State v. McGee , 2011 Ohio 1456 ( 2011 )

[Cite as State v. McGee, 2011-Ohio-1456.]
STATE OF OHIO, JEFFERSON COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
)
PLAINTIFF-APPELLEE, )
)
VS. ) CASE NO. 09-JE-41
)
MICHELLE McGEE, ) OPINION
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common
Pleas of Jefferson County, Ohio
Case No. 09CR36
JUDGMENT: Affirmed
APPEARANCES:
For Plaintiff-Appellee Thomas R. Straus
Prosecuting Attorney
Jane M. Hanlin
Assistant Prosecutor
16001 S.R. 7
Steubenville, Ohio 43952
For Defendant-Appellant Attorney Lydia Evelyn Spragin
333 South Fourth Street
Steubenville, Ohio 43952
JUDGES:
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Dated: March 28, 2011
[Cite as State v. McGee, 2011-Ohio-1456.]
DONOFRIO, J.
{¶1} Defendant-appellant, Michelle McGee, appeals from a Jefferson County
Common Pleas Court judgment finding her guilty of contempt of court and sentencing
her to ten days in jail.
{¶2} Appellant was subpoenaed by the state to testify in her boyfriend’s
murder trial. She appeared on Friday July 31, 2009, pursuant to the subpoena.
During her direct examination, appellant repeatedly answered the prosecutor’s
questions with some form of “I do not recall.” Consequently, the prosecutor sought to
introduce a recorded statement appellant gave to police and letters that the
defendant, Terry Bickerstaff, wrote to appellant from prison. The court wanted to give
counsel time to review these items. Consequently, the court ordered appellant to
return the following Monday. It further advised her she was still under oath. At the
time, the state had not yet finished its direct examination and Bickerstaff’s counsel
had not started cross examination.
{¶3} Appellant failed to appear on Monday August 3, as ordered by the
court.
{¶4} The state filed a motion to hold appellant in contempt of court for failure
to appear. The trial court held a hearing on the motion. The court ultimately found
appellant in contempt. In so doing, it set out the facts surrounding Bickerstaff’s trial,
which highlighted why appellant’s testimony was so important.
{¶5} Bickerstaff was on trial for the aggravated murder of Darrell Longmire.
Bickerstaff and Longmire had two encounters several minutes apart. Bickerstaff
killed Longmire during the second encounter. According to the testimony and
videotape evidence, appellant was with Bickerstaff during the first encounter. She
was a key witness on issues relating to how the incident arose.
{¶6} The court noted it was uncontested that appellant was subpoenaed to
the trial and that she appeared on July 30 and 31, as ordered. Further, appellant
was ordered, in open court, to return on August 3, at 8:30 a.m. It was also
uncontested that she did not return. The only contested issue was why appellant did
not appear.
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{¶7} Appellant sought to establish an excuse for why she did not appear in
court as ordered. At the time of the trial, appellant was pregnant with Bickerstaff’s
baby. Appellant claimed that on the morning of August 3, she went into premature
labor causing her to go to three different hospitals (two of which were out-of-state)
and miss her testimony.
{¶8} The trial court found appellant’s excuse incredible. Instead, it
concluded that appellant went “hospital shopping” in West Virginia for a hospital that
would keep her long enough so that she would miss her testimony. The court duly
noted that appellant did not actually deliver her baby until August 22, 2009. Thus,
the court found appellant in contempt. The court sentenced her to ten days in jail.
{¶9} Appellant filed a timely notice of appeal on December 29, 2009. This
court stayed her sentence pending appeal.
{¶10} Appellant raises seven assignments of error, the first of which states:
{¶11} “THE TRIAL COURT ERRED AS A MATTER OF LAW AND/OR
ABUSED ITS DISCRETION WHEN IT ENTERED A FINDING OF GUILTY AND
SENTENCED MS. McGEE TO 10 DAYS IN JAIL WITHOUT CLEARLY HOLDING
THAT SHE WAS GUILTY OF CONTEMPT BEYOND A REASONABLE DOUBT. AN
ABUSE OF DISCRETION OCCURS WHEN THE COURT SENTENCES ONE TO
ACTUAL INCARCERATION WITHOUT CLEARLY HOLDING THAT SHE WAS
GUILTY OF CONTEMPT BEYOND A REASONABLE DOUBT.”
{¶12} Appellant argues that the court erred because it never specifically found
that she was guilty of contempt beyond a reasonable doubt. She seems to contend
that such an explicit finding was necessary in order to sentence her to a jail term.
{¶13} Appellant relies on Brown v. Executive 200, Inc. (1980), 64 Ohio St.2d
250, 255, for her contention that a specific finding of contempt beyond a reasonable
doubt was required. In Brown, the trial court found the appellees in contempt. It
imposed a $10,000 fine on the company, $9,000 of which was to be automatically
purged if violations were discontinued. It sentenced one appellee to ten days in jail,
which he could reduce to three days on the same conditions. And it sentenced the
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other appellee to five days in jail, all of which could be purged on the same
conditions. The court of appeals reversed the contempt findings after determining
that the trial court applied a clear and convincing standard of proof instead of proof
beyond a reasonable doubt.
{¶14} On appeal, the Ohio Supreme Court first held that the standard of proof
for criminal contempt is proof beyond a reasonable doubt. Id. at the syllabus. The
Court went on to look at the penalties imposed to determine whether the trial court
had found the contempt to be criminal or civil contempt. Id. at 253-55. The Court
stated:
{¶15} “Any civil penalties imposed will be valid since the trial judge stated that
the appellees were guilty of contempt by clear and convincing evidence. Any criminal
sanctions, however, may be invalid since the standard of proof for criminal penalties
may not have been met here. Indeed, it is possible that there was sufficient
uncontroverted evidence for the trial judge to find appellees guilty of contempt
beyond a reasonable doubt, but we cannot be certain of this because the trial judge
stated in his findings of fact that appellees were guilty of contempt by clear and
convincing evidence.” Id. at 253.
{¶16} The Court went on to find that the conditional penalties were ones for
civil contempt and the unconditional three-day sentence was one for criminal
contempt. Thus, the Court found that the trial court erred in sentencing one of the
appellees to a three-day unconditional jail sentence without clearly holding that he
was guilty of contempt beyond a reasonable doubt. Id. at 255.
{¶17} This case is distinguishable from Brown. In Brown, the trial court found
the appellees guilty of both civil and criminal contempt and imposed two separate
punishments. Yet the trial court had applied only the clear and convincing standard
of proof. Furthermore, in its syllabus, the Brown Court held only that guilt beyond a
reasonable doubt is the standard of proof required for criminal contempt. It did not
hold that the trial court must make a finding reciting this standard.
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{¶18} In the case at bar, the trial court only found appellant guilty of criminal
contempt. This is evident by appellant’s sentence. The court sentenced appellant to
ten days in jail. It attached no purge conditions to appellant’s sentence. Criminal
contempt is generally characterized by an unconditional prison sentence that
operates not as a coercive remedy but as punishment for the completed act of
disobedience and to vindicate the court's authority. Id. at 253-54. Clearly then the
court found appellant guilty of criminal contempt only. Because the court found
appellant guilty only of criminal contempt and made no indication that it applied a
clear and convincing standard of proof, it is reasonable to presume that the court
applied the proper proof beyond a reasonable doubt standard. The court is
presumed to know the law and properly apply it. State v. Sarver, 7th Dist. No. 05-CO-
53, 2007-Ohio-601, at ¶23.
{¶19} Accordingly, appellant’s first assignment of error is without merit.
{¶20} Appellant’s second and fourth assignments of error are closely related.
Therefore, we will address them together. They state:
{¶21} “TO SELECTIVELY IMPOSE A TEN DAY JAIL SENTENCE UPON
MICHELLE McGEE BUT NOT DR. SOLOMON IS CRUEL AND UNUSUAL
PUNISHMENT IN VIOLATION OF HER EIGHTH AMENDMENT RIGHT.”
{¶22} “THE TRIAL COURT ERRED AS A MATTER OF LAW AND/OR
ABUSED ITS DISCRETION WHEN IT IMPOSED A SENTENCE UPON MS. McGEE,
MEMBER OF A SUSPECT CLASS (A SINGLE, YOUNG, AFRICAN-AMERICAN,
FEMALE, UNEMPLOYED DUE TO INJURY) WHICH WAS SO SUBSTANTIALLY
DIFFERENT FROM DR. SOLOMON (A WHITE MALE PROFESSIONAL) AS TO
EXHIBIT DISPARATE IMPACT AND DISCRIMINATORY INTENT IN VIOLATION OF
THE FOURTEENTH AMENDMENT TO THE U.S. AND ARTICLE I, SECTION 2 OF
THE OHIO CONSTITUTION.”
{¶23} Some background information is helpful here. In addition to appellant,
another subpoenaed witness, Dr. Robert Solomon, failed to appear to testify at
Bickerstaff’s trial on the day he was scheduled to testify. The court addressed Dr.
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Solomon the next day during the trial. The court informed Dr. Solomon that it had
spent $500 for the police to track him down. (Friday, July 31, Tr. 3-4). The court
then gave Dr. Solomon a choice to either pay the $500 for not appearing or set the
matter for a hearing. (Friday, July 31, Tr. 5). Dr. Solomon chose to pay the $500
fine. (Friday, July 31, Tr. 6).
{¶24} Appellant argues that the trial court violated her constitutional right
against cruel and unusual punishment when it gave Dr. Solomon, a white male
professional, who also disregarded his subpoena, the choice between a $500 fine or
a contempt hearing but it sentenced her, an unemployed African American female,
who receives housing assistance and is an unwed mother of two, to ten days in jail
for the same behavior. Furthermore, she points out that she initially came to court to
honor her subpoena and even testified. Appellant alleges that the trial court
demonstrated a discriminatory intent by allowing Dr. Solomon to pay a fine and go
home yet sentencing her to ten days in jail.
{¶25} Appellant raised this issue to the trial court also. Consequently, the
court addressed it in its judgment entry. The court noted that over the years it had
only encountered three witnesses who “managed to get themselves into trouble.”
The first was a witness in another murder trial. The court noted that she was a white
employed female who lied on the stand, was indicted for perjury and convicted of the
lesser-included offense of falsification, and sentenced to jail. The second witness
was Dr. Solomon, a white male emergency room physician at the hospital where
Longmire was taken after he was fatally shot. The court noted that Dr. Solomon
failed to appear at his subpoenaed time but eventually appeared later during the trial
and made himself available. The court stated that despite his eventual appearance,
Dr. Solomon was “dressed down” in a packed courtroom, found in contempt, and
fined $500. The court then explained:
{¶26} “The differences between Dr. Soloman [sic.] and McGee are two-fold.
First, Dr. Soloman [sic.] was far less important. He was to testify as to the physical
condition of the victim, who was quite obviously dead as was testified to by the
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coroner and the Emergency Room nurse. Second and more important is the fact that
Dr. Soloman [sic.], unlike McGee eventually showed up during the trial at a time that
he could still testify. * * * Despite counsel[’]s best efforts and highest hopes there are
no racial or class standing issues in this contempt case.”
{¶27} Firstly, appellant’s penalty was clearly within the range contemplated by
the statute setting out penalties for contempt. R.C. 2705.05(A)(1) provides:
{¶28} “(A) In all contempt proceedings, the court shall conduct a hearing. At
the hearing, the court shall investigate the charge and hear any answer or testimony
that the accused makes or offers and shall determine whether the accused is guilty of
the contempt charge. If the accused is found guilty, the court may impose any of the
following penalties:
{¶29} “(1) For a first offense, a fine of not more than two hundred fifty dollars,
a definite term of imprisonment of not more than thirty days in jail, or both.”
{¶30} The trial court only sentenced appellant to ten days in jail, well below
the maximum penalty for a first-time contemnor of 30 days in jail and a $250 fine.
{¶31} Secondly, appellant does not cite to any case or statutory law for the
proposition that courts must mete out consistent penalties for contemnors. While
there is such law requiring that sentences should be imposed for similar offenses
committed by similar offenders for felony sentencing (R.C. 2929.11(B)) and
misdemeanor sentencing (R.C. 2929.21(B)), there is no similar provision in the
contempt penalty statute.
{¶32} Thirdly, the court gave a valid, race-neutral explanation for why it
treated appellant differently from Dr. Solomon: Dr. Solomon’s testimony was not
nearly as important as appellant’s testimony and Dr. Solomon appeared at
Bickerstaff’s trial when he could still testify. Thus, the trial court judged appellant’s
disregard for her subpoena to be a much more serious matter than Dr. Solomon’s
disregard.
{¶33} Fourthly, appellant was a material witness in a murder trial who was in
the middle of her testimony. Dr. Solomon, however, was not a key witness. The trial
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court noted that the one time he appeared and could have testified, the state chose
not to call him because the coroner and the emergency room nurse had already
testified that the victim had died and this was the only matter Dr. Solomon was to
testify to.
{¶34} Fifthly, appellant claimed that she was in preterm labor on the day she
was to appear back in court. She travelled to three different hospitals seeking
treatment yet none of the hospitals admitted her. Oddly, she did not contact her own
obstetrician until the following day. And despite the fact that she was in the middle
of her testimony and knowing she was under court order to return, she never called
the court to report that she was having medical issues that would prevent her from
returning as ordered.
{¶35} Finally, an appellate court will not reverse the punishment imposed for
contempt absent an abuse of discretion by the trial court. State v. Kilbane (1980), 61
Ohio St.2d 201, 207. An abuse of discretion is more than an error of law or
judgment; it implies that the trial court's judgment was unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. For all of
the above cited reasons, we cannot conclude that the ten-day sentence was an
abuse of discretion.
{¶36} Accordingly, appellant’s second and fourth assignments of error are
without merit.
{¶37} Appellant’s third assignment of error states:
{¶38} “THE JUDGE DID NOT INQUIRE AS TO WHETHER MS. McGEE HAD
THE ABILITY TO PAY A FINE OR PERFORM COMMUNITY SERVICE WORK IN
LIEU OF FINE. * * * A SENTENCING COURT IS UNDER A MANDATORY DUTY
TO CONSIDER THE DEFENDANT’S ABILITY TO PAY A FINE OR THE COSTS OF
CONFINEMENT IN A COUNTY OPERATED FACILITY. THIS DOES NOT ALWAYS
REQUIRE A HEARING. SINCE THE DUTY IS MANDATORY, THE ISSUE IS NOT
WAIVED BY THE DEFENDANT’S FAILURE TO OBJECT.” (Citation omitted.)
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{¶39} Here appellant argues that the trial court erred in failing to consider,
pursuant to R.C. 2929.19(B)(6), her ability to pay a fine.
{¶40} Appellant claims that the court was required to consider her ability to
pay a fine because such is mandated by R.C. 2929.19(B)(6). R.C.2929.19(B)(6)
does require that a court consider the offender’s ability to pay before imposing a
financial sanction or a fine. But R.C. 2929.19 applies only to felony sentencing. It
does not apply to contempt penalties. Furthermore, even if it did apply to contempt
penalties, R.C. 2929.19(B)(6) only requires the court to consider the offender’s ability
to pay before imposing a financial sanction or fine. In this case, the court did not
impose a fine. Thus, it would not have to consider appellant’s ability to pay.
{¶41} Accordingly, appellant’s third assignment of error is without merit.
{¶42} Appellant’s fifth assignment of error states:
{¶43} “THE TRIAL COURT ERRED WHEN WITH FULL KNOWLEDGE OF
MS. McGEE’S CONDITION THE COURT DID NOT SPECIFICALLY TELL HER
THAT SHE WAS PROHIBITED FROM SEEKING MEDICAL ATTENTION UNTIL
AFTER SHE APPEARED AT THE COURT.”
{¶44} Appellant seems to suggest here that if the trial court wanted her to
appear to testify on Monday August 3, it should have instructed her the previous
Friday that she was prohibited from seeking medical attention until after she
appeared in court Monday morning.
{¶45} What appellant suggests here is nonsensical. If appellant was truly
experiencing a medical emergency, then clearly the court would understand if she
went to seek medical attention instead of appearing in court as ordered. No court
would ever order a person to abstain from medically necessary treatment.
{¶46} Accordingly, appellant’s fifth assignment of error is without merit.
{¶47} Appellant’s sixth assignment of error states:
{¶48} “THE COURT ERRONEOUSLY BASED ITS CONCLUSION THAT MS.
McGEE’S EXCUSE WAS A ‘CONTRIVANCE IN ORDER TO AVOID HER
TESTIMONY AND TO PROTECT HER BOYFRIEND’ ON FACTS NOT IN
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EVIDENCE AND IN VIOLATION OF THE SIXTH AMENDMENT TO THE U.S.
CONSTITUTION.”
{¶49} Appellant next argues that while she presented evidence as to why she
did not show up for court, the prosecution did not present any evidence. Appellant
claims that the court relied upon its own evidence to find her guilty of contempt. For
support she cites to the following colloquy that occurred the day after she was
supposed to appear in court:
{¶50} “MICHELLE MCGEE: Yeah. I’m in preterm labor. I shouldn’t even be
here.
{¶51} “THE COURT: Well, we heard all that yesterday as she bounced from
hospital to hospital to doctor trying to get somebody to say she was in labor.
{¶52} “MS. SPRAGIN [appellant’s counsel]: No. I have paperwork.
{¶53} “THE COURT: What she doesn’t know is that we were calling them all
right behind her and we were talking to them.
{¶54} “MICHELLE MCGEE: Yeah but I have times and everything.
{¶55} “THE COURT: As she got escorted out of one hospital she’d go to
another one and tell them the same thing.” (Aug. 4, 2009 Hearing Tr. 9).
{¶56} As noted above, the burden of proof for criminal contempt is beyond a
reasonable doubt. Brown, 64 Ohio St.2d at the syllabus. Criminal contempt requires
proof of a purposeful, willing, or intentional violation of a trial court's order. Carroll v.
Detty (1996), 113 Ohio App.3d 708, 711. “Impossibility of compliance is an
affirmative defense for which the alleged contemnor has the burden of proof.”
Olmsted Tp. v. Riolo (1988), 49 Ohio App.3d 114, 117, citing Smedley v. State
(1916), 95 Ohio St. 141, 143.
{¶57} The burden was on the state to show that appellant purposely, willingly,
or intentionally failed to obey the trial court’s order to appear to testify on August 3,
2009, at 8:30 a.m. It was uncontroverted that appellant knew she was under court
order to appear on the specified date and time. It was also uncontroverted that she
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did not appear on that date. Thus, the burden was on appellant to show that it was
impossible for her to comply with the court’s order.
{¶58} Appellant presented one witness and also took the stand in her
defense. First, she called her obstetrician, Dr. Harry Edwards. Dr. Edwards testified
that he saw appellant in his office on August 4, the day after she was to appear in
court. (Contempt Tr. 14). He stated that her cervix was two centimeters dilated at
that time, which was unusual for someone at that gestational age. (Contempt Tr. 14).
Dr. Edwards further testified that appellant delivered her baby on August 22, 2009.
(Contempt Tr. 25). On cross-examination, Dr. Edwards stated that he only has
privileges at Trinity West Hospital (in Ohio) and does not have privileges at Weirton
Medical Center or Ohio Valley Medical Center (both in West Virginia). (Contempt Tr.
28). He further testified that he did not see appellant on the relevant date of August
3. (Contempt Tr. 28).
{¶59} Appellant testified that on the morning of August 3, she woke up with
stomach pains and breathing problems. (Contempt Tr. 30). She stated that she went
first to Trinity West Hospital. (Contempt Tr. 30). Appellant stated that she had
bronchitis and was experiencing Braxton Hicks contractions. (Contempt Tr. 30). She
stated that Trinity West treated her with fluids and an inhaler. (Contempt Tr. 30).
Appellant then left and went to Weirton Medical Center because she was still in pain
and concerned. (Contempt Tr. 30-31). She stated that when she arrived at Weirton
Medical Center, she was two centimeters dilated. (Contempt Tr. 31). Appellant
stated that she was given a shot to stop her contractions so that she would not go
into labor, but she was not admitted. (Contempt Tr. 32). She testified that she was
still in severe pain so she went next to Wheeling (to Ohio Valley Medical Center).
(Contempt Tr. 32). At Ohio Valley, appellant stated that they observed her and gave
her fluids as they had at Weirton. (Contempt Tr. 33). She testified that she obtained
written proof from the two West Virginia hospitals that she was there on August 3.
(Tr. 34, 38).
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{¶60} Appellant attempted to introduce two exhibits. The first was from
Weirton Medical Center. (Ex. A). It appeared to be a note written on a prescription
pad that stated appellant was at Weirton Medical Center at Labor and Delivery “for
preterm labor.” It was dated August 3, 2009, and signed by a nurse. It did not state
at what time appellant was there. The second exhibit was from Ohio Valley Medical
Center. (Ex. B). It too appeared to be a note written on a prescription pad and signed
by a nurse. It stated that appellant was seen in Labor and Delivery on August 3 from
12:45 p.m. until 3:25 p.m. to rule out active labor. The trial court did not admit either
of these exhibits as being hearsay and not authenticated. (Contempt Tr. 35, 39).
{¶61} On cross-examination, appellant admitted that all three hospitals
discharged her that day. (Contempt Tr. 40). And she stated that she did not deliver
her baby until August 22. (Contempt Tr. 40).
{¶62} Notably, appellant did not call any medical witness who saw her at any
of the three hospitals on August 3 to testify that she was indeed experiencing preterm
labor.
{¶63} Based on this evidence, the trial court made detailed findings. It stated
that it disbelieved appellant’s excuse and found that “on the day of her testimony
McGee went [sic.] simply went shopping for a hospital that would give her an
excuse.” The court disbelieved appellant’s testimony that she went to Trinity West
because appellant failed to subpoena anyone from that hospital and, if she indeed
went there, it would have been her first hospital of the day. It also pointed out that
appellant’s counsel complained about not being able to subpoena Weirton’s staff, as
they are in West Virginia, yet she never subpoenaed Trinity West’s staff, which she
could have easily done. Furthermore, the court found it odd that Trinity West did not
contact Dr. Edwards since he was appellant’s treating obstetrician who had privileges
there. And the court found it odd that appellant did not obtain a slip from Trinity West
stating that she was there. Next, the court found it odd that appellant did not submit
one medical record to substantiate her claim. For all of these reasons, the court
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found appellant’s excuse for her failure to appear “was a contrivance in order to avoid
her testimony and to protect her boyfriend.”
{¶64} The evidence, or lack thereof, supports the court’s finding that appellant
went “hospital shopping” on August 3, in order to avoid testifying against her
boyfriend. Although appellant alleged she was in preterm labor on August 3, she did
not contact her obstetrician until August 4. Furthermore, according to appellant, she
went to three different hospitals that day and none of them admitted her. And, as the
trial court observed, appellant did not call one witness who examined her on August
3 nor did she submit one medical record to substantiate her claim. Consequently, the
trial court properly found that appellant did not meet her burden of proving
impossibility to comply with her subpoena.
{¶65} Accordingly, appellant’s sixth assignment of error is without merit.
{¶66} Appellant’s seventh assignment of error states:
{¶67} “THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED WHEN
IT PROHIBITED DR. EDWARDS FROM TESTIFYING OR ADMITTING THE NOTES
OF THE TREATING MEDICAL PROFESSIONAL AS WRITTEN ON THE SECURITY
ENCODED PRESCRIPTION PADS.”
{¶68} Appellant talks here about privilege-protected medical information. She
then states that the court should have admitted her hospital documentation and the
testimony of Dr. Edwards, which established that she was in preterm labor on August
3.
{¶69} A trial court has broad discretion in determining whether to admit or
exclude evidence and its decision will not be reversed absent an abuse of discretion.
State v. Mays (1996), 108 Ohio App.3d 598, 617.
{¶70} Hearsay is an out-of-court statement, offered in court, to prove the truth
of the matter asserted. Evid.R. 801(C). Generally, hearsay is inadmissible. Evid.R.
802.
{¶71} Here the trial court found appellant’s hospital notes to be hearsay. This
decision was not an abuse of discretion. The notes were each signed by a nurse and
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stated that appellant had been seen at the hospital that day. They were offered by
appellant as proof that she was at Weirton Medical Center and Ohio Valley Medical
Center on August 3. Thus, they were offered to prove the truth of the matter
asserted. Additionally, neither nurse who signed the notes appeared in court to
testify as to the truth of the notes or their authenticity. Because the notes contained
hearsay, the court’s decision to exclude them was proper.
{¶72} Accordingly, appellant’s seventh assignment of error is without merit.
{¶73} For the reasons stated above, the trial court’s judgment is hereby
affirmed.
Vukovich, .J., concurs.
Waite, P.J., concurs.