State v. Stock

[Cite as State v. Stock, 2018-Ohio-4805.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. John W. Wise, P.J
Plaintiff – Appellee Hon. William B. Hoffman, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 2017 CA 00199
PAUL STOCK
Defendant – Appellant O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Stark County Court of
Common Pleas, Case No. 2017 CR 0211
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 3, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO JACOB T. WILL
Prosecuting Attorney 116 Cleveland Avenue, N.W.
Stark County, Ohio 808 Courtyard Centre
Canton, Ohio 44702
KRISTINE W. BEARD
Assistant Prosecuting Attorney
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2017 CA 00199 2
Hoffman, J.
{¶1} Appellant Paul Stock, III appeals the judgment entered by the Stark County
Common Pleas Court convicting him of two counts of gross sexual imposition (R.C.
2907.05(A)(4)) and sentencing him to four years incarceration on each count, to be
served consecutively. Appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant is the maternal grandfather of two boys, born in 2005 and 2008.
The children called Appellant Pap Pap. The boys would often sleep over with their
grandparents, and sometimes would take turns watching television and sleeping in
Appellant’s bed. Appellant and his wife slept in separate bedrooms due to health issues.
{¶3} Unbeknownst to each other, Appellant engaged in touching the penis and
butt of each of the boys while they were in his bed. The older boy knew the touching was
bad and he needed to tell someone. Finally, he asked his younger brother if Appellant
was touching him as well. When the younger boy confirmed Appellant was touching him
in the same manner, the older grandson realized he had to tell his mom.
{¶4} On October 21, 2016, when the boys’ father was out of town and they were
alone with their mother, their mother came out of the shower and found the boys crying.
When she asked what was wrong, they told her Pap Pap was sexually abusing them.
Prior to this time, the younger boy was wetting the bed, and his teacher reported he came
to school crying every day; however, he did not tell his parents what was wrong. She
reported the incident immediately to the abuse hotline.
{¶5} The case was referred to Summit County Department of Jobs and Family
Services for investigation because mother was employed by Stark County Department of
Jobs and Family Services in Stark County. The boys were evaluated at Northeast Ohio
Stark County, Case No. 2017 CA 00199 3
Behavioral Health and were examined medically at Akron Children’s Hospital. During
both exams, each boy disclosed Appellant touched his penis and his anus.
{¶6} Appellant was confronted by his daughter, the boys’ aunt, about the
allegations. Appellant claimed the older boy made Appellant touch his penis. Appellant
also told her the boy would walk in when Appellant was in the bathroom, and Appellant
implied there was sexual contact. Appellant denied any touching when he spoke to law
enforcement.
{¶7} Appellant was charged with one count of rape and two counts of gross
sexual imposition. The case proceeded to jury trial in the Stark County Common Pleas
Court. Appellant testified at trial the older boy had initiated touching, but he did not
provide this information to law enforcement, nor did he discuss it with the boy’s parents.
He denied all charges.
{¶8} The jury found Appellant not guilty of the charge of rape, but guilty of both
counts of gross sexual imposition. He was sentenced to four years incarceration on each
count, to be served consecutively, for an aggregate term of eight years incarceration.
{¶9} It is from the September 20, 2017 judgment of conviction and sentence
Appellant prosecutes his appeal, assigning as error:
I. THE DEFENDANT’S CONVICTION FOR TWO COUNTS OF
GROSS SEXUAL IMPOSITION IN VIOLATION OF R.C. 2907.05 WERE
[SIC] AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE
EVIDENCE.
Stark County, Case No. 2017 CA 00199 4
II. APPELLANT WAS DENIED A FAIR TRIAL DUE TO
PROSECUTORIAL MISCONDUCT.
III. THE TRIAL COURT ERRED IN DENYING THE APPELLANT’S
MOTION FOR A MISTRIAL.
I.
{¶10} In his first assignment of error, Appellant argues the judgment is against the
manifest weight and sufficiency of the evidence. He argues the State failed to prove the
conduct occurred based on a lack of physical evidence and the lack of credibility of the
State’s witnesses. He further argues the State failed to prove if the conduct did in fact
occur, it was done for the purpose of sexual gratification.
{¶11} In determining whether a verdict is against the manifest weight of the
evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record,
weighs the evidence and all reasonable inferences, considers the credibility of witnesses,
and determines whether in resolving conflicts in evidence 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, 78 Ohio St. 3d 380, 387, 1997-Ohio-52, 678
N.E.2d 541, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1983).
{¶12} An appellate court's function when reviewing the sufficiency of the evidence
is to determine whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492,
paragraph two of the syllabus (1991).
Stark County, Case No. 2017 CA 00199 5
{¶13} We note 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). The trier of fact “has the best opportunity to view the demeanor, attitude, and
credibility of each witness, something that does not translate well on the written page.”
Davis v. Flickinger, 77 Ohio St. 3d 415, 418, 674 N.E.2d 1159 (1997).
{¶14} Appellant was convicted of two counts of gross sexual imposition in violation
of R.C. 2907.05(A)(4):
(A) No person shall have sexual contact with another, not the spouse
of the offender; cause another, not the spouse of the offender, to have
sexual contact with the offender; or cause two or more other persons to
have sexual contact when any of the following applies:
(4) The other person, or one of the other persons, is less than thirteen
years of age, whether or not the offender knows the age of that person.
{¶15} Sexual contact is defined by R.C. 2907.01(B) as “any touching of an
erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic
region, or, if the person is a female, a breast, for the purpose of sexually arousing or
gratifying either person.”
{¶16} The mother of the boys testified on October 21, 2016, the boys disclosed to
her Appellant was touching their penises and butts when they spent the night at his house.
She testified prior to the disclosure, the younger boy had been wetting the bed, crying at
Stark County, Case No. 2017 CA 00199 6
school, and slipping academically. After the disclosure, these unexplained behaviors
subsided.
{¶17} Both boys testified at trial. The older boy testified when he visited his
grandparents, he sometimes slept in Appellant’s bedroom. When he slept in his
grandfather’s bed, his grandfather would take the boy’s pants off and touch his penis and
his butt. He testified one day when his mom was taking a shower, he asked his younger
brother if Pap Pap touched him, and his brother replied he did. He then knew they had
to tell their mom about the sexual abuse.
{¶18} The younger boy testified his grandfather would reach inside his pants and
touch his private parts, which he referred to as his pee-pee and butt. He testified
sometimes his older brother was in the room, but he could not see because the touching
occurred under the covers.
{¶19} The boys’ aunt testified Appellant told her one time the older boy made him
touch the boy’s crotch. Appellant also told her the boy would walk in when Appellant was
in the bathroom, and Appellant implied there was sexual contact.
{¶20} Carrie Schnirring, a psychological assistant at Northeast Ohio Behavioral
Health, testified the older boy disclosed memories about sexual abuse on multiple
occasions. He told Schnirring on one occasion, Appellant took off his clothes and digitally
penetrated the boy’s anus with his finger. He said on that night he cried himself to sleep
because he realized he really needed to tell someone, but he was afraid. The younger
boy related to her something happened in Appellant’s bedroom which made him scared
and sad. He told Schnirring Appellant started by rubbing his back, then moved to putting
his hands inside the boy’s pants, touching his penis and butt.
Stark County, Case No. 2017 CA 00199 7
{¶21} Donna Abbott, a nurse practitioner at Akron Children’s Hospital, took a
medical history from both boys and performed physical exams. The video of each child’s
medical history was played for the jury. The boys stated Appellant had fondled their
penises and buttocks. Although neither boy showed physical signs of abuse, she testified
this was not inconsistent with their history.
{¶22} Based on this testimony, we find the State presented sufficient testimony
which, if believed by the jury, supported the jury’s conclusion the touching occurred.
{¶23} We further find the verdicts finding Appellant engaged in sexual contact with
the boys is not against the manifest weight of the evidence. The jury was in a better
position than this court to judge the credibility of the witnesses. In addition to the boys’
mother, aunt, and the medical professionals, the jury heard the testimony of both boys
and viewed the videos of the boys’ recounting the incidents at Akron Children’s Hospital.
While Appellant notes he was acquitted of the charge of rape, the jury may have
considered the lack of physical findings and the older boy’s failure to disclose anal
penetration in each recounting of the sexual abuse. Although Appellant testified the
touching did not happen as described by the boys and any touching was initiated by the
older boy, he did not relay this explanation to law enforcement when initially questioned,
nor did he discuss the behavior with his daughter and her husband when it allegedly
occurred. Further, he did not discuss the inappropriateness of the alleged behavior with
his grandson. We find the jury did not lose its way in finding the touching occurred.
{¶24} Appellant further argues the State failed to prove any touching was for
purposes of sexual gratification.
Stark County, Case No. 2017 CA 00199 8
{¶25} There is no requirement the State present direct testimony regarding sexual
arousal or gratification. State v. Astley, 36 Ohio App. 3d 247, 523 N.E.2d 322 (10th Dist.
Franklin 1987); State v. Cobb, 81 Ohio App. 3d 179, 610 N.E.2d 1009 (9th Dist. Lorain
1991); In Re Anderson, 116 Ohio App. 3d 441, 688 N.E.2d 545 (Twelfth Dist. Clermont
1996); State v. Brady, 5th Dist. Stark No. 2000CA00223, 2001 WL 815574 (July 9, 2001).
In the absence of direct testimony regarding sexual arousal or gratification, the trier of
fact may infer the defendant was motivated by desires for sexual arousal or gratification
from the “type, nature and circumstances of the contact, along with the personality of the
defendant.” Cobb, supra.
{¶26} Both children testified they were touched by Appellant in his bed, with the
lights off, under the covers. Each child felt angry and scared by the touching. Neither
boy related the touching occurred under circumstances which would be normal for
children of their ages. From the circumstances of the offenses, the jury could infer the
touching occurred for purposes of sexual arousal or gratification.
{¶27} We find the judgment is not against the manifest weight or sufficiency of the
evidence. The first assignment of error is overruled.
II.
{¶28} In his second assignment of error, Appellant argues the prosecutor
committed misconduct in closing argument. Appellant argues the following statement
made by the prosecutor in closing argument improperly shifted the burden of proof to the
defense:
Stark County, Case No. 2017 CA 00199 9
Was the touching done for the purpose of sexual gratification?
You’ve heard no evidence to the contrary. What this means is that the law
doesn’t want to penalize someone for accidentally doing this. There was
no accident; he purposefully did it. Or, too, for some lawful reason.
Applying medication to a child, not illegal. But there’s no evidence of that.
The Defendant wasn’t trying to help Cameron or put lotion on a body part
or give him a bath. None - - there was no evidence that this was done for
any reason other than the Defendant’s sexual gratification.
{¶29} Tr. (III) 790-91.
{¶30} Appellant did not object to the argument, and therefore we must find plain
error in order to reverse. The Ohio Supreme Court has recently clarified the standard of
review for plain error:
Crim.R. 52(B) affords appellate courts discretion to correct “[p]lain
errors or defects affecting substantial rights” notwithstanding an accused's
failure to meet his obligation to bring those errors to the attention of the trial
court. However, the accused bears the burden to demonstrate plain error
on the record, State v. Quarterman, 140 Ohio St. 3d 464, 2014–Ohio–4034,
19 N.E.3d 900, ¶ 16, and must show “an error, i.e., a deviation from a legal
rule” that constitutes “an ‘obvious' defect in the trial proceedings,” State v.
Barnes, 94 Ohio St. 3d 21, 27, 759 N.E.2d 1240 (2002).
Stark County, Case No. 2017 CA 00199 10
Even if the error is obvious, it must have affected substantial rights,
and “[w]e have interpreted this aspect of the rule to mean that the trial
court's error must have affected the outcome of the trial.” Id. We recently
clarified in State v. Rogers, 143 Ohio St. 3d 385, 2015–Ohio–2459, 38
N.E.3d 860, that the accused is “required to demonstrate a reasonable
probability that the error resulted in prejudice—the same deferential
standard for reviewing ineffective assistance of counsel claims.” (Emphasis
sic.) Id. at ¶ 22, citing United States v. Dominguez Benitez, 542 U.S. 74,
81–83, 124 S. Ct. 2333, 159 L. Ed. 2d 157 (2004).
If the accused shows that the trial court committed plain error
affecting the outcome of the proceeding, an appellate court is not required
to correct it; we have “admonish[ed] courts to notice plain error ‘with the
utmost caution, under exceptional circumstances and only to prevent a
manifest miscarriage of justice.’ ” (Emphasis added.) Barnes at 27, 759
N.E.2d 1240, quoting State v. Long, 53 Ohio St. 2d 91, 372 N.E.2d 804
(1978), paragraph three of the syllabus.
{¶31} State v. Thomas, 152 Ohio St. 3d 15, 92 N.E.3d 821, 2017–Ohio–8011, ¶¶
32–34.
{¶32} The test for prosecutorial misconduct is whether the prosecutor's remarks
and comments were improper and if so, whether those remarks and comments
prejudicially affected the substantial rights of the accused. State v. Lott, 51 Ohio St. 3d
160, 555 N.E.2d 293 (1990), cert. denied, 498 U.S. 1017, 111 S. Ct. 591, 112 L. Ed. 2d 596
Stark County, Case No. 2017 CA 00199 11
(1990). In reviewing allegations of prosecutorial misconduct, we must review the
complained-of conduct in the context of the entire trial. Darden v. Wainwright, 477 U.S.
168, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986). Prosecutorial misconduct will not provide a
basis for reversal unless the misconduct can be said to have deprived appellant of a fair
trial based on the entire record. Lott, supra, 51 Ohio St.3d at 166, 555 N.E.2d 293.
{¶33} The prosecutor may comment on the failure of the defendant to present
exculpatory evidence:
It is long-standing precedent that the state may comment upon a
defendant's failure to offer evidence in support of its case. State v.
D'Ambrosio (1993), 67 Ohio St. 3d 185, 193, 616 N.E.2d 909, 916; State v.
Williams (1986), 23 Ohio St. 3d 16, 20, 23 OBR 13, 17, 490 N.E.2d 906,
911; State v. Petro (1948), 148 Ohio St. 473, 498, 36 Ohio Op. 152, 162, 76
N.E.2d 355, 367; and State v. Champion (1924), 109 Ohio St. 281, 289-
290, 142 N.E. 141, 143-144. Such comments do not imply that the burden
of proof has shifted to the defense, nor do they necessarily constitute a
penalty on the defendant's exercise of his Fifth Amendment right to remain
*528 silent. A prosecutor may jeopardize the integrity of a trial by
commenting on a criminal defendant's decision not to testify. State v.
Thompson (1987), 33 Ohio St. 3d 1, 4, 514 N.E.2d 407, 411, citing Griffin v.
California (1965), 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106, 32 O.O.2d
437. Nevertheless, the prosecutor is not precluded from challenging the
weight of the evidence offered in support of an exculpatory theory presented
Stark County, Case No. 2017 CA 00199 12
by the defense. See State v. Watson (1991), 61 Ohio St. 3d 1, 9, 572 N.E.2d
97, 105-106. Neither must the state, in order to satisfy its own burden of
proof, disprove every speculative set of possibly exculpatory circumstances
a defendant can suggest, nor refrain from arguing the defendant's failure to
provide evidence to support proffered theories of excuse or innocence.
{¶34} State v. Collins, 89 Ohio St. 3d 524, 527-78, 2000-Ohio-231, 733 N.E.2d
1118.
{¶35} We disagree with Appellant the above-quoted statement by the prosecutor
improperly shifted the burden of proof. As discussed in the first assignment of error, the
State need not present direct testimony of sexual gratification or arousal; rather, the
purpose of the sexual contact may be inferred from the type, nature, and circumstances
of the contact. Cobb, supra. The prosecutor’s comments were fair commentary on the
inference the jury could draw from the contact, as there was no evidence in the record to
suggest the touching occurred for a legitimate reason. Appellant presented a complete
defense: the touching did not occur as testified to by the boys. He never argued the
touching occurred for some reason other than sexual gratification. We find no plain error
in the prosecutor’s comment in closing argument.
{¶36} The second assignment of error is overruled.
III.
{¶37} In his third assignment of error, Appellant argues the trial court erred in
denying his motion for mistrial based on an alleged discovery violation by the State.
Stark County, Case No. 2017 CA 00199 13
{¶38} During trial, the mother of the boys testified the boys were in ongoing trauma
based therapy. Appellant moved for mistrial based on the State’s failure to disclose the
medical records from the ongoing counseling sessions in discovery. The trial court
overruled the motion. However, before the end of trial, the State secured the records for
in camera review by the trial court. After reviewing the records, the trial court found, “The
court’s review of those records indicates that there is nothing even remotely exculpatory
or helpful to Defense.” Tr. (III) 764-765.
{¶39} A mistrial should not be ordered in a criminal case merely because some
error or irregularity has intervened. State v. Reynolds, 49 Ohio App. 3d 27, 33, 550 N.E.2d
490, 497 (1988). The granting of a mistrial is necessary only when a fair trial is no longer
possible. State v. Franklin, 62 Ohio St. 3d 118, 127, 580 N.E.2d 1, 9 (1991). When
reviewed by the appellate court, we should examine the climate and conduct of the entire
trial, and reverse the trial court's decision as to whether to grant a mistrial only for a gross
abuse of discretion. State v. Draughn, 76 Ohio App. 3d 664, 671, 602 N.E.2d 790, 793–
794 (1992).
{¶40} Crim. R. 16(B) provides:
(B) Discovery: Right to Copy or Photograph. Upon receipt of a written
demand for discovery by the defendant, and except as provided in division
(C), (D), (E), (F), or (J) of this rule, the prosecuting attorney shall provide
copies or photographs, or permit counsel for the defendant to copy or
photograph, the following items related to the particular case indictment,
information, or complaint, and which are material to the preparation of a
Stark County, Case No. 2017 CA 00199 14
defense, or are intended for use by the prosecuting attorney as evidence at
the trial, or were obtained from or belong to the defendant, within the
possession of, or reasonably available to the state, subject to the provisions
of this rule:
(1) Any written or recorded statement by the defendant or a co-
defendant, including police summaries of such statements, and including
grand jury testimony by either the defendant or co-defendant;
(2) Criminal records of the defendant, a co-defendant, and the record
of prior convictions that could be admissible under Rule 609 of the Ohio
Rules of Evidence of a witness in the state’s case-in-chief, or that it
reasonably anticipates calling as a witness in rebuttal;
(3) Subject to divisions (D)(4) and (E) of this rule, all laboratory or
hospital reports, books, papers, documents, photographs, tangible objects,
buildings, or places;
(4) Subject to division (D)(4) and (E) of this rule, results of physical
or mental examinations, experiments or scientific tests;
(5) Any evidence favorable to the defendant and material to guilt or
punishment;
{¶41} Crim. R. 16(J) provides materials which are privileged or confidential are
not subject to disclosure.
{¶42} The State argues the rule does not apply because the counseling records
were not in the possession of the State. However, the rule provides for discovery of
Stark County, Case No. 2017 CA 00199 15
materials “within the possession of, or reasonably available to the state.” We find the
records were “reasonably available” to the State pursuant to Crim. R. 16(B). The boys’
mother testified she told the prosecutor they were continuing with counseling. Tr. (II) 387.
Further, the prosecutor was able to obtain the records during the course of a three-day
jury trial.
{¶43} However, Crim. R. 16(J) provides a limitation on discovery of materials
which are confidential. In State v. Brown, 5th Dist. Delaware No. 2005CAA01002, 2005-
Ohio-5639, we found no error in the trial court’s failure to conduct an in camera inspection
of confidential counseling records:
Under certain circumstances, a defendant is entitled to have
confidential records reviewed in camera by the trial court. Pennsylvania v.
Ritchie (1987), 480 U.S. 39, 58, 107 S. Ct. 989, 94 L. Ed. 2d 40. In Ritchie,
the United States Supreme Court dealt with the issue of a defendant's right
to discover statements made by a minor victim to a children services
agency. The Ritchie court held that the children services agency was
obligated to turn the records over to the trial court for in camera review to
determine the materiality of such records. Id. However, the Ritchie court
also held that a defendant may not require the trial court to search through
confidential records “without first establishing a basis for his claim that it
contains material evidence.” Id. at 58, fn. 15. The Ritchie court, quoting
United States v. Valenzuela-Bernal (1982), 458 U.S. 858, 867, 102 S. Ct.
3440, 73 L. Ed. 2d 1193, held that a defendant “must at least make some
Stark County, Case No. 2017 CA 00199 16
plausible showing of how their testimony would have been both material
and favorable to his defense.”
*In State v. Allan (Feb. 2, 1996), 6th Dist. No. L-94-272, the Court
noted that “[t]here exists little Ohio case law which discusses the initial
showing a defendant must make before he is entitled to an in camera review
of confidential records by the trial court. However, this issue has been
decided in several other states. In People v. Stanaway (1994), 446 Mich.
643, 670-677, 521 N.W.2d 557, the Michigan Supreme Court provides a
synopsis of the approaches taken by several different states in determining
what a defendant must initially show in order to obtain an in camera review
of confidential records. In general, these states have held there must be
some showing that the records do, in fact, contain the alleged information
and there must be some showing that the information is relevant to the
defense. The Stanaway court concluded that a defendant would be entitled
to such in camera inspection if he or she “has a good faith belief, grounded
on some demonstrable fact, that there is a reasonable probability that the
records are likely to contain material information necessary to the defense.”
Id. at 677, 521 N.W.2d 557. In Washington v. Kalakosky (1993), 121
Wash.2d 525, 550, 852 P.2d 1064, the Washington Supreme Court held
that a defendant “must make a particularized showing that [confidential]
records are likely to contain material relevant to the defense” prior to
requiring the court to conduct an in camera inspection”.
Stark County, Case No. 2017 CA 00199 17
The Court in Allan, supra, held “that a defendant is entitled to the trial
court's in camera inspection of children services agency records where the
defendant shows that there is a reasonable probability, grounded on some
demonstrable fact, that the records contain material relevant to the
defense”.
In the case at bar, appellant sought follow-up therapeutic counseling
records of both Lauren and Kimberly. Notably, appellant did not request the
trial court conduct an in camera inspection of the records.
The appellant has not cited any statute which requires these records
to be disclosed. Accordingly, we agree with the court in Allan, supra, that
before the appellant is entitled to have the trial court conduct an in camera
inspection of the counseling records, he is required to demonstrate that
there is a reasonable probability, grounded on some demonstrable fact, that
the records contain material relevant to the defense. Appellant has failed in
this burden. Accordingly, the trial court correctly refused appellant's request
for a release of the counseling records. Further, the trial court was under no
duty to conduct an in camera inspection of the records prior to overruling
appellant's motion to compel.
{¶44} Id. at ¶¶ 68-72.
{¶45} In the instant case, during trial the prosecutor produced the records to the
trial court, and the trial court conducted an in camera inspection. As the counseling
records were confidential, had Appellant known of the existence of the records prior to
Stark County, Case No. 2017 CA 00199 18
trial and made a showing of a reasonable probability, grounded on a demonstrable fact,
the records contained material relevant to the defense, he would only have been entitled
to an in camera inspection of the records, which is what he received in the instant case.
The trial court found the records did not contain anything exculpatory to the defense. The
trial court made the counseling records a part of the record for appellate review. We have
reviewed the counseling records and concur with the trial court’s conclusion.
{¶46} The third assignment of error is overruled. The judgment of the Stark
County Common Pleas Court is affirmed.
By: Hoffman, J.
Wise, P.J. and
Delaney, J. concur