State v. Manley , 2011 Ohio 5082 ( 2011 )

[Cite as State v. Manley, 2011-Ohio-5082.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-11-04
v.
RICKY D. MANLEY, JR., OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR2010 0216
Judgment Reversed and Cause Remanded
Date of Decision: October 3, 2011
APPEARANCES:
Thomas Sobecki for Appellant
Jana E. Emerick for Appellee
Case No. 1-11-04
WILLAMOWSKI, J.
{¶1} Defendant-appellant Ricky D. Manley (“Manley”) brings this appeal
from the entry of judgment of conviction by the Court of Common Pleas of Allen
County based upon a jury verdict finding Manley guilty of various felonies and
sentencing Manley on those convictions. For the reason set forth below, the
judgment is reversed.
{¶2} On June 30, 2010, Manley was observed by W.K. exiting a vehicle
with a shotgun. Tr. 143-44. W.K. saw Manley fire the weapon in a southwesterly
direction across the intersection of Allentown Road and Cornell Dr. Tr. 144-46.
W.K. then saw Manley run back to the vehicle which then left the scene. Tr. 146-
47. W.K. then contacted the police and gave them the license plate number from
the vehicle and identified Manley as the person who fired the shotgun. Tr. 149-59.
{¶3} The Lima Police Department investigated the incident and determined
that the intended victim was Barry Ward Jr. (“Ward”), who at the time of the
shooting was in a vehicle at the intersection in question. Tr. 180-83. Earlier that
day, Ward had assaulted Manley at the Lima Municipal Court. Tr. 176-77. The
blast from the shotgun missed the vehicle, but did strike and damage a nearby
home, which was occupied at the time. Tr. 230-52.
{¶4} On August 12, 2010, the Allen County Grand Jury indicted Manley on
five counts: 1) felonious assault, a felony of the second degree in violation of
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R.C. 2903.11(A)(2) with a firearm specification; 2) felonious assault, a felony of
the second degree in violation of R.C. 2903.11(A)(2) with a firearm specification;
3) improper handling of a firearm in a motor vehicle, a felony of the fourth degree
in violation of R.C. 2923.16(B)(1 & 2); 4) improperly discharging a firearm at or
into a habitation, a felony of the second degree in violation of R.C.
2923.161(A)(1); and 5) discharge of a firearm on or near prohibited premises, a
felony of the third degree in violation of R.C. 2923.162(A)(3) & (C)(2). A jury
trial was held on December 13 and 14, 2010. The jury returned a verdict on
December 14, 2010, finding Manley guilty as charged on all counts. A sentencing
hearing was immediately held and the trial court sentenced Manley to a total of
eighteen years in prison. Manley appeals from this judgment and raises the
following assignments of error.
First Assignment of Error
The Court of Common Pleas erred when it denied [Manley’s]
motion to suppress identification testimony.
Second Assignment of Error
The Court of Common Pleas plainly erred by failing to find that
the prosecutor improperly vouched for one of its key witnesses
and improperly impugned the motivation of defense counsel in
his closing argument.
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Third Assignment of Error
The Court of Common Pleas erred in finding that [Manley’s]
relationship with the victim facilitated the offense.
{¶5} In the first assignment of error, Manley claims that the trial court erred
by not suppressing the identification testimony. When considering a motion to
suppress, the standard of review is a mixed review of the facts and a question of
law. State v. Hoppert, 181 Ohio App.3d 787, 2009-Ohio-1785, 910 N.E.2d 1106.
Our standard of review with respect to motions to suppress is
whether the trial court’s findings are supported by competent,
credible evidence. See State v. Winand (1996), 116 Ohio App.3d
286, 688 N.E.2d 9, citing City of Tallmadge v. McCoy (1994), 96
Ohio App.3d 604, 645 N.E.2d 802. * * * This is the appropriate
standard because ‘in a hearing on a motion to suppress evidence,
the trial court assumes the role of trier of facts and is in the best
position to resolve questions of fact and evaluate the credibility
of witnesses.’ State v. Hopfer (1996), 112 Ohio App.3d 521, 679
N.E.2d 321. However, once we accept those facts as true, we
must independently determine, as a matter of law and without
deference to the trial court’s conclusion, whether the trial court
met the applicable legal standard.
State v. Lloyd (1998), 126 Ohio App.3d 95, 100-101, 709 N.E.2d 913.
Prior to suppressing identification testimony, a trial court must
engage in a two-step analysis. First, there must be a
determination that the identification procedure was so
impermissibly suggestive as to give rise to a substantial
likelihood of misidentification. Neil v. Biggers (1972), 409 U.S.
188, 93 S.Ct. 375, 34 L.Ed.2d 401. Second, it must be
determined that the identification itself was unreliable under the
totality of the circumstances. Id. * * *
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In Biggers, the court listed the five factors that must be
considered when evaluating the reliability under the totality-of-
the-circumstances test: (1) the witness’s opportunity to view the
offender at the time of the crime, (2) the witness’s degree of
attention at the time of the crime, (3) the accuracy of the
witness’s prior description of the offender, (4) the witness’s level
of uncertainty when identifying the suspect at the confrontation,
and (5) the length of time that elapsed between the crime and the
confrontation. Id. at 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401.
State v. Monford, 190 Ohio App.3d 35, 2010-Ohio-4732, ¶38-39, 940 N.E.2d 634.
A pretrial identification is only suppressed if it is both unnecessarily suggestive
and unreliable given the totality of the circumstances. Id. Even if the original
identification procedure was suggestive, the actual identification is still admissible
as long as it is reliable. Manson v. Brathwaite (1977), 432 U.S. 98, 97 S.Ct. 2243,
53 L.Ed.2d 140 and State v. Moody (1978), 55 Ohio St.2d 64, 9 O.O.3d 71, 377
N.E.2d 1008. The burden of proving that the identification procedure was
suggestive and unreliable rests on the defendant. State v. Taylor, 3d Dist. No. 1-
03-20, 2003-Ohio-7115.
{¶6} In this case, W.K. originally described the shooter as a black male
approximately six feet tall, thin, wearing a long sleeve hooded, blue sweatshirt and
pants. Suppression Hearing Tr. 14, 34. The shooter’s hair was done in cornrows.
Id. at 35. W.K. also testified that he was approximately 25 feet away from the
shooter. Id. at 49. Three hours after the shooting, W.K. was shown a photo array,
and picked out a person he thought was the shooter, but was unable to
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unequivocally identify the person as the shooter. Id. On July 14, 2010, W.K.
appeared pursuant to a subpoena at a preliminary hearing. While waiting in the
hall to be called into the hearing, Manley was walked past W.K. wearing jail attire
and handcuffs and into the courtroom. W.K. observed Manley walk up the steps
and told Detective Kent Miller (“Miller”) that Manley was the man who fired the
gun. Id. at 41. W.K. testified that he saw Manley for approximately five seconds
at around 1:30 p.m. on June 30, 2010. Id. at 43. At the time of the preliminary
hearing, Miller did not know that Manley was being brought into the courtroom or
that he was even near because his back was to the stairwell. Id. at 47. The State
asked W.K. at the suppression hearing how certain he was of his identification on
a scale of 1 to 10 with 10 being the most certain. Id. at 49. W.K. responded that
on that scale, his certainty was a 10. Id. W.K. then proceeded to identify Manley
in open court as the man who fired the gun. Id. at 50.
{¶7} At the conclusion of the hearing, the trial court made the following
findings and conclusions of law.
First of all, at the preliminary hearing [W.K.] was down there.
He know – knew that there was going to be a preliminary
hearing. There’s no evidence that there was any suggestion as to
when the suspect, defendant, was coming up. When he saw the
defendant he said that’s the guy or words to that affect or – and
then said I’m sure that’s the guy who did the shooting. Officer
Miller wasn’t even talking to him when they’re bringing him up
the steps.
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The court would further note that then you have to go back at
the time of the Neil v. Biggers to determine the conditions at the
time of the crime, the length of the observation. He saw the
defendant – the person get out of the vehicle, had a gun, he left.
He came – he heard the gun be – rifle or gun be fired. He came
back. He had a hood. The hood was off. He looked right at
him. He was 20 – around 25 feet away. He had a good view of
him, lighting conditions at the time of – it was the middle of the
day. It was nice outside. He was – what I think is important too
the – [W.K.] was not an alleged victim. That he was a witness
who was able to observe what was going on.
The court finds that the reliability in this particular instance,
after concerning – after considering the totality of the
circumstances that it is reliable and as a result the motion to
suppress is overruled and denied.
Id. at 60-61.
{¶8} In this case, the five factors to be considered when determining the
reliability of the identification include first, the witness’ opportunity to view the
offender at the time of the crime. Biggers, supra. The evidence from the hearing
indicated that the crime took place in the early afternoon, on a sunny, clear day.
Manley stood no more than 25 feet from W.K. and looked directly at W.K. for
roughly five seconds. W.K. also testified that he was wearing his glasses at the
time. Thus, the trial court’s findings concerning the ability of W.K. to observe the
offender are supported by competent, credible evidence.
{¶9} Next, the court considers the witness’s attention to details at the time
of the crime. Id. W.K. was able to identify the vehicle in which Manley arrived
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as a blue sedan and to obtain the license plate number on the vehicle. He also
heard the gun shot and looked directly at the shooter as he returned to the vehicle.
He was able to provide the license plate to the dispatcher and to give a fairly
detailed description of the offender to Miller three hours after the incident. These
facts indicate that W.K.’s attention to detail was good.
{¶10} The third factor is the accuracy of the witness’s prior description of
the offender. Id. Miller testified that W.K. identified the shooter as a six foot tall,
slim black male with long, braided hair. Tr. at 14. The shooter was identified as
wearing a dark hooded sweatshirt and long pants. Id. This description matches
that stated in the original police report filed the date of the incident and made part
of the record per Manley’s discovery request. August 26, 2010 Discovery
Response. Pursuant to Manley’s driver’s license information, Manley is 6’01” and
170 pounds. Exhibit A. He also has long braided hair and is a black male. Thus,
the original description given by W.K. was fairly accurate.
{¶11} The fourth factor is the level of certainty the witness expresses when
making the identification. W.K. testified that he was pretty sure that the offender
was in the original photo array, but was not positive, so did not make a definite
identification at that time. Tr. at 49. However, when he observed Manley at the
courthouse, he was positive that he was the shooter. W.K. then volunteered to
Miller, who did not know that Manley had appeared, that the police had arrested
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the person who did the shooting. This identification was not solicited by the State,
but was volunteered by the witness. During the suppression hearing, W.K. again
identified Manley as the shooter and expressed that he was 100% confident in his
identification of Manley.
{¶12} Finally, the fifth factor requires that the court consider the length of
time between the crime and the identification. The crime occurred on June 30,
2010. W.K. first made a positive identification of Manley on July 14, 2010, a
mere two weeks after the event. This identification was subsequently repeated on
December 10, 2010, at the hearing on the motion to suppress. At no time did
W.K. waiver in his identification of Manley. Given all of these factors, the
evidence supports the trial court’s determination that the identification was
reliable. An identification is admissible if it is reliable regardless of the
suggestiveness of the original identification. Manson, supra and Moody, supra.
Here, the trial court determined that W.K.’s identification was reliable and that
finding is supported by the evidence. Since the identification was reliable, it was
admissible. Therefore, the trial court did not err in denying the motion to
suppress. The first assignment of error is overruled.
{¶13} In the second assignment of error, Manley claims that the trial court
erred by allowing the State to improperly vouch for the credibility of its witness
and by improperly impugning the character of defense counsel. Manley claims
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that the improper statements made by the State amount to prosecutorial
misconduct and is sufficient to warrant reversal. However, this court notes that
Manley did not object to either of the statements to which he assigns error. A
claimed error not objected to will not be reviewed on appeal absent a showing of
plain error. Crim.R. 52(B), State v. Underwood (1983), 3 Ohio St.3d 12, 444
N.E.2d 1332. To rise to the level of plain error, the record must show that the
error occurred and that the error affected the outcome of the trial. Id.{¶14} The test regarding prosecutorial misconduct during closing
arguments is whether the remarks were improper and, if so, whether they
prejudicially affected the substantial rights of the defendant. State v. Davis, 116
Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31. “In making this determination, an
appellate court should consider several factors: (1) the nature of the remarks, (2)
whether an objection was made by counsel, (3) whether corrective instructions
were given by the court, and (4) the strength of the evidence against the
defendant.” State v. Braxton (1995), 102 Ohio App.3d 28, 41, 656 N.E.2d 970.
“The touchstone of the analysis ‘is the fairness of the trial, not the culpability of
the prosecutor.’” Davis, supra at ¶231 (quoting Smith v. Phillips (1982), 455 U.S.
209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78). Prosecutorial misconduct is generally
not grounds for reversal unless it so taints the proceedings as to deprive the
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defendant of a fair trial. State v. Johns, 3d Dist. No. 13-04-23, 13-04-24, 13-04-
25, 2005-Ohio-1694, ¶25.
{¶15} Manley argues that two specific statements made by the prosecutor
during closing argument were instances of prosecutorial misconduct. The first is
as follows.
In particularly – well, what’s particularly offensive is the idea
that Detective Stechschulte, who can’t stand at this microphone
and speak to you directly and defend that sort of accusation, nor
can anyone else from the Lima Police Department, that anyone
from that department would for a minute say to themselves, by
God, we’re going to get a Manley off the street and then shape
their investigation in that direction.
I know these people, and frankly, it’s offensive.
Tr. 456. Manley argues that the prosecutor was vouching for the credibility of the
witnesses with this statement. “An attorney may not express a personal belief or
opinion as to the credibility of a witness.” Davis, supra at ¶232. Contrary to the
argument set forth by the State, this statement was improper. The prosecutor put
forth his opinion that these witnesses would not do what Manley claimed. That is
vouching for the witnesses and is impermissible. Davis, supra. Thus, an error
occurred.
{¶16} The second statement to which Manley assigns error is as follows.
Now, evaluating this case, it’s not unlike picking up a pair of
binoculars and looking out into the distance. When you first
pick up those binoculars and you look out in the distance, okay,
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it might be blurry. You sharpen that image. You focus, and it
becomes clear. And defense attorneys, if they’re doing their job,
frankly, if they’re doing their job, and it’s their job, is to make
that, if they can within the bounds of the rules and bounds of
propriety, make that image a little more fuzzy. That’s the
tension between a prosecutor and a defense attorney. We try to
make it clear. They try to make it more fuzzy.
Tr. 462. This statement is completely improper. The implication is that the State
is telling the truth and the defense counsel is not. Prosecutors must not make
insinuations and assertions designed to mislead the jury. State v. Smith (1984), 14
Ohio St.3d 13, 14, 470 N.E.2d 883. Although prosecutors are given wide latitude
during closing arguments, that latitude does not permit the prosecutor to denigrate
the role of defense counsel. State v. Keenan (1993), 66 Ohio St.3d 402, 613
N.E.2d 203.
{¶17} In a case similar to the one before this court, the First District Court
of Appeals of Ohio held as follows.
A prosecutor may argue and argue ardently that the evidence
does not support the conclusion postulated by defense counsel.
A prosecutor may not, however, denigrate the role of defense
counsel by injecting his personal frustration with defense tactics,
especially when, as here, the prosecutor continues in this
fashion:
“And when you think about that you gain valuable insight into
their whole method of operation. Crank up the fog machine.
Let’s try and conjure up a reasonable doubt.”
The prosecutor was not entitled to employ rebuttal argument to
denigrate the role of defense counsel and to insinuate to the jury
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that [the defendant] and his counsel, by exercising their right to
suggest what conclusions may or may not have been drawn from
the evidence found at trial, were seeking to hide the truth. * * *
The prosecutor’s remarks in rebuttal also constituted improper
conduct.
State v. Hart (1994), 94 Ohio App.3d 665, 673-74, 641 N.E.2d 755. Like the
prosecutor in Hart, the prosecutor in this case insinuated that defense counsel was
attempting to hide the truth by making it “more fuzzy.” The attempt to denigrate
the role of defense counsel is misconduct by the prosecutor.
{¶18} Having found that prosecutorial misconduct occurred in the closing
argument, the next step is to determine whether the statements were so prejudicial
as to rise to the level of plain error. Even if a prosecutor’s statements during
closing arguments are improper, reversal based upon those statements only occurs
if the attitude of the statements permeates the entire atmosphere of the trial. State
v. Tumbleson (1995), 105 Ohio App.3d 693, 664 N.E.2d 1318. This inquiry is
guided by the four factors discussed above. Johns, supra at ¶25. The nature of the
remarks has already been discussed. Also discussed was the fact that Manley did
not object to the remarks during trial. The third factor is whether a curative
instruction was given. Although the trial court did not tell the jury to disregard the
specific statements, the jury was instructed that the statements made during
closing arguments were not to be considered as evidence. Tr. 472. The trial court
also instructed the jury that it was the sole judge of the credibility of the witnesses.
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Tr. 473. Thus, curative instructions were given. Finally, this court must consider
the strength of the evidence. The jury heard all the evidence and evidently
believed the testimony of W.K. This court does not find that the evidence was so
weak that there would have been no conviction absent the prosecutorial
misconduct. Therefore, the statements do not rise to the level of plain error and
the second assignment of error is overruled.
{¶19} Although the prosecutorial misconduct did not rise to the level of
plain error, this court must emphasize that prosecutors must be diligent in their
efforts to remain within the boundaries of acceptable argument. Prosecutors must
adhere to the highest standards due to their unique role in the justice system. A
prosecutor “may prosecute with earnestness and vigor * * *. But, while he may
strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to
refrain from improper methods calculated to produce a wrongful conviction as it is
to use every legitimate means to bring about a just one.” Berger v. United States
(1935), 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314.
{¶20} Manley claims in the third assignment of error that the trial court
erred in finding that his relationship with the victim facilitated the crime.
(A) Unless otherwise required by [R.C. 2929.13 or 2929.14], a
court that imposes a sentence under this chapter upon an
offender for a felony has discretion to determine the most
effective way to comply with the purposes and principles of
sentencing set forth in [R.C. 2929.11]. In exercising that
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discretion, the court shall consider the factors set forth in
divisions (B) and (C) of this section relating to the seriousness of
the conduct and the factors provided in division (D) and (E) of
this section relating to the likelihood of the offender’s recidivism
and, in addition, may consider any other factors that are
relevant to achieving those purposes and principles of
sentencing.
(B) The sentencing court shall consider all of the following that
apply regarding the offender, the offense, or the victim, and any
other relevant factors, as indicating that the offender’s conduct
is more serious than conduct normally constituting the offense:
***
(6)The offender’s relationship with the victim facilitated the
offense.
R.C. 2929.12. To facilitate means to make easier. The American Heritage
Dictionary (2 Ed. 1985) 484. In order to have the relationship facilitate the
offense, the defendant must have used his relationship with the victim to help
commit the offense. State v. McDade, 6th Dist. No. 06-OT-001, 06-01-004, 2007-
Ohio-749. In other words, the defendant must have used the relationship to allow
him to commit the offense in a manner which he could not have accomplished
without the relationship.
{¶21} The trial court in this case found that Manley’s relationship with
Ward facilitated the offense. However, the evidence indicates that any
relationship between Ward and Manley was not friendly, but was rather
combative. Although the relationship between Ward and Manley may have
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provided the motive for the crime, it did not make it easier for Manley to commit
the crime.1 The testimony at trial by Ward was that there was no real relationship
between the two. Tr. 196. A review of Ward’s testimony indicated that Ward was
rather dismissive of Manley and did not consider him as either a friend or an
enemy, but rather just someone who was there. Ward admitted that he struck
Manley at the courthouse. Tr. 191. Before that day, there was no physical contact
between the two. Tr. 195. In Ward’s opinion, Manley was a thief, but not a
fighter based upon a prior incident in which he believed Manley may have stolen
something from his car. Tr. 195-96. There was no evidence presented that
Manley was able to use his relationship with Ward to commit the offense. Thus,
the trial court erred in finding that the relationship facilitated the offense.
{¶22} Although the relationship did not facilitate the offense, this error is
not necessarily prejudicial. The trial court in this case considered more than just
one factor of those set forth in R.C. 2929.12(B), it considered all of statutory
factors. The trial court need not specifically address each and every factor that it
considers, but may instead just indicate that it has considered the statutory factors.
State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1 and State v.
Alvarado, 3d Dist. No. 12-07-14, 2008-Ohio-4411, ¶47. The Ohio Supreme Court
1
Rather than facilitate the offense, the combative nature of the earlier interaction was more likely to put the
victim on guard against the defendant. It did not make the actual commission of the offense any easier for
the defendant.
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in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, at paragraph seven of the
syllabus, held that “[t]rial courts have full discretion to impose a prison sentence
within the statutory range and are no longer required to make findings or give their
reasons for imposing maximum, consecutive, or more than the minimum
sentences.” The trial court specifically stated that it had considered the factors
set forth in R.C. 2929.12. Dec. 17, 2010, Entry, 6. The sentences imposed upon
Manley for the various offenses were all within the statutory ranges. Thus,
Manley did not suffer prejudicial error due to the finding and any error was
harmless. For this reason, the third assignment of error is overruled.
{¶23} Although this court has not found error with any of the stated
assignments of error, this court sua sponte chooses to address a plain error in the
sentencing in this matter. A review of the verdict forms shows that the levels of
offense and/or aggravating factors were not specified.
R.C. 2945.75(A) plainly requires that in order to find a
defendant guilty of “an offense * * * of more serious degree,” the
guilty verdict must either state “the degree of the offense of
which the offender is found guilty” or state that “additional
element or elements are present.” R.C. 2945.75(A)(2) also
provides, in the very next sentence, what must occur if this
requirements is not met: “Otherwise, a guilty verdict constitutes
a finding of guilty of the least degree of the offense charged.”
When the General Assembly has written a clear and complete
statute, this court will not use additional tools to produce an
alternative meaning.
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State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, ¶12, 860 N.E.2d 735. For
Count Three, the verdict form reads as follows:
We the jury, being duly impaneled and sworn, find the
Defendant, Ricky D. Manley, Jr. [Guilty] if Improper Handling
of a Firearm in a Motor Vehicle as charged in the Indictment.
Verdict Form Count Three. The indictment specifies that Manley was charged
with a felony of the fourth degree. However, the minimum offense in the statute is
a fourth degree misdemeanor. R.C. 2923.16. The verdict form did not set forth
the degree of culpability or specify any aggravating factors. Thus, pursuant to
R.C. 2945.75(A)(2) and the holding of the Ohio Supreme Court in Pelfrey,
Manley should have been found guilty of a fourth degree misdemeanor, not a
fourth degree felony.
{¶24} In count five of the indictment, Manley was charged with a third
degree felony for improperly discharging a firearm near prohibited premises. The
lowest degree of culpability listed in the statute is a fourth degree misdemeanor.
The verdict form reads as follows:
We the jury, being duly impaneled and sworn, find the
Defendant, Ricky D. Manley, Jr. [Guilty] of Discharging of
Firearm On Or Near Prohibited Premises as charged in the
Indictment.
Verdict Form Count Five. Once again, no degree of culpability was specified and
no aggravating elements were listed. Therefore, the trial court erred in finding
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Manley guilty of the third degree felony. The trial court should have found him
guilty of a fourth degree misdemeanor. As a result of these sentencing errors, the
judgment of conviction and subsequent sentences is reversed.
{¶25} Having found error prejudicial to the defendant, the judgment of the
Court of Common Pleas of Allen County is reversed and the matter is remanded to
the trial court for a proper judgment of conviction and for resentencing.
Judgment Reversed and
Cause Remanded
ROGERS, P.J. concurs.
/jlr
SHAW, J. concurs in Judgment Only.
{¶26} The record in this case establishes a properly framed indictment,
properly framed issues at trial, and properly framed jury instructions, all of which
resulted in a full and complete apprisal by the defense, prosecution, judge and the
jury of the charges, what was to be defended, and the exact convictions returned.
{¶27} As a result, there is no possibility of prejudice to the defendant, or
any conceivable misunderstanding for that matter, resulting from the verdict form
in this case. In this regard, this case is identical to the circumstances addressed in
the prior decision of this court in State v. Ligon, 179 Ohio App.3d 544, 2008-
Ohio-6085. For all of the same reasons set forth in my separate concurrence in
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Ligon, as compelled only by the decision of the Ohio Supreme Court in Pelfrey,
supra, I concur in judgment only in this case.
/jlr
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