State v. Markins

2013 Ohio 602

• Court: Ohio Court of Appeals
• Decided: February 8, 2013
• Docket: 10CA3387
• Status: Published

Opinion

[Cite as State v. Markins, 2013-Ohio-602.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY

STATE OF OHIO, : Case No. 10CA3387 : Plaintiff-Appellee, : : DECISION AND v. : JUDGMENT ENTRY : GARY D. MARKINS JR., : : : RELEASED 02/08/13 Defendant-Appellant. : ______________________________________________________________________ APPEARANCES:

James H. Banks, Dublin, Ohio, for appellant.

Mark E. Kuhn, Scioto County Prosecuting Attorney, and Julie Cooke Hutchinson, Scioto County Assistant Prosecuting Attorney, Portsmouth, Ohio, for appellee. ______________________________________________________________________ Harsha, J.

{¶1} Gary Markins, Jr. appeals his convictions and sentence for the murder and

robbery of Gary Markins, Sr. and Nina Mannering. First he argues that the trial court

erred by overruling his motion to suppress evidence. Specifically he claims that his

Fourth and Fifth Amendment rights were violated because law enforcement did not

obtain a warrant before entering his girlfriend’s home where he was staying as an

overnight guest. However, the objective circumstances show that it was reasonable for

the officers to believe that Markins or his girlfriend might be in need of aid. Therefore,

the warrantless entry into the home was justified under the emergency-aid exception to

the search warrant requirement. And because the evidence discovered during the entry

was in plain view, there was no illegal search or seizure. Scioto App. No. 10CA3387 2

{¶2} Next Markins contends that his convictions were against the manifest

weight of the evidence. First, he claims that there was no evidence placing him at the

crime scene and therefore he cannot be convicted of complicity. However, being

present at the crime scene is not an element of complicity; one can be complicit in an

offense by supporting, assisting, or cooperating with the principal without being present

at the scene. And because the state presented evidence that showed Markins gave the

principal information on how to enter his father’s home and participated in planning the

robbery, there was ample evidence to show that he was complicit in the crime by aiding

and abetting.

{¶3} Markins also argues that his kidnapping conviction was against the

manifest weight of the evidence because the young victim was left in a bedroom that

had no door and therefore the jury erred by finding she was not released in a safe

place. However, releasing the victim in a safe place unharmed is not an element of the

offense; rather, it is an affirmative defense. The victim testified that the offender pushed

her into the room and told her that he would shoot her if she tried to leave. Moreover,

the front door to the house was locked, leaving her alone for several hours after the

offender left. Based on this evidence, we do not believe the jury clearly lost its way in

finding Markins failed to prove the affirmative defense by a preponderance of the

evidence.

{¶4} Markins also claims that possession of a firearm cannot be imputed to him

under R.C. 2901.21(D)(1) because the state did not prove that he became aware the

principal had a gun at a point when Markins had enough time to have ended the

principal’s possession. However, Markins himself admitted during an interview he knew Scioto App. No. 10CA3387 3

the principal planned to rob Markins, Sr. and saw him with a gun a day before the

murders. Therefore, there was sufficient evidence to support his convictions and they

are not against the manifest weight of the evidence.

{¶5} Next, Markins argues that the trial court erred by admitting certain

evidence. First, he contents admitting shoeprint comparisons without expert testimony

was improper. However because the comparison was not based upon scientific

methods or an analysis, it was properly admitted as lay opinion testimony. Markins also

contends the court admitted recorded phone conversations without proper

authentication. However, the state introduced evidence that identified the voices in the

conversations as that of Markins and his mother. Therefore, it provided the foundation

that the calls were what they purported to be, calls between Markins and his mother.

Markins also argues the trial court incorrectly allowed the jurors to use “listening aids”

while viewing a video tape of his interrogations. The aids were transcripts of these

tapes. The court instructed the jury that the transcripts were merely aids and the true

evidence was the tapes themselves. And we find no material differences between the

tapes and the transcripts. So, we reject this argument also. Finally, Markins also

argues that the trial court erred by admitting other acts testimony. However, the

testimony he complains of was either not evidence of other acts, or was admissible to

show motive and preparation.

{¶6} Markins also argues that the jury’s verdict forms do not support his

convictions because they did not include the degree of the convicted offense or the

aggravating elements found by the jury. However, a verdict form is only required to

include the degree of the offense or aggravating elements found by the jury if the Scioto App. No. 10CA3387 4

offense has multiple degrees of seriousness. Because Markins’ convictions either did

not have multiple degrees of seriousness, or the jury forms identified an aggravating

element where necessary there was no error with the verdict forms.

{¶7} Finally, Markins argues that his sentence is improper based on the alleged

errors with the verdict forms. Because we found no error with the forms, there is no

error with his sentence based on that argument.

I. OVERVIEW

{¶8} Gary Markins, Sr. and Nina Mannering were murdered in his home while

Mannering’s young daughter was present. At the time, Gary Markins, Jr. (Markins) was

living with his girlfriend, Christina Williams, in her trailer behind his father’s home.

Although Williams had previously lived with Markins, Sr. in his house, Mannering and

her young daughter had moved in shortly before his death. Markins was estranged

from his father and had not seen him for some time prior to his death. Markins and

Williams were both addicted to drugs and Markins, Sr. would supply Williams with

drugs, which she would share with Markins.

{¶9} Markins was indicted on 11 counts relating to the robbery and deaths of

Markins, Sr. and Mannering. At trial the state presented evidence that showed Markins,

Williams, Williams’ cousin Cecil Conley, and his friend Roy, devised a plan to burglarize

and rob Gary Markins, Sr. The state claimed that Markins provided information about

how to gain access to Markins, Sr.’s home, as well as information regarding his safe,

firearm, and drugs within the residence. The state also claimed that with Markins’ aid,

Conley entered the home and murdered Gary Markins, Sr. and Nina Mannering. And Scioto App. No. 10CA3387 5

after the homicides, Conley contacted Williams, and she and Markins helped him flee

from the scene.

{¶10} Prior to trial, Markins participated in two interviews with law enforcement in

which he gave inconsistent statements and provided different accounts of what

happened on the day in question. During its case-in-chief, the state showed video

recordings of these interviews to the jury and entered them into evidence. The jury

found Markins guilty of all counts and he was sentenced to life imprisonment without the

possibility of parole for 70 years. This appeal followed.

II. ASSIGNMENTS OF ERROR

{¶11} Markins presents five assignments of error for our review:

{¶12} 1. “THE TRIAL COURT ERRED IN DENYING DEFENDANT-

APPELLANT’S MOTION TO SUPPRESS EVIDENCE.”

{¶13} 2. “THE TRIAL COURT ERRED IN THE ADMISSION OF EVIDENCE

SUCH TO REQUIRE REVERSAL OF DEFENDANT’S CONVICTION.”

{¶14} 3. “THE EVIDENCE PRESENTED AT TRIAL IS INSUFFICIENT TO

SUPPORT DEFENDANT’S CONVICTIONS AND THE CONVICTIONS ARE

MANIFESTLY AGAINST THE WEIGHT OF THE EVIDENCE SUCH THAT THEY MUST

BE REVERSED.”

{¶15} 4. “THE VERDICT FORMS ON THE CHARGES DO NOT SUPPORT THE

DEFENDANT’S CONVICTIONS.”

{¶16} 5. “THE TRIAL COURT ERRED IN SENTENCING THE DEFENDANT.

III. MOTION TO SUPPRESS Scioto App. No. 10CA3387 6

{¶17} Markins first argues that the trial court erred by overruling his motion to

suppress evidence obtained from Williams’ home in violation of his Fourth Amendment

right against unreasonable search and seizure and Fifth Amendment right to due

process in addition to his state constitutional rights. Initially he asserts that because law

enforcement did not obtain a warrant prior to entering Williams’ home, all the evidence

recovered from her trailer should have been suppressed.

A. Standard of Review

{¶18} Appellate review of a motion to suppress involves a mixed question of law

and fact. State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, ¶

100. When considering a motion to suppress, the trial court assumes the role of trier of

fact and therefore is in the best position to resolve factual questions and evaluate

witness credibility. Id. As a result, appellate courts “‘must accept the trial court's

findings of fact if they are supported by competent, credible evidence.’” Id., quoting

State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). Accepting these facts as

true, the appellate court must then independently decide, without deference to the trial

court’s conclusion, whether the facts of the case satisfy the applicable legal standard.

Roberts at ¶ 100.

B. Law and Analysis

{¶19} The Fourth Amendment to the United States Constitution prohibits

unreasonable searches and seizures. Jones v. United States, 357 U.S. 493, 498-499,

78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958); Coolidge v. New Hampshire, 403 U.S. 443, 454-

455, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The Supreme Court of Ohio has interpreted

Section 14, Article I of the Ohio Constitution as affording the same protection as the Scioto App. No. 10CA3387 7

Fourth Amendment in felony cases. State v. Smith, 124 Ohio St.3d 163, 2009-Ohio-

6426, 920 N.E.2d 949, ¶ 10, fn. 1. Thus, we will limit our analysis of Markins’ argument

to the United States Constitution with the implicit understanding the same review

applies to protection under the state constitution.

{¶20} The Fourth Amendment prohibits unreasonable searches. It is well

established that searches conducted without a warrant are per se unreasonable, subject

to certain “carefully drawn” exceptions. Jones at 499; Coolidge at 454-455. See also

Smith at ¶ 10. For example, “‘the exigencies of the situation [may] make the needs of

law enforcement so compelling that the warrantless search is objectively reasonable.’”

Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 548, 175 L.Ed.2d 410 (2009), quoting

Mincey v. Arizona, 437 U.S. 385, 393-394, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). One

such exception to the Fourth Amendment’s warrant requirement is the community-

caretaking exception, which courts sometimes refer to as the “emergency-aid exception”

or “exigent-circumstance exception.” State v. Dunn, 131 Ohio St.3d 325, 2012-Ohio-

1008, 964 N.E.2d 1037, ¶ 15.

{¶21} “Numerous state and federal cases have recognized that the Fourth

Amendment does not bar police officers from making warrantless entries and searches

when they reasonably believe that a person within is in need of immediate aid.” Mincey

at 392. Thus, “law enforcement officers may enter a home without a warrant to render

emergency assistance to an injured occupant or to protect an occupant from imminent

injury.” Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650

(2006). Scioto App. No. 10CA3387 8

{¶22} “Officers do not need ironclad proof of ‘a likely serious, life-threatening’

injury to invoke the emergency aid exception.” Fisher at 549. Furthermore, the

“‘emergency aid exception’ does not depend on the officers’ subjective intent or the

seriousness of any crime they are investigating when the emergency arises.” Id. at 548.

It requires only an objectively reasonable basis for believing that a person within the

house is in need of immediate aid. Id. Consequently, “[a]n action is ‘reasonable’ under

the Fourth amendment, regardless of the individual officer’s state of mind, ‘as long as

the circumstances, viewed objectively, justify [the] action.’” (Emphasis added in Stuart.)

Stuart at 404, quoting Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 56

L.Ed.2d 168 (1978).

{¶23} Here, Detective Spencer testified at the suppression hearing that he only

entered Williams’ trailer to “make sure nobody else was dead.” Although his subjective

state of mind is not controlling in determining whether the emergency-aid exception to

the warrant requirement exists, it is one factor we can consider in deciding whether his

actions were objectively reasonable under the circumstances. The trial court found that

the officers knew that “drug activity was prevalent at both residences and there was real

concern that Gary Markins, Jr. and Christina Williams might be injured or dead.” After

repeatedly knocking at the front the door, shining lights through the windows and getting

no response the officers forced entry into Williams’ trailer. The officers then conducted

a “quick five minute search” of the home for Williams and Markins. They did not search

for evidence; rather the items in question were in plain view. Such items are subject to

seizure by an officer who has a right to be in a position to observe them. Harris v.

United States, 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). Scioto App. No. 10CA3387 9

{¶24} Considering that law enforcement had recently discovered Markins, Sr.

and Mannering murdered in his home and they knew that his son and Williams were

also involved in drug activity and living in her trailer just 150 yards away, it was

reasonable for the detectives to believe that they might also have been injured and

require assistance. And because the officers only stayed in the home long enough to

determine that no one else was in need of aid and did not search for evidence, the

warrantless entry in this case was reasonable under the Fourth Amendment. When

viewed objectively, the entry of Williams’ trailer was justified under the emergency-aid

exception. Likewise, what they observed in plain view once they were legally inside

was not protected by the Fourth Amendment.

{¶25} Furthermore, to the extent that Markins argues the trial court erred by not

ruling on the voluntariness of Williams’ consent to a subsequent search of her home,

trial counsel did not raise this issue at the hearing. To the contrary, our review of the

record shows that when the court asked Markins’ trial counsel whether he was “raising

an issue by way of the second entrance when they obtained permission from Christina

Williams?,” he responded “[t]he only issue we have with that, Your Honor, would be that

any evidence collected from the consent search is a fruit of the poisonous tree from the

first warrantless search.” Although, trial counsel did initially contest whether Markins’

right to privacy as an overnight guest was violated when detectives searched Williams’

trailer a second time after she gave consent, at the hearing Markins’ counsel focused on

the applicable exceptions to the first warrantless search of Williams’ trailer.1 “It is well-

settled that issues not raised in an original motion to suppress cannot be raised for the

1 We have assumed without deciding that Markins has standing to contest the search of Williams’ trailer. Scioto App. No. 10CA3387 10

first time on appeal.” State v. Jones, 4th Dist. No. 04CA9, 2005-Ohio-768, ¶ 18. Thus,

Markins has waived this Fifth Amendment argument and we will not consider it on

appeal.

{¶26} Accordingly, the trial court did not err by overruling Markins’ motion to

suppress and we overrule his first assignment of error.

IV. MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE

{¶27} For ease of analysis we address Markins’ remaining assignments of error

out of order. In his third assignment of error, Markins argues there is insufficient

evidence to support his convictions and that his convictions are against the manifest

weight of the evidence.

{¶28} “‘When an appellate court concludes that the weight of the evidence

supports a defendant’s conviction, this conclusion necessarily includes a finding that

sufficient evidence supports the conviction.’” State v. Leslie, 4th Dist. Nos. 10CA17,

10CA18, 2011-Ohio-2727, ¶ 15, quoting State v. Puckett, 191 Ohio App.3d 747, 2010-

Ohio-6597, 947 N.E.2d 730, ¶ 34 (4th Dist.). Thus, a conclusion that a conviction is

supported by the weight of the evidence will also determine the issue of sufficiency.2

Leslie at ¶ 15. Accordingly, we address whether Markins’ convictions are against the

manifest weight of the evidence.

{¶29} When considering whether a criminal conviction is against the manifest

weight of the evidence, an appellate court must review the entire record, weigh the

evidence and all reasonable inferences, and consider the credibility of witnesses to

determine “whether in resolving conflicts in the evidence, the jury clearly lost its way and

2 The inverse proposition is not always true. See State v. Thompkins, 78 Ohio St.3d 380, 387-388, 678 N.E.2d 541 (1997). Scioto App. No. 10CA3387 11

created such a manifest miscarriage of justice that the conviction must be reversed and

a new trial ordered.” State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854

N.E.2d 1038, ¶ 193.

{¶30} The reviewing court must bear in mind, however, that credibility generally

is an issue for the trier of fact to resolve. See State v. Issa, 93 Ohio St.3d 49, 67, 752

N.E.2d 904 (2001). “‘If the prosecution presented substantial evidence upon which the

trier of fact reasonably could conclude, beyond a reasonable doubt, that the essential

elements of the offense had been established, the judgment of conviction is not against

the manifest weight of the evidence.’” State v. Tyler, 196 Ohio App.3d 443, 2011-Ohio-

3937, 964 N.E.2d 12, ¶ 43 (4th Dist.), quoting Puckett at ¶ 32. Thus, we will exercise

our discretionary power to grant a new trial only in the exceptional case where the

evidence weighs heavily against the conviction. Drummond at ¶ 193.

A. Complicity

{¶31} Regarding his complicity convictions Markins asserts that there was “no

evidence whatsoever” placing him at the crime scene or that he participated or planned

to participate in the murders or robbery. Rather, he argues that at best, the evidence

supports the conclusion that he failed to discourage Conley and Williams from

committing a crime or not reporting what he learned about the crimes after the fact to

law enforcement. Therefore, he argues he cannot be convicted of complicity to any

crime. However, the record directly contradicts his claim of lack of participation.

{¶32} A defendant is complicit in an offense by aiding and abetting if he

supports, assists, encourages, cooperates with, advises, or incites the principal in the

commission of the crime and shares the criminal intent of the principal. State v. Scioto App. No. 10CA3387 12

Johnson, 93 Ohio St.3d 240, 754 N.E.2d 796 (2001), syllabus. Such intent may be

inferred from the circumstances surrounding the crime. Id.

{¶33} “The state may show aiding and abetting through both direct and

circumstantial evidence, and a fact finder may infer participation from presence,

companionship, and conduct before and after the offense is committed.” State v.

Buelow, 10th Dist. Nos. 07AP-317, 07AP-318, 2007-Ohio-5929, ¶ 29. See also In re

T.K., 109 Ohio St.3d 512, 2006-Ohio-3056, 849 N.E.2d 286, ¶ 13.

{¶34} In this case, Markins himself admitted during the January 11, 2010

interview with Detective Blaine that Cecil Conley came to his girlfriend Christina

Williams’ trailer the night before the murders. He knew that Conley planned to rob

Markins, Sr. because he heard him tell Williams that he could sneak in to Markins, Sr.’s

home while he was sleeping and take his Ohio State bag which contained drugs.

Markins then warned Conley that his father had a gun with him at all times and Conley

would get shot if he tried to rob his father. Markins also admitted to Detective Blaine

that he knew that Conley planned to rob his father because Conley called Williams while

hiding in Markins, Sr.’s garage on the day in question. Conley told Williams that the

door was locked and he was going to take the lock apart from the outside. Markins

claimed that after he heard this, he told Williams to call Conley back and “call the whole

thing off,” but she refused. He explained that Conley walked back and forth from

Williams’ trailer to Markins, Sr.’s garage several times and he estimated that Conley hid

in the garage for three to four hours.

{¶35} Timothy Boggs testified that he knew both Markins and Williams for

several years. He testified that he stopped by Williams’ trailer in the early morning Scioto App. No. 10CA3387 13

hours of the day in question. When he arrived, he saw Conley walking from Markins,

Sr.’s residence to the trailer. Conley told him that he had broken into Markins, Sr.’s

garage, but could not get into the house; in response, Markins advised Conley that

there was a way to enter the house through the attic.

{¶36} Kyle Cassidy testified that a few days before the murders Markins

discussed robbing his father. Specifically, he and Williams planned to steal his father’s

drugs after he picked them up from the pharmacy.

{¶37} Shannon Tomblin testified that she is currently incarcerated and met

Williams and Markins while selling them methamphetamine. She explained that she

would go to Markins Sr.’s home once or twice a week to either buy or sell drugs. She

testified that Markins continuously talked about robbing his father for his drugs. Markins

told her that in order to rob his father, one would have to shoot him; otherwise his father

would shoot first. She also testified that Markins told her that he knew someone that

“could get the job done” because the person had committed murder before and been

incarcerated for 20 to 25 years.

{¶38} Christopher Lodwick testified that while incarcerated Markins told him that

he drove the principal to his father’s home to commit a robbery. While he and a female

were waiting in the car, he heard a gunshot and knew that his father was dead.

{¶39} Considering this testimony, there was ample evidence that indicated

Markins, at the very least, participated in planning the robbery of his father, including

advising Conley how to enter the home through the attic. Therefore, the state

presented evidence that Markins was complicit in the crime by aiding and abetting and

his convictions for aggravated murder, aggravated robbery, aggravated burglary, Scioto App. No. 10CA3387 14

tampering with evidence, theft of a motor vehicle and conspiracy are not against the

B. Kidnapping

{¶40} The offense of kidnapping is generally a first-degree felony but may be

reduced to a second-degree felony if the offender releases the victim in a safe place

unharmed. State v. Sanders, 92 Ohio St.3d 245, 265, 750 N.E.2d 90 (2001); R.C.

2905.01(C). However, releasing the victim in a safe place unharmed is not an element

of the offense; rather it is an affirmative defense. Sanders at 265. Accordingly, the

defendant must prove its existence by a preponderance of the evidence. R.C.

2901.05(A). Markins argues that Conley left Williams’ daughter in her bedroom, which

had no door, i.e. that she was safe. Therefore, he contends that “the jury was

influenced by passion and prejudice in their finding that she was not released in a safe

place.”

{¶41} At trial the victim testified she was eight years old and on the day in

question, the offender entered the home and shot her mother and Markins, Sr. He then

pushed her into a bedroom and told her not to leave or he would also shoot her.

Although the bedroom had no door, the victim testified that she tried to open the window

to escape but could not get it open. She also testified that the lock on the front door

was too high for her to reach and her grandfather had to kick the door in when he

arrived several hours later. Therefore, we cannot say that the jury clearly lost its way by

concluding that the offender left the eight-year-old victim in an unsafe place when he left

her in a locked house alone and threatened to shoot her if she tried to leave.

D. Firearm Specification Scioto App. No. 10CA3387 15

{¶42} Markins claims that possession of a firearm cannot be imputed to him

under R.C. 2901.21(D)(1). That statute declares possession to be a voluntary act if the

person to whom possession is being imputed was aware of the principal’s possession of

the item with enough time to have ended the possession. Markins argues the state did

not produce any evidence to show that he became aware Conley had a gun and he had

sufficient time to have ended Conley’s possession. However, during the January 11,

2010 interview Markins told Detective Blaine that Conley planned to rob Markins, Sr.

and he knew that Conley had a gun. Markins admitted that the day before the murders,

Conley came to Williams’ trailer with a “little 25 auto.” Markins claimed that the gun

would not shoot, so in response, Conley fired the gun down the hallway of the home.

Thus, we find this assertion meritless.

{¶43} This is not an exceptional case in which the evidence weighs heavily

against the convictions; therefore Markins’ convictions are not against the manifest

weight of the evidence. Because this finding then necessarily includes a finding that his

convictions were supported by sufficient evidence, we overrule Markins’ third

assignment of error.

V. ADMISSION OF EVIDENCE

{¶44} In his second assignment of error, Markins argues that the trial court erred

by admitting certain evidence during his trial. Specifically, he claims error occurred in

admitting four categories of evidence: 1.) shoeprint impressions; 2.) taped phone

conversations; 3.) listening aids provided to the jury; and 4.) testimony regarding his

other acts. We review a trial court’s decision regarding the admission of evidence under

an abuse of discretion standard of review. State v. Osman, 4th Dist. No. 09CA36, Scioto App. No. 10CA3387 16

2011-Ohio-4626, ¶ 95. The term abuse of discretion means more than an error of law

or of judgment; it implies that the court’s decision was “unreasonable, arbitrary or

unconscionable.” Stammco, L.L.C. v. United Tel. Co. of Ohio, 125 Ohio St.3d 91, 2010-

Ohio-1042, 926 N.E.2d 292, ¶ 32.

A. Shoeprint Evidence

{¶45} Markins argues that the trial court erroneously admitted shoeprint

evidence without the testimony of an expert witness. App.R. 16(A)(7) requires the

appellant to “include in its brief, under the headings and in the order indicated, all of the

following * * * [a]n argument containing the contentions of the appellant with respect to

each assignment of error presented for review and the reasons in support of the

contentions, with citations to the authorities, statutes, and parts of the record on which

appellant relies. The argument may be preceded by a summary.” In his “Statement of

Facts” section Markins claims that a certain bootprint found at the crime scene was not

identified by an expert witness and that the state’s witnesses were permitted to discuss

the evidence as if they were experts. However, in the argument section of his brief he

cites no law or analysis to support his contention that testimony about bootprints

violated his right to due process. We need not create an argument on the appellant’s

behalf. See In re A.Z., 4th Dist. No. 11CA3, 2011-Ohio- 6739, ¶ 19. “‘If an argument

exists that can support [an] assignment of error, it is not this court's duty to root it out. * *

* It is not the function of this court to construct a foundation for [an appellant’s] claims

[.]’” Id. at ¶ 18, quoting Coleman v. Davis, 4th Dist. No. 10CA5, 2011-Ohio-506, ¶ 13.

“In other words, ‘[i]t is not * * * our duty to create an argument where none is made.’” In

re A.Z. at ¶ 18, quoting Deutsche Bank Natl. Trust Co. v. Taylor, 9th Dist. No. 25281, Scioto App. No. 10CA3387 17

2011-Ohio-435, ¶ 7. Accordingly, we could reject it summarily. See App.R. 12(A).

Nonetheless, we consider the merits of Markins’ argument.

{¶46} Evid.R. 701 allows lay opinion testimony if the opinion “(1) rationally based

on the perception of the witness and (2) helpful to a clear understanding of the witness’

testimony or the determination of a fact in issue.” The Supreme Court of Ohio has ruled

that depending on the circumstances, shoeprint comparison testimony can be lay

opinion testimony or expert testimony. State v. Jells, 53 Ohio St.3d 22, 28, 559 N.E.2d

464 (1990). “[A] lay witness may be permitted to express his or her opinion as to the

similarity of footprints if it can be shown that his or her conclusions are based on

measurements or peculiarities in the prints that are readily recognizable and within the

capabilities of a lay witness to observe. This means that the print pattern is sufficiently

large and distinct so that no detailed measurements, subtle analysis or scientific

determination is needed. In such a situation, the pattern is simply identified as being

similar to that customarily made by shoes. In essence, the testimony is ‘more in the

nature of description by example than the expression of a conclusion.’” Id. at 29,

quoting State v. Hairston, 60 Ohio App.2d 220, 223, 396 N.E.2d 773 (3rd Dist.1977).

{¶47} In this case, Agent Hanshaw’s testimony regarding the footprints left at the

scene was not based on detailed measurements, subtle analysis or scientific

determinations. Rather, his testimony was focused on the collection of footwear

impression evidence. On direct examination he discussed a herringbone pattern he

identified in the shoeprint that was readily recognizable and based on his own visual

observations. He testified that based on the presence of the herringbone pattern he

believed that impressions found outside the garage window of Markins, Sr.’s home were Scioto App. No. 10CA3387 18

the same shoe impressions leading to Williams’ trailer. Further, he testified that based

on the presence of a hiccup pattern a shoeprint found at the crime scene was similar to

Markins’ shoes. He even clarified that this was based on his observations and without

doing any measurements of the patterns. Because his testimony was based on his own

perceptions and he did not testify as to the results of scientific testing, we find his

testimony regarding the footwear impressions permissible as lay opinion testimony.

B. Voice Authentication

{¶48} Markins also argues that the trial court allowed “unauthenticated”

recordings of phone conversations that occurred between him and his mother while he

was incarcerated. In his “Issues Presented for Review” he suggests that his testimony

or that of his mother was necessary for authentication. However, again he cites no law

and presents no further analysis to support his argument, which we find meritless.

{¶49} “Evid.R. 901 governs the authentication of demonstrative evidence such

as recordings of telephone conversations. The threshold for admission is quite low as

the proponent need only submit ‘evidence sufficient to support a finding that the matter

in question is what its proponent claims.’ Evid.R. 901(A). This means, ‘the proponent

must present foundational evidence that is sufficient to constitute a rational basis for a

jury to decide that the primary evidence is what its proponent claims it to be.’ * * * A

proponent may demonstrate genuineness or authenticity through direct or circumstantial

evidence.” State v. Tyler, 196 Ohio App.3d 443, 2011-Ohio-3937, 964 N.E.2d 12, ¶ 25

(4th Dist.), quoting State v. Payton, 4th Dist. No. 01CA2606, 2002 WL 184922, *3.

{¶50} “To be admissible, a sound recording of a telephone call must be

‘authentic, accurate, and trustworthy.’” Tyler at ¶ 26, quoting State v. Were, 118 Ohio Scioto App. No. 10CA3387 19

St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 109. Evid.R. 901(B)(5) specifically

allows voice authentication by “[i]dentification of a voice, whether heard firsthand or

through mechanical or electronic transmission or recording, by opinion based upon

hearing the voice at any time under circumstances connecting it with the alleged

speaker.”

{¶51} Prior to trial, defense counsel stated that he had no objection to admission

of the phone calls placed by Markins from jail. Defense counsel stated “Yeah, we have

no problem with the jail calls that they submitted to us. Actually, we’ll offer a stipulation

to the telephone, the actual telephone records they subpoenaed. We’ll stipulate to their

authenticity.” However, at trial the defense seemed to object on the basis of

authentication, which the trial court overruled.

{¶52} The record in this case shows the state played the recorded phone calls

during Detective Blaine’s testimony. He first testified about the computerized system in

the Scioto County Jail that records inmate phone calls. He also testified that he

recognized the defendant’s voice regarding the January 11, recorded phone call. And

he identified the voice on the call as Markins’ and the number dialed as his mother’s

number. A second phone call was apparently placed, immediately after the first from

Markins to his mother. Again Detective Blaine testified that he recognized the voices as

Markins and Markins’ mother. Finally a third phone call was played and Detective

Blaine testified that he recognized the voice on the tape as Markins’. Considering the

defense’s stipulation prior to trial and Detective Blaine’s testimony, we find the state

presented foundational evidence that is sufficient to support a rational basis for a jury to Scioto App. No. 10CA3387 20

decide that the recorded phone calls were what that the state claimed them to be, i.e.

phone calls between Markins and his mother.

C. Listening Aids

{¶53} Markins also argues that it was prejudicial error to allow the jury to use

“listening aids” while viewing his interrogation by Detective Blaine. Again, he cites no

law or explanation for his argument and we could reject it summarily. “‘Where there are

no “material differences” between a tape admitted into evidence and a transcript given

to the jury as a listening aid, there is no prejudicial error.’” State v. Davis, 116 Ohio

St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 98, quoting State v. Waddy, 63 Ohio St.3d

424, 445, 588 N.E.2d 819 (1992).

{¶54} The transcripts of the interviews that Markins complains about were not

entered into evidence, and were only given to the jury as “listening aids” while they

viewed the video recordings of those interviews. Prior to the start of trial, Markins’

counsel brought his concerns with the listening aids to the attention of the trial court. He

noted that there were two instances on the transcript that he objected to, and the state

agreed to strike these two areas from the transcript. The court then asked if the

defense had any objection to them simply being stricken from the listening aids provided

to the jury and defense counsel responded that he did not.

{¶55} At trial, the court gave the jury the following instructions regarding the use

of the listening aid. “Ladies and gentleman, we’re going to give out something that I’m

going to call a listening aid to you. It’s something you can use as they play the tape but

I got to caution you when use that [sic]. You have been provided with a transcript of the

conversation that was recorded. This is provided to assist you in understanding the Scioto App. No. 10CA3387 21

conversation on the video. However, the listening aid is not intended to override your

interpretation from what is actually being said on the tape. The video is the evidence.

The listening aid is to be used only as an aid and not as a substitution for the content of

the video.” Markins counsel again noted his continuing objection to the listening aid

provided to the jury. The court also instructed the jury that “the last four lines on page

17, you’re to disregard those questions and answer and not consider them for any

purpose. We now move to page 19. You understand my, its because of me that we’re

skipping over these portions. It’s not something that they’re trying to hide or anything

like it. It’s because of something that I’ve done and that’s why I want it out. So you’re

not to consider those for any reason. If you’re mad that we’re jumping around, be mad

at me.”

{¶56} In State v. Mason, 82 Ohio St.3d 144, 159, 694 N.E.2d 932 (1998), the

Supreme Court of Ohio approved the use of transcripts as a listening aid under similar

circumstances. In light of the jury instructions, the fact that the defense did not note any

further objections to the accuracy of the transcript, and because the trial court struck the

portions which defense counsel originally objected to, we find no material differences

between the video tape admitted into evidence and the transcript given to the jury as a

listening aid. Accordingly, Markins has not suffered prejudicial error by allowing the jury

to use the listening aids.

D. Other Acts Evidence

{¶57} Finally, Markins argues that the trial court improperly admitted testimony

of uncharged “bad acts.” Specifically, he argues that to prove the charged offenses the

state presented testimony that was not admissible under Evid.R. 404 about other Scioto App. No. 10CA3387 22

schemes to rob and kill his father. He contends that “there was absolutely no evidence

presented that [he] followed through with any of the alleged schemes.” Moreover, he

claims that the probative value of the testimony “was highly outweighed by its prejudicial

effect.”

{¶58} Evid.R. 404(B) provides that “[e]vidence of other crimes, wrongs, or acts is

not admissible to prove the character of a person in order to show action in conformity

therewith. It may, however, be admissible for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or

accident.”

{¶59} Although in the argument section of his second assignment of error

Markins does not identify what testimony he believes the trial court erred in allowing, he

does contend in his “Statement of Facts” that the other acts evidence includes the

testimony of Kyle Cassidy, Shannon Tomblin, Christopher Lodwick and James Conley.

Therefore, we will focus on this evidence.

{¶60} Kyle Cassidy testified about a conversation between Williams and

Markins regarding robbing Markins, Sr. Markins stated they planned to follow Markins,

Sr. to the pharmacy and when he stopped for dinner on his way home, they were going

to break into the truck and get his “medicine.”

{¶61} Shannon Tomblin also testified about Markins’ desire to rob his father.

She stated that initially Markins wanted to take pills from his father’s truck, but later said

that if he had to enter his father’s home he would have to shoot him because his father

always carried a gun. Further, Markins also asked Tomblin to participate in the Scioto App. No. 10CA3387 23

robbery. She testified that he wanted Williams to take her to Markins, Sr.’s home and

then have her distract him “sexually,” while Williams and Markins took his pills.

{¶62} Christopher Lodwick testified about a conversation he had with Markins

about the murders while incarcerated. He stated that Markins denied ever killing his

father and that although he did not give any specific names, he drove another man to

his father’s house to get pills and described hearing a gun shot and then fleeing with

him in the car. During the car ride the other man admitted that he killed his father.

Markins also told Lodwick that he was worried another woman, who was with them in

the car after the murders, might talk to the detectives.

{¶63} Lodwick also testified that when the other male got in the car, he said that

he left a little girl alive in Markins, Sr.’s home and Markins told him that he couldn’t

believe that he didn’t kill her, and he wanted to go back.

{¶64} James Scott Conley explained that he and Williams have a son together

and that he also knew Markins and Markins, Sr. He testified that while at Williams’

trailer, Markins offered him ten thousand dollars to kill his father.

{¶65} The testimony by Lodwick is not evidence of “other bad acts.” To the

contrary, he described statements Markins made regarding his participation of the

crimes in question. Thus, the trial court did not err by allowing his testimony.

{¶66} Furthermore, the trial court did not abuse its discretion by allowing the

remaining testimony regarding Markins’ other admissions. Contrary to Markins’

assertions, Evid.R. 404 does not require evidence that he followed through with any of

the alleged plans. Rather, the testimony presented was admissible to show preparation

for and intent to rob and kill Markins, Sr., as well as motive. Both Tomblin and Scioto App. No. 10CA3387 24

Cassidy’s testimony focused on statements made by Markins concerning his plan to

steal pills from his father. This evidence was permissible to prove Markins’ motive for

the alleged crime, i.e. to rob Markins, Sr. of his drugs, and also to show his preparation

and intent for the crime. Furthermore, James Conley testified that Markins offered him

money to kill his father. Again, this testimony was admissible to show Markins’ plan and

intent to kill his father.

{¶67} We also reject Markins’ claim that the probative value of the evidence of

his other conduct was substantially outweighed by the danger of unfair prejudice.

Generally, evidence of the accused own actions is not unfairly prejudicial as long as it is

relevant to the essential elements of the offense. See State v. Ritze, 154 Ohio App. 3d

133, 2003-Ohio-4580, 796 N.E.2d 566, ¶ 18 (1st Dist.). The other acts evidence

Markins complains about was relevant to show his motive, intent, and/or plan to rob his

father. Moreover, the fact that Markins discussed robbing his father with several people

over a period of time goes to establish the continuing nature of his plan to accomplish

this crime, not some other unrelated criminal act that never came to fruition. His "other

acts" formed part of immediate background of the conduct of the crime he was charged

with and are inextricably related to that offense. See State v. Morris, 132 Ohio St.3d

337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 13. Clearly, the trial court did not abuse its

discretion in this regard.

{¶68} After reviewing the record, we conclude the trial court did not act

unreasonably, arbitrarily or unconscionably by allowing the testimony. Accordingly, we

overrule Markins’ second assignment of error.

VI. VERDICT FORMS Scioto App. No. 10CA3387 25

{¶69} In his fourth assignment of error, Markins argues that the verdict forms

returned by the jury do not support his convictions because they did not include the

degree of the convicted offenses or the aggravating elements found by the jury. He

urges us to reverse his convictions on this ground; but should we uphold the

convictions, he claims they should be modified to misdemeanor convictions. We find

this assignment of error to be meritless.

{¶70} Our review of the record shows that Markins did not object to the verdict

forms at trial. “However, the Supreme Court of Ohio has recognized error, even in the

absence of an objection at trial, when a verdict form fails to comply with R.C.

2945.75(A)(2).” Portsmouth v. Wrage, 4th Dist. No. 08CA3237, 2009-Ohio-3390, ¶ 42,

citing State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, 860 N.E.2d 735.

{¶71} R.C. 2945.75(A)(2) provides: “When the presence of one or more

additional elements makes an offense one of more serious degree: * * * A guilty verdict

shall state either the degree of the offense of which the offender is found guilty, or that

such additional element or elements are present. Otherwise, a guilty verdict constitutes

a finding of guilty of the least degree of the offense charged.” And “[p]ursuant to the

clear language of R.C. 2945.75, a verdict form signed by a jury must include either the

degree of the offense of which the defendant is convicted or a statement that an

aggravating element has been found to justify convicting a defendant of a greater

degree of a criminal offense.” Pelfrey at syllabus.

{¶72} “However, R.C. 2945.75(A)(2) and Pelfrey apply only to criminal offenses

with multiple degrees of seriousness. For example, in Pelfrey, the defendant was found

guilty of tampering with records in violation of R.C. 2913.42. Depending on the Scioto App. No. 10CA3387 26

seriousness of the conduct, tampering with records under R.C. 2913.42 may be a

misdemeanor of the first degree, a felony of the fifth degree, a felony of the fourth

degree, or a felony of the third degree. See RC. 2913.42(B)(1)-(4). The verdict form in

Pelfrey did not list the aggravating element (tampering with government records) or the

degree of the offense (a third degree felony pursuant to R.C. 2913.42(B)(4)). Pelfrey at

¶ 13. As a result, the defendant could ‘be convicted only of a misdemeanor offense,

which is the least degree under R.C. 2913.42(B) of the offense of tampering with

records.’ Id.” State v. Norman, 4th Dist. Nos. 08CA3059, 08CA3066, 2009-Ohio-5458, ¶

61. With this in mind, we will address each of Markins’ convictions in turn.

A. Aggravated Robbery

{¶73} In this case, Markins was convicted of aggravated robbery, in violation of

R.C. 2911.01(A)(1). However, because aggravated robbery under R.C. 2911.01 does

not have multiple degrees of seriousness, R.C. 2911.01 differs from the statutes

addressed in Pelfrey. Norman at ¶ 62. Namely, the seriousness of the conduct does

not determine the penalty for aggravated robbery under R.C. 2911.01. Id. All offenses

under R.C 2911.01 are felonies of the first-degree. See R.C. 2911.01(C). Therefore,

we find that R.C. 2945.75(A)(2) and Pelfrey do not apply to this conviction and the

verdict form did not have to include the degree of the offense or any aggravating

elements to justify a conviction for aggravated robbery.

B. Aggravated Burglary

{¶74} Markins was also convicted of aggravated burglary, in violation of R.C.

2911.11(A)(1). Again however, aggravated burglary under R.C. 2911.11 does not have

multiple degrees of seriousness and the statute states that all offenses are felonies of Scioto App. No. 10CA3387 27

the first-degree. R.C. 2911.11(B). Therefore, R.C. 2945.75(A)(2) and Pelfrey do not

apply to Markins’ conviction for aggravated burglary and the verdict form did not have to

include the degree of the offense or any aggravating elements.

C. Conspiracy to Commit Aggravated Burglary and Aggravated Robbery

{¶75} Markins was also convicted of conspiracy to commit aggravated burglary

and aggravated robbery in violation of R.C. 2923.01. R.C. 2923.01(J)(2) provides that

“[w]hoever violates this section is guilty of conspiracy, which is * * * [a] felony of the next

lesser degree than the most serious offense that is the object of the conspiracy, when

the most serious offense that is the object of the conspiracy is a felony of the first,

second, third, or fourth degree.”

{¶76} In this case, the verdict forms returned by the jury state: “We the jury,

having been duly impaneled, find the defendant, Gary Markins, II, guilty of conspiracy to

aggravated burglary in violation of Ohio Revised Code Section 2923.01/2911.11(A)(1).”

The second verdict form states: “We the jury, having been duly impaneled, find the

defendant, Gary Markins, II, guilty of conspiracy to aggravated robbery in violation of

Ohio Revised Code Section 2923.01/2911.01(A)(2).” Neither form states the degree of

the underlying offense (either aggravated burglary or aggravated robbery), however

each form clarifies the underlying offense that the jury found Markins guilty of, i.e.

conspiracy to “aggravated robbery” and conspiracy to “aggravated burglary.” And as we

noted above, neither aggravated robbery nor aggravated burglary have multiple

degrees of seriousness, i.e. they are always felonies of the first degree. Therefore, the

verdict forms were sufficient and the trial court properly sentenced Markins for felonies

of the second degree. Scioto App. No. 10CA3387 28

D. Aggravated Murder

{¶77} Markins was convicted of four counts of aggravated murder, in violation of

R.C. 2903.01(B). However, aggravated murder is an unclassified felony and does not

have different degrees of seriousness. See State v. Hamilton, 4th Dist. No. 05CA4,

2005-Ohio-5450, ¶ 14. R.C. 2903.01(F) provides that “[w]hoever violates this section is

guilty of aggravated murder, and shall be punished as provided in section 2929.02 of

the Revised Code.” And at least one appellate court has found that using the term

aggravated murder in the verdict form qualifies as a statement of the degree of offense

under R.C. 2945.75(A). See State v. Bryant, 7th Dist. No. 10MA11, 2010-Ohio-4401, ¶

22. We agree and because all four of the verdict forms state that the jury found Markins

guilty of “aggravated murder in violation of Revised Code Section 2903.01(B),” there

was no violation of R.C. 2945.75(A)(2) and Pelfrey.

E. Theft of a Motor Vehicle

{¶78} Markins was convicted of theft of a motor vehicle in violation of R.C.

2913.02(A)(1)/(B)(5), a felony of the fourth degree. R.C. 2913.02(B)(5) specifies that if

the property stolen is a motor vehicle, a violation of this section is grand theft of a motor

vehicle, a felony of the fourth degree.” Because under R.C. 2913.02(B) the presence of

one or more additional elements makes the offense more serious, Pelfrey and R.C.

2945.75(A)(2) apply and the verdict must either name the degree of the offense or the

aggravating element present.

{¶79} In this case, the verdict form returned by the jury states: “We the jury,

having been duly impaneled, find the defendant, Gary Markins, II, guilty of theft of motor

vehicle beyond a reasonable doubt in violation of Ohio Revised code Section Scioto App. No. 10CA3387 29

2913.02(A)(1)/(B)(5).” Therefore, the jury found the aggravating element present, i.e.

theft involving a motor vehicle. Accordingly, the requirements of Pelfrey and R.C.

2945.75(A)(2) were met.

F. Kidnapping

{¶80} Markins was convicted of kidnapping in violation of R.C. 2905.01(A)(2), a

felony of the first degree. As we have already stated, the offense of kidnapping is

generally a first-degree felony but may be reduced to a second-degree felony if the

offender releases the victim in a safe place unharmed. State v. Sanders, 92 Ohio St.3d

245, 265, 750 N.E.2d 90 (2001); R.C. 2905.01(C). However, releasing the victim in a

safe place is not an element of the offense, but rather an affirmative defense. Sanders

at 265. Moreover, it is a mitigating, rather than an aggravating circumstance, because

its presence reduces the degree of the offense. State ex rel. McKinney v. McKay, 11th

Dist. No. 2011-T-0039, 2011-Ohio-3756, ¶ 32. Accordingly, the requirements of Pelfrey

and R.C. 2945.75(A)(2) do not apply to this conviction.

G. Firearms Specification

{¶81} Finally, Markins was also found guilty of a firearm specification with regard

to all his convictions. The only argument he raises concerning this verdict form is based

upon the alleged invalidity of the other verdict forms. Because we have found no error

regarding any of the other verdict forms, we find no error here either.

{¶82} Because we find that Pelfrey and R.C. 2945.75(A)(2) did not apply to

Markins’ convictions, or alternatively, that the jury’s verdict forms contained the

necessary aggravating element, we overrule Markins’ fourth assignment of error.3

3 Markins does not argue the validity of the verdict form regarding his tampering with evidence conviction. Therefore, we will not address this conviction in his fourth assignment of error. Scioto App. No. 10CA3387 30

VII. MARKINS’ SENTENCE

{¶83} Finally in his fifth assignment of error, Markins argues that based on his

fourth assignment of error, his sentence is improper because the jury did not find the

necessary aggravating elements in the returned verdict forms. However, because we

have overruled his fourth assignment of error in its entirety, we also find this assignment

of error to be meritless. He also claims his sentence was “unduly harsh and contrary to

law,” but does not provide any support for this assertion. Therefore, we decline to

address it and overrule his fifth assignment of error.

VIII. CONCLUSION

{¶84} In conclusion, we overrule each of Markins’ five assignments of error and

affirm his convictions and sentence.

JUDGMENT AFFIRMED. Scioto App. No. 10CA3387 31

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Scioto County Court of Common Pleas to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.

Abele, J. & Kline, J.: Concur in Judgment and Opinion.

For the Court

BY: ____________________________ William H. Harsha, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.