State v. McNamara

[Cite as State v. McNamara, 2016-Ohio-8050.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104168
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JAMES D. MCNAMARA
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-15-600414-A
BEFORE: Kilbane, P.J., Stewart, J., and Blackmon, J.
RELEASED AND JOURNALIZED: December 8, 2016
ATTORNEY FOR APPELLANT
Nathaniel Tosi
2639 Wooster Road
Rocky River, Ohio 44116
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
Andrew J. Santoli
Assistant County Prosecutor
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, P.J.:
{¶1} Defendant-appellant, James McNamara (“McNamara”), was convicted of
rape, kidnapping, illegal use of a minor in nudity-oriented material or performance, and
possessing criminal tools. On appeal, he only challenges his convictions for illegal use
of a minor in nudity-oriented material or performance and possessing criminal tools. For
the reasons set forth below, we affirm.
{¶2} In October 2015, McNamara was charged in a 55-count indictment. Counts
1, 3, 5, and 7 charged him with the rape of his minor stepdaughter, J.R., d.o.b. April 8,
2000. Each of these counts carried a sexually violent predator specification. Counts 2,
4, 6, and 8 charged him with the kidnapping of J.R. and carried a furthermore clause that
the victim was under 18 years of age. Counts 2 and 4 also carried a sexual motivation
specification and a sexually violent predator specification. Counts 9-54 charged
McNamara with the illegal use of a minor in nudity-oriented material or performance.
Count 55 charged him with possessing criminal tools — the laptop computer from which
the images were recovered.
{¶3} The matter proceeded to a bench trial in January 2016, at which the following
evidence was adduced.
{¶4} G.R. is J.R.’s mother. G.R.’s husband, who is also the father of her three
children, passed away in 2006. G.R. began dating McNamara in 2007, after she met him
through online dating. McNamara moved into her home in June 2008. At that time,
G.R. was living in Parma, Ohio with her daughter, J.R., and her sons, A.R. and N.R.
McNamara has two sons, D.M. and S.M. His younger son, S.M., moved with him to
G.R.’s in 2008. McNamara and G.R. eventually married in 2010.
{¶5} J.R. testified that she viewed McNamara as a father figure. The two of them
spent a lot of time together during the course of 2011, and she developed a close bond
with McNamara. J.R. testified that in November 2011, while the two of them were
watching television in the living room, McNamara coerced her to lay on him. He rubbed
her arm for a short period of time and then proceeded to insert his finger into her vagina.
She asked him to stop because it hurt. McNamara responded that he “was just trying to
see how [she] was developing.” J.R. was 11 years old at the time and did not understand
McNamara’s actions. She did not tell her mother because she questioned “whether
[McNamara] was seeing whether [she] was developing and whether he was allowed to or
not because [she] wasn’t sure.” McNamara would also touch J.R.’s breasts and her
buttocks several times a week and tell her that she was “growing with her age.” J.R. did
not tell anyone about this because McNamara told her that he was allowed to see how she
was developing.
{¶6} In February or March of 2012, McNamara again inserted his finger into J.R.’s
vagina while they were on the couch in the living room and covered under a blanket.
During this incident, McNamara penetrated her twice. McNamara told J.R. he wanted to
see how she was developing, and not to tell her mother. In December 2013, J.R. and
McNamara were in the basement sitting on the couch and covered with a blanket.
McNamara was rubbing J.R.’s leg. He then slid his hand up her leg and inserted his
finger into her vagina. She told him that it hurt and asked him to stop. McNamara told
her “[d]on’t tell your mom. I’m just seeing how you’re developing.”
{¶7} J.R. explained that in December 2013 she began to realize that McNamara’s
actions were inappropriate. She did not tell anyone about McNamara’s actions because
she feared the effect her disclosure would have on her developmentally disabled
stepbrother, S.M. Additionally, she stated that she was worried McNamara would hurt
her if she said anything because McNamara was a controlling and intimidating person.
Sometime after the December 2013 incident, J.R. confided in her best friend, M.C., about
what McNamara had done to her. M.C. told her to share this with her mother, but J.R.
hesitated to say anything.
{¶8} In September 2014, J.R. was lying on the couch again with McNamara in the
basement. He was rubbing her legs and then slide his hand into her pants. He tried to
insert his finger into J.R.’s vagina. However, J.R. did not allow it to happen. She stood
up and told him she was going to bed. At this point, J.R. fully realized that McNamara’s
actions were inappropriate. That night she messaged K.G., her brother’s friend, and told
him what just happened with McNamara. A few days later, J.R. told her brother, A.R.,
about the sexual abuse committed by McNamara. Later that afternoon, J.R. decided to
tell her mother that McNamara was sexually abusing her. J.R. felt safer to tell her
mother about the sexual abuse at that time because McNamara was out of town on a
business trip.
{¶9} J.R. further testified that McNamara took pictures of her in August and
September 2014. He told her he was taking pictures of her to see how much muscle she
gained during volleyball. J.R. was dressed in her sports bra and volleyball shorts while
he took the pictures. The photographs depict J.R. flexing her arms, legs, abs, and back
and her squatting. McNamara also took pictures of J.R.’s vagina while she was sleeping
on her bed. The police showed J.R. these pictures after they obtained McNamara’s cell
phone. J.R. identified herself as the individual on the bed because she recognized the
bracelets on her arm and her bed comforter.
{¶10} G.R. testified that she began to date McNamara in 2007, after her husband
and the father of her children passed away. When McNamara moved into her home, he
took over the father-figure role to all of her children. He was very involved in J.R.’s
activities and regularly attended her sporting events and parent-teacher conferences at
school. He was not as involved, however, in N.R. and A.R.’s lives. McNamara
disciplined N.R. and A.R. frequently, yet rarely disciplined J.R. G.R. testified that
McNamara had a tendency “to get mean” and recalled incidents where McNamara
grabbed her by the neck and “knocked out” her son. G.R. further testified that
McNamara disrupted her relationship with J.R. He would always try to get involved into
her and J.R.’s conversations and told G.R. that she was a “lousy mother.” She felt that
McNamara treated J.R. more like his wife than her.
{¶11} When J.R. told G.R. about the sexual abuse, she took J.R. to the Parma
Police Department to report that McNamara had sexually abused her. G.R. gave police
consent to search her home and consent to retrieve McNamara’s laptop. After the police
arrested McNamara, D.M., McNamara’s older son, called G.R. and told her that he found
something on McNamara’s phone that made him upset. McNamara had given D.M. his
cell phone prior to turning himself into the Parma police. D.M. then turned over
McNamara’s phone to the police after he found graphic pictures on McNamara’s phone.
G.R. was shown the images from McNamara’s cell phone by Parma Police Detective
David Sheridan (“Detective Sheridan”). The images were of J.R. lying on her bed, with
an iPad on her chest and a graphic picture of her vagina.
{¶12} G.R. further testified that McNamara was very protective of his electronic
devices and told her that his laptop was no one else’s business. She never observed
anyone else use the laptop, other than McNamara. J.R. also testified that McNamara was
the only person permitted to use his laptop.
{¶13} M.C. is J.R.’s best friend. She met J.R. in fifth grade and they have been
friends since then. When M.C. would spend time at J.R.’s house, she noticed that
McNamara would pay special attention to J.R. M.C. also noticed that McNamara treated
J.R. better than he treated G.R. In the summer of 2013, J.R. confided in M.C. that
McNamara had been inappropriate with her. M.C. testified that J.R. seemed confused as
to what had happened to her and did not seem sure how to tell M.C. At that time, M.C.
did not tell anyone because J.R. told her not to and she did not fully understand the
situation. Approximately one year later, J.R. talked to M.C. again about McNamara
sexually abusing her. At this point, M.C. understood the situation better and could also
tell that J.R. understood the situation better. M.C. then told J.R. that she needed to tell
her family.
{¶14} K.G. is J.R.’s close family friend. He testified that when he was at G.R.’s,
he noticed that McNamara was more hostile toward N.R. and A.R., but was easier on J.R.
and S.M. There were times when he was at G.R.’s house and felt as if McNamara was
flirting with J.R. In early September 2014, he received a phone call from McNamara,
asking him to come over because of the messages he read between K.G. and J.R. K.G.,
who was 17 years old at the time, testified that the messages were about his ex-girlfriend.
McNamara was upset that K.G. and J.R., who was 14 years old at the time, were flirting,
and told him that it better not happen again. He also told K.G., “I’ll wrap your head
around a pole.” G.R. testified that McNamara was screaming at K.G. because he found a
text from K.G. saying that J.R. was “hot and he wouldn’t mind sleeping with her.”
{¶15} Within the next day or two, J.R. messaged K.G. and told him that
McNamara had been abusing her sexually and taking photos of her, but told K.G. not to
tell anyone. K.G. told J.R. that she should tell her mother. At that point, K.G. felt
uncomfortable with McNamara around J.R., so he told A.R., J.R.’s brother.
{¶16} D.M. is McNamara’s older son. In September 2014, McNamara told him
of the allegations made by J.R. D.M. accompanied McNamara to the Parma Police
Department, where McNamara turned himself in. At that time, McNamara gave D.M.
two cell phones for safekeeping. D.M. went through McNamara’s cell phones and
observed graphic photographs of J.R. D.M. testified that he immediately turned over the
cell phones to the Parma police. D.M. further testified about his observations of the
relationship between McNamara and J.R. and thought it was inappropriate.
{¶17} Detective Sheridan was assigned to the case. He received a call from D.M.
regarding graphic photographs on McNamara’s cell phone. Detective Sheridan knew the
graphic photographs on McNamara’s cell phone were of J.R. because he recognized the
distinct wristbands she was wearing. He showed the photographs to J.R. and G.R. to
identify J.R. as the individual in the graphic photographs on McNamara’s cell phone.
{¶18} Jeffrey Rice (“Investigator Rice”) is an investigator with the Internet Crimes
Against Children Task Force. He examined McNamara’s laptop and cell phone.
Investigator Rice bookmarked 37 images from McNamara’s laptop that appeared to be of
underage females. The images were not downloaded, but were viewed, which allowed
McNamara’s laptop to create the image on the computer hard drive. He also found
webpages searched for preteen nude models on McNamara’s laptop. At some point,
McNamara’s laptop was using a private mode of Internet Explorer to search multiple
websites that Investigator Rice considered child pornographic searches. Investigator
Rice stated that it was his expert opinion that the images were generated from someone
either physically accessing the images on the specific webpage or just accessing the
webpage, not from a virus scan or a popup.
{¶19} After the conclusion of trial, the court found McNamara guilty of Counts
1-10 and 33-55 and not guilty of Counts 11-32. The court also found McNamara to be a
sexually violent predator as specified in Counts 1-5. At sentencing, both the state and
McNamara agreed to the merger of the following counts: (1) Counts 1 and 2 (rape and
kidnapping), with the state electing to proceed with Count 1; (2) Counts 3 and 4 (rape and
kidnapping), with the state electing to proceed with Count 3; (3) Counts 5 and 6 (rape and
kidnapping), with the state electing to proceed with Count 5; and (4) Counts 7 and 8 (rape
and kidnapping), with the state electing to proceed with Count 7. The trial court then
sentenced McNamara to 25 years in prison to life on Count 1; 10 years to life on each of
Counts 3, 5, and 7; 3 years on Count 9; 12 months on Count 10; and 6 months on each of
Counts 33-55 (illegal use of a minor in nudity-oriented material or performance and
possessing criminal tools). The court ordered that Counts 3, 5, and 7 be served
concurrently for a total of 10 years to life and Counts 9, 10, and 33 through 55, be served
concurrently for a total of 3 years. The court further ordered that Count 1 be served
consecutive to Counts 3, 5, and 7 and Counts 1, 3, 5, and 7 be served consecutive to
Counts 9, 10, and 33 through 55, for a total aggregate prison term of 38 years to life.
{¶20} McNamara now appeals, raising the following two assignments of error for
our review.
Assignment of Error One
The state failed to present sufficient evidence of the offense charged.
Assignment of Error Two
[McNamara’s] conviction is against the manifest weight of the evidence.
Sufficiency of the Evidence
{¶21} In the first assignment of error, McNamara argues there is insufficient
evidence to support his illegal use of a minor in nudity-oriented material or performance
(Counts 9-10 and 33-54) and possessing criminal tools (Count 55) convictions. 1 He
contends the state failed to prove that he was the individual who searched for and
downloaded nude images of underage females on the laptop, he was the individual who
produced and possessed the image of J.R.’s vagina on his cell phone, and he used his
laptop with a criminal purpose.
{¶22} The Ohio Supreme Court in State v. Diar, 120 Ohio St. 3d 460,
2008-Ohio-6266, 900 N.E.2d 565, ¶ 113, explained the standard for sufficiency of the
evidence as follows:
Raising the question of whether the evidence is legally sufficient to support
the jury verdict as a matter of law invokes a due process concern. State v.
Thompkins (1997), 78 Ohio St. 3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541.
In reviewing such a challenge, “[t]he relevant inquiry is 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 (1991), 61 Ohio St. 3d
1McNamara’s entire argument focuses on the counts involving the illegal use
of a minor in nudity-oriented material or performance and possessing criminal tools
charges. He raises no argument as to the rape and kidnapping counts. Therefore,
we need not address them.
259, 574 N.E.2d 492, paragraph two of the syllabus, following Jackson v.
Virginia (1979), 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560.
{¶23} We are mindful that, in considering the sufficiency of evidence, a certain
perspective is required. State v. Eley, 56 Ohio St. 2d 169, 172, 383 N.E.2d 132 (1978).
“This court’s examination of the record at trial is limited to a determination of whether
there was evidence presented, ‘which, if believed, would convince the average mind of
the defendant’s guilt beyond a reasonable doubt.’” Id., quoting Atkins v. State, 115 Ohio
St. 542, 546, 155 N.E. 189 (1926). It is the minds of the trier of fact, rather than a
reviewing court, that must be convinced. State v. Thomas, 70 Ohio St. 2d 79, 80, 434
N.E.2d 1356 (1982).
{¶24} In the instant case, McNamara was convicted of illegal use of minor in
nudity-oriented material or performance in violation of R.C. 2907.323(A)(1) and (3),
which provides that
(A) No person shall do any of the following:
(1) Photograph any minor who is not the person’s child or ward in a state
of nudity, or create, direct, produce, or transfer any material or performance
that shows the minor in a state of nudity[.]
***
(3) Possess or view any material or performance that shows a minor who is
not the person’s child or ward in a state of nudity[.]
{¶25} He was also convicted of possessing criminal tools in violation of R.C.
2923.24(A), which provides that “[n]o person shall possess or have under the person’s
control any substance, device, instrument, or article, with purpose to use it criminally.”
{¶26} McNamara argues the state failed to prove that he downloaded the images
on the laptop because it was accessible to any family member and it was not locked. He
also argues the state failed to prove that he took the pictures of J.R. that were found on his
cell phone. He further argues that by failing to prove that he was the person responsible
for the images on the laptop, the state also failed to prove that he used his laptop with a
criminal purpose. We disagree.
{¶27} We find the instant case analogous to State v. Dyer, 8th Dist. Cuyahoga No.
88202, 2007-Ohio-1704. In Dyer, the defendant was charged with illegal use of minor in
nudity-oriented material or performance. He argued that there was no evidence to
indicate he owned the computer containing the pornographic pictures. There was
testimony, however, from the defendant’s wife stating that she had observed Dyer
viewing on his computer what appeared to be child pornography. Id. at ¶ 34. There
were also 77 images of child pornography retrieved from the defendant’s computer that
the detective identified, with a reasonable degree of certainty, as minors. Id. In viewing
the evidence in light most favorable to the prosecution, we held that there was sufficient
evidence to support the defendant’s convictions, and the defendant’s convictions were not
against the manifest weight of the evidence. Id.
{¶28} Likewise, the matter before us was proven by circumstantial evidence. We
recognize that
[c]ircumstantial evidence and direct evidence inherently possess the same
probative value and therefore should be subjected to the same standard of
proof. When the state relies on circumstantial evidence to prove an
essential element of the offense charged, there is no need for such evidence
to be irreconcilable with any reasonable theory of innocence in order to
support a conviction.
Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492, at paragraph two of the syllabus, following
Holland v. United States, 348 U.S. 121, 75 S. Ct. 127, 99 L. Ed. 150 (1954), and
overruling State v. Kulig, 37 Ohio St. 2d 157, 309 N.E.2d 897 (1974). Circumstantial
evidence does not need to be examined more closely than direct evidence. State v. Wills,
120 Ohio App. 3d 320, 330, 697 N.E.2d 1072 (8th Dist.1997).
{¶29} In the instant case, just as in Dyer, there was no testimony that someone
actually witnessed McNamara download nude images of underage girls onto his laptop or
take the picture of J.R.’s vagina with his cell phone. However, the state did present
evidence by Investigator Rice, an expert in the examination of forensic analysis of
computers, that the nude images found on McNamara’s hard drive were of underage girls.
There was also testimony by J.R. and G.R. that McNamara was the only person
permitted use to the laptop, and he was the only person ever seen using the laptop. G.R.
testified that the laptop was specifically his, and no one else touched it because he was
very protective over his electronic devices.
{¶30} Moreover, the police obtained graphic pictures of J.R.’s vagina on
McNamara’s cell phone. McNamara gave D.M. two cell phones for safekeeping when
he was arrested. D.M. went through McNamara’s cell phones and observed graphic
photographs of J.R. He turned McNamara’s phone over to the police. The police found
pictures of J.R. posing in her sports bra and volleyball shorts on McNamara’s cell phone.
These pictures depict J.R. flexing her arms, legs, abs, and back and her squatting. J.R.
testified that McNamara took these pictures of her in August and September 2014 to see
how much muscle she gained during volleyball. McNamara also took pictures of J.R.’s
vagina while she was sleeping on her bed. J.R. identified herself as the individual on the
bed because she recognized the bracelets on her arm and her bed comforter. G.R.
identified J.R. because of the bed comforter and Detective Sheridan identified J.R.
because of her bracelets.
{¶31} Based on the testimony provided, we find there was sufficient evidence
presented that would allow the trier of fact to find McNamara downloaded, viewed, and
possessed the nude images of underage girls on his laptop and took photos of J.R. on his
cell phone. Having found sufficient evidence to support McNamara’s convictions of the
other counts, we also find sufficient evidence to support his possessing criminal tools
conviction.
{¶32} Accordingly, the first assignment of error is overruled.
Manifest Weight of the Evidence
{¶33} In the second assignment of error, McNamara claims that his convictions are
against the manifest weight of the evidence.
{¶34} In contrast to a sufficiency argument, a manifest weight challenge questions
whether the state met its burden of persuasion. State v. Bowden, 8th Dist. Cuyahoga No.
92266, 2009-Ohio-3598, ¶ 13, citing Thompkins, 78 Ohio St. 3d at 390, 1997-Ohio-52,
678 N.E.2d 541. The Ohio Supreme Court in State v. Wilson, 113 Ohio St. 3d 382,
2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, has stated:
[T]he reviewing court asks whose evidence is more persuasive — the
state’s or the defendants? * * * “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 factfinder’s resolution of the conflicting testimony.” [Thompkins
at 387], citing Tibbs v. Florida (1982), 457 U.S. 31, 42, 102 S. Ct. 2211, 72
L. Ed. 2d 652.
{¶35} Moreover, an appellate court may not merely substitute its view for that of
the jury, but must find that “‘in resolving conflicts in the 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.’” Thompkins at 387, quoting State v. Martin, 20 Ohio
App.3d 172, 485 N.E.2d 717 (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., quoting Martin.
{¶36} We note that when considering a manifest weight challenge, the trier of fact
is in the best position to take into account inconsistencies, along with the witnesses’s
manner, demeanor, gestures, and voice inflections, in determining whether the proffered
testimony is credible. State v. Kurtz, 8th Dist. Cuyahoga No. 99103, 2013-Ohio-2999, ¶
26; see also State v. Lilliard, 8th Dist. Cuyahoga Nos. 99382, 99383, and 99385,
2013-Ohio-4906, ¶ 93 (In considering the credibility of witnesses on a manifest weight
challenge, an appellate court is “guided by the presumption” that the jury, or the trial
court in a bench trial, is “‘best able to view the witnesses and observe their demeanor,
gestures and voice inflections, and use these observations in weighing the credibility of
the proffered testimony.’” Id., quoting Seasons Coal Co. v. Cleveland, 10 Ohio St. 3d 77,
80, 461 N.E.2d 1273 (1984)). Therefore, we afford great deference to the factfinder’s
determination of witness credibility. State v. Ball, 8th Dist. Cuyahoga No. 99990,
2014-Ohio-1060, ¶ 36.
{¶37} McNamara argues the trial court “lost its way” in determining that he
inappropriately touched J.R., took and possessed a graphic photograph of J.R.’s vagina,
and possessed nude images of underage girls. Specifically, he argues that major
inconsistencies “cast a shadow” on the reliability of the witnesses’s testimony. He
claims that J.R. and her family members fabricated the story because G.R. and McNamara
were having marital troubles. He also claims it is unreasonable to believe that
McNamara raped J.R. while others may have been home because they could have walked
in at any time. He also contends that J.R.’s testimony that she did not disclose the abuse
to M.C. until eighth grade conflicts with M.C.’s testimony that the disclosure occurred in
sixth grade. The state recognizes inconsistencies in the witnesses’ testimony, but
maintains that these minor inconsistencies were not material as to render McNamara’s
convictions against the manifest weight of the evidence. We agree.
{¶38} Minor inconsistencies in witness testimony will not render a conviction so
against the manifest weight of the evidence as to cause a miscarriage of justice. State v.
Weems, 8th Dist. Cuyahoga No. 102954, 2016-Ohio-701, ¶ 29-30. In the instant case,
there were some minor inconsistencies, but there were also several material consistent
statements made by the witnesses. J.R., G.R., D.M., and K.G. all testified that they
recognized an inappropriate relationship between J.R. and McNamara. There was also
consistent testimony of multiple witnesses that there was a graphic photograph of J.R.’s
vagina on McNamara’s cell phone. This photograph was identified by J.R., G.R., D.M.
and Detective Sheridan. There was consistent testimony from J.R., and G.R. that no one
else was permitted to use McNamara’s laptop, and that only McNamara was observed
using his laptop. G.R. also testified that McNamara was protective over his cell phone.
{¶39} Moreover, there was no contradictory testimony as to when the rapes
occurred. While there was an inconsistency of the dates in which J.R. spoke to M.C.
about the abuse, it was clear that J.R. spoke to M.C. about McNamara’s sexual abuse on
more than one occasion.
{¶40} Here, the trial court observed the witnesses and their demeanor, gestures,
and voice inflections and found McNamara guilty of illegal use of minor in
nudity-oriented material or performance and possessing criminal tools. We afford great
deference to the factfinder’s determination of witness credibility. Ball, 8th Dist.
Cuyahoga No. 99990, 2014-Ohio-1060, ¶ 36. As a result, we find that the convictions
are not against the manifest weight of the evidence. We cannot say that the trial court
lost its way and created a manifest injustice in convicting McNamara.
{¶41} Therefore, the second assignment of error is overruled.
{¶42} Judgment is affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY EILEEN KILBANE, PRESIDING JUDGE
MELODY J. STEWART, J., and
PATRICIA A. BLACKMON, J., CONCUR