[Cite as State v. Hunter, 2018-Ohio-568.]


STATE OF OHIO                     )                 IN THE COURT OF APPEALS
                                  )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                       C.A. No.      28484

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
CHRISTOPHER HUNTER                                  COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
        Appellant                                   CASE No.   CR 2016 06 1937

                                 DECISION AND JOURNAL ENTRY

Dated: February 14, 2018



        TEODOSIO, Judge.

        {¶1}     Appellant, Christopher Hunter, appeals from his convictions in the Summit

County Court of Common Pleas. We affirm.

                                               I.

        {¶2}     On the night of May 25, 2016, Mr. Hunter was drinking his second bottle of

Hennessey and decided to go to the apartment of his ex-girlfriend (“D.C.”). Although uninvited,

he knocked on the door while carrying a bottle of Hennessey and a loaded gun on his person.

D.C.’s fiancé (“M.G.”) answered the door while only wearing a pair of boxer shorts. Mr. Hunter

wanted to talk to D.C., but M.G. said that D.C. did not want to talk to him and closed the door.

According to D.C., M.G. put on some clothes several minutes later and went outside to smoke a

cigarette. According to Mr. Hunter, M.G. came toward him with his hands in his pockets while

looking reckless and biting his lip, so he shot M.G. in the neck. M.G. fell down and then

retreated back into the apartment. Mr. Hunter followed M.G. into the apartment. Once inside
                                                   2


the apartment, Mr. Hunter tried to shoot M.G. in the back, but the gun jammed, so he had to un-

jam and reload it. Mr. Hunter resumed shooting at M.G. as he retreated down the hallway and

then followed M.G. into the back bedroom to shoot him four more times, killing him. Overall,

Mr. Hunter shot M.G. a grand total of ten times.

       {¶3}    After a jury trial, Mr. Hunter was found not guilty of aggravated murder and

several other felonies, but guilty of murder and felonious assault with accompanying firearm

specifications. The trial court denied Mr. Hunter’s motion to merge the two convictions for

sentencing and ultimately sentenced Mr. Hunter to an aggregate total of 29 years to life in prison.

       {¶4}    Mr. Hunter now appeals from his convictions and raises three assignments of

error for this Court’s review.

                                                II.

                                 ASSIGNMENT OF ERROR ONE

       THE TRIAL COURT ERRED IN DENYING DEFENDANT’S REQUESTED
       JURY INSTRUCTION REGARDING VOLUNTARY MANSLAUGHTER AS
       AN INFERIOR DEGREE OFFENSE TO MURDER.

       {¶5}    In his first assignment of error, Mr. Hunter argues that the trial court erred in

denying his request for a jury instruction on voluntary manslaughter because his rage at the

crime scene was compounded by fear, and thus his intent to kill was awakened in a sudden fit of

passion. We disagree.

       {¶6}    “[A] trial court must fully and completely give the jury all instructions which are

relevant and necessary for the jury to weigh the evidence and discharge its duty as the fact

finder.” State v. Comen, 50 Ohio St.3d 206 (1990), paragraph two of the syllabus. “[A] trial

court must instruct the jury on a lesser[-]included offense if ‘the evidence presented at trial

would reasonably support both an acquittal on the crime charged and a conviction on the lesser-
                                                 3


included offense.’” State v. Lockhart, 9th Dist. Summit No. 28053, 2017-Ohio-914, ¶ 14,

quoting State v. Carter, 89 Ohio St.3d 593, 600 (2000). “In deciding whether to instruct the jury

on a lesser-included or inferior-degree offense, the trial court must view the evidence in a light

most favorable to the defendant.” State v. Meadows, 9th Dist. Summit No. 26549, 2013-Ohio-

4271, ¶ 8.

       {¶7}    This Court reviews a trial court’s refusal to give a requested jury instruction for

abuse of discretion. Id. at ¶ 7. “The term ‘abuse of discretion’ connotes more than an error of

law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or unconscionable.”

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying an abuse of discretion

standard, a reviewing court is precluded from simply substituting its own judgment for that of the

trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).

       {¶8}    Murder requires an offender to “purposely cause the death of another * * *.” R.C.

2903.02(A). Voluntary manslaughter requires an offender to knowingly cause the death of

another while “under the influence of sudden passion or in a sudden fit of rage, either of which is

brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite

the person into using deadly force * * *.” R.C. 2903.03(A). Because “its elements are * * *

contained within the indicted offense, except for one or more additional mitigating elements[,]”

voluntary manslaughter is not a lesser-included offense of murder. State v. Terrion, 9th Dist.

Summit No. 25368, 2011-Ohio-3800, ¶ 11, quoting State v. Deem, 40 Ohio St.3d 205, 209

(1988); State v. Shane, 63 Ohio St.3d 630, 632 (1992). Instead, voluntary manslaughter is an

inferior degree of murder. Terrion at ¶ 11, citing Shane at 632.

       Even though voluntary manslaughter is not a lesser[-]included offense of murder,
       the test for whether a judge should give a jury an instruction on voluntary
       manslaughter when a defendant is charged with murder is the same test to be
       applied as when an instruction on a lesser[-]included offense is sought.
                                                 4



Terrion at ¶ 12, quoting Shane at 632. The instruction is warranted if the evidence presented at

trial would reasonably support both an acquittal on murder and a conviction on voluntary

manslaughter. Terrion at ¶ 12. However, an instruction on voluntary manslaughter is not

required in every murder prosecution where “some evidence” exists that an offender satisfied the

elements of voluntary manslaughter. Shane at 632. “A trial court need not give a voluntary

manslaughter instruction if the evidence shows that a defendant had sufficient time to ‘cool

down’ after being provoked.” State v. Little, 9th Dist. Lorain No. 10CA009758, 2011-Ohio-768,

¶ 27, quoting State v. Huertas, 51 Ohio St.3d 22, 32 (1990).

       {¶9}    “Before giving a jury instruction on voluntary manslaughter in a murder case, the

trial judge must determine whether evidence of reasonably sufficient provocation occasioned by

the victim has been presented to warrant such an instruction.” Shane at paragraph one of the

syllabus. Both objective and subjective standards are used in the analysis of provocation. Id. at

634. First, an objective standard is used in determining whether the provocation was “reasonably

sufficient to bring on sudden passion or a sudden fit of rage * * *.” Id. If evidence of reasonably

sufficient provocation does not exist, the inquiry ends and the trial court may not give an

instruction on voluntary manslaughter. Id. “Provocation, to be reasonably sufficient, must be

serious.” (Emphasis sic.) Id. at 638. The provocation must also be reasonably sufficient to

incite the offender to use deadly force.      Id. at 635.    If evidence of reasonably sufficient

provocation does exist, a subjective standard is then used to determine “whether this actor, in this

particular case, actually was under the influence of sudden passion or in a sudden fit of rage.”

Id. at 634. “It is only at that point that the ‘[]emotional and mental state of the defendant and the

conditions and circumstances that surrounded him at the time[]’ must be considered.” Id.,

quoting Deem at paragraph five of the syllabus. “Fear alone is insufficient to demonstrate the
                                                5


kind of emotional state necessary to constitute sudden passion or fit of rage.” State v. Mack, 82

Ohio St.3d 198, 201 (1998).

       {¶10} In the case sub judice, the record reflects that defense counsel requested a jury

instruction regarding voluntary manslaughter as a lesser-included offense to aggravated murder

or murder. The State opposed the instruction and the trial court denied Mr. Hunter’s request to

give the instruction to the jury. The court stated that, even when considered in a light most

favorable to Mr. Hunter, there was not enough evidence of provocation to require the instruction.

Moreover, the court stated that even if there was sufficient provocation, the fact that Mr. Hunter

took the time to un-jam the weapon and reload it “sort of strip[ped] the sudden fit of rage or

passion” and provided time in between to cool off, even if it was only for a few seconds, which

was enough to not require an instruction on voluntary manslaughter in this case. The court noted

defense counsel’s objection for the record.

       {¶11} At trial, Mr. Hunter testified that he went back out to his car after M.G. closed the

apartment door on him. D.C. testified that M.G. put some clothes on several minutes later and

went outside to smoke a cigarette. Mr. Hunter testified that M.G. came outside and was “looking

reckless” and “biting his bottom lip” while coming toward Mr. Hunter with his hands in his

pockets, which scared Mr. Hunter. He admitted on cross-examination that M.G. did not draw a

weapon. When M.G. was about an arm’s length away, Mr. Hunter shot him in the neck. M.G.

fell down and then retreated toward the apartment. On cross-examination, the prosecutor asked

Mr. Hunter if he agreed that, at that moment, he had a choice to leave the scene and just let M.G.

go. Mr. Hunter replied, “Yes.”

       {¶12} Mr. Hunter testified that he instead chose to follow M.G. into the apartment and

then shot him in the back because he was “still mad and scared.” According to Mr. Hunter, the
                                                6


gun jammed “[a]round the second shot * * * [i]n the house.” Mr. Hunter removed the jammed

bullet from the gun and reloaded the weapon. As M.G. staggered toward the back bedroom, Mr.

Hunter resumed shooting at him several more times. Mr. Hunter then followed M.G. into the

back bedroom and shot him four more times in the back because he was “still mad.” He initially

testified on cross-examination that he did not intend to kill M.G., but also testified that he

purposely killed M.G. by repeatedly shooting him.

       {¶13} The trial court stated that it did not find enough evidence of provocation to require

a voluntary manslaughter instruction. Even assuming Mr. Hunter’s version of the events is true

and accurate, and M.G. did in fact come toward Mr. Hunter while “looking reckless” and “biting

his bottom lip” with his hands in his pockets, we agree with the trial court’s determination that

these actions were not reasonably sufficient to bring on sudden passion or a sudden fit of rage.

The evidence does not show these actions as being serious or reasonably sufficient to incite Mr.

Hunter to use deadly force, as Mr. Hunter admitted that M.G. did not draw a weapon on him.

       {¶14} Even if we were to assume arguendo that M.G.’s actions constituted reasonably

sufficient provocation, we would nonetheless agree with the trial court’s determination that Mr.

Hunter was not under the influence of sudden passion or in a sudden fit of rage in this particular

matter. After being shot in the neck, M.G. retreated into the apartment while bleeding. Mr.

Hunter agreed at trial that he could have simply left the scene at that point, but he chose instead

to follow M.G. into the apartment and continue shooting him. He even took some time around

the second shot to un-jam and reload the gun, which provided him with sufficient time to “cool

down” after the alleged provocation. See Little at ¶ 27 (stating a voluntary manslaughter

instruction is not required if the evidence shows a sufficient time to “cool down” after being

provoked.). After un-jamming and reloading the gun, Mr. Hunter resumed shooting at M.G.
                                                 7


down the hallway and then followed him into the back bedroom to shoot him several more times

in the back. Mr. Hunter testified repeatedly that he was scared and mad, but again, “[f]ear alone

is insufficient to demonstrate the kind of emotional state necessary to constitute sudden passion

or fit of rage.” Mack, 82 Ohio St.3d at 201.

       {¶15} After a review of the record, we conclude that the trial court did not abuse its

discretion in finding that the evidence presented at trial, even when considered in a light most

favorable to Mr. Hunter, did not establish reasonably sufficient provocation to require a jury

instruction on voluntary manslaughter.

       {¶16} Accordingly, Mr. Hunter’s first assignment of error is overruled.

                              ASSIGNMENT OF ERROR TWO

       THE TRIAL COURT ERRED IN FAILING TO MERGE THE CONVICTIONS
       FOR MURDER AND FELONIOUS ASSAULT FOR SENTENCING.

       {¶17} In his second assignment of error, Mr. Hunter argues that the trial court erred by

failing to merge his felonious assault and murder convictions as allied offenses of similar import

for the purposes of sentencing. We disagree.

       {¶18} “This Court generally applies a de novo standard of review when reviewing a trial

court’s decision regarding the merger of convictions for the purposes of sentencing.” State v.

Harris, 9th Dist. Medina No. 16CA0054-M, 2017-Ohio-8263, ¶ 25, citing State v. Williams, 134

Ohio St.3d 482, 2012-Ohio-5699, ¶ 1. “When applying the de novo standard of review, this

Court gives no deference to the trial court’s legal determinations.” State v. West, 9th Dist. Lorain

No. 04CA008554, 2005-Ohio-990, ¶ 33.

       {¶19} “R.C. 2941.25 codifies the protections of the Double Jeopardy Clause of the Fifth

Amendment to the United States Constitution and [Article I, Section 10,] of the Ohio
                                                 8


Constitution, which prohibits multiple punishments for the same offense.” State v. Underwood,

124 Ohio St.3d 365, 2010-Ohio-1, ¶ 23. R.C. 2941.25 provides:

       (A) Where the same conduct by defendant can be construed to constitute two or
       more allied offenses of similar import, the indictment or information may contain
       counts for all such offenses, but the defendant may be convicted of only one.

       (B) Where the defendant’s conduct constitutes two or more offenses of dissimilar
       import, or where his conduct results in two or more offenses of the same or
       similar kind committed separately or with a separate animus as to each, the
       indictment or information may contain counts for all such offenses, and the
       defendant may be convicted of all of them.

       {¶20} The Supreme Court of Ohio clarified the standard for an analysis of allied

offenses of similar import in State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995. “In determining

whether offenses are allied offenses of similar import within the meaning of R.C. 2941.25, courts

must evaluate three separate factors—the conduct, the animus, and the import.” Id. at paragraph

one of the syllabus. “At its heart, the allied-offense analysis is dependent upon the facts of a case

because R.C. 2941.25 focuses on the defendant’s conduct.” Id. at ¶ 26. “Animus” has been

defined as “purpose or, more properly, immediate motive.” State v. Logan, 60 Ohio St.2d 126,

131 (1979).     Multiple offenses are of dissimilar import “when the defendant’s conduct

constitutes offenses involving separate victims or if the harm that results from each offense is

separate and identifiable.” Ruff at ¶ 26. Therefore, “courts must ask three questions when [a]

defendant’s conduct supports multiple offenses: (1) Were the offenses dissimilar in import or

significance? (2) Were they committed separately? and (3) Were they committed with separate

animus or motivation?” Ruff at ¶ 31. “An affirmative answer to any of the above will permit

separate convictions.” Id. “It is the defendant’s burden to establish his or her entitlement to the

protections of Section 2941.25.” State v. Dembie, 9th Dist. Lorain No. 14CA010527, 2015-

Ohio-2888, ¶ 8. “‘To do so, the defendant must show that the State relied upon the same conduct
                                                9


to support both offenses.’” State v. Fedrick, 9th Dist. Summit No. 28120, 2017-Ohio-2635, ¶ 18,

quoting State v. Choate, 9th Dist. Summit No. 27612, 2015-Ohio-4972, ¶ 19. See also Logan at

128.

       {¶21} In the case sub judice, the trial court heard arguments from the parties as to the

merger issue. The court ultimately determined that the felonious assault and murder convictions

should not merge for sentencing purposes and found as follows:

       In this case, the [c]ourt finds that there was a sufficient passage of time from the
       initial attack that - - and the intention of the defendant to continue on with the
       attack interrupted by different events, both the fleeing of the defendant (sic) and
       the jamming of the gun, such that enough time passed that there was a separate
       animus pertinent to this case such that a felonious assault charge is not required to
       merge under all the statements of law as the [c]ourt has interpreted them.

       {¶22} This Court addressed a factually similar situation in State v. Dembie, 2015-Ohio-

2888. In Dembie, Mr. Dembie struggled with the victim as she attempted to escape out of a

second-story, bathroom window. Id. at ¶ 9. While the victim was outside of the window,

Dembie stabbed her in the abdomen and she fell to the ground below. Id. Dembie proceeded

down the steps and outside to where the victim lay on the ground. Id. He then stabbed her

repeatedly and cut her throat, killing her. Id. On appeal, this Court agreed with the trial court’s

determination that the convictions for felonious assault and murder were not allied offenses, as

the victim’s fall from the bathroom window “interrupted” the attack. Id. at ¶ 11. Although

Dembie went downstairs and resumed attacking the victim moments later, the fall created a

“distinct line of demarcation” between the felonious assault at the window and the murder on the

ground. Id. Thus, we concluded that the felonious assault at the window carried a separate

animus from the murder on the ground. Id.

       {¶23} Mr. Hunter bears the burden of establishing his entitlement to a merger of these

convictions for sentencing. See id. at ¶ 8. He argues that his testimony on cross-examination
                                                   10


that he purposely killed M.G. by repeatedly shooting him established a single animus for both

the felonious assault and the murder, requiring merger of the two convictions for purposes of

sentencing. Mr. Hunter attempts to distinguish the Dembie case from his own by emphasizing

that there was no admission of intent to kill in Dembie and the trial court had to make its decision

based upon inferences from the circumstances. However, Mr. Hunter’s testimony during cross-

examination was rather inconsistent and in fact contradictory regarding his intent while

committing these crimes:

       Q: And your intent was to kill him?

       A: No, it wasn’t.

       Q: When you were shooting him eight, nine times, that wasn’t your intent?

       A: No.

       Q: Okay. When you shot him in the neck, shot him in the back, that wasn’t your
       intent, to kill him?

       A: Yes.

       Q: It was your intent to kill him, right?

       A: Yes.

       Q: That was your purpose when you pulled out the gun and shot him over and
       over again. Your intent was to end the life of [M.G.], right?

       A: Yes.

Thus, Mr. Hunter surprisingly testified both that he did and did not intend to kill M.G. At the

sentencing hearing, the trial court acknowledged Mr. Hunter’s admission of his intent to kill and

stated: “[T]hat’s a factor that I’m considering as I’m considering whether or not felonious assault

and murder merge.”
                                               11


       {¶24} After reviewing the record, we agree with the trial court’s determination that Mr.

Hunter’s attack on M.G. was interrupted by certain events over a sufficient passage of time,

particularly the fleeing of the victim into the apartment and the jamming and reloading of the

gun. We conclude that these interrupting events created a “distinct line of demarcation” between

the felonious assault that was completed outside of the apartment and the subsequent murder that

was completed inside of the apartment. See Dembie at ¶ 11; see also State v. Wilson, 2d Dist.

Montgomery No. 22120, 2008-Ohio-4130, ¶ 43-44 (concluding that two felonious assaults and a

murder were committed separately when Wilson struggled with and shot the victim, then shot

him again in the back as the victim fled, then stood over him and shot him multiple times in the

head); State v. Hines, 8th Dist. Cuyahoga No. 90125, 2008-Ohio-4236, ¶ 47 (finding separate

and distinct offenses for felonious assault and attempted murder where Hines shot the victim in

the stomach, attempted to continue shooting him but “the gun kept clicking and did not go off,”

and then followed him outside of the building while still attempting to shoot him); State v.

Andrews, 8th Dist. Cuyahoga No. 93104, 2010-Ohio-3864, ¶ 46-48 (finding a “clear

demarcation” between two felonious assaults, and thus no merger, when the initial assault

occurred inside the house, but the victim fled outside and Andrews chased him and assaulted him

again); compare State v. Craig, 4th Dist. Athens No. 15CA22, 2017-Ohio-4342, ¶ 26-28

(reversing the trial court’s decision not to merge felonious assault and attempted murder because

the evidence did not establish “a break in the continuum of events” or “a line of distinction”

showing separate and distinct crimes).

       {¶25} Accordingly, we conclude that the trial court did not err in determining that Mr.

Hunter’s convictions should not merge as allied offenses of similar import for sentencing
                                                 12


purposes because the evidence presented at trial established that Mr. Hunter committed the initial

felonious assault separately and with a separate animus from the subsequent murder.

       {¶26} Mr. Hunter’s second assignment of error is overruled.

                             ASSIGNMENT OF ERROR THREE

       APPELLANT’S CONVICTION FOR FELONIOUS ASSAULT WAS AGAINST
       THE MANIFEST WEIGHT OF THE EVIDENCE.

       {¶27} In his third assignment of error, Mr. Hunter argues that his conviction for

felonious assault was against the manifest weight of the evidence. We disagree.

       {¶28} This Court has stated:

       In determining whether a criminal conviction is against the manifest weight of the
       evidence, an appellate court must review the entire record, weigh the evidence
       and all reasonable inferences, consider the credibility of 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 ordered.

State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). “[W]hen reversing a conviction on the

basis that it was against the manifest weight of the evidence, an appellate court sits as a

‘thirteenth juror,’ and disagrees with the factfinder’s resolution of the conflicting testimony.”

State v. Tucker, 9th Dist. Medina No. 06CA0035-M, 2006-Ohio-6914, ¶ 5. This discretionary

power “should be exercised only in the exceptional case in which the evidence weighs heavily

against the conviction.” State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting State v.

Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). See also Otten at 340.

       {¶29} Mr. Hunter argues that his conviction for felonious assault is a manifest

miscarriage of justice because he admitted his only animus was to kill M.G. and he did so in one

continuous course of conduct.
                                                 13


       {¶30} Mr. Hunter was convicted of felonious assault under R.C. 2903.11(A)(2), which

states: “No person shall knowingly * * * [c]ause or attempt to cause physical harm to another * *

* by means of a deadly weapon * * *.” “A person acts knowingly, regardless of purpose, when

the person is aware that the person’s conduct will probably cause a certain result or will probably

be of a certain nature.” R.C. 2901.22(B). Physical harm to a person means “any injury, illness,

or other physiological impairment, regardless of its gravity or duration.” R.C. 2901.01(A)(3). A

deadly weapon is “any instrument, device, or thing capable of inflicting death, and designed or

specially adapted for use as a weapon, or possessed, carried, or used as a weapon.” R.C.

2923.11(A).

       {¶31} At trial, Mr. Hunter testified that he brought a loaded gun with him to D.C.’s

apartment. He testified that he was approached by M.G. outside of the apartment and then

intentionally shot M.G. in the neck. He presented inconsistent testimony when he testified both

that he did and did not intend to kill M.G. He also testified that he followed M.G. into the

apartment and the gun jammed. Mr. Hunter had to un-jam and reload the gun before shooting

M.G. several more times.

       {¶32} “‘[T]he weight to be given the evidence and the credibility of the witnesses are

primarily for the trier of the facts.’” State v. Haydon, 9th Dist. Summit No. 27737, 2016-Ohio-

4683, ¶ 28, quoting State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus.

“[T]he jury is free to believe or disbelieve any, or all, of the testimony from each witness.”

Haydon at ¶ 28. “[A]s the trier of fact, ‘the [jury] is best able to view witnesses and observe their

demeanor, gestures and voice inflections, and use these observations in weighing the credibility

of the proffered testimony.’” State v. Cook, 9th Dist. Summit No. 21185, 2003-Ohio-727, ¶ 30,

quoting Giurbino v. Giurbino, 89 Ohio App.3d 646, 659 (8th Dist.1993).
                                                14


       {¶33} Based on the evidence presented at trial, the jury was free to believe that Mr.

Hunter knowingly caused physical harm to M.G. by shooting him in the neck outside of the

apartment. We conclude that Mr. Hunter’s argument that his felonious assault conviction is

against the manifest weight of the evidence is without merit. This is also not an exceptional case

where the evidence presented weighs heavily in favor of the appellant and against conviction.

See Thompkins at 387.

       {¶34} Mr. Hunter’s third assignment of error is overruled.

                                                III.

       {¶35} Mr. Hunter’s first, second, and third assignments of error are overruled. The

judgment of the Summit County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
                                          15


      Costs taxed to Appellant.




                                               THOMAS A. TEODOSIO
                                               FOR THE COURT



HENSAL, P. J.
CARR, J.
CONCUR.


APPEARANCES:

JEFFREY N. JAMES, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
