[Cite as State v. Peeks,
2021-Ohio-3045.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellant, : No. 20AP-191
(C.P.C. No. 18CR-1387)
v. :
(REGULAR CALENDAR)
Halbert Peeks, :
Defendant-Appellee. :
D E C I S I O N
Rendered on September 2, 2021
On brief: [G. Gary Tyack], Prosecuting Attorney, and
Michael P. Walton, for appellant. Argued: Michael P.
Walton.
On brief: Jeremy Dodgion, for appellee. Argued: Jeremy
Dodgion.
APPEAL from the Franklin County Court of Common Pleas
BROGAN, J.
{¶ 1} Defendant-appellee, Halbert Peeks, was charged with two first-degree
felonies of possessing and trafficking in cocaine which equaled or exceeded 100 grams.
{¶ 2} Peeks moved to suppress drugs discovered by police after they stopped his
vehicle and patted him down outside the vehicle.
{¶ 3} At the hearing, State of Ohio, plaintiff-appellant, presented the testimony of
Dustin Willis, a police officer with the city of Whitehall. Willis testified he was on patrol
duty at approximately 2:00 a.m. on October 12, 2017, when he observed Peeks' vehicle. He
testified as follows:
I was traveling north on Robinwood Avenue. As I was traveling
north, I could see East Broad Street. I observed a white Impala
traveling east on East Broad Street. As it passed through the
No. 20AP-191 2
intersection and continued eastbound, I visually estimated a
speed that was greater than the posted speed limit of 35 miles
per hour.
At which point I turned east on East Broad Street, and I
observed a white Impala passing a vehicle. The vehicle that
was being passed was in the center through lane, so the white
Impala was in the curb lane. After completing passing the
vehicle, he returned to the center through lane where I
observed his vehicle weaving in its lane of travel and going left
and right of the marked lane lines.
(Mar. 20, 2019 Tr. at 14-15.)
{¶ 4} Willis testified he was 900-1000 feet behind Peeks' vehicle when he observed
the vehicle going left and right of the marked lane lines, and this was after Peeks' vehicle
passed the vehicle in front of him. Willis testified these violations would have occurred
directly before the video and maybe during the video as well.
{¶ 5} Willis testified he activated his lights at East Broad Street and Yearling Road.
Willis described what he observed as he caught up with Peeks' vehicle at the intersection:
As I was catching up to the defendant, I noticed the signal for
East Broad Street and Yearling Road turned to red. He came
to a very abrupt stop. From what it appeared to me, he almost
rear-ended the vehicle in front of him.
As I approached, the signal then changed to green. The vehicle
did not immediately go. It was a few seconds, then it
accelerated rapidly and veered to the left, at which point I
activated my lights to initiate the traffic stop.
Q. What happened after you activated your lights?
A. The defendant turned his turn signal on, but did not stop.
He continued driving, did get in the curb lane. I activated my
siren several times, but we continued driving eastbound.
Q. Let me back up. When you arrived at the intersection, which
lane was the defendant's vehicle in?
A. The defendant was in the center through lane.
Q. As you enter and go through the intersection when the light
changes and you hit your lights, which lane is he in?
A. He changed to the curb lane.
No. 20AP-191 3
Q. Did he do that before or after you activated your lights on
your cruiser?
A. That was after I activated my lights.
Q. What did you observe about the length of time that it took
him to bring his vehicle to a stop?
A. It was longer than normal.
Q. And describe that. What do you mean by "longer than
normal"? What do you base that on?
A. If I base it on my experience of making traffic stops with
each and every day that I'm on patrol, in this situation it took
the defendant much longer than any normal traffic stop would
have taken for the defendant to pull over.
Q. I'm not going to ask you to estimate how long it took,
because we can see that once we watch the video, but in your
training and experience, is there anything significant about a
vehicle that takes its time coming to a stop when you're making
a traffic stop?
A. There's usually something occurring inside the vehicle. In
my training and experience, it's concealing narcotics,
concealing contraband or a weapon, possibly arming
themselves.
Q. This occurred at night, right? It was late or early morning, I
guess?
A. Yes.
Q. Were you able to see in the rear window of his window at all
during the time that you were trying to get him to pull over?
A. I could not.
Q. Okay. So you don't have any visual observation of him doing
anything in particular, though?
A. No.
(Tr. at 22-25.)
{¶ 6} Willis testified that Peeks eventually stopped his vehicle and Willis made
contact with him. Willis stated he received information about the registration on Peeks'
vehicle just before or after he made the stop. Willis testified he activated his lights and, after
No. 20AP-191 4
he informed his sergeant he was making the stop, his sergeant informed him that the
registered owner had a drug offense suspension on his license (not a current one). Willis
testified as follows:
A. When I made contact at the vehicle, the defendant was
staring straightforward. I asked him if he was intoxicated,
because at that point, I could already smell or detect the odor
of an alcoholic beverage. During my initial questions, he
responded slowly and with slurred speech. And I was able to
see that his eyes appeared to be glassy.
When I asked for his driver's license, his motor skills appeared
to be impaired. There were clumsy movements, but also rigid.
Q. Describe that or give us a little more detail about that. What
was significant to you about that?
A. It was significant that he would not look at me. In my
training and experience, that typically indicates deception. And
based on his motor skills, it appeared that he was impaired,
coupled with the odor of alcoholic beverage, but also his
muscles appeared to be tensed.
Q. How would you describe his appearance? He wasn't relaxed,
obviously?
A. No.
Q. Did he appear nervous? Did he appear worried? What came
across to you?
A. He appeared more nervous than the normal citizen during a
traffic stop.
Q. And what transpired after that, after your initial contact?
A. I asked him to exit the vehicle.
Q. And what was your reasoning? Why did you want him to exit
the vehicle at that point?
A. I was concerned that there was a weapon either on him or in
the car or some other contraband due to the length of time that
it took him to stop. I also did intend to do field sobriety tests,
so I was going to have him exit the vehicle so I could conduct
an investigation.
No. 20AP-191 5
Q. Now, at some point, did you have any kind of backup or any
other officers arrive on the scene?
A. Yes.
Q. Who else came on the scene?
A. Officer Biggs, Officer Adams and Sergeant Wilder.
Q. And were they -- well, describe how things went as you were
trying to get him out of the vehicle. What did you notice?
A. I noticed that he appeared to be very tense.
Q. Go ahead. I'm sorry.
A. So I maintained control at least on his arm.
Q. You had a hand on him?
A. Yes.
Q. Okay. Did you pat him down for anything?
A. I did. I conducted a patdown for weapons.
Q. And what did you observe as a result of your patdown?
A. During the patdown, I felt what appeared to be a sock with a
hard rock-like substance in it in the front of his waistband.
Q. And just walk us through what happened then.
A. I believed it was drugs at that point. So I attempted to
remove it from his pants, but I was not successful. At that point,
I placed him in handcuffs and then I was able to remove it and
identify it as drugs.
THE COURT: What made you think it was drugs?
[A.] Due to my knowledge, training and experience.
(Tr. at 27-30.)
{¶ 7} Willis testified what it felt like in light of his experience was a huge chunk of
cocaine. He stated the hard rock was inside a sock which he removed and it appeared to be
crack cocaine. Willis stated as they were walking to his cruiser, another bag of cocaine fell
No. 20AP-191 6
out of Peeks' pants. Willis said he then arrested Peeks and transported him to the police
department. Willis stated he did not complete any field sobriety tests on Peeks because of
the nature of the arrest on more serious charges. Willis testified he discovers crack cocaine
in about 20 stops a year. The court asked Willis why he decided to frisk Peeks. Willis stated
it was Peeks' behavior, the (previous) drug-related license suspension, his experience that
there are usually weapons involved in trafficking drugs or possession of drugs, and the delay
of Peeks in stopping his vehicle.
{¶ 8} The video from Willis' cruiser was then played for the court. The court asked
Willis if the video depicted Peeks' vehicle veer to the right and Willis admitted the video did
not show that. Willis also testified the initial violations he observed of Peeks' driving
occurred before the video kicked on.
{¶ 9} On cross-examination, Willis stated he had previously been assigned on a
temporary basis to the narcotics bureau of the Whitehall police department. Willis admitted
the alleged speeding was not depicted on the cruiser video. Willis admitted that the video
did not depict Peeks' vehicle cross over the white line and does not show Peeks abruptly
stop or almost collide with the vehicle in front of him.
{¶ 10} Willis did not remember whether he received the prior suspension
information before he initiated his cruiser lights.
{¶ 11} Willis was asked whether Peeks could have easily thought initially that Willis
was trying to get around him when he "lit him up" in the left-hand lane. (Tr. at 57.) Willis
answered "[i]nitially." (Tr. at 57.) Willis testified as follows under cross-examination:
Q. Because you were maneuvering to get behind my client,
correct?
A. Correct.
Q. In fact, there was a car directly behind the Impala, and you
had to kind of maneuver in between the two, correct?
A. Correct.
Q. So you immediately get behind my client and flip on your
lights because there's a car in front of him, too, correct?
A. Correct.
No. 20AP-191 7
Q. You're making a big deal because of the fact that he was
delayed in pulling over when you had to hit your siren a couple
of times, right?
A. Yes.
Q. But he could have easily thought because you immediately
got in the left-hand lane that you were attempting to get around
him to pursue somebody in front of him. That's a possible and
honest interpretation?
A. I don't know what he's thinking.
Q. Correct. You've assumed and you assumed in your report
that he was trying to avoid pulling over?
(Tr. at 58-59.)
{¶ 12} The court intervened and suggested that defense counsel rephrase the
question. The court noted that his view of the video indicated that after Willis "li[t] him up"
and hit his siren a couple of times it took Peeks about 35 seconds to pull over. (Tr. at 59.)
{¶ 13} Willis then admitted it was possible that Peeks thought Willis was trying to
get him to pull over to maneuver around him. He admitted that once pulled over, Peeks was
able to respond precisely to the questions asked of him. He admitted Peeks provided his
driver's license immediately on request. He admitted that within 30 seconds of stopping
Peeks' vehicle he got Peeks out of his vehicle. Willis testified that Peeks was tense and
clumsy before he got out of his vehicle.
{¶ 14} On cross-examination, Willis stated he was about 500 feet on Robinwood
Avenue from Broad Street when he estimated that Peeks was traveling over the speed limit.
He admitted he had no idea whether Peeks was in fact going over the speed limit. He also
admitted he did not see Peeks do any furtive movements when he was driving behind Peeks'
vehicle or after he stopped him. Willis admitted he grabbed Peeks' hand after he asked
Peeks to place his hands out of the window until he had him secured in his cruiser. Willis
further testified as follows:
Q. Okay. But again, you had him exit this vehicle with no
observations of furtive movements, no indication that he's got
a weapon. He denied drinking. There is no smell of drugs,
marijuana, anything like that, right?
A. Not that I recall.
No. 20AP-191 8
Q. You didn't indicate that in the police report, wouldn't you
agree?
A. Yes.
Q. There's no sign of drug paraphernalia. There's no pipes.
There's no roaches. There's no powder residue anywhere on
him, correct?
A. Correct.
(Tr. at 75.)
{¶ 15} Willis testified he held Peeks' hand behind his back and walked him
backwards to the trunk of Peeks' vehicle and immediately decided to do a pat down. During
the pat down, Willis felt what appeared to be multiple chunks of a hard, rock-like substance
in a sock which he found to be crack cocaine. Willis then testified he placed Peeks under
arrest for possession of drugs.
{¶ 16} At the conclusion of the suppression hearing, the trial court granted Peeks'
motion to suppress and the state appealed. This court remanded the matter to the trial court
to make findings of fact and conclusions of law requested.
{¶ 17} The trial court made the following findings of facts requested:
1. The evidence does not support erratic driving of the
Defendant other than weaving once within his lane. The
Court discredits any other testimony concerning alleged
other erratic driving of the Defendant.
2. The weaving did provide a basis to pull the Defendant over
for a traffic violation.
3. The Defendant pulled over after being signaled to by the
Officer within twenty-eight to thirty (28-30) seconds. This
time to pull over was not unreasonable. The Defendant
responded to the signal to pull over and pulled over safely.
The Court discredits any testimony to the contrary.
4. The Defendant was driving on a public street in Whitehall,
Ohio, which is not known as a high drug crime "street."
5. The Defendant denied drinking and the Officer claims the
Defendant smelled of alcohol. The Court does credit the
Officer's testimony as to the smell of alcohol.
No. 20AP-191 9
6. The Defendant responded appropriately to the Officer's
request to provide his license and insurance. The Court
discredits any testimony to the contrary.
7. The Defendant was not acting "nervous, intense or clumsy"
and the Court discredits testimony to the contrary.
8. The Defendant's speech was not slurred and the Court
discredits testimony to the contrary.
9. The Defendant's alleged failure to make eye contact was
insignificant and occurred only for a matter of seconds and
the Court discredits any testimony to the contrary. The
video shows the interaction between the officer and the
Defendant.
10. The Defendant did not exhibit any impaired motor skills
and the Court discredits any testimony to the contrary.
11. The Defendant was not slow to exit the vehicle and was not
given the chance to exit the vehicle but rather was pulled
from the vehicle by the Officer. The Court discredits any
testimony to the contrary.
12. The Officer testified the Defendant had "glassy" eyes and
the Court credits this testimony but finds it insignificant
because no testimony exists that "glassy" eyes are solely
indicative of intoxication or impairment. The Officer has no
idea how the Defendant's eyes normally appear.
13. The Defendant made no furtive movement nor did the
Defendant do anything to lead the Officer to believe the
Defendant was armed or dangerous. The Court discredits
any testimony to the contrary.
14. The Defendant was under arrest and not free to leave when
the Officer removed the Defendant from the car. (TR. 71)
Thus, all information the Officer had up to that point in time
would have to establish probable cause, if probable cause
existed, for the arrest.
15. The Defendant was not asked to perform any field sobriety
tests and was not cited for driving while impaired and was
not charged with any other traffic infraction.
16. Prior to approaching the vehicle, the Officer knew the
registered owner of the vehicle had an inactive driver's
license suspension for some unknown "drug" offense. The
No. 20AP-191 10
Court finds this insignificant in that it was old and not
indicative years later that the Defendant might be in
possession of drugs on the night of this traffic stop.
Moreover, the Officer, at the time of approaching the
vehicle and pulling the Defendant out, was unaware of
whether the driver, the Defendant, was the registered
owner of the vehicle who was the person who had the
previous old "drug" suspension. (TR. 70, 85-86)
17. In summary, the Court finds that the Officer smelled an
odor of alcohol on the Defendant, the Defendant had
"glassy" eyes, and that he failed to make eye contact for a
few seconds. The Court finds the Defendant did weave once
in his lane. The Court discredits all other testimony
regarding the Defendant's alleged impairment and alleged
erratic driving.
The Court balances the findings that the Defendant had an
odor of alcohol, "glassy" eyes, and weaved once within his
lane with the following findings indicating the Defendant
was not impaired and that probable cause did not exist to
arrest him for O.V.I.
1. The Defendant's alleged erratic driving was a single
instance of weaving within his lane of travel (TR. 13, 55)
2. The Defendant immediately produced his valid license
upon request of the Officer. (TR. 63)
3. The Defendant did not stagger, stumble, fall over or
otherwise indicate his motor skills were impaired. (TR. 65)
4. The Defendant made no furtive movements inside the
vehicle. (TR. 69-70 lines 1-6)
5. The Defendant obeyed the Officer's instructions once the
Officer was at the window of the Defendant's car. (TR. 70)
6. The Defendant was not belligerent and "gave the Officer no
problems." (TR. 70)
7. There was no smell of marijuana or any proof of drug usage.
(TR. 75)
8. When the Officer pulled the Defendant over, the Defendant
signaled a lane change and safely pulled over. (TR. 60)
No. 20AP-191 11
(Mar. 26, 2020 Jgmt. at 1-4.) The trial court then made the following conclusions of law in
suppressing the drugs found on Peeks at the time of his arrest:
1. The Defendant's minor weaving offense gave the Officer
probable cause to pull the Defendant over for this violation.
2. The other signs credited by the Court odor of alcohol,
"glassy" eyes, and seconds of no eye contact gave the Officer
reasonable suspicion to order the Defendant out of the
vehicle to investigate further for O.V.I. and to request that
the Defendant perform field sobriety tests. The Defendant
did not exhibit any other behavior of impairment that
would provide probable cause to arrest the Defendant for
driving while impaired.
3. The Officer did not perform field tests and arrested the
Defendant immediately for O.V.I. when he removed the
Defendant from the car. The reasonable suspicion existing
to request that the Defendant perform field tests did not
permit the Officer to frisk or search the Defendant. The
Defendant had done nothing to indicate he was armed or
dangerous.
4. Finally, in balancing the facts indicating the Defendant was
not impaired with the Court's other findings, the totality of
the circumstances establish the Officer lacked probable
cause to arrest the Defendant for O.V.I. Thus, the search of
the Defendant was not a search incident to arrest. The
Prosecutor failed to establish by a preponderance of the
evidence that either of the two exceptions to the warrant
requirement and thus, the search of the Defendant was
unlawful and violated the Fourth Amendment.
(Footnote omitted.) (Mar. 26, 2020 Jgmt. at 5-6.)
{¶ 18} Appellate review of a ruling on a motion to suppress presents a mixed
question of fact and law. State v. Burnside, 100 Ohio St.3d 152,
2003-Ohio-5372, ¶ 8. An
appellate court must accept the trial court's findings of fact if they are supported by
competent, credible evidence. See State v. Fanning,
1 Ohio St.3d 19, 20 (1982). The
appellate court must decide questions of law de novo, without deference to the trial court's
legal conclusions. Burnside at ¶ 8.
{¶ 19} The state's first assignment of error is that the trial court erred when it failed
to account for the totality of the circumstances established by the evidence in deciding
whether there was probable cause to arrest and reasonable suspicion to conduct a pat-down
No. 20AP-191 12
search. The state's third assignment is identical to its first. In its second assignment of error,
the state contends the trial court erred when it required evidence of impairment to support
probable cause for driving while impaired. In the last assignment, the state argues the trial
court erred in suppressing the evidence without making a finding that there was a culpable
violation of the Fourth Amendment.
{¶ 20} The "stop and frisk" exception to the warrant requirement of the Fourth
Amendment was created by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1
(1968).
{¶ 21} In Terry, police observed that Terry and his two companions appeared to be
casing a business to commit an armed robbery. A police officer approached the men and
asked for their names. When the men only gave a mumbled response, the officer grabbed
Terry, spun him around, and patted down his outer clothing, revealing a revolver. The
officer patted down the other men and found a second weapon. The officers arrested the
men and charged them with carrying concealed weapons. In upholding the officer's actions,
the court provided detailed guidance regarding police citizen street encounters. Chief
Justice Warren wrote on behalf of the court:
We merely hold today that where a police officer observes
unusual conduct which leads him reasonably to conclude in
light of his experience that criminal activity may be afoot and
that the persons with whom he is dealing may be armed and
presently dangerous, where in the course of investigating this
behavior he identifies himself as a policeman and makes
reasonable inquiries, and where nothing in the initial stages of
the encounter serves to dispel his reasonable fear for his own
or others' safety, he is entitled for the protection of himself and
others in the area to conduct a carefully limited search of the
outer clothing of such persons in an attempt to discover
weapons which might be used to assault him. Such a search is
a reasonable search under the Fourth Amendment, and any
weapons seized may properly be introduced in evidence against
the person from whom they were taken.
(Emphasis added.) Terry at 30-31.
{¶ 22} The Supreme Court of Ohio has reiterated that a frisk for weapons must be
supported by articulable facts and circumstances giving rise to reasonable fear for the
officer's safety. State v. Evans, 67 Ohio St.3d 405, 408 (1993), citing
Terry at 21-24.
No. 20AP-191 13
{¶ 23} There was no basis for Willis to pat down Peeks' outer clothing which revealed
the presence of the crack cocaine. Willis testified he did not see Peeks make any furtive
movements before he stopped his vehicle or after he stopped him. Willis was asked by
defense counsel whether in his personal encounter with Peeks at the vehicle he saw any
indication that Peeks had a weapon. Willis responded "[n]ot that I recall." (Tr. at 75.) Willis
testified that as soon as he had Peeks out of his vehicle and at the rear of the vehicle, he
immediately decided to do a pat down. In his findings of fact, the trial judge specifically
found from viewing the video that Peeks made no further movement nor did he do anything
to lead Willis to believe he was armed and dangerous. The court discredited testimony to
the contrary. The trial court found Peeks was not belligerent and "gave the officer no
problems." (Conclusions of Law 6, citing Tr. at 70.) Lastly, the trial judge noted that Peeks
was driving on a street not known as a high crime "street." (Findings of Fact 4.) The trial
judge in his conclusions of law found that the reasonable suspicion existing to request that
Peeks perform field sobriety tests did not permit Willis to frisk or search him. The court
stated Peeks had done nothing to indicate he was armed or dangerous.
{¶ 24} Peeks was not arrested for driving while being impaired because the evidence
did not support probable cause to do so. No field sobriety tests were performed because
Willis found the drugs and decided to arrest Peeks for the drug charge only. The state's first
three assignments of error are accordingly overruled.
{¶ 25} In the fourth assignment, the state contends that Officer Willis acted in good
faith in conducting the pat-down search of Peeks. The state argues the United States
Supreme Court recognized the good-faith exception in warrantless cases. The state cites
Illinois v. Krull, 480 U.S. 340 (1987), in support of that proposition. However, in that case,
the Supreme Court held that the exclusionary rule did not apply to evidence obtained by
police who acted in objectively reasonable reliance on a "statute" authorizing warrantless
administrative searches but which statute was subsequently found to violate the Fourth
Amendment.
Id. at 360.
{¶ 26} In State v. Thomas, 10th Dist. No. 14AP-185, 2015-Ohio-1778, this court
distinguishes the good-faith exception recognized in Herring v. United States,
555 U.S. 135
(2009), where the mistake was made by a county clerk that a warrant existed for the
defendant's arrest. Judge Brown wrote:
As noted by one federal court, however, "[t]he Supreme Court
has never applied the good faith exception to excuse an officer
No. 20AP-191 14
who was negligent himself, and whose negligence directly led
to the violation of the defendant's constitutional rights." United
States v. Camou, 773 F.3d 932, 945 (9th Cir.2014). Further, as
one commentator has observed, "the prevailing view of the
lower courts is that a 'good faith' exception to the exclusionary
rule does not apply in situations in which a police officer relies
upon his own judgment to conduct a warrantless search or
arrest." (Emphasis sic.) 2-11 Criminal Constitutional Law,
Section 22.02(1)(d)(iv) (2014). In this respect, "[w]here there
is no outside authority on which the officer reasonably
relied, the principal rationale relied upon by the Supreme
Court in [United States v. Leon, 468 U.S. 897 (1984)] and its
progeny—that it would serve no deterrent purpose to punish
the officer, acting in good faith, for the error of the magistrate,
the legislature, or by a negligent mistake by a court or police
employee—is not present." Id. Therefore, "evidence obtained
during a warrantless search by a police officer must be excluded
from the prosecution's case-in-chief when the search
subsequently is held unreasonable under the Fourth
Amendment, even though the officer acted with the objectively
reasonable belief that the search was constitutionally valid." Id.
Id. at ¶ 45.
{¶ 27} The state's citation to the recent Supreme Court of Ohio decision in State v.
Dibble, 159 Ohio St.3d 322,
2020-Ohio-546, is not helpful to its position. In that case, like
in others before it, police relied on a warrant to conduct a search. The issue before the
Dibble court was whether that reliance was made in good faith and, more specifically,
whether a court may consider evidence beyond the four corners of a search warrant affidavit
in making that determination. Considering this case involves a warrantless search, Dibble
is distinguishable and does not demand reversal based on the good-faith exception here.
{¶ 28} The Ninth District Court of Appeals refused to apply the good-faith exception
where police mistakenly entered the defendant's apartment. See State v. Simon, 119 Ohio
App.3d 484 (9th Dist.1997).
{¶ 29} In State v. Dickman, 10th Dist. No. 14AP-597, 2015-Ohio-1915, this court
refused to apply the good-faith exception to evidence recovered after an illegal arrest.
Judge Brunner cited the words of Justice Stewart in Beck v. Ohio,
379 U.S. 89 (1964). "If
subjective good faith created an exception to the exclusionary rule, enforcement of the
Fourth Amendment for people to be ' "secure in their persons, houses, papers, and effects," '
would [only] be at the discretion of the police." Dickman at ¶ 27, quoting
Beck at 97, quoting
No. 20AP-191 15
Fourth Amendment to the U.S. Constitution. The state's fourth assignment of error is
likewise overruled.
{¶ 30} Accordingly, the state's four assignments of error are overruled, and the
judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
BROWN and LUPER SCHUSTER, JJ., concur.
BROGAN, J., retired, of the Second Appellate District,
assigned to active duty under authority of the Ohio
Constitution, Article IV, Section 6(C).
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