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State v. Marcum

Court of Appeals of Ohio, Second District, Montgomery

September 8, 2017

STATE OF OHIO Plaintiff-Appellee
v.
LISA MARCUM Defendant-Appellant

         (Criminal Appeal from Common Pleas Court) T.C. NO. 14-CR-164A/B

          ANDREW T. FRENCH, Attorney for Plaintiff-Appellee

          THOMAS M. KOLLIN, Attorneys for Defendant-Appellant

          OPINION

          DONOVAN, J.

         {¶ 1} This matter is before the Court on the Notice of Appeal of Lisa R. Marcum, filed March 28, 2016. Marcum appeals from her March 28, 2016 Judgment Entry of Conviction, following a bench trial, on one count of insurance fraud ($7, 500.00 or more and less than $150, 000.00), in violation of R.C. 2913.47(B)(1), a felony of the fourth degree; one count of theft from an elderly person (beyond the scope of consent) ($7, 500.00 or more, less than $37, 500.00) in violation of R.C. 2913.02(A)(2), a felony of the third degree; one count of tampering with records, in violation of R.C. 2913.42(A)(2), a felony of the third degree; one count of theft (checks), in violation of R.C. 2913.02(A)(1), a felony of the fifth degree; and one count of bribery, in violation of R.C. 2921.02(C), a felony of the third degree. Marcum was sentenced to 18 months for insurance fraud, 36 months for theft from an elderly person, 36 months for tampering with evidence, 12 months for theft, and 36 months for bribery, all terms to be served concurrently. The court ordered restitution in favor of Scott Schaurer in the amount of $28, 220.67. We hereby affirm the judgment of the trial court.

         {¶ 2} Marcum was indicted on April 16, 2014 on all but the bribery offense. After she stood mute, the court entered a plea of not guilty on her behalf on May 2, 2014. On February 5, 2015, the State filed a motion to amend the indictment, and on August 18, 2015, a "Reindictment" was issued adding the bribery charge. On August 25, 2015, a plea of not guilty was entered by the court on the bribery charge.

         {¶ 3} The bench trial began on November 16, 2015. Kathleen Ely testified that she is the niece of Willa and William Stamback, the victims herein. She stated that the Stambacks had known each other since first grade, and that they lived in Phillipsburg their entire lives. Ely stated that Willa passed away on Memorial Day Weekend of 2013, and that William died around the following Fourth of July. She stated that they were both in their eighties when they died.

         {¶ 4} Ely testified that she was very close to Willa, who was Ely's mother's sister. She stated that the Stambacks gave her their power of attorney ("p.o.a.") for finances in 2004. Ely stated that at the time William had Parkinson's disease, and that Willa was born with cerebral palsy that affected her hands and ability to walk, but that they were still living independently. Ely stated that by 2010 the Stambacks began to need extra help, and that she eventually went to their home every Saturday, and also ran errands for them and took them to their appointments. She stated that both of the Stambacks continued to drive until the end of 2011 or the beginning of 2012, and that they owned a Chevy Cobalt.

         {¶ 5} Ely stated that as William's health deteriorated, she arranged for Hospice of Miami Valley care to come to the home. She testified that Willa began falling down and hospice staff advised Ely that they did not want to be responsible for Willa. Ely stated that she contracted with Right at Home on November 7, 2012 to come every day for six to eight hours a day, having been referred to them by Michael Manes of hospice. She identified State's Exhibit 23 as the contract she signed with Right at Home. She stated that she paid the initial deposit of $1, 365.00 from the Stambacks' checking account, with an account number ending in 4480. Ely identified State's Exhibit 5 as the check she signed on the account, and the check bears the Stambacks' name as well as "Kathleen Ely POA." Ely stated that she also began paying the Stambacks' bills at their home from the same account, such as medical bills, Vectren and DP&L, since William was having trouble writing. Ely stated that she also withdrew cash from the account for the Stambacks, and that Right at Home "had to have cash because they were taking [William] to the hospital every day to visit [Willa]. There had to be cash there for groceries and food." She stated that Willa wanted her to cash her monthly Social Security checks for her in an amount around $300.00. Ely identified State's Exhibit 50 as her signature card as p.o.a. for the Stambacks' account at Chase Bank ending in 4480, dated June 2, 2012. Ely stated that at the end of December 2012, the Stambacks' account balance was $69, 000.00.

         {¶ 6} Ely stated that Marcum was employed by Right at Home and that she initially met her when Marcum brought William to the hospital to visit Willa. She stated that Marcum was "very friendly and attentive" to William. Ely stated that in January 2013, she was contacted by a Chase Bank employee, and as a result, she left work, went to the bank to get money for William, and then went to William's home. She stated that when she arrived William was in bed and "very agitated and mad" and "accusing me of all kinds of things." Ely stated that William told her that she was no longer his p.o.a. Ely stated that Marcum was "hysterical, " and that Marcum indicated that she and William were going to see William's attorney. Ely stated that she left the house immediately. She stated that she did not write any more checks on the Stambacks' account or remove any additional cash after that day. Ely identified State's Exhibits 7 and 8 as two Notices of Revocation of Durable Power of Attorney that she received, one signed by William on January 16, 2013, and one signed by Willa on February 20, 2013.. Ely stated that she was aware that the Stambacks had wills, but she did not know who their beneficiaries were.

         {¶ 7} On cross-examination, Ely stated that she wrote checks for the Stambacks from 2010 to 2013. She identified as Defendant's Exhibit S a January 16, 2013 check, written by her on the Stambacks' account ending in 4480, for cash in the amount of $300.00, and she testified that January 16, 2013 was the day she was contacted by the Chase employee. Ely stated that the Chase employee told her that William, a woman, and another man had come into the bank for money, and that she then went to the bank to get money for William, which she took to his home. She stated that when she left the Stambacks' residence that day, she and William were on bad terms. Ely stated that she phoned the Stambacks' attorney, James Treherne, after she left that day about the argument. She noted that Treherne notarized State's Exhibits 7 and 8, the p.o.a. revocations.

         {¶ 8} Ely stated that William was very unhappy when Willa was in the hospital, and that she did not try to arrange for Willa to come home because Good Samaritan Hospital personnel indicated that they would not release her. She stated that she understood that Willa was subsequently transferred to and released by Kindred Hospital after Ely no longer had the Stambacks' p.o.a. On redirect examination, Ely stated that all of the checks she wrote on the Stambacks' account were for the Stambacks' benefit.

         {¶ 9} Michael Manes testified that he is the owner and chief executive officer of Right at Home. He stated that his employees and independent contractors are "not allowed to handle any type of cash whatsoever of the customers." Manes stated that he was contacted by Ely in November of 2012, and that he was present at the initial assessment of the Stambacks at their home. Manes testified that the Stambacks were very passionate about remaining in their home. He stated that Marcum began working part-time at Right at Home at the end of 2009, and that she became a subcontractor with the company in 2011. He testified that she was a State Tested Nurses' Aide. Manes stated that Marcum was one of the caregivers he assigned to care for the Stambacks. He stated that he "originally called her and asked her if she was interested because it was nearby and she said yes." Manes stated that Marcum's first day of work was November 28, 2012. He identified as State's Exhibit 24 a printout from Right at Home's scheduling software reflecting the Right at Home caregivers' schedules at the Stambacks' home. The schedule reflects that March 5, 2013 was Marcum's last day as a Right at Home caregiver.

         {¶ 10} Manes stated that he became concerned when Ely was removed as p.o.a. because the Stambacks "were very ill." He stated that he introduced William to a financial planner for help with his finances, but that William declined the services. Manes stated that in early March of 2013, Marcum "came up to my office and presented me with notarized power of attorney paperwork for both the Stambacks for medical and financial." He stated that he "told her that was highly irregular and she agreed and stated that * * * they don't have anybody else, nobody else is willing to step up. And honestly, I cautioned her. * * * We parted ways after that." Manes identified as State's Exhibits 9 and 10 the papers designating Marcum as William's and Willa's p.o.a. Manes stated that he believed Marcum also informed him that the Stambacks "were going to put her in their will." Manes stated that such a situation had never happened with any other caregiver, and that to "me it was a complete conflict of interest, " since "you can't directly care for somebody, * * * and expect to be compensated but then have complete and total control over their finances." Manes stated that Marcum never worked for him as a caregiver after March 2013, and that Right at Home ceased providing services to the Stambacks "quickly on my direction."

         {¶ 11} James Treherne testified that he is a probate attorney, and that the Stambacks were his clients. He stated that he drafted three sets of wills for them. Treherne identified State's Exhibit 15 as a January 1985 will and an April 1986 codicil he drafted for Willa, and State's Exhibit 16 as a January 1985 will and a November 1986 codicil he drafted for William. Treherne testified that pursuant to the wills, upon the death of either Stamback, their estate would pass to the surviving spouse. In the event of the surviving spouse's death, the estate would go to Willa's nieces and nephews and to William's sister. Treherne stated that he drafted the joint p.o.a. in favor of Ely for the Stambacks in 2004, which he identified as State's Exhibit 34.

         {¶ 12} Treherne testified that the 1985 wills were revoked around January or February of 2013, after Marcum brought William to his office in early 2013. Treherne testified that "William and Willa were very very close, probably two of the closest husband and wives I've ever known. And the important thing to him was that he remain with his wife. She was in the hospital at the time on some sort of a machine. And they wanted to be together at home." Treherne testified that he discussed changing the wills and the p.o.a. with William in Marcum's presence, as well as naming Marcum the Stambacks' beneficiary. He stated that he drafted revocations of Ely's p.o.a. for William on January 16, 2013, and for Willa on February 20, 2013, which he identified as State's Exhibits 7 and 8. He stated that the dates on the revocations were different because he had to go to the hospital to obtain Willa's signature. Treherne stated that Marcum was then designated the p.o.a. for the Stambacks, and he identified State's Exhibit 9 as William's p.o.a. designation in favor of Marcum, and State's Exhibit 10 as Willa's p.o.a. designation in favor of Marcum. Treherne testified that he drafted new wills for the Stambacks in February 2013, which he identified as State's Exhibit 17 for William and State's Exhibit 18 for Willa. In each will Marcum is named as the contingent beneficiary following the death of the surviving spouse.

         {¶ 13} Treherne stated that at the end April of 2013, Scott Schaurer, William's nephew, was appointed p.o.a. for the Stambacks. He stated that he received a phone call from William, who was admitted to the hospital at the time, and that William told him, "my caretaker is in jail." Treherne stated that he went to see William at Kindred Hospital, and that Willa was also admitted there. He stated that Schaurer was present. Treherne testified that he felt that William was competent at the time, and that William wanted to change his and Willa's p.o.a. designations and revoke their wills. Treherne identified State's Exhibit 11 as the revocation of William's p.o.a. in favor of Marcum, and State's Exhibit 12 as the revocation of Willa's p.o.a. in favor of Marcum that he drafted for the Stambacks, both dated April 22, 2013. Treherne stated that William was right-handed but signed the revocation with his left hand because his right hand was in a cast, and that Treherne wrote "signed left-handed" on the document. He stated that Willa was "back on the machine that I first saw her on, " and that he "had her sign an X' and put down that it was her mark and notarized it." Treherne stated that he "could still communicate with" Willa, and he understood from her that she wanted to revoke Marcum's p.o.a.

         {¶ 14} Treherne identified State's Exhibit 19 as the new will that he drafted for William, and State's Exhibit 20 as the new will he drafted for Willa, both dated April 22, 2013. He testified that each will leaves the Stambacks' estate to the surviving spouse of the couple, with the residuary estate going to Willa's nieces and nephews after the surviving spouse's death. Treherne stated that the Stambacks signed the wills as they did the p.o.a. revocations in his presence. Treherne also identified State's Exhibit 13 as the document he drafted designating Schaurer as William's p.o.a. and Exhibit 14 as the document he drafted designating Schaurer as Willa's p.o.a., both of which Willa signed with an "X" and William signed left-handed on April 22, 2013. He stated that he mailed the revocations of Marcum's powers of attorney to the Stambacks' home since he "assumed that she was still there, " and that he gave Schaurer "a copy to take to the bank." Treherne stated that he did not draft any other wills or powers of attorney for the Stambacks, and that the wills of April 22, 2013 accurately reflect their wishes at the time.

         {¶ 15} Treherne was shown State's Exhibit 21, a notarized document entitled "Addendum to My Will, " dated March 3, 2013, bearing Willa's signature, and State's Exhibit 22, a notarized document entitled "Addendum to My Will, " dated March 3, 2013, bearing William's signature, and asked if he drafted the documents. Treherne stated that he did not draft the documents, and that "we don't have addendums to wills, " and "we don't notarize wills in Ohio." He stated that the addendums "don't reflect what [the Stambacks] told me to do in their wills."

         {¶ 16} On cross examination, Treherne stated that he did not "handle either estate" of the Stambacks, and that "Gary Weaks was the one that was doing it." Treherne stated that he is aware that the wills he prepared in April of 2013 have never been presented to probate. When asked if "the only will that's been approved for Probate * * * is the one that you did in February of 2013, " Treherne responded, "I think that's true." He stated that he did not know that on April 19, 20, 21 and 22, 2013 that William was being examined at the hospital for hallucinations and confusion. Treherne stated, "[w]hen I went in to see him he recognized me. We talked. We had some common interests that we usually talked about when we were together and then we * * * went on to signing wills and the other documents." Treherne stated that he was not aware that William was declared legally incompetent after April 22, 2013, and he stated that "even people who are declared incompetent have period[s] of lucidity." Treherne stated that he did not observe Marcum exercising undue influence over William in his office, and that "what [Marcum] proposed to do was exactly what [William] wanted, " namely to bring Willa home from the hospital. He stated that Marcum "took the necessary training to do that, to run that machine in their house, " and that Willa was released from the hospital as a result.

         {¶ 17} On redirect examination, Treherne stated that "it didn't seem correct" that the final April 2013 wills were never filed and that the February 2013 wills were filed. In response to questions from the court, Treherne stated that he was contacted by telephone by William about the April wills about a week before they were executed in the hospital.

         {¶ 18} Crystal Alexander testified that she is the branch manager of Chase Bank in Phillipsburg. She stated that she knew William, and that he came to the bank frequently until he was physically unable to do so. She stated that "for the last several years he had * * * a niece as his power of attorney and she would do transactions for him." Alexander stated that the Stambacks' account ending in 4480 was opened on December 9, 1985, and that she is familiar with Ely as their p.o.a. Alexander stated that Ely typically "would come in and cash a check. William liked to have cash on hand at home. So she would bring a check in, written for cash, and cash the check and get certain denominations that they wanted." She stated that Ely would "cash a check between 3- and 500 usually once a month."

         {¶ 19} Alexander identified State's Exhibit 51 as a signature card reflecting Marcum's p.o.a. on the Stambacks' checking account ending in 4480, dated March 15, 2013. She stated that once Marcum obtained the p.o.a., she had access to and control over the account, and that she could make withdrawals and conduct transactions on line. Alexander identified the following checks bearing Marcum's signature drawn on the account ending in 4480: State's Exhibit 52, a check written for cash, in the amount of $1, 000.00, that posted to the account on April 4, 2013; State's Exhibit 53, a check made out to Gary Williams in the amount of $550.00, with "repairs to" written on the memo line, followed by an illegible word, that posted to the account on April 15, 2013; and State's Exhibit 54, a check written for cash, in the amount of $1, 000.00, with "Willa wants cash" written on the memo line, that posted to the account on April 15, 2013 Alexander identified State's Exhibit 55 as a check made out to Marcum, in the amount of $1, 200.00, which posted to the account on April 30, 2013, reflecting William's signature. On the memo line of the check, "6 day's caregivers pay" is written. Alexander stated that in comparison to the amounts of cash withdrawals executed by Ely, those executed by Marcum were "[w]ay out of the ordinary" and "[m]uch higher."

         {¶ 20} Alexander next identified the following checks drawn on the Stambacks' account ending in 4480: State's Exhibit 25, a check reflecting William's and Marcum's signatures, made out to Melanie Vance, dated March 17, 2013, in the amount of $500.00, with "caregiver 60 hours 3/12, 3/13, 3/17" written on the memo line, that posted to the account on March 18, 2013; State's Exhibit 26, a check reflecting William's and Marcum's signatures, made out to Melanie Vance, dated March 21, 2013, in the amount of $213.00, that posted to the account on March 21, 2013; State's Exhibit 27, a check reflecting William's and Marcum's signatures, made out to Katherine Wiggins, dated March 29, 2013, in the amount of $300.00, that posted to the account on April 2, 2013; State's Exhibit 28, a check reflecting Marcum's signature, made out to Katherine Wiggins, in the amount of $1, 400.00, that posted to the account on April 8, 2013; State's Exhibit 29, a check reflecting Marcum's signature, made out to Katherine Wiggins, in the amount of $270.00, that is dated April 15, 2013, and that was returned unpaid; State's Exhibit 40, a check reflecting William's and Marcum's signatures, made out to Brandon Mitchell, in the amount of $675.00, that posted to the account on March 21, 2013, with "3/11 - 3/16 fixing the car and garage door etc." on the memo line; State's Exhibit 41, a check reflecting William's and Marcum's signatures, made out to Brandon Mitchell, in the amount of $63.71, that posted to the account on March 26, 2013, with "groceries on 3/25" on the memo line; State's Exhibit 42, a check reflecting Marcum's signature, made out to Brandon Mitchell, in the amount of $880.00, that posted to the account on April 8, 2013, with "garage cleanup roof repair" written on the memo line; State's Exhibit 43, a check reflecting Marcum's signature, made out to Brandon Mitchell, in the amount of $1, 200.00, that posted to the account on April 15, 2013, with "caregiver 6/24 hr. days" written on the memo line; State's Exhibit 35, a check reflecting William's and Marcum's signatures, made out to Jill McConnell, in the amount of $600.00, dated April 17, 2013, with "caregiver 4 days" on the memo line, that did not post to the account; State's Exhibit 36, a check reflecting William's and Marcum's signatures, made out to Jill McConnell, also dated April 17, 2013, in the amount of $1, 200.00 dollars, with "caregiver 6 days" on the memo line, that posted to the account on April 25, 2013; and State's Exhibit 38, a check reflecting William's signature, made out to Gregory Graley, in the amount of $636.42, with "car repair" written on the memo line, that posted to the account on April 26, 2013.

         {¶ 21} Alexander stated that Chase Bank also processes electronic checks against customer accounts from, for example, Walmart. She stated that the following electronic checks, as reflected on State's Exhibit 59, a statement for the account ending in 4480, and State's Exhibit 57, a transaction history for the account, were paid from the Stambacks' account ending in 4480: a check made out to "Cato" in the amount of $206.33 that was paid on April 16, 2013; a check made out to "Cato" in the amount of $300.38 that was paid on April 10, 2013; a check made out to Wal-Mart in the amount of $286.36 that was paid on April 16, 2013; and a check made out to Wal-Mart in the amount of $104.57 that posted to the account on April 17, 2013.

         {¶ 22} Alexander identified State's Exhibit 58 as a statement from the Stambacks' checking account ending in 4480 from March 23 - April 22, 2013, which lists Marcum as the p.o.a. and which reflects that on March 26, 2013, $250.00 was transferred into the checking account via online banking; on March 28, 2013, $380.00 was transferred into the account via online banking; on March 29, 2013, $1, 600.00 was transferred into the account via online banking; on April 8, 2013, $1, 200.00 was transferred into the account via online banking; on April 11, 2013, $2, 500.0 was transferred into the account via online banking; and on April 15, 2013, $2, 500.00 was transferred into the account. All of the transfers were from a savings account ending in 3217.

         {¶ 23} Alexander identified State's Exhibit 96 as a transaction history for a savings account in William's name ending in 5272 from January 25, 2012 to February 4, 2013. She stated that in January, 2012, the balance was $60, 929.25, and in October, 2012 it was $61, 023.14. She identified State's Exhibit 97 as a transaction history for the savings account ending in 5272 from February 5, 2013 to March 5, 2013, and she testified that the ending balance is zero in the account.

         {¶ 24} Alexander identified State's Exhibit 56 as the signature card reflecting Scott Schaurer as the Stambacks' p.o.a., dated April 26, 2013. Alexander stated that a Chase customer may order checks personally from the bank or from Deluxe Corporation online on the bank's website. She identified State's Exhibit 78 as a stipulated exhibit reflecting January 30, 2015 correspondence from Deluxe Corporation to the prosecutor indicating that an online order for checks on the Stambacks' checking account ending in 4480 was placed on April 22, 2013, in William's, Willa's, and Marcum's names, to be sent to Marcum at 410 Snyder Road in Dayton, and that Marcum requested overnight shipping. Alexander stated that Scott Schaurer contacted her after the date of the order "because checks were written off the account that he did not write and they * * * appeared to be signed by Lisa Marcum. He wanted to know how she got the checks and when we checked into it, we found that there were checks ordered on line."

         {¶ 25} Alexander stated that Schaurer subsequently closed the checking account ending in 4480, and she identified State's 57 as a transaction history reflecting a transfer on April 26, 2013, of $3, 503.50, from the account ending in 4480 into a new account ending in 3639. Alexander identified State's Exhibit 60 as the April 26, 2013 signature card for William and Willa on the account ending in 3639, signed by Schaurer as p.o.a. Alexander identified State's Exhibit 64 as a transaction history from May 1, 2013 to May 21, 2013 for the account ending in 3639, which she stated reflects that a check order was charged to the account on May 7, 2013 in two amounts, namely $18.95, and $59.40. The prosecutor presented State's Exhibit 79 to Alexander, a stipulated exhibit reflecting January 30, 2015 correspondence from Deluxe Corporation to the prosecutor which provides that on May 2, 2013, checks were ordered online for the checking account ending in 3639, in William's name, to be sent to William at 420 N. Snyder Road in Dayton. Alexander testified that State's Exhibit 64, the transaction history for the account ending in 3639 reflects debits to the account in the amounts of $18.95 and $59.40 for the checks, and she stated that $18.95 is a typical price for checks, but that "$59.40 is not typical." She stated that the "number is so high when they usually request next day shipping." Alexander stated that Marcum was never a signatory on the account ending in 3639.

         {¶ 26} Alexander identified State's Exhibit 61 as a check dated May 3, 2013, on the account ending in 3639, made out to Melissa Gillette in the amount of $1, 580.00, with "caregiver 2 wks 14 days" written on the memo line, reflecting William's signature on the check. Alexander identified State's Exhibit 64 as a transaction history for the account ending in 3639, and she stated that it reflects that the check was presented on May 6, 2013. Alexander stated that Exhibit 64 contains a "question mark" beside State's Exhibit 61 "which usually means that it's being reviewed to be returned."

         {¶ 27} Alexander stated that after the May 2, 2013 check order, Schaurer closed the account ending in 3639 and opened another account for William and Willa, ending in 8128, on May 4, 2013, as their p.o.a. She stated that Schaurer transferred the balance from the account ending in 3639 into the account ending in 8128, and she identified State's Exhibit 65 as Schaurer's May 4, 2013 signature card as p.o.a. on the account ending in 8128, as well as State's Exhibit 66, a transaction history reflecting a transfer on May 6, 2013, from the account ending in 3639 to the account ending in 8128, in the amount of $15, 850.60.

         {¶ 28} Alexander identified State's Exhibit 72 as a signature card for an estate account ending in 0731 in the name of "Estate of William W. Stamback Lisa R. Marcum Exec, " signed by Marcum on August 10, 2013 at the Wright Dunbar branch of Chase Bank. She identified State's Exhibit 71 as a checking summary for the estate account that reflects a deposit into the account on August 12, 2013 in the amount of $3, 409.00. Alexander testified that State's Exhibit 67, a transaction summary for the account ending in 8128, reflects that there was a withdrawal from the account ending in 8128 on August 10, 2013 for $4, 909.63. Alexander identified State's Exhibit 68 as a withdrawal ticket in that amount signed by Marcum. Alexander identified State's Exhibit 69 as a deposit ticket reflecting that $3, 409.63 was deposited into the account ending in 0731.

         {¶ 29} Alexander identified State's Exhibits 73-75 as three "counter checks" made out to cash on the estate account ending in 0731 and signed by Marcum as executor. She stated that Exhibit 73 is dated August 12, 2013, in the amount of $1, 100.00; Exhibit 74 is dated August 16, 2013, in the amount of $1, 300.00; and Exhibit 75 is dated August 22, 2013, in the amount of $860.00. Alexander identified State's Exhibit 76 as a check made out to Clayton Pet Hotel and Spa, on the estate account, dated September 27, 2013, signed by Marcum, in the amount of $17.25, as well State's Exhibit 77 as a check on the estate account made out to Dragon City, dated December 28, 2013, signed by Marcum, in the amount of $50.00.

         {¶ 30} On cross-examination, Alexander testified that pursuant to bank policy, the bank's legal department determines the validity of a p.o.a. presented at the bank. She acknowledged that State's Exhibit 13, the p.o.a. in favor of Schaurer from William contains two different dates, and that William's signature thereon is illegible. She stated that the signature on the p.o.a. in favor of Schaurer from Willa in Exhibit 14 "looks like a little shaky X to me, " and that there is a discrepancy in the dates thereon. Alexander testified that the legal department did not question the powers of attorney in favor of Schaurer. She stated that Schaurer "came into the bank and told me that Mr. Stamback had revoked the power of attorney for Lisa Marcum." She stated that Schaurer signed the signature card on the Stambacks' account ending in 4480 on April 26, 2013. Alexander stated that the bank did not notify Marcum of the change, but that there are "notations made on the account so that when you pull up the account on the screen you see that there's a notation by the legal department that that power of attorney had been revoked." Alexander stated that she does not know if the estate account ending in 0731 is still open.

         {¶ 31} Kathryn Harkenrider testified that she is a registered nurse at Hospice of Miami Valley, and that she previously worked at Heartland Hospice. She stated that while at Heartland, she cared for the Stambacks. She stated that Marcum "called in and requested the hospice referral for the Stambacks, " and that she performed William's and Willa's initial assessments around March or April of 2013 at the Stambacks' residence. She stated that Willa was in end-stage respiratory failure, "vent dependent" and on a feeding tube, and that William "had an extensive cardiac background, " had a pacemaker, and required oxygen at rest.

         {¶ 32} Harkenrider stated that upon arrival at the Stambacks' residence, she introduced herself "as the admitting RN and [Marcum] introduced herself as the daughter of the Stambacks." She stated that Marcum advised her that she held the Stambacks' powers of attorney, but that "she did not provide the power of attorney paperwork that I needed in order to admit them. So, Mr. Stamback is the one that signed the consents." She stated that William was "alert and oriented" at the time." Harkenrider stated that Willa "appeared to be alert and oriented because when I would ask her questions, like, about her pain or about her needs, she was able to mouth words. * * * And she could also squeeze your hand yes or squeeze your hand no."

         {¶ 33} When asked about her observations of Marcum at the time, Harkenrider stated that "we like for the family to be present" at the assessment, but that Marcum, in her pajamas, "was just popping in and out, but most of the time she was in the back bedroom." She testified that Marcum made a TV dinner for William, but that she "didn't see any medical care given." Harkenrider stated that something "didn't feel right about the situation about her being in her pajamas going back and forth, saying that she was their daughter but we weren't really sure." She stated that she relayed her concerns to her administrator on the night of the assessment.

         {¶ 34} Harkenrider stated that she provided care for the Stambacks in their home at least ten times. She stated that hospice personnel often went "between eight and midnight to do a night tuck" based upon concerns about Willa's care. Harkenrider testified that "we would go and Willa's feeding tube would be turned off. And that's not good because she's on a continuous tube feed." She testified that Marcum's daughter, Christina Wiggins, was present in the home and that she had to educate her and Marcum about the feeding tube. Harkenrider testified that on more than one occasion she was called to the residence because the "inner cannula" of Willa's tracheotomy "was completely out. And this is something that has to be physically turned to take out the cannula." She stated that Willa would have been unable to remove it herself, and "it was very odd that it was out." She testified that "Rencare, " the "trach company, " arranged to teach Marcum and her daughter how to care for Willa's tracheotomy, "but when they came out on several occasions, they indicated that Lisa never came to the teachings on how to give proper trach care." Harkenrider testified that Christina Wiggins' boyfriend, Brandon Mitchell, was also "in the back bedrooms [and] * * * he was just in and out." She stated that no work was being performed at the home such as roof or car repair by Mitchell when she was in the home.

         {¶ 35} Harkenrider testified that after being contacted by Katherine Wiggins regarding the Stambacks, she called the Phillipsburg Police Department. She stated that she was then referred to the Montgomery County Sheriff and filed a police report based upon what Katherine Wiggins reported. Harkenrider stated that "we went from routine level of care to continuous care which is where they have [a] nurse at the bedside 24/7. And we did that because we wanted to make sure that [the Stambacks] were safe." She stated that this change of care occurred in April of 2013.

         {¶ 36} On cross-examination, Harkenrider testified that the Stambacks were adamant that they wanted to remain at home. She stated that there "was a call that came into the Phillipsburg Police Department, " and "[t]hey sent an officer out to check on them. When they got to house, the Stambacks were there alone." At that time, according to Harkenrider, Heartland removed Willa from the home and placed her in the hospital. She stated that the decision was made to remove Willa based upon the issues with the cannula and the feeding tube, and the fact that the Stambacks were left alone with no one to care for them. Harkenrider testified that William wanted to have Willa brought back home.

         {¶ 37} Melanie Ryan testified that her maiden name is Vance and she is a nonmedical in-home support provider for the elderly at Visiting Angels. Ryan stated that she was contacted by Marcum after Ryan placed her resume on Craigslist. Ryan stated that she met with Marcum in late fall of 2012 and agreed to provide care for the Stambacks. She stated that when she was in the residence, Christina Wiggins "was there the most. [Marcum] came and went. Hospice also came and went." Ryan stated that she worked three 24 hour shifts a week and was paid $500.00, or $166.66 per 24 hour shift, which was the "going rate." Ryan stated that she was paid by Marcum by check.

         {¶ 38} Ryan testified that she never observed Brandon perform roof or car repair at the residence or provide care to the Stambacks. Ryan stated that she was aware that the Stambacks owned a car because William "inquired about its whereabouts." She testified that she observed Christina Wiggins and Marcum using the vehicle. She identified Exhibits 25 and 26 as checks that she received in March of 2013, signed by William and Marcum. When asked why she worked for such a short time for the Stambacks, she stated that "things * * * weren't really going the way that they normally go on a normal job. There was a lot of people kind of there." When asked if William ever mistreated Willa, Ryan responded, "[e]very night he told her he loved her and that she was his girl. And he slept in a chair just to be near her."

         {¶ 39} Scott Schaurer testified that he is a maintenance consultant currently located in Houston Texas. He stated that he used to live in Arcanum, and that Willa was his father's sister. He stated that growing up, Willa and William "were like a second set of grandparents which also lived in town, " and that he saw them often.

         {¶ 40} Schaurer testified that Ely was the Stambacks' p.o.a. in 2012, and that "she would keep me up to date on things if I wasn't there because I did travel a lot for work." Schaurer testified that he was unaware that he was a beneficiary of the Stambacks' 1985 wills. Schaurer testified that he was aware that Right at Home began providing healthcare for the Stambacks, and that he became aware of Marcum. Schaurer testified that he would visit the Stambacks for 30 to 40 minutes at a time when he stopped by on weekends, and that he observed Right at Home workers there. He stated that he learned that Ely had been withdrawn as p.o.a.

         {¶ 41} Schaurer stated that in April of 2013, he stopped by to visit the Stambacks, and Willa had been removed and the police were present. He stated that William was lucid and had just come home from the hospital and wanted to know where Willa was. After speaking to William, Schaurer learned that Marcum was in jail and "wouldn't be able to return to the house right away." He stated that a representative from Adult Protective Services was also present. Schaurer stated that there was a disconnect notice from DP&L and other unpaid bills in the home. Schaurer stated that William asked him to be his p.o.a. to take care of paying their bills, and that he phoned Treherne. Schaurer identified State's Exhibits 13 and 14, William's and Willa's grants of p.o.a. in his favor, and he indicated that he received them within a day or two of April 22, 2013.

         {¶ 42} Schaurer stated that he took the powers of attorney to Chase Bank in Phillipsburg and became a signatory on the Stambacks' account ending in 4480 on April 26, 2013. He stated that he did not confer authority on Marcum to continue signing on the account. When shown State's Exhibit 78, Schaurer stated that he did not authorize checks bearing William's, Willa's, and Marcum's name to be shipped to 410 Snyder Road. Schaurer testified that he does on line banking, and that he did not change the log in information or password for the account ending in 4480. He stated that when he learned from the bank that the account was frozen due to "questionable transactions, " he transferred the money therein to the account ending in 3639, and he stated that he recognized State's Exhibit 60 as his signature card thereon, dated April 26, 2013. He stated that Marcum was not an authorized signatory on the account ending in 3639. When shown State's Exhibit 79, Schaurer stated that he did not authorize Marcum to order checks in William's name to be shipped to 420 Snyder Road.

         {¶ 43} When shown Exhibit 61, the May 3, 2013 cancelled check from the 3639 account made out to Melissa Gillette, Schaurer stated that he does not know Gillette and did not authorize her to have money from the account. Schaurer testified that William was in a nursing home at the time the check was written. Schaurer testified that he then opened another account, and he testified that he recognized State's Exhibit 65 as his May 4, 3013 signature card for the account ending in 8128.

         {¶ 44} Schaurer testified that after William died, he contacted Gary Weaks, an attorney, to represent the Stambacks' estate. He testified that after he obtained the original wills from Treherne, Weaks took them to the court to file them, and learned that another will had already been filed. Schaurer stated that he had healthcare bills in the amount of $33, 000 for the Stambacks, as well as other bills, and that he learned that the debts of the estate equaled or exceeded the estate's assets.

         {¶ 45} Schaurer testified that he learned from Ely that William and Willa had a life insurance policy with Ohio National Financial Services. He stated that after "lengthy investigation, " beneficiaries thereto were eventually paid, and that he was one of them. Schaurer stated that he was familiar with William's and Willa's signatures, and when shown Exhibits 21 and 22, the addendums to William's and Willa's wills, Schaurer denied that William and Willa signed the addendums.

         {¶ 46} When shown State's Exhibits 30 and 31, represented to be copies of both sides of a State of Ohio Certificate of Title for a 2008 Chevy Cobalt in Willa's name, and asked if he recognized the signature on the back thereof next to the printed name of Willa Stamback, Schaurer stated, "that does not look like my aunt's signature." When shown State's Exhibit 89, represented to be an Odometer Disclosure Statement for the car bearing Willa's printed name and a signature, Schaurer stated, "[w]ithout question, that is not my aunt's signature." Schaurer stated that State's Exhibits 19 and 20, the wills drafted by Treherne on April 22, 2013, name him and other family members as beneficiaries. Finally, when shown Exhibit 55, a check made out to Marcum in the amount of $1, 200.00 dated April 18, 2013, and asked if the signature thereon is William's, Schaurer responded, "[i]t doesn't look to be."

         {¶ 47} On cross examination, Schaurer testified that William was admitted to Good Samaritan Hospital on April 19, 2013. He testified that hospital personnel advised him that "in order to keep [William] in the hospital and prevent him from signing himself out of the hospital, the only way they could do that was to declare him incompetent." Schaurer testified that William went from the hospital to a nursing home, and that Willa was with him there. He testified that State's Exhibit 13, the p.o.a. document executed by William on April 22, 2013, bears William's signature. Schaurer stated that he is aware that the ...


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