State v. Jones

[Cite as State v. Jones, 2022-Ohio-561.]

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

STATE OF OHIO, :

Plaintiff-Appellee, : Case No. 20CA9

v. :

CLARENCE JONES, : DECISION AND JUDGMENT ENTRY

Defendant-Appellant. :

________________________________________________________________

APPEARANCES:

Roger Soroka and Joshua Bedtelyon, Columbus, Ohio, for
appellant.

Justin Lovett, Jackson County Prosecuting Attorney, and Rachel
E. Daehler, Jackson County Assistant Prosecuting Attorney,
Jackson, Ohio, for appellee.
________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:2-18-22
ABELE, J.

{¶1} This is an appeal from a Jackson County Common Pleas

Court judgment of conviction and sentence. The trial court

found Clarence Jones, defendant below and appellant herein,

guilty of cocaine possession and sentenced him to serve eight

years in prison.

{¶2} Appellant assigns the following error for review:

“THE TRIAL COURT ERRED IN DISMISSING
APPELLANT’S MOTION TO SUPPRESS EVIDENCE
OBTAINED DURING AN UNLAWFUL SEARCH AND
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SEIZURE WHICH VIOLATED APPELLANT’S FOURTH
AMENDMENT RIGHTS.”

{¶3} During an April 2018 traffic stop, Ohio State Highway

Patrol Trooper Matthew Atwood discovered approximately 130 grams

of cocaine in a metal box attached to the undercarriage of

appellant’s vehicle. A Jackson County Grand Jury later returned

an indictment that charged appellant with (1) possession of

cocaine, in violation of R.C. 2925.11(A); (2) trafficking in

cocaine, in violation of R.C. 2925.03(A)(2); and (3) operating a

vehicle with a hidden compartment, in violation of R.C.

2923.241(C). Each drug offense also included a major drug

offender specification. Appellant entered not guilty pleas.

{¶4} On October 17, 2019, appellant filed a motion to

suppress the evidence discovered during the traffic stop. In

particular, appellant asserted that the trooper (1) did not have

reasonable suspicion or probable cause to stop the vehicle, and

(2) did not have probable cause to search the vehicle.

{¶5} On June 17, 2020, the trial court held a hearing to

consider appellant’s motion to suppress. Trooper Atwood

testified that on April 18, 2018, he noticed a vehicle with a

“dark window tint.” Also, the vehicle’s occupants appeared to

lean back so far that he “couldn’t see them” and that “it looked

like * * * a driverless car.” Atwood also noted that the
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JACKSON, 20CA9

vehicle slowed as it passed the trooper’s parked cruiser. At

that point, Atwood decided to investigate and followed the car.

{¶6} Trooper Atwood followed the vehicle, he noticed the

vehicle again slow down and depress the brakes. At that point,

Atwood observed that one brake light did not work and, based

upon the missing brake light and dark window tint, he decided to

stop the vehicle.

{¶7} When Trooper Atwood reached the vehicle, he asked the

driver (appellant) for his license, registration, and insurance.

Atwood noticed that appellant and the passenger both were

“breathing unusually heavily” and “were shaking.” Atwood

explained that when appellant handed over his driver’s license,

his “hand was trembling” and the passenger “was starting to

sweat.” Atwood also stated that the passenger did not make eye

contact even though the trooper stood next to him.

{¶8} Trooper Atwood asked appellant to exit the vehicle and

to walk toward the cruiser. Atwood then performed a pat-down

search and placed appellant in the back of the cruiser. After

Atwood returned to the vehicle and asked the passenger for

identification, that at this point the passenger’s “sweat was

now running down his face.” The passenger indicated that he had

no identification and he also “was shifting around in his seat.”
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During the passenger’s shifting, Atwood detected the odor of raw

marijuana emanating from the vehicle.

{¶9} Trooper Atwood returned to his cruiser, read appellant

his Miranda rights, and informed appellant that the trooper had

detected the odor of marijuana and that he intended to search

the vehicle. During the search, Atwood found a black magnetic

box attached to the bottom of the vehicle that contained a sock.

Inside the sock, a vacuum-sealed bag contained approximately 130

grams of crack cocaine.

{¶10} Trooper Atwood testified that he later measured the

window tint and found that the tint provided 44% light

transmission.

{¶11} After Trooper Atwood’s testimony, the state rested.

The court asked appellant’s counsel whether they had “any issue

with the probable cause for the stop” and appellant’s counsel

responded “No, Your Honor.” Counsel instead agreed that the

issue “is whether or not the officer had reasonable suspicion

that additional criminal activity was afoot.”

{¶12} The trial court subsequently overruled appellant’s

motion to suppress evidence. The court found that Trooper

Atwood detected the odor of marijuana, and that the smell of
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marijuana gave Atwood probable cause to search appellant’s

vehicle.

{¶13} On November 19, 2020, appellant entered a no-contest

plea to cocaine possession. The trial court found appellant

guilty of cocaine possession, dismissed the remaining counts and

specifications, and sentenced appellant to serve eight years in

prison. This appeal followed.

I

{¶14} In his sole assignment of error, appellant asserts

that the trial court erred by overruling his motion to suppress

the evidence discovered during the traffic stop. Appellant

contends that (1) the trooper did not have reasonable suspicion

to stop the vehicle for a window-tint violation, and (2) even if

the trooper had reasonable suspicion to stop the vehicle for a

window-tint violation, the trooper impermissibly expanded the

scope of the stop. Appellant argues that the trooper did not

have reasonable suspicion that criminal activity was afoot so as

to justify the expanded scope of the stop.

{¶15} Appellate review of a trial court’s ruling on a motion

to suppress evidence involves a mixed question of law and fact.

E.g., State v. Castagnola, 145 Ohio St.3d 1, 2015-Ohio-1565, 46

N.E.3d 638, ¶ 32; State v. Burnside, 100 Ohio St.3d 152, 2003-
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Ohio-5372, 797 N.E.2d 71, ¶ 8; State v. Moore, 2013-Ohio-5506, 5

N.E.3d 41 (4th Dist.), ¶ 7. Appellate courts thus “‘must accept

the trial court’s findings of fact if they are supported by

competent, credible evidence.’” State v. Leak, 145 Ohio St.3d

165, 2016-Ohio-154, 47 N.E.3d 821, ¶ 12, quoting Burnside at ¶

8. Accepting those facts as true, reviewing courts

“‘independently determine as a matter of law, without deference

to the conclusion of the trial court, whether the facts satisfy

the applicable legal standard.’” Id., quoting Burnside at ¶ 8.

{¶16} The Fourth and Fourteenth Amendments to the United

States Constitution, as well as Section 14, Article I of the

Ohio Constitution, protect individuals against unreasonable

governmental searches and seizures. Delaware v. Prouse, 440

U.S. 648, 662, 99 S.Ct. 1391, 1400, 59 L.Ed.2d 660 (1979); State

v. Gullett, 78 Ohio App.3d 138, 143, 604 N.E.2d 176 (1992).

“[S]earches [and seizures] conducted outside the judicial

process, without prior approval by judge or magistrate, are per

se unreasonable under the Fourth Amendment—subject only to a few

specifically established and well-delineated exceptions.” Katz

v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19

L.Ed.2d 576 (1967); State v. Roberts, 110 Ohio St.3d 71, 2006-

Ohio-3665, 850 N.E.2d 1168, ¶ 98. “Once a warrantless search is
 7
JACKSON, 20CA9

established, the burden of persuasion is on the state to show

the validity of the search.” Xenia v. Wallace, 37 Ohio St.3d

216, 218, 524 N.E.2d 889 (1988) (citation omitted).

{¶17} A traffic stop initiated by a law enforcement officer

constitutes a seizure within the meaning of the Fourth

Amendment. Whren v. United States, 517 U.S. 806, 809–810, 116

S.Ct. 1769, 135 L.Ed.2d 89 (1996). Thus, a traffic stop must

comply with the Fourth Amendment’s general reasonableness

requirement. Id. An officer’s decision to stop a vehicle is

reasonable when the officer has probable cause or reasonable

suspicion to believe that a traffic violation has occurred. Id.

at 810 (citations omitted); accord State v. Mays, 119 Ohio St.3d

406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 23; Dayton v. Erickson,

76 Ohio St.3d 3, 11–12, 665 N.E.2d 1091 (1996). Law enforcement

officers also may stop a vehicle if they have reasonable

suspicion “that criminal activity ‘“may be afoot.”’” United

States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d

740 (2002), quoting United States v. Sokolow, 490 U.S. 1, 7, 109

S.Ct. 1581, 104 L.Ed.2d 1 (1989), quoting Terry v. Ohio, 392

U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); accord State

v. Tidwell, 165 Ohio St.3d 57, 2021-Ohio-2072, 175 N.E.3d 527, ¶

19 (officer may “make an investigatory stop, including a traffic
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JACKSON, 20CA9

stop, of a person if the officer has reasonable suspicion to

believe that the person is or is about to be engaged in criminal

activity”).

{¶18} In the case sub judice, although appellant contends on

appeal that the trooper lacked reasonable suspicion or probable

cause to stop the vehicle, appellant chose not to contest the

validity of the traffic stop during the suppression hearing.

The trial court asked appellant’s counsel about any issue with

the vehicle stop, and counsel responded “No.” In his post-

hearing brief, however, appellant challenged the lawfulness of

the initial stop of his vehicle. We therefore question whether

appellant properly preserved the issue for purposes of appellate

review. State v. Wintermeyer, 158 Ohio St.3d 513, 2019-Ohio-

5156, 145 N.E.3d 278, ¶ 19, citing Wallace, 37 Ohio St.3d at 218

(defendant may stipulate to, or narrow, the issues that trial

court reviewing suppression motion must resolve and that

“[a]rguments not made by the defendant at the suppression

hearing are, therefore, deemed to have been waived”).

{¶19} Nevertheless, we believe that Trooper Atwood

articulated sufficient facts that gave him reasonable suspicion

or probable cause to stop appellant’s vehicle. Atwood stated

that the window tint appeared darker than the legal limit and
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that he noticed a defective brake light. Either of these

factors gave Atwood reasonable suspicion or probable cause to

believe that appellant violated Ohio law.1 The trooper’s stop,

therefore, did not constitute an unconstitutional traffic stop.

E.g., State v. Hubbard, 2d Dist. Montgomery No. 28941, 2021-

Ohio-1740, ¶ 21 (holding “that a traffic stop for a suspected

window-tint violation is lawful”).

{¶20} Appellant next asserts that, even if the initial stop

complied with the Fourth Amendment, Trooper Atwood violated the

Fourth Amendment by expanding the scope of the stop. Appellant

argues that Atwood had no reason to remove appellant from the

vehicle, to conduct a pat-down search for weapons, to place

appellant in the back of the cruiser, and then to search

appellant’s vehicle.

{¶21} It is well-established that the scope and duration of

a routine traffic stop “must be carefully tailored to its

underlying justification * * * and last no longer than is

necessary to effectuate the purpose of the stop.” Florida v.

Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983);

See Ohio Adm.Code 4501-41-03(A)(2) and (3) (permitting
tinted windows so long as 70% of light passes through a
windshield and 50% of light passes through the front side
windows); R.C. 4513.071 (requiring passenger vehicles to have
two red brake lights).
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JACKSON, 20CA9

see also State v. Gonyou, 108 Ohio App.3d 369, 372, 670 N.E.2d

1040 (6th Dist.1995). This rule is designed to prevent law

enforcement officers from conducting “fishing expeditions” for

evidence of a crime. Sagamore Hills v. Eller, 9th Dist. Summit

No. 18495, 1997 WL 760693, *2 (Nov. 5, 1997); see also Fairborn

v. Orrick, 49 Ohio App.3d 94, 95, 550 N.E.2d 488 (2d Dist.1988)

(the “mere fact that a police officer has an articulable and

reasonable suspicion sufficient to stop a motor vehicle does not

give that police officer ‘open season’ to investigate matters

not reasonably within the scope of his suspicion”).

{¶22} Thus, generally, “[w]hen a law enforcement officer

stops a vehicle for a traffic violation, the officer may detain

the motorist for a period of time sufficient to issue the

motorist a citation and to perform routine procedures such as a

computer check on the motorist’s driver’s license, registration

and vehicle plates.” State v. Aguirre, 4th Dist. Gallia No.

03CA5, 2003-Ohio-4909, ¶ 36, citing State v. Carlson, 102 Ohio

App.3d 585, 598, 657 N.E.2d 591 (9th Dist.1995); see also

Rodriguez v. United States, 575 U.S. 348, 355, 135 S.Ct. 1609,

1614, 191 L.Ed.2d 492 (2015) (part of officer’s “mission” when

conducting traffic stop is to check driver’s license, determine
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JACKSON, 20CA9

whether outstanding warrants exist, and examine vehicle

registration and automobile insurance documents). A traffic

stop becomes “‘unlawful if it is prolonged beyond the time

reasonably required to complete th[e] mission’ of issuing a

ticket for the violation.” Rodriguez, 575 U.S. at 350, quoting

Illinois v. Caballes, 543 U.S. 405, 407, 125 S.Ct. 834, 160

L.Ed.2d 842 (2005). After “the reasonable * * * time for

issuing [a] citation has [elapsed], an officer must have a

reasonable articulable suspicion of illegal activity to continue

the detention.” State v. Ramos, 155 Ohio App.3d 396, 2003-Ohio-

6535, 801 N.E.2d 523, ¶ 13 (2d Dist.).

{¶23} Thus, “[a]n officer may expand the scope of the stop

and may continue to detain the vehicle without running afoul of

the Fourth Amendment if the officer discovers further facts

which give rise to a reasonable suspicion that additional

criminal activity is afoot.” State v. Rose, 4th Dist. Highland

No. 06CA5, 2006-Ohio-5292, ¶ 17, citing State v. Robinette, 80

Ohio St.3d 234, 240, 685 N.E.2d 762 (1997). As the Robinette

court explained,

[w]hen a police officer’s objective justification to
continue detention of a person * * * is not related to
the purpose of the original stop, and when that
continued detention is not based on any articulable
facts giving rise to a suspicion of some illegal
activity justifying an extension of the detention, the
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continued detention to conduct a search constitutes an
illegal seizure.

Id. at paragraph one of the syllabus.

{¶24} Conversely, “if a law enforcement officer, during a

valid investigative stop, ascertains ‘reasonably articulable

facts giving rise to a suspicion of criminal activity, the

officer may then further detain and implement a more in-depth

investigation of the individual.’” Rose at ¶ 17, quoting

Robinette at 241.

{¶25} We additionally observe that traffic stops in general

are “especially fraught with danger to police officers.”

Michigan v. Long, 463 U.S. 1032, 1047, 103 S.Ct. 3469, 77

L.Ed.2d 1201 (1983). For this reason, a law enforcement officer

who lawfully detains a motor vehicle for a traffic violation

“may order the driver to get out of the vehicle without

violating the Fourth Amendment’s proscription of unreasonable

searches and seizures.” Pennsylvania v. Mimms, 434 U.S. 106,

111, fn.6, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977); accord State v.

Brown, 4th Dist. Ross No. 18CA3644, 2019-Ohio-1112, ¶ 15.

Furthermore, an officer need not have any suspicion that

criminal activity might be afoot before the officer may order a

driver to exit the vehicle. State v. Evans, 67 Ohio St.3d 405,

408, 618 N.E.2d 162 (1993) (holding that “a Mimms order does not
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have to be justified by any constitutional quantum of

suspicion”). Instead, “[t]he government’s ‘legitimate and

weighty’ interest in officer safety * * * outweighs the ‘de

minimis’ additional intrusion of requiring a driver, already

lawfully stopped, to exit the vehicle.” Arizona v. Johnson, 555

U.S. 323, 330–31, 129 S.Ct. 781, 786, 172 L.Ed.2d 694 (2009),

quoting Mimms, 434 U.S. at 110–111. Additionally, once the

driver of a lawfully detained vehicle steps outside, the officer

may conduct a limited pat-down search for weapons “if the

officer reasonably concludes that the driver ‘might be armed and

presently dangerous.’” Johnson, 555 U.S. at 330–31, quoting

Mimms, 434 U.S. at 112.

{¶26} In the case sub judice, we believe that the trial

court correctly determined that the trooper’s conduct did not

violate the Fourth Amendment. First, under Mimms the trooper

lawfully ordered appellant to exit the vehicle. At that time,

the traffic stop had just begun and the trooper had yet to check

appellant’s driver’s license or to check for outstanding

warrants.

{¶27} After he asked appellant to exit the vehicle, Trooper

Atwood performed a pat-down search and placed appellant in the

cruiser. Even if Atwood lacked any valid reason for doing so,
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no evidence was discovered during the pat-down search or in the

cruiser after appellant exited.

{¶28} Immediately after he placed appellant in the cruiser,

Trooper Atwood returned to appellant’s vehicle to talk to the

passenger and to obtain the passenger’s identification. At that

point, Atwood detected an odor of raw marijuana. When he

detected the odor of raw marijuana, he had not yet completed the

mission of the traffic stop or the routine procedures that

accompany a traffic stop.

{¶29} Once Trooper Atwood detected the odor of raw

marijuana, the trooper acquired probable cause to search

appellant’s vehicle. E.g., State v. Moore, 90 Ohio St.3d 47,

734 N.E.2d 804 (2000), syllabus (“[t]he smell of marijuana,

alone, by a person qualified to recognize this odor, is

sufficient to establish probable cause to conduct a search”);

State v. Brown, 2d Dist. Montgomery No. 27377, 2017-Ohio-2880, ¶

9 (“[a]ny odor of marijuana emanating from a legally stopped

vehicle creates probable cause to believe that a violation of

the law has occurred”). The trooper, therefore, did not

unlawfully expand the scope of the stop by searching appellant’s

vehicle.
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{¶30} We note appellant’s concern that Trooper Atwood should

have used the on-site drug-detection dog rather than conduct a

manual search of the vehicle. Appellant has not, however, cited

any authority to support his assertion that law enforcement

officers must use a drug-detection dog if the dog already is on

site before the officers may manually search a vehicle. We

further note that Trooper Atwood stated that he “never” uses the

drug-detection dog once he detects the odor of marijuana.

Additionally, a few other courts have rejected similar

challenges. See State v. Ivery, 11th Dist. Lake No. 2011-L-081,

2012-Ohio-1270, ¶ 29 (disagreeing with defendant’s assertion

that officer should have used on-site drug-detection dog to

check the vehicle for narcotics when officer’s detection of odor

of marijuana already established probable cause for search);

United States v. Moxley, 229 F.3d 1154, 2000 WL 1234320, *3 (6th

Cir.2000) (when officer already had probable cause to search

vehicle “[t]he result of the dog-sniff merely added icing to the

proverbial cake”); see also United States v. Davis, 430 F.3d

345, 365-67 (6th Cir. 2005) (Sutton, J., concurring in part and

dissenting in part) (citing litany of cases that support “a near

universal recognition that a drug-sniffing dog’s failure to

alert does not necessarily destroy probable cause”); United
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States v. Frost, 999 F.2d 737, 744 (3d Cir.1993) (“When one

includes both the fact that the drug sniffing dog did not alert

to the suitcase and the fact that drug couriers often mask the

scent of drugs in suitcases so that a drug sniffing dog will not

alert, the failure to alert to the suitcase is not inconsistent

with the substantial probative thrust of information which [the

officer] did include [in the warrant].”).

{¶31} Appellant also contends that Trooper Atwood’s

testimony that he smelled the odor of raw marijuana is not

credible. We again note, however, that the trial court, sitting

as the trier of fact, is in the best position to evaluate

witnesses credibility during a suppression hearing. We

therefore must accept the trial court’s factual finding that the

trooper detected the odor of marijuana so long as competent,

credible evidence supports it.

{¶32} In the case sub judice, we believe that competent,

credible evidence supports the trial court’s finding that the

trooper detected the odor of marijuana. The trooper explained

that he received training in detecting the odor of raw marijuana

and that he has “been involved in hundreds of cases where

marijuana was present and confirmed to be marijuana.” The

trooper stated that he noticed the odor of raw marijuana while
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he spoke with the passenger after he placed appellant in the

patrol cruiser. The trooper stated that he noticed the odor

once the passenger started “to shift[] around in his seat” and

that he again detected the odor when the passenger exited the

vehicle.

{¶33} After appellant’s counsel finished cross-examining

Trooper Atwood about his testimony that he smelled the odor of

raw marijuana, the trial court asked additional questions. The

court asked whether the odor of raw marijuana could “linger.”

Atwood explained that it would depend upon “the amount and the *

* * * quality of the marijuana.”

{¶34} After our review, we believe that the foregoing

testimony constitutes competent, credible evidence that the

trooper detected the odor of raw marijuana. We do not find

anything in the record to allow us to second-guess the trial

court’s credibility determination. Ivery at ¶ 28 (rejecting

defendant’s argument that officer’s testimony that he recognized

the odor of marijuana was not credible when trial court credited

officer’s testimony that he could identify the smell of

marijuana “based on his training and experience”); State v.

Gonzales, 6th Dist. No. WD–07–060, 2009–Ohio–168, ¶ 25

(reviewing court would not disturb trial court’s finding that
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officer was qualified and experienced in identifying the odor of

marijuana).

{¶35} Furthermore, the fact that Trooper Atwood did not

discover marijuana during the search of appellant’s vehicle does

not require the conclusion that the trooper lacked probable

cause to search the vehicle based upon the odor of marijuana or

that his testimony lacked credibility. See generally United

States v. Brown, 250 F.3d 739, 2001 WL 274314, *1 (5th

Cir.2001), quoting United States v. Reed, 882 F.2d 147, 149 (5th

Cir.1989) (finding it irrelevant “‘that the substance eventually

discovered in the vehicle was cocaine, and that no marihuana was

ever found’”). Rather, courts that are determining whether

probable cause exists must evaluate “the objective facts known

to the officers at the time of the search,” and may not consider

“events that occurred after the search.” State v. Maddox, 10th

Dist. Franklin No. 19AP-72, 2021-Ohio-586, 168 N.E.3d 613, ¶ 16,

citing Smith v. Thornburg, 136 F.3d 1070, 1075 (6th Cir. 1998);

accord Brown, 250 F.3d 739, *1, quoting Reed, 882 F.2d at 149

(“‘the presence or absence of probable cause to search is not

determined by what the search does or does not ultimately

reveal’”); In re O.N., 8th Dist. Cuyahoga No. 107850, 2019-Ohio-

4159, ¶ 15 (rejecting argument that smell of marijuana cannot
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give rise to probable cause to search vehicle when officers do

not find marijuana during subsequent search); State v. Richmond,

8th Dist. Cuyahoga No. 105036, 2017-Ohio-2860, ¶ 18, quoting

Moore, 90 Ohio St.3d at 50 (observing that Moore does not

require “‘additional factors to corroborate the suspicion of the

presence of marijuana’”); see also State v. Arnold, 2d Dist.

Clark No. 2001 CA 55, 2002-Ohio-1779, *3 (Apr. 12, 2002) (“[t]he

fact that no evidence of burnt marijuana was found in the

vehicle is not determinative as Moore states that no additional

factors other than the smell of the marijuana are needed for

probable cause to conduct the search of a vehicle”).

{¶36} Consequently, we do not agree with appellant that the

trial court erred by overruling his motion to suppress the

evidence discovered during the search of his vehicle.

{¶37} Accordingly, based upon the foregoing reasons, we

overrule appellant’s sole assignment of error and affirm the

trial court’s judgment.

JUDGMENT AFFIRMED.
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JUDGMENT ENTRY

It is ordered that the judgment be affirmed and that
appellee recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this
appeal.
It is ordered that a special mandate issue out of this
Court directing the Jackson County Common Pleas Court to carry
this judgment into execution.
If a stay of execution of sentence and release upon bail
has been previously granted, it is continued for a period of 60
days upon the bail previously posted. The purpose of said stay
is to allow appellant to file with the Ohio Supreme Court an
application for a stay during the pendency of the proceedings in
that court. The stay as herein continued will terminate at the
expiration of the 60-day period.
The stay will also terminate if appellant fails to file a
notice of appeal with the Ohio Supreme Court in the 45-day
period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Ohio Supreme Court. Additionally, if the Ohio Supreme Court
dismisses the appeal prior to the expiration of said 60 days,
the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that
mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Hess, J. & Wilkin, J.: Concur in Judgment & Opinion

For the Court

BY:__________________________
Peter B. Abele, 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.