State v. Moore , 2018 Ohio 3122 ( 2018 )

[Cite as State v. Moore, 2018-Ohio-3122.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
FAYETTE COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2017-11-023
: OPINION
- vs - 8/6/2018
:
NORMAN E. MOORE, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS
Case No. CRI 20170203
Jess C. Weade, Fayette County Prosecuting Attorney, John M. Scott, Jr., Fayette County
Courthouse, 110 East Court Street, Washington Court House, Ohio 43160, for plaintiff-
appellee
Steven H. Eckstein, 1208 Bramble Avenue, Washington Court House, OH 43160, for
defendant-appellant
S. POWELL, P.J.
{¶ 1} Defendant-appellant, Norman E. Moore, appeals from the decision of Fayette
County Court of Common Pleas denying his motions to dismiss and to suppress in a case
where the trial court ultimately found Moore guilty of single counts of gross sexual imposition
and rape after he entered a plea of no contest to both charges. For the reasons outlined
below, we affirm.
Fayette CA2017-11-023
{¶ 2} On April 4, 2017, Jane Doe, a minor, reported to the Fayette County Sheriff's
Office that Moore, who at that time was her stepfather, had sexually assaulted her the
previous day, April 3, 2017, by pulling up her shirt and "messing" with her breasts. The
following day, April 5, 2017, Jane met with Sergeant E.A. Ward with the Fayette County
Sheriff's Office, during which Jane provided Sergeant Ward with further details regarding
this single incident, as well as generally alleging similar conduct had occurred "for about
the past 9 months and happens at least once a week."1 Jane also informed Sergeant Ward
that Moore had "talked about her not being a snitch like her sister," Jill Doe, and "spoke
about what he did 'with' her sister." 2 Jill, who was then 19 years old, had since moved out
of the family home and was residing with her boyfriend.
{¶ 3} On April 7, 2017, the Fayette County Grand Jury returned an indictment
charging Moore with one count of gross sexual imposition. It is undisputed that this
indictment was based Jane's allegations regarding Moore's conduct she had reported to
the Fayette County Sherriff's Office on April 4, 2017. Moore was thereafter arrested on
April 12, 2017. The following week, on April 17, 2017, Moore appeared at his arraignment
and entered a plea of not guilty to the single charged offense of gross sexual imposition
against Jane. Since being arrested on April 12, 2017, there is no dispute that Moore had
remained incarcerated in the Clinton County Jail at all times relevant.
{¶ 4} On April 19, 2017, a search warrant was issued for Moore's cell phone. The
search warrant was supported by an affidavit submitted by Sergeant Ward who averred that
Jane had since reported to him that Moore had repeatedly for the past nine months: (1)
placed his hand inside her pants and touched her vagina, as well as her breasts and
1. The facts of this case are taken primarily from the Sergeant Ward's narrative statement submitted as part
of his investigation into Moore's conduct giving rise to his conviction subject to this appeal.
2. For ease of discussion, the names of the two victims have been altered in an effort to conceal their
respective identities.
-2-
Fayette CA2017-11-023
buttocks, (2) asked her to have sex, to which she declined, (3) offered her money for oral
sex, (4) "tried" to get her to send him photographs of her via cell phone, and (5) "asked" her
to watch pornography on cell his phone, specifically "Stepfathers fucking Stepdaughters."
{¶ 5} Sergeant Ward further averred that the most recent incident occurred on April
3, 2017, during which Jane alleged Moore had called her into his bedroom and "pulled up
her shirt and was messing with her 'boobs.'" The search of Moore's cell phone led to the
discovery that Moore had conducted an internet search for "Step Dad Fucks Step Daughter
Porn Video" on April 3, 2017, the same day Jane alleged Moore had pulled up her shirt and
was "messing" with her breasts, as well as two previous internet searches on March 30,
2017 for "step dad fucking step dau (sic)." Several images relating to stepfathers and
stepdaughters were also discovered on Moore's cell phone, none of which contained any
nudity.
{¶ 6} On April 21, 2017, Jane submitted to a forensic interview regarding her and
her sister Jill's interactions with Moore. As part of this interview, Jane provided further,
specific details regarding Moore's interactions with both her and her sister. This included
statements from Jane that Moore had over the past nine months touched her buttocks,
breasts, and vagina. "[S]tarted on the outside and then went in." Jane also stated that
Moore had told her Jill had sent nude photographs of herself to Moore, but that Jane herself
did not send nor did she receive any photographs from Moore. A follow up interview with
Jane revealed still further incidents between Jane and Moore starting sometime in the
summer of 2015, including cunnilingus and digital penetration of Jane's vagina.
{¶ 7} On April 23, 2017, Jill also submitted to a forensic interview regarding her and
her sister Jane's interactions with Moore. During this interview, Jill stated that she was just
nine years old when Moore started to sexually abuse her. This included playing a "game"
where Moore would tell Jill "to hide and he would come find her and touch her" on her chest
-3-
Fayette CA2017-11-023
and vagina, both inside and outside. Jill also stated Moore had bribed her with money to
send nude photographs of herself to him. According to Jill, "if she wouldn't [send the nude
photographs to Moore] he would ground her or lie to mom to make mom ground her."
{¶ 8} Jill further stated that when she was between 11 and 12 years old that Moore
would touch her daily, including digital penetration of her vagina. Jill alleged the sexual
abuse finally stopped after she started her period sometime after she turned 13 years old.
Although not clear, the record indicates Jill had previously complained about Moore's sexual
abuse, which, according to Jill, eventually resulted in Moore being "put out of the house by
Children's Service[.]" Unfortunately, Jill stated that she later recanted her accusations
against Moore telling "them it was a lie, because her mom was hurt and she felt bad."
{¶ 9} Based on these new, specific allegations, on June 30, 2017, the Fayette
County Grand Jury returned a 65-count indictment charging Moore with multiple counts of
gross sexual imposition and rape resulting from his repeated, overt sexual abuse of his two
stepdaughters, Jane and Jill. As alleged in the indictment, the nine charges involving Jane
occurred between October of 2016 through April of 2017, whereas the 56 charges involving
Jill occurred between September of 2007 through December of 2009.
{¶ 10} Approximately two weeks later, on July 10, 2017, Moore appeared at his
arraignment and entered a plea of not guilty to all 65 charged offenses. Due to the filing of
this new 65-count indictment, and in the interests of justice to "pursue only one case at this
time," the state thereafter dismissed without prejudice the original indictment filed on April
7, 2017. The matter was then scheduled for a jury trial on August 22, 2017, which at
Moore's request was rescheduled for September 27, 2017.
{¶ 11} On September 25, 2017, two days before the jury trial was scheduled to begin,
Moore filed a motion for leave to file a motion to suppress outside of the trial court's time
guidelines. That same day, before the trial court had an opportunity to rule on Moore's
-4-
Fayette CA2017-11-023
motion for leave, Moore filed both a motion to dismiss and a motion to suppress. In support
of his motion to dismiss, Moore claimed there had been a violation of his right to a speedy
trial, thereby requiring all 65 charges then pending against him be dismissed. Specifically,
Moore argued that "[b]ecause there was information available to the State concerning
allegations contained in this case at the time [he was indicted for a single count of gross
sexual imposition on April 7, 2017], a calculation of speedy trial should begin with [his] date
of arrest on that case, April 12, 2017." On the other hand, in support of his motion to
suppress, Moore claimed the search warrant issued for his cell phone was not supported
by probable cause. Responding to Moore's motions, the state argued they should be
denied since "both of these motions [were] a calculated trial tactic aimed at delay and serve
no legitimate interest in justice."
{¶ 12} On September 26, 2017, the trial court held a hearing on Moore's motion for
leave, during which Moore made an additional oral motion for a continuance of the jury trial
scheduled to begin the next day, September 27, 2017. Over the state's objection, the trial
court granted Moore's motions for leave and for a continuance upon finding it was
necessary to continue the jury trial to address Moore's motions to dismiss and to suppress.
The trial court then scheduled a hearing on Moore's motions for October 3, 2017, whereas
the jury trial was rescheduled for October 19, 2017. Moore then executed a written waiver
of his right to speedy trial, thereby waiving his speedy trial rights up to and including when
the jury trial was scheduled to begin on October 19, 2017.
{¶ 13} On October 3, 2017, the parties appeared before the trial court for the hearing
on Moore's motions. No testimony or evidence was presented at this hearing, only
arguments from both parties. At the conclusion of this hearing, the trial court issued a
decision from the bench denying Moore's motion to suppress. In so holding, the trial court
found Moore had "failed to establish a procedural defect" in the issuance of the search
-5-
Fayette CA2017-11-023
warrant. The trial court also found, based upon its review of the affidavit submitted by
Sergeant Ward, there was sufficient information to justify a finding of probable cause to
search Moore's cell phone. Specifically, as the trial court stated, "[t]he Court finds nothing
unreasonable or constitutionally infirm with the warrant process, overrules the motion to
suppress in each and every particular." The trial court thereafter issued a written entry
overruling Moore's motion to suppress "for the reasons set forth on the record."
{¶ 14} As it relates to the trial court's decision on Moore's motion to dismiss, the trial
court took the matter under advisement noting that it would issue a decision on the matter
in due course after accepting additional memoranda from both parties outlining their
respective positions. Thereafter, at a subsequent hearing, the trial court issued its decision
from the bench denying Moore's motion to dismiss. In so holding, the trial court found "the
re-indictment started the clock over because it did not, it had other facts and allegations,
contained in indictment number 1." Although stating it would "be reducing that to a written
form," the trial court never issued a written entry denying Moore's motion to dismiss.
{¶ 15} On October 18, 2017, the day before the jury trial was scheduled to begin,
Moore entered into a plea agreement with the state, wherein he agreed to plead no contest
to single counts of rape and gross sexual imposition regarding his repeated, overt sexual
abuse of his two stepdaughters, Jane and Jill. In exchange for Moore's no contest plea,
the state agreed to dismiss the remaining charges and recommend Moore be sentenced to
a total of eight years in prison, four years for each count. After conducting the necessary
Crim.R. 11 plea colloquy, the trial court accepted Moore's no contest plea and found Moore
guilty of the single counts of rape and gross sexual imposition as charged.
{¶ 16} Upon finding Moore guilty, the trial court then sentenced Moore to the
recommended total aggregate eight-year prison term. The trial court also notified Moore
that he would be subject to a mandatory five-year period of postrelease control, that he
-6-
Fayette CA2017-11-023
would be classified as a tier III sex offender, and that he would be given 188 days of jail-
time credit. It is undisputed the 188 days of jail-time credit corresponds to the amount of
days Moore had been incarcerated since being arrested on April 12, 2017 following the
issuance of the original April 7, 2017 indictment.
{¶ 17} Moore now appeals, raising two assignments of error for review.
{¶ 18} Assignment of Error No. 1:
{¶ 19} THE TRIAL COURT ERRED IN DENYING MOORE'S MOTION TO DISMISS
IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION AND BY SECTION 10, ARTICLE I [OF] THE OHIO
CONSTITUTION.
{¶ 20} In his first assignment of error, Moore argues the trial court erred by denying
his motion to dismiss wherein he alleged a violation of his right to a speedy trial. We
disagree.
{¶ 21} Cases involving subsequent or multiple indictments, such as the case here,
can be problematic with respect to the issue of speedy-trial rights. State v. North, 12th Dist.
Butler No. CA2016-06-119, 2017-Ohio-492, ¶ 24, citing State v. Vasquez, 10th Dist.
Franklin No. 13AP-366, 2014-Ohio-224, ¶ 23. The Ohio Supreme Court has issued several
opinions to clarify when the speedy-trial timetable runs on multiple indictments. For
instance, in State v. Adams, 43 Ohio St. 3d 67, 65-69 (1989), the Ohio Supreme Court held
that where "new and additional charges arise from the same facts as did the original charge
and the state knew of such facts at the time of the initial indictment, the time within which
trial is to begin on the additional charge is subject to the same statutory limitations period
that is applied to the original charge." (Internal quotation marks omitted.)
{¶ 22} However, as the Ohio Supreme Court later explained in State v. Baker, 78
Ohio St. 3d 108 (1997), syllabus, "[i]n issuing a subsequent indictment, the state is not
-7-
Fayette CA2017-11-023
subject to the speedy-trial timetable of the initial indictment, when additional criminal
charges arise from facts different from the original charges, or the state did not know of
these facts at the time of the initial indictment." (Emphasis added.) Therefore, as noted by
the Ohio Supreme Court in State v. Parker, 113 Ohio St. 3d 207, 2007-Ohio-1534, ¶ 20, "the
holdings of Baker and Adams * * * combined, stand for the proposition that speedy-trial time
is not tolled for the filing of later charges that arose from the facts of the criminal incident
that led to the first charge."
{¶ 23} Relying on the Ohio Supreme Court's holding in Baker, Moore initially argues
that because the trial court granted him 188 days of jail-time credit from the time he was
arrested on April 12, 2017 for the original April 7, 2017 indictment rather than starting the
calculation of his jail-time credit when the June 30, 2017 indictment was issued, the trial
court "found" the two cases "related" yet failed to apply the applicable try-by date as it
relates to the original April 7, 2017 indictment. The trial court, however, made no such
finding. Instead, as the trial court found when issuing its decision from the bench denying
Moore's motion to dismiss, "the re-indictment started the clock over because it did not, it
had other facts and allegations, contained in indictment number 1." There is nothing in the
record to indicate the trial court somehow "changed its mind and found the two indictments
related" as Moore now suggests. This is true despite the fact the trial court never issued a
written entry denying Moore's motion to dismiss.3 Simply stated, despite no written entry
being issued, it is clear the trial court denied Moore's motion to dismiss for the reasons
stated on the record, which did not include a finding that the two cases were in any way
related. Moore's argument to the contrary lacks merit.
3. The trial court may have erred in Moore's benefit by granting him 188 days of jail-time credit, see R.C.
2929.19(B)(2)(g)(i) (requiring the trial court to determine "the number of days that the offender has been
confined for any reason arising out of the offense for which the offender is being sentenced"), but that issue
is not properly before this court.
-8-
Fayette CA2017-11-023
{¶ 24} Relying again on the Ohio Supreme Court's holding in Baker, Moore next
argues the state was bound to the speedy-trial timetable of the original April 7, 2017
indictment since the state knew of the facts giving rise to the subsequent June 30, 2017
indictment at the time the original April 7, 2017 indictment was issued. In support, Moore
points to Sergeant Ward's narrative statement regarding his meeting with Jane on April 5,
2017, during which Jane provided Sergeant Ward with further details regarding Moore's
conduct in "messing" with her breasts on April 3, 2017, as well as generally alleging similar
conduct had occurred "for about the past 9 months and happens at least once a week." As
noted above, during this meeting, Jane also informed Sergeant Ward that Moore had
"talked about her not being a snitch like her sister," Jill, and "spoke about what he did 'with'
her sister." Therefore, according to Moore, this proves the state knew "about all of Moore's
course of conduct" in sexually abusing both Jane and Jill at the time the original April 7,
2017 indictment was issued.
{¶ 25} Moore's application of the Ohio Supreme Court's holding in Baker is flawed.
As noted above, the Ohio Supreme Court in Baker held as part of its syllabus, "[i]n issuing
a subsequent indictment, the state is not subject to the speedy-trial timetable of the initial
indictment, when additional criminal charges arise from facts different from the original
charges, or the state did not know of these facts at the time of the initial indictment."
(Emphasis added.) Due to the Ohio Supreme Court's use of the conjunctive "or," even if
we were to agree with Moore that the state knew of the facts giving rise to the subsequent
June 30, 2017 indictment at the time the original April 7, 2017 indictment was issued, which
we do not, there is no question that the 65 charges of rape and gross sexual imposition
brought in the June 30, 2017 indictment arise from facts that are markedly different than the
single gross sexual imposition charge brought as part of the original April 7, 2017
-9-
Fayette CA2017-11-023
indictment.4
{¶ 26} Unlike the original April 7, 2017 indictment charging Moore with a single count
of gross sexual imposition for his conduct on April 3, 2017 in "messing" with Jane's breasts,
the June 30, 2017 indictment charged Moore with 65 counts of gross sexual imposition and
rape resulting from his repeated, overt sexual abuse of his two stepdaughters, Jane and
Jill. Again, as alleged in the June 30, 2017 indictment, the nine charges involving Jane
occurred between October of 2016 through April of 2017, whereas the remaining 56
charges involving Jill occurred between September of 2007 through December of 2009.
These 65 charges are wholly separate and apart from Moore's conduct in "messing" with
Jane's breasts on April 3, 2017 giving rise to the issuance of the original April 7, 2017
indictment.
{¶ 27} Therefore, in applying the Ohio Supreme Court's holding in Baker to the case
at bar, because the charges giving rise to the June 30, 2017 indictment arise from facts
wholly different from the charge brought in the original April 7, 2017 indictment, it is clear
that the state was not subject to the speedy-trial timetable of the original April 7, 2017
indictment. Moore's claim otherwise lacks merit. Accordingly, because we find no error in
the trial court's decision denying Moore's motion to dismiss, Moore's first assignment of
error is overruled.
4. Although unnecessary to our analysis in this case, we disagree with Moore's claim alleging the state knew
of the facts giving rise to the June 30, 2017 indictment at the time of the original April 7, 2017 indictment was
issued. Rather, after a full and thorough review of the record, we find the state had, at best, a cursory
knowledge of Moore's conduct regarding his repeated, overt sexual abuse of his two stepdaughters, Jane and
Jill, at the time the original April 7, 2017 indictment was issued. The details of such abuse, however, were
not learned until after the April 7, 2017 indictment was issued. Because the 65 charges brought as part of the
June 30, 2017 indictment were based on additional, specific facts that were revealed through further
investigation, rather than on facts that were known by the state at the time the original April 7, 2017 indictment
was issued, the Ohio Supreme Court's decision in Baker is inapplicable to the case at bar. See, e.g., State
v. Davenport, 12th Dist. Butler No. CA2005-01-005, 2005-Ohio-6686, ¶ 13 (speedy-trial timetable of
appellant's initial arrest did not apply to subsequent arrest since law enforcement merely suspected they would
find evidence of child pornography on appellant's computer, but "did not have sufficient probable cause at the
time of his arrest to charge him with those crimes").
- 10 -
Fayette CA2017-11-023
{¶ 28} Assignment of Error No. 2:
{¶ 29} THE TRIAL COURT ERRED IN DENYING MOORE'S MOTION TO
SUPPRESS IN VIOLATION OF THE FOURTH AMENDMENT OF THE UNITED STATES
CONSTITUTION AND ARTICLE I, SECTION 14 OF THE OHIO CONSTITUTION.
{¶ 30} In his second assignment of error, Moore argues the trial court erred by
denying his motion to suppress the search of his cell phone. In support of this claim, Moore
argues the search warrant affidavit submitted by Sergeant Ward in this case was insufficient
to establish the requisite probable cause necessary for the issuance of the search warrant.
We disagree.
{¶ 31} Appellate review of a ruling on a motion to suppress presents a mixed
question of law and fact. State v. Gray, 12th Dist. Butler No. CA2011-09-176, 2012-Ohio-
4769, ¶ 15, citing State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, ¶ 8. When
considering a motion to suppress, the trial court, as the trier of fact, is in the best position
to weigh the evidence in order to resolve factual questions and evaluate witness credibility.
State v. Vaughn, 12th Dist. Fayette No. CA2014-05-012, 2015-Ohio-828, ¶ 8. This court is
bound to accept the trial court's findings of fact if they are supported by competent, credible
evidence. State v. Dugan, 12th Dist. Butler No. CA2012-04-081, 2013-Ohio-447, ¶ 10.
"'Accepting these facts as true, the appellate court must then independently determine,
without deference to the conclusion of the trial court, whether the facts satisfy the applicable
legal standard.'" State v. Runyon, 12th Dist. Clermont No. CA2010-05-032, 2011-Ohio-
263, ¶ 12, quoting Burnside at ¶ 8.
{¶ 32} In determining whether a search warrant was issued upon a proper showing
of probable cause, reviewing courts must examine the totality of the circumstances. State
v. J.A.C., 12th Dist. Warren Nos. CA2017-04-044 and CA2017-04-045, 2018-Ohio-361, ¶
19, citing State v. Jones, 143 Ohio St. 3d 266, 2015-Ohio-483, ¶ 13. As it relates to whether
- 11 -
Fayette CA2017-11-023
a search warrant affidavit was sufficient to establish probable cause, the duty of the judge
or magistrate issuing the search warrant is to make "practical, common-sense decision
whether, given all the circumstances set forth in the affidavit before him, including the
'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a 'fair
probability that contraband or evidence of a crime will be found in a particular place.'" State
v. Risner, 12th Dist. Preble No. CA2017-06-007, 2018-Ohio-1569, ¶ 18, quoting State v.
George, 45 Ohio St. 3d 325 (1989), paragraph one of the syllabus. The issuing judge or
magistrate is confined to the averments contained in the affidavit supporting the issuance
of the search warrant. State v. Swift, 12th Dist. Butler No. CA2013-08-161, 2014-Ohio-
2004, ¶ 16. Therefore, it is "essential that an affidavit for a search warrant include facts
establishing probable cause that the items sought to be searched for and seized are related
to the commission of some crime." J.A.C. at ¶ 18.
{¶ 33} On appeal, rather than conducting a de novo review as to whether the search
warrant affidavit provided sufficient probable cause, see State v. Cobb, 12th Dist. Butler No.
CA2007-06-153, 2008-Ohio-5210, ¶ 24, it is this court's limited duty to ensure the judge or
magistrate issuing the search warrant had a substantial basis for concluding probable cause
existed based on the information contained within the four corners of the affidavit filed in
support of the search warrant. State v. Quinn, 12th Dist. Butler No. CA2011-06-116, 2012-
Ohio-3123, ¶ 21. In reaching such a decision, this court must afford great deference to the
trial court's decision "and doubtful or marginal cases in this area should be resolved in favor
of upholding the warrant." State v. Jones, 143 Ohio St. 3d 266, 2015-Ohio-483, ¶ 14. This
court should therefore "not invalidate [warrants] by interpreting [affidavits] in a
hypertechnical, rather than a commonsense, manner." Illinois v. Gates, 462 U.S. 213, 236,
103 S. Ct. 2317 (1983).
{¶ 34} Moore argues the trial court erred by denying his motion to suppress because
- 12 -
Fayette CA2017-11-023
the search warrant affidavit "only" alleged his cell phone contained pornography, "which it
is not a crime to possess." We agree that it is not a crime to view or even possess
pornography between consenting adults. However, as noted above, the search warrant
affidavit included significantly more allegations than what Moore suggests. These
allegations included claims from Jane, one of the two victims in this case, that Moore had
(1) placed his hand inside her pants and touched her vagina, as well as her breasts and
buttocks, (2) asked her to have sex, to which she declined, (3) offered her money for oral
sex, (4) "tried" to get her to send him photographs of her via cell phone, and (5) "asked" her
to watch pornography on cell his phone, specifically "Stepfathers fucking Stepdaughters."
These allegations, when examined in the totality of the circumstances, were sufficient to
establish probable cause to issue a search warrant for Moore's cell phone as part of the
Fayette County Sheriff's Office investigation into Moore's conduct; specifically, evidence of
the commission of gross sexual imposition against Jane, one of his then two stepdaughters.
{¶ 35} Moore nevertheless argues the trial court's decision denying his motion to
suppress was in error since the search warrant affidavit stated only that he had "tried" to
get Jane to send him photographs of her via cell phone and merely "asked" Jane to watch
pornography on his cell phone. Therefore, according to Moore, it is "obvious" that he "failed"
in his efforts to get Jane to send him the requested photographs via cell phone or to get
Jane to watch pornography on his cell phone, thereby leaving little doubt that his cell phone
did not contain any evidence of the commission of gross sexual imposition.
{¶ 36} Moore is putting the cart before the horse. As noted by the state, "it is only
after obtaining the mobile telephone that it could be determined if evidence was or was not
on the mobile telephone." We agree. Therefore, because the allegations included within
Sergeant Ward's search warrant affidavit were sufficient to establish probable cause to
issue a search warrant for Moore's cell phone as part of the investigation into Moore's
- 13 -
Fayette CA2017-11-023
conduct; specifically, evidence of the commission of gross sexual imposition against Jane,
one of his then two stepdaughters, Moore's second assignment of error lacks merit and is
overruled.
{¶ 37} Judgment affirmed.
PIPER and M. POWELL, JJ., concur.
- 14 -