[Cite as State v. Lewis,
2021-Ohio-2313.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109937
v. :
BOBBY LEWIS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 8, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-20-649116-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Poula Hanna, Assistant Prosecuting
Attorney, for appellee.
Susan J. Moran, for appellant.
MARY J. BOYLE, A.J.:
Defendant-appellant, Bobby Lewis, appeals his convictions. He
raises two assignments of error for our review:
1. The trial court erred by denying appellant’s motion for acquittal
pursuant to Crim.R. 29 when the state failed to submit sufficient
evidence of appellant’s complicity.
2. Appellant’s convictions are against the manifest weight of the
evidence.
Finding no merit to his assigned errors, we affirm.
I. Procedural History and Facts
In March 2020, Lewis was indicted on eight counts: Count 1,
aggravated robbery in violation of R.C. 2911.01(A)(1), a first-degree felony; Counts
2 and 3, robbery in violation of R.C. 2911.02(A)(2) and (3), second- and third-degree
felonies; Counts 4 and 5, having weapons while under disability in violation of R.C.
2923.12(A)(2) and (3), third-degree felonies; Count 6, theft in violation of R.C.
2913.02(A)(1), a fifth-degree felony; Count 7, identity fraud in violation of R.C.
2913.49(B)(2), a fifth-degree felony; and Count 8, telecommunications fraud in
violation of R.C. 2913.05(A), a fifth-degree felony. Counts 1 and 2 contained one-
and three-year firearm, notice of prior conviction, and repeat violent offender
specifications, and Count 3 contained one- and three-year firearm specifications.
Lewis pleaded not guilty to all charges and waived his right to a jury trial. The
following evidence was presented to the bench.
Maritza Rosa testified that on the night of January 4, 2020, she and
her husband had gone to a police charity event in “the Ohio City area” in Cleveland.
After the event, they were going to meet some family members at a local bar around
West 50th and Detroit Avenue, but she and her husband got into an argument on
the way there. She asked her husband to “stop the car” so she could walk home. She
stated that they were about 10 minutes from their house at that point and she
believed it was “around midnight” when she got out of the car.
Rosa testified that as she was walking past the Michael J. Zone
Recreation Center (“Zone Rec Center”) on Lorain Road, she noticed a silver Dodge
Avenger pull into the parking lot. She thought that it was odd that someone was
going into the park “at such a late hour.” She noticed that the Dodge had temporary
tags on it.
As Rosa continued to walk, she felt a gun to the back of her head. The
perpetrator said, “Give me your purse, bitch.” She turned around, and “the gun was
then pointed to [her] mouth.” The gun reminded her of a police officer’s gun; it was
black with a silver barrel and was “pretty large” and “bulky.” She said that her uncle
is a Cleveland police officer, so she was familiar with police guns.
Rosa stated that the perpetrator was a male wearing a “white hoodie”
but he had it pulled “really tight” over his head so she could not see his face very
well. She described him as tall and “pretty slim.” She told police that he was either
“a light-skinned black man or possibly a Hispanic male.” She noticed that the
driver’s side door of the silver car was open, although she admitted that she did not
see what side of the vehicle he came from or went to. She also did not see if anyone
else was in the car. She could not identify Lewis before trial or in court.
Rosa stated that the man took her wallet and pushed her. As he began
to walk back towards the silver car, she pulled her cell phone out of her pocket to
attempt to take a photo of the license plate. The perpetrator saw her trying to do so,
however, and came back, “snatched” her phone, and hit her. She fell to the ground.
Rosa testified that she blacked out for some time after she fell to the
ground. When she woke up, she continued walking home. But when she felt blood
on the back of her head, she waived a car down and asked the driver to take her
somewhere safe. He drove her to a gas station nearby where he called 911 at 1:00
a.m. She was taken by ambulance to the hospital.
After she left the hospital, she locked her iPhone and turned on the
“location services in an attempt to figure out where [her] phone was.” She stated
that it was “pinging off of Western Avenue” between three homes. She also
contacted her credit card companies because she had been getting alerts that
someone had been using her credit cards. She found out where her cards had been
used as well as the dollar amounts. She created a spreadsheet of the information
and gave it to a detective. She said that her credit cards had been used at multiple
gas stations and for an online order at Finish Line.
Officer Joseph Matt of the Cleveland Police Department testified that
he arrived at the gas station after he received reports of a robbery. He said that Rosa
was already in the ambulance when he arrived. The state played his body camera
footage from that evening. In the video, Rosa described the male and his gun to
Officer Matt. He relayed the information over the police radio.
Sergeant Timothy Hassing of the RTA Police Department testified
that on the night of January 31, 2020, he was on routine patrol with another sergeant
in an unmarked vehicle at a rapid station at the corner of West 98th Street and
Detroit Avenue. He said that he and his partner observed three males “cross over
from Detroit Avenue and wait at the front of the station” but they were “not utilizing
RTA services.” They then saw a “silver passenger car come into the bus lane,” pick
up the males, and then attempt to do a U-turn in the bus-only traffic area. The
vehicle then “attempted to exit the entrance only,” but turned around and exited
through a “bus-only exit rather than using the parking lot.”
Sergeant Hassing began to follow the vehicle. He noticed that the car
had a temporary tag on it that was blank. He and his partner initiated a traffic stop.
They approached the passenger side of the vehicle and spoke to the driver. They
noticed “several indicators,” including that the men were “sweating profusely” and
“tremoring.” They ordered the back-seat passengers to put their hands on the back
of the front seats.
Sergeant Hassing asked the driver if he had a valid driver’s license,
and the driver said he did not. Sergeant Hassing then asked the driver to step out of
the car. The driver had a state identification card on him, but it was not valid either.
Sergeant Hassing learned that Lewis was the driver. Lewis told him that the car
belonged to his girlfriend.
Sergeant Hassing stated that they were going to tow the vehicle
because Lewis did not have a driver’s license. They asked the other passengers to
get out of the vehicle and “Terry-patt[ed] them down for weapons.” One of the rear
passengers had a gun in his front coat pocket.
Sergeant Hassing stated that he learned from another police officer
that there was “an aggravated robbery BOLO for a silver Avenger with rear quarter
panel damage,” which matched the vehicle that Lewis had been driving. Sergeant
Hassing explained that “BOLO” meant “be on the lookout for.”
Detective Courtney Evans of the Cleveland Police Department’s
“major crimes” unit testified that she was assigned to this case on January 31, 2020,
after she received a call from RTA police that they had a suspect vehicle that matched
a BOLO from her district. She reviewed the BOLO and the suspect vehicle and
determined that they matched. She reviewed the case file from a previous detective
and learned that there were already surveillance videos from two gas stations where
the victim’s credit cards had been used as well as from the Zone Rec Center.
Detective Evans identified photos of “snippet[s]” taken from the rec
center’s surveillance videos. The photos were time stamped a few seconds different
at 12:52 a.m. on January 5, 2020. Detective Evans stated that the still photos were
taken from the videos as the car drove into the parking lot of the rec center, turned
around, and then exited the parking lot. One photo portrayed a silver or “lighter-
colored car” leaving the parking lot that showed the car had “damage to the
passenger side rear quarter panel.” Detective Evans explained that some of the
photos from the video showed only two people in the car because the photo shows
the front of the vehicle as it faced the camera. But Detective Evans stated that in one
of the photos, which showed the entire passenger side of the vehicle, there appeared
to be a third person sitting in the back seat who was wearing red. She further
testified that from still photos, the front-seat passenger appeared to be wearing
“white with some dark colors on it,” and the driver appeared to be wearing light gray
or white or a “lighter-colored solid color.”
Detective Evans then reviewed the actual surveillance videos from the
rec center in court. The still photos from the videos reflected what the videos
portrayed.
Detective Evans stated after she took over the case, she had the silver
Dodge towed to a police lot. She obtained written consent from the owner of the
vehicle to search it. She found mail in the vehicle addressed to Lewis on Harvard
Avenue in Cleveland, which she later learned is where Lewis lived.
Detective Evans stated that a previous detective had also obtained
“cell phone pings” from the victim’s cell phone that had been stolen. The stolen cell
phone had “pinged” in the area of “114th and Western” Avenue, in Cleveland.
Detective Evans said that Desmond Franklin lived on Western Avenue. Based on
her investigation, she believed that Franklin was in the passenger seat of the silver
Dodge on the night of the aggravated robbery.
Detective Evans testified that she reviewed the other surveillance
videos that were in the file from places where the victim’s credit cards had been used,
including a BP on Lorain Avenue and “Henry’s,” which is a gas station or
convenience store on Fulton Road. The videos were played in court. The video from
the BP shows the gas station clerk and a customer who Detective Evans identified as
Desmond Franklin. Franklin was wearing a Nike windbreaker that was black on top,
had blue sleeves, and was white from the chest down. Detective Evans stated that
the jacket appeared to match what the passenger in the silver car was wearing in the
rec center videos. Franklin can be seen in the BP video paying for items with the
victim’s credit card, receiving the items, and walking out of the gas station. Detective
Evans “put out a warrant for receiving stolen property” and interviewed Franklin
after he was arrested.
Detective Evans also reviewed the surveillance video from Henry’s.
The video shows a woman using the victim’s credit card, but Detective Evans was
never able to identify the woman.
Detective Evans testified that the victim’s credit card was also used
about one hour after the robbery for online purchases at Finish Line by someone
using an email address, “[email protected].” One of the online
purchases was supposed to be delivered to Lewis’s address on Harvard Avenue, and
the other online purchase was supposed to be delivered to Franklin’s address on
Western Avenue.
Detective Evans first interviewed Lewis at the police station on the
night that he was stopped by RTA police, which was January 31, 2020. She
confirmed where Lewis lived on Harvard Avenue. Lewis identified the silver car
from the still photos as his girlfriend’s car. Lewis told Detective Evans that on the
night of January 4, 2020, he was at his girlfriend’s house by 10:00 p.m. and never
left after that. He said that no one else drove his girlfriend’s car that night. He
denied knowing Franklin. He denied knowing anything about a Finish Line order
that someone placed with the victim’s credit card that was supposed to be delivered
to his home on Harvard Avenue.
When faced with some of the evidence that Detective Evans had,
Lewis admitted that he knew Franklin but said that Franklin was a member of the
Heartless Felons and was “higher” in the gang than Lewis was, which was why Lewis
did not want to talk at first. Lewis said that he met Franklin in prison. Lewis then
told Detective Evans that he rented his girlfriend’s car to Franklin on December 31,
2019, because they needed money. He said that Franklin had the vehicle for about
a week. Lewis denied ever seeing Franklin with a gun. Detective Evans did not
arrest Lewis that night.
Detective Evans asked Lewis to come back for another interview,
which he voluntarily did. He brought his girlfriend who owned the silver Dodge.
Detective Evans interviewed Lewis’s girlfriend first and then Lewis. Detective Evans
told Lewis that his girlfriend contradicted his story. Lewis then agreed that he was
driving his girlfriend’s car that night but said that Franklin came to get it around
10:00 p.m. and that Lewis’s girlfriend did not know because Lewis met Franklin
outside to give him the keys.
Detective Evans obtained consent from Lewis and his girlfriend to
search their cell phones. After reviewing the cell phones, Detective Evans learned
that there were “some Messenger communications” between Lewis and his
girlfriend from January 4 and 5, 2020. Detective Evans said that around the time
the robbery occurred, Lewis messaged his girlfriend to tell her that he had wrecked
her car. Based on that information, Detective Evans obtained a search warrant to
review Lewis’s and his girlfriend’s Facebook accounts.
Detective Evans reviewed Facebook communications between Lewis
and his girlfriend. They began messaging on January 4, 2020, around 6:23 p.m.
Lewis and his girlfriend were talking about seeing each other. At 12:37 a.m. on
January 5, 2020, Lewis messaged his girlfriend and said, “I was driving and
somebody hit the car, the back, low key f*ck up bae.” Lewis then tells his girlfriend
to call him. Lewis and his girlfriend then argued about the wreck. At 3:38 a.m.,
Lewis messaged his girlfriend, “Stop texting Jamie for real. If you cool, den be cool
on me. I told you I got the money to fix your car. What do you want me to do[?]”
After Detective Evans read the Facebook messages between Lewis
and his girlfriend, she decided to interview Lewis for a third time. Detective Evans
identified a photo from Lewis’s Facebook account of him holding a gun that she said
matched the description of the gun the victim had described. Lewis told Detective
Evans that it was not his gun. Detective Evans confronted Lewis about the Facebook
messages and how they show that he was driving his girlfriend’s car around the time
of the aggravated robbery. Lewis changed his story again, this time stating that he
had been driving around in his girlfriend’s car that evening when Franklin called
him and asked Lewis to pick him up at his house on Western Avenue. Franklin told
Lewis that he needed money for his “girl.” Lewis said that he gave the car to Franklin
and Lewis got out and walked. Franklin then came back to get Lewis and gave him
some money. Lewis said he then drove Franklin to a gas station and then took him
home.
After Detective Evans interviewed Lewis, she obtained an arrest
warrant to charge Lewis with aggravated robbery and related charges. She did so
based on Lewis’s statement in the Facebook messages that he was driving his
girlfriend’s car around the time of the aggravated robbery. She also obtained an
arrest warrant for Franklin for aggravated robbery, but Franklin was killed before
Detective Evans could testify before the grand jury.
Detective Evans interview Franklin before he was killed. She said that
Franklin was shorter than Lewis and more heavy-set. Detective Evans said that
based on the description that the victim gave police about the person who robbed
her, Lewis matched the description better than Franklin.
On cross-examination, Detective Evans said that she learned that the
third person in the car with Franklin and Lewis was someone named “Dray” but
police were never able to identify him. Detective Evans agreed that Franklin used
the nickname, “Franko.”
At the close of the state’s case, Lewis moved for a Crim.R. 29 acquittal,
arguing that the state did not sufficiently establish Lewis’s identity in the crimes.
The trial court denied Lewis’s motion with respect to Counts 1 through 6 but granted
it with respect to Counts 7 and 8, which were the identity and telecommunications
fraud charges.
Before issuing the verdict, the trial court explained that it could not
determine from the evidence that Lewis “was the actual person who pulled the gun
because we don’t have an ID,” but that Lewis, at a minimum, admitted “that he knew
of the incident, he met or provided the car and had been driving the car indeed.”
The trial court stated that it had a “hunch” that Lewis was driving and committed
the offense, but that was “not enough to sustain a verdict beyond a reasonable
doubt.” The trial court also had a “hunch” that the gun described by the victim was
the same one that Lewis was holding in the Facebook photo, but that was not enough
to sustain a verdict beyond a reasonable doubt. The trial court stated that according
to Lewis’s own words, “he described his willingness and ability and his cooperation
in providing the use of the car. He knew what the plan was.” Based on this evidence,
the trial court found that the state proved beyond a reasonable doubt that Lewis was
“an aider or abettor” in the crimes and therefore was complicit in the aggravated
robbery or was an accomplice “in so far as he knowingly assisted and joined another
in the commission of a crime.”
The trial court found Lewis not guilty of Count 1, aggravated robbery,
and Counts 4 and 5, the weapons while under disability charges. It found him guilty
of Count 2, robbery but not guilty of the attached firearm specifications; Count 3,
robbery without the firearm specifications but guilty of the notice of prior conviction
and repeat violent offender specifications; and Count 6, theft.
Prior to sentencing, the trial court found that Counts 2, 3, and 6 were
allied offenses of similar import and merged for purposes of sentencing. The state
elected to proceed on Count 2, robbery, which was a second-degree felony. The trial
court sentenced Lewis to six years of mandatory prison time. The trial court further
notified Lewis that he would be designated a violent offender pursuant to R.C.
2903.41 and that he would be subject to three years of mandatory postrelease
control upon his release from prison. The trial court also imposed court costs. It is
from this judgment that Lewis now appeals.
II. Sufficiency and Manifest Weight of the Evidence
In his first and second assignments of error, Lewis argues that his
convictions were not supported by sufficient evidence and were against the manifest
weight of the evidence.
“The legal concepts of sufficiency of the evidence and weight of the
evidence are both quantitatively and qualitatively different.” State v. Thompkins,
78 Ohio St.3d 380,
678 N.E.2d 541 (1997), paragraph two of the syllabus. As a
matter of appellate review, they involve different means and ends.
Id. at 386-389.
They also invoke different inquiries with different standards of review. Id.; State v.
Smith,
80 Ohio St.3d 89, 113,
684 N.E.2d 668 (1997). The difference, in the simplest
sense, is that sufficiency tests the burden of production while manifest weight tests
the burden of persuasion.
Thompkins at 390 (Cook, J., concurring).
A sufficiency challenge essentially argues that the evidence presented
was inadequate to support the jury verdict as a matter of law. Id. at 386. “‘The
relevant question is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.’” State v. Getsy,
84 Ohio St.3d 180, 193,
702 N.E.2d 866 (1998), quoting Jackson v. Virginia,
443 U.S. 307,
99 S.Ct. 2781,
61
L.Ed.2d 560 (1979). “[A] conviction based on legally insufficient evidence
constitutes a denial of due process.”
Thompkins at 386, citing Tibbs v. Florida,
457
U.S. 31,
102 S.Ct. 2211,
72 L.Ed.2d 652 (1982). When reviewing a challenge to the
sufficiency of the evidence, we review the evidence in a light most favorable to the
prosecution. State v. Hill,
75 Ohio St.3d 195, 205,
661 N.E.2d 1068 (1996).
Unlike sufficiency of the evidence, a challenge to the manifest weight
of the evidence attacks the credibility of the evidence presented. Thompkins, at 387.
Because it is a broader review, a reviewing court may determine that a judgment of
a trial court is sustained by sufficient evidence, but nevertheless conclude that the
judgment is against the weight of the evidence. Id., citing State v. Robinson,
162
Ohio St. 486,
124 N.E.2d 148 (1955).
In determining whether a conviction is against the manifest weight of
the evidence, the court of appeals functions as a “thirteenth juror.” Id.,
78 Ohio St.3d
at 387,
678 N.E.2d 541. In doing so, it must review the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of witnesses, and
determine “‘whether in resolving conflicts in the evidence, the [trier of fact] clearly
lost its way and created such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered.’”
Thompkins at 387, quoting State v.
Martin,
20 Ohio App.3d 172, 175,
485 N.E.2d 717 (1st Dist.1983). Reversing a
conviction as being against the manifest weight of the evidence and ordering a new
trial should be reserved for only the “‘exceptional case in which the evidence weighs
heavily against the conviction.’”
Id. quoting Martin.
In his first assignment of error, Lewis argues that the state failed to
prove that he aided and abetted Franklin.
R.C. 2923.03(A)(2) provides that “[n]o person, acting with the kind
of culpability required for the commission of an offense, shall … [a]id or abet
another in committing the offense.” A charge of complicity may be stated in terms
of the complicity statute or in terms of the principal offense. R.C. 2923.03(F). To
prove complicity by aiding and abetting, the state had to prove beyond a reasonable
doubt “that the defendant supported, assisted, encouraged, cooperated with,
advised, or incited the principal in the commission of the crime, and that the
defendant shared the criminal intent of the principal. Such intent may be inferred
from the circumstances surrounding the crime.” State v. Johnson, 93 Ohio St.3d
240,
754 N.E.2d 796 (2001), syllabus. The criminal intent of the aider and abettor
“can be inferred from the presence, companionship, and conduct of the defendant
before and after the offense is committed.” In re T.K.,
109 Ohio St.3d 512, 2006-
Ohio-3056,
849 N.E.2d 286, ¶ 13, citing Johnson.
Lewis argues that the state failed to present any evidence that he
helped, assisted, encouraged, or strengthened Franklin’s robbery of the victim. He
states that “[i]t is clear that [he] played no part in the robbery and did nothing to
encourage or incite [Franklin] into robbing” the victim. He argues that “[m]erely
being present is insufficient to demonstrate complicity.” He further argues that the
state’s evidence demonstrated that Franklin was the only one who benefited
financially from the robbery, not Lewis.
As with proof of any element of an offense, complicity may be proven
by circumstantial evidence, which has the same probative value as direct evidence.
State v. Jenks, 61 Ohio St.3d 259,
574 N.E.2d 492, paragraph one of the syllabus.
Here, the state presented evidence that Lewis had been driving his girlfriend’s car at
the time of the robbery and that around the same time, another car had hit her silver
Dodge. Lewis messaged his girlfriend at 12:37 a.m. on January 5, 2020, to tell her
about the accident. The state established that someone called 911 at 1:00 a.m. on
January 5, 2020, to report the robbery. The victim stated that she had blacked out
when she was hit and then had to walk to get help, so the exact time of the robbery
could not be determined.
The state also presented evidence from surveillance cameras that
three people were in the silver car. The victim saw that the driver’s side door was
open when she was robbed but admitted that she did not see which side of the
vehicle the robber came from or went back to. Lewis admitted to police that he was
driving his girlfriend’s car around the time of the robbery and that he was with
Franklin. Lewis also admitted that he knew that Franklin intended to “make
money.” Further, around 3:30 a.m., Lewis messaged his girlfriend that he had
money to fix her car. Lewis’s address was also used when someone placed an online
order with the victim’s credit at Finish Line approximately one hour after the
robbery.
After review, we conclude that the state presented sufficient evidence
to prove that Lewis aided and abetted Franklin in robbing the victim. Lewis’s first
assignment of error is without merit.
With respect to Lewis’s second assignment of error that his
convictions were against the manifest weight of the evidence, Lewis essentially
makes the same arguments regarding aiding and abetting that he did with
sufficiency of the evidence. He further argues that because the email used for the
online order at Finish Line was associated with Franklin and that the victim testified
that her stolen phone pinged on the street where Franklin lived, that evidence
established that Franklin acted alone.
Reviewing this case as if we were the fact finder, we do not agree with
Lewis that the trial court clearly lost its way when determining that he was guilty of
aiding and abetting Franklin. Lewis changed his story multiple times when talking
to police. He first stated that he had his girlfriend’s car but that he rented it to
Franklin and was home with his girlfriend on the night of the robbery. But when
Detective Evans confronted Lewis that he could not have been with his girlfriend
because he was messaging her at the time of the robbery, he admitted he had picked
Franklin up in his girlfriend’s car and that Franklin told him that he wanted to make
some money, but that Franklin got out of the car, and he had no idea what Franklin
was doing.
After conducting in independent review of the record, weighing the
evidence and all reasonable inferences, and considering the credibility of the
witnesses, we conclude that it was not against the manifest weight of the evidence
for the trial court to believe the state’s theory that Lewis aided and abetted Franklin
in robbing the victim. Although it is possible that Franklin could have been the sole
person who ordered shoes from Finish Line and had separate online orders shipped
to his house and Lewis’s house as Lewis argues, it is more likely that Lewis placed
the order himself to benefit from the victim’s stolen credit card as well.
We note that although we are required to independently weigh the
evidence, including the credibility of the witnesses, the Ohio Supreme Court made
clear that we “must always be mindful of the presumption in favor of the finder of
fact.” Eastley v. Volkman, 132 Ohio St.3d 328,
2012-Ohio-2179,
972 N.E.2d 517, ¶
21, citing Seasons Coal Co., Inc. v. Cleveland,
10 Ohio St.3d 77,
461 N.E.2d 1273
(1984) (although Eastley was a civil case, the Supreme Court thoroughly discussed
sufficiency and manifest weight of the evidence reviews in civil and criminal cases
and concluded that the reviews are the same whether the case is civil or criminal).
Accordingly, we find that this is not the “‘exceptional case in which
the evidence weighs heavily against the conviction.’” Thompkins, 78 Ohio St.3d at
387,
678 N.E.2d 541, quoting Martin,
20 Ohio App.3d at 175,
485 N.E.2d 717. We
therefore overrule Lewis’s second assignment of error.
Judgment affirmed.
It is ordered that appellee recover from appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
convictions having been affirmed, any bail pending is terminated. Case remanded
to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
MARY J. BOYLE, ADMINISTRATIVE JUDGE
SEAN C. GALLAGHER, J., and
LARRY A. JONES, SR., J., CONCUR
