[Cite as State v. Schillo, 2014-Ohio-2262.]




                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 100080


                                       STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                   GREGORY SCHILLO
                                                       DEFENDANT-APPELLANT




                                  JUDGMENT:
                        REVERSED, CONVICTION VACATED,
                               AND REMANDED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                     Case No. 12-CR-568852

              BEFORE:           Blackmon, J., Boyle, A.J., and Keough, J.

              RELEASED AND JOURNALIZED:                    May 29, 2014
                                            -i-

ATTORNEYS FOR APPELLANT

Ian N. Friedman
Kristina W. Supler
McCarthy, Lebit, Crystal, Liffman, L.L.C.
101 Prospect Avenue, W.
Suite 1800
Cleveland, Ohio 44115

Ronald L. Frey
Eric C. Nemecek
Friedman & Frey, L.L.C.
1304 West 6th Street
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Andrew Rogalski
Joseph J. Ricotta
Assistant County Prosecutors
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:

       {¶1} Appellant Gregory Schillo appeals his convictions and sentence following a

bench trial. Schillo assigns the following errors for our review:

       I. The trial court violated Mr. Schillo’s constitutional rights by admitting a
       prejudicial anonymous letter at trial.

       II. The state of Ohio failed to introduce sufficient evidence to sustain the
       conviction in this case.

       III. Mr. Schillo’s convictions are against the manifest weight of the
       evidence.

       IV. The trial court erred and imposed a sentence contrary to law by failing
       to consider all statutory sentencing factors.

       {¶2} After reviewing the record and pertinent law, we reverse Schillo’s

convictions, vacate his sentence, and remand for a new trial. The apposite facts follow.

       {¶3} On November 20, 2012, the Cuyahoga County Grand Jury indicted Schillo

on two counts of aggravated vehicular assault, third and fourth degree felonies

respectively, and one count of driving under the influence, a first degree misdemeanor.

On December 11, 2012, Schillo pleaded not guilty at his arraignment.           On May 28,

2013, a bench trial commenced after Schillo executed a waiver of his right to a jury trial.

                                       Bench Trial

       {¶4} Through the testimony of 15 witnesses, the evidence established that on

November 9, 2012, at approximately 11:30 p.m., during a light drizzle, David Gamble

was traveling eastbound on his bicycle across the Lorain-Carnegie Bridge. At the time,

Gamble was headed to work wearing black jeans, a jacket with red sleeves, and carrying a
black backpack with a diagonal reflector. Gamble’s bicycle was only equipped with

reflectors on the pedals, but had no night-light. Schillo, along his wife, had been out to

dinner with members of the Brecksville Pre-School Mother’s Club and their husbands,

and was traveling eastbound in his Jeep across the Lorain-Carnegie Bridge.

        {¶5} The Lorain-Carnegie Bridge has four lanes; two lanes going east and two

lanes going west, and equipped with street lamps, as well as bridge-lamps. Both Gamble

and Schillo were properly traveling in the right curb lane that has chevron markings

indicating its shared use by bicycle and motorized vehicles. Shortly after Schillo had

passed the crest of the bridge, his Jeep struck Gamble’s bicycle. Gamble flew through

the air and landed on the ground unconscious. Three weeks later, Gamble awoke in the

intensive care unit of MetroHealth Hospital, a quadriplegic, paralyzed from his neck

down.

        {¶6} At the scene of the collision, Schillo indicated that he did not see Gamble.

He initially denied he had been drinking, but then admitted that he had consumed one

beer, six hours earlier. When asked to perform a field sobriety test, Schillo refused,

indicating that he wanted to speak with his lawyer, and was consequently arrested.

During post-arrest proceedings, the police asked Schillo to submit to a breathalyzer, but

Schillo again indicated that he wanted to speak with his attorney. Schillo did not submit

to the breathalyzer test.

        {¶7} Subsequent investigation revealed that approximately 14-16 members of the

Brecksville Pre-School Mother’s Club and their husbands had a 7:30 dinner reservation at
the Market Garden Brewery (“Market Garden”) located in Ohio City. Around 6:30 that

evening, the dinner guests, including Schillo and his wife, began filtering into the area.

Schillo and his wife were among a number of guests who arrived early and went next

door to the adjoining Great Lakes Brewing Company (“Great Lakes”) to have drinks

before dinner.

       {¶8} At 7:30 p.m., the dinner guests sat down for their meals and drinks. After

about three hours, a number of dinner guests returned to the Great Lakes for after-dinner

drinks. Around 11:15 p.m., Schillo, his wife, and another couple departed Great Lakes,

headed for their respective homes. Subsequent investigations revealed that credit card

receipts from Great Lakes and Market Garden indicated that Schillo purchased a total of

nine high-alcohol-content beers that night.

       {¶9} The victim, Gamble, testified that at the time of the collision, he was

working as a security guard for Spread Networks, located in downtown Cleveland.

Gamble testified that he rode his bicycle across the Lorain-Carnegie Bridge every night,

Monday through Friday, headed to work. Gamble had chosen that route because the

bridge was well lit and had traveled back and forth more than a thousand times without

incident. He specifically rode in the middle of the lanes so that motorized vehicles

would not attempt to pass him without moving to the left lane.

       {¶10} Dan Bernier witnessed the collision. He was in the left lane, traveling

eastbound across the Lorain-Carnegie Bridge, and Schillo’s Jeep was about 50-75 feet

ahead of him. Bernier testified that he noticed the bicyclist in the right lane ahead of the
Jeep. Bernier began decelerating to allow space for Schillo to move into the left lane,

but Schillo never switched lanes. Instead, Schillo slammed directly into Gamble.

       {¶11} Bernier stated that the bicyclist was clearly visible, despite it being

night-time, and despite the light rain drizzle. Bernier travels back and forth across the

Lorain-Carnegie Bridge numerous times each week and has never had a problem with

visibility. Bernier expressed surprise that Schillo did not see the bicyclist.

       {¶12} Officer Charles Moten of the Cleveland Police Department’s Accident

Investigation Unit responded to the scene shortly after the collision. Officer Moten

testified that he arrived after Gamble had been transported to the hospital. Officer Moten

arrived on the scene after Schillo and his wife were placed in the back of the first

responding patrol car.

       {¶13} Officer Moten testified that he asked Schillo to exit the car and the two

stood in front of his patrol car, so that all interactions could be recorded by the

dash-camera.    He immediately noticed that Schillo’s speech was slurred and that he had

a heavy odor of alcohol. Officer Moten stated that when he asked whether he had been

drinking, Schillo said he had not been drinking, but then acknowledged that he drank one

beer six hours earlier.   Officer Moten testified that because of Schillo’s slurred speech,

odor of alcohol, and severity of the accident, he asked Schillo to perform the Standard

Field Sobriety Test. Officer Moten stated Schillo refused to perform the requested test

and was arrested.

       {¶14} While at the scene, Officer Moten was summoned to another scene of
another accident, but before leaving, he noted that the bridge was well lit, with the

exception of one non-working street light. Officer Moten also noted that the westbound

curb lane was under construction. Several hours later, Officer Moten returned to the

scene and took a video of the site including the bridge and its lighting.

       {¶15} Officer Scott Huff relieved Officer Moten.          Officer Huff testified that

Schillo spoke in a slurred, faded, and methodical manner, which in his experience was

indicative of intoxication.

       {¶16} Officer Huff stated that Schillo was transported downtown to be booked,

and Officer Huff asked Schillo to take a breathalyzer, but Schillo responded he wanted to

speak with his attorney. When Officer Huff advised Schillo that his license would

automatically be suspended for a year, Schillo again asked to speak with his attorney.

Schillo never took the breathalyzer.

       {¶17} The state presented the testimony of five member of the Brecksville

Pre-School Mother’s Club; they were in attendance at Great Lakes and Market Garden.

Some of the guests testified that they only went to the Market Garden for dinner, while

others testified that they also went to Great Lakes, either before dinner or after dinner, or

both. All testified that they had consumed varying amounts of alcoholic beverages

throughout the evening. All guests largely testified that based on where they had been

seated at dinner, or where they were located in the two-tier Great Lakes, they only

observed Schillo drink one or two beers. None of these guests testified that Schillo

appeared intoxicated that evening.
       {¶18} Heather Toth (“Heather”), 1 one of the members of the Brecksville

Pre-School Mother’s Club, and a friend of Schillo since high school and college, testified

for the state.   She stated that she and her husband left Great Lakes with Schillo and his

wife. Heather was the designated driver for her husband that night, and she walked with

Schillo to the parking lot located a couple blocks away, retrieved their respective vehicles,

and returned and collected their spouses.

       {¶19} Both couples drove away from Great Lakes; they were approaching the

Lorain-Carnegie Bridge, both cars came to a stop light; Heather in the right lane and

Schillo in the left. Heather testified that when the light turned green, Schillo sped off; he

was within two car lengths, and she observed him switch to the right lane and then back

to the left. Heather testified that Schillo passed two cars, then switched back into the

right lane, prompting her to think to herself that “Greg is driving pretty ballsy considering

— considering he’s been drinking.”      She saw him again upon reaching the crest of the

bridge where the accident occurred. She apparently did not see the collision.

       {¶20} Heather stated that as she began placing a 911 call, Schillo approached and

asked “Heather, do you have anything for me?” Heather was unsure what he meant.

Schillo asked a second time, and Heather indicated she had chewing gum, she asked if he

wanted it, and he accepted. When asked why she offered Schillo chewing gum, Heather

said that she gave him the chewing gum because he had a beer before they left the bar.


       1
        Heather’s husband, Eric Toth, testified for the defense, so these witnesses
will be referred to by their first names.
       {¶21} At the close of the state’s case in chief, Schillo moved for acquittal, but the

trial court denied the motion.

       {¶22} Heather’s husband, Eric Toth, testified on Schillo’s behalf.          He stated

that he had known Schillo since they were six or seven years old; they went to high school

together and have been friends throughout. He observed that Schillo drank two, no more

than three, beers that night and that Schillo did not appear to be impaired or intoxicated.

       {¶23} Schillo testified that he drank a total of three beers between the hours of 6

p.m. and 9 p.m., and that he was not impaired at the time of the collision.    He stated that

he had no advance notice that the bicycle was in his lane until it was too late. On

cross-examination, when asked about the nine high-alcohol-content beers that appeared

on his credit card receipts from Market Garden and Great Lakes, Schillo said that his wife

drank the other six beers.

       {¶24} Dale Meyer is a qualified expert in the field of accident reconstruction; he

testified on Schillo’s behalf. Meyer concluded that the collision was unavoidable and

did not flow from reckless or impaired driving.     Rather, Meyer attributed the collision to

the poor lighting on the bridge and lack of reflective materials on the bicycle or on

Gamble. Meyer stated that because the accident happened between the 11th and 13th

street lamps, and the 12th street lamp was not working, there was darkness spanning some

400 hundred feet before there was light. Meyer thus concluded that by the time Schillo

traveled through that span of darkness, the bicycle was literally in front of the Jeep.
       {¶25} On June 3, 2013, the trial court found Schillo guilty of all three counts. On

June 27, 2013, the trial court sentenced Schillo to a maximum of five years in prison,

imposed a $5,000 fine, and a seven-year driver’s license suspension. Schillo now appeals.

                            Admission of Anonymous Letter

       {¶26} In the first assigned error, Schillo argues the trial court erred by admitting an

anonymous letter.

       {¶27} The admission or exclusion of evidence is a matter left to the trial court’s

sound discretion; therefore, it will not be disturbed absent an abuse of discretion. State v.

Frazier, 8th Dist. Cuyahoga No. 97178, 2012-Ohio-1198, ¶ 17. An abuse of discretion is

a decision that is unreasonable, arbitrary, or unconscionable, rather than a mere error in

judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

       {¶28} Hearsay is defined as “a statement, other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” Evid.R. 801(C). Pursuant to Evid.R. 802, hearsay is inadmissible unless it falls

within an exception provided by the rules of evidence. Should hearsay statements be

admitted improperly, however, such error does not necessarily require reversal of the

outcome of the trial if it was harmless. See Arizona v. Fulminante, 499 U.S. 279,

306-309, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).

       {¶29} Crim.R. 52(A) describes a harmless error as one that “does not affect

substantial rights (and therefore) shall be disregarded.” In order to find harmless error in a

criminal matter, a reviewing court must find that the error was harmless beyond a
reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705

(1967). When determining whether the admission of evidence is harmless, this court must

find that “there is no reasonable probability that the evidence may have contributed to the

defendant’s conviction.”      State v. Simmons, 8th Dist. Cuyahoga No. 98613,

2013-Ohio-1789.

      {¶30} In the instant case, Detective Richard Cerny, the lead investigator, was

questioned on cross-examination as follows:

      Q.     Okay. You didn’t begin any investigation until sometime in February 2013;
             is that a fair statement?

      A.     No. There was investigation going on. I think I got an anonymous letter
             from the prosecutor’s office in February.

      Q.     An anonymous letter?

      A.     Yes.

      Q.     First time I heard about that. Where did that come from?

      A.     That’s why it’s called an anonymous letter perhaps.

Tr. 369.

      Q.     Did you make a report concerning receiving the anonymous letter?

      A.     I did.

      Q.     May I see?

      A.     Sure. You want to see my report or the anonymous letter.

      Q.     Well, just a second.

Tr. 371.
      {¶31} Subsequent to the above exchange, in a sidebar discussion between the trial

court and counsel, Schillo’s defense counsel claimed the state had not provided

information about the letter or a police report from Detective Cerny regarding the letter.

The state indicated that the information about the letter was in the police report that had

been provided in discovery.     The state also indicated that they had no intentions of using

the anonymous letter because it contained hearsay.

      {¶32} On redirect examination, the state questioned Detective Cerny about the

investigatory steps he took after receiving the anonymous letter.           Detective Cerny

indicated that he contacted the people listed in the letter and obtained their statements.

Detective Cerny also indicated that he had included the existence of the anonymous letter

in one of his police reports. The state proceeded to inquire about the content of the

letter, and defense counsel objected, prompting the following sidebar discussion:

      Mr. Gasper: The defense is objecting because of this being an anonymous letter.
                        It mentions people, they have all testified before this court
                        under oath. The subject matter of the anonymous note that
                        the police acted on is of no concern. It actually violates my
                        client’s Sixth Amendment Right of confrontation. How do
                        we cross examine an anonymous note since it’s never been
                        determined who wrote that note since the people who were at
                        the party have all been gotten statements from, have been
                        examined and cross examined before this court? I see no
                        probative value of the contents of the anonymous letter.

      The Court:              Okay. State of Ohio?

      Mr. Rogalski:           Thank you, Your Honor. A couple things. Number one, the
                              State of Ohio did not use this letter in its Direct Examination.
                              It waited for the defense attorney to open the door. It was
                              through responses from defense attorney’s questions that we
                              got to the topic of the anonymous letter. So I think the State
                          of Ohio is entitled for the detective to explain what it is and
                          what he did with it since defense attorney opened the door.

                          Second of all, to the extent that it contains out-of-court
                          declarations, the State of Ohio wouldn’t be using it for the
                          truth of the matter asserted but also for why the detective did
                          what he did. This court can certainly — You know, in a
                          jury trial you could give a limiting instruction that evidence
                          can be used for one purpose but not for another. You can
                          decide what the force of the evidence is and how you can
                          consider it. But I think at this point in time it is relevant and
                          admissible.

      Mr. Gasper: Your Honor, first of all, we haven’t reached the point of
                       admissibility yet. The issue is whether or not this anonymous
                       statement can be read into the record. This detective already
                       said on the basis of this anonymous letter he contacted these
                       people telephonically and got statements from them. So what
                       other purpose is this anonymous letter for?

      The Court:          Well, I’m not going to discount the letter because I think,
                          again, this was all brought up by your questioning. And he
                          has a right to — because your main question was what was
                          your investigation and how did you get where you got to, he
                          can certainly testify that this letter is the way it is.

      Mr. Gasper: And I don’t think it’s the content. In other words, this guy is drunk,
                        whatever the words are, okay. There’s no basis for us to
                        confront that statement because it’s in — What I’m saying is
                        you don’t have to have the contents of that for him to properly
                        testify as a witness.

      The Court:          We don’t have a jury, though, so it doesn’t make a difference.
                          I’ll overrule your objection.

Tr. 397-400.

      {¶33} Thereafter, the following exchange took place:

      The Prosecutor:     Detective Cerny, what was the content of that letter that
                          caused you to contact all of those witnesses?
       Det. Cerny: In the body of the letter that was addressed to Mary C. Weston, the
                          prosecutor that was formerly handling the case, it says, “As
                          you suspect. . . Greg Schillo was extremely intoxicated the
                          night of the incident. He and his wife Erin went out to dinner
                          with several other couples. The night started out at Great
                          Lakes Brewing Company, then dinner at Bier Market and then
                          back to Great Lakes. He drank the entire time often bragging
                          how many Festivus he could drink. I’m coming forward
                          anonymously because he could have killed David. David did
                          not deserve this. I do not wish for Greg to go to jail, but I do
                          not think he should be able to walk away unscathed and blame
                          things on the true victim. Ms. Schillo is painting a sober
                          picture of her husband which is really not the case.”

                            And then the seven females on there with their phone
                            numbers on the bottom. It says, “I just need to have a clear
                            conscience. Thank you!”

Tr. 400-401.

       {¶34} Schillo contends that admission of the letter was prejudicial and this

mandates a new trial. For reasons to be discussed in more detail below, we conclude that

Schillo was prejudiced, because we cannot say beyond a reasonable doubt that the

admission of the anonymous letter was harmless.

       {¶35}    In reaching this conclusion, we are mindful of the testimony that weighs

in favor of concluding that the admission of the letter was harmless error. For example,

after initially stating that he had not been drinking, then stating that he had one beer six

hours earlier, Schillo ultimately admitted that he drank only three of the nine

high-alcohol-content beers he and his wife purchased that evening. Schillo also admitted

that he lied because he was scared. In addition, Schillo refused to perform the field
sobriety test and refused to take the breathalyzer, despite being advised that he faced an

automatic license suspension.

       {¶36} Both Officers Moten and Huff testified that Schillo was impaired at the

time of the collision. Officer Moten, who has responded to more than 200 accidents, and

interacted with approximately 600 to 700 people suspected of driving under the influence

of alcohol, testified that Schillo was impaired. Notably, Officer Moten, trained in Alcohol

Detention, Apprehension and Prosecution for OVI, testified that Schillo was impaired.

       {¶37} Officer Huff, who interacted with Schillo both at the scene and at the

booking station, testified that Schillo’s speech was slurred, that he spoke in faded

sentences, and had an odor of alcohol.        Officer Huff concluded that Schillo was

extremely impaired and unfit to drive.

       {¶38} In addition, Heather testified that Schillo was driving ballsy, considering

he’s been drinking. Heather testified that she gave Schillo gum at the scene of the

collision because he drank a beer before they left Great Lakes.

       {¶39} Further, despite Meyer, Schillo’s hired accident reconstruction expert’s

opinion, that the collision was unavoidable and not caused by being impaired, but by poor

lighting on the bridge and by the lack of proper reflectors on Gamble’s bicycle and

clothing, Bernier’s testimony suggests otherwise. Bernier, who Meyer never sought to

contact during the investigation, watched as the collision unfolded. Given that Bernier

could clearly see Gamble on the bicycle and that he had enough time to decelerate to
allow Schillo to change lanes, suggests that Schillo’s reaction time was diminished if he

failed to see Gamble until he struck the bicycle.

       {¶40} The above examples when juxtaposed with the testimony of the five

members of the Brecksville Pre-School Mother’s Club, whose names were listed in the

anonymous letter, weighs against finding that the letter was harmless. All five guests

testified that they only observed Schillo drink one or two beers, and none testified that

Schillo appeared intoxicated that evening. In addition, none of the employees of Great

Lakes or Market Garden testified that Schillo was intoxicated. Thus, we cannot say

beyond a reasonable doubt that the admission of the anonymous letter in this bench trial

did not tip the proverbial scale in favor of guilt.

       {¶41} Appellate courts presume that a trial court only considered relevant and

admissible evidence in a bench trial. See State v. Chandler, 8th Dist. Cuyahoga No.

81817, 2003-Ohio-6037, ¶ 17, citing State v. Post, 32 Ohio St.3d 380, 384, 513 N.E.2d

754 (1987). When the trial court is the trier of fact, the judge is presumed capable of

disregarding improper hearsay evidence, and unless it is demonstrated that the court relied

on inadmissible hearsay, a conviction will not be reversed. State v. Crawford, 8th Dist.

Cuyahoga No. 98605,2013-Ohio-1659, citing In re Sims, 13 Ohio App.3d 37, 468 N.E.2d

111 (12th Dist.1983).

       {¶42} However, with all due respect to the various trial judges who sit as the trier

of fact in countless cases each year, the fact that a defendant forgoes a jury trial is hardly

an excuse to give the state free rein to admit any and all evidence on the presumption that
the trial court will separate the wheat from the chaff. State v. Hubbs, 2d Dist.

Montgomery No. 24969, 2012-Ohio-5313, citing State v. Hamilton, 77 Ohio App.3d 293,

300, 602 N.E.2d 278 (12th Dist.1991).

       {¶43} Although an accused is not entitled to a perfect trial, he is entitled to a fair

trial. Id., citing Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974);

 State v. Fawn, 12 Ohio App.3d 25, 28, 114, 465 N.E.2d 896 (10th Dist.1983). By

agreeing to have the trial courts sit as the trier of fact, the defendant does not waive his

right to have only relevant evidence submitted to the trier of fact. Id.

       {¶44} Although the state indicated that it had no intention of using the letter

because it was hearsay, to prevent its action from being construed as gamesmanship, the

state should have provided a copy of the letter to defense counsel in discovery instead of

referencing the letter in a police report. At the same time, Detective Cerny confirmed

that the existence of the letter was duly noted in the police report furnished to defense

counsel in discovery. Thus, defense counsel was remiss for not inquiring about the

content of the letter.

       {¶45} We are mindful that the evidence of the contents of the anonymous letter

was admitted in a bench trial, with no jury to be prejudiced by the evidence. And yet, the

evidence is no less inadmissible, and the inference is no less forbidden.

       {¶46} The trial court sets forth the following to support its verdict:

       I based this finding on the following evidence produced at trial: Number
       one, that the defendant consumed alcohol throughout the evening of
       November 9th 2012; that the defendant was warned by at least eight
       pavement markings and three signs that a bicyclist could be in the right
       lane; that the defendant failed to see Mr. Gamble on the bridge riding his
       bicycle; that the light on the bridge was sufficient for a non-impaired
       individual to see Mr. Gamble; that the misty drizzle rain should not have
       prevented the defendant from seeing Mr. Gamble, that the Defendant failed
       to see Mr. Gamble’s reflectors included but not limited to the reflectors on
       his bike pedals, the reflectors on his book bag, and the red sleeves of his
       jacket; that the Defendant failed to brake prior to impact with Mr. Gamble;
       that the Defendant lied to the police officers numerous times regarding his
       consumption of alcohol.

       Simply put, I find that the Defendant was not — I find the Defendant was
       impaired by the consumption of alcohol, and if he had not been impaired,
       then he would not have struck Mr. Gamble.

 Tr. 775-776.

       {¶47} In its statement announcing the verdict, quoted above, the trial court did not

indicate that it found the letter relevant for some other purpose. Nor did it indicate that

upon further consideration, the evidence was inadmissible, and would therefore not be

considered by the trial court in arriving at its verdict. Statements to that effect would

have been critical to include in its statement after previously indicating, at sidebar, that it

would not discount the letter because it was brought about by defense counsel’s

questioning.

       {¶48} Thus, notwithstanding the longstanding precedent that appellate courts

presume that a trial court only considered relevant and admissible evidence in a bench

trial, the risk exists that a reviewing court might ostensibly presume that the trial court

considered the contents of the anonymous letter to have had some relevance; otherwise, it

would not have admitted this evidence over objections.
       {¶49} Consequently, because this was a case decided on conflicting evidence, in

an abundance of caution, we are constrained to find that the error in its admission was not

rendered harmless simply because Schillo was tried by the court and not a jury.

Accordingly, we sustain the first assigned error, vacate Schillo’s conviction, and remand

for a new trial.

       {¶50} Our disposition of the first assigned error renders the remaining errors moot.

 App.R. 12(A)(1)(c).

       {¶51} Judgment reversed, conviction vacated, and case remanded for new trial.

       It is ordered that appellant recover of appellee his costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



PATRICIA ANN BLACKMON, JUDGE

MARY J. BOYLE, A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
