the light most favorable to the state, the evidence in front of the appellate court supported findings that: 1) Moore never directly communicated the alleged threats against his ex; 2) Moore did not have a reasonable expectation his alleged threats regarding his ex-wife would be communicated to her by a third party; and 3) Moore could not even have reasonably been aware that his alleged threats were being communicated to his ex. I guess if you do not directly communicate a threat to a crime victim and you have no reasonable way to know that your threats/alleged threats would be communicated to a crime victim, you can't be charged with or convicted of retaliation. Good to know! However, I can't help but wonder that if the Sixth District would have found sufficient evidence and sustained Moore's conviction on Count 1, would Moore have received a full sweep reversal? Because we all have to be careful about that "continuing course of conduct" language in ORC 2901.12(H) for venue.
However the war is not over (and why would it be on a finding of lack of sufficiency, I get it, you have to fight that). The state, as Appellee (love every time I see or write that), has begun its formal filings of disapproval as listed below.
State v. Moore, 2020-Ohio-6781
State's Motion to Certify Conflict and Motion for Reconsideration in the Sixth District Court of Appeals filed: 12/28/2020.
Defendant's memoranda in opposition / responses/ replies filed: 12/30/2020 and 12/31/2020.
State's replies to defendant's opposition(s) filed: 01/06/2021 and 01/07/2021.
