[Cite as State v. Sepeda, 2020-Ohio-4167.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                          Court of Appeals No. L-19-1125

        Appellee                                       Trial Court No. CR0201901145

v.

Rafael Sepeda                                          DECISION AND JUDGMENT

        Appellant                                      Decided: August 21, 2020

                                                *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Drew E. Wood, Assistant Prosecuting Attorney, for appellee.

        Michael H. Stahl, for appellant.

                                                *****

        ZMUDA, P.J.
                                             I. Introduction

        {¶ 1} Appellant, Rafael Sepeda, appeals the judgment of the Lucas County Court

of Common Pleas, sentencing him to three years in prison after a jury found him guilty of

one count of felonious assault. Because we find that the trial court abused its discretion

in excluding other-acts evidence of the victim under Evid.R. 404(B), we reverse and

remand this matter to the trial court for a new trial.
                         A. Facts and Procedural Background

       {¶ 2} On December 26, 2018, appellant was involved in a confrontation with A.E.

at the corner of Logan Street and Broadway Street in Toledo, Ohio. At some point during

the confrontation, A.E. was allegedly struck by appellant’s Ford Explorer sport utility

vehicle.

       {¶ 3} As a result of the confrontation, appellant was indicted on January 25, 2019,

and charged with one count of felonious assault in violation of R.C. 2903.11(A)(2), a

felony of the second degree. Appellant entered a plea of not guilty to the aforementioned

charge, and the matter proceeded through pretrial discovery and motion practice.

       {¶ 4} On March 14, 2019, appellant filed a “notice of intent to use ‘other acts’

testimony pursuant to [Evid.]R. 404(B) and R.C. 2945.59,” informing the court of his

desire to introduce evidence of A.E.’s prior conduct in order to demonstrate that the

incident giving rise to the state’s indictment was preplanned by A.E. In particular,

appellant wished to introduce evidence in the form of testimony from Kevin McMahon,

who had previously reported a similar incident involving A.E. to law enforcement, as

follows:

       Mr. McMahon told police that the alleged victim had stared down Mr.

       McMahon during a green light, which forced Mr. McMahon to stop. The

       alleged victim then started yelling and swearing at Mr. McMahon and

       kicked dents into Mr. McMahon’s truck. He further stated that he believed




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       the alleged victim would have jumped on the top of his vehicle if Mr.

       McMahon had not driven away.

       {¶ 5} In his notice, appellant asserted that he did not wish to introduce the

foregoing evidence in order to show conformity with A.E.’s prior acts, but rather, in order

to “show that the alleged victim had a motive and plan to accost the Defendant which is

permitted by Evidence Rule 404(B).”

       {¶ 6} Following a response in opposition from the state, the trial court held a

hearing on appellant’s notice on April 26, 2019. Two witnesses testified at the hearing.

Appellant’s wife, Kathy, was the first to testify. Kathy was present in appellant’s vehicle

when the December 26, 2018 confrontation between appellant and A.E. occurred.

       {¶ 7} According to her testimony, Kathy and appellant were stopped at a stop sign

on Logan Street and Broadway Street when A.E. walked in front of their vehicle,

traveling from left to right along the crosswalk. Kathy noted that a deputy sheriff sticker

and badge was displayed in the window of appellant’s vehicle. Kathy explained that A.E.

“kept turning his head and looking at us. * * * And when he got on my husband’s side of

the car, he spit whatever was in his mouth at the car. And then he went on across the

street over to – over to this sidewalk.” Kathy stated that A.E. kept looking back toward

appellant as he continued down the sidewalk, “and then [A.E.] threw down his cup and

turned and started running toward our vehicle.”

       {¶ 8} In response to A.E. charging at his vehicle, appellant attempted to flee the

scene. Because the traffic on Broadway Street was heavy at the time, and since another




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vehicle was behind him, appellant was forced to pull his vehicle off the road and onto the

grassy area of a nearby parcel. Kathy testified that A.E. approached appellant’s side of

the vehicle at this point, began to curse at appellant, and directed appellant to get out of

the car.

       {¶ 9} Kathy stated that A.E. hit the driver’s side mirror and front door. In

response, appellant told A.E. that he was a deputy sheriff, and instructed A.E. to step

away from the vehicle. Rather than comply, A.E. allegedly paced back and forth in front

of the vehicle, preventing appellant’s escape from the scene. Kathy stated that A.E.

continued by striking the hood of appellant’s vehicle with his hand, jumped onto the

hood, and “began punching the car and just punching it and punching and then he threw

his body on the windshield and kept slamming, slamming his body on the windshield.”

       {¶ 10} Eventually, A.E. slid off of the hood, prompting appellant to turn the

vehicle to the left and flee the scene. Kathy reported that A.E.’s actions physically

damaged the hood and driver’s side of the vehicle. Further, Kathy explained that the

exhaust system detached from the underside of the vehicle when appellant drove over the

curb as he was trying to escape.

       {¶ 11} On cross-examination, Kathy confirmed that appellant had already

attempted to escape and drove over the curb by the time A.E. approached the vehicle and

hit it on the driver’s side. She described the confrontation as happening “very, very

quickly,” approximately two to three minutes in total.




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       {¶ 12} Appellant called McMahon as his second and final witness. McMahon

testified that he was watching the local news on television when a news report of the

December 26, 2018 incident was discussed. At the time, McMahon recognized A.E. as

“a guy that kicked my car, threw himself against my car a few months earlier.” After

seeing the news report, McMahon contacted the Lucas County Sheriff’s Department and

informed officers of his prior interaction with A.E. in East Toledo.

       {¶ 13} At the hearing, McMahon recounted the details of his encounter with A.E.

According to McMahon, he was traveling at a speed of 40 m.p.h. when he noticed a man,

later identified as A.E., begin to walk slowly across the road in his lane of travel.

McMahon slowed down, and was eventually forced to stop because A.E. walk in front of

his vehicle. A.E. stood in front of McMahon’s vehicle, staring at McMahon, for a period

of 90 seconds. A.E.’s actions during this time led McMahon to believe that A.E. wanted

to jump onto his hood. However, a Buick emblem that protruded from the hood would

have “tore [A.E.’s] stomach up” if he jumped on the hood. McMahon waved A.E.

onward, in an effort to encourage A.E. to proceed to the other side of the road.

       {¶ 14} Eventually, A.E. moved to the side of McMahon’s vehicle. McMahon

testified that he then “lurched forward, because I knew that either he was going to try and

get in my car or it was my opportunity to move forward. As I moved forward, he came

along this side and threw himself against my back quarter panel and with his knee – * * *

[A.E.] caved in the whole side of my quarter panel.” Afterwards, A.E. started cursing




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and screaming at McMahon, challenging him to a fight. McMahon described A.E. as

“practically foaming at the mouth. I mean he went ballistic.”

       {¶ 15} On cross-examination, McMahon was asked why he came forward with the

foregoing information in this case. McMahon explained that he was “so mad that this

guy did this to me. * * * And I was just irritated because I didn’t turn it in. I didn’t call

the police and I thought the guy was, my own opinion, doing an insurance scam. And it

would have happened to me if I would have done anything wrong.”

       {¶ 16} At the conclusion of McMahon’s testimony, the parties presented their

arguments regarding the admissibility of the other acts evidence under Evid.R. 404(B).

Appellant asserted that the evidence was admissible under the rule because it

demonstrated A.E.’s plan or common scheme of accosting motorists, unprovoked,

ostensibly so that he would subsequently be able to assert insurance claims against the

motorists when he was injured. The state opposed appellant by contending that he failed

to demonstrate a plan, particularly noting that McMahon merely speculated about

whether A.E. was attempting an insurance scam when he confronted McMahon.

Ultimately, the trial court took the matter under advisement.

       {¶ 17} On May 1, 2019, the trial court issued its order on appellant’s notice of

intent to use Evid.R. 404(B) evidence at trial. In its order, the trial court found that

McMahon’s testimony was dissimilar from the facts of this case and thus inadmissible

under Evid.R. 404(B). In particular, the court found:




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       While there are similarities between the two encounters, they are separated

       by time and place. In Defendant’s case, [A.E.] was several yards away

       from Defendant when something provoked him to return to Defendant’s

       vehicle. In Mr. McMahon’s case, Mr. Edwards did not hop on the Buick,

       and it is unclear what provoked him to kick the car as it was driving away.

       These and other details of the two incidents with [A.E.] demonstrate

       significant factual contrasts between what allegedly happened on

       December 26, 2018 in south Toledo and what allegedly happened in

       October or November of 2018 on Woodville Road in east Toledo. The

       evidence of alleged conforming character overshadows any potentially

       valid evidentiary value, such as motive, plan, scheme, and the like. The

       value of such evidence is substantially outweighed by the danger of both

       unfair prejudice and the danger that what would eventuate is a trial within a

       trial.

       {¶ 18} Following the trial court’s denial of appellant’s request to admit

McMahon’s testimony, the parties completed their discovery and the matter proceeded to

a jury trial. On June 6, 2019, the jury returned a guilty verdict to the charge of felonious

assault. The matter proceeded immediately to sentencing, and appellant was ordered to

serve three years in prison. Appellant’s timely appeal followed.




7.
                               B. Assignments of Error

     {¶ 19} On appeal, appellant assigns the following errors for our review:

            I. The trial court’s ruling barring the introduction of independent

     testimony of similar bad acts of the complainant, specifically the

     complainant attacking another vehicle weeks before, was an error which

     denied former Deputy Sepeda his rights to present a defense and to a trial

     by jury under the Constitutions of Ohio and the United States.

            II. The trial court erred, and Mr. Sepeda was denied his rights to

     present a defense and to confront the witnesses against him under the

     Constitutions of Ohio and the United States when the court sustained the

     prosecution’s objection to defense counsel questioning the complainant.

            III. Under the facts and circumstances of the case, the trial court’s

     instruction to the jury that former Deputy Sepeda’s retreat from the scene

     could be construed as indicia of guilt was in error and denied Sepeda his

     right to a fair trial and to present a defense under the Constitutions of Ohio

     and the United States.

            IV. Former Deputy Sepeda was denied the right to a fair trial when

     the prosecution stated to the jury that it could not consider self-defense at

     all, and argued a legal proposition directly contrary to Ohio Law in effect at

     the time of trial and repeatedly made statements in closing which

     improperly shifted the burden of proof onto the defendant.




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              V. The prosecution failed to present sufficient evidence to prove

       every element of the crime charged.

              VI. The jury lost its way and the conviction was contrary to the

       Manifest Weight of the Evidence.

                                        II. Analysis

          A. Admissibility of McMahon’s Testimony Under Evid.R. 404(B)

       {¶ 20} In his first assignment of error, appellant argues that the trial court’s denial

of his request to introduce evidence of A.E.’s confrontation of McMahon in October or

November of 2018 deprived him of his rights to present a defense and to a trial by jury

under the Constitutions of Ohio and the United States.

       {¶ 21} We note at the outset that appellant’s constitutional argument that his right

to present a complete defense was infringed in this case rises and falls on whether the

trial court erroneously prohibited him from introducing the proffered evidence under the

applicable rules of evidence. Indeed, “a complete defense does not imply a right to offer

evidence that is otherwise inadmissible under the standard rules of evidence.” U.S. v.

Lucas, 357 F.3d 599, 606 (6th Cir.2004), citing Rockwell v. Yukins, 341 F.3d 507, 512

(6th Cir.2003) (en banc) and Taylor v. Illinois, 484 U.S. 400, 410, 108 S.Ct. 646, 98

L.Ed.2d 798 (1988). Thus, as a threshold matter, we must consider the applicability of

Evid.R. 404(B) to this case.

       {¶ 22} In the typical scenario, Evid.R. 404(B) is applied in cases in which the state

seeks to introduce evidence of a defendant’s prior acts in order to establish the




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defendant’s criminal conduct. However, this is not the ordinary case. Here, appellant

sought to introduce other acts evidence of a third party in order to exonerate himself.

This type of evidence has been referred to as “reverse 404(B)” evidence. State v.

Gillispie, 2012-Ohio-2942, 985 N.E.2d 145, ¶ 25 (2d Dist.), citing State v. Clifford, 121

P.3d 489 (Mont.2005).

       {¶ 23} While reverse 404(B) evidence is rarely used, its use is not unprecedented.

In Ohio, only a few courts have examined the admissibility of such evidence. Most

notably, the Second District Court of Appeals in Gillispie considered the applicability of

Evid.R. 404(B) in casing involving a defendant’s use of reverse 404(B) evidence. There,

the court looked to the way in which the United States Circuit Courts of Appeals have

addressed this issue under the Federal Rules of Evidence, which are similar to Ohio’s

Rules of Evidence, and concluded that a majority of federal circuits permit reverse

404(B) evidence so long as its probative value is not substantially outweighed by

considerations contained in the federal counterpart to Evid.R. 403. Id. at ¶ 19, citing U.S.

v. Stevens, 935 F.2d 1380 (3d Cir.1991).1 The court followed the approach of the

majority of federal circuit courts, and held that other acts evidence offered by a defendant




1
  In so holding, the court in Gillispie noted that some circuits, including the Sixth Circuit,
have held that Evid.R. 404(B) does apply to reverse 404(B) evidence. Id., citing Wynne
v. Renico, 606 F.3d 867, 873 (6th Cir.2010) (Martin, J., concurring in the result based on
precedent, but criticizing the Sixth Circuit Court of Appeals’ former decision in Lucas,
supra, as illogical and as having been wrongly decided).




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to support his defense should be evaluated using a balancing approach under Evid.R. 403,

not Evid.R. 404(B). Id. at ¶ 20.

       {¶ 24} Because we agree with the analysis articulated by our sister court in its

well-reasoned decision in Gillispie, we too hold that Evid.R. 403’s balancing test is the

applicable standard for ascertaining the admissibility of reverse 404(B) evidence. Having

reviewed the order denying appellant’s request to admit reverse 404(B) evidence of

A.E.’s prior confrontation with McMahon, it is clear that the trial court applied Evid.R.

404(B) in arriving at its decision. In this respect, the trial court erred. However, our

analysis does not end here, because the trial court, in analyzing the applicability of the

reverse 404(b) evidence, also engaged in a cursory Evid.R. 403(A) analysis, and found

that the value of the evidence of A.E.’s prior confrontation with McMahon “is

substantially outweighed by the danger of both unfair prejudice and the danger that what

would eventuate is a trial within a trial.” Thus, we must examine whether the trial court

abused its discretion in concluding that the evidence was inadmissible under Evid.R.

403(A).

       {¶ 25} Evid.R. 403(A) provides:

              (A) Exclusion Mandatory. Although relevant, evidence is not

       admissible if its probative value is substantially outweighed by the danger

       of unfair prejudice, of confusion of the issues, or of misleading the jury.

       {¶ 26} Trial courts are afforded broad discretion in balancing the probative value

of evidence against the danger of unfair prejudice to the defendant under Evid.R. 403(A).




11.
See State v. Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, 854 N.E.2d 150, ¶ 171.

Consequently, we review the trial court’s Evid.R. 403(A) determination under an abuse

of discretion standard. Id. An abuse of discretion implies that the trial court’s attitude

was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d

217, 219 (1983).

       {¶ 27} “In reaching a decision involving admissibility under Evid.R. 403(A), a

trial court must engage in a balancing test to ascertain whether the probative value of the

offered evidence outweighs its prejudicial effect.” State v. Wright, 8th Dist. Cuyahoga

No. 108026, 2019-Ohio-4460, ¶ 50, citing State v. Maurer, 15 Ohio St.3d 239, 473

N.E.2d 768 (1984), paragraph seven of the syllabus. In order for the evidence to be

deemed inadmissible under Evid.R. 403, its “probative value must be minimal and the

prejudice great.” State v. Morales, 32 Ohio St.3d 252, 258, 513 N.E.2d 267 (1987).

“When determining whether the relevance of evidence is outweighed by its prejudicial

effects, the evidence is viewed in a light most favorable to the proponent, maximizing its

probative value and minimizing any prejudicial effect to the party opposing admission.”

State v. Lakes, 2d Dist. Montgomery No. 21490, 2007-Ohio-325, ¶ 22.

       {¶ 28} In examining the prejudice prong of Evid.R. 403, the Supreme Court of

Ohio has observed that all relevant evidence is prejudicial, since “evidence that tends to

disprove a party’s rendition of the facts necessarily harms that party’s case.” State v.

Crotts, 104 Ohio St.3d 432, 2004-Ohio-6550, 820 N.E.2d 302, ¶ 23. The court went on




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to emphasize that “only evidence that is unfairly prejudicial is excludable.” (Emphasis

sic.) Id.

       {¶ 29} “Unfair prejudice does ‘not mean the damage to a [party’s] case that results

from the legitimate probative force of the evidence; rather it refers to evidence which

tends to suggest decision on an improper basis.’” State v. Lang, 129 Ohio St.3d 512,

2011-Ohio-4215, 954 N.E.2d 596, ¶ 89, quoting United States v. Bonds, 12 F.3d 540 (6th

Cir.1993). “Unfair prejudice is that quality of evidence which might result in an

improper basis for a jury decision.” Oberlin v. Akron Gen. Med. Ctr., 91 Ohio St.3d 169,

172, 743 N.E.2d 890 (2001), quoting Weissenberger’s Ohio Evidence (2000) 85-87,

Section 403.3. It is evidence that “‘arouses the jury’s emotional sympathies, evokes a

sense of horror, or appeals to an instinct to punish’” and generally “‘appeals to the jury’s

emotions rather than intellect.’” Id.

       {¶ 30} Applying the foregoing principles to the case sub judice, we find that the

probative value of A.E.’s prior confrontation with McMahon was not substantially

outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading

the jury. In offering this evidence, appellant sought to establish A.E.’s pattern of

aggressive behavior, first with an unprovoked attack on McMahon and second with an

unprovoked attack on appellant. In both instances, A.E. allegedly approached a motorist

and initiated a physical confrontation with no incitement from the motorist. The evidence

of A.E.’s prior unprovoked confrontation with McMahon can be viewed as highly

probative here as it lends credence to appellant’s claim that it was A.E. who accosted




13.
him, not vice versa. Moreover, this evidence, if believed, may cast doubt upon A.E.’s

credibility generally and the veracity of his testimony in this particular case.

       {¶ 31} Furthermore, the evidence of A.E.’s prior confrontation with McMahon is

not unfairly prejudicial to the state. Indeed, this evidence does not arouse sympathy,

evoke horror, or appeal to the jury’s instinct to punish. Rather, this evidence invites the

factfinder to draw a logical conclusion, namely that because A.E. has engaged in strange

and aggressive behavior under similar circumstances (i.e., an unprovoked encounter with

an unknown motorist), he therefore may not be telling the truth when he accuses

appellant of being the aggressor in this case.

       {¶ 32} While the jury’s potential disbelief of A.E. may prejudice the state’s case, it

does so by attacking the credibility of the accuser in this case, and is thus not unfairly

prejudicial to the state. The jury is permitted to filter A.E.’s accusation that he was run

over by appellant through the lens of A.E.’s prior confrontation with McMahon, as an aid

to the jury’s vetting of A.E.’s credibility. Indeed, the proper function of the jury requires

the inclusion of such evidence as a predicate for the jury to carry out its role as factfinder.

This is especially true where the evidence is being offered by a criminal defendant to

support his defense, where an error in the jury’s credibility determination could result in

significant prison time for the defendant.

       {¶ 33} In short, we find that the balancing analysis under Evid.R. 403(A) weighs

in favor of admission of the evidence of A.E.’s prior confrontation with McMahon.

Therefore, we find that the trial court abused its discretion in denying appellant’s request




14.
to introduce the evidence. Moreover, in light of the conflicting testimony that was

offered by the parties’ witnesses at trial concerning whether appellant was provoked by

A.E. prior to appellant’s vehicle contacting A.E., we cannot say that the trial court’s

evidentiary error was harmless beyond a reasonable doubt.

        {¶ 34} In light of the foregoing, we find appellant’s first assignment of error well-

taken. Our resolution of the first assignment of error in appellant’s favor warrants a new

trial, thereby rendering appellant’s second, third, fourth, and sixth assignments of error

moot.

                               B. Sufficiency of the Evidence

        {¶ 35} In appellant’s fifth assignment of error, he argues that his conviction was

not supported by sufficient evidence. “Because ‘the state is not entitled to retry a

criminal defendant after reversal for trial court error if the state failed in the first instance

to present sufficient evidence * * * a defendant’s assigned error that the conviction is

based on insufficient evidence is not moot under these circumstances.’” State v. Mathis,

6th Dist. Lucas No. L-18-1192, 2020-Ohio-3068, ¶ 78, quoting State v. Vanni, 182 Ohio

App.3d 505, 2009-Ohio-2295, 913 N.E.2d 985, ¶ 15 (9th Dist.).

        {¶ 36} In reviewing a record for sufficiency, “[t]he 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, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the

syllabus.




15.
       {¶ 37} Here, appellant was convicted of felonious assault in violation of R.C.

2903.11(A)(2), which provides:

              (A) No person shall knowingly do either of the following:

              ***

              (2) Cause or attempt to cause physical harm to another or to

       another’s unborn by means of a deadly weapon or dangerous ordnance.

       {¶ 38} At trial, the state called eight witnesses, including A.E. and several

eyewitnesses of the incident at issue in this case. Taken together, the testimony of the

state’s witnesses was sufficient to establish that appellant caused or attempted to cause

physical harm to A.E. by running into him with a deadly weapon, namely a motor

vehicle. See R.C. 2903.11(D)(3) (acknowledging that a motor vehicle qualifies as a

deadly weapon).

       {¶ 39} Collectively, the state’s witnesses testified that appellant was stopped at the

intersection of Logan and Broadway when A.E. entered the crosswalk. Because

appellant’s vehicle was obstructing the crosswalk at the time, A.E. was forced to walk

into Broadway Street, a busy thoroughfare. A.E. was visibly upset as he walked around

appellant’s vehicle, spitting on the ground in the direction of appellant’s vehicle.

       {¶ 40} According to A.E., appellant rolled his window down and uttered a racial

epithet as A.E. was proceeding through the crosswalk. A.E. turned around and threw his

arms in the air. A.E. proceeded to throw an empty cup toward appellant’s vehicle, but no

contact with the vehicle was made. A.E. then turned around to continue on his way. At




16.
this point, appellant entered the intersection, made a U-turn, and maneuvered his vehicle

toward A.E. at a speed of approximately 10 to 20 m.p.h., only briefly braking as he

proceeded over a curb. Ultimately, appellant struck A.E. with his vehicle, forcing A.E. to

jump onto the hood to avoid being run over, and injuring A.E. Each of the eyewitnesses

to testify for the state indicated that appellant was not under any threat from A.E. at the

time of the contact.

       {¶ 41} After viewing the evidence introduced by the state in this case in a light

most favorable to the prosecution, we find that a rational trier of fact could have found

the essential elements of felonious assault proven beyond a reasonable doubt.

Accordingly, we find appellant’s fifth assignment of error not well-taken.

                                      III. Conclusion

       {¶ 42} In light of the foregoing, we find that substantial justice has not been done

the party complaining, and the judgment of the Lucas County Court of Common Pleas is

reversed. Because the trial court abused its discretion in excluding evidence of A.E.’s

prior confrontation with McMahon, this matter is remanded to the trial court for a new

trial. Appellee is ordered to pay the costs of this appeal pursuant to App.R. 24.


                                                                          Judgment reversed
                                                                             and remanded.




17.
                                                                      State v. Sepeda
                                                                      C.A. No. L-19-1125




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                              _______________________________
                                                           JUDGE
Christine E. Mayle, J.
                                               _______________________________
Gene A. Zmuda, P.J.                                        JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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