[Cite as State v. Comer, 2012-Ohio-2261.]
                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                       GALLIA COUNTY


STATE OF OHIO,                                        :

        Plaintiff-Appellee,                           :   Case No. 10CA15

        vs.                                           :

ROBERT S. COMER,                                      :   DECISION AND JUDGMENT ENTRY


        Defendant-Appellant.                          :

_________________________________________________________________

                                             APPEARANCES:

COUNSEL FOR APPELLANT:                      Timothy Young, Ohio Public Defender, and Katherine A.
                                            Szudy, Assistant Ohio Public Defender, 250 East Broad
                                            Street, Ste. 1400, Columbus, Ohio 43215

COUNSEL FOR APPELLEE:                       C. Jeffrey Adkins, Gallia County Prosecuting Attorney, and
                                            Eric R. Mulford, Gallia County Assistant Prosecuting
                                            Attorney, and Pat Story, Gallia County Assistant
                                            Prosecuting Attorney, Gallia County Courthouse, 18 Locust
                                            Street, Room 1267, Gallipolis, Ohio 45631
                                                                        CRIMINAL APPEAL FROM
COMMON PLEAS COURT
DATE JOURNALIZED: 5-14-12

ABELE, P.J.

                {¶ 1} This is an appeal from a Gallia County Common Pleas Court judgment of

        conviction and sentence. A jury found Robert S. Comer, defendant below and appellant

        herein, guilty of murder with a firearm specification. See R.C. 2903.02(A) and R.C.

        2941.145.
GALLIA, 10CA15                                                                                  2

                 {¶ 2} Appellant assigns the following errors for review:

                 FIRST ASSIGNMENT OF ERROR:

                 “THE TRIAL COURT VIOLATED ROBERT COMER’S
                 RIGHTS TO DUE PROCESS AND A FAIR TRIAL WHEN, IN
                 THE ABSENCE OF SUFFICIENT EVIDENCE, IT ENTERED A
                 JUDGMENT ENTRY, CONVICTING ROBERT OF MURDER
                 AND THE ATTACHED FIREARM SPECIFICATION.”

                 SECOND ASSIGNMENT OF ERROR:

                 “THE TRIAL COURT COMMITTED A PREJUDICIAL ERROR
                 AND DENIED ROBERT COMER DUE PROCESS OF LAW
                 WHEN IT FAILED TO PROVIDE THE JURY WITH A PROPER
                 JURY INSTRUCTION IN ACCORDANCE WITH R.C. 2901.05.”

                 THIRD ASSIGNMENT OF ERROR:

                 “THE TRIAL COURT COMMITTED A PREJUDICIAL ERROR
                 AND DENIED ROBERT COMER DUE PROCESS OF LAW
                 WHEN IT FAILED TO PROVIDE THE JURY WITH AN
                 AUGMENTED JURY INSTRUCTION IN ACCORDANCE
                 WITH R.C. 2901.09.”

                 FOURTH ASSIGNMENT OF ERROR:

                 “TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE

                 OF COUNSEL, IN VIOLATION OF THE SIXTH AMENDMENT

                 TO THE UNITED STATES CONSTITUTION AND SECTION

                 10, ARTICLE I OF THE OHIO CONSTITUTION.”

                 {¶ 3} On the evening of December 1, 2009, a number of people came together at

        the Lennex home on Shaffer Road in a part of Gallia County that borders right on Jackson

        County. Gathered at the Lennex home that evening, in anticipation of deer hunting the

        next day, were Edith Lennex, her sons Dustin and Cody, and Dustin’s two children
GALLIA, 10CA15                                                                                                3

        Aaleyah and Dominic. Also, Kristen Gandee, a family friend, had driven from

        Columbus with Alfred Bury and Joe Wheeler. At some point appellant, a next-door

        neighbor, visited the home. The evidence adduced at trial was replete with references

        that described appellant and the Lennex brothers as good friends, or even “best” friends.1

                   {¶ 4} At approximately 9:00 PM, Gandee and a few others went to McDonald’s

        to purchase food for themselves and others at the Lennex home. Upon their return, Cody

        Lennex and Joe Wheeler took approximately twenty cheeseburgers into the home while

        Gandee and Bury stayed in the car and talked. Inside the Lennex home, some of the

        younger members of the crowd were “rapping” to a Karaoke machine. Appellant

        supposedly “rapped” something of a sexual nature about Cody’s girlfriend that promptly

        led to a fight. Both Edith and Dustin Lennex intervened to stop the fight between

        appellant and Cody.

                   {¶ 5} Appellant stormed out of the Lennex home and slammed a screen door

        behind him. That screen door was apparently damaged and an angry Dustin Lennex

        pursued appellant into the yard. Appellant went to his home but, rather than follow him,

        Gandee motioned Dustin to her car and asked if anything had transpired that should worry

        her. Dustin answered in the negative and assured her that “we do this all the time.”



                   {¶ 6} In the meantime, appellant entered his home in a rage – “put his fist in the

        wall” and overturned a coffee table. His cousin, Todd Dixon, was in the room


        1
            Kristen Gandee described appellant's and Dustin Lennex's relationship as being “like brothers.”
GALLIA, 10CA15                                                                                                                 4

         attempting to text his father and heard appellant scream that he was going to shoot “them

         MF’ers.” Appellant grabbed a weapon, went outside and fired a “warning shot” into the

         air. Cody Lennex had already gone outside with his rifle and positioned himself to see

         the front door of appellant’s home. Cody warned appellant that if he fired another shot,

         Cody would shoot him. Appellant then fired in Cody’s direction. Cody returned fire

         and grazed appellant's “butt cheek.” He also, apparently, wounded Todd Dixon as well.2

                    {¶ 7} At this point, Dustin Lennex re-inserted himself into the fracas and began

         to walk toward appellant’s home. The evidence adduced at trial shows that Dustin was

         unarmed, approached appellant’s house trailer with his arms extended out on each side

         and asked him if appellant was going “going to shoot a motherfucker.”3 Apparently,

         appellant was prepared to do just that. He went to his home and shut the door. When

         Dustin stepped on appellant’s porch, appellant fired a shot at him from the home's

         interior. Although some witnesses testified that they could hear Dustin gasping for air,

         the Gallia County Coroner, as well as the assistant Deputy Coroner of Montgomery

         County who performed the autopsy, explained that shrapnel from the gunshot pierced the

         victim’s aorta and he died very quickly thereafter.4

                    {¶ 8} The Gallia County Grand Jury returned an indictment that charged


         2
             The record indicates that Todd Dixon was not at the Lennex home that evening and was not involved in the fracas
that took place. He explained he has not been to his cousins’ place since the shooting and declared he “won’t [ever] return.”
         3
             We quote Kristen Gandee at this point, but Cody Lennex testified that his brother simply said “shoot me MF’er.”
         4
           Dr. Dan Whitley, the Gallia County Coroner, and Dr. Kent Harshbarger, Deputy Montgomery County Coroner, both
confirmed that the alcohol content in Dustin Lennex’s blood exceeded the legal limit. Lennex also had “THC” in his
bloodstream, which indicated that he had used marijuana.
GALLIA, 10CA15                                                                                         5

        appellant with murder. At his jury trial appellant agreed that he and the Lennex brothers

        are friends, but stated that his cousin (Todd Dixon) lied about his reaction when he

        returned to the family house trailer. Appellant also denied that he intended to shoot to

        kill anyone and that he most certainly did not want “Dustin to die.” Appellant explained

        that he shot his friend because he and his cousin had already been shot and that he feared

        for his life.

                 {¶ 9} The jury returned a verdict of guilty with a firearm specification. The trial

        court sentenced appellant to serve an indefinite term of imprisonment of fifteen years to

        life on the murder charge, together with a three year term on the firearm specification,

        each to be served consecutively to one another. Although no immediate appeal was

        taken, this Court granted appellant leave to file delayed appeal and the matter is properly

        before us for review.

                                                  I

                 {¶ 10} Before we address the merits of the assignments, we first observe that they

        are all based on appellant’s claim that he shot the victim in self-defense. Self-defense is

        an affirmative defense that must be proven by a preponderance of the evidence. R.C.

        2901.05(A); State v. Clark, Fulton App. No. No. F–10–025, 2011-Ohio-6310, at ¶21;

        State v. Warmus, Cuyahoga App. No. 96026, 2011-Ohio-5827, at ¶8. To prove

        self-defense, an accused must show three elements: (1) that the defendant was not at fault

        in creating the violent situation, (2) that the defendant had a bona fide belief that he was

        in imminent danger of death or great bodily harm and that his only means of escape was

        the use of force, and (3) that the defendant did not violate any duty to retreat. See State
GALLIA, 10CA15                                                                                        6

        v. Goff, 128 Ohio St.3d 169, 942 N.E.2d 1075, 2010–Ohio–6317, at ¶36; State v. Thomas

        (1997), 77 Ohio St.3d 323, 326, 673 N.E.2d 1339.

                 {¶ 11} This duty of retreat, however, does not apply to one’s own home. The

        maxim that a man’s home is “his castle” has deep roots in English law. 4 Blackstone,

        Commentaries on the Laws of England (Rev. Ed. 1979) 223, Chapter 16. That maxim

        has long been a cherished part of American law as well. See e.g. State v. Batchelder

        (N.H.Super.Ct. 1832), 5 N.H. 549; Snowden v. Warder (PA. 1831), 3 Rawle 101; State v.

        Norris (N.C.Super.Ct. 1796), 2 N.C. 429. It is also a bulwark of Ohio law. See e.g.

        State v. Smith (1997), 80 Ohio St.3d 89, 110, 684 N.E.2d 668; State v. Thomas (1997),

        77 Ohio St.3d 323, 327, 673 N.E.2d 1339.

                 {¶ 12} The Ohio General Assembly has codified the castle doctrine in R.C.

        2901.09(B). The statute states, inter alia, that “a person who lawfully is in that person's

        residence has no duty to retreat before using force in self-defense.” Ohio courts have

        also extended the definition of “residence” to an attached porch. See State v. Nappier

        (1995), 105 Ohio App.3d 713, 721, 664 N.E.2d 1330; State v. Cole (Jan. 22, 1997),

        Hamilton App. No. C-950900; State v. Copeland (Apr. 13, 1993), Franklin App. No.

        92AP-1486. With these principles in mind, we now turn our attention to the issues

        raised in the individual assignments of error.

                                                  II

                 {¶ 13} Appellant’s first assignment of error asserts that insufficient evidence

        supports his conviction for murder with a firearm specification.

                 {¶ 14} When appellate courts review the sufficiency of evidence, courts
GALLIA, 10CA15                                                                                     7

        generally look to the adequacy of the evidence and whether that evidence, if believed by

        the trier of fact, will support a finding of guilt beyond a reasonable doubt. State v.

        Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541; State v. Jenks (1991), 61

        Ohio St.3d 259, 273, 574 N.E.2d 492. In other words, after viewing the evidence, and

        each inference reasonably drawn therefrom, in a light most favorable to the prosecution,

        can any rational trier of fact find all the essential elements of the offense beyond a

        reasonable doubt? See State v. Were, 118 Ohio St.3d 448, 890 N.E.2d 263,

        2008-Ohio-2762; at ¶132; State v. Hancock, 108 Ohio St.3d 57, 840 N.E.2d 1032,

        2006-Ohio-160, at ¶34; State v. Jones (2000), 90 Ohio St.3d 403, 417, 739 N.E.2d 300.

                 {¶ 15} R.C. 2903.02(A) states that no person shall purposely cause the death of

        another. Here, no question exists that appellant shot and killed Dustin Lennex.

        Appellant also does not argue that his actions were not purposeful. Abundant testimony

        was adduced at trial from which the jury could conclude that appellant's actions were

        done purposely. Thus, sufficient evidence supports the conviction. The gist of

        appellant’s argument is not that the prosecution lacked sufficient evidence for a

        conviction, him but that his self-defense evidence rendered the prosecution’s evidence

        insufficient. We disagree. In Hancock, supra at ¶37, the Ohio Supreme Court stated

        that proof of an affirmative defense does not detract from proof that an accused

        committed a crime beyond a reasonable doubt. Although Hancock involved an insanity

        defense rather than self-defense, our Tenth District colleagues arrived at the same

        conclusion with regard to self-defense. See e.g. State v. Hogg, Franklin App. No.

        11AP–50, 2011-Ohio-6454, at ¶15. We find Hogg persuasive. Whatever evidence may
GALLIA, 10CA15                                                                                         8

        have been adduced regarding self-defense in this case, it does not detract from the

        evidence that appellant purposely caused the death of Dustin Lennex. Moreover, we

        again point out adequate evidence was adduced at trial for the jury to find the appellant

        guilty of murder with a firearm specification.        Accordingly, we hereby overrule

        appellant's first assignment of error.

                                                 III

                 {¶ 16} Because appellant’s second and third assignments of error both assert that

        the trial court erred in the instructions it gave to the jury, we consider them together. At

        the outset, we point out that appellant did not object to the jury instructions. Further,

        after instructions, the court asked both the prosecution and defense if they wanted

        “corrections, deletions or additions.” Both counsel answered in the negative. Thus,

        appellant has waived all but Crim.R. 52(B) plain error. See State v. Cunningham, 105

        Ohio St.3d 197, 2004-Ohio-7007, 824 N.E.2d 504, at ¶56; also see State v. Dickess, 174

        Ohio App.3d 658, 884 N.E.2d 92, 2008-Ohio-39 at ¶43. Generally, notice of plain error

        should be taken “with utmost caution, under exceptional circumstances, and only to

        prevent a manifest miscarriage of justice.” State v. Gardner, 118 Ohio St.3d 420,

        2008–Ohio–2787, 889 N.E.2d 995, ¶78; also see State v. Patterson, Washington App. No.

        05CA16, 2006–Ohio–1902, ¶ 13. Plain error exists when it affects a substantial rights.

        State v. Chambers, Adams App. No. 10CA902, 2011-Ohio-4352, at ¶42. Plain error is

        one that affects a substantial right when, but for the error, the outcome of the trial would

        have clearly been otherwise. Id.; State v. Litreal, 170 Ohio App.3d 670, 868 N.E.2d 1018,

        2006–Ohio–5416, at ¶11.
GALLIA, 10CA15                                                                                          9

                 {¶ 17} In his second assignment of error, appellant argues that the trial court

        erroneously suggested to the jury that appellant had a duty to retreat, even in his home.

        Before we address that argument, however, as the prosecution vaguely suggests in its

        brief, we consider whether a “Castle Doctrine” instruction was warranted. As noted

        above, a self-defense instruction is warranted only if a defendant was not at fault in

        creating the situation. Goff, supra at ¶36; Thomas, at 326. Here, the evidence adduced

        at trial was uncontroverted that appellant fired the first shot in this fracas. When asked

        on cross-examination if either Dustin or Cody Lennex followed him to his house trailer

        after the fracas in the Lennex home, appellant replied negatively. When asked if he

        believed that his fight with Cody was over when he left the Lennex residence and

        returned to his residence, appellant replied “yeah.”

                 {¶ 18} Appellant went home, loaded his shotgun and went outside to fire a

        “warning shot” into the air. It appears that appellant created the deadly situation, or at

        least seriously escalated it, and was not entitled to a self-defense, or “Castle Doctrine”

        instruction. Be that as it may, we find no error, let alone plain error, in the trial court’s

        instruction. The instructions appellant cites are as follows:

        “Now the defendant claims to have acted in self-defense. To establish a claim of
        self defense the defendant must prove by the greater weight of the evidence that
        A: He was not at fault in creating the situation giving rise to the death and B: He
        had reasonable grounds to believe and an honest belief even if mistaken that was
        in imminent or immediate danger of great, or death or great bodily harm and that
        his only means of retreat, escape of withdrawal from such danger was by the use
        of force and C: He had not violated any duty to retreat, escape or withdraw to
        avoid the danger. Now the defendant is presumed to have acted in self-defense or
        defense of another when using defensive force that was intended or likely to cause
        death or great bodily harm to another if the person against whom the defensive
        force was used was in the process of entering or had entered unlawfully and
GALLIA, 10CA15                                                                                                                    10

          without privilege to do so the residence occupied by the defendant. Now the
          claims the presumption that the defendant acted in self defense or defense of
          another when using defensive force that was intended or likely to cause death or
          great bodily harm to another does not apply. * * * Now dwelling means a building
          of any kind . . . A building includes but is not limited to an attached porch . . .
          Now the defendant had a duty to retreat. If the, if he A: was at fault in creating
          the situation giving rise to the death or B: did not have a reasonable ground, or did
          not have grounds to believe and an honest belief that he was imminent or
          immediate danger of death or great bodily harm . . . “ (Emphasis added.)

                    {¶ 19} This excerpt spans approximately two pages of the trial transcript.

          Although we agree that the language may be a bit confusing, we are not convinced that it

          constitutes prejudicial error and we certainly do not believe that rises to the level of plain

          error. Our understanding of appellant’s argument is that he objects to the third underlinled

          portion of the above excerpt stating that he “had a duty to retreat.”5 Had that instruction

          included a qualifier stating that appellant was outside his home at the time, then it would

          have been a correct statement of the law. At the same time, had it included a qualifier

          that appellant was inside his home, it was erroneous. Did the instruction constitute error

          without either qualifier? We think not for the following reasons.

                    {¶ 20} First, a trial court’s jury instructions must be considered in their totality.

          State v. Rodriguez, Wood App. No. WD-08-011, 2009-Ohio-4059, at ¶31; State v. Doyle,

          Pickaway App. No. 04CA23, 2005-Ohio-4072, at ¶50. Second, the first two italicized

          portions of the jury instructions are correct statements of the law and directed the jury that

          appellant was presumed to have acted in self-defense if the victim had unlawfully entered


          5
             It is, of course, possible that the trial court's court reporter mistakenly inserted a period rather than simply omitting
any punctuation mark and continuing the sentence. Transcribed conversations may not always correctly illustrate a
speaker's inflections or intent in linking words and phrases.
GALLIA, 10CA15                                                                                                                 11

          the premises (including the porch of the trailer). In light of the trial court’s correct

          statement of the law, balanced against the somewhat confusing, but not necessarily

          incorrect, statement of the law, we are not persuaded that plain error exists.6 This is

          particularly true in light of our discussion that it is questionable whether a self-defense

          instruction was warranted under the facts and circumstances of this case.

                    {¶ 21} Appellant maintains in his third assignment of error that the trial court

          should have “augmented” its instructions to emphasize the provisions of R.C. 2901.05

          that appellant had no duty to retreat inside his own home. However, defense counsel did

          not request any such instruction and, to be frank, we see little difference between his

          argument here and his argument in his second assignment of error.

                    {¶ 22} We note that because appellant did not request an “augmented” jury

          instruction, the failure to give one is measured under the plain error standard. We also

          agree, as noted above, that the trial court’s stray comment that appellant had a “duty to

          retreat” may or may not have been misleading to the jury. However, we are not

          persuaded that but for the absence of an augmented instruction, the outcome of the trial

          would have been otherwise. Chambers, at ¶42. Id.; Litreal, supra at ¶11.

                    {¶ 23} In the case sub judice, appellant fired the first shot between he and the two

          Lennex brothers. That first shot also occurred after appellant retreated to his family’s

          house trailer and re-emerged to fire the first “warning” shot, thereby precipitating the


          6
              In view of appellant’s own testimony, it appears that the confrontation was over when he returned to his house
trailer and that it escalated into a deadly confrontation only when he exited his house trailer and fired a warning shot into the
air.
GALLIA, 10CA15                                                                                        12

        events that next occurred. With that in mind, we find no merit to appellant's second or

        third assignments or error and they are hereby overruled.

                                                  IV

                 {¶ 24} In his final assignment of error, appellant argues that he received

        constitutionally ineffective representation from trial counsel. Appellant raises a number

        of issues to support that argument, but we find none persuasive.

                 {¶ 25} Criminal defendants have a constitutional right to counsel, and this right

        includes the right to effective assistance from trial counsel. McMann v. Richardson

        (1970), 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763; In re C.C., Lawrence App. No.

        10CA44, 2011-Ohio-1879, at ¶10. To establish ineffective assistance of counsel, a

        defendant must show (1) his counsel's performance was deficient, and (2) such deficient

        performance prejudiced the defense and deprived him of a fair trial. Strickland v.

        Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674; also see State v.

        Perez, 124 Ohio St.3d 122, 920 N.E.2d 104, 2009–Ohio–6179, at ¶200. Both prongs of

        the Strickland test need not be analyzed, however, if a claim can be resolved under one

        prong. State v. Madrigal (2000), 87 Ohio St.3d 378, 389, 721 N.E.2d 52; also see State

        v. Saultz, Ross App. No. 09CA3133, 2011-Ohio-2018, at ¶19. In short, if it can be

        shown that an error, assuming arguendo that such an error did in fact exist, did not

        prejudice an appellant, an ineffective assistance claim can be resolved on that basis alone.

         To establish the existence of prejudice, a defendant must demonstrate that a reasonable

        probability exists that, but for his counsel’s alleged error, the result of the trial would

        have been different. See State v. White (1998), 82 Ohio St.3d 16, 23, 693 N.E.2d 772;
GALLIA, 10CA15                                                                                       13

        State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, at paragraph three of the

        syllabus.

                 {¶ 26} Appellant’s second and third arguments are that counsel was ineffective

        for those reasons he raises in his second and third assignments of error. However, in

        light of the fact that we found no merit to those arguments, we do not find any

        constitutionally ineffective assistance of counsel.

                 {¶ 27} In particular, appellant’s first argument is that trial counsel failed to

        request a Crim.R. 29(A) judgment of acquittal at the conclusion of the prosecution’s

        case-in-chief. This argument is somewhat perplexing, however, as the record reveals

        that counsel made such a motion. To the extent that appellant claims that counsel was

        ineffective for not making the motion in light of his self-defense claim, as we noted in

        resolving appellant’s first assignment of error, whatever claim appellant had to

        self-defense was irrelevant to the prosecution's evidence concerning whether he

        committed murder in violation of R.C. 2903.02(A).

                 {¶ 28} Appellant’s fourth argument is that trial counsel failed to “object to the

        State’s elicitation of prior bad-act testimony.” To begin, we do not believe that the

        incident to which appellant cites was an attempt to elicit “prior bad-act testimony.” The

        prosecution simply asked Cody Lennex why he went outside with his gun after appellant

        left his residence and Cody explained “[b]ecause me and [appellant] got into an argument

        before when he was drunk he’s threatened to bring a gun back and shoot me.” The

        prosecution did not seek “prior bad-acts” concerning appellant but, rather, sought to

        explain why Cody went outside with a firearm. This was also cumulative of the
GALLIA, 10CA15                                                                                     14

        evidence that the boys (Lennex and Comer) fought frequently and why the victim

        explained to Gandee that the confrontation between his younger brother and appellant

        was not important. In any event, appellant has not persuaded us that the outcome of his

        trial would have been different had defense counsel lodged an objection to the question

        and answer.

                 {¶ 29} In his final argument, appellant argues that the cumulative total of his

        counsel’s alleged errors deprived him of a fair trial. However, if a reviewing court finds

        no prior instances of error, the cumulative error doctrine has no application. See State v.

        Hairston, Scioto App. No. 06CA3089, 2007-Ohio-3707, at ¶41; State v. Bennett, Scioto

        App. No. 05CA2997, 2006-Ohio-2757, at ¶50. In the case sub judice, in view of the fact

        that we have found no merit in any of appellant's assignments of error, the cumulative

        error doctrine does not apply. Thus, we find no merit to appellant’s fourth assignment of

        error and it is hereby overruled.



                 {¶ 30} Accordingly, having considered all of the errors assigned and argued, and

        having found merit in none, we hereby affirm the trial court's judgment.

                                                               JUDGMENT AFFIRMED.



                                        JUDGMENT ENTRY

        It is ordered that the judgment be affirmed and appellee to recover of appellant the costs
herein taxed.

        The Court finds there were reasonable grounds for this appeal.
GALLIA, 10CA15                                                                                   15

     It is ordered that a special mandate issue out of this Court directing the Gallia County
Common Pleas Court to carry this judgment into execution.

        If a stay of execution of sentence and release upon bail has been previously granted, it is
continued for a period of sixty days upon the bail previously posted. The purpose of said stay is
to allow appellant to file with the Ohio Supreme Court an application for a stay during the
pendency of the proceedings in that court. The stay as herein continued will terminate at the
expiration of the sixty day period.

       The stay will also terminate if appellant fails to file a notice of appeal with the Ohio
Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to
the expiration of said sixty days, the stay will terminate as of the date of such dismissal.

       A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.

        Harsha, J. & Kline, J.: Concur in Judgment & Opinion

                                                             For the Court




                                                             BY:
                                            Peter B. Abele
                                                                Presiding 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.
