State v. Green , 2021 Ohio 2222 ( 2021 )

[Cite as State v. Green, 2021-Ohio-2222.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 29777
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
ENRIQUE D. GREEN COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 18 02 0495
DECISION AND JOURNAL ENTRY
Dated: June 30, 2021
HENSAL, Presiding Judge.
{¶1} Enrique Green appeals from the judgment of the Summit County Court of Common
Pleas. This Court affirms.
I.
{¶2} This is the second time Mr. Green has been before this Court to appeal his
convictions for felonious assault, which he received after a bench trial. Briefly, Mr. Green was
charged with two counts of felonious assault and accompanying firearm specifications after an
altercation with the victim wherein the victim sustained a nonlethal gunshot wound to his shoulder.
The victim testified that Mr. Green intentionally shot him after a verbal altercation, and Mr. Green
testified that he accidentally discharged his firearm. The matter proceeded to a bench trial wherein
the State presented evidence that supported the following narrative, which this Court set forth in
State v. Green, 9th Dist. Summit No. 29120, 2019-Ohio-4967 (“Green I”):
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During the early morning hours of February 2, 2018, Green traveled to the house
of his girlfriend, C.J., in Akron, Ohio. C.J.’s two young children were staying with
her that night.
[The victim], the father of the children, was scheduled to pick up the children at
6:00 AM. After patronizing a local bar and stopping for food at EuroGyro at
approximately 3:00 AM, [the victim] decided that he would attempt to pick up his
children early and he drove to C.J.’s house. Though he attempted to call C.J. to let
her know that he was coming, she did not answer her phone. [The victim] testified
that it was not unusual for him to arrive early, and sometimes he would sleep there
until C.J. was ready to leave for work.
[The victim] parked his Ford Escape in the driveway and walked to the back of the
house. [The victim] explained that there was a better chance that he could awake
C.J. if he forcefully knocked on the back door. When he received no response, [the
victim] returned to his SUV and backed out of the driveway into the street. At that
time, he noticed Green walking toward his vehicle. While [the victim]
acknowledged that he may have seen Green on a prior occasion, he did not know
Green personally. Green approached the driver’s side window and asked [the
victim] what he was doing. Though [the victim] took exception to the question
given that his children were in the house, [the victim] eventually explained that he
was there to pick up his children.
Tensions between the men escalated when they began to argue about who should
be the first to stand down, or “pull off.” [The victim] had two “brick[s]” or
“boulders” on the floor of the back seat [of] his SUV. [The victim] explained that
he saw the bricks in the middle of Exchange Street several days earlier and decided
to remove them to prevent motorists from damaging their vehicles. In the midst of
his argument with Green, [the victim] stated, “[g]et the f*** out of my face before
I crack you with this [brick].” When [the victim] grabbed a brick, Green started
walking toward his own vehicle. [The victim] then placed the brick on the front
passenger’s seat. Green opened the driver’s door of his own vehicle, grabbed
something, and then began walking back toward [the victim]. As Green approached
[the victim]’s SUV, it became apparent that Green had a gun. [The victim] testified
that Green walked up to the driver’s door of [the victim’s] vehicle, where the
window was open, and shot [the victim] in the shoulder. During his testimony, [the
victim] explained that Green “just hauled off and shot [him.]” While [the victim]
was initially unaware of where he had been shot and whether the bullet had exited
his body, he heard a window in his SUV shatter at the time of the shooting. [The
victim] further maintained that he did not grab the gun or attempt to knock it out of
Green’s hand.
[The victim] “played dead” to discourage Green from shooting him a second time.
[The victim] testified that as he played dead, his SUV was in neutral, and his vehicle
slowly rolled backward into a tree. C.J. came out of the house. Green attempted
to check [the victim’s] pulse and told C.J. to call the police. [The victim] shifted
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his SUV into drive and rushed to the hospital. [The victim] testified that he
intentionally rammed his SUV into Green’s parked car as he speeded away from
the scene. Photographs taken at the hospital depicted where the bullet entered [the
victim’s] body near his shoulder and then exited through his upper back. Detective
Ronald Garey of the Akron Police Department testified that the glass located in the
street at the scene did not appear to be a result of [the victim] backing into the tree
or ramming Green’s vehicle as he exited the scene. When [the victim] arrived at
the hospital, he tossed the bricks into the rear compartment of his SUV prior to
entering the hospital and seeking treatment.
Id. at ¶ 9-13.
{¶3} Mr. Green testified on his own behalf, providing a different version of the events.
According to him, he went outside after hearing the knocking at the back door to see if the victim
was ok. When he did, he saw the victim backing his SUV out of the driveway. The men exchanged
words as the victim was still seated in his SUV, and the victim grabbed one of the bricks in his
SUV and threatened to hit Mr. Green with it. Mr. Green assured the victim that he did not want
any problems, but the victim got out of his SUV with the brick still in his hand. Mr. Green then
started walking back toward his own car, intending to get in and drive home. The victim then
approached him with the brick in his hand, so Mr. Green reached for the gun he kept in his car,
which was already loaded with a bullet in the chamber. Mr. Green told the victim he was a CCW
holder, and stepped back out of his vehicle. Mr. Green then pointed the gun at the victim’s chest
and – as the victim remained facing him – started walking the victim back toward the victim’s
SUV. The victim, who was still holding the brick, reached for Mr. Green’s gun, making contact
with his arm and causing the gun to go off. Mr. Green testified that he did not recall pulling the
trigger, and that he did not fire his gun on purpose.
{¶4} Mr. Green testified that he immediately checked himself to see if he was shot. He
then noticed that the victim was back inside his SUV with blood on his shoulder, so he approached
the victim and asked if he was ok, telling him he was a paramedic and could help him. After
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initially not responding, the victim put his car in reverse, struck Mr. Green’s car with his SUV,
and sped away. Mr. Green immediately called 911 and informed the operator that his weapon
discharged.
{¶5} C.J. was the only other witness to some of these events. She testified that she went
outside on the front porch and saw the victim and Mr. Green standing outside of the victim’s SUV,
which was in the street, talking. She testified that the victim was holding a brick in his hand, and
that she did not see anything in Mr. Green’s hands. She then went inside to get dressed, closed the
door behind her, and heard a popping noise. C.J. did not see Mr. Green fire his gun. After hearing
the popping noise, she went back outside and saw the victim strike Mr. Green’s car door with his
SUV before driving away.
{¶6} As detailed in Green I, Detective Ronald Garey responded to the scene. He testified
that he observed glass in the street, which did not appear to be a result of the victim striking Mr.
Green’s car with his SUV, or from the victim backing his SUV into the tree. Id. at ¶ 13. Instead,
he testified that the location of the glass in the street corresponded with the victim’s version of the
events insofar as the victim maintained that he was seated in his SUV at the time he was shot, and
that he heard glass break as soon as he was shot. Another detective also testified, indicating that
he test fired Mr. Green’s gun. That detective testified that the gun had no external safety, and that
it had an average trigger pull, requiring him to “purposely pull the trigger back” with an average
amount of force in order to fire the gun.
{¶7} The trial court found Mr. Green guilty of both counts of felonious assault, as well
as the accompanying firearm specifications. It determined that the felonious-assault counts were
allied offenses, and – consistent with the State’s election – sentenced Mr. Green for the felonious-
assault count under Revised Code Section 2903.11(A)(1). Id. at ¶ 3.
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{¶8} Mr. Green appealed his convictions in Green I, raising six assignments of error.
This Court addressed the merits of two of his assignments of error, concluding that his convictions
were supported by sufficient evidence, but that the trial court erred by permitting Detective Garey
to provide expert testimony at trial. Green I at ¶ 15, 28. Regarding the latter, this Court reviewed
Detective Garey’s testimony about the significance of the glass found in the street, including his
opinion that the bullet passed through the victim’s body and shattered the rear window of the
victim’s vehicle. Id. at ¶ 23. We concluded that Detective Garey’s opinion in this regard amounted
to expert testimony, and that it was highly prejudicial to Mr. Green since it corroborated the
victim’s version of the events, including the victim’s testimony that he was seated in his SUV
when Mr. Green shot him. Id. at ¶ 27-28. We then declined to address the remaining assignments
of error on the basis that they were moot, and affirmed in part, reversed in part, and remanded the
matter for further proceedings. Id. at ¶ 30.
{¶9} On remand, the trial court issued a new judgment entry, indicating that it “did not
consider, and does not consider, Detective Garey’s testimony as expert testimony regarding: where
[the victim] was seated at the time he was shot; the bullet trajectory; where the bullet exited [the
victim’s] body; where the bullet went after it exited [the victim’s] body; how the glass broke; when
the glass broke; the significance of the glass in the road; and, his interpretation of events due to
the location of the glass in road.” It then reaffirmed Mr. Green’s convictions and sentence. Mr.
Green now appeals that decision, raising three assignments of error for this Court’s review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN FINDING DEFENDANT GUILTY OF THE
CHARGES AGAINST HIM AS THE CONVICTIONS WERE NOT
SUPPORTED BY THE MANIFEST WEIGHT OF THE EVIDENCE
PRESENTED AT TRIAL.
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{¶10} In his first assignment of error, Mr. Green argues that his convictions are against
the manifest weight of the evidence. He primarily argues that the victim’s testimony was
unreliable, and that the victim’s testimony coupled with the absence of Detective Garey’s
testimony as expert testimony establishes that his convictions are not supported by the weight of
the evidence. This Court disagrees.
{¶11} When considering a challenge to the manifest weight of the evidence, this Court is
required to consider the entire record, “weigh the evidence and all reasonable inferences, consider
the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier
of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered.” State v. Otten, 33 Ohio App.3d 339, 340 (9th
Dist.1986). Weight of the evidence pertains to the greater amount of credible evidence produced
in a trial to support one side over the other side. State v. Thompkins, 78 Ohio St.3d 380, 387
(1997). An appellate court should only exercise its power to reverse a judgment as against the
manifest weight of the evidence in exceptional cases. State v. Carson, 9th Dist. Summit No. 26900,
2013-Ohio-5785, ¶ 32, citing Otten at 340.
{¶12} Notably, “the weight to be given the evidence and the credibility of the witnesses
are primarily for the trier of the facts[,]” who is “free to believe all, part, or none of the testimony
of each witness.” State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus; Prince
v. Jordan, 9th Dist. Lorain No. 04CA008423, 2004-Ohio-7184, ¶ 35. “This Court will not overturn
the trial court’s verdict on a manifest weight of the evidence challenge only because the trier of
fact chose to believe certain witness testimony over the testimony of others.” State v. Clark, 9th
Dist. Medina No. 18CA0093-M, 2019-Ohio-4303, ¶ 13, quoting State v. Hill, 9th Dist. Summit
No. 26519, 2013-Ohio-4022, ¶ 15.
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{¶13} As Mr. Green points out in his merit brief, the testimony at trial varied among the
witnesses as to where the two men were positioned when the victim was shot. Mr. Green asserts
that this is perhaps the most relevant and important issue surrounding his convictions. He argues
that C.J.’s testimony corroborated his version of the events, while the victim’s version of the events
varied, and the victim’s testimony was otherwise not credible.
{¶14} Initially, we note that C.J.’s testimony was of limited value because she did not see
the shooting. Her testimony corroborated Mr. Green’s testimony to the extent she testified that
the victim was standing outside of his SUV with a brick in his hand immediately prior to the
shooting. While her testimony in that regard undermines the victim’s insistence that he never got
out of his SUV, the fact remains that she did not see the shooting. C.J., therefore, could not
corroborate Mr. Green’s assertion that the victim reached for his gun, made contact with his arm,
and that he accidentally discharged his firearm.
{¶15} More importantly, Mr. Green’s testimony at trial differed from his prior statements
to the police regarding where the men were positioned when his firearm discharged. At the scene,
Mr. Green told an officer that he was pretty sure that he (Mr. Green) was in his vehicle when he
shot the victim. Then, when interviewed at the police station, Mr. Green indicated that he was not
sure whether he (Mr. Green) was inside or outside of his vehicle when he shot the victim. Then,
at trial, Mr. Green testified that he was outside of his vehicle, walking toward the victim with his
gun pointed at the victim’s chest, when his firearm discharged. During cross examination, the
State pointed out these inconsistencies. On re-direct examination, Mr. Green testified that he told
the officer at the scene that he (Mr. Green) was in his vehicle when he shot the victim because he
was confused and scared. The trial court, therefore, had reason to question Mr. Green’s version of
the events.
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{¶16} While inconsistencies in the victim’s testimony, as well as C.J.’s corroboration of
some of Mr. Green’s testimony, certainly affect the victim’s credibility, the critical issue the trial
court had to decide was whether to believe Mr. Green’s testimony that he accidentally fired his
gun, and whether the evidence supported that version of the events. Much of Mr. Green’s
argument on appeal centers on the victim’s behavior, including his assertion that the victim
approached him in a threatening manner and moved the bricks to the trunk of his SUV after the
shooting. Yet Mr. Green did not argue that he acted in self-defense. Simply put, the trial did not
have to accept the victim’s version of the events in its entirety in order to find Mr. Green guilty of
the charged offenses. See Prince, 2004-Ohio-7184, at ¶ 35 (noting that the trier of fact is “free to
believe all, part, or none of the testimony of each witness.”). Mr. Green admitted that he retrieved
a loaded gun from his car, pointed it at the victim’s chest, and that he must have pulled the trigger.
We again note that, according to the detective who test fired that gun during the investigation, the
detective had to “purposely pull the trigger back” with an average amount of force in order to fire
the gun.
{¶17} A determination of whether Mr. Green fired his gun by accident hinged upon Mr.
Green’s credibility, which the trial court was in the best position to assess. State v. Kibble, 9th
Dist. Lorain No. 20CA011630, 2020-Ohio-5560, ¶ 15 (“[T]his Court is mindful of the well-
established principle that a trier of fact enjoys the best position to assess the credibility of
witnesses.”). Here, the trial court chose not to believe Mr. Green’s testimony that he accidentally
fired his gun. That, by itself, does not equate to a manifest miscarriage of justice, and this Court
will not substitute its credibility determination for that of the trial court. State v. Frashuer, 9th
Dist. Summit No. 24769, 2010-Ohio-634, ¶ 18 (“[T]he mere fact that the jury chose to disbelieve
much of [the defendant’s] testimony does not equate to a manifest miscarriage of justice.”); State
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v. Morrison, 9th Dist. Summit No. 21687, 2004-Ohio-2669, ¶ 56 (“This Court will not substitute
its judgment for that of the trier of facts on the issue of witness credibility unless we conclude that
the factfinder clearly lost its way.”).
{¶18} We remain mindful of our decision in Green I wherein this Court determined that
Detective Garey’s expert testimony was highly prejudicial. Green I at ¶ 28. However, even
without Detective Garey’s testimony (lay or expert), including his testimony regarding the
significance of the glass in the street or his opinion regarding the trajectory of the bullet (and the
inferences drawn therefrom), this Court cannot say that Mr. Green has established that this is the
exceptional case where the evidence weighs heavily against his convictions. Mr. Green’s first
assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED IN CONSIDERING OR PERMITTING THE
INTRODUCTION OF OFFICER DAVID WHITE’S BODY CAMERA AS
STATE’S EXHIBIT 36 AS THE REQUIREMENTS FOR AUTHENTICATION
AND ADMISSIBILITY UNDER EVID. R. 901 OR 902 WERE NOT SATISFIED
AND, FURTHER, THE CONTENT OF THE VIDEO WAS INADMISSIBLE
HEARSAY WITH NO EXCEPTION UNDER EVID.R. 803.
{¶19} In his second assignment of error, Mr. Green asserts that the trial court committed
plain error by allowing an officer’s bodycam video into evidence when that officer did not testify
at trial, and when that evidence was otherwise not authenticated. He also argues that the contents
of the bodycam video constituted inadmissible hearsay. For the reasons that follow, we conclude
that Mr. Green has failed to establish that the trial court committed plain error.
{¶20} “To establish plain error, a defendant must show that (1) there was an error or
deviation from a legal rule, (2) the error was plain and obvious, and (3) the error affected the
outcome of the trial.” State v. Mohamed, 151 Ohio St.3d 320. 2017-Ohio-7468, ¶ 26, citing, State
v. Barnes, 94 Ohio St.3d 21, 27 (2002). “As notice of plain error is to be taken with utmost caution
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and only to prevent a manifest miscarriage of justice, the decision of a trial court will not be
reversed due to plain error unless the defendant has established that the outcome of the trial clearly
would have been different but for the alleged error.” State v. West, 9th Dist. Summit No. 27485,
2015-Ohio-2936, ¶ 46, quoting State v. Horton, 9th Dist. Summit No. 26407, 2013-Ohio-3902, ¶
50.
{¶21} Here, Mr. Green asserts that the admission of the officer’s bodycam video was
“extremely prejudicial[,]” but offers no argument in support of the prejudice component of his
plain-error argument. See App.R. 16(A)(7) (requiring an appellant’s brief to contain “[a]n
argument containing the contentions of the appellant with respect to each assignment of error
presented for review and the reasons in support of the contentions, with citations to the authorities,
statutes, and parts of the record on which appellant relies.”). In other words, he has not argued
that, but for that evidence, he would not have been convicted of the charged offenses. See West at
¶ 46. Thus, even assuming the trial court erred by allowing the officer’s bodycam video into
evidence, Mr. Green has failed to establish plain error on appeal. Id. at ¶ 46-48 (holding that, even
assuming the trial court erred by allowing certain testimony into evidence, the appellant failed to
establish that the outcome of the trial would have been different but for that evidence); see
Mahoney v. Mahoney, 9th Dist. Medina No. 16CA0061-M, 2017-Ohio-7917, ¶ 9 (“It is the
appellant’s burden to affirmatively demonstrate error on appeal.”). Accordingly, Mr. Green’s
second assignment of error is overruled.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED WHEN IT PERMITTED DETECTIVE GAREY’S
HIGHLY PREJUDICIAL AND INCOMPETENT TESTIMONY TO BE
ENTERED INTO EVIDENCE. NOTWITHSTANDING THE TRIAL COURT’S
CLAIM THAT IT DID NOT CONSIDER THE TESTIMONY, IT
AFFIRMATIVELY APPEARS FROM THE RECORD THE TRIAL COURT
PERCEIVED DETECTIVE GAREY’S TESTIMONY TO BE PROFFERED AS
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AN EXPERT. SINCE IT IS IMPOSSIBLE TO DETERMINE HOW MUCH
WEIGHT WAS GIVEN TO THIS IMPROPER EVIDENCE, THE CONVICTION
MUST BE REVERSED AND THE CASE REMANDED.
{¶22} In his third assignment of error, Mr. Green argues that, despite the trial court’s
assertion that it did not rely upon Detective Garey’s testimony as expert testimony, the record
affirmatively demonstrates that the trial court did, and that it continued to do so after this Court’s
remand. Mr. Green acknowledges the case law providing that, in a bench trial, the trial court is
presumed to consider only relevant, material, and competent evidence, but argues that this case
falls within an exception to that general rule because the record affirmatively demonstrates
otherwise. Mr. Green argues that it is impossible to determine the weight the trial court continued
to afford that testimony, and that this Court must remand the matter.
{¶23} In response, the State argues that the trial court expressly stated on remand that it
did not rely on Detective Garey’s testimony as expert testimony. It argues that Mr. Green’s
reliance on “[i]ndicia and inferences” in the record to support his position that the trial court
considered, and continued to consider, Detective Garey’s testimony as expert testimony is not
sufficient, and that the trial court’s order on remand could not have been clearer.
{¶24} Initially, we note that this Court has already decided that sufficient evidence existed
to support Mr. Green’s convictions. Green I, 2019-Ohio-4967, at ¶ 14-16. This Court has also
already decided that the trial court erred by permitting Detective Garey to offer an opinion “as to
what transpired in this case that was ostensibly based on an inferred understanding of where [the
victim] was seated at the time of the incident, the manner in which the bullet entered and exited
[the victim’s] body, as well as where the bullet went after it exited [the victim’s] body[,]” since
“[n]one of th[o]se inferences were rationally based on his perception of the crime scene.” Id. at ¶
27. While we are mindful of the fact that the trial court on remand stated that it never relied upon
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Detective Garey’s testimony as expert testimony, that does not alter this Court’s decision in Green
I wherein we concluded that the trial court erred by allowing Detective Garey to provide expert
testimony. Id. at ¶ 28. This Court’s focus now, however, is on whether the trial court relied on
Detective Garey’s testimony as expert testimony after this Court’s remand.
{¶25} This Court is required to determine the merits of this appeal by the record before
us, and the arguments presented. App.R. 12(A)(1)(b). As Mr. Green acknowledges, when
considering a criminal case tried to the bench, an appellate court presumes that the trial court only
considered relevant, material, and competent evidence unless it affirmatively appears to the
contrary. State v. Fautenberry, 72 Ohio St.3d 435, 439 (1995). Despite Mr. Green’s arguments,
we cannot say that it affirmatively appears that the trial court relied upon Detective Garey’s
testimony as expert testimony after this Court’s remand. A trial court speaks through its journal
entries, and the trial court specifically indicated that it did not. State v. Jones, 9th Dist. Lorain No.
15CA010801, 2017-Ohio-1181, ¶ 7 (“It is axiomatic that a court speaks through its journal
entries.”).
{¶26} Moreover, Mr. Green’s argument presupposes that the trial court could not have
found him guilty absent its consideration of Detective Garey’s testimony as expert testimony. As
explained in our resolution of Mr. Green’s second assignment of error, Mr. Green has not
established that his convictions are against the manifest weight of the evidence even without
Detective Garey’s testimony to corroborate the victim’s version of the events.
{¶27} Mr. Green is correct in that there is no way of knowing how much weight a trier of
fact affords certain evidence. But, under these facts and in light of the trial court’s judgment entry
on remand, Mr. Green has not overcome the presumption that the trial court only relied upon
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relevant, material, and competent evidence on remand. Mr. Green’s third assignment of error is
overruled.
III.
{¶28} Mr. Green’s assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
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TEODOSIO, J.
CONCURS IN JUDGMENT ONLY.
SUTTON, J.
CONCURS IN JUDGMENT ONLY.
APPEARANCES:
DAVID M. LOWRY, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney, for Appellee.