State v. Marcum

108 N.E.3d 1211, 2018 Ohio 1135
CourtCourt of Appeals of Ohio, Fifth District, Fairfield County
DecidedMarch 21, 2018
DocketNo. 17–CA–35
StatusPublished
Cited by3 cases

This text of 108 N.E.3d 1211 (State v. Marcum) is published on Counsel Stack Legal Research, covering Court of Appeals of Ohio, Fifth District, Fairfield County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Marcum, 108 N.E.3d 1211, 2018 Ohio 1135 (Ohio Super. Ct. 2018).

Opinion

Wise, Earle, J.

{¶ 1} Defendant-Appellant James Marcum appeals the judgment of conviction and sentence of the Court of Common *1213Pleas of Fairfield County, Ohio. Plaintiff-Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On January 12, 2017, a man entered a Petco store on Taylor Road in Reynoldsburg Ohio and stole more than $4,000 in flea and tick medication. Three store employees witnessed the theft and one took photographs.

{¶ 3} The Fairfield County Grand Jury subsequently returned an indictment charging appellant with one count of theft in violation of R.C. 2913.02(A)(1) and (B)(2), a felony of the fifth degree.

{¶ 4} On June 27, 2017, the matter proceeded to a jury trial. At the conclusion of the state's evidence, counsel for appellant made a Crim.R 29 motion for acquittal. Counsel did not argue that the state had failed to prove venue. The trial court, however, raised the issue sua sponte. The court concluded that although the state had failed to present evidence of venue, sufficient facts were presented from which reasonable minds could differ as to whether the state had proved venue beyond a reasonable doubt. Appellant then rested without presenting evidence and without renewing his Crim.R 29 motion for acquittal.

{¶ 5} On June 28, 2017, the jury returned a verdict finding appellant guilty as charged. He was subsequently sentenced to a 6-month prison term.

{¶ 6} Appellant filed an appeal and the matter is now before this court for consideration.

I

{¶ 7} "THE TRIAL COURT COMMITTED HARMFUL ERROR IN DENYING THE DEFENDANT-APPELLANT'S MOTION FOR A DIRECTED VERDICT OF NOT GUILTY."

II

{¶ 8} "THE TRIAL COURT COMMITTED HARMFUL ERROR IN PERMITTING THE INTRODUCTION OF CERTAIN EVIDENCE IN THE PROSECUTION OF THE CASE BELOW."

III

{¶ 9} "THE DEFENDANT-APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL HEREIN."

{¶ 10} In his first assignment of error, appellant argues the trial court should have granted his motion for a directed verdict. We agree.

{¶ 11} Appellant concedes he did not raise the issue of venue when he made his Crim.R. 29 motion for acquittal and further concedes he failed to renew his motion after resting his case. In such a circumstance, it would normally be proper to consider proof of venue waived. We find, however, it is appropriate to consider the argument under a plain-error analysis, since the failure to prove venue does affect a substantial right. State v. Shedwick , 10th Dist. Franklin No. 11AP-709, 2012-Ohio-2270, 2012 WL 1852083 ¶ 38.

{¶ 12} An error not raised in the trial court must be plain error for an appellate court to reverse. State v. Long , 53 Ohio St.2d 91, 372 N.E.2d 804 (1978) ; Crim.R. 52(B). In order to prevail under a plain error analysis, appellant bears the burden of demonstrating that the outcome of the trial clearly would have been different but for the error. Id. Notice of plain error "is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." Long at paragraph three of the syllabus.

*1214{¶ 13} Crim.R. 29 governs motion for acquittal. Subsection (A) states the following:

The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state's case.

{¶ 14} "A motion for acquittal under Crim.R. 29(A) is governed by the same standard as the one for determining whether a verdict is supported by sufficient evidence." State v. Spaulding , 151 Ohio St.3d 378, 2016-Ohio-8126, 89 N.E.3d 554, ¶ 164, reconsideration denied, 147 Ohio St.3d 1480, 2016-Ohio-8492, 66 N.E.3d 766, citing State v. Tenace , 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37. "The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." Id. , citing State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

{¶ 15} While venue is not an essential element of a charged offense, courts have required that venue be proved by the state beyond a reasonable doubt unless it is waived by the defendant. State v. Headley , 6 Ohio St.3d 475, 477, 453 N.E.2d 716 (1983). Venue need not be proven in express terms as long as it is established by all the facts and circumstances in the case. State v. Dickerson , 77 Ohio St. 34, 82 N.E. 969

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Cite This Page — Counsel Stack

Bluebook (online)
108 N.E.3d 1211, 2018 Ohio 1135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-marcum-ohctapp5fairfie-2018.