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State v. Marioth

Court of Appeals of Ohio, Tenth District

July 11, 2013

State of Ohio, Plaintiff-Appellee,
v.
Terry A. Marioth, Defendant-Appellant.

APPEAL from the Franklin County Court of Common Pleas, C.P.C. No. 10CR-09-5464

Ron O'Brien, Prosecuting Attorney, and Laura R. Swisher, for appellee.

Yeura R. Venters, Public Defender, and David L. Strait, for appellant.

DECISION

CONNOR, J.

{¶ 1} Defendant-appellant, Terry A. Marioth ("defendant"), appeals from the judgment of the Franklin County Court of Common Pleas finding him guilty of one count of burglary, in violation of R.C. 2911.12, and one count of tampering with evidence, in violation of R.C. 2921.12.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} On August 18, 2010, Shirley Shrader was rocking her grandchild when she looked out back and saw a boy running out the back door of her neighbor's home. (Tr. 34.) Shrader did not know the boy and yelled at him, "[h]ey boy, what are you doing? (Tr. 35.) The boy first attempted to go back into the house and then ran the other direction around the fence. (Tr. 36.) The boy did not have any property with him. (Tr. 35.) Shrader telephoned the Obetz Police Department and gave them a description of the boy. At trial, Shrader testified as follows:

[PROSECUTOR:] Tell the ladies and gentlemen of the jury what the person you saw looked like.
[SHRADER:] He was a neat-looking boy. He had sandy-looking hair and a T-shirt on and he didn't look like any bad bum or nothing.
[PROSECUTOR:] Do you remember now what color T-shirt you told the police he had on?
[SHRADER:] Well, I think it was red because I saw the other boy and he had a white one, and I'm pretty sure it was red.
[PROSECUTOR:] But you were sure when you saw the other person that they were wearing a different color shirt?
[SHRADER:] Yes.
[PROSECUTOR:] And you remember that ...

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