State v. Ward

[Cite as State v. Ward, 2017-Ohio-4284.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:
: Hon. Patricia A. Delaney, P.J.
Plaintiff - Appellee : Hon. Craig R. Baldwin, J.
: Hon. Earle E. Wise, J.
-vs- :
:
BRANDON WARD : Case No. 16 CAA 12 0055
:
Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Delaware County
Court of Common Pleas, Case No.
16-CR-I-08-0377

JUDGMENT: Affirmed

DATE OF JUDGMENT: June 13, 2017

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CAROL HAMILTON O'BRIEN JOEL M. SPITZER
Delaware County Prosecuting Attorney 97 S. Liberty Street
Powell, Ohio 43065
By: MARK C. SLEEPER
Assistant Prosecuting Attorney
140 North Sandusky Street
Delaware, Ohio 43015
Delaware County, Case No. 16 CAA 12 0055 2

Baldwin, J.

{¶1} Defendant-appellant Brandon Ward appeals his conviction and sentence

from the Delaware County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On August 5, 2016, the Delaware County Grand Jury indicted appellant on

one count of rape in violation of R.C. 2907.02(A)(1)(c), a felony of the first degree, one

count of rape in violation of R.C. 2907.02(A)(2), a felony of the first degree, one count of

sexual battery in violation of R.C. 2907.03(A)(2), a felony of the third degree, one count

of sexual battery in violation of R.C. 2907.03(A)(3), a felony of the third degree, and one

count of theft in violation of R.C. 2913.02(A)(1), a misdemeanor of the first degree. At

his arraignment on August 10, 2016, appellant entered a plea of not guilty to the charges.

{¶3} On October 4, 2016, appellant entered a plea of guilty to theft. A jury trial

on the remaining charges commenced on the same date.

{¶4} At the trial, M.W., the victim, testified that she was a student at Ohio

Wesleyan in Delaware, Ohio, and in the summer of 2016, was a resident advisor in

Bashford Hall. She testified that she also was employed at a daycare and as a waitress

at a local restaurant. M.W. also was an intern at her church designing curriculum for the

children’s ministry.

{¶5} On June 23, 2016, M.W. was walking to church for a meeting when appellant

passed her on his bike and stopped her. She testified that she had never seen him before

and had never had a conversation with him before. According to M.W., appellant told her

that he had been following her for a little bit. Appellant then rode away after M.W. told him

that she was going to church, but then he came back and stopped her
Delaware County, Case No. 16 CAA 12 0055 3

again and asked her if he could go to church with her sometime. M.W. agreed and the

two exchanged phone numbers and eventually made plans to hang out later in the day.

{¶6} After M.W. got off work at around 5:30 p.m., appellant met up with her outside

of her dorm and the two of them went to Wendy’s to eat and talk about church. M.W.

testified that she paid for the food because appellant said that he did not have his wallet

on him. The two then walked around campus and then decided to go to Bashford Hall to

hang out in the common area of the basement because it was cool. After listening to music

in the basement, they then went up to M.W.’s dorm room, ordered Chinese food and sat

on M.W.’s bed watching movies. M.W. testified that there had not been any hand holding,

kissing or touching of any kind up to that point. While watching a movie, M.W. fell asleep

while wearing her athletic shorts and a tank top. When she laid down, appellant was

sitting on the end of her bed.

{¶7} M.W. testified that when she woke up, her pants were down, she was on

her stomach and appellant’s penis was in her vagina. She testified that they had never

had any kind of physical contact before and had not discussed having sex that night. M.W.

testified that she then rolled off of her bed, pulled up her shorts and asked appellant to

leave. After appellant, who kept asking her what was wrong, did not leave right away,

M.W. grabbed her purse, phone and laptop and left to go the resident advisor office in the

basement. When she went back towards her room to get her phone charger, which she

had forgotten, M.W. passed appellant in the hallway as he was leaving.

{¶8} M.W. then went into her room and locked the door. When asked what she

did next, she testified that she took the sheets off of her bed, changed her clothes because

she wanted to be clean again and called a friend at around 11:30 p.m. M.W. put the
Delaware County, Case No. 16 CAA 12 0055 4

clothes and bedding into her laundry hamper in her dorm room. M.W. testified that she

told her friend David that “something bad happened” and asked if he could come by and

help her. Trial Transcript at 264. She then left her dorm room and went and sat on the

stairs because she did not want to be alone there.

{¶9} When M.W.’s friend arrived, M.W. realized that she did not want to be around

him or touched by him because he was male and she was scared of him. The two went up

to M.W.’s dorm room. M.W. testified that while staying near the door, she told her friend

that she had fallen asleep and that when she awoke, “things were happening that I didn’t

want to happen.” Trial Transcript at 265. After her friend asked if she needed to go to the

hospital, M.W. agreed and he drove her there. M.W. testified that she did not want David

to go into the hospital with her and that she went into the hospital and told a nurse that

she needed a rape kit done. The nurse then asked M.W. if she had been raped and

M.W. indicated that she had and agreed to have the police called.

{¶10} M.W. testified that when a police officer knocked on the door of the room

that she was in, she got scared because the officer was a large man. The officer then

left. M.W. later spoke with Detective David McQuigg and told him that she did not want

to press charges because she wanted to get her father’s advice about what to do. After

M.W. agreed that Detective McQuigg could take photos of the scene and retrieve the

sheets and the clothes that she had been wearing, he drove her back to her dorm. As

she was looking around her dorm room. M.W. noticed that money that she had been

saving in a large pickle jar was gone and became angry. M.W. then told the Detective that

she wanted to press charges for the theft. After talking with her father who advised her to

press charges when she was ready, M.W. called Detective McQuigg and informed
Delaware County, Case No. 16 CAA 12 0055 5

him that she wanted to press charges. When asked if she had consented to having sex

with appellant, M.W. testified that she had not and further testified that she would not have

permitted him to have sex with her if she was not asleep at the time.

{¶11} At trial, Officer Adam Graham of the Delaware City Police Department

testified that he received a dispatch to Grady Memorial Hospital on the early morning of

June 24, 2016 on a sex offense case. When he arrived at the room where M.W. was

located, M.W. panicked and ran to the back of the room acting as if she was in fear of

him. The Officer then left the room without speaking to M.W. and contacted Detective

McQuigg.

{¶12} Detective David McQuigg of the Delaware City Police Department testified

that he met with M.W. in the bereavement room of the hospital and she was “withdrawn,

very quiet, timid, meek,…” Trial Transcript at 195. He testified that M.W. told him that she

was uncertain what she wanted to do and told him that at that point, she did not want him

to conduct an official criminal investigation. Detective McQuigg gave M.W. a ride back to

her dorm and took pictures of her room. According to the Detective, M.W. indicated that

appellant had taken in excess of $600.00 of tip money that she had been keeping in a jar.

M.W. was “[s]hocked and anger (sic)”. Trial Transcript at 201. Detective McQuigg

testified that M.W.’s bed was stripped and that the bedding had all been placed in a

hamper along with M.W.’s clothing. According to the Detective, M.W. asked him to

investigate appellant for the theft of her cash, but said that she was still undecided about

the sexual assault.

{¶13} Detective McQuigg testified that he spoke with appellant who asked him if

he was being investigated for a sexual assault. The Detective told appellant than he was
Delaware County, Case No. 16 CAA 12 0055 6

only being investigated at that time for a theft offense. Appellant indicated to the Detective

that he had had consensual sex with M.W. During a later telephone conversation,

appellant said that he had had consensual sex with M.W. and denied taking her money,

although, according to the Detective, appellant said that he was willing to make payments

to M.W. to make it right.

{¶14} On cross-examination, Detective McQuigg testified that M.W. was hesitant

in answering his questions and seemed to change her mind several times during the

interview as to how she wanted to proceed. He admitted that she told him that if she got

her money back, she would not pursue appellant for sexual assault. On redirect, he

testified that he told M.W. that he could not use the theft offense as leverage and that the

next morning, M.W. e-mailed him and apologized for her comments, stating that she had

been angry and let her emotions get the best of her.

{¶15} Appellant testified at trial in his own defense. Appellant testified that he

began kissing M.W.’s body while on her bed and that she had her arms wrapped around

him. He testified that M.W. was awake with her eyes open and seemed to be enjoying

herself. He further testified that he started caressing M.W.’s vagina through her clothes

and that she was conscious the whole time and talking to him. According to appellant, he

eventually performed oral sex on M.W. while she was awake and alert. He testified that

appellant spread her legs open during oral sex and that this led to consensual sexual

intercourse.

{¶16} Appellant testified that 30 to 40 seconds into the intercourse, M.W. sat up

and asked what he was doing and asked him to leave. She then left the room. Appellant

testified that he took the money out of the jar and admitted to pleading guilty to theft.
Delaware County, Case No. 16 CAA 12 0055 7

Appellant testified that he then left M.W.’s room and, while leaving, saw M.W. in the

hallway of the dorm. While he testified that he asked her what happened, he further

testified that she did not respond.

{¶17} On cross-examination, appellant testified that he believed that he was the

victim in this case and that M.W. had set him up. He testified that he felt that when M.W

noticed the money was missing, she wanted revenge even though they had had

consensual sex. As evidence, appellant cited that a female outside of the dorm room that

M.W. was talking to was laughing at him and smirking. Appellant testified that earlier that

evening, he had seen M.W. with such person when he went out for a smoke. The following

is an excerpt from appellant’s testimony at trial:

{¶18} Q: You said that you didn’t take the money till the end of the night, right?

{¶19} A: Yeah.

{¶20} Q: So you hadn’t taken the money at the time you see this supposed other

person outside with piercings in her nose that gives you the smirk look laughing, right?

{¶21} A: I didn’t take the money till when?

{¶22} Q: You didn’t take the money till after you see this person outside on the

stairs?

{¶23} A: No. After we had sex and she got up and walked away from me.

{¶24} Q: But it was your belief that the person outside that gave you that smirk

was evidence that [M.W.] was going to set you up?

{¶25} A: It wasn’t really evidence, it was just weird. I thought it just didn’t add up.

{¶26} Q: So that setup had to have come into [M.W.’s] mind and been her plot

before she ever finds out her money’s missing?
Delaware County, Case No. 16 CAA 12 0055 8

{¶27} A: It would have been, I just thought it was a possibility.

{¶28} Q: You - -

{¶29} A: I felt like ‘cause she got up and then she was - - she immediately got on

her laptop and was typing on her laptop walking down the hallway.

{¶30} Q: All right. Let’s talk about that. You said to Detective Madden, as the

story goes on, you know what I’m saying, like, I knew it was something fishy because,

like, she got up and she grabbed her laptop and she walked out and, like, she went to the

end of the hallway.

{¶31} That’s what you thought was fishy, that she got up and left with the laptop?

{¶32} A: Yeah. She was texting on her computer, like, she opened it up, she

started walking down the hallway and she was writing somebody, looked like.

{¶33} Q: Okay.

{¶34} A: And she got to the end of the hallway by the door, I don’t know who she

was writing, but she got to the end of the doorway and that’s when she - - she turned

around towards me.

{¶35} Q: And that’s further evidence you believe that [M.W.] was setting you up,

that was her intention to set you up?

{¶36} A: Yeah. It was a possibility. It didn’t add up. It didn’t make sense why

she got on her computer like that.

{¶37} Q: And, again, that was before you had taken her money, right?

{¶38} A: Yeah.

{¶39} Q: So this setup plan that [M.W.] had concocted would have occurred before

you stole her money?
Delaware County, Case No. 16 CAA 12 0055 9

{¶40} A: Yeah.

{¶41} Trial Transcript at 385-387.

{¶42} Appellant admitted at trial that after taking M.W.’s money, he put the top

back on the jar so that M.W. would not notice right away that her money was missing. He

further agreed that only reason that M.W. was accusing him of rape was because “it’s all

about the 600 some dollars, she’s working three jobs so she’s pissed, right?” Trial

Transcript at 402.

{¶43} At the conclusion of the evidence and the end of deliberations, the jury, on

October 5, 2016, found appellant guilty of the two counts of sexual battery and not guilty

of the two counts of rape. As memorialized in a Judgment Entry filed on November 16,

2016, appellant was sentenced to 54 months in jail for sexual battery in violation of R.C.

2907.03(A)(3)1 and to 180 days for theft. The trial court ordered that the sentences be

served concurrently to one another. Appellant also was ordered to pay restitution.

{¶44} Appellant now raises the following assignments of error on appeal:

{¶45} DEFENDANT-APPELLANT’S CONVICTION FOR TWO COUNTS OF

SEXUAL BATTERY WAS NOT SUPPORTED BY SUFFICIENT, CREDIBLE EVIDENCE.

{¶46} DEFENDANT-APPELLANT’S CONVICTION FOR TWO COUNTS OF

SEXUAL BATTERY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶47} DEFENDANT-APPELLANT WAS DENIED THE RIGHT TO EFFECTIVE

ASSISTANCE OF COUNSEL AND A FAIR TRIAL UNDER THE SIXTH AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND OHIO

CONSTITUTION, ARTICLE I, SECTION 10.

1
Appellee conceded at sentencing that the two counts of sexual battery merged.
Delaware County, Case No. 16 CAA 12 0055 10

{¶48} DEFENDANT-APPELLANT WAS DEPRIVED OF HIS RIGHT TO DUE

PROCESS AND A FAIR TRIAL UNDER THE FEDERAL AND STATE CONSTITUTIONS

BY THE CUMULATIVE EFFECT OF NUMEROUS ERRORS IN THIS CASE.

I, II

{¶49} Appellant, in his first and second assignments of error, argues that his

conviction for two counts of sexual battery is against the sufficiency and manifest weight

of the evidence. We disagree.

{¶50} The legal concepts of sufficiency of the evidence and weight of the evidence

are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380,

1997–Ohio–52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review

for a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio

St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio

Supreme Court held as follows:

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.

{¶51} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the

entire record, weighs the evidence and all reasonable inferences, considers the credibility
Delaware County, Case No. 16 CAA 12 0055 11

of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly

lost its way and created such a manifest miscarriage of justice that the conviction must be

overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387.

Reversing a conviction as being against the manifest weight of the evidence and ordering

a new trial should be reserved for only the “exceptional case in which the evidence weighs

heavily against the conviction.” Id.

{¶52} We note the weight to be given to the evidence and the credibility of the

witnesses are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 237 N.E.2d

212 (1967). The trier of fact “has the best opportunity to view the demeanor, attitude, and

credibility of each witness, something that does not translate well on the written page.”

Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997–Ohio–260, 674 N.E.2d 1159.

{¶53} Appellant, in the case sub judice, was convicted of sexual battery in violation

of R.C. 2907.03(A)(2) and (A)(3). R.C. 2907.03 states, in relevant part, as follows: (A) No

person shall engage in sexual conduct with another, not the spouse of the offender, when

any of the following apply:…

{¶54} (2) The offender knows that the other person's ability to appraise the nature

of or control the other person's own conduct is substantially impaired.

{¶55} (3) The offender knows that the other person submits because the other

person is unaware that the act is being committed.

{¶56} R.C. 2907.01(A) defines “sexual conduct” as follows: “(A) “Sexual conduct”

means vaginal intercourse between a male and female; anal intercourse, fellatio, and

cunnilingus between persons regardless of sex; and, without privilege to do so, the

insertion, however slight, of any part of the body or any instrument, apparatus, or other
Delaware County, Case No. 16 CAA 12 0055 12

object into the vaginal or anal opening of another. Penetration, however slight, is sufficient

to complete vaginal or anal intercourse.” R.C. 2901.22(B) provides as follows:

(B) A person acts knowingly, regardless of purpose, when the person is

aware that the person's conduct will probably cause a certain result or will

probably be of a certain nature. A person has knowledge of circumstances

when the person is aware that such circumstances probably exist. When

knowledge of the existence of a particular fact is an element of an offense,

such knowledge is established if a person subjectively believes that there is

a high probability of its existence and fails to make inquiry or acts with a

conscious purpose to avoid learning the fact.

{¶57} Appellant specifically contends that there was not sufficient credible

evidence that M.W. was substantially impaired at the time of the sexual activity or that he

knew that she was substantially impaired and unable to appraise the nature of or control

her own conduct.

{¶58} In the case sub judice, M.W. testified that while she was watching a movie

with appellant, she laid down and ended up falling asleep while fully clothed. When asked

what she remembered next, she testified that she “remembered waking up and feeling—

well, my pants were down and he was behind me and kind of over top of me.” Trial

Transcript at 260. She further testified that appellant’s penis was inside of her vagina.

According to M.W., the two of them never discussed having sex that night. While there

was no evidence that M.W. was intoxicated or under the influence of drugs, the Eighth

District Court of Appeals “has held that sleep constitutes a mental or physical condition

that substantially impairs a person from resisting or consenting to sexual conduct.” Clark,
Delaware County, Case No. 16 CAA 12 0055 13

¶ 21, citing Graves. When a person is unconscious, she is not in a mental condition to

resist or consent to the sexual conduct.” State v. Jones, 8th Dist. Cuyahoga No. 98151,

2012 -Ohio- 5737 at paragraph 30. (Citations omitted). See also State v. Adams, 9th Dist.

Lorain No. 05CA008685, 2005- Ohio-4360, in which the court held that the evidence was

sufficient to support defendant's sexual battery conviction. In such case, the victim had

testified that, on two occasions, the defendant fondled her and digitally penetrated her

while she was sleeping. We find that there was credible evidence that M.W. was

substantially impaired at the time of the sexual offense.

{¶59} Appellant also asserts that there is no evidence that he knew that M.W. was

asleep and unable to appraise the nature of or control her own conduct. However, as

noted by appellee, M.W. testified that she fell asleep while fully clothed while appellant

was sitting near her feet and that she later woke up with her shorts pulled down and

appellant’s penis in her vagina. Her testimony, if believed, establishes that M.W. was

asleep during the sexual assault. As noted by appellee, appellant would have had to move

from his position on M.W.’s bed, pull her shorts down and begin having sexual intercourse

with her “all while she did not move and did not respond verbally in any way. It would be

impossible for someone to have engaged in sexual conduct with M.W. in that manner and

not have been aware that she was asleep.”

{¶60} Based on the foregoing, we find that appellant’s conviction for sexual battery

is not against the sufficiency. We find that any rational trier of fact, after viewing the

evidence in a light most favorable to the prosecution, could have found that appellant

committed sexual battery beyond a reasonable doubt.
Delaware County, Case No. 16 CAA 12 0055 14

{¶61} With respect to manifest weight, we note that both M.W. and appellant

testified at trial. While appellant testified that the sex was consensual, the jury, as trier of

fact, was in the best position to assess his credibility. Clearly, the jury found appellant,

who initially denied taking M.W.’s money but later pleaded guilty to theft, not credible. In

short, we cannot say that the jury lost its way in convicting appellant.

{¶62} Appellant’s first and second assignments of error are, therefore, overruled.

III

{¶63} Appellant, in his third assignment of error, contends that he received

ineffective assistance of trial counsel.

{¶64} A properly licensed attorney is presumed competent. State v. Hamblin, 37

Ohio St.3d 153, 524 N.E.2d 476 (1988). Therefore, in order to prevail on a claim of

ineffective assistance of counsel, appellant must show counsel's performance fell below

an objective standard of reasonable representation and but for counsel's error, the result

of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668,

104 S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d

373 (1989). In other words, appellant must show that counsel's conduct so undermined

the proper functioning of the adversarial process that the trial cannot be relied upon as

having produced a just result. Id.

{¶65} Appellant first argues that his trial counsel was ineffective in failing to move

to a Crim.R. 29 Motion for Acquittal at the close of appellee’s case-in chief and at the

close of appellant’s case-in-chief based on insufficiency of the evidence. However, as is

stated above, we find that there was sufficient evidence supporting appellant’s
Delaware County, Case No. 16 CAA 12 0055 15

convictions. Appellant, therefore, could not have been prejudiced by his trial counsel’s

failure to make a Crim.R. 29 motion.

{¶66} Appellant next argues that his trial counsel was ineffective in failing to

exercise his last preemptory challenge to remove a juror. During voir dire, a juror, when

asked if there was anything in her past that made her think that she could not be fair and

impartial, stated “[p]robably, yes.” Trial Transcript at 91. She then indicated that someone

she used to babysit for her had made an advance on her and that it was very traumatic

and that “[t]here’s been a few other incidents involving sexual activity that have caused

me some discomfort.” Trial Transcript at 92. When asked if she could be a fair and

impartial juror, the juror indicated that she was unsure but that if she was appellant, she

would not want her on the jury. The trial court, after questioning the juror further, later

excused her as a juror. We find that there was no prejudice to appellant.

{¶67} Appellant also maintains that trial counsel was ineffective in failing to

vigorously cross-examine Amy Zoller, who was a registered nurse who performed a

sexual assault examination on M.W. Appellant argues that trial counsel failed to cross-

examine her on the absence of bruising, tears, DNA, and/or other specimens of appellant

that would otherwise be present if a sexual battery had occurred. We note that at trial,

Zoller testified that there was an indication of an abrasion to the bottom entry of the vagina.

Moreover, whether or not M.W. had any type of physical injury was not relevant as to

whether or not she was asleep at the time of the sexual conduct. As for DNA, since

appellant admitted to engaging in sexual conduct with M.W., the presence or absence of

his DNA was irrelevant.
Delaware County, Case No. 16 CAA 12 0055 16

{¶68} During cross-examination, appellant’s defense counsel elicited testimony

from Zoller that M.W. told her that she had difficulty relating a history of events, that M.W.

spoke slowly and was tearful and that M.W. did not make eye contact with her during the

examination. During closing arguments, defense counsel used such testimony in arguing

that M.W.’s testimony was not credible and that M.W. “couldn’t tell it straight because she

was trying to cover up the truth, and the truth was she voluntarily consented to sexual

activity with [appellant]….” Trial Transcript at 456. We find that trial counsel was not

ineffective, but rather exercised sound trial strategy because this case boiled down to a

credibility determination between M.W. and appellant.

{¶69} Finally, appellant contends that trial counsel was ineffective in failing to

conduct an independent investigation of the facts of the case outside of the provided

discovery. According to appellant, if counsel had done so, counsel would have discovered

that Zoller was the wife of an on-duty Delaware City Police Officer and could be biased

and could have uncovered potential witnesses at the dormitory that night who could have

provided exculpatory evidence benefiting appellant. To raise ineffective assistance claims

based on matters outside the record, a defendant must pursue the post-conviction

remedies outlined in R.C. 2953.21. State v. Cooperrider, 4 Ohio St.3d 226, 228, 448

N.E.2d 452 (1983). Therefore, the appellant's claim in this regard is not properly before

this Court.

{¶70} Appellant’s third assignment of error is, therefore, overruled.
Delaware County, Case No. 16 CAA 12 0055 17

IV

{¶71} Appellant, in his fourth assignment of error, argues that he was deprived of

his right to due process and a fair trial by the cumulative effect of the numerous errors in

this case.

{¶72} Because this Court, in overruling appellant’s assignments of error, found no

errors in this case, appellant’s fourth assignment of error is overruled.

{¶73} Accordingly, the judgment of the Delaware County Court of Common Pleas

is affirmed.

By: Baldwin, J.

Delaney, P.J. and

Earle Wise, J. concur.