[Cite as State v. Miller, 2004-Ohio-2873.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT VINTON COUNTY : : Case No. 03CA586 Plaintiff-Appellee, : : v. : : DECISION AND JUDGMENT ENTRY ROBERT L. MILLER, : : Released 5/27/04 Defendant-Appellant. : ________________________________________________________________ APPEARANCES: Donald A. Cox, Jackson, Ohio, for Appellant. Timothy P. Gleeson, Prosecuting Attorney, McArthur, Ohio, for Appellee. ________________________________________________________________ Harsha, J. {¶1} After being convicted, in the Vinton County Court, of STATE OF OHIO,
driving an overloaded truck, Robert Miller appeals based upon his contention that his trial occurred in the wrong county. trooper who cited Miller first observed his truck in Vinton County, but did not stop it until the vehicle was in Meigs County. Since the trooper did not suspect that the truck was The
overloaded until after it reached Meigs County, Miller contends his trial in Vinton County was improper under Ohio's venue statute. {¶2} R.C. 2901.12 provides that venue is proper in any Because
county in which the offense or any part of it occurs.
Vinton App. No. 03CA586 the trooper testified that he never lost sight of the vehicle after he first observed it in Vinton County and that no changes occurred to its load, deductive logic compels the conclusion that the truck was overloaded while traveling the public road there. Thus, Vinton County was a proper venue and we affirm
2
appellant's conviction. {¶3} Appellant was charged with gross overload, in
violation of R.C. 5577.04(D), which provides that it is illegal to operate an overweight truck on public roads. Prior to trial,
the parties stipulated as to all elements of the offense, except venue. The trial court then held a bench trial where the sole
issue was whether venue in Vinton County was proper. {¶4} At the hearing, Ohio State Highway Patrol Sergeant
Stephen A. Belyus stated that he first observed appellant while the sergeant was traveling westbound on State Route 32, about one mile to one and one-half miles inside of Vinton County. Sergeant Belyus testified that appellant was traveling eastbound. He noticed that the trailer lights on appellant's
semi-truck were not working, so he decided to stop the vehicle. As he followed the vehicle, he noticed it "pulling hard going" on the upgrade "that one experiences traveling from Vinton County to Meigs County." When Sergeant Belyus finally stopped He then weighed the
the vehicle, the truck was in Meigs County. vehicle in Athens County.
Belyus also testified that he never
Vinton App. No. 03CA586 lost sight of the truck from the time he first observed it in Vinton County until he stopped it in Meigs County and weighed it in Athens County. during that period. He stated that nothing was added to the load Accordingly, he deduced that nothing
3
changed the weight of the vehicle from the time he observed it until he weighed it. {¶5} The trial court subsequently found that venue was Appellant timely appealed the trial "The trial
proper in Vinton County.
court's judgment and assigns the following error:
court erred in finding that venue was proper in Vinton County for the charge of gross overload in violation of R.C. 5577.04(D), when the truck was stopped in Meigs County and weighed in Athens County. Venue would have been proper in
either Meigs or Athens County." {¶6} In his sole assignment of error, appellant asserts
that the trial court erred by determining that venue was proper in Vinton County. He contends that venue would have been proper
in either Meigs County, where the vehicle was stopped, or Athens County, where the vehicle was weighed. He argues that Vinton
County was improper because the officer had no reason to believe the truck was overloaded during the brief period the officer observed the truck in that county. {¶7} A trial court's venue ruling generally rests in the Thus, we will not disturb
sound discretion of the trial court.
Vinton App. No. 03CA586 its decision absent an abuse of that discretion. See State v.
4
Maurer (1984), 15 Ohio St.3d 239, 250, 473 N.E.2d 768. An abuse of discretion involves more than an error of judgment; it connotes an attitude on the part of the trial court that is unreasonable, unconscionable, or arbitrary. See, e.g.,
State v. Irwin, Hocking App. Nos. 03CA13 & 14, 2004-Ohio-1129, at ¶23. {¶8} Venue refers to the appropriate place of a criminal See, e.g., State v. Venue is
prosecution within the state of Ohio.
Williams (1988), 53 Ohio App.3d 1, 5, 557 N.E.2d 818.
a fact that must be proven beyond a reasonable doubt in criminal prosecutions unless the issue is waived by the defendant. See
State v. Beuke (1988), 38 Ohio St.3d 29, 41, 526 N.E.2d 274; State v. Headley (1983), 6 Ohio St.3d 475, 477, 453 N.E.2d 716; State v. DeBoe, Huron App. No. H-02-057, 2004-Ohio-403. {¶9} R.C. 2901.12 governs venue in criminal trials and "(A) The trial of a criminal case in this state
reads in part:
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." {¶10} In this case, the plain language of the venue statute permitted appellant's trial to occur in Vinton or Meigs County. Under R.C. 2901.12(A), Vinton County is proper because, as Sergeant Belyus testified, he observed appellant's vehicle in
Vinton App. No. 03CA586 Vinton County. He stopped the vehicle without loosing sight of Thus, he could deduce
5
it and observed no additions to its load.
that the truck weighed the same in Vinton County as it did in Athens County. Because the truck was overloaded in Vinton
County, the fact that the officer did not suspect that condition until the vehicle reached Meigs County is immaterial. R.C.
5577.04(D) makes it illegal to operate an overloaded vehicle on public roads. Deductive logic leads to the inevitable
conclusion that the appellant did so in Vinton County where he was first observed by the trooper. Thus, the trial court did
not abuse its discretion by finding venue to be proper in Vinton County. {¶11} Accordingly, we affirm the trial court's judgment. JUDGMENT AFFIRMED.
Vinton App. No. 03CA586
6
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 Vinton County 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 Ohio Supreme Court 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 Ohio Supreme Court in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court 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. Kline, P.J.: Concurs in Judgment and Opinion. Evans, J.: Not Participating. For the Court
BY:
________________________ William H. Harsha, Judge
NOTICE TO COUNSEL
Vinton App. No. 03CA586 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.
7
