State v. Pariag

[Cite as State v. Pariag, 137 Ohio St.3d 81, 2013-Ohio-4010.]
THE STATE OF OHIO, APPELLANT, v. PARIAG, APPELLEE.
[Cite as State v. Pariag, 137 Ohio St.3d 81, 2013-Ohio-4010.]
Criminal law—R.C. 2953.61—Sealing of records—A trial court is precluded,
pursuant to R.C. 2953.61, from sealing the record of a dismissed charge if
the dismissed charge arises “as the result of or in connection with the
same act” that supports a conviction, when the records of the conviction
are not sealable under R.C. 2953.36, regardless of whether the charges
are filed under separate case numbers.
(No. 2012-0819—Submitted April 9, 2013—Decided September 19, 2013.)
APPEAL from the Court of Appeals for Franklin County, No. 11AP-569.
____________________
SYLLABUS OF THE COURT
A trial court is precluded, pursuant to R.C. 2953.61, from sealing the record of a
dismissed charge if the dismissed charge arises “as the result of or in
connection with the same act” that supports a conviction when the records
of the conviction are not sealable under R.C. 2953.36, regardless of
whether the charges are filed under separate case numbers.
____________________
LANZINGER, J.
{¶ 1} We are asked to determine whether records of a dismissed charge
may be sealed if the offense arises from or is in connection with the same act that
led to a conviction on an unsealable charge. The Tenth District Court of Appeals
affirmed the trial court’s decision to seal the record of the dismissed charges in
this case. Because we conclude that the Tenth District Court of Appeals erred in
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its analysis, we reverse its judgment and remand this case to the trial court for
further proceedings.
I. Introduction
Background Facts
{¶ 2} Appellee, Marlon Pariag, was stopped by the Ohio State Highway
Patrol on December 31, 2010. He was charged with a traffic offense and also
with possession of drugs of abuse, in violation of R.C. 2925.11(C)(3), a minor
misdemeanor, and possession of drug paraphernalia, in violation of R.C.
2925.14(C)(1), a fourth-degree misdemeanor. The traffic offense and the criminal
drug charges were assigned separate case numbers as required by Sup.R.
37(A)(4)(c) and 43(B)(2). Both cases were filed in Franklin County Municipal
Court. The traffic charge was filed in case No. 2011 TRD 100861, while the drug
charges were filed in case No. 2011 CRB 239. The drug charges were dismissed
when Pariag entered a plea in the traffic case.
{¶ 3} On March 10, 2011, Pariag applied to seal the records pertaining to
the drug charges that had been dismissed. The state objected and argued that
because the record of a traffic conviction could not be sealed under R.C. 2953.36,
the record of the companion case—the drug charges—could not be sealed.
According to the state, because the drug-related charges arose from the same
incident as the traffic conviction, R.C. 2953.61 permanently precluded Pariag
from applying for the sealing of the dismissed drug charges.
{¶ 4} The trial court ordered the records of the dismissed drug charges
sealed, concluding that the conviction in the traffic case did not prevent the
sealing of the records in the criminal case involving the dismissed drug offenses.
{¶ 5} A divided panel of the Tenth District Court of Appeals held that
R.C. 2953.61 addresses only the timing of an application to seal a record, not the
applicant’s eligibility to have those records sealed. 10th Dist. Franklin No. 11AP-
569, ¶ 2. The court of appeals distinguished Pariag’s case from other cases in
which applicants were prevented from sealing their convictions by emphasizing
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that Pariag’s dismissed drug charges and traffic conviction were filed under
separate case numbers. Id. at ¶ 14. The court of appeals held that R.C. 2953.61
does not prohibit courts from sealing records of dismissed charges in one case
when the record of conviction in another case may not be sealed, even if the
charges arose out of the same act, because the statute governs merely the timing
of the application to seal. Id. at ¶ 21.
Issues Presented
{¶ 6} We accepted the state’s discretionary appeal. 132 Ohio St.3d
1513, 2012-Ohio-4021, 974 N.E.2d 111. In the first proposition of law, the state
argues that under R.C. 2953.61, the record of dismissed charges cannot be sealed
when the charges arise out of the same set of facts as a charge filed in a separate
case that resulted in an unsealable conviction. In the second proposition of law,
the state argues that R.C. 2953.61 does not address the timing of an application to
seal, but instead prevents partial sealing of a record.
{¶ 7} We now hold that a trial court is precluded, pursuant to R.C.
2953.61, from sealing the record of a dismissed charge if the dismissed charge
arises “as a result of or in connection with the same act” that supports a
conviction when the records are not sealable under R.C. 2953.36, regardless of
whether the dismissed charge and conviction are filed under separate case
numbers.
{¶ 8} We therefore reverse the judgment of the Tenth District Court of
Appeals and remand this case to the trial court to determine whether the dismissed
drug charges arose as the result of or in connection with the same act that led to
Pariag’s driving-under-suspension offense.
II. Law and Analysis
Standard of Review
{¶ 9} Because the propositions involve the interpretation of a statute,
which is a question of law, we review the court of appeals’ judgment de novo.
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Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496, 909
N.E.2d 1237, ¶ 13.
{¶ 10} When construing a statute, a court’s objective is to determine and
give effect to the legislative intent. State ex rel. Solomon v. Police & Firemen’s
Disability & Pension Fund Bd. of Trustees, 72 Ohio St.3d 62, 65, 647 N.E.2d 486(1995). To determine legislative intent, a court must first consider the words used
in a statute. State v. Maxwell, 95 Ohio St.3d 254, 2002-Ohio-2121, 767 N.E.2d
242, ¶ 10. When a statute’s language is clear and unambiguous, a court must
apply it as written. Zumwalde v. Madeira & Indian Hill Joint Fire Dist., 128
Ohio St.3d 492, 2011-Ohio-1603, 946 N.E.2d 748, ¶ 23. Further construction is
required only when a statute is unclear and ambiguous. State v. Chappell, 127
Ohio St.3d 376, 2010-Ohio-5991, 939 N.E.2d 1234, ¶ 16.
The Privilege of Sealing a Record
{¶ 11} In this case, the words “expungement” and “sealing” have been
interchanged. “Expungement” is a legislative construct with no universally
applied definition. Although the word “expungement” was used in R.C. 2953.32,
Ohio’s first-time-offender statute, “expungement” was described as a court-
ordered “seal[ing]” of official records and “delet[ing]” of index references
pertaining to a criminal conviction. Am.Sub.S.B. No. 5, 135 Ohio Laws, Part I,
70, 70-71. In 1979, the General Assembly amended R.C. 2953.32, changing the
word “expungement” to “sealing,” Am.Sub.H.B. No. 105, 138 Ohio Laws, Part I,
1638; however, “expungement” remains a common colloquialism used1 to
describe the process. Pepper Pike v. Doe, 66 Ohio St.2d 374, 378, 421 N.E.2d
1. The term “expungement” continues to appear in R.C. 2151.358 relating to juveniles and, in
contrast to “sealing” means that no record exists. R.C. 2151.358(F) (“the person who is the
subject of the expunged records properly may, and the court shall, reply that no record exists with
respect to the person upon any inquiry in the matter”).
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1303 (1981) (referring to R.C. 2953.32 as “Ohio’s criminal expungement
statute”); State v. LaSalle, 96 Ohio St.3d 178, 2002-Ohio-4009, 772 N.E.2d 1172,
¶ 3, fn. 2.
{¶ 12} Expungement of a criminal record is an “act of grace created by
the state.” State v. Hamilton, 75 Ohio St.3d 636, 639, 665 N.E.2d 669 (1996). It
should be granted only when all requirements for eligibility are met, because it is
a “privilege, not a right.” State v. Futrall, 123 Ohio St.3d 498, 2009-Ohio-5590,
918 N.E.2d 497, ¶ 6. R.C. 2953.32 et seq. set out the limits of the trial court’s
jurisdiction to grant a request to seal the record of convictions or charges that
have been dismissed.
Statutory application
{¶ 13} Because Pariag did not seek to seal the record of a conviction, R.C.
2953.52(A)(1), which applies when charges did not result in a conviction, applies.
It stated:
Any person who is found not guilty of an offense by a jury
or a court or who is the defendant named in a dismissed complaint,
indictment, or information, may apply to the court for an order to
seal his official records in the case. Except as provided in section
2953.61 of the Revised Code, the application may be filed at any
time after the finding of not guilty or the dismissal of the
complaint, indictment, or information is entered upon the minutes
of the court of the journal, whichever entry comes first.
Former R.C. 2953.52(A)(1), Am.Sub.H.B. No. 17, 149 Ohio Laws, Part IV, 8186,
8192.
{¶ 14} R.C. 2953.52 allows for application to seal the records of a
dismissed complaint, indictment, or information “at any time” after dismissal;
however, the statute expressly states that this timeframe is subject to the
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mandatory waiting period in R.C. 2953.61, which governs the sealing of records
in multiple charges with differing dispositions.
{¶ 15} R.C. 2953.61 states:
When a person is charged with two or more offenses as a
result of or in connection with the same act and at least one of the
charges has a final disposition that is different than the final
disposition of the other charges, the person may not apply to the
court for the sealing of his record in any of the cases until such
time as he would be able to apply to the court and have all of the
records in all of the cases pertaining to those charges sealed * * *.
(Emphasis added.)
{¶ 16} The statute applies when a person is charged with multiple
offenses that arise “as a result of or in connection with the same act.” Although
the Tenth District Court of Appeals held that R.C. 2953.61 was unclear with
respect to the meaning of the phrase “the same act” and the state misreads these
words to mean a conviction, we do not agree that the statute is ambiguous. The
“same act” plainly refers to the “same conduct.”
{¶ 17} The Tenth District also held that R.C. 2953.61 merely governs the
time for applying to seal a record. But a person cannot apply to have the record of
a charge sealed until the records of all the charges can be sealed, and the charge
must be one for which the record can be sealed. R.C. 2953.61 states, “[T]he
person may not apply * * * in any of the cases until such time as he would be able
to apply * * * and have all of the records in all of the cases pertaining to those
charges sealed.” In other words, when multiple offenses have different
dispositions, an application to seal a record may be filed only when the applicant
is able to apply to have the records of all the offenses sealed. Thus, if the record
of one charge cannot be sealed, any charges filed as a result of or in connection
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with the act that resulted in the unsealable charge cannot be sealed. Because R.C.
2953.61 refers to “all of the records in all of the cases,” our holding is not affected
by the fact that the different charges were assigned different case numbers.
Relevance of State v. Futrall
{¶ 18} We have already determined that an applicant with multiple
convictions in one case may not partially seal his or her record pursuant to R.C.
2953.32 when one of the convictions is statutorily exempt from being sealed
under R.C. 2953.36. Futrall, 123 Ohio St.3d 498, 2009-Ohio-5590, 918 N.E.2d
497, ¶ 21. In Futrall, multiple charges were filed in a single case, but we
determined that R.C. 2953.61 did not apply. We did, however, recognize the
inherent difficulty of partially sealing records. Id. at ¶ 20.
{¶ 19} Pariag’s charges in two separate cases resulted in different
dispositions—one conviction and two dismissals—and thus R.C. 2953.61 is
applicable. But because the trial court did not determine whether the charges all
arose as a result of or in connection with the same act, it is not clear whether his
traffic conviction prevents him from applying to seal the record of the drug
charges. Under R.C. 2953.36(B), a traffic conviction cannot be sealed.
{¶ 20} Pariag is ineligible to have the records of the dismissed drug
charges that otherwise would be sealable under R.C. 2953.52(A) and 2953.61
sealed if all charges arose as the result of or in connection with the same act. R.C.
2953.61 thus focuses not on when separate offenses occurred, but on whether they
arose from the same conduct of the applicant. Upon remand, the trial court must
decide whether the dismissed drug charges stemmed from the same act as Pariag’s
traffic violation. If the court finds that the same conduct generated both charges,
the conviction for the unsealable traffic offense will prevent records from the
otherwise sealable dismissed drug charges from being sealed.
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III. Conclusion
{¶ 21} R.C. 2953.61 is unambiguous. A trial court is precluded from
sealing the record of a dismissed charge pursuant to R.C. 2953.61 if the dismissed
charge arises “as the result of or in connection with the same act” that supports a
conviction that is exempt from sealing under R.C. 2953.36, regardless of whether
the charges are filed under separate case numbers.
{¶ 22} Pariag filed an application to seal the records of his drug charges
that were dismissed in Franklin County Municipal Court case No. 2011 CRB 239.
The trial court, on remand, must determine whether those charges arose “as the
result of or in connection with the same act” as his traffic conviction in case No.
2011 TRD 100861.
{¶ 23} Accordingly, the judgment of the appellate court is reversed, and
the cause is remanded to the trial court.
Judgment reversed
and cause remanded.
O’CONNOR, C.J., and KENNEDY and FRENCH, JJ., concur.
PFEIFER, O’DONNELL, and O’NEILL, JJ., dissent.
____________________
PFEIFER, J., dissenting.
{¶ 24} There were three charges in the underlying cases. One, a traffic
offense, is not sealable. One of the reasons traffic offenses are not sealable is that
they do not materially affect a person’s life. The other charges, which were
dismissed, were possession of drugs and drug paraphernalia and those charges are
sealable. That makes sense. Drug offenses can materially affect a person’s life,
and the General Assembly allows them to be sealed. Today this court determines
that a material offense that was dismissed and that is ordinarily sealable cannot be
sealed because an immaterial traffic offense cannot be sealed. That doesn’t make
sense.
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{¶ 25} This case does not merit the attention of this court. We should
never have accepted jurisdiction, and we should now dismiss the case as having
been improvidently allowed. Barring that, we ought to affirm the not
unreasonable judgment of the court of appeals. I dissent.
____________________
O’DONNELL, J., dissenting.
{¶ 26} Respectfully, I dissent.
{¶ 27} The issue in this case is whether R.C. 2953.61, which is referred to
in R.C. 2953.52, precludes a trial court from sealing the record of dismissed drug
charges that arose from the same traffic stop that resulted in a conviction for
driving under suspension, a statutorily unsealable traffic offense. My analysis of
this case differs from the majority in three respects: determining legislative intent,
analyzing the elements of the crimes at issue, and interpreting R.C. 2953.36.
{¶ 28} The role of the judiciary is to interpret statutes and to determine the
intent of the General Assembly in passing legislation. The intent of the General
Assembly in enacting R.C. 2953.52 and 2953.61 was to address the time to file an
application to seal records of dismissed criminal charges. In addition, the
elements of the offense of driving under suspension differ from and are
independent of the drug charges, which were dismissed, and therefore, the drug
charges are not “a result of or in connection with the same act” as required by
R.C. 2953.61. Hence, a pivotal requirement of R.C. 2953.61 cannot be
established in this case. And finally, a plain reading of R.C. 2953.36 reveals that
it does not preclude the sealing of records relating to dismissed charges, because it
only precludes the sealing of records of certain convictions. Here, the drug
charges did not result in convictions. For these reasons, I would affirm the
judgment of the court of appeals, and therefore I dissent from the decision of the
majority to reverse its judgment in this case.
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Timing Statutes
{¶ 29} Pursuant to R.C. 2953.52(A)(1), those charged with but not
convicted of a crime may apply to have records relating to those charges sealed.
This provision also specifically addresses the time when such applications may be
filed. It provides:
Any person, who is found not guilty of an offense by a jury
or a court or who is the defendant named in a dismissed complaint,
indictment, or information, may apply to the court for an order to
seal the person’s official records in the case. Except as provided in
section 2953.61 of the Revised Code, the application may be filed
at any time after the finding of not guilty or the dismissal of the
complaint, indictment, or information is entered upon the minutes
of the court or the journal, whichever entry occurs first.
{¶ 30} Also at issue in this case is R.C. 2953.61, which provides:
When a person is charged with two or more offenses as a
result of or in connection with the same act and at least one of the
charges has a final disposition that is different than the final
disposition of the other charges, the person may not apply to the
court for the sealing of his record in any of the cases until such
time as he would be able to apply to the court and have all of the
records in all of the cases pertaining to those charges sealed
pursuant to divisions (A)(1) and (2) of section 2953.32 and
divisions (A)(1) and (2) of section 2953.52 of the Revised Code.
(Emphasis added.)
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{¶ 31} The role of the judiciary is to interpret legislation, and “[t]he
primary goal in construing a statute is to ascertain and give effect to the intent of
the legislature.” State ex rel. Cordray v. Midway Motor Sales, Inc., 122 Ohio
St.3d 234, 2009-Ohio-2610, 910 N.E.2d 432, ¶ 15. To determine the General
Assembly’s intent, “the court first looks to the language in the statute and the
purpose to be accomplished.” State v. S.R., 63 Ohio St.3d 590, 595, 589 N.E.2d
1319 (1992), citing Henry v. Cent. Natl. Bank, 16 Ohio St.2d 16, 242 N.E.2d 342(1968), paragraph one of the syllabus. “Where the meaning of the statute is clear
and definite, it must be applied as written,” but “where the words are ambiguous
and are subject to varying interpretations, further interpretation is necessary.”
State v. Chappell, 127 Ohio St.3d 376, 2010-Ohio-5991, 939 N.E.2d 1234, ¶ 16,
citing Bailey v. Republic Engineered Steels, Inc., 91 Ohio St.3d 38, 40, 741
N.E.2d 121 (2001).
{¶ 32} Moreover, when two statutes relate to the same subject, such as
R.C. 2953.52(A)(1) and 2953.61, they should be read in pari materia. See
generally State ex rel. Gains v. Rossi, 86 Ohio St.3d 620, 622, 716 N.E.2d 204(1999). “In reading statutes in pari materia and construing them together, this
court must give a reasonable construction that provides the proper effect to each
statute. All provisions of the Revised Code bearing upon the same subject matter
should be construed harmoniously unless they are irreconcilable.” (Citations
omitted.) State ex rel. Cordray at ¶ 25.
{¶ 33} Reading R.C. 2953.52(A)(1) and 2953.61 in pari materia reveals
that the legislature intended to dictate the time when an application to seal records
could be filed. They do not preclude the sealing of records. R.C. 2953.52(A)(1)
specifically provides that “any person” may apply to the court for an order to seal
the records relating to a dismissed charge and refers to R.C. 2953.61 in specifying
the time for filing an application to seal the records pertaining to the dismissed
charge. The language “until such time” contained in R.C. 2953.61 also indicates
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that R.C. 2953.61 pertains to the waiting period required before applying to seal
rather than the eligibility to have records sealed.
{¶ 34} The title of Am.Sub.H.B. No. 175, 142 Ohio Laws, Part II, 2554,
the bill amending R.C. 2953.52 and codifying R.C. 2953.61, further clarifies the
intent of the General Assembly in enacting this legislation: “to require a longer
waiting period before sealing the records of a person who has multiple charges
brought as a result of a single act if the charges have different dispositions.”
(Emphasis added.) See also Legislative Service Commission Bill Analysis of
Sub.H.B. No. 175 (describing operation of R.C. 2953.61 as an extension of the
waiting period). Notably, the title contains no language suggesting any intent to
preclude the sealing of records of dismissed charges associated with convictions
that cannot be sealed.
{¶ 35} Moreover, since R.C. 2953.51 et seq. are remedial in nature, they
“must be liberally construed to promote their purposes.” State ex rel. Gains, 86
Ohio St.3d at 622, 716 N.E.2d 204, citing R.C. 1.11 and Barker v. State, 62 Ohio
St.2d 35, 42, 402 N.E.2d 550 (1980). We have previously explained that “R.C.
2953.51 et seq. was enacted to protect the privacy of those found not guilty of a
criminal offense.” S.R., 63 Ohio St.3d at 595, 589 N.E.2d 1319, citing State v.
Grove, 29 Ohio App.3d 318, 320, 505 N.E.2d 297 (1986). Construing an
analogous statute, the Court of Appeals of New York recognized that the purpose
of the statute was to ensure that
one who is charged but not convicted of an offense suffers no
stigma as a result of his having once been the object of an
unsustained accusation. That detriment to one’s reputation and
employment prospects often flows from merely having been
subjected to criminal process has long been recognized as a serious
and unfortunate by-product of even unsuccessful criminal
prosecutions.
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In re Hynes v. Karassik, 47 N.Y.2d 659, 662, 419 N.Y.S.2d 942, 393 N.E.2d 1015(1979).
{¶ 36} Interpreting R.C. 2953.61 to preclude the sealing of records of
dismissed criminal charges because they are associated with an unsealable
conviction contravenes the intent of R.C. 2953.52, which is to protect the privacy
of persons who had been charged with an offense but were successful in having
those charges dismissed and to guard against the harmful and stigmatizing effects
associated with arrest records. See generally S.R. at 595 and Hynes at 662.
{¶ 37} Moreover, in this case, R.C. 2953.61 does not preclude the sealing
of the two dismissed drug charges, because they were not the result of nor were
they committed in connection with the act of driving under a suspended license.
Rather, the acts of possession of marihuana and possession of drug paraphernalia
are separate from and independent of the offense of driving under a suspended
license. The offenses may have been committed simultaneously, but R.C.
2953.61 requires that the offenses be “a result of or in connection with the same
act.” Here, they are not. This case is distinguishable from other circumstances in
which two offenses are part of the same conduct. For example, the offenses of
reckless operation or operating a motor vehicle without the owner’s consent could
arise out of and in connection with a charge of driving under suspension, because
it is the act of operating the motor vehicle that results in the commission of the
other offense.
{¶ 38} A comparison of the elements of the offenses charged in this case
demonstrates that operating a motor vehicle is a necessary element for a
conviction of driving under suspension, but is totally unrelated to the elements for
a conviction of possession of drugs or drug paraphernalia. In order to establish
the offense of driving under suspension as defined in R.C. 4510.11(A), the state
must prove that a person whose license has been suspended operated a motor
vehicle during the period of suspension. In contrast, in order to establish the
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crime of possession of marihuana, a person must “knowingly obtain, possess, or
use” marihuana. R.C. 2925.11(A) and (C)(3). Similarly, to establish possession
of drug paraphernalia, a person must “knowingly use, or possess with purpose to
use, drug paraphernalia.” R.C 2925.14(C)(1). Because operating a motor vehicle
is a different act from possessing an item, these offenses arise out of different acts
and are not the result of the same conduct, nor are they committed in connection
with the same act. Therefore, R.C. 2953.61 does not preclude a court from
sealing these dismissed drug charges.
Convictions Precluding Sealing
{¶ 39} R.C. 2953.36 provides: “Sections 2953.31 to 2953.35 of the
Revised Code do not apply to any of the following: * * * (B) Convictions under
* * * Chapter 4510. * * * of the Revised Code * * *” (emphasis added)
(addressing sealing of records of convictions). By enacting R.C. 2953.36, the
General Assembly created various exceptions to the sealing of some records of
convictions, such as those involving mandatory prison terms and, notably,
convictions arising under R.C. 4510—which includes convictions for driving
under suspension. The exceptions to the ability to seal a record pursuant to this
code section all relate to criminal convictions, and there is no statutory reference
to, or exclusion for, the sealing of a record of a dismissed charge that does not
result in a conviction. Had the legislature intended to preclude the sealing of a
dismissed charge related to a traffic offense, it could have done so, but it chose
not to include dismissed charges in the exceptions cataloged in R.C. 2953.36.
{¶ 40} The majority relies on State v. Futrall, 123 Ohio St.3d 498, 2009-
Ohio-5590, 918 N.E.2d 497, in support of its holding. Futrall, however, is
factually distinguishable from this case because it did not consider dismissed
charges. In Futrall, we addressed whether a court could partially seal the records
of an applicant with multiple convictions in one case when one of the convictions
was statutorily exempt from sealing pursuant to R.C. 2953.36. Id. at ¶ 15. In
contrast, this case involves a nonsealable traffic-offense conviction and two
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charges that did not result in convictions but rather were dismissed. Thus, our
holding in Futrall does not control the outcome of this case.
Conclusion
{¶ 41} The legislature provided that persons charged with but not
convicted of offenses may apply to the court for an order to seal the record of
dismissed charges, and it specifically set forth the time when such applications
could be filed.
{¶ 42} In addition, it specified that when a person is charged with two or
more offenses as a result of or in connection with the same act and different
dispositions result, an application may be filed to seal the dismissed charges. In
this case, however, that factual predicate has not been met, because the act of
possessing the marihuana and possessing the drug paraphernalia did not result
from the act of driving under suspension nor did it occur in connection with that
conduct.
{¶ 43} Finally, because R.C. 2953.36 relates only to precluding the
sealing of records of offenses that result in convictions and does not refer to
dismissed charges, this provision does not preclude the sealing of records relating
to dismissed charges.
{¶ 44} Accordingly, I would affirm the judgment of the appellate court.
O’NEILL, J., concurs in the foregoing opinion.
____________________
Richard C. Pfeiffer Jr., Columbus City Attorney, Lara N. Baker-Moorish,
City Prosecuting Attorney, and Melanie R. Tobias, Assistant City Prosecuting
Attorney, for appellant.
________________________
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