Multiple, credible eyewitnesses definitively identified appellant as the offender.


State v. Marx

2021 – Ohio – 984

Sixth District Appellate Court

March 26, 2021

On the morning of Saturday May 11, 2019, a local attorney residing in the Toledo area arrived at the Perrysburg Township Lowe’s store at 10295 Fremont Pike, Perrysburg, Ohio 43551 in order to make household purchases. Concurrently, Mr. Benjamin Marx, whose later actions would indicate he is a related to famous Marx Brothers, would also be at the Lowe’s store.  However, Mr. Marx arrived there to steal rather than shop.

As the attorney parked his vehicle in the Lowe’s parking lot, he noticed the distinct sound of the Lowe’s store security alarms going off. He simultaneously observed Mr. Marx hurriedly pushing a shopping cart full of tools away from the store with several store employees in rapid pursuit.  Evidently, Lowe’s has a looser foot pursuit policy than Chicago Police.

At this juncture, one of the employees pursuing appellant requested that the above-described witness call 9-1-1. The employee explained to the witness that Mr. Marx had just stolen merchandise from Lowe’s but store policy prohibits employees from directly calling 9-1-1 to report theft.  THIS. IS. NOT. A. TYPO.  Lowe’s store policy inhibits employees for calling police to report on-going theft.  If you have ever wondered if Lowe’s take a financial loss on stolen merchandise or passes it along to paying customers, wonder no more.

The witness did as he was asked, promptly called 9-1-1, reported the specifics of the crime, and furnished Mr. Marx’s license plate number. The witness had been able to observe the license plate number given his close proximity to these events. Shortly thereafter, an on-duty officer from the Perrysburg Township Police Department received a notification call from dispatch regarding the crime that had just occurred. Dispatch provided the vehicle description and license plate number.

In response to this information, the officer drove onto I-75 in a northbound direction in order to keep an eye out for the vehicle. While on I-75, the officer observed Mr. Marx driving in a suspicious fashion. The officer began following the Mr. Marx’s vehicle. She quickly determined that the vehicle’s license plate number was a match to the license plate number provided by dispatch for Mr. Marx’s vehicle that was reported in the Lowe’s theft.

Given these facts and circumstances, she activated her overhead lights and attempted to pull over appellant. Mr. Marx fled at a reckless rate of speed, exited I-75 at Miami Street, and led her and other officers on an extended, high-speed chase. At this time, we should all wonder if this high-speed pursuit could have been prevented if employees were permitted to call law enforcement for on-going thefts?   During the course of the ensuing police chase, Mr. Marx drove in an exceptionally dangerous fashion, reaching speeds of 120 m.p.h. and nearly causing numerous accidents.

Later during the pursuit, Mr. Marx fishtailed his vehicle in the vicinity of Owens Community College, resulting in appellant being face-to-face with the initial officer who first spotted him on I-75. Her police vehicle was now approximately five feet from the now-stopped vehicle.

As Mr. Marx appeared to be ending his flight following his fishtail halt, the officer began to exit her vehicle. At this point, Mr. Marx gunned his engine, resumed his flight, and again reached speeds well in excess of 100 m.p.h. Given the extreme risk of harm associated with continuing this high-speed pursuit in a densely traveled and populated area, the chase was called off. This was a very good decision since the underlying offense was felony theft.  The license plate number of the subject vehicle was run through the Bureau of Motor Vehicle’s database and was found to belong to Mr. Marx.

Mr. Marx was arrested later that day at a Sylvania Township sushi restaurant where appellant was employed as a cook. In a hasty attempt to evade responsibility by superficially altering his appearance, Mr. Marx shaved off his facial hair in his motor vehicle after the police chase. What happened next is indicative of why Mr. Marx was possibly related to the famous Marx Brothers.  He placed his shaved facial hair in the glove compartment of the vehicle! Clearly, Mr. Marx was very stressed which caused him to ‘save’ the facial hair in the glove box.  But one wonders if he thought far enough ahead for a prosecutor to raise his hand high with a clear sealed bag of beard shavings and say, I would like to introduce exhibit one.  Additionally, Mr. Marx had removed the rear license plate of his vehicle. However, the license plates were not stored in the glove box as it was currently ‘full’.

On June 19, 2019, Mr. Marx was indicted on one count of failure to comply with an order or signal of a police officer, in violation of R.C. 2921.331, a felony of the third degree, and one count of theft, in violation of R.C. 2913.02, a felony of the fifth degree based upon the determined value of the stolen items being $1,406.85.

On January 22, 2020, following a jury trial, Mr. Marx was found guilty of both offenses. On January 28, 2020, appellant was sentenced to a 41-month total term of incarceration. This appeal ensued.  Mr. Marx appealed on the basis that the prosecution failed to establish Mr. Marx’s identity as the perpetrator at trial.  Mr. Marx appears to rely upon his transparent effort to superficially modify his appearance by shaving in the car after his initial escape as somehow operating to negate the validity of his positive identification by multiple eyewitnesses.

The above-discussed Lowe’s patron, the eyewitness in the parking lot, testified at trial, “I could hear the alarm going off, the security alarm, as I was coming up to the building The next thing I saw is a gentleman coming out pushing a cart, kind of — I wouldn’t say running — but walking fast, jogging. [B]ehind him were two Lowe’s employees telling me to call the police, he is stealing from us.”  I would disagree with the attorney-witness and dispute that Mr. Marx is a gentleman.

At the conclusion of his testimony, this witness was asked by the prosecution, “[O]n a scale of 1 to 100, 1 being almost absolutely uncertain, 100 being 100 percent confident, how certain are you that the person sitting here today was the person who pushed out that cart stealing those items from Lowe’s?

The witness definitively responded, “I am absolutely confident of that … We would be at the 100 [in certainty].” (Emphasis added).

The Perrysburg Township police officer who originally observed appellant on I-75 driving the vehicle with a license plate number matching the one that had been reported to 9-1-1 by the witness, likewise furnished detailed testimony of these events. She testified, “I received a dispatch … reporting that somebody had just stolen items from Lowe’s … [T]hey provided a license plate [number] Henry Sam William 9594.” The officer next explained that shortly thereafter she observed a man driving suspiciously leaving the area in a northerly direction on I-75, so she began to

follow the vehicle. She testified, “[The vehicle] started to speed up. And then at that point, I looked at the rear license plate, and it matched the license plate that dispatch provided, Henry Sam William 9594.”

The officer testified that she activated her overhead lights. Appellant fled at an extremely reckless rate of speed. She testified that appellant’s speed during the chase ranged from 100 m.p.h. to 120 m.p.h. At one point, appellant’s vehicle fishtailed and screeched to a halt. This enabled the officer to make direct visual contact with appellant in extremely close proximity to appellant. The officer testified, “The defendant and I — meet face-to-face. It was like slow motion in time. I remember it took about 15 seconds I looked right at him, he looked right at me, it was like we locked eyes.”.

The officer further testified regarding appellant resuming his flight at a high rate of speed and her ultimate determination to cease the pursuit due to the significant public safety risk. The officer then testified that she subsequently viewed the bureau of motor vehicle photo of appellant, which was connected to the license plate number of the vehicle that the officer had just pursued. Based upon the officer’s close, direct observation of appellant during the pursuit, the officer was asked, “How certain were you that BMV photo matched the driver that you came face-to-face with midway through that pursuit?” The officer conclusively replied, “100 percent. That’s why I issued the warrant.” (Emphasis added).

On March 26, 2021 the Sixth District Appellate Court held “Multiple, credible eyewitnesses definitively identified appellant as the offender. We find appellant’s … assignment of error not well-taken.”.

Information for this article was obtained from State v. Marx, 2021 – Ohio – 984 and my observation of several Marx Brothers movies.

Mr. Marx’s Ohio Department of Rehabilitation and Corrections photo reveals that he was able to re-grow his beard back while serving a three year sentence.

Lessons Learned:

  1. This is a basic call where the officers did well to obtain the eyewitness information. Later this key information would be very important to convict the thief.  Law enforcement often gathers witness information which can often be mundane, however, the importance of gathering accurate information is very important.
  2. Another common law enforcement function in completing a vehicle inventory. Here the Perrysburg Township Police officers had very good attention to detail to discover the beard shavings in the glove box.  For more on vehicle inventory see Officer Frank Followed Department Policy … But Should You? and Do Officers have a Legal Duty to Explain the Inventory Policy to a Fentanyl Dealer [or anyone else] while in the Middle of an Intersection at a Crash Scene?.
  3. Two takeaways from the beard shaving saving Benjamin Marx. First, stress causes people, officers included, to do things we would not ordinarily do.  And second, never save beard shavings following an attempt to conceal identity after committing a felony.  Even Groucho (“You bet your life” … but not your beard) may have been proud of Ben.

Does your agency train on Reasonable Suspicion and Probable Cause?

Don’t fail your training.

Don’t let your training fail you!

Be safe, smart and Objectively Reasonable!

Robert H. Meader Esq.