State v. Strowder ( 2018 )

[Cite as State v. Strowder, 2018-Ohio-1292.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 105569
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DASHAWN STROWDER
DEFENDANT-APPELLANT
JUDGMENT:
CONVICTIONS AFFIRMED,
SENTENCE REVERSED
AND REMANDED FOR RESENTENCING
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-16-604551-A
BEFORE: Blackmon, P.J., Laster Mays, J., and Jones, J.
RELEASED AND JOURNALIZED: April 5, 2018
-i-
ATTORNEY FOR APPELLANT
Jonathan N. Garver
The Brownhoist Building
4403 St. Clair Avenue
Cleveland, Ohio 44103
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
By: Carl Mazzone
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, P.J.:
{¶1} Appellant Dashawn Strowder (“Strowder”) appeals from his convictions for
rape, kidnapping, robbery, and felonious assault, following a mandatory transfer from
juvenile court. He assigns the following errors for our review:
I. The mandatory transfer of [Strowder] by the juvenile court to adult court
for purposes of criminal prosecution constitutes a denial of due process of
law in violation of the Fourteenth Amendment to the Constitution of the
United States and Article I, Section 16, of the Constitution of the State of
Ohio.
II. The mandatory transfer of [Strowder] by the juvenile court to adult court
for purposes of criminal prosecution constitutes a denial of equal protection
of the laws in violation of the Fourteenth Amendment to the Constitution of
the United States and Article I, Section 2, of the Constitution of the State of
Ohio.
III. The 50-year term of imprisonment for rape and related offenses
allegedly committed by [Strowder] while he was a juvenile constitutes cruel
and unusual punishment and a denial of due process of law in violation of
the Eighth and Fourteenth Amendments to the Constitution of the United
States and Article I, Sections 9 and 16, of the Constitution of the State of
Ohio.
IV. The special instruction given by the court for attorney jurors singles out
attorney jurors and encroaches upon their ability to fully participate in jury
deliberations, thereby depriving [Strowder] of his right to a trial by jury,
guaranteed by the Sixth Amendment to the Constitution of the United States
and Article I, Section 10, of the Constitution of the State of Ohio.
V. The evidence is insufficient to support a conviction for felonious
assault.
VI. [Strowder’s] conviction for felonious assault and his other convictions
are against the manifest weight of the evidence.
{¶2} For the sake of clarity, we shall address the third assigned error last. Having
reviewed the record and pertinent law, we affirm the convictions, but reverse and remand
for resentencing. The apposite facts follow.
{¶3} This case originated in juvenile court when then-17-year-old Strowder was
charged in connection with offenses alleged to have occurred on or about April 21, 2013.
Following a mandatory bindover, Strowder and codefendant Isaiah Campbell
(“Campbell”) were indicted in a nine-count indictment. As is relevant herein, Strowder
was charged with three counts of rape with sexually violent predator specifications, two
counts of kidnapping, with one count alleging both a sexual motivation specification and a
sexually violent motivation specification, aggravated robbery, felonious assault with a
sexual motivation specification, grand theft (motor vehicle), and receiving stolen property,
in violation of R.C. 2913.51(A). All counts also contained one-year and three-year
firearm specifications. Strowder pled not guilty and the matter against him proceeded to a
jury trial on January 24, 2017.
Jury Trial
{¶4} During the jury trial, the state presented the testimony of ten witnesses
including S.W., the alleged victim of the offenses.1 S.W., who was 44 years old at the
time of trial, testified that on April 21, 2013, she went out with her sister and her sister’s
boyfriend. S.W. consumed a vodka drink before leaving home and one or two glasses of
1
In accordance with this court’s policy regarding nondisclosure of the identity of victims in
cases involving sexual assaults, she will be referred to using initials.
wine while out. At approximately 2:00 a.m., she proceeded to her home in East
Cleveland. While en route, she stopped at a stop light on Hayden Avenue at the
intersection of Claiborne Avenue, and looked downward to light a cigarette. When she
looked up again, she spotted two individuals with black hoods drawn tightly over their
heads running toward her car. Both were armed. As she struggled to lock the car doors,
one individual entered the car through the passenger door, and the other entered through
the rear driver’s side door. The individual in the back seat held a gun to the back of
S.W.’s head, ordered her to drive, and instructed where to turn, while the individual seated
in the front passenger seat also pointed a gun at her. They eventually ended up on East
134th Street near some abandoned houses.
{¶5} S.W. testified that the individual seated in the front seat grabbed her head and
ordered her to perform oral sex on him. The men then ordered her to the back seat to
complete the sex act on the first man, while the second man vaginally raped her. After
that, the men ordered her to perform oral sex on the second man, while the first man
vaginally raped her. The men rummaged through S.W.’s purse, ordered her from the car,
and fled in her vehicle. S.W. ran to find help, then called police.
{¶6} S.W. admitted that she was shown a photo array and identified an individual
who was later excluded from involvement in this matter. She was also shown a second
photo array and indicated that she “truly believe[d]” that another person was the assailant,
and that a fourth person “could be” the assailant, but both were also excluded from
involvement. S.W. explained that she could only see part of the attackers’ faces.
{¶7} Cuyahoga County Deputy Sheriff Shannon Cushman (“Deputy Cushman”)
responded to the scene at approximately 3:00 a.m. He observed that S.W. was
hyperventilating and hysterical. Deputy Cushman stated that she seemed slightly
intoxicated. S.W. also reportedly told Deputy Cushman that the second individual
attempted to vaginally rape her but was unable to do so.
{¶8} University Hospitals Sexual Assault Nurse Examiner (“SANE”) Denise
Robinson (“Nurse Robinson”) testified that she completed a sexual assault examination
and rape kit in this matter. She collected S.W.’s clothing, swabbed her for evidence, and
examined her for injuries and signs of trauma.
{¶9} C.M., S.W.’s stepbrother, testified that a few days after the incident, he
spotted S.W.’s car traveling in East Cleveland. He followed it, but the occupants
abandoned the car. One of the occupants, who had a cast on his arm, fired a shot at
C.M. as he fled. However, no DNA evidence related to the assault on S.W. was found
inside the car.
{¶10} Ohio Bureau of Criminal Investigation (“OBCI”) analyst Brenda Butler
(“Butler”) testified that she obtained approximately five fingerprints, three partial palm
prints, and three shell casings from two different guns in S.W.’s car. The prints were not
linked to Strowder, but were instead from two other individuals.
{¶11} OBCI forensic scientists Deidre Hartz (“Hartz”) and Emily Feldkris
(“Feldkris”) analyzed the DNA samples obtained during the SANE examination. The oral
swabs contained semen that was a mixture from two individuals, Strowder and Campbell.
The probability of finding this same DNA profile in the general population was one in a
trillion as to Campbell and one in 780,000,000 as to Strowder. One of the swabs from
S.W.’s underwear also contained a mixture from both Strowder and Campbell. The
probability of finding this same DNA profile in the general population was one in
92,940,000 as to Campbell and one in a trillion as to Strowder.
{¶12} Cuyahoga County Deputy Sheriff Yashila Crowell (“Deputy Crowell”)
testified that based upon the fingerprint evidence obtained in this matter, she prepared a
photo array for S.W. She identified an assailant, but his DNA profile was not contained
in the bodily fluid swabs from the rape kit, and he was excluded from involvement. S.W.
was shown another array, and she incorrectly identified two other individuals who do not
have a connection to this case, and failed to identify Strowder’s photograph.
{¶13} Deputy Crowell and East Cleveland Police Detective Ernest Stanford (“Det.
Stanford”), interviewed Strowder and he acknowledged that in April 2013, he had a cast
on his arm, and that he had a gun. However, he denied having sex with S.W. and denied
involvement in the matter.
{¶14} The jury acquitted Strowder of one of the rape charges but convicted him of
all remaining charges. After obtaining additional testimony and evidence pertaining to
Strowder’s two public indecency offenses while incarcerated, the trial court found
Strowder guilty of the sexually violent predator specifications. The court merged the
aggravated robbery, grand theft, and receiving stolen property convictions, and also
merged the felonious assault conviction into the rape, kidnapping, and aggravated robbery
convictions. The court imposed consecutive terms, sentencing Strowder to 50 years to
life, and also ordered that this term be served consecutively to Strowder’s nine-year
sentence in another matter from Stark County that occurred while he was in the custody of
the Ohio Department of Youth Services.
Mandatory Transfer
{¶15} In the first and second assigned errors, Strowder argues that the mandatory
transfer by the juvenile court to the general division of the court of common pleas violated
his right to due process of law. He asserts that the transfer violated concepts of
fundamental fairness by: depriving him of a hearing before a juvenile court judge; denying
him the opportunity to show that he can change as he matures; and preventing mitigation
of culpability and penalty based upon age. Additionally, he argues that the mandatory
transfer statutes violate his right to equal protection of the law. He asserts that the statutes
do not withstand strict scrutiny that must be applied for juvenile offenders. Alternatively,
he asserts that the statutes lack a rational basis because they subject similarly situated
children to different treatments based solely upon their ages, and do not recognize
differences between older and younger children.
{¶16} Recently, in State v. Aalim, 150 Ohio St.3d 489, 2017-Ohio-2956, 83
N.E.3d 883, the Ohio Supreme Court held that the mandatory bindover of certain juvenile
offenders under R.C. 2152.10(A)(2)(b) and 2152.12(A)(1)(b) complies with due process
and equal protection as guaranteed by the Ohio and United States Constitutions. In so
holding, the court rejected each of the challenges Strowder asserts herein. See also State
v. Martin, 8th Dist. Cuyahoga No. 102783, 2016-Ohio-922, ¶ 20. Accordingly, the first
and second assigned errors are without merit.
Instruction for Attorney Juror
{¶17} In the fourth assigned error, Strowder argues that the portion of the trial
court’s charge that was directed to an attorney juror erroneously encroached upon the
attorney juror’s ability to fully participate in the deliberation of this matter.
{¶18} The court’s charge on this issue is as follows:
You are also instructed that any attorney on the jury should be accorded no
greater role or stature than any other juror, and their opinions should be
accorded no greater weight merely because of their status as an attorney.
This is particularly true as it pertains to the instructions of law and legal
definitions which I have provided to you.
I have supplied you with all of the law you need to decide this case. Should
any question arise as to the definition of law or application of these
instructions, you are instructed not to request clarification from the attorney
on the panel. Rather, you must communicate any such question to the Court
in writing.
Any attorney on the panel should be careful to not redefine or interpret these
instructions or in any other way inject any opinion into the deliberations that
is not based on evidence presented but is instead rooted in your personal
interpretation of the law.
Most importantly, attorneys shall refrain from privately or publicly
speculating on the effect of any legal rulings by the Court, or matters of
strategy or tactics employed by either side.
Tr. 733-734.
{¶19} Other courts considering the role of attorney jurors have ensured that these
jurors do not rely upon information that is not directly related to the litigation at issue, and
do not present extraneous information. Leavitt v. Magid, 257 Neb. 440, 449, 598 N.W.2d
722 (1999); 23 Jones St. Assoc. v. Beretta, 722 N.Y.S.2d 229, 280 A.D.2d 372 (1st
Dept.2001); Matter of Buchanan, 665 N.Y.S.2d 980, 245 A.D.2d 642 (3d Dept.1997).
{¶20} Likewise, in this matter, the court’s charge properly instructed the jury that it
should not consider or accept any advice about the law from any source other than the
court, and must not rely upon information that is not directly related to the litigation at
issue. The charge was also reasonably fashioned to ensure that the panel was not
improperly influenced by this juror. Accord Swartz v. St. Mary’s Hosp. of Amsterdam,
956 N.Y.S.2d 243, 101 A.D.3d 1273 (3d Dept.2012).
{¶21} Therefore, this assigned error is without merit.
Sufficiency of Evidence of Felonious Assault
{¶22} In the fifth assigned error, Strowder argues that the state failed to present
sufficient evidence to support his conviction for felonious assault.
{¶23} A challenge to the sufficiency of the evidence supporting a conviction
requires the court to determine whether the prosecution has met its burden of production at
trial. State v. Givan, 8th Dist. Cuyahoga No. 94609, 2011-Ohio-100, citing State v.
Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541. On review for
sufficiency, courts are to assess not whether the prosecution’s evidence is to be believed,
but whether, if believed, the evidence against a defendant would support a conviction. Id.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. Vickers, 8th Dist. Cuyahoga No. 97365,
2013-Ohio-1337, citing State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),
paragraph two of the syllabus.
{¶24} As is relevant herein, R.C. 2903.11(A)(2) defines felonious assault as
follows: “No person shall knowingly * * * [c]ause or attempt to cause physical harm to
another or to another * * * by means of a deadly weapon or dangerous ordnance[.]”
{¶25} In State v. Brooks, 44 Ohio St.3d l85, 542 N.E.2d 636 (1989), the Ohio
Supreme Court held that “[t]he act of pointing a deadly weapon at another, without
additional evidence regarding the actor’s intention, is insufficient to convict a defendant of
the offense of ‘felonious assault’ as defined by R.C. 2903.11(A)(2).” Id. at the syllabus.
In that case, the defendant argued with the victim, then pointed a handgun at her face and
threatened to kill her. Id. at 187. The Ohio Supreme Court upheld the felonious assault
conviction, stating:
Under these circumstances, we cannot say that a reasonable jury properly
instructed could not have concluded that the defendant’s actions were
“strongly corroborative” of his intent to cause physical harm to Barker by
means of his deadly weapon.
Id. at 192.
{¶26} The court dealt with this issue again in State v. Green, 58 Ohio St.3d 239,
569 N.E.2d 1038 (1991). In that case, the defendant aimed a rifle at a police officer’s
head, and shouted, “If you don’t have a warrant get the [f* * *] out of my house.” The
court held that under those circumstances, a jury could have concluded that defendant’s
actions were strongly corroborative of his intent to cause physical harm to the officers by
means of his deadly weapon. Id. at 242.
{¶27} In State v. Shepherd, 8th Dist. Cuyahoga No. 102974, 2016-Ohio-1119, this
court affirmed a felonious assault conviction where the defendant and his brother robbed a
store owner and defendant’s brother pointed his gun at the owner and said to him, “you
know what this is.” Id. at ¶ 12. Accord State v. Smiley, 8th Dist. Cuyahoga No. 97047,
2012-Ohio-1742, ¶ 29 (felonious assault conviction affirmed where the defendant pointed
a gun at victim’s chest, and said, “don’t move.”); State v. McCauley, 8th Dist. Cuyahoga
No. 73892, 1999 Ohio App. LEXIS 1848 (Apr. 22, 1999), appeal not allowed, 86 Ohio
St.3d 1467, 715 N.E.2d 569 (1999) (felonious assault conviction affirmed where the
defendant pointed his gun at the victims and instructed them “not to run or try to move and
to be quiet.”); State v. Jackson, 8th Dist. Cuyahoga No. 93815, 2010-Ohio-4486 (felonious
assault conviction affirmed where the defendant pointed a gun at the victim’s chest and
stated, “What’s up with this? This is what I mean.”).
{¶28} In this matter, S.W. testified that both assailants ran at her car with guns
drawn and got into her car. One aimed his gun at the back of her head and told her where
to turn, while the other one pointed his weapon at her. They then forced her at gunpoint
to the back of the vehicle and repeatedly raped her at gunpoint. They rifled through her
purse and threw her out of her car. She testified that all of the crimes were completed
because the assailants had weapons and she was afraid. Under these circumstances, a
reasonable jury could have concluded that the defendant’s actions were “strongly
corroborative” of his intent to cause physical harm to the victim by means of his deadly
weapon. Strowder’s uninterrupted pointing a gun at the victim, along with repeated orders
directed at accomplishing offenses, could be perceived by a reasonable person as ample
manifestation of Strowder’s clear intention to cause harm by means of a deadly weapon in
the event of any noncompliance with his demands. Sufficient evidence supports the
conviction for felonious assault.
{¶29} The fifth assigned error is without merit.
Manifest Weight of the Evidence
{¶30} In the sixth assigned error, Strowder argues his convictions are against the
manifest weight of the evidence.
{¶31} 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 (1997), 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.
Id. at ¶ 25.
{¶32} An appellate court may not merely substitute its view for that of the
factfinder, but must find that ‘“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.” Thompkins at 387. Accordingly, reversal on manifest
weight grounds is reserved for “the exceptional case that the evidence weighs heavily
against the conviction.” Id.
{¶33} In this matter, S.W. testified that armed assailants overtook her as she was
stopped at a stop light, took her to a secluded location, then orally and vaginally raped her
at gunpoint. They rifled through her purse and fled in her car. Evidence swabs from her
mouth and underwear contained Strowder’s semen. Although Strowder denied having
sex with S.W., DNA analysis identified Strowder and Campbell as the assailants, with the
expected frequency of occurrence of that particular profile being less than one in one
trillion unrelated individuals from the underwear and less than one in 780,000,000 from
the oral swab.
{¶34} Nonetheless, Strowder argues that the victim’s testimony was not credible
because it contained numerous inconsistencies and she also misidentified other individuals
as her assailants.
{¶35} Although we review credibility when considering the manifest weight of the
evidence, we are cognizant that determinations regarding the credibility of witnesses and
the weight of the testimony are primarily for the trier of fact. The trier of fact is best able
“to view the witnesses and observe their demeanor, gestures, and voice inflections, and use
these observations in weighing the credibility of the proffered testimony.” State v. Kurtz,
8th Dist. Cuyahoga No. 99103, 2013-Ohio-2999, ¶ 26, quoting Wilson, 113 Ohio St.3d
382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24.
{¶36} After independently reviewing the entire record and weighing the
aforementioned evidence and all reasonable inferences, including the credibility of the
witnesses, we cannot say that the jury clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered.
Accordingly, we overrule this assigned error.
Sentence
{¶37} In the third assigned error, Strowder also argues that his sentence violates the
constitutional prohibition against cruel and unusual punishment because it stems from his
activities, as a juvenile, on a single night.
{¶38} In Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010),
the United States Supreme Court held that sentences of life imprisonment without parole
for juvenile nonhomicide offenders constitutes cruel and unusual punishment, in light of
the lack of maturity of juvenile offenders, the limited moral culpability of juvenile
offenders who do not kill, the length of the prison terms, and the inadequacy of
penological theory justifying these sentences. Id. at 74.
{¶39} In State v. Moore, 149 Ohio St.3d 557, 2016-Ohio-8288, 76 N.E.3d 1127, the
Ohio Supreme Court held that Graham also prohibits the “functional equivalent” of life
without parole for juvenile nonhomicide offenders and therefore prohibits aggregate
term-of-years sentences for multiple nonhomicide convictions that exceed the defendant’s
life expectancy. Additionally, the court held that a “court cannot impose a sentence that
is barred because of the [age] of the offender on the ground that the offender committed
multiple crimes.” Moore at ¶ 73. That is, the “number of offenses committed cannot
overshadow the fact that it is a child who has committed them.” Id.{¶40} Significantly, the Moore court acknowledged that “the state retains the
ability, upon meaningful evaluation of an offender, to impose lifetime incarceration upon
the most serious offenders” and that “Graham does not guarantee an eventual release.”
Id. at ¶ 44-45. However, Graham “enunciated ‘a categorical rule [that] gives all juvenile
nonhomicide offenders a [meaningful opportunity] to demonstrate maturity and reform.’”
Id. at ¶ 70, quoting Graham at 79.
{¶41} The Moore court made clear that courts should not undertake fine
line-drawing to determine how much time a nonhomicide juvenile offender may serve in
relation to his or her life expectancy. Id. at ¶ 82. Rather, the focus is upon providing a
meaningful opportunity for possible release before the end of the imposed sentence by
demonstrating maturity and rehabilitation. Id. at ¶ 60-63. The Moore court explained:
It is consistent with Graham to conclude that a term-of-years prison sentence
extending beyond a juvenile defendant’s life expectancy does not provide a
realistic opportunity to obtain release before the end of the term. Graham
decried the fact that the defendant in that case would have no opportunity
to obtain release “even if he spends the next half century attempting to atone
for his crimes and learn from his mistakes.” Id. at 79. Certainly, the court
envisioned that any nonhomicide juvenile offender would gain an
opportunity to obtain release sooner than after three quarters of a century in
prison. Graham is less concerned about how many years an offender serves
in the long term than it is about the offender having an opportunity to seek
release while it is still meaningful.
Id. at ¶ 63.
{¶42} The Moore court recognized that states have enacted new legislation to
allow for parole eligibility for juveniles after fifteen or twenty-five years of incarceration.
Moore at ¶ 82. Similarly, H. B. No. 394 was introduced in Ohio to authorize parole
eligibility for nonhomicide juvenile offenders after 30 years. It has not been enacted.
However, it demonstrates some concern that nonhomicide juvenile offenders be in a
position to seek a meaningful opportunity for parole.
{¶43} In State v. Terrell, 8th Dist. Cuyahoga No. 103428, 2016-Ohio-4563, this
court applied the considerations for juveniles outlined in Graham, but we found the
defendant’s sentence permissible because:
Terrell is entitled to parole hearings after 21 years to determine if he has
been rehabilitated to such an extent that he may re-enter society.
Id. at ¶ 17. See also State v. Alexander, 8th Dist. Cuyahoga No. 104281, 2017-Ohio-9011(denying reopening of appeal from sentence for murder and other offenses because
“mandatory parole” was part of Alexander’s sentence).
{¶44} In this matter, the parties have not informed us of the point at which
Strowder will become eligible for parole. However, it is clear, due to the numerous
mandatory and consecutive aspects of the sentence, and the absence of any reference to
parole, that Strowder will not be able to seek release for decades. R.C. 2967.13. This
raises concerns that are inconsistent with Moore and Graham. Accordingly, we are
compelled to reverse and remand for resentencing to allow the trial court to establish a
record that demonstrates when Strowder will be eligible for parole. The standard is
whether the nonhomicide juvenile offender has a meaningful opportunity for parole.
{¶45} This assigned error is well taken.
{¶46} The convictions are affirmed, but the sentence is reversed and the matter is
remanded for resentencing.
It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, PRESIDING JUDGE
ANITA LASTER MAYS, J., and
LARRY A. JONES, SR., J., CONCUR