State v. Kilis

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State v. Kilis

State: Ohio

Court: Ohio Southern District Court

Docket No: 2011-Ohio-4739

Case Date: 09/02/2011

Plaintiff: State

Defendant: Kilis

Preview:[Cite as State v. Kilis, 2011-Ohio-4739.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
OTTAWA COUNTY
State of Ohio                                                                             Court of Appeals No. OT-11-007
Appellant                                                                                 Trial Court No. 09CR186
v.
Mark Kilis                                                                                DECISION AND JUDGMENT
Appellee                                                                                  Decided:   September 2, 2011
* *
Mark E. Mulligan, Ottawa County Prosecuting Attorney, and
Andrew Bigler, Assistant Prosecuting Attorney, for appellant.
Michael Sandwisch, for appellee.
* *
SINGER. J.
{¶ 1} This is a state's appeal from a judgment of the Ottawa County Court of
Common Pleas, dismissing three of 12 counts in a criminal indictment.   For the reasons
that follow, we reverse.

{¶ 2} On December 18, 2009, the Ottawa County Grand Jury handed down a
twelve- count indictment, charging appellee, Mark M. Kilis, with seven counts of rape,
four counts of gross sexual imposition and one count of improper firearm discharge.
Three of the four counts of gross sexual imposition were alleged to have occurred in
Sandusky County, "* * * as part of a continuing course of criminal conduct involving
Ottawa County * * *."   On arraignment, appellant pled not guilty.
{¶ 3} On November 5, 2010, appellee filed a motion to dismiss "* * * Counts #3,
#4, and #5 of the Indictment for a lack of the court having jurisdiction over the alleged
criminal acts which both the Indictment and the Bill of Particulars represent that these
alleged crimes occurred in Sandusky County, not Ottawa County."
{¶ 4} Following a February 17, 2011 hearing , the court dismissed counts three,
four and five for want of venue, because "* * * no evidence [of venue] was presented by
the state."   It is from this judgment that the state brings this appeal.   The state sets forth a
single assignment of error:
{¶ 5} "The trial court erred in dismissing three counts of the indictment because
the state did not present evidence of venue."
{¶ 6} "[A] motion to dismiss charges in an indictment tests the sufficiency of the
indictment, without regard to the quantity or quality of evidence that may be produced by
either the state or the defendant. In order to test the sufficiency of the indictment or
complaint, the proper query is whether the allegations contained in the indictment or
2.

complaint make out offenses under Ohio criminal law. If they do, it is premature for the
trial court to determine, in advance of trial, whether the State could satisfy its burden of
proof with respect to those charges.   A motion to dismiss an indictment cannot properly
be granted where the indictment is valid on its face."  State v. Eppinger, 162 Ohio App.3d
795, 2005-Ohio-4155, ¶ 37.   (Citations omitted.)
{¶ 7} In a criminal case, venue is as defined by law.   Crim.R. 18(A).   R.C.
2901.12(A) provides, "[t]he 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 of the offense was committed."
{¶ 8} "When an offender, as part of a course of criminal conduct, commits
offenses in different jurisdictions, the offender may be tried for all of those offenses in
any jurisdiction in which one of those offenses or any element of one of those offenses
occurred. Without limitation on the evidence that may be used to establish the course of
criminal conduct, any of the following is prima-facie evidence of a course of criminal
conduct:
{¶ 9} "(1) The offenses involved the same victim, or victims of the same type or
from the same group.
{¶ 10} "* * *
{¶ 11} "(3) The offenses were committed as part of the same transaction or chain
of events, or in furtherance of the same purpose or objective.
{¶ 12} "* * *
3.

{¶ 13} "(5) The offenses involved the same or a similar modus operandi."    R.C.
2901.12(H).
{¶ 14} Each of the counts of the indictment at issue alleged that appellee
committed the offenses charged as part of a continuing course of criminal conduct.   In its
amended bill of particulars, the state asserted that the victim in the Sandusky County
counts, "* * * was of a similar age and type to the victim of the alleged incidents
occurring in Ottawa County over the same period of time."   These assertions are
sufficient to allege venue pursuant to R.C. 2901.12(H)(1), (3) and/or (5).   Since venue is
the only element appellee suggests has been omitted in the indictment counts at issue and
we have determined that venue was properly alleged, it was erroneous for the trial court
to dismiss these counts.   Accordingly, the state's sole assignment of error is well-taken.
{¶ 15} On consideration whereof, the judgment of the Ottawa County Court of
Common Pleas is reversed.   This matter is remanded to said court for further proceedings
consistent with this decision.   Appellee is ordered to pay court costs of this appeal
pursuant to App.R. 24.
JUDGMENT REVERSED.
4.

State v. Kilis
OT-11-007
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See, also, 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J.
JUDGE
Arlene Singer, J.
Thomas J. Osowik, J.                                                                 JUDGE
CONCUR.
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio's Reporter of Decisions.  Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court's web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.
5.

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