The county prosecutor has a right to appeal a Cuyahoga County trial court’s judgment terminating the case against a man charged with rape and sexual battery, after the court found that the state had not proved the actions occurred in the county, the Supreme Court of Ohio ruled today.

In a unanimous decision, the Supreme Court ruled that while the trial judge labeled the decision a judgment of acquittal, the decision was, in fact, a dismissal of the indictment against Nicholas Musarra because it was based on the state’s purported failure to establish that Cuyahoga County was the proper venue for the case.

Writing for the Court, Justice Joseph T. Deters explained when the Cuyahoga County Prosecutor’s Office attempted to appeal the trial court’s decision, the Eighth District Court of Appeals dismissed the appeal. The Eighth District stated that under the Supreme Court’s 2012 decision in State v. Hampton, the state does not have the right to appeal a trial court’s decision purporting to grant a judgment of acquittal based on a determination that venue has not been established.

The Court today overruled the Hampton decision and directed the Eighth District to consider the prosecutor’s appeal.

Accused Contested Trial Location
Musarra and a woman identified in court records as “Jane Doe” worked together in Lake County. Doe and Musarra had several drinks after work one night in 2020, and afterwards Musarra drove the two of them in Doe’s car to his home in Cuyahoga County. The plan was for Doe to call a rideshare service from Musarra’s house to get a ride to her home. However, Doe fell asleep before the rideshare arrived.

Doe testified that she awoke to Musarra having sex with her. She fled his home in her car. Cuyahoga County prosecutors charged Musarra with rape and sexual battery. After the prosecutors presented their case at Musarra’s 2023 trial, Musarra asked the trial judge to acquit him. He argued the state had not presented sufficient evidence that the alleged offenses occurred in Cuyahoga County. He also claimed the state failed to prove all the elements of rape and sexual battery. Based on the venue claim, the judge acquitted Musarra of the charges.

When the prosecutor appealed the decision, the Eighth District dismissed the appeal.

The prosecutor appealed to the Supreme Court of Ohio. Citing the U.S. Supreme Court’s 2023 Smith v. United States decision, the prosecutor argued that the 2012 Hampton decision should be overruled.

Supreme Court Analyzed Acquittal Rules
Justice Deters explained that under R.C. 2945.67(A), a prosecutor cannot appeal a final verdict . However, the state can appeal other decisions of a trial court in a criminal case, including the dismissal of an indictment, complaint, or information. The question here, then, was whether a decision that was labeled judgment of acquittal under Rule 29 of the Ohio Rules of Criminal Procedure and that determined venue was not established was a final verdict.

Rule 29 allows a trial court to acquit “if the evidence is insufficient to sustain a conviction of such offense or offenses.” In Hampton,the Court found that failure to prove venue was grounds for acquittal under Rule 29 and that the acquittal constituted a final verdict of the court, which could not be appealed.  The prosecutor argued Hampton was wrongly decided because venue is not an element of the offense of rape or sexual battery, the charges Musarra faced. Musarra countered that since venue must be proved to sustain a conviction, insufficient evidence of venue is also insufficient evidence of guilt.

An acquittal is based on the prosecution's failure to prove the essential elements of the crime, the opinion stated. A judgment of acquittal “is a resolution of culpability,” meaning whether the state proved beyond a reasonable doubt that the accused committed the crime.

Venue does not relate to culpability, the Court stated. Instead, venue concerns where an alleged crime was committed. The Court has previously ruled that venue is “separate and distinct” from the elements of the criminal offenses charged.

The Court noted the 2023 Smith decision by the U.S. Supreme Court explained that failure to prove venue is “fundamentally different” from a judgment of acquittal. Because of the double jeopardy clause of the U.S. Constitution, ending a trial because the state failed to prove the accused committed the offense is not reviewable. Retrying a person based on a violation regarding where the case was prosecuted is not, however, a double jeopardy violation, the opinion noted.

“Termination of a prosecution based on insufficient evidence of venue is a dismissal, not an acquittal, because it does not resolve whether the defendant committed the charged offense,” the opinion stated.

The case was remanded to the Eighth District to consider the appeal.

2024-0541 and 2024-0540 State v. Musarra, Slip Opinion No. 2025-Ohio-5058.

View oral argument video of this case.

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