[Cite as State v. Smith, 2010-Ohio-4507.]


                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                      HIGHLAND COUNTY


State of Ohio,                                   :
                                                 :
             Plaintiff-Appellee,                 :   Case No: 09CA29
                                                 :
             v.                                  :
                                                 :   DECISION AND
Harry R. Smith,                                  :   JUDGMENT ENTRY
                                                 :
             Defendant-Appellant.                :   File-stamped date: 9-20-10



                                            APPEARANCES:

W. Jeffrey Moore, of Columbus, Ohio, for Appellant.

James B. Grandey, Highland County Prosecutor, and Anneka P. Collins, Highland
County Assistant Prosecutor, Hillsboro, Ohio, for Appellee.


Kline, J.:

{¶1}         Harry R. Smith appeals his convictions for possession of chemicals for the

manufacturing of methamphetamine, possession of methamphetamine, aggravated

trafficking in drugs, and tampering with evidence. On appeal, Smith contends his

convictions for possession of chemicals for the manufacturing of a controlled substance

and tampering with evidence are not supported by sufficient evidence and are against

the manifest weight of the evidence. We disagree; (1) after viewing the evidence in a

light most favorable to the prosecution, we find that any rational trier of fact could have

found the essential elements of the two crimes proven beyond a reasonable doubt, and

(2) we find substantial evidence upon which the trier of fact could reasonably conclude

that all the elements of the two offenses have been proven beyond a reasonable doubt.
Highland App. No. 09CA29                                                                      2


{¶2}      Smith next contends that R.C. 2925.041 is vague and overbroad in violation

of the Due Process and Equal Protection Clauses of the United States and Ohio

Constitutions. We disagree, finding that R.C. 2925.041 requires proof of intent to

manufacture, and this element provides a sufficient standard to prevent arbitrary

enforcement.

{¶3}      Smith next contends that the prosecutor committed prosecutorial misconduct

that improperly influenced the jury and prejudiced Smith’s right to a fair trial. We

disagree. After review, we find that the prosecutor did not argue conclusions

unsupported by the record. Furthermore, we do not find any plain error in the

prosecutor’s closing arguments.

{¶4}      Smith next contends that the trial court erred in allowing the State to amend

the indictment. We agree, and find that the amendment changed the name of the

alleged offense.

{¶5}      Smith next contends that the State violated his Fourth Amendment rights and

that the trial court erred by admitting evidence seized during the search of room 136 of

the Greystone Motel. We disagree, finding that the warrant was supported by adequate

probable cause and that Smith fails to demonstrate that any other irregularities led to

any admissible evidence.

{¶6}      Finally, Smith contends that the trial court violated his right to equal protection

and the due process of law by refusing to accept his filings and by restricting the scope

of his attorney’s examinations during a suppression hearing. We disagree. Smith had

no right to act as his own attorney since he was represented, and Smith failed to make

a sufficient substantial showing to be entitled to challenge the veracity of the affidavit.
Highland App. No. 09CA29                                                                    3


{¶7}      We, therefore, affirm, in part, and reverse, in part, the judgment of the trial

court.

                                             I.

{¶8}      On May 14, 2009, detectives Richard Warner and Dan Croy received

information that illegal activity might be in progress at room 136 of the Greystone Motel.

Pursuant to this information, Croy and Warner conducted surveillance of the Greystone

Motel. They observed a large amount of foot traffic into and out of room 136. After

three hours of surveillance, Croy and Warner went off duty, and Croy told Lieutenant

Stephen Alexander that Croy suspected illicit activities may be taking place at room 136

of the Greystone Motel.

{¶9}      Sometime around 4:30 in the morning of May 15, 2009, Alexander and

Deputy Hughes (another Highland County Sheriff’s Officer) drove past the Greystone

Motel. They observed a woman leave room 136 and enter a vehicle. As the vehicle

departed, Alexander and Hughes noticed that the vehicle had a broken rear brake light.

{¶10}     Smith was in the hotel room along with his daughter, Abby Smith, his son,

Wesley Smith, and another friend, Christopher Magee. When Alexander and Hughes

started following the departing vehicle, Abby noticed and alerted the other occupants.

The occupants then proceeded to attempt to destroy or otherwise remove evidence

from the hotel room.

{¶11}     The police then stopped the vehicle on the basis of the broken rear brake

light. There were two occupants in the vehicle. Clark, a male, was in the front

passenger’s seat. Miranda Johnson, the driver, was the female the police had earlier

seen leaving the hotel room. In the course of the traffic stop, Alexander found a plastic
Highland App. No. 09CA29                                                                 4


waterproof container that contained three baggies of white powder on Clark’s person.

Later, at trial, the State’s chemical expert testified that this white powder was

methamphetamine.

{¶12}       Alexander and Hughes then proceeded to room 136 of the Greystone Motel

to confront the occupants. Alexander knocked on the door and identified himself. Smith

refused to sign the consent form to allow the police to search the hotel room. Alexander

and Hughes then ordered the occupants out of the room, and Alexander called

detective Croy updating him on recent events and asked him to procure a search

warrant for room 136 of the Greystone Motel.

{¶13}       Within a couple hours, the police obtained a warrant and proceeded to search

the hotel room. The police discovered aluminum foil and methamphetamine in the toilet

of the room. They also discovered three sets of scales and numerous plastic bags,

some with corners cut out. Finally, a short distance away, the police discovered a bag

wrapped in a t-shirt that contained lithium batteries and pseudoephedrine-based cold

medicine.

{¶14}       The Highland County Grand Jury returned an indictment against Smith

indicting him for (1) knowingly assembling or possessing one or more chemicals that

may be used to manufacture a controlled substance in violation of R.C. 2925.041; (2)

knowingly obtaining, possessing, or using a schedule II controlled substance in violation

of R.C. 2925.11; (3) knowingly preparing for shipment, shipping, transporting, delivering,

preparing for distribution, or distributing methamphetamine in violation of R.C.

2925.03(A)(2); and (4) knowingly altering, destroying, concealing, or removing any thing
Highland App. No. 09CA29                                                                   5


with purpose to impair its value or availability as evidence in a proceeding or

investigation in violation of R.C. 2921.12(A)(1).

{¶15}     Smith entered not guilty pleas and the case proceeded to a jury trial. The jury

returned guilty verdicts on all four counts. The trial court then sentenced Smith to

consecutive sentences of 5 years on count one, 12 months on count two, 5 years on

count three, and 5 years on count four.

{¶16}     Smith appeals from this judgment and assigns the following errors for our

review: I. “The State of Ohio Failed to Prove All the Essential Elements of Tampering

With Evidence and Illegal Assembly or Possession of Chemicals for the Manufacturing

of Drugs, Making the Conviction for Said Charges Against the Weight of the Evidence.”

II. “Ohio Revised Code Section 2925.041 is vague and over broad and violates both the

due process and equal protection provisions of the constitutions of the United States

and the State of Ohio.” III. “Prosecutorial Misconduct Improperly influenced the Jury

and Prejudiced the Appellant’s Right to a Fair Trial.” IV. “The Trial Court Erred in

Allowing the State of Ohio to Amend the Trafficking in Drugs From a Felony of the 4th

Degree to Aggravated Trafficking in Drugs a Felony of the 3rd Degree Without Review

by a Grand Jury.” V. “The Trial Court Erred in Failing to Suppress the Evidence Found

in Room 136 at the Greystone Motel and on the Person of Harry Smith.” And VI. “The

Defendants Right to Due Process and Equal Protection Guaranteed Under the

Constitutions of the State of Ohio and the United States Was [sic] Violated by the Trial

Court.”

                                             II.
Highland App. No. 09CA29                                                                          6


{¶17}      Smith first contends that two of his convictions are not supported by sufficient

evidence and are against the manifest weight of the evidence. We note that Smith

failed to separately argue these two distinct issues, but instead mixed both issues into a

single assignment of error.

{¶18}      When reviewing a case to determine whether the record contains sufficient

evidence to support a criminal conviction, our function “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.” State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the

syllabus. See, also, Jackson v. Virginia (1979), 443 U.S. 307, 319.

{¶19}      This test raises a question of law and does not allow the court to weigh the

evidence. State v. Martin (1983), 20 Ohio App.3d 172, 175. Rather, this test “gives full

play to the responsibility of the trier of fact * * * to resolve conflicts in the testimony, to

weigh the evidence, and to draw reasonable inferences from basic facts to ultimate

facts.” Jackson at 319. Accordingly, the weight given to the evidence and the credibility

of witnesses are issues for the trier of fact. State v. Thomas (1982), 70 Ohio St.2d 79,

79-80; State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus.

{¶20}      Smith first contends that the State failed to prove all of the essential elements

of tampering with evidence in violation of R.C. 2921.12(A)(1). This statute provides that

“[n]o person, knowing that an official proceeding or investigation is in progress, or is

about to be or likely to be instituted, shall * * * [a]lter, destroy, conceal, or remove any
Highland App. No. 09CA29                                                                   7


record, document, or thing, with purpose to impair its value or availability as evidence in

such proceeding or investigation[.]” R.C. 2921.12(A)(1).

{¶21}     Smith claims that the State produced no evidence that an investigation was

about to be instituted or likely to be instituted as to the hotel room or himself. Clark

testified that he obtained an amount of methamphetamine from Smith. Trial Transcript

at 39. Abby Smith testified that she observed the sheriff’s car follow Clark from the

Greystone Motel. Id. at 325-26. Wesley Smith called Clark’s cell phone and asked if

the police were following Clark. Id. 326.

{¶22}     During this phone call, Smith told Clark to throw the methamphetamine away

or swallow it. Immediately after the phone call, Smith walked to the bathroom and

flushed some methamphetamine that he had in his pocket down the toilet. Smith also

told Christopher Magee to start flushing “burnt foils and the straws or baggies that is

over laying and if anything was laying around to get rid of it.” Id. at 328. Smith then

ordered Wesley Smith to take the boxes of pseudoephedrine pills and the lithium

batteries and throw them into the woods. Smith had previously indicated to Abby Smith

that he was going to use the pseudoephedrine pills and lithium batteries to produce

methamphetamine.

{¶23}     If a juror believed this testimony, then the juror could conclude that Smith had

sold methamphetamine to Clark, that Clark was about to be stopped by officers of the

Highland County Sheriff’s Office, and further conclude that Smith believed Clark was

likely to lead the officers back to room 136 of the Greystone Motel. Therefore, any

reasonable juror could conclude that Smith reasonably believed an investigation by

police officers was imminent, and, under this belief, Smith himself destroyed evidence
Highland App. No. 09CA29                                                                       8


and ordered the other residents to destroy or attempt to destroy evidence. Therefore,

after viewing the evidence in a light most favorable to the prosecution, we find that any

rational trier of fact could have found the essential elements of the crime of tampering

with evidence proven beyond a reasonable doubt.

{¶24}       Smith next contends that his conviction for illegal assembly or possession of

chemicals for the manufacturing of drugs is sustained by insufficient evidence. This

provision makes it a crime for any person to “knowingly assemble or possess one or

more chemicals that may be used to manufacture a controlled substance in schedule I

or II with the intent to manufacture a controlled substance in schedule I or II in violation

of section 2925.04 of the Revised Code.” R.C. 2925.041(A).

{¶25}       Here, the State is referring to the boxes of pseudoephedrine pills and lithium

batteries. Smith argues that the only testimony supporting Smith’s intention to use

these items to fabricate methamphetamine comes from Abby Smith. And Smith argues

that her testimony was procured through the use of a deal (the nature of this alleged

deal is somewhat vague, but presumably it is a plea bargain) and is therefore not

credible.

{¶26}       This admission amply demonstrates that Smith’s conviction is supported by

sufficient evidence. Abby testified that Smith expressly stated that he intended to use

those items to “cook” methamphetamine. Trial Transcript at 331. We do not consider

the credibility of the witnesses when we consider the sufficiency of the evidence.

Therefore, after viewing the evidence in a light most favorable to the prosecution, we

find that any rational trier of fact could have found the essential elements of the crime of
Highland App. No. 09CA29                                                                        9


possession of chemicals for the manufacturing of methamphetamine proven beyond a

reasonable doubt.

{¶27}       Smith also contends that both of these convictions are against the manifest

weight of the evidence.

{¶28}       When determining whether a criminal conviction is against the manifest

weight of the evidence, we “will not reverse a conviction where there is substantial

evidence upon which the [trier of fact] could reasonably conclude that all the elements

of an offense have been proven beyond a reasonable doubt.” State v. Eskridge (1988),

38 Ohio St.3d 56, paragraph two of the syllabus. See, also, State v. Smith, Pickaway

App. No. 06CA7, 2007-Ohio-502, at ¶41. We “must review the entire record, weigh the

evidence and all reasonable inferences, consider the credibility of the 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 granted.” Smith at ¶41, citing State v. Garrow (1995), 103

Ohio App.3d 368, 370-71; State v. Martin (1983), 20 Ohio App.3d 172, 175. “The

discretionary power to grant a new trial should be exercised only in the exceptional case

in which the evidence weighs heavily against the conviction.” Martin at 175 (citations

omitted).

{¶29}       “Even in our role as thirteenth juror we are constrained by the rule that the

weight to be given evidence and the credibility to be afforded testimony are normally

issues to be determined by the trier of fact. * * * The fact finder ‘is best able to view the

witnesses and observe their demeanor, gestures and voice inflections, and use these

observations in weighing the credibility of the proffered testimony.’ * * * Thus, we will
Highland App. No. 09CA29                                                                   10


only interfere if the fact finder clearly lost its way and created a manifest miscarriage of

justice.” State v. Davis, Washington App. No. 09CA28, 2010-Ohio-555, at ¶13 (citations

within quote omitted).

{¶30}     First, we find that substantial evidence exists to support Smith’s conviction for

tampering with evidence. Abby testified that Smith personally destroyed the

methamphetamine that he was carrying in his pocket. This account is bolstered by

testimony from Clark indicating that Smith sold him methamphetamine. Wesley Smith

did testify that Smith was unconnected with any drug trafficking and that Abby was

responsible for any drug trafficking in room 136 of the Greystone Motel. But in

considering the whole of the record, we do not find that Smith’s conviction is one of

those exceptional cases where the jury so lost its way that a manifest miscarriage of

justice resulted. We therefore find that Smith’s conviction for tampering with evidence is

not against the manifest weight of the evidence.

{¶31}     Second, Smith contends that his conviction for possession of chemicals with

the intent to manufacture a controlled substance is against the manifest weight of the

evidence. We may reweigh the evidence when considering a challenge based on the

manifest weight of the evidence. However, we also find that the record discloses

additional material facts that support Abby’s testimony that Smith intended to use the

pseudoephedrine to “cook” methamphetamine. Most importantly, it is undisputed that

pills and batteries were found wrapped in a plastic bag and t-shirt that were thrown

away. Certainly, the attempt to dispose of these items indicates some measure of guilt

or belief that possession of the items would indicate guilt. Presumably, this guilt exists

because the possessor had an illicit motive to use the items. Also, we must consider
Highland App. No. 09CA29                                                                    11


the fact that boxes of pills were discovered in a bag with lithium batteries. It is certainly

plausible that someone may purchase both batteries and cold medicine at the same

time. However, the presence of both items, with the other evidence in the case,

supports the conclusion that Smith intended to use the chemicals to manufacture

methamphetamine. Therefore, we find substantial evidence upon which the trier of fact

could reasonably conclude that all the elements of the offense of possession of

chemicals for the manufacturing of methamphetamine have been proven beyond a

reasonable doubt.

{¶32}     Accordingly, we overrule Smith’s first assignment of error.

                            III. R.C. 2925.041 is Constitutional

{¶33}     Smith next contends that R.C. 2925.041 is unconstitutional. Smith claims that

this statute is vague and overbroad because “[i]nnocent legal behavior under this

statute may be interpreted arbitrarily by law enforcement to unfairly saddle innocent

citizens with felonious behavior and a day in court which they should not have to face.”

{¶34}     We review the constitutionality of a statute on a de novo basis. See, e.g.,

State v. Anderson, Athens App. No. 09CA18, 2009-Ohio-7014, at ¶4.

{¶35}     “[W]e must presume the constitutionality of the statute at issue. All legislative

enactments enjoy a strong presumption of constitutionality.” State v. Benson (1992), 81

Ohio App.3d 697, 700, citing Sedar v. Knowlton Constr. Co. (1990), 49 Ohio St.3d 193,

199, overruled on other grounds by Brennaman v. R.M.I. Co., 70 Ohio St.3d 460, 1994-

Ohio-322; Mominee v. Scherbarth (1986), 28 Ohio St.3d 270, 274.

{¶36}     Smith maintains that R.C. 2925.041 is vague and overbroad. We construe

this as an argument that this statute is void for vagueness. “The void-for-vagueness
Highland App. No. 09CA29                                                                   12


doctrine ensures that individuals can ascertain what the law requires of them. * * * In

order to survive a void-for-vagueness challenge, the statute at issue must be written so

that a person of common intelligence is able to determine what conduct is prohibited,

and the statute must provide sufficient standards to prevent arbitrary and discriminatory

enforcement.” State v. Williams, 88 Ohio St.3d 513, 532, 2000-Ohio-428, citing

Chicago v. Morales (1999), 527 U.S. 41, 56-57 (other internal citation omitted).

{¶37}     The relevant provision of R.C. 2925.041(A) provides that “[n]o person shall

knowingly assemble or possess one or more chemicals that may be used to

manufacture a controlled substance in schedule I or II with the intent to manufacture a

controlled substance in schedule I or II in violation of section 2925.04 of the Revised

Code.” We find this provision similar in substance to a different provision that prohibits

the possession of criminal tools. That statute provides that “[n]o person shall possess

or have under the person’s control any substance, device, instrument, or article, with

purpose to use it criminally.” R.C. 2923.24(A).

{¶38}     Both statutes provide that the possession of otherwise legal items may be

criminal based on the intent of the possessor. Thus, under either statute, the mere

possession is not the prohibited conduct. See State v. Moon, Adams App. No.

08CA875, 2009-Ohio-4830, at ¶18 (stating that R.C. 2925.041(A) “requires the state to

prove that she intended to manufacture [drugs]”); State v. McDonald (1987), 31 Ohio

St.3d 47, 49 (stating that, under R.C. 2923.24, “[i]t is the possession coupled with the

intent to use the device to commit a crime which is the prohibited conduct”).

{¶39}     The Supreme Court of Ohio rejected a facial challenge to the possession-of-

criminal-tools statute largely because the statute required the State to prove the
Highland App. No. 09CA29                                                                   13


defendant’s intent in regard to the alleged criminal tools. McDonald at 49-50. “By

including this scienter requirement, the General Assembly has required both control of

the article and the specific intention to use the article to commit a crime. These

elements provide sufficient notice to persons of ordinary intelligence of the prohibited

conduct.” Id. at 49. Similarly, R.C. 2925.041 requires both proof of the assembly or

possession of chemicals and proof that the defendant intended to use the chemicals to

manufacture a controlled substance.

{¶40}     We find this element serves to give persons of common intelligence the ability

to determine what conduct is prohibited and provides sufficient standards to prevent

arbitrary and discriminatory enforcement.

{¶41}     Smith also asserts that intent lies in the privacy of one’s own thoughts, and

intent is not susceptible to objective proof. Smith cites two Supreme Court of Ohio

opinions in support of this proposition. State v. Huffman (1936), 131 Ohio St. 27,

paragraph four of the syllabus; State v. Garner, 74 Ohio St.3d 49, 60, 1995-Ohio-168.

Garner, the latter case, merely quotes from an opinion that, in turn, quotes the relevant

language in Huffman.

{¶42}     In reviewing Smith’s argument, we find that he has substantially distorted the

law of the Supreme Court of Ohio. The passage cited is as follows: “The intent of an

accused person dwells in his mind. Not being ascertainable by the exercise of any or all

of the senses, it can never be proved by the direct testimony of a third person, and it

need not be. It must be gathered from the surrounding facts and circumstances under

proper instructions from the court.” Huffman at paragraph four of the syllabus.
Highland App. No. 09CA29                                                                    14


{¶43}     Smith cites this passage for the principle that intent is not subject to objective

proof. The Supreme Court of Ohio instead reached the limited conclusion that intent

may never be proven by direct testimony of a third person. This statement cannot be

taken to mean that all proof of intent is necessarily subjective or that intent can never be

proven objectively. The Supreme Court is using the term “direct” in a manner similar to

its traditional application in the law of evidence. That is, direct evidence is “‘[e]vidence,

which if believed, proves existence of fact in issue without inference or presumption[.]’”

Reeves v. Vitt, Geauga App. No. 2008-G-2821, 2009-Ohio-2436, at ¶41, quoting

Black’s Law Dictionary (6 ed.1990) 460.

{¶44}     “‘But direct evidence of a fact is not required. Circumstantial evidence * * *

may also be more certain, satisfying and persuasive than direct evidence.’” State v.

Durr (1991), 58 Ohio St.3d 86, 92, quoting Michalic v. Cleveland Tankers, Inc. (1960),

364 U.S. 325, 330 (other citations omitted). Ohio courts have repeatedly concluded that

“circumstantial evidence can have the same probative value as direct evidence. * * * A

conviction can be sustained based on circumstantial evidence alone.” State v. Franklin

(1991), 62 Ohio St.3d 118, 124 (internal citations omitted). The fact that intent will

often, but not always, be proven by circumstantial evidence does not demonstrate that

the statute is either vague or overbroad.

{¶45}     Furthermore, we note that the State produced direct evidence of Smith’s

intent. Abby testified that Smith stated he intended to use the batteries and

pseudoephedrine pills to “cook” meth. And this constitutes direct evidence of Smith’s

intent to use the pills and batteries for the purpose of “cooking” methamphetamine.
Highland App. No. 09CA29                                                                  15


{¶46}     Smith argues that R.C. 2925.041 “fails to warn a citizen that innocent

possession of a chemical or item may be a crime and leaves the decision of inferring

who possesses a chemical and/or item legally [versus] illegally to the arbitrary and

capricious determination of a law enforcement officer[.]” This is simply wrong; before

Smith could be convicted of violating R.C. 2925.041, a petit jury had to find Smith

proven guilty beyond a reasonable doubt as to all of the elements of the offense,

including the intent to use the possessed chemicals to manufacture a controlled

substance.

{¶47}     Accordingly, we overrule Smith’s second assignment of error.

                               IV. Prosecutorial Misconduct

{¶48}     Next, Smith contends that the State committed prosecutorial misconduct both

by referencing matters outside of the evidence and making inflammatory statements

during closing argument.

{¶49}     “A prosecutor’s remarks constitute misconduct if the remarks were improper

and if the remarks prejudicially affected an accused’s substantial rights.” State v.

Williams, 99 Ohio St.3d 439, 2003-Ohio-4164, at ¶44, citing State v. Smith (1984), 14

Ohio St.3d 13, 14.

{¶50}     “Prosecutorial misconduct will not provide a basis for reversal unless the

misconduct can be said to have deprived the appellant of a fair trial based on the entire

record.” State v. Harp, Adams App. No. 07CA848, 2008-Ohio-3703, at ¶20, citing State

v. Lott (1990), 51 Ohio St.3d 160, 166. “The touchstone of analysis ‘is the fairness of

the trial, not the culpability of the prosecutor.’” State v. Gapen, 104 Ohio St.3d 358,

2004-Ohio-6548, at ¶92, quoting Smith v. Phillips (1982), 455 U.S. 209, 219. We must
Highland App. No. 09CA29                                                                    16


“view the state’s closing argument in its entirety to determine whether the allegedly

improper remarks were prejudicial.” State v. Treesh, 90 Ohio St.3d 460, 466, 2001-

Ohio-4, citing State v. Moritz (1980), 63 Ohio St.2d 150, 157. We note that “[t]he

prosecution is normally entitled to a certain degree of latitude in its concluding remarks.”

Smith, 14 Ohio St.3d at 13, citing State v. Woodards (1966), 6 Ohio St.2d 14, 26; State

v. Liberatore (1982), 69 Ohio St.2d 583, 589. A prosecutor “may strike hard blows, [but]

he is not at liberty to strike foul ones. It is as much his duty to refrain from improper

methods calculated to produce a wrongful conviction as it is to use every legitimate

means to bring about a just one.” Berger v. United States (1935), 295 U.S. 78, 88.

{¶51}     First, Smith claims that there was no evidence he ever tampered with any

evidence himself. And therefore, Smith maintains that the prosecutor committed

prosecutorial misconduct in arguing that Smith had tampered with evidence. However,

Abby Smith testified that Smith immediately disposed of methamphetamine after the

phone conversation with Clark.

{¶52}     “Q.        Now, after he hung up the phone what did your father do?

{¶53}     A.         After he hung up the phone he went in the bathroom and flushed

the dope that he had in his pocket.

{¶54}     ***

{¶55}     Q.         We are talking about dope, but what is it in particular?

{¶56}     A.         Meth.

{¶57}     Q.         Methamphetamine?

{¶58}     A.         Yes.” Trial Transcript at 328.
Highland App. No. 09CA29                                                                   17


{¶59}     We therefore find that the record does contain some evidence that Smith

tampered with evidence himself.

{¶60}     Smith next indicates that there was no evidence presented to prove he was

going to use the batteries and the pseudoephedrine pills to make methamphetamine.

However, the record supports the circumstantial evidence we referenced earlier; the fact

the pills and batteries were thrown away, and the manner in which they were stored.

Abby Smith also testified that:

{¶61}     “Q.        When he initially got the pills and the batteries did you hear your

father make a statement about what he was going to do with them?

{¶62}     A.         Yeah, he said he was going to use them when he did his thing one

time, to cook Meth one time.” Trial Transcript at 331.

{¶63}     Smith also claims that there was no proof he even knew how to make

methamphetamine. This, however, is not an element under R.C. 2925.041. Smith may

have failed or required further instruction before he could have successfully

manufactured methamphetamine. But this is only relevant to the extent it makes it more

or less likely that he intended to manufacture methamphetamine with the items in

question. Here, the jury was unquestionably supplied with sufficient evidence to allow

them to conclude that Smith intended to use the cold pills and lithium batteries for the

production of methamphetamine.

{¶64}     Smith next maintains that that the prosecutor made several inflammatory

statements that invited the jury to render a verdict based on an emotion rather than on

the facts in evidence. Smith identifies two statements:
Highland App. No. 09CA29                                                                    18


{¶65}     “I don’t know if I was in the same room yesterday or today as [Smith’s

counsel]. Because the case I heard Harry Smith is a drug dealer. He likes to sell

Methamphetamine, he likes to get kids hooked on it, mainly Abby Smith, and his son

who shows up at 136 Greystone Motel and gets tested the very next day for

Methamphetamine, amphetamine, opiates, marijuana, everything he can possibly be

tested for with the exception of Cocaine. That is the kind of man I heard he is.” Trial

Transcript at 472.

{¶66}     “As a good friend of mine, Fred Johnson, said, when you lay down with dogs

you get up with fleas. Unfortunately, he’s a dog, and there is a lot of fleas. But, you can

do one thing. If you don’t mind Methamphetamine on the streets of Highland County let

him go. But, if you want to stop Methamphetamine on the streets of Highland County

convict him.” Trial Transcript at 477-78.

{¶67}     Because Smith failed to object at trial to these allegedly improper comments

by the prosecution, he has waived all but plain error. Crim.R. 52(B); State v. Slagle

(1992), 65 Ohio St.3d 597, 604. Pursuant to Crim.R. 52(B), we may notice plain errors

or defects affecting substantial rights. “Inherent in the rule are three limits placed on

reviewing courts for correcting plain error.” State v. Payne, 114 Ohio St.3d 502, 2007-

Ohio-4642, at ¶15. “‘First, there must be an error, i.e., a deviation from the legal rule. * *

* Second, the error must be plain. To be ‘plain’ within the meaning of Crim.R. 52(B), an

error must be an ‘obvious’ defect in the trial proceedings. * * * Third, the error must have

affected ‘substantial rights.’ We have interpreted this aspect of the rule to mean that the

trial court’s error must have affected the outcome of the trial.’” Id. at ¶16, quoting State

v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68 (omissions in original). We will notice
Highland App. No. 09CA29                                                                  19


plain error “only to prevent a manifest miscarriage of justice.” State v. Long (1978), 53

Ohio St.2d 91, at paragraph three of syllabus. And “[r]eversal is warranted only if the

outcome of the trial clearly would have been different absent the error.” State v. Hill, 92

Ohio St.3d 191, 203, 2001-Ohio-141, citing Long at paragraph two of the syllabus. We

note that “[i]solated comments by a prosecutor are not to be taken out of context and

given their most damaging meaning.” State v. Carter, 89 Ohio St.3d 593, 603, 2000-

Ohio-172, citing Donnely v. DeChristoforo (1974), 416 U.S. 637, 647; State v. Hill, 75

Ohio St.3d 195, 204, 1996-Ohio-222.

{¶68}     In reviewing the record, we do not find that the trial court committed plain

error by allowing these statements. Both of these statements arguably went too far.

The first indicates that Smith enjoyed addicting children to methamphetamine. There

certainly was some evidence admitted demonstrating that Smith’s children were both

addicted to drugs. Furthermore, this evidence supported the reasonable inference that

Smith was in some measure responsible for the delinquent behavior of his children. But

there was no evidence that indicated that Smith enjoyed or plotted such an outcome.

The second statement is close to a “send a message” type of argument. See State v.

Turner, Scioto App. No. 08CA3234, 2009-Ohio-3114, at ¶47. Those arguments

typically rely on community outrage and invite the jury to render a verdict based on the

outrage rather than the facts of the case. We note that the State has a credible

argument that this statement is not a send-a-message type of argument. But given the

standard of review applicable here, we need not determine whether the statement was

in fact misconduct. So for the purposes of this opinion, we presume, but do not decide,

that both of these statements exceeded permissible bounds. However, these are the
Highland App. No. 09CA29                                                                   20


only two statements that Smith points to out of the entirety of the prosecutor’s closing

argument. And having read the entirety of the prosecution’s closing argument, we find

that it focused on the facts and law of the case, and we conclude that, while these two

isolated comments may be error, they are not plain and do not affect Smith’s substantial

rights.

{¶69}      Smith also asserts that the prosecution wrongfully withheld exculpatory

evidence. “In this case the State of Ohio violated Mr. Smith’s due process rights by

failing to inform the defense until the middle of trial that fingerprints had been found on a

number of items which were alleged to have been possessed by Mr. Smith, including

cold pills, batteries, and scales.”

{¶70}      “The suppression by the prosecution of evidence favorable to an accused

violates due process where the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution.” State v. Johnston (1988),

39 Ohio St.3d 48, at paragraph four of the syllabus, following Brady v. Maryland (1963),

373 U.S. 83. The defendant has the burden of proving a Brady violation involving a

denial of due process. See State v. Jackson (1991), 57 Ohio St.3d 29, 33.

{¶71}      “In determining whether the prosecution improperly suppressed evidence

favorable to an accused, such evidence shall be deemed material only if there is a

reasonable probability that, had the evidence been disclosed to the defense, the result

of the proceeding would have been different. A ‘reasonable probability’ is a probability

sufficient to undermine confidence in the outcome. This standard of materiality applies

regardless of whether the evidence is specifically, generally or not at all requested by
Highland App. No. 09CA29                                                                      21


the defense.” Johnston at paragraph five of the syllabus, following United States v.

Bagley (1985), 473 U.S. 667.

{¶72}       Detective Richard Warner testified that there were some partial fingerprints

present on the relevant pieces of evidence, but he also testified that these fingerprints

were insufficient for testing purposes. Smith speculates that a defense expert could

have been retained who might have been able to lift some usable latent prints from the

evidence.

{¶73}       We find that Smith fails to establish the material nature of this evidence. The

State’s own theory of the case was that Wesley Smith was the last person, other than

the police, to possess the batteries and pills. The State’s theory did not rely on any

argument that Smith had exclusive possession of the batteries or pills. Therefore, the

fact that Wesley Smith’s fingerprints or some other third party’s fingerprints may have

been on the pills or batteries would have been unlikely to change the outcome of the

proceeding, even if we presume any fingerprints, other than Smith’s, could be lifted.

Therefore, any failure to disclose on the part of the State was not in regard to material

evidence.

{¶74}       In conclusion, after reviewing the entire record, we find that the prosecutor’s

conduct did not deprive Smith of a fair trial.

{¶75}       Accordingly, we overrule Smith’s third assignment of error.

                              V. Amendment of the Indictment

{¶76}       Next, Smith contends that the trial court erred because it allowed the State to

amend the indictment. “[N]o person shall be held to answer for a capital, or otherwise

infamous, crime, unless on presentment or indictment of a grand jury[.]” Section 10,
Highland App. No. 09CA29                                                                 22


Article 1, Ohio Constitution. This requirement affords the accused adequate notice and

an opportunity to defend, and it also enables the accused to protect himself from any

future prosecutions for the same offense. State v. Sellards (1985), 17 Ohio St.3d 169,

170. As a result, the government must aver all material facts constituting the essential

elements of the offense. Id.

{¶77}      “The court may at any time before, during, or after a trial amend the

indictment, information, complaint, or bill of particulars, in respect to any defect,

imperfection, or omission in form or substance, or of any variance with the evidence,

provided no change is made in the name or identity of the crime charged.” Crim.R.

7(D).

{¶78}      “Whether an amendment changes the name or identity of the crime charged

is a matter of law.” State v. Kittle, Athens App. No. 04CA41, 2005-Ohio-3198, at ¶12

(citations omitted). Hence, our standard of review is de novo. See Nicholas v. Hanzel

(1996), 110 Ohio App.3d 591, 599.

{¶79}      The indictment clearly alleged that Smith had trafficked in drugs by trafficking

in methamphetamine, a schedule II controlled substance. R.C. 3719.41, schedule II,

(C)(2). Trafficking in drugs, as opposed to aggravated trafficking in drugs, is for

offenders who have trafficked in schedule III, IV, or V controlled substances. R.C.

2925.03(C)(2). The original indictment was therefore in error when it named the offense

trafficking in drugs.

{¶80}      The amendment changed the name of the offense in violation of Crim.R. 7(D)

because the indictment alleged “trafficking in drugs” but the amendment alleged

“aggravated trafficking in drugs.” See State v. Davis, 121 Ohio St.3d 239, 2008-Ohio-
Highland App. No. 09CA29                                                                     23


4537, at ¶8 (indicating that trafficking in drugs is a lesser offense compared to

aggravated trafficking in drugs), citing State v. Headley (1983), 6 Ohio St.3d 475, 479.

Here, we agree with the State that the error is almost certainly of a technical and

inadvertent nature. Furthermore, it is unlikely that Smith suffered any actual prejudice in

the preparation of his defense because of this amendment. However, this amendment

changed the name of the offense, and so the amendment is prohibited by Crim.R. 7(D).

Civ.R. 7(D). See State v. Davis, Highland App. No. 06CA26, 2007-Ohio-2249, at ¶25

(Defendant “need not demonstrate that he suffered any prejudice as a result of the

forbidden amendment.”).

{¶81}     We therefore sustain Smith’s fourth assignment of error, and vacate his

conviction for aggravated trafficking of methamphetamine in the vicinity of a juvenile.

                               VI. Suppression of Evidence

{¶82}     First, Smith contends that the warrant was not supported by probable cause

and that the warrant was overbroad. Appellate review of a decision on a motion to

suppress evidence presents mixed questions of law and fact. State v. McNamara

(1997), 124 Ohio App.3d 706, 710, citing United States v. Martinez (C.A.11, 1992), 949

F.2d 1117, 1119. See, also, State v. Hurst, Washington App. No. 08CA43, 2009-Ohio-

3127, at ¶57. At a suppression hearing, the trial court assumes the role of trier of fact,

and as such, is in the best position to resolve questions of fact and evaluate witness

credibility. See State v. Carter, 72 Ohio St.3d 545, 552, 1995-Ohio-104. A reviewing

court must accept a trial court’s factual findings if they are supported by some

competent, credible evidence. State v. Guysinger (1993), 86 Ohio App.3d 592, 594;

Hurst at ¶57. The reviewing court then applies the factual findings to the law regarding
Highland App. No. 09CA29                                                                    24


suppression of evidence. An appellate court reviews the trial court’s application of the

law de novo. State v. Anderson (1995), 100 Ohio App.3d 688, 691; Hurst at ¶57.

{¶83}      The Fourth Amendment to the United States Constitution and Section 14,

Article I of the Ohio Constitution both provide the “[t]he right of the people to be secure *

* * against unreasonable searches and seizures * * *.” Furthermore, both constitutional

provisions further provide that “no warrants shall issue, but upon probable cause,

supported by oath or affirmation and particularly describing the place to be searched,

and the persons or things to be seized.” Fourth Amendment to the United States

Constitution. See, also, Section 14, Article I of the Ohio Constitution.

{¶84}      Probable cause is a lesser standard of proof than that required for a

conviction, such as proof beyond a reasonable doubt or by a preponderance of the

evidence. State v. Young (2001), 146 Ohio App.3d 245, 254, citing State v. George

(1989), 45 Ohio St.3d 325, 329; Illinois v. Gates (1983), 462 U.S. 213, 235. Probable

cause only requires the existence of circumstances that warrant suspicion. Young at

254. Thus, “the standard for probable cause requires only a showing that a probability

of criminal activity exists, not a prima facie showing of criminal activity.” Id., citing

George at 329. “Hearsay may serve as the basis for the issuance of a warrant as long

as there is a substantial basis for crediting the hearsay.” State v. Underwood, Scioto

App. No. 03CA2930, 2005-Ohio-2309, at ¶16, citing United States v. Ventresca (1965),

380 U.S. 102, 108.

{¶85}      Crim.R. 41(C) provides the procedure for issuing a search warrant. In

deciding whether to issue a search warrant, the issuing magistrate must scrutinize the

affidavit in support of the warrant. Then the magistrate must make a practical, common
Highland App. No. 09CA29                                                                    25


sense decision, given all the circumstances set forth in the affidavit, including the

veracity and basis of knowledge of persons supplying hearsay information, whether

“‘there is a fair probability that contraband or evidence of a crime will be found in a

particular place.’” George at paragraph one of syllabus, quoting Gates at 238-239.

{¶86}     “In deciding whether an affidavit submitted in support of a search warrant

sufficiently supports a finding of probable cause, a reviewing court must give great

deference to the issuing magistrate’s determination.” State v. Oros, Pickaway App. No.

07CA30, 2008-Ohio-3885, at ¶18, citing George at paragraph two of the syllabus.

“Although in a particular case it may not be easy to determine when an affidavit

demonstrates the existence of probable cause, the resolution of doubtful or marginal

cases in this area should be largely determined by the preference to be accorded to

warrants.” Ventresca at 109.

{¶87}     Here, the relevant provisions of the affidavit are as follows:

{¶88}     “On May 15, 2009 early morning hours Lt[.] Alexander with the Highland

County watched a female leave room 136, [Greystone Motel] and get into a white

escort. The vehicle left the parking lot and a traffic stop was conducted. The driver was

found to be Miranda A Johnson * * * [, and t]he passenger in the vehicle was a James

W Clark Jr. Permission to search was granted to Lt. Alexander. Located in Mr. Clark’s

left fro[nt] pants pocket was a plastic containe[r] with (4) four sep[a]rate baggies that

appeared to have methamphetamine in them. Upon questioning Mr. Clark and Ms.

Johnson both indicated that they had just left the [Greystone Motel] as they had met

with a guy named Harry. Mr. Clark stated that the methamphetamine was given to him

by Harry Smith to transport to a guy on Lois Lane at the Rocky Fork Lake.
Highland App. No. 09CA29                                                                     26


{¶89}     ***

{¶90}     On May 14, 2009 the Highland County Sheriff’s Office received two different

calls from concern[ed] citizens that stated Harry Smith and Chris Magee were staying at

the [Greystone Motel] and were involved in methamphetamine [trafficking].

{¶91}     On May 14, 2009 investigators with the Highland County Sheriff’s Office

looked into this information and found that Harry Smith and Chris Magee were staying in

room 136 at the [Greystone Motel]. Upon watching this location investigators noticed a

large amount of traffic in and out of room 136.”

{¶92}     Smith claims that the affidavit does not establish the reliability or credibility of

any of the informants listed and that, under the Fourth Amendment, these concerns are

highly relevant for a magistrate’s probable cause determinations. See State v. Evans,

67 Ohio St.3d 405, 411, fn. 2, 1993-Ohio-186, citing Gates at 230. Smith is perfectly

correct that the anonymous phone calls are of marginal assistance in determining

probable cause. “Probable cause exists where ‘the facts and circumstances within * * *

[the officers’] knowledge, and of which they had reasonably trustworthy information,

[are] sufficient in themselves to warrant a man of reasonable caution in the belief that’

an offense has been or is being committed.” State v. Miller (May 23, 2001), Summit

App. No. 20227, quoting Brinegar v. United States (1949), 338 U.S. 160, 175-76 (other

citations omitted).

{¶93}     Here, based on the affidavit, the police received anonymous tips indicating

that Smith was involved in trafficking methamphetamine out of room 136 of the

Greystone Motel. The affiant, Detective Croy, personally observed an unusually high

amount of foot traffic entering and leaving that room. Later, other officers observed a
Highland App. No. 09CA29                                                                    27


car leave the location. The officers stopped the vehicle and discovered that the

occupant possessed what appeared to be methamphetamine. The occupant then

stated that Smith gave the occupant the methamphetamine at the location the police

saw the vehicle depart from. The police were also aware that Smith had prior

convictions for drug trafficking.

{¶94}     Under these circumstances, a man of reasonable caution would be warranted

in believing that evidence of a crime could be found at room 136 of the Greystone

Motel. We therefore find that probable cause supported the issuance of this warrant.

{¶95}     Smith also asserts at several points that the warrant is overbroad. This

appears to be an argument that the warrant fails to state the items to be seized or

places to be searched with sufficient particularity. However, Smith never actually details

an argument based on the particularity requirement of the Fourth Amendment. “‘If an

argument exists that can support [an] assignment of error, it is not this court’s duty to

root it out.’” Thomas v. Harmon, Lawrence App. No. 08CA17, 2009-Ohio-3299, at ¶14,

quoting State v. Carman, Cuyahoga App. No. 90512, 2008-Ohio-4368, at ¶31. The

warrant commanded the police to search the persons of the room and the room for:

“Any firearms or dangerous ordnances as defined in 2923.11 of the revised code[;] any

marijuana, methamphetamine or other controlled substances[;] any other items,

devices, and any other drug paraphernalia used to purchase, cultivate, manufacture,

distribute, sell, or abuse any drug of abuse or controlled substances[;] any

documentation, photographs, video, film, or items showing ownership of residence,

premises or control over said drugs of abuse, firearms, drug paraphernalia, any
Highland App. No. 09CA29                                                                   28


computer equipment used to keep records of any type of drug transactions.” We can

see no specific grounds for challenging this clause on the basis of particularity.

{¶96}      Next, Smith contends that the police violated his rights by ordering the

occupants of room 136 out of the motel several hours before the judge issued the actual

warrant. Here, the police, in effect, arrested the occupants of the room and kept them

under arrest in order to prevent the destruction of evidence or flight. Even should we

presume that the police violated Smith’s rights during this detention, nonetheless Smith

fails to point to any evidence seized during this detention. The affidavit contains no

information generated as a result of this detention. And the affiant testified at the

suppression hearing that he conveyed nothing to the magistrate in addition to what was

in the affidavit. Transcript to the Suppression Hearing at 20. The police apparently only

searched Smith’s person after the magistrate issued the warrant. Trial Transcript at

237. Since the police discovered no evidence through this alleged constitutional

violation, there is nothing to suppress. And we need not decide whether these arrests

were justified or not.

{¶97}      Accordingly, we overrule Smith’s fifth assignment of error.

                                     VII. Due Process

{¶98}      Finally, Smith contends in his sixth assignment of error that the trial court

committed several errors that denied him the due process of law.

{¶99}      Smith first contends that the trial court denied him access to the courts

because the trial court prevented him from making motions on his own behalf and

ordering that his filings not be accepted and filed. The trial court did make statements

along these lines during the arraignment proceeding. However, the trial court did so
Highland App. No. 09CA29                                                                     29


because Smith completed an affidavit of indigency and requested appointed counsel.

We review this issue with a de novo standard of review. See State v. Keenan, 81 Ohio

St.3d 133, 138, 1998-Ohio-459 (considering an assigned error based on hybrid

representation without reference to discretion or other express standard of review).

{¶100}    In effect, the trial court refused to hear Smith’s motions for two reasons. First,

the only scheduled reason for the hearing was an arraignment, and Smith wanted to

proceed on issues not appropriate to such a hearing, e.g., motions to dismiss the

indictment and motions to suppress evidence. See Crim.R. 10(A) (discussing what an

arraignment hearing consists of). Second, the trial court indicated that the trial court

would refuse to consider motions filed by Smith because the court was appointing

counsel to represent him. We are satisfied that the trial court did not err as, although a

defendant “has the right either to appear pro se or to have counsel, he has no

corresponding right to act as co-counsel on his own behalf.” State v. Thompson (1987),

33 Ohio St.3d 1, 6-7.

{¶101}    Smith next claims that the trial court violated his right to due process by

limiting the scope of his counsel’s questioning during the suppression hearing. At the

suppression hearing, the trial court prevented defense counsel from questioning the

accuracy of the affidavit. “Well, you didn’t file an affidavit alleging that there was any

false information in the affidavit [supporting the warrant]. The affidavit speaks for itself.

If you’re going to challenge the veracity of it then you have not followed the proper

procedure to do that.” Transcript of Suppression Hearing at 13.

{¶102}    “To successfully attack the veracity of a facially sufficient search warrant

affidavit, a defendant must show by a preponderance of the evidence that the affiant
Highland App. No. 09CA29                                                                     30


made a false statement, either intentionally, or with reckless disregard for the truth.”

State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, at ¶31 (internal quotations

omitted). “A defendant who seeks to overcome the presumption of validity accorded a

warrant affidavit by making a substantial preliminary showing of a knowing, intentional,

or reckless falsity, has, under [Franks v. Delaware (1978), 438 U.S. 154], the task of

supporting his allegations by more than conclusional accusations, or the mere desire to

cross-examine. Instead, a challenge to the factual veracity of a warrant affidavit must

be supported by an offer of proof which specifically outlines the portions of the affidavit

alleged to be false, and the supporting reasons for the defendant’s claim. This offer of

proof should include the submission of affidavits or otherwise reliable statements, or

their absence should be satisfactorily explained.” State v. Roberts (1980), 62 Ohio

St.2d 170, 177-78. A defendant must make this showing before he or she is “entitled to

a hearing to challenge the veracity of the facts set forth in the warrant affidavit[.]” Id. at

177. The standard of review is unclear for whether a defendant has successfully made

a substantial preliminary showing sufficient to entitle the defendant to a hearing on the

veracity of the search warrant. See State v. Myers, 97 Ohio St.3d 335, 2002-Ohio-

6658, at ¶77-80 (considering an assigned error on this ground without reference to

discretion or any other standard of review); Roberts at 178 (same); State v. Sebastian,

Highland App. No. 08CA19, 2009-Ohio-3117, at ¶26-30 (same). See, also United

States v. Fowler (C.A.6, 2008), 535 F.3d 408, 415, fn. 2 (noting that the standard of

review for the denial of a hearing under Franks is unsettled but that the court would

apply a de novo standard). In this case, much like Fowler, it makes little difference what

standard we use. And so, we apply the standard most favorable to Smith, de novo.
Highland App. No. 09CA29                                                                   31


{¶103}     In this case, the trial court correctly stated the law. If Smith wished a hearing

to determine the accuracy of the affidavit, then Smith had an obligation to make a

substantial preliminary showing. Here, Smith’s motion merely alleged that the warrant’s

affidavit did not support probable cause, the warrant was overbroad, and the good faith

exception did not apply. To the extent Smith’s motion raised those issues, the trial court

permitted Smith’s counsel to inquire on them.

{¶104}     Additionally, a defendant must give the prosecution notice of his proposed

grounds for the suppression of the evidence. Xenia v. Wallace (1988), 37 Ohio St.3d

216, 218-19. Thus, we find that the trial court did not err by limiting the scope of Smith’s

counsel’s examination during the suppression hearing.

{¶105}     Accordingly, we overrule Smith’s sixth assignment of error.

                                            VIII.

{¶106}     We overrule Smith’s first, second, third, fifth, and sixth assignments of errors,

and we sustain Smith’s fourth assignment of error. Thus, we affirm in part and reverse

in part the judgment of the trial court.



                                                        JUDGMENT AFFIRMED IN PART,
                                                             REVERSED IN PART AND
                                                                 CAUSE REMANDED.
Highland App. No. 09CA29                                                              32


                                   JUDGMENT ENTRY

       It is ordered that the JUDGMENT BE AFFIRMED IN PART, REVERSED IN

PART AND CAUSE REMANDED, and Appellant shall pay the costs herein taxed.

       The Court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this Court directing the

Highland County Common Pleas 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. Exceptions.



       Harsha, J.: Concurs in Judgment and Opinion.
       McFarland, P.J.: Concurs in Judgment Only.


                                   For the Court


                                   BY:_____________________________
                                      Roger L. Kline, Judge




                                 NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
