[Cite as State v. Dallman, 2018-Ohio-2670.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                          CLERMONT COUNTY




STATE OF OHIO,                                   :
                                                       CASE NOS. CA2017-11-056
        Plaintiff-Appellant,                     :               CA2017-11-057

                                                 :             OPINION
    - vs -                                                      7/9/2018
                                                 :

JAY A. DALLMAN,                                  :

        Defendant-Appellee.                      :



           CRIMINAL APPEAL FROM CLERMONT COUNTY MUNICIPAL COURT
                   Case Nos. 2017 CRB 03005 and 2017 TRC 09951



D. Vincent Faris, Clermont County Prosecutor, Nicholas Horton, 76 South Riverside Drive,
2nd Floor, Batavia, Ohio 45103, for plaintiff-appellant

Gary Rosenhoffer, 313 East Main Street, Batavia, Ohio 45103, for defendant-appellee



        HENDRICKSON, P.J.

        {¶ 1} Plaintiff-appellant, the state of Ohio, appeals the decision of the Clermont

County Municipal Court granting a motion to suppress by defendant-appellee, Jay A.

Dallman. For the reasons set forth, we reverse the judgment of the trial court.

        {¶ 2} On June 30, 2017, Officer McMillan of the village of Batavia Police

Department was on duty, in uniform, and in a marked cruiser, on eastbound State Route

32. McMillan was near the intersection of Bauer Road and State Route 32 in the village of
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Batavia when he observed Dallman driving southbound on Bauer Road, within the village

limits, across State Route 32. McMillan noticed Dallman's vehicle did not have a rear

license plate. While in the village of Batavia, McMillan activated his overhead lights to

initiate a traffic stop. Due to the landscape of Bauer Road, there was nowhere on the road

to safely pull over Dallman. Thus, McMillan followed Dallman, who turned right onto

Winemiller Lane, and then, immediately into a United Dairy Farmer (UDF) gas station

parking lot. The traffic stop occurred approximately 50 to 100 feet outside the village of

Batavia and within adjoining Batavia Township.

       {¶ 3} During the stop, McMillan detected an odor consistent with an alcoholic

beverage emanating from Dallman's vehicle and observed that Dallman's speech was

slurred. Dallman informed McMillan he had consumed approximately five beers and that

he did not have a valid driver's license. McMillan also observed an open beer bottle inside

the vehicle. Based on this new information, McMillan administered several field sobriety

tests, after which McMillan affected a warrantless arrest of Dallman and transported him to

the police station. Upon arrival, Dallman submitted to a breathalyzer test, revealing a blood-

alcohol-content ("BAC") of .220. McMillan issued Dallman citations and summonses for

operating a vehicle under the influence of alcohol ("OVI") in violation of R.C.

4511.19(A)(1)(a) and 4511.19(A)(1)(h), failure to display a license plate in violation of R.C.

4503.21(A), failure to reinstate license in violation of R.C. 4510.21(A), and open container

in violation of R.C. 4301.62.

       {¶ 4} Dallman entered a not guilty plea and subsequently filed a motion to suppress,

claiming that the traffic stop and arrest were illegal as the officer conducted them outside

his territorial jurisdiction and without an arrest warrant. Following a hearing on the motion

on September 6, 2017, the trial court took the matter under advisement to allow the parties

to brief the jurisdictional issue before the court, i.e., Dallman's warrantless arrest outside

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the territorial jurisdiction of the village of Batavia by Officer McMillan. On October 25, 2017,

the trial court set forth its decision on the record finding that McMillan was required to obtain

a warrant under these circumstances and that the appropriate remedy was suppression of

the evidence. On the same day, the trial court filed an entry granting Dallman's motion to

suppress. The state appealed the trial court's decision.

       {¶ 5} Assignment of Error No. 1:

       {¶ 6} THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION TO

SUPPRESS, AS THE OFFICER HAD JURISDICTION TO PULL APPELLEE OVER FOR A

VIOLATION OF SECTION 4503.21 COMMITTED BOTH WITHIN THE OFFICER'S

JURISDICTION AND ON A STREET IMMEDIATELY ADJACENT TO THE OFFICER'S

JURISDICTION.

       {¶ 7} Assignment of Error No. 2:

       {¶ 8} THE TRIAL COURT ERRED IN DETERMINING THAT SUPPRESSION OF

THE EVIDENCE WAS THE PROPER REMEDY FOR THE OFFICER FAILING TO FULLY

COMPLY WITH SECTION 2935.03(E)(3).

       {¶ 9} The state contends the trial court erred in finding that McMillan did not have

authority to detain, arrest, and cite Dallman, for multiple traffic violations committed both in

McMillan's territorial jurisdiction and on a street adjacent to his territorial jurisdiction.

       {¶ 10} An appellate court's review of a motion to suppress presents a mixed

question of law and fact. State v. C.J., 12th Dist. Warren No. CA2017-06-082, 2018-Ohio-

1258, ¶ 25. The trial court assumes the role of the trier of fact in ruling on a motion to

suppress; therefore, it is in the best position to resolve factual questions and evaluate

witness credibility. Id. Thus, an appellate court accepts the trial court's findings of fact, if

such findings are supported by competent, credible evidence. Id. However, with respect

to applying the appropriate legal standard, an appellate court conducts a de novo review.

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Id.

      McMillan's Commencement of the Traffic Stop Based on Dallman's Failure to
                          Display a Rear License Plate

         {¶ 11} R.C. 2935.03 is titled, "[o]fficer's authority to arrest without a warrant; pursuit

outside jurisdiction," and sets forth the territorial jurisdiction in which a police officer may

conduct an investigatory detention or arrest, stating, in pertinent part:

                (A)(1) [a] sheriff, deputy sheriff, marshal, deputy marshal,
                municipal police officer, township constable, police officer of a
                township or joint police district * * * shall arrest and detain, until
                a warrant can be obtained, a person found violating, within the
                limits of the political subdivision * * * in which the peace officer
                is appointed, employed, or elected, a law of this state, an
                ordinance of a municipal corporation, or a resolution of a
                township.

         {¶ 12} R.C. 2935.03(D) permits a police officer to pursue, arrest, and detain a

person outside his territorial jurisdiction until a warrant can be obtained if all of the following

apply:

                (1) The pursuit takes place without unreasonable delay after the
                offense is committed;

                (2) The pursuit is initiated within the limits of the political
                subdivision * * * within its territorial jurisdiction, * * * in which the
                peace officer is appointed, employed, or elected or within the
                limits of the territorial jurisdiction of the peace officer;

                (3) The offense involved is a felony, a misdemeanor of the first
                degree or a substantially equivalent municipal ordinance, a
                misdemeanor of the second degree or a substantially equivalent
                municipal ordinance, or any offense for which points are
                chargeable pursuant to [R.C.] 4510.036 * * *.

         {¶ 13} R.C. 2935.03(E)(3) states, in pertinent part, that in addition to the authority

granted under R.C. 2935.03(A) and (B),1




1. R.C. 2935.03(B) authorizes a police officer to arrest and detain for specific acts of violence. See State v.
Hornsby, 12th Dist. Clermont No. CA99-06-060, 2000 Ohio App. LEXIS 613, *4 (Feb. 22, 2000), discussing
R.C. 2935.03(B).
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               [a] police officer * * * appointed, elected, or employed by a
               municipal corporation may arrest and detain, until a warrant can
               be obtained, any person found violating any section or chapter
               of the Revised Code listed in division (E)(1) of this section on
               the portion of any street or highway that is located immediately
               adjacent to the boundaries of the municipal corporation in which
               the police officer or village marshal is appointed, elected, or
               employed.

In turn, R.C. 2935.03(E)(1) grants such authority for violations of R.C. 4503.11, 4503.21,

4549.01, 4549.08 thru 4549.12, 4549.62, R.C. Chapter 4511, and R.C. Chapter 4513.

       {¶ 14} McMillan conducted the traffic stop based on his observation in the village of

Batavia and adjoining Batavia Township that Dallman failed to display a rear license plate,

in violation of R.C. 4503.21. McMillan pursued Dallman and pulled him over in a UDF gas

station parking lot, just crossing over into Batavia Township. Therefore, the traffic stop was

extraterritorial.

       {¶ 15} A violation of R.C. 4503.21 is a minor misdemeanor for which points are not

chargeable pursuant to R.C. 4510.036; therefore, the extraterritorial authority provided by

R.C. 2935.03(D) is inapplicable to this case. However, R.C. 2935.03(E)(1) lists a violation

of R.C. 4503.21 as an offense for which extraterritorial authority is granted under R.C.

2935.03(E)(3) to an officer to arrest and detain until a warrant can obtained. Thus, pursuant

to R.C. 2935.03(E)(1) and (3), McMillan had statutory authority for an extraterritorial arrest

and detention for the failure to display a rear license plate offense since he found Dallman

committing a violation on a road in Batavia Township that was located immediately adjacent

to the boundaries of the village of Batavia where McMillan was employed.

       {¶ 16} We now address McMillan issuing a citation in lieu of making an arrest for

the failure to display a rear license plate offense. According to law, a person charged with

committing a minor misdemeanor is not subject to arrest. R.C. 2935.26(A) provides that

"[n]otwithstanding any other provision of the Revised Code, when a law enforcement officer


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is otherwise authorized to arrest a person for the commission of a minor misdemeanor, the

officer shall not arrest the person, but shall issue a citation * * *." In other words, R.C.

2935.26(A) mandates the issuance of a citation for a minor misdemeanor offense where a

police officer is otherwise authorized to affect an arrest. Thus, R.C. 2935.03(E)(3) provides

authority to arrest and detain for a minor misdemeanor, while R.C. 2935.26(A) mandates

the issuance of a citation. The Criminal Rules resolve the discrepancy to the extent of any

existing conflict between the procedures officers are authorized to undertake for the minor

misdemeanor offense. (Footnote omitted.) State v. Tate, 59 Ohio St. 2d 50, 54 (1979) ("the

Criminal Rules supersede the analogous statutes to the extent of any conflict"). Crim.R.

4(A)(3) provides that "[i]n misdemeanor cases where a law enforcement officer is

empowered to arrest without a warrant, the officer may issue a summons in lieu of making

an arrest, when issuance of a summons appears reasonably calculated to assure the

defendant's appearance." See also Traf.R. 3(C).

       {¶ 17} Accordingly, R.C. 2935.03(E)(1) and (3) provided McMillan statutory

authority to conduct the extraterritorial traffic stop for the violation of R.C. 4503.21, and

Crim.R. 4(A)(3) provided McMillan discretion to issue a citation and summons in lieu of

making an arrest.

                        The Arrest Occurred on Private Property

       {¶ 18} Both the trial court and Dallman placed emphasis on the fact that the arrest

took place on private property. The trial court found that McMillan acted in violation of R.C.

2935.03(E)(3) when he arrested Dallman in the UDF parking lot located in Batavia

Township. The trial court then went on to state that it based its decision on the fact that

McMillan did not arrest Dallman until a warrant could be obtained as required by R.C.

2935.03(E)(3).   While it is not clear whether the location of the arrest was a major

consideration in the trial court’s decision, Dallman asserts that McMillan violated R.C.

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2935.03(E)(3) because "the arrest occurred outside the [v]illage limits in a private (UDF)

parking lot and, as such, was not on a portion of any street or highway that is located

immediately adjacent to the boundaries of the municipal corporation."

       {¶ 19} The language contained in R.C. 2935.03(E)(3) does not legislate where the

actual arrest must occur. To the contrary, it merely gives a police officer extraterritorial

authority to arrest if the police officer finds a person "violating any section or chapter of the

Revised Code listed in division (E)(1) of this section on the portion of any street or highway

that is located immediately adjacent to the boundaries of the municipal corporation in which

the police officer or village marshal is appointed, elected, or employed." Therefore, the

focus is not where the arrest took place, but rather whether a listed violation was committed

on a street that is immediately adjacent to the municipality that appointed the police officer.

Accordingly, as to the failure to display a rear license plate violation, we have already held

that McMillan observed the violation on a street immediately adjacent to the village of

Batavia and found the stop was proper. We will now address whether McMillan had

authority to arrest Dallman on the remaining charges.

                               Dallman's Subsequent Arrest

       {¶ 20} The state argues R.C. 2935.03(E)(1) and (3) also provide McMillan authority

to arrest, detain, and charge Dallman for OVI, failure to reinstate license, and open

container. In so doing, the state contends that although McMillan was not aware of the

facts and circumstances underlying these offenses until after the commencement of the

traffic stop, one may infer Dallman also committed the offenses moments before the traffic

stop. Thus, McMillan observed Dallman commit the offenses in the village of Batavia and

adjoining Batavia Township; therefore, R.C. 2935.03(E) provided statutory authority to

McMillan to arrest, detain, and charge Dallman for the offenses. Additionally, the state

asserts that once McMillan validly stopped Dallman for the license plate offense, he was

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authorized to conduct further inquiry into whether Dallman was under the influence of

alcohol based on a reasonable, articulable suspicion of intoxication.

       {¶ 21} "The general common-law rule is that the power of a municipal police officer

is limited to the boundaries of his municipality, and that he may not, even with a warrant,

make an arrest outside his territory for a misdemeanor." Fairborn v. Munkus, 28 Ohio St.2d

207, 209 (1971). We found above that the license plate offense justified the extraterritorial

traffic stop affected by McMillan pursuant to R.C. 2935.03(E). The next question posed by

the state regards the offenses discovered by McMillan while carrying out the traffic stop,

which ultimately resulted in Dallman's arrest.

       {¶ 22} The state's assertion that Dallman did not become intoxicated and fail to

reinstate his license in the limited time between McMillan's observation of the license plate

violation and the commencement of the extraterritorial traffic stop is a logical inference to

draw from the facts of this case. However, an officer must know the facts sufficient to

constitute probable cause that a traffic violation occurred at the time the officer makes the

stop. City of Dayton v. Erickson, 76 Ohio St.3d 3, 10 (1996). At the time of the stop here,

McMillan only had knowledge of facts sufficient to constitute the offense of driving without

a rear license plate. Thus, R.C. 2935.03(E)(3) provided McMillan statutory authority to

affect the extraterritorial traffic stop only for the license plate violation.

       {¶ 23} McMillan, however, did not discover the facts supporting probable cause to

make an arrest with respect to the remainder of the charged offenses until after the

commencement of the extraterritorial traffic stop. Thus, pursuant to the express language

of R.C. 2935.03(E)(3), the statute did not provide McMillan statutory authority to make a

warrantless arrest of Dallman for such offenses. If the General Assembly intended the

authority for extraterritorial traffic stops to apply to offenses discovered after the stop

commences, then it could have included language specifically providing for such intention.

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See State v. Hart, 12th Dist. Brown No. CA2011-03-008, 2012-Ohio-1896, ¶ 16 (stating had

the General Assembly intended a provision to apply a certain way, it could have written the

statute in that manner).     Accordingly, the trial court was correct that McMillan lacked

authority to arrest Dallman outside his jurisdiction as McMillan had neither common law nor

statutory authority to affect an extraterritorial warrantless arrest of Dallman for the

remainder of the offenses.

                 The Appropriate Remedy for the Warrantless Arrest

      {¶ 24} The trial court determined that suppression of the evidence was the

appropriate remedy. In so holding, the trial court compared the Ohio Supreme Court’s

decisions in State v. Jones, 88 Ohio St.3d 430 (2000) and State v. Brown, 143 Ohio St.3d

444, 2015-Ohio-2438 (Brown II). The trial court noted Brown II was determined after Jones,

and even though there were distinguishable facts in the case at bar from Brown II, the trial

court believed "that suppression of the evidence is the appropriate remedy in this case when

Officer McMillan made an arrest outside his jurisdiction contrary to the requirements set

forth" in R.C. 2935.03.

      {¶ 25} The Fourth Amendment to the United States Constitution, made applicable

to the states through the Fourteenth Amendment, provides: "[t]he right of the people to be

secure in their persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated, and no Warrants shall issue, but upon probable cause * * *."

Section 14, Article I of the Ohio Constitution contains nearly identical language; however,

the Ohio Supreme Court has determined that the Ohio Constitution has force independent

of the United States Constitution and provides greater protection than the Fourth

Amendment.     State v. Brown, 99 Ohio St.3d 323, 2003-Ohio-3931, ¶ 21 (Brown I)

(suppressing evidence based on contemporaneous violations of R.C. 2935.26 and the Ohio

Constitution where a police officer affected a warrantless arrest for a minor misdemeanor

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offense).

       {¶ 26} An automobile stop by a police vehicle based on probable cause that a traffic

violation occurred is reasonable under the United States and Ohio Constitutions. City of

Bowling Green v. Godwin, 110 Ohio St.3d 58, 2006-Ohio-3563, ¶ 11. The United States

Supreme Court has held that suppression of evidence obtained as a result of a Fourth

Amendment violation is an essential part of the constitutional protections provided therein.

Mapp v. Ohio, 367 U.S. 643, 657, 81 S.Ct. 1684 (1961). This is known as the exclusionary

rule. Id. The Ohio Supreme Court has consistently held that a purely statutory violation

does not trigger application of the exclusionary rule. Jones at 435-36. Rather, a statutory

violation warrants application of the exclusionary rule only when the violation

contemporaneously violates the United States or Ohio Constitutions. Id.; see also Brown I

at ¶ 16.

       {¶ 27} The United States Supreme Court has held that a warrantless minor

misdemeanor arrest based upon probable cause does not run afoul to the Fourth

Amendment to the United States Constitution. Atwater v. City of Lago Vista, 532 U.S. 318,

354, 121 S.Ct. 1536 (2001). The Ohio Supreme Court applies a balancing test to determine

whether an unauthorized warrantless arrest constitutes a violation of the Ohio Constitution.

Jones at 438, overruled in part by Brown I at ¶ 22 (finding Jones "is still authoritative as to

the Ohio Constitution").

              [T]he balancing test requires that we weigh the competing
              interests surrounding the governmental action at issue. That is,
              we must evaluate on the one hand the degree to which the
              governmental action intrudes upon a person's liberty and
              privacy, and, on the other hand, the degree to which the
              intrusion is necessary for the promotion of legitimate
              governmental interests.

Jones at 438.

       {¶ 28} In Brown II, the Ohio Supreme Court applied the Jones balancing test where

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a township police officer initiated an extraterritorial traffic stop for a minor misdemeanor

traffic offense. The township officer observed the minor misdemeanor offense outside of

his jurisdiction and it was undisputed that the officer lacked authority to initiate the traffic

stop on the interstate highway. Id. at ¶ 4. During the stop, the township officer discovered

facts sufficient to constitute probable cause for felony drug offenses and affected a

warrantless arrest. The court found

              [t]he government's interests in permitting an officer without
              statutory jurisdiction or authority to make a traffic stop for a
              minor misdemeanor offense in these circumstances is minimal
              and is outweighed by the intrusion upon the individual's liberty
              and privacy that necessarily arises out of the stop.

Id.

       {¶ 29} Likewise, the Sixth District analyzed the initiation of an extraterritorial traffic

stop for suspicion of an OVI offense where an Ohio Department of Natural Resources park

officer observed a motorist drive outside his lane multiple times. State/Maumee v. Curran,

6th Dist. Lucas No. L-16-1172, 2017-Ohio-7008, ¶ 4. The park officer became concerned

the motorist may strike another vehicle and initiated the traffic stop. Id. The park officer's

observations and the traffic stop both occurred outside the officer's statutory jurisdiction. Id.

at ¶ 17. Therefore, the park officer acted outside his statutory authority. Id. at ¶ 11.

Nonetheless, the court applied the Jones balancing test and upheld the traffic stop under

the Ohio Constitution. Id. at ¶ 17-18. The court found the test weighed in favor of the state

because there was an immediate safety justification for the stop due to the obvious danger

presented by a motorist operating a vehicle while impaired.           Id. at ¶ 18.    Thus, the

momentary invasion of the motorist's liberty and privacy interests was minimal compared to

the risk his impaired driving posed to the public. Id.

       {¶ 30} Applying Jones, Brown I, and Brown II to this case requires a consideration

of whether McMillan acted within his statutory authority and had probable cause to stop,

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detain, and eventually arrest Dallman for OVI. McMillan’s observation that Dallman was

operating his motor vehicle without a rear license plate provided probable cause that

Dallman was violating R.C. 4503.21. As discussed above, R.C. 2935.03(E)(3) provided

McMillan authority to initiate the traffic stop for the failure to display a rear license plate

offense. Thus, the initial traffic stop comported with the Fourth Amendment and Section

14, Article I of the Ohio Constitution. During the course of the traffic stop, McMillan

developed probable cause that Dallman was operating a vehicle under the influence of

alcohol. As McMillan acted upon probable cause, pursuant to Atwater, Dallman’s arrest for

OVI did not offend the Fourth Amendment. However, R.C. 2935.03 provides no statutory

authority for a police officer to arrest a person first observed committing an OVI offense

outside of the officer’s jurisdiction. Because McMillan did not have statutory authority to

arrest Dallman for OVI under these circumstances, application of the Jones balancing test

is necessary to determine whether Dallman’s OVI arrest violated Section 14, Article I of the

Ohio Constitution.

       {¶ 31} Consistent with Curran, we find the Jones balancing test weighs in favor of

the state. OVI is a serious misdemeanor offense, which presents an immediate danger to

the health, safety, and welfare of the public, as opposed to the minor misdemeanor offenses

involved in Jones, Brown I, and Brown II. As in Curran, the additional intrusion upon

Dallman's liberty and privacy interests was minimal compared to the legitimate

governmental interest in eliminating the threat Dallman's impaired driving presented to the

health, safety, and welfare of the public.

       {¶ 32} Unlike Curran, McMillan did not attempt to contact local police before

arresting Dallman.     Nonetheless, Dallman's arrest was reasonable under the Ohio

Constitution, considering the serious threat posed to the public by his impaired driving.

Therefore, the OVI arrest did not violate Section 14, Article I of the Ohio Constitution,

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pursuant to the Jones balancing test. Although Dallman's OVI arrest violated the authority

granted by R.C. 2935.03, this violation was purely statutory and does not invoke the

exclusionary rule.

      {¶ 33} Accordingly, the state's assignments of error are sustained, the trial court's

grant of the motion to suppress is reversed, and this cause is remanded for further

proceedings.


      M. POWELL, J., concurs.


      RINGLAND, J., concurs separately.


      RINGLAND, J., concurring separately.

      {¶ 34} I agree with the resolution of the assignments of error. However, I write

separately to address the apparent shortcoming of the controlling statutes.

      {¶ 35} As correctly stated in the majority opinion, R.C. 2935.03(E)(3) and

2935.26(A) conflict with one another. The phrase "until a warrant can be obtained"

contained in R.C. 2935.03 does not make sense in this case because, per R.C. 2935.26,

an arrest cannot be made for a minor misdemeanor offense. An arrest warrant cannot

authorize an improper arrest.

      {¶ 36} This issue has been ignored or deemed irrelevant in several prior instances.

See State v. Sweeten, 1st Dist. Hamilton No. C-150583, 2016-Ohio-5828; State v. Black,

6th Dist. Fulton No. F-03-010, 2004-Ohio-218; State v. Boerner, 5th Dist. Stark No.

98CA00099, 1998 Ohio App. LEXIS 4714 (Aug. 31, 1998); State v. Shuttleworth, 5th Dist.

Fairfield No. 99CA25, 1999 Ohio App. LEXIS 4745 (Sept. 29, 1999); Cincinnati v.

Alexander, 54 Ohio St.2d 248 (1978). In the present case, I concur in judgment because

Crim.R. 4(A)(3) supersedes the conflict in the statutes. State ex rel. Boylen v. Harmon, 107


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Ohio St.3d 370, 2006-Ohio-7, ¶ 8 ("[w]here a conflict arises between a rule and a statute,

the rule will control the statute on matters of procedure").

       {¶ 37} Nevertheless, I find the shortcoming in the statutes to be unfortunate and

unhelpful in the administration of justice. I write separately because I believe the conflict in

the statutes was unintentional and therefore urge the Ohio Legislature to amend the

relevant statutes.




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