State v. Mennifield

[Cite as State v. Mennifield, 2015-Ohio-4660.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin,, P.J.
: Hon. Patricia A. Delaney, J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. 15-CA-15
LEON A. MENNIFIELD :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Richland County
Court of Common Pleas, Case No. 2014
CR0100R
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 9, 2015
APPEARANCES:
For: Plaintiff-Appellee For: Defendant-Appellant
DANIEL ROGERS WILLIAM CRAMER
Assistant Prosecuting Attorney 470 Ole Worthington Road, Ste. 200
38 S. Park Street Westerville, OH 43082
Mansfield, OH 44902
Richland County, Case No. 15-CA-15 2
Gwin, P.J.
{¶1} Appellant Leon A. Mennifield ["Mennifield"] appeals his conviction and
sentence after a jury trial in the Richland County Court of Common Pleas on one count
of forgery a felony of the fifth degree pursuant to R.C. 2913.31(A)(3).
Facts and Procedural History
{¶2} On September 6, 2013, an African American male entered a Fast Cash
store in Mansfield, Ohio and presented a paycheck from the Burger King at 1291 Park
Avenue West in Mansfield, Ohio, issued through WesBanco and in Mennifield's name,
for the amount $436.67. Fast Cash was a business providing payday loan and check
cashing services.
{¶3} Since the individual who identified himself as Mennifield did not have any
previous loans through Fast Cash, Amy Barnes, an employee of Fast Cash asked him
to present his photo identification, phone number, social security number and home
address. Ms. Barnes scanned the identification card provided to her, which identified the
individual cashing the check as Mennifield. Mennifield admitted at trial that the
photographic identification card presented to Ms. Barnes was his identification card. (T.
at 85). Ms. Barnes testified that the photograph on the identification card matched the
individual who was presenting the check to be cashed. Ms. Barnes, however, noticed
that the address on identification card did not match the address on the Burger King
check. The individual told Ms. Barnes that he had recently moved from Columbus to
Mansfield and had not yet updated his driver's license. Ms. Barnes attempted to call
WesBanco to verify the Burger King check, but WesBanco refused to verify the check.
In spite of these discrepancies, Ms. Barnes cashed the check because she had cashed
Richland County, Case No. 15-CA-15 3
another WesBanco check earlier in the day and the check presented to her looked
identical. After giving the individual the proceeds of the check minus Fast Cash's fee,
Ms. Barnes presented the man with a receipt. The individual signed the receipt in the
presence of Ms. Barnes, but did not finish spelling out the last name. (T. at 51; 87).
{¶4} Ms. Barnes called First Merit Bank, which processed Fast Cash's checks.
First Merit deemed the check fraudulent and refused to honor it after finding out that
Mennifield never worked at the Burger King at 1291 Park Avenue West. Further, Burger
King used Money Network cards rather than paper checks, and Burger King used
Richland Bank, not WesBanco. First Merit attempted to contact the individual who had
identified himself as Mennifield at the phone number he provided to Ms. Barnes;
however, the number was disconnected. First Merit then contacted the Ontario Police
Department.
{¶5} While investigating the complaint filed by First Merit, Officer Bernice
Malone of the Ontario Police Department unsuccessfully attempted to contact the
individual at the number he had provided to Ms. Barnes. Additionally, Officer Malone
attempted contact at the address listed on the Burger King check. Officer Malone
determined that the address was invalid. Furthermore, Officer Malone determined that
the social security number provide to Ms. Barnes was fake.
{¶6} Following her failed attempts to contact the person, Officer Malone
created a photo lineup for Amy Barnes to view. On December 21, 2013, Officer Malone
gave the photo lineup to Officer Jason Day, since Officer Day had no knowledge of the
facts of this case and could act as a blind administrator of the photo lineup. Officer Day
went to Fast Cash and administered the photo lineup to Ms. Barnes. After going
Richland County, Case No. 15-CA-15 4
through the line-up twice, Ms. Barnes stated that she was one-hundred percent sure
that three of the people in the lineup were not the person who cashed the fraudulent
Burger King check, eighty percent sure that one other person in the lineup was not the
person who cashed the fraudulent Burger King check and one-hundred percent sure
that Mennifield was the person who cashed the fraudulent Burger King check.
{¶7} Following the administration of the photo lineup to Ms. Barnes on
December 21, 2013, Officer Malone determined that the person whom Ms. Barnes
excluded with eighty percent certainty could not have been the person whom cashed
the fraudulent Burger King check, as he was in prison when the offense occurred.
{¶8} Mennifield testified in his own defense. Mennifield admitted that he had a
conviction for cashing a fake check in Lima, Ohio, on September 13, 2013. Mennifield
met an old friend who offered him money to help with the check-cashing scheme.
Mennifield needed money, so he agreed to help. Mennifield gave the forger his
identification card; the forger made a check with Mennifield's information on it, except it
had a Lima address. The check in that case was also a Burger King check for $436, but
Mennifield could not recall if it was for WesBanco. Mennifield admitted that he
presented this friend with his photographic identification card on September 12, 2013.
(T. at 88).
{¶9} Another similar case arose from Findlay, Ohio, on September 16, 2013.
That case involved another Burger King check on a WesBanco account for $336.67.
However, the signature on the check was not Mennifield's and the prosecution did not
have identification for the person who cashed the check, so the prosecution reduced the
charge to a misdemeanor and offered Mennifield two years of community control.
Richland County, Case No. 15-CA-15 5
Mennifield insisted he did not cash the Findlay check, but was advised by his attorney to
take the deal, so he did.
{¶10} When asked about the current charges, Mennifield denied ever being in
Mansfield before, denied being employed by Burger King, and denied going to Fast
Cash. Mennifield testified that he was at home in Columbus, Ohio, waiting to get the
kids off the bus when this incident occurred in Mansfield.
{¶11} Mennifield noted that the signature on the back of the check did not match
his and denied signing the check. Mennifield also denied that the signature on the
receipt was similar to his signature. He noted that the signature on the receipt did not
even include his full last name, and noted specific differences in the way the letters
were formed.
{¶12} Mennifield admitted that he also had a prior federal conviction out of
Tennessee from 2004 for aiding and abetting attempted distribution of drugs, and spent
time in prison on that case.
{¶13} At the conclusion of the evidence, the jury found Mennifield guilty on the
sole count of the indictment forgery, a fifth degree felony pursuant to R.C.
2913.31(A)(3).
{¶14} On February 10, 2015, the trial court sentenced Mennifield to twelve
months incarceration, three years discretionary post release control, and restitution in
the amount of $456.67.
Assignments of Error
{¶15} Mennifield raises three assignments of error,
Richland County, Case No. 15-CA-15 6
{¶16} "I. APPELLANT'S RIGHTS TO DUE PROCESS UNDER THE STATE
AND FEDERAL CONSTITUTIONS WERE VIOLATED BECAUSE HIS CONVICTION
WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.
{¶17} "II. THE CONVICTION FOR FORGERY WAS NOT SUPPORTED BY THE
WEIGHT OF THE EVIDENCE.
{¶18} "III. THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A
MAXIMUM SENTENCE."
I & II
{¶19} Mennifield's first and second assignments of error raise common and
interrelated issues; therefore, we will address the arguments together.
{¶20} In his first assignment of error, Mennifield contends his conviction is
against the manifest weight of the evidence produced by the state at trial. In his second
assignment of error, Mennifield challenges the sufficiency of the evidence.
{¶21} Our review of the constitutional sufficiency of evidence to support a
criminal conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.
2781, 61 L. Ed. 2d 560 (1979), which requires a court of appeals to determine whether
“after viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Id.; see also McDaniel v. Brown, 558 U.S. 120, 130 S. Ct. 665, 673, 175 L.Ed.2d
582(2010) (reaffirming this standard); State v. Fry, 125 Ohio St. 3d 163, 926 N.E.2d
1239, 2010–Ohio–1017, ¶146; State v. Clay, 187 Ohio App. 3d 633, 933 N.E.2d 296,
2010–Ohio–2720, ¶68.
Richland County, Case No. 15-CA-15 7
{¶22} Weight of the evidence addresses the evidence's effect of inducing belief.
State v. Thompkins, 78 Ohio St. 3d 380, 386-387, 678 N.E.2d 541 (1997), superseded
by constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio
St.3d 89, 684 N.E.2d 668, 1997-Ohio–355. Weight of the evidence concerns “the
inclination of the greater amount of credible evidence, offered in a trial, to support one
side of the issue rather than the other. It indicates clearly to the jury that the party
having the burden of proof will be entitled to their verdict, if, on weighing the evidence in
their minds, they shall find the greater amount of credible evidence sustains the issue,
which is to be established before them. Weight is not a question of mathematics, but
depends on its effect in inducing belief.” (Emphasis sic.) Id. at 387, 678 N.E.2d 541,
quoting Black's Law Dictionary (6th Ed. 1990) at 1594.
{¶23} When a court of appeals reverses a judgment of a trial court on the basis
that the verdict is against the weight of the evidence, the appellate court sits as a
“’thirteenth juror’” and disagrees with the fact finder’s resolution of the conflicting
testimony. Id. at 387, 678 N.E.2d 541, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102
S. Ct. 2211, 72 L. Ed. 2d 652 (1982). However, an appellate court may not merely
substitute its view for that of the jury, but must find that “‘the jury 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. Thompkins, supra, 78 Ohio St.3d at 387, quoting State v.
Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717, 720–721 (1st Dist. 1983).
Accordingly, reversal on manifest weight grounds is reserved for “‘the exceptional case
in which the evidence weighs heavily against the conviction.’” Id.
Richland County, Case No. 15-CA-15 8
“[I]n determining whether the judgment below is manifestly against
the weight of the evidence, every reasonable intendment and every
reasonable presumption must be made in favor of the judgment and the
finding of facts.
***
“If the evidence is susceptible of more than one construction, the
reviewing court is bound to give it that interpretation which is consistent
with the verdict and judgment, most favorable to sustaining the verdict and
judgment.”
Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St. 3d 77, 80, 461 N.E.2d 1273 (1984), fn.
3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).
{¶24} There is no dispute in the case at bar that a forgery had in fact occurred.
Mennifield does not contest that a fraudulent Burger King paycheck was presented to
Ms. Barnes on September 6, 2013. Mennifield further does not contest the fact that his
photographic identification card was presented to Ms. Barnes along with the fraudulent
paycheck. Mennifield's argument focuses on his contention that there was insufficient
evidence to identify him as the person who presented the check to Ms. Barnes on
September 6, 2013.
{¶25} Amy Barnes identified Mennifield in court as the person whom cashed the
fraudulent Burger King check. Officer Malone and Officer Jason Day both testified that
Ms. Barnes identified Mennifield in the photo lineup with one-hundred percent certainty.
{¶26} The incident in the case at bar occurred on September 6, 2013. The
incident involving a forged Burger King paycheck in Lima, Ohio for which Mennifield
Richland County, Case No. 15-CA-15 9
admitted that he had been convicted occurred on September 13, 2013. A third
fraudulent Burger King payroll check drawn on WesBanco occurred on September 16,
2013 in Findlay, Ohio. Mennifield claimed he pled guilty to a reduced charge on the
advice of his attorney. Mennifield testified at trial he did not give his friend Mennifield's
photographic identification card to copy until September 12, 2013, which was after the
incident in the case at bar.
{¶27} If the state relies on circumstantial evidence to prove an essential element
of an offense, it is not necessary for “such evidence to be irreconcilable with any
reasonable theory of innocence in order to support a conviction.” State v. Jenks, 61
Ohio St. 3d 259, 272, 574 N.E.2d 492(1991), paragraph one of the syllabus,
superseded by State constitutional amendment on other grounds as stated in State v.
Smith, 80 Ohio St. 3d 89, 684 N.E.2d 668(1997). “Circumstantial evidence and direct
evidence inherently possess the same probative value [.]” Jenks, 61 Ohio St.3d at
paragraph one of the syllabus. Furthermore, “[s]ince circumstantial evidence and direct
evidence are indistinguishable so far as the jury's fact-finding function is concerned, all
that is required of the jury is that i[t] weigh all of the evidence, direct and circumstantial,
against the standard of proof beyond a reasonable doubt.“ Jenks, 61 Ohio St. 3d at 272,
574 N.E.2d 492. While inferences cannot be based on inferences, a number of
conclusions can result from the same set of facts. State v. Lott, 51 Ohio St. 3d 160, 168,
555 N.E.2d 293(1990), citing Hurt v. Charles J. Rogers Transp. Co, 164 Ohio St. 329,
331, 130 N.E.2d 820(1955). Moreover, a series of facts and circumstances can be
employed by a jury as the basis for its ultimate conclusions in a case. Lott, 51 Ohio
St.3d at 168, 555 N.E.2d 293, citing Hurt, 164 Ohio St. at 331, 130 N.E.2d 820.
Richland County, Case No. 15-CA-15 10
{¶28} Viewing the evidence in a light most favorable to the prosecution, we
conclude that a reasonable person could have found beyond a reasonable doubt that
Mennifield is the individual who presented the fraudulent Burger King paycheck to Ms.
Barnes on September 6, 2013. We hold, therefore, that the state met its burden of
production regarding each element of the crime and, accordingly, there was sufficient
evidence to support Mennifield’s conviction.
{¶29} As an appellate court, we are not fact finders; we neither weigh the
evidence nor judge the credibility of witnesses. Our role is to determine whether there is
relevant, competent and credible evidence, upon which the fact finder could base his or
her judgment. Cross Truck v. Jeffries, 5th Dist. Stark No. CA–5758, 1982 WL 2911(Feb.
10, 1982). Accordingly, judgments supported by some competent, credible evidence
going to all the essential elements of the case will not be reversed as being against the
manifest weight of the evidence. C.E. Morris Co. v. Foley Construction, 54 Ohio St. 2d
279, 376 N.E.2d 578(1978). The Ohio Supreme Court has emphasized: “‘[I]n
determining whether the judgment below is manifestly against the weight of the
evidence, every reasonable intendment and every reasonable presumption must be
made in favor of the judgment and the finding of facts. * * *.’” Eastley v. Volkman, 132
Ohio St. 3d 328, 334, 972 N.E.2d 517, 2012-Ohio-2179, quoting Seasons Coal Co., Inc.
v. Cleveland, 10 Ohio St. 3d 77, 80, 461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio
Jurisprudence 3d, Appellate Review, Section 603, at 191–192 (1978). Furthermore, it is
well established that the trial court is in the best position to determine the credibility of
witnesses. See, e.g., In re Brown, 9th Dist. No. 21004, 2002–Ohio–3405, ¶ 9, citing
State v. DeHass, 10 Ohio St .2d 230, 227 N.E.2d 212(1967).
Richland County, Case No. 15-CA-15 11
{¶30} Ultimately, “the reviewing court must determine whether the appellant or
the appellee provided the more believable evidence, but must not completely substitute
its judgment for that of the original trier of fact ‘unless it is patently apparent that the fact
finder lost its way.’” State v. Pallai, 7th Dist. Mahoning No. 07 MA 198, 2008-Ohio-6635,
¶31, quoting State v. Woullard, 158 Ohio App. 3d 31, 2004-Ohio-3395, 813 N.E.2d 964
(2nd Dist. 2004), ¶ 81. In other words, “[w]hen there exist two fairly reasonable views of
the evidence or two conflicting versions of events, neither of which is unbelievable, it is
not our province to choose which one we believe.” State v. Dyke, 7th Dist. Mahoning
No. 99 CA 149, 2002-Ohio-1152, at ¶ 13, citing State v. Gore, 131 Ohio App. 3d 197,
201, 722 N.E.2d 125(7th Dist. 1999).
{¶31} The weight to be given to the evidence and the credibility of the witnesses
are issues for the trier of fact. State v. DeHass, 10 Ohio St. 2d 230, 227 N.E.2d
212(1967), paragraph one of the syllabus; State v. Hunter, 131 Ohio St. 3d 67, 2011-
Ohio-6524, 960 N.E.2d 955, ¶118. Accord, Glasser v. United States, 315 U.S. 60, 80,
62 S. Ct. 457, 86 L. Ed. 680 (1942); Marshall v. Lonberger, 459 U.S. 422, 434, 103 S. Ct.
843, 74 L. Ed. 2d 646 (1983).
{¶32} The jury as the trier of fact was free to accept or reject any and all of the
evidence offered by the parties and assess the witness’s credibility. "While the jury may
take note of the inconsistencies and resolve or discount them accordingly * * * such
inconsistencies do not render defendant's conviction against the manifest weight or
sufficiency of the evidence." State v. Craig, 10th Dist. Franklin No. 99AP-739, 1999 WL
29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09-1236,
1996 WL 284714 (May 28, 1996). Indeed, the jury need not believe all of a witness'
Richland County, Case No. 15-CA-15 12
testimony, but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin
No. 02AP-604, 2003-Ohio-958, ¶21, citing State v. Antill, 176 Ohio St. 61, 67, 197
N.E.2d 548 (1964); State v. Burke, 10th Dist. Franklin No. 02AP-1238, 2003-Ohio-2889,
citing State v. Caldwell, 79 Ohio App. 3d 667, 607 N.E.2d 1096 (4th Dist. 1992).
Although the evidence may have been circumstantial, we note that circumstantial
evidence has the same probative value as direct evidence. State v. Jenks, supra.
{¶33} We find that this is not an “‘exceptional case in which the evidence weighs
heavily against the conviction.’” Thompkins, 78 Ohio St. 3d at 387, 678 N.E.2d 541,
quoting Martin, 20 Ohio App. 3d at 175, 485 N.E.2d 717. The jury neither lost his way
nor created a miscarriage of justice in convicting Mennifield of the charges.
{¶34} Based upon the foregoing and the entire record in this matter, we find
Mennifield’s conviction was not against the sufficiency or the manifest weight of the
evidence. To the contrary, the jury appears to have fairly and impartially decided the
matters before them. The jury as a trier of fact can reach different conclusions
concerning the credibility of the testimony of the state’s witnesses and Mennifield. This
court will not disturb the jury's finding so long as competent evidence was present to
support it. State v. Walker, 55 Ohio St. 2d 208, 378 N.E.2d 1049 (1978). The jury heard
the witnesses, evaluated the evidence, and was convinced of Mennifield’s guilt.
{¶35} Finally, upon careful consideration of the record in its entirety, we find that
there is substantial evidence presented which if believed, proves all the elements of the
crime beyond a reasonable doubt.
{¶36} Mennifield’s first and second assignments of error are overruled.
Richland County, Case No. 15-CA-15 13
III.
{¶37} In his third assignment of error, Mennifield argues that the trial court
abused its discretion by sentencing him to the maximum twelve (12) month prison
sentence for his conviction for forgery.
{¶38} R.C. 2929.12 lists general factors that must be considered by the trial
court in determining the sentence to be imposed for a felony, and gives detailed criteria
which do not control the court's discretion but which must be considered for or against
severity or leniency in a particular case. The trial court retains discretion to determine
the most effective way to comply with the purpose and principles of sentencing as set
forth in R.C. 2929.11. R.C. 2929.12.
{¶39} Under R.C. 2929.11(A), the “overriding purposes” of felony sentencing are
to protect the public from future crime by the offender and others and to punish the
offender using the minimum sanctions that the court determines accomplish those
purposes without imposing an unnecessary burden on state or local government
resources. To achieve these purposes, the sentencing court shall consider the need for
incapacitating the offender, deterring the offender and others from future crime,
rehabilitating the offender, and making restitution to the victim of the offense, the public,
or both. R.C. 2929.11(A).
{¶40} Among the various factors that the trial court must consider and balance
under R.C. 2929.12 are: (1) serious physical, psychological, or economic harm to the
victim as a result of the offense; (2) whether the offender has a history of criminal
convictions; (3) whether the offender has not responded favorably to sanctions
Richland County, Case No. 15-CA-15 14
previously imposed by criminal convictions; and (4) whether the offender shows genuine
remorse for the offense. R.C. 2929.12.
{¶41} R.C. 2929.11 and 2929.12 require consideration of the purposes of felony
sentencing, as well as the factors of seriousness and recidivism. See State v. Mathis,
109 Ohio St. 3d 54, 846 N.E.2d 1, 2006–Ohio–855, ¶ 38.
{¶42} “[W]here the trial court does not put on the record its consideration of
[Sections] 2929.11 and 2929.12 [of the Ohio Revised Code], it is presumed that the trial
court gave proper consideration to those statutes.” (Alterations sic.) State v. Steidl, 9th
Dist. Medina No. 10CA0025–M, 2011–Ohio–2320, ¶13, quoting State v. Kalish, 120
Ohio St. 3d 23, 896 N.E.2d 124, 2008–Ohio–4912 at ¶18, fn. 4. “Unless the record
shows that the court failed to consider the factors, or that the sentence is ‘strikingly
inconsistent’ with the factors, the court is presumed to have considered the statutory
factors if the sentence is within the statutory range.” State v. Fernandez, 9th Dist. Media
No. 13CA0054–M, 2014–Ohio–3651, ¶ 8, quoting State v. Boysel, 2d Dist. Clark
No.2013–CA–78, 2014–Ohio–1272, ¶ 13.
{¶43} At the outset, we note that Mennifield concedes that his 12–month prison
sentence is within the permissible statutory sentencing range for a fifth degree felony.
See R.C. 2929.14(A)(5).
{¶44} At sentencing the trial court noted,
As I have had the opportunity to go over the overriding sentencing
principles under 2929.11 and then again under 2929.12, I've looked at the
most serious factors, the less serious factors, the more likely recidivism
factors, the less likely recidivism factors, that would be, as far as I know,
Richland County, Case No. 15-CA-15 15
you had that manslaughter in '98, the cocaine distribution in 2004 or 2005,
and then you had three cases that are kind of related in that they had a
Burger King check passed in Lima, a Burger King check passed in
Findlay, and then the one passed here in Richland County, so three
different counties. It's Hancock, Allen County, and then Richland County
for these paper checks. As the prosecutor said, I know we had talked
earlier. There was some talk of a plea, but that didn't end up happening.
Based on my review of your record and the sentencing, I don't know that
now is the time to talk about a community-based correctional facility,
although that may or may not help you. But at this point, what I'm going to
do is sentence you to 12 months in prison, three years discretionary post-
release control.
T. at 120-121.
{¶45} The crux of Mennifield's argument regarding his sentence concerns the
amount of weight that the trial court gave to the respective factors enumerated in R.C.
2929.12. Specifically, Mennifield contends that the R.C. 2929.12 factors, when
considered in his case, weigh against the imposition of a maximum term of
imprisonment. However, having presided over the jury trial, the sentencing judge was
familiar with the evidence presented at trial. The trial court noted during the sentencing
hearing that Mennifield committed identical crimes in three different counties, and had
two unrelated felony convictions in his past.
{¶46} In light of the forgoing, we cannot conclude that the sentence imposed in
this case was unreasonable, arbitrary, or unconscionable.
Richland County, Case No. 15-CA-15 16
{¶47} Based on Mennifield's argument and our own independent review of the
record, we conclude that the trial court complied with all applicable rules and statutes in
imposing its sentence such that Mennifield's sentence is not clearly and convincingly
contrary to law. Moreover, we conclude that the trial court did not abuse its discretion in
its imposition of a maximum term of imprisonment upon Mennifield.
{¶48} Mennifield's third assignment of error is overruled.
{¶49} For the foregoing reasons, the judgment of the Richland County Court of
Common Pleas, Richland County, Ohio is affirmed.
By Gwin, P.J.,
Delaney, J., and
Baldwin, J., concur