State v. Peyton

[Cite as State v. Peyton, 2017-Ohio-243.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :
CASE NO CA2015-06-112
Plaintiff-Appellee, :
OPINION
: 1/23/2017
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:

JAMES V. PEYTON, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2013-07-1033

Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Fred Miller, Baden & Jones Building, 246 High Street, Hamilton, Ohio 45011, for defendant-
appellant

M. POWELL, P.J.

{¶ 1} Defendant-appellant, James V. Peyton, appeals his conviction in the Butler

County Court of Common Pleas for possession of marijuana.

{¶ 2} Appellant owns Empire Motors, a car dealership in Middletown, Ohio. In the

spring of 2013, Detective Greg Spanel of the Lebanon Police Department and Detective Dan

Schweitzer of the Warren County Sheriff's Office were both working with the Warren County
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Drug Task Force in an undercover capacity. After a confidential informant ("CI") provided

Detective Spanel with information about appellant, the detective introduced the CI to

Detective Schweitzer.

{¶ 3} On April 11, 2013, Schweitzer and the CI went to Empire Motors where

Schweitzer was introduced to appellant as "Matt." Schweitzer told appellant he was looking

to buy a car. Drugs were not discussed during this introductory meeting.

{¶ 4} After the CI arranged another meeting with appellant, Schweitzer and the CI

returned to Empire Motors on April 25, 2013. At Schweitzer's request, appellant sold him ten

Percocet pills. During the meeting, the CI asked appellant whether "there was any good

smoke around," meaning marijuana. Appellant made a telephone call. A man soon arrived

and sold seven grams of marijuana to Schweitzer. As Schweitzer was leaving Empire

Motors, appellant told Schweitzer he could contact him.

{¶ 5} On May 7, 2013, Schweitzer contacted appellant to purchase 20 Vicodin pills.

The two met at Empire Motors where appellant sold 20 Vicodin pills to Schweitzer. The two

men did not discuss marijuana during this meeting. Rather, they discussed the quantity of

pills appellant could get and where he could get them. Before Schweitzer left, he asked

appellant if he could contact appellant for future pill purchases. Appellant agreed. On May

15, 2013, Schweitzer contacted appellant to purchase 31 Vicodin pills. The two met at

Empire Motors. Schweitzer ended up buying 51 Vicodin pills.

{¶ 6} On May 21, 2013, Schweitzer contacted appellant to purchase 50 Vicodin pills.

The two met at Empire Motors where appellant sold 50 Vicodin pills to Schweitzer. While

there, Schweitzer also bought some moonshine from appellant. As they were discussing

moonshine, appellant asked Schweitzer at what price Schweitzer sold his marijuana.

Schweitzer replied it depended on the quality of the marijuana: $1,200 to $1,300 a pound for

commercial grade marijuana, $3,500 to $4,800 a pound for higher grade marijuana.
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Appellant then asked, "Is that the hydro?" meaning hydroponic marijuana. Subsequently,

appellant told Schweitzer that his stepson, James Smith, a "career guy," might be interested

in Schweitzer's marijuana.

{¶ 7} Later in the conversation, appellant shared with Schweitzer "how he used to

fool with large quantities of marijuana" and how he once "broke down 480 pounds of

marijuana right here" in the office where the two men were sitting: "We moved the desk back,

and got a brook out, we swept the floor, and had the bricks, and we broke them down right

here." Appellant told Schweitzer he had a partner in the business at the time, their marijuana

supplier was from California, and the marijuana would come in on a truck, in a crate box.

{¶ 8} At that point, Schweitzer asked appellant if he was interested in storing 50 to

100 pounds of marijuana at Empire Motors. Appellant replied that his dealership was "hot,"

meaning it was being watched by the police, but that his stepson might be interested in

storing and moving some marijuana. Appellant shared with Schweitzer that he (appellant)

had been dealing for 45 years. Subsequently, Schweitzer mentioned storing marijuana at the

dealership if appellant was interested, told appellant to think about it, and told him he would

pay him a storage fee. As Schweitzer was leaving Empire Motors, appellant approached

Schweitzer's car and informed him he had an additional 120 Vicodin pills for sale.

Schweitzer agreed to buy 20 additional Vicodin pills.

{¶ 9} On May 30, 2013, Schweitzer contacted appellant to purchase 50 Vicodin pills.

During the call, Schweitzer asked appellant if Smith could come to the meeting "so that we

could all discuss future marijuana transactions." Schweitzer later went to Empire Motors

where he purchased 50 Vicodin pills from appellant. During the meeting, appellant

introduced Smith to Schweitzer. In appellant's presence, Schweitzer and Smith discussed

storing marijuana at Smith's residence in exchange for $500-$1,000. During their

conversation, Smith advised Schweitzer that Smith and appellant had talked about
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Schweitzer "in the storage of marijuana."

{¶ 10} On June 10, 2013, Schweitzer went to Empire Motors where he purchased 100

Vicodin pills from appellant. While there, and in appellant's presence, Schweitzer and Smith

discussed marijuana. Schweitzer advised Smith that he was expecting a shipment of

marijuana and asked Smith whether he was interested in buying 20 pounds from the

shipment. The issue of appellant storing marijuana at his dealership was not discussed

during this meeting.

{¶ 11} On June 18, 2013, Schweitzer went to Empire Motors where he bought 50

Vicodin pills from appellant. Schweitzer told appellant that he (Schweitzer) would be

receiving a shipment of marijuana by week's end. Appellant stated he would be willing to

break down the marijuana and agreed to store it at his dealership. Schweitzer told appellant

he intended to "keep two to 300 pounds here at the car lot and two to 300 pounds at

[Smith's]," and that he would pay appellant $2,000 in storage fee. Appellant then took

Schweitzer around the parking lot of the dealership and showed him vehicles where the

marijuana could be stored.

{¶ 12} On June 21, 2013, Schweitzer conducted a "reverse buy" operation.

Schweitzer had previously arranged to meet appellant at Empire Motors that day to break

down 500 pounds of marijuana reportedly shipped from California. Appellant, Schweitzer,

and Smith were to take the marijuana out of its shipping crate, put it into duffle bags, and

then store it. The marijuana was packed in a crate so that it appeared to have been shipped

from California. As was the case in his prior meetings with appellant, Schweitzer was

wearing a wireless transmitter that was being monitored by fellow officers. Schweitzer had

also arranged for about 20 law enforcement officers from six different agencies to surround

Empire Motors and conduct surveillance during the operation. Schweitzer also had search

warrants for Empire Motors and appellant's home.
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{¶ 13} Prior to driving to Empire Motors, Schweitzer sent a text message to appellant

informing him that the shipment of marijuana had arrived, asking appellant if he was ready,

and informing appellant he would be at Empire Motors around 10:00 a.m. Appellant "replied

back okay." Schweitzer transported the marijuana crate in his pick-up truck. The crate

contained several bricks of marijuana as well as four 50-pound black blocks of marijuana.

{¶ 14} Once Schweitzer arrived at Empire Motors, he and appellant unloaded the

marijuana from the truck. Schweitzer unloaded the marijuana bricks from the crate and

handed them to appellant. In turn, appellant put the marijuana bricks into hockey bags

provided by Schweitzer, and then carried the loaded bags into his office. When the two ran

out of hockey bags, appellant provided black trash bags. Appellant also removed three of

the black blocks of marijuana from the pickup truck and stored them in a hatchback parked

on the lot. Schweitzer kept the fourth block, ostensibly to later deliver it in Franklin, Ohio.

{¶ 15} Once in appellant's office, the two men tallied the quantity of marijuana in each

bag. The total tally was written on a notepad which was subsequently recovered from the

front left fender of a vehicle parked in the garage of Empire Motors. Schweitzer asked

appellant where he intended to store the marijuana. Appellant replied he was going to store

it in the attic of the dealership, because "it's the safest place." Subsequently, appellant

hoisted the bags of marijuana, one at a time, into the attic. After Smith arrived at Empire

Motors, appellant assisted in loading the marijuana intended for Smith into Smith's vehicle.

{¶ 16} Schweitzer told appellant that the marijuana would be stored at the dealership

for a couple of days and that he would call appellant when he was ready to pick it up.

Appellant told Schweitzer that if Schweitzer needed to access the marijuana after hours, he

could call Smith who had a key to the premises. Appellant also suggested Schweitzer could

pull in his vehicle, pretend to check the oil or jack the vehicle, and then load the marijuana

from the attic into Schweitzer's car.
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{¶ 17} Schweitzer paid appellant $2,000 in cash for storing the marijuana and left the

dealership. About 15 to 20 seconds later, several law enforcement officers arrived at the

dealership. Appellant and Smith were arrested; the marijuana and the $2,000 were

recovered.

{¶ 18} Appellant was indicted in July 2013 on one count of aggravated drug trafficking

for the Percocet sale, six counts of drug trafficking for the Vicodin sales, and one count of

marijuana possession for the marijuana appellant received and stored on June 21, 2013.

The marijuana possession charge also included several forfeiture specifications. At a jury

trial in January 2015, Detectives Spanel and Schweitzer testified on behalf of the state.

Appellant did not testify or present witnesses on his behalf. At the close of the evidence,

appellant moved the trial court to provide an entrapment instruction to the jury with regard to

the marijuana possession charge. The trial court overruled the motion. On January 9, 2015,

the jury found appellant guilty as charged and he was subsequently sentenced to an

aggregate eight-year prison term.

{¶ 19} Appellant now appeals, raising two assignments of error.

{¶ 20} Assignment of Error No. 1:

{¶ 21} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-

APPELLANT WHEN IT REFUSED TO INSTRUCT THE JURY REGARDING THE DEFENSE

OF ENTRAPMENT.

{¶ 22} Appellant argues the trial court erred when it refused to provide an entrapment

instruction to the jury.

{¶ 23} We note at the outset that appellant did not comply with Crim.R. 30 when he

moved the trial court to instruct the jury regarding entrapment in an oral request prior to

closing arguments. Crim.R. 30(A) provides in pertinent part that "[a]t the close of the

evidence or at such earlier time during the trial as the court reasonably directs, any party may
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file written requests that the court instruct the jury on the law as set forth in the requests."

(Emphasis added.) This court has stated that when a defendant fails to request a jury

instruction in writing as required by Crim.R. 30(A), a trial court does not err in denying his oral

request for such an instruction. State v. Davis, 12th Dist. Madison No. CA2015-05-015,

2016-Ohio-1166, ¶ 36. See State v. Fanning, 1 Ohio St.3d 19 (1982), paragraph two of the

syllabus. At trial, the state did not oppose appellant's requested entrapment instruction on

the ground it did not comply with Crim.R. 30(A), nor does it do so on appeal. However, as

discussed below, even if appellant had requested an entrapment instruction in compliance

with Crim.R. 30(A), we would still find the trial court did not abuse its discretion in denying the

request because the evidence did not support an entrapment instruction.

{¶ 24} Jury instructions "must be given when they are correct, pertinent, and timely

presented." State v. Joy, 74 Ohio St.3d 178, 181 (1995). Jury instructions are matters left to

the sound discretion of the trial court. State v. Gomez, 12th Dist. Butler No. CA2012-07-129,

2013-Ohio-2856, ¶ 7. This court reviews a trial court's decision refusing to provide the jury

with a requested instruction for an abuse of discretion. Id.

{¶ 25} Entrapment is an affirmative defense which a defendant has the burden of

proving by a preponderance of the evidence. R.C. 2901.05(A); Davis, 2016-Ohio-1166 at ¶

36. Entrapment exists "where the criminal design originates with the officials of the

government, and they implant in the mind of an innocent person the disposition to commit the

alleged offense and induce its commission in order to prosecute." State v. Doran, 5 Ohio

St.3d 187 (1983), paragraph one of the syllabus. However, there is no entrapment when

government officials "merely afford opportunities or facilities for the commission of the

offense" to a criminal defendant who was predisposed to commit the offense. Id. at 192;

Davis at ¶ 36. Where a person is ready and willing to break the law, the fact that government

officials provide a means to do so is not entrapment. Davis at ¶ 36. The defendant asserting
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the entrapment defense must adduce evidence supporting his lack of predisposition to

commit the offense. Id.

{¶ 26} A trial court does not err in failing to instruct the jury on an affirmative defense

where the evidence is insufficient to support the instruction. State v. Palmer, 80 Ohio St.3d

543, 564 (1997); Davis, 2016-Ohio-1166 at ¶ 35. In reviewing the record to ascertain the

presence of sufficient evidence to support the giving of a proposed jury instruction, an

appellate court should determine whether the record contains evidence from which

reasonable minds might reach the conclusion sought by the instruction. Id.

{¶ 27} In Doran, the Ohio Supreme Court considered whether Ohio should define

entrapment pursuant to the "subjective" or "objective" test. Explaining the distinction

between the two tests, the court observed that "the subjective test of entrapment focuses

upon the predisposition of the accused to commit an offense whereas the objective or

'hypothetical-person' test focuses upon the degree of inducement utilized by law enforcement

officials and whether an ordinary law-abiding citizen would have been induced to commit an

offense." Doran, 5 Ohio St.3d at 190. In other words, the "subjective" test focus is upon the

subjective aspects of an accused’s predilection to commit an offense and the "objective" test

focus is upon the objective aspects of police conduct to induce an accused to commit an

offense. The supreme court adopted the "subjective" test, finding it more reliable because it

"properly emphasizes the accused's criminal culpability and not the culpability of the police

officer." Id. at 192.

{¶ 28} Appellant argues that an entrapment jury instruction was warranted because it

was Schweitzer who asked appellant to store marijuana, induced appellant to commit the

offense by grooming him over time with increasingly larger pill purchases, and controlled the

time, place, and manner of the transaction as well as the amount of marijuana provided to

appellant. Obviously, the factual basis supporting appellant's claim of error is entirely focused
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upon "the culpability of the police officer." In rejecting the "objective" test of entrapment, the

Ohio Supreme Court necessarily rejected the approach taken by appellant in this assignment

of error.

{¶ 29} Pursuant to the "subjective" test, there was abundant evidence that appellant

was predisposed to commit the offense. The evidence was unequivocal that appellant was

engaged in the illegal drug trade, including marijuana, prior to the June 21, 2013 reverse buy

operation. During their second meeting on April 25, 2013, appellant demonstrated his ready

access to marijuana when, with little notice, he arranged for Schweitzer to purchase

marijuana from a third party. Appellant sold Schweitzer ten Percocet pills at this meeting and

invited Schweitzer to contact him in the future. Appellant sold pills to Schweitzer on six more

occasions prior to June 21, 2013, each time readily accepting payment for the drugs. On one

of those occasions, after selling Schweitzer the pre-arranged quantity of 50 Vicodin pills,

appellant offered to sell Schweitzer 120 more.

{¶ 30} During their meeting on May 21, 2013, Schweitzer and appellant discussed

marijuana. Appellant inquired about the price of Schweitzer's marijuana. Appellant told

Schweitzer that his stepson, Smith, was a "career [marijuana] guy" who may have an interest

in Schweitzer's marijuana. During their conversation, appellant admitted that he "used to fool

with large quantities of marijuana," and, much like the reverse buy that is the subject of this

appeal, once "broke down 480 pounds of marijuana" in his office at Empire Motors.

Appellant boasted that he had been dealing drugs for 45 years. These comments served as

a segue to Schweitzer’s inquiry about storing marijuana at Empire Motors. Appellant

indicated a reluctance to do so, not because he was disinclined, but because the dealership

was "hot." Then, rather than merely demurring and terminating the discussion of storing

marijuana, appellant suggested that his stepson, Smith, might be interested in storing

marijuana for Schweitzer. Appellant subsequently introduced Smith to Schweitzer to facilitate

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the discussion of "future marijuana transactions." Thereafter, appellant was present each

time Schweitzer and Smith discussed storing marijuana.

{¶ 31} On June 18, 2013, after Schweitzer told appellant he was expecting a shipment

of marijuana by week's end, appellant offered to break down and store the marijuana at his

dealership. Demonstrating his competence and ability to store the marijuana, appellant then

took Schweitzer around the parking lot of the dealership and showed him vehicles where the

marijuana could be stored. Two days later, on the day of the reverse buy operation,

Schweitzer sent a text message to appellant informing him he was bringing the marijuana to

the dealership that morning. Appellant did not refuse the delivery, but acknowledged he was

ready. Appellant readily accepted the $2,000 payment for storing the marijuana.

{¶ 32} Appellant does not claim that he was entrapped into selling pills to Schweitzer.

Appellant relies upon the pill transactions only as evidence that Schweitzer was "grooming"

him for the later reverse buy. This assignment of error is restricted to appellant's possession

of the marijuana he stored. In effect, appellant's argument is that, although he was

predisposed to dealing in prescription drugs, he was not predisposed to dealing with

marijuana. However, his admissions concerning his past dealings in large quantities of

marijuana, his involvement in prior conduct much like that involved with the instant

possession of marijuana charge, and his ability to immediately arrange for Schweitzer to

purchase marijuana on April 25, 2013, with just a telephone call, belie his argument.

{¶ 33} In applying the subjective test, the Ohio Supreme Court identified some of the

relevant factors courts should consider:

(1) the accused's previous involvement in criminal activity of the
nature charged, (2) the accused's ready acquiescence to the
inducements offered by the police, (3) the accused's expert
knowledge in the area of the criminal activity charged, (4) the
accused's ready access to contraband, and (5) the accused's
willingness to involve himself in criminal activity.

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Doran, 5 Ohio St.3d at 192.

{¶ 34} Applying those factors to this case, the evidence is uncontroverted that

appellant was actively engaged in illegal drug trafficking, had previously dealt in large

quantities of marijuana, encouraged and readily accepted Schweitzer's business, professed

to have experience and knowledge in preparing for the distribution of large quantities of

marijuana, encouraged Schweitzer to engage in marijuana trafficking with his stepson, Smith,

a "career [marijuana] guy," had ready access to marijuana and prescription drugs, and

displayed a willingness to involve himself in the criminal activity by offering to store the

marijuana for Schweitzer.

{¶ 35} Appellant ignores the foregoing as it applies to the affirmative defense of

entrapment, other than to say, "there are facts the State could argue to the jury in opposition

to the entrapment defense. But that is not sufficient reason to deny the charge altogether."

The evidence of Schweitzer's conduct relied upon by appellant as supporting an entrapment

instruction has little relevance in applying the "subjective" test. Appellant had an affirmative

duty to "adduce evidence supporting his lack of predisposition to commit the offense." Davis,

2016-Ohio-1166 at ¶ 36. Appellant presented no evidence supporting his lack of

predisposition to commit the offense.

{¶ 36} Application of the "subjective" test of entrapment shows that appellant was

ready and willing to break the law and thus, had a predisposition to commit the crime, and

that the state, through Schweitzer, merely afforded opportunities for appellant to do so. The

record contains no evidence from which reasonable minds might reach the conclusion that

appellant was entrapped. Considering the foregoing, appellant was not entitled to a jury

instruction on the affirmative defense of entrapment. The trial court, therefore, did not abuse

its discretion in declining to provide the instruction to the jury.

{¶ 37} Appellant's first assignment of error is overruled.
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{¶ 38} Assignment of Error No. 2:

{¶ 39} APPELLANT'S CONVICTION FOR POSSESSION OF MARIJUANA WAS

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND THERE WAS

INSUFFICIENT EVIDENCE TO PROVE THAT HE HAD POSSESSION OF THE

MARIJUANA.

{¶ 40} Appellant argues his conviction for possession of marijuana is not supported by

sufficient evidence and is against the manifest weight of the evidence. Appellant asserts that

he never exerted control over the marijuana and never had the opportunity to do so because

Schweitzer controlled every aspect of the reverse buy operation and appellant was arrested

immediately after the marijuana was delivered.

{¶ 41} When reviewing the sufficiency of the evidence underlying a criminal conviction,

an appellate court examines the evidence in order to determine whether such evidence, if

believed, would convince the average mind of the defendant's guilt beyond a reasonable

doubt. State v. Bradbury, 12th Dist. Butler No. CA2015-06-111, 2016-Ohio-5091, ¶ 16. The

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

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

proven beyond a reasonable doubt." State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph

two of the syllabus.

{¶ 42} A manifest weight of the evidence challenge, on the other hand, examines the

"inclination of the greater amount of credible evidence, offered at a trial, to support one side

of the issue rather than the other." Bradbury at ¶ 17. To determine whether a conviction is

against the manifest weight of the evidence, the reviewing court must look at the entire

record, weigh the evidence and all reasonable inferences, consider the credibility of the

witnesses, and determine whether in resolving the conflicts in the evidence, the trier of fact

clearly lost its way and created such a manifest miscarriage of justice that the conviction
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must be reversed and a new trial ordered. Id. An appellate court will overturn a conviction

due to the manifest weight of the evidence only in extraordinary circumstances when the

evidence presented at trial weighs heavily in favor of acquittal. Id. at ¶ 18. A "determination

that a conviction is supported by the manifest weight of the evidence will also be dispositive

of the issue of sufficiency." State v. Jones, 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-

150, ¶ 19.

{¶ 43} Appellant was convicted of possession of marijuana in violation of R.C.

2925.11(A), which provides that "[n]o person shall knowingly obtain, possess, or use a

controlled substance[.]" Possession means "having control over a thing or substance, but

may not be inferred solely from mere access to the thing or substance through ownership or

occupation of the premises upon which the thing or substance is found." R.C. 2925.01(K).

{¶ 44} Possession may be constructive or actual. State v. Williams, 12th Dist. Butler

No. CA2014-09-180, 2015-Ohio-2010, ¶ 14. "An accused has 'constructive possession' of an

item when the accused is conscious of the item's presence and is able to exercise dominion

and control over it, even if the item is not within the accused's immediate physical

possession." State v. Jester, 12th Dist. Butler No. CA2010-10-264, 2012-Ohio-544, ¶ 25. A

person may knowingly possess or control property belonging to another; the state need not

establish ownership to prove constructive possession. Williams at ¶ 14. In addition, two or

more persons may have possession of an object together if they have the ability to control it,

exclusive of others. State v. Weckner, 12th Dist. Brown No. CA2001-06-009, 2002 WL

371948, *2 (Mar. 11, 2002).

{¶ 45} Constructive possession may be proven by circumstantial evidence alone.

Williams at ¶ 15. Absent a defendant's admission, the surrounding facts and circumstances,

including the defendant's actions, are evidence that the trier of fact can consider in

determining whether the defendant had constructive possession. Id. The discovery of
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readily accessible drugs in close proximity to the accused constitutes circumstantial evidence

that the accused was in constructive possession of the drugs. Id.

{¶ 46} Upon a thorough review of the record, we find the jury did not lose its way in

concluding appellant had possession of the marijuana during the reverse buy operation. The

record shows that appellant had dominion and control over the dealership where the

marijuana was stored and concealed, and that he was conscious of the marijuana. Appellant

removed the marijuana from Schweitzer's truck by loading the marijuana bricks into individual

hockey bags and trash bags, by concealing the bags into the attic of his dealership, as it was

"the safest place," and by unloading three blocks of marijuana from the truck and concealing

them into a hatchback parked on his lot. Appellant accepted the $2,000 payment in

consideration for storing the marijuana, thus establishing his possession. Thereafter,

Schweitzer left the dealership; 15 to 20 seconds later, law enforcement officers converged on

the scene.

{¶ 47} These facts, taken together, show that appellant took delivery of the marijuana

and knowingly exercised dominion and control over it, if only for a short time. See State v.

Reyes, 6th Dist. Wood No. WD-02-069, 2004-Ohio-2217; Williams, 2015-Ohio-2010. The

crucial issue is not whether the accused had actual physical contact with the article

concerned, but whether the accused was capable of exercising dominion and control over it.

State v. Bowerman, 9th Dist. Medina No. 13CA0059-M, 2014-Ohio-4264, ¶ 7.

{¶ 48} In light of the foregoing, we find that appellant's conviction for marijuana

possession is not against the manifest weight of the evidence. Our determination that

appellant's conviction is supported by the weight of the evidence is also dispositive of the

issue of sufficiency. Jones, 2013-Ohio-150 at ¶ 19.

{¶ 49} Appellant's second assignment of error is overruled.

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{¶ 50} Judgment affirmed.

HENDRICKSON and PIPER, JJ., concur.

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