[Cite as State v. Rosenberg, 107 Ohio St.3d 1209, 2005-Ohio-6510.]

THE STATE OF OHIO, APPELLANT, v. ROSENBERG, APPELLEE. [Cite as State v. Rosenberg, 107 Ohio St.3d 1209, 2005-Ohio-6510.]

Appeal dismissed as improvidently accepted. (No. 2005-0459 — Submitted October 12, 2005 — Decided December 28, 2005.)

APPEAL from the Court of Appeals for Cuyahoga County, No. 84457, 2005-Ohio-101. __________________ {¶ 1} The cause is dismissed, sua sponte, as having been improvidently accepted.

MOYER, C.J., RESNICK, PFEIFER, O’CONNOR, O’DONNELL and LANZINGER, JJ., concur.

LUNDBERG STRATTON, J., dissents. __________________ LUNDBERG STRATTON, J., dissenting. {¶ 2} For the reasons set forth in my dissenting opinion in State v. Cummings, 107 Ohio St.3d 1206, 2005-Ohio-6506, ___ N.E.2d ___, I respectfully dissent. __________________ William D. Mason, Cuyahoga County Prosecuting Attorney, and Mark J.

Mahoney, Assistant Prosecuting Attorney, for appellant.

Thomas Rein, for appellee. ______________________