Conviction Stands for Care Giver’s Stealing from Old & Sick

Evil Incarnate – Stealing Life Insurance Proceeds from Beneficiaries of the Elderly

When we get old and sick, close to death, the family turns over care of the elderly relatives to professional care givers who are expected to care for the best interests and concerns of the elderly. The relatives, concerned, use a professional organization and believe that care givers are vetted carefully, are honest, and professional. When one of those care givers takes advantage of the elders in their care the punishment must be as severe as the law allows and claims of error in an appeal must be proved without doubt.

In State Of Ohio v. Lisa Marcum, Court Of Appeals Of Ohio Second Appellate District Montgomery County, 2017 Ohio 7517, CASE NO. 27059 (September 8, 2017) Marcum appealed 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 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.

FACTS

The bench trial began on November 16, 2015. Multiple witnesses were called and they proved that Marcum, assigned to care for Willa and William Stamback, from whom she stole and made claims that she was the beneficiaries of the Stambacks life insurance policy. The niece of the Stambacks had their power of attorney which, at the urging of Marcum, was removed and put in Marcum’s hand.

Marcum was employed by Right at Home (a in home care organization) and that she initially met her when Marcum brought William to the hospital to visit Willa.

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. Marcum was one of the caregivers assigned by Right at Home to care for the Stambacks.

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.”

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.”

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.”

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 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.

ANALYSIS

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. 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. 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.

Because the trier of fact sees and hears the witnesses at trial, the court must defer to the factfinder’s decisions whether, and to what extent, to credit the testimony of particular witnesses. The fact that the evidence is subject to different interpretations does not render the conviction against the manifest weight of the evidence.

INSURANCE FRAUD

The trial court clearly credited the testimony of the multiple witnesses over the testimony of Marcum, and, therefore, the appellate court deferred  to the trial court’s assessment of credibility. Doing so, the applellate court concluded 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, the court also concluded that Marcum’s conviction for insurance fraud is supported by sufficient evidence and not against the manifest weight of the evidence and affirmed the judgment of the trial.

ZALMA OPINION

My mother, for the last 15 years of her life, was cared for 24/7 by a wonderful woman who never took more than the amount she agreed was her salary for the service. Before mother died they were close friends and I showed my appreciation with a bonus sufficient for the care-giver to complete the home she and her husband were building. Marcum, on the other hand, did not care for the elders in her care but attempted to steal from them and the beneficiaries of their life insurance. Her sentences should have been consecutive rather than concurrent. She should never leave jail.

 

 

 

ZALMA-INS-CONSULT © 2017 – Barry Zalma

This article and all of the blog posts on this site digests and summarize cases published by courts of the various states and the United States.  The court decisions have been modified from the actual language of the court decisions, were condensed for ease of reading, and convey the opinions of the author regarding each case.

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant and expert witness specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 49 years in the insurance business. Mr. Zalma is the first recipient of theLEGEND-TROPHY-2 first annual Claims Magazine/ACE Legend Award.

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About Barry Zalma

An insurance coverage and claims handling author, consultant and expert witness with more than 48 years of practical and court room experience.

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