STATE v. MARCUM
Annotate this Case
Download PDF
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. KENNETH K. MARCUM, Appellant. ) ) ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 09/25/2012 RUTH A. WILLINGHAM, CLERK BY: sls 1 CA-CR 11-0653 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-007668-001 The Honorable Robert E. Miles, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender by Louise Stark, Deputy Public Defender Attorneys for Appellant Phoenix Kenneth K. Marcum In Propria Persona Tucson H A L L, Judge ¶1 Kenneth K. Marcum (defendant) convictions and the sentences imposed. appeals from his For the reasons set forth below, we affirm. ¶2 Defendant's appellate counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), advising that, after a diligent search of the record, she was unable to find any arguable grounds for reversal. This court granted defendant an opportunity to file a supplemental brief, which he has done. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). Defendant has raised in his supplemental brief and through counsel, three issues: (1) failure to give a Willits instruction further inspection regarding by the defense; loss (2) of failure the to vehicle for record the hospital interview; (3) officers assertions that appellant gave different versions of statement. ¶3 We review for fundamental error, error that goes to the foundation of a case or takes from the defendant a right essential to his defense. See State v. King, 158 Ariz. 419, 424, 763 P.2d 239, 244 (1988). We view the evidence presented at trial in a light most favorable to sustaining the verdict. State v. Cropper, 205 Ariz. 181, 182, ¶ 2, 68 P.3d 407, 408 (2003). 2 ¶4 On October 27, 2010, defendant was charged by indictment with one count of arson of a structure or property, a class four dangerous felony, and one count of attempt to commit fraudulent schemes and artifices, a class three felony. ¶5 The following evidence was presented at trial. afternoon of July 7, 2010, Shawn Jewel had been On the watching television in his apartment when he heard a loud noise outside. Jewel looked out of his window and saw a vehicle engulfed in flames and defendant on the ground attempting to get away from the vehicle. Jewel called 9-1-1 and went downstairs to try and help defendant. that the vehicle inside it. Jewel testified that defendant was concerned might explode because there was gasoline Jewel stated that defendant told him the vehicle blew up after he reached inside to try to start it. ¶6 Officer Shawn Osborn, a fire/arson investigator for the City of Surprise, and Detective John Vance responded to a call to investigate a vehicle fire. They observed a burned antique vehicle in an uncovered parking space. Officer Osborn stated that the safety glass was melted inward, which generally means the fire started on the interior of the vehicle. He observed two very, very obvious burn patterns on the top of the hood . . . and on the top of the trunk lid. He said that those burn patterns were from a flammable liquid such as gasoline, charcoal lighter fluid, cigarette lighter refiller, or liquid 3 butane. He found that there was the same amount of fire damage throughout the passenger compartment and zero fire damage in the engine compartment and the vehicle s fuel lines. ¶7 In addition to investigating the fire, Officer Osborn interviewed defendant at the hospital after the incident. He testified that defendant told him four different accounts of what happened to the vehicle during the interview. First, defendant explained that he had recently increased the vehicle s insurance coverage to $50,000.00, that he had no money, and he had just relocated to Arizona from Illinois. Defendant continued that while he was working on the car, a fuel leak started in the fuel pump, and the car caught fire. Second, defendant explained that he had a friend 1 drive the vehicle from his ex-wife s house in Arizona to the Surprise apartment complex and when defendant attempted to start the car, it blew up. Third, defendant stated that he removed the air cover from the carburetor, primed the carburetor with gasoline, got into the vehicle, and started it. The vehicle ran for about ten minutes and defendant stated that he smelled gas, looked down, and saw fuel inside the vehicle and turned off the ignition. Defendant said that he started the car again and the interior burst into flames. Fourth, defendant told Officer Osborn that 1 Officer Osborn attempted to get the name of the driver but defendant diverted him by saying, [t]here s no foul play here. 4 there was a fuel leak under the vehicle that originated in the fuel pump. Defendant continued that when he turned on the vehicle by reaching into it with his right arm, it burst into flames. ¶8 on Officer Osborn testified that defendant contacted him July 21 and was extremely agitated. Defendant blamed Officer Osborn for holding up the investigation for his claim. Defendant further stated that the only way he was going to break even on the vehicle is to either have the vehicle lost in fire or have the vehicle totaled in a car wreck. ¶9 Detective Vance testified specialized training in arson. that he had extensive Detective Vance concluded that defendant s versions of the event were inconsistent with the fire patterns possible. as well Detective as Vance his findings, believed that and therefore fumes inside not of a passenger compartment were ignited and resulted in an interior compartment fire. not immediately He further explained that the vehicle was impounded because it had been on private property, there had to be probable cause in order to impound it, and there was not probable cause at that point in the case. ¶10 Darren Cross, an employee for Philadelphia Insurance Companies, testified that he handled defendant s claim. stated that in June 2010, defendant increased the Cross vehicle s insurance coverage by $15,000.00, for a total of $55,000.00. 5 Cross further testified that the fire damage did not result in a total loss of the vehicle, or $55,000.00. Cross said that in order to constitute a total loss and for defendant to obtain the full amount of $55,000.00, the damage to the vehicle would have to amount to seventy-five percent or greater of value, or the vehicle would have to be stolen. its stated On July 26, 2010, Philadelphia Insurance Companies paid defendant for the amount of damage $15,213.97. ¶11 to the car, which was estimated to be On July 31, defendant reported the car stolen. After a four-day guilty as charged. trial, the jury found defendant The trial court sentenced defendant to a mitigated term of four years on Count one and a mitigated term of two and concurrently. one-half years Defendant was on Count given 102 two, to days of be served presentence incarceration credit. ¶12 On appeal, defendant first argues that the trial court erred by failing to issue a Willits instruction.2 A Willits instruction allows the jury to draw an unfavorable inference against the State when the State destroyed or lost material evidence. State v. Fulminante, 193 Ariz. 485, 503, ¶ 62, 975 2 In defendant s supplemental brief, he cites to several pages of a document as support for his claim that the police conducted a bad investigation. Although defendant does not state what document he is citing to, we believe it is the transcript from May 26, 2011. However, our review of this transcript does not lead us to conclude that there was fundamental error. 6 P.2d 75, 93 (1999). A defendant is entitled to a Willits instruction upon proving that (1) the State failed to preserve accessible, material evidence that might tend to exonerate him and (2) there was resulting prejudice. Id. The exonerating potential of the evidence must have been apparent at the time the State lost or destroyed it in order to warrant such an instruction. State v. Davis, 205 Ariz. 174, 180, ¶ 37, 68 P.3d 127, 133 (App. 2002). We decline to hold that the court erred in failing to give such an instruction, in light of the absence of any apparent exonerating potential of the evidence at the time police failed to preserve it. Further, as the trial court noted, defendant failed to show actual prejudice. We therefore conclude that the trial court did not err. ¶13 Defendant failing to next record argues his defendant s hospital stay. that interview Officer with Osborn erred defendant in during Officer Osborn, however, took notes during the interview, wrote a report afterwards, and testified at trial about the content of the interview. Officer Osborn stated that he did not tape record the interview because the batteries to the tape recorder were dead realize that until after the interview started. and he did not Defendant has not presented us with any legal basis, and we are not aware of such a basis, to overturn convictions based on a police officer issuing a written report of an 7 interview instead of tape recording it. We therefore discern no fundamental error on this issue. ¶14 Finally, defendant maintains that Officer Osborn incorrectly asserted defendant gave different versions of the incident. Witness credibility is a matter solely for the jurors, as triers of fact, and based on the guilty verdicts, the jury determined Officer credible and reliable. Osborn and the other witnesses were See State v. Jeffers, 135 Ariz. 404, 420, 661 P.2d 1105, 1121 (1983). Officer Osborn submitted a detailed report after he interviewed defendant. He testified in court and gave a thorough account of the interview, which was consistent with the report. The guilty verdicts were supported by the record and we decline to find reversible, fundamental error on this basis. ¶15 We defendant s have read supplemental and considered brief record for reversible error. P.2d at 881. conducted in We find compliance and have searched brief the and entire See Leon, 104 Ariz. at 300, 451 none. with counsel's All the of the Arizona proceedings Rules of were Criminal Procedure. Defendant was given an opportunity to speak before sentencing, and limits. the sentences imposed were within statutory Furthermore, based on our review of the record, there was sufficient evidence for the jury to find that defendant committed the offenses for which he was convicted. 8 ¶16 After obligations appeal have the pertaining ended. filing to of this defendant's Counsel need decision, counsel s representation do no more than in this inform defendant of the status of the appeal and his future options, unless counsel's review reveals an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 15657 (1984). Defendant has thirty days from the date of this decision to proceed, if he desires, with a pro per motion for reconsideration or petition for review. Accordingly, defendant's convictions and sentences are affirmed. _/s/____________________________ PHILIP HALL, Judge CONCURRING: _/s/__________________________________ MAURICE PORTLEY, Presiding Judge _/s/__________________________________ DIANE M. JOHNSEN, Judge 9
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
