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State v. Higgins

Court of Appeals of Ohio, Seventh District

June 17, 2013


Criminal Appeal from Common Pleas Court, Case No. 11CR59.

For Plaintiff-Appellee: Attorney Jane Hanlin Prosecuting Attorney Attorney Jeffrey Bruzzese Assistant Prosecuting Attorney

For Defendant-Appellant: Attorney Francesca Carinci

Hon. Joseph J. Vukovich Hon. Cheryl L. Waite Hon. Mary DeGenaro



{¶1} Defendant-appellant Mark Higgins, Jr. appeals from his conviction and sentence rendered in the Jefferson County Common Pleas Court for two counts of rape of a child under the age of 13, in violation of R.C. 2907.02(A)(1)(b). Three issues are presented in this appeal. The first two concern whether the state proved essential elements of the crimes. Specifically, whether the state proved when and where the rapes occurred and whether the state proved the element of penetration. The third issue is whether the trial court's suppression ruling was correct. Specifically, did the trial court abuse its discretion when it found that Higgins intelligently waived his Miranda rights, which resulted in the denial of his motion to suppress his confession?

{¶2} For the reasons discussed below, all arguments lack merit. The judgment of the trial court is affirmed.

Statement of Facts and Case

{¶3} On April 25, 2011, A.V., the victim's sister, walked into the garage of her mother's house and saw Higgins and the victim with their pants down and Higgins finger in the victim's vagina. Trial Tr. 337. The victim was 8 years old at the time. A.V. and the victim then left the garage and A.V. contacted her mother and father.

{¶4} The victim was then taken to Martins Ferry East Ohio Regional Hospital where a rape kit was performed. After the nurses and doctor's observations were documented, the Jefferson County Sheriff's Department was called and a complaint was filed. Higgins was arrested the next day.

{¶5} Following the arrest and booking, Higgins was interrogated by Sheriff Abdalla, Jefferson County's Sheriff. Prior to giving a statement, Higgins was read his Miranda rights and orally waived those rights. During this interrogation, Higgins admitted to vaginal penetration and that the victim performed oral sex on him on April 25, 2011. He also admitted to a prior occurrence of oral and vaginal sex that occurred within the previous week. Higgins was then asked to give a written statement, which he agreed to do. However, prior to that, he was given a written document titled "Your Rights, " which listed the Miranda rights. After each right, the questionnaire asks if the person understands. Higgins responded by writing "yes." The last question on the form is "Having these rights in mind, do wish to talk to us now?" Higgins wrote "Yes." Higgins then proceeded to write a written statement with the help of the Sheriff.

{¶6} On June 1, 2011, Higgins was indicted by the Jefferson County Grand Jury for two counts of rape, in violation of R.C. 2907.02(A)(1)(b). The indictments specified that Higgins engaged in sexual conduct with the victim, who was under the age of ten, on April 25, 2011 and "on or about April 17 through April 20, 2011." The Bill of Particulars further provided that the sexual conduct in counts one and two of the indictment was for oral and vaginal sex. 06/21/11 Bill of Particulars.

{¶7} Following the indictment, two evaluations were ordered. The first was a competency and sanity evaluation. Although Higgins was found to have a lower than average range of intellectual functioning, he was deemed to be sane and competent to stand trial. The second was performed to evaluate Higgins' ability to waive his Miranda rights. Dr. Kristen Haskins administered this evaluation and opined that Higgins did not intelligently waive his Miranda rights.

{¶8} Thereafter, based on Dr. Haskins' report and the video of the interrogation with Sheriff Abdalla, Higgins filed a motion to suppress his confession. Following a suppression hearing, the trial court overruled the motion.

{¶9} The case then proceeded to a jury trial. A jury returned a guilty verdict on both counts of the indictment. Higgins was sentenced to two concurrent life sentences without the possibility of parole.

{¶10} Higgins timely appeals his conviction and sentence.

First Assignment of Error

{¶11} "The State of Ohio failed to meet its burden in establishing an essential element of the crime, namely, during the testimony of the victim it was never established that the events occurred in the State of Ohio County of Jefferson on the date and place as alleged."

{¶12} Higgins argues that the state failed to prove both subject matter jurisdiction and venue. Specifically, he asserts that the state not only failed to prove that the rapes occurred in Ohio, but it also failed to prove that it occurred in Jefferson County.

{¶13} The State of Ohio has subject matter jurisdiction over a crime if any element of the offense, under the laws of this state, takes place in Ohio. R.C. 2901.11(A)(1). The Ohio Constitution establishes the right of the accused to have a "trial by an impartial jury of the county in which the offense is alleged to have been committed." Ohio Constitution, Article I, Section 10. R.C. 2901.12 further guarantees that right by requiring that a criminal trial shall be held in a court with subject matter jurisdiction "in the territory of which the offense or any element of the offense was committed."

{¶14} As for venue, it has been held that the prosecution must prove beyond a reasonable doubt that the crimes alleged were committed in the county where the trial was held, if the defendant did not waive this right. State v. Gonzales, 188 Ohio App.3d 121, 2010-Ohio-982, 934 N.E.2d 948, ¶ 4 (3rd Dist.), quoting Toledo v. Taberner, 61 Ohio App.3d 791, 793, 573 N.E.2d 1173 (6th Dist.1989), citing State v. Headley, 6 Ohio St.3d 475, 477, 453 N.E.2d 716, (1983); State v. Draggo, 65 Ohio St.2d 88, 90, 418 N.E.2d 1343 (1981); and State v. Nevius, 147 Ohio St. 263, 71 N.E.2d 258 (1947), paragraph three of the syllabus. Accordingly, we have explained that, "Venue is not a material element of any crime but, unless waived, is a fact that must be proven at trial beyond a reasonable doubt." State v. Barr, 158 Ohio App.3d 86, 2004-Ohio-3900, 814 N.E.2d 79, ¶ 14 (7th Dist.). Typically the prosecutor will directly establish venue; however, it does not need to be proven in express terms, but rather can be established by the totality of facts and circumstances of the case. Gonzales at ¶ 4, quoting Taberner at 793.

{¶15} At the outset, we note that Higgins may have waived the venue argument because he failed to raise a Crim.R. 29 motion for acquittal or any other motion that argued that the state failed to prove that the crimes occurred in Jefferson County. See Gonzales at ¶ 5. That said, in the interest of justice we will still address the merits of the argument.

{¶16} At trial, Sheriff Abdalla stated that the site of the rape was at the victim's home located at 1309 County Road 3, Rayland, Ohio. Trial Tr. 171, 217. He further provided that this address is in Jefferson County. Trial Tr. 171, 217. The victim's mother testified that at the time of the offense she was living at 1309 County Road 3, Rayland, Ohio in Jefferson County. Trial Tr. 304. She indicated that the sexual assault occurred at that address. Trial Tr. 306-307. The victim's father further testified that the victim lives with the mother at the 1309 County Road 3, Rayland, Ohio residence. Trial Tr. 317, 318. The victim's sister, who witnessed the sexual conduct, also testified that the victim lives with the mom and that she was also staying with her mom on April 25, 2001, when ...

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