State v. Doogs

[Cite as State v. Doogs, 2017-Ohio-6914.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals Nos. WD-15-073
WD-16-027
Appellee
Trial Court No. 2013CR0316
v.
Ronald J. Doogs DECISION AND JUDGMENT
Appellant Decided: July 21, 2017
*****
Paul A. Dobson, Wood County Prosecuting Attorney, and
David T. Harold, Assistant Prosecuting Attorney, for appellee.
Lawrence A. Gold and Peter T. Halleck, for appellant.
*****
PIETRYKOWSKI, J.
{¶ 1} This is a consolidated appeal from the judgments of the Wood County Court
of Common Pleas, convicting appellant following a jury trial of one count of rape in
violation of R.C. 2907.02(A)(1)(c) and (B), a felony of the first degree, and one count of
gross sexual imposition in violation of R.C. 2907.05(A)(5) and (C)(1), a felony of the
fourth degree, and sentencing him to serve 12 years and 6 months in prison. For the
reasons that follow, we affirm.
I. Facts and Procedural Background
{¶ 2} On June 20, 2013, appellant was indicted on one count of rape, two counts
of sexual battery, one count of unlawful sexual conduct with a minor, and one count of
gross sexual imposition. Appellant entered an initial plea of not guilty, and the matter
eventually proceeded to a jury trial beginning September 9, 2015.
{¶ 3} At the trial, the victim, L.M., testified first. L.M. was 17 years old at the
time of the trial. L.M. testified that appellant was her father’s cousin, and that appellant
moved into her father’s house in 2011 or 2012, when she was in seventh grade. She
described how appellant would provide her alcohol, beginning when she was 12 or 13
years old. She testified that he would pour her a full glass, and that she would get tipsy
or a little buzzed. L.M. also testified that appellant later gave her cocaine when she was
still 12 or 13 years old, and that he would give it to her whenever he returned from his
trips driving semi-trucks.
{¶ 4} L.M. then testified that appellant began showing her pornographic videos.
She described one time when she and one of appellant’s son’s friends were sitting next to
appellant, who was watching a pornographic video while completely naked with a little
yellow rag covering his penis. L.M. testified that this event took place at appellant’s
parent’s house in Fostoria, Ohio.
2.
{¶ 5} L.M. next began testifying about sexual interactions that took place with
appellant. She later testified that there were numerous events but that she only
remembered a few in detail. She testified that the first time occurred at her house in
Fostoria when her dad went to work and appellant was home with L.M. and her brother,
T.M. L.M. testified that they were drinking at the time and watching television when
appellant gave T.M. his bank card and told him to go to the bank to withdraw some
money. After T.M. left, appellant gave L.M. a rubber dish glove, and guided her hand as
she gave him a hand job. L.M. testified that they heard T.M. return during the incident.
Appellant quickly got up, told L.M. to hide the glove on the side of the couch, and met
T.M. at the door and gave him instructions on how to use the bank card. When he
returned, appellant told L.M. that she was going to finish, and he guided her hand until he
ejaculated.
{¶ 6} L.M. testified that the next time something occurred, appellant took her in
his car purportedly to pick up his son. As they were driving, appellant stopped near some
cornfields and pulled down his pants. L.M. testified that appellant made her give him
another hand job, and this time appellant was touching L.M.’s breasts and inner thigh.
When she pushed him off, appellant would reply “Don’t, just let it happen, I already
started.” L.M. stated that a car approached and appellant pulled up his pants and sped off
before he had an opportunity to ejaculate. She testified that they did not pick up
appellant’s son that night.
3.
{¶ 7} When asked why she never told her dad or anyone else that this was going
on, L.M. testified that she thought she was in the wrong and was going to be punished for
it. She testified that one time she was at appellant’s parent’s house and blurted out that
she did not want to live anymore. Appellant then went into his parent’s basement where
his father kept a collection of guns, then came back upstairs and told her to shoot herself.
{¶ 8} L.M. then described a third time that appellant had her give him a hand job.
She testified that appellant took her, T.M. and S.D., appellant’s son, to see the movie,
“Project X,” at the mall. Appellant purchased tickets for T.M. and S.D., and then said
that he and L.M. were going to go buy her some clothes. Appellant and L.M. then left
the mall and drove to an empty church parking lot, where she gave him another hand job.
They returned to the movie theater shortly before the movie ended.
{¶ 9} L.M. testified that sometime after the movie incident, appellant moved in
with his girlfriend in Rising Sun in Wood County. On or about May 24, 2012, when
appellant was 13 years old, appellant asked L.M. to come mow the lawn, which she had
done one time before.1 As she was mowing, appellant asked her if she wanted a drink.
They went into the kitchen and appellant poured her the usual cup of alcohol. L.M.
testified that she drank about one-third of the cup, and within 15 to 30 minutes she
remembered things getting wobbly, and then she blacked out. While she was still
1
The indictment stated that the rape occurred between April 16 and May 24, 2012.
4.
conscious, she remembers appellant attempting to put his hand down the front of her
shirt.
{¶ 10} When L.M. regained consciousness, she remembered sitting on a couch
next to appellant’s friend, P.S. P.S. had a garbage can that L.M. could throw up in.
Appellant was also there with a glass of water, and was telling L.M. that she needed to
drink the water to sober up. L.M. testified that she threw up again and then blacked out.
The next thing L.M. remembered was P.S. giving her a bath. L.M. told P.S. that
somebody was coming to get her, and P.S. was reassuring her that she was going to be
okay. Appellant came into the bathroom with another glass of water in his hand, but P.S.
told him to get out.
{¶ 11} After that, the next thing L.M. remembered was appellant walking her out
of P.S.’s house, and across the street to appellant’s parent’s house. Appellant tried to get
her to sleep in the boat in his parents’ driveway, but L.M. begged him to take her home.
Appellant drove her back home and dropped her off in an alley near her house. During
the drive, appellant kept telling L.M. that she could not say anything to anyone or she
would get in serious trouble. L.M. testified that the next morning she awoke and “My
stomach, I felt opened, I didn’t feel right. My stomach, I had horrible, horrible pain in
my stomach, my lower stomach.”
{¶ 12} L.M. testified that since the incident, she has been seeing a mental health
counselor to deal with her anxiety.
5.
{¶ 13} T.M. testified next. T.M. is L.M.’s older brother. At the time of the trial,
he was 18 years old. T.M. testified that he frequently drank and did drugs with appellant
during the time that appellant was living at their house. T.M. stated that he was always
concerned not to involve L.M., because he did not want that around his sister. T.M.
testified that he was nervous whenever appellant was alone with L.M., but when he
would confront appellant, appellant reassured him that there was nothing to be worried
about, then the two of them would drink or do drugs together. T.M. explained that the
night appellant gave him his bank card to go get money, T.M. returned to find L.M. using
the microwave, which he found strange because he thought she was asleep. T.M.
testified that he only left and came back, he did not return in between.
{¶ 14} The state then called L.B. as its next witness. L.B. was involved in a
romantic relationship with appellant from 2007 to 2012, while she was married to another
person. In 2012, appellant lived with L.B. in her house in Rising Sun, Wood County,
Ohio. L.B. testified that during their relationship, appellant viewed pornography of
young girls; as related to her, “the younger the better.” On May 24, 2012, L.B. was
working, driving a truck, when she received several text messages from appellant
wanting to know what time she would be home. L.B. testified that this made her feel
uneasy because appellant did not normally communicate that much. L.B. stated that
based on her experience with appellant, when appellant’s behaviors were out of the
ordinary, it was because he was “up to something,” like drinking or drugs. Wanting to
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find out what appellant was up to, L.B. told him that she would be home an hour later
than she actually was going to be.
{¶ 15} L.B. testified that when she arrived home, she found appellant in the
bedroom with L.M., whom she had met approximately a dozen times before. When L.B.
walked in, L.M. was lying on the bed on her back and did not appear to be awake. L.B.
testified that appellant was sitting on the edge of the bed and had his hand inside L.M.’s
shirt. When L.B. confronted appellant, he said that L.M. had passed out and he wanted to
make sure that she was still breathing. L.B. and appellant started arguing, and L.B.
testified that appellant told her that if she ever reported what she saw to anyone he would
kill her and her son. L.B. then left the house and drove around in her truck.
{¶ 16} Twenty minutes later, L.B. returned to her house. She parked around the
block and walked up to the back of her house. As she approached, L.B. looked through
the kitchen window and saw appellant naked on the couch between a woman’s legs. The
woman was laying on her back on the couch, and L.B. could see her pants down around
her left ankle.
{¶ 17} L.B. stormed into the house, and appellant, still naked and with an erection,
came charging at her. L.B. testified that appellant pushed her down and pinned her arms
above her head. Appellant stated that it was not his fault, that he was drunk and high, and
that the girl came on to him. L.B. got up and left the house. She testified that while she
was there, she did not hear any other movement or any other female voice in the house;
nothing to suggest that the woman on the couch was conscious.
7.
{¶ 18} On cross-examination, L.B. testified that when she originally spoke with
the police about the incident, she did not mention the part where she returned to her
house and saw appellant naked on the couch. L.B. explained that she did not trust the
Fostoria police department because appellant had a relationship with one or two of the
officers or detectives. L.B. was worried that the police department would inform
appellant about what she said, and that appellant would hurt her. On re-direct, L.B.
testified that shortly after her interview with the police department, she sent a letter
conveying the rest of the story.
{¶ 19} P.S. testified as the next witness for the state. P.S. was in a romantic
relationship with B.C., whom she met while she was a nurse at a nursing home. B.C. had
been involved in a car accident and was paralyzed from the waist down. P.S. testified
that appellant and B.C. were friends, and that appellant would come over to her house on
a nearly daily basis. Often, appellant and B.C. would do drugs together. P.S. also
testified that L.M. came to her house on several occasions either with appellant or with
L.M.’s dad.
{¶ 20} P.S. testified that around April or May 2012, she left her house to take
B.C.’s brother home. When she left, B.C. was alone in the house, laying in his bed.
When she returned several hours later, appellant was there, and he and B.C. were
attempting to get L.M. to drink lots of water. P.S. stated that L.M. looked very sick, and
that she had been vomiting. P.S. took L.M. into the bathroom to take a shower and then
soak in the bathtub. While L.M. was in the bathtub, appellant came in and told L.M. that
8.
“it’s okay, it’s okay now.” P.S. told appellant to get out of the bathroom because it was
not appropriate for him to see L.M. in the tub. After she got L.M. cleaned up, they
returned to the living room where L.M. drank more water and got sick again. P.S. helped
L.M. clean up for a second time.
{¶ 21} Appellant then asked if he and L.M. could spend the night. P.S. refused
and told appellant that he needed to take L.M. home. After they left, appellant called and
sent text messages asking again if they could spend the night. P.S. responded that
appellant needed to take L.M. to her home.
{¶ 22} Several days later, P.S. returned to her house after work, and got cleaned up
like she normally does. She then went into the living room where B.C. was in his
wheelchair. P.S. testified that when she left that morning, B.C. was in his bed, and that
someone must have helped him up into his wheelchair. P.S. assumed it was appellant.
P.S. testified, over objection, that B.C. said “You’re not going to believe what [appellant]
told me.” P.S. then relayed B.C.’s statements that appellant told him that he had sex with
L.M. before he brought her to the house the night she was sick, and then again
afterwards. P.S. testified that B.C. was very upset, and almost in a state of disbelief.
B.C. kept referring to appellant as a pedophile, and stated that he did not want him in the
house. P.S. specified that B.C.’s hands were moving while he talked, his eyes were wide
open, and his voice was a little raised. P.S. described that it was like B.C. was disgusted
and in disbelief about what he was saying. P.S. testified that she had never seen B.C. act
9.
in that manner. B.C. explained that when appellant brought L.M. over, he almost had to
carry her inside the house; she was unable to walk on her own.
{¶ 23} On cross-examination, P.S. testified that B.C. used a lot of drugs. He was
prescribed Vicodin, Valium, and Fentanyl. In addition, he used cocaine and marijuana.
P.S. testified that B.C. would sometimes sell his pain pills and his Fentanyl patches. B.C.
would also use someone else’s urine to pass drug tests. P.S. stated that B.C. had
convictions for felonious assault, failure to comply, attempted murder, and kidnapping,
and that he had spent ten years in prison. Finally, P.S. testified that the day when L.M.
was intoxicated was in April because B.C.’s brother was there visiting for Easter.
{¶ 24} The last witness to testify for the state was special agent David Pauly of the
Ohio Bureau of Criminal Investigations. Pauly testified that he interviewed L.M., and
compared her statements to those L.M. made to other people. Pauly found that L.M.’s
statements were consistent regarding the sexual acts.
{¶ 25} Pauly also testified about the effects of date rape drugs, noting that people
who have ingested the drug can feel like they have had much more alcohol than they
were actually drinking. In addition, they can have amnesia, nausea, vomiting, and
hallucinations. Pauly testified that a good way to make the date rape drug undetectable is
by drinking plenty of water and flushing the drug out of the body. He concluded that the
facts in this case were consistent with the use of a date rape drug.
{¶ 26} Pauly next testified about the process of grooming, and how a predator
would provide prizes, toys, or gifts, and then begin to introduce the child to drugs, sex,
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and pornography. Pauly testified that the facts in this case were consistent with grooming
on the order of an eight or nine out of ten.
{¶ 27} Following the state’s presentation of evidence, appellant moved for
acquittal pursuant to Crim.R. 29, which the trial court denied.
{¶ 28} Appellant then called as his first witness, D.B., who knew appellant
through her work at a truck stop. Appellant attempted to elicit testimony that D.B.
received a rude phone call from L.B., accusing D.B. of being in a relationship with
appellant. The state objected because appellant was trying to attack L.B.’s credibility by
showing that L.B. treated another person badly. The trial court sustained the objection
and D.B. provided no further relevant testimony.
{¶ 29} As his next witness, appellant called M.B., who used to work at a bar in
Arcadia, Ohio. M.B. testified that he observed appellant and L.B. enter the bar and drink
within the past few years, which was an attempt to impeach L.B.’s testimony that she has
not had a drink since 2009.
{¶ 30} Appellant next called S.D., his son. S.D. testified that when he went to see
“Project X,” his dad bought tickets for himself, T.D., L.M., and a fourth juvenile, N. S.D.
testified that appellant also purchased a ticket, and the five of them saw the movie
together. S.D. stated that appellant never left the movie theater. S.D. also testified that
he has observed a lot of drugs at B.C.’s house, and that B.C. bragged about selling drugs
out of his house.
11.
{¶ 31} Appellant testified next in his own defense. Appellant testified that in 2011
and 2012, he was working as a truck driver and he would be gone for four weeks at a
time, and then home for two nights. He testified that he has had his commercial driver’s
license since 2008, and as part of the licensure process he is subjected to random drug
tests. Appellant testified that he has used marijuana and cocaine in his past when he was
younger, but he does not use it now.
{¶ 32} Appellant then described his relationship with L.B. He testified that L.B.
had anger issues, and whenever he returned home, L.B. would want to fight with him.
Appellant testified that he had to call the police on L.B. several times, and one time she
punched him in the mouth and broke his front teeth.
{¶ 33} Appellant next testified that he and B.C. had known each other since they
were in the seventh grade. Appellant testified that if he was passing by B.C.’s house, or
if B.C. called him because he fell out of his chair, appellant would stop to help him.
However, appellant testified that he did not stay and hang out with B.C. all the time, and
that he worked too much to help B.C. on a daily basis as P.S. had testified.
{¶ 34} Appellant was then asked about what it was like living in L.M.’s father’s
house. Appellant testified that it was not a very good household. He explained that he
moved out because of all of the alcohol and screaming and yelling. He summarized that
the family life was not healthy at all.
12.
{¶ 35} Regarding going to see the “Project X” movie, appellant testified that he
took L.M., T.M., S.D., and N. He purchased the tickets and then stayed to watch the
entire movie.
{¶ 36} Appellant’s testimony then turned to the night of the alleged rape.
Appellant stated that he had just gotten home from work and was leaving his house to go
over to his father’s house. When he walked out of his door he heard L.M. call his name.
L.M. approached appellant and asked him for money. Appellant testified that he could
smell alcohol on L.M.’s breath, so he told her to get in his car and he would take her to
her dad’s house. Appellant testified that L.M. was very angry and did not want to go
home; she was cussing and screaming, and finally said “My dad is going to kill me.”
{¶ 37} While they were driving, appellant received a call from B.C. saying that he
had just fallen out of his chair, and asking appellant to come help him. Appellant
testified that he drove to B.C.’s house. Once he pulled into the driveway, and before he
could even put the car in park, L.M. hurried out of the car and ran into B.C.’s house.
Appellant went inside and helped B.C. into his chair. He then told L.M. that he was
going to take her back to her dad’s house, but she refused. Appellant testified that he
then called L.M.’s father, and told him where L.M. was and that he needed to come get
her. Appellant then left.
{¶ 38} Later that evening, when appellant was at his parent’s house, which is just a
couple of houses down from B.C.’s house, L.M.’s dad called him and asked if he was still
nearby and if he could bring L.M. back home. Appellant returned to B.C.’s house, and
13.
upon entering observed L.M. receiving a bath because she had vomited on herself. After
the bath, L.M. got dressed and appellant took her back to her dad’s house. L.M.’s dad
smelled the alcohol on her breath, and called the police.
{¶ 39} Appellant testified that he did not use any drugs that day, nor did he have
any alcohol. In addition, he testified that the event occurred in April, but not on the 24th.
He also testified that he did not see L.B. at all on that day, and was not in his house in
Rising Sun with L.M. at any time that day.
{¶ 40} Furthermore, appellant was adamant that he has never touched L.M.
inappropriately, has never driven alone with L.M. to pick up his son, and has never been
alone with L.M. at his parent’s house.
{¶ 41} On cross-examination, appellant categorically denied the allegations
against him, and testified that L.M., T.M., L.B., and P.S. were lying throughout their
testimony. On re-direct, appellant explained that L.M., T.M., L.B., B.C., and P.S. were
conspiring to bring the false charges against him because he and L.B. had an argument,
which led to L.B. and B.C. selling all of appellant’s possessions on May 21, 2012.
Appellant went to B.C. and demanded his things back, and threatened that if B.C. did not
give the things back, appellant would call the police and inform them of all the drugs that
B.C. was doing in the house while the kids were there. Appellant testified that B.C. and
P.S. coached L.M. to make the allegations against him, and that L.M. cooperated because
she did not want to get into trouble for doing drugs at B.C’s house.
14.
{¶ 42} After appellant testified, his cousin, J.M., took the stand. J.M. is also
L.M.’s uncle. He testified that he lived with L.M.’s family, but not while appellant was
living there. J.M. stated that he took care of getting the children ready for school and
doing their homework because L.M.’s father worked a midnight shift, and thus was
asleep during the day. J.M. testified that he then had to take on more responsibility
because L.M.’s father had a bad drinking problem, which interfered with his ability to
take care of his children. J.M. described that L.M.’s father had a very violent temper, and
as a result, his children would try to lie to deflect their father’s anger towards someone
else. J.M. testified that appellant would help to try to calm L.M.’s father, and curb his
vices. Finally, J.M. testified that the children have always acted out, and that their
behavior has been the same before, during, and after appellant lived at the house.
{¶ 43} The last person to testify for the defense was appellant’s mother, J.D. J.D.
testified that appellant was a good kid, and that she could not believe that any of the
allegations were true. J.D. also testified that L.M. has a reputation for not being truthful
sometimes.
{¶ 44} After the defense rested, the state called two witnesses to rebut the
testimony that there had been no change in L.M.’s behavior. The first to testify was L.S.,
L.M.’s grandmother. L.S. testified that prior to April 2012, L.M. was a typical, ornery
kid. She was an honor roll student. She was artistic, and did a lot of painting, drawing,
and writing short stories. She was always busy with school and friends. L.S. testified
that after May 2012, L.M. kept to herself and did not have friends come by like before.
15.
L.M.’s room was a disaster, which it had not been before. When L.M. would paint, there
would no longer be flowers or anything, it was just colors mixed together. L.M.’s grades
dropped and she was no longer on the honor roll. L.S. also testified that L.M. began to
cut herself in her stomach, and on her arms and legs. L.S. testified that she saw one cut
that said “lonely” on L.M.’s leg.
{¶ 45} On cross-examination, L.S. testified that L.M. had been cutting herself as
early as 2009. L.S. also acknowledged that L.M. was 14 years old during the time when
L.S. described her room as a disaster.
{¶ 46} L.M. was the second witness to testify on rebuttal. She testified that after
May 2012, her behavior changed and she had to go to a mental hospital. She had anxiety
attacks and had to be put on medicines. She was cutting words into her skin, and tried to
hang herself in her closet. L.M. testified that her behavior changed because part of her
family told her that they did not want her around, and her dad did not say anything to her.
She also testified that she was cutting a little before May 2012, but after that she began
writing words like “lonely,” “slut,” and “fat” into her skin. Finally, L.M. showed the jury
the scars on her forearm, which she said were two to three years old. L.M. testified that
she no longer cuts herself.
{¶ 47} Following the presentation of evidence and closing arguments, the jury
deliberated and returned a verdict of guilty as to all five counts. The trial court then
ordered a presentence investigation report and set the matter for sentencing on
November 3, 2015. At sentencing, the trial court, upon stipulation of the parties, merged
16.
Counts 2, 3, and 4 with Count 1, and proceeded to sentence on Counts 1 (rape) and 5
(gross sexual imposition). The court ordered appellant to serve 11 years in prison on
Count 1, and 18 months in prison on Count 5. Further, the trial court ordered the terms to
be served consecutively for a total prison term of 12 years and 6 months.
{¶ 48} Appellant timely appealed his conviction. Subsequent to his appeal, on
March 22, 2016, appellant filed a petition to set aside his conviction. In his petition,
appellant argued that he received ineffective assistance of trial counsel. Attached to his
petition was an affidavit from his trial counsel, acknowledging that she was unprepared in
her representation and forgot to call vital witnesses on behalf of appellant. Also attached
were affidavits from appellant’s father, mother, grandmother, and son, as well as five
other individuals. The affidavits from appellant’s father and mother stated that they
received a phone message from B.C. before he died, in which he expressed his regret that
he lied about appellant’s statement that he had sex with L.M. Several of the affidavits
also pertained to the lack of a couch or bed at appellant’s residence in Rising Sun
beginning on or around May 20, 2012. In addition, the attached affidavits challenged the
testimony that appellant and L.M. left the “Project X” movie, and denied that appellant
gave drugs or alcohol to L.M. or T.M., among other things.
{¶ 49} On April 21, 2016, the trial court entered its judgment denying appellant’s
petition. Appellant appealed the trial court’s April 21, 2016 entry, and that appeal has
been consolidated with the appeal from his conviction.
17.
II. Assignments of Error
{¶ 50} Appellant now presents a combined six assignments of error:
1. Appellant received ineffective assistance of counsel in violation
of his rights under the Sixth and Fourteenth Amendments to the United
States Constitution and Article I, § 10 of the Ohio Constitution.
2. The trial court erred to the prejudice of appellant in allowing into
evidence the hearsay statement of deceased witness, [B.C.].
3. The trial court committed error to the prejudice of appellant by
imposing the costs of prosecution without consideration of appellant’s
present or future ability to pay.
4. The trial court erred to the prejudice of appellant in denying his
Rule 29 motion upon completion of the state’s case in chief.
5. The jury’s verdict was against the manifest weight of the
evidence.
6. The trial court abused its discretion and erred to the prejudice of
appellant in denying appellant’s petition for post conviction relief without
granting appellant an evidentiary hearing to fully consider the merits of
appellant’s claim of ineffective assistance of counsel.
III. Analysis
{¶ 51} For ease of discussion, we will address appellant’s assignments of error out
of order, beginning with his second assignment of error.
18.
A. Admissibility of B.C.’s Out-of-Court Statement to P.S.
{¶ 52} In his second assignment of error, appellant argues that the admission of
B.C.’s testimony relaying appellant’s statement that he had sex with L.M. violated
appellant’s right to confrontation under the Sixth Amendment to the United States
Constitution and Article I, Section 10 of the Ohio Constitution.
{¶ 53} The Sixth Amendment’s Confrontation Clause provides: “In all criminal
prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses
against him.” “[A] statement cannot fall within the Confrontation Clause unless its
primary purpose was testimonial.” Ohio v. Clark, 135 S. Ct. 2173, 2180, 192 L. Ed. 2d 306
(2015). “[I]n determining whether a statement is testimonial, ‘standard rules of hearsay,
designed to identify some statements as reliable, will be relevant.’” Id., quoting
Michigan v. Bryant, 562 U.S. 344, 358-359, 131 S. Ct. 1143, 1179 L. Ed. 2d 93 (2011).
“[T]he question is whether, in light of all the circumstances, viewed objectively, the
‘primary purpose’ of the conversation was to ‘creat[e] an out-of-court substitute for trial
testimony.’” Id., quoting Bryant at 358. “Where no such primary purpose exists, the
admissibility of a statement is the concern of state and federal rules of evidence, not the
Confrontation Clause.” Id., quoting Bryant at 359.
{¶ 54} Here, in light of all the circumstances, there is no support for the
conclusion that the primary purpose of B.C.’s statements to P.S. was to create an out-of-
court substitute for trial testimony. Indeed, the fact that B.C.’s statements were admitted
under the excited utterance exception to the hearsay rule contained in Evid.R. 803(2)
19.
leads to the opposite result as the statements were “relate[d] to a startling event or
condition made while the declarant was under the stress of excitement caused by the
event or condition.” Here, B.C. made the statements to his girlfriend, P.S., because he
was in a state of disbelief about what appellant had told him. This was not a case where
B.C.’s statements were made in response to questions by law enforcement personnel as
part of an investigation. Therefore, we hold that B.C.’s statements to P.S. were not
testimonial in nature, and consequently appellant’s rights under the Confrontation Clause
were not violated by their admission.
{¶ 55} Notably, appellant does not argue in his second assignment of error that
B.C.’s statements were improperly admitted as an excited utterance. However, he does
reference the issue in his first and sixth assignments of error. Thus, we will address the
issue, and we find that the trial court did not abuse its discretion in admitting B.C.’s
statements to P.S. See State v. Duncan, 53 Ohio St. 2d 215, 219, 373 N.E.2d 1234 (1978)
(“[A]n appellate court should allow a wide discretion in the trial court to determine
whether in fact a declarant was at the time of an offered statement still under the
influence of an exciting event.”). As a technical matter, this is not an example of hearsay
within hearsay because although P.S. testified that B.C. told her that appellant told him
that he had sex with L.M., appellant’s statement to B.C. is not hearsay, but is an
admission by a party-opponent under Evid.R. 801(D)(2). Thus, the only incidence of
hearsay that we are confronted with is B.C.’s relation of appellant’s statement to P.S.
20.
{¶ 56} The trial court admitted the statement under Evid.R. 803(2), which
provides that a statement is not excluded by the hearsay rule if it is “A statement relating
to a startling event or condition made while the declarant was under the stress of
excitement caused by the event or condition.” A four-part test is used to determine
whether a statement is admissible as an excited utterance:
(a) that there was some occurrence startling enough to produce a
nervous excitement in the declarant, which was sufficient to still his
reflective faculties and thereby make his statements and declarations the
unreflective and sincere expression of his actual impressions and beliefs,
and thus render his statement of declaration spontaneous and unreflective,
(b) that the statement or declaration, even if not strictly
contemporaneous with its exciting cause, was made before there had been
time for such nervous excitement to lose a domination over his reflective
faculties so that such domination continued to remain sufficient to make his
statements and declarations the unreflective and sincere expression of his
actual impressions and beliefs,
(c) that the statement or declaration related to such startling
occurrence or the circumstances of such startling occurrence, and
(d) that the declarant had an opportunity to observe personally the
matters asserted in his statement or declaration. (Emphasis sic.) State v.
Jones, 135 Ohio St. 3d 10, 2012-Ohio-5677, 984 N.E.2d 948, ¶ 166.
21.
{¶ 57} Here, P.S.’s testimony from the trial indicates that the first thing B.C. said
upon seeing her was “You’re not going to believe what [appellant] told me.” P.S.
testified that when B.C. told her that appellant told him he had sex with L.M. before and
after he brought her over, B.C. was almost in a state of disbelief; he was wide-eyed, his
hands were moving, his voice was raised, and she had never seen him act in that manner.
Based on this testimony, we hold that it was not an abuse of discretion for the trial court
to conclude that appellant’s admission that he had sex with an impaired minor was
startling enough to produce a nervous excitement in B.C., and that the nervous
excitement continued to dominate B.C.’s reflective faculties. Therefore, we conclude
that the trial court properly admitted B.C.’s statements to P.S. as an excited utterance.
{¶ 58} Accordingly, appellant’s second assignment of error is not well-taken.
B. Denial of Appellant’s Crim.R. 29(A) Motion
{¶ 59} In his fourth assignment of error, appellant argues that the trial court erred
when it denied his Crim.R. 29(A) motion for acquittal after the state’s presentation of
evidence.
{¶ 60} “A motion for acquittal under Crim.R. 29(A) is governed by the same
standard as the one for determining whether a verdict is supported by sufficient
evidence.” State v. Tenace, 109 Ohio St. 3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37.
In reviewing a conviction for sufficiency, “[t]he relevant inquiry is whether, after viewing
the evidence in a light most favorable to the prosecution, any rational trier of fact could
22.
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 (1991), paragraph two of the syllabus.
{¶ 61} Appellant makes two separate arguments in support of his assignment of
error. First, he argues that the state failed to establish the element of penetration for
purposes of the charge of rape. R.C. 2907.02(A)(1)(c) provides,
No person shall engage in sexual conduct with another who is not
the spouse of the offender * * *, when any of the following applies: * * *
(c) The other person’s ability to resist or consent is substantially impaired
because of a mental or physical condition or because of advanced age, and
the offender knows or has reasonable cause to believe that the other
person’s ability to resist or consent is substantially impaired because of a
mental or physical condition or because of advanced age.
“Sexual conduct” is defined in R.C. 2907.01(A) as, “vaginal intercourse between a male
and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex;
and, without privilege to do so, the insertion, however slight, of any part of the body or
any instrument, apparatus, or other object into the vaginal or anal opening of another.
Penetration, however slight, is sufficient to complete vaginal or anal intercourse.”
{¶ 62} Here, we find that the fact of penetration is supported by L.B’s testimony
that she observed appellant standing naked with an erection between L.M.’s legs, and that
L.M. had her pants down around her ankles. In addition, L.M. testified that the next day
she “felt opened,” and had severe pain in her lower stomach. Finally, P.S. testified that
23.
B.C. told her that appellant told him that he had sex with L.M. before and after the night
he brought her to B.C.’s house. When viewed in the light most favorable to the
prosecution, we hold that a rational trier of fact could have found from the evidence that
appellant engaged in sexual conduct with L.M. Therefore, we hold that the trial court did
not err when it denied appellant’s Crim.R. 29(A) motion relative to the charge of rape.
{¶ 63} As his second argument, appellant contends that the state failed to establish
venue for the count of gross sexual imposition. “Although it is not a material element of
the offense charged, venue is a fact which must be proved in criminal prosecutions unless
it is waived by the defendant.” State v. Headley, 6 Ohio St. 3d 475, 477, 453 N.E.2d 716
(1983). In this case, the charge of gross sexual imposition was based on appellant’s
conduct in having L.M. give him the three hand jobs.2 Notably, the state does not contest
that the hand jobs occurred outside of Wood County. Instead, it argues that all of
appellant’s acts constituted a course of conduct, and he was thus properly tried in Wood
County, where the offense of rape occurred.
{¶ 64} R.C. 2901.12(A) provides, “The trial of a criminal case in this state shall be
held in a court having jurisdiction of the subject matter, and, except in cases of
2
Appellant argues in his brief that venue was not established for four of the five charges,
specifically Counts 2 through 5. However, Counts 2, 3, and 4 were based on the same
conduct giving rise to the charge of rape in Count 1. It is not in dispute that the rape was
alleged to have occurred at appellant’s residence in Rising Sun, which is in Wood
County, Ohio. Therefore, we will address appellant’s venue claim only as it pertains to
the hand jobs which formed the basis for the charge of gross sexual imposition under
Count 5.
24.
emergency under section 1901.028, 1907.04, 2301.04, or 2501.20 of the Revised Code, in
the territory of which the offense or any element of the offense was committed.” R.C.
2901.12(H) continues:
When an offender, as part of a course of criminal conduct, commits
offenses in different jurisdictions, the offender may be tried for all of those
offenses in any jurisdiction in which one of those offenses or any element
of one of those offenses occurred. Without limitation on the evidence that
may be used to establish the course of criminal conduct, any of the
following is prima-facie evidence of a course of criminal conduct:
(1) The offenses involved the same victim, or victims of the same
type or from the same group.
(2) The offenses were committed by the offender in the offender’s
same employment, or capacity, or relationship to another.
(3) The offenses were committed as part of the same transaction or
chain of events, or in furtherance of the same purpose or objective.
(4) The offenses were committed in furtherance of the same
conspiracy.
(5) The offenses involved the same or a similar modus operandi.
(6) The offenses were committed along the offender’s line of travel
in this state, regardless of the offender’s point of origin or destination.
25.
{¶ 65} Here, the evidence establishes that the crimes of rape and gross sexual
imposition involved the same victim, that appellant and the victim maintained the same
familial relationship throughout the abuse, and that appellant’s objective during the
crimes was to engage in sexual acts against the victim. Therefore, we hold that a rational
trier of fact could have found that appellant’s acts constituted a course of criminal
conduct, and it was not error to find that appellant could be tried in Wood County. See
State v. Schee, 6th Dist. Erie No. E-15-048, 2017-Ohio-212, ¶ 63 (venue proper in Erie
County where the appellant sexually abused his step-daughter over several years in
several different counties, but at least one of the offenses occurred in Erie County).
{¶ 66} Accordingly, we hold that the trial court did not err when it denied his
Crim.R. 29(A) motion, and his fourth assignment of error is not well-taken.
C. Manifest Weight
{¶ 67} In his fifth assignment of error, appellant argues that his convictions are
against the manifest weight of the evidence. In reviewing a conviction as being against
the manifest weight of the evidence, the court “weighs the evidence and all reasonable
inferences, considers the credibility of witnesses and determines whether 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.” State
v. Thompkins, 78 Ohio St. 3d 380, 387, 678 N.E.2d 541 (1997). “The discretionary power
to grant a new trial should be exercised only in the exceptional case in which the
evidence weighs heavily against the conviction.” Id.
26.
{¶ 68} Appellant contends that the witnesses against him are unreliable. In
particular, appellant notes that L.B.’s testimony was conflicting in that on one occasion
she testified that she was afraid of being hurt by appellant, but on another occasion
testified that she did not think that appellant would hurt her. She also testified to not
using alcohol since 2009, but her testimony was impeached by M.B., who had seen her
drinking and exhibiting lewd behavior at his bar since then. In addition, L.B. was not
truthful with the Fostoria Police Department during her initial interview, but later sent a
letter telling the “rest of her story.”
{¶ 69} Appellant also challenges B.C.’s statement as being unreliable, noting that
he was referred to as a liar, thief, and drug abuser, and that he tried to extort $1,000 from
appellant. In addition, B.C. stated that appellant had sex with L.M. before and after she
was at B.C.’s house, but appellant dropped L.M. off at her father’s house after they left.
{¶ 70} Further, appellant argues that L.M. had been cutting herself since 2009,
undermining the state’s position that L.M.’s psychological problems began after the
alleged sexual incidents. Moreover, L.M. had no knowledge or recollection of dates and
times, and could not credibly testify to any timeline regarding the charges, or whether the
rape occurred between April 16 to May 24, 2012, as listed in the indictment. Finally,
appellant asserts that there is no physical or scientific evidence to support the charges.
{¶ 71} Upon consideration of the evidence, we do not find that this is the
exceptional case in which the jury lost its way and created a manifest miscarriage of
justice. The jury was able to observe the witnesses, their demeanors, gestures, and voice
27.
inflections, and concluded that the state’s witnesses were more credible. L.M. testified in
detail about three separate instances in which appellant made her give him a hand job.
She also testified about the day that appellant gave her a drink that caused her to black
out. L.B. testified that she observed appellant first with his hand up L.M.’s shirt, and
then standing naked in between L.M.’s legs when L.M.’s pants were around her ankles.
P.S. testified as to L.M.’s condition on the night she blacked out, and how appellant was
encouraging her to drink copious amounts of water. P.S. also testified to B.C.’s relaying
of appellant’s admission to having sex with L.M. Appellant, for his part, denied all of the
allegations, attempted to undermine the witnesses’ credibility by depicting them as
unfaithful, violent, and vengeful drug users, and theorized that all of the witnesses
concocted the story as retaliation for appellant threatening to report that L.B. stole his
possessions and that P.S. and B.C. were selling drugs, and possibly selling them to
minors, out of their home. While there is competing evidence in the record, we do not
find that the evidence weighs heavily against the conviction. Therefore, we hold that
appellant’s convictions are not against the manifest weight of the evidence.
{¶ 72} Accordingly, appellant’s fifth assignment of error is not well-taken.
D. Ineffective Assistance of Counsel
{¶ 73} In his first assignment of error, appellant argues that he was denied the
effective assistance of counsel. To prevail on a claim of ineffective assistance, appellant
must satisfy the two-prong test developed in Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). That is, appellant must demonstrate that
28.
counsel’s performance fell below an objective standard of reasonableness, and a
reasonable probability exists that, but for counsel’s error, the result of the proceedings
would have been different. Id. at 687-688, 694. “The object of an ineffectiveness claim
is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice, which we expect will often be so, that
course should be followed.” Id. at 697.
{¶ 74} Here, appellant presents a lengthy list of purported errors by trial counsel,
which he argues undermined confidence in the outcome of the trial. Some of those errors
include trial counsel’s failure to call any witnesses to impeach the credibility of B.C.’s
out-of-court statement during a pretrial hearing on the statement’s admissibility, and her
failure to argue the testimonial nature of B.C.’s out-of-court statement. In addition,
appellant alleges that counsel failed to disclose potential witnesses and was thus limited
in which witnesses could be called at trial. Of the witnesses that counsel did call, the
testimony often went poorly and was not an effective impeachment of the state’s
witnesses’ credibility. Moreover, appellant argues that his own testimony was a
“disaster,” suggesting a lack of preparation on the part of counsel. At one point,
appellant fell apart on the stand, and the court had to take a recess so that appellant could
compose himself. Appellant also argues that counsel was ineffective for failing to object
on numerous occasions such as when Pauly testified about appellant using a date rape
drug, or when L.M. displayed the scars on her arm from cutting herself.
29.
{¶ 75} Although appellant makes a concerted effort to establish that counsel’s
performance fell below an objective standard of reasonableness, we need not grade
counsel’s performance because appellant has not demonstrated that, but for the errors, the
result of the proceeding would have been different.
{¶ 76} As to appellant’s arguments relative to B.C.’s hearsay statement, we have
held that they were not testimonial in nature, and were properly admitted under Evid.R.
803(2). To the extent that counsel could have undertaken further attacks on the
credibility of those statements, we note that the record is replete with testimony that B.C.
was a lying, lascivious, drug user. There is no indication that further testimony would
have decisively impacted the statement’s credibility.
{¶ 77} As to appellant’s arguments regarding the other potential witnesses, the
record does not reveal specifically what those other witnesses would have testified.
However, if they were called for the purposes of attacking the credibility of L.B. and
P.S., like with B.C. the record already contains multiple allegations of infidelity,
violence, conspiracy, and drug use. Further testimony on those points would be
superfluous.
{¶ 78} Regarding appellant’s own testimony, we note that appellant was able to
articulate his version of the events on direct examination, and was able to categorically
deny all of the allegations against him on cross-examination. We further note that the
worst instances of appellant’s inability to effectively answer questions did not occur until
re-direct examination when he was asked simply, “I’m just going to ask you why these
30.
people, and I’m talking about all three of them [L.M., L.B., and P.S.], would get together
and make up a lie about this? Please tell the jury.”
{¶ 79} Finally, as to appellant’s complaints over the failure to object, the record
reflects that appellant had two attorneys representing him at trial. In addition, appellant
does not argue how the un-objected to evidence was inadmissible, or how it impacted the
result of the trial given all of the other evidence presented.
{¶ 80} Therefore, we hold that appellant has not satisfied the second prong of the
Strickland test, and his claim of ineffective assistance of counsel must fail.
{¶ 81} Accordingly, appellant’s first assignment of error is not well-taken.
E. Petition for Postconviction Relief
{¶ 82} Related to his first assignment of error, in his sixth assignment of error
appellant argues that the trial court erred in denying his petition for postconviction relief
without a hearing.
{¶ 83} R.C. 2953.21(A)(1)(a) provides,
Any person who has been convicted of a criminal offense or
adjudicated a delinquent child and who claims that there was such a denial
or infringement of the person’s rights as to render the judgment void or
voidable under the Ohio Constitution or the Constitution of the United
States * * * may file a petition in the court that imposed sentence, stating
the grounds for relief relied upon, and asking the court to vacate or set aside
the judgment or sentence or to grant other appropriate relief.
31.
{¶ 84} “[A] criminal defendant seeking to challenge his conviction through a
petition for postconviction relief is not automatically entitled to a hearing.” State v.
Calhoun, 86 Ohio St. 3d 279, 282, 714 N.E.2d 905 (1999). “Before granting an
evidentiary hearing on the petition, the trial court shall determine whether there are
substantive grounds for relief * * *, i.e., whether there are grounds to believe that ‘there
was such a denial or infringement of the person’s rights as to render the judgment void or
voidable under the Ohio Constitution or the Constitution of the United States.’”
(Emphasis sic.) Id. at 282-283, quoting R.C. 2953.21(A)(1). “[A] trial court’s decision
granting or denying a postconviction petition filed pursuant to R.C. 2953.21 should be
upheld absent an abuse of discretion.” State v. Gondor, 112 Ohio St. 3d 377, 2006-Ohio-
6679, 860 N.E.2d 77, ¶ 58.
{¶ 85} In his postconviction petition, appellant again argues that he suffered the
ineffective assistance of trial counsel. Attached to his petition was an affidavit from his
trial counsel acknowledging that she was unprepared for trial and that she thus was
unable to represent appellant adequately. In addition, the petition included numerous
affidavits from individuals offering what testimony they would have provided had they
been called as a witness. The additional affidavits follow several themes: (1) appellant
was present throughout the entire “Project X” movie, (2) there was not a couch or bed at
appellant’s residence in Rising Sun as of May 17, 2012, (3) B.C. left a message with
appellant’s parents apologizing for lying about appellant’s statement that he had sex with
32.
L.M., (4) T.M. was having a sexual relationship with P.S., and (5) in July 2012, L.B.
expressed shock that L.M. would lie about the sexual allegations against appellant.
{¶ 86} In its decision, the trial court addressed these issues. The trial court
examined trial counsel’s affidavit, but determined that the alleged deficiencies would not
have impacted the trial as the failures would have only led to evidence that was
inadmissible or cumulative. Similarly, regarding the testimony about the “Project X”
movie, the trial court found that L.M. and T.M. testified that appellant left, while
appellant and S.D. testified that he stayed. The court determined that additional
testimony from parties who were not identified at trial as being there would not have
been impactful. As to the testimony concerning the absence of a couch and bed in the
Rising Sun residence as of May 17, 2012, the trial court found that the evidence
established that the rape occurred sometime between April 16 and May 24, 2012, thus
testimony that shortened the window by only a few days would not have altered the
outcome. Finally, the trial court addressed the remaining attacks on the witnesses’
credibility. The court found that most of the statements would be excluded as hearsay,
and other statements would be excluded as improper attacks against the character of
witnesses not based on their truthfulness. The court determined that allowing appellant to
call seven additional witnesses, none of whom have personal knowledge of the facts
surrounding the crimes, would not be helpful and would have unduly delayed the trial.
{¶ 87} In his brief on appeal, appellant argues that his trial counsel’s brief should
be accepted as true, and that it is conclusive evidence that her performance in failing to
33.
investigate and prepare witnesses was below an objective standard of reasonableness.
We disagree with appellant’s position, and instead accept the reasoning cited by the state
that “[a] defense counsel’s self-confessed admission of deficient representation does not
constitute ineffectiveness per se; it is just one factor to be considered in determining
whether counsel was constitutionally ineffective.” United States v. Laird, 6th Cir. No.
13-2220, 591 Fed. Appx. 332, 337, 2014 U.S. App. LEXIS 21611 (Nov. 12, 2014).
{¶ 88} Nevertheless, even if we were to accept that counsel’s affidavit
conclusively determines that her performance was below an objective standard of
reasonableness, we still must determine whether appellant suffered any prejudice as a
result. The trial court, in its decision, found that much of the additional testimony
appellant sought to present would have been barred by the rules of evidence. In his brief
on appeal, appellant does not provide any argument as to why the evidence would have
been admissible. Furthermore, the trial court found that the evidence that would have
been admissible would not have created a reasonable probability that the outcome of the
trial would have been different. Upon our examination of the record and evidence
attached to appellant’s postconviction petition, we cannot say that the trial court’s
conclusion that appellant did not receive constitutionally ineffective assistance of counsel
was unreasonable, arbitrary, or unconscionable. Therefore, we hold that the trial court
did not abuse its discretion in denying appellant’s petition without a hearing.
{¶ 89} Accordingly, appellant’s sixth assignment of error is not well-taken.
34.
F. Costs of Prosecution
{¶ 90} Finally, in his third assignment of error, appellant argues that the trial court
erred when it ordered him to pay the costs of prosecution without considering appellant’s
ability to pay those costs.3
{¶ 91} In its November 4, 2015 judgment entry of conviction, the trial court
ordered appellant to pay “the outstanding costs of this prosecution. Judgment is granted
for all court costs due and owing Wood County and execution awarded.” Notably, the
trial court did not make any mention of imposing costs during the sentencing hearing on
November 3, 2015.
{¶ 92} R.C. 2947.23(A)(1)(a) provides, “In all criminal cases * * * the judge or
magistrate shall include in the sentence the costs of prosecution, including any costs
under section 2947.231 of the Revised Code, and render a judgment against the defendant
for such costs.” This section “requires a sentencing court to impose the costs of
prosecution against all convicted defendants.” State v. Wright, 6th Dist. Wood No.
WD-11-079, 2013-Ohio-1273, ¶ 5, citing State v. White, 103 Ohio St. 3d 580, 2004-Ohio-
5989, 817 N.E.2d 393, ¶ 8. Because the imposition of costs pursuant to R.C. 2947.23 is
mandatory, this court has held that “[t]he trial court is not required to hold a hearing or
otherwise determine an offender’s ability to pay before ordering him to pay such costs.”
3
Appellant also argues that the trial court erred in failing to conduct an inquiry into
appellant’s ability to pay the costs of confinement. However, the trial court’s sentencing
entry does not order appellant to pay the costs of confinement. Thus, appellant’s
argument is irrelevant.
35.
State v. Riegsecker, 6th Dist. Fulton No. F-03-022, 2004-Ohio-3808, ¶ 10. Therefore, we
hold that the trial court did not err by ordering appellant to pay the costs of prosecution
without first determining his ability to pay.
{¶ 93} Accordingly, appellant’s third assignment of error is not well-taken.
{¶ 94} As a final matter, the state raises an issue not addressed by appellant in his
brief. The state concedes that the trial court erred by not informing appellant at the
sentencing hearing that it was imposing the costs of prosecution. In State v. Joseph, 125
Ohio St. 3d 76, 2010-Ohio-954, 926 N.E.2d 278, ¶ 22-24, the Ohio Supreme Court held
that the failure to orally notify the defendant that it was imposing court costs denied the
defendant the ability to seek a waiver of the costs. The court held that that the remedy for
such failure was a limited remand to the trial court for the purpose of allowing the
defendant to file a motion with the court for a waiver of the payment of court costs. Id. at
¶ 23. Therefore, we remand the matter to the trial court for the limited purpose of
allowing appellant to file a motion for waiver of the costs of prosecution.
IV. Conclusion
{¶ 95} For the foregoing reasons, we find that substantial justice has been done the
party complaining, and the judgments of the Wood County Court of Common Pleas are
affirmed. We nevertheless remand the matter to the trial court for the limited purpose of
36.
allowing appellant to file a motion seeking waiver of the costs of prosecution. Should
appellant file such a motion, the trial court should rule upon it within a reasonable time.
Pursuant to App.R. 24, appellant is ordered to pay the costs of this appeal.
Judgments affirmed
and remanded.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
James D. Jensen, P.J.
_______________________________
Christine E. Mayle, J. JUDGE
CONCUR.
_______________________________
JUDGE
37.