State v. Walker , 2011 Ohio 5779 ( 2011 )

[Cite as State v. Walker, 2011-Ohio-5779.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 25744
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
NATHANIEL D. WALKER COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 10 08 2142
DECISION AND JOURNAL ENTRY
Dated: November 9, 2011
Per Curiam.
{¶1} Defendant-Appellant, Nathaniel Walker, appeals from his conviction in the
Summit County Court of Common Pleas. This Court affirms.
I
{¶2} On July 27, 2010 at approximately 12:30 p.m., Akron Police Officer James
Cunningham and retired Officer Richard Mullins were patrolling in the area of Pondview
Avenue. The area had seen a rash of recent burglaries, during which various items, including
firearms, were taken from homes while the occupants were away. The modus operandi of those
burglaries was that the suspects would knock on the door, wait a few minutes, and kick in the
door if no one answered. The suspects often chose to enter the rear of a home where they could
not be seen.
{¶3} As the officers were patrolling, they observed Mr. Walker walking alone, wearing
a black, nylon backpack. Officer Cunningham, who was driving the police cruiser, wanted to
2
keep an eye on Mr. Walker because he knew that Mr. Walker had been arrested for burglaries in
the past. After Mr. Walker crossed Newton Street, he joined a group of four other males at the
corner of Newton Street and Sobul Avenue. Officer Cunningham was familiar with two of the
other males and knew that they had been previously arrested for burglary. Although Officer
Cunningham was interested in Mr. Walker, he did not have a reason to stop him at that time, so
he left the area for several minutes and circled around the block to slowly begin patrolling Sobul
Avenue, looking up driveways and into backyards. When the officers reached the end of Sobul
Avenue, they observed Mr. Walker’s group congregating at the back door of a home at 1228
Pondview. When the group saw the police car approach, they began to quickly walk away.
Officer Cunningham immediately notified dispatch that he believed he had interrupted a burglary
in progress and requested backup because he and Officer Mullins were outnumbered.
{¶4} Officer Cunningham drove around the block where he observed the group emerge
onto Pondview Avenue from a home directly adjacent to 1228 Pondview. Officer Cunningham
exited the cruiser, stopped the group, and began to question them, asking what they were doing
and where they were going. One of the group responded that they were utilizing a shortcut
behind the buildings on Pondview. Officer Cunningham did not believe him because he had just
observed the group standing at the back door of 1228 Pondview.
{¶5} After questioning the group, Officer Cunningham noticed that Mr. Walker was no
longer wearing the black backpack. When asked about the location of the backpack, Mr. Walker
responded that he had taken it home. Officer Cunningham concluded that Mr. Walker was being
untruthful because he lived too far away to have made a trip there and back in the time that had
transpired. Shortly thereafter, Mr. Walker told Officer Cunningham he would never find the
backpack.
3
{¶6} After backup arrived, Officer Cunningham placed Mr. Walker in the cruiser and
walked over to the rear of 1228 Pondview to further investigate. He noticed several footprints on
the back door, consistent with an attempted forced entry. He and several of the other officers
then began to search the weeded area behind the houses and discovered a set of keys from a
Buick automobile and the backpack. One of the items the backpack contained was an unloaded
.380 semi-automatic pistol. The serial number had been filed off the pistol. Officer Cunningham
was also aware that Buick keys were recently stolen.
{¶7} After finding the backpack, its contents, and the set of keys, Officer Cunningham
placed Mr. Walker under arrest. Shortly thereafter, Mr. Walker’s mother arrived on the scene
and identified the backpack as belonging to Mr. Walker. The officers overheard Mr. Walker tell
his mother that “[t]hey caught me with a gun, but don’t worry, it’s my first time.”
{¶8} Mr. Walker was indicted for tampering with evidence in violation of R.C.
2921.12(A)(1), carrying concealed weapons in violation of R.C. 2923.12(A)(2), possessing a
defaced firearm in violation of R.C. 2923.201(A)(2), and having weapons while under disability
in violation of R.C. 2923.13(A)(1). On September 15, 2010, Mr. Walker filed a motion to
suppress. The trial court held a hearing on Mr. Walker’s motion to suppress on October 7, 2010
and denied the motion on October 13, 2010. A jury trial took place on October 27, 2010. The
jury found Mr. Walker guilty of tampering with evidence, but not guilty of the remaining
charges. The trial court sentenced Mr. Walker to a term of two years in prison.
{¶9} Mr. Walker now appeals from his conviction and raises three assignments of error
for our review.
4
II
Assignment of Error Number One
“THE UNLAWFUL SEIZURE OF APPELLANT BY POLICE VIOLATED HIS
4TH AMENDMENT RIGHTS; THEREFORE, ALL EVIDENCE
DISCOVERED AS A RESULT OF SAID SEIZURE SHOULD HAVE BEEN
EXCLUDED FROM TRIAL AS FRUIT OF THE POISONOUS TREE.”
{¶10} In his first assignment of error, Mr. Walker argues that the trial court erred in
denying his motion to suppress evidence because the police lacked reasonable suspicion to
institute an investigatory stop. We disagree.
{¶11} The Ohio Supreme Court has held that:
“Appellate review of a motion to suppress presents a mixed question of law and
fact. When considering a motion to suppress, the trial court assumes the role of
trier of fact and is therefore in the best position to resolve factual questions and
evaluate the credibility of witnesses. State v. Mills (1992), 62 Ohio St. 3d 357,
366. Consequently, an appellate court must accept the trial court’s findings of fact
if they are supported by competent, credible evidence. State v. Fanning (1982), 1
Ohio St. 3d 19. Accepting these facts as true, the appellate court must then
independently determine, without deference to the conclusion of the trial court,
whether the facts satisfy the applicable legal standard. State v. McNamara (1997),
124 Ohio App. 3d 706.” State v. Johnson (Aug. 10, 2011), 9th Dist. No. 25525,
2011-Ohio-3941, at ¶5, quoting State v. Burnside, 100 Ohio St. 3d 152, 2003-
Ohio-5372, at ¶8.
Accordingly, this Court reviews the trial court’s factual findings for competent, credible
evidence and considers the court’s legal conclusions de novo. State v. Conley, 9th Dist. No.
08CA0009454, 2009-Ohio-910, at ¶6, citing Burnside at ¶8.
{¶12} “A seizure occurs when an individual is detained under circumstances in which a
reasonable person would not feel free to leave the scene[. Therefore,] both an investigatory stop
and an arrest constitute ‘seizures’ within the meaning of the Fourth Amendment.” State v.
Synder, 9th Dist. No. 06CA0018-M, 2006-Ohio-6911, at ¶13. Likewise, the Supreme Court has
noted that “not all seizures of the person must be justified by probable cause to arrest for a
5
crime.” Florida v. Royer (1983), 460 U.S. 491, 498. “An investigatory stop must be justified by
some objective manifestation that the person stopped is, or is about to be, engaged in criminal
activity.” United States v. Cortez (1981), 449 U.S. 411, 417. “[R]easonable suspicion can arise
from information that is less reliable than that required to show probable cause.” Alabama v.
White (1990), 496 U.S. 325, 330. Reasonable suspicion requires only that the officer “point to
specific and articulable facts which, taken together with rational inferences from those facts,
reasonably warrant the intrusion.” Terry v. Ohio (1968), 392 U.S. 1, 21.
“The Ohio Supreme Court has identified certain specific and articulable facts that
would justify an investigatory stop by way of reasonable suspicion, factors which
fall into four general categories: (1) location; (2) the officer’s experience, training
or knowledge; (3) the suspect’s conduct or appearance; and (4) the surrounding
circumstances. No single factor is dispositive; the decision must be viewed based
on the totality of the circumstances.” State v. White, 9th Dist. No. 05CA0060,
2006-Ohio-2966, at ¶16, citing State v. Bobo (1988), 37 Ohio St. 3d 177, 178-80.
{¶13} Mr. Walker argues that at the time the police seized him and subsequently placed
him in the cruiser, they did not have reasonable suspicion to believe that he was, or was about to
be, engaged in criminal activity. We disagree.
{¶14} Detective Cunningham, who had sixteen years of experience as a police officer,
was the only witness to testify at the suppression hearing. Detective Cunningham testified that
there had been a recent string of burglaries in the area and that he knew Mr. Walker, as well as
some members of the group he was with, had been previously arrested for burglaries. Despite
this knowledge, Officer Cunningham acknowledged that he initially had no reason to stop Mr.
Walker or the group. Nonetheless, he opted to continue to observe the group. When the officers
reached the end of Sobul Avenue, they observed Mr. Walker’s group congregating at the back
door of a home at 1228 Pondview. When the group saw the police car approach, they began to
quickly walk away. Officer Cunningham immediately notified dispatch that he believed he had
6
interrupted a burglary in progress and requested backup. At that point, Detective Cunningham,
“circled the block real quick just as all five were coming from behind the houses. We jumped
out, had the males stop, waiting for the other units to arrive.” It was at this point that Detective
Cunningham noticed that Mr. Walker no longer had the backpack he was previously carrying.
{¶15} Given the totality of the circumstances presented, we conclude that the actions
taken by the officers in initiating contact with Mr. Walker constituted an investigatory stop. The
officers were admittedly following Mr. Walker looking to see if there was a reason to stop him.
They did not merely approach the group to see if they were willing to answer questions. The
officers pulled up to the group in a police car, got out and “had the males stop.” As noted above,
“[a] seizure occurs when an individual is detained under circumstances in which a reasonable
person would not feel free to leave the scene[.]” Synder at ¶13. We cannot say that a reasonable
person in Mr. Walker’s circumstances would have felt free to leave. While this case presents a
close call, we agree that the officers had reasonable suspicion to initiate the investigatory stop.
{¶16} In support of his argument to suppress evidence, Mr. Walker primarily relies upon
Brown v. Texas (1979), 443 U.S. 47; however, Brown is distinguishable from the instant matter.
In Brown, the appellant was observed walking in the opposite direction of another individual in a
high crime, public area. Id. at 49. The appellant was stopped and refused to identify himself.
Id. at 48-49. The appellant was then arrested for violating a Texas statute under which it is a
criminal act for a person to refuse to give his name and address to a police officer who has
lawfully stopped that person. Id. at 49. In concluding that the officer lacked reasonable
suspicion to stop the appellant and hence that the stop was unlawful, the United States Supreme
Court noted that there was no evidence that the appellant was involved in criminal conduct, nor
7
could the officer point to any objective facts that would support the officer’s statement that the
appellant appeared suspicious. Id. at 51-52.
{¶17} Here, unlike Brown, the stop was lawful. The officer was patrolling in an area of
homes that were recently the subject of burglaries. Mr. Walker was initially observed walking
alone with a black backpack. Shortly thereafter, the officer noticed Mr. Walker and four other
individuals congregated at the back door of a house in the area of the recent burglaries. The
officer testified that when the individuals in the group saw him, they quickly walked away.
However, they did not exit the property via the driveway; instead they proceeded behind other
homes and toward the street, an act which would arouse some further suspicion. Unlike the
officer in Brown, the officer in the instant matter was able to point to specific facts which taken
together suggest that Mr. Walker was engaged in, or was about to be engaged in criminal
activity. See Cortez, 449 U.S. at 417. Further, Mr. Walker, unlike the appellant in Brown, was
seen in the back of a private residence as opposed to a public alley.
{¶18} Accordingly, we conclude that Brown is distinguishable and that the officer in the
instant matter did possess the reasonable suspicion necessary to initiate a brief investigatory stop
as contemplated by Terry. See Terry, 392 U.S. at 21. The trial court did not err in denying Mr.
Walker’s motion to suppress, and his first assignment of error is overruled.
Assignment of Error Number Two
“THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO
SUPPORT APPELLANT’S CONVICTION FOR TAMPERING WITH
EVIDENCE.”
{¶19} In his second assignment of error, Mr. Walker argues that his conviction is based
on insufficient evidence. We disagree.
8
{¶20} In order to determine whether the evidence before the trial court was sufficient to
sustain a conviction, this Court must review the evidence in a light most favorable to the
prosecution. State v. Jenks (1991), 61 Ohio St. 3d 259, 274. Furthermore:
“An appellate court’s function when reviewing the sufficiency of the evidence to
support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind
of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is
whether, after viewing the evidence in a light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt.” Id. at paragraph two of the syllabus; see, also,
State v. Thompkins (1997), 78 Ohio St. 3d 380, 386.
“In essence, sufficiency is a test of adequacy.” Thompkins, 78 Ohio St. 3d at 386.
{¶21} Mr. Walker was convicted of tampering with evidence in violation of R.C.
2921.12 (A)(1), which provides in pertinent part that:
“No person, knowing that an official proceeding or investigation is in progress, or
is about to be or likely to be instituted, shall *** [a]lter, destroy, conceal, or
remove any record, document, or thing, with purpose to impair its value or
availability as evidence in such proceeding or investigation[.]”
Pursuant to R.C. 2901.22(B), “[a] person acts knowingly, regardless of his purpose, when he is
aware that his conduct will probably cause a certain result or will probably be of a certain
nature.”
{¶22} Thus, the question before this Court, based upon Mr. Walker’s argument, is
whether Mr. Walker concealed the backpack “knowing that an official proceeding or
investigation [wa]s in progress, or [wa]s about to be or likely to be instituted[.]” R.C.
2921.12(A)(1). Officer Mullins testified at trial that Mr. Walker was wearing the backpack when
he was standing behind 1228 Pondview, that the group walked away immediately upon spotting
the cruiser, and that Mr. Walker was not wearing the backpack when he was stopped in the
street. In addition, the testimony of a juvenile parole officer revealed the following additional
9
facts: (1) Mr. Walker was on parole at the time of the incident; (2) Mr. Walker had been
informed of the rules he was required to follow while on parole; (3) Mr. Walker was in violation
of his parole at the time of the incident; (4) Mr. Walker was directly informed of his violations,
as well as the date of a hearing on the violations; (5) Mr. Walker failed to attend the hearing and
a bench warrant had been issued for his arrest; and (6) Mr. Walker failed to communicate with
his parole officer following the hearing and prior to his arrest in this matter.
{¶23} We conclude that sufficient evidence was presented to establish that Mr. Walker
violated R.C. 2921.12(A)(1). Based upon on the facts presented, and when viewed in a light
most favorable to the prosecution, a reasonable trier of fact could conclude that Mr. Walker
knew that an official investigation “[wa]s about to be or likely to be instituted” and concealed the
backpack containing the gun which could have been used in the investigation against him. R.C.
2921.12(A)(1). In light of the evidence that Mr. Walker knew he was in violation of his parole
and that he failed to appear at a court hearing on that violation, it is reasonable to infer that Mr.
Walker knew an official investigation “[wa]s about to be or likely to be instituted” when he was
spotted by the officers. R.C.2921.12(A)(1). Accordingly, Mr. Walker’s second assignment of
error does not have merit and is overruled.
Assignment of Error Number Three
“APPELLANT’S CONVICTION FOR TAMPERING WITH EVIDENCE WAS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE PRESENTED AT
TRIAL.”
{¶24} In his third assignment of error, Mr. Walker argues that his conviction is against
the manifest weight of the evidence. Specifically, he argues that his version of the facts is
substantially more plausible than the State’s account. We disagree.
10
{¶25} When considering a manifest weight argument, this Court:
“[M]ust review the entire record, weigh the evidence and all reasonable
inferences, consider the credibility of witnesses 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.” State v. Otten (1986), 33 Ohio App. 3d 339, 340.
{¶26} A weight of the evidence challenge indicates that a greater amount of credible
evidence supports one side of the issue than supports the other. Thompkins, 78 Ohio St. 3d at
387. Further, when reversing a conviction on the basis that the conviction was against the
manifest weight of the evidence, the appellate court sits as the “thirteenth juror” and disagrees
with the factfinder’s resolution of the conflicting testimony. Id. Therefore, this Court’s
“discretionary power to grant a new trial should be exercised only in the exceptional case in
which the evidence weighs heavily against the conviction.” State v. Martin (1983), 20 Ohio
App.3d 172, 175; see, also, Otten, 33 Ohio App. 3d at 340.
{¶27} Mr. Walker admits that the State’s account was believable. Yet, he maintains that
his presentation of the evidence was more believable because it accounts for possession of the
backpack, and therefore, the pistol, at all times relevant to the charge, whereas the State’s version
allegedly does not. Mr. Walker points to testimony by Officer Cunningham on cross-
examination wherein he admitted it was possible that, during the five or six minutes he was
patrolling Newton Street and Sobul Avenue, any one of the members of the group could have
concealed the pistol on his person and placed it in the backpack behind 1228 Pondview.
Additionally, Officer Cunningham stated that there was a window of at least thirty seconds
between the time the group went behind the adjacent building at 1224 Pondview to the time they
emerged onto the street. He testified that it would only take a “few seconds” to “take a gun out
of your pants, throw it into a backpack, and then throw it into the weeds.” Based on that
11
testimony, Mr. Walker argues that he presented a substantially more plausible version of the
facts which established that he tossed the backpack in the weeds prior to meeting the other
individuals behind 1228 Pondview, and that another member of the group, knowing the location
of the backpack, placed the pistol in the backpack without his knowledge. We find no merit to
Mr. Walker’s argument.
{¶28} While Officer Cunningham admitted it was possible that somebody could have
put a gun in the backpack and thrown it in the weeds between the time the group moved away
from behind 1228 Pondview and into the street, he also said that scenario was unreasonable
because of the short length of time involved. Further, the testimony revealed that due to the
construction of the backpack, it was not possible to put anything inside of it when it was being
worn; thus, in order to put something in the backpack, the person would have to first take it off,
which makes Mr. Walker’s version of events even less likely given the time constraints involved.
Moreover, both Mr. Walker and his mother identified the backpack as belonging to Mr. Walker,
providing circumstantial evidence that anything inside of it would belong to Mr. Walker.
Despite Mr. Walker’s alternative view of the events, the jury chose to believe the State’s version
of the events. After reviewing the entire record, we cannot say the jury was unreasonable in the
conclusions it reached.
{¶29} Based on the foregoing evidence, we conclude that the jury did not lose its way in
convicting Mr. Walker of tampering with evidence. Mr. Walker’s argument that his conviction
is against the manifest weight of the evidence is without merit, and his third assignment of error
is overruled.
12
III
{¶30} Mr. Walker’s assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
EVE V. BELFANCE
FOR THE COURT
BELFANCE, P. J.
MOORE, J.
CONCUR
13
WHITMORE, J.
CONCURS IN JUDGMENT ONLY, SAYING:
{¶31} I write separately with respect to the first assignment of error. In concluding that
there was reasonable suspicion to justify the stop, the trial court considered Mr. Walker’s
untruthful responses to the officer’s questions as supportive of that determination and denoted
the stop as occurring subsequent to those responses when Mr. Walker was detained in the
cruiser. I would agree with the trial court’s resolution.
{¶32} The majority concludes that the actions taken by the officers in initiating contact
with Mr. Walker when they met the group in the street constituted a seizure for Fourth
Amendment purposes. In support of that conclusion, the majority states that “[t]he officers were
admittedly following Mr. Walker looking to see if there was a reason to stop him. They did not
merely approach the group to see if they were willing to answer questions. The officers pulled
up to the group in a police car, got out and ‘had the males stop.’”
{¶33} “Only when the officer, by means of physical force or show of authority, has in
some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.”
Terry v. Ohio (1968), 392 U.S. 1, 19, fn.16. “Indicia of a seizure, even where the person did not
attempt to leave, include ‘the threatening presence of several officers, the display of a weapon by
an officer, some physical touching of the citizen, or the use of language or tone of voice
indicating that compliance with the officer’s request might be compelled.” State v. Lawson, 9th
Dist. No. 21227, 2003-Ohio-1299, at ¶13, quoting United States v. Mendenhall (1980), 446 U.S.
544, 554. “The encounter remains consensual even if the officer asks questions, requests to
examine an individual’s identification, and asks to search the person’s belongings, provided that
the officer does not convey that compliance is required.” State v. Curtis, 2d Dist. No. 23895,
2011-Ohio-1277, at ¶19, citing State v. Taylor (1995), 106 Ohio App. 3d 741, 748.
14
{¶34} In my view, the record from the suppression hearing is somewhat murky and
simply does not establish, under the totality of the circumstances, that Walker was seized for
Fourth Amendment purposes when the group was stopped in the street, prior to responding to the
officer’s questions. At the time, the officers were outnumbered five against two and were
waiting for backup to arrive for safety. Officer Cunningham testified that he did not activate the
cruiser’s lights or siren, and did not “yell or anything like that[.]” There is no evidence that the
officers removed their weapons from their holsters or otherwise displayed them in a threatening
manner. There is no evidence that the officers blocked the group from moving or told them they
could not leave unless they answered questions. There is no evidence of record that the officers
touched the group in any manner. Mr. Walker contends in his brief that Officer Cunningham
ordered the group to place their hands on the cruiser and that this conduct constituted a sufficient
show of authority intended to impede their movement. However, in support of his argument, Mr.
Walker cites to testimony presented at trial rather than testimony presented during the
suppression hearing. There was no testimony presented at the suppression hearing that Mr.
Walker was asked to place his hands on the cruiser. Thus, the testimony he cites had no bearing
on the trial court’s decision to deny the motion and cannot be taken into consideration on appeal.
Furthermore, Officer Cunningham testified that “basically this is a field interview situation” and
there was “nobody detained” until he had enough units on the scene. Officer Cunningham also
testified that upon hearing Mr. Walker’s untruthful responses regarding the location of the
backpack, he placed Mr. Walker in the back of the cruiser “because I did not want him to leave
the scene.” Thus, it is rational to infer that until Mr. Walker was placed in the cruiser, Officer
Cunningham had not tried to prevent Mr. Walker from leaving and understood that Mr. Walker
may have felt free to leave.
15
{¶35} In at least two previous cases with similar sets of facts, this Court concluded that
the stop at issue did not exceed the bounds of a consensual encounter, even though the officers
stopped the suspects with the intent to ask questions based, in part, on observation of suspicious
behavior. See State v. Foster, 9th Dist. No. 24349, 2009-Ohio-840, at ¶2, 8-9 (officers observed
defendants do a “duck and turn,” i.e., subconscious checking of drugs or weapons; court
concluded defendants not seized when officers stepped out of the cruiser, stopped them on
sidewalk, stood in front of them only five or six feet away, shined flashlights in their faces, and
asked what they were doing and where they were about to go); Akron v. Harvey (Dec. 20, 2000),
9th Dist. No. 20016, at *2-3 (two uniformed, armed officers patrolling at night in area of high
drug activity and prostitution stopped defendant after she accelerated her pace; court concluded
defendant was not seized even though officers were standing in front of her on a sidewalk at
night with the intent to ask her some questions and complete a field interview).
{¶36} Accordingly, in view of all the circumstances surrounding this particular incident,
I would conclude that the encounter did not amount to an investigatory detention until after the
questioning when Mr. Walker was placed in the cruiser. Having so concluded, I would hold that
it was appropriate for the trial court to rely on Mr. Walker’s untruthful responses in assessing
whether there was reasonable suspicion to justify the seizure. As such, I concur in judgment
only as to the first assignment of error.
APPEARANCES:
THOMAS M. DICAUDO, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.