State v. Holmes , 2015 Ohio 5050 ( 2015 )

[Cite as State v. Holmes, 2015-Ohio-5050.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 5-15-06
v.
LAWRENCE W. HOLMES, OPINION
DEFENDANT-APPELLANT.
Appeal from Hancock County Common Pleas Court
Trial Court No. 2014CR94
Judgment Affirmed
Date of Decision: December 7, 2015
APPEARANCES:
Tim A. Dugan for Appellant
Elizabeth H. Smith for Appellee
Case No. 5-15-16
SHAW, J.
{¶1} Defendant-appellant Lawrence W. Holmes (“Holmes”) appeals the
January 26, 2015 judgment of the Hancock County Common Pleas Court
sentencing Holmes to serve 4 years in prison after Holmes was found guilty in a
jury trial of Felonious Assault in violation of R.C. 2903.11(A)(2), a felony of the
second degree.
{¶2} The facts relevant to this appeal are as follows. On April 5, 2014, at
approximately 8:30 a.m. Holmes was at his residence with his girlfriend Tammy
Theiss (“Tammy”) when their mutual friend Joe Ehlinger (“Joe”) came over with a
12-pack of beer. Holmes and Joe drank the beer then went to a bar along with
Tammy to have a pitcher of beer and play pool.
{¶3} After leaving the bar, they picked up a pizza and returned to Holmes’s
residence. Upon returning to Holmes’s residence, Joe gave Holmes $40 to
purchase some crack-cocaine, so Holmes left in his vehicle. Joe and Tammy went
inside and ate the pizza, and a short time later Holmes returned, agitated, without
the crack-cocaine. When Joe and Tammy both asked Holmes for Joe’s money,
Holmes became further agitated and broke the glass living-room table. Holmes
then gave Joe his money back and ordered Joe and Tammy to leave.
{¶4} According to Tammy, Holmes then began choking her, and Joe
intervened, at which point Holmes began to strike Joe. Joe got away from Holmes
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when Tammy drew Holmes’s attention and Joe ran out the front door into the
yard. Subsequently Holmes told Tammy to leave, and pushed her toward the door.
Tammy fell near the front door and fractured two bones in her leg. Holmes
initially asked Joe to help get Tammy out of his house, but when Joe indicated that
they were going to have to get an ambulance Holmes grew further enraged at Joe.
{¶5} Joe and Tammy both indicated that Holmes then picked up a wooden
two-by-four and started chasing Joe. Joe stated that when he started to create a
little distance between himself and Holmes, Holmes threw the two-by-four at him
and it struck Joe in the back of the head.
{¶6} While Holmes chased Joe, Tammy called 9-1-1 and police officers
responded to the scene. Tammy was taken to the hospital and treated for her
injuries. Joe refused treatment.
{¶7} On April 15, 2014, Holmes was indicted for two counts of Felonious
Assault. (Doc. No. 1). The first count was related to Joe and alleged that Holmes
knowingly caused or attempted to cause physical harm to Joe by means of a
deadly weapon—specifically, a two-by-four—on April 5, 2014, in violation of
R.C. 2903.11(A)(2), a felony of the second degree. (Id.) The second count related
to Tammy and alleged that Holmes knowingly caused her serious physical harm in
violation of R.C. 2903.11(A)(1), a felony of the second degree. (Id.) On April 23,
2014, Holmes was arraigned and he pled not guilty to the charges. (Doc. No. 9).
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{¶8} On December 8-10, 2014, the case proceeded to a jury trial. After
jury selection the trial began by the jury viewing the premises in question. At trial
the State called five witnesses, which included Tammy, Joe, and three of the
officers who responded to the scene of the incident on April 5, 2015. Multiple
pictures were also introduced into evidence depicting the interior of Holmes’s
residence, pictures of Joe’s injuries, and pictures of Tammy’s injuries. The two-
by-four was also entered into evidence. In addition, the parties stipulated, inter
alia, that Tammy’s injuries constituted serious physical harm.
{¶9} After the State rested its case, Holmes took the stand in his own
defense, testifying that Tammy fell while he was out chasing Joe, and that he was
not even around when she fell. Holmes also testified that when he threw the two-
by-four at Joe he only intended to scare him, not hit him. At the conclusion of
Holmes’s testimony, the defense rested its case.
{¶10} The parties proceeded to closing arguments and the trial court then
instructed the jury on the applicable law. Ultimately the jury found Holmes guilty
of the Felonious Assault related to Joe, but not guilty of the Felonious Assault
related to Tammy. The trial court ordered a pre-sentence investigation and the
matter was set for sentencing.
{¶11} On January 22, 2015, the case proceeded to sentencing. At the
sentencing hearing the State requested that Holmes be sentenced to serve 7 years
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in prison based in part on Holmes’s criminal and drug history. The defense
requested that Holmes be sentenced to a minimum 2-year sentence. Holmes then
made a statement continuing to maintain that he did nothing wrong. After hearing
the arguments of the parties, the trial court ordered Holmes to serve a 4-year
prison term. A judgment entry memorializing Holmes’s sentence was filed
January 26, 2015.
{¶12} It is from this judgment that Holmes appeals, asserting the following
assignments of error for our review.
ASSIGNMENT OF ERROR 1
THE STATE FAILED TO PROVIDE LEGALLY SUFFICIENT
EVIDENCE TO SUSTAIN A CONVICTION FOR
FELONIOUS ASSAULT WITH A DEADLY WEAPON.
ASSIGNMENT OF ERROR 2
APPELLANT’S CONVICTION FOR FELONIOUS ASSAULT
FELL AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
First Assignment of Error
{¶13} In Holmes’s first assignment of error he argues that there was
insufficient evidence to convict him. Specifically Holmes contends that the State
did not present sufficient evidence that the two-by-four constituted a deadly
weapon, and that the State did not establish that Joe was harmed by Holmes as a
result of being struck by the two-by-four.
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{¶14} Whether there is legally sufficient evidence to sustain a verdict is a
question of law. State v. Thompkins, 78 Ohio St. 3d 380, 386 (1997). Sufficiency
is a test of adequacy. Id. When an appellate court reviews a record upon a
sufficiency challenge, “ ‘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.’ ” State v. Leonard, 104 Ohio St. 3d 54, 2004–Ohio–6235, ¶
77, quoting State v. Jenks, 61 Ohio St. 3d 259 (1991), paragraph two of the
syllabus.
{¶15} In this case Holmes was convicted of Felonious Assault in violation
of R.C. 2903.11(A)(2), which reads, “No person shall knowingly * * * [c]ause or
attempt to cause physical harm to another * * * by means of a deadly weapon[.]”
{¶16} “Deadly weapon” is defined in R.C. 2923.11(A)1 as, “any
instrument, device, or thing capable of inflicting death, and designed or specially
adapted for use as a weapon, or possessed, carried, or used as a weapon.”
{¶17} At trial the State called five witnesses in order to convict Holmes of
Felonious Assault beginning with Tammy Theiss. Tammy testified that in April
of 2014 she was dating Holmes and she was living with him at his residence in
Findlay. Tammy testified that on April 5, 2014, she was awakened by Joe
1
Revised Code 2903.11(E)(1) states that “deadly weapon” has the same meaning as it does in R.C.
2923.11.
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knocking on the door of the residence at approximately 8:30-9 a.m. Tammy
testified that she had met Joe through Holmes a couple years prior, and that Joe
and Holmes were friends. Tammy testified that she and Holmes had just gone to
bed a few hours prior to Joe’s arrival so she asked Joe to leave, but Holmes told
Joe he could stay.
{¶18} Tammy testified that Joe brought a 12-pack of beer with him, and
that Holmes and Joe drank the entire 12-pack within 30 minutes. Tammy testified
that Joe and Holmes then wanted to go to “Nikki’s Bar” so she drove them to the
bar.
{¶19} Tammy testified that Holmes and Joe drank a pitcher of beer at the
bar, then Joe suggested they get a pizza, so they all left the bar, picked up a pizza,
and returned to Holmes’s residence. Back at Holmes’s residence, Tammy testified
that Joe gave Holmes money to get some crack-cocaine. Tammy testified that
Holmes then left in his own vehicle, and was gone about 15-20 minutes.
{¶20} Tammy testified that when Holmes returned he did not have the
crack. Tammy testified that Joe then asked for his money back, and Holmes was
not acknowledging him. Tammy testified that she then told Holmes to give Joe
his money back and then “all hell broke loose.” (Tr. at 189). Tammy testified that
Holmes struck the glass table in the living room and it shattered. Tammy testified
that Holmes then came at her and had his hands around her throat. According to
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Tammy, as she tried to get loose Joe approached Holmes and Holmes let her go
and turned toward Joe. Tammy testified that Holmes then began punching Joe in
the face.
{¶21} Tammy testified that she then called out to Holmes and drew his
attention, allowing Joe to get away. Tammy testified that Joe ran out the door
while Holmes’s attention was focused on her and then Holmes told her to get out.
Tammy testified that while she was reaching to get her phone and leave, Holmes
pushed on her, and that she eventually fell, breaking her leg. Tammy testified that
she did not believe it was Holmes’s intention to break her leg, that she felt he just
wanted her to leave.
{¶22} Tammy testified that after she fell Holmes called out to Joe to try and
get him to come back and get Tammy. Tammy testified that Joe came back and
indicated they were going to have to call an ambulance for Tammy. According to
Tammy, Holmes then said, “you just fucked up” to Joe, then Holmes picked up a
nearby two-by-four and started chasing after Joe. Tammy testified that they ran
out of sight, and she called 9-1-1.
{¶23} The 9-1-1 call was played for the jury. Tammy stated in the call that
her boyfriend broke her leg and that he was chasing her friend down the street
with a two-by-four. (State’s Ex. 8). In the call Tammy stated that she did not
know if her boyfriend “killed him or what.” (Id.)
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{¶24} Tammy testified that the police eventually arrived and she was
ultimately taken to the hospital and treated for her injuries, which included her
fractured leg.
{¶25} On cross-examination, the defense emphasized through Tammy’s
testimony that on the night before the alleged incident, and in the early morning
hours on the date of the alleged incident, Joe and Tammy were smoking crack-
cocaine at Joe’s residence. Tammy testified that because they had been smoking
crack-cocaine the night before she did not want Joe to come in when he arrived at
Holmes’s residence at 8:30 in the morning. She testified that she did not think
they needed “to get started again.” (Tr. at 227).
{¶26} Tammy also testified that Holmes had a bad temper, that she knew he
was getting angry on the date of the incident, but she whole-heartedly believed
that Holmes had no intent to break her leg.
{¶27} The State next called Joe Ehlinger. Joe corroborated Tammy’s
testimony that he arrived at Holmes’s residence at approximately 8:30 a.m. on
April 5, 2014, with a 12-pack of beer. Joe further corroborated that he and
Holmes drank the 12-pack, went to Nikki’s bar, got a pizza, then returned to
Holmes’s residence. Joe also testified that he gave Holmes $40 to go purchase
crack-cocaine for him, and that Holmes drove off in his car to go get it.
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{¶28} Joe testified that Holmes returned without the crack-cocaine and was
reluctant to give Joe his money back. Joe testified that Holmes was agitated upon
returning, and that he ultimately smashed the glass table in the living room, then
went after Tammy. Joe testified that Holmes put his hands around Tammy’s
throat. At that time, Joe testified that he screamed for Holmes to stop. Joe
testified that as soon as he touched Holmes to try and get him to stop, Holmes
turned toward him and started repeatedly hitting him. Joe testified that he put his
hands up to deflect the blows, but a few got through. Joe testified that he then
attempted to get out of the house.
{¶29} Joe testified that Tammy drew Holmes’s attention, and at that point
he ran out of the house into the yard. Joe testified when he looked back he heard
Tammy screaming in pain and Holmes was saying “get this bitch off the porch.”
(Tr. at 252). Joe testified that when he walked up to the porch and saw Tammy’s
leg he said that she needed an ambulance. Joe testified that Holmes then said,
“You just fucked up,” and grabbed a two-by-four that was nearby. (Tr. at 253).
Joe testified that he ran, and Holmes ran full speed after him, chasing him with the
two-by-four. Joe testified that he believed if Holmes would have gotten to him he
would have killed him. (Tr. at 253).
{¶30} Joe testified when he started to “put a little distance” between
himself and Holmes, indicating Holmes was not going to catch him, Holmes threw
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the two-by-four at him and it hit him in the head. Holmes testified that he kept
running and told the neighbors to call 9-1-1.
{¶31} Joe testified that the police arrived, that he spoke with them, and that
they took pictures of his abrasions. Joe also identified the two-by-four he was
struck with and the two-by-four was entered into evidence. Joe testified that as a
result of being hit by the board he had a “knot” or “goose egg” on the back of his
head that took 2-3 days to heal. Joe testified that he refused medical attention.
{¶32} Next the State called three officers who responded to the scene. The
first was Sergeant Michael Swope of the Findlay Police Department. Sergeant
Swope testified that he went to Holmes’s residence to assist the police officers
who had been dispatched there. Sergeant Swope testified that upon arrival he
observed one officer helping with Tammy and one officer speaking with Joe.
Sergeant Swope testified that Holmes was not there when he arrived but Holmes
returned a little while later, highly agitated and excited. Sergeant Swope testified
that Holmes calmed down enough and wanted to tell his side of the story to
Sergeant Swope, but as Holmes talked he kept becoming agitated and going on
tangents so he never got his story out.
{¶33} Sergeant Swope testified that Holmes was ultimately arrested and
placed in a patrol car. Sergeant Swope testified that Holmes was very agitated in
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the patrol car and that he banged his head multiple times on the screen separating
the back seat from the front.
{¶34} Sergeant Swope testified that he located the two-by-four in question
in the yard. Sergeant Swope testified that based on his training and experience the
two-by-four was capable of inflicting death.
{¶35} On cross-examination Sergeant Swope testified that he looked at the
area Joe had indicated he had been struck by the two-by-four and he did not see an
injury because it was in Joe’s hairline. (Tr. at 302).
{¶36} The State next called Officer Jordan Cramer, who also responded to
the scene. Officer Cramer corroborated Sergeant Swope’s testimony, and also
testified that he took Joe’s written statement, photographed the scene and located
the two-by-four. Officer Cramer testified that he did observe a small bruise on
Joe’s neck from where Joe indicated he had been struck by the two-by-four. This
small bruise was exhibited in a photograph, State’s Ex. 22. Officer Cramer also
testified that he had training in weapons, and based on his training he believed that
the two-by-four was capable of inflicting death through blunt force trauma.
{¶37} Lastly, the State called Officer Kevin Cieplowski. Officer
Cieplowski corroborated the testimony of the two prior officers, adding that he
helped prepare Tammy to be transported to the hospital.
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{¶38} At the conclusion of the State’s case, and at the close of evidence,
Holmes made a Crim.R. 29 motion for acquittal. The motion was overruled by the
trial court. On appeal, Holmes now renews his argument that the State presented
insufficient evidence to convict him. Specifically, Holmes argues that there was
not sufficient evidence presented that the two-by-four could qualify as a deadly
weapon. Holmes contends that it was not established that the two-by-four could
cause death, or that it could cause death being thrown rather than used as a
bludgeon. In addition, Holmes argues that there was no testimony as to Joe having
any injuries caused by the two-by-four.
{¶39} First, there was testimony directly from Joe that he was injured as a
result of Holmes throwing the two-by-four at him. Joe testified that he had a
“knot” or a bruise on his head that lasted a few days as a result of being struck. In
addition, Officer Cramer testified that he observed an abrasion on the back of
Joe’s neck where Joe indicated he had been struck by the board. That abrasion
was photographed and that photograph was introduced into evidence. Thus there
was testimony that Joe was injured as a result of being struck by the two-by-four.
{¶40} Nevertheless, even if there was not the preceding testimony, Joe
clearly testified that Holmes chased him with the two-by-four and that Joe thought
Holmes would kill him if he caught him. Joe clearly testified that Holmes threw
the two-by-four at him, and the two-by-four was located in the yard, as Joe’s
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testimony suggested. The statute at issue does not require physical harm, rather it
requires that Holmes cause or attempt to cause physical harm by means of a
deadly weapon. R.C. 2903.11(A)(2). Joe’s testimony would certainly allow a jury
to find an attempt to cause physical harm, even if actual physical harm was not
proven.
{¶41} Dealing next with Joe’s claim that there was not adequate testimony
to establish the two-by-four was a deadly weapon, both Sergeant Swope and
Officer Cramer testified that the two-by-four was capable of inflicting death. The
following specific exchange occurred during Sergeant Swope’s direct testimony.
Q: Based on your training and your experience as an officer
and a Sergeant, is it your opinion that a wooden 2 by 4 could be
capable of inflicting death?
A [Sergeant Swope]: Absolutely.
Q: Based on your training and you[r] experience as an officer
and a Sergeant, is it your opinion that [this] specific 2 by 4 that
was inside the bag marked as Exhibit 7 could be capable of
inflicting death?
A: Yes.
(Tr. at 299).
{¶42} Officer Cramer then also testified on direct that the two-by-four was
capable of inflicting death. In an exchange with the prosecutor, Officer Cramer
testified as follows.
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Q: Throughout your training and your experience to become a
police officer, did you have any training in regards to weapons?
A [Officer Cramer]: Yes.
Q: And did you have any training in regards to everyday
objects being used as weapons?
A: Yes.
***
Q: In your training and experience, was there ever an instance
where any examples of a 2 by 4 being used as a weapon?
A: Yes.
Q: That was throughout your experience or your training as
an officer?
A: Throughout my training, yes.
Q: During your training was it shown to you that a 2 by 4 or a
wooden board could be capable of inflicting death?
A: Yes.
Q: What did you learn through your training? How was that
shown to be able to be capable of inflicting death?
A: Probably striking with such force towards the head area to
cause blunt force trauma to [the] back of the head could cause
serious injury or death from the board.
Q: Based on your training and your experience as an officer, is
your experience that specifically the 2 by 4 that’s contained
within Exhibit 7 could be capable of inflicting death?
A: Yes.
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(Tr. at 319-320).
{¶43} Not only did two officers testify that the two-by-four used in this
case was capable of inflicting death, but the two-by-four was also entered into
evidence. Thus the jury could see the board for itself. Based on the testimony of
the two officers in this case, there was certainly sufficient evidence to allow a jury
to determine whether the two-by-four could constitute a deadly weapon based on
the instructions it was given.2 Therefore Holmes’s arguments on this issue are not
well-taken, and his first assignment of error is overruled.
Second Assignment of Error
{¶44} In Holmes’s second assignment of error he argues that even if there
was sufficient evidence to convict him his conviction was against the manifest
weight of the evidence.
{¶45} The Ohio Supreme Court has “carefully distinguished the terms
‘sufficiency’ and ‘weight’ in criminal cases, declaring that ‘manifest weight’ and
‘legal sufficiency’ are ‘both quantitatively and qualitatively different.’ ” Eastley v.
Volkman, 132 Ohio St. 3d 328, 2012–Ohio–2179, ¶ 10, quoting State v. Thompkins,
78 Ohio St. 3d 380 (1997), paragraph two of the syllabus.
2
We would note that finding that a two-by-four, or a similar piece of wood, can constitute a deadly weapon
is consistent with caselaw from this Court and other Ohio Appellate Courts. See State v. McAlphine 8th
Dist. Cuyahoga No. 79216, 2002 WL 120529 (two-by-four capable of inflicting death or serious injury); In
re Fortney, 4th Dist. Washington No. 05CA5, 2005-Ohio-3618 (a large stick four feet in length and six
inches in circumference can be deadly weapon); State v. Murray, 11th Dist. Lake No. 2003-L-045, 2005-
Ohio-1693 (a table leg—called a stick in the case—can be a deadly weapon when used as a club); State v.
Pope, 3d Dist. Logan No. 8-89-19, 1990 WL 157268 (Oct. 4, 1990) (toilet plunger handle can be deadly
weapon).
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{¶46} Unlike our review of the sufficiency of the evidence, an appellate
court’s function when reviewing the weight of the evidence is to determine
whether the greater amount of credible evidence supports the verdict. Thompkins,
supra, at 387. In reviewing whether the trial court's judgment was against the
weight of the evidence, the appellate court sits as a “thirteenth juror” and examines
the conflicting testimony. Id. In doing so, this Court must review the entire
record, weigh the evidence and all of the reasonable inferences, consider the
credibility of witnesses, and determine whether in resolving conflicts in the
evidence, the factfinder “ ‘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. Andrews, 3d Dist. Allen No. 1–05–70, 2006–Ohio–3764, ¶ 30,
quoting Thompkins at 387.
{¶47} In this case, after the State rested, Holmes proceeded to his case-in-
chief and he testified on his own behalf. Holmes testified that the events on the
morning of April 5, 2014, up to him breaking the table were essentially the same
as Joe and Tammy had testified. However, Holmes testified that the table broke
when he slammed coasters onto it. He also testified that he then went to remove
Tammy from his residence, but he never touched her. Holmes testified that Joe
then attacked him, so Holmes took a single swing at Joe and Joe took off running.
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{¶48} Holmes testified that he did pick up the two-by-four and he followed
Joe. Holmes testified that Tammy was injured while he followed Joe. Holmes
also testified that he threw the two-by-four only to scare Joe, and that the two-by-
four did not actually hit Joe. Holmes testified that when he went back to his
residence he saw Tammy and that she had broken her leg.
{¶49} On cross-examination Holmes testified contrary to Tammy’s
testimony that Tammy was not his girlfriend. He also testified that when Joe gave
him the money for crack he was never actually going to buy crack because he did
not have anywhere to buy it from. In addition, Holmes testified that he was
agitated on the date of the incident because of the way Tammy was treating him.
{¶50} On appeal, Holmes claims that the State did not establish that
Holmes knowingly attempted to cause physical harm with the two-by-four.
Holmes argues that no one could verify any injury to Joe’s head, and that Holmes
testified the board actually missed Joe’s head. Further, Holmes argues that he
never intended to hurt Joe; rather he only intended to scare Joe.
{¶51} Despite Holmes’s arguments, the jury was presented with testimony
from Joe and from an officer that there was an abrasion on Joe’s neck. Joe
specifically testified that he had a lump for 2-3 days from the two-by-four striking
him in the head. The jury elected not to believe Holmes’s version of events,
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which is wholly within the jury’s purview as factfinder. The jury was also in a far
better position to judge the witnesses’ credibility.
{¶52} Moreover, in this case the jury was presented with uncontroverted
evidence that Holmes chased Joe with a two-by-four. The jury believed Joe’s
testimony that Holmes threw the two-by-four and it struck him, or believed that
Holmes at least attempted to cause Joe physical harm with the two-by-four. Based
on the testimony and exhibits introduced into the record at trial we cannot find that
the jury clearly lost its way or created a manifest miscarriage of justice.
Accordingly, Holmes’s second assignment of error is overruled.
{¶53} Having found no error in the particulars assigned, Holmes’s
assignments of error are overruled and the judgment of the Hancock County
Common Pleas Court is affirmed.
Judgment Affirmed
ROGERS, P.J. and WILLAMOWSKI, J., concur.
/jlr
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