[Cite as State v. Thomas,

.]

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

STATE OF OHIO C.A. No. 26893

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE JESSICA L. THOMAS COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 2012-06-1655

DECISION AND JOURNAL ENTRY

Dated: June 30, 2014

CARR, Judge.

{¶1} Appellant, Jessica Thomas, appeals the judgment of the Summit County Court of

Common Pleas. This Court affirms.

I.

{¶2} This matter arises out of a fatal traffic accident involving Jessica Thomas and her

fiancé, Jeffrey Spencer, that occurred during the early morning hours of March 31, 2012.

Spencer tragically passed away due to injuries suffered during the accident. The Summit County

Grand Jury indicted Thomas on one count of aggravated vehicular homicide, and three counts of

operating a vehicle under the influence of alcohol or drugs. After Thomas initially pleaded not

guilty to the charges, the matter proceeded to a jury trial. The jury found Thomas guilty of all

four counts in the indictment. The three counts of operating a vehicle under the influence of

alcohol or drugs were merged for the purposes of sentencing, and the trial court imposed a total

prison sentence of three years. 2

{¶3} On appeal, Thomas raises three assignments of error.

II.

ASSIGNMENT OF ERROR I

DEFENDANT-APPELLANT THOMAS’ CONVICTIONS WERE AGAINST THE SUFFICIENCY AND MANIFEST WEIGHT OF THE EVIDENCE.

{¶4} In her first assignment of error, Thomas argues that her convictions were not

supported by sufficient evidence and were against the manifest weight of the evidence. This

Court disagrees.

Sufficiency Challenge

{¶5} Thomas argues that her convictions for aggravated vehicular homicide and

operating under the influence of alcohol or drugs were not supported by sufficient evidence

because the State failed to prove beyond a reasonable doubt that she was operating the 2001 Ford

Taurus at the time of the accident. Thomas specifies in her merit brief that the State failed to

prove that she was driving the vehicle during its case-in-chief, and that the trial court erred by

failing to grant her Crim.R. 29 motion for acquittal.

{¶6} Crim.R. 29(A) provides, in relevant part:

The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state’s case.

{¶7} A review of the sufficiency of the State’s evidence and the manifest weight of the

evidence adduced at trial are separate and legally distinct determinations. State v. Gulley, 9th

Dist. Summit No. 19600,

(Mar. 15, 2000). When reviewing the sufficiency of

the evidence, this Court must review the evidence in a light most favorable to the prosecution to 3

determine whether the evidence before the trial court was sufficient to sustain a conviction. State

v. Jenks,

(1991).

An appellate court’s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.

at paragraph two of the syllabus.

{¶8} Thomas was convicted of aggravated vehicular homicide in violation of R.C.

2903.06(A)(1), which states, “No person, while operating or participating in the operation of a

motor vehicle * * * shall cause the death of another * * * [a]s the proximate result of committing

a violation of [R.C.] 4511.19.” Thomas was also convicted of three counts of operating a vehicle

under the influence of alcohol or drugs in violation of R.C. 4511.19(A)(1)(a), R.C.

4511.19(A)(1)(b), and R.C. 4511.19(A)(1)(j)(vii).

{¶9} R.C. 4511.19(A)(1) states, “No person shall operate any vehicle * * * within this

state, if, at the time of the operation, any of the following apply:

(a) The person is under the influence of alcohol, a drug of abuse, or a combination of them.

(b) The person has a concentration of eight-hundredths of one per cent or more but less than seventeen-hundredths of one per cent by weight per unit volume of alcohol in the person’s whole blood.

***

(j) * * * the person has a concentration of any of the following controlled substances or metabolites of a controlled substance in the person’s whole blood, blood serum or plasma, or urine that equals or exceeds any of the following:

***

(vii) The person has a concentration of marihuana in the person’s urine of at least ten nanograms of marihuana per milliliter of the person’s urine or has a 4

concentration of marihuana in the person’s whole blood or blood serum or plasma of at least two nanograms per milliliter of the person’s whole blood or blood serum or plasma.

{¶10} As noted above, Thomas’ central argument on appeal applies to all four of her

convictions as she asserts that the State failed to prove that she was the driver of the vehicle at

the time of the accident.

{¶11} The State presented evidence at trial demonstrating that after going out on the

evening March 30, 2012, Thomas and Spencer were involved in a car accident on State Route

241 in Springfield Township. At approximately 2:40 a.m., a woman named Angelique

Woodward called 911 after noticing that a vehicle had gone off the road. While there were no

eye witnesses to the accident, several first responders and law enforcements officials were

immediately dispatched to the scene. Upon arrival, they discovered that a 2001 Ford Taurus had

gone off State Route 241 and crashed into a tree. The car had flipped onto its left side and its

front end was pressed up against the base of the tree. The vehicle involved contained a bench

seat with an adjustable armrest that could be moved up and down. Thomas’ lower body was

trapped between the steering wheel and the driver’s seat. Spencer’s body was partially ejected

from the vehicle through the driver’s side window. Because the vehicle had flipped on its left

side, first responders found Spencer lying on the ground outside the vehicle with his left leg

trapped behind inside the vehicle. The State presented testimony from a certified technical crash

investigator who suggested that neither person involved in the crash appeared to be wearing a

seatbelt. Lieutenant Brian White of the Springfield Fire Department testified that Thomas was

“pinned underneath the steering wheel and underneath the dash and she was wedged between the

driver’s seat.” Lt. White further testified that he observed Thomas’ body in a position that

seemed natural for someone who had been sitting in the driver’s seat when the car came to rest 5

after the crash. One of Lt. White’s colleagues, Steven Schultz, a firefighter and paramedic for

Springfield Township, specified that Thomas’ feet were trapped near the pedals of the vehicle.

Other witnesses who responded to the scene also testified that Thomas’ body was trapped in the

driver’s seat of the vehicle.

{¶12} Emergency personnel had to cut the steering wheel in order to extract Thomas

from the vehicle. The State presented uncontroverted evidence by way of test results from the

State Highway Patrol’s forensic laboratory that indicated that Thomas was over the lawful blood-

alcohol limit at the time of the accident, and also that Thomas was under the influence of

marijuana at the time of the accident.

{¶13} Schultz further testified that he spoke with Thomas after she was removed from

the front driver’s seat of the vehicle and placed in the ambulance. When asked if she had been

drinking alcohol that evening, Thomas replied that she “had a shit ton.” When Schultz further

inquired into whether Thomas had been driving the vehicle, Schultz heard her say, “uh-huh,”

which he interpreted as an affirmative response.

{¶14} The evidence presented during the State’s case-in-chief was sufficient to

demonstrate that Thomas was driving the vehicle at the time of the accident. Several witnesses

who responded to the accident testified that they found Thomas trapped in a position in the

vehicle that made it apparent that she had been driving, with her lower body trapped under the

steering wheel and her upper-body wedged in the driver’s seat. Moreover, Schultz testified that

Thomas responded in the affirmative when asked if she had been driving the vehicle. This

evidence, when construed in the light most favorable to the State, was sufficient to demonstrate

that Thomas was the driver of the vehicle. 6

Manifest Weight Challenge

{¶15} A conviction that is supported by sufficient evidence may still be found to be

against the manifest weight of the evidence. State v. Thompkins,

(1997);

Eastley v. Volkman,

,

.

In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of 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.

State v. Otten,

(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 sits as a ‘thirteenth juror’ and disagrees with the fact[-]finder’s resolution of the

conflicting testimony.”

, quoting Tibbs v. Florida,

(1982). An

appellate court should exercise the power to reverse a judgment as against the manifest weight of

the evidence only in exceptional cases.

.

{¶16} In her merit brief, Thomas advocated a manifest weight argument “identical to the

argument set forth under the prior section concerning the sufficiency of the evidence,” but urged

the Court to consider the testimony of the three defense witnesses as well as the State’s one

rebuttal witness. In support of her position, Thomas places particular emphasis on the testimony

of James Crawford, who testified on behalf of the defense as a qualified expert in accident

reconstruction.

{¶17} During Crawford’s testimony, he suggested that the occupants of the vehicle

would have been jarred by three separate collisions during the course of the crash. Namely, the

passengers in the vehicles would have been affected when the vehicle hit a fire hydrant, and then

subsequently when the vehicle hit a large embankment and then proceeded to strike a tree. 7

Crawford specified that the latter two impacts were the most significant, with the collision with

the embankment commencing the process by which Spencer was eventually ejected from the

vehicle. According to Crawford, the collision with the embankment caused the driver to slide

against the window with the front passenger sliding to the driver’s side of the vehicle. Crawford

continued that the driver would have been ejected from the vehicle when the car struck the tree,

with the passenger coming to rest near the driver’s seat. Crawford concluded that based on his

experience and analysis of this case, he believed it was Spencer who was driving the vehicle. On

cross-examination, the State challenged Crawford’s credibility on the basis that he used almost

identical language in a report that he prepared for a separate case.

{¶18} Thomas also testified in her own defense. Thomas testified that she shared the

Ford Taurus with Spencer, but that the car was registered in her name. On the night in question,

Thomas and Spencer smoked marijuana together before going out to a club where they had

several alcoholic beverages. Thomas testified that her last memory was calling her mother from

the club to check on how the couple’s child was doing. The next thing Thomas was able to

remember was awaking in the hospital several days after the accident. Thomas did not have any

recollection of who was driving at the time the accident occurred. In addition to testifying on her

own behalf, Thomas also presented the testimony of Spencer’s sister, Laura Ross, who

confirmed that when she visited Thomas in the hospital, Thomas had no recollection of the

accident.

{¶19} In rebuttal, the State called Sergeant John Thorne of the Ohio State Highway

Patrol. Like Crawford, Sgt. Thorne was qualified as an expert in accident reconstruction. Sgt.

Thorne sharply disagreed with Crawford’s analysis of the crash, and opined that it was Thomas

who was driving the vehicle. While Sgt. Thorne agreed that there were three significant impacts 8

throughout the course of the crash, Sgt. Thorne indicated that the driver would have remained in

the driver’s seat given the nature of the crash. Sgt. Thorne suggested the front passenger would

have passed over the driver as the car sustained multiple impacts and ultimately rotated on its left

side. During cross-examination, defense counsel challenged Sgt. Thorne’s credibility on the

basis that his educational background did not include formal schooling in physics or engineering.

{¶20} After a careful review of the record, this Court cannot conclude that the trier of

fact created a manifest miscarriage of justice in concluding that Thomas was the driver of the

vehicle. As mentioned above, the State provided extensive testimony from emergency

responders and law enforcement officials who observed Thomas pinned in the driver’s seat of the

vehicle. With respect to the expert testimony offered at trial, Thomas’ expert testified that it was

Spencer who was driving the vehicle at the time the accident occurred, while the State’s expert

indicated it was Thomas who was behind the wheel. Each party challenged the credibility of the

expert testimony offered by the opposing party. Though the parties presented conflicting

testimony in this case, we note that “the trier of fact was in the best position to evaluate the

credibility of witnesses, and this Court will not overturn the trial court’s verdict on a manifest

weight of the evidence challenge simply because the trial court chose to believe certain

witnesses’ testimony over the testimony of others.” State v. Ross, 9th Dist. Wayne No.

12CA0007,

, State v. Crowe, 9th Dist. Medina No. 04CA0098-M, 2005-

Ohio-4082, ¶ 22. Under these circumstances where the State presented ample evidence that

Thomas was driving the vehicle at the time of the accident, we cannot conclude that this is the

exceptional case where the trier of fact clearly lost its way.

{¶21} This first assignment of error is overruled. 9

ASSIGNMENT OF ERROR II

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT PERMITTED THE STATE OF OHIO TO ELICIT EXPERT TESTIMONY FROM LAY WITNESSES.

{¶22} In her second assignment of error, Thomas argues that the trial court erred by

permitting the State to elicit expert testimony from lay witnesses. Specifically, Thomas argues

that it was reversible error for the trial court to allow multiple lay witnesses to refer to Thomas as

the driver of the vehicle based on their observations at the scene when they were not qualified as

experts in accident reconstruction. This Court disagrees.

{¶23} Evid.R. 701 states that “[lay] witness’ testimony in the form of opinions or

inferences is limited to those opinions or inferences which are (1) rationally based on the

perception of the witness and (2) helpful to a clear understanding of the witness’ testimony or the

determination of a fact in issue.” An appellate court reviews a trial court’s decision pertaining to

the admission of evidence under Evid.R. 701 for an abuse of discretion. Urbana ex rel. Newlin

v. Downing,

(1989). An abuse of discretion implies that the trial court’s

attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore,

(1983).

{¶24} Numerous emergency responders and law enforcement officials who responded to

the scene of the accident were called to testify in this matter. During their testimony, several of

those witnesses referred to Thomas as the “driver” of the vehicle based on their perceptions of

her position in the driver’s seat and the manner in which her lower body was trapped between the

steering wheel and the driver’s seat. During the opening statements, defense counsel objected to

this testimony on the basis that the lay witnesses were not qualified to offer expert opinions on

matters of accident reconstruction and physics. The State responded that it would not be 10

soliciting opinion testimony, and that it intended to ask witnesses about what they observed and

how they went about conducting the investigation. The trial court overruled the objection on the

basis that the witnesses were permitted to testify regarding their observations at the scene of the

accident pursuant to Evid.R. 701, as well as explain the reasoning underpinning their

investigation.

{¶25} Though several witnesses referred to Thomas as the driver of the vehicle when

describing their perceptions of the crash site, defense counsel did not object on each occasion. In

support of his assignment of error, Thomas cites to only two portions of the transcript where the

issue was preserved for appeal. See State v. Dent, 9th Dist. Summit No. 20907,

,

¶ 6 (holding that a party forfeits all but plain error where it fails to object before the trial court).

One instance was during the direct examination of Lt. Brian White. White referred to Thomas as

the driver of the Ford Taurus on multiple occasions while describing what he observed upon

arriving at the scene. After this happened multiple times, the State asked, “why did you describe

the person pinned as the driver?” At that point, defense counsel objected. The trial judge

overruled the objection but specifically instructed White, “Just [answer] based on what you

observed. * * * [Y]ou’re not supposed to give an opinion. Just explain why you used that

phrase.” Lt. White responded, “I used that phrase because she was pinned underneath the

steering wheel at the driver’s seat.” In regard to Evid.R. 701, the trial judge made it clear that

White could only testify as to what he perceived, and White’s ensuing testimony was limited to a

direct observation. White did not purport to offer an expert opinion, and he commented only

regarding his perceptions at the scene. It follows that the trial court did not abuse its discretion

in permitting the testimony. 11

{¶26} Defense counsel also objected during the redirect examination of Paramedic

Andrew Marchand. Preceding the objection, on direct examination, Marchand referred to

Thomas as the driver of the vehicle on multiple occasions without objection. On cross-

examination, Marchand was asked if he was an expert in accident reconstruction, and he

acknowledged that he was not. Subsequently, the first question asked on redirect examination

was “Mr. Marchand, do you need an accident reconstructionist to tell you that the defendant * *

* was the driver of that vehicle?” Defense counsel objected, and, after a sidebar, the trial court

sustained the objection. The State argued the question was proper given that defense counsel had

opened the door to the inquiry, but the trial court rejected this argument. Defense counsel then

expressed concern that Marchand was essentially being permitted to offer expert testimony. The

trial court reiterated that it was sustaining defense counsel’s objection, and stated that while

Marchand could testify regarding his observations at the scene which triggered his initial

assumption that Thomas was the driver, he was not qualified to draw a conclusion as to who was

driving the vehicle. The trial court further directed the State to “[l]eave the accident

reconstruction out of it.” Marchand subsequently testified that he had assumed Thomas was the

driver based on everything he saw at the scene, particularly her position in the vehicle.

{¶27} As was the case with Lt. White, the trial court unambiguously directed Marchand

to limit his testimony to his direct observations, as provided by Evid.R. 701. Marchand then

confirmed that the inferences he drew at the crash site were based solely on his perception of the

scene. As the trial court sustained defenses counsel’s objection, underscored that Marchand was

not an expert witness, and then made certain that Marchand limited his ensuing testimony to his

perceptions at the scene, we cannot agree with Thomas’ contention that the trial court abused its

discretion. 12

{¶28} In her merit brief, Thomas also includes citations to the testimony several other

witnesses. In those instances, however, defense counsel did not object to the testimony. This

Court reviews an issue for plain error in cases where the appellant has otherwise forfeited the

issue on appeal by failing to raise it below at a time when the trial court had the opportunity to

correct the alleged error. Dent at ¶ 6. In order to succeed on a plain error claim, the appellant

must demonstrate that but for the errors he alleges, the outcome of the trial would clearly have

been different. State v. Waddell,

(1996); Crim.R. 52(B). Thomas has

not set forth a plain error argument on appeal explaining how the result of trial would have been

different but for this testimony, and it is not the duty of this Court to create a plain error

argument on her behalf. State v. Hairston, 9th Dist. Lorain No. 05CA008768,

.

{¶29} The second assignment of error is overruled.

ASSIGNMENT OF ERROR III

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED DEFENDANT-APPELLANT THOMAS’ MOTION FOR A NEW TRIAL PURSUANT TO CRIMINAL RULE 33(A)(2) AND (4).

{¶30} In her third assignment of error, Thomas argues that the trial court improperly

denied her motion for a mistrial. This Court disagrees.

{¶31} In support of her third assignment or error, Thomas argues that the trial court

should have granted her motion for a mistrial because the jury was contaminated when juror

number two made comments during deliberations regarding research he had done outside the

courtroom. Thomas further asserts that the trial court failed to adequately explore juror number

two’s statement that the foreman was “bullying” other members of the jury, and that removing 13

juror number two bolstered the State’s case because juror number two had questioned the State’s

theory of the case during deliberations.

{¶32} A trial court enjoys broad discretion in dealing with matters of juror misconduct

and potential bias. State v. Morris, 9th Dist. Summit No. 25519,

, citing

State v. Herring,

(2002). Thus, an appellate court reviews the trial

court’s denial of a motion for a mistrial for an abuse of discretion. Morris at ¶ 29.

{¶33} “When analyzing a case of alleged juror misconduct, it must be determined (1)

whether misconduct actually occurred and (2) whether the misconduct materially prejudiced the

defendant’s substantial rights.” Morris at ¶ 28, citing State v. Herb,

, 2006-

Ohio-2412, ¶ 6 (9th Dist). Thus, even when juror misconduct has, in fact, occurred, a

complaining party must establish prejudice. State v. Adams,

, 2004-Ohio-

5845, ¶ 42, citing Smith v. Phillips,

(1982). The Supreme Court of Ohio has

maintained a “long-standing rule * * * not [to] reverse a judgment because of the misconduct of

a juror unless prejudice * * * is shown.”

, quoting State v. Hipkins,

(1982).

{¶34} “In cases involving outside influences on jurors, trial courts are granted broad

discretion in dealing with the contact and determining whether to declare a mistrial or to replace

an affected juror.” State v. Schmitz, 9th Dist. Lorain Nos. 11CA010043, 11CA010044, 2012-

Ohio-2979, ¶ 15, quoting State v. Phillips,

(1995). Moreover, “[a] juror’s

belief in his or her own impartiality is not inherently suspect and may be relied upon by the trial

court.” Schmitz at ¶ 15. “One may not know or altogether understand the imponderables which

cause one to think what he thinks, but surely one who is trying as an honest [person] to live up to

the sanctity of his [or her] oath is well qualified to say whether he [or she] has an unbiased mind 14

in a certain matter.” State v. Gunnell,

,

, quoting

Phillips,

.

{¶35} A review of the trial transcript reveals that on February 20, 2013, after the jury

had entered into deliberations, the trial court was notified by the foreman that juror number two

had conducted an investigation outside of the courtroom. The trial judge called juror number

two into chambers and, with all of the attorneys of record present, engaged in an inquiry about

what had transpired. During that exchange, juror number two admitted to driving by the scene of

the accident, as well as inspecting two vehicles similar to the Ford Taurus involved in the crash.

He conceded that viewing the passenger compartment of the vehicles helped to confirm his prior

understanding of the location of the air bag sensors. Juror number two also admitted to using a

tape measure to measure the windows of his own vehicle. After discussing the nature of his

investigation, juror number two acknowledged that he had shared his findings with the other

jurors during deliberations. He also speculated that the reason the foreman had reported him was

that they had differing views about the case, and that the foreman was “bullying” members of the

jury.

{¶36} Over the objection of defense counsel, the trial court discharged juror number

two. After the trial court handled the dismissal, defense counsel requested that the trial court

voir dire all of the remaining jurors to determine whether it was appropriate to declare a mistrial.

The trial court complied with defense counsel’s request, and subsequently called each of the

remaining jurors into chambers to answer a series of questions. Specifically, each juror was told

that the trial court did not want each individual to disclose their position with respect to the

ultimate resolution of the case. The trial judge then proceeded to ask each juror (1) whether juror

number two had attempted to share any outside information; (2) whether any information shared 15

by juror number two would impact the juror’s ability to decide the case based on the evidence

properly admitted at trial; (3) and whether there were any other unusual dynamics in the jury

room of which the court might need to be aware. While the trial court did not deem it

appropriate to brusquely ask each juror if the foreman had engaged in “bullying,” the trial court

did inquire as to whether there were any areas of concern transpiring during deliberations that

should be brought to the court’s attention. After the trial judge finished this inquiry, the

attorneys of record were then given an opportunity to ask follow up questions.

{¶37} Each of the remaining jurors indicated that they had heard juror number two’s

comments about conducting outside research. Significantly, however, each juror made an

unequivocal statement on the record that those comments would not impact their ability to render

a fair and impartial verdict. Several jurors went as far as to say that the foreman immediately

recognized the problematic nature of juror number two’s comments and sought to ensure that no

inappropriate information was considered during deliberations. Each juror also specified that

there was nothing troublesome about the nature of the discourse in the jury room. While juror

number seven made a reference to a few “alpha men” on the jury, that same juror clarified that

those individuals had been “very helpful in expressing their views” and that it had been “a good

dialogue.” When specifically asked by defense counsel if the “alpha” personalities were

overpowering or dominating in any way, juror number seven responded in the negative. Juror

number ten made a point to say that the deliberations were going exactly as one would have

expected.

{¶38} After careful consideration of the record, we cannot say that the trial court abused

its discretion in denying defense counsel’s motion for a mistrial. The trial court made a direct

inquiry into whether juror number two’s comments had impacted the sanctity of the 16

deliberations, and also whether any other troublesome dynamics had arisen during deliberations.

While juror number two undoubtedly engaged in juror misconduct, there was no indication that

said misconduct influenced the remaining jurors’ ability to decide the case fairly and impartially.

Each juror specifically testified that juror number two’s comments would have no bearing on

their ability to render a fair and impartial judgment. Moreover, each juror stated on the record

that the deliberations had otherwise gone smoothly, and that healthy discussions about the

evidence had taken place. Given the methodical nature of the trial court’s inquiry as well as the

responses offered by the jurors during the voir dire process, we cannot say that the trial court

abused its discretion in denying the motion for a mistrial.

{¶39} Thomas’ third assignment of error is overruled.

III.

{¶40} Thomas’ 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 17

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.

DONNA J. CARR FOR THE COURT

HENSAL, P. J. WHITMORE, J. CONCUR.

APPEARANCES:

WILLIAM A. VASILIOU II, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.