State v. Burnette

[Cite as State v. Burnette, 2022-Ohio-1103.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )
STATE OF OHIO C.A. No. 20AP0036
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
SCOTT BURNETTE WAYNE COUNTY MUNICIPAL COURT
COUNTY OF WAYNE, OHIO
Appellant CASE No. 2020 CR-B 000270
DECISION AND JOURNAL ENTRY
Dated: March 31, 2022
CALLAHAN, Judge.
{¶1} Defendant-Appellant, Scott Burnette, appeals from the judgment of the Wayne
County Municipal Court. This Court affirms.
I.
{¶2} Late one evening, police officers responded to an apartment Mr. Burnette shared
with his male partner, J.K., because J.K. had called 911. Officers separately interviewed the two
men and learned that an altercation had taken place in their shared bedroom. Both Mr. Burnette
and J.K. reported that J.K. had locked the bedroom door from the inside, Mr. Burnette had
demanded to be let in, and, when J.K. refused, Mr. Burnette had broken through the door. The
details of their accounts varied after that point, but there was no dispute that Mr. Burnette pulled
J.K. from the bed by his leg before holding him down on the bed and punching him in the face.
Mr. Burnette claimed that he held J.K. down on the bed because J.K. kicked him in the chest. He
further claimed that he punched J.K. in the face because J.K. bit down on his thumb and would not
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let go. Meanwhile, J.K. claimed that he freed his leg without kicking Mr. Burnette and only bit
Mr. Burnette’s thumb because Mr. Burnette was pinning him to the bed and holding a closed fist
to his face in a threatening manner. After speaking with both men, the police determined Mr.
Burnette was the primary aggressor and arrested him.
{¶3} Mr. Burnette was charged with domestic violence, unlawful restraint, and
disorderly conduct. He initially pleaded guilty on all charges, but later withdrew his plea and
requested a jury trial. A jury found him guilty on all counts, and Mr. Burnette was sentenced to
fines and 90 days in jail. The trial court agreed to stay the execution of his sentence for purposes
of an appeal.
{¶4} Mr. Burnette now appeals from the trial court’s judgment and raises five
assignments of error for this Court’s review.
II.
ASSIGNMENT OF ERROR NO. 1
THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE JURY VERDICT
OF GUILTY.
{¶5} In his first assignment of error, Mr. Burnette argues that his convictions are based
on insufficient evidence. This Court disagrees.
{¶6} “Whether a conviction is supported by sufficient evidence is a question of law that
this Court reviews de novo.” State v. Williams, 9th Dist. Summit No. 24731, 2009-Ohio-6955, ¶
18, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). The relevant inquiry is whether the
prosecution has met its burden of production by presenting sufficient evidence to sustain a
conviction. Thompkins at 390 (Cook, J., concurring). For purposes of a sufficiency analysis, this
Court must view the evidence in the light most favorable to the State. Jackson v. Virginia, 443
U.S. 307, 319 (1979). We do not evaluate credibility, and we make all reasonable inferences in
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favor of the State. State v. Jenks, 61 Ohio St.3d 259, 273 (1991). The evidence is sufficient if it
allows the trier of fact to reasonably conclude that the essential elements of the crime were proven
beyond a reasonable doubt. Id.{¶7} A person commits domestic violence if he “knowingly cause[s] or attempt[s] to
cause physical harm to a family or household member.” R.C. 2919.25(A). The crime of unlawful
restraint occurs when a person knowingly, and without privilege to do so, “restrain[s] another of
the other person’s liberty.” R.C. 2905.03(A). Finally, a person engages in disorderly conduct if
he “recklessly cause[s] inconvenience, annoyance, or alarm to another by * * * [e]ngaging in
fighting, in threatening harm to persons or property, or in violent or turbulent behavior[.]” R.C.
2917.11(A)(1).
{¶8} J.K. testified that, when these events transpired, he and Mr. Burnette were in a
relationship and living together. He testified that they had a verbal disagreement one evening,
after which he decided to go to bed. J.K. ultimately locked the bedroom door and refused to open
it when Mr. Burnette demanded that he do so. J.K. testified that Mr. Burnette repeatedly screamed
at him through the locked door before using his body to break through it. Mr. Burnette then
approached the bed, ripped the covers off J.K., and started shaking him while “saying nasty
things.” J.K. testified that he told Mr. Burnette to stop and tried to turn away, but Mr. Burnette
punched him in the back, grabbed his leg, and dragged him out of bed and onto the floor. J.K.
indicated that it was painful when he fell to the floor and felt like a rug burn. According to J.K.,
he shook his leg from Mr. Burnette’s grasp and climbed back into bed, but Mr. Burnette climbed
on top of him and held him down. He stated that they wrestled on the bed as he tried to free himself
from Mr. Burnette, who was continuing to scream at him. J.K. managed to break free, but Mr.
Burnette then grabbed him by the face and held him down again. J.K. testified that Mr. Burnette
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made a fist with one hand and hovered his fist over J.K.’s face while screaming at him. At that
point, J.K. felt Mr. Burnette meant to strike him, so he bit Mr. Burnette’s thumb to try to break his
hold. J.K. testified that the bite caused Mr. Burnette to let him go, but Mr. Burnette then punched
him twice in the face. J.K. described how he suffered a bloody nose, lip swelling, bruises, and red
marks as a result of the incident. The police took pictures of his injuries, and the State introduced
those pictures at trial.
{¶9} Viewing the evidence in a light most favorable to the prosecution, a rational trier
of fact reasonably could have concluded that the State proved each element of Mr. Burnette’s
convictions beyond a reasonable doubt. See Jenks, 61 Ohio St.3d at 273. There was evidence that
Mr. Burnette caused physical harm to J.K, a household member, by pulling him from their shared
bed and repeatedly punching him. See R.C. 2919.25(A). There was evidence that Mr. Burnette
knowingly restrained J.K.’s liberty when he ignored J.K.’s protests and held him down on the bed.
See R.C. 2905.03(A). Finally, there was evidence that Mr. Burnette recklessly caused J.K. to
suffer inconvenience, annoyance, or alarm by engaging in fighting. See R.C. 2917.11(A)(1). Mr.
Burnette has not challenged any of the specific elements of his three offenses. His argument
consists strictly of a recitation of the sufficiency of the evidence standard and related case law.
Absent any further argument on his part, this Court declines to engage in a more exhaustive review
of his convictions. See App.R. 16(A)(7); Cardone v. Cardone, 9th Dist. Summit No. 18349, 1998
WL 224934, *8 (May 6, 1998). Mr. Burnette has not shown that his convictions are based on
insufficient evidence. Accordingly, his first assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 2
[MR. BURNETTE’S] CONVICTION WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
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{¶10} In his second assignment of error, Mr. Burnette argues that his convictions are
against the manifest weight of the evidence. This Court disagrees.
{¶11} When considering whether a conviction is against the manifest weight of the
evidence, this Court must:
review 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). A reversal on this basis is reserved for
the exceptional case in which the evidence weighs heavily against the conviction. Id., citing State
v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).
{¶12} Apart from J.K.’s testimony, the State introduced J.K.’s 911 call, testimony from
two police officers who responded to that call, and pictures of J.K.’s injuries. J.K. called 911
within minutes of being punched by Mr. Burnette and informed the dispatcher that Mr. Burnette
had attacked him. Officer Danielle Slichenmyer described how J.K. had blood on his face when
she arrived. She noted that J.K. appeared upset, was shaking, and had tears in his eyes. Officer
Phillip Coe testified that he spoke with Mr. Burnette for over an hour at the scene. Officer Coe
testified that Mr. Burnette was calm and admitted yelling at J.K. through the locked bedroom door
before breaking through the door, grabbing J.K. by the leg, and pulling him off the bed. He also
admitted that he punched J.K. in the face when J.K. bit his thumb. The pictures the police took of
J.K. showed redness to his back and arm as well as blood around his nose. The pictures also
showed damage to the bedroom door in the apartment.
{¶13} Mr. Burnette testified in his own defense. He acknowledged that he broke through
the locked door of the bedroom he shared with J.K. because J.K. would not open it. He denied
that he punched J.K. in the back but admitted that he grabbed J.K.’s leg and pulled him off the bed.
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According to Mr. Burnette, J.K. then kicked him in the chest, so he tackled J.K. onto the bed and
tried to restrain him while J.K. grabbed at his face and hit him multiple times. Mr. Burnette
testified that he held J.K. down until J.K. bit his thumb, causing him an immense amount of pain.
Mr. Burnette testified that he repeatedly yelled at J.K. to release his thumb, but J.K. held on. Mr.
Burnette then punched J.K. once in the face to free his thumb. Mr. Burnette introduced pictures
showing marks on his own face and a mark on his thumb where J.K. had bitten him.
{¶14} Having reviewed the record, this Court cannot conclude that the jury clearly lost its
way and created a manifest miscarriage of justice when it found Mr. Burnette guilty of his three
offenses. See Otten, 33 Ohio App.3d at 340. While Mr. Burnette claims that his convictions are
against the manifest weight of the evidence, he has not challenged any of the specific testimony or
evidence introduced at trial as lacking in credibility. See App.R. 16(A)(7). Nor has he argued that
the jury lost its way by rejecting his claim of self-defense. His argument is limited to an
unsupported statement that the jury “substituted opinion and speculation for factual evidence” in
finding him guilty. Yet, the jury had evidence before it that J.K.’s injuries were consistent with
J.K.’s version of the events. To the extent there were differences or conflicts in the testimony at
trial, the jury was in the best position to assess the credibility of the testifying witnesses. See State
v. Brown, 9th Dist. Lorain No. 20CA011618, 2021-Ohio-2540, ¶ 48. Mr. Burnette has not shown
that this is the exceptional case where the evidence weighs heavily against his convictions. See
Otten at 340, citing Martin, 20 Ohio App.3d at 175. As such, his second assignment of error is
overruled.
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ASSIGNMENT OF ERROR NO. 3
THE TRIAL COURT ERRED WHEN IT ALLOWED OVER DEFENSE
OBJECTION TESTIMONY FROM POLICE OFFICER THAT [MR.
BURNETTE] WAS DETERMINED TO BE THE PRIMARY AGGRESSOR
WHICH WAS IRRELEVANT AND UNFAIRLY PREJUDICIAL TO [MR.
BURNETTE].
{¶15} In his third assignment of error, Mr. Burnette argues that the trial court erred when
it allowed a police officer to testify that he was the primary physical aggressor in the incident that
occurred between him and J.K. For the following reasons, this Court rejects his argument.
{¶16} Under Evid.R. 403(A), otherwise relevant evidence “is not admissible if its
probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the
issues, or of misleading the jury.” The exclusion of relevant evidence under Evid.R. 403(A) rests
within the discretion of the trial court. State v Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, ¶
107, citing State v. Sage, 31 Ohio St.3d 173 (1987), paragraph two of the syllabus. When
considering a trial court’s decision to exclude evidence under Evid.R. 403(A), this Court is
“mindful that ‘the exclusion of evidence under Evid.R. 403(A) is even more of a judgment call
than determining whether the evidence has logical relevance in the first place.’” State v.
Thompson, 9th Dist. Wayne No. 15AP0016, 2016-Ohio-4689, ¶ 25, quoting State v. Yarbrough,
95 Ohio St.3d 227, 2002-Ohio-2126, ¶ 40.
{¶17} Officer Coe responded to J.K.’s 911 call, spoke with Mr. Burnette for over an hour
at the scene, and consulted with the other responding officers. He testified that, in domestic
violence situations, department protocol dictates that responding officers identify the primary
physical aggressor so that an arrest can be made. In the event the primary physical aggressor
cannot be identified, Officer Coe testified, the police will work with the individuals involved to
create a safety plan. Officer Coe explained that several factors are taken into account in a primary
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physical aggressor determination, including the narrative offered by each party and the types of
injuries each party has sustained.
{¶18} Officer Coe testified that the police arrested Mr. Burnette because they identified
him as the primary physical aggressor. He explained that the police reached that decision because
J.K. had separated himself from Mr. Burnette in the wake of their verbal disagreement, Mr.
Burnette had broken through the bedroom door to reengage with J.K., the injuries Mr. Burnette
had sustained appeared to be defensive injuries (i.e., injuries he sustained while J.K. was trying to
defend himself), and the injuries J.K. had sustained did not appear to be defensive injuries.
{¶19} Mr. Burnette argues that the trial court erred when it allowed Officer Coe to testify
that he was the primary physical aggressor. He argues that he was unfairly prejudiced by that
testimony because neither the domestic violence statute, nor the unlawful restraint statute requires
the trier of fact to make a primary physical aggressor determination. According to Mr. Burnette,
Officer Coe’s testimony misled and confused the jury.
{¶20} Having reviewed the record, this Court cannot conclude that the trial court erred
when it admitted Officer Coe’s testimony. “The issue of who the primary aggressor is in an
altercation is not an element of domestic violence[,]” State v. Boldin, 11th Dist. Geauga No. 2007-
G-2808, 2008-Ohio-6408, ¶ 78, but that issue “may become relevant at trial when a defendant
asserts self-defense * * *.” State v. Greig, 5th Dist. Stark No. 2014CA00012, 2014-Ohio-4063, ¶
23. See also State v. Inman, 9th Dist. Medina No. 03CA0099-M, 2004-Ohio-1420, ¶ 15. Mr.
Burnette argued self-defense at trial, and Officer Coe’s testimony was relevant to his claim that he
was only defending himself from J.K. Moreover, the record reflects that Officer Coe never offered
an opinion on the ultimate issue of whether Mr. Burnette was guilty of domestic violence or
unlawful restraint. See Greig at ¶ 23 (“An officer’s testimony regarding the primary aggressor
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does not invade the province of the factfinder because the officer is not opining on the ultimate
issue in the case.”). Officer Coe readily admitted that he did not witness the incident between Mr.
Burnette and J.K., he had to rely on the information they provided, an arrest does not equate to a
finding of guilt beyond a reasonable doubt, and it was not his job to determine whether someone
was guilty beyond a reasonable doubt. Mr. Burnette has not shown that the probative value of the
officer’s testimony was “substantially outweighed by the danger of unfair prejudice, of confusion
of the issues, or of misleading the jury.” Evid.R. 403(A). Accordingly, this Court cannot conclude
that the trial court abused its discretion by admitting it. See Skatzes, 104 Ohio St.3d 195, 2004-
Ohio-6391, at ¶ 107. Mr. Burnette’s third assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 4
[MR. BURNETTE] RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.
{¶21} In his fourth assignment of error, Mr. Burnette argues that he received ineffective
assistance of counsel. This Court disagrees.
{¶22} In order to demonstrate ineffective assistance of counsel, a defendant most show
(1) deficiency in the performance of counsel “so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment” and (2) that the errors made by
counsel were “so serious as to deprive the defendant of a fair trial[.]” Strickland v. Washington,
466 U.S. 668, 687 (1984). A defendant must demonstrate prejudice by showing that, but for
counsel’s errors, there is a reasonable possibility that the outcome of the trial would have been
different. Id. at 694. “A defendant’s failure to satisfy one prong of the Strickland test negates a
court’s need to consider the other.” State v. Madrigal, 87 Ohio St.3d 378, 389 (2000), citing
Strickland at 697. In applying this test, “a court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance[.]” Strickland at 689.
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Debatable trial strategy, for example, does not constitute ineffective assistance of counsel. State
v. Jones, 9th Dist. Summit No. 29706, 2021-Ohio-1050, ¶ 21, quoting State v. Shirley, 9th Dist.
Summit No. 20569, 2002 WL 5177, *7 (Jan. 2, 2002).
{¶23} First, Mr. Burnette argues that he received ineffective assistance of counsel because
his attorney failed to move for a judgment of acquittal at the close of the State’s case. According
to Mr. Burnette, he was prejudiced by his attorney’s failure to do so because a defendant cannot
raise a sufficiency argument on appeal without having moved for acquittal under Crim.R. 29. Mr.
Burnette is mistaken, however, as “a Crim.R. 29 motion is not necessary to preserve the issue of
sufficiency for appeal.” State v. Good, 9th Dist. Wayne Nos. 10CA0056, 10CA0057, 2011-Ohio-
5077, ¶ 26. This Court has reviewed Mr. Burnette’s sufficiency argument on the merits and has
concluded that his convictions are based on sufficient evidence. See Discussion of Assignment of
Error Number One, supra. Because Mr. Burnette has not established prejudice as a result of his
attorney’s failure to move for a judgment of acquittal, this Court rejects his argument to the
contrary. See Strickland, 466 U.S. at 687.
{¶24} Second, Mr. Burnette argues that he received ineffective assistance of counsel
because his attorney failed to ask him certain questions on redirect. When testifying on cross-
examination, Mr. Burnette agreed that pulling someone out of bed could cause them injury.
According to Mr. Burnette, he sustained prejudice when his attorney failed to have him clarify on
redirect that it was never his intent to injure J.K.
{¶25} This Court has routinely held that “[d]ebatable trial tactics do not give rise to a
claim of ineffective assistance of counsel.” State v. Patton, 9th Dist. Wayne No. 19AP0028, 2021-
Ohio-1230, ¶ 10. Mr. Burnette’s attorney may well have made a tactical decision not to explore
certain issues on redirect. See State v. Chisolm, 9th Dist. Lorain No. 05CA008782, 2006-Ohio-
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5051, ¶ 19 (“[A]n attorney’s decisions as to whether or not to question a witness and the extent of
such questioning are tactical matters.”). Moreover, when Mr. Burnette’s attorney asked him about
pulling J.K. from the bed on direct examination, Mr. Burnette specifically testified that he wished
he had acted differently that evening and that he never intended to cause J.K. harm because he
loved him. The jury, therefore, heard Mr. Burnette testify that he never intended to hurt J.K. Mr.
Burnette has not shown that he was prejudiced by his attorney’s failure to repeat that line of
questioning on redirect. Thus, his fourth assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 5
[MR.] BURNETTE’S SENTENCING IS EXCESSIVE, CONTRARY TO LAW
AND VIOLATES DUE PROCESS, IS A RESULT OF COURT’S PUNISHMENT
FOR [MR. BURNETTE] NOT SPEAKING AT SENTENCE AND NOT
ACCEPTING RESPONSIBILITY WITH PROBATION; SENTENCE IS NOT
SUPPORTED BY THE RECORD AND WITHOUT MAKING THE REQUISITE
STATUTORY FINDING.
{¶26} In his fifth assignment of error, Mr. Burnette argues that the trial court erred when
it sentenced him to a jail term of 90 days. He argues that the court failed to consider any of the
sentencing factors set forth in R.C. 2929.22 and that his sentence amounted to a punishment based
on his perceived failure to accept responsibility. For the following reasons, this Court rejects his
argument.
{¶27} “A trial court has discretion when imposing sentence for misdemeanors.” State v.
Zappa, 9th Dist. Wayne No. 20AP0025, 2022-Ohio-243, ¶ 34, citing R.C. 2929.22(A). See also
State v. Senz, 9th Dist. Medina No. 17CA0001-M, 2018-Ohio-628, ¶ 34, quoting State v. Woody,
9th Dist. Lorain No. 14CA010679, 2016-Ohio-631, ¶ 15. Consequently, we review misdemeanor
sentences for an abuse of discretion unless the sentence is contrary to law. Senz at ¶ 34, quoting
Woody at ¶ 15, quoting State v. Schneider, 9th Dist. Wayne No. 09CA0026, 2009-Ohio-6025, ¶ 6.
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{¶28} “‘“[I]t is well recognized that a trial court abuses its discretion when, in imposing
a sentence for a misdemeanor, it fails to consider the factors set forth in R.C. 2929.22.”’” State v.
Seidowsky, 9th Dist. Medina No. 13CA0037-M, 2015-Ohio-4311, ¶ 6, quoting State v. Endress,
9th Dist. Medina No. 08CA0011-M, 2008-Ohio-4498, ¶ 3, quoting State v. Smith, 9th Dist. Wayne
No. 05CA0006, 2006-Ohio-1558, ¶ 21. Yet, “‘[a] trial court is presumed to have considered the
factors set forth in R.C. 2929.22 “absent an affirmative showing to the contrary.”’” Seidowsky at
¶ 6, quoting Endress at ¶ 4, quoting Smith at ¶ 21. “The burden of demonstrating this error falls
to the appellant.” Endress at ¶ 4.
{¶29} Mr. Burnette argues that the record is devoid of any indication that the trial court
considered each of the factors set forth in R.C. 2929.22. He notes that J.K. failed to attend the
sentencing hearing to offer a victim-impact statement in person. Further, he notes he had no prior
record, he was voluntarily engaged in anger management counseling at the time of sentencing, and
his attorney explained that he would not be speaking at the sentencing hearing because he intended
to appeal. According to Mr. Burnette, the trial court was “upset and offended” by his refusal to
accept the blame for his fight with J.K. at sentencing or during his pre-sentence investigation
interview. He claims that his 90-day jail sentence amounts to an improper punishment rather than
a penalty the court imposed after properly considering the factors set forth in R.C. 2929.22.
{¶30} Upon review, this Court rejects Mr. Burnette’s argument. Although Mr. Burnette’s
conviction for domestic violence was a first-degree misdemeanor that was punishable by up to 180
days in jail, see R.C. 2919.25(A)/(D)(2) and 2929.24(A)(1), the trial court only sentenced him to
90 days in jail. In imposing that jail term, the court noted that it had considered the pre-sentence
investigation report, Mr. Burnette’s failure to express remorse, the fact that he had attacked J.K.
while J.K. was lying in bed, Mr. Burnette’s lack of criminal history, and his willingness to begin
13
anger management counseling. The court also noted that it had considered a written statement that
had been submitted by J.K. and the fact that Mr. Burnette’s conduct had clearly “harmed him
emotionally as well as physically.” There is nothing in the record to suggest that the trial court
failed to consider the factors set forth in R.C. 2929.22. “As noted above, [this Court] must presume
that the trial court considered the factors set forth in R.C. 2929.22 in misdemeanor sentencing.”
State v. Hatten, 9th Dist. Medina No. 19CA0040-M, 2019-Ohio-5401, ¶ 9. Because Mr. Burnette
has not met his burden of making ‘““an affirmative showing to the contrary,”’” this Court rejects
his argument. Seidowsky, 2015-Ohio-4311, at ¶ 6, quoting Endress, 2008-Ohio-4498, at ¶ 4,
quoting Smith, 2006-Ohio-1558, at ¶ 21.
{¶31} To the extent Mr. Burnette also attempts to argue that his 90-day jail sentence is
excessive, this Court notes that his pre-sentence investigation report has not been made a part of
the record. Both the State and the trial court relied on the pre-sentence investigation report at
sentencing, but the report was never filed. “Given the absence of the [pre-sentence] report from
the record, [this Court is] unable to fully review whether the trial court abused its discretion in
sentencing [Mr. Burnette] and [] must presume regularity.” State v. Vigilante, 9th Dist. Medina
No. 14CA0039-M, 2015-Ohio-4221, ¶ 18. Accord Hatten at ¶ 10. As such, Mr. Burnette’s fifth
assignment of error is overruled.
III.
{¶32} Mr. Burnette’s assignments of error are overruled. The judgment of the Wayne
County Municipal Court is affirmed.
Judgment affirmed.
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There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Wayne County
Municipal Court, County of Wayne, 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.
LYNNE S. CALLAHAN
FOR THE COURT
CARR, P. J.
SUTTON, J.
CONCUR.
APPEARANCES:
WESLEY A. JOHNSTON, Attorney at Law, for Appellant.
DANIEL R. LUTZ, Prosecuting Attorney, and FREELAND OLIVERIO, Assistant Prosecuting
Attorney, for Appellee.