[Cite as State v. Webb, 2013-Ohio-3844.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                      :

        Plaintiff-Appellee                         :            C.A. CASE NO.   25267

v.                                                 :            T.C. NO.   11CR2909/1

JEFFREY W. WEBB                                    :            (Criminal appeal from
                                                                 Common Pleas Court)
        Defendant-Appellant                        :

                                                   :

                                           ..........

                                           OPINION

                         Rendered on the     6th       day of       September     , 2013.

                                           ..........

MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

J. DAVID TURNER, Atty. Reg. No. 0017456, P. O. Box 291771, Kettering, Ohio 45429
      Attorney for Defendant-Appellant

                                           ..........

DONOVAN, J.

                {¶ 1} This matter is before the Court on the Notice of Appeal of Jeffrey

                Webb, filed
[Cite as State v. Webb, 2013-Ohio-3844.]
June 29, 2012. Webb appeals from his June 8, 2012 Judgment Entry of conviction on one

count of possession of heroin, in an amount less than one gram, in violation of R.C.

2925.11(A), a felony of the fifth degree. We hereby affirm the judgment of the trial court.

        {¶ 2}     Webb was indicted on February 6, 2012. After entering a plea of not guilty,

he and a co-defendant filed motions to suppress on March 22, 2012. The trial court held a

hearing on the motions on April 30, 2012. At the hearing, Officer Eric Sheldon of the

Dayton Police Department testified that he has 10 and a half years of experience as a police

officer. He stated that on August 20, 2011, at approximately 7:05 p.m., while on routine

patrol in uniform and in a marked cruiser, he and Officer Nathan Speelman observed a

purple Plymouth Neon execute a right turn from Catalpa Drive onto Otterbein Avenue

without signaling within a hundred feet of the intersection. Sheldon stated that the area is

“somewhat of a high crime area. Specifically, there’s a lot of drug transactions that go on in

that area.” Sheldon stated that he has made drug arrests in the area multiple times.

        {¶ 3}     Based upon the traffic violation, the officers initiated a traffic stop. Sheldon

stated that the Plymouth pulled into a residential driveway at 1719 Auburn Avenue, and he

stated that the officers pulled into the driveway behind the vehicle. According to Sheldon, as

“soon as the vehicle stopped, both the driver and the passenger immediately got out of the

vehicle which is somewhat unusual for a traffic stop. Generally people stay in the vehicle

till you approach them.” Sheldon stated that he was concerned that the occupants were

“trying to distance themselves from something incriminating in the vehicle, whether it be a

weapon or * * * drugs * * * .”

        {¶ 4}     Sheldon stated that he and Speelman got out of their cruiser and ordered the

occupants back into the Plymouth “just so they could be contained until we could determine
                                                                                           3

what was going on exactly.” Sheldon stated that he then approached the driver’s side of the

vehicle.   Sheldon testified that Speelman “indicated that he saw the passenger place

something underneath the passenger seat of the vehicle.”           Based upon Speelman’s

observation, Sheldon stated that the officers decided to remove the subjects from the vehicle

“to make sure weapons weren’t hidden just for our own safety.”

       {¶ 5}    Sheldon determined that the driver of the vehicle was Webb.          Sheldon

stated that Webb “was kind of nervous. Hands were shaking a little bit.” Sheldon testified

that he patted Webb down and placed him in his cruiser “just for safety reasons so he was

contained while Officer Speelman checked the vehicle for weapons.” Sheldon stated that

Webb was not handcuffed or placed under arrest. Sheldon stated that Speelman removed

the passenger, Steven Howson, from the vehicle and placed him in the cruiser with Webb.

       {¶ 6}    Sheldon stated that in the course of his search under the passenger seat,

Speelman found two gelcaps containing heroin. He stated that if the search had not yielded

any drugs or weapons, the men would have been free to leave after the traffic citation was

issued. He stated that the purpose of looking under the passenger seat was strictly for

officer safety. Sheldon stated that after the drugs were discovered, he read Webb his rights

verbatim from a card provided by the prosecutor’s office. Sheldon stated that Webb did not

appear to be under the influence, that he did not coerce Webb, that Webb appeared to

understand the rights he waived, and that Webb did not ask to end the conversation or ask

for a lawyer.

       {¶ 7}    The following exchange occurred:

                Q. * * * When you’re speaking with Mr. Webb, what did he tell you?
                                                                                4

       A. He told us that they had been driving through the area. They

stopped at a house. He bought some what he called medicine. Then went

on to tell us that he had some reoccurring pain that he took medicine for.

We asked him to elaborate what that was, the medicine, and he told us it was

heroin. At first he told us that he had swallowed the medicine and that’s

what I saw him doing when he got a drink of water.             And then he

backtracked and said that he hadn’t swallowed it and you know, just some

different things. Kind of back and forth like that.

       Q. So he was giving you multiple stories about the heroin?

       A. Correct.

       Q. Did you ask him specifically about the two capsules that were

found under the seat?

       A. Yes, we did. He at some point, he seemed like he was a little

confused as to how many we had found. Like he didn’t want to come out

quite and say that, you know, the ones we had found were his and kind of like

well how many did you find? Kind of indicating that there might be more in

the vehicle.

       Q. * * * So at that point in time, could Mr. Webb have been placed

under arrest for possession of heroin?

       A. Yeah, I mean at one point he did admit that the heroin in the

vehicle was his. But it later turned out the heroin that he was referring to

was not the same that we had actually found.
                                                                                     5

          Q. * * * So he was referring to a totally different I guess container of

heroin that what - - that you had not found in the vehicle yet.

          A. Correct.

          Q. * * * But he did admit to ownership of the heroin?

          A. Yes.

          Q. * * * And based on Mr. Webb’s statements, was he placed under

arrest?

          A.   Not initially.    After we found the heroin underneath the

passenger seat, we then decided to tow the vehicle for driver arrest. Officer

Speelman conducted an inventory of the vehicle which we do before we tow

the vehicles to check for valuables. And at that point he found a medicine

bottle containing more heroin.

          Q. * * * And where was that, if you know, where was that bottle

found?

          A. It was found in the center console of the vehicle.

          Q. It was a medicine bottle. Was there a name on the medicine

bottle?

          A. It had Mr. Webb’s name on it.

          Q. And did you also speak with Mr. Webb about the bottle that was

found?

          A. Yes.

          Q. * * * And what did he tell you?
                                                                                            6

                 A. He told us that it was his.

                 Q. And do you know specifically what was found in the medicine

       bottle?

                 A. It was three or four capsules.

                 Q. Of heroin?

                 A. Yes.

       {¶ 8}      Speelman testified that he has over six years of experience with the Dayton

Police Department. He stated that he was on routine patrol with Sheldon on the date of the

incident. He stated that the area of Catalpa and Otterbein is a “typical high drug, high crime

area,” where he has made multiple drug-related arrests.

       {¶ 9}      Speelman’s testimony is consistent with Sheldon’s regarding his

observations of the Plymouth Neon and the traffic violation. Speelman stated that he

believed that the “occupants were trying to elude us” as the vehicle sped up after turning

onto Otterbein and then Auburn. Speelman stated that Webb and Howson exited the Neon

before he and Sheldon were out of their cruiser. Speelman stated he was concerned because

“at that time we weren’t necessarily sure whether or not the vehicle could be stolen and

occupants tend to remove themselves from potential contraband or weapons.” Speelman

stated that the officers ordered the men back into the vehicle, and Speelman stated that he

approached the passenger side of the vehicle.

       {¶ 10} According to Speelman, as Howson re-entered the car, Speelman “noticed

when he sat back down in the vehicle, * * * he had made a lunging motion forward with his

upper torso and I also noticed that he dipped his right shoulder and then kind of made a - -
                                                                                                  7

kind of like a slide back motion with his arm placing something back underneath the

passenger seat.” Specifically, Speelman stated that Howson placed his right hand between

his legs as he was squatting back down, and that he observed some movement underneath

the seat. Speelman stated that his “initial concern was that he potentially was sliding a

weapon back farther underneath the seat” that had perhaps slid forward in the course of the

abrupt stop.

           {¶ 11} Speelman stated that upon observing Howson’s furtive movements, he

advised Sheldon to remove Webb from the car, and Speelman told Howson to get out of the

car. Upon his removal, Speelman stated that he asked Howson if he could pat him down,

Howson agreed, and after finding no weapons, Speelman put Howson in the back of the

cruiser.     Speelman stated that he placed him in the cruiser because “of his furtive

movements that he made getting back into the car.” According to Speelman, “it’s basically

a control measure.” At that time, Howson was not in handcuffs or under arrest, according

to Speelman.       Speelman stated that Webb was also placed in the cruiser for officer safety.

           {¶ 12} Speelman testified that when he looked under the passenger seat, he “noticed

a fliptop cigarette pack, the top was open, that was the only thing that I noticed underneath

the seat and removed it and at which time upon further examination I noticed that there was

two gelatin capsules which contained suspected heroin.” He further testified that “drugs

and weapons * * * kind of go hand in hand. So I mean there’s always that fear that there

could be a potential weapon on a person or inside a vehicle.” Speelman stated that based

upon his training and experience, it is common for drugs to be carried in cigarette boxes.

Speelman, like Sheldon, stated that the men would have been free to leave if there had been
                                                                                            8

no contraband under the seat, after the traffic citation was issued.

Speelman stated that he returned to the cruiser and overheard Sheldon’s conversation with

Webb. According to Speelman, “the more [Webb] talked, there was an indication that there

was potentially more drugs because Mr. Webb was kind of confused on what drugs we

might have found or where we might have found them.”

        {¶ 13} Speelman stated that he removed Howson from the cruiser and read him his

rights verbatim from a card issued by the prosecutor’s office. He stated that Howson did

not appear to be under the influence in any way, that he was not coerced, that he appeared to

understand the rights he waived, and that he did not ask to end the conversation or ask for an

attorney. Speelman stated that Howson told him that the two capsules under the passenger

seat were his. Speelman stated that the car belonged to Webb, and that Webb was issued a

citation for failure to signal.

        {¶ 14} The following exchange occurred during cross-examination of Speelman by

counsel for Howson:

                Q. So you did a visual with your eyes of what’s under the seat, is that

        correct?

                A. Yes, ma’am.

                Q. And you didn’t see a gun, did you?

                A. No, ma’am.

                Q. * * * You didn’t see a gun in the car at all, right?

                A. No, ma’am.

                Q. All you saw was a cigarette pack?
                                                                                 9

        A. Correct.

        Q. And it was closed.

        A. It was open.

        Q. It was facing you?

        A. Yes - - well I mean the cigarette pack fliptop was open. So I

mean define facing me.

        Q. * * * You know how a cigarette pack flips open, it’s the hard kind,

is that correct, we’re talking about?

        A. That’s correct.

        Q. All right. Do you remember the brand? No, okay. So if the

fliptop is open, it’s kind of sitting up. It’s not laying flat, right? If it’s

laying flat, then it’s closed, is that correct? Can I get that?

        A. Yes, that would be correct.

        Q. * * * So you’re saying it’s open. So when it opens, it would have

to be angled, that’s how it works, is that correct?

        A. Angled or I mean I guess on the front label packaging, if that

makes sense.

        Q. * * * So you could see in the cigarette pack when you were looking

underneath the car, under the seat, is that correct?

        A. Yes, ma’am.

        Q. And you immediately saw these gelcaps?

        A. That’s correct
                                                                                          10

              Q. And it was facing to where you could see it? It wasn’t sideways

       or angled sideways or angled in any way, is that - -

              A. No, ma’am.

              Q. And it wasn’t that it was in the side where the seat is next to the

       door. It was actually under the seat in the front, correct?

              A. It was - - I mean the best way that I’d be able to describe it, it was

       pretty much directly underneath the middle of the seat.

              Q. * * * So the seat conceals it?

              A. Correct.

              Q. It’s not like it’s hanging on the side?

              A. Correct.

       {¶ 15} The following exchange occurred between counsel for Webb and Speelman

regarding his observation of Howson’s furtive movements:

              Q. * * * Now at this point, did you suspect that there were drugs in

       the car?

              A. No, ma’am.

              Q. You did not suspect drugs. You suspected a weapon only?

              A. With his movement, that was my concern was that there would be

       a weapon in the vehicle.

              Q. * * * And that was the only reason that you looked under the seat?

              A. That’s correct.

              Q. You did have to look under the seat?
                                                                                  11

       A. Yes, ma’am.

       ***

       Q. * * * But there was no weapon under that seat?

       A. There was no weapon, no, ma’am.

       Q. * * * The cigarette pack, when you saw it, do you remember what

color the box was?

       A. I can’t say for certain.

       Q. * * * Do you recall whether or not there was still foil on the top of

the box from where you flip the top open and there’s foil around the

cigarettes?

       A. I don’t remember, ma’am.

       ***

       Q. You just remember that there were pills there?

       A. Well, there was two gelatin capsules.

       Q. And you were comfortable enough to reach under the seat?

       A. Yes, ma’am.

       Q. * * * Did you have any trouble getting your arm under the seat?

       A. No, ma’am.

       ***

       Q. * * * You found - - you pulled the cigarette box out of - - did you

flip the top to check and make sure what was in it?

       A. The top was open when I discovered the pack underneath it and
                                                                                   12

upon removing the pack that is ultimately when I discovered the capsules of

heroin.

          ***

          Q. So after you had pulled the box, the cigarette box out from under

the seat, that’s when you discovered the capsules inside of it?

          A. That’s - - well I mean I could see that there was something in the

bottom. It was an empty cigarette pack and upon removing the pack from

underneath the seat is when I was totally able to tell what was inside.

          Q. After the cigarette box was out from underneath the seat and in

your hands?

          A. Correct.

          Q. So at that point you walked back to the cruiser and at that point

were either under arrest?

          A. Mr. Howson would have been placed under arrest at that time.

          Q. * * * What about Mr. Webb?

          Q. At that time Mr. Webb was not under arrest.

          Q. * * * And Mr. Howson was under arrest because that cigarette box

had been discovered underneath his seat?

          A. And with the furtive movements that I saw, yes, ma’am.

          Q. And was Mr. Webb in the back of the cruiser at that time?

          A. Yes, ma’am.

{¶ 16}     The court’s journal entry indicates that it overruled Webb’s (and Howson’s)
                                                                                           13

motions to suppress for the reasons stated on the record at the conclusion of the hearing. The

court indicated that it found both Sheldon and Speelman to be credible. The court noted

Sheldon’s ten-year experience as a police officer as well as Speelman’s six-year experience.

The court noted that it was still daylight at 7:05 p.m., and that both officers indicated that

they were in a high crime area. The court found as a matter of fact that “there is enough

room to activate a right turn signal before getting within a hundred feet of the intersection”

where the driver executed his turn. The court noted that it “is convinced that the vehicle

turn signal was activated * * * within that one hundred feet area in violation of the ordnance

(sic). And so the Court finds that these officers at that point in time did have not only

reasonable suspicion but probable cause to conduct a traffic stop. So the traffic stop that

ultimately occurs is a legitimate traffic stop.”

        {¶ 17} The court noted Speelman’s suspicion that “there was some eluding

behavior going on here” when the Defendants’ vehicle sped up on Otterbein, and it further

noted that both officers testified credibly that it is “unusual behavior” for the occupants to

have immediately exited their vehicle upon being stopped. The court noted Sheldon’s

concern that the occupants were trying to distance themselves from the vehicle, as well as

Speelman’s concern that “this was further potential behavior in terms of eluding the

officers.”

        {¶ 18} The court noted that the officers ordered the men back into their vehicle “to

contain the situation and to minimize any potential safety issues,” and it determined that

doing so “was entirely proper.”         The court noted Howson’s furtive gesture and it

determined, “it’s important to know it is a gesture done by [Howson] after he knows of the
                                                                                          14

presence of the police officers. * * * So Officer Speelman then has a concern which the

Court finds to be a reasonable concern that what could have been secreted under that seat,

the passenger seat, was a weapon.”

          {¶ 19} Upon removal of the occupants, the court noted Sheldon’s observation that

Webb appeared to be nervous. The court noted that when the occupants were placed in the

cruiser, they were neither under arrest nor handcuffed. Regarding the cigarette box found by

Speelman, the court noted as follows:

                 * * * And as he testified, he looks under the passenger seat and he

          notices an open cigarette packet and he notices a substance in them (sic).

          Not cigarettes.       But a substance.   Now he also testified that in his

          experience, drugs are typically carried in cigarette boxes. And so he then

          pulls the cigarette box out from underneath the seat so that he could look

          inside the cigarette pack and then he discovers the gelcaps which ultimately

          contain the heroin.

The court next found that both Defendants knowingly and voluntarily waived their Miranda

rights.

          {¶ 20} The court emphasized that Howson’s furtive movements were “in response

to or at least could be interpreted by the officers in response to their presence.” The court

found as follows:

                 * * * based upon the totality of these circumstances, Officer Speelman

          did have reasonable articulable suspicion that there might be secreted under

          that passenger seat a weapon. And so he was within his authority to look
                                                                                   15

under the passenger seat. So he was where he had a right to be when he put

his head under the seat and then he saw that open cigarette pack.

       Now and so (sic) he’s making this observation in plain view. And he

sees an open cigarette pack and he notices that not within it are cigarettes but

some substance. And we have on the record the testimony that drugs are

often secreted in cigarette packs. So you have all these additional factors and

again, I combine these with all of the factors leading up to the protective

search of the vehicle, the furtive behavior by [Howson] and all of the other

factors that must also be combined now with this ultimate decision by Officer

Speelman to search that cigarette pack.

       Now the question is does he at that point in time have probable cause

to do that? Ms. Souther says it’s a mere hunch that he has. And probable

cause is defined as whether under the facts and circumstances there is within

the knowledge of the officer reasonably trustworthy information that would

warrant a prudent individual in believing that there would be drugs in that

cigarette pack.

       So applying all of the totality of the circumstances * * * the Court

finds that at the point in time Officer Speelman sees the cigarette pack and he

sees something in that pack, under the totality of the circumstances, a

reasonable - - a person under those facts and circumstances had reasonably

trustworthy information that would warrant a prudent person into believing

that there may be drugs in that cigarette pack. And therefore, the Court finds
                                                                                          16

       that was a probable cause automobile search that is justified under the Carroll

       doctrine. And so it was a probable cause automobile search that makes this a

       lawful search of the contents of that cigarette pack and therefore for all of

       those reasons, the Court overrules both Defendants’ motions to suppress.

       {¶ 21} On May 11, 2012, Webb withdrew his plea of not guilty and entered a plea

of no contest, and he received a sentence of 5 years of community control sanctions.

       {¶ 22}     Webb asserts one assignment of error herein as follows:

       “THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S MOTION TO

SUPPRESS AS THE SEIZURE OF THE FLIP-TOP CIGARETTE PACK FROM

UNDERNEATH THE SEAT OF THE VEHICLE AND SUBSEQUENT SEARCH OF THE

CIGARETTE PACK WAS UNLAWFUL.”

       {¶ 23} As this Court has previously noted:

                In addressing a motion to suppress, the trial court assumes the role of

       the trier of fact.    State v. Morgan, 2d Dist. Montgomery No. 18985,

       2002-Ohio-268, citing State v. Curry, 95 Ohio App.3d 93, 96, 641 N.E.2d

       1172 (8th Dist. 1994).      The court must determine the credibility of the

       witnesses and weigh the evidence presented at the hearing. Id. In reviewing

       the trial court’s ruling, an appellate court must accept the findings of fact

       made by the trial court if they are supported by competent, credible evidence.

        Id.   However, “the reviewing court must independently determine, as a

       matter of law, whether the facts meet the appropriate legal standard.” Id.

                The Fourth Amendment to the United States Constitution protects
                                                                                            17

       individuals from unreasonable searches and seizures. Terry v. Ohio, 392

       U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. Under Terry, police officers may

       briefly stop and/or detain individuals in order to investigate possible criminal

       activity if the officers have a reasonable, articulable suspicion that criminal

       activity may be afoot. State v.Martin, 2d Dist. Montgomery No. 20270,

       2004-Ohio-2738, ¶ 10, citing Terry.          We determine the existence of

       reasonable suspicion by evaluating the totality of the circumstances,

       considering those circumstances “through the eyes of the reasonable and

       prudent police officer on the scene who must react to events as they unfold.”

       State v. Heard, 2d Dist. Montgomery No. 19323, 2003-Ohio-1047, ¶ 14,

       quoting State v. Andrews, 57 Ohio St.3d 86, 87-88, 565 N.E.2d 1271 (1991).

       The officer must have more than an inchoate hunch or suspicion to justify an

       investigatory stop.    State v. Walker, 2d Dist. Montgomery No. 24542,

       2012-Ohio-847,¶ 17-18.

       {¶ 24} Further, as this Court has noted: “[T]he police may search the passenger

compartment of an automobile, limited to those areas in which a weapon may be placed or

hidden, if an officer possesses a reasonable belief that an individual is dangerous and may

gain immediate control of weapons located in the vehicle upon returning to it. Michigan v.

Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983); State v. Roye, 2d Dist.

Greene No. 2001-CA-5, 2001 WL 703869 (June 22, 2001).” Walker, ¶ 28. “To justify * *

* the search of a passenger compartment. ‘The police officer must be able to point to

specific and articulable facts which, taken together with rational inferences from those facts,
                                                                                              18

reasonably warrant that intrusion. * * * .” Id., ¶ 29. “[T]he issue is whether a reasonably

prudent man in the circumstances would be warranted in the belief that his safety or that of

others was in danger. * * * .” Id. See also, as cited by the trial court, State v. Curry, 2d

Dist. Montgomery No. 15028, 1997 WL 24788 (Jan. 24, 1997). (affirming suppression order

where “a furtive gesture, consistent with secreting a weapon,” in response to a stop for a

license plate violation, justified a pat down search).

       {¶ 25}    We finally note that the “existence of probable cause satisfies the purposes

of the warrant requirement, and relieves an officer of the need to obtain a prior warrant when

that is not practicable.”        State v. Griffith, 2d Dist. Montgomery No. 24275,

2011-Ohio-4476, ¶ 15. “Probable cause arises when ‘the facts and circumstances within [a

police officer’s] knowledge and of which [he has] reasonably trustworthy information were

sufficient in themselves to warrant a man of reasonable caution in the belief’ that criminal

conduct was afoot. Carroll v. United States (1924), 267 U.S. 132, 162, 45 S.Ct. 280, 69

L.Ed. 543, 555.” State v. McClemore, 2d Dist. Montgomery No. 24211, 2011-Ohio-243, ¶

16.

       {¶ 26} We initially note that the trial court found both officers’ testimony to be

credible, and we defer to the trial court’s assessment of credibility. Based upon the totality of

the circumstances, we agree with the trial court that Speelman’s seizure and search of the

cigarette pack was lawful. After observing the traffic violation and initiating the traffic

stop, Speelman noted that the Plymouth appeared to be eluding the officers. Sheldon

testified that it was “unusual” for the occupants to immediately exit the vehicle as Webb and

Howson did, and Speelman testified that their behavior suggested that the men sought to
                                                                                           19

“remove themselves from potential contraband and weapons.” Both officers had made

multiple drug-related arrests in the area where the stop occurred. Upon being ordered back

into Plymouth, Speelman observed furtive movements by Howson that suggested that he

may have been attempting to conceal a weapon under the seat.              As the trial court

emphasized, this gesture was made while Howson was fully aware of the officers’ presence.

After the men were ordered out of the Plymouth, Webb appeared nervous. Both officers

testified that Webb and Howson would have been free to go after the traffic citation was

issued, in the absence of a basis to prolong the stop. As the trial court found, Speelman’s

testimony makes clear that he had a reasonable, articulable suspicion that a weapon may be

hidden under the passenger seat of the car, and he “was within his authority to look under the

passenger seat.”

       {¶ 27} Upon his observation of the open cigarette pack, which did not contain

cigarettes but rather, according to Speelman, “something on the bottom,” and based upon his

training and experience regarding the common practice of concealing illegal drugs in

cigarette packs, Speelman looked inside the open pack and found the gel caps.       Under all

of the above facts and circumstances, Speelman had reasonably trustworthy information

warranting his belief that the cigarette pack may have contained drugs. In other words, as

the trial court determined, Speelman had probable cause to retrieve the cigarette pack and the

gel caps were in plain view therein. There being no merit to Webb’s assigned error, it is

overruled, and the judgment of the trial court is affirmed.

                                         ..........

FROELICH, J. and WELBAUM, J., concur.
                        20

Copies mailed to:

Michele D. Phipps
J. David Turner
Hon. Dennis J. Langer
