State v. Davis

[Cite as State v. Davis, 2009-Ohio-2527.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 1-08-62

v.

AUNDRE D. DAVIS, OPINION

DEFENDANT-APPELLANT.

Appeal from Allen County Common Pleas Court
Trial Court No. CR2008-0091

Judgment Affirmed

Date of Decision: June 1, 2009

APPEARANCES:

F. Stephen Chamberlain for Appellant

Terri L. Kohlrieser for Appellee
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WILLAMOWSKI, J.

{¶1} The defendant-appellant, Aundre Davis, appeals the Allen County

Common Pleas Court’s judgment entry of August 27, 2008 convicting him on two

counts of breaking and entering and one count of grand theft following jury trial

and sentencing him to an aggregate prison term of three and one-half years. On

appeal, Davis contends that the trial court should have granted his motion to

suppress; that the trial court should have granted his motion in limine; and that the

convictions were against the manifest weight of the evidence. For the reasons set

forth herein, we affirm the judgment of the trial court.

{¶2} On April 17, 2008, the Allen County Grand Jury indicted Davis on

two counts of breaking and entering, violations of R.C. 2911.13(A), fifth-degree

felonies, and one count of grand theft of a motor vehicle, a violation of R.C.

2913.02(A)(1) and (B)(5), a fourth-degree felony. In May 2008, Davis filed two

separate motions to suppress evidence. The first motion sought the suppression of

statements he had made to law enforcement, and the second sought to suppress

any evidence gathered as the result of an allegedly unlawful detention and arrest.

The court held a suppression hearing on June 4, 2008, and on June 9, 2008, filed

its judgment entry overruling each of Davis’ motions.

{¶3} On June 13, 2008, Davis filed a motion in limine seeking to prevent

the state of Ohio from presenting expert testimony at trial. In particular, Davis

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challenged the state’s witness from the Ohio Bureau of Criminal Identification and

Investigation, Daniel Davison, who would link shoeprints found at one of the

crime scenes to footwear recovered from Davis upon his arrest. The case

proceeded to jury trial on August 25 and 26, 2008, during which time the court

heard testimony from Davison outside the presence of the jury and overruled

Davis’ motion in limine. The jury found Davis guilty on each count of the

indictment and determined that Davis had stolen a motor vehicle. The trial court

ordered Davis to serve consecutive prison terms of twelve months on count one,

18 months on count two, and twelve months on count three; an aggregate sentence

of three and one-half years. Davis appeals the judgment of the trial court and

asserts three assignments of error for our review.

Assignment of Error No. 1

The trial court committed an error prejudicial to the defendant
in failing to grant the defendant’s motion to suppress his arrest
and evidence gained as a result thereof.

Assignment of Error No. 2

The trial court committed error prejudicial to the defendant in
not granting the defendant’s motion to exclude testimony
regarding shoe imprint evidence offered by the State of Ohio.

Assignment of Error No. 3

Defendant’s conviction was against the manifest weight of the
evidence.

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{¶4} In the first assignment of error, Davis argues that the police lacked

probable cause for arrest when they took him into custody for public intoxication,

a violation of R.C. 2917.11(B). Davis emphasizes the fact that he was not charged

with the offense following his arrest. In response, the state claims Davis was

arrested for intoxication, a violation of Lima City Ordinance 612.18. The state

recognizes that generally, law enforcement officers may not arrest suspects for

minor misdemeanor offenses. However, the state argues that Davis’ refusal to

provide identification justified the arrest under R.C. 2935.26.

{¶5} We stress that Davis has not appealed the initial stop and detention.

The first assignment of error addresses the sole issue of his arrest. Suppression

motions present mixed questions of law and fact during appellate review. In re

A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, at ¶ 50, quoting

State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, at ¶ 8;

quoting State v. Mills (1992), 62 Ohio St.3d 357, 366, 582 N.E.2d 972. Accepting

the trial court’s findings of fact, if they are supported by competent, credible

evidence, an appellate court must determine “whether the facts satisfy the

applicable legal standard.” Id., quoting Burnside, at ¶ 8, citing State v. Fanning

(1982), 1 Ohio St. 3d 19, 20, 437 N.E.2d 583; State v. McNamara (1997), 124

Ohio App.3d 706, 707 N.E.2d 539.

{¶6} A warrantless arrest in a public place based on probable cause does

not violate the Fourth Amendment of the United States Constitution. State v.

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Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, 857 N.E.2d 547, at ¶ 38, citing

United States v. Watson (1976), 423 U.S. 411, 423-424, 96 S.Ct. 820, 46 L.Ed.2d

598; United States v. Santana (1976), 427 U.S. 38, 42, 96 S.Ct. 2406, 49 L.Ed.2d

300. “Probable cause for a warrantless arrest requires that the arresting officer, at

the time of the arrest, possess sufficient information that would cause a reasonable

and prudent person to believe that a criminal offense has been or is being

committed.” Elmore, at ¶ 39, citing Gerstein v. Pugh (1975), 420 U.S. 103, 111-

112, 95 S.Ct. 854, 43 L.Ed.2d 54; Beck v. Ohio (1964), 379 U.S. 89, 91, 85 S.Ct.

223, 13 L.Ed.2d 142. In determining whether probable cause for an arrest existed,

we must examine the totality of facts and circumstances surrounding the arrest.

See State v. Homan (2000), 89 Ohio St.3d 421, 427, 732 N.E.2d 952.

{¶7} At the suppression hearing held on June 4, 2008, the state presented

the testimony of Michael Carman, a patrolman who had worked for the Lima

Police Department for 13 years, and Steven Stechschulte, who had worked for the

Lima Police Department for 16 years and had been a detective for approximately

one and one-half years. Carman testified that he stopped Davis after observing the

shoeprints Davis was leaving in the snow. The shoeprints left by Davis were

similar to other shoeprints Carman had observed around other crime scenes that

morning. Davis claimed he had no proof of identification but told Carman his

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name was “John Benson.”1 (Hearing Tr., Dec. 15, 2008, at 6). As Carman talked

with Davis, he noticed the strong odor of alcoholic beverage on Davis’ breath and

observed that Davis’ eyes were bloodshot and glassy. (Id.). Carman concluded

that Davis was “obviously intoxicated.” (Id.).

{¶8} Carman asked dispatch to run the name “John Benson” both “in-

house” and through “NCIC.” Neither database contained any information for that

person. (Id.). By that time, Stechschulte had approached Davis as well.

Stechschulte testified that he recognized Davis’ face from prior interaction with

him, but he was unable to recall Davis’ name. (Id. at 26). Because of his prior

interaction with Davis and because the database search had resulted in no matches

for “John Benson,” Stechschulte knew Davis had provided false information.

(Id.). Stechschulte also detected the odor of alcoholic beverage on Davis’ breath

and observed that his eyes were bloodshot. (Id.). Both officers testified that

Stechschulte ordered Davis’ arrest for intoxication since he could not provide

identification. (Id. at 12; 26). Stechschulte identified Davis as the person who

was arrested for intoxication in the early morning hours of February 22, 2008 and

stated that he decided not to pursue the misdemeanor offenses since Davis was

being charged with three felonies. Exhibit 4 was the booking form used by the

Lima Police Department, which indicated that Davis had been arrested for

intoxication under Lima City Ordinance 612.18. (Id. at Ex. 4).

1
Davis’ state identification card was located in the back pocket of his pants following his arrest.

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{¶9} Despite counsels’ contentions, both throughout trial and on appeal,

Davis was not arrested for public intoxication, a violation of R.C. 2917.11(B).

Instead, Davis was arrested for intoxication, a violation of Lima City Ordinance

612.18, which states:

(a) No person shall be found in the state of intoxication or,
being intoxicated, shall disturb the peace and good order or shall
conduct himself or herself in a disorderly manner.

(b) Whoever violates this section is guilty of a minor
misdemeanor.

See (Hearing Tr., at 12; 26; Ex. 4). Law enforcement may effectuate a warrantless

arrest for a minor misdemeanor only under limited circumstances. State v. Brown,

99 Ohio St.3d 323, 2003-Ohio-3931, 792 N.E.2d 175, at ¶ 18-19, quoting State v.

Jones (2000), 88 Ohio St.3d 430, 440, 727 N.E.2d 886; R.C. 2935.26. One of the

statutory exceptions in R.C. 2935.26, which allow warrantless arrests for minor

misdemeanors, states, “the offender cannot or will not offer satisfactory evidence

of his identity.” R.C. 2935.26(A)(2). In this case, the evidence was clear that

Davis was “obviously intoxicated,” and he had refused to offer satisfactory

evidence of his identity. Based on the totality of the circumstances, there was

probable cause to arrest Davis for intoxication. The first assignment of error is

overruled.

{¶10} For ease of analysis, we elect to address the remaining assignments

of error together. In the second assignment of error, Davis argues that the trial

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court erred by qualifying Daniel Davison as an expert witness in footwear

comparison. Specifically, Davis contends that the technique used by Davison had

not been subjected to testing; that the literature upon which Davison relied had

been authored by an expert witness whose claim to fame was his testimony in the

O.J. Simpson murder trials; that there was no known error rate for the technique

used; and that the technique had not attracted widespread acceptance within the

scientific community. In the third assignment of error, Davis contends his

convictions were against the manifest weight of the evidence.

{¶11} A challenge based on the manifest weight of the evidence requires

an appellate court to sit “as a ‘thirteenth juror.’” State v. Thompkins (1997), 78

Ohio St.3d 380, 387, 678 N.E.2d 541, quoting Tibbs v. Florida (1982), 457 U.S.

31, 45, 102 S.Ct. 2211, 72 L.Ed.2d 652.

Weight of the evidence concerns “the inclination of the greater
amount of credible evidence, offered in a trial, to support one side
of the issue rather than the other. It indicates clearly to the jury
that the party having the burden of proof will be entitled to their
verdict, if, on weighing the evidence in their minds, they shall
find the greater amount of credible evidence sustains the issue
which is to be established before them. Weight is not a question
of mathematics, but depends on its effect in inducing belief.”

(Emphasis added.). Id. at 387, quoting Black’s Law Dictionary (6 Ed.1990), at

1594. When an appellant challenges a conviction based on the weight of the

evidence, the court must review the entire record, weigh the evidence and “all

reasonable inferences,” consider witness credibility, and determine whether “the

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jury clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered.” Id., quoting State v. Martin

(1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717. To reverse a conviction based

on the manifest weight of the evidence, a unanimous panel of three appellate

judges must concur. State v. Michaels (Dec. 15, 1999), 3d Dist. No. 13-99-41,

citing Thompkins, at 389.

{¶12} Davis was convicted on two counts of breaking and entering. R.C.

2911.13(A) states, “[n]o person by force, stealth, or deception, shall trespass in an

unoccupied structure, with purpose to commit therein any theft offense, as defined

in section 2913.01 of the Revised Code, or any felony.” “Force” is defined as

“any violence, compulsion, or constraint physically exerted by any means upon or

against a person or thing.” R.C. 2901.01(A)(1). The term “unoccupied structure”

is not defined in the Revised Code; however, the Supreme Court of Ohio has

determined that an “unoccupied structure” would include any structure not defined

as an “occupied structure” under R.C. 2909.01. See State v. Carroll (1980), 62

Ohio St.2d 313, 314-315, 405 N.E.2d 305. R.C. 2909.01(C) states:

“Occupied structure” means any * * * building, * * * or other
structure * * * to which any of the following applies:

(1) It is maintained as a permanent or temporary dwelling,
even though it is temporarily unoccupied and whether or not
any person is actually present.

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(2) At the time, it is occupied as the permanent or temporary
habitation of any person, whether or not any person is actually
present.

(3) At the time, it is specially adapted for the overnight
accommodation of any person, whether or not any person is
actually present.

(4) At the time, any person is present or likely to be present in
it.

Davis was also convicted on one count of grand theft. R.C. 2913.02 provides:

(A) No person, with purpose to deprive the owner of property
or services, shall knowingly obtain or exert control over either
the property or services in any of the following ways:

(1) Without the consent of the owner or person authorized to
give consent;

** *

(B)(5) If the property stolen is a motor vehicle, a violation of this
section is grand theft of a motor vehicle, a felony of the fourth
degree.

{¶13} At approximately 3:00 a.m. on February 22, 2008, a security

company contacted the Lima Police Department to report that a security alarm had

been triggered at Pagers Depot, located on North Metcalf Street in Lima, Ohio.

(Trial Tr., Dec. 15, 2008, at 230). Robert Sarchet, who had been a patrolman with

the Lima Police Department for 32 years, was dispatched to the business. When

he arrived at the store, Sarchet immediately noticed that the glass in the front of

the business had been smashed with a concrete block. (Id. at 231). Sarchet

located a distinctive shoeprint and tracks from what appeared to be a small two-

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wheeled cart in the freshly fallen snow, and he believed that merchandise had been

removed from the store. (Id. at 231; 234). Sarchet preserved the shoeprint with a

large box and contacted the store owner, who later confirmed that 13 cell phones

had been stolen. (Id. at 239; 248; 264). The store owner testified that nobody

was permitted in his store after hours. (Id. at 266).

{¶14} Mark Link, who had been employed by the Lima Police Department

for 17 years, also arrived at Pagers Depot and traced the distinctive shoeprints and

cart tracks from the store to an apartment building at 424 North Metcalf Street.

(Id. at 378). The shoeprints and cart tracks were then traced to a residence at 108

West Circular Street by Link and fellow police officers Mike Carman and Robert

Hillard. (Id. at 281-283; 349; 382). The officers traced the shoeprints and cart

tracks from their cruisers by circling each city block to locate where the tracks

entered and exited each block between those two locations. During this time,

Shawn Niedemire, a patrolman who had been employed by the Lima Police

Department for 11 years, stopped a black male who was walking in the 500 block

of South West Street. (Id. at 493). The person identified himself as Aundre Davis

and told Niedemire he was walking home from a friend’s house. (Id.). At that

time, Davis was wearing a black and green jacket and a brown baseball cap. (Id.

at 493-494).

{¶15} At 108 W. Circular St., the officers located shoeprints and cart tracks

at the back of the residence, and Sarchet confirmed Carman’s verbal description of

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the shoeprints as similar to the shoeprints that had been located at Pagers Depot.

(Id. at 279). At that point, Carman and Link realized that the tracks had been

made as the suspect walked from 108 W. Circular St. to 424 N. Metcalf St. (Id. at

285; 382).

{¶16} Carman returned to 424 N. Metcalf St., and he, Hillard, and

Detective Steven Stechschulte began talking to residents of the three apartments

located in the building. (Id. at 289). Hillard went outside as Stechschulte was

speaking with the resident who lived in the first-floor apartment. (Id. at 356). At

that point, he noticed a gold Dodge Caravan parked on the wrong side of the street

that had not been there previously. (Id. at 357). Looking through the window of

the van, Hillard observed that the ignition had been “punched,”2 so he informed

Carman and Stechschulte by radio that they also had a stolen vehicle to

investigate. (Id. at 290; 358). At that time, Davis walked northbound on the

sidewalk past both Carman and Hillard. Both officers observed that the shoeprints

left by Davis were similar to the shoeprints they had been following throughout

the city that morning. (Id. at 292; 359). As stated in our discussion of the

suppression motion, Davis was arrested for intoxication during his interaction with

the officers. Sarchet transported Davis to the police department and took his

clothing and shoes into evidence. Sarchet testified that Davis’ outer pants (he had

2
“Punching” an ignition is a common method used to steal cars.

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been wearing several layers) were soaking wet, as were his socks and shoes. (Id.

at 241).

{¶17} Hillard ran the license plate number of the van through dispatch,

which returned the owner’s name and address on South Elizabeth Street. At the

victim’s residence, Link observed an empty spot in the driveway where the snow

had fallen around a vehicle, which had been subsequently moved. (Id. at 384).

Link located shoeprints in the driveway that were similar to the shoeprints he had

observed at Pagers Depot. (Id.). Link drove the owner of the van to 424 N.

Metcalf St., where she identified the vehicle as hers. The owner testified that

neither she nor her husband had authorized anybody else to drive their van. (Id. at

413).

{¶18} Outside of the driver’s side door of the van, officers located

shoeprints that appeared to match the shoeprints Davis had left on the sidewalk

prior to his arrest. (Id. at 301; 307-308). Upon inspecting the interior of the van,

the victim and officers located new clothing that did not belong to the victim. (Id.

at 387; 411). The items still had store tags on them, and some items were on

hangers. The clothing was described as “hip-hop” clothing. Also located in the

van between the front seats was a concrete landscaping block that had snow and

pieces of leaves on it.

{¶19} After finding the “hip hop” clothes in the van, the officers believed

that a different business had also been broken into that morning, so Link began

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patrolling the city to see if any of the urban clothing stores had been broken into.

While he was doing so, Carman and Hillard followed the distinct shoeprints away

from the stolen minivan. (Id. at 309-310; 367). As they were tracing the

shoeprints, Carman located a black and green jacket next to a snow-covered, red

Pontiac TransAm. The jacket had no snow over it, and two wet gloves were

located in the front pockets. (Id. at 309-312). Niedemire identified the jacket,

Exhibit 27, as the jacket Davis had been wearing when he was stopped earlier that

morning in the 500 block of S. West St. (Id. at 494). Carman stopped tracing the

shoeprints at that point, but Hillard continued to trace the shoeprints around the

block. Hillard observed that the shoeprints stopped where Davis had been arrested

a short time earlier. (Id. at 367).

{¶20} Meanwhile, during Link’s canvas of the city, he discovered that

Urban Gear, an urban clothing store located at 730 South Main Street, had also

been broken into. (Id. at 388). Link found a concrete block holding open the front

screen door, the glass was out of the interior door,3 and the wicker blinds were

hanging to the outside of the interior door. (Id. at 389-390). Link saw the same

distinct shoeprint in the snow outside of Urban Gear that he had seen in the

driveway at S. Elizabeth St. and at Pagers Depot. (Id. at 390).

{¶21} In an alley next to Urban Gear, Link located three baseball caps and

the same distinct shoeprints. (Id. at 390). In the store, Link observed that a lot of

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merchandise appeared to be missing. (Id. at 393). The store owner later

confirmed that approximately $4,000 of inventory had been stolen and not

recovered. (Id. at 483). He also testified that he never gave Davis permission to

be in the store after hours. (Id. at 486). David Hammond, an identification officer

with the Lima Police Department, testified that he collected several shoeprints

from the panel of glass on the floor of Urban Gear by using a technique similar to

that used to lift fingerprints. (Id. at 517-518).

{¶22} The exhibits admitted by the trial court included a photograph of the

shoeprints and car tracks located outside of Pagers Depot; a photograph of the

concrete blocks and broken glass on the floor inside of Pagers Depot; a

photograph of the minivan parked in the wrong direction on the street; a

photograph of the punched ignition; a photograph of the shoeprints located just

outside the driver’s door of the minivan; a photograph of footprints in the snow

near a red Pontiac TransAm; a photograph of a black and green jacket lying on top

the snow next to a red Pontiac TransAm; a photograph of three baseball caps lying

in an alleyway; a photograph of the broken door glass lying on the floor inside

Urban Gear; several photographs showing empty racks inside Urban Gear;

photographs of some of the merchandise located in the minivan; and photographs

of the landscaping block located inside the minivan. The jury was able to observe

3
The panel of glass from the front door was found lying on the floor inside the business with several areas
showing where the perpetrator had hit the glass with a block.

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the black and green jacket, which had been recovered next to the Pontiac TransAm

and which Niedemire identified as the defendant’s; the baseball cap Neidemire

identified as the defendant’s; and one of the tennis shoes seized from the

defendant following his arrest. Each officer admitted on cross examination that

they had not received specialized training on footwear identification. However,

Exhibit 23 was identified as the shoe taken from Davis during his arrest, and each

officer testified that the tread pattern was the same pattern they had followed

during their investigation on the morning of February 22, 2008. (Id. at 343; 375;

394-395).

{¶23} Finally, Daniel Davison testified. Davison had earlier testified

outside the hearing of the jury on Davis’ motion in limine, in which he sought to

exclude Davison’s testimony. The trial court overruled the motion in limine, and

during trial, it qualified Davison as an expert in footwear comparison. Davison

worked in the trace evidence department at the Ohio Bureau of Criminal

Identification and Investigation. Since 2003, he had been approved to conduct

footwear comparisons without supervision, and he had conducted approximately

120 examinations since that time. (Id. at 426-427). Davison indicated that he had

been subjected to “in-house” training, had read articles in the International

Association of Identification’s journal and the Journal of Forensic Science, had

read portions of William Bodziak’s book, and had attended a 40-hour training

session conducted by Bodziak. (Id. at 425). Previously, Davison had been

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qualified as an expert witness by the Franklin County Common Pleas Court. (Id.

at 428).

{¶24} Davison conceded that untrained people would be able to distinguish

between different tread patterns on the bottom of shoes; however, he stated that

untrained people should not be trusted to ascertain whether an impression came

from a particular, specified shoe. (Id. at 429-430; 436). Davison explained the

examination he typically does in conducting a footwear comparison, particularly

the final step, in which he looks for any unusual or “accidental” characteristics in

the tread pattern. Such “accidental” characteristics could result from damage to

the bottom of a shoe, such as cuts, nicks, lodged stones, punctures, or burns. (Id.

at 433). In this case, Davison was asked to compare the “unknown” impressions

Hammond lifted from the glass at Urban Gear to the “known” impressions made

by the bottom of Davis’ confiscated tennis shoes. Davison opined that the

unknown impression of a left shoe from the glass matched the known impression

of Davis’ left shoe; however, the unknown right shoe impression from the glass

could not be conclusively linked to the known impression of Davis’ right shoe.

(Id. at 445-446; 580; 582).

{¶25} Even if the trial court did abuse its discretion when it qualified

Davison as an expert witness, any such error would be harmless in light of the

overwhelming circumstantial evidence of identification in this case. State v.

Lindsay, 3d Dist. No. 8-06-24, 2007-Ohio-4490, at ¶ 18, citing State v. Jenks

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(1981), 61 Ohio St.3d 259, 574 N.E.2d 492, at paragraph one of the syllabus

(“[c]ircumstantial evidence is good evidence and has the same probative value as

direct evidence.”). Niedemire had seen Davis walking the city’s streets while

officers were tracing the shoeprints and cart tracks from 424 N. Metcalf St. to 108

W. Circular St. At that time, Davis identified himself to Niedemire, who observed

Davis’ jacket and baseball cap. The jacket was subsequently found discarded on

top of the freshly fallen snow a short distance away from 424 N. Metcalf St.

Davis’ hat was also introduced into evidence. Niedemire testified that both

articles of clothing were the same as those he had observed Davis wearing when

he stopped Davis on the morning of February 22, 2008.

{¶26} Multiple police officers, each with significant experience in law

enforcement, testified that they observed shoeprints with the same distinct tread

pattern outside of Pagers Depot, outside of Urban Gear, outside of 424 N. Metcalf

St., outside of 108 W. Circular St., outside of the stolen minivan, and in the

driveway at S. Elizabeth St. Furthermore, the jury observed for itself the

photographs of the shoeprints located in the freshly fallen snow, and it had Exhibit

23, which was Davis’ tennis shoe. Even without Davison’s testimony matching

one shoeprint lifted from Urban Gear to the tread pattern on Davis’ left tennis

shoe, the remaining evidence overwhelmingly supported the convictions. See

State v. DeWalt, 7th Dist. No. 06 CA 835, 2007-Ohio-5248, at ¶ 34, citing State v.

Whitt (1991), 68 Ohio App.3d 752, 753, 589 N.E.2d 492; State v. Hartman (2001),

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93 Ohio St.3d 274, 287, 754 N.E.2d 1150; State v. Scott, 8th Dist. No. 88084,

2007-Ohio-2111, at ¶ 32; State v. Jackson, 10th Dist. No. 02AP-867, 2003-Ohio-

6183, at ¶ 33 (“[i]n criminal cases, an error in the admission of expert testimony is

deemed to be reversible error unless it is found to be harmless beyond a reasonable

doubt.”). Each element of each offense was supported by direct evidence, and as

discussed above, there was more than sufficient circumstantial evidence

identifying Davis as the offender. On this record, we cannot find that the jury

clearly lost its way. The second and third assignments of error are overruled.

{¶27} The judgment of the Allen County Common Pleas Court is affirmed.

Judgment affirmed

PRESTON, P.J., and ROGERS, J., concur.

/jnc

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