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State v. Marcum

Court of Appeals of Ohio, Fifth District, Fairfield

March 21, 2018

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

          Appeal from the Court of Common Pleas, Case No. 17-CR-129

          For Plaintiff-Appellee JOEL C. WALKER Assistant Prosecuting Attorney.

          For Defendant-Appellee ANDREW T. SANDERSON.

          Hon. John W. Wise, P.J. Hon. William B. Hoffman, J. Hon. Earle E. Wise, Jr., J.

          OPINION

          Wise, Earle, J.

         {¶ 1} Defendant-Appellant James Marcum appeals the judgment of conviction and sentence of the Court of Common Pleas of Fairfield County, Ohio. Plaintiff-Appellee is the state of Ohio.

         FACTS AND PROCEDURAL HISTORY

         {¶ 2} On January 12, 2017, a man entered a Petco store on Taylor Road in Reynoldsburg Ohio and stole more than $4, 000 in flea and tick medication. Three store employees witnessed the theft and one took photographs.

         {¶ 3} The Fairfield County Grand Jury subsequently returned an indictment charging appellant with one count of theft in violation of R.C. 2913.02(A)(1) and (B)(2), a felony of the fifth degree.

         {¶ 4} On June 27, 2017, the matter proceeded to a jury trial. At the conclusion of the state's evidence, counsel for appellant made a Crim.R 29 motion for acquittal. Counsel did not argue that the state had failed to prove venue. The trial court, however, raised the issue sua sponte. The court concluded that although the state had failed to present evidence of venue, sufficient facts were presented from which reasonable minds could differ as to whether the state had proved venue beyond a reasonable doubt. Appellant then rested without presenting evidence and without renewing his Crim.R 29 motion for acquittal.

         {¶ 5} On June 28, 2017, the jury returned a verdict finding appellant guilty as charged. He was subsequently sentenced to a 6-month prison term.

         {¶ 6} Appellant filed an appeal and the matter is now before this court for consideration.

          I

         {¶ 7} "THE TRIAL COURT COMMITTED HARMFUL ERROR IN DENYING THE DEFENDANT-APPELLANT'S MOTION FOR A ...


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