State v. Marcum
| Decision Date | 25 July 2011 |
| Docket Number | Case No. 10-CA-0137 |
| Parties | STATE OF OHIO Plaintiff-Appellee v. JEROME B. MARCUM Defendant-Appellant |
| Court | Ohio Court of Appeals |
JUDGES:
Hon. W. Scott Gwin, P.J.
For Plaintiff-Appellee
DANIEL HUSTON
For Defendant-Appellant
THOMAS M. TYACK
TYACK, BLACKMORE, LISTON & NIGH
{¶1} Defendant-appellant, Jerome B. Marcum, appeals his convictions on two counts of aggravated murder, and one count of attempted aggravated murder, each with a firearm specification. Plaintiff-appellee is the State of Ohio.
{¶2} Appellant and his ex-wife, Bonnie Marcum, lived in a house in Licking County next door to his sister, Sonia Marcum, and across the street from John Walsh. In December of 2009, appellant came to believe that his sister Sonia had taken steps to cut off his access to water from a common well that was shared between the two homes. This belief triggered a series of unfortunate events.
{¶3} During the events which occurred in this case, appellant was seventy years old with serious health problems and had been on disability for a substantial period of time. He had no previous criminal record or record of any substance abuse.
{¶4} On December 18, 2009, at approximately 3:20 p.m., appellant shot and killed John Walsh by a water well housing located in the front yard of his sister's home. Specifically, appellant shot Mr. Walsh with a Defender .38 caliber pistol in the left abdomen and then in the top of his head. After shooting Mr. Walsh, appellant chased his sister, Sonia Marcum, into her garage and shot and killed her. Specifically, appellant shot Sonia in the left flank and also in the head above her right ear. Appellant returned to his residence and placed the pistol in his bedroom.
{¶5} Appellant then drove to the home of his brother located at 14201 Vance Rd., Mt. Vernon, Knox County, Ohio. Once there, he concealed himself, and waited for Homer (Clarence) Marcum to return home. When Homer returned home and wasunloading groceries in his garage, appellant approached and tried to shoot him by pulling the trigger on a SAR semi-automatic assault rifle. However, the rifle did not fire because, although the rifle had ammunition in its magazine, there was no round in the chamber. Homer was then able to physically subdue appellant until deputies from the Knox County Sheriff's Office arrived.
{¶6} When interviewed by Detective Marc Brill of the Licking County Sheriff's Office, appellant admitted to the killings of his sister and Mr. Walsh and the attempted killing of his brother, expressing his displeasure about the way that his family had treated him and relating that his sister two (2) days prior had apparently turned off the water from the well that supplied his house. When asked why he wanted to kill his sister, brother, and Mr. Walsh, appellant answered: "so they wouldn't aggravate the rest of the world."
{¶7} Appellant was indicted on three counts. Count One charged him with aggravated murder of John Walsh who lived across the street from the residence occupied by appellant and his former wife, Bonnie Marcum. Count Two charged appellant with aggravated murder of his sister, Sonia Marcum, who resided next door to appellant. Both counts alleged "prior calculation and design" as the element raising the charges to aggravated murder. Count Three charged appellant with attempted aggravated murder of Homer Marcum, his brother. Each count contained a firearm specification.
{¶8} A psychological assessment was undertaken to determine appellant's mental health and competency to stand trial. Appellant was found competent to stand trial.
{¶9} The jury convicted appellant as charged in the indictment. The trial court sentenced appellant to twenty-five years to life plus an additional three years for a gun specification on Count 1, twenty-five years to life plus an additional three years for a gun specification on Count 2, and ten years with a an additional three years for a gun on Count three, for an aggregate sentence of sixty-nine years to life.
{¶10} Appellant has timely appealed raising the following assignments of error for our consideration:
{¶11} "I. GIVEN THAT ALL OF THE EVENTS RELATING TO COUNT 3, THE ATTEMPTED AGGRAVATED MURDER CHARGE, OCCURRED IN KNOX COUNTY, THE TRIAL COURT ERRED IN ALLOWING THE CONVICTION TO STAND ON THAT CHARGE IN THE CASE TRIED IN LICKING COUNTY (JUDGMENT ENTRY FILED 11/19/10).
{¶12} "II. THE TRIAL COURT ERRED IN FINDING THAT THE EVIDENCE WAS SUFFICIENT AS TO COUNT 1 TO PERMIT THE DEFENDANT TO BE CONVICTED OF THE OFFENSE OF AGGRAVATED MURDER (JUDGMENT ENTRY FILED 11/19/10).
{¶13} "III. THE VERDICT FINDING THE DEFENDANT GUILTY OF AGGRAVATED MURDER AS TO COUNT 1 WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE (JUDGMENT ENTRY FILED 11/19/10).
{¶14} "IV. THE TRIAL COURT ERRED IN FINDING THAT THE EVIDENCE WAS SUFFICIENT AS TO COUNT 2 TO PERMIT THE DEFENDANT TO BE CONVICTED OF THE OFFENSE OF AGGRAVATED MURDER (JUDGMENT ENTRY FILED 11/19/10).
{¶15} "V. THE VERDICT FINDING THE DEFENDANT GUILTY OF AGGRAVATED MURDER AS TO COUNT 2 WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE (JUDGMENT ENTRY FILED 11/19/10).
{¶16} "VI. THE TRIAL COURT ERRED IN FINDING THAT THE EVIDENCE WAS SUFFICIENT AS TO COUNT 3 WAS SUFFICIENT TO HAVE UPHOLD A VERDICT OF GUILTY OF ATTEMPTED AGGRAVATED MURDER (JUDGMENT ENTRY FILED 11/19/10).
{¶17}
{¶18} In his First Assignment of Error, appellant contends that the evidence failed to establish that Licking County was the proper venue for trial of the attempted aggravated murder charge contained in Count Three of the Indictment. We disagree.
{¶19} Section 10 of Article I of the Ohio Constitution requires that: "* * * [i]n any trial, in any court, the party accused shall be allowed * * * a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed * * *." Crim.R. 18(A) states that, "(t)he venue of a criminal case shall be as provided by law."
{¶20} State v. Draggo (1981), 65 Ohio St.2d 88, 90, 418 N.E.2d 1343, 1345.
{¶21} R.C. 2901.12 contains the statutory foundation for venue. The relevant provisions of this section read, in pertinent part, as follows:
{¶22} "(A) The trial of a criminal case in this state shall be held in a court having jurisdiction of the subject matter, and in the territory of which the offense or any element of the offense was committed.
{¶23} " * * *
{¶24} "(D) When the offense is conspiracy, attempt, or complicity cognizable under division (A) (2) of section 2901.11 of the Revised Code, the offender may be tried in any jurisdiction in which the conspiracy, attempt, complicity, or any of its elements occurred.
{¶25} "(E) When the offense is conspiracy or attempt cognizable under division (A)(3) of section 2901.11 of the Revised Code, the offender may be tried in any jurisdiction in which the offense that was the object of the conspiracy or attempt, or any element of that offense, was intended to or could have taken place. When the offense is complicity cognizable under division (A) (3) of section 2901.11 of the Revised Code, the offender may be tried in any jurisdiction in which the principal offender may be tried.
{¶26} " * * *
{¶27} "(G) When it appears beyond a reasonable doubt that an offense or any element of an offense was committed in any of two or more jurisdictions, but it cannot reasonably be determined in which jurisdiction the offense or element was committed, the offender may be tried in any of those jurisdictions.
{¶28} "(H) When an offender, as part of a course of criminal conduct, commits offenses in different jurisdictions, the offender may be tried for all of those offenses in any jurisdiction in which one of those offenses or any element of one of those offenses occurred* * * "
{¶29} The "'locus delicti [of the charged offense] must be determined from the nature of the crime alleged and the location of the act or acts constituting it." ' United States v. Cabrales (1998), 524 U.S. 1, 6-7, 118 S.Ct. 1772, 141 L.Ed.2d 1 (quoting United States v. Anderson (1946), 328 U.S. 699, 703, 66 S.Ct. 1213, 90 L.Ed. 1529,). In performing this inquiry, a court must initially identify the conduct constituting the offense (the nature of the crime) and then discern the location of the commission of the criminal acts. See United States v. Rodriguez (1999), 526 U.S. 275, 279, 119 S.Ct. 1239, 12421243, 143 L.Ed.2d 388; Cabrales, supra, at 6-7, 524 U.S. 1, 118 S.Ct. 1772, 141 L.Ed.2d 1; Travis v. United States (1961), 364 U.S. 631, 635-637, 81 S.Ct. 358, 5 L.Ed.2d 340; United States v. Cores (1958), 356 U.S. 405, 408-409, 78 S.Ct. 875, 2 L.Ed.2d 873; Anderson, supra, at 703-706, 328 U.S. 699, 66 S.Ct. 1213, 90 L.Ed. 1529. "Dissection of the relevant provisions, namely R.C. 2901.12(A) and (H) and, more specifically, (G), explicitly denotes that venue is proper if '* * * (the) offense or any element' was committed in the court's jurisdiction." State v. Draggo (1981), 65 Ohio St.2d 88, 90-91, 418 N.E.2d 1343, 1345. See also, State v. Engle, ...
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