State v. McCarley

[Cite as State v. McCarley, 2018-Ohio-4685.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 28657
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
WILLARD MCCARLEY COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR-2004-05-1674-A
DECISION AND JOURNAL ENTRY
Dated: November 21, 2018
SCHAFER, Presiding Judge.
{¶1} Defendant-Appellant, Willard McCarley, appeals from his convictions in the
Summit County Court of Common Pleas. This Court affirms.
I.
{¶2} In 2004, McCarley was arrested in connection with a murder that occurred twelve
years earlier. The victim, C.P., was the mother of his son and was in the process of seeking child
support from him when she was murdered. On the morning of January 20, 1992, a neighbor
entered C.P.’s apartment and discovered her body beneath a blanket on the couch. C.P. had a
belt looped around her neck, a small plastic bag in her mouth, and multiple head wounds. The
door to her apartment, which required a key to be locked from the outside, was locked when the
neighbor arrived.
{¶3} C.P. had two young sons, both of whom were home when she was murdered. The
eldest son, who was then three and a half years old, was able to unlock the apartment door for the
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neighbor when she arrived. Both that day and in the days that followed, the eldest son indicated
that a policeman had hurt his mother. Although the police initially investigated McCarley, the
investigation eventually stalled, and the case remained unresolved for a number of years.
{¶4} In 1995, the police arrested McCarley on an unrelated matter. The actual arrest
took place at his home in his garage. While McCarley was being taken into custody, one of the
officers noticed a deputy sheriff’s jacket and hat with a sheriff’s insignia hanging on a dolly in
the garage. Because McCarley had no law enforcement affiliations, the police confiscated and
retained the items.
{¶5} In 2004, DNA testing was performed on swabs taken from each end of the belt
that was found looped around C.P.’s neck. Y-STR testing, which had not been available at the
time of her murder, uncovered at least two male profiles. When comparing those profiles with
McCarley’s profile, analysts determined that he could not be excluded as the source of the major
profile. Consequently, McCarley was finally arrested for C.P.’s murder.
{¶6} A grand jury indicted McCarley on one count of aggravated murder. His first jury
trial resulted in a conviction, but it was overturned on appeal. See State v. McCarley, 9th Dist.
Summit No. 22562, 2006-Ohio-1176. Because the trial court had improperly vouched for a key
witness in the presence of the jury, this Court determined that McCarley had been denied a fair
trial. Id. at ¶ 19. As such, we remanded the matter for further proceedings. Id. at ¶21.
{¶7} On remand, McCarley filed several motions to suppress, including one that
challenged the seizure of the sheriff’s jacket and hat found in his garage. The trial court held a
hearing on his motion and later denied it. The matter then proceeded to a second jury trial. That
trial also resulted in a conviction, and McCarley once again appealed. On review, this Court
affirmed his conviction. See State v. McCarley, 9th Dist. Summit No. 23607, 2008-Ohio-552.
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{¶8} McCarley later moved for habeas relief in federal court, and several years of
litigation ensued. In 2015, the Sixth Circuit Court of Appeals, on remand from the United States
Supreme Court, determined that his second trial had resulted in a violation of his rights under the
Confrontation Clause. See McCarley v. Kelly, 801 F.3d 652 (6th Cir.2015). Accordingly, the
Sixth Circuit ordered the District Court to issue a conditional writ of habeas corpus, id. at 668,
and the matter once again came before the trial court for further proceedings.
{¶9} A third jury trial was held, at the conclusion of which the jury found McCarley
guilty of aggravated murder. The court sentenced him to life in prison with the possibility of
parole in 20 years. In its sentencing entry, the court wrote that McCarley would be eligible for
parole “after Twenty (20) full years.”
{¶10} McCarley now appeals from his conviction and raises three assignments of error
for our review. For ease of analysis, we rearrange the assignments of error.
II.
Assignment of Error II
The trial court erred when it denied the motion to suppress the sheriff’s coat
and hat found in Willard McCarley’s garage.
{¶11} In his second assignment of error, McCarley argues that the trial court erred by
denying his motion to suppress. Because McCarley is precluded from raising this issue, we
overrule his assignment of error.
{¶12} “The doctrine of law of the case ‘provides that the decision of a reviewing court
in a case remains the law of that case on the legal questions involved for all subsequent
proceedings in the case at both the trial and reviewing levels.’” State v. Chapman, 190 Ohio
App.3d 528, 2010-Ohio-5924, ¶ 7, quoting Nolan v. Nolan, 11 Ohio St. 3d 1, 3 (1984). The
doctrine “is rooted in principles of res judicata and issue preclusion * * *.” State v. Fischer, 128
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Ohio St. 3d 92, 2010-Ohio-6238, ¶ 35. “Thus, [it] has been applied to preclude a litigant ‘from
attempting to rely on arguments at a retrial [that] were fully pursued, or available to be pursued,
in [an earlier] appeal.’” (Emphasis added.) State v. Hartman, 9th Dist. Medina No. 12CA0057-
M, 2013-Ohio-4407, ¶ 6, quoting Chapman at ¶ 7.
{¶13} McCarley filed his motion to suppress before his second trial, and the court
denied his motion at that time. McCarley could have challenged the court’s suppression ruling
when pursuing his second direct appeal, but he did not do so. And while McCarley secured
federal relief, that relief only pertained to errors that occurred at his trial. It did not address any
pretrial proceedings or rulings. Accordingly, McCarley may not now litigate an issue that was
available to be pursued in his earlier appeal. Hartman at ¶ 6-7. His argument “is subject to issue
preclusion pursuant to the law of the case doctrine.” Id. at ¶ 7, citing Chapman at ¶ 8. Thus, his
second assignment of error is overruled on that basis.
Assignment of Error I
Willard McCarley’s conviction is against the manifest weight of the evidence,
in violation of the Fifth and Fourteenth Amendments to the United States
Constitution and Article I, Section 16 of the Ohio Constitution.
{¶14} In his first assignment of error, McCarley argues that his conviction is against the
manifest weight of the evidence. Specifically, he argues that the jury lost its way when it
concluded that he was the individual who perpetrated C.P.’s murder. We disagree.
{¶15} In determining whether a criminal conviction is against the manifest weight of the
evidence, this Court is required to consider the whole record, “weigh the evidence and all
reasonable inferences, consider the credibility of the witnesses and determine whether, in
resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.”
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State v. Otten, 33 Ohio App. 3d 339, 340 (9th Dist.1986). “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 * * * disagrees with the fact[-]finder’s resolution of the conflicting testimony.”
State v. Thompkins, 78 Ohio St. 3d 380, 387 (1997), quoting Tibbs v. Florida, 457 U.S. 31, 42
(1982). An appellate court should exercise the power to reverse a judgment as against the
manifest weight of the evidence and grant a new trial “only in exceptional cases where the
evidence weighs heavily against the conviction.” Otten at 340.
{¶16} At the time of her death, C.P. was 26 years old and lived in a small apartment
with her two boys. Her eldest son was about three and a half then, and her youngest son was
about a year younger. C.P.’s mother testified that the two boys had different fathers and
McCarley was the father of the youngest boy. Although the eldest boy’s father paid child
support, C.P. did not receive any child support from McCarley. Indeed, there was testimony that
he questioned the boy’s paternity even after he obtained the results of a paternity test. C.P.’s
mother testified that C.P. babysat other children at her apartment to earn money, but was
otherwise unemployed and in dire financial shape. She and several others testified that they
repeatedly encouraged C.P. to seek child support from McCarley. In late November 1991, less
than two months before her murder, C.P. finally did so in conjunction with her request for
welfare benefits. The State produced evidence that she and McCarley were scheduled to appear
in court for a pretrial hearing on February 6, 1992.
{¶17} Sometime during the weeks leading up to C.P.’s murder, an old acquaintance of
McCarley’s spotted him while waiting in line at the unemployment office. The acquaintance
testified that he had gone to school with McCarley and also knew C.P. because she was friends
with his sister. When he saw McCarley, the two began talking, and McCarley began
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complaining about C.P. taking him to court to secure child support. According to the
acquaintance, McCarley appeared to be angry while discussing C.P. and “said he would kill her
first before he would pay child support.” The acquaintance testified that their conversation
ended shortly thereafter and he dismissed McCarley’s threat because he did not take him
seriously.
{¶18} There was testimony that, four days before her murder, C.P. went to visit her
mother at her mother’s place of employment. Both her mother and her mother’s close friend/co-
worker spoke with C.P. that afternoon. They each testified that C.P. was uncharacteristically
quiet and appeared anxious about the impending child support action. Her mother stated that
C.P. had filed court papers that day and was nervous because she was “very afraid” of McCarley.
Likewise, the friend/co-worker stated that C.P. looked scared and “distraught.” She testified that
she spoke with C.P. for over an hour that day and tried to reassure her that “getting child support
was a normal thing and [] she had nothing to be afraid of.”
{¶19} There was evidence that, two days before her murder, C.P. had an argument with
McCarley in the parking lot of her apartment complex. First, one of C.P.’s neighbors recalled
seeing her speaking with an unidentifiable person in a car and snatching her arm away when the
person grabbed it. Second, C.P.’s close friend testified that C.P. came to her office that day
because she had just had a fight with McCarley. The friend testified that C.P. had been nervous
about seeking child support because she knew it would make McCarley “really angry.” That
day, C.P. was “panic stricken” as she described how McCarley had just “threatened her and said
to stop the proceedings because she would not live to see the court date if she didn’t.” The friend
testified that she encouraged C.P. to go to the police, but C.P. rejected the idea because it would
simply be her word against McCarley’s. Finally, a man who had just begun dating C.P. also saw
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her that day. The man testified that C.P. came to his workplace and told him that she had just
had a fight with the father of her youngest son regarding child support. The man also testified
that C.P. looked as if she had been crying and appeared agitated.
{¶20} C.P. saw her mother again the day before her murder. Her mother testified that
she picked up C.P. and her boys and brought them to her house for most of the day. During that
time, C.P. was “very, very fidgety” and upset over an argument she had had with McCarley the
previous day. According to C.P.’s mother, C.P. told her that McCarley had said “he would see
her dead before he would pay child support.” She testified that C.P. was “very terrified” as a
result of that conversation, but declined her offer to spend the night because she had to babysit at
her apartment the following morning. C.P.’s mother last saw C.P. alive when she brought her
and the boys back to their apartment that evening.
{¶21} The following morning, a neighbor of C.P.’s brought her two children to C.P.’s
apartment so that C.P. could babysit them. The neighbor found the apartment door locked,
however, and no one answered when she repeatedly knocked. The neighbor could hear C.P.’s
sons playing inside, so she called to them and ultimately succeeded in getting the older boy to
unlock the door. Once inside, she saw a person she believed to be C.P. lying on the couch
beneath a blanket. She thought C.P. might be sleeping, so she walked over and nudged her.
When that did not work, she pulled the blanket away from C.P.’s head, saw a significant amount
of blood, and realized C.P. was dead. She then fled the apartment and sought help from a
neighbor who lived directly below C.P.
{¶22} The downstairs neighbor testified that she had stayed awake the previous night,
waiting for a television show that was scheduled to air around midnight or 1:00 a.m. Around
that time, she heard several noises coming from C.P.’s upstairs apartment, including a stomping
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noise, a “rumbling” noise, and the sound of running water. She testified that she did not realize
anything was wrong until the following morning when the neighbor who discovered C.P.’s body
came to her door asking for help. At that point, the downstairs neighbor went to C.P.’s
apartment, collected all of the children, and called the police.
{¶23} There was evidence that, when C.P.’s body was discovered, she had a belt
wrapped around her neck and a small, plastic bag in her mouth. Her head was lying on a blood-
stained pillow, and there was a second blood-stained pillow by her feet. Dr. Lisa Kohler was not
the medical examiner at the time of C.P.’s murder, but reviewed the autopsy report, any related
reports, and the notes of her predecessor for trial. She testified that C.P. died as a result of
cardiorespiratory arrest caused by asphyxiation, meaning that someone had placed an object over
her head and nose “with an effort also at strangulation.” Dr. Kohler found reasonable her
predecessor’s opinion that the blood-stained pillow found by C.P.’s feet had been used to
suffocate her. She noted, however, that C.P. also had ligature marks on her neck from the belt
and multiple head wounds. She testified that C.P. had been struck in the head at least five times
with a blunt object and her hands and arms displayed “defensive type” abrasions. Dr. Kohler
opined that the head wounds were significant, would have caused a lot of bleeding, and likely
would have rendered C.P. either unconscious or unable to fully function. She estimated that C.P.
died during the early morning hours of January 20, 1992, possibly between 12:00 a.m. and 1:00
a.m.
{¶24} C.P.’s eldest son was 28 years old at the time of McCarley’s third trial. He
testified that, for a long time, he could not remember what happened the night of his mother’s
murder, but he eventually began having flashbacks that allowed him to recall certain details. He
recalled being in his bedroom when he heard a loud scream. Leaving his younger brother asleep,
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he came out into the hallway and peeked into the living room. He recalled seeing his mother on
the couch below their window and two men, the taller of whom was wearing a black coat. As his
mother argued with the taller man, he remembered the man putting a pillow on his mother’s head
and his mother struggling and kicking her legs toward the window. After that, he recalled the
two men arguing and one of them finally noticing him. He testified that man then came over,
told him to go back to bed, and threatened to kill him if he said anything. Though he returned to
his bedroom, he came out again later and walked to the bathroom where he saw one of the men
“wiping down the wall by the bathtub.” That same wall “fluoresce[d] tremendously” when
Officer John Boykin sprayed it with Luminol. Officer Boykin explained that Luminol fluoresces
when mixed with chemicals such as bleach. He testified that, once he sprayed the bathroom
walls, he was able to see streak marks on them. According to the officer, the walls looked as if
someone had recently taken a rag to them.
{¶25} Apart from the testimony that C.P.’s eldest son tendered as an adult, other
witnesses testified regarding statements he made around the time of the murder. Officer Eric
Breiding was the first officer to respond to C.P.’s apartment the morning her body was found and
encountered her boys at a neighbor’s apartment. He testified that, as soon as C.P.’s eldest son
saw him, the boy “blurted out, ‘He did it. He hurt mommy.’” Officer Breiding testified that the
eldest son made that same statement each time he saw a uniformed officer that morning. Indeed,
even later that same evening, the eldest son reacted to Officer Breiding’s uniform when Officer
Breiding accompanied Detective John Karabatsos to interview C.P.’s mother at her house. The
detective testified that, as soon as C.P.’s eldest son saw Officer Breiding, he appeared fearful,
pointed to him, and stated, “‘The policeman did it.’”
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{¶26} A few days later, the eldest son made a series of statements while staying at C.P.’s
mother’s house. C.P.’s mother wrote down his statements so as not to forget them and read her
notes for the jury. According to C.P.’s mother, the eldest son stated:
“I am going to get the belt. A policeman. Go kick that window. Phone. Get the
stick. I’m going to shoot you. Kick the window. Bathroom. Are you out of
here. Don’t have no fun. You got a phone. A policeman. My mom seen the
policeman. Gun. Threw in garage. Sleeping on couch. I’m going to crack you.
Kick the window. Not getting out of here. Bob. I’m not going to your house.
Corner. Call Paw Paw. Get your radio. Go to sleep. Don’t shoot. Paw Paw.
Got the paper. Policeman did it not the guy. Lights on. Big light. No
telephones. You hear me. Policeman got buttons. What you come my house for.
What you do that to my mom. You break window. Bob. Policeman hit my
mommy. Put tape on her. Put nuts in her mouth.
C.P.’s mother testified that, at the time the eldest son made the foregoing statements, he had tears
in his eyes, was motioning to his neck, and was sitting nearby a picture of C.P.
{¶27} Officer Breiding testified that C.P.’s apartment door had one dead bolt and, to
lock the door from the outside, one had to have a key. The neighbor who discovered C.P.’s body
found the door locked when she arrived, and Officer Breiding confirmed that C.P.’s key was
never found. There were no signs of forced entry, and the investigating officers testified that the
scene did not appear to be consistent with a robbery or drug-related incident.
{¶28} In 1992, Detective Dennis Balogh and another detective went to McCarley’s
home to arrest him in connection with an unrelated warrant. Detective Balogh had aided in
C.P.’s murder investigation, so he knew that her eldest son had blamed a policeman for her
murder. He testified that McCarley’s garage door was open when they arrived, and McCarley
was inside the garage area. While arresting McCarley, Detective Balogh saw a black deputy
sheriff’s jacket and hat with a sheriff’s insignia plainly hanging on a dolly in the garage.
Because McCarley had no law enforcement affiliations, the detective confiscated the items. A
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former co-worker of McCarley’s confirmed that he had seen McCarley wearing a police jacket to
work on several occasions.
{¶29} There was evidence that the belt found around C.P.’s neck matched a leather
jacket that she kept in her apartment closet. Swabs taken from each end of the belt were
subjected to Y-STR testing in 2004 and again in 2016 due to advancements in testing. The
analysts responsible for each set of tests testified that the profiles of at least two males were
detected within the belt samples and that McCarley could not be excluded as the source of the
major profile. Because all males within a familial line have identical Y-chromosome profiles,
however, the analysts were careful to note that they also could not exclude any male relatives of
McCarley’s (e.g., his son) as the source of that major profile.
{¶30} During his case-in-chief, McCarley presented the testimony of his former
girlfriend, his sister, and his mother. The former girlfriend testified that she was with McCarley
on the day he allegedly argued with C.P. in the parking lot of her apartment complex. The
former girlfriend described their conversation as civilized and denied that they argued or that
McCarley threatened C.P. Though no one else saw the former girlfriend in McCarley’s car that
day, she claimed that she had her seat in a partially reclined position, such that it would have
been difficult to see her.
{¶31} McCarley’s sister testified that she and McCarley both used to live at their
parents’ home. She testified that she arrived home between 12:00 and 1:30 a.m. on the night of
C.P.’s murder and McCarley’s car was already parked in the driveway. She never actually saw
McCarley after arriving home, but heard the basement television on and assumed he was down
there. She testified that the family had two dogs and, had McCarley arrived home after her, she
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would have heard the dogs react. Even so, she admitted that she could not remember when she
next saw McCarley.
{¶32} McCarley’s mother also testified that McCarley was at home when C.P.’s murder
was thought to have occurred. She testified that she remembered that particular weekend
because she was bedridden as the result of an allergic reaction. She recalled that, during the day
leading up to the murder, McCarley had gone to dinner with his fiancée and had arrived home
around 11:00 p.m. She stated that she knew he was home because he visited with her for a while
before going to bed. Much like her daughter, she testified that she would have heard their dogs
react if McCarley had left again and returned later on. She admitted on cross-examination,
however, that she had health problems around the time of the murder and those problems
affected her memory.
{¶33} McCarley argues that his aggravated murder conviction is against the manifest
weight of the evidence because the State’s case was entirely circumstantial and virtually all of its
witnesses either exaggerated or fabricated their testimony. With respect to C.P.’s mother, he
notes that she never told the police he threatened C.P.’s life. He argues that the alleged threat
only came to light when the mother testified and, had it actually happened, she would have told
the police about it earlier on. Likewise, with respect to the mother’s close friend/co-worker,
McCarley argues that her testimony lacks credibility because there was no evidence that she
spoke with the police before 2003. As for the co-worker who testified that McCarley sometimes
wore a sheriff’s jacket, McCarley argues that the co-worker did not come forward until he was
facing federal charges and benefited from the self-serving testimony that he offered. McCarley
also points to inconsistencies and reporting delays in the testimony of C.P.’s close friend and the
neighbor who allegedly saw someone in a car grab C.P.’s arm before she snatched it away.
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{¶34} Having reviewed the record, we cannot conclude that the jury lost its way when it
determined that McCarley perpetrated C.P.’s murder. The State produced a large amount of
circumstantial evidence that, when viewed collectively, implicated McCarley. See State v.
Taylor, 9th Dist. Summit No. 27273, 2015-Ohio-403, ¶ 9 (“As with any other element, * * *
identity may be proved by direct or circumstantial evidence, which do not differ with respect to
probative value.”). There was evidence that McCarley was angry with C.P. for seeking child
support, that she was afraid of him, and that he threatened her life a few days before her murder.
While C.P.’s mother may have failed to report that specific threat at an earlier date, she was not
the only witness who testified that McCarley verbally threatened C.P.’s life. Moreover, she told
the police that C.P. was very fearful of McCarley and that he had just confronted her about the
child support proceedings. To the extent that she or other witnesses delayed reporting certain
information or waited to come forward, the jury was “in the best position to determine [their]
credibility * * * and evaluate their testimony accordingly.” State v. Johnson, 9th Dist. Summit
No. 25161, 2010-Ohio-3296, ¶ 15.
{¶35} The jury heard testimony that C.P.’s eldest son reacted fearfully when
encountering uniformed officers and indicated that a policeman had hurt his mother. Because
the State produced evidence that McCarley owned and sometimes wore a deputy sheriff’s jacket
and hat, the jury reasonably could have inferred that he was wearing those items when the
murder occurred. Moreover, there was evidence that McCarley could not be excluded as the
source of the major profile that analysts uncovered when testing samples taken from the ends of
the belt that was used to strangle C.P. Although McCarley and his son shared a Y-STR profile,
the jury reasonably could have concluded that the profile the analysts uncovered was attributable
to the attack and McCarley rather than to any prior, incidental touching on the part of his son.
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Upon review, this is not the exceptional case where the jury lost its way by convicting McCarley.
See Otten, 33 Ohio App. 3d at 340. We, therefore, reject his argument that his conviction is
against the manifest of the evidence. McCarley’s first assignment of error is overruled.
Assignment of Error III
The trial court’s imposition of life imprisonment with parole eligibility after
twenty full years was contrary to law and violated the prohibition against ex
post facto and retroactive penalty enhancements.
{¶36} In his third assignment of error, McCarley argues that his sentence is contrary to
law. Because McCarley is precluded from raising this issue, we overrule his assignment of error.
{¶37} In general, a defendant who is convicted of a felony may appeal his sentence on
the basis that it is contrary to law. See R.C. 2953.08(A)(4). If the sentence is one “imposed for
aggravated murder or murder pursuant to [R.C.] 2929.02 to 2929.06,” however, it “is not subject
to review under [R.C. 2953.08].” R.C. 2953.08(D)(3). The Ohio Supreme Court has recognized
that “R.C. 2953.08(D) clearly precludes review of individual murder sentences imposed pursuant
to [those sections] * * *.” State v. Porterfield, 106 Ohio St. 3d 5, 2005-Ohio-3095, ¶ 19.
{¶38} McCarley’s argument is that his aggravated murder sentence does not comport
with Former R.C. 2929.03. He has not challenged his sentence on any other grounds. See, e.g.,
State v. Williams, 148 Ohio St. 3d 403, 2016-Ohio-7658 (reviewing sentences for aggravated
murder and murder on grounds that defendant was sentenced to allied offenses); Porterfield at ¶
19-24 (noting that R.C. 2953.08(D) would not bar a challenge based on the imposition of
consecutive life sentences because they are not imposed pursuant to R.C. 2929.02 to 2929.06).
Because R.C. 2953.08(D)(3) “clearly precludes review of individual murder sentences imposed
15
pursuant to [R.C. 2929.03],” we cannot review the merits of McCarley’s argument.1 Porterfield
at ¶ 19. As such, his assignment of error is overruled.
III.
{¶39} McCarley’s assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JULIE A. SCHAFER
FOR THE COURT
1
We would note that our holding does not impact the availability of any relief that might be
afforded pursuant to Crim.R. 36.
16
TEODOSIO, J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
CRAIG M. JAQUITH and PETER GALYARDT, Assistant Public Defenders, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney, for Appellee.