[Cite as State v. Smith,
2013-Ohio-2627.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
WASHINGTON COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 12CA9
:
vs. :
: DECISION AND JUDGMENT
GERALD A. SMITH, : ENTRY
:
Defendant-Appellant. : Released: 06/07/13
_____________________________________________________________
APPEARANCES:
George J. Cosenza, Parkersburg, West Virginia, for Appellant.
James E. Schneider, Washington County Prosecutor, and Kevin A. Rings,
Washington County Assistant Prosecuting Attorney, Marietta, Ohio, for
Appellee.
_____________________________________________________________
McFarland, P.J.
{¶1} Gerald A. Smith appeals his conviction in the Washington
County Court of Common Pleas after a jury found him guilty of one count of
aggravated murder, two counts of aggravated burglary, two counts of
aggravated robbery, grand theft of a firearm, grand theft of a motor vehicle,
grand theft from an elderly person, and tampering with evidence. On appeal,
Smith contends that (1) he was denied effective assistance of counsel, and
(2) the trial court erred by denying his Rule 29 motion to dismiss the charge
of tampering with evidence. Upon review, we find Appellant was not
Washington App. No. 12CA9 2
denied effective assistance of counsel. We further find the trial transcript
contains evidence from which any rational trier of fact could have found the
essential elements of tampering with evidence proven beyond a reasonable
doubt. As such the trial court did not err in failing to grant the Crim.R.29
motion to dismiss. Accordingly, we overrule both assignments of error and
affirm the judgment of the trial court.
FACTS
{¶2} Homer Rogers, age 66, was murdered in his home on Burnett
Road in Cutler, Ohio, apparently while he slept. On the morning of June 19,
2010, he was found on a living room couch, covered by a blanket, with a
knife wound to the right side of his neck. At the time of his death, Rogersâ
daughter Cynthia Lynn Rogers (hereinafter âLynnâ) and her children also
resided in the home on Burnett Road. Lynn had been separated from her
husband, Gerald Smith, Appellant herein, for several weeks. Appellant was
living in the marital home on Kenny Road, approximately 2-3 miles from the
Rogersâ home. Appellant and his wife had been married approximately 20
years and had a violent history.
{¶3} Soon after decedentâs body was discovered, Appellant became
the prime suspect in the murder investigation. That same day, decedentâs
red pickup truck was found in Athens County at the home of Allen Shane
Washington App. No. 12CA9 3
Lucas, Appellantâs cousin and close friend. A knife with a reddish- brown
substance which appeared to be blood on the blade was found in the center
console of the red truck. Also on June 19th, Athens County 911 received a
phone call from Shane Lucas saying Appellant was with him at Strouds Run
State Park in Athens County, and Appellant had confessed to killing Homer
Rogers. Later, on June 19th, Appellant was tased and apprehended at
Stroudâs Run State Park.
{¶4} Appellant was indicted in July 2010 for the aggravated murder
of Homer Rogers; two counts of aggravated burglary; two counts of
aggravated robbery; grand theft of a firearm; grand theft of a motor vehicle;
grand theft from an elderly person, and tampering with evidence. Appellant
entered pleas of not guilty by reason of insanity. In September 2010,
Appellant was found not competent to stand trial, not capable of
understanding the nature and severity of charges against him, and not
capable of assisting his attorney due to his severe mental illness. In March
2011, Appellant was found competent to stand trial. In a status report
regarding competency restoration pursuant to R.C. 2945.38(F), Dr. Dennish
M. Eshbaugh, PhD, noted hospital records revealed Appellant had been
considered to be malingering symptoms of mental illness and memory
deficits. Appellant proceeded to trial on November 28, 2011.
Washington App. No. 12CA9 4
{¶5} At trial, the Stateâs first witness was Lynn Rogers. She testified
on June 18, 2010, her son Cody Smith informed her Appellant was calling
her fatherâs house repeatedly. Cody said âPapâ [Homer Rogers] was getting
upset and was going to call the law and have Appellant arrested if the calls
didnât stop. Ms. Rogers testified she then called Appellant, sometime
between 11:30 and 12:00 p.m., and told him to stop calling. During the
course of that conversation, Lynn said to Appellant: âIâm not coming home.
Iâm done. I did it for 20 years. Our kids are grown and they can take care of
themselves.â Appellant then asked her where she was and who she was
with. Lynn testified she responded to the effect it was ânone of his fucking
business where I was at and it wasnât none of his business who I was with.â
She then hung up the phone. Lynn stayed with a friend, Wayne McClain,
that evening and did not return to her fatherâs house until 7:30 a.m. on June
19th. Her fatherâs red pickup truck was not there.
{¶6} Lynn Rogers also testified when she returned home, she took a
shower and proceeded to prepare a Fatherâs Day dinner for her father. Her
father appeared to be asleep on the living room couch. Cody Smith was
sleeping on a loveseat in the same room. Jessica Trus, Lynnâs
granddaughter, was sleeping on the floor in front of the television. Lynn
also noticed her dog Bubba was in the house. She was surprised to see the
Washington App. No. 12CA9 5
dog because she had not seen him since she left her husband in April. Lynn
and Jessica proceeded to take the dog back to Appellantâs trailer, but
dropped him off some distance from the trailer so Appellant would not see
her. When she passed the trailer, she noticed her fatherâs car trailer sitting in
the driveway.
{¶7} Lynn and Jessica returned home. Lynn began working in the
kitchen when her daughter Tana Rogers told her to âgo check on Pap.â
When Lynn spoke to him and touched his foot, her father did not move and
he was not breathing. Lynn testified she pulled his blanket down and blood
was everywhere. She called 911 around 9:30 a.m.
{¶8} At trial, Lynn also described her ârockyâ marriage to Appellant.
She testified she stayed with him for the sake of the children and âso he
wouldnât kill my dad.â She testified he consumed alcohol heavily over the
years. Lynn further testified to damaging statements allegedly made by
Appellant. These statements describing threats and abuse were not
provided in discovery nor objected to at trial. Essentially, Rogers testified
during the course of their approximately 20 years of marriage, Appellant on
various occasions shot at her; kicked, punched, bit, and slapped her; knocked
her to the ground; and pulled her by her hair. She testified the abuse began
in 1989. She further testified she left Appellant approximately 15 times over
Washington App. No. 12CA9 6
the years, but always returned because he threatened her or her family. She
testified he said âSomebody in your familyâs going to fucking die.â During
her testimony, Lynn Rogers identified Stateâs Exhibit B, a single knife;
Stateâs Exhibit C, a 22 revolver her father kept on the living room wall; and
Stateâs Exhibit D, two additional knives. Lynn Rogers testified Appellant
and she bought the three knives in Athens County three months prior.
{¶9} Kimberly Schaefer, Homer Rogersâ other daughter, also
testified at trial. Ms. Schaefer and her family lived next door to the decedent.
She testified at the time of his death, her father owned a red 2005 GMC
Sierra pickup truck. The truck was also equipped with a topper, brush
guard, and a trailer hitch. A car trailer was attached to the truck. Her father
had been at her house on the night of June 18, 2010, until approximately
11:30 p.m. When he left and walked home, his truck and trailer were in his
yard. When she awoke around 7:15 a.m. the next morning, she noticed her
fatherâs red pickup truck was gone. During her testimony, Ms. Schaefer
also identified her fatherâs 22 revolver.
{¶10} The State also presented testimony from Robert Shott, a
forensic pathologist with the Montgomery County Coronerâs Office. Dr.
Shott performed the autopsy of Homer Rogerâs body and determined that the
cause of death was a single sharp-force injury to the neck. He described a
Washington App. No. 12CA9 7
stab wound on the right side of the decedentâs neck, approximately one-half
inch. He testified the wound severed the spinal cord at the C-1 and C2
levels, which in effect, lead to instant and complete paralysis of the body
below the neck. In Dr. Shottâs opinion, the stab wound was likely caused by
a single-edged knife, with only one sharpened side. Dr. Shott opined that
Stateâs Exhibit B, a box containing a single-edged knife, was consistent with
the type of weapon that could have caused the wound on Homer Rogers.
Dr. Shott also opined that for the injury to get through the decedentâs skin,
muscle, and bones, it would have taken a significant amount of force. Dr.
Shott testified that there was no evidence of injuries on the decedentâs hands
or forearms, or any defensive- type wounds which would indicate a struggle
or fight with another person.
{¶11} The next Stateâs witness was Bryan White with the Ohio
Bureau of Criminal Investigation (BCI). He investigated decedentâs red
truck at the Sheriffâs Office. A wooden-handled knife with a five-inch blade
was found in the center console of the truck. It had a reddish- brown
substance that was later positively identified to be blood. The knife was
photographed, packaged, and submitted to BCI for further examination. Mr.
White identified the knife as Stateâs Exhibit B.
Washington App. No. 12CA9 8
{¶12} Tim Jenkins also testified on behalf of the State. Mr. Jenkins is
a distant relative of Appellant. He testified to seeing Appellant at a party in
Chesterhill, Ohio (Morgan County) around 12:30 or 1:00 a.m. on June 19th.
Mr. Jenkins saw Appellant drive up in a Ford diesel truck with a brush
guard. Mr. Jenkins testified Appellant appeared to have been drinking. He
was able to walk across a flat area 50-75 feet to get to Jenkins. He testified
Appellant did not appear so impaired that he could not drive.
{¶13} Scott Parks, a detective with the Washington County Sheriffâs
Office also testified he was at the Rogersâ home to assist with the
investigation. He was assigned to stand by the crime scene and coordinate
with BCI agents. He arrived at approximately 11:25 a.m. Detective Parks
testified although there was a bit of blood spatter on the wall, there were no
signs of struggle in the house.
{¶14} The State presented testimony from Emily Draper, a forensic
scientist with Ohio BCI. She performed DNA testing on samples obtained
from Gerald Smith and Homer Rogers. Ms. Draper testified she gave her
computer printout as to the DNA samples tested to Raymond Peoples,
another forensic scientist with Ohio BCI.
{¶15} Raymond Peoples next testified when the evidence samples
first arrived at BCI, Peter Tassi, Jr., a forensic biologist, examined them and
Washington App. No. 12CA9 9
prepared a report. 1 Mr. Peoples obtained the Tassi report and the computer
printout from Ms. Draper for review. At that point, Mr. Peoples performed
DNA testing on two samples, one from the blade of the knife and one from
the handle of the knife. He testified the DNA profile from the blade of the
knife was a mixture. The major profile in the mixture was consistent with
Homer Rogersâ DNA; the minor profile was consistent with Gerald Smithâs
DNA. The DNA profile from the handle of the knife was consistent with
Gerald Smithâs DNA sample.
{¶16} The jury also heard testimony from Allen âShaneâ Lucas,
Appellantâs first cousin. Shane Lucas testified he was aware that Appellant
had marital problems. As a result, Appellant had stayed overnight at the
Lucas home in Athens County in the past.
{¶17} Shane Lucas further testified on June 19, 2010, Appellant
showed up at the Lucas home around 4:30 -5:00 a.m. Appellant wanted to
get beer. He indicated a friend had dropped him off. Shane Lucas could see
Appellant had already been consuming and he described Appellant as
âpretty tanked.â Shane Lucas recalled Appellant had recently been in a
motorcycle accident and had injured his ribs and one leg. Appellant was
walking with a limp.
1
Peter Tassi, Jr. was subpoenaed for trial. On the day he was to testify, he was excused because of
personal illness. Counsel stipulated to admission of his report.
Washington App. No. 12CA9 10
{¶18} Around 5:30 a.m., Shane Lucas and Appellant bought three 6-
packs of beer and drank it at the Lucas house. The Lucas family had planned
to go boating that day at Stroudâs Run State Park. When the Lucases left to
go boating before noon, Appellant went with them. While out on water,
Shane Lucasâs cousin, Bo Lucas of Chillicothe, called. Cheryl Lucas,
Shaneâs wife, answered the phone. Bo Lucas informed her âGerald killed
Homer.â Cheryl then handed Shane the phone and Bo Lucas gave him the
same information. Cheryl Lucas hung up the phone. During this time,
Appellant had been passed out on the front of the boat. Cheryl Lucas woke
up Appellant and asked him âGerald, did you kill Homer?â
{¶19} Then, according to Shane Lucasâs testimony, Appellant
confessed to stabbing Homer Rogers. Appellant told them that Lynn had
called Appellant and wanted him to come to her fatherâs house. He went to
the home, where Homer Rogers was waiting for him with a gun. Appellant
told the Lucases they fought over the gun. Appellant admitted either hitting
or stabbing Mr. Rogers with something. He then told the Lucases he
âpicked him up, put him on the couch, and covered him up.â Shane Lucas
testified Appellant was crying when he confessed.
{¶20} At this point, Shane Lucas took his boat to shore. Shane
Lucas and Appellant got off the boat. Shane Lucas took Appellant to the
Washington App. No. 12CA9 11
Stroudâs Run campground. At this point he noticed Appellant had a
revolver. Mr. Lucas then called Athens 911 and advised the dispatcher that
Appellant killed Homer Rogers. Shane Lucas specifically told police
Appellant admitted stabbing or hitting Rogers in the neck.
{¶21} Shane Lucas also testified he later learned Appellant had
driven decedentâs red pickup truck and parked it on his property. Appellantâs
driveway is 60 yards or longer, from Salem Road. His house is located at
the top of the driveway. Beyond the Lucas house is a field. Decedentâs
truck was parked over a trash pile, about 30 feet from the house. Shane
Lucas testified Appellant had driven the decedentâs truck before but would
park in the general area of the house, not up into the woods.
{¶22} The next Stateâs witness was Detective Mark Johnson from the
Washington County Sheriffâs Office. Detective Johnson testified that when
he walked through the Rogersâ house, he saw no signs of struggle. There
were no signs of gunshot holes or a gun being fired. Detective Johnson
identified Stateâs Exhibit H-1, a photograph of the decedentâs 22 revolver
with six rounds. He testified this was the gun Appellant had in his
possession before he was taken into custody.
{¶23} Detective Johnson further testified Chief Deputy Mark Warden
(hereinafter âWardenâ) and he drove to the Lucas residence. The Lucas
Washington App. No. 12CA9 12
residence is nearly 100 yards off Salem Road. When they arrived, they
found the decedentâs red truck driven up over a trash pile and down into a
brushy wooded area. Detective Johnson testified the truck was parked 30-40
yards from Shane Lucasâs residence and he did not think it could be seen
from Salem Road. Detective Johnson did not see the truck until it was
pointed out to him. Detective Johnson drove the truck off the trash pile and
down to a flat spot so a tow truck driver could transport it to the Washington
County Sheriffâs Office. He identified Stateâs Exhibits H-2 and H-3,
photographs of the truck and where it was found. These photographs
demonstrate the pickup truck was partially hidden from view.
{¶24} While inside the truck, Detective Johnson saw the knife that
was found in the center console. Detective Johnson testified he later
obtained pictures of the knife from BCI. He showed the photographs to
Lynn Rogers. She identified the knife in the photographs as being the knife
Appellant and she had previously purchased. A week or so later, Lynn took
Detective Johnson to Appellantâs trailer and showed him the other two
knives.
{¶25} The Stateâs final witness was Chief Deputy Mark Warden.
Warden testified when he responded to the Rogersâ residence, he took
control of the crime scene. He met with the first responding officer and
Washington App. No. 12CA9 13
obtained the initial information. Warden called out other officers for
assistance and walked through the house. Warden also learned that Cody
Smithâs whereabouts were unaccounted for and the family present at the
scene suspected Appellant. Warden sent two deputies to Appellantâs
residence, looking for Cody. The deputies advised that decedentâs car trailer
was at Appellantâs residence. Those deputies were then advised to secure
Appellantâs residence as a crime scene. Eventually, Warden and Detective
Johnson proceeded to the Lucas residence. While en route, the two received
a phone call from Athens County 911 informing they had received a phone
call from Shane Lucas. Shane Lucas had advised 911 that Appellant was
with him at Stroudâs Run State Park, and Appellant had confessed to killing
Homer Rogers.
{¶26} Warden testified when they arrived at Stroudâs Run, they were
informed Appellant had a handgun. They were further advised Appellant
had told Shane Lucas he was going to âgo out by police,â i.e. âsuicide by
cop.â The two first interviewed Shane Lucas. Mr. Lucas gave them
precise information, that Appellant had fought with Homer Rogers and
stabbed him.
{¶27} At Strouds Run, Appellant was sleeping on a park bench. A 22
revolver with six live rounds was under his head. Before Warden and
Washington App. No. 12CA9 14
Detective Johnson could speak to him, Appellant was tased and taken into
custody by Athens law enforcement officials. The weapon was secured.
Detective Johnson Mirandized Appellant and started to interview him.
Shortly into the interview, Appellant indicated he wanted to talk to Mark
Warden. Warden walked over, asked him if he understood his Miranda
rights, and began questioning him. The entire interview with Detective
Johnson and Chief Deputy Warden was recorded. The interview is
rambling, but Appellant reiterated:
1) he did not know where he was at, or where he had been the
previous night;
2) he did not know what they were talking about when they
asked him about a gun;
3) he did not remember being at [Rogersâ] house;
4) he did not know what happened at [Rogersâ]house;
5) he did not know what happened to [Rogers];
6) he did not know how he got to Athens or Shane [Lucasâs]
house;
7) he âdid not do itâ;
8) he loved his wife; and,
9) he walked in on [Rogers] raping his wife [Cynthia Lynn
Rogers].2
2
On the tape, Appellant states than two years into their marriage, he walked inside his house to find Homer
Rogers raping his daughter Lynn. Appellant stated his wife was always âmessed upâ in the head and thatâs
Washington App. No. 12CA9 15
{¶28} Despite repeated inability to remember specific happenings,
when questioned about what took place inside the Rogersâ house on the
night of the murder, Appellant stated that âHomer tried to kill him,â and that
[Homer] and his wife called him and got him to come to the house. Later in
the interview, Appellant stated he was never there but hesitated, âI donât
think so.â Appellant also testified âI didnât go over there to do nothing.â
Appellant stated âI donât think I killed him. I know I didnât kill him.â
{¶29} During the interview, Warden told Appellant that Shane Lucas
saw him drive up. Appellantâs response was: âDid he see me? The red
pickup truck might be there but I didnât drive it.â
{¶30} Also during the interview, Appellant stated also that his wife
stood to inherit a large amount of money if her father died. He stated that
over the years his wife had âbeggedâ him to kill her father.
{¶31} Warden testified when Appellant gave the statement, he did
appear to be âhung overâ or had just awakened. On the recorded statement,
Appellant notices having urinated on himself at some point. Appellant told
Warden he had done cocaine the night before. Appellantâs counsel neither
filed a motion to suppress the statement nor objected to the playing of the
statement at trial.
why he stayed with her âall those years. â Lynn Rogers denied this allegation in direct testimony and cross-examination.
Washington App. No. 12CA9 16
{¶32} The defense presented only one witness, Lorena Smith,
Appellantâs daughter.3 Ms. Smith testified she had an âo.k.â childhood, and
was âdaddyâs girl.â She testified, over the years, Appellant would do drugs
at Thanksgiving and Christmas.
{¶33} Ms. Smith testified Appellant was in a motorcycle crash on
May 30, 2010, and broke six ribs and his leg. While in the hospital,
Appellant was prescribed Percocet and Vicodin. He came to her house when
he was released. He did not walk very well. Appellant was bipolar and had
severe depression. Ms. Smith testified Appellant was drinking alcohol a lot
when he lived with her.
{¶34} Ms. Smith further testified on June 18, 2010, Appellant was
âreally drunkâ and arguing with her. She told him to get out of her house,
and she would get him the next day when he was sober. She estimated he
drank 36 beers that day. When she dropped him off at his trailer at 7:30 or
8:00 p.m., she left him with 72 more beers. Ms. Smith testified there were no
vehicles at his trailer when she left him.
{¶35} Ms. Smith also opined Appellant could not have walked 2-3
miles in the country, given the intoxicated condition he was in and his
physical injuries. She testified on cross-examination that if her father was at
3
Lorena Smith is Jessika Trusâs mother. Her husband is Adam Trus. However, at trial, Ms. Smith
indicated she was separated from her husband.
Washington App. No. 12CA9 17
the Rogersâ residence, she thought somebody helped him get there. She also
admitted that days before she dropped him off at his home, he was
threatening to kill Homer and Lynn. Ms. Smith testified the one thing
Appellant wanted more than anything, was âhis wife back,â and Homer
Rogers was the âone obstacle.â
{¶36} Ms. Smith further testified to an incident approximately one
year prior to Homer Rogersâ death. Lynn and Appellant were having dinner
at Ms. Smithâs house. Ms. Smith testified Lynn told her at that time, when
her father passed away, she would inherit $600,000.00.
{¶37} In closing, the defense argued in Appellantâs intoxicated
condition and with his physical injuries, there was no way Appellant could
have walked from his trailer to the Rogersâ residence. Defense counsel also
argued Lynn had a new boyfriend and was âfinishedâ with Appellant. She
saw an opportunity to get rid of him and also inherit $600,000.00. She
knew the kind of reaction she would trigger in Appellant when she called
him, refused to tell him who she was with, and hung up the phone having
said, âIâm through with you.â Counsel argued that no one investigated
Lynn or Wayne McClain, and Lynn steered the investigation to Appellant
the entire time.
Washington App. No. 12CA9 18
{¶38} Appellant was found guilty of all nine counts contained in the
indictment. He was sentenced on January 27, 2012, to a total sentence of
life without the option of parole and sixty additional months. 4 This timely
appeal followed.
ASSIGNMENTS OF ERROR
I. THE APPELLANT, GERALD A. SMITH, WAS DENIED
EFFECTIVE ASSISTANCE OF COUNSEL.
II. THE COMMON PLEAS COURT FAILED TO GRANT
THE DEFENDANTâS RULE 29 MOTION TO DISMISS THE
CHARGE OF TAMPERING WITH EVIDENCE.
ASSIGNMENT OF ERROR ONE
{¶39} Appellant contends he was denied effective assistance of
counsel due to (1) counselâs failure to file a pretrial motion to suppress
Appellantâs statement to Chief Deputy Mark Warden, (2) counselâs failure to
object to the statementâs admission into evidence, and (3) counselâs failure
to object to allegedly prejudicial statements attributed to defendant and
testified to by his ex-wife.
A. STANDARD OF REVIEW
{¶40} Criminal defendants have a right to counsel, including a
4
Appellant was not sentenced on counts two, three, four, and seven of the indictment as they were
considered to be allied offenses of similar import to count one, aggravated murder. As to count six, he was
sentenced to thirty months to be served consecutively. As to count eight, he was sentenced to thirty months
to be served consecutively. As to count nine, he was sentenced to thirty months to be served concurrently.
Washington App. No. 12CA9 19
right to effective assistance of counsel. McMann v. Richardson, 397 U.S.
759, 790,
90 S. Ct. 1441; State v. Stout, 4th Dist. No. 07CA5, 2008-Ohio-
1366,
2008 WL 757521, ¶ 21. To establish constitutionally ineffective
assistance of counsel, a defendant must show (1) that his counselâs
performance was deficient and (2) that the deficient performance deprived
him of a fair trial. Strickland v. Washington,
466 U.S. 668, 687,
104 S. Ct.
2052; State v. Issa,
93 Ohio St. 3d 49, 67,
752 N.E. 2d 904 (2001); State v.
Goff,
82 Ohio St. 3d 123, 139,
694 N.E. 2d 916 (1998). âIn order to show
deficient performance, the defendant must prove that counselâs performance
fell below an objective level of reasonable representation. To show
prejudice, the defendant must show a reasonable probability that, but for
counselâs errors, the result of the proceeding would have been different.â
State v. Conway,
109 Ohio St.3d 412,
2006-Ohio-2815,
848 N.E.2d 810, ¶
95 (citations omitted). âFailure to establish either element is fatal to the
claim.â State v. Jones, 4th Dist. No. 06CA3116,
2008-Ohio-968,
2008 WL
613116, ¶ 14. Therefore, if one element is dispositive, a court need not
analyze both. State v. Madrigal,
87 Ohio St.3d 378, 389,
721 N.E.2d 52
(2000) (stating that a defendantâs failure to satisfy one of the elements
ânegates a courtâs need to consider the otherâ).
Washington App. No. 12CA9 20
{¶41} When considering whether trial counselâs representation
amounts to deficient performance, âa court must indulge a strong
presumption that counselâs conduct falls within the wide range of reasonable
professional assistance.â Strickland, 466 U.S. at 689. Thus, âthe defendant
must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.â
Id. at 689. âA
properly licensed attorney is presumed to execute his duties in an ethical and
competent manner.â State v. Taylor, 4th Dist. No. 07CA11,
2008-Ohio-482,
2008 WL 343328, ¶ 10, citing State v. Smith,
17 Ohio St.3d 98, 100
477
N.E.2d 1128 (1985). Therefore, a defendant bears the burden to show
ineffectiveness by demonstrating that counselâs error were so serious that he
or she failed to function as the counsel guaranteed by the Sixth Amendment.
State v. Gondor,
112 Ohio St. 3d 377,
2006-Ohio-6679,
860 N.E. 2d 77, ¶
62; State v. Hamblin,
37 Ohio St.3d 153, 156,
524 N.E.2d 476 (1988).
{¶42} To establish prejudice, a defendant must demonstrate that a
reasonable probability exists that but for counselâs error, the result of the
trial would have been different. State v. White, 82 Ohio St.3d 16, 23,
693
N.E.2d 772 (1998); State v. Bradley,
42 Ohio St.3d 136,
538 N.E.2d 373
(1989), at paragraph three of the syllabus. Furthermore, courts may not
simply assume the existence of prejudice, but must require that prejudice be
Washington App. No. 12CA9 21
affirmatively demonstrated. See State v. Clark, 4th Dist. No. 02CA684,
2003-Ohio-1707,
2003 WL 1756101, ¶ 22; State v. Tucker, 4th Dist. No.
01CA2592,
2002 WL 507529 (Apr. 2, 2002); State v. Kuntz, 4th Dist. No.
1691,
1992 WL 42774 (Feb. 26, 1992).
{¶43} A defendant must establish that counselâs failure to file a
motion to suppress would have a reasonable probability of success and
caused him prejudice. Morrison, ¶10; State v. Robinson, 108 Ohio App.3d
428,
670 N.E.2d 1077 (3rd Dist.1996).
{¶44} Additionally, in Madrigal, 87 Ohio St. 3d 378,
721 N.E.2d 52,
the Ohio Supreme Court discussed the issue of the requirement of actual
prejudice springing from the failure to file a motion to suppress evidence:
{¶45} âMadrigal assumes that the inquiry for the court is whether the
motion to suppress would have been granted had it been filed, as if a
probable granting of the motion to suppress meets the prejudice prong.
However, assuming arguendo that counsel should have filed the motion,
Madrigal cannot meet the prejudice prong of Strickland, that is, there exists
âa reasonable probability that absent [Madrigalâs attorneysâ] errors, the
factfinder would have had a reasonable doubt respecting guilty.â Strickland
at 695,
104 S. Ct. at 2068. Even assuming that Madrigalâs suppression
Washington App. No. 12CA9 22
motion would have been granted, and the gun would have been excluded,
compelling evidence against him still existed.â Morrison, ¶ 10,11, and 12.
B. LEGAL ANALYSIS
(1) Counselâs failure to file a motion to suppress the recorded
statement of Appellant to Chief Deputy Warden.
{¶46} In this matter, Appellantâs counsel did not file a motion to
suppress Appellantâs statement to Chief Deputy Warden. On appeal,
counsel argues it is clear from the evidence that Appellant was significantly
impaired at the time he gave his statement. As such, it is argued Appellant
could not effect a knowing and voluntary waiver of his Miranda rights.
According to Lorena Smith, Appellant was still recovering from his injuries
in a motorcycle accident and unable to walk well. On the day before the
murder, Appellant had consumed 36 beers and had been acting unruly. She
insisted he leave her house and she drove him to his trailer, leaving him with
72 more beers to drink.
{¶47} Timothy Jenkins, who saw Appellant between 12:30 and 1:00
a.m. on June 19t, also testified Appellant had been drinking.
{¶48} Shane Lucas testified that Appellant showed up at his home
between 4:30 and 5:00 a.m. on June 19th, and together they bought and
drank 3 six-packs of Busch Light beer. When Appellant went boating with
the Lucas family, he passed out. Counsel also points out Appellant was tased
Washington App. No. 12CA9 23
at the Stroudâs Run campground prior to giving his statement and was found
incompetent to stand trial approximately two months after these events.
{¶49} â[I]t is well-settled that the taking of an involuntary confession
violates the Due Process Clause of the Fourteenth Amendment. See, e.g.,
Spano v. New York, 360 U.S. 315 âŠ(1959). A coerced confession may
also be found to violate the Fifth Amendment privilege against self-
incrimination.â State v. Klapka,
2004-Ohio-2921,
2004 WL 1238411, ¶17,
citing State v. Comstock, 11th Dist. No. 96-A-0058,
1997 Ohio App. LEXIS
3670 (Apr. 15, 1997), at *7. âThe question of voluntariness is a question of
law, and as such, an appellate court must independently review the facts to
arrive at its own conclusion as to whether a given confession was
voluntary.â
Id. at *6-*7 (citations omitted). The state bears the burden of
establishing the voluntariness of a confession by a preponderance of the
evidence. Colorado v. Connelly,
479 U.S. 1577, 168-169,
107 S. Ct. 515
(1986).
{¶30} âIn deciding whether a defendantâs confession is involuntarily
induced, the court should consider the totality of the circumstances,
including the age, mentality, and prior criminal experience of the accused;
the length, intensity, and frequency of interrogation; the existence of
physical deprivation or mistreatment; and the existence of threat or
Washington App. No. 12CA9 24
inducement.â State v. Edwards, 49 Ohio St. 2d 31,
358 N.E.2d 1051 (1976),
paragraph two of the syllabus. State v. Michael, 4th Dist. No. 09CA887,
2010-Ohio-5296,
2010 WL 4273225, ¶ 9. A statement is voluntary âabsent
evidence that [the suspectâs] will was overborne and his capacity for self-
determination was critically impaired because of coercive police conduct.â
State v. Dailey,
53 Ohio St.3d 88,
559 N.E.2d 459 (1990), paragraph two of
the syllabus.
{¶31} In the case at bar, we do not believe a motion to suppress
would have had a reasonable probability of success. In considering the
totality of the circumstances, the trial court would likely have found
Appellantâs statement to Chief Deputy Mark Warden to be knowing and
voluntary. It is also likely the trial court would have found no evidence that
Appellantâs will was overborn by coercive police conduct.
{¶32} At the time Appellant gave his statement to Warden, he was
49 years old. The evidence does demonstrate Appellant was in handcuffs
and complained about the handcuffs and being tased. He had an adult
criminal history which included three convictions for domestic violence and
one conviction for aggravated menacing. There is no evidence in the record
or on the recorded statement that Appellant was threatened or made
promises in exchange for his statement. In fact, Appellant specifically
Washington App. No. 12CA9 25
showed verbalized willingness to talk to Chief Deputy Mark Warden. We
disagree that Appellantâs being tased, his subsequent mental incompetency,
and his heavy use of intoxicants rendered his recorded statement
involuntarily given.
{¶33} Although Appellant had been drinking heavily for at least 2
days and indicated he had consumed cocaine, some of the effects of these
intoxicants ostensibly may have worn off by the time his statement was
given. Appellantâs statement began at 4:15 p.m. and continued for
approximately 51 minutes. There is no evidence that he drank anything
after the beer he consumed with Shane Lucas around 5:30 a.m. that morning.
According to Shane Lucasâs testimony, Appellant passed out on his boat.
When he was apprehended at the campground, he was sleeping on a park
bench. At the time Appellant gave his statement, 4:15 p.m., Appellant may
have been âhung overâ and just awakened, but he may not necessarily have
been under the full influence of the intoxicants. In addition, due to his
history of heavy alcohol and drug use over the years, especially at
Thanksgiving and Christmas, Appellant may have been able to tolerate large
amounts of intoxicants more functionally than the average person.
{¶34} More importantly, Appellantâs statement to Mark Warden,
although rambling, was consistently self-serving and calculated.
Washington App. No. 12CA9 26
Throughout the statement, Appellant repeatedly denied knowing where he
had been the previous night, knowing what he was being asked about,
knowing what happened at the Rogersâ home, and knowing what happened
to Homer Rogers. Appellant stated âI know I didnât kill him.â
{¶35} Although Appellant had been drinking heavily in the previous
days, he had the presence of mind to present alternative theories as to what
happened to Rogers. Appellant informed that Lynn and her father had been
calling him, taunting him, and threatening to kill him. Appellant informed
that Rogers had raped his daughter Lynn, in an effort to portray the decedent
as a bad man. Appellant informed that Lynn had âbeggedâ him to kill her
father and informed that Lynn stood to inherit a lot of money upon her
fatherâs death, in an effort to cast suspicion upon Lynn. Appellant also
responded confidently that Shane Lucas âdid not see himâ drive the red
pickup truck onto the trash pile.
{¶36} We also disagree with Appellantâs argument that his alleged
lack of competency influenced his giving the recorded statement to Chief
Deputy Warden. In September 2010, the court found Appellant incompetent
to stand trial and mentally ill. Appellant was admitted to Moritz Forensic
Center of Twin Valley Behavioral Healthcare on October 14, 2010, for a
course of treatment and competency restoration. In March, 2011, Dr.
Washington App. No. 12CA9 27
Dennish Eshbaugh, PhD., prepared a status report regarding Appellantâs
competency restoration. This report casts doubt on Appellantâs previous
claim of incompetency due to mental illness. Dr. Eshbaughâs report
observes:
Over the course of admission the medical records report
that he has not presented signs or symptoms of serious mental
illness. His thinking has continued to be clear and he has not
expressed delusional materialâŠHis psychiatrist has noted that
the defendant tends to present a depressive demeanor in his
presence, but when the defendant is socializing with other
patients and the staff his affect becomes bright and
robustâŠ.After reviewing the documentation of the defendantâs
participation in treatment groups and competency restoration
programming, there is evidence that the defendant has been
malingering memory deficits. His performance in treatment
groups has been noted as effective. He actively participates in
groups that focus on topics such as depression, coping skills,
substance abuse, etc., and in those groups he does not show any
significant difficulty understanding and learning new material.
⊠While his memory functions have been reported to be intact
in most activities, in competency restoration programming his
performance has been poor. He has reportedly acted as if he
has difficulty understanding and learning the material
presented. He has continued to report that he has no recall any
events associated with the instant charges. Because of the
inconsistency of memory between groups his psychiatrist has
continued the diagnosis of malingering memory deficits.
{¶37} Based on our review of the record, we do not believe a motion
to suppress would have been successful. As such, we cannot find Appellant
was prejudiced by counselâs failure to file the motion.
Washington App. No. 12CA9 28
{¶38} Similar to the analysis in Madrigal, had a motion to suppress
been filed and granted, there was still overwhelming evidence of Appellantâs
guilt. Appellant had been making disturbing phone calls to the decedentâs
house on June 18th, so intimidating that the testimony was Homer Rogers
was considering calling law enforcement. Appellantâs daughter, Lorena
Smith, admitted Appellant had been making threats against Lynn and Homer
in the days just before the murder.
{¶39} There was also testimony that Appellant was familiar with the
woods and area between his trailer and the Rogersâ home, and he was
familiar with the Rogersâ home. Although Lorena Smith testified she did
not think her father could have walked the 2-3 mile walk between the
homes, she admitted he was walking with a limp and had walked with her to
a store recently. Tim Jenkins testified he had seen Appellant at a party
during the early hours of June 19th, and although he had been drinking and
was limping, he was able to walk. Mr. Jenkins also considered Appellant
able to drive.
{¶40} Kimberly Schaefer, Rogersâ daughter, testified her fatherâs
truck was in his yard when he left her home late on June 18th. The next
morning, the truck was gone. The decedentâs red pickup truck was
eventually discovered in a wooded area, partially obscured, at Shane Lucasâs
Washington App. No. 12CA9 29
house in Athens County, where Appellant had gone on June 19th. The car
trailer attached to the truck was discovered at Appellantâs trailer on June
19th. When Appellant presented to Shane Lucasâs door at 4:30 or 5:00 a.m.
in the morning, wanting to go buy beer, he indicated he had been dropped
off by a friend. Shane Lucas was unaware the vehicle was parked on his
property until the investigation unfolded.
{¶41} Moreover, when the red pickup truck was discovered, a knife
with the reddish-brown substance, later determined to be blood, was
discovered in the center console. Raymond Peoples testified that when he
analyzed the DNA samples taken from the knife, both Appellantâs and
decedentâs DNA profile mixtures were found on the blade of the knife.
Only Appellantâs DNA was found on the handle of the knife. Lynn Rogers
later testified that this knife was one of three Appellant and she bought a few
months before. The other two knives were located in a can in Appellantâs
trailer.
{¶42} More damaging than Appellantâs recorded statement to Chief
Deputy Warden was his confession to Shane Lucas. Mr. Lucas testified
Appellant, while crying, admitted stabbing the decedent in the neck, laying
the decedent on the couch, and covering decedentâs body with a blanket.
Washington App. No. 12CA9 30
{¶43} Assuming a motion to suppress the recorded statement to Mark
Warden had been filed and granted, the transcript is replete with additional
compelling evidence, direct and circumstantial, of Appellantâs guilt. We do
not find Appellant was prejudiced by counselâs failure to file a motion to
suppress.
(2) Counselâs failure to object to the playing of Appellantâs
statement to Chief Deputy Warden at trial.
{¶44} At trial, Appellantâs counsel did not object to the introduction
of his recorded statement to Chief Deputy Warden. As such, this alleged
error is governed by the plain error standard. Under Crim.R.52(B), â[p]lain
errors or defects affecting substantial rights may be noticed although they
were not brought to the attention of the court.â State v. Haynes, 130 Ohio
App.3d 31,
719 N.E.2d 576, (4th Dist. 1998), Fn 3. The judgment of the
trial court will be reversed under the plain error rule only if (1) error has
occurred and, (2) but for that error, the result of the trial would clearly have
been otherwise.
Id. at Fn 3. See State v. Underwood,
3 Ohio St.3d 12,
444
N.E.2d 1332. The rule should be applied with utmost caution and should be
invoked only to prevent a clear miscarriage of justice. Haynes, at Fn 3.
{¶45} Furthermore, the decision not to object to the playing of
Appellantâs recorded statement to Chief Deputy Warden may have
amounted to a tactical decision. Generally, counselâs strategic decisions and
Washington App. No. 12CA9 31
trial tactics will not support a claim of ineffective assistance. State v.
Morrison, 4th Dist. No. 03CA13, 2004 Ohio -5724, 2004 WL 2421875, ¶ 8.
{¶46} In this matter, the defenseâs trial strategy, apparently, was to
attempt to create reasonable doubt as to Appellantâs guilt by casting
suspicion upon his estranged ex-wife, Lynn Rogers. The defenseâs theory of
Appellantâs case was that Lynn Rogers hated her ex-husband, may have
hated her father, and/or desired to inherit $600,000.00. Trial counsel argued
in closing that Lynn Rogers or Wayne McClain were never investigated, and
from the beginning, and Lynn steered the investigation in the direction of her
husband. The defense needed to show why Lynn may have hated her father
enough to plan his death. Appellantâs allegation that the decedent raped
Lynn Rogers is contained in the recorded statement. The defense also
needed the jury to know Lynn had a financial incentive to do so. Appellant
also accomplishes this objective via the recorded statement.
{¶47} Again, as previously discussed above, there was overwhelming
evidence of Appellantâs guilt. In our view, had the recorded statement to
Chief Deputy Warden been excluded, there was still compelling evidence to
find Appellant guilty beyond a reasonable doubt on each element of the
crimes charged. We find no error, let alone plain error, in this regard. We
further find no prejudice to the defendant by counselâs decision not to object.
Washington App. No. 12CA9 32
(3) Counselâs failure to object to the statements of Cynthia Lynn
Rogers regarding alleged prior bad acts of Appellant.
{¶48} We also believe that the decision not to object to the admission
of Lynn Rogerâs statements clearly amounts to a tactical decision on trial
counselâs part. To further advance the theory that Lynn Rogers orchestrated
or facilitated her fatherâs murder and âset upâ Appellant, the jury needed to
believe Lynn Rogers despised Appellant. To do so, the jury needed to be
aware of Lynnâs history of physical abuse by Appellant. Again, no objection
was lodged as to Lynn Rogersâ testimony about Appellantâs years of
physically abusing her.
{¶49} In our view, trial counsel was exercising professionally
reasonable trial strategy. There exists a âstrong presumption that counselâs
conduct falls within the wide range of reasonable professional assistance.â
Robinson, at ¶ 2, citing Strickland, 466 U.S. at 689,
104 S. Ct. at 2065.
Furthermore, âstrategy and tactical decisions exercised by defense counsel
âwell within the range of professionally reasonable judgmentâ need not be
analyzed by a reviewing court.â
Robinson ¶2, citing State v. Walker,
90 Ohio
App.3d 352, 259,
629 N.E.2d 471, 475 (1993), quoting Strickland,
466 U.S.
at 699,
104 S. Ct. at 2070. In this matter, we are not convinced that
counselâs failure to object to the statements of Lynn Rogers regarding
Washington App. No. 12CA9 33
alleged physical abuse over the years prejudiced Appellant so as to deprive
him of a fair trial.
{¶50} Based upon the foregoing, we cannot find Appellant was
prejudiced by his counselâs (1) failure to file a motion to suppress the
recorded statement given to Chief Deputy Warden, (2) failure to object to
the playing of that statement at trial, or (3) failure to object to the admission
of Cynthia Lynn Rogersâ statements regarding alleged prior physical abuse
by Appellant. Therefore, we cannot find Appellant received constitutionally
ineffective assistance of counsel under the Strickland analysis. As such, we
overrule Appellantâs first assignment of error.
ASSIGNMENT OF ERROR TWO
{¶51} Appellant also contends the trial court erred by failing to
grant Defendant-Appellantâs Rule 29 motion to dismiss the charge of
tampering with evidence. After presentation of the Stateâs case, defense
counsel moved to dismiss the tampering with evidence charge. The State
argued that Appellant took Homer Rogersâ truck, containing the murder
weapon to another county and drove it into a weeded area so as to hide it
from view. Appellant argued the truck was in plain view from the road
nearby. The trial court denied the Crim.R. 29 motion and let the charge go
Washington App. No. 12CA9 34
to the jury. On appeal, Appellant argues there was no evidence to justify the
charge being given to the jury for consideration. We disagree.
A. STANDARD OF REVIEW
{¶52} The standard of review for a Crim.R. 29(A) motion is
Generally the same as a challenge to the sufficiency of the evidence. State v.
Hollis, 4th Dist. No. 09CA9, 2010-Ohio-3945,
2010 WL 3294327, ¶19. See
State v. Hairston, 4th Dist. No. 06CA3081, 2007 Ohio-3880,
2007 WL
2181535, at ¶ 16; State v. Brooker,
170 Ohio App.3d 570,
2007-Ohio-588,
868 N.E.2d 683, at ¶8. Appellate courts must determine whether the
evidence adduced at trial, if believed, supports a finding of guilt beyond a
reasonable doubt. See State v. Thompkins,
78 Ohio St.3d 380, 386, 1997-
Ohio-52,
678 N.E.2d 541; State v. Jenkins,
61 Ohio St.3d 259,
574 N.E.2d
492 (1991).
{¶53} In other words, when reviewing a case to determine if the
record contains sufficient evidence to support a criminal conviction, we must
âexamine the evidence admitted at trial to determine whether such evidence,
if believed, would convince the average mind of the defendantâs guilt
beyond a reasonable doubt. 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
Washington App. No. 12CA9 35
reasonable doubt.â Hollis, ¶20, citing State v. Smith, 4th Dist. No. 06CA7,
2007-Ohio-502,
2007 WL 357274, at ¶ 33, quoting State v. Jenkins at
paragraph two of the syllabus. See, also, Jackson v. Virginia,
443 U.S. 307,
319,
99 S. Ct. 2781 (1979).
{¶54} The sufficiency of the evidence test âraises a question of law
and does not allow us to weigh the evidence,â Hollis at ¶21; Smith at ¶34,
citing State v. Martin, 20 Ohio App.3d 172, 175,
485 N.E.2d 717 (1983).
Instead, the sufficiency of the evidence test ââgives full play to the
responsibility of the trier of fact [to fairly] resolve conflicts in the testimony,
to weigh the evidence, and to draw reasonable inferences from basic facts to
ultimate facts.ââ Smith at ¶34, citing State v. Thomas,
70 Ohio St. 2d 79, 79-
80,
434 N.E.2d 1356 (1982); State v. DeHass,
10 Ohio St.2d 230,
227 N.E.
2d 212 (1967), paragraph one of the syllabus.
B. LEGAL ANALYSIS
{¶55} Appellant was convicted of tampering with evidence, in
violation of R.C. 2921.12(A)(1), which reads:
(A) No person, knowing that an official proceeding or
investigation is in progress, or is about to be or likely to be instituted,
shall do any of the following:
(1) Alter, destroy, conceal, or remove any record, document, or
thing, with purpose to impair its value or availability as evidence in
such proceedings or investigationâŠ.
Washington App. No. 12CA9 36
At the end of the Stateâs case, the trial court had heard evidence that:
1) Homer Rogerâs death was caused by a knife wound;
2) a knife with a reddish-brown substances was found inside Rogersâ
pickup truck that had been removed from his yard in Washington
County and removed to a wooded area in Athens County;
3) the knife was tested by specialists at Ohio BCI who determined that
the DNA profile on the handle of the knife matched Gerald Smithâs
profile, and the DNA profile on the blade of the knife was a mixture
of Homer Rogersâ and Gerald Smithâs DNA profiles;
4) Appellant had arrived at the Lucas residence in the early morning
hours of June 19, 2010, on foot; and,
5) the decedentâs pickup truck was discovered parked on the Lucas
property later on June 19th.
{¶56} We believe that the trial transcript contains evidence from
which any rational trier of fact could have found the essential elements of
the tampering with evidence charge proven beyond a reasonable doubt.
{¶57} As to the element of âknowing that an official proceeding or
investigation is in progress, or is about to be or likely to be instituted,â the
trial court heard evidence that Appellant confessed to Shane Lucas of
shooting or stabbing the decedent, placing his body on the couch, and
covering it up. From this evidence, the logical inference is that Appellant
would be aware that because of the seriousness of his actions, an official
proceeding or investigation would be likely to be instituted.
Washington App. No. 12CA9 37
{¶58} As to the elements of âconceal or remove, any⊠thingâŠwith
purpose to impair isâŠavailability as evidence,â the trial court had the
testimony of the various Stateâs witnesses who demonstrated that the murder
weapon- the bloody knife with the DNA of both victim and suspect- was
found in the decedentâs red pickup truck. The decedentâs pickup truck had
been in his yard in Washington County, the night before, according to his
daughter. Various Stateâs witnesses testified the pickup truck was discovered
in a wooded area in Athens County, partially obscured by tall weeds and
woods. Mark Johnson testified the Lucas residence was nearly 100 yards
from Salem Road. The red pickup truck was found parked 30-40 yards
beyond the residence. Appellant had appeared at the Lucas residence in the
early morning hours of June 19th, on foot, claiming he had been dropped
off. Shane Lucas testified Appellant had driven the truck before but parked
it in the area of the house, not up into the woods. From these facts, it may be
inferred Appellant was attempting to conceal or remove the bloody knife in
the pickup truck in a desperate effort to thwart or stymie any investigation,
or to diminish the value of the knife and truck as evidence.
{¶59} We find that there was sufficient evidence on each element of
the tampering charge to allow it to go to the jury. As such, we find the trial
court did not err by denying Appellantâs Crim.R. 29 motion to dismiss the
Washington App. No. 12CA9 38
tampering charge. We affirm the judgment of the trial court and overrule
Appellantâs second assignment of error.
JUDGMENT AFFIRMED.
Washington App. No. 12CA9 39
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs herein be taxed to
Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Washington 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 BY THE TRIAL COURT OR THIS COURT, it
is temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of
the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Exceptions.
Harsha, J. & Abele, J.: Concur in Judgment and Opinion.
For the Court,
BY: _______________________
Matthew W. McFarland
Presiding 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.
