State v. Marcum

[Cite as State v. Marcum, 2017-Ohio-7517.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 27059
:
v. : T.C. NO. 14-CR-164A/B
:
LISA MARCUM : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:

...........

OPINION

Rendered on the ___8th ___ day of _____September_____, 2017.

...........

ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee

THOMAS M. KOLLIN, Atty. Reg. No. 0066964 and NATHAN D. BOONE, Atty. Reg. No.
0095986, 2372 Lakeview Drive, Suite H, Beavercreek, Ohio 45431
Attorneys for Defendant-Appellant

.............

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
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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
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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
 -4-

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
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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
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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
 -7-

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
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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
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“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
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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
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$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
 -12-

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
 -13-

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
 -14-

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.”
 -15-

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
 -16-

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
 -17-

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
 -18-

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.
 -19-

{¶ 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
 -20-

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.
 -21-

{¶ 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.
 -22-

{¶ 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
 -23-

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

Montgomery County Probate Court named Marcum the executor of William’s estate, and

that for financial reasons he chose not to contest the will appointing Marcum.

{¶ 48} Rebekah Jo Barber testified that she previously worked as a police officer

in the Phillipsburg Police Department. Barber stated that she was working on April 19,

2013 as a police officer from 3:00 or 4:00 p.m. to between 1:00 and 2:00 a.m. She stated

that she was dispatched to the Stambacks’ home at 16 Walnut Street “on a criminal

trespass.” Barber stated that when she arrived, William, an Adult Protective Services

representative, Schaurer, his wife, another caregiver, and another police officer were

present. Barber stated that Marcum was not present but that she made contact with

Marcum via telephone and met with her later in the day at the police department, along
 -24-

with Marcum’s daughter.

{¶ 49} Barber stated that Marcum and her daughter were trespassed from the

Stambacks’ home. She stated that Christina Wiggins and Marcum understood that “we

were telling them not to reappear back on that property at 16 Walnut. And they signed the

document[s].” Barber stated that she met with Marcum again around April 26, 2013, at

the police department. Barber stated that Marcum asked “to come by and deliver

documentation for checks that had been written that she had stated that other people had

stolen from her, as well as other documentation such as the deed to the house and the

[p.o.a.] paperwork.” Barber stated that Marcum advised her that she had hired Right at

Home to care for the Stambacks. She stated that she recognized State’s Exhibit 23 as

the Right at Home services agreement that Marcum presented to her on April 26, 2013,

and Barber stated that she initially noted the agreement “wasn’t even in Ms. Marcum’s

name. It was a Kathleen Ely * * * that signed it.”

{¶ 50} Glen Hughes testified that he is a notary commissioned by the State of

Ohio. He stated that he knows Marcum because he “used to own a grocery store and

she used to come in with Gary Williams.” Hughes stated that he used to notarize

documents for Marcum once or twice a year, and that he notarized a car title for her on

March 12, 2013. Hughes identified State’s Exhibits 30 and 31 as the front and back of

the certificate of title he notarized for Marcum. He stated that Willa was listed as the owner

on the front of the title for a 2008 Chevy Cobalt, that the mileage was listed as 80, and

that the purchase price was $15,956.45. Hughes stated that a portion of the back side of

the certificate of title was already filled out when Marcum presented it to be notarized,

namely the portion identifying Marcum as the buyer with an address of 16 Walnut Street,
 -25-

a purchase price of $100.00, and Willa’s printed name, signature and address. According

to Hughes, Marcum also presented Willa’s p.o.a. and signed the certificate of title in his

presence. He stated that Marcum advised him that the car was a gift from a couple she

provided healthcare for in Phillipsburg.

{¶ 51} Hughes stated that Marcum subsequently asked him to notarize a deed to

a residence in Phillipsburg, and that he refused to do so because Marcum “had the power

of attorney for one and not the other and it just didn’t feel right. Something was wrong

about it. It didn’t look right to me.” He stated that Marcum told him that the deed was a

gift “for doing such a good job with home healthcare.” He stated that he returned the

deed to Marcum.

{¶ 52} Hughes stated that he also notarized an Odometer Disclosure Statement

for Marcum on May 13, 2013, which he identified as State’s Exhibit 89. He stated that

Willa’s name appears on the statement as the seller of the 2008 Chevy Cobalt, and that

he remembered the car from the title he notarized.

{¶ 53} Marquis Sansom testified that he is the downtown supervisor for the Auto

Title Division of the Montgomery County Clerk of Courts. He identified State’s Exhibit 32

as a copy of Marcum’s certificate of title for the Chevy Cobalt. He stated that the certificate

of title was issued on April 20, 2013. Sansom testified that an issue arose with the

odometer on the Cobalt, and he identified State’s Exhibit 88 as Marcum’s May 13, 2013

affidavit for the odometer on the vehicle, reflecting mileage of 33,981 miles. Sansom

further identified State’s Exhibit 89. Sansom identified State’s Exhibit 98 as a record

reflecting the current and previous owners of the Cobalt. He stated that the record

reflects that Willa was the first purchaser of the car, and he stated that Marcum’s name
 -26-

next appears on the record, followed by CarMax Superstores, Inc. He stated that the

record reflects that the car was transferred to CarMax on May 13, 2013.

{¶ 54} Jill McConnell testified that she resides in Kettering, does not work outside

the home, and has a felony conviction for possession of heroin. She stated that Greg

Graley is her former boyfriend. McConnell stated that she met Marcum through Graley.

She stated that on the morning of April 23, 2013, she was at the home of one of Graley’s

friends when Graley woke her up in the morning and told her that he needed her to cash

a $600.00 check made out by Marcum. McConnell stated that she took the check to a

Check Smart location near Dayton with Marcum and Graley, and “they wouldn’t cash the

check because [Marcum] was the power of attorney and her name wasn’t actually on the

check.” McConnell identified State’s Exhibit 35 as the April 17, 2013 check on the

account ending in 4480 in the Stambacks’ name, made out to her. On the memo line,

“Caregiver 4 days” is written, and McConnell testified that she is not a caregiver, and that

she has never met the Stambacks. She stated that Marcum signed the check.

{¶ 55} McConnell testified that after she advised Marcum that she could not cash

the check, Marcum drove McConnell to a residence where she retrieved her p.o.a.

documentation. According to McConnell, they returned to the Check Smart location.

McConnell stated that Marcum “went up with me and she was actually talking to the lady

and * * * she gave her the paperwork and * * * it was approved for 1200. And so [Marcum]

took the check and wrote out another one for the 1200 and then handed the check to the

lady.” McConnell identified State’s Exhibit 36 as the check, dated April 17, 2013, that

Marcum signed and presented for $1,200.00 on the Stambacks’ account ending in 4480.

On the memo line, “caregiver 6 days” is written. She stated that the check was cashed,
 -27-

and that she gave all of the cash to Marcum when they returned to the car. She stated

that Marcum gave her $100.00 and gave Graley some money and kept the rest.

McConnell stated that the money she received was not for any work that she performed.

{¶ 56} Joseph Schweiterman testified that he is a Montgomery County deputy

sheriff. He stated that on March 19 – 20, 2013, he was working in Phillipsburg, and that

he responded to the Stambacks’ home on a report of fraud called in by Marcum. He

stated that when he arrived, Willa was in bed, William was sitting in a chair, and Marcum

and Christina Wiggins were present. She stated that Marcum advised him that she used

to work for a home healthcare company for the Stambacks but had grown close to the

couple and “she was still there helping them out.” He stated that Marcum provided a

written statement, which he identified as State’s Exhibit 87. The statement provides that

the Stambacks’ niece “was robbing them.” He stated that Marcum indicated on the

statement that her address is 410 Snyder Road. Schweiterman testified that he also

responded to the Stambacks’ address for a welfare check on April 10, 2013. He stated

that upon arrival he initially made contact with an LPN who was there taking care of the

Stambacks named Letrice, who advised him to speak to Harkenrider, her supervisor.

Schweiterman stated that he proceeded to the Phillipsburg police station to meet

Harkenrider, and that she provided a written statement. Schweiterman stated that he

again responded to the Stambacks’ address on April 16, 2013 after Willa was found alone

in the home. Schweiterman stated that Brandon Mitchell was later found hiding in the

bathroom of the home and arrested on two active warrants after Willa was taken to the

hospital. On cross examination, Schweiterman stated that on March 19 -20, 2013,

Marcum advised him that people were stealing money from the Stambacks, and that she
 -28-

mentioned Tonja Driggs to him, who was a previous healthcare provider. He stated that

he wrote a report and provided it to detectives to investigate Marcum’s allegations.

{¶ 57} James Roy Combs, Jr. testified that he is unemployed, and that he “scraps”

for money. He stated that he has been acquainted with Gary Williams for a long time,

that Williams was married to Marcum, and that they lived on Snyder Road. He testified

that he was asked to sign documents by Williams, and that Marcum presented documents

for him to sign at the Snyder Road address. He identified State’s Exhibits 21 and 22, the

Addendums to Willa’s and William’s wills, and he stated that Marcum asked him to sign

the documents as a witness and date them, and he identified his signatures thereon and

stated that they were signed on March 3, 2013. Combs testified that he did not witness

Willa and William sign the addendums. He stated that he did not witness the other

signature on the addendums of witness Renee Frost. Combs identified as State’s Exhibit

82 a change of beneficiary form that he signed and dated as a witness, that also bears

William’s signature, as well as that of Renee Frost, and he stated that he did not witness

William’s or Frost’s signature thereon. Combs stated that Marcum advised him to date

the document March 10, 2013.

{¶ 58} Gregory Scott Graley testified that he has three prior felony convictions for

burglary, possession of drugs and having weapons while under disability, and that he is

currently in custody on a pending matter. He stated that he became acquainted with

Marcum through Marcum’s daughter. Graley stated that Jill McConnell is his former

girlfriend. Graley stated that in March of 2013, Marcum offered to give him a Chevy

Cobalt. He stated that Marcum owed him around $2,000.00 at the time. Graley

identified State’s Exhibits 30 and 31 as the certificate of title to the Cobalt that Marcum
 -29-

gave him. Graley stated that he took possession of the car and title, which he testified

he valued at $7,000.00. Graley stated that he never filed the title. He testified that one

night Marcum “got into a fight with a friend of hers out in front of my apartment,” and that

as a result, the Dayton Police towed the Cobalt. Graley stated that Marcum “came and

got the title back from me, and got it out of tow.” He stated that Marcum never returned

the car to him.

{¶ 59} Graley stated that in April of 2013, Marcum contacted him and told him that

she had some money for him. He stated that he met Marcum and that she gave him

some checks, but that he “really wasn’t interested in them.” He testified that his ID had

expired and he did not think he would be able to cash the checks. Graley stated that he,

McConnell and Marcum then went to “the check-cashing place on Linden,” at 11:00 p.m.

or 12:00 a.m., and that a check made out to McConnell could not be cashed because

Marcum lacked the p.o.a. paperwork. He stated that they returned to cash the check

after Marcum retrieved the paperwork in Phillipsburg, and that McConnell cashed a check

for $1,200.00. Graley stated that Marcum then handed him $1,000.00. He identified

State’s Exhibit 36 as the check that McConnell cashed on the Stambacks’ account ending

in 4480.

{¶ 60} Graley stated that the next day Marcum again contacted him and told him

that she had more money. He stated that he met her “at the bar on Dixie,” and she made

a check out to him and signed it in his presence. Graley identified State’s Exhibit 38 as

the check he received from Marcum. The check is drawn on the Stambacks’ account

ending in 4480, in the amount of $636.42, and “car repair” is written on the memo line.

Graley stated that he cashed it at a Check Smart on Needmore Road. He stated that
 -30-

Marcum drove him there in the Cobalt. Graley testified that he does not know the

Stambacks. Graley stated that he worked on the brakes and spark plugs of the Cobalt

and changed the oil when he had possession the car, because he “drove it like crazy,”

but that he did not do any work on the car for the Stambacks.

{¶ 61} Katherine Wiggins testified that Marcum is her husband’s ex-wife, and that

she has known Marcum for 14 years. Wiggins testified that she has experience in home

healthcare, and that in March of 2013, Marcum contacted her about an employment

opportunity. Wiggins stated that she agreed to work at the Stambacks’ residence for

$100.00 for a 24-hour shift. She stated that when she went to the residence the first time

to meet the Stambacks, Marcum described the work that was required, and that she

worked her first shift a couple of days later. She stated that at the time, Marcum’s

daughter had a room in the back of the home “to make sure that somebody was there

twenty-four seven.”

{¶ 62} Katherine stated that she observed Brandon Mitchell at the residence a

couple of times, and that she did not observe him providing healthcare to the Stambacks

or performing roof or car repairs for them. Katherine identified State’s Exhibits 27, 28,

and 29 as checks she received for providing healthcare. State’s Exhibit 27 is dated

March 29, 2013, for $300.00; State’s Exhibit 28 is dated April 7, 2013, for $1,400.00; and

State’s Exhibit 29 is dated April 15, 2013, in the amount of $270.00. All the checks are

drawn on the Stambacks’ account ending in 4480 and signed by Marcum as p.o.a.

Katherine stated that the amount of $1,400.00 on State’s Exhibit 28 represented money

due to her and Christina Wiggins combined on one check, and that after she cashed it

she paid Christina. Katherine stated that when she tried to cash State’s Exhibit 29, a
 -31-

“stop payment” had been placed on the check and she was unable to cash it. Katherine

stated that Marcum advised her not to tell the Stambacks that she was being paid to care

for them. She stated that she went to the Stambacks’ home at least ten times, and that

Marcum was more often absent than present. Katherine stated that she was concerned

that Marcum was subjecting the Stambacks to financial abuse.

{¶ 63} Melissa Gillette testified that she has a felony record and is currently in

custody on a probation revocation. She stated that she met Marcum and her daughter

through friends in March of 2013. She stated that in April 2013, Marcum asked her to

take care of the Stambacks. Gillette stated that she has no healthcare training. She

stated that she agreed to do it. Gillette stated that Marcum also told her she held the

Stambacks’ powers of attorney, and that she “was going to be the beneficiary of their

estate, their house, their assets.” Gillette testified that she observed Christina Wiggins

at the residence and that Marcum told her she was staying there. She stated that she

also observed Christina’s boyfriend Brandon Mitchell there.

{¶ 64} Gillette testified that she was in the Stambacks’ home for two hours, and

that she was told to “sit and listen and make sure none of the machines went off, any

alarms went off or sounds from the machines.” She stated that she was told to call

Marcum, and not 911, if an alarm sounded. Gillette stated that she was told “I was to be

paid $10 an hour and I was told that I would be paid for a full eight hours.” She stated

that when Marcum returned to the home, she drove Gillette home without paying her.

Gillette stated that the same scenario occurred a second time, for about two hours. She

stated that Marcum again did not pay her.

{¶ 65} Gillette stated that Marcum called her on May 3, 2013 and asked her if she
 -32-

“had a valid ID or if I owed the check cashing places any money.” After telling Marcum

that she did have a valid ID and did not owe any money, Gillette testified that Marcum

“told me if I cashed a check for her, that not only would I be paid the money she owed me

but she would pay me for cashing the check.” She stated that Marcum then drove to

Check N Go on North Main Street. She stated that Marcum wrote a check in her

presence, and she identified State’s Exhibit 61 as the check in the amount of $1,580.00,

dated May 3, 2013, that appears to be signed by “William W. Stamback” on the

Stambacks’ account ending in 3639. “Caregiver 2 wks 14 days” is written on the memo

line. Gillette stated that she did not provide care for two weeks or 14 days. There is a

handwritten phone number at the top of the check, namely (937) 542-9090, and Gillette

testified that Marcum wrote the number, and that it is Marcum’s phone number. Gillette

stated that she observed Marcum write William’s signature on the check, and that no one

else was present at the time. Gillette stated that when she returned to the car with the

cash, she gave it to Marcum, and Marcum gave her $300.00 and drove her home.

{¶ 66} Gillette stated that she was scheduled to testify against Marcum at an

earlier trial date, and that she was arrested shortly before the trial was to begin on a

probation violation and held in the Montgomery County Jail. She stated that she

provided testimony via deposition. Gillette stated that while she was in jail, on May 17,

2015, Marcum came to visit her. She stated that she spoke to Marcum over a phone

through a glass window. Gillette stated that Marcum knew she was scheduled to testify

against her at her trial, and that Marcum “asked me to testify that I had worked for two

weeks.” Gillette testified that she told Marcum “that I had already given my testimony that

I had worked for two days.” Gillette stated that Marcum “said that she needed me to talk
 -33-

with her attorney,” and that “she would send him to speak with me.” According to Gillette,

Marcum “told me that she would put a hundred dollars on my books,” or commissary

account at the jail. She identified State’s Exhibit 85 as a record of her commissary

account, and she testified that it reflects that Byron Boykin deposited $100.00 to the

account on May 17, 2015.

{¶ 67} Renee Hensley testified that she is employed by Hospice of Dayton, and

that she was formerly known as Renee Frost. Hensley stated that Marcum was a friend

whom she has known since 1997. Hensley stated that Marcum contacted her in March of

2013 and said that she “needed a signature for somebody that was not a family member.”

Hensley stated that Marcum asked her and her daughter “to come out and help care for

some people that she was caring for but neither one of us did.” Hensley stated that she

and Marcum sent text messages to each other, and that she recently provided the

messages to law enforcement. Hensley identified State’s Exhibit 91 as an accurate copy

of the messages between her and Marcum. She stated that the messages were about a

signature. When shown State’s Exhibit 21, the addendum to Willa Stamback’s will,

which contains the signature of “Renee Frost,” dated March 3, 2013, Hensley stated, “[i]t

resembles my signature but it’s not.” She stated that she was not using the last name

Frost at the time, and that she did not sign the document or witness the other signatures

thereon. When shown State’s Exhibit 22, the addendum to William’s will, which also

contains the signature of “Renee Frost,” dated March 3, 2013, Hensley stated that she

did not sign the document or witness the other signatures thereon. Finally, when shown

State’s Exhibit 82, the “Change of Beneficiary” form for William’s life insurance policy

designating Marcum as the sole beneficiary of the policy following Willa’s death, which
 -34-

reflects the signature of “Renee Frost,” dated March 10, 2013, Hensley stated that she

did not sign the document or witness the other signatures thereon.

{¶ 68} Hensley testified that in text message number 6 on State’s Exhibit 91,

Marcum sent her a picture of Hensley’s “signature,” and that in text message number 16,

she sent a photograph of the front of the home of “the people where she was taking care

of.” (Sic). Hensley stated that she has never been to the home or met the Stambacks.

She stated that she received the pictures on October 25, 2013. When asked why the

pictures were sent to her phone, Hensley replied, “I guess so I could say that I did it. I

mean, that I had been there and that was the signature that was signed.” When asked if

Marcum subsequently spoke to her about the signatures, Hensley stated that Marcum

said “she was sorry. That she didn’t mean to drag me into this.”

{¶ 69} Michael Berninger testified that he is employed by Ohio National Financial

Services in the life insurance claims group. Berninger stated that the beneficiary

designation on a policy governs the payment of the proceeds on the policy. He identified

State’s Exhibit 80 as “part of a policy application” in William’s name, and State’s Exhibit

81 as a “Designation of Beneficiary and Settlement Method Agreement” for the policy,

dated July 12, 1990, which identifies “Kathleen Ely, Vickie Hilgeford, Kelly Schaurer, Bart

Lawhorn, Brent Lawhorn and Schott Schaurer, Nieces and Nephews” as contingent

beneficiaries.

{¶ 70} Berninger testified that he received a phone call from Marcum on August

28, 2013, and that he “told her there’s a pending claim. I don’t know if we identified the

beneficiaries at that time but she indicated to us that the nieces and nephews that had

been named * * * had cleaned out bank accounts and so forth.” He stated that it was
 -35-

relayed to him that Marcum identified herself to a customer service representative “as the

adopted daughter” of the Stambacks. Berninger stated that Marcum told him that “she

had documents that could show that the accounts were being cleaned out.” He stated

that he told Marcum he would “do a fair review of the claim” and to send him the

documents she had.

{¶ 71} After reviewing notes he took of the call with Marcum, Berninger stated that

Marcum provided the following phone number to him: 937-542-9090. He stated that he

received faxed copies of Willa’s and William’s wills from an attorney working for Marcum.

Berninger stated that State’s Exhibits 17 and 18 are accurate copies of the wills he

received. He stated that both wills named Marcum as the contingent beneficiary.

Berninger stated that he also received Exhibits 21 and 22, the addendums to the wills,

via fax, which he identified. Berninger stated that he anticipated receiving from Marcum

“some sort of documents that the nieces and nephews were not entitled to the benefit

even though they had been named.”

{¶ 72} Berninger stated that he had several subsequent conversations with

Marcum, and that he told her that the payout on the life insurance policy was governed

by the beneficiary designation on the policy. He stated that Marcum told him, “I don’t

think you got the right thing.” He stated that he then received via fax “kind of a homemade

change of beneficiary form.” He testified that State’s Exhibit 82, bearing the purported

signatures of Renee Frost and James Combs as witnesses, is an accurate copy of what

he received. He testified that ultimately “[w]e paid the named beneficiaries, the nieces

and nephews.” Berninger stated that the address Marcum provided to him was 410 N.

Snyder Road, Dayton. On cross examination, Berninger stated that the total paid to the
 -36-

contingent beneficiaries listed in the July 12, 1990 policy was $19,300.00.

{¶ 73} Rachel Ferrara testified that she is an associate attorney at Smith, Rolfes

and Skavdahl Company LPA in Cincinnati, practicing “mostly insurance defense.” Ferrara

stated that Marcum “presented a claim under an insurance policy and I took examination

under oath testimony from her.” She stated that the policy was issued by the National

Mutual Insurance Group, which is a subsidiary or affiliate of Ferrara’s client, Celina

Insurance. Ferrara stated that Marcum filed a “theft-loss claim for personal property.”

According to Ferrara, Marcum was residing at 16 West Walnut Street at the time, and

“she was seeking coverage for these personal property items that were stolen from the

residence she was residing in.”

{¶ 74} Ferrara stated that the named insureds on the policy were Willa and William

Stamback. Ferrara stated that Marcum “described [the Stambacks] as her parents and

she was their daughter and that her daughter, Christina was their granddaughter.”

Ferrara testified that Marcum “provided several different stor[ies] with regard to how she

became acquainted first with the Stambacks and then took over their healthcare needs.”

{¶ 75} Ferrara testified that Marcum “said she was not paid by the Stambacks

when she was providing care for them herself. She was paid in some shape or form by

Right at Home when she was in their employ but was not paid by the Stambacks.” When

asked if Marcum reported receiving gifts from the Stambacks, Ferrara stated that Marcum

“recounted receiving a Christmas gift in the amount of a thousand dollars * * * as well as

the Stambacks’ vehicle that was given to her in * * * March 2013.”

{¶ 76} According to Ferrara, in the course of her examination, she learned that

Marcum obtained the Stambacks’ powers of attorney. When asked if she spoke to
 -37-

Marcum about William’s relationship to Willa, Ferrara stated that Marcum “said that it was

very clear William loved Willa very much and that he would sign anything if he thought it

was for Willa. You could use his wife to get him to do anything.” According to Ferrara,

Marcum stated that she did not become aware that she was the contingent beneficiary

on the Stambacks’ wills until after the estate was submitted to probate.

{¶ 77} When asked if Marcum discussed Brandon Mitchell, Ferrara stated that “Mr.

Mitchell had been dating her daughter, Christina for one to two weeks and * * * had been

staying at the Stambacks’ home, I believe on the date of the recorded theft.” Ferrara

stated that Marcum testified that she learned that her powers of attorney had been

revoked from the Phillipsburg police after she was released from custody in April of 2013,

and that she “indicated that she was unable to access any of the Stambacks’ bank

accounts.” Ferrara stated that Marcum “quite often referred to the Stambacks’ nephew,

Mr. Schaurer * * * having access to various accounts and taking money from those

accounts.”

{¶ 78} On cross examination, Ferrara stated that Marcum reported that

“electronics, clothing, possible furniture” had been stolen from the Stambacks’ home.

She stated that the claim was reported after the Stambacks died, and that Marcum was

acting as the legal representative of the estate. Ferrara testified that she obtained

“probate documentation indicating that [Marcum] had been appointed the fiduciary of the

estate.” She stated that Marcum’s claim for an amount between $20,000.00 to $40,000.00

was denied on April 16, 2014. She stated that Marcum’s deposition occurred on April 2,

11, and 14 or 15, 2014.

{¶ 79} Byron Boykin testified that on May 17, 2015, he bailed his son out of the
 -38-

Montgomery County Jail, and that at that time a female individual unknown to him, whom

he identified as Marcum in court, approached him and asked him if he had identification.

Boykin stated that Marcum told him that she left her identification at home and “wanted

to put money on her daughter’s books.” He stated that Marcum told him that she would

pay him to do it, he agreed, and that Marcum “gave me like five bucks.” Boykin stated

that he used his driver’s license to deposit $100.00 for Marcum into the account of an

unknown person. When shown State’s Exhibit 85, the resident transaction details record

for Gillette, Boykin stated that he does not know Melissa Gillette.

{¶ 80} At the conclusion of the State’s case, defense counsel stipulated that

CarMax purchased the Stambacks’ Cobalt for $7,500.00. The court then overruled

Marcum’s Crim.R. 29 motion for acquittal.

{¶ 81} Jay Carter testified that he is an attorney practicing in Dayton, and that

Marcum is his client. He identified State’s Exhibit 17 as William’s February 20, 2013 will

that he filed in Montgomery County Probate Court, as well as State’s Exhibit 18 as Willa’s

February 20, 2013 will that he filed in the same court. Carter stated that he became

involved with Marcum in July or August of 2013. Carter stated that the wills were

admitted to probate and “there has not been any type of will contest.” He testified that

Marcum is the executor of the Stambacks’ estates. When shown State’s Exhibits 19 and

20, William’s and Willa’s April 22, 2013 wills, Carter stated that he became aware of them

“through an attorney in Troy by the name of Gary Weaks,” who represented Scott

Schaurer. Carter stated that State’s Exhibits 19 and 20 have not been presented to the

probate court for approval as superseding wills to those filed by him. Carter stated that

he spoke to Schaurer on the phone, and that Schaurer “was advocating the authenticity
 -39-

of State’s Exhibit 19 and State’s Exhibit 20.”

{¶ 82} Carter testified that when he became aware of the wills, he also “became

aware of a guardianship that was open in probate court” for William. He stated that once

he “became aware of the guardianship, I went to probate court to check the file of the

guardianship specifically to look at the * * * date of the doctor’s evaluation.” Carter

testified that “the date of the evaluation was dated one day prior to the date of State’s

Exhibit 19.” Carter testified that he then contacted Weaks and “indicated my knowledge

about the guardianship being filed, indicated my knowledge of the date of the doctor’s

evaluation and Gary said he would get back to me.” Carter stated that Weaks

subsequently, at the end of August or September of 2013, advised him that “he was not

going forward in terms of the presentation of these wills and had returned the originals to

Mr. Schaurer.”

{¶ 83} Carter testified that at that time, he “filed a motion in probate court for the

production of the wills.” He stated that his “initial motion was directed at Gary Weaks.

Once he received that motion that’s when he indicated he returned the original to Scott

Schaurer. Then that motion was directed to Scott Schaurer.” According to Carter, there

“was a hearing that Scott Schaurer was mandated to attend * * * and at that hearing, Scott

Schaurer produced the two original wills of state’s Exhibit 19 and state’s Exhibit 20.”

Carter stated that “there was a rather complicated question as to how these wills were

going to be presented because no one wanted to present them.” Carter testified that

Schaurer was named as the executor in the April 22, 2013 wills, and that he did not want

to present them. Carter stated that the probate court ordered Schaurer to turn the wills

over to him. Carter testified that he “tried to figure out a way to possibly get them admitted
 -40-

because there’s an issue of later-dated wills.” Carter stated that he “wanted to try to

rectify that problem but because no one wanted to present the wills, I finally put them on

deposit in Montgomery County probate court” in the “safekeeping division,” where they

remain unpresented. Carter stated that since Willa predeceased William, William’s will

is controlling, that the contingency occurred, and Marcum is the sole beneficiary.

{¶ 84} On cross examination, Carter stated that he did not file State’s Exhibit 21

and 22, the addendums to the Stambacks’ wills. He stated he submitted documents for

Marcum to Ohio National Financial for payment on William’s life insurance policy. Carter

testified that he had not yet done an accounting of the estate pending the outcome of

Marcum’s trial. He stated that “if there’s a conviction in this matter, Ms. Marcum would

probably be removed as executor and we would have to filing [sic] an accounting from

the date that she was named as fiduciary up until the date that she was removed.” He

stated that an executor has a fiduciary duty to the estate even if the executor is the sole

beneficiary. After viewing State’s Exhibits 73, 74 and 75, checks made out to cash in an

aggregate total of $2,260.00, on the estate account ending in 0037, and signed by

Marcum on August 12, 16, and 22, 2013, Carter was asked if cash withdrawals make an

accounting more difficult. Carter responded, “Yes, but I mean, it couldn’t be justified.”

Carter stated that he was not present when the wills he presented to probate were signed.

He stated that beyond his knowledge of William’s guardianship, he has no direct

knowledge of William’s mental condition when he signed any documents.

{¶ 85} Marcum testified on her own behalf. Regarding the bribery offense,

Marcum stated that Gillette asked to see her and that Attorney Barry Galen advised

Marcum that it was okay to go visit her at the jail. Marcum stated that she asked Gillette
 -41-

why she was lying and asked her to tell the truth, and that Gillette stated that “[Detective]

Shaw was hounding her continuously and that it wouldn’t stop and that she just wanted it

over with and she was about to get the Monday program out of it.” Marcum testified that

she “begged” Gillette to tell the truth, that Gillette asked her to put money on her

commissary account because she was “starving,” and that Marcum told Gillette that she

would not pay her to tell the truth. Marcum stated that Gillette then asked to “borrow a

hundred dollars.” Marcum stated that she “didn’t think anything about it.” She stated that

her purse was in her car and since she did not have her identification, she asked “that

gentleman in there to put that money on the books.” Marcum denied giving Gillette

money to alter her testimony, and she stated that the money had nothing to do with

Marcum’s request that Gillette speak to Marcum’s lawyer. Marcum stated that Gillette

“never worked out there at the Stambacks’.”

{¶ 86} When asked how she became acquainted with the Stambacks, Marcum

stated that her husband has several friends in the Phillipsburg area, one of whom lived

“right behind the Stambacks’. Her name was Carol and she became a great friend of

mine. And I would walk my dogs up and down the street and help them with their

groceries in and out from their car when they would come home or something and I would

see them. That is how I got to know them.”

{¶ 87} Marcum stated that while on one of her walks, she observed that a nurse

was at the Stambacks’ home, and that she talked to the nurse and learned that she

worked for Right at Home. Marcum stated that she told the nurse that she used to be

employed at Right at Home. Marcum stated that she contacted Right at Home “and

asked for my job back.” Marcum stated that Michael Manes hired her and a week later
 -42-

she went to work for the Stambacks.

{¶ 88} Marcum stated initially, in “August, October, somewhere around there of

2012,” Willa was in Good Samaritan Hospital and that Marcum only provided care for

William. She stated that she cleaned the house, washed the dishes, prepared food, and

transported William to the hospital every day to visit Willa. Marcum stated that she worked

12-hour shifts. Marcum stated that William told her that getting Willa back home was the

most important thing to him. According to Marcum, she told William, “no matter what

we’ll find a way to get her here.” She stated that “[m]e and my daughter is the reason

why she came home.” Marcum testified that “Mr. Stamback was a very cantankerous

person and if you didn’t make Willa happy, he would never be happy. So he fought with

a lot of other care givers and he had fired a lot of other care givers. So I ended up being

the only care giver at that time and he had fought with his niece on a regular basis, which

was Kathy Ely.” Marcum stated William and Ely fought over “[m]oney and Willa because

[Ely] stated that Willa was never coming back home.”

{¶ 89} Marcum stated that William fired Ely as p.o.a. and that she, Manes and

Dean Roberts contacted people in the family, “trying to get them to take POA,” including

Schaurer and “everyone turned us down.” Marcum stated that William “asked me and

begged me and I took it.”

{¶ 90} In order to bring Willa home, Marcum stated that she and her daughter

“had to take a lot of studying and a lot of classes.” Marcum testified that she and her

daughter had to learn how to take care of Willa’s tracheotomy and to use the machines

Willa needed. She stated that Willa had been moved from Good Samaritan to Kindred

Hospital at the time, and that her doctors imposed requirements on her and her daughter
 -43-

for Willa’s release. Marcum testified that when Willa came home from Kindred Hospital,

she was working 24 hours a day at the Stambacks’ home.

{¶ 91} Marcum stated that on or about February 20, 2013, William made an

appointment with Treherne “that I knew nothing about at this time.” She stated that she

was asked to take William to the appointment and did so. She stated that she was asked

to leave the room after Treherne explained the duties of a p.o.a., and that William

executed the powers of attorney in her favor.

{¶ 92} When shown State’s Exhibit 25, the check made out to Melanie Vance on

March 7, 2013 on the account ending in 4480, Marcum stated that Vance was “a worker

that worked there a short period of time.” She stated that she and William signed the

check for “care giving.” Regarding State’s Exhibits 26, 27, 28, 29, Marcum stated that

they are all legitimate checks for work that was actually done at the Stambacks’ home

{¶ 93} Marcum stated that the Chevy Cobalt “was used by all employees that

worked for Right at Home, including myself.” She stated that after she obtained the

powers of attorney, she “didn’t let other care workers use the vehicle to transport around

people in it.” She stated that William offered to give her the car for a birthday present

since she was “doing all the driving for him.”

{¶ 94} When asked about McConnell and State’s Exhibits 35 and 36, the checks

dated April 17, 2013, made out to McConnell for $600.00 and $1,200.00 on the account

ending in 4480, Marcum stated that she met McConnell through Greg Graley and hired

her to help her at the Stambacks’. According to Marcum, “Jill just lasted six days and

she was just really sluggish and late and just acting weird [and] I ended up letting her go

because of the fact and I felt she was on drugs.” Marcum stated that the checks were
 -44-

legitimate and that she and William signed them. Marcum stated that William “would

sign like five or six checks ahead of time for payroll. He would put his signature just in

case * * * that he couldn’t write or he wasn’t around at that time.” Marcum stated that she

“would always just sign under, POA, my name.” When asked by the court if McConnell’s

testimony that she never worked for the Stambacks was “just a straight boldface lie,”

Marcum responded affirmatively.

{¶ 95} When asked about State’s Exhibit 38, the check dated April 17, 2013, made

out to Gregory Graley in the amount of $636.42 on the account ending in 4480, Marcum

stated that the check was for car repair, and that William signed it. Marcum stated that

State’s Exhibit 40, the check dated March 21, 2013, to Brandon Mitchell on the account

ending in 4480, was written after she drove the Cobalt “into the garage and knocked the

whole side of the wall out on it” when it was “snowy out.” According to Marcum, Mitchell

repaired the garage and painted the front part of the Cobalt. She stated that Mitchell

also repaired the Stambacks’ clothes dryer. Marcum stated that she and William signed

State’s Exhibit 40. Marcum stated that State’s Exhibit 41, the check to Mitchell dated

March 26, 2013, in the amount of $63.71, on the account ending in 4480, was written to

reimburse him for groceries that Mitchell had purchased for the Stambacks. Marcum

stated that State’s Exhibit 42, the check to Mitchell dated April 8, 2013, in the amount of

$880.00, on the account ending in 4480, was written after Mitchell repaired the

Stambacks’ roof and gutters and cleaned out their garage. She stated that she signed

the check. Marcum stated that State’s Exhibit 43, the check to Mitchell dated April 15,

2013, in the amount of $1,200.00, on the account ending in 4480, signed by Marcum, was

for the care Marcum’s daughter provided to the Stambacks. She stated that her
 -45-

daughter “always had Brandon cash her checks.”

{¶ 96} Marcum testified that State’s Exhibits 44 and 45 are receipts for purchases

made by her at “Cato’s Closet” at William’s request. Exhibit 44 reflects that Marcum

purchased 27 items on April 8, 2013 and signed an electronic check for $300.38, and

Exhibit 45 reflects that she purchased 23 items on April 13, 2013 and signed an electronic

check in the amount of $206.33. According to Marcum, William “[a]sked me to go out and

pick up some things for his wife and he said a few things for myself if I’d like.” Marcum

stated that she purchased a scarf and a pair of shoes for herself, and the other items that

she purchased were stolen, resulting in the insurance claim. According to Marcum, she

hired Angel Olson, who is her cousin, as a caregiver. She stated that the items she

bought for Willa did not fit and were in a bag in the trunk of the car with the receipts so

she could return them when the bag “disappeared from the trunk of the car.” Marcum

stated that she called Cato’s Closet and advised them that if someone tried to return the

items that they were stolen. Marcum stated that Olson attempted to return the items and

“the police showed up there and confiscated * * * the clothing.”

{¶ 97} Marcum stated that State’s Exhibit 47 is a Walmart receipt in the amount of

$286.36. It is dated April 14, 2013 and lists approximately 27 items of clothing and a

“5PK LTR.” Marcum stated that “this is where Mr. Stamback had me go pick up things

from the store for him and * * * Mrs. Stamback and * * * he said I could pick up anything I

wanted for me but I picked up one thing for me, which was a pack of lighters.” Marcum

stated that State’s Exhibit 47 A reflects her signature on the electronic check for the

purchase.

{¶ 98} Marcum testified that State’s Exhibit 51, her signature card for the account
 -46-

ending in 4480, dated March 15, 2013, reflects when she obtained the Stambacks’

powers of attorney. She stated that the p.o.a. documents were actually signed on

February 22, 2013.

{¶ 99} Marcum stated that State’s Exhibit 53, the check made out to Gary Williams

that appears to be dated April 13, 2013, in the amount of $550.00, on the account ending

in 4480, “is for the deck out back. He had to build the ramp that they required before

Willa could come home from Kindred Hospital.” She stated that Williams is her husband,

and that after getting estimates for the deck and ramp in amounts of $3,500.00 and higher,

“my husband just did it for the 550.”

{¶ 100} Marcum stated that State’s Exhibit 54, the check dated April 15, 2013,

signed by Marcum as p.o.a., in the amount of $1,000.00, made out for cash on the

account ending in 4480, was written because “Willa liked to keep cash in her pocket and

this is what she asked me to go over [and] get her from the bank.” Marcum stated that

Willa “kept a little wallet beside her” for her cash.

{¶ 101} Marcum stated that State’s Exhibit 55, the check dated April 18, 2013,

made out to Marcum for six days of “caregiver pay,” in the amount of $1,200.00, on the

account ending in 4480, “is for my daughter’s pay. She did not have her ID so this is one

that I had to cash for her.”

{¶ 102} Marcum testified that William “purchased a computer because he had liked

how I was doing things on mine * * * .” She stated that “he was watching and he could

see that there was a lot of stuff in there that was not stuff that he had given permission

for.” Marcum stated that there were charges billed for AT&T, for example, and that

William did not have AT&T, as well as other unauthorized charges. Marcum stated that
 -47-

she “disputed them with the bank and I managed to get back $2,800 the first week that I

was in charge, a POA. I got $2,800 back for Mr. Stamback.” She testified that the “bank

gave us the name of who was doing it and then they credited the money back” to the

account due to her investigation.

{¶ 103} Marcum stated that when Schaurer took over as p.o.a., all the Stambacks’

bills were current “other than the [property] taxes had been behind by three years, which

I am still catching up.” She testified that there was $35,000.00 in the account at the time

Schaurer became p.o.a. on May 4, 2013. She stated that when she opened the estate

account, $4,909.63 remained in the account ending in 8128. She stated that she

deposited $3,409.63 into the estate account. Marcum stated that she opened the estate

account on August 10, 2013. She stated that State’s Exhibit 73, a check made out for

cash on the estate account in the amount of $1,100.00 was “to pay for 600 for wills and I

had to put money down for the taxes * * * because they were going to take the house.”

Regarding State’s Exhibit 74 on the estate account for cash, Marcum stated that “a

thousand of this went on towards the taxes and then 300 was on the bills that Scott had

left behind for me to catch up,” as well as payments for water and trash. Regarding

State’s Exhibit 75, a check for cash on the estate account in the amount of $860.00,

Marcum stated that “this was where Vectren was still owed and then the rest of the trash

and water because they were so high because none of it had been paid that whole time

from since I was POA.”

{¶ 104} Marcum denied that her handwriting is on State’s Exhibit 82, the change

of beneficiary form dated March 10, 2013.

{¶ 105} When shown State’s Exhibit 61, the May 3, 2013 check to Melissa Gillette
 -48-

in the amount of $1,580.00, with “Caregiver 2 wks 14 days,” on the memo line and bearing

the phone number 937-542-9090, Marcum testified that she had “no idea” who wrote the

check, and that she did not do so.

{¶ 106} Marcum stated that in March of 2013, a hospice worker “had stolen the

box of prescriptions of William Stamback,” and that she reported it to Officer

Schwieterman and provided a written statement. Marcum stated that she later learned

that the worker was named Tonya Driggs. Marcum stated that Driggs had also been

writing checks on the Stambacks’ account. Marcum stated that she does not know if

Driggs was arrested. Marcum stated that she also contacted Detective Shaw and made

a written report after July 20, 2013. She stated that she did not hear from Shaw until she

was charged herein. She stated that on April 17, 2013, she was arrested for jaywalking,

and that when she got out of jail the next day, she was contacted by the Phillipsburg

police who told her that she was banned from the Stambacks’ property. She stated that

at the time William and Willa were in the hospital.

{¶ 107} On cross-examination, Marcum testified that William was not her father

“in the court of the law but to me he was.” Marcum testified that she referred to herself

as “the only daughter [the Stambacks] had” in a letter to Ohio National Financial Services.

She acknowledged that she testified under oath before Ferrara that the Stambacks were

her parents and that her daughter was the Stambacks’ granddaughter. She

acknowledged that in conversations with the Phillipsburg police that she referred to the

Stambacks as her parents.

{¶ 108} Marcum testified that she has resided at 410 and 420 North Snyder Road.

She denied ordering checks online on the Stambacks’ account for delivery at 420 N.
 -49-

Snyder Road. She stated, “I can say that my lap top had been stolen during the robbery

and my cousin was the one that stole it that lived with Melissa Gillette and all my

passwords and everything were secure in my laptop. Everything – you didn’t need one

when you got into my laptop.” Marcum testified that her phone number is (937) 542-

9090, and she acknowledged that Gillette cashed State’s Exhibit 61 on May 3, 2012, with

that number written on the check.

{¶ 109} Marcum acknowledged that State’s Exhibit 85, the record of transactions

on Gillette’s commissary account, reflects that prior to the deposit of $100.00 by Boykin

into the account on May 17, 2015, Gillette received another deposit of $100.00 on May

15, 2015. Marcum testified that she was aware that Gillette was going to testify that

Marcum gave her a check to cash for work that Gillette did not perform.

{¶ 110} Marcum testified that most of the people working for Right at Home “were

robbing the Stambacks.” She stated that William “was telling me and * * * money * * * was

disappearing from his wallet.” She stated that she did not have “proof” until she obtained

the Stambacks’ powers of attorney and was able to get online and view the checking

account. Regarding Willa’s will addendum, which specifically bequeaths, inter alia,

Willa’s wedding rings to Marcum’s daughter along with $500.00, Marcum acknowledged

that Willa was unable to type or dictate. Marcum denied typing the addendums. She

stated that she became aware of them after William died.

{¶ 111} When shown State’s Exhibit 59, a Chase statement for the account

ending in 4480, which reflects an April 9, 2013 check written to Toys R US for $271.08,

Marcum stated that William asked her to make the purchase for Marcum’s “grandbaby.”

{¶ 112} Marcum stated that Willa signed the Cobalt over to her on March 12,
 -50-

2013. When asked why the Stambacks wrote a check to Graley for car repairs after she

took possession of the car, Marcum stated that “I used the car to do everything they still

needed me to do. That is why he wanted to pay for the repairs.” She stated that she sold

the car to CarMax.

{¶ 113} We note that at the conclusion of the evidence, the State moved to amend

Count III of the indictment, which specified a date of March 12, 2013 for the tampering

with records offense. The State requested that “the date only be extended from that date

through April 20, 2013, which was the date that the title was offered and further, through

May 13, 2013, which was the day that the odometer record was done.” The court

permitted the amendment over objection.

{¶ 114} On December 28, 2015, a “Memorandum in Support of Defendants’

Renewal of Motion for Rule 29” was filed.

{¶ 115} Marcum asserts three assignments of error herein which we will consider

together. They are as follows:

THE TRIAL COURT ERRED IN OVERRULING APPELLANT

COUNSEL’S MOTION FOR RULE 29.

And,

THE TRIAL COURT ERRED WHEN IT FOUND THE APPELLANT

GUILTY AS THE EVIDENCE PRESENTED IS ENTIRELY INCONSISTENT

WITH THE REQUISITE MES REA ON ALL COUNTS.

And,

THE TRIAL COURT ERRED WHEN IT FOUND THE APPELLANT

GUILTY CONTRARY TO THE WEIGHT AND SUFFICIENCY OF THE
 -51-

EVIDENCE.

{¶ 116} As this Court has previously noted:

“A sufficiency of the evidence argument disputes whether the State

has presented adequate evidence on each element of the offense to allow

the case to go to the jury or sustain the verdict as a matter of law.” State

v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10,

citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).

An appellate court applies the same standard when reviewing the denial of

a Crim.R. 29(A) motion as is used to review a sufficiency of the evidence

claim. State v. Sheppeard, 2d Dist. Clark No. 2012 CA 27, 2013-Ohio-812,

¶ 51.

In contrast, “a weight of the evidence argument challenges the

believability of the evidence and asks which of the competing inferences

suggested by the evidence is more believable or persuasive.” Wilson at ¶

12. When evaluating whether a conviction is against the manifest weight of

the evidence, an appellate court must review the entire record, weigh the

evidence and all reasonable inferences, consider witness credibility, 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 conviction must be reversed and a new trial ordered.” Thompkins at

387, citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st

Dist. 1983).

Because the trier of fact sees and hears the witnesses at trial, we
 -52-

must defer to the factfinder's decisions whether, and to what extent, to credit

the testimony of particular witnesses. State v. Singleton, 2d Dist.

Montgomery No. 26889, 2016-Ohio-5443, ¶ 21. The fact that the evidence

is subject to different interpretations does not render the conviction against

the manifest weight of the evidence. Wilson at ¶ 14. A judgment of

conviction should be reversed as being against the manifest weight of the

evidence only in exceptional circumstances. Martin at 175.

State v. Page, 2d Dist. Montgomery No. 26670, 2017-Ohio-568, ¶ 7-9.

{¶ 117} R.C. 2913.47 proscribes insurance fraud and provides in relevant part as

follows:

(B) No person, with purpose to defraud or knowing that the person is

facilitating a fraud, shall do either of the following:

(1) Present to, or cause to be presented to, an insurer any written or

oral statement that is part of, or in support of, an application for insurance,

a claim for payment pursuant to a policy, or a claim for any other benefit

pursuant to a policy, knowing that the statement, or any part of the

statement, is false or deceptive[.]

{¶ 118} “A person acts purposely when it is the person’s 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 the offender’s

specific intention to engage in conduct of that nature.” R.C. 2901.22(A). R.C.

2901.22(B) provides: “A person acts knowingly, regardless of purpose, when the person

is aware that the person’s conduct will probably cause a certain result or will probably be
 -53-

of a certain nature. A person has knowledge of circumstances when the person is aware

that such circumstances probably exist.”

{¶ 119} R.C. 2913.02 proscribes theft and provides in relevant part:

(A) No person, with purpose to deprive the owner of property or

services, shall knowingly obtain or exert control over either the property or

services in any of the following ways:

(1) Without the consent of the owner or person authorized to give

consent;

(2) Beyond the scope of the express or implied consent of the owner

or person authorized to give consent[.]

{¶ 120} R.C. 2913.42 proscribes tampering with records and provides in relevant

part:

(A) No person, knowing the person has no privilege to do so, and

with purpose to defraud or knowing that the person is facilitating a fraud,

shall do any of the following:

(1) Falsify, destroy, remove, conceal, alter, deface, or mutilate any

writing, computer software, data, or record;

(2) Utter any writing or record, knowing it to have been tampered

with as provided in division (A)(1) of this section[.]

{¶ 121} R.C. 2921.02 proscribes bribery and provides in relevant part:

***

(C) No person, with purpose to corrupt a witness or improperly to

influence a witness with respect to the witness’s testimony in an official
 -54-

proceeding, either before or after the witness is subpoenaed or sworn, shall

promise, offer, or give the witness or another person any valuable thing or

valuable benefit.

I. Insurance Fraud

{¶ 122} James Combs testified that he signed State’s Exhibit 82, the March 10,

2013 change of beneficiary form, at Marcum’s request, and that he did not witness the

signatures of Willa or “Renee Frost” on the document. He stated that Marcum told him to

date the form March 10, 2013. Renee Hensley testified that she did not sign State’s

Exhibit 82 or witness the signatures thereon, and she stated that, while she was formerly

known as Renee Frost, she did not use the name of Frost at the time the form was signed.

She stated that she received photographs via text messages from Marcum of her

“signature” and the Stambacks’ home, so that she could attest “that I had been there and

that was the signature that was signed.”

{¶ 123} Michael Berninger testified that Kathleen Ely, Vickie Hilgeford, Kelly

Schaurer, Bart and Brent Lawhorn and Scott Schaurer were the contingent beneficiaries

on William’s life insurance policy. He testified that Marcum identified herself as the

Stambacks’ adopted daughter to a customer service representative at Ohio National

Financial Services, and that she advised Berninger that the designated beneficiaries were

not entitled to the proceeds of the policy. Berninger stated that he received State’s

Exhibits 17 and 18, the Stambacks’ wills dated February 20, 2013, and State’s Exhibits

21 and 22, the addendums to the wills, from counsel for Marcum. Berninger stated that

he also received State’s Exhibit 82 after Marcum told him, “I don’t think you got the right

thing.” Berninger stated that the above named contingent beneficiaries received
 -55-

$19,300.00 from the policy.

{¶ 124} Rachel Ferrara testified that Marcum presented a “theft-loss claim for

personal property” on a policy issued by the National Mutual Insurance Group that named

the Stambacks as the insureds. Ferrara testified that Marcum identified herself under

oath at a deposition in April 2014 as the Stambacks’ daughter, and she testified that

Marcum reported that “electronics, clothing, possible furniture” had been stolen from the

Stambacks’ home. Ferrara testified that Marcum reported the claim after the Stambacks

died, for an amount between $20,000.00 to $40,000.00, and that the claim was denied.

{¶ 125} The trial court clearly credited the testimony of Combs, Hensley,

Berninger, and Ferrara over the testimony of Marcum, and we defer to the trial court’s

assessment of credibility. Based upon the above testimony, we conclude that the trial

court did not err in overruling Marcum’s motion for acquittal, and that Marcum acted with

a purpose to defraud, and knowing that she was facilitating a fraud, in presenting the

claims for the proceeds of Williams’ life insurance policy and for the items allegedly stolen

from the Stambacks’ home, in violation of R.C. 2913.47(B)(1). Having thoroughly

reviewed the entire record, we further conclude that Marcum’s conviction for insurance

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

evidence.

II. Theft (beyond the scope of consent)

{¶ 126} Michael Manes testified that it was “highly irregular” for Marcum to serve

as the Stambacks’ caregiver as well as their p.o.a. He stated that in March of 2013, a

little over three months after Marcum had been working for the Stambacks, Marcum

advised him that the Stambacks were going to designate her as their beneficiary in their
 -56-

wills. Crystal Alexander testified that Ely typically cashed checks for the Stambacks in

amounts between $300.00 and $500.00 a month, and that the amounts of the checks

written by Marcum were “way out of the ordinary” and “much higher.” We note that in the

month of April, 2013, over $10,000.00 in checks were debited against the account ending

in 4480.

{¶ 127} As with the evidence of insurance fraud, we note that much of Marcum’s

testimony regarding the specific checks drawn on the Stambacks’ accounts is

contradicted by the testimony of other witnesses, and that the trial court clearly credited

the other witnesses’ testimony over Marcum’s. We again defer to the trial court’s

assessment of credibility. While Marcum testified that State’s Exhibits 25 – 29, on the

account ending in 4480, for caregiving to Melanie Vance Ryan and Katherine Wiggins,

were legitimate payments, Wiggins testified that while she was paid for her work, she was

concerned that Marcum was subjecting the Stambacks to financial abuse. While Marcum

testified that she perceived herself as the Stambacks’ daughter and dutifully cared for

them, Kathryn Harkenrider testified that after speaking with Katherine Wiggins, she

provided a statement to police due to concerns about the Stambacks’ safety in Marcum’s

care, since Willa’s feeding tube had been turned off, a portion of her tracheotomy had

been removed more than once, and since the Stambacks had been left alone.

Harkenrider stated that her concerns prompted 24-hour a day care for the Stambacks.

{¶ 128} While Marcum testified that State’s Exhibits 35 and 36, checks dated April

17, 2013, on the account ending in 4480, to Jill McConnell for caregiving were legitimate,

McConnell testified that she never met or provided care for the Stambacks. She stated

that Greg Graley asked her to cash State’s Exhibit 35, in the amount of $600.00.
 -57-

McConnell stated that Marcum paid her $100.00 to cash State’s Exhibit 36, in the amount

of $1,200.00, and that Marcum wrote State’s Exhibit 36 in the car after learning that she

was approved for the amount of $1,200.00. Greg Graley’s testimony regarding Exhibit

36 is consistent with McConnell’s. He further testified that Marcum owed him money and

gave him $1,000.00 after McConnell cashed Exhibit 36.

{¶ 129} While Marcum testified that State’s Exhibit 38, the April 17, 2013 check

made out to Graley for $636.42 on the account ending in 4480, was for car repairs and

was signed by William, because Marcum was still driving the car for the Stambacks,

Graley testified that Marcum contacted him and told him that she had more money to give

him, and that Marcum wrote the check in his presence at “the bar on Dixie.” He testified

that Marcum gave him the title to the Stambacks’ Chevy Cobalt, and that he worked on

the car only while it was in his possession, because he “drove it like crazy.” Graley stated

that he did not perform any work on the car for the Stambacks.

{¶ 130} Marcum testified that State’s Exhibit 40, the March 21, 2013 check on the

account ending in 4480 to Brandon Mitchell for $675.00, was to pay for repairs Mitchell

performed on the Cobalt and the garage after Marcum had an accident in the vehicle, and

that State’s Exhibit 42, the April 8, 2013 check to Mitchell for $880.00 on the account

ending in 4480, was for roof and gutter repairs and for cleaning the garage. Marcum

further testified that State’s Exhibit 43, the April 15, 2013 check payable to Mitchell for

$1,200.00 on the account ending in 4480, was actually written to pay Marcum’s daughter

for care she provided to the Stambacks. Harkenrider, Ryan, and Wiggins testified that

they never observed Mitchell perform any work or repairs at the home. While Marcum

testified that her daughter “always had Brandon cash her checks,” when asked about
 -58-

State’s Exhibit 55, the April 18, 2013 check made out to Marcum for $1,200.00, Marcum

testified inconsistently that the check was written to pay her daughter for six days of

caregiving. Joseph Schweiterman testified that Mitchell was found hiding in the

Stambacks’ bathroom and arrested on active warrants on April 16, 2013.

{¶ 131} Marcum testified that Exhibits 44 and 45, the April 2013 receipts from

Cato’s Closet, reflect items that she purchased for Willa at William’s request, with the

exception of a pair of shoes and a scarf, which Marcum purchased for herself with

William’s permission. The record reflects that Marcum signed electronic checks on the

account ending in 4480 for the items. We note that Willa was on a ventilator and a

feeding tube at the time, and that the purchases include, inter alia, 16 knit tops. Similarly,

Marcum testified that State’s Exhibit 47, the April 2013 Walmart receipt on the account

ending in 4480, reflects items that William asked her to “go pick up” for him. She stated

that she purchased only a pack of lighters for herself. We note that Exhibit 47 contains,

inter alia, the following items: “3 pack bra,” “Danskin Tee,” “Ladies Wear,” “Running Sh,”

and 3 items delineated “Scoop Top.” Harkenrider testified that Willa was in end-stage

respiratory failure, “vent dependent” and on a feeding tube at the time, and we conclude

based upon Willa’s age and physical condition that the trial court could reasonably

conclude that Marcum’s testimony defies credulity.

{¶ 132} Marcum testified that State’s Exhibit 53, the April 13, 2013 check to her

husband Gary Williams for $550.00, on the account ending in 4480, represents payment

for the deck and ramp that Williams constructed so that Willa could come home from

Kindred hospital. She stated that she obtained estimates for the project in amounts of

$3,500.00 and higher. We note that Marcum did not introduce the estimates she
 -59-

obtained, or any receipts for the materials for the project, or any photographs thereof.

{¶ 133} Marcum testified that she cashed State’s Exhibit 54, an April 15, 2013

check written for cash on the account ending in 4480, in the amount of $1,000.00,

because Willa, who again was on a ventilator and a feeding tube, “liked to keep cash in

her pocket.” We note that Alexander testified that Ely typically withdrew between

$300.00 and $500.00 a month in cash for William, not Willa, and simply cashed Willa’s

monthly Social Security checks for her. Thus, the trial court could reasonably reject

Marcum’s explanation. Finally, while Marcum denied writing State’s Exhibit 61, the

check made out to Melissa Gillette, on the account ending in 3639, for $1,580.00, we note

that the check bears Marcum’s handwritten phone number and the memo line provides

“caregiver 2 wks 14 days,” in a manner similar to other checks signed by Marcum. Scott

Schaurer, who held the Stambacks’ p.o.a. at the time, testified that he did not authorize

Gillette to have money from the account.

{¶ 134} Treherne testified that in April 2013, William called him and he went to

see him in the hospital about the powers of attorney and wills. Treherne stated that

William was lucid and told him that he wanted to change the p.o.a. designations and wills,

and that Willa made her wishes known to him that she wanted to revoke Marcum’s p.o.a.

Treherne testified that Exhibit 19 and 20, the April 22, 2013 wills, accurately reflect the

Stambacks’ wishes. State’s Exhibits 68, the August 10, 2013 withdrawal ticket signed

by Marcum in the amount of $4,909.63 on the account ending in 8128, which was opened

by Schaurer, and Marcum’s deposit of $3,409.63 into the estate account opened by her

on August 10, 2013 (which is $1,500.00 less than the amount she withdrew), as well as

State’s Exhibits 73, 74, and 75, all of which were made out to cash on the estate account,
 -60-

are in direct contravention of the Stambacks’ wishes as reflected in their wills and in

Treherne’s and Schaurer’s testimony. By Marcum’s own admission, she learned that

she was “banned” from the Stambacks’ property on April 18, 2013.

{¶ 135} While Marcum testified that she accepted the Chevy Cobalt as a birthday

gift from William, Melanie Vance Ryan stated that she was aware that the Stambacks’

owned the car because William “inquired about its whereabouts.” As noted above,

Hughes testified that he notarized the car title listing Willa as the owner, and that her

printed name, address and signature were already filled in when Marcum presented the

title to be notarized.

{¶ 136} Finally, State’s Exhibit 97, the statement for William’s savings account

ending in 5272 from February 5, 2013 to March 5, 2013, reflects that on February 5, 2013,

the account had a balance of $43,166.79, that there were four debits to “Health Right

LLC” for close to two thousand dollars each, and a total of $3,000.00 was transferred into

the account ending in 4480. There were withdrawals of over $10,000.00 during the

month, and on March 4, 2013 the remaining $23,313.90 was withdrawn, leaving a balance

of zero. We note that Alexander testified that the account had a balance of over

$60,000.00 in October 2012, the month prior to Marcum’s employment in the Stambacks’

home.

{¶ 137} As noted above, the trial court clearly discredited much of Marcum’s

testimony regarding the Stambacks, their vehicle, and her actions as p.o.a. and executor,

and we defer to the trial court’s credibility assessment. We conclude that the amounts

of the checks written by Marcum, as well as the close relationships she had to the

recipients of the checks, further support a finding that Marcum acted beyond the scope
 -61-

of the Stambacks’ consent. Accordingly, we conclude that the trial court did not err in

overruling Marcum’s motion for acquittal on the theft from an elderly person offense, in

violation of R.C. 2913.02(A)(2), and that Marcum, with purpose to deprive the Stambacks,

knowingly obtained or exerted control over their property beyond the scope of the

Stambacks’ consent. Having thoroughly reviewed the entire record, we further conclude

that Marcum’s conviction for theft from an elderly person (beyond the scope of consent)

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

III. Tampering with Records

{¶ 138} Glen Hughes testified that on March 12, 2013, he notarized State’s

Exhibit 31, the title to the Cobalt, without observing Willa’s signature thereon, and that he

notarized State’s Exhibit 89, the Odometer Disclosure Statement, on May 13, 2013, which

also reflects Willa’s printed name and signature. Hughes stated that he does not know

Willa. Marquis Sansom identified State’s Exhibit 32 as the April 20, 2013 title to the

Cobalt in Marcum’s name. Sansom identified State’s Exhibit 88 as the May 13, 2013

affidavit that Marcum submitted to the Auto Title Division of the Montgomery County Clerk

of Courts indicating mileage on the Cobalt of 33,981 miles, as well as State’s Exhibit 89.

{¶ 139} Based upon the testimony of Hughes and Sansom, which the trial court

clearly credited, we conclude that the trial court did not err in overruling Marcum’s motion

for acquittal on the tampering with records offense and that Marcum, knowing that she

had no privilege to do so, and with purpose to defraud, uttered State’s Exhibits 31, 88,

and 89, knowing that the documents had been tampered with, in violation of R.C.

2913.42(A)(2). In other words, having thoroughly reviewed the entire record, we

conclude that Marcum’s conviction for tampering with records is supported by sufficient
 -62-

evidence and not against the manifest weight of the evidence.

IV. Theft (checks)

{¶ 140} While Marcum denied ordering checks on line from the Stambacks’

account, and testified that her lap top was stolen by her cousin who lived with Gillette,

Exhibit 78, correspondence from Deluxe Corporation, reflects that an online order for

checks in William’s, Willa’s, and Marcum’s names on the account ending in 4480 was

placed on April 22, 2013, the date that Marcum’s powers of attorney were revoked. The

checks were ordered to be sent to Marcum at her address of 410 N. Snyder Road. We

note that Graley testified that Marcum offered him some checks, but that he was not

interested in them since his identification expired and he would be unable to cash them.

Alexander testified that Schaurer reported to her that checks unauthorized by him and

signed by Marcum were being written against the account, and that they learned the

checks were ordered on line. After Schaurer closed the account ending in 4480 and

opened the account ending in 3639, Alexander testified that a check order was placed on

the account ending in 3639 on May 7, 2013, for “next day shipping.” State’s Exhibit 79,

correspondence from Deluxe Corporation, reflects that checks were ordered on line to be

sent to William at 420 N. Snyder Road. Alexander stated that Marcum was never a

signatory on the account ending in 3639. As noted above, State’s Exhibit 61, the check

to Gillette for $1,580.00, was written on the account ending in 3639 on May 3, 2013, and

Schaurer testified that he did not authorize the payment to Gillette or know who she was.

Gillette testified that she observed Marcum write the check before she cashed it.

{¶ 141} For the foregoing reasons, we conclude that the trial court did not err in

denying Marcum’s motion for acquittal on the theft of checks offense, in violation of R.C.
 -63-

2913.02(A)(1). Having thoroughly reviewed the entire record, we conclude that Marcum,

with purpose to deprive the Stambacks, knowingly obtained the checks without their

consent, and that her conviction for theft of the checks is supported by sufficient evidence

and not against the manifest weight of the evidence.

V. Bribery

{¶ 142} While Marcum testified that the $100.00 deposited to Gillette’s

commissary account at jail was a loan she provided to her since Gillette was “starving” in

jail, Gillette testified that on May 17, 2015, Marcum visited her in jail and asked her to

testify at the upcoming trial that she “had worked for two weeks.” When Gillette informed

Marcum that she had already provided deposition testimony against Marcum, Gillette

stated that Marcum then asked her to speak to Marcum’s lawyer. Marcum’s assertion

that Gillette wanted to borrow money for food is further belied by State’s Exhibit 85, the

record of transactions on Gillette’s commissary account, which reflects that Gillette

received a deposit of $100.00 on May 15, 2015, just two days before Marcum’s visit.

Furthermore, Marcum asked Byron Boykin to make the disputed $100.00 deposit.

{¶ 143} The trial court clearly credited Gillette’s testimony over Marcum’s, and we

defer to the trial court’s credibility assessment. Accordingly, we conclude that the trial

court did not err in overruling Marcum’s motion for acquittal on the bribery offense, and

that Marcum promised, offered and/or gave Gillette a valuable thing or benefit with the

purpose to corrupt or improperly influence Gillette with respect to her testimony. In other

words, having thoroughly reviewed the entire record, Marcum’s bribery conviction is

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

{¶ 144} For the foregoing reasons, Marcum’s three assignments of error are
 -64-

overruled, and the judgment of the trial court is affirmed.

.............

HALL, P.J. and TUCKER, J., concur.

Copies mailed to:

Andrew T. French
Thomas M. Kollin
Nathan D. Boone
Hon. Richard S. Skelton