State v. Marcum

2018 Ohio 1009, 109 N.E.3d 1
CourtOhio Court of Appeals
DecidedMarch 19, 2018
DocketNO. CA2017–05–057
StatusPublished
Cited by17 cases

This text of 2018 Ohio 1009 (State v. Marcum) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Marcum, 2018 Ohio 1009, 109 N.E.3d 1 (Ohio Ct. App. 2018).

Opinion

HENDRICKSON, J.

{¶ 1} Michael Marcum appeals his convictions in the Butler County Court of Common Pleas for robbery offenses. For the reasons detailed below, this court affirms Marcum's convictions.

{¶ 2} Shortly before 8 p.m. on February 17, 2016, a man entered Discount Tobacco on Breiel Boulevard in Middletown, displayed a knife, and demanded cash from the employee. The individual concealed his face with a "doo rag," and was otherwise covered with clothing, including a dark jacket, white gloves, and white shoes. After the employee gave him $300, the man left on foot. A responding police officer's K-9 unit tracked a scent southwest from the tobacco store. The track ended, unsuccessfully, around the intersection of Grand Avenue and Gideon Road.

{¶ 3} Seven weeks later, at around 4:00 p.m. on April 6, 2016, a man entered the Breiel Boulevard Walgreens, which is located a block south of Discount Tobacco. The man handed the check-out employee a note demanding cash and indicating that he possessed a gun. The employee provided the man with $193, and the man fled on foot. A K-9 unit tracked a scent southwest through a residential area. The K-9 unit lost the scent in the area of 723 Eaton Avenue, less than a half mile from the Walgreens. Marcum's rented home, located *4 at 3921 Lewis Street, is visible from where the K-9 track ended.

{¶ 4} Marcum's sister-in-law saw a Facebook post discussing the Walgreens robbery the same day it happened. She suspected Marcum was the suspect and contacted the Middletown police department. Middletown police detectives then spoke with Marcum at his home. Marcum denied any involvement in the Walgreens robbery and gave the detectives written consent to search the home. A search by the police failed to reveal any evidence related to the Walgreens robbery.

{¶ 5} Detectives interviewed Marcum's wife, Marie. They understood Marie had left the home a few days prior because of a fight with Marcum. Marie reviewed security camera footage of the Discount Tobacco robbery and identified the coat the suspect was wearing in the video as her green jacket. She told police that they would find the jacket in the home. In addition, Marie provided the detectives with written consent to search the home. At the time, Marie did not have a key to the home but showed the police how they could enter the home through a window. In the subsequent search of the home, the police recovered white gloves, a pair of throwing knives, a green winter jacket, and a pair of white "Skechers" brand shoes.

{¶ 6} In March 2017, a Butler County grand jury indicted Marcum with one count of aggravated robbery, a violation of R.C. 2911.01(A)(1) and a first-degree felony (Discount Tobacco robbery), and one count of robbery, a violation of R.C. 2911.02(A)(2) and a second-degree felony (Walgreens robbery). Prior to trial, Marcum moved to suppress evidence collected by police in the search of his home consented to by his wife. Marcum argued that Marie did not have authority to consent to the search. The court held an evidentiary hearing and subsequently denied the motion. The court found that Marie possessed actual authority to consent to the search. The court further found that even if Marie did not have actual authority, the police reasonably relied on her apparent ability to consent to the search.

{¶ 7} The case proceeded to a jury trial. The jury initially heard evidence from the two store employees and watched security camera footage of the robberies. As to the Discount Tobacco robbery, the employee identified Marcum by her familiarity with his voice; he was a customer and had worked at the strip mall in which the store was located. The State then called Marcum's sister-in-law, stepdaughter, and a Middletown police detective, who all testified that they recognized Marcum in the Walgreens robbery security camera footage. Finally, the Middletown detective and his partner testified about their robbery investigations. After deliberation, the jury found Marcum guilty of both counts in the indictment. The court sentenced Marcum to an aggregate sentence of 12 years in prison.

{¶ 8} Marcum appeals, raising five assignments of error, which we will address out of order for ease of analysis.

{¶ 9} Assignment of Error No. 3:

{¶ 10} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN OVERRULING HIS MOTION TO SUPPRESS EVIDENCE.

{¶ 11} Marcum argues that the court erred in denying his suppression motion because Marie lacked authority to give police consent to search the home. Marcum contends that Marie moved out of the home with no intention of returning eight days before the search occurred, changed the mailing address for her retirement check, and did not take a key with her to gain re-entry to the home.

*5 {¶ 12} Marcum also argues that it was unreasonable for the police to believe that Marie had apparent authority to consent to the search of the home. Marcum contends that the police were aware that Marie left the home and was residing with her daughter, she did not have a key to the home, and to gain entry to the home a police officer had to climb through a window and open the door from inside.

{¶ 13} Our review of a trial court's denial of a motion to suppress evidence presents a mixed question of law and fact. State v. Cochran , 12th Dist. Preble No. CA2006-10-023, 2007-Ohio-3353 , 2007 WL 1880207 , ¶ 12. Acting as the trier of fact, the trial court is in the best position to resolve factual questions and evaluate witness credibility. Id. Therefore, when reviewing the denial of a motion to suppress, a reviewing court is bound to accept the trial court's findings of fact if they are supported by competent, credible evidence. State v. Oatis , 12th Dist. Butler No. CA2005-03-074, 2005-Ohio-6038 , 2005 WL 3031883 , ¶ 10. "An appellate court, however, independently reviews the trial court's legal conclusions based on those facts and determines, without deference to the trial court's decision, whether as a matter of law, the facts satisfy the appropriate legal standard." Cochran at ¶ 12.

{¶ 14} The Fourth Amendment to the United States Constitution assures the "right of the people to be secure in their * * * houses * * * against unreasonable searches and seizures." "[S]earches and seizures inside a home without a warrant are presumptively unreasonable." Payton v. New York , 445 U.S. 573 , 586, 100 S.Ct. 1371

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Bluebook (online)
2018 Ohio 1009, 109 N.E.3d 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-marcum-ohioctapp-2018.