State v. Musarra: Venue Insufficiency Is a Dismissal, Not an Acquittal—Prosecution May Appeal as of Right Under R.C. 2945.67(A)

Introduction

In State v. Musarra, 2025-Ohio-5058, the Supreme Court of Ohio unanimously held that when a criminal case is terminated because the State failed to prove venue, the ruling is a dismissal of the indictment—not a judgment of acquittal—and the prosecution may appeal as of right under R.C. 2945.67(A). In doing so, the Court expressly overruled State v. Hampton, 2012-Ohio-5688, which had treated venue-based terminations as acquittals that were unappealable by the State.

The case arose from a jury trial in Cuyahoga County on charges of rape and sexual battery against appellee Nicholas Musarra. After the State’s case-in-chief, the defense moved for a Crim.R. 29(A) judgment of acquittal, principally arguing that the State had failed to establish that the offenses occurred in Cuyahoga County. The trial court granted the motion based solely on venue. The Eighth District dismissed the State’s appeals—both as of right and by leave—in one-line entries, relying on Hampton. The Supreme Court accepted the State’s appeals, consolidated them, and reversed in relevant part.

The decision clarifies the meaning of “acquittal” under Crim.R. 29, the status of venue within Ohio’s constitutional and statutory framework, and the contours of the State’s appellate rights under R.C. 2945.67(A). It also aligns Ohio practice with the U.S. Supreme Court’s double-jeopardy analysis in Smith v. United States, 599 U.S. 236 (2023).

Summary of the Opinion

Holding: A decision terminating a prosecution due to insufficient evidence of venue is, in substance, a decision granting a motion to dismiss the indictment, complaint, or information. The State may appeal that decision as of right under R.C. 2945.67(A).
Key Rule Announced: Venue is not an element of an offense; therefore, insufficient proof of venue cannot support a Crim.R. 29(A) “judgment of acquittal,” which is reserved for failures of proof on the essential elements of the charged offense.
Precedent Overruled: State v. Hampton, 2012-Ohio-5688, is overruled.
Disposition: The Eighth District’s dismissal of the State’s appeal as of right in case No. 113487 is reversed and remanded for consideration on the merits. The dismissal of the State’s discretionary appeal in case No. 113486 is affirmed as unnecessary given the as-of-right appeal.
Unresolved Questions Not Reached: The Court did not decide whether “final verdict” encompasses trial-court judgments labeled “acquittals” (noting State v. King, No. 2024-1608, pending) and did not decide the standard of proof for venue (i.e., whether beyond a reasonable doubt remains required).

Analysis

Precedents and Authorities Cited and Their Influence

R.C. 2945.67(A): Grants the prosecution an appeal as of right from decisions granting a motion to dismiss “all or any part of an indictment, complaint, or information,” and allows appeals by leave from “any other decision, except the final verdict.” The Court’s core move is to classify a venue-based termination as a dismissal within the “as of right” clause.
Crim.R. 29(A): Permits a judgment of acquittal only “if the evidence is insufficient to sustain a conviction of such offense.” The Court anchors “insufficiency” to the State’s failure to prove the elements of the charged offense—thus excluding venue-based failures from the rule’s ambit.
Ohio Const., art. I, § 10 (Vicinage Clause): Provides a speedy public trial by an impartial jury “of the county in which the offense is alleged to have been committed.” This locational guarantee “fixes the place of trial” and is “separate and distinct” from substantive elements of an offense.
R.C. 2901.12(A): Requires that a criminal trial be held “in the territory of which the offense or any element of the offense was committed.” This statutory command helps define proper venue but does not convert venue into an offense element.
State v. Draggo, 65 Ohio St.2d 88 (1981), and State v. Jackson, 2014-Ohio-3707: Venue is “separate and distinct” from the elements of an offense. These cases undergird the Court’s categorical distinction between guilt (elements) and place (venue).
Walden v. State, 47 Ohio St.3d 47 (1989): An acquittal is a determination that the State failed to meet its burden on the essential elements of the crime. This ties the concept of acquittal to culpability, not procedural or locational requisites.
State v. Hampton, 2012-Ohio-5688 (overruled): Had treated failure to prove venue as a permissible basis for a Crim.R. 29 acquittal and thus as a non-appealable “final verdict.” Musarra rejects Hampton as inconsistent with the element/venue distinction and with the proper scope of Crim.R. 29.
Smith v. United States, 599 U.S. 236 (2023): The U.S. Supreme Court held double jeopardy does not bar retrial after a venue-based “acquittal,” because such a ruling does not resolve culpability. Musarra harmonizes Ohio practice with this reasoning, emphasizing that venue determinations do not speak to guilt.
State v. Keeton, 18 Ohio St.3d 379 (1985), and State ex rel. Yates v. Montgomery Cty. Court of Appeals, 32 Ohio St.3d 30 (1987): Classified certain judgments of acquittal as “final verdicts” not appealable by the State. Musarra acknowledges but does not revisit those holdings, noting a pending case (State v. King) on the scope of “final verdict.”
State v. Headley, 6 Ohio St.3d 475 (1983): Described venue as “a fact which must be proved in criminal prosecutions,” often articulated historically as beyond a reasonable doubt. Musarra clarifies that although venue must be proved to sustain a conviction procedurally, it is not an element of the offense and thus cannot support an acquittal under Crim.R. 29. The Court explicitly leaves the precise standard of proof for venue for another day.
State v. Nevius, 147 Ohio St. 263 (1947): Sometimes cited to conflate venue-based rulings with acquittals. Musarra carefully reads Nevius to show it did not grant a full acquittal; it discharged prosecution in the wrong county and contemplated recommitment for proceedings in the proper county—functionally a venue-based dismissal, not an adjudication of innocence.
Cincinnati v. Gwynne, 10 Ohio 192 (1840), and United States v. Martin Linen Supply Co., 430 U.S. 564 (1977): Courts look to the substance of a ruling, not its label. Musarra uses this principle to recharacterize a trial court’s mislabeled “acquittal” as a dismissal when based solely on venue.

Legal Reasoning

Acquittals are about culpability. By rule and doctrine, a Crim.R. 29(A) judgment of acquittal lies only when the State’s evidence is insufficient to permit a finding of guilt on the charged offense—i.e., failure of proof on one or more essential elements. This aligns with Ohio precedent (Walden) and federal double-jeopardy jurisprudence (Martin Linen; Smith).
Venue is not an offense element. Venue flows from the Ohio Constitution’s vicinage guarantee and R.C. 2901.12; it determines where a case is tried, not whether the defendant committed the crime. Draggo and Jackson entrench this separation.
Therefore, venue-based terminations cannot be “acquittals.” A ruling that the State failed to establish venue does not resolve guilt or innocence. Labelling such a ruling an “acquittal” does not change its substance. The correct characterization is a dismissal of the indictment/complaint/information.
R.C. 2945.67(A) grants an appeal as of right from dismissals. Once recharacterized as a dismissal, the trial court’s ruling falls squarely within the statute’s as-of-right appeal provision. The limitation on State appeals of a “final verdict” does not apply because the ruling is not an acquittal and does not decide culpability.
Hampton is inconsistent with this framework and is overruled. Hampton’s assimilation of venue failures into Crim.R. 29’s acquittal mechanism contradicted both the element/venue distinction and the culpability focus of “acquittal.” Musarra restores doctrinal coherence.
Ripeness. The Court rejects the argument that the State’s appeal is unripe pending a trial-court ruling on retrial. The issue on review is the appealability of the termination order—a live controversy given the Eighth District’s dismissals.
Final-verdict scope left for another case. While noting the pending State v. King on the breadth of “final verdict,” the Court resolves Musarra without revisiting Keeton or Yates because the disposition here is not an acquittal.

Impact and Practical Consequences

Immediate effects

Appeal rights clarified: Prosecutors now have an appeal as of right from trial-court rulings that terminate a case based on insufficient proof of venue, regardless of how the trial court labels the ruling.
Trial-court practice: Trial courts should treat a defendant’s venue-based challenge—whether styled under Crim.R. 29 or otherwise—as a motion to dismiss. If the State fails to prove venue, the proper disposition is dismissal without reaching culpability.
Appellate screening: Courts of appeals should no longer dismiss such State appeals as non-appealable “acquittals.” They must assess venue rulings on the merits under the as-of-right provision of R.C. 2945.67(A).
Double jeopardy posture: Consistent with Smith, a venue-based dismissal does not bar retrial in a proper venue if the dismissal is reversed or if the State refiles in the correct county. Defendants remain fully protected from retrial after true acquittals on the merits.

For prosecutors

Preserve and present venue evidence early and clearly; request appropriate jury instructions on venue when the case goes to the jury.
If a case is terminated for lack of venue, file an appeal as of right under R.C. 2945.67(A). Consider also whether refiling in the proper county is feasible and prudent while the appeal is pending, mindful of statute-of-limitations and tolling issues.
When defense raises venue post-State’s case, urge the court to treat the motion as one to dismiss rather than Crim.R. 29 acquittal.

For defense counsel

Continue to contest venue where appropriate; recognize that a successful venue challenge will likely result in dismissal subject to State appeal or refiling, not a merits acquittal.
Consider strategic implications: whether to pursue a venue dismissal (with potential refiling elsewhere) versus litigating the case to a culpability-based acquittal.

For trial and appellate courts

Frame and resolve venue objections as dispositive, non-merits rulings. Use precise language in journal entries to reflect a dismissal for lack of venue.
On appeal, apply the standard of review governing venue sufficiency and statutory/constitutional interpretation; address, where raised, whether venue was tried to the jury or decided as a matter of law.

Open and future-looking issues

Standard of proof for venue: The Court flagged but did not decide the State’s argument that venue need not be proved beyond a reasonable doubt. Historically, Ohio decisions have used that standard. Expect future litigation to clarify whether a lower evidentiary threshold applies.
Definition of “final verdict”: The Court left untouched Keeton and Yates pending State v. King. A new decision in King could further refine the boundaries of appealable State rights, but Musarra stands independently because venue terminations are not acquittals.
Case management and refiling: Prosecutors may elect to refile in a different county after a venue dismissal. Coordination among counties and attention to speedy-trial calculations will matter.

Complex Concepts Simplified

Venue vs. Elements: Elements are the building blocks of guilt (e.g., conduct, mental state). Venue is the proper place to try the case. Failing to prove an element means the State hasn’t proved guilt; failing to prove venue means the case is in the wrong place.
Crim.R. 29(A) “Judgment of Acquittal”: A tool to end a case when the State’s evidence could not allow a reasonable jury to find every element proved beyond a reasonable doubt. It is about culpability, not procedure.
Dismissal vs. Acquittal: A dismissal ends the case without deciding guilt (the State can often appeal or refile). An acquittal decides the defendant is not guilty as a matter of law or fact (the State generally cannot appeal or retry).
R.C. 2945.67(A): Gives prosecutors a right to appeal from dismissals, suppression orders, return of property orders, and certain postconviction relief grants; other rulings are appealable by leave—except a “final verdict.”
Double Jeopardy (Smith v. United States): Protects against being tried twice for the same offense after a determination of innocence or guilt. A venue-based termination does not resolve guilt; retrial is not barred.

Conclusion

State v. Musarra reshapes Ohio criminal procedure by definitively separating venue from culpability. It restores the traditional understanding that:

An acquittal under Crim.R. 29(A) is appropriate only when the State fails to prove an element of the offense.
Venue is not an element; thus, a failure to prove venue results in a dismissal, not an acquittal.
The State has an appeal as of right from such a dismissal under R.C. 2945.67(A).

By overruling Hampton and aligning with Smith’s double-jeopardy logic, the Court ensures that venue errors do not insulate cases from appellate review or retrial in the proper forum. The decision promotes doctrinal clarity, procedural fairness, and statewide uniformity in the handling of venue disputes. Future cases may address the standard of proof for venue and further refine the meaning of “final verdict,” but the core rule announced in Musarra provides clear guidance now: venue-based terminations are dismissals, and they are appealable as of right.

Case details: State v. Musarra, Slip Opinion No. 2025-Ohio-5058 (Nov. 12, 2025). Opinion by Deters, J., joined by Kennedy, C.J., and Fischer, DeWine, Brunner, Hawkins, and Shanahan, JJ. Appeals from Eighth District case Nos. 113486 and 113487; reversed and remanded in part (as-of-right appeal), affirmed in part (discretionary appeal dismissed as unnecessary).