State v. Coleman

[Cite as State v. Coleman, 2018-Ohio-1923.]

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

STATE OF OHIO C.A. Nos. 28640
28641
Appellee

v.
APPEAL FROM JUDGMENT
CHARLES D. COLEMAN ENTERED IN THE
COURT OF COMMON PLEAS
Appellant COUNTY OF SUMMIT, OHIO
CASE Nos. CR 2016 10 3554 (B)
CR 2016 05 1716 (B)

DECISION AND JOURNAL ENTRY

Dated: May 16, 2018

TEODOSIO, Judge.

{¶1} Appellant, Charles D. Coleman, appeals from his convictions in the Summit

County Court of Common Pleas. This Court affirms, but remands the matter for the trial court to

issue a nunc pro tunc judgment entry.

I.

{¶2} In May of 2016, R.M. wanted to trade food stamps for heroin, so a female

acquaintance connected him to an individual who was willing to facilitate an exchange. Mr.

Coleman and two others (“Terrance” and “Anthony”) arrived at R.M.’s residence and forced him

go with them to a nearby Save-a-Lot store while they used his food stamp card. The men all

traveled to the store together in one vehicle, and two of them went inside to buy food with

R.M.’s food stamp card. Afterward, they drove to a turnaround at the end of a road and all three

men physically attacked R.M. He managed to escape and locate a nearby Stow police officer
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that the men had just recently passed on the road. The officer soon located and stopped the

vehicle as it came back down the road from the turnaround and eventually arrested all four men,

including R.M. Mr. Coleman was indicted on a felony charge of illegal use of food stamps or

WIC program benefits as well as misdemeanor assault.

{¶3} In October of 2016, an Akron police officer was dispatched to investigate a

suspicious vehicle parked in the entrance to a parking lot with three men inside. Terrance was in

the driver’s seat, Anthony was the front passenger seat, and Mr. Coleman was in the rear seat,

directly behind the driver. Anthony was arrested on an active warrant and he admitted that there

was a gun under his seat. After Terrance and Mr. Coleman were removed from the vehicle,

officers located Anthony’s gun as well as another loaded gun stashed deep down in the map

pocket behind the driver’s seat. Mr. Coleman was indicted on a felony charge of improperly

handling firearms in a motor vehicle.

{¶4} Mr. Coleman waived his right to a jury trial and both matters proceeded to a

bench trial. The trial court found him guilty of all three offenses and sentenced him to two years

of community control.

{¶5} Mr. Coleman now appeals from his convictions and raises two assignments of

error for this Court’s review. Although he appealed both of his criminal cases separately, this

Court consolidated the two appeals, as both cases were tried together in the trial court.

II.

{¶6} Before addressing Mr. Coleman’s assignments of error, we must first address an

error brought to this Court’s attention by the State, regarding the trial court’s judgment entry and

Mr. Coleman’s conviction for improper handling. Mr. Coleman was convicted of improperly

handling firearms in a motor vehicle under R.C. 2923.16(B), which is undeniably a felony of the
 3

fourth degree. See R.C. 2923.16(I) (“A violation of division (B) of this section is a felony of the

fourth degree”). A review of the record reveals that the charge was properly indicted as a felony

of the fourth degree and that Mr. Coleman was found guilty at trial of a felony of the fourth

degree. During his sentencing hearing, the trial court properly sentenced Mr. Coleman for a

felony of the fourth degree. However, the court’s judgment entry contains a clerical error as it

mistakenly refers to the offense as a felony of the fifth degree. As it is clear from the record that

this is simply a clerical error, we must remand the matter for the trial court to issue a nunc pro

tunc judgment entry to reflect that Mr. Coleman was found guilty of improperly handling

firearms in a motor vehicle under R.C. 2923.16(B), a felony of the fourth degree. See State v.

Higgins, 9th Dist. Summit No. 27700, 2018-Ohio-476, ¶ 21.

{¶7} We now turn to the merits of Mr. Coleman’s assignments of error.

ASSIGNMENT OF ERROR ONE

THE TRIAL COURT ERRED AS A MATTER OF LAW AND DENIED THE
DEFENDANT HIS CONSTITUTIONAL DUE PROCESS RIGHTS WHEN IT
FAILED TO SUSTAIN THE DEFENDANT’S CRIM.R. 29 MOTIONS FOR
ACQUITTAL BASED ON INSUFFICIENCY OF THE EVIDENCE

{¶8} In his first assignment of error, Mr. Coleman argues that his convictions are based

on insufficient evidence and the trial court erred in not granting his Crim.R. 29 motion for

acquittal. We disagree.

{¶9} “We review a denial of a defendant’s Crim.R. 29 motion for acquittal by

assessing the sufficiency of the State’s evidence.” State v. Frashuer, 9th Dist. Summit No.

24769, 2010-Ohio-634, ¶ 33. “A sufficiency challenge of a criminal conviction presents a

question of law, which we review de novo.” State v. Spear, 9th Dist. Summit No. 28181, 2017-

Ohio-169, ¶ 6, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). “Sufficiency concerns

the burden of production and tests whether the prosecution presented adequate evidence for the
 4

case to go to the jury.” State v. Bressi, 9th Dist. Summit No. 27575, 2016-Ohio-5211, ¶ 25,

citing Thompkins at 386. “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.” Id., quoting State v. Jenks, 61 Ohio

St.3d 259 (1991), paragraph two of the syllabus. However, “we do not resolve evidentiary

conflicts or assess the credibility of witnesses, because these functions belong to the trier of

fact.” State v. Hall, 9th Dist. Summit No. 27827, 2017-Ohio-73, ¶ 10.

{¶10} Mr. Coleman was convicted of illegal use of food stamps or WIC program

benefits under R.C. 2913.46(B), which states:

No individual shall knowingly possess, buy, sell, use, alter, accept, or transfer
supplemental nutrition assistance program benefits, WIC program benefits, or any
electronically transferred benefit in any manner not authorized by the Food and
Nutrition Act of 2008 (7 U.S.C. 2011 et seq.) or section 17 of the “Child Nutrition
Act of 1966,” 80 Stat. 885, 42 U.S.C. 1786, as amended.

“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.” R.C.

2901.22(B).

{¶11} Mr. Coleman concedes that the parties stipulated prior to trial that buying, selling,

or transferring food stamps is not authorized by the Food and Nutrition Act of 2008. He argues

instead that the State failed to prove the requisite mens rea element of “knowingly” for the

offense. He directs us to R.M.’s testimony in which he referred to the three men only by

numbers and claims that R.M. could not recall which individual sat in which seat. He further

directs us to Sergeant Jeffrey Breznak’s testimony in which he stated his investigation indicated

that Mr. Coleman never went into the store and that R.M. arranged the exchange with Terrance.
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{¶12} During his testimony at trial, R.M. referred to the men by their seating position in

the car. The driver was number 1, the front seat passenger was number 2, and the rear seat

passenger sitting directly behind the driver was number 3. R.M. was seated behind the front seat

passenger as number 4. When asked to identify person number 3, R.M. identified Mr. Coleman

in court. When asked who went into the store, R.M. testified, “Number 3 and number 2.” When

later asked where Mr. Coleman was at after two of the men went into the store, R.M. testified,

“He came out of the Save-a-Lot with the guy that was in the front, which would be passenger

number 2.” He was further asked to clarify if Mr. Coleman went into the store and he replied,

“That’s correct.” On cross-examination, R.M. testified, “From what I recall, I think [Mr.

Coleman] was in number 3 seat[,]” but he admitted that he was not sure. On re-direct

examination, R.M. testified that numbers 1 and 3 looked alike. He also testified that the food

stamp arrangement was discussed with all three of the men in the vehicle and stated, “[t]hey all

talked about what they wanted and what to get. This and that.” He testified that they all seemed

to know what was going on, and none of them seemed surprised during the discussion.

{¶13} Sergeant Breznak testified that when he stopped the vehicle, the three men all

initially denied knowing R.M. The men were all talking over one another, so Mr. Coleman

assumed the role of the spokesman for the group. The sergeant testified that Mr. Coleman

admitted, “Yes, we had an arrangement where $40 was going to be paid for $90 in groceries

using [R.M.’s] debit card, the food stamps debit card.” Officer Joseph Hepler testified that when

he conducted a tow inventory of the vehicle, a number of Save-a-Lot bags containing groceries

priced at over $93.00 were discovered in the trunk.

{¶14} After reviewing the evidence contained in the record in a light most favorable to

the prosecution, we conclude that the State satisfied its burden of production and presented
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sufficient evidence, if believed, from which a rational trier of fact could have concluded beyond

a reasonable doubt that Mr. Coleman knowingly committed the offense of illegal use of food

stamps or WIC program benefits. The testimony at trial established that Mr. Coleman and two

others were involved in a deal to exchange money or heroin for use of R.M.’s food stamp card.

R.M. testified that the men took him to the store and all three, including Mr. Coleman, discussed

what items they wanted to purchase with the card. Mr. Coleman was not surprised at the content

of those conversations, but instead was involved in the illicit plan. R.M. also testified that two of

the men, including Mr. Coleman, went into the store together to use his card and later emerged

with bags of groceries, which were later found in the trunk of the car. Mr. Coleman even

admitted his involvement in the exchange of cash for use of R.M.’s food stamp card to Sergeant

Breznak.

{¶15} Mr. Coleman was also convicted of assault under R.C. 2903.13(A), which states:

“No person shall knowingly cause or attempt to cause physical harm to another * * *.” Physical

harm to a person means “any injury, illness, or other physiological impairment, regardless of its

gravity or duration.” R.C. 2901.01(A)(3).

{¶16} Mr. Coleman argues that the State failed to introduce sufficient evidence of

assault because R.M. had visible injuries from a prior incident, but no visible injuries from this

particular incident, and R.M. testified that the punches he received did not hurt.

{¶17} We find no merit in Mr. Coleman’s sufficiency arguments as to his conviction for

assault. First, the plain language of R.C. 2903.13(A) prohibits not only actually causing physical

harm but also attempting to cause physical harm. State v. Stecz, 9th Dist. Medina No. 1652,

1988 Ohio App. LEXIS 2444, *3. Second, regardless of R.M.’s testimony that the punches did

not hurt him, R.C. 2901.01(A)(3) clearly defines physical harm as any injury regardless of its
 7

gravity. Consequently, “[a]n assault may occur even when there is no outward or physical

manifestation of pain or injury.” State v. Collier, 9th Dist. Lorain No. 07CA009115, 2008-Ohio-

826, ¶ 14. See also State v. Lohr, 9th Dist. Lorain No. 03CA008265, 2004-Ohio-1609, ¶ 6

(“There is no requirement that pain must be demonstrated by an outward physical manifestation

in order to constitute physical harm”).

{¶18} Nevertheless, R.M. testified that he was physically assaulted by all three men,

including Mr. Coleman. He testified that the men drove him to a turnaround at the end of a road

and the driver then switched spots with the rear seat passenger. He testified that all three men

then attacked him:

They proceeded to attack me. * * * The driver started swinging from the front seat
towards the back. The rear [passenger] * * * started swinging at me and got me in
my shoulder. And at the time 1 and 3 were attacking me in the vehicle, then
number 2 got out of the vehicle and had opened my door and swung at my face;
he caught my chin.

R.M. identified Mr. Coleman in court as the individual in the driver’s seat during the attack.

When specifically asked if the driver turned around and hit him, R.M. testified, “That is correct.”

When later asked if he was certain that Mr. Coleman hit him, he replied, “Yes.” On re-direct

examination, when he was asked again if he was positive that both numbers 1 and 3 hit him, he

replied, “100 percent.” Sergeant Breznak testified that R.M. approached him yelling about being

robbed by three men in which “the three started beating upon him.” He testified that R.M. was

quite clear in telling the officer that “all three occupants were punching him.”

{¶19} After reviewing the evidence presented in a light most favorable to the

prosecution, we conclude that the State satisfied its burden of production and presented sufficient

evidence, if believed, from which a rational trier of fact could have concluded that the elements
 8

of assault were proven beyond a reasonable doubt. The testimony at trial established that the

three men, including Mr. Coleman, all physically attacked and punched R.M.

{¶20} Mr. Coleman was also convicted of improperly handling firearms in a motor

vehicle under R.C. 2923.16(B), which states: “No person shall knowingly transport or have a

loaded firearm in a motor vehicle in such a manner that the firearm is accessible to the operator

or any passenger without leaving the vehicle.”

{¶21} Mr. Coleman argues that the State did not present sufficient evidence to

demonstrate that (1) he did not have a concealed handgun license or (2) that he “knowingly”

transported or possessed the firearm. He argues that the record is devoid of any evidence that he

touched the firearm.

{¶22} First, we find no merit in Mr. Coleman’s claim that the State failed to present

sufficient evidence that he did not have a concealed handgun license. The lack of a concealed

handgun license is not an essential element of the offense of improperly handling firearms in a

motor vehicle under R.C. 2923.16(B). While we are cognizant of the fact that R.C.

2923.16(F)(5) provides an exemption from being charged under R.C. 2923.16(B)-(C) for those

individuals who have a concealed handgun license and are not knowingly in specific areas such

as police stations, schools, or courthouses, it would have been incumbent upon Mr. Coleman, not

the State, to establish any such affirmative defense at the trial court level. See State v. Meyers,

11th Dist. Lake Nos. 2013-L-042 & 2013-L-043, 2014-Ohio-1357, ¶ 38-43 (holding that if the

exemption provisions of R.C. 2923.16(F)(5) apply, it is the defendant’s burden to establish that

he has a concealed handgun license, thereby rendering R.C. 2923.16(C) inapplicable to him).

{¶23} As to Mr. Coleman’s claim that the State did not present sufficient evidence that

he knowingly transported, possessed, or touched the firearm, we disagree. Although Mr.
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Coleman argues that there is no evidence that he physically touched the firearm, the State

presented evidence at trial to establish that he constructively possessed it. “Possess” or

“possession” means having control over an object, but may not be inferred solely from mere

access to the object through ownership or occupation of the premises upon which the object is

found. R.C. 2925.01(K). A person may knowingly possess an object through either actual or

constructive possession. State v. Hilton, 9th Dist. Summit No. 21624, 2004-Ohio-1418, ¶ 16.

“Constructive possession exists when an individual knowingly exercises dominion and control

over an object, even though that object may not be within his immediate physical possession.”

State v. Hankerson, 70 Ohio St.2d 87 (1982), syllabus. Thus, the crucial issue is not whether the

accused had actual physical contact with the object, but whether the accused was capable of

exercising dominion and control over it. State v. Delaney, 9th Dist. Summit No. 28663, 2018-

Ohio-727, ¶ 8. Dominion and control may be proved through circumstantial evidence. State v.

Rucker, 9th Dist. Summit No. 25081, 2010-Ohio-3005, ¶ 30. There are many types of evidence

or factors that on their own do not establish constructive possession, but when viewed together as

a whole can be used as circumstantial evidence to establish constructive possession. State v.

Owens, 9th Dist. Summit No. 23267, 2007-Ohio-49, ¶ 23. “For instance, ‘readily usable drugs

or other contraband in close proximity to a defendant may constitute sufficient and direct

circumstantial evidence to support a finding of constructive possession.’” Id., quoting State v.

Varner, 9th Dist. Summit No. 21056, 2003-Ohio-719, ¶ 19.

{¶24} At trial, Officer Sarah Wolfe testified that she responded to a dispatch call

regarding a suspicious vehicle. She observed a parked vehicle with three men inside at the

entrance to the parking lot of an apartment complex on Massillon Road. Terrance was in the

driver’s seat and Mr. Coleman was in the rear seat, sitting directly behind the driver. Officer
 10

Wolfe soon discovered that the front seat passenger (“Anthony”) had an active warrant for his

arrest. Around that time, Captain Brian Simcox, Officer Jacob Fangmann, and Officer Paul

Barns all arrived at the scene. Several of the officers testified that when Anthony was removed

from the vehicle he openly admitted that there was a gun under his seat.

{¶25} Captain Simcox testified that as the police prepared to remove the other two men

from the vehicle, Mr. Coleman was extremely nervous, physically shaking, chattering non-stop,

and “[a]bsolutely could not calm himself * * *.” He testified that Mr. Coleman was making

statements such as, “Can I go? I want to leave. Can I get out of the car? * * * Man, I just want

to go home.” He further testified that “[Mr. Coleman] told [him] multiple times that [he] needed

a search warrant to search that car.” When Mr. Coleman was informed that the car would not be

searched with people still in it, he told the captain, “Fine. Get me the f**k out of this car.”

Officer Barns testified that Mr. Coleman was “knocking around” and moving around a little bit.

The officer felt something was not right about Mr. Coleman, compared to how Terrance was

acting. Captain Simcox testified that once Mr. Coleman was removed from the car he said, “I

want to leave. Can I leave the scene? * * * May I leave? Am I free to go?”

{¶26} During the search of the vehicle, a loaded gun was located under the front

passenger seat where Anthony had been sitting. Captain Simcox then discovered a second

loaded gun inside the back pocket of the driver’s seat, located directly in front of where Mr.

Coleman had been sitting. Based on the gun’s position in the pocket, the captain testified that

the only way Anthony could have placed it there was if he held the weapon by the barrel and

placed it into the pocket while pointing the loaded gun at himself. Captain Simcox testified that,

based on his training and experience, that is not the way people handle weapons. He also

testified that it would have been impossible for Terrance to put the gun in there. Officer Barns
 11

testified that Terrance told the police during the search, “You ain’t going to find anything.”

Captain Simcox testified that Terrance was adamant when he said that the second gun did not

belong to him. Based on the lack of any noticeable furtive movements by anyone in the car, as

indicated by Officer Wolfe, and the proximity of the gun to Mr. Coleman, Captain Simcox

testified that “the only person that could have put it there was [Mr.] Coleman.”

{¶27} After reviewing the evidence presented in a light most favorable to the

prosecution, we conclude that the State satisfied its burden of production and presented sufficient

evidence, if believed, from which a rational trier of fact could have concluded beyond a

reasonable doubt that Mr. Coleman knowingly and constructively possessed the firearm. The

weapon was located in a pocket that was in close proximity and directly in front of Mr. Coleman,

and testimony at trial established that the other two individuals could not have placed the weapon

there and no furtive movements were observed. Anthony openly admitted to the one gun that

was his and Terrance denied ownership of the gun found near Mr. Coleman. Moreover, Mr.

Coleman’s demeanor and actions demonstrated that he was extremely nervous and agitated while

near the gun and repeatedly asked to get out of the car, leave the scene, and go home. He also

told the police that they needed a warrant to search the car.

{¶28} We conclude that Mr. Coleman’s sufficiency of the evidence arguments are

without merit. Accordingly, Mr. Coleman’s first assignment of error is overruled.

ASSIGNMENT OF ERROR TWO

THE TRIAL COURT’S JUDGMENT WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.

{¶29} In his second assignment of error, Mr. Coleman argues that his convictions are

against the manifest weight of the evidence. We disagree.

{¶30} This Court has stated:
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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, 33 Ohio App.3d 339, 340 (9th Dist.1986). “[W]hen reversing a conviction on the

basis that it was against the manifest weight of the evidence, an appellate court sits as a

‘thirteenth juror,’ and disagrees with the factfinder’s resolution of the conflicting testimony.”

State v. Tucker, 9th Dist. Medina No. 06CA0035-M, 2006-Ohio-6914, ¶ 5. This discretionary

power “should be exercised only in the exceptional case in which the evidence weighs heavily

against the conviction.” State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting State v.

Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). See also Otten at 340.

{¶31} Initially, we note that Mr. Coleman’s manifest weight arguments under this

assignment of error are interlaced with various sufficiency arguments claiming the State failed to

prove every element of every offense beyond a reasonable doubt and failed to present additional,

speculative evidence including videos, text messages, or recorded statements that could have

aided the trier of fact. However, “sufficiency and manifest weight are two separate, legally

distinct arguments.” State v. Vincente-Colon, 9th Dist. Lorain No. 09CA009705, 2010-Ohio-

6242, ¶ 20. “A weight challenge tests the persuasiveness of the evidence the State produced

while a sufficiency challenge tests the very production of that evidence.” State v. Hayes, 9th

Dist. Summit No. 26388, 2013-Ohio-2429, ¶ 9. “An argument that the State failed to prove one

of the elements of a crime is one sounding in sufficiency, not weight.” Id. As Mr. Coleman’s

stated assignment of error presents this Court with strictly a weight challenge, and because that is

the only standard of review that he sets forth under this assignment of error, we will limit our
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review to his manifest weight arguments alone. See State v. Lewis, 9th Dist. Summit No. 28064,

2017-Ohio-2747, ¶ 14.

{¶32} Mr. Coleman argues that R.M.’s testimony was inconsistent with, and largely

contradictory to, Sergeant Breznak’s testimony. Furthermore, because R.M. was a co-defendant

in this case, his testimony was self-serving and he “had ulterior motives to change his prior

statements to police to inconsistent statements at [Mr.] Coleman’s trial.” Mr. Coleman claims

that, on multiple occasions, R.M. lied while testifying at trial and while speaking to Sergeant

Breznak at the scene. He further claims that anyone could have placed the gun in the seat pocket

at any time prior to the moment police arrived, the gun was found within Anthony’s “lunge”

area, and bullets were found in the trunk indicating the gun belonged to Terrance.

{¶33} After a review of the evidence presented at trial, we cannot say that the trial

court’s verdicts were against the manifest weight of the evidence. The trial court was indeed

presented with various snippets of conflicting testimony at trial including whether the illicit deal

involved exchanging food stamps for money or heroin, whether Mr. Coleman physically

purchased the groceries or remained in the car with R.M. during the purchase, whether Mr.

Coleman was in the driver’s seat or the rear seat when he assaulted R.M., whether Mr. Coleman

and another one of the men looked alike, whether it was R.M. or the three other men that handed

Sergeant Breznak the food stamp card, and whether the men’s vehicle was green or white. But,

“‘the weight to be given the evidence and the credibility of the witnesses are primarily for the

trier of the facts.’” State v. Haydon, 9th Dist. Summit No. 27737, 2016-Ohio-4683, ¶ 28,

quoting State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus. In sifting

through conflicting evidence presented at trial, the trier of fact is free to believe or disbelieve

any, or all, of the testimony from each witness. See Haydon at ¶ 28. The trial court was best
 14

able to view the witnesses and observe their demeanor, gestures, and voice inflections, and use

those observations in weighing the credibility of the proffered testimony. See State v. Cook, 9th

Dist. Summit No. 21185, 2003-Ohio-727, ¶ 30.

{¶34} Here, the trial court clearly chose to believe R.M.’s testimony that Mr. Coleman

knowingly used the food stamp card and later physically assaulted R.M. The court also chose to

believe police officer testimony that neither Terrance nor Anthony could have placed the gun

where it was ultimately found, especially in light of the position in which it was found. The

discovery of extra ammunition in the trunk of the car and any speculation of actual ownership of

the gun does not undermine the trial court’s determination that Mr. Coleman constructively

possessed the gun that was located directly in front of him. After reviewing the evidence

presented in this case, we cannot conclude that the trial court, in resolving conflicts in the

evidence, clearly lost its way and created a manifest miscarriage of justice. See Otten at 340.

Mr. Coleman has also not demonstrated how this is an exceptional case where the evidence

presented weighs heavily in his favor and against conviction. See Thompkins at 387.

{¶35} Accordingly, Mr. Coleman’s second assignment of error is overruled.

III.

{¶36} Mr. Coleman’s first and second 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.
 15

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

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.

THOMAS A. TEODOSIO
FOR THE COURT

SCHAFER, P. J.
CALLAHAN, J.
CONCUR.

APPEARANCES:

KANI HARVEY HIGHTOWER, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney, for Appellee.