State v. Rivers

[Cite as State v. Rivers, 2020-Ohio-3492.]

IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY

State of Ohio Court of Appeals No. L-19-1040

Appellee Trial Court No. CR0201801882

v.

Lonzo Rivers DECISION AND JUDGMENT

Appellant Decided: June 26, 2020

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and
Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

Thomas P. Kurt, for appellant.

*****

ZMUDA, P.J.
I. Introduction

{¶ 1} Appellant, Lonzo Rivers, appeals the judgment of the Lucas County Court of

Common Pleas, sentencing him to an indefinite prison term of 18 years to life after a jury

found him guilty of one count of murder with an attendant firearm specification.
 A. Facts and Procedural Background

{¶ 2} On May 14, 2018, appellant, along with several codefendants (Brandon

Stein, Daniel Matney, and Mark Diebert), was indicted on one count of aggravated

murder in violation of R.C. 2903.01(B) and (F), an unclassified felony, one count of

murder in violation of R.C. 2903.02(B) and 2929.02, an unclassified felony, one count of

aggravated robbery in violation of R.C. 2911.01(A)(1) and (C), a felony of the first

degree, and one count of kidnapping in violation of R.C. 2905.01(B)(2) and (C), a felony

of the first degree. Firearm specifications were also attached to each of the foregoing

counts. These charges stemmed from a fatal shooting that took place on November 20,

2017, at a Stop & Go gas station located at the corner of South and Spencer streets in

South Toledo.

{¶ 3} Appellant entered a plea of not guilty to the aforementioned charges, and

discovery commenced. Upon completion of discovery, on February 4, 2019, the matter

proceeded to a five-day jury trial. Despite the state’s indictment charging Stein, Matney,

and Diebert, appellant was tried alone.

{¶ 4} At trial, the state called six witnesses. For its first witness, the state called

Toledo Police officer Mark Johnson. Johnson works within the video unit of the Toledo

Police Department, where he recovers and preserves surveillance video from crime

scenes. Relevant to this matter, Johnson recovered a video from the Stop & Go gas

station’s surveillance system, which depicts the shooting. After its authentication, the

surveillance video was admitted into evidence and published to the jury.

2.
 {¶ 5} The video shows a man, later identified as appellant, placing an envelope

underneath a 55-gallon trash receptacle. Thereafter, the victim in this case, Dakoda

Rogers, approached the trash receptacle in his vehicle. At that point, Stein, Matney, and

Diebert, each in separate vehicles, drove up to Rogers and boxed him in with their

vehicles. Appellant then walked up to Rogers, who remained in his vehicle, and

confronted him. During the confrontation, appellant fired two shots into Rogers’ vehicle

at close range. Rogers attempted to drive away, but crashed his vehicle as he attempted

to do so, later succumbing to his gunshot injuries.

{¶ 6} As its second witness, the state called Toledo Police patrolman Anthony

Waldon. On the date of the shooting, Waldon received a call from dispatch reporting

shots fired at the location of the Stop & Go gas station. Waldon and his partner,

Benjamin Woody, responded to the scene, where they observed a vehicle that had

crashed nearby. Waldon and Woody approached the vehicle and noticed that Rogers was

non-responsive and was presenting with shallow breathing. Waldon proceeded to shatter

the driver’s side window in order to access the passenger compartment so that the officers

could extract Rogers from the vehicle. After extracting Rogers, Waldon turned him over

to the Toledo Fire Department personnel that were on the scene, and began to discuss the

shooting with nearby witnesses.

{¶ 7} For its third witness, the state called Toledo Police detective Richard Fisher.

After arriving at the scene of the shooting, Fisher was dispatched to the University of

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Toledo Medical Center. Fisher was present at the hospital when Rogers was pronounced

dead, and he testified that he was also present when Rogers’ family identified Rogers.

{¶ 8} Next, the state called Toledo Police officer Jeff Jackson as its fourth witness.

As an officer in the scientific investigations unit, Jackson responds to, and collects

evidence from, crime scenes. Jackson responded to the scene of the shooting in this case,

where he gathered evidence including two shell casings, a bank envelope with

“magazine-type paper” inside, and photographs of the area. The photographs were

admitted into evidence, authenticated by Jackson, and published to the jury. Later in his

testimony, Jackson indicated that he attended the autopsy that was performed on Rogers.

During the autopsy, the coroner’s office recovered two bullets, which were subsequently

taken into evidence and introduced at trial.

{¶ 9} As its fifth witness, the state called Kelsey Rogers. Kelsey is Rogers’ older

sister. Kelsey testified as to an “on-and-off relationship” that existed between Rogers and

another young man, D.N. Prior to the shooting, Rogers asked Kelsey if he could borrow

her phone. Kelsey agreed, and Rogers left Kelsey’s house at 1:30 p.m. on the afternoon

of the shooting. Kelsey’s phone was later recovered by police from the scene of the

shooting.

{¶ 10} Finally, for its sixth witness, the state called Toledo Police homicide

detective Jeffery Clark. On November 20, 2017, Clark was dispatched to the scene of the

shooting after receiving a report of a possible homicide. After arriving at the scene,

Clark began to interview witnesses and collect evidence. Subsequently, Clark reviewed

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the surveillance video that was recovered from the Stop & Go gas station, which allowed

him to ascertain the details of the shooting and identify the vehicles that were driven by

Stein, Matney, and Diebert.

{¶ 11} Clark also conducted a search of Kelsey’s phone and found text messages

to and from appellant’s phone contained therein. The messages revealed an extortion

scheme orchestrated by Rogers, who demanded that appellant pay him a sum of money in

exchange for a DVD that allegedly contained a sexually explicit video involving

appellant.1 In these messages, appellant informed Rogers that they would meet at the

Stop & Go gas station, and Rogers instructed appellant to place a money envelope

underneath a “blue garbage can.” Rogers stated that he would then retrieve the money

envelope and place the DVD in its place.

{¶ 12} After Clark testified as to his findings regarding the shooting, the state

began questioning him about his investigation into appellant’s prior communications with

the Toledo Police Department. According to Clark, appellant filed a report with police at

the Safety Building in downtown Toledo regarding Rogers’ extortion attempt four hours

prior to the shooting. Immediately thereafter, appellant drove to the Scott Park police

station to file another report.

{¶ 13} Clark investigated appellant’s claim that he had verbally reported the

extortion plot to Toledo Police officers two days prior to the shooting. Appellant claimed

1
Clark recovered a DVD from Rogers’ vehicle, but the disc did not contain any sexually
explicit material.

5.
that he spoke with these officers at a Speedway gas station on the corner of Arlington and

North Detroit in Toledo. Consequently, Clark was able to identify the officers that would

have been on duty in that area at the time of appellant’s reported conversation. Clark

discussed the matter with the identified officers, none of which were able to recall

speaking with appellant about the extortion plot. However, Clark was able to verify that

appellant placed an eight minute phone call to the Toledo Police non-emergency line on

November 17, 2017, three days prior to shooting.

{¶ 14} Toward the end of Clark’s testimony, appellant called Stein, Matney, and

Diebert out of order. Each of these witnesses asserted their Fifth Amendment right and

elected not to testify. Thereafter, the state recalled Clark for brief follow-up questioning.

{¶ 15} At the conclusion of Clark’s testimony, the state rested. Appellant moved

for an acquittal under Crim.R. 29, which was denied by the trial court. Thereafter,

appellant elected to take the stand.

{¶ 16} For his part, appellant testified that he began receiving text messages from

an unknown number approximately one week before the shooting occurred. According

to appellant, the text messages included an image of the lower half of what appeared to

be a man’s body. Appellant informed the sender that he or she had the wrong number,

but the sender insisted that the number was correct, and accused appellant of “mess[ing]

around with their baby daddy.” The sender also indicated that appellant’s sexual activity

was secretly recorded.

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 {¶ 17} Eventually, the sender began to demand payment from appellant. In

response, appellant called the non-emergency number to the Toledo Police Department

on Friday, November 17, 2017, to report the extortion plot. Appellant spoke to detective

Roque Brown, who asked him a series of questions about whether or not there was a

sexually-explicit video of appellant. Appellant indicated that there was no such video,

and the conversation ended with Brown telling appellant to disregard the messages.

{¶ 18} Appellant testified that the text messages continued following his

discussion with Brown. The topic of payment was prominent in the messages, with the

sender demanding $5,000 in exchange for the video and threatening to release the video

on Facebook if the payment was not made. Appellant informed the sender that he had

$800, and later agreed to meet the sender at 3176 Douglas Road in Toledo, in order to

make the $800 payment in exchange for the video. Appellant traveled to that address,

placed the money in the mailbox, and then parked at a nearby pharmacy where he could

observe the mailbox in order to ascertain the identity of the sender of the text messages.

{¶ 19} Eventually, appellant observed the driver of a sedan pull up to the mailbox

and retrieve the money. Appellant followed the sedan for a short time, but mechanical

issues with his vehicle prevented him from continuing. Appellant returned to the mailbox

to retrieve the video, only to find the mailbox empty.

{¶ 20} The following day, Saturday, November 18, 2017, appellant received a

message from the sender demanding an additional payment of $1,300. Appellant

indicated his agreement to pay the additional amount, but testified at trial that he never

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intended to actually make the payment. Appellant was once again instructed to place the

money into the mailbox at 3176 Douglas Road. He traveled to the address and parked at

a church located across the street from the mailbox.

{¶ 21} After observing the mailbox for about 45 minutes, appellant decided to

leave. As appellant was exiting the church, he observed another vehicle pass by in the

direction of another parking lot exit. Appellant noticed that it was the same sedan he had

previously observed, and he gave chase. During the ensuing chase, appellant noted the

license plate number associated with the sedan, recording it in his mobile phone.

Appellant called 911 and reported the situation, but was told by the dispatcher to cease

the chase. Appellant complied with the instruction, and the chase ended.

{¶ 22} Thereafter, the text messages continued, with the sender informing

appellant that the sender would “put some people on” appellant. Appellant testified at

trial that he considered this to be a threatening statement.

{¶ 23} Appellant returned to 3176 Douglas Road and knocked on the door. After

receiving no response, appellant removed some mail from the mailbox in order to

ascertain the identity of the person living at that address. Appellant then decided to drive

home.

{¶ 24} As he was arriving home, appellant saw a Toledo Police cruiser parked at a

nearby Speedway gas station. Appellant approached the cruiser and explained the

extortion plot to the police officer. Appellant provided the officer with the 3176 Douglas

Road address, the name contained on the mail he retrieved from that address, the sender’s

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phone number, and the license plate of the sedan that he had recorded in his mobile

phone. The officer performed a check of the information, but no identifying information

was recovered. Thereafter, the police officer suggested that appellant file a report at the

Toledo Safety Building.

{¶ 25} On Sunday, November 19, 2017, appellant received further messages from

sender, demanding payment and threatening publication of the video on Facebook.

Appellant agreed to make payment, and a meeting was scheduled for the following day.

{¶ 26} On the morning of the scheduled meeting, appellant filed a report detailing

the extortion plot at the Toledo Safety Building. While there, appellant requested to

speak with a detective, but was informed that he would not be permitted to do so at that

time. Frustrated, appellant left the Toledo Safety Building and traveled to the Scott Park

office of the Toledo Police department to speak with someone about the extortion plot.

Appellant was provided with a number of a Toledo police officer whom he was instructed

to call. After leaving a voice mail at that number, appellant received a call back and was

informed by the officer that he would be unable to help appellant.

{¶ 27} Appellant eventually made his way to Diebert’s home, where he discussed

the extortion plot with Diebert and Stein. Matney was also present during the discussion.

{¶ 28} While at Diebert’s home, sender contacted appellant to set up a meeting

place at which the money and video could be exchanged. Appellant selected the nearby

Stop & Go gas station as a meeting place. Sender agreed to meet appellant at the gas

station, and directed appellant to place the money under a garbage can located on the

9.
premises, go into the service station, and then wait for the sender to exit to return to the

garbage can, where he could retrieve the video.

{¶ 29} Appellant, armed with a loaded handgun and assisted by Diebert, Stein, and

Matney, traveled to the Stop & Go gas station. Thereafter, appellant placed a money

envelope under the garbage can, and began to walk into the service station. According to

appellant, he heard someone shout his name, turned around, and saw the sedan driven by

Rogers. Appellant approached the sedan to confront Rogers. While doing so, appellant

allegedly perceived Rogers making a move toward the floorboard of his vehicle, which

was interpreted by appellant as Rogers reaching for a firearm. In response, appellant

drew his handgun and fired two shots into the passenger compartment of Rogers’ vehicle,

ultimately resulting in Rogers’ death.

{¶ 30} During his testimony, appellant asserted that he had not discussed a plan to

trap Rogers with Diebert, Stein, and Matney prior to the shooting. Rather, appellant

claimed that he enlisted the assistance of Diebert, Stein, and Matney because he was

fearful of what he might encounter at the Stop & Go gas station. Appellant

acknowledged that he was the shooter depicted in the surveillance video, but insisted that

he fired his handgun in self-defense, fearing that Rogers was reaching for a firearm prior

to shooting.2

2
No firearm was recovered from Rogers’ vehicle.

10.
 {¶ 31} Following appellant’s testimony, defense counsel rested. The parties then

provided their closing statements, and the jury was instructed. After deliberating, the jury

found appellant guilty of one count of murder with an attendant firearm specification, but

not guilty of the remaining counts contained in the indictment. After receiving the jury’s

verdict, the trial court continued the matter for sentencing.

{¶ 32} At sentencing, the trial court ordered appellant to serve an indefinite prison

sentence of 15 years to life for murder, plus another mandatory prison sentence of three

years for the attendant firearm specification, for a total prison sentence of 18 years to life.

Thereafter, appellant filed his timely notice of appeal.

B. Assignments of Error

{¶ 33} On appeal, appellant assigns the following errors for our review:

I. The judgment of the trial court is against the manifest weight of

the evidence, in that the evidence clearly established that appellant Lonzo

Rivers acted in self-defense.

II. The trial court erred in trying the case of appellant Lonzo Rivers

alone and without his co-defendants, where neither the defendant nor the

State of Ohio requested a severance, in violation of Ohio Revised Code

§ 2945.13.

III. Appellant was denied effective assistance of counsel, in

violation of his right to counsel guaranteed by the Sixth Amendment to the

United States Constitution and Article I, § 10 of the Ohio Constitution, by

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 counsel’s failure to seek a continuance of the trial date to on or after the

effective date of the amendment to Ohio Revised Code § 2901.05, which

now places the burden of proof with respect to self-defense on the State of

Ohio.

II. Analysis

A. Manifest Weight

{¶ 34} In his first assignment of error, appellant argues that the jury’s verdict was

against the manifest weight of the evidence.

{¶ 35} When reviewing a manifest weight claim, we sit as a “thirteenth juror.” State v.

Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). That is, we review the

entire record, weigh the evidence and all reasonable inferences, and consider the

credibility of witnesses. Id. Our role is to 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.” Id.

We reverse a conviction on manifest weight grounds for only the most “exceptional case

in which the evidence weighs heavily against the conviction.” Id. at 387.

{¶ 36} Here, appellant was convicted of murder in violation of R.C. 2903.02(B),

which provides: “No person shall cause the death of another as a proximate result of the

offender’s committing or attempting to commit an offense of violence that is a felony of

the first or second degree and that is not a violation of section 2903.03 or 2903.04 of the

Revised Code.”

12.
 {¶ 37} Appellant concedes that he shot and killed Rogers, as is clearly depicted in

the surveillance video that is part of the record in this case. Unquestionably, this conduct

satisfies the elements of murder outlined above. However, appellant argues that the jury

should have found him not guilty of murder based upon his claim of self-defense.

{¶ 38} In support of his self-defense claim, appellant contends that he “was

reasonably in fear of his safety and his life when * * * Rogers made a move in his vehicle

which strongly suggested reaching for a weapon.” Appellant goes on to assert that

Rogers caused him to be “in a state of anxiety and fear for fully one week, incessantly

needling him with threats and demands.”

{¶ 39} In order to prevail on his claim of self-defense, appellant must establish

that he was not at fault in creating the situation that led to the shooting. State v. Robbins,

58 Ohio St.2d 74 (1979), paragraph two of the syllabus. “An individual who is the first

aggressor in an incident is ‘at fault’ for purposes of self-defense.” State v. Williams, 9th

Dist. Summit No. 29444, 2020-Ohio-3269, ¶ 9, citing State v. Turner, 171 Ohio App.3d

82, 2007-Ohio-1346, 869 N.E.2d 708, ¶ 23 (2d Dist.).

{¶ 40} In our review of the surveillance footage of the shooting, we find that

appellant’s claim of self-defense is untenable. In particular, the coordinated movement of

Diebert, Stein, and Matney, resulting in the boxing in of Rogers’ vehicle at the same time

as appellant approached Rogers with a loaded handgun, establishes that the four men

planned to confront Rogers at the Stop & Go gas station. Given these facts, it is clear that

appellant, not Rogers, was the aggressor in this incident. Consequently, appellant’s

13.
self-defense claim must fail, regardless of any furtive movements that Rogers may have

made prior to the shooting.

{¶ 41} Moreover, we observe that appellant’s claim of self-defense was fully

explored by the parties at trial. Appellant testified that he was fearful prior to the

shooting, which prompted the state’s thorough cross-examination on the issue of self-

defense.

{¶ 42} In short, the jury considered all of the evidence and chose not to credit

appellant’s self-serving testimony, which was contradicted by the video evidence

introduced by the state. Having examined the evidence ourselves, we find that the jury

did not lose its way or create a manifest miscarriage of justice in finding appellant guilty

of murder. Accordingly, we reject appellant’s manifest weight argument and find his

first assignment of error not well-taken.

B. Severance of Co-Defendants

{¶ 43} In his second assignment of error, appellant argues that the trial court erred

under R.C. 2945.13 in severing his trial from the trial of Diebert, Stein, and Matney.

{¶ 44} R.C. 2945.13 provides: “When two or more persons are jointly indicted for

a felony, except a capital offense, they shall be tried jointly unless the court, for good

cause shown on application therefor by the prosecuting attorney or one or more of said

defendants, orders one or more of said defendants to be tried separately.”

14.
 {¶ 45} In the proceedings below, appellant did not complain of the severance of

his trial from that of Diebert, Stein, and Matney. Having failed to previously raise this

issue, appellant has forfeited all but plain error. State v. Moss, 6th Dist. Lucas No.

L-19-1047, 2020-Ohio-2862, ¶ 36, citing State v. McClain, 6th Dist. Lucas No.

L-10-1088, 2012-Ohio-5264, ¶ 12. In order to demonstrate plain error, appellant must

show that, “but for the error, the outcome of the trial clearly would have been otherwise.”

State v. McKee, 91 Ohio St.3d 292, 294, 744 N.E.2d 737 (2001), citing Crim.R. 52(B);

State v. Johnson, 88 Ohio St.3d 95, 111, 723 N.E.2d 1054 (2000).

{¶ 46} In his brief, appellant summarily claims that his conviction should be

considered void because he was not tried together with Diebert, Stein, and Matney.

Appellant does not claim, and offers no argument to demonstrate, that the trial court’s

decision to try him alone had any bearing on the outcome of the trial. As such, appellant

has failed to demonstrate plain error with respect to the trial court’s severance of his trial

from that of Diebert, Stein, and Matney.

{¶ 47} Accordingly, appellant’s second assignment of error is not well-taken.

C. Ineffective Assistance of Counsel

{¶ 48} In appellant’s third assignment of error, he argues that he received

ineffective assistance of counsel. When reviewing a claim of ineffective assistance of

counsel, we apply the following standard:

A convicted defendant’s claim that counsel’s assistance was so defective as

to require reversal of a conviction * * * has two components. First, the

15.
 defendant must show that counsel’s performance was deficient. This

requires showing that counsel made errors so serious that counsel was not

functioning as the “counsel” guaranteed the defendant by the Sixth

Amendment. Second, the defendant must show that the deficient

performance prejudiced the defense.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

{¶ 49} Here, appellant asserts that his trial counsel was ineffective for failing to

seek an eight-week continuance of the trial until after March 28, 2019, the effective date

of an amendment to R.C. 2901.05(B)(1), which now provides that the prosecution has the

burden to prove beyond a reasonable doubt that the accused did not act in self-defense

where there is evidence presented that tends to support a self-defense claim. Appellant

argues that this change would have benefitted him in a case in which “[t]he question of

self-defense was close at best; had the burden as to self-defense been on the State * * *

there is a very high probability that Mr. Rivers would have been acquitted.”

{¶ 50} In response, the state argues that appellant has not demonstrated

incompetence on the part of his defense counsel, nor prejudice as a result of the failure to

seek a continuance. The state contends that the trial court would likely not have granted

a request for a continuance solely on the basis of defense counsel’s desire to reap the

benefit of the amendment to R.C. 2901.05(B)(1). Further, the state argues that the

outcome of the proceedings would not have been different had such a continuance been

granted, because the evidence overwhelmingly negates appellant’s self-defense claim.

16.
 {¶ 51} In U.S. v. Tanner, 544 F.3d 793 (7th Cir.2008), the United States Court of

Appeals for the Seventh Circuit examined a claim of ineffective assistance of counsel that

was similarly premised upon trial counsel’s failure to seek a continuance so that the

defendant could obtain the benefit of an amendment to the federal sentencing guidelines.

There, the court found that “[i]t is improper for a judge to grant (or deny) a continuance

for the very purpose of changing the substantive law applicable to the case.” Id. at 796.

The court went on to explain:

A sentencing judge cannot rightly say, “I do not like the current guidelines,

so I am continuing the sentencing hearing in the hope and expectation (in

this case, the certainty) that they will change.” Or: “Ordinarily I would

grant a continuance, but I won’t do so in this case because I prefer the

current guidelines to those about to take effect.” * * * [T]he power to grant

or deny a continuance is abused when it is exercised not in order to manage

a proceeding efficiently but in order to change the substantive principles

applicable to a case. That would be like the judge’s trying to change the

effective date of a statute because he liked, or disliked, how the statute had

changed the existing law.

Id. at 796-797.

{¶ 52} Under the persuasive logic articulated in Tanner, we find that trial

counsel’s failure to request a continuance in this matter was not deficient. Indeed, such a

request would have invited the trial court to commit error by granting a continuance, the

17.
sole purpose of which would have been to allow appellant to receive the benefit of a

statutory amendment rather than to manage the proceeding efficiently.

{¶ 53} Moreover, we find that appellant cannot demonstrate that trial counsel’s

performance prejudiced him. As we already discussed in our analysis of appellant’s first

assignment of error, the evidence presented by the state in this case establishes that there

is no merit to appellant’s claim of self-defense. There is nothing in the record to

demonstrate that Rogers was the initial aggressor in this incident. Consequently, even

with the benefit of the amended language in R.C. 2901.05(B)(1), appellant’s self-defense

claim would fail, and the outcome of these proceedings would remain the same.

{¶ 54} Because appellant has not demonstrated that his defense counsel rendered

deficient performance that altered the outcome of the proceedings below, we find his

third assignment of error not well-taken.

III. Conclusion

{¶ 55} In light of the foregoing, the judgment of the Lucas County Court of

Common Pleas is hereby affirmed. Appellant is ordered to pay the costs of this appeal

pursuant to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.

18.
 State v. Rivers
C.A. No. L-19-1040

Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Gene A. Zmuda, P.J. JUDGE
CONCUR.
_______________________________
JUDGE

This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.

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