State v. Bennett , 2024 Ohio 4557 ( 2024 )

[Cite as State v. Bennett, 2024-Ohio-4557.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
LAWRENCE COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. 23CA4
v. :
DAVID M. BENNETT, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
_________________________________________________________________
APPEARANCES:
Steven H. Eckstein, Washington Courthouse, Ohio, for appellant1.
Brigham Anderson, Lawrence County Prosecuting Attorney, and Steven
K. Nord, Assistant Prosecuting Attorney, Ironton, Ohio, for
appellee.
__________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:9-10-24
ABELE, J.
{¶1} This is an appeal from a Lawrence County Common Pleas
Court judgment of conviction and sentence. David Bennett,
defendant below and appellant herein, assigns two errors for
review:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED IN DENYING DEFENDANT-
APPELLANT’S POST-JUDGMENT MOTION FOR JUDGMENT
OF ACQUITTAL PURSUANT TO CRIM.R. 29(C).”
1
Different counsel represented appellant during the trial
court proceedings.
LAWRENCE, 23CA4 2
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT ABUSED ITS DISCRETION IN
DENYING THE DEFENDANT-APPELLANT’S MOTION FOR
NEW TRIAL.”
{¶2} In April 2022, a Lawrence County Grand Jury returned an
indictment that charged appellant with (1) one count of burglary in
violation of R.C. 2911.12(A)(2), a second-degree felony, (2) one
count of receiving stolen property (to wit: a red Honda four-
wheeler, a green Honda four-wheeler, and a camouflage Polaris side-
by-side) in violation of R.C. 2913.51(A), a fourth-degree felony,
and (3) one count of aggravated possession of drugs
(methamphetamine) in violation of R.C. 2925.11(A)(C)(1)(a), a
fifth-degree felony. Appellant entered not guilty pleas.
{¶3} At trial, Lawrence County Sheriff’s Deputy Shannon Lee
Orsbon testified that on April 8, 2022 at approximately 4:00 p.m.,
he responded to a burglary call. After he met property owner Drew
Williamson and his neighbor, Williamson stated that someone kicked
in his garage door and “it looked like somebody’s been inside the
home.” Orsbon checked two houses on the property, a newer home and
an older farmhouse and observed a pried open garage door and door
from the garage to the home. Inside the home, Orsbon noticed
“drawers emptied out on the floor, stuff moved and rearranged
throughout the garage,” the couch shoved over, “drugs on the floor,
cabinets were opened, dresser doors [sic.] were flipped out and
dumped upside down.” Orsbon also observed cabinets open with “no
LAWRENCE, 23CA4 3
dishes * * * nothing inside the cabinets.” In the bedroom, Orsbon
found “a lot of things that looked completely out of place and it
looked like a bunch of stuff missing.” Orsbon photographed the
home and garage, including muddy footprints outside and throughout
the house.
{¶4} Deputy Orsbon testified that because Drew Williamson’s
daughter, Debbie Wise, and her family visit the property every
weekend, they noticed the missing items. Orsbon took statements
from Williamson and Wise. From the home, missing items included a
bow, hunting and fishing gear, a .22 rifle, trail cameras,
toiletries, and clothing. From the garage, Williamson and Wise
identified missing four-wheelers, a side-by-side, and a lawnmower.
Orsbon also walked across the road to the farmhouse and found “the
side door pried open.” Orsbon walked through the farmhouse with
Williamson and Wise and inventoried pictures missing from the wall,
a missing wood burning stove, overturned beds, and several items
out of place.
{¶5} When Deputy Orsbon interviewed neighbors, they “reported
that they had seen a vehicle there earlier. They did not obtain a
license plate, but said the vehicle had spray-painted on the back
that said ‘Parts’ on it.” The neighbors also noticed “a few
subjects there, but they did not recognize them.”
{¶6} Drew Williamson owns the 142-acre property, which
includes a newer home and the 1812 farmhouse. He, his three adult
LAWRENCE, 23CA4 4
daughters and their families use the property as a “getaway” to
hunt and fish. His middle daughter, Debbie Wise, purchased an
adjoining 80- acre farm.
{¶7} In April 2022, Williamson discovered that someone had
broken into both homes. He found in the main home three doors
“busted” and noted missing items, including cooking utensils,
clothing, a vacuum, groceries, two crossbows, 15 trail cameras,
tools, an air compressor, a generator, ammunition, a gun, a side-
by-side, four-wheelers, and all of the keys in his garage. In the
old farmhouse, Williamson discovered two doors “busted,” and a
missing spotting scope, binoculars, range finder, and tripod. The
washer and dryer had been “pulled out by the double doors.”
Williamson found all the dishes, silverware, and cookware in totes,
but “we come in before they had a chance to come back and get it.”
In addition, someone “took a hacksaw and sawed my pump out of the
well house.”
{¶8} Debbie Wise owns contiguous property to her father’s farm
and explained that their family and friends use the property to
hunt, fish, and hold family gatherings. In early April, one of her
father’s neighbors called to tell her that the property had been
burglarized and described Wise’s father as “shaken.” Wise visited
the farm and found the house “demolished inside.” Wise observed
missing linens, the opened crawl space and the attic ladder, and
explained, “[t]hey had even fixed themselves something to eat.”
LAWRENCE, 23CA4 5
The burglars also “ransacked” the old farmhouse, tore the heaters
off the walls, and cut gas lines. Wise found some items “stacked
up and ready to go. Had the back doors still open. * * * They had
taken all of the bedspreads, pillows, had everything bagged up and
in totes that we had out there. And so we knew that they were
coming back to get all of that.”
{¶9} Debbie Wise testified that missing items included four-
wheelers, a side-by-side, several tools, ammunition, and about 15
trail cameras, each with SD cards. Wise said that when the break-
in occurred, the trail cameras were in the house to receive fresh
batteries. Wise felt thankful because her father had not been at
the farm at the time of the burglaries “because if my dad would
have been out there staying, he wouldn’t have been able to defend
himself.” Subsequently, Wise created a Facebook post and became
inundated “with countless people” who identified the perpetrators.
Wise said people shared the Facebook post over 600 times and “at
least 15 confirmed three people that did it.” Wise and her father
received a few returned items, such as keys, a jacket, a toolbox,
binoculars, and two spotting scopes.
{¶10} On April 12, 2022, loggers Patrick Malone and Ben Curry
visited Homer Jenkins’ property to timber. Malone and Curry
observed a white truck in the Jenkins’ barn with “a hodgepodge” of
items in the back that included a crossbow, “clothes and just a
bunch of different stuff.” Malone also observed a four-wheeler in
LAWRENCE, 23CA4 6
the barn and a side-by-side outside the barn. In addition to
Jenkins and Curry, Malone observed Greg Cox and appellant on the
Jenkins property and noticed Cox and appellant drive away in the
side-by-side with Cox driving. Malone did not see appellant’s
truck.
{¶11} Ben Curry testified that when he and Malone visited Homer
Jenkins’ property in April 2022, they noticed a white pickup truck
and, sitting behind the truck in the barn, four Honda FourTrax
four-wheelers, two red, one green. However, Curry could not recall
the color of the other four-wheeler. Curry also noticed the red
four-wheeler ignition “was ripped out. All you could see was the
wires.” In the cab of the white truck, Curry noticed “all kinds
of like clothes * * * if I remember right there was a bow, like a
compound bow. Just * * * an assortment of stuff.” Curry stated
that the day before, “there wasn’t nothing in there [the barn].”
Curry spoke briefly with appellant and then observed appellant
climb on the side-by-side.
{¶12} Ben Curry loaded up and left the Jenkins property for the
day, but returned around 9:00 p.m. because “[w]e had found out that
this happened. And I went back and got my tractor.” Curry spoke
with Debbie Wise because “[s]he had put a post on Facebook, which
is how I found out the first time what was starting to go down.”
Curry also observed Facebook photos of the four-wheelers and side-
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by-side, and he “reached out to her through her post and I said, I
think I saw your stuff.”
{¶13} Homer Jenkins testified that he owns Green Dragon Farm,
about two miles from Drew Williamson’s property. Jenkins has known
appellant for about four years because appellant is his niece’s
boyfriend and they lived with Jenkins until shortly before this
incident. Appellant also worked on Jenkins’ vehicles and Jenkins
knows Greg Cox from trading parts. Jenkins acknowledged that he is
currently serving a prison sentence for a crime that involved Drew
Williamson and property stolen from his farm, and records show that
Jenkins pled guilty to burglary and receiving stolen property.
Jenkins, however, testified that he thought he served prison time
for “cutting that ankle monitor off.” Jenkins claimed he is in
prison “for something I didn’t do. That’s what my lawyer wanted me
to do, so, yeah, I listened to just doing what my lawyer said to
do. So that’s what I done.”
{¶14} Homer Jenkins further testified that in early April 2022,
Greg Cox2 stopped at daylight and asked Jenkins to give him a ride
to his vehicle. After Cox parked a four-wheeler behind Jenkins’
2
Greg Cox did not testify at appellant’s trial. It appears
that the trial court sentenced Cox on March 31, 2023 for his
involvement in this incident. See State v. Cox, Case No. 22CR109,
convicted of burglary, receiving stolen property, aggravated
possession of drugs and failure to appear.
LAWRENCE, 23CA4 8
barn, Jenkins drove Cox to the Williamson farm. Cox told Jenkins
that he planned to return to Jenkins’ farm and load the four-
wheeler into his truck. Jenkins testified that when he dropped off
Cox at the Williamson farm, he noticed appellant “standing in the
road waiting for [Cox].” Jenkins said, “I knew it wasn’t right.
[Cox’s] truck was parked back behind - kind of behind their house,
and I let him out, and I left.” Jenkins added that he “knew [Cox]
didn’t know those people.” As he left, Jenkins saw appellant and
Cox walk together toward the Williamson house.
{¶15} Jenkins stated that a couple of hours later Greg Cox
stopped at Jenkins’ home driving a tarped white truck and pulling a
tarped trailer. Jenkins told Cox to “get whatever he had down
there off my property.” Jenkins explained that he referred to “a
couple four-wheelers * * * they had them inside my barn.” Jenkins
said that appellant’s red Ford Ranger truck was at Jenkins’ farm
because it “had broken down there,” and Jenkins helped appellant
repair it later that evening. At some point, Jenkins, appellant
and Cox got into Cox’s white pickup truck and drove around Jenkins’
property to look for a four-wheeler that did not belong to Jenkins.
Although they did not find the four-wheeler, Jenkins said four-
wheeler tracks “came out of my barn,” but again he did not own a
four-wheeler. Cox also gave Jenkins “an old shotgun that was junk”
and “needed repaired.” Jenkins later learned that the white truck
Cox claimed to own had been stolen.
LAWRENCE, 23CA4 9
{¶16} Lawrence County Sheriff’s Detective Aaron Bollinger
investigated the Williamson property burglary along with Detective
Brad Lehman. They met Drew Williamson and Debbie Wise at the
property and Bollinger photographed the homes and garage, and
collected evidence including swabs from handles and other items
that might contain DNA. BCI tested a paper towel and a wrapper,
both from the kitchen counter, with one result inconclusive and the
other result that excluded appellant and Cox. From the old
farmhouse, Bollinger collected a copper tube that thieves cut from
the heater.
{¶17} The following day, Detective Bollinger interviewed Ben
Curry and another person who identified some ATVs. After Bollinger
spoke with Curry, Bollinger believed he had probable cause to
request arrest warrants for Jenkins, Cox, and appellant. The
following day, while Bollinger and Detective Lehman arrested
appellant, they observed appellant’s red Ford Ranger and the white
truck with the tarp. At the time of appellant’s arrest, detectives
found in appellant’s pockets a firearm, an SD card, multiple pocket
knives, flashlights, lighters, some tools, “a number of keys,” and
a “baggie of * * * two grams of crystal meth.” One key “turned the
ignition to the old Ford tractor that is in this kind of open barn”
at the Williamson property. Officers later determined that the SD
card came from a trail camera that recorded deer and other
wildlife, along with a person identified as Williamson’s friend who
LAWRENCE, 23CA4 10
maintains the trail cameras.
{¶18} At this point, Detective Bollinger advised appellant of
his Miranda rights and recorded two interviews. Appellant “did not
admit to going into or being at the Williamson property. He did
admit to riding on the - - seeing four-wheelers, I believe, riding
in the side by side at the Green Dragon Farm with Greg Cox.”
Appellant also discussed stolen items found in his red Ford Ranger
truck. “He even stated in the interviews, he said, I’m willing to
give it back to the people. Things like that.” After the
sheriff’s department towed the red Ford Ranger and the white Nissan
truck, officers learned that the Nissan had been stolen from
Enterprise Rental Company in Ashland, Kentucky. Bollinger soon
obtained a search warrant and collected many items from the
vehicles, including scanners from the white truck.
{¶19} Detectives Bollinger and Lehman later visited the
Williamson property with a search warrant for the Ford Ranger and
to try the various keys. Bollinger asked Williamson and his
daughter to identify the items in the Ford Ranger, including an 11-
gallon air tank, two green trail cameras, a blue Kobalt backpack
full of tools, a black and red bag with tools, a green backpack
with Nikon binoculars, a spotting scope, other tools and camouflage
items, a red box with Craftsman socket set, a camouflage jacket, an
orange vest, a Hart 20-volt lithium flashlight, tractor serpentine
belts, and trail cameras with SD cards.
LAWRENCE, 23CA4 11
{¶20} The State played for the jury appellant’s interviews with
Detective Bollinger. After Bollinger advised appellant of his
Miranda rights, appellant stated that the red Ford Ranger belonged
to his son, and that Cox did not steal the white truck because
appellant had been present when Cox purchased it. At one point,
appellant stated, “It was a mistake.” When asked where he and Cox
had taken the stolen items, appellant stated, “that’s where I got
out of it.” Later, appellant again spoke with Detective Bollinger.
Much of this conversation is “inaudible,” but when asked if the
“stuff” in appellant’s truck was “in the truck or just in the
barn,” appellant replied, “Both.” Appellant looked through items
in the Ranger and stated that various items belonged to him, but
“grease guns, these toolboxes,” “that’s stuff that I took from the
barn.” When asked about a bag with expensive binoculars, appellant
stated, “That right there come from the barn.” Appellant further
admitted that the range finder and camouflage jacket also came from
the barn and, when asked what happened to the four-wheelers and
side-by-side, appellant stated, “I ain’t got a clue.”
{¶21} Ohio Bureau of Criminal Investigation Analyst Pamela
Farley tested the substance removed from appellant’s pockets and
confirmed that the bag contained .80 grams, plus or minus .05
grams, of methamphetamine.
{¶22} At the close of the State’s case, appellant made a
Crim.R. 29 motion for judgment of acquittal and asserted that (1)
LAWRENCE, 23CA4 12
the date of the possession of methamphetamine did not match the
date in the indictment, and (2) the State presented no direct
evidence that appellant entered the property in question. At that
point, the trial court permitted the State to amend the indictment,
but otherwise overruled the motion.
{¶23} In his defense, appellant called Mark Blackburn who
testified that he knew appellant and that he owns a tractor with a
universal key. Blackburn acknowledged, however, that other
tractors are different. In addition, Blackburn’s wife, Kelly,
testified that Detective Bollinger visited their home on April 27
and sought her husband to “look for [ATVs] or something that were
supposedly on my property.” Kelly clarified that Bollinger sought
four-wheelers and a side-by-side.
{¶24} After hearing the evidence, counsels’ arguments and the
trial court’s jury instructions, the jury found appellant guilty of
(1) burglary in violation of R.C. 2911.12(A)(2), a second-degree
felony, (2) receiving stolen property in violation of R.C.
2913.51(A), a fourth-degree felony, and (3) aggravated possession
of drugs in violation of R.C. 2925.11(A)(C)(1)(a), a fifth-degree
felony.
{¶25} Subsequently, the trial court sentenced appellant to (1)
serve an indefinite 6 to 9 year prison term on Count 1, burglary,
(2) serve an 18-month prison term on Count 2, receiving stolen
property, (3) serve a 12-month prison term on Count 3, possession
LAWRENCE, 23CA4 13
of drugs, (4) serve the prison terms in Counts 1, 2, and 3
concurrently for a total sentence of 6 to 9 years, (5) serve a
mandatory 18-month to 3-year postrelease control term, and (6) pay
costs. After sentencing, appellant filed a renewed Crim.R. 29(C)
motion for judgment of acquittal and a Crim.R. 33 motion for a new
trial and the trial court overruled both motions. This appeal
followed.
I.
{¶26} In his first assignment of error, appellant asserts the
trial court erred when it failed to grant his Crim.R. 29(C) motion
for judgment of acquittal concerning all charges. Appellant
maintains that the evidence adduced at trial does not support the
trial court's determination that sufficient evidence supports his
convictions for burglary, complicity to burglary, receiving stolen
property, complicity to receiving stolen property, or aggravated
possession of drugs.
{¶27} A motion for judgment of acquittal under Crim.R. 29(A)
challenges the sufficiency of the evidence. State v. Brinkley,
2005-Ohio-1507, ¶ 39, State v. McMurray, 2015-Ohio-2827, ¶ 37 (12th
Dist.). The denial of a motion for acquittal under Crim.R. 29(A)
“is governed by the same standard as the one for determining
whether a verdict is supported by sufficient evidence.” State v.
Tenace, 2006-Ohio-2417, ¶ 37, State v. Johnson, 2016-Ohio-867, ¶ 9
(4th Dist.), State v. Conley, 2014-Ohio-1699, ¶ 14 (12th Dist.),
LAWRENCE, 23CA4 14
citing State v. Carter, 72 Ohio St.3d 545, 553 (1995); State v.
Hernandez, 2009-Ohio-5128, ¶ 6 (10th Dist.).
{¶28} Whether sufficient evidence exists to support a
conviction is a question of law. State v. Thompkins, 78 Ohio St.3d
380, 386 (1997). In reviewing a challenge to the sufficiency of
evidence, “[t]he 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.” (Internal citations omitted.)
State v. Smith, 80 Ohio St.3d 89, 113 (1997). In making that
determination, an appellate court will not weigh evidence or assess
the witnesses credibility. State v. Walker, 55 Ohio St.2d 208, 212
(1978). “Rather, we decide whether, if believed, the evidence can
sustain the verdict as a matter of law.” State v. Richardson,
2016-Ohio-8448, ¶ 13. Therefore, a court must conduct “a review of
the elements of the charged offense and a review of the state's
evidence.” Id. “In deciding if the evidence was sufficient, we
neither resolve evidentiary conflicts nor assess the credibility of
witnesses, as both are functions reserved for the trier of fact.”
State v. Jones, 2013-Ohio-4775, ¶ 33 (1st Dist.), citing State v.
Williams, 2011-Ohio-6267, ¶ 25 (1st Dist.); State v. Bennett, 2019-
Ohio-4937, ¶ 46 (3d Dist.); State v. Wells, 2022-Ohio-3793, ¶ 32
(4th Dist.).
LAWRENCE, 23CA4 15
Burglary
{¶29} In the case sub judice, the jury determined that
appellant violated R.C. 2911.12, which provides:
(A) No person, by force, stealth, or deception, shall do
any of the following:
(2) Trespass in an occupied structure or in a separately
secured or separately occupied portion of an occupied
structure that is a permanent or temporary habitation of
any person when any person other than an accomplice of the
offender is present or likely to be present, with purpose
to commit in the habitation any criminal offense.
{¶30} In addition to instructing the jury regarding the
elements of burglary, the trial court charged the jury that “a
person who is complicit with another in the commission of a
criminal offense is regarded as guilty as if he personally
performed every act constituting the offense.”
{¶31} Appellant contends that no direct evidence exists to
prove that appellant trespassed on the victim’s property, much less
in an occupied structure. Although we recognize that the evidence
that connects appellant to the offenses is largely circumstantial,
it is well-established that “a defendant may be convicted solely on
the basis of circumstantial evidence.” State v. Wickersham, 2015-
Ohio-2756, ¶ 39 (4th Dist.), quoting State v. Nicely, 39 Ohio St.3d
147, 151 (1988). Circumstantial evidence and direct evidence
inherently possess the same probative value. State v. Jenks, 61
Ohio St.3d 259 (1991), paragraph one of the syllabus.
LAWRENCE, 23CA4 16
“Circumstantial evidence is defined as ‘[t]estimony not based on
actual personal knowledge or observation of the facts in
controversy, but of other facts from which deductions are drawn,
showing indirectly the facts sought to be proved. * * *’ ” Nicely,
39 Ohio St.3d at 150, quoting Black's Law Dictionary (5th Ed.1979)
221.
{¶32} Although appellant argues that no direct evidence exists
to prove that he trespassed on the victim’s property, as appellee
points out Homer Jenkins testified that Greg Cox arrived at his
house on a four-wheeler on the night in question, parked the four-
wheeler in Jenkins’ barn and asked Jenkins for a ride to Cox’s
truck. When Jenkins dropped off Cox at the Williamson property,
Jenkins observed Cox’s truck “parked back behind their house,” and
Jenkins “knew it wasn’t right.” Jenkins further testified that he
observed appellant “standing in the road waiting for Greg.”
Jenkins also observed Cox and appellant walk toward the Williamson
house together. Moreover, Jenkins testified that he, appellant and
Cox drove around Jenkins’ property to look for a stolen ATV. When
Cox and appellant returned to Jenkins’ barn that night, Jenkins
knew they had been to the Williamson property. Appellant also
acknowledged to Detective Bollinger that items in his truck did not
belong to him, items that Drew Williamson and Debbie Wise
identified as stolen. Moreover, at the time of his arrest
appellant’s pockets contained, among other items, keys from the
LAWRENCE, 23CA4 17
Williamson property and an SD card from a trail camera on the
Williamson property. Finally, as the State points out, Ben Curry
identified the ATVs and the side-by-side that he observed in Homer
Jenkins’ barn as the vehicles he observed on Debbie Wise’s Facebook
post regarding the stolen items. Curry further observed appellant
and Greg Cox ride the side-by-side at the Jenkins property.
{¶33} After we view the evidence set forth above in a light
most favorable to the prosecution, we conclude that any rational
trier of fact could have found all of the essential elements of the
crime proven beyond a reasonable doubt. Jenks, 61 Ohio St.3d 259,
syllabus paragraph two. The jury, as the trier of fact, could draw
inferences and make conclusions based upon the evidence adduced at
trial. Our review of the record reveals that the evidence adduced
at trial is sufficient to support the claim that appellant
committed the crime of burglary because the evidence, if believed,
would convince the average mind of appellant’s guilt beyond a
reasonable doubt.
Receiving Stolen Property
{¶34} The jury also determined that appellant violated R.C.
2913.51(A), which provides: “No person shall receive, retain, or
dispose of property of another knowing or having reasonable cause
to believe that the property has been obtained through commission
of a theft offense.” Appellant contends that no testimony proved
that appellant exhibited dominion or control over any item listed
LAWRENCE, 23CA4 18
in the indictment (red Honda four-wheeler, green Honda four-
wheeler, camouflage Polaris side-by-side) or that he received,
retained, or disposed of any of the three items.
{¶35} “Possession” is generally defined as “having control over
a thing or substance, but may not be inferred solely from mere
access to the thing or substance through ownership or occupation of
the premises upon which the thing or substance is found.” R.C.
2925.01(K). Possession may be actual or constructive. State v.
Gavin, 2015-Ohio-2996, ¶ 35 (4th Dist.), quoting State v. Moon,
2009–Ohio–4830, ¶ 19 (4th Dist.). While actual possession exists
when circumstances indicate that an individual has or had an item
within his immediate physical possession, State v. Kingsland, 2008–
Ohio–4148, ¶ 13 (4th Dist.), constructive possession exists when an
individual knowingly exercises dominion and control over an object,
even though that object may not be within his immediate physical
possession. Gavin, supra, quoting State v. Hankerson, 70 Ohio
St.2d 87 (1982), syllabus. For constructive possession to exist,
the State must show that the defendant was conscious of the
object's presence. State v. Meddock, 2017–Ohio–4414, ¶ 56 (4th
Dist.), citing Gavin, supra; Hankerson at 91. Both dominion and
control, and whether a person is conscious of an object's presence,
may be established through circumstantial evidence. Gavin, supra;State v. Brown, 2009–Ohio–5390, ¶ 19 (4th Dist.).
LAWRENCE, 23CA4 19
{¶36} Appellant maintains that the only direct evidence adduced
at trial is witness testimony that appellant rode, not drove, a
side-by-side of an unknown make and model, on Homer Jenkins’
property, who had already pleaded guilty to this same burglary.
However, both the direct and circumstantial evidence adduced at
trial did establish appellant’s involvement in the criminal
enterprise. Drew Williamson and Debbie Wise testified regarding
the three ATVs and the side-by-side stolen from their property.
Homer Jenkins testified that he drove Greg Cox to the entrance to
the Williamson property, found appellant standing in the road in
front of the property, watched Cox and appellant walk toward one of
the Williamson houses, and observed Cox’s truck parked behind the
Williamson house. In addition, Ben Curry testified that he
observed two red and one green ATV parked at Homer Jenkins’ farm
that appeared to match the three ATVs Debbie Wise posted on
Facebook. Curry also testified that he observed appellant exit the
Jenkins barn on a camouflage side-by-side that matched the stolen
side-by-side in Debbie Wise’s Facebook post.
{¶37} Once again, after our review of the evidence adduced at
trial, we believe sufficient evidence exists to support the claim
that appellant committed the offense of receiving stolen property.
Here, the evidence, when viewed in a light most favorable to the
prosecution, would convince the average mind of appellant’s guilt
beyond a reasonable doubt. After viewing this evidence, we believe
LAWRENCE, 23CA4 20
that any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt. Jenks, 61
Ohio St.3d 259, syllabus paragraph two. Once again, it is well-
established that a defendant may be convicted of a crime solely on
the basis of circumstantial evidence. Wickersham, supra.
{¶38} Therefore, we conclude that sufficient evidence supports
appellant’s conviction for receiving stolen property.
Possession of Drugs
{¶39} Finally, the jury found appellant guilty of a violation
of R.C. 2925.11(A), which provides: “No person shall knowingly
obtain, possess, or use a controlled substance or a controlled
substance analog.” Appellant contends that because the State did
not at trial formally qualify Ohio Bureau of Criminal Investigation
(BCI) Technician Pamela Farley as an expert, she could not state to
a reasonable degree of scientific certainty that the substance
tested is methamphetamine notwithstanding (1) Farley’s R.C.
2951.51(A) notarized statement and laboratory report concerning the
controlled substance at issue and (2) Farley’s in court testimony
that the substance tested is methamphetamine. In his brief,
appellant frames the issue as follows:
The Plaintiff-Appellant concedes it failed to move to
qualify the BCI&I technician as an expert. It likewise
concedes it listed both the report and the technician as
evidence it would use at trial in its discovery. Finally,
it concedes it did use both the report and the technician’s
testimony at trial to attempt to prove an essential element
of the charge of aggravated possession of drugs. The only
LAWRENCE, 23CA4 21
question, then, is whether it waived the use of R.C.
2925.51 by doing so. If it did then the case is without
sufficient evidence Defendant-Appellant possessed
methamphetamine as whether State’s Exhibit 42, is or is
not as claimed, methamphetamine, is beyond the common
experience and knowledge of juries and expert testimony in
some form is required. Maupin, supra.
Thus, appellant asserts, the trial court abused its discretion when
it admitted into evidence Farley’s conclusions.
{¶40} In general, a trial court has broad discretion regarding
the admissibility of expert testimony; thus, a reviewing court
should not disturb such an admissibility decision absent an abuse
of discretion. Miller v. Bike Athletic Co., 80 Ohio St.3d 607, 616
(1998), citing Calderon v. Sharkey, 70 Ohio St.2d 218 (1982).
Pursuant to Evid.R. 104(A), the trial court determines whether an
individual qualifies as an expert, and that determination will be
overturned only for an abuse of discretion. State v. Williams, 4
Ohio St.3d 53, 58 (1983). The term “abuse of discretion” connotes
more than an error of judgment; it implies that the court's
attitude is unreasonable, arbitrary, or unconscionable. Wilmington
Steel Prod., Inc. v. Cleveland Elec. Illum. Co., 60 Ohio St.3d 120,
122 (1991). When applying the abuse-of-discretion standard of
review, appellate courts are not free to merely substitute our
judgment for that of the trial court. In re Jane Doe 1, 57 Ohio
St.3d 135, 137–38 (1991), citing Berk v. Matthews, 53 Ohio St.3d
161, 169 (1990).
LAWRENCE, 23CA4 22
{¶41} Evid.R. 702, which governs the admissibility of expert
testimony, states: “A witness may testify as an expert if all of
the following apply: (A) The witness' testimony either relates to
matters beyond the knowledge or experience possessed by lay persons
or dispels a misconception common among lay persons; (B) The
witness is qualified as an expert by specialized knowledge, skill,
experience, training, or education regarding the subject matter of
the testimony; (C) The witness' testimony is based on reliable
scientific, technical, or other specialized information.” Evid.R.
702. The proponent of the testimony bears the burden of
establishing the witness's qualification.
{¶42} “The Sixth Amendment's Confrontation Clause provides, ‘In
all criminal prosecutions, the accused shall enjoy the right * * *
to be confronted with the witnesses against him * * *.’ ” State v.
Detienne, 2017-Ohio-9105, ¶ 17 (4th Dist.), quoting State v.
Maxwell, 2014-Ohio-1019, ¶ 34. The Confrontation Clause of the
Sixth Amendment is made applicable to the states by the Fourteenth
Amendment. State v. Issa, 93 Ohio St.3d 49, fn. 4 (2001).
Consequently, this constitutional right applies to both federal and
state prosecutions, but the right of confrontation in Article I,
Section 10 of the Ohio Constitution provides no greater right of
confrontation than the Sixth Amendment. State v. Arnold, 2010-
Ohio-2742, ¶ 12.
LAWRENCE, 23CA4 23
{¶43} “ ‘The United States Supreme Court has interpreted [the
Sixth Amendment right to confrontation] to mean that admission of
an out-of-court statement of a witness who does not appear at trial
is prohibited by the Confrontation Clause if the statement is
testimonial unless the witness is unavailable and the defendant has
had a prior opportunity to cross-examine the witness.’ ” Detienne,
supra, at ¶ 23, quoting Maxwell at ¶ 34, citing Crawford v.
Washington, 541 U.S. 36, 53-54 (2004); accord State v. Smith, 2021-
Ohio-2866 (4th Dist.). However, “ ‘[i]t is a well-established
principle that Confrontation Clause rights, like other
constitutional rights, can be waived.’ ” Detienne, supra, at ¶ 24,
quoting State v. Pasqualone, 2009-Ohio-315, ¶ 14, citing Brookhart
v. Janis, 384 U.S. 1, 4 (1966); Hawkins v. Hannigan, 185 F.3d 1146,
1154 (10th Cir. 1999). (Internal citations omitted). For example,
in Ohio a defendant may waive the right to cross-examine a
laboratory analyst by failing to comply with a notice-and-demand
statute. See Detienne, supra, at ¶ 25. “ ‘[N]otice-and-demand
statutes require the prosecution to provide notice to the defendant
of its intent to use [a laboratory] analyst's report as evidence at
trial, after which the defendant is given a period of time in which
he may object to the admission of the evidence absent the analyst's
appearance live at trial.’ ” Detienne, supra, quoting Melendez-
Diaz v. Massachusetts, 557 U.S. 305, 326 (2009).
LAWRENCE, 23CA4 24
{¶44} R.C. 2925.51 is the most frequently relied upon notice-
and-demand statute. See Detienne, supra, at ¶ 26. Under R.C.
2925.51(A), in any criminal prosecution for a violation of Chapters
2925 (“Drug Offenses”) or 3719 (“Controlled Substances”), a
qualifying laboratory report stating that the substance that is the
basis of the alleged offense has been weighed and analyzed and
stating the findings as to the content, weight, and identity of the
substance, and that it contains any amount of a controlled
substance and the number and description of unit dosages, is
admissible at trial as prima-facie evidence of the content,
identity, and weight or the existence and number of unit dosages of
the substance so long as the prosecuting attorney serves a copy of
the report on the accused beforehand. However, “[t]he report shall
not be prima-facie evidence of the contents, identity, and weight
or the existence and number of unit dosages of the substance if the
accused or the accused's attorney demands the testimony of the
person signing the report, by serving the demand upon the
prosecuting attorney within seven days from the accused or the
accused's attorney's receipt of the report.” R.C. 2925.51(C).
(Emphasis added.)
{¶45} “In Pasqualone, the Ohio Supreme Court held that ‘the
procedures of R.C. 2925.51 adequately protect an accused's right to
confrontation, so that an accused who fails to demand the testimony
of the analyst pursuant to R.C. 2925.51(C) validly waives his
LAWRENCE, 23CA4 25
opportunity to cross-examine the analyst.’ ” Detienne, supra, at ¶
27, quoting, Pasqualone, 2009-Ohio-315, at ¶ 44. In other words,
“When the state has complied with its obligations under R.C.
2925.51, a defendant's failure to use the procedures of R.C.
2925.51(C) to demand that a laboratory analyst testify constitutes
a waiver of the opportunity to cross-examine the analyst at trial
and allows the analyst's report to be admitted as prima facie
evidence of the test results.” Id., at paragraph two of the
syllabus.
{¶46} In the case sub judice, Farley, a forensic scientist,
previously submitted her notarized statement and laboratory report
covering the substance involved in the case sub judice, and has
worked at Ohio Bureau of Criminal Identification and Investigation
(BCI) since 2018. Prior to that, Farley worked in the drug
chemistry section of the Ohio State Highway Patrol’s crime
laboratory. Farley’s educational qualifications include a bachelor
of science in forensic science from Defiance College in 2008, and
Farley had testified previously in the Lawrence County Common Pleas
Court. Farley testified to the identification and weight of the
substance found in appellant’s pocket.
{¶47} Although the State did not formally tender Farley as an
expert, appellant's counsel did not object to, or challenge her,
qualifications, nor did counsel object when the trial court
LAWRENCE, 23CA4 26
admitted Farley’s lab reports into evidence.3 Furthermore,
3
In United States v. Johnson, 488 F.3d 690 (6th Cir. 2007),
the United States Court of Appeals for the Sixth Circuit expressed
a preference for trial courts not to designate or certify an expert
in the jury's presence because it can lend a note of approval to
the witness that inordinately enhances the witness's stature and
detracts from the court's neutrality and detachment. Id. at 697.
However, in State v. Williams, 2018-Ohio-1647 (2d Dist.), the
Second District found the portion of Johnson that described the
preferred approach for tendering expert witnesses to be dicta and
disagreed with the idea that numerous courts in Ohio had adopted
that approach. Id. at ¶ 14-15. In addition, the Second District
held:
The custom of tendering a witness as an expert, which
by some has been taught as accepted practice, is not
without reason. Since 2001 the Ohio Supreme Court has
no less than eight times held that the proponent of an
expert does not have to formally tender an otherwise-
qualified expert witness. But those rulings exist for
the very reason that appellants have raised the
specter of error precisely because the prosecution did
not formally tender a witness as an expert. We also
recently considered an argument that ten expert
witnesses were not qualified as experts, in part,
because they were not formally tendered as experts.
State v. Hayes, 2d Dist. Montgomery No. 26379, 2016-
Ohio-7241 [2016 WL 5888103], ¶¶ 113-124. In addition,
once prospective qualifications to render opinions are
presented, it makes sense to signal that the
qualification portion of the testimony is complete to
give the opponent the opportunity to request voir dire
of the witness on those qualifications before
proceeding with their opinions and to allow the trial
court, and the witnesses’ proponent, to determine
whether the witnesses’ opinions will be admissible.
The issue, as we perceive it, is more directly related
to how a trial court responds to a tender of a witness
as an expert.
(Emphasis added.) Id. at ¶ 13.
See also State v. Hartman, 2001-Ohio-1580 (State did not formally
tender witness as an expert. However, the trial judge found that
witness was “certainly qualified as an expert.”); State v. Davis,
2008-Ohio-2 (State's failure to formally tender police detective as
LAWRENCE, 23CA4 27
pursuant to R.C. 2925.51, a BCI lab report signed by the person who
performed the analysis, stating that the substance that is the
basis of the alleged offense has been weighed and analyzed and
stating the findings as to the content, weight, and identity of the
substance and that it contains any amount of a controlled substance
and the number and description of unit dosages, constitutes prima-
facie evidence of the content, identity, and weight or the
existence and number of unit dosages of the substance. R.C.
2925.51(A). Moreover, Farley testified in detail at trial about
the laboratory’s inventory process, chain of custody procedures,
and the analytical testing methodology. Appellant’s trial counsel
also cross-examined Farley. Consequently, in light of the
foregoing, we believe appellant waived all but plain error.
Crim.R. 52(B); State v. Baston, 85 Ohio St.3d 418, 423 (1999).
{¶48} After our review in the case at bar, we find no error,
let alone plain error. We believe Farley’s qualifications and
experience as a forensic scientist qualified her to offer her
opinion about the identification and weight of the methamphetamine.
This is, in all likelihood, the reason appellant’s trial counsel
did not challenge the witnesses’ qualifications. Therefore, after
our review of the record we believe that the evidence adduced at
expert witness on fingerprints, blood spatter, and trace evidence
was not plain error in capital murder prosecution, as detective was
qualified to testify as an expert.)
LAWRENCE, 23CA4 28
trial is sufficient to support the claim that appellant possessed
methamphetamine.
{¶49} Accordingly, based upon the foregoing reasons, we
overrule appellant's first assignment of error.
II.
{¶50} In his second assignment of error, appellant asserts that
the trial court abused its discretion when it denied his motion for
new trial.
{¶51} “Generally, a decision on a motion for a new trial is
within the discretion of the trial court.” State v. Lusher, 2012–
Ohio–5526, ¶ 25 (4th Dist.), citing State v. Ward, 2007–Ohio–2531,
¶ 41 (4th Dist.) , citing State v. Schiebel, 55 Ohio St.3d 71,
paragraph one of the syllabus (1990). Accordingly, we will not
reverse a trial court's decision on a motion for a new trial absent
an abuse of discretion. State v. Nichols, 2012–Ohio–1608, ¶ 61
(4th Dist.). In general, an abuse of discretion implies that the
trial court's judgment is arbitrary, unreasonable or
unconscionable. State v. Minton, 2016-Ohio-5427, ¶ 19 (4th Dist.),
State v. Slagle, 2015-Ohio-1503, ¶ 6 (4th Dist.).
Crim.R. 33(A) provides:
(A) Grounds. A new trial may be granted on motion of the
defendant for any of the following causes affecting
materially the defendant's substantial rights:
(1) Irregularity in the proceedings, or in any order or
LAWRENCE, 23CA4 29
ruling of the court, or abuse of discretion by the court,
because of which the defendant was prevented from having a
fair trial;
(2) Misconduct of the jury, prosecuting attorney, or the
witnesses for the state;
(3) Accident or surprise which ordinary prudence could not
have guarded against;
(4) That the verdict is contrary to law;
(5) Error of law occurring at the trial;
(6) When new evidence material to the defense is discovered
which the defendant could not with reasonable diligence
have discovered and produced at the trial. When a motion
for a new trial is made upon the ground of newly discovered
evidence, the defendant must produce at the hearing on the
motion, in support thereof, the affidavits of the witnesses
by whom such evidence is expected to be given, and if time
is required by the defendant to procure such affidavits,
the court may postpone the hearing of the motion for such
length of time as is reasonable under all the circumstances
of the case. The prosecuting attorney may produce
affidavits or other evidence to impeach the affidavits of
such witnesses.
{¶52} Appellant contends that the trial court should not have
played the entire two recorded statements for the jury because some
of the recorded statement contains Evid. R. 404(b) evidence. In
particular, appellant argues that his receiving stolen property
charge involved the ATVs and a side-by-side, but the recording
mentioned many other items found in the Jenkins’ barn.
{¶53} Evid.R. 404(b) prohibits evidence of a defendant's other
acts when its only value is to show that the defendant has the
character or propensity to commit a crime. Specifically, pursuant
LAWRENCE, 23CA4 30
to Evid.R. 404(B)(1), “[e]vidence of other crimes, wrongs, or acts
is not admissible to prove the character of a person in order to
show action in conformity therewith.” Other-acts evidence may,
however, be admissible for another non-character-based purpose,
such as “motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.” Id. “The key is
that the evidence must prove something other than the defendant's
disposition to commit certain acts.” State v. Hartman, 2020-Ohio-
4440, ¶ 22; State v. Smith, 2020-Ohio-4441, ¶ 36.
{¶54} Courts generally use a three-step analysis to determine
whether evidence of other crimes, wrongs, or acts of an accused may
be admissible. See State v. Ludwick, 2022-Ohio-2609 (4th Dist.) at
¶ 17; State v. Williams, 2012-Ohio-5695, ¶ 19. The first step is
to consider whether the other acts evidence is relevant to making
any fact that is of consequence to the determination of the action
more or less probable than it would be without the evidence.
Evid.R. 401. The next step is to consider whether evidence of the
other crimes, wrongs, or acts is presented to prove the character
of the accused in order to show activity in conformity therewith or
whether the other acts evidence is presented for a legitimate
purpose, such as those stated in Evid.R. 404(B). The third step is
to consider whether the probative value of the other acts evidence
is substantially outweighed by the danger of unfair prejudice. See
Evid.R 403. Williams at ¶ 20; State v. Stevens, 2023-Ohio-3280LAWRENCE, 23CA4 31
(4th Dist.), ¶ 125.
Thus, the admissibility of other-acts evidence under
Evid.R. 404(B) is a question of law that we review de novo.
See Ludwick, at ¶18; State v. Hartman, 161 Ohio St.3d 214,
2020-Ohio-4440, 161 N.E.3d 651, ¶ 22 (“because
‘[d]etermining whether the evidence is offered for an
impermissible purpose does not involve the exercise of
discretion * * *, an appellate court should scrutinize the
[trial court's] finding under a de novo standard’ of
review” (brackets and emphasis sic)). “Weighing the
probative value of the evidence against its prejudicial
effect is a highly fact-specific and context-driven
analysis. Balancing the risks and benefits of the evidence
necessarily involves an exercise of judgment; thus, the
trial court's determination should be reviewed for an abuse
of discretion.” Id. at ¶ 30. Thus, we conduct a de novo
review of the first two steps of the analysis (i.e., is
the evidence relevant and is it presented for a legitimate
purpose) and we conduct an abuse of discretion review of
whether the probative value of it outweighs the danger of
unfair prejudice. State v. Lotzer, 3d Dist. Allen No. 1-
20-30, 2021-Ohio-3701, 2021 WL 4824579, ¶ 8 (“the first
two steps (i.e., relevancy under Evid.R. 401 and Evid.R.
402 and the particular purpose the evidence is offered
under Evid.R. 404(B)) are intertwined and pose legal
questions, and thus, are reviewed under a de novo standard
*657 of review. * * * However, the third step (i.e., Evid.R.
403’s balancing tests) ‘constitutes a judgment call,’ which
we review under an abuse-of-discretion standard”).
Stevens at ¶ 126.
{¶55} As we observed in Stevens, in State v. Smith, 2020-Ohio-
4441, the Supreme Court of Ohio noted that courts should first
evaluate whether the evidence is relevant to a non-character-based
issue material to the case. “If the evidence is not premised on
improper character inferences and is probative of an issue in the
case, the court must then consider whether the evidence’s value ‘is
substantially outweighed by the danger of unfair prejudice, of
LAWRENCE, 23CA4 32
confusion of the issues, or of misleading the jury.’ ” Id. at 128,
citing Smith at ¶ 37, quoting Evid.R. 403(A); State v. Hartman,
2020-Ohio-4440.
{¶56} Importantly, the Supreme Court of Ohio has held,
“ * * * (E)vidence of other crimes may be presented when
‘they are so blended or connected with the one on trial as
that proof of one incidentally involves the other; or
explains the circumstances thereof; or tends logically to
prove any element of the crime charged.’ ” (Citation
omitted.) United States v. Turner (C.A.7, 1970), 423 F.2d
481, at 483-84, certiorari denied 398 U.S. 967, 90 S.Ct.
2183, 26 L.Ed.2d 552. Accord United States v. Calvert,
(C.A.8, 1975), 523 F.2d 895, 907 certiorari denied, 424
U.S. 911, 96 S.Ct. 1106, 47 L.Ed.2d 314; State v.
Villavicencio (1964), 95 Ariz. 199, 388 P.2d 245. See also,
1 Wharton's Criminal Evidence (13 Ed.) 547, Section *318
242; 22 Wright & Graham, Federal Practice and Procedure
(1978 Ed.), 441, Section 5239.
State v. Wilkinson, 64 Ohio St.2d 308, 317 (1980).
{¶57} In the case sub judice, counsel argued at trial, “they’re
introducing evidence of crimes he’s not charged with; i.e.,
receiving stolen property of binoculars, camera, camouflage
equipment, things like that. I think they would have had to
provide reasonable notice in writing in advance of the trial and
had to be articulated in the notice for the permitted purpose of
which they were going to intend to introduce it and the reasons
supporting that.” The trial court, however, determined that the
State adduced the evidence in question to prove the crime of
burglary. Specifically, the trial court found no other acts
evidence, but instead identified the items as evidence of burglary
LAWRENCE, 23CA4 33
because the items found in the barn matched the items taken from
the Williamson property. We agree.
{¶58} Here, appellee argues, appellee adduced evidence of theft
from the residence to prove the elements of the burglary charge,
not as other acts evidence pursuant to Evid.R. 404(B). Similarly,
in State v. Stevens, supra, the defendant cited examples of alleged
“other acts evidence” admitted at his trial via a recorded
statement. These instances involved, inter alia, a discussion
about other stolen items. This court concluded that the trial
court did not err when it admitted evidence of discussion of other
stolen items. Id. at ¶ 135.
{¶59} In the case sub judice, the evidence in question, various
items of property stolen during the commission of the offenses,
concerned the burglary element related to the appellant’s purpose
to commit a criminal offense in the occupied structure, i.e.,
theft. Rather than other acts evidence, we believe the evidence
constitutes relevant direct evidence of the crimes charged.
Evidence is admissible when “the challenged evidence plays an
integral part in explaining the sequence of events and is necessary
to give a complete picture of the alleged crime.” State v.
Thompson, 66 Ohio St.2d 496, 498, (1981); accord State v. Grate,
2020-Ohio-5584, ¶ 140. Further, evidence regarding other acts “may
be presented when ‘they are so blended or connected with the one on
trial as that proof of one incidentally involves the other; or
LAWRENCE, 23CA4 34
explains the circumstances thereof; or tends logically to prove any
element of the crime charged.’ ” State v. Wilkinson, 64 Ohio St.2d
308, 317 (1980), quoting United States v. Turner, 423 F.2d 481,
483-84 (C.A. 7, 1970).
{¶60} Consequently, in the case sub judice, we believe that the
reference to all of the stolen property placed the property in
appellant’s possession and helped to explain the sequence of events
that led to the discovery and recovery of the property and its
connection to appellant. State v. Gross, 2002-Ohio-5524, ¶ 47
(testimony about details of a drug transaction placed the murder
weapon in defendant’s possession, explained the sequence of events
leading to its recovery and connection to defendant, and
demonstrated defendant’s concern about discovery of the weapon.)
See also State v. Sims, 2023-Ohio-1179, ¶ 98 (in rape trial
evidence of appellant’s other contemporaneous acts relevant to
establish appellant’s intent evidence constituted an integral
component to help to explain the sequence of events and necessary
to provide the trier of fact with a complete picture of the crime).
Here, the items mentioned during the interviews and during the
course of trial included a portion of the chattel property stolen
during the commission of the named offenses, not some unrelated
event prior in time or property acquired from a different location.
Therefore, we conclude that the trial court did not abuse its
discretion when it denied appellant’s motion for new trial.
LAWRENCE, 23CA4 35
{¶61} Accordingly, for the foregoing reasons, we overrule
appellant’s second assignment of error and affirm the trial court’s
judgment.
JUDGMENT AFFIRMED.
LAWRENCE, 23CA4 36
JUDGMENT ENTRY
It is ordered that the judgment be affirmed. Appellee shall
recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court
directing the Lawrence County Common Pleas Court to carry this
judgment into execution.
If a stay of execution of sentence and release upon bail has
been previously granted by the trial court or this court, it is
temporarily continued for a period not to exceed 60 days upon the
bail previously posted. The purpose of a continued stay is to
allow appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of the proceedings in
that court. If a stay is continued by this entry, it will
terminate at the earlier of the expiration of the 60-day period, or
the failure of the appellant to file a notice of appeal with the
Supreme Court of Ohio in the 45-day appeal period pursuant to Rule
II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio.
Additionally, if the Supreme Court of Ohio dismisses the appeal
prior to expiration of 60 days, the stay will terminate as of the
date of such dismissal.
A certified copy of this entry shall constitute that mandate
pursuant to Rule 27 of the Rules of Appellate Procedure.
Hess, J. & Wilkin, J.: Concur in Judgment & Opinion
For the Court
BY:__________________________
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a
final judgment entry and the time period for further appeal
commences from the date of filing with the clerk.