[Cite as State v. Shorts,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

STATE OF OHIO C.A. No. 11CA009965

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE TERRENCE T. SHORTS, JR. COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO Appellant CASE No. 09CR079495

DECISION AND JOURNAL ENTRY

Dated: December 5, 2011

WHITMORE, Presiding Judge.

{¶1} Defendant-Appellant, Terrence Shorts, Jr., appeals his conviction in the Lorain

County Court of Common Pleas. This Court affirms.

I

{¶2} On November 3, 2009, Detectives Corey Middlebrooks and Miguel Baez of the

Lorain Police Department were patrolling in the Fulton Homes area of Lorain in an unmarked

cruiser. Fulton Homes is a high crime, high drug trafficking area that had recently been the

subject of many citizen complaints regarding the level of drug trafficking, trespassers, and gang

activity. The detectives observed a black male exit the rear of a suspected drug house at 3195

Victory Avenue (“Victory”). The house was the residence of Troy Wardell, a known drug dealer

who had been previously arrested for possession of drugs.

{¶3} The officers then circled around Fulton Homes and observed an individual fitting

the same description walking south on Victory toward Factory Avenue (“Factory”). As the 2

individual came to the intersection of Victory and Factory, he turned left and began walking

eastbound in the middle of Factory. The officers initiated their lights and pulled up next to the

individual. The individual then “bladed,” or shielded, his body from the officers and continued

walking around the rear passenger side of a vehicle that was parked on the south side of the street

in front of 1310 Factory. After the officers exited the cruiser and yelled at the individual to stop,

the individual threw his hands in the air. As he threw his hands in the air, an object left his right

hand and landed nearby in the tree lawn. While Detective Baez escorted the individual to the

cruiser, Detective Middlebrooks retrieved the object, which turned out to be a pill bottle. The

pill bottle contained foil packaging, which Detective Middlebrooks recognized to be consistent

with the way drug dealers and drug abusers package heroin. At that juncture, Detective Baez

handcuffed the individual for safety while Detective Middlebrooks field tested the contents of

the bottle. He received a positive result for heroin.

{¶4} The individual was then identified as Shorts and arrested for possession of drugs

in violation of R.C. 2925.11(A), a felony of the fifth degree, and one count of possession of drug

paraphernalia in violation of R.C. 2925.14(C)(1), a misdemeanor of the fourth degree. Shorts

was also issued a citation for walking in the roadway in violation of the Codified Ordinances of

Lorain (“COL”) § 371.05, a minor misdemeanor. The officers also learned that the parked

vehicle belonged to Shorts.

{¶5} On December 16, 2009, Shorts was indicted by the Lorain County Grand Jury and

charged with one count of possession of drugs in violation of R.C. 2925.11(A), and one count of

possession of drug paraphernalia in violation of R.C. 2925.14(C)(1). Shorts entered a not guilty

plea. On April 1, 2010, Shorts filed a motion to suppress. The trial court denied Shorts’ motion

on June 22, 2010. On November 18, 2010, Shorts pleaded no contest to count one of the 3

indictment and count two was dismissed. On February 9, 2011, Shorts was sentenced to one

year of community control. Shorts’ driver’s license was also suspended for six months. The trial

court stayed the execution of the sentence pending appeal.

{¶6} Shorts now appeals from his conviction and raises four assignments of error for

our review. For ease of disposition, we combine our analysis of Shorts’ first two assignments of

error.

II

Assignment of Error Number One

“THE TRIAL COURT’S FINDINGS OF FACT WERE NOT SUPPORTED BY COMPETENT CREDIBLE EVIDENCE.”

Assignment of Error Number Two

“THE TRIAL COURT ERRED IN CONCLUDING THAT THE POLICE HAD REASONABLE ARTICULABLE SUSPICION TO STOP THE APPELLANT.”

{¶7} In his first two assignment of error, Shorts argues that the trial court erred by

denying his motion to suppress. We disagree.

{¶8} As this Court has consistently recognized, the Ohio Supreme Court has held that:

“Appellate review of a motion to suppress presents a mixed question of law and fact. When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses. State v. Mills (1992),

. Consequently, an appellate court must accept the trial court’s findings of fact if they are supported by competent, credible evidence. State v. Fanning (1982),

. Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard. State v. McNamara (1997),

.” State v. Johnson, 9th Dist. No. 25525, 2011- Ohio-3941, at ¶5, quoting State v. Burnside,

, 2003-Ohio- 5372, at ¶8.

“[T]he weight to be given the evidence and the credibility of witnesses are primarily for the trier

of the facts.” State v. Brooks, 9th Dist. No. 07CA009137,

, quoting State 4

v. DeHass (1967),

, paragraph one of the syllabus. Thus, the trial court is in

the best position to make credibility determinations and is free to choose which witnesses to

believe. State v. Kurjian, 9th Dist. No. 06CA0010-M,

. Accordingly,

this Court reviews the trial court’s factual findings for competent, credible evidence and

considers the court’s legal conclusions de novo. State v. Conley, 9th Dist. No. 08CA0009454,

, citing

.

{¶9} The State conceded that the encounter between the Detectives and Shorts was not

a consensual encounter and constituted a stop for Fourth Amendment purposes. Shorts maintains

that the Detectives did not have the requisite reasonable suspicion to stop him. “An investigatory

stop must be justified by some objective manifestation that the person stopped is, or is about to

be, engaged in criminal activity.” United States v. Cortez (1981),

. Reasonable

suspicion requires only that the officers “be able to point to specific and articulable facts which,

taken together with rational inferences from those facts, reasonably warrant that intrusion.”

Terry v. Ohio (1968),

.

“The Ohio Supreme Court has identified certain specific and articulable facts that would justify an investigatory stop by way of reasonable suspicion, factors which fall into four general categories: (1) location; (2) the officer’s experience, training or knowledge; (3) the suspect’s conduct or appearance; and (4) the surrounding circumstances. No single factor is dispositive; the decision must be viewed based on the totality of the circumstances.” (Internal citation omitted.) State v. White, 9th Dist. No. 05CA0060,

, citing State v. Bobo (1988),

.

{¶10} Furthermore, “[a] police officer may conduct a constitutionally valid traffic stop

when there is a reasonable suspicion that the individual violated a traffic law. State v. Lloyd

(1998),

; see, also, Knowles v. Iowa (1998),

(concluding

that the stopping of an individual for a misdemeanor traffic offense is ‘analogous to a so-called

‘Terry stop’)” State v. Price (Sept. 21, 2000), 10th Dist. No. 99AP-806, at *1; Accord State v. 5

Salas, 9th Dist. No. 21891,

(reasonable suspicion standard applies

when analyzing the violation of a city ordinance that prohibited jaywalking).

{¶11} COL § 371.05, WALKING ALONG HIGHWAYS, appears under Title Nine of

the Lorain Traffic Code (Pedestrians, Bicycles and Motorcycles) and reads in relevant part as

follows: “(a) Where a sidewalk is provided and its use is practicable, no pedestrian shall walk

along and upon an adjacent roadway.” The trial court, based on the facts recited above,

concluded that:

“Detective Middlebrooks testified that he observed [Shorts] walking in the middle of Factory Avenue in an eastbound direction. *** It must be noted that during this incident it was discovered that [Shorts’] vehicle was parked at or about 1310 Factory Ave. This address is not near the corner of Factory Ave. where an unmarked crosswalk may have been used. [T]here was no testimony offered that would suggest that the use of the sidewalk was not practicable under the circumstances. The testimony only supports a finding that [Shorts] was walking within the roadway, outside of any crosswalk. Thus, the officers had more than reasonable suspicion, as they had probable cause that [Shorts] had committed a violation of Lor Cod Ord § 371.05(e)[(sic)]. Although the offense was not an arrestable offense, clearly [Shorts] may be stopped and cited for said violation. Therefore the stop of [Shorts] was lawful.”

The Court further concluded that once the pill bottle was retrieved and its contents field tested

positive for heroin, the Detectives had probable cause to arrest Shorts.

{¶12} Shorts first takes issue with certain of the trial court’s findings of fact and

contends that they are not supported by competent, credible evidence; namely, that Detective

Middlebrooks observed a black male exiting a suspected drug house; that the officers circled

around Fulton Homes and observed an individual fitting the same description walking from

Victory toward Factory; and that as the individual came to Factory, he began walking eastbound

in the middle of Factory. We disagree and conclude that there was competent, credible evidence

to support those findings. 6

{¶13} Detectives Baez and Middlebrooks testified at the suppression hearing. Both

detectives testified that they were familiar with Wardell, a known drug dealer who had been

previously arrested for drug activity, and that they knew 3195 Victory was Wardell’s residence.

It was certainly rational for the trial court to infer that drug activity might take place at the

residence of a known drug dealer. Thus, the trial court’s finding that Wardell’s residence was a

“suspected drug house” was supported by competent, credible evidence.

{¶14} Detective Baez, who was driving the cruiser, testified that he “observed a black

male walking from – directly from the rear of the residence [at 3195 Victory Ave.] *** Now he

began walking southbound on Victory Avenue on the sidewalk towards Factory.” Detective

Middlebrooks testified that “we observed [a male] exit [Wardell’s] residence” and that he

“watched him exit from the back door and walk towards Factory.” He further testified that

“[t]he same male that I identified exiting from [Wardell’s] residence at some point I did see

walking through the lawn back toward Fulton Homes or toward Factory Avenue.” Detective

Middlebrooks identified the male as being “African American” but did not recognize him as a

regular resident or visitor to the area. Therefore, based on the foregoing testimony we conclude

that there was competent, credible evidence to support the trial court’s finding that a black male

exited Wardell’s residence and that he was the same male that was later apprehended on Factory.

{¶15} Shorts contests the foregoing findings because he argues that the officers stopped

him primarily on suspicion of trespassing after he was seen exiting the residence of a known

drug dealer in a high crime area, and that those facts, standing alone, do not constitute a lawful

basis for concluding he was engaged in criminal conduct. In support of his argument, he relies

on Brown v. Texas (1979),

(appellant observed walking in a high crime, public

area and Court concluded officers lacked reasonable suspicion because there was no evidence 7

appellant was involved in criminal conduct or that he appeared suspicious). Yet, Shorts’

argument that he was stopped primarily on suspicion of trespassing is not supported by the

testimony presented at the suppression hearing. Detectives Baez and Middlebrooks both testified

that they were initially interested in following and possibly speaking with Shorts after observing

him exit the rear of Wardell’s residence, which was located in a high crime, high drug activity

area that had been the subject of citizen complaints. However, the testimony of both detectives

was consistent that as the sequence of events unfolded, they did not initiate the stop until after

Shorts was seen walking in the roadway on Factory, a citable violation under COL § 371.05(a).

{¶16} Detective Baez testified as follows on direct examination:

“Q: *** I believe you said at that point in time you felt [Shorts] could be summoned. What do you mean by that?

“A: He could actually be issued a citation for walking in the roadway.

“Q: Was that your objective, your goal, when you turned on the lights?

“A: Yes.

Detective Baez later testified on cross-examination:

“A: *** He was walking in the roadway. We didn’t stop him until he was stopped into the roadway, sir.

“Q: So you stopped him for trespassing in the roadway?

“A: No, walking in the roadway.

Detective Middlebrooks testified as follows on cross-examination:

“Q: *** Was it your decision to charge Mr. Shorts with allegedly walking in the road?

“A: I have a partner and we discussed the whole situation. And like I - - when we observed Mr. Shorts and he was walking down the middle of the road, at some point before we initiated the stop, which was turning on our lights, we discussed, Hey, he’s walking down the middle of the road. Let’s stop this guy.” 8

{¶17} Thus, while the officers may have had other reasons for following Shorts, such as

the fact that he was seen walking in a high crime area after leaving a known drug house, and that

he was not familiar to the officers, for purposes of the Fourth Amendment, he was stopped for

violating a traffic law. “[T]raffic stops based on probable cause, even if other motivations

existed, are not illegal.” Dayton v. Erickson (1996),

. Accord State v.

Copeland, 5th Dist. No. 2004CA00208,

. (appellant observed in a high

crime, high drug, high prostitution area walking in the middle of the roadway; officers stopped

him and issued a ticket for walking in the roadway; court concluded these facts established

reasonable suspicion of criminal behavior and stop was valid). Accordingly, the essential

question before us now is whether the trial court correctly concluded that “the officers had more

than reasonable suspicion, as they had probable cause that [Shorts] had committed a violation of

[COL] § 371.05[].”

{¶18} As previously noted, COL § 371.05(a) prohibits a pedestrian from walking along

and upon an adjacent roadway where a sidewalk is provided and its use is practicable. Shorts

argues that the trial court erred in concluding that the detectives had reasonable suspicion to

detain him for violating COL § 371.05(a) because there were discrepancies in the testimony of

the detectives as to whether he was “walking in the middle of Factory Avenue in an eastbound

direction,” and therefore, “along and upon an adjacent roadway” in violation of the ordinance.

Specifically, Shorts contends that the testimony of the two detectives was broadly disparate on

this fact and that Detective Baez’ testimony was more credible than Detective Middlebrooks’

testimony. He also maintains that the trial court erred in concluding that there was no evidence

presented that the use of the sidewalk was “not practicable under the circumstances.” He further

argues that because the trial court did not explain why it chose to believe the testimony of one 9

officer over the other, it is reasonable to conclude that its findings are not entitled to deference.

We disagree.

{¶19} Our review of the hearing transcript reveals that any discrepancies between the

detectives’ testimony were minor, and we conclude that their testimony was essentially

consistent on the relevant points. Detective Baez testified repeatedly that Shorts was walking “in

the roadway.” Detective Middlebrooks also testified repeatedly that Shorts walked “in the

middle of the roadway.” The discrepancy to which Shorts refers is the detectives’ testimony as

to the distance that Shorts walked eastward from the intersection of Victory and Factory to his

vehicle. Detective Baez testified that Shorts angled just “catty corner” off the intersection about

three or four feet outside the unmarked crosswalk toward his vehicle, which he claimed was

parked about twelve feet from the intersection. However, Detective Baez admitted to being

unsure as to the exact distance that the vehicle was parked from the intersection. Shorts argues

that COL § 371.05(a) does not prohibit walking across the road at a little bit of an angle.

Detective Middlebrooks testified that he disagreed with Detective Baez and that Shorts actually

walked further east “down the middle of the roadway” approximately eighty feet to where his

vehicle was parked, and that he only angled off the intersection to get to the middle of the road.

{¶20} Most significant to this Court’s analysis on this discrepancy is the fact that the

detectives’ testimony agreed on one key piece of evidence, and that is, that Shorts’ vehicle was

parked in front of 1310 Factory and that this marked the point at which Shorts walked around the

rear passenger side of the vehicle toward the tree lawn. Detective Middlebrooks testified that

this address was also recorded in the police report that he completed just a few hours after the

encounter. The photographs of the area that were introduced into evidence reveal that 1310

Factory is situated approximately four addresses east of the intersection, at least one-half block 10

away from the intersection, significantly farther east down Factory than the point identified by

Detective Baez as being just “catty corner” from the intersection. This photographic evidence

was consistent with Detective Middlebrooks’ testimony that the vehicle was parked

approximately eighty feet from the intersection. Therefore, we conclude that there was

competent, credible evidence to support the trial court’s conclusion that Shorts was walking “in

the middle of Factory Avenue,” and thus, “along and upon an adjacent roadway” pursuant to

COL § 371.05.

{¶21} Furthermore, our review of the testimony reveals that the use of the sidewalks was

“practicable.” The term “practicable” is defined in Merriam-Webster online as “capable of being

used.” Both detectives testified that the condition of the sidewalks was such that they were

available and capable of being walked upon. When asked specifically about the condition of the

sidewalks, Detective Baez testified that “[s]eems like you can walk on them.” Also, Detective

Baez testified that he saw Shorts walking along the sidewalk on Victory as he was headed

towards Factory, which further corroborates the fact that walking on the sidewalks in that area

was practicable. Moreover and most compelling, however, is the photographic evidence

introduced into evidence at the suppression hearing which shows that it was practicable to walk

on the sidewalks. While there is grass growing between the cracks and they are slightly uneven,

they definitely appeared to be practicable. Shorts points to Detective Middlebrooks’ testimony

that the sidewalks were “pretty ratty” and that if he had his choice he might walk on the tree

lawn instead of in the street. Yet, in that same line of questioning, Detective Middlebrooks

testified that “[t]he sidewalk is not that tore [(sic)] up.” Thus, based on the foregoing testimony

and evidence, the trial court correctly concluded that there was no evidence that the sidewalks

were not practicable. 11

{¶22} Finally, we note that Shorts did not cite to any legal authority supporting his claim

that the trial court was required to state as part of its written findings why it believed the

testimony of one witness over the testimony of another. Accordingly, we disregard his

argument. State v. Raber, 9th Dist. No. 09CA0065,

, at ¶30 (appellant bears the

burden of setting forth an argument on appeal and pointing this Court to applicable legal

authority in support of that argument.)

{¶23} Accordingly, based on the foregoing, we conclude that based on the detectives’

experience, training, and knowledge gained from working for many years in a high crime area;

Shorts’ conduct; and the totality of the circumstances surrounding this incident, a reasonably

prudent officer in that situation would have acted in the same manner. Therefore, the trial court

correctly concluded that the officers had reasonable suspicion, as well as probable cause, to stop

Shorts and issue a citation for violation of COL § 371.05(a), which prohibits walking in the

roadway. Shorts’ first and second assignments of error are without merit and are overruled.

Assignment of Error Number Three

“THE OFFICERS DID NOT HAVE PROBABLE CAUSE TO BELIEVE SHORTS HAD VIOLATED THE LAW BY CROSSING FACTORY STREET.”

{¶24} Shorts argues under his third assignment of error that the police did not have

probable cause to believe that he violated Lorain’s jaywalking ordinance because he was merely

crossing the street to his parked vehicle. In support of his argument, Shorts cites to State v.

Salas, 9th Dist. No. 21891,

. In Salas, the appellant was cited for a violation of

Akron City Ordinance (“ACO”) 77.05 which provides, in relevant part:

“(A) Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right- of-way to all vehicles, trackless trolleys, or streetcars upon the roadway.

“*** 12

“(C) Between adjacent intersections at which traffic control signals are in operation, pedestrians shall not cross at any place except marked crosswalk[s].” Salas at ¶20.

{¶25} We concluded in Salas that the State failed to meet its burden of proving that

there was either reasonable suspicion or probable cause to believe the appellant was jaywalking.

Id. at ¶23. Shorts cites to COL § 371.03, which is nearly identical to the Akron ordinance at

issue in Salas and argues that, similarly, he did not commit the offense of jaywalking. However,

contrary to Shorts’ assertion, Salas is not on point with the case at bar. As previously

established, this case involves a violation of a city ordinance that prohibits walking in the

roadway where a sidewalk is available. Salas involved a jaywalking offense. Accordingly,

Shorts’ reliance on Salas and the similar language of COL § 371.03 is completely irrelevant and

inapplicable to this case. Accordingly, Shorts’ third assignment of error has no merit and is

overruled.

Assignment of Error Number Four

“THE OFFICERS DID NOT HAVE PROBABLE CAUSE TO BELIEVE SHORTS HAD VIOLATED THE LAW BY ALLEGEDLY POSSESSING A PILL BOTTLE CONTAINING DRUGS.”

{¶26} In his fourth assignment of error, Shorts contends that the trial court erred in

concluding that the officers had probable cause to arrest him for possessing a pill bottle

containing drugs and drug paraphernalia. We disagree.

{¶27} Shorts was arrested for possession of heroin in violation of R.C. 2925.11(A), a

felony of the fifth degree pursuant to R.C. 2925.11(C)(6)(a), and possession of drug

paraphernalia, i.e., foil, in violation of R.C. 2925.14(C)(1).

{¶28} “Officers have probable cause to justify an arrest if ‘from the information known

to the arresting officers based on reasonably trustworthy information, a reasonably prudent 13

person would be warranted in believing that the arrestee had committed or was committing an

offense.’” State v. McCraney, 9th Dist. No. 09CA0079-M,

, at ¶9, quoting State

v. Scott, 9th Dist. No. 08CA009446, 2009-Ohio - 672, at ¶11.

“In order to effectuate an arrest, the arresting officer must have probable cause to believe that the person to be arrested is engaging in criminal activity. Kurjian at ¶18, quoting State v. Tejada, 9th Dist. No. 20947,

, at ¶8. (Internal citation omitted.) The amount of evidence necessary for probable cause to suspect a crime is being committed is less evidence than would be necessary to support a conviction of that crime at trial. Tejada at ¶8, quoting State v. Young (2001),

. It is necessary to show merely that a probability of criminal activity exists, not proof beyond a reasonable doubt, or even proof by a preponderance of evidence that a crime is occurring.” State v. McGinty, 9th Dist. No. 08CA0039-M,

.

{¶29} Detective Middlebrooks testified that when Shorts threw his hands in the air,

Detective Middlebrooks saw an object fly from Shorts’ right hand to the east toward the tree

lawn and land within approximately two feet from where Shorts was standing. Upon retrieving

and examining the object, Detective Middlebrooks discovered that it was a pill bottle. The pill

bottle was “warm to the touch” despite the fact that it was only thirty-five degrees outside.

Detective Middlebrooks testified that in his training and experience, if it is cold outside and an

object has been in someone’s hand, it will typically be warm to the touch. He did not notice any

other objects in close proximity, and thus, concluded the pill bottle belonged to Shorts. Upon

further examination of the bottle, he noticed that it contained a foil packet. Based on his training

and experience, such foil packaging is consistent with how drug traffickers and abusers package

heroin. Detective Middlebrooks then field tested the contents of the bottle and received a

positive result for heroin.

{¶30} Shorts contends that he was arrested before the contents of the pill bottle were

field tested for drugs, thus suggesting that the detectives lacked probable cause to arrest him for

drug possession in the absence of a field test of the suspected drugs. In State v. Johnson, 4th 14

Dist. No. 06CA34,

, a deputy observed the defendant in plain view packaging

mason jars in a manner consistent with the production of methamphetamine. Id. at ¶13. The

court concluded that the defendant’s arrest for the manufacture of methamphetamine was

supported by probable cause, absent any field tests, based on the deputy’s observations that the

contents of the jars were indicative of methamphetamine production. Id. We conclude that the

case at bar is similar to Johnson and that based on his twelve years of experience and training,

Detective Middlebrooks possessed the necessary probable cause to arrest Shorts for possession

of drugs and drug paraphernalia based on his familiarity with the packaging of heroin.

{¶31} The State brings to our attention the case of State v. Barton, 2d Dist. No. 21815,

, which is directly on point with the scenario in the instant case. In Barton, one

of the officers observed the appellant leave a house which was a known drug house. Id. at ¶2.

After that officer radioed another officer, both officers observed the appellant jaywalking across

the street. Id. One of the officers turned his cruiser around and repositioned it with the intention

of talking to the appellant about the jaywalking offense. Id. As the officer approached the

appellant from behind, the appellant looked back and then threw a baggie over a wall. Id. The

officer observed what he believed to be crack cocaine in the baggie. Id. The officer then exited

his vehicle, stopped the appellant, patted him down for weapons, and placed him in the cruiser.

Id. The second officer arrived at the scene and the baggie was recovered. The officers

conducted a field test on the contents of the baggie, which tested positive for cocaine. Id. The

Second District held that the officers had probable cause to detain the appellant for the minor

misdemeanor jaywalking offense, reasonable articulable suspicion to detain him for the

investigation of the crime of drug possession, and probable cause to arrest the appellant after the

test of the cocaine. Id. at ¶12. The appellant’s motion to suppress was denied. Id. at ¶14. 15

{¶32} We conclude that as in Barton, Shorts’ actions of walking in the roadway in

violation of a city ordinance after leaving a known drug house and tossing an object onto the tree

lawn gave Detectives Baez and Middlebrooks probable cause to detain Shorts to issue a citation

for the offense of walking in the roadway, reasonable suspicion to investigate for the crime of

drug possession, and probable cause to arrest Shorts after the positive test for heroin. Shorts’

fourth assignment of error is overruled.

III

{¶33} Shorts’ assignments of error are overruled. The judgment of the Lorain 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 Lorain, 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(E). 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.

BETH WHITMORE FOR THE COURT 16

MOORE, J. DICKINSON, J. CONCUR

APPEARANCES:

BRENT L. ENGLISH, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and SHERRY GLASS, Assistant Prosecuting Attorney, for Appellee.