Does State's Failure to Establish Venue Constitute Plain Error and Discharge a Convict ?
In State v. Gardner (1987), 42 Ohio App.3d 157, 158, 536 N.E.2d 1187, the defendant was charged with assaulting the owner of a restaurant.
The court found that the only clues as to the location of the offense were that the restaurant was located at "'1412 Vine' across the street from the Red Horse Bar at 'the corner next to Krogers,' and that defendant lived at 28 East Thirteenth Street 'right around the corner from Krogers.'" Id.
The court found that these facts were "not sufficiently unique to permit the conclusion that the restaurant was in Hamilton County, Ohio." Id. at 157-158.
The court also found that even though the defendant did not call the venue issue to the trial court's attention, the state's failure to establish venue constituted plain error pursuant to Crim.R. 52(B).
Consequently, the court reversed defendant's conviction and ordered him discharged from that offense. Gardner at 158.