[Cite as State v. Senz, 2018-Ohio-628.]


STATE OF OHIO                     )                    IN THE COURT OF APPEALS
                                  )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

STATE OF OHIO                                          C.A. No.      17CA0001-M

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
MARK A. SENZ                                           COURT OF COMMON PLEAS
                                                       COUNTY OF MEDINA, OHIO
        Appellant                                      CASE No.   15CR0146

                                  DECISION AND JOURNAL ENTRY

Dated: February 20, 2018



        CARR, Judge.

        {¶1}     Defendant-Appellant Mark Senz appeals from his conviction in the Medina

County Court of Common Pleas. This Court affirms.

                                                  I.

        {¶2}     Senz was indicted in March 2015 on one count of petty theft, a first degree

misdemeanor, and one count of complicity to commit trafficking in cocaine, a fifth degree

felony. Following a trial, a jury found Senz not guilty of complicity to commit trafficking in

cocaine and guilty of petty theft. Senz then filed a motion for acquittal pursuant to Crim.R.

29(C) and renewed his previous motions made at trial. The trial court denied the motions and

sentenced Senz to 180 days in jail and fined him $1000. The sentencing entry reflects that court

costs were waived.

        {¶3}     Senz has appealed, raising four assignments of error for our review.
                                                   2


                                                  II.

                                   ASSIGNMENT OF ERROR I

          THE TRIAL COURT ERRED BY FAILING TO GRANT A JUDGMENT OF
          ACQUITTAL, PURSUANT TO CRIM.R. 29(A), ON THE CHARGE, AND
          THEREAFTER ENTERING A JUDGMENT OF CONVICTION OF THE
          OFFENSE AS THAT CHARGE WAS NOT SUPPORTED BY SUFFICIENT
          EVIDENCE, IN VIOLATION OF DEFENDANT’S RIGHT TO DUE PROCESS
          OF LAW, AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO
          THE UNITED STATES CONSTITUTION.

          {¶4}   Senz argues in his first assignment of error that the trial court erred in denying his

Crim.R. 29 motion. Specifically, he challenges the sufficiency of the evidence establishing mens

rea and whether he used deception. In addition, he maintains that the State was required to

demonstrate that he had the specific purpose to deprive the Medina County Drug Task

Force/Medina County Commissioners of the $60 in light of the language in the indictment.

Thus, he asserts that he had to know the money belonged to the drug task force/county, which he

argues the State failed to establish. We will confine our analysis to the limited arguments made

by Senz on appeal.

          {¶5}   Crim.R. 29(A) provides:

          The court on motion of a defendant or on its own motion, after the evidence on
          either side is closed, shall order the entry of a judgment of acquittal of one or
          more offenses charged in the indictment, information, or complaint, if the
          evidence is insufficient to sustain a conviction of such offense or offenses. The
          court may not reserve ruling on a motion for judgment of acquittal made at the
          close of the state’s case.

          {¶6}   When reviewing the sufficiency of the evidence, this Court must review the

evidence in a light most favorable to the prosecution to determine whether the evidence before

the trial court was sufficient to sustain a conviction. State v. Jenks, 61 Ohio St.3d 259, 279

(1991).
                                                 3


       An appellate court’s function when reviewing the sufficiency of the evidence to
       support a criminal conviction is to examine the evidence admitted at trial to
       determine whether such evidence, if believed, would convince the average mind
       of the defendant’s 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 reasonable doubt.

Id. at paragraph two of the syllabus.

       {¶7}    Senz was found guilty of violating R.C. 2913.02(A)(3). R.C. 2913.02(A)(3)

states that “[n]o person, with purpose to deprive the owner of property or services, shall

knowingly obtain or exert control over either the property or services * * * [b]y deception[.]”

       {¶8}    “A person acts purposely when it is his specific intention to cause a certain result,

or, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of

what the offender intends to accomplish thereby, it is his specific intention to engage in conduct

of that nature.” Former R.C. 2901.22(A).

       “Deprive” means to do any of the following:

       (1) Withhold property of another permanently, or for a period that appropriates a
       substantial portion of its value or use, or with purpose to restore it only upon
       payment of a reward or other consideration;

       (2) Dispose of property so as to make it unlikely that the owner will recover it;

       (3) Accept, use, or appropriate money, property, or services, with purpose not to
       give proper consideration in return for the money, property, or services, and
       without reasonable justification or excuse for not giving proper consideration.

R.C. 2913.01(C).

       {¶9}    “‘Owner’ means, unless the context requires a different meaning, any person,

other than the actor, who is the owner of, who has possession or control of, or who has any

license or interest in property or services, even though the ownership, possession, control,

license, or interest is unlawful.” R.C. 2913.01(D). “A person acts knowingly, regardless of his

purpose, when is aware that his conduct will probably cause a certain result or will probably be
                                                 4


of a certain nature. A person has knowledge of circumstances when he is aware that such

circumstances probably exist.”      Former R.C. 2901.22(B).       “‘Deception’ means knowingly

deceiving another or causing another to be deceived by any false or misleading representation,

by withholding information, by preventing another from acquiring information, or by any other

conduct, act, or omission that creates, confirms, or perpetuates a false impression in another,

including a false impression as to law, value, state of mind, or other objective or subjective fact.”

R.C. 2913.01(A).

       {¶10} The testimony of the State’s witnesses at trial supported the following narrative.

In early 2015, members of the Medina County Drug Task Force began working with a

confidential source, B.S., in order to buy drugs from Charles Sarno. Sarno, who was on house

arrest, indicated that he had a supplier in Akron that could get Sarno an eight ball of cocaine for

$180 and 20 Percocet pills for $180. On February 5, 2015, B.S. was provided with $360 of the

Medina County Drug Task Force’s money in order to conduct the transaction. B.S. and his

vehicle were searched prior to the transaction and the money was photocopied to document the

serial numbers. B.S. was also wired so that the members of the task force could monitor what

was happening to help ensure B.S.’s safety.

       {¶11} B.S. arrived at Sarno’s residence and was invited inside. B.S. provided Sarno

with the money and Sarno expressed concern about buying from the person who was going to

bring the drugs because he did not really know the person. Sarno told B.S. that if anything went

wrong, Sarno would repay B.S. Sarno also indicated that he would call the person to have him

come over. Shortly thereafter, Sarno went outside and met the driver of a blue Saturn who had

pulled into the driveway. Sarno went back inside and the car left. Sarno told B.S. that the driver

had a gun on his lap and told Sarno to take the drugs and go or leave them. Sarno returned to the
                                               5


house with pills and a bag containing a powdery white substance. Sarno and B.S. both thought

the pills and powder were counterfeit. Ultimately, the pills were found to be acetaminophen and

the powder was described by one witness as being baking soda.

       {¶12} Upon hearing Sarno mention that the driver of the vehicle had a gun, Agent John

Stayrook of the Medina County Drug Task Force called B.S. and told him to leave. B.S. left and

met at the predetermined spot where the pills were recovered from him.

       {¶13} In the interim, Deputy Dan Kohler with the Medina County Sheriff’s Department

initiated a traffic stop on the vehicle that had left Sarno’s residence. No gun was found in the

vehicle. Senz, who was the driver, had $60 in his hand; the serial numbers on the money

matched serial numbers on the money given to B.S. to use in the attempted drug transaction.

       {¶14} Gary Hubbard, the Director of the Medina County Drug Task force, spoke with

Senz at the traffic stop after Senz was read his rights. Senz, who was Sarno’s half-brother, told

Director Hubbard that Senz received a call from Sarno around 1 p.m. on February 5th. Sarno

“asked him if he wanted to make $50. [] Senz told [Director Hubbard] that, you know, [he’d]

give [Senz] $50.” Sarno told Senz that “[t]his guy’s coming over to buy drugs and [Sarno was]

going to rip him off, meaning give him fake drugs.” Senz indicated that “he agreed to do that,

that he was supposed to show up around 5 o’clock and that’s when the entire transaction took

place.” Senz also indicated that Sarno was going to call Senz to tell him when to arrive. Senz

relayed that, when he arrived, Sarno walked out of the residence, approached the driver’s side of

the car and gave him $60, walked back into the house, and Senz left. From the conversation,

Detective Hubbard concluded that Senz “knew exactly what was going on.”

       {¶15}    Agents also went to Sarno’s residence, arrested him, and searched the premises.

Agent Michael Barnhardt located a plastic bag containing baking soda in the trash and Sarno
                                                  6


informed the agents that the money was in kitchen cabinet; $300 was recovered from the cabinet.

The serial numbers on that money matched serial numbers on the money that was given to B.S.

to complete the transaction.

       {¶16} Considering Senz’s limited arguments on appeal, and the evidence in a light most

favorable to the prosecution, we conclude that the trial court did not err in denying Senz’s

Crim.R. 29 motion. Part of Senz’s argument is that, in order to be found guilty, the State had to

demonstrate that it was Senz’s purpose to deprive the Medina County Drug Task force of U.S.

currency. Thus, he asserts that he had to know that the money belonged to that agency. He

bases his argument on the language in the indictment that specifically references the Medina

County Drug Task Force/Medina County Commissioners as the owners of the currency.1 We are

unpersuaded by his argument.

       {¶17} Senz has pointed us to no authority indicating that the State was required to

demonstrate that Senz knew the identity of the owner of the property at issue. See App.R.

16(A)(7).   In fact, there is case law that indicates that the identity of the owner of the property is

not an element of the offense. See State v. Mason, 10th Dist. Franklin No. 91AP-1012, 1992

Ohio App. LEXIS 3775, *13 (July 14, 1992) (“While the name of the person from whom the

property was allegedly stolen is typically included in the indictment, it is not an element of a

theft offense.”); State v. Miller, 3d Dist. Shelby No. 17-13-24, 2015-Ohio-644, ¶ 30, quoting

State v. Jones, 8th Dist. Cuyahoga No. 92921, 2010-Ohio-902, ¶ 12 (“‘[T]he gist of a theft



       1
         The indictment states that on or about February 5, 2015, “Mark A. Senz unlawfully did,
with purpose to deprive the Medina County Drug Task Force/Medina County Commissioners,
the owner of property or services, to-wit: U.S. Currency, knowingly obtain or exert control over
said property or services, by deception in violation of Section 2913.02(A)(3) of the Ohio Revised
Code, a misdemeanor of the first degree (M-1), contrary to the statute in such cases made and
provided and against the peace and dignity of the State of Ohio.”
                                                  7


offense is the wrongful taking by the defendant, not the particular ownership of the property.’”);

State v. King, 10th Dist. Franklin Nos. 88AP-665, 88AP-1082, 1989 Ohio App. LEXIS 2897,

*20 (July 18, 1989) (“[T]he state did not have to prove exactly who owned the property at the

time it was stolen.”); State v. Bamonte, 1st Dist. Hamilton No. C-850246, 1986 Ohio App.

LEXIS 8025, *9-10 (Aug. 27, 1986); State v. Denson, 3d Dist. Allen No. 1-83-54, 1984 Ohio

App. LEXIS 11767, *6 (Dec. 6, 1984) (“[A]s to proving the theft offense, the identity of the

owner is not necessary. What is necessary is that the property was not the defendant’s when he

took the property.”); see also R.C. 2913.01, Legislative Service Commission Comment (1973)

(“The gist of theft is a wrongful taking rather than a particular ownership, and it is sufficient that

a thief knows that property or services are not his to take.”). The Supreme Court has even

concluded that, under the statute, “a thief can steal from a thief[.]” State v. Rhodes, 2 Ohio St.3d

74, 76 (1982). This is so because “it is merely necessary to prove that a defendant deprived

someone of property who had ‘possession or control of, or any license or any interest in’ that

property. It is unnecessary, however, for one from whom possession or control is taken to have

lawful possession or control[.]” Id. Accordingly, if the State did not have to prove who owned

the property, it would seem logical that the State would not have to demonstrate that the

defendant knew who owned the property.

       {¶18} To the extent that Senz generally argues that the State failed to demonstrate that

he acted knowingly or purposely, or that he used deception, we also disagree. Viewing the

testimony in a light most favorable to the prosecution, there was evidence that Sarno informed

Senz that Sarno was supposed to sell someone cocaine and that he planned to “rip him off” by

selling fake drugs. Sarno asked Senz if he wanted to make $50 helping Sarno do so. There was

evidence that Senz agreed to assist Sarno and that Senz showed up at Sarno’s residence at the
                                                 8


designated time and took money from Sarno when he came out to Senz’s vehicle to meet him.

From those circumstances, when considered in light of Senz’s limited argument and when

viewed in a light most favorable to the prosecution, a trier of fact could infer that Senz had the

purpose to deprive the owner of property and knowingly obtained or exerted control over the

property by deception. See R.C. 2913.02(A)(3).

       {¶19} Senz’s first assignment of error is overruled.

                                 ASSIGNMENT OF ERROR II

       APPELLANT’S CONVICTION IS AGAINST THE MANIFEST WEIGHT OF
       THE EVIDENCE.

       {¶20} Senz argues in his second assignment of error that his conviction for petty theft is

against the manifest weight of the evidence.

       In determining whether a criminal conviction is against the manifest weight of the
       evidence, an appellate court 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.

State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). “When a court of appeals reverses a

judgment of a trial court on the basis that the verdict is against the weight of the evidence, the

appellate court sits as a ‘thirteenth juror’ and disagrees with the fact[-]finder’s resolution of the

conflicting testimony.” State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting Tibbs v.

Florida, 457 U.S. 31, 42 (1982). An appellate court should exercise the power to reverse a

judgment as against the manifest weight of the evidence only in exceptional cases. Otten at 340.

       {¶21} Senz argues that his conviction was against the weight of the evidence because

the jury was “so caught in the drug allegations that it chose to ignore the evidence as to the theft
                                                9


charge[]” or because Senz’ credibility was “ruined by his trial lawyer’s asking about his drug

trafficking conviction from when he was 18 years old[.]”

       {¶22} Senz testified in his own defense.        Senz, who was 42 at the time of trial,

acknowledged that he had a prior conviction for trafficking in marijuana when he was 18 or 19

years old. However, he asserted that since then, he had no history of drug trafficking and was

not involved with his brother’s drug deals. Nonetheless, he was aware that Sarno was involved

in drug trafficking.

       {¶23} Senz testified that he lost his job in the beginning of January 2015, and was

unemployed on February 5, 2015. Thus, money was tight. Sarno, Senz’s half-brother, was

aware that Senz needed money. Around 1 p.m. on February 5, 2015, Sarno called Senz and

offered to loan him money to get license plates because Senz’s 30-day plates were about to

expire. Sarno told Senz that someone owed Sarno money and that if Senz came over around 5

p.m., Sarno would give Senz $50 to get his license plates.

       {¶24} When Senz arrived at Sarno’s residence, Sarno came outside, hopped in Senz’s

backseat, handed Senz $60, jumped out, and went back in the house. Senz testified that there

was no exchange of drugs, real or counterfeit, or talk about drugs. Senz then left and was shortly

thereafter pulled over by the police. Senz denied that he ever confessed to participating in

Sarno’s drug transaction; Senz testified that he told Director Hubbard exactly what he had just

told the jury. Thus, Senz maintained that Director Hubbard was lying when he testified that Senz

told Director Hubbard about agreeing to assist Sarno in the transaction.

       {¶25} In light of Senz’s limited argument on appeal, we cannot say that he has

demonstrated that the jury lost its way in convicting Senz of petty theft. The jury was not

required to believe Senz’s version of events and heard from Director Hubbard that Senz had
                                                  10


admitted to having a role in Sarno’s scheme to steal money by passing counterfeit drugs off as

genuine drugs. We remain mindful that the jury had an opportunity to view the witnesses and

“was in the best position to assess the credibility of the evidence presented by the parties at trial.”

State v. Klingel, 9th Dist. Lorain No. 15CA010876, 2017-Ohio-1183, ¶ 22. “[T]his Court will

not overturn the [] verdict[s] on a manifest weight of the evidence challenge simply because the

jury chose to believe certain witnesses’ testimony.” (Internal quotations and citations omitted.)

State v. Binford, 9th Dist. Summit No. 27950, 2016-Ohio-7678, ¶ 10.

       {¶26} In light of the foregoing, Senz’s second assignment of error is overruled.

                                 ASSIGNMENT OF ERROR III

       APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AS
       GUARANTEED BY SECTION 10, ARTICLE I, OF THE OHIO
       CONSTITUTION AND THE SIXTH AND FOURTEENTH AMENDMENTS.

       {¶27} Senz argues in his third assignment of error that he was denied the effective

assistance of counsel when trial counsel brought up Senz’s over 20 year old drug trafficking

conviction during trial counsel’s direct examination of Senz.

       {¶28} In order to prevail on a claim of ineffective assistance of counsel, Senz must show

that his “counsel’s performance fell below an objective standard of reasonableness and that

prejudice arose from counsel’s performance.” State v. Reynolds, 80 Ohio St.3d 670, 674 (1998),

citing Strickland v. Washington, 466 U.S. 668, 687 (1984). “The benchmark for judging any

claim of ineffectiveness must be whether counsel’s conduct so undermined the proper

functioning of the adversarial process that the trial cannot be relied on as having produced a just

result.” Strickland at 686. Thus, a two-prong test is necessary to examine such claims. First,

Senz must show that counsel’s performance was objectively deficient by producing evidence that

counsel acted unreasonably. State v. Keith, 79 Ohio St.3d 514, 534 (1997), citing Strickland at
                                                 11


687. Second, he must demonstrate that but for counsel’s errors, there is a reasonable probability

that the results of his trial would have been different. Keith at 534.

       {¶29} Near the end of trial counsel’s direct examination of Senz, trial counsel asked

whether Senz had a prior conviction for trafficking in marijuana. Senz replied affirmatively.

Senz, who was 42 years old at the time of trial, testified that he was 18 years old when he was

convicted. Trial counsel then asked Senz whether he had any history of drug trafficking since

that point in time, and Senz replied that he had not.

       {¶30} On appeal, Senz argues that there was no reason to ask Senz about the drug

trafficking conviction, and that doing so only harmed his credibility with the jury.           Senz

maintains that, due to the age of the conviction, the State would not have been able to ask Senz

about it during trial, absent trial counsel opening the door.

       {¶31} Senz has not demonstrated that trial counsel’s tactic prejudiced Senz. Senz was

found not guilty of the complicity to commit trafficking in cocaine charge. Accordingly, Senz

has not presented any evidence that trial counsel’s strategy negatively affected Senz’s credibility

or that the jury used the evidence of Senz’s prior conviction in an improper manner. Thus, Senz

has not shown that “but for counsel’s error[], there is a reasonable probability that the result[] of

[Senz’s] trial would have been different.” Keith, 79 Ohio St.3d at 534; see also State v. Ellis, 9th

Dist. Summit No. 27013, 2014-Ohio-4186, ¶ 28 (noting that even if admission of other acts

evidence of drug trafficking was improper, such admission was harmless when defendant was

acquitted of trafficking charge); State v. Jackson, 1st Dist. Hamilton No. C-110570, 2012-Ohio-

2727, ¶ 21.

       {¶32} Senz’s third assignment of error is overruled.

                                 ASSIGNMENT OF ERROR IV
                                                 12


          THE COURT COSTS IMPOSED AT THE SENTENCING HEARING
          INFRINGES UPON APPELLANT’S RIGHTS UNDER THE EIGHTH AND
          FOURTEENTH    AMENDMENTS         TO     THE      UNITED      STATES
          CONSTITUTION, R.C. 2929.18, R.C. 2919[.19](B)(5), R.C. 2947.14, AND
          RELATED SECTIONS OF THE OHIO CONSTITUTION.

          {¶33} Senz argues in his fourth assignment of error that the trial court erred in imposing

court costs and a fine for his first degree misdemeanor conviction without holding a hearing at

the time of sentencing to determine Senz’s ability to pay those sums.

          {¶34} “A trial court generally has discretion in misdemeanor sentencing.” State v.

Woody, 9th Dist. Lorain No. 14CA010679, 2016-Ohio-631, ¶ 15, citing State v. Schneider, 9th

Dist. Wayne No. 09CA0026, 2009-Ohio-6025, ¶ 6. “‘Unless a sentence is contrary to law, we

review challenges to misdemeanor sentencing for an abuse of discretion.’” Woody at ¶ 15,

quoting Schneider at ¶ 6. An abuse of discretion indicates that the trial court was unreasonable,

arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219

(1983).

          {¶35} Initially, we note that “the imposition of court costs under R.C. 2947.23 does not

require the trial court to first consider the defendant’s ability to pay.” State v. Battle, 9th Dist.

Summit No. 27549, 2016-Ohio-2917, ¶ 23. Here, at the sentencing hearing, the trial court

imposed court costs and a $1000 fine. However, the sentencing entry reflects that the payment

of courts costs was waived. “It is axiomatic that a court speaks through its journal entries.”

State v. Jones, 9th Dist. Lorain No. 15CA010801, 2017-Ohio-1181, ¶ 7. In light of the trial

court’s judgment entry, Senz has not demonstrated that he will be subjected to the payment of

court costs. Given all of the foregoing, Senz’s argument with respect to costs is without merit.

          {¶36} With respect to Senz’s fine, Senz cites and relies upon R.C. 2929.19(B)(5) for the

proposition that the trial court was required to consider his present and future ability to pay the
                                                13


fine.   However, R.C. 2929.19(B) relates to felony sentencing, as opposed to misdemeanor

sentencing, and thus, would be inapplicable to his circumstances.

        {¶37} Senz also cites to R.C. 2947.14(A) for the proposition that the trial court was

required to hold a hearing at the time of sentencing to determine Senz’s ability to pay the fine.

R.C. 2947.14(A) provides:

        If a fine is imposed as a sentence or a part of a sentence, the court or magistrate
        that imposed the fine may order that the offender be committed to the jail or
        workhouse until the fine is paid or secured to be paid, or the offender is otherwise
        legally discharged, if the court or magistrate determines at a hearing that the
        offender is able, at that time, to pay the fine but refuses to do so. The hearing
        required by this section shall be conducted at the time of sentencing.

        {¶38} On its face, this section addresses sanctions a sentencing court may impose for a

defendant’s failure to pay a fine when he or she is able to do so. R.C. 2947.14(A). The section

provides for a hearing to determine the ability to pay and provides that the hearing shall be

conducted at the time of sentencing. Id. Senz has developed no argument as to why this

particular section would apply to him, nor has he explained why the sentencing hearing

referenced in the statute must be the original sentencing hearing. See App.R. 16(A)(7); State v.

Ramsey, 5th Dist. Licking No. , 2014-Ohio-4232, ¶ 16 (noting and following “the line of Ohio

case law holding the hearing requirement is not triggered until the trial court decides to

incarcerate the offender for failure to pay the fine”). Under these circumstances, Senz has failed

to meet his burden on appeal to demonstrate that the trial court was required to hold a hearing to

determine his ability to pay the fine or that the trial court had to consider his ability to pay the

fine. See App.R. 16(A)(7). Senz has failed to develop any argument explaining how the trial

court’s actions violated the misdemeanor sentencing scheme. We will not develop an argument

on his behalf. See Cardone v. Cardone, 9th Dist. Summit No. 18349, 1998 WL 224934, *8

(May 6, 1998).
                                                14


       {¶39} Senz’s fourth assignment of error is overruled.

                                                III.

       {¶40} Senz’s assignments of error are overruled. The judgment of the Medina County

Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       DONNA J. CARR
                                                       FOR THE COURT




HENSAL, P. J.
TEODOSIO, J.
CONCUR.
                                         15




APPEARANCES:

THOMAS REIN, Attorney at Law, for Appellant.

S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant
Prosecuting Attorney, for Appellee.
