STATE OF OHIO v. TANNER MARCUM
Case No. 2024 CA 0001
COURT OF APPEALS COSHOCTON COUNTY, OHIO FIFTH APPELLATE DISTRICT
July 12, 2024
2024-Ohio-2653
Hon. W. Scott Gwin, P.J.; Hon. John W. Wise, J.; Hon. Andrew J. King, J.
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2023 CR 0035. JUDGMENT: Affirmed.
For Plaintiff-Appellee
KATELYNN R. DAVIS
318 Chestnut Street
Coshocton, OH 43812
For Defendant-Appellant
TODD W. BARSTOW
261 West Johnstown Road
Suite 204
Columbus, OH 43230
{1} Defendant-Appellant Tanner Marcum appeals the December 7, 2023 judgment of conviction and sentence of the Coshocton County Court of Common Pleas. Plaintiff-Appellee is the State of Ohio. We affirm the trial court.
Facts and Procedural History
{2} This matter arose as the result of a controlled methamphetamine buy. In March of 2023, Licking County Sheriff‘s Department Sergeant Greg Collins and Coshocton County Sheriff‘s Department Detective Eric DeMattio and Sergeant Seth Andrews were investigating drug activity in Coshocton County. Collins is a sergeant with the Central Ohio Drug Task Force (CODE), and DeMattio and Andrews are members of CODE. They were working with confidential informant Ryan Neighbor who became a confidential informant in order to obtain a more favorable outcome of his own drug charges.
{3} The target of the investigation was Marcum. On March 24, 2023, the CODE officers directed Neighbor to meet them and the Coshocton County Sheriff‘s Office. Where Neighbor and his vehicle were searched. Neighbor was then instructed to drive to a parking lot at River View High School to meet Sergeant Collins and Detective DeMattio. Once at the school, Neighbor and his vehicle were searched again. Neighbor was then fitted with an audio transmitter and enough buy money to purchase an ounce methamphetamine. As Neighbor made contact with Marcum, Collins and DeMattio stayed nearby listening to the entire interaction via live feed from the audio transmitter.
{4} Neighbor and Marcum met at Marcum‘s residence. Marcum was in the garage working on a car. Marcum and Neighbor left the home to go to Shopwise to get
{5} Neighbor then returned to River View High School where he and his vehicle were again searched. The deputies seized a baggie containing the drugs, the remaining buy money, and recording equipment. The drugs were sent to the Central Ohio Regional Crime Lab. The forensic scientist who examined the drugs determined the baggie contained 7.4375 grams of methamphetamine which is greater than bulk amount, but less than five times the bulk amount.
{6} As a result of these events, on April 21, 2023, the Coshocton County Grand Jury returned an indictment charging Marcum with one count of aggravated trafficking in drugs, a felony of the second degree. The charge included a school zone specification.
{7} Marcum pled not guilty and elected to proceed to a jury trial which began on November 30, 2023. The state presented evidence from Sergeant Collins, Detective DeMattio, Neighbor, and the forensic scientist who weighed and tested the drugs. Jurors also heard the recording of the drug buy and conversation between Neighbor and Marcum, and viewed a map of the route the men took to and from Shopwise which
{8} Marcum timely filed an appeal and the matter is now before this court for consideration. He raises one assignment of error as follows:
I
{9} “THE TRIAL COURT ERRED AND DEPRIVED APPELLANT OF DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE SECTION TEN OF THE OHIO CONSTITUTION BY FINDING HIM GUILTY OF AGGRAVATED TRAFFICKING IN DRUGS, AS THAT VERDICT WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE AND WAS ALSO AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
{10} In his sole assignment of error, Marcum argues his conviction on the specification is against the sufficiency and manifest weight of the evidence. We disagree.
{11} On review for sufficiency, a reviewing court is to examine the evidence at trial to determine whether such evidence, if believed, would support a conviction. State v. Jenks, 61 Ohio St.3d 259 (1991). “The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” Jenks at paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307 (1979). 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 witnesses and determine “whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and
{12} Marcum was charged with one count of aggravated trafficking in drugs pursuant to
{13} Marcum challenges only his conviction on the specification, arguing the transaction took place in his garage, which is outside a school zone, and not at the intersection of Blissfield Road and Railroad Street, which is in a school zone.
{14} In a single-paragraph argument, Marcum appears to suggest Neighbor‘s testimony was untrue and motivated by law enforcement concerns. He suggests that because the officers were anticipating a buy volume constituting a second-degree felony, and because the buy ended up being for a lesser amount than anticipated, that the buy “had to occur in a school zone” in order for the offense to be a felony of the second degree. Brief of Appellant at 2.
{15} In support of this theory, Marcum points to Neighbor‘s post-buy written statement arguing it demonstrates the buy happened in the garage. At trial, counsel for Marcum asked Neighbor to read that statement to the jury:
On March 24, 2023, I met with Detective DeMattio and Collins from CODE Task Force. I was wired, searched and the vehicle was searched. Prerecorded buy money and to purchase a quarter ounce of meth from Tanner Marcum. I drove to Warsaw, Township Road 31. Made contact with Tanner, and I gave him buy money for the meth. And then left and met back with detectives where I gave them the meth and wire and then searched and had vehicle searched.
{16} Transcript of trial (T.) 176.
{17} The written statement does not indicate where the actual transaction took place. At trial, Neighbor testified the sale took place as they approached and drove through the intersection of Blissfield Road and Railroad Street. T. 172. Moreover, the state played a recorded telephone conversation Marcum made while in jail wherein Marcum claimed that the sale occurred in the garage. But when he was incorrectly told that the garage was in the school zone, he responded, “Okay, I don‘t know where it happened at.” T. 207-210.
{18} Marcum appears to argue that the alleged conflict between Neighbor‘s written statement and his trial testimony renders his testimony incredible. It is well settled, however, that the credibility of witnesses and conflicts in evidence are matters for the trier of fact to sort out. The jury as the trier of fact was free to believe all, part, or none of any witness‘s testimony. State v. Antill, 176 Ohio St. 61, 67 (1964). It is the province of the jury to determine where the truth likely lies when confronted with conflicting statements. State v. Hunt, 2013-Ohio-5326 (10th Dist.) ¶ 91.
{20} The judgment of the Coshocton County Court of Common Pleas is affirmed.
By King, J.,
Gwin, P.J. and
Wise, J. concur.