A Marion County prison inmate cannot be tried for retaliation in Erie County for plotting with a cellmate to kill his ex-wife when all his actions occurred in Marion County, the Supreme Court of Ohio ruled today.

In a unanimous decision, the Supreme Court held that charges against Gerry Moore Sr. for his attempts to retaliate against his ex-wife had to be pursued in Marion County, where he made the plan, rather than in Erie County, where the plan to murder her was supposed to take place. The decision affirmed a Sixth District Court of Appeals ruling vacating the 22-year prison sentence Moore received.

Writing for the Court, Justice Patrick F. Fischer explained prosecutors argued they had the right to  try the case in Erie County because that is where Diane Moore pressed charges against her ex-husband, which landed him in prison. But since Gerry Moore only communicated with his cellmate while in Marion County and never directly threatened his ex-wife, then Erie County was an improper venue, Justice Fischer wrote.

Revenge Plotted in Prison
Moore and his wife of 21 years lived in Erie County together until she filed for divorce in 2015. About a month after Moore’s wife filed for divorce, Moore snuck into his wife’s home, held her at gunpoint, and attempted to kidnap her. She was able to escape and, as she was running away, Moore shot at her. She called for help, and law enforcement apprehended Moore.

Moore pleaded guilty to felony charges in Erie County, and was sentenced to eight years and 11 months in prison.

In 2017, while incarcerated in Marion County for the 2015 crimes, Moore told his cellmate, Richard Kiser, that he blamed his ex-wife for his imprisonment, and wanted her dead. He offered Kiser $50,000 to kill his ex-wife if Kiser was released from prison before Moore.

Murder Plan Revealed to Police
According to Kiser, Moore asked him to go to two bars his ex-wife frequented and “slip her a lethal dose of drugs to end her life.” Moore drew Kiser a map showing the location of the bars, his ex-wife’s residence, and her place of employment, all of which were located in Erie County.

Kiser contacted the targeted woman’s divorce attorney and explained the plot. The attorney contacted Erie County law enforcement. At the request of the authorities, Kiser wore a recording device and captured a conversation in Marion County in which Moore encouraged Kiser to kill his ex-wife. During the conversation, Moore referenced the map he drew Kiser and suggested several locations in Erie County where he could kill her.

Based on his statements, Moore was indicted in Erie County in 2017 for retaliation, attempted aggravated murder, and conspiracy.

Trial Location Challenged
Moore requested a change of venue and to transfer the proceedings to Marion County, where he was imprisoned and where his conversations with Kiser occurred. The Erie County Prosecutor’s Office argued that Moore committed retaliation in Erie County because his ex-wife pursued the 2015 charges there. Moore’s incarceration for the Erie County offenses was the basis of the retaliation charge, the prosecutor concluded.

The trial court denied Moore’s request and allowed the trial to proceed. A jury convicted Moore of all three charges. He was sentenced to 22 years in prison.

Moore appealed the decision to the Sixth District, which reversed the 2017 convictions for improper venue because all of the conversations between Moore and Kiser took place in Marion County. The prosecutor’s office appealed the decision to the Supreme Court, which agreed to hear the case.

Supreme Court Reviewed Trial Location Standards
The Court’s opinion stated that Article 1, Section 10 of the Ohio Constitution requires criminal trials to be held in the “county in which the offense is alleged to have been committed.” Additionally, R.C. 2901.12(A) states that criminal trials are to be held “in the territory of which the offense or any element thereof was committed.” The statute also states if offenses are conducted in more than one location “as part of a course of criminal conduct,” then the trial can be held “in any jurisdiction in which one of those offenses or any element of one of those offenses occurred.”

Justice Fischer stated that Erie County prosecutors brought the case in Erie County based entirely on the retaliation charge. R.C. 2921.05(B) states, “No person, purposely and by force or by unlawful threat of harm to any person or property, shall retaliate against the victim of crime because the victim filed or prosecuted criminal charges.”

Justice Fischer explained the prosecutor’s main argument is that a victim’s earlier pursuit of criminal charges is an “element” of retaliation. Since Diane Moore pursued charges in 2015 against her ex-husband in Erie County, and he was retaliating because of that, then part of the crime took place in Erie County, the state argued.

Supreme Court Analyzed Retaliation Law
The Court’s opinion explained the phrase “because the victim filed or prosecuted criminal charges” explains the required reason for the retaliation and is committed by the defendant, not the victim.

“Neither a criminal offense nor its elements are committed by the victim. Elements are committed by the defendant,” the Court stated.

The venue for a retaliation charge is where the defendant used force or threat of harm because the victim filed or prosecuted criminal charges against the defendant, the opinion stated. It is not where the victim previously pursued charges, the Court concluded.

The prosecution also argued even if Moore was in Marion County, the proper venue for a retaliation charge can be where the victim is located, which was Erie County. The Court stated the approach is appropriate “when the defendant used force against or communicated a threat of harm to the victim in that location,” but that is not what happened in this case. Moore did not use force against his ex-wife while attempting to retaliate nor did he threaten her by phone or mail. All the threats occurred when Moore talked to Kiser while they both were imprisoned in Marion County, the opinion noted.

While the Court upheld the Sixth District’s decision to vacate the 2017 charges against Moore, the Ohio Attorney General’s Office participated in the case and asked the justices to clarify whether Moore could be retried in Marion County.

The Court noted neither party raised the retrial issue in this case in the courts below, and the opinion stated the question must be left “for another day.”

2021-0266. State v. Moore, Slip Opinion No. 2022-Ohio-1460.

View oral argument video of this case.

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