The Akron Legal News

Burglary conviction confirmed; judges rule evidence was sufficient, credible

JESSICA SHAMBAUGH
Special to the Legal News
Published: July 25, 2013

Evidence was sufficient to convict a man of burglary and tampering with evidence after a witness gave inconsistent testimony about the offender’s shirt color, according to a recent opinion from the 10th District Court of Appeals.

The three-judge appellate panel affirmed Terry Marioth’s convictions and sentence after finding they were properly supported by the evidence.

Marioth was indicted in August 2010 for allegedly taking property from Karon Mills’ home on Maureen Boulevard while she was out of the house.

The facts of the case state that on Aug. 18, 2010, Shirley Shrader saw someone exiting her neighbor’s home.

She said she did not recognize the man and yelled, “Hey boy, what are you doing?”

Upon hearing Shrader, the man attempted to re-enter the home and then fled.

Shrader called police and described the boy.

During the trial in the Franklin County Court of Common Pleas, Shrader said she told the operator the boy had sandy hair and a T-shirt. She said she thought the T-shirt was red.

Police officer Robert Rigby testified he was told the offender was a white male with reddish-brown hair and a white T-shirt.

Rigby testified he saw Marioth running behind the property when he responded and a second officer was able to detain him.

The second officer said Marioth was wearing a black hoodie despite the heat.

The officers asked Marioth if he knew Christopher Blair, who lived across the street from Mills and Marioth said he knew him but hadn’t seen him in 10 years.

Blair’s mother later disputed that and testified Marioth was with her son on the morning of the burglary. She also stated that she found Marioth’s white T-shirt abandoned in her back yard.

Officers found items belonging to Mills in Blair’s home but Shrader said she had not seen Blair leave Mills house on the day in question.

A neighbor testified to seeing a young man with a black sweatshirt standing behind his property and saw him throw something on the ground.

Police later located Mills jewelry box at the location the neighbor saw the man.

The jury found Marioth guilty of burglary and tampering with evidence and he was sentenced to 12 months incarceration and three years of community control.

On appeal to the 10th District, Marioth claimed his conviction was not supported by sufficient, credible evidence and was against the manifest weight of the evidence.

“Although Shrader gave differing accounts concerning the color of the T-shirt the man she saw was wearing, police officers indicated that the description of the suspect which aired over the radio indicated that the suspect was wearing a white T-shirt,” 10th District Judge John Connor wrote for the court.

The judges found that Shrader stated she was “99 percent” certain Marioth was the offender when she was presented with a photo array.

“Further, defendant was observed cutting through back yards near the home shortly after the burglary. Although it was quite warm out, defendant was wearing a dark hooded sweatshirt,” Connor stated.

Upon review, the appellate panel found that witness testimony suggested Marioth changed shirts after Shrader saw him, which was supported by Blair’s mother finding his white shirt in her back yard.

It also determined that all evidence was corroborated by witness testimony, including statements from the responding officers.

“When Shrader’s identification of defendant is combined with the evidence that he was behind Mills’ home that day, was wearing a dark sweatshirt in August, was seen throwing something to the ground, and discarded the T-shirt he was wearing in an attempt to change his appearance, the evidence is sufficient and demonstrates that a reasonable juror could find the testimony to be credible,” Connor wrote.

Judges Lisa Sadler and Julia Dorrian joined Connor in affirming the lower court’s ruling.

The case is cited State v. Marioth, case No. 2013-Ohio-3008.

[Back]