[Cite as State v. Helms, 128 Ohio St.3d 352, 2011-Ohio-738.]




      THE STATE OF OHIO, APPELLANT AND CROSS-APPELLEE, v. HELMS,
                         APPELLEE AND CROSS-APPELLANT.
           [Cite as State v. Helms, 128 Ohio St.3d 352, 2011-Ohio-738.]
Discretionary appeal accepted, discretionary cross-appeal not accepted,
        judgment of the court of appeals vacated in part, and cause remanded to
        the court of appeals for application of State v. Johnson.
 (No. 2010-1953 — Submitted February 1, 2011 — Decided February 22, 2011.)
    APPEAL from the Court of Appeals for Mahoning County, No. 08 MA 199,
                                     2010-Ohio-4872.
                                  __________________
        {¶ 1} The discretionary appeal is accepted.
        {¶ 2} The discretionary cross-appeal is not accepted.
        {¶ 3} The portion of the judgment of the court of appeals addressing
appellant’s first assignment of error below is vacated on the authority of State v.
Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, and the cause is
remanded to the court of appeals for application of our decision in State v.
Johnson.
        O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL, and
MCGEE BROWN, JJ., concur.
        LANZINGER, J., concurs but would also accept the cross-appeal on
Proposition of Law No. II.
        CUPP, J., dissents and would not accept the appeal.
                                  __________________
        Paul J. Gains, Mahoning County Prosecuting Attorney, and Ralph M.
Rivera, Assistant Prosecuting Attorney, for appellant and cross-appellee.
        Gary L. Van Brocklin, for appellee and cross-appellant.
                               ______________________
