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State of Ohio v. Gary D. Markins Jr

February 8, 2013

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
GARY D. MARKINS JR., 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.

The opinion of the court was delivered by: Harsha, J.

Cite as State v. Markins,

DECISION AND JUDGMENT ENTRY

{¶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.

{¶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 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 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 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 DEFENDANTAPPELLANT'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

{¶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 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).

{¶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).

{¶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.*fn1 "It is well- settled that issues not raised in an original motion to suppress cannot be raised for the 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

{ΒΆ27} 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 ...


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