State v. Fisher - Case Law

[Cite as State v. Fisher, 2021-Ohio-3919.]

IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NOS. C-200461
C-200463
Plaintiff-Appellee, : C-200464
C-200465
vs. : TRIAL NOS. 20CRB-20651 A-B
20CRB-20654
JAMES FISHER, : 20CRB-20697

Defendant-Appellant. : O P I N I O N.

Criminal Appeals From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded

Date of Judgment Entry on Appeal: November 3, 2021

Andrew W. Garth, City Solicitor, William T. Horsley, Chief Prosecuting Attorney, and
Susan M. Zurface, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and David Hoffmann, Assistant
Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS

BERGERON, Judge.

{¶1} After defendant-appellant James Fisher sent a flurry of threating messages to

Star Higgins, his ex-girlfriend, police arrested him on her street with a firearm concealed in

his vehicle. The trial court convicted Mr. Fisher of menacing by stalking,

telecommunications harassment, aggravated menacing, and carrying a concealed weapon.

Now Mr. Fisher appeals, raising an array of constitutional issues, challenging the weight and

sufficiency of the evidence, and protesting the forfeiture of his firearm. We sustain Mr.

Fisher’s challenge to the forfeiture of his firearm, but otherwise affirm the trial court’s

judgment.

{¶2} Mr. Fisher and Mrs. Higgins’s relationship deteriorated, leading to their

separation shortly after the birth of their son approximately nine years ago. Since that

separation, Mr. Fisher vanished from his son’s life. Although he contacted Mrs. Higgins

every couple of years to inquire about the child, he made no effort to establish a relationship

with his son.

{¶3} Desiring to chart a new course, in October 2020, he reached out to Mrs.

Higgins, asking about his son and expressing a desire to become involved in his life. But

when Mr. Fisher’s communications strayed to other topics, Mrs. Higgins drew a line in the

sand, forbidding him from contacting her, except about their son. In response, Mr. Fisher

lashed out, chastising Mrs. Higgins and criticizing her marriage.

{¶4} Two days later, with Mrs. Higgins staying silent, Mr. Fisher erupted. From

October 25 to October 27, Mr. Fisher bombarded Mrs. Higgins with a tirade of threatening

text messages and phone calls. The communications deplored Mrs. Higgins related to the

custody dispute over their son. In this volley of texts, among other things, Mr. Fisher

2
OHIO FIRST DISTRICT COURT OF APPEALS

threatened to cut a tattoo off her husband’s arm that was dedicated to Mr. Fisher’s son, he

sent a picture of him pointing a gun at the camera, and he threatened to kill Mrs. Higgins

and her husband. In addition, he threatened to kill Judge Fanon Rucker, a former Hamilton

County Municipal Court judge, because Mr. Fisher mistakenly believed he was involved in

the custody dispute. In all, Mr. Fisher sent seventy pages’ worth of text messages and made

at least four calls to Mrs. Higgins from October 23 to 27. During this period, Mrs. Higgins

also discovered a piece of paper left on the windshield of her car that ostensibly ordered

Mrs. Higgins’s husband to cover up his tattoo.

{¶5} Dismayed by this turn of events, Mrs. Higgins eventually called the police.

The police filed warrants for Mr. Fisher’s arrest and patrolled the area looking for him.

Shortly after midnight, an officer arrested him on Mrs. Higgins’s street. At the time of his

arrest, Mr. Fisher admitted possessing a firearm in his car, which the officer found

concealed beneath an article of clothing.

{¶6} Mr. Fisher was charged with menacing by stalking, telecommunications

harassment, aggravated menacing, and carrying a concealed weapon. At a pretrial hearing,

Mr. Fisher’s trial counsel, Joshua Thompson, revealed that he had a connection with Judge

Rucker, the victim of the aggravated menacing charge, because he had contributed to Judge

Rucker’s campaign for prosecuting attorney. He appropriately disclosed the connection to

Mr. Fisher, and Mr. Fisher did not protest or request additional information. At a

subsequent pretrial hearing several weeks later, however, Mr. Fisher had a change of heart,

requesting a continuance to obtain private counsel based on concerns about counsel’s

potential conflict of interest. The trial court refused his request, noting that Mr. Fisher

could have raised his concern at two intervening pretrial hearings. Without exploring the

3
OHIO FIRST DISTRICT COURT OF APPEALS

nature of the potential conflict, the trial court conveyed its

“absolute confidence” that Mr. Thompson could ethically represent Mr. Fisher.

{¶7} The case proceeded to a bench trial, with the court finding Mr. Fisher guilty

on all four charges. After Mr. Fisher underwent a psychological evaluation, the trial court

sentenced him to an aggregate sentence of 18 months. On appeal, Mr. Fisher argues that

the convictions infringed on his right to conflict-free counsel, contravened his right to a trial

by jury, were unsupported by the weight and sufficiency of the evidence, deprived him of his

right to effective assistance of counsel, and violated Ohio law on the forfeiture of property.

II.

{¶8} Mr. Fisher’s first assignment of error challenges the alleged deprivation of his

Sixth Amendment right to conflict-free counsel. He maintains that (1) the trial court failed

to conduct an adequate inquiry to ascertain whether a conflict of interest existed, and (2)

the record demonstrates the presence of an actual conflict of interest warranting reversal of

the convictions.

{¶9} We agree with Mr. Fisher that the trial court initially did not conduct an

adequate inquiry into a potential conflict of interest, a point underscored by an intervening

Supreme Court opinion. “A trial court’s affirmative duty to inquire [into a potential conflict

of interest] arises when the trial court knows or has reason to know that a possible conflict

of interest exists or when a defendant objects.” State v. Williams, Slip Opinion No. 2021-

Ohio-3152, ¶ 6. A duty to inquire arose when Mr. Fisher sought to substitute Mr. Thompson

for private counsel because of his contribution to the victim’s campaign. See id. at ¶ 17 (if

the record reveals “the possibility of incompatible interests,” it triggers the trial court’s duty

to inquire).

4
OHIO FIRST DISTRICT COURT OF APPEALS

{¶10} Although the trial court discussed this matter at length on the record, it did

not inquire of defense counsel as to the nature and amounts of any campaign involvement,

or any other indicia that might suggest a close relationship with the victim. Without such an

inquiry, the court offered no findings on the ability of Mr. Thompson to zealously represent

Mr. Fisher notwithstanding his contribution, nor are any pertinent facts along these lines

apparent in the transcript. See State v. Feemorlu, 2015-Ohio-4528, 46 N.E.3d 1108, ¶ 16

(3d Dist.) (trial court’s inquiry was inadequate where “trial court did not ask whether [the

attorney] would be able to competently represent [the defendant] or whether she had

learned any facts relevant to [the defendant’s] case from [the source of the potential

conflict].”); State v. Johnson, 185 Ohio App.3d 654, 2010-Ohio-315, 925 N.E.2d 199, ¶ 6 (3d

Dist.) (inquiry into waiver of conflict of interest, but not whether an actual conflict was

present, was an insufficient inquiry); State v. Garcia, 6th Dist. Huron No. H-06-003, 2007-

Ohio-1525, ¶ 17 (“[T]he trial court made adequate inquiry * * * [w]hen * * * the court

questioned [jointly represented defendants] and addressed the inherent difficulties in

multiple representation.”).

{¶11} As a result, we issued a limited remand for the trial court to conduct a hearing

to determine whether an actual conflict of interest existed. See, e.g., In re J.W., 8th Dist.

Geauga No. 2017-G-0139, 2018-Ohio-2020, ¶ 16 (“[W]e remand this case for fifteen (15)

days from the date of this opinion for the trial court to conduct a hearing to determine

whether an actual conflict of interest existed.”), citing State v. Gillard, 64 Ohio St.3d 304,

595 N.E.2d 878 (1992); Williams at ¶ 7 (“If the trial court’s affirmative duty arose but it did

not inquire, the case must be remanded to the trial court with instructions to conduct a

hearing to determine whether an actual conflict of interest existed.”). Our order instructed

the trial court to ascertain whether counsel’s connection with the victim casts doubt on the

5
OHIO FIRST DISTRICT COURT OF APPEALS

integrity of the trial process or otherwise undermines confidence in the verdict. See

Feemorlu at ¶ 17. We noted that the relevant considerations in this case would include the

amount of any campaign contribution(s), the extent of any involvement by counsel as a

volunteer in Judge Rucker’s campaign, and any other connections with Judge Rucker that

might jeopardize counsel’s ability to zealously defend Mr. Fisher on the aggravated

menacing charges.

{¶12} The trial court ably and thoroughly explored these issues on remand.

Scheduling a prompt hearing, it determined that Mr. Thompson made two donations to

Judge Rucker’s campaign, totaling $70. Mr. Thompson testified that he had no other

involvement in Judge Rucker’s campaign whatsoever, adding that he had only very limited

contact with Judge Rucker professionally, practicing in front of him on a few occasions. The

trial court concluded that no actual conflict of interest existed based on these facts.

{¶13} We hold that the trial court’s inquiry on the limited remand sufficed to make

an informed determination on whether an actual conflict of interest existed. We accordingly

turn to the substance of Mr. Fisher’s conflict of interest attack.

{¶14} To prevail in establishing an actual conflict of interest, Mr. Fisher “must

demonstrate that ‘an actual conflict of interest’ adversely affected his lawyer’s performance.”

State v. Barrow, 2018-Ohio-1703, 111 N.E.3d 714, ¶ 37 (1st Dist.), quoting Wood v. Georgia,

450 U.S. 261, 273, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981). That said, “[t]he trial judge has

‘wide latitude’ in determining that an actual or potential conflict exists.” State v. Keenan, 81

Ohio St.3d 133, 137, 689 N.E.2d 929 (1998), quoting United States v. Mays, 69 F.3d 116, 121

(6th Cir.1995). “Therefore, we will only reverse the trial court’s decision if ‘the trial court’s

6
OHIO FIRST DISTRICT COURT OF APPEALS

attitude [was] unreasonable, arbitrary, or unconscionable.’ ” Feemorlu, 2015-Ohio-4528,

46 N.E.3d 1108, at ¶ 13, quoting Keenan at 137.

{¶15} Consistent with the trial court’s assessment of the evidence, we do not believe

that a $70 donation alone establishes diverging interests between Mr. Thompson’s

representation of Mr. Fisher and his connection with Judge Rucker. See Williams, Slip

Opinion No. 2021-Ohio-3152, at ¶ 18 (finding no conflict of interest when the record did not

demonstrate that jointly represented defendants’ “interests diverged”). Although defense

counsel’s connections with the alleged victim could conceivably establish a conflict of

interest that might adversely affect his performance, in this case counsel’s connections with

Judge Rucker were de minimis, and therefore the trial court did not abuse its discretion in

rejecting the conflict claim. We accordingly overrule Mr. Fisher’s first assignment of error.

III.

{¶16} Mr. Fisher’s second assignment of error alleges a deprivation of his right to a

jury trial under the Sixth Amendment to the United States Constitution. “The Sixth

Amendment to the United States Constitution and Article 1, Section 10 of the Ohio

Constitution guarantee a criminal defendant the right to a jury trial.” State v. Sweeting,

2019-Ohio-2360, 138 N.E.3d 567, ¶ 10 (1st Dist.); see State v. Lomax, 114 Ohio St.3d 350,

2007-Ohio-4277, 872 N.E.2d 279, ¶ 6. Nevertheless, Crim.R. 23(A) provides that a criminal

defendant “may knowingly, intelligently, and voluntarily waive in writing

his right to trial by jury.” “Such waiver of trial by jury must be made in open court after the

defendant has been arraigned and has had opportunity to consult with counsel. Such waiver

may be withdrawn by the defendant at any time before the commencement of the trial.”

R.C. 2945.05.

7
OHIO FIRST DISTRICT COURT OF APPEALS

{¶17} This is an unusual case where Mr. Fisher concedes that he waived his right to

a jury trial and that this waiver satisfied all of the statutory and caselaw requirements. Mr.

Fisher nevertheless maintains that an administrative order suspending jury trials in

Hamilton County because of the COVID-19 pandemic essentially undermined the

voluntariness of his waiver. In other words, he insists that this administrative order posed

an unconstitutional Hobson’s choice—wait indefinitely for the resumption of jury trials or

forego that cherished right.

{¶18} Mr. Fisher cites no authority for the proposition that a temporary suspension

of jury trials violated the Sixth Amendment, nor any cases invalidating waivers of the right

to a jury trial made during such a suspension. While we realize that the suspension of jury

trials placed Mr. Fisher (along with countless others) in a predicament, we see no reason to

disturb an otherwise valid waiver on this record. We thus overrule Mr. Fisher’s second

assignment of error.

IV.

{¶19} Mr. Fisher’s third assignment of error challenges the weight and sufficiency of

the evidence in support of his convictions. In reviewing whether the conviction runs

counter to the manifest weight of the evidence, we sit as a “thirteenth juror.” State v.

Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). We will reverse the trial court’s

decision to convict and grant a new trial only in “ ‘exceptional cases in which the evidence

weighs heavily against the conviction.’ ” State v. Sipple, 2021-Ohio-1319, 170 N.E.3d 1273,

¶ 7 (1st Dist.), quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st

Dist.1983).

{¶20} And “[t]o determine whether a conviction is supported by sufficient evidence,

‘the relevant inquiry is whether, after viewing the evidence in a light most favorable to the

8
OHIO FIRST DISTRICT COURT OF APPEALS

prosecution, any rational trier of fact could have found the essential elements of the crime

proven beyond a reasonable doubt.’ ” State v. Walker, 150 Ohio St.3d 409, 2016-Ohio-

8295, 82 N.E.3d 1124, ¶ 12, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492

(1991), paragraph two of the syllabus.

{¶21} The trial court convicted Mr. Fisher of menacing by stalking under R.C.

2903.211, which provides “[n]o person by engaging in a pattern of conduct shall knowingly

cause another person to believe that the offender will cause physical harm to the other

person or a family or household member of the other person or cause mental distress to the

other person or a family or household member of the other person.”

{¶22} Mr. Fisher’s challenge to the weight and sufficiency of the evidence

supporting his menacing by stalking conviction hinges solely on whether the evidence

sufficed for the trial court to attribute the message left on Mrs. Higgins’s windshield to Mr.

Fisher. Mr. Fisher insists that the court could not reasonably have determined that he

placed it there. It follows, his theory goes, that the convictions for menacing by stalking and

telecommunications harassment would be based on the same conduct (i.e., Mr. Fisher’s

threatening telecommunications) and, therefore, should merge.

{¶23} We need not delve into the merger issue, however, because the evidence

enabled the trial court to attribute the message to Mr. Fisher. Mrs. Higgins testified that she

recognized Mr. Fisher’s writing on the message, and the language of the note echoed his text

messages on the same subject matter. And Mrs. Higgins discovered the message in the

midst of Mr. Fisher’s two-day outburst. On these facts, evidence sufficed for a rational trier

of fact to find Mr. Fisher left the note on the car, thus obviating the merger issue. We

therefore overrule Mr. Fisher’s challenge to his menacing by stalking conviction.

9
OHIO FIRST DISTRICT COURT OF APPEALS

{¶24} The trial court also convicted Mr. Fisher of telecommunications harassment

under R.C. 2917.21(B)(1), which provides “[n]o person shall make or cause to be made a

telecommunication, or permit a telecommunication to be made from a telecommunications

device under the person's control, with purpose to abuse, threaten, or harass another

person.”

{¶25} Mr. Fisher does not dispute the weight of the evidence here. He merely

claims that the evidence fails to substantiate “purpose to abuse, threaten, or harass another

person.” We disagree. Mr. Fisher hurled over 70 pages of messages to Mrs. Higgins over

the course of several days. Capturing the flavor of these messages, Mr. Fisher warned, “I’ma

text you everyday * * *make your life a living hell from on out because I don’t have s*** else

to [lose].” When Mrs. Higgins accused him of “trying to cause paranoia” he embraced that:

“yep that’s my whole goal.” Mrs. Higgins begged that he stop contacting her on multiple

occasions, but the onslaught of messages persisted for two days. The combination of the

substance and volume of these messages enabled a rational trier of fact to conclude beyond

a reasonable doubt that Mr. Fisher acted with the requisite mental state, and we overrule

Mr. Fisher’s challenge to his conviction for telecommunications harassment.

{¶26} Based on his threat to kill Judge Rucker, the trial court convicted Mr. Fisher

of aggravated menacing under R.C. 2903.21, which reads “[n]o person shall knowingly

cause another to believe that the offender will cause serious physical harm to the person or

property of the other person.”

{¶27} Mr. Fisher takes issue with this by disputing whether a threat to a third party

that is not communicated directly to that person can support a conviction for aggravated

10
OHIO FIRST DISTRICT COURT OF APPEALS

menacing. In this regard, he features a Seventh District case where the court found that,

under R.C. 2903.21, “appellant is not guilty of menacing because the alleged victim was

neither the person to whom he addressed his statement nor a close relative of that person.”

State v. Richard, 129 Ohio App.3d 556, 561, 718 N.E.2d 508 (7th Dist.1998). The Richard

court recognized, however, that the First District previously reached the opposite

conclusion. Id. at 559-560, citing State v. Roberts, 1st Dist. Hamilton No. C-890639, 1990

WL 410625, *1-2 (Sept. 26, 1990) (affirming conviction for aggravated menacing when the

defendant made a threatening statement concerning one officer, but not in their presence,

that was later communicated to that officer). Since then, the Seventh District has seemingly

backtracked on Richard. See In re Cunningham, 7th Dist. Harrison No. 02-537-CA, 2002-

Ohio-5875, ¶ 23 (affirming conviction for aggravated menacing where the defendant “could

well have intended for the victims to receive [the threat], albeit through an indirect

method.”).

{¶28} The Fifth, Ninth, and Eleventh Districts have all followed our general

approach in Roberts. State v. McWilliams, 5th Dist. Stark No. 2011-CA-00051, 2012-Ohio-

663, ¶ 27 (“[T]o sustain an aggravated menacing conviction, a threat to cause the harm need

not be made directly to the intended victim, as we found in [a previous case], but may be

sufficient if made to a third-party to whom the defendant knew or reasonably should have

know[n] would convey the threat to the intended victim.”); State v. Knoble, 9th Dist. Lorain

No. 08CA009359, 2008-Ohio-5004, ¶ 13 (“We conclude that R.C. 2903.21 is clear and

unambiguous on its face and does not impose a requirement that the threat of harm must be

uttered directly to the intended victim.”); State v. Nixon, 2014-Ohio-4303, 20 N.E.3d 404,

¶ 18 (11th Dist.) (“[E]ven though the threats were not made directly to [the target or his

family], they were made under circumstances that placed [defendant] on reasonable notice

11
OHIO FIRST DISTRICT COURT OF APPEALS

that his threats would probably reach [the target or his family] and cause these individuals

to believe that appellant would cause them serious physical harm.”).

{¶29} Based on our own precedent, and the cases from our sister districts, we reject

Mr. Fisher’s theory that the defendant must directly communicate the threat to the intended

victim to sustain a conviction for aggravated menacing. To the contrary, Mr. Fisher must

have made his statement “to a third-party to whom [Mr. Fisher] knew or reasonably should

have know[n] would convey the threat to the intended victim.” See McWilliams at ¶ 27.

{¶30} Here, the evidence established that Mr. Fisher should have known that the

threat would be communicated to Judge Rucker. The text messages reveal that Mr. Fisher

knew that Mrs. Higgins’s mother used to work for Judge Rucker and that he believed that

Judge Rucker had assisted her on the custody matter concerning their son. Viewing these

facts in the light most favorable to the prosecution, a rational trier of fact could convict Mr.

Fisher of aggravated menacing despite the fact that he did not communicate the threat

directly to the victim. He expected that Mrs. Higgins would convey the threat, and in fact

she did. We therefore overrule Mr. Fisher’s challenge to his conviction for aggravated

menacing.

{¶31} The trial court convicted Mr. Fisher of carrying a concealed weapon under

R.C. 2923.12(A)(2), which provides “[n]o person shall knowingly carry or have, concealed

on the person’s person or concealed ready at hand * * * [a] handgun * * * .”

{¶32} Mr. Fisher merely challenges the weight of the evidence here by raising

credibility concerns related to the arresting officer’s testimony. The arresting officer

testified that he stopped Mr. Fisher after running his license plate, which revealed that the

vehicle was registered to a female. On appeal, Mr. Fisher acknowledges that the vehicle was

12
OHIO FIRST DISTRICT COURT OF APPEALS

registered to his mother, but speculates that the officer could not have linked him to his

mother’s registration information. Mr. Fisher asserts, without explanation, that these

circumstances detract from the officer’s credibility. But credibility determinations are

generally questions for the trier of fact to resolve. State v. Ham, 1st Dist. Hamilton No. C-

170043, 2017-Ohio-9189, ¶ 21 (“[I]t is well settled law that matters as to the credibility of

witnesses are for the trier of fact to resolve.”). And we do not believe that this collateral

credibility question weighs heavily against the integrity of the conviction. We therefore

overrule Mr. Fisher’s challenge to his conviction for carrying a concealed weapon.

{¶33} Mr. Fisher’s fourth assignment of error claims a deprivation of his right to

effective assistance of counsel. “ ‘When a convicted defendant complains of the

ineffectiveness of counsel’s assistance, the defendant must show that counsel’s

representation fell below an objective standard of reasonableness.’ ” State v. Sanders, 94

Ohio St.3d 150, 151, 761 N.E.2d 18 (2002), quoting Strickland v. Washington, 466 U.S.

668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “Furthermore, ‘the defendant must

show that there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.’ ” Id., quoting Strickland at 694. Ohio

courts must give “ ‘a heavy measure of deference to counsel’s judgments’ ” and “ ‘indulge a

strong presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.’ ” Id., quoting Strickland at 689, 691.

{¶34} Mr. Fisher complains about the denial of effective assistance of counsel

because his lawyer did not argue that he had a valid concealed handgun license (“CHL”), a

defense to the carrying a concealed weapon offense. Although Mr. Fisher testified that his

13
OHIO FIRST DISTRICT COURT OF APPEALS

CHL was expired at the time of his arrest, the Ohio General Assembly passed 2020

Am.Sub.H.B. 197 (“H.B. 197”) in March 2020, which provided a 90-day extension to renew

one’s CHL in light of the COVID-19 pandemic. Under section 11(E)(2) of the bill, if a CHL

expired before its effective date, “[i]n such a case, the ninety-day extension period * * * shall

be considered to have commenced on that date of scheduled expiration.” On appeal, Mr.

Fisher suggests that H.B. 197 extended the effectiveness of his CHL.

{¶35} Although Mr. Fisher may well be correct on this point, we see nothing in the

record that validates his conclusion. Without proof of when his CHL expired, the record

does not establish a reasonable probability that, if counsel had raised this theory, the result

of the proceeding would have differed. Therefore, Mr. Fisher falls short on the prejudice

prong of Strickland, and we accordingly overrule Mr. Fisher’s fourth assignment of error

based on the state of this record.

VI.
{¶36} Mr. Fisher’s fifth assignment of error asserts that the trial court erred by

forfeiting his handgun without including a forfeiture specification in the complaint or the

bill of particulars, as R.C. Chapter 2981 requires. The state concedes that the forfeiture of

Mr. Fisher’s firearm was improper, but notes that the firearm may have been destroyed

pursuant to the trial court’s order. We therefore sustain Mr. Fisher’s fifth assignment of

error, and order the trial court to return the firearm to Mr. Fisher if it has not been

destroyed.

* * *

{¶37} For all of the foregoing reasons, we overrule Mr. Fisher’s first, second, third,

and fourth assignments of error. But we sustain Mr. Fisher’s fifth assignment of error, and

remand this cause for further proceedings consistent with this opinion.

14
OHIO FIRST DISTRICT COURT OF APPEALS

Judgment accordingly.
ZAYAS, P. J., and WINKLER, J., concur.
Please note:

The court has recorded its entry on the date of the release of this opinion