State v. Macko
2017 Ohio 253
Ohio Ct. App.2017Background
- On Sept. 19, 2015, two men (Lebaine Fourqurean and John S. Macko) forced entry into Judith Graham’s apartment early morning; Graham’s grandson (Mr. Cannon) was punched and injured, Graham was pushed and threatened. Police were called and both men were later arrested in a car; a partial pack of Newport cigarettes was found in the vehicle.
- Graham (victim) identified both men at separate show-ups; she testified Lebaine announced “Police, open up,” and Macko punched Mr. Cannon and stood next to Lebaine while threats were made.
- Macko was indicted on aggravated burglary (with RVO spec), burglary (with RVO spec), and two counts of impersonating a peace officer; he pleaded not guilty and proceeded to jury trial; RVO specs were bifurcated.
- Macko’s defense presented a driver (Peteritis) who said the occupants entered ‘‘casually’’ and denied knowledge of a robbery plan; recorded jail call included Macko admitting he punched Mr. Cannon; a girlfriend corroborated the jail call.
- Jury convicted Macko on all counts; court merged counts and sentenced on aggravated burglary (11 yrs), impersonating a peace officer (3 yrs), and RVO spec (10 yrs) consecutively, for a total of 24 years.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for impersonating a peace officer (Count 3) | State: evidence shows Macko aided/abetted Lebaine who announced police and used that deception to gain entry and commit aggravated burglary | Macko: evidence insufficient to prove he impersonated an officer or aided impersonation; identification and role disputed | Court: guilty verdict supported — circumstantial and direct evidence (presence, conduct, punch, show-up IDs, jail call) sufficed to prove complicity in impersonation and aggravated burglary |
| Manifest weight of the evidence | State: testimony and corroborating evidence (show-ups, injuries, cigarette pack, jail call) are credible | Macko: inconsistencies in victim’s statements and defense testimony create reasonable doubt | Court: jury did not lose its way; credibility determinations upheld; weight of evidence supports convictions |
| Exclusion of prior statements and police report (Evid.R. 613) | State: extrinsic evidence not necessary because witness admitted prior statements and was cross-examined | Macko: trial court abused discretion by excluding Graham’s police statement, grand jury transcript, and report | Court: no abuse of discretion — Graham admitted prior statements or explained differences; cross-examination made inconsistencies known; any error harmless |
| Sentence validity (RVO spec, consecutive terms, remorse finding) | State: sentence supported by record (seriousness, prior record, institutional infractions, risk of recidivism); court considered relevant factors | Macko: court erred in finding lack of remorse; RVO years excessive given some juvenile offenses; consecutive terms unnecessary | Court: sentence not contrary to law nor unsupported by record; court properly considered factors, made required findings for consecutive terms; appellate standard highly deferential |
Key Cases Cited
- State v. Jenks, 61 Ohio St.3d 259 (Ohio 1991) (standard for sufficiency review in criminal cases)
- State v. Thompkins, 78 Ohio St.3d 380 (Ohio 1997) (distinguishing sufficiency and manifest-weight review)
- State v. Whitfield, 124 Ohio St.3d 319 (Ohio 2010) (conviction requires guilty verdict plus sentence)
- State v. Johnson, 93 Ohio St.3d 240 (Ohio 2001) (definitions and requirements for aiding and abetting/complicity)
- State v. Awan, 22 Ohio St.3d 120 (Ohio 1986) (credibility determinations rest with the trier of fact)
- State v. Foster, 109 Ohio St.3d 1 (Ohio 2006) (sentencing statutes require consideration, not factual findings, for R.C. 2929.11 and 2929.12)
- State v. Marcum, 146 Ohio St.3d 516 (Ohio 2016) (appellate standard under R.C. 2953.08(G)(2) for vacating or modifying felony sentences)