[Cite as State v. Marcum, 2011-Ohio-3100.]




                  [Please see nunc pro tunc opinion at 2011-Ohio-3709.]

                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                      JUDGES:
STATE OF OHIO                                 :       Hon. W. Scott Gwin, P.J.
                                              :       Hon. William B. Hoffman, J.
                        Plaintiff-Appellee    :       Hon. Julie A. Edwards, J.
                                              :
-vs-                                          :
                                              :       Case No. 10-CA-0137
JEROME B. MARCUM                              :
                                              :
                    Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                          Criminal appeal from the Licking County
                                                  Court of Common Pleas, Case No. 2009-
                                                  CR-00677

JUDGMENT:                                         Affirmed

DATE OF JUDGMENT ENTRY:                           June 23, 2011

APPEARANCES:

For Plaintiff-Appellee                            For Defendant-Appellant

DANIEL HUSTON                                     THOMAS M. TYACK
20 S. Second Street                               TYACK, BLACKMORE, LISTON & NIGH
Newark, OH 43055                                  536 S. High Street
                                                  Columbus, OH 43215
[Cite as State v. Marcum, 2011-Ohio-3100.]


Gwin, P.J.

        {¶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.

                               STATEMENT OF THE CASE AND FACTS

        {¶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 was
Licking County, Case No. 10-CA-0137                                                     3


unloading 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.
Licking County, Case No. 10-CA-0137                                                       4


       {¶9}   The jury convicted appellant as charged in the indictment. The trial court

sentenced appellant to fifteen 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).
Licking County, Case No. 10-CA-0137                                                        5


      {¶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} “VII.   THE    VERDICT      FINDING      THE    DEFENDANT       GUILTY     OF

ATTEMPTED AGGRAVATED MURDER AS TO COUNT 3 WAS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE (JUDGMENT ENTRY FILED 11/19/10).”

                                                I.

      {¶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} “Venue is not a material element of any offense charged. The elements of

the offense charged and the venue of the matter are separate and distinct. State v.

Loucks (1971), 28 Ohio App.2d 77, 274 N.E.2d 773, and Carbo v. United States (C.A.9,

1963), 314 F.2d 718. Yet, in all criminal prosecutions, venue is a fact that must be
Licking County, Case No. 10-CA-0137                                                       6

proved at trial unless waived. State v. Nevius (1947), 147 Ohio St. 263, 71 N.E.2d 258.”

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.
Licking County, Case No. 10-CA-0137                                                        7


       {¶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, 1242-

1243, 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, Fairfield App. No.

03-CA-84, 2005-Ohio-276 at ¶ 34.

       {¶30} Accordingly disposition of appellant's proposition of law is dependent upon

the determination of whether “any element” of the crimes were committed within Licking

County, thereby making that county a proper location for the trial.
Licking County, Case No. 10-CA-0137                                                        8


       {¶31} The elements of a crime are the constituent parts of an offense which

must be proved by the prosecution to sustain a conviction. Elements necessary to

constitute a crime must be gathered wholly from statute and not aliunde. State v.

Draggo, supra, citing State v. Winters (1965), 2 Ohio St.2d 325, 209 N.E.2d 131; State

v. Cimpritz (1953), 158 Ohio St. 490, 110 N.E.2d 416.

       {¶32} R.C. 2903.01 defines the crime of aggravated murder, “(A) No person

shall purposely, and with prior calculation and design, cause the death of another or the

unlawful termination of another's pregnancy…” Pursuant to R.C. 2901.22(A), “[a] person

acts purposely when it is his specific intention to cause a certain result, or, when the gist

of the offense is a prohibition against conduct of a certain nature, regardless of what the

offender intends to accomplish thereby, it is his specific intention to engage in conduct

of that nature.”

       {¶33} R.C. 2923.02(A) provides a definition of attempt: “No person, purposely or

knowingly, and when purpose or knowledge is sufficient culpability for the commission

of an offense, shall engage in conduct that, if successful, would constitute or result in

the offense.”

       {¶34} The Ohio Supreme Court has held that a criminal attempt occurs when the

offender commits an act constituting a substantial step towards the commission of an

offense. State v. Woods (1976), 48 Ohio St.2d 127, 357 N.E.2d 1059, paragraph one of

the syllabus, overruled in part by State v. Downs (1977), 51 Ohio St.2d 47, 364 N.E.2d

1140. In defining substantial step, the Woods Court indicated that the act need not be

the last proximate act prior to the commission of the offense. Woods at 131-32, 357

N.E.2d 1059. However, the act “must be strongly corroborative of the actor's criminal
Licking County, Case No. 10-CA-0137                                                      9


purpose.” Id. at paragraph one of the syllabus. This is not necessarily a test for venue

purposes. Rather this test “properly directs attention to overt acts of the defendant

which convincingly demonstrate a firm purpose to commit a crime, while allowing police

intervention, based upon observation of such incriminating conduct, in order to prevent

the crime when the criminal intent becomes apparent.” Woods, supra at 132, 357

N.E.2d at 1063. In other words, a substantive crime would have been committed had it

not been interrupted.

       {¶35} In the case at bar, a series of crimes was committed by appellant in both

Licking and Knox counties. “The outer limits on how broadly Congress may define a

continuing offense and thereby create multiple venues are unclear. In addition, although

‘the venue requirement is principally a protection for the defendant,’ Cabrales, 524 U.S.

at 9, 118 S.Ct. 1772, 141 L.Ed.2d 1, other policy considerations are relevant to the

proper venue in particular cases. To determine whether the application of a venue

provision in a given prosecution comports with constitutional safeguards, a court should

ask whether the criminal acts in question bear ‘substantial contacts' with any given

venue. United States v. Reed, 773 F.2d 477, 481 (2d Cir.1985). The substantial

contacts rule offers guidance on how to determine whether the location of venue is

constitutional, especially in those cases where the defendant's acts did not take place

within the district selected as the venue for trial. While it does not represent a formal

constitutional test, Reed is helpful in determining whether a chosen venue is unfair or

prejudicial to a defendant. This test takes into account four main factors: (1) the site of

the crime, (2) its elements and nature, (3) the place where the effect of the criminal

conduct occurs, and (4) suitability of the venue chosen for accurate fact-finding. See Id.
Licking County, Case No. 10-CA-0137                                                       10

at 481.” United State v. Saavedra (2nd Cir. 2000), 233 F.3d 85, 92-93. Engle, supra at ¶

43.

       {¶36} In addition, although this was not a death-penalty case we find the

analysis utilized by the courts in considering the specifications that qualify a defendant

for the death penalty pursuant to R.C. 2929.04(A) (5) to be helpful in determining

whether appellant could be tried for all three offenses in Licking County. Under R.C.

2929.04(A) (5), the death penalty may be imposed for aggravated murder if “the offense

at bar was part of a course of conduct involving the purposeful killing of or attempt to kill

two or more persons by the offender.” It is the course of conduct involving multiple

killings element that we shall exaimine to help us determine whether venue was proper

in the case at bar.

       {¶37} To find that two offenses constitute a single course of conduct under R.C.

2929.04(A) (5), the trier of fact must find some connection, common scheme, pattern or

psychological thread that ties the offenses together. State v. Sapp, 105 Ohio St. 3d 104,

822 N.E. 2d 1239, 2004-Ohio-7008, ¶ 52. “[T]he factual link might be one of time,

location, murder weapon, or cause of death. It might involve the killing of victims who

are close in age or who are related. It might involve a similar motivation on the killer's

part for his crimes, a common getaway car, or perhaps a similar pattern of secondary

crimes (such as rape) involving each victim.” Id. Ultimately, “when two or more offenses

are alleged to constitute a course of conduct under R.C. 2929.04(A)(5), all the

circumstances of the offense, must be taken into account.” Id. at ¶ 56. Accord, State v.

Perez, 124 Ohio St.3d 122, 920 N.E.2d 104, 2009-Ohio-6179 at ¶78; State v. McKnight,

107 Ohio St.3d 101, 873 N.E.2d 315, 2005-Ohio-6046 at ¶ 124.
Licking County, Case No. 10-CA-0137                                                      11


        {¶38} In the case at bar, the aggravated murders of Mr. Walsh, Ms. Marcum and

the attempted aggravated murder of Homer Marcum involved firearms utilized or

attempted to be used at close range. Further two of the three victims are relatives of

the appellant. All three offenses occurred within approximately forty-five minutes of

each other. We note that Homer Marcum’s residence is located at 14201 Vance Road,

Mt. Vernon, Knox County Ohio. (T. 204). Deputy Courtenay Biggs of the Knox County

Sherriff’s Office testified that Homer Marcum’s residence, “It’s right on the line. I mean,

one side of Vance [Road] is actually in Licking County and the north side is in Knox

[County].” (T. at 276). We are not therefore faced with a situation in which an accused is

forced to defend an action in a distant, inconvenient forum. Engle, supra at ¶ 44.

        {¶39} Here, the evidence produced at trial showed a clear factual link between

the aggravated murders of Mr. Walsh and Ms. Marcum and the attempted aggravated

murder of Homer Marcum. Based on the totality of the circumstances, we find that

evidence was sufficient to support appellant's trial of all three charges in Licking County.

Appellant has not argued any identifiable prejudice resulted in his being tried in Licking

County on Count Three of the Indictment.

        {¶40} Accordingly, we conclude that the trier of fact properly found that there

was venue under R.C. 2901.12 to prosecute Count Three of the Indictment charging

appellant with the attempted aggravated murder of Homer Marcum in Licking County,

Ohio.

        {¶41} Appellant’s First Assignment of Error is overruled.
Licking County, Case No. 10-CA-0137                                                    12


                                            II. – IV.

      {¶42} Appellant’s remaining assignments of error challenge the sufficiency and

the weight of the evidence concerning the element of prior calculation and design with

respect to the killings of John Walsh and Sonia Marcum. Appellant further contends

that the finding that he attempted to purposely cause the death of his brother Homer

Marcum is based upon insufficient evidence and against weight of the evidence.

      {¶43} Our review of the constitutional sufficiency of evidence to support a

criminal conviction is governed by Jackson v. Virginia (1979), 443 U.S. 307, 319, 99

S.Ct. 2781, 61 L.Ed.2d 560, which requires a court of appeals to determine whether

“after viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Id.; see also McDaniel v. Brown (2010), --- U.S. ----, 130 S.Ct. 665, 673, 175

L.Ed.2d 582 (reaffirming this standard). See, State v. Clay, 187 Ohio App.3d 633, 933

N.E.2d 296, 2010-Ohio-2720 at ¶68.

      {¶44} Jackson thus establishes a two-step inquiry for considering a challenge to

a conviction based on sufficiency of the evidence. First, a reviewing court must consider

the evidence presented at trial in the light most favorable to the prosecution. Jackson,

443 U.S. at 319, 99 S.Ct. 2781, 61 L.Ed.2d 560. This means that a court of appeals

may not usurp the role of the finder of fact by considering how it would have resolved

the conflicts, made the inferences, or considered the evidence at trial. See Id. at 318-

319, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. Rather, when “faced with a record of

historical facts that supports conflicting inferences” a reviewing court “must presume-

even if it does not affirmatively appear in the record-that the trier of fact resolved any
Licking County, Case No. 10-CA-0137                                                     13


such conflicts in favor of the prosecution, and must defer to that resolution.” Id. at 326,

443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560; see also McDaniel, --- U.S. ----, 130 S.Ct.

at 673-674, 175 L.Ed.2d 582; United States v. Nevils (C.A.9, 2010), 548 F.3d 802.

       {¶45} Second, after viewing the evidence in the light most favorable to the

prosecution, the reviewing court must determine whether this evidence, so viewed, is

adequate to allow “any rational trier of fact [to find] the essential elements of the crime

beyond a reasonable doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. 2781, 61 L.Ed.2d 560;

State v. Thompkins (1997), 78 Ohio St.3d 380, 387, 678 N.E.2d 541; State v. Jenks

(1991), 61 Ohio St.3d 259, 574 N.E.2d 492. See, State v. Clay, supra at ¶ 70.

       {¶46} This second step protects against rare occasions in which “a properly

instructed jury may * * * convict even when it can be said that no rational trier of fact

could find guilt beyond a reasonable doubt.” Jackson, 443 U.S. at 317, 99 S.Ct. 2781,

61 L.Ed.2d 560. More than a “mere modicum” of evidence is required to support a

verdict. Id. at 320, 99 S.Ct. 2781, 61 L.Ed.2d 560 (rejecting the rule that a conviction be

affirmed if “some evidence” in the record supports the jury's finding of guilt). At this

second step, however, a reviewing court may not “‘ask itself whether it believes that the

evidence at the trial established guilt beyond a reasonable doubt,’ ” Id. at 318-319, 99

S.Ct. 2781, 61 L.Ed.2d 560, quoting Woodby v. INS (1966), 385 U.S. 276, 282, 87 S.Ct.

483, 17 L.Ed.2d 362, only whether “any” rational trier of fact could have made that

finding, Id. at 319, 99 S.Ct. 2781, 61 L.Ed.2d 560. Nevils.

       {¶47} Manifest weight of the evidence claims concern the amount of evidence

offered in support of one side of the case, and is a jury question. We must determine

whether the jury, in interpreting the facts, so lost its way that its verdict results in a
Licking County, Case No. 10-CA-0137                                                      14

manifest miscarriage of justice, State v. Thompkins (1997), 78 Ohio St. 3d 387, 678

N.E.2d 541, 1997-Ohio-52, superseded by constitutional amendment on other grounds

as stated by State v. Smith, 80 Ohio St.3d 89, 1997-Ohio-355, 684 N.E.2d 668. On

review for manifest weight, a reviewing court is “to examine the entire record, weigh the

evidence and all reasonable inferences, consider the credibility of the witnesses and

determine whether in resolving conflicts in the evidence, the trier of fact clearly lost its

way and created such a manifest miscarriage of justice that the judgment must be

reversed. The discretionary power to grant a new hearing should be exercised only in

the exceptional case in which the evidence weighs heavily against the judgment.” State

v. Thompkins, supra, 78 Ohio St.3d at 387, citing State v. Martin (1983), 20 Ohio

App.3d 172, 175. Because the trier of fact is in a better position to observe the

witnesses’ demeanor and weigh their credibility, the weight of the evidence and the

credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10

Ohio St.2d 230, 227 N.E.2d 212, syllabus 1.

       {¶48} In Thompkins, the Ohio Supreme Court held "[t]o reverse a judgment of a

trial court on the basis that the judgment is not sustained by sufficient evidence, only a

concurring majority of a panel of a court of appeals reviewing the judgment is

necessary." Id. at paragraph three of the syllabus. However, to "reverse a judgment of

a trial court on the weight of the evidence, when the judgment results from a trial by jury,

a unanimous concurrence of all three judges on the court of appeals panel reviewing

the case is required." Id. at paragraph four of the syllabus; State v. Miller (2002), 96

Ohio St.3d 384, 2002-Ohio-4931 at ¶38, 775 N.E.2d 498.
Licking County, Case No. 10-CA-0137                                                        15


       A.     Prior Calculation and Design: John Walsh.

       {¶49} In his Second Assignment of Error appellant alleges that there was

insufficient evidence to permit the jury to make a finding of prior calculation and

design as to the killing of John Walsh. In his Third Assignment of Error, appellant

argues that the finding of prior calculation and design in the shooting of John Walsh was

against the weight of the evidence.

       {¶50} R.C. 2903.01 defines the crime of aggravated murder, “(A) No person

shall purposely, and with prior calculation and design, cause the death of another or the

unlawful termination of another's pregnancy…” Pursuant to R.C. 2901.22(A), “[a] person

acts purposely when it is his specific intention to cause a certain result, or, when the gist

of the offense is a prohibition against conduct of a certain nature, regardless of what the

offender intends to accomplish thereby, it is his specific intention to engage in conduct

of that nature.”

       {¶51} There is no bright-line test to determine whether prior calculation and

design are present. Rather, each case must be decided on a case-by-case basis. State

v. Taylor (1997), 78 Ohio St.3d 15, 18-20, 676 N.E.2d 82. The Ohio Supreme Court has

held, “Where evidence adduced at trial reveals the presence of sufficient time and

opportunity for the planning of an act of homicide to constitute prior calculation, and the

circumstances surrounding the homicide show a scheme designed to implement the

calculated decision to kill, a finding by the trier of fact of prior calculation and design is

justified.” State v. Cotton (1978), 56 Ohio St.2d 8, 10 O.O.3d 4, 381 N.E.2d 190,

paragraph three of the syllabus. Accord, State v. Braden, 98 Ohio St.3d 354, 785

N.E.2d 439, 2003-Ohio-325 at ¶ 61.
Licking County, Case No. 10-CA-0137                                                    16


         {¶52} Accordingly, to sustain appellant's aggravated murder conviction, the state

had the burden of proving beyond a reasonable doubt that, under the facts and

circumstances of this case, appellant had sufficient time and opportunity to plan John

Walsh’s death, and that, under the surrounding circumstances, appellant had a scheme

designed to implement a calculated decision to kill John Walsh.

         {¶53} “[P]rior calculation and design can be found even when the killer quickly

conceived and executed the plan to kill within a few minutes.” State v. Coley, 93 Ohio

St.3d 253, 264, 2001-Ohio-1340, 754 N.E.2d 1129. In State v. Conway, 108 Ohio St.3d

214, 2006-Ohio-791, 842 N.E.2d 996, the Ohio Supreme Court held that one's actions

could display a plan to kill. In Conway, upon hearing that his brother had been stabbed,

Conway retrieved a gun from his car and began shooting at the alleged perpetrator. The

Court held that “[a]lthough they took only a few minutes, Conway's actions went beyond

a momentary impulse and show that he was determined to complete a specific course

of action. Such facts show that he had adopted a plan to kill.” Id. at ¶ 46, 842 N.E.2d

996. In the instant case, the evidence established that appellant conceived a plan to kill

and acted on that plan with brutal composure.

         {¶54} In the case at bar, appellant admitted to Detective Brill that he was

"upset     and angry" with his sister Sonia Marcum for shutting off his well water.

Appellant further admitted to Detective Brill that he planned to kill his sister when

he left his residence and that his stated intent to get the mail was just an

"excuse" to leave his residence. Appellant took his .38 caliber handgun with him

when he left his residence to allegedly get the mail; Appellant concealed this handgun

from Bonnie Marcum and the victims when he approached them. Appellant had twenty
Licking County, Case No. 10-CA-0137                                                       17


four hundred dollars in cash in his wallet which he told Detective Brill was to use for

appellant to flee to West Virginia after the killings. (T. at 391).

        {¶55} If the victim is killed in a cold-blooded, execution-style manner, the killing

bespeaks aforethought, and a jury may infer prior calculation and design. See State v.

Campbell (2000), 90 Ohio St.3d 320, 330, 738 N.E.2d 1178; State v. Palmer (1997), 80

Ohio St.3d 543, 570, 687 N.E.2d 685; State v. Taylor (1997),] 78 Ohio St.3d 15, 21, 676

N.E.2d 82; State v. Mardis (1999), 134 Ohio App.3d 6, 19, 729 N.E.2d 1272.

        {¶56} In the case at bar, appellant shot John two (2) times at close range, the

first shot striking him in the abdomen, and the second shot striking him in the top of the

head.

        {¶57} A fundamental premise of our criminal trial system is that ‘the jury is the lie

detector.’ United States v. Barnard, 490 F.2d 907, 912 (C.A.9 1973) (emphasis added),

cert. denied, 416 U.S. 959, 94 S.Ct. 1976, 40 L.Ed.2d 310 (1974). Determining the

weight and credibility of witness testimony, therefore, has long been held to be the ‘part

of every case [that] belongs to the jury, who are presumed to be fitted for it by their

natural intelligence and their practical knowledge of men and the ways of men.’ Aetna

Life Ins. Co. v. Ward, 140 U.S. 76, 88, 11 S.Ct. 720, 724-725, 35 L.Ed. 371 (1891)”.

United States v. Scheffer (1997), 523 U.S. 303, 313, 118 S.Ct. 1261, 1266-1267.

        {¶58} Although appellant cross-examined the witnesses and argued that he did

not set out with a plan to kill Mr. Walsh and that he felt confronted by Mr. Walsh the

weight to be given to the evidence and the credibility of the witnesses are issues for the

trier of fact. State v. Jamison (1990), 49 Ohio St.3d 182, certiorari denied (1990), 498

U.S. 881. The jury was free to accept or reject any and all of the evidence offered by the
Licking County, Case No. 10-CA-0137                                                    18


parties and assess the witness’s credibility. "While the jury may take note of the

inconsistencies and resolve or discount them accordingly * * * such inconsistencies do

not render defendant's conviction against the manifest weight or sufficiency of the

evidence". State v. Craig (Mar. 23, 2000), Franklin App. No. 99AP-739, citing State v.

Nivens (May 28, 1996), Franklin App. No. 95APA09-1236 Indeed, the jurors need not

believe all of a witness' testimony, but may accept only portions of it as true. State v.

Raver, Franklin App. No. 02AP-604, 2003-Ohio-958, at ¶          21, citing State v. Antill

(1964), 176 Ohio St. 61, 67, 197 N.E.2d 548.; State v. Burke, Franklin App. No. 02AP-

1238, 2003-Ohio-2889, citing State v. Caldwell (1992), 79 Ohio App.3d 667, 607 N.E.2d

1096. Although the evidence may have been circumstantial, we note that circumstantial

evidence has the same probative value as direct evidence. State v. Jenks (1991), 61

Ohio St. 3d 259, 574 N.E. 2d 492.

      {¶59} After reviewing the evidence, we cannot say that this is one of the

exceptional cases where the evidence weighs heavily against the convictions. The jury

did not create a manifest injustice by concluding that appellant was guilty of the crimes

charged in the indictment.

      {¶60} We conclude the trier of fact, in resolving the conflicts in the evidence, did

not create a manifest injustice to require a new trial. The evidence in the record could

convince a reasonable trier of fact that the element of prior calculation and design

concerning the killing of John Walsh had been met by the state.

      {¶61} Appellant's conviction for the aggravated murder of John Walsh is

supported by sufficient evidence, and not against the manifest weight of the evidence.

      {¶62} Appellant’s Second and Third Assignments of Error are overruled.
Licking County, Case No. 10-CA-0137                                                        19


         {¶63} B. Prior Calculation and Design: Sonia Marcum.

         {¶64} In appellant’s Fourth Assignment of Error appellant alleges that there

was insufficient evidence to permit the jury to make a finding of prior calculation

and design as to the killing of Sonia Marcum. In his Fifth Assignment of Error, appellant

argues that the finding of prior calculation and design in the shooting of Sonia Marcum

was against the weight of the evidence.

         {¶65} In the case at bar, appellant admitted to Detective Brill that he was

"upset     and angry" with his sister Sonia Marcum for shutting off his well water.

Appellant further admitted to Detective Brill that he planned to kill his sister when

he left his residence and that his stated intent to get the mail was just an

"excuse" to leave his residence. Appellant took his .38 caliber handgun with him

when he left his residence to allegedly get the mail; Appellant concealed this handgun

from Bonnie Marcum and the victims when he approached them. After shooting John

Walsh twice, appellant chased Sonia Marcum over ninety-five feet as she ran

screaming that she was going to call the police. She fled inside her garage where

appellant caught her and shot her two times at close range. The first shot hit Sonia on

her left side near her arm pit the second shot entered Sonia’s head on the right side just

above the ear. Appellant had twenty four hundred dollars in cash in his wallet which he

told Detective Brill was to use for appellant to flee to West Virginia after the killings. (T.

at 391).

         {¶66} A fundamental premise of our criminal trial system is that ‘the jury is the lie

detector.’ United States v. Barnard, 490 F.2d 907, 912 (C.A.9 1973) (emphasis added),

cert. denied, 416 U.S. 959, 94 S.Ct. 1976, 40 L.Ed.2d 310 (1974). Determining the
Licking County, Case No. 10-CA-0137                                                    20


weight and credibility of witness testimony, therefore, has long been held to be the ‘part

of every case [that] belongs to the jury, who are presumed to be fitted for it by their

natural intelligence and their practical knowledge of men and the ways of men.’ Aetna

Life Ins. Co. v. Ward, 140 U.S. 76, 88, 11 S.Ct. 720, 724-725, 35 L.Ed. 371 (1891)”.

United States v. Scheffer (1997), 523 U.S. 303, 313, 118 S.Ct. 1261, 1266-1267.

      {¶67} Although appellant cross-examined the witnesses and argued that he did

not set out with a plan to kill his sister and that the verbal confrontation erupted

spontaneously into the shooting, the weight to be given to the evidence and the

credibility of the witnesses are issues for the trier of fact. State v. Jamison (1990), 49

Ohio St.3d 182, certiorari denied (1990), 498 U.S. 881. The jury was free to accept or

reject any and all of the evidence offered by the parties and assess the witness’s

credibility. "While the jury may take note of the inconsistencies and resolve or discount

them accordingly * * * such inconsistencies do not render defendant's conviction against

the manifest weight or sufficiency of the evidence". State v. Craig (Mar. 23, 2000),

Franklin App. No. 99AP-739, citing State v. Nivens (May 28, 1996), Franklin App. No.

95APA09-1236 Indeed, the jurors need not believe all of a witness' testimony, but may

accept only portions of it as true. State v. Raver, Franklin App. No. 02AP-604, 2003-

Ohio-958, at ¶ 21, citing State v. Antill (1964), 176 Ohio St. 61, 67, 197 N.E.2d 548.;

State v. Burke, Franklin App. No. 02AP-1238, 2003-Ohio-2889, citing State v. Caldwell

(1992), 79 Ohio App.3d 667, 607 N.E.2d 1096. Although the evidence may have been

circumstantial, we note that circumstantial evidence has the same probative value as

direct evidence. State v. Jenks (1991), 61 Ohio St. 3d 259, 574 N.E. 2d 492.
Licking County, Case No. 10-CA-0137                                                   21


       {¶68} After reviewing the evidence, we cannot say that this is one of the

exceptional cases where the evidence weighs heavily against the convictions. The jury

did not create a manifest injustice by concluding that appellant was guilty of the crimes

charged in the indictment.

       {¶69} The evidence in the record could convince a reasonable trier of fact that

the element of prior calculation and design concerning the killing of Sonia Marcum had

been met by the state. Appellant's conviction for the aggravated murder of Sonia

Marcum is supported by sufficient evidence, and not against the manifest weight of the

evidence.

       {¶70} Appellant’s Fourth and Fifth Assignments of Error are overruled.

       {¶71} C. Attempted Murder of Homer Marcum

       {¶72} Appellant next alleges that there was insufficient evidence to permit the

jury to find that he intended to kill his brother, Homer Marcum, due to the fact that a

bullet was not chambered in the rifle. He further argues his conviction for attempted

aggravated murder was against the manifest weight of the evidence.

       {¶73} R.C. 2923.02(A) provides a definition of attempt: "[n]o person, purposely

or knowingly, and when purpose or knowledge is sufficient culpability for the

commission of an offense, shall engage in conduct that, if successful, would constitute

or result in the offense."

       {¶74} The Ohio Supreme Court has held that a criminal attempt occurs when the

offender commits an act constituting a substantial step towards the commission of an

offense. State v. Woods (1976), 48 Ohio St.2d 127, 357 N.E.2d 1059, paragraph one of

the syllabus, overruled in part by State v. Downs (1977), 51 Ohio St.2d 47, 364 N.E.2d
Licking County, Case No. 10-CA-0137                                                    22

1140; See also, State v. Ashbrook, 5th Dist. No.2004-CA-00109, 2005-Ohio-740,

reversed on other grounds and remanded for re-sentencing pursuant to State v. Foster,

109 Ohio St.3d 1, 2006-Ohio-856; In re: Ohio Criminal Sentencing Statutes Cases, 109

Ohio St.3d 313, 2006-Ohio-2109. In defining substantial step, the Woods’ Court

indicated that the act need not be the last proximate act prior to the commission of the

offense. Woods at 131-32, 357 N.E.2d 1059. However, the act "must be strongly

corroborative of the actor's criminal purpose." Id. at paragraph one of the syllabus. This

test “properly directs attention to overt acts of the defendant which convincingly

demonstrate a firm purpose to commit a crime, while allowing police intervention, based

upon observation of such incriminating conduct, in order to prevent the crime when the

criminal intent becomes apparent.” Woods, supra at 132, 357 N.E.2d at 1063. In other

words, a substantive crime would have been committed had it not been interrupted.

R.C. 2923.02(D) provides that: "[i]t is an affirmative defense to a charge under this

section that the actor abandoned his effort to commit the offense or otherwise prevented

its commission, under circumstances manifesting a complete and voluntary renunciation

of his criminal purpose."

       {¶75} However, the abandonment must be "complete" and "voluntary" in order to

exculpate a defendant. Where one abandons an attempted crime because he fears

detection or realizes that he cannot complete the crime, the "abandonment" is neither

"complete" nor "voluntary.” Woods, supra, 48 Ohio St. 2d at 133.

       {¶76} Precisely what conduct will be held to be a substantial step must be

determined by evaluating the facts and circumstances of each particular case. State v.

Group (2002), 98 Ohio St.3d 248, 262, 2002-Ohio-7247 at ¶100, 781 N.E.2d 980, 996.
Licking County, Case No. 10-CA-0137                                                      23


       {¶77} The intent with which an act is committed may be inferred from the act

itself and the surrounding circumstances, including acts and statements of a defendant.

State v. Garner (1995), 74 Ohio St.3d 49, 60, 1995-Ohio-168, 656 N.E.2d 623, 634;

State v. Wallen (1969), 21 Ohio App.2d 27, 34, 254 N.E.2d 716, 722. “Intent need not

be proven by direct testimony. State v. Lott (1990), 51 Ohio St.3d 160, 168, 555 N.E.2d

293, 302. Instead, intent to kill ‘may be deduced from all the surrounding circumstances,

including the instrument used to produce death, its tendency to destroy life if designed

for that purpose, and the manner of inflicting a fatal wound.’ State v. Robinson (1954),

161 Ohio St. 213, 53 O.O. 96, 118 N.E.2d 517, at paragraph five of the syllabus; State

v. Eley (1996), 77 Ohio St.3d 174, 180, 672 N.E.2d 640, 648”. State v. Stallings (2000),

89 Ohio St.3d 280, 290, 2000-Ohio-159, 731 N.E.2d 159,171.

       {¶78} The specific intent to kill may be reasonably inferred from the fact that a

firearm is an inherently dangerous instrument, the use of which is likely to produce

death. State v. Mackey (1999), Cuyahoga App. No. 75300, dismissed, appeal not

allowed (2000), 88 Ohio St.3d 1496, 727 N.E.2d 920, citing State v. Widner (1982), 69

Ohio St.2d 267, 431 N.E.2d 1025 (finding purpose to kill in passenger's firing gun at

individual from moving vehicle); State v. Dunlap (1995), 73 Ohio St.3d 308, 316, 652

N.E.2d 988, certiorari denied (1996), 516 U.S. 1096, 116 S.Ct. 1096, 133 L.Ed.2d 765.

State v. Banks, 10th Dist. No. 01 AP-1179, 2002-Ohio-3341 at ¶24.

       {¶79} "[T]he act of pointing a firearm and firing it in the direction of another

human being is an act with death as a natural and probable consequence." State v.

Turner (1997), Franklin App. No. 97APA05-709, dismissed, appeal not allowed (1998),

81 Ohio St.3d 1496, 691 N.E.2d 1058 (finding sufficient evidence of intent to kill in firing
Licking County, Case No. 10-CA-0137                                                       24

a gun from an automobile at a group of individuals), quoting State v. Brown (1996),

Cuyahoga App. No. 68761, dismissed, appeal not allowed, 77 Ohio St.3d 1468, 673

N.E.2d 135; see, also, State v. Smith (1993), 89 Ohio App.3d 497, 501, 624 N.E.2d

1114 (finding that pointing a gun at a group of people less than twenty feet away and

shooting at least one shot could be used by the trier of fact as proof of intention to kill).

Banks, supra, at ¶26.

       {¶80} The record in the case at bar establishes that after shooting John Walsh

and Sonia Marcum, appellant returned to his home where he hid the handgun he had

just used. Appellant had a loaded small caliber pistol and an assault rifle as he left his

home to go to the home of his brother. Upon arrival, appellant parked his car out of site

and concealed himself to await the return of Homer Marcum. When his brother arrived,

appellant pointed the rifle at him and pulled the trigger. Appellant admitted that he

intended to kill not only Homer Marcum but also Homer’s wife. Appellant had twenty

four hundred dollars in cash in his wallet which he told Detective Brill was to use for

appellant to flee to West Virginia after the killings. (T. at 391).

       {¶81} Although appellant cross-examined the witnesses and argued that he did

not plan to kill his brother because the rifle did not have a bullet in firing position, the

weight to be given to the evidence and the credibility of the witnesses are issues for the

trier of fact. State v. Jamison (1990), 49 Ohio St.3d 182, certiorari denied (1990), 498

U.S. 881.

       {¶82} After reviewing the evidence, we cannot say that this is one of the

exceptional cases where the evidence weighs heavily against the convictions. The jury
Licking County, Case No. 10-CA-0137                                                    25


did not create a manifest injustice by concluding that appellant was guilty of the crimes

charged in the indictment.

      {¶83} We conclude the trier of fact, in resolving the conflicts in the evidence, did

not create a manifest injustice to require a new trial. The evidence in the record could

convince a reasonable trier of fact that appellant attempted to kill Homer Marcum.

      {¶84} Appellant's conviction for the attempted aggravated murder of Homer

Marcum is supported by sufficient evidence, and not against the manifest weight of the

evidence.

      {¶85} Appellant’s Sixth Assignment of Error is overruled.

      {¶86} For the foregoing reasons, the judgment of the Licking County Court of

Common Pleas, Licking County, Ohio is affirmed.



By Gwin, P.J.,

Hoffman, J., and

Edwards, J., concur



                                             _________________________________
                                             HON. W. SCOTT GWIN

                                             _________________________________
                                             HON. WILLIAM B. HOFFMAN

                                             _________________________________
                                             HON. JULIE A. EDWARDS
WSG:clw 0531
[Cite as State v. Marcum, 2011-Ohio-3100.]


               IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                    :
                                                 :
                            Plaintiff-Appellee   :
                                                 :
                                                 :
-vs-                                             :       JUDGMENT ENTRY
                                                 :
JEROME B. MARCUM                                 :
                                                 :
                                                 :
                       Defendant-Appellant       :       CASE NO. 10-CA-0137




       For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Licking County Court of Common Pleas, Licking County, Ohio is affirmed. Costs to

appellant.




                                                     _________________________________
                                                     HON. W. SCOTT GWIN

                                                     _________________________________
                                                     HON. WILLIAM B. HOFFMAN

                                                     _________________________________
                                                     HON. JULIE A. EDWARDS
