State v. Allen , 2012 Ohio 1831 ( 2012 )

[Cite as State v. Allen, 2012-Ohio-1831.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97014
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DEMETRIUS ALLEN
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-540250
BEFORE: Blackmon, A.J., S. Gallagher, J., and Kilbane, J.
RELEASED AND JOURNALIZED: April 26, 2012
-i-
2
ATTORNEY FOR APPELLANT
Joseph Vincent Pagano
P.O. Box 16869
Rocky River, Ohio 44116
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Sanjeev Bhasker
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, A.J.:
3
{¶1} Appellant Demetrius Allen appeals his convictions and sentence. Allen
assigns the following errors
for our review:1
I. Appellant’s convictions are against the manifest weight of the
evidence.
II. The trial court erred when it denied appellant’s motion for acquittal
under Crim.R. 29 because the state failed to present sufficient evidence
to establish beyond a reasonable doubt the elements necessary to
support the convictions.
III. Appellant was deprived of his due process rights and his rights to a
fair trial by jury under the Sixth Amendment of the U.S. Constitution
where issues of sleeping jurors were not timely addressed.
IV. Suggestions of potential gang affiliation and improper comments
about defense counsel resulted in prejudice and deprived appellant of
his federal and state constitutional rights to due process and a fair trial.
V. Defendant was denied his right of confrontation and
cross-examination when the court permitted hearsay information.
VI. The trial court erred by imposing separate sentences for allied
offenses of similar import.
{¶2} Having reviewed the record and pertinent law, we affirm Allen’s
convictions. The apposite facts follow.
{¶3} In the early evening of July 17, 2010, five men were socializing in front of a
house located near the intersection of East 123rd Street and Signet Avenue in Cleveland,
Ohio. At approximately 8:30 PM, two men approached, one armed with an assault rifle,
This appeal is a companion case arising out of the same events as contained
1
in State v. Logan, 8th Dist. No. 97022.
4
and unleashed a barrage of gunfire on the assembled men. At the end of the onslaught,
two men, Miley Slaughter and Kenneth Green, were dead. Two others, Timothy Sisson
and Antwon Weems, were wounded, and a fifth man, Willie Tyson, escaped unharmed.
{¶4} As a result of the attack, on August 4, 2010, a Cuyahoga County Grand Jury
indicted Demetrius Allen and Montez Logan, with two counts of aggravated murder and
three counts of attempted aggravated murder. Each count had course of conduct, as well
as one and three-year firearm specifications attached. The grand jury also indicted Allen
and Logan with two counts of having weapons while under disability.
{¶5} On August 9, 2010, Allen and Logan pleaded not guilty at the arraignment.
Thereafter, numerous pretrials were conducted. On May 23, 2011, a joint jury trial
commenced.
Jury Trial
{¶6} At trial, the state presented the testimony of 22 witnesses, including Eric
Brown testified that on the evening of July 17, 2010, after playing cards on his front
porch, went inside to sit in his living room. Brown later looked through his bay window
and saw Slaughter, Green, Sisson, Weems, and Tyson socializing in front of his house.
{¶7} Brown testified that he heard gunfire a short time later and looked through
the window and saw Allen discharging a military-style automatic gun at the men
assembled, who attempted to flee. Two of the men ran up the driveway and others ran
down the sidewalk. While continuing to shoot, Allen ran across Brown’s front lawn,
5
Slaughter fell in the driveway, and Allen stood over him and stated: “I got your bitch ass.”
Brown testified that throughout the rampage, Logan was standing close to Allen and was
very hyped up, but did not have a weapon.
{¶8} Brown he immediately closed the curtains to the bay window after
witnessing the shootings, and was somewhat surprised that Allen had not seen him
watching. After the assailants fled, Brown exited his house and found Slaughter dead in
his driveway. Brown found Green lying in his backyard, bleeding and grasping for air.
Brown took off his shirt and applied pressure to the wound until paramedics arrived.
{¶9} Brown had an unobstructed view of Allen and Logan from his bay window
and stated that he recognized Allen from the neighborhood, but did not know his name.
Because of a basic distrust for the police and not wanting to be labeled a “snitch,” Brown
was reluctant to cooperate with the investigation. However, Brown described Allen and
Logan to his neighbors and subsequently identified both Allen and Logan from a police
photo array.
{¶10} Weems testified that he and the others immediately started running once
the gunfire started. Weems ran up Brown’s driveway, where he saw Slaughter, who had
fallen to the ground. Weems, while trying to help Slaughter, could still hear gunfire and
could see the sparks from the gunshots. Weems turned around and saw the faces of the
assailants. Weems escaped through a neighbor’s backyard, but sustained a gunshot
wound to his foot.
6
{¶11} Weems recognized both assailants because he had gone to high school with
Logan and knew the mother of Allen’s child, but did not remember their names. Weems
testified that Allen was the shooter. Weems, like Brown, initially did not cooperate with
the police investigation, hinting that he had contemplated taking matters into his own
hands. However, Weems eventually gave a statement to the police and subsequently
identified both men from a photo array.
{¶12} Sisson testified that on the night of the shooting, he initially heard three
gunshots, followed by rapid fire from an automatic weapon, and then everyone who had
assembled began to disperse. Sisson stated that a light-complexioned black male,
armed with a gun, approached, and continued to shoot. Sisson, who testified that he did
not get a good look at the assailant, fled in the direction of East 123rd Street. As Sisson
ran, he could feel the heat from the bullets passing him and felt certain that he would be
killed. Sisson was grazed on his foot by a bullet, and was treated and released from the
hospital.
{¶13} Tyson testified that he escaped the onslaught unharmed by fleeing and
hiding in a neighbor’s garage until the shooting ended. When Tyson exited the garage,
he discovered Slaughter’s dead body in Brown’s driveway and found Green, who later
died, lying in the backyard.
{¶14} Detectives Wally Everett and Michael Smith of the Cleveland Police
Department’s Homicide Unit testified they interviewed several individuals following the
7
shooting. Detectives Everett and Smith confirmed that both Brown and Weems were
very reluctant to cooperate with the investigation, but eventually did, and subsequently
on separate occasions identified Allen and Logan from photo arrays.
{¶15} Allen’s younger brother, Deandre Allen, testified for the defense.
Deandre testified that earlier that evening, Allen and Logan took him and his friend
Dapolo Green to a shoe store near the Lee-Harvard Shopping Center. Deandre stated
that Allen and Logan dropped them off at home, left together, and never returned that
night.
{¶16} Allen and Logan took the stand in their own defense. Both men testified
to being lifelong friends. Both men testified that in the early evening of July 17, 2010,
they took Allen’s younger brother and his friend to a shoe store near the Lee-Harvard
Shopping Center. Allen and Logan testified that they took his younger brother and his
friend back to the house and then went to sell drugs. Logan confirmed that he went to
high school with Weems and added that they played middle league football when they
were younger. Both Allen and Logan maintain they had nothing to do with the shooting.
{¶17} On rebuttal, the state presented the testimony of Dapolo Green, who
testified that the day before the shooting, Deandre indicated that Allen and Logan were
going to “shoot up the block” the following day. Green testified that he did not believe
Deandre. Green confirmed that Allen and Logan had driven him and Deandre to the
8
shoe store, that they were dropped off at Allen’s home, that Allen and Logan left together,
and that they did not return that night.
{¶18} The jury found Allen guilty of all charges and the specifications attached.
The trial court sentenced Allen to an aggregate prison term of 46 years to life, with the
possibility of parole after 23 years.
Sufficiency of Evidence
{¶19} For ease of discussion we begin with the second assigned error, wherein
Allen argues the state failed to present sufficient evidence to support his conviction, thus,
the trial court should have granted his motion for acquittal. Pursuant to Crim.R. 29(A), a
court “shall order the entry of a judgment of acquittal of one or more offenses * * * if the
evidence is insufficient to sustain a conviction of such offense or offenses.”
{¶20} 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.
State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
A reviewing court is not to assess “whether the state’s evidence is to be believed, but
9
whether, if believed, the evidence against a defendant would support a conviction.” State
v. Thompkins, 78 Ohio St.3d 380, 390, 1997-Ohio-52, 678 N.E.2d 541.
{¶21} In the instant case, Allen specifically claims he was misidentified, that he
was elsewhere, and that he had nothing to do with the shooting.
{¶22} In determining the admissibility of challenged identification testimony, a
reviewing court applies a two-prong test: (1) did the defendant demonstrate that the
identification procedure was unduly suggestive; and, if so, (2) whether the identification,
viewed under the totality of the circumstances, is reliable despite its suggestive character.
State v. Mills, 8th Dist. No. 95837, 2011-Ohio-3837, ¶ 16, citing State v. Harris, 2d
Dist. No. 19796, 2004-Ohio-3570, ¶ 19. “Stated differently, the issue is whether the
identification, viewed under the totality of the circumstances, is reliable despite the
suggestive procedure.” State v. Wills, 120 Ohio App.3d 320, 324-325, 696 N.E.2d 1072(8th Dist.1997).
{¶23} At trial, three separate witnesses, including two victims, testified about the
shooting. Brown, a disinterested third party, watched through the bay window of his
home as Allen carried out the attack on the group of men. Brown also remarked that he
was surprised that Allen did not see him watching the onslaught. Brown, who was
reluctant to cooperate with the police, testified that he knew Allen and Logan from seeing
them around the neighborhood. Brown positively identified both men from a photo
array. Brown testified that he had no doubt about the identity of Allen and Logan.
10
{¶24} Weems, a victim of the attack, had a good look at Allen and Logan when
he tried to help Slaughter, who had been shot and had fallen in the driveway. Weems
went to school with Logan, which was confirmed by Logan’s testimony, and stated that
he knew the mother of Allen’s child. Weems, who also was reluctant to cooperate with
the police, positively identified Allen and Logan from a photo array.
{¶25} Sisson, another victim of the attack, did not get a good look at the
assailants, but stated that he was a light-complexioned black male that had the gun. The
record indicates that Sisson’s description is consistent with Allen’s physical appearance.
{¶26} Here, all three witnesses had the opportunity to observe the assailants at
close range at the time of the attack. These observations, coupled with Brown and
Weems’s prior recognition of the assailants from seeing them in and around the
neighborhood, and Weems having attended school with Logan, plus his familiarity with
Allen by virtue of knowing his child’s mother, significantly reduces the chance of
misidentification.
{¶27} Under the totality of the circumstances, the identification was reliable.
Further, given the reliable identification and given that there is no dispute that the attack
occurred, leaving two dead and two wounded, the state presented sufficient evidence to
support Allen’s convictions. Consequently, the trial court properly overruled Allen’s
motion for acquittal. Accordingly, we overrule the second assigned error.
Manifest Weight of Evidence
11
{¶28} In the first assigned error, Allen argues his conviction was against the
manifest weight of the evidence.
{¶29} In State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d
1264, the Ohio Supreme Court addressed the standard of review for a criminal manifest
weight challenge, as follows:
The criminal manifest-weight-of-the-evidence standard was explained
in State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541.
In Thompkins, the court distinguished between sufficiency of the
evidence and manifest weight of the evidence, finding that these
concepts differ both qualitatively and quantitatively. Id. at 386, 678
N.E.2d 541. The court held that sufficiency of the evidence is a test of
adequacy as to whether the evidence is legally sufficient to support a
verdict as a matter of law, but weight of the evidence addresses the
evidence’s effect of inducing belief. Id. at 386–387, 678 N.E.2d 541. In
other words, a reviewing court asks whose evidence is more
persuasive—the state’s or the defendant’s? We went on to hold that
although there may be sufficient evidence to support a judgment, it
could nevertheless be against the manifest weight of the evidence. Id. at
387, 678 N.E.2d 541. “When a court of appeals reverses a judgment of a
trial court on the basis that the verdict is against the weight of the
evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees
with the factfinder’s resolution of the conflicting testimony.” Id. at 387,
678 N.E.2d 541, citing Tibbs v. Florida (1982), 457 U.S. 31, 42, 102 S.Ct.
2211, 72 L.Ed.2d 652.
{¶30} Allen argues the state presented conflicting and inconsistent testimonies,
lacking in credibility. However, we remain mindful that the weight of the evidence and
the credibility of the witnesses are matters primarily for the fact-finder to assess. State v.
DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus.
The rationale is that the trier of fact is in the best position to take into account
12
inconsistencies, along with the witnesses’ manner and demeanor, and determine whether
the witnesses’ testimonies are credible. State v. Williams, 10th Dist. No. 02AP-35,
2002-Ohio-4503.
{¶31} The record in this case does not support a conclusion that the jury lost its
way in finding Allen guilty of the instant charges. Brown, Weems, and Sisson provided
a clear and coherent description of the rampage. Both Brown and Weems recognized
Allen and Logan, and although initially reluctant to assist police with the investigation,
they explained their reasons for their reluctance. In short, Allen’s convictions are
supported by the manifest weight of the evidence. State v. Smith, 8th Dist. No. 95541,
2011-Ohio-3581, ¶ 53–55. Accordingly, we overrule the first assigned error.
Sleeping Jurors
{¶32} In the third assigned error, Allen argues he was denied a fair trial because
the trial court did not timely address the issue of sleeping jurors. Specifically, Allen
maintains that certain jurors were observed sleeping throughout the trial and as early as
opening statement.
{¶33} In State v. Sanders, 92 Ohio St.3d 245, 750 N.E.2d 90 (2001), the Ohio
Supreme Court held that a trial court has broad discretion in handling a situation in which
a juror has fallen asleep during testimony.
{¶34} In this case, the matter was brought to the trial court’s attention, defense
counsel requested, and the trial court granted an in-camera inspection of Juror Numbers
13
1 and 3. The in camera inspection took place prior to the deliberation. The trial court
subsequently removed Juror Number 3. The trial court allowed Juror Number 1 to
remain on the panel after determining that Juror Number 1 was not sleeping. The record
reveals that defense counsel agreed with the trial court’s determination regarding Juror
Number 1.
{¶35} The record also reveals that defense counsel only requested an in camera
inspection of Juror Numbers 1 and 3. Defense counsel could have moved the court to
voir dire or replace other jurors now alleged to have been sleeping. Instead, defense
counsel remained silent. Thus, any allegation of additional sleeping jurors is waived
absent plain error. State v. Brown, 11th Dist. No. 2003-A-0092, 2005-Ohio-2879, at ¶ 80.
Notice of plain error “is to be taken with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice.” State v. Long, 53
Ohio St.2d 91, 97, 372 N.E.2d 804 (1978). Plain error exists only where the results of the
trial would have been different without the alleged error. State v. Green, 90 Ohio St.3d
352, 373, 2000-Ohio-182, 738 N.E.2d 1208.
{¶36} Without more evidence, for example, of what other jurors were actually
sleeping and for how long, we find no error. Accordingly, we overrule the third assigned
error.
14
Suggestion of Gang Affiliation and Prosecutor’s Improper Comments
{¶37} In the fourth assigned error, Allen argues he was prejudiced by the
prosecutor’s suggestion that he was affiliated with a gang and the prosecutor’s improper
comments about defense counsel.
{¶38} A trial court has broad discretion concerning the admission of evidence; in
the absence of an abuse of discretion that materially prejudices a defendant, a reviewing
court generally will not reverse an evidentiary ruling. State v. Humberto, 10th Dist. No.
10AP–527, 2011-Ohio-3080, citing State v. Issa, 93 Ohio St.3d 49, 64, 752 N.E.2d 904(2001).
{¶39} At trial, on direct examination, Allen testified as follows:
Q. Have you ever lived on Benham?
A. No.
Q. There has been a description from some of the witnesses as to Benham
Boys. Have you ever heard that term?
A. Yes.
Q. What is the Benham Boys?
A. That’s their little gang.
Q. Are you a member of the Benham Boys?
A. No.
Q. Have you ever been a member of Benham Boys?
15
A. No. Tr. 1881-1882.
{¶40} On cross-examination, Allen testified as follows:
Q. You’ve never been associated with anyone in the Benham area?
A. No.
Q. Never been associated with gangs in the Benham area?
A. No.
Q. Never been associated with the Nelson Street gang?
A. No.
Q. Know any members of either of those gangs?
A. No. Tr. 1919.
{¶41} A review of the above excerpt indicates that Allen opened the door, which
elicited the testimony of potential gang affiliation. Thus, while the state’s questions may
not otherwise have been admissible, because Allen first raised the issue, it became open
to all relevant inquiry. State v. Woodard, 11th Dist. No. 2009-A-0047, 2010-Ohio-2949.
{¶42} Further, even if admission of evidence potentially linking Allen to a gang
was error, such admission was not prejudicial. As discussed previously, the state
presented sufficient evidence to sustain Allen’s convictions. Brown and Weems, two
pivotal witnesses, observed Allen carrying out the attack and both witnesses positively
identified him as the shooter from a photo array.
16
{¶43} Given this testimony, we find that Allen has failed to demonstrate how the
admission of the testimony alleging the potential of gang membership adversely affected
his right to a fair trial or that his convictions constituted a manifest miscarriage of justice.
As such, we find no merit in Allen’s contention.
{¶44} Within this assigned error, Allen also argues that he was prejudiced by the
prosecutor’s statement, during closing argument, that defense attorneys could not be
trusted because their sole job is to acquit their clients.
{¶45} Initially, a prosecutor is entitled to a certain degree of latitude in closing
arguments. State v. Fether, 5th Dist. No. 2011-CA-00148, 2012-Ohio-892, citing State v.
Liberatore, 69 Ohio St.2d 583, 589, 433 N.E.2d 561 (1982). Thus, it falls within the
sound discretion of the trial court to determine the propriety of these arguments. State v.
Maurer, 15 Ohio St.3d 239, 269, 473 N.E.2d 768 (1984). A conviction will be reversed
only where it is clear beyond a reasonable doubt that, absent the prosecutor’s comments,
the jury would not have found the defendant guilty. State v. Benge, 75 Ohio St.3d 136,
141, 1996-Ohio-227, 661 N.E.2d 1019. In the instant case, during closing argument,
defense counsel stated: “trust me if you’re going to describe the person of the face that
you know you saw, you’re going to use that kind of precise language. You don’t
suddenly come in and use that precise language when you’re testifying at trial.” Tr. 2118.
17
{¶46} The prosecutor responded by stating: “* * * you can’t trust her. You
can’t. This isn’t about trusting attorneys. You definitely can’t trust defense attorney
because their sole job is to acquit their defendants * * *. She’s up here saying trust me,
and I’m telling you and the Court will tell you that you can’t trust what attorneys tell
you.” Tr. 2208.
{¶47} Here, being mindful that we are reviewing a sterile transcript, without the
benefit of hearing and seeing the emotions associated with the words, when spoken, the
above excerpt does not establish that defense counsel was suggesting that the jury
disregard the evidence presented. We conclude, “trust me” was just a matter of
speaking.
{¶48} Likewise, though not artfully delivered, the prosecutor’s statement, that
you can’t trust defense attorneys because their only job is to acquit defendants, was not
meant to be taken literally. If it were, it would be akin to a defense counsel stating that
you can’t trust prosecutors because their sole job is to convict defendants. Even though
this situation involved a poor choice of words, we conclude the prosecutor was attempting
to emphasize that the jury must focus on the evidence presented.
{¶49} Furthermore, “[i]solated comments by a prosecutor are not to be taken out
of context and given their most damaging meaning.” Donnelly v. DeChristoforo, 416 U.S.
637, 647, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). Finally, the Ohio Supreme Court has
overruled a prosecutorial misconduct argument because the evidence of the defendant’s
18
guilt was overwhelming. See State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 840
N.E.2d 151, ¶ 116, citing State v. Rahman, 23 Ohio St.3d 146, 154-155, 492 N.E.2d 401(1986). As such, the prosecutor’s isolated statement was not prejudicial. Accordingly,
we overrule the fourth assigned error.
Hearsay Evidence
{¶50} In the fifth assigned error, Allen argues the trial court allowed the state to
introduce hearsay evidence.
{¶51} “Hearsay” is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted. Evid.R. 801(C). Unless an exception to the hearsay rule applies, hearsay is
inadmissible. Evid.R. 802.
{¶52} In the instant case, Allen argues that Weems was allowed to testify with
hearsay evidence.
{¶53} At trial, Weems testified that he recognized both Allen and Logan at the
time of the shooting. As previously discussed, Weems went to high school with Logan
and was familiar with Allen because he knew his child’s mother. However, Weems did
not remember the assailants’ names until after speaking with Christopher Perkins.
{¶54} Here, Weems’s statement was only offered to show how he recalled the
names of the assailants. As such, the statement was not hearsay and was properly
admitted. Accordingly, we overrule the fifth assigned error.
19
Allied Offenses
{¶55} In the sixth assigned error, Allen argues the trial court erred by failing to
merge all of the offenses for purposes of sentencing because all of the offenses arose out
of the same alleged criminal transaction, and are therefore allied offenses of similar
import.
{¶56} A defendant may be found guilty of, and convicted of, multiple allied
offenses of similar import so long as he is sentenced upon only one of them. In State v.
Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, the Ohio Supreme
Court recently revised its allied-offense jurisprudence. The Johnson court stated that
“[w]hen determining whether two offenses are allied offenses of similar import subject to
merger under R.C. 2941.25, the conduct of the accused must be considered.” Id. at
syllabus.
{¶57} Under Johnson, “[w]e determine the General Assembly’s intent by
applying R.C. 2941.25, which expressly instructs courts to consider the offenses at issue
in light of the defendant’s conduct.” Id. at ¶ 46. “In determining whether offenses are
allied offenses of similar import under R.C. 2941.25(A), the question is whether it is
possible to commit one offense and commit the other with the same conduct, not whether
it is possible to commit one without committing the other.” Id. at ¶ 48. “If the offenses
correspond to such a degree that the conduct of the defendant constituting commission of
20
one offense constitutes commission of the other, then the offenses are of similar import.”
Id.
{¶58} “If the multiple offenses can be committed by the same conduct, then the
court must determine whether the offenses were committed by the same conduct, i.e., ‘a
single act, committed with a single state of mind.’” Id. at ¶ 49, quoting State v. Brown,
119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶ 50. “If the answer to both
questions is yes, then the offenses are allied offenses of similar import and will be
merged.” Johnson at ¶ 50. “Conversely, if the court determines that the commission of
one offense will never result in the commission of the other, or if the offenses are
committed separately, or if the defendant has separate animus for each offense, then,
according to R.C. 2941.25(B), the offenses will not merge.” Id. at ¶ 51.
{¶59} Bearing directly on the case at hand, separate convictions and sentences
are permitted when a defendant’s conduct results in multiple victims. See, e.g., State v.
Skaggs, 2d Dist. No. 10-CA-26, 2010-Ohio-5390. In the instant case, Allen’s conduct
was directed at five separate victims, resulting in two fatalities and two others wounded.
As such, the trial court did not err when it imposed separate sentences for each offense.
Accordingly, we overrule the sixth assigned error.
{¶60} Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
21
It is ordered that a special mandate be sent to said court to carry this judgment into
execution. The defendant’s conviction having been affirmed, any bail pending appeal is
terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, ADMINISTRATIVE JUDGE
SEAN C. GALLAGHER, J., and
MARY EILEEN KILBANE, J., CONCUR