State v. Hoskins

[Cite as State v. Hoskins, 2019-Ohio-4842.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ADAMS COUNTY

STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 19CA1093
:
vs. :
: DECISION AND
BOBBI C. HOSKINS, : JUDGMENT ENTRY
:
Defendant-Appellant. :
_____________________________________________________________
APPEARANCES:

Bruce S. Wallace, Wallace Law Firm LLC, Mt. Orab, Ohio, for Appellant.

David Kelley, Adams County Prosecuting Attorney, and Michele L. Harris,
Assistant Prosecuting Attorney, West Union, Ohio, for Appellee.
_____________________________________________________________

Smith, P.J.

{¶1} This is an appeal from a conviction for domestic violence, a first-

degree misdemeanor in violation of R.C. 2919.25(A), which resulted after a trial to

the bench. On appeal, Appellant, Bobbi Hoskins, contends 1) that the trial court

erred by allowing her neighbor, Kylie Walters, to testify as to what the victim,

Freddie Hoskins, had said to her under the excited-utterance exception to the

hearsay rule; and 2) that her conviction for domestic violence under R.C.

2919.25(A) was against the manifest weight of the evidence and was not supported

by sufficient evidence. Because we conclude the victim’s statement was
Adams App. No. 19CA1093 2

admissible as an excited utterance through the testimony of Kylie Walters, we

cannot conclude the trial court abused its discretion in admitting the statement into

evidence. Thus, we find no merit to Appellant’s first assignment of error and it is

overruled. Further, in light of our determination that Appellant’s conviction was

supported by sufficient evidence and was not against the manifest weight of the

evidence, we find no merit to her second assignment and it is also overruled.

Accordingly, having found no merit to the assignments of error raised by

Appellant, the judgment of the trial court is affirmed.

FACTS

{¶2} Appellant, Bobbi Hoskins, was charged of one count of domestic

violence on October 29, 2018. The complaint stemmed from an incident that

occurred on October 27, 2018, between her and her husband, Freddie Hoskins, the

victim herein, while at their home. The record indicates the pair got into a verbal

altercation which escalated to a physical altercation and ended with the victim

leaving the residence and walking to a neighbor’s house. The neighbor, Kylie

Walters, called dispatch and law enforcement responded to the scene shortly

thereafter. After interviewing both Appellant and her husband at the scene,

Appellant was arrested and charged with domestic violence.

{¶3} Appellant was appointed counsel and the matter proceeded to a bench

trial on January 14, 2019. The State presented three witnesses that included
Adams App. No. 19CA1093 3

Freddie Hoskins (the victim), Kylie Walters (the neighbor), and Deputy Newland

(the deputy who responded to the call). The victim essentially refused to cooperate

with the State at trial by first claiming he did not believe he was required to testify

against his wife and then by answering that he either did not know or did not recall

to most of the questions posed by the State. However, Kylie Walters testified that

the victim knocked on her door on the night of the incident and that he appeared to

be in distress, seemed “kind of upset,” and was bleeding. She testified that when

she asked him what had happened, he stated that he had gotten into a small

argument with his “other half” and had gotten hit. The victim’s statement was

admitted into evidence as an excited utterance over the objection of Appellant.

{¶4} Deputy Newland also testified at trial and the video from the bodycam

he was wearing when he responded to the scene was played for the trial court and

admitted into evidence. Deputy Newland testified, consistent with the contents of

the video, that Appellant stated he and his wife had been in a verbal argument and

that she pushed him and he fell over a table, sustaining an injury to his nose.

Photographs of the victim’s face depicting the injury to his nose were admitted into

evidence without objection.

{¶5} The video also contained footage of Appellant and the statements she

made to law enforcement that night. In the video, Appellant admitted to law

enforcement that she did push the victim, causing him to fall over a table, but that
Adams App. No. 19CA1093 4

she pushed him only after he pushed her and twisted her finger. Appellant also

stated in the video that the victim always made fun of her and that he had been

drinking on the night in question. Appellant explained that the verbal argument

started in the basement and then continued upstairs and into the kitchen. After the

victim pushed her and hurt her finger by twisting it, Appellant pushed him and he

fell over a table in the living room. Appellant denied hitting the victim with

anything thereafter and instead said he must have hurt his nose when he fell.

Appellant testified on her own behalf at trial and her testimony was consistent with

the statements she gave to law enforcement on the night of the incident, as shown

on the video.

{¶6} After considering the evidence, the trial court found Appellant guilty of

one count of domestic violence, as charged in the complaint, and sentenced her to

180 days in jail, with 177 days suspended and credit for three days served.

Appellant was also placed on community control for a period of one year and was

ordered to complete sixteen hours of community service. It is from the trial court’s

judgment entry, dated March 18, 2019, that Appellant now brings her timely

appeal setting forth two assignments of error for our review.

ASSIGNMENTS OF ERROR

I. “THE TRIAL COURT ERRED BY ALLOWING KYLIE
WALTERS TO TESTIFY AS TO WHAT FREDDIE HOSKINS
HAD SAID TO HER UNDER THE EXCITED UTTERANCE
EXCEPTION TO THE HEARSAY RULE.”
Adams App. No. 19CA1093 5

II. “A CONVICTION OF DOMESTIC VIOLENCE UNDER
OHIO REVISED CODE SECTION 2919.25(A) WAS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE
AND INSUFFICIENT TO SUPPORT A CONVICTION.”

ASSIGNMENT OF ERROR I

(¶7} In her first assignment of error, Appellant contends the trial court erred

by allowing her neighbor, Kylie Walters, to testify as to what the victim, Freddie

Hoskins, said to her based upon the excited-utterance exception to the rule

prohibiting the admission of hearsay. Appellant argues that based upon the

evidence, the victim did not appear to show nervous excitement stemming from a

startling occurrence, as required under the four-part test used in determining the

admissibility of statements as excited utterances. The State responds by arguing

that the trial court made a reasonable determination and did not abuse its discretion

in allowing the victim’s statement to be admitted into evidence as an excited

utterance. We begin our analysis with a review of the proper standard to be

applied when considering whether a trial court erred in admitting this evidence.

{¶8} In general, “ ‘[t]he admission or exclusion of relevant evidence rests

within the sound discretion of the trial court.’ ” State v. Dean, 146 Ohio St.3d 106,

2015-Ohio-4347, 54 N.E.3d 80, ¶ 87, quoting State v. Sage, 31 Ohio St.3d 173,

510 N.E.2d 343 (1987), paragraph two of the syllabus. “Thus, absent an abuse of

discretion, an appellate court will not disturb a trial court's ruling regarding the
Adams App. No. 19CA1093 6

admissibility of evidence.” State v. Leasure, 2015-Ohio-5327, 43 N.E.3d 477, ¶ 32

(4th Dist.). “ ‘A trial court abuses its discretion when it makes a decision that is

unreasonable, unconscionable, or arbitrary.’ ” State v. Keenan, 143 Ohio St.3d

397, 2015-Ohio-2484, 38 N.E.3d 870, ¶ 7, quoting State v. Darmond, 135 Ohio

St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34. Although an abuse of discretion

standard of review is deferential and does not permit an appellate court to simply

substitute its judgment for that of the trial court, an abuse of discretion includes a

situation in which a trial court did not engage in a “sound reasoning process.”

Darmond at ¶ 34.

{¶9} “ ‘Hearsay’ is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” Evid.R. 801(C). “Hearsay is not admissible except as otherwise

provided by the Constitution of the United States, by the Constitution of the State

of Ohio, by statute enacted by the General Assembly not in conflict with a rule of

the Supreme Court of Ohio, by these rules, or by other rules prescribed by the

Supreme Court of Ohio.” Evid.R. 802. The pertinent exception here is Evid.R.

803(2), the excited-utterance exception, which provides that “[a] statement relating

to a startling event or condition made while the declarant was under the stress of

excitement caused by the event or condition” is not excluded by the hearsay rule.
Adams App. No. 19CA1093 7

{¶10} In Ohio, courts apply a four-part test to determine the admissibility of

statements as an excited utterance, as follows:

“(a) that there was some occurrence startling enough to produce a

nervous excitement in the declarant, which was sufficient to still his

reflective faculties and thereby make his statements and declarations

the unreflective and sincere expression of his actual impressions and

beliefs, and thus render his statement of declaration spontaneous and

unreflective,

(b) that the statement or declaration, even if not strictly

contemporaneous with its exciting cause, was made before there had

been time for such nervous excitement to lose a domination over his

reflective faculties so that such domination continued to remain

sufficient to make his statements and declarations the unreflective and

sincere expression of his actual impressions and beliefs,

(c) that the statement or declaration related to such startling

occurrence or the circumstances of such starling occurrence, and

(d) that the declarant had an opportunity to observe personally the

matters asserted in his statement or declaration.”

(Emphasis sic.) State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, 984 N.E.2d

948, ¶ 166, quoting Potter v. Baker, 162 Ohio St. 488, 124 N.E.2d 140 (1955),
Adams App. No. 19CA1093 8

paragraph two of the syllabus, followed and approved by State v. Taylor, 66 Ohio

St.3d 295, 612 N.E.2d 316 (1993), fn. 2. The rationale of the rule is that

circumstances surrounding the excited statement prevent the declarant from using

reflective processes to fabricate a statement.

As explained in State v. Jones, supra:

“There is no per se amount of time after which a statement can no

longer be considered to be an excited utterance. The central

requirements are that the statement must be made while the declarant

is still under the stress of the event and the statement may not be a

result of reflective thought.

Therefore the passage of time between the statement and the event is

relevant but not dispositive of the question. ‘[E]ach case must be

decided on its own circumstances, since it is patently futile to attempt

to formulate an inelastic rule delimiting the time limits within which

an oral utterance must be made in order that it be termed a

spontaneous exclamation.’ ” (Emphasis sic.) State v. Jones, supra, at

168, quoting State v. Taylor, supra, 303, quoting State v. Duncan, 53 Ohio

St.2d 215, 219-220, 373 N.E.2d 1234 (1978).

{¶11} Appellant primarily contends that element (b) of the four-part test was

not met here. Appellant argues that because the victim had to cross the street and
Adams App. No. 19CA1093 9

walk down one house, on foot, “likely enough time had lapsed by the time he

arrived at Kylie Walters [sic] home to lose any remaining nervous excitement from

the argument.” However, based upon the following, we reject Appellant’s

argument.

{¶12} The record presently before us indicates the victim walked to his

neighbor’s house, knocked on the door and asked Kylie Walters if her father (who

was a deputy) was home. Walters informed the victim her father was not home,

but Walters, who was a trained dispatcher, began to ask the victim some questions.

The trial transcript includes the following testimony by Walters:

Q: So, um, how to [sic] Mr. Hoskins appear to you?

A: Um, he came, they live across the road and then down one house.

So, he came up, he had a small cut to his forehead. He seemed in

distress.

Q: Alright. Did he appear, um excited or upset?

A: Yeah, he was kind of upset about it.

Q: Alright. Was he bleeding?

A: Yes.

Q: Alright. And, um, he asked you to speak with your dad, but your

dad wasn’t at home?

A: No, he was on duty.
Adams App. No. 19CA1093 10

Q: Alright. So, uh, did he say why [sic] he needed?

A: No, he didn’t, but I further question [sic], you know, why are you

showing up at my house and what’s going. [sic]

Q: Alright. And what’d he say?

A: Um, he said that him.

Attorney Drinnon: Objection.

Court: Overruled. This may be hearsay but it’s an excited utterance.

So, go ahead and tell me what he said.

Thereafter the direct examination of the witness Kylie Walters by

Assistant Prosecuting Attorney Michele Harris continued.

A: Um, he just came to my house. I can’t remember word for word,

but pretty much asking for my father. And he just said that him and

his other half got into a small argument and that he was hit.

Q: Did he indicate what he was hit with?

A: Um, no. I did ask questions like I normally would with my job.

You know, if there’s any weapons in the house[?] What did you get

hit with? Was it an item or a fist? I was unsure and he wasn’t sure

either.

Q: Okay. Alright, so at that point you’ve [sic] placed a, basically a

dispatch call via the admin line?
Adams App. No. 19CA1093 11

A: Yeah.

{¶13} Thus, Walters testimony indicated that the victim appeared to be

distressed, was “kind of upset,” was bleeding, and stated he had gotten into an

argument with his “other half” and had gotten hit. Although there is no evidence

in the record regarding the time of the argument compared to the time the victim

made the statements at issue, it appears the victim left his home and immediately

walked to Walters’ home, which was across the street and down one house.

Further, a review of the officer’s bodycam video reveals that the houses on the

street are situated relatively close together. Thus, there is simply no indication of

any significant lapse of time between the two events. Based upon these facts, we

believe the trial court could reasonably infer that a brief period of time elapsed

between the victim’s argument with Appellant and when he arrived at the Walter’s

residence. See State v. Phillips, 4th Dist. Scioto No. 18CA3832, 2018-Ohio-5432,

¶ 50. As such, we conclude that all four elements of the four-part test have been

met here, including the timing requirement contained in element (b).

{¶14} Appellant further contends that because Walters’ testimony indicated

the victim “only seemed ‘kind of’ upset,” and had only one small cut to his

forehead, that the victim did “not appear to be someone who showed a nervous

excitement stemming from a startling occurrence as required by the well-

recognized four-part test.” However, contrary to Appellant’s argument, Walters
Adams App. No. 19CA1093 12

testified that the victim “seemed in distress” and was still bleeding when he made

the statement at issue. Although not mentioned by the parties, Walters solicited the

victim’s statement after questioning him. The Supreme Court of Ohio has held

that:

“The admission of a declaration as an excited utterance is not

precluded by questioning which: (1) is neither coercive nor leading,

(2) facilitates the declarant's expression of what is already the natural

focus of the declarant's thoughts, and (3) does not destroy the

domination of the nervous excitement over the declarant's reflective

faculties.” State v. Felts, 2016-Ohio-2755, 52 N.E.3d 1223, ¶ 59,

quoting State v. Wallace, 37 Ohio St.3d 87, 524 N.E.2d 466 (1988),

paragraph two of the syllabus (involving the questioning of a child by

her mother); State v. Jones, supra, at ¶ 170.

Thus, the fact that the victim made the statement at issue in response to

being asked a question does not preclude its admission into evidence as an

excited utterance.

{¶15} Additionally, as we explained in Felts, “[o]ther relevant factors

generally indicating whether the declarant was in a sufficient state of excitement or

stress when making the statement include outward indicia of emotional state, like

tone of voice, accompanying actions, and general demeanor. Felts at ¶ 57; citing
Adams App. No. 19CA1093 13

State v. F.R., 2015-Ohio-1914, 34 N.E.3d 498, ¶ 28, (10th Dist.). Walters’

testimony described the victim’s emotional state as distressed and “kind of upset”

and indicated that the victim was bleeding at the time. Thus, contrary to

Appellant’s argument, Walters’ testimony suggested the victim was still in a state

of nervous excitement at the time he made the statement, and thus his statement

was spontaneous and unreflective, as contemplated under the four-part test set

forth above. As such, we also reject this portion of Appellant’s argument.

{¶16} In light of the foregoing, we cannot conclude the trial court abused its

discretion in ruling that the victim’s statement to Kylie Walters was admissible

pursuant to the excited utterance exception to the general rule prohibiting the

admission of hearsay. Accordingly, we find no merit to Appellant’s first

assignment of error and it is overruled.

ASSIGNMENT OF ERROR II

{¶17} In her second assignment of error, Appellant contends that her

conviction for domestic violence in violation of R.C. 2919.25(A) was against the

manifest weight of the evidence and was not supported by sufficient evidence.

More specifically, Appellant seems to limit her argument to the question of

whether the evidence presented was sufficient to establish that she caused physical

harm to the victim. The State responds by arguing that each of the State’s

witnesses testified that the victim had a visible injury to his face and photographs
Adams App. No. 19CA1093 14

that were admitted into evidence without objection depicted the injury as well.

Furthermore, statements made by the victim to law enforcement indicated

Appellant pushed the victim, causing him to fall over a table, and resulting in the

injury. Thus, the State argues that all of the essential elements of the crime of

domestic violence were proven beyond a reasonable doubt and that Appellant’s

conviction was not against the manifest weight of the evidence.

{¶18} “When an appellate court concludes that the weight of the evidence

supports a defendant's conviction, this conclusion necessarily includes a finding

that sufficient evidence supports the conviction.” State v. Puckett, 191 Ohio

App.3d 747, 2010–Ohio–6597, 947 N.E.2d 730, ¶ 34, citing State v. Pollitt, 4th

Dist. Scioto No. 08CA3263, 2010–Ohio–2556, ¶ 15. “ ‘ “Thus, a determination

that [a] conviction is supported by the weight of the evidence will also be

dispositive of the issue of sufficiency.” ’ ” Puckett at ¶ 34, quoting State v.

Lombardi, 9th Dist. Summit No. 22435, 2005–Ohio–4942, ¶ 9, in turn quoting

State v. Roberts, 9th Dist. Lorain No. 96CA006462, 1997 WL 600669 (Sept. 17,

1997). Therefore, we first consider whether Appellant's conviction was against the

manifest weight of the evidence.

{¶19} “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
Adams App. No. 19CA1093 15

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.” State v. Brown, 4th Dist. Athens No. 09CA3, 2009–Ohio–

5390, ¶ 24, citing State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541. A

reviewing court “may not reverse a conviction when there is substantial evidence

upon which the trial court could reasonably conclude that all elements of the

offense have been proven beyond a reasonable doubt.” State v. Johnson, 58 Ohio

St.3d 40, 42, 567 N.E.2d 266 (1991), citing State v. Eskridge, 38 Ohio St.3d 56,

526 N.E.2d 304, paragraph two of the syllabus (1988).

{¶20} Even in acting as a thirteenth juror we must still remember that the

weight to be given evidence and the credibility to be afforded testimony are issues

to be determined by the trier of fact. State v. Frazier, 73 Ohio St.3d 323, 339, 652

N.E.2d 1000, citing State v. Grant, 67 Ohio St.3d 465, 477, 620 N.E.2d 50. The

fact finder “is best able to view the witnesses and observe their demeanor, gestures,

and voice inflections, and use these observations in weighing the credibility of the

proffered testimony.” Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461

N.E.2d 1273 (1984) (per curiam). Thus, we will only interfere if the fact finder

clearly lost its way and created a manifest miscarriage of justice. Moreover, “[t]o

reverse a judgment of a trial court on the weight of the evidence, when the

judgment results from a trial by jury, a unanimous concurrence of all three judges
Adams App. No. 19CA1093 16

on the court of appeals panel reviewing the case is required.” Thompkins at

paragraph four of the syllabus, construing and applying Section 3(B)(3), Article IV

of the Ohio Constitution.

{¶21} Appellant was convicted of one count of domestic violence, a first-

degree misdemeanor in violation of R.C. 2919.25(A), which provides that “[n]o

person shall knowingly cause or attempt to cause physical harm to a family or

household member.” “[A] person acts knowingly, when regardless of his purpose,

he is aware that his conduct will probably cause a certain result or will probably be

of a certain nature. A person has knowledge of circumstances when he is aware

that such circumstances probably exist.” R.C. 2901.22(B).

{¶22} In support of her argument that the evidence introduced at trial failed

to sufficiently prove that she caused physical harm to the victim, Appellant points

to the victim’s trial testimony which was inconsistent on the issue of how he

sustained a bloody nose on the date in question. For instance, the victim testified

that he didn’t recall how his nose was injured, that he didn’t recall falling over a

table, and that he could have injured his nose when he was in the basement

wrestling with his son. Appellant argues that the victim’s trial testimony coupled

with the fact he had consumed alcohol on the night of the incident rendered him a

less than credible witness. Appellant also points to the fact that there is no
Adams App. No. 19CA1093 17

evidence in the record indicating the victim sought medical treatment for his

alleged injury.

{¶23} However, although it was clear the victim did not want to testify

against Appellant at trial and that his trial testimony failed to indicate Appellant

had caused him any physical injury, the bodycam video admitted into evidence and

played for the court demonstrated otherwise. A review of the video footage taken

on the night of the incident reveals that the victim informed law enforcement that

Appellant pushed him, causing him to fall over a table, and then hit him with

something, possibly a remote control, injuring his nose. Further, the victim’s

neighbor testified regarding her encounter with the victim on the night of the

incident. She testified that the victim came to her door and appeared distressed,

seemed kind of upset and was bleeding. When she asked him what had happened,

he stated he had gotten into a small argument with his “other half” and had been

hit. As discussed at length above, this statement was admissible at trial as an

excited utterance. Additionally, photographs of the victim’s face were admitted at

trial and depict what appears to be dried blood or scratches on the victim’s nose.

{¶24} Thus, after examining the record, we find the State presented

substantial evidence upon which the trier of fact reasonably could conclude beyond

a reasonable doubt that all of the essential elements of the crime in which

Appellant was convicted had been established. Based upon the testimony set forth
Adams App. No. 19CA1093 18

above and admitted at trial, as well as the photographic evidence of physical

injuries, the trial court reasonably concluded that Appellant knowingly caused

physical harm to another, the victim herein, Appellant’s husband.

{¶25} Further, in light of the above evidence, we cannot find the trier of fact

somehow lost its way or that evidence weighed heavily against Appellant's

conviction. Although Appellant denied hitting the victim with anything, she

admitted that she pushed the victim down, causing him to fall over a table. The

photographic evidence demonstrates the victim’s nose had been injured and

bleeding on the night of the incident. The video statement provided by the victim

that night, as well as the victim’s statement admitted through the testimony of

Kylie Walters, indicated the victim had been injured and that Appellant inflicted

the injury. The trial court obviously found that version of events to be credible. It

was within the province of the trial court, as the finder of fact, to reject the victim’s

trial testimony and instead accept the victim’s version of events as stated on the

bodycam video as the more credible version of events, especially considering that

version of events was consistent with the testimony of the neighbor, Kylie Walters.

{¶26} As set forth above, the trial court was in the best position to view

Appellant and the victim at trial, observe their demeanor, gestures, and voice

inflections, and to weigh their respective credibility. Thus, despite the victim’s

refusal to cooperate at trial, other competent, credible evidence admitted at trial
Adams App. No. 19CA1093 19

demonstrated that Appellant inflicted the injury to the victim’s nose. Additionally,

we reject Appellant’s suggestion that because the victim did not seek medical

treatment for his injury that there was insufficient evidence of actual injury.

Appellant has cited no authority for the proposition that an injury cannot constitute

physical harm for purposes of domestic violence in the absence of evidence

indicating medical treatment was sought.

{¶27} Accordingly, we find that Appellant's conviction was not against the

manifest weight of the evidence. Thus, we necessarily also conclude that sufficient

evidence supports her conviction. We therefore overrule Appellant's second

assignment of error. Having found no merit in either of the assignments of error

raised by Appellant, the judgment of the trial court is affirmed.

JUDGMENT AFFIRMED
Adams App. No. 19CA1093 20

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to
Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Adams County Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON
BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR
THIS COURT, it is temporarily continued for a period not to exceed sixty days
upon the bail previously posted. The purpose of a continued stay is to allow
Appellant to file with the Supreme Court of Ohio an application for a stay during
the pendency of proceedings in that court. If a stay is continued by this entry, it
will terminate at the earlier of the expiration of the sixty day period, or the failure
of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the
forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses
the appeal prior to expiration of sixty days, the stay will terminate as of the date of
such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
McFarland, J. & Hess, J.: Concur in Judgment and Opinion.
For the Court,
BY: ______________________
Jason P. Smith
Presiding Judge

NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.