[Cite as State v. Morsie, 2014-Ohio-172.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                            WARREN COUNTY




STATE OF OHIO,                                    :

        Plaintiff-Appellee,                       :     CASE NO. CA2012-07-064

                                                  :            OPINION
    - vs -                                                      1/21/2014
                                                  :

JESSIE LEE MORSIE,                                :

        Defendant-Appellant.                      :



      CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                           Case No. 12CR28074



David Fornshell, Warren County Prosecuting Attorney, Michael Greer, 500 Justice Drive,
Lebanon, Ohio 45036, for plaintiff-appellee

Kristopher Haines, 250 East Broad Street, Suite 1400, Columbus, Ohio 43215, for
defendant-appellant



        S. POWELL, J.

        {¶ 1} Defendant-appellant, Jessie Lee Morsie, appeals from the conviction and

sentence he received in the Warren County Court of Common Pleas after he was found

guilty on four counts of sexual battery and one count of attempted rape. For the reasons

outlined below, we affirm in part, reverse in part and remand for further proceedings.

        {¶ 2} On February 21, 2012, the Warren County grand jury returned an eight-count
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indictment against Morsie alleging two counts of rape, two counts of attempted rape, three

counts of sexual battery, and one count of disrupting public services. The charges stemmed

from Morsie's unwanted sexual encounters with four women, M.T., D.B., A.S., and K.C., who

he allegedly lured to his apartment between the summer of 2010 and March 20, 2011. The

disrupting public service charge was subsequently dismissed. Thereafter, Morsie filed a

motion to sever the remaining charges against him, which the trial court denied. The matter

then proceeded to a bench trial.

       {¶ 3} At trial, the state first called M.T. to testify. M.T testified she became ill after an

unknown individual filled up her drink while she was socializing in the apartment of her friend,

Timothy Willis. Upon learning M.T. was feeling sick, Morsie, who lived in the same apartment

complex, agreed to help M.T. back to her own nearby apartment. M.T. had previously met

Morsie when he took her into his apartment to show her his furniture. Believing Morsie was

helping her back to her own apartment, M.T. left Willis' apartment with Morsie. According to

M.T., she was "totally out of it" during this time and required Morsie's assistance to walk.

       {¶ 4} M.T. then testified she immediately went to bed upon entering what she

assumed was her own apartment. As M.T. testified, "I thought I was in my room and I was

going to sleep, that's what I thought." However, later that evening as M.T. drifted in and out

of consciousness, M.T. testified she awoke to find herself naked and in pain. M.T. then

testified that she glanced back over her shoulder when she saw Morsie penetrating her

vagina first with an unknown object, then with a "black dildo" sex toy, and finally with a beer

bottle. Unable to move, M.T. testified she then "passed out" only to wake up the next

morning in Morsie's apartment. When asked how she knew it was Morsie's apartment, M.T.

testified she recognized Morsie's flowered couch he showed her on a previous visit.

       {¶ 5} Continuing, M.T. testified she put on her clothes and snuck back to her own

apartment. Once there, M.T. testified she took a shower and talked to Willis, who convinced
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her to call police.   M.T. also testified she later confronted Morsie about his actions.

According to M.T., Morsie "said you liked it and now I'm his woman he said." M.T. later wrote

a letter to the apartment complex detailing her allegations against Morsie and provided

information regarding this incident to Detective Josh Holbrook of the Lebanon Police

Department.

       {¶ 6} The state next called D.B. to testify. D.B. testified she met Morsie on a chat line

sometime between June and July of 2010. According to D.B., the chat line was "a dating

thing" where you could send and receive voice messages from other users. After receiving a

voice message from Morsie, D.B. testified they exchanged phone numbers and began having

frequent conversations for several weeks. Their conversations eventually progressed to the

point where D.B. agreed to come to Morsie's apartment to meet him on the evening of July

23, 2010.

       {¶ 7} Upon arriving at his apartment via taxi, D.B. testified she sat and talked with

Morsie on his couch. D.B also testified Morsie asked her to take a shower and leave the

door open, which she agreed to do. After taking a shower, D.B. testified Morsie asked if she

wanted to take some pills, which she believed were Vicodin. According to D.B., "I acted like I

took them, but I put them in my purse." Shortly thereafter, D.B. testified Morsie went to his

bedroom and brought back a "black dildo" sex toy. As D.B. testified, the following exchange

then occurred:

              Q:     Okay, and did he say anything to you when he brought
              that out?

              A:    Yeah. He said he was going to use it on me, and I said
              no, you're not. And then I was ready to go. I thought well how
              am I going to get home, and he goes you're going to have to
              suck my dick to get home.

       {¶ 8} D.B. refused Morsie's advances and instead called her brother and brother-in-

law for a ride home. However, because it was late in the evening, neither answered their
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phone.

       {¶ 9} Realizing she did not have a ride home, D.B. testified she went into Morsie's

bedroom where she sat on the bed and turned on the television. Morsie then entered the

bedroom and began talking about sex. According to D.B., Morsie "said you're going to suck

my dick, and I said, no, I'm not." To this, Morsie became upset and grabbed D.B. by the hair

and pulled her head down towards his exposed penis. In response, D.B. grabbed Morsie's

testicles and twisted. Specifically, D.B. testified:

              And he got really irate with me and grabbed my hair and tried to
              pull me down on him and I just grabbed his balls and started
              twisting them and he said you better let go, he said I'll kill you for
              that, you know, and so I said let go of my hair. He let go of my
              hair and I let go of him and I got up and started to go out the
              door and dial 9-1-1 and he grabbed my phone and snapped it in
              two.

       {¶ 10} D.B. then testified she grabbed her belongings and picked up Morsie's cell

phone that was lying on the coffee table. D.B. then ran from Morsie's apartment and called

the police. Once police arrived, D.B. told them Morsie had pulled her hair and broke her

phone. D.B., however, did not inform police Morsie attempted to force her to perform oral

sex. Instead, she informed Detective Holbrook of these allegations approximately nine

months later. When asked why she did not originally inform police Morsie tried to force her to

perform oral sex upon him, D.B. testified she was ashamed and embarrassed.

       {¶ 11} Following D.B.'s testimony, the state called A.S. to testify. A.S. testified she

also met Morsie through a chat line. According to A.S., after speaking with Morsie for several

months, A.S. agreed to meet Morsie at his apartment to drink a few beers and play cards with

his friends. A.S. was subsequently dropped off at Morsie's apartment by her daughter on the

evening of February 19, 2011. A.S. testified she was not going to Morsie's apartment for any

type of sexual relationship.

       {¶ 12} Upon arriving at Morsie's apartment, A.S. testified Morsie's friends, a man and
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a woman, were "already trashed, they're drunk already when I got there." A.S. then

proceeded to drink a soda pop and two beers, one of which Morsie got out of the refrigerator

for her. When asked if there was anything different about the beer, A.S. testified it "tasted

kind of funny."

       {¶ 13} A.S. then testified the man and the woman left Morsie's apartment and Morsie

turned on a pornographic video. In response, A.S. testified she told Morsie to turn off the

pornography because she did not like it and that it was in poor taste to invite someone over

only to turn on pornography. Shortly thereafter, A.S. testified she started getting light headed

and woozy. A.S. then testified she went to the bathroom only to return to find Morsie had

unzipped his pants and exposed his penis. According to A.S., Morsie then said "he wanted

me to do what the girls on the video was doing" – perform oral sex.

       {¶ 14} At this point, A.S. testified she was "real out of it," which was unusual for her

after drinking just two beers. A.S. then testified as follows:

              Last thing I remember because kind of after that he was telling
              me what he wanted me to do and I said I'm not doing that, he
              grabbed me by the hair of the head but he let go, I said please
              don't grab me by the hair of the head. But he let go and the last
              thing I remember that was that and the conversation I woke up
              the next day and I was on the couch.

       {¶ 15} A.S. then testified when she woke up she was completely naked and had

semen on the side of her face and neck. After she awoke in Morsie's apartment, A.S.

testified she tried to call her daughter to pick her up, but her phone battery had died.

According to A.S., Morsie refused to let her use his phone and told her to leave. After

leaving Morsie's apartment, A.S. testified she was able to call police from a neighboring

apartment. Police subsequently arrived and took her to the hospital.

       {¶ 16} The state then called K.C., the last of Morsie's four alleged victims, who also

testified she met Morsie through a chat line. According to K.C., she had been talking and


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texting with Morsie for approximately two weeks before she agreed to meet him at his

apartment. Although never meeting Morsie in person, K.C. testified she thought she was in a

relationship with Morsie. K.C. was dropped off at Morsie's apartment by her sister on March

20, 2011.

       {¶ 17} Once she arrived at his apartment, K.C. and Morsie sat on the couch and

talked. During this time, K.C. drank one Smirnoff beverage, whereas Morsie drank four

Smirnoff beverages and several beers. Morsie then asked K.C. if she wanted any Xanax,

which she declined. As the evening progressed, the pair began kissing when Morsie became

aggressive and pulled K.C.'s hair and called her a "bitch." While still grabbing a hold of her

hair, Morsie then pulled K.C.'s skirt down and inserted one of the Smirnoff bottles into her

rectum. Although K.C. told him to stop, Morsie continued to insert the bottle into her rectum

for several minutes. As K.C. testified, "I was crying and he didn't stop until about 15 or 20

minutes later and he then finally stopped but I was still crying because it hurt."

       {¶ 18} After Morsie finally stopped inserting the bottle into her rectum, K.C. went into

Morsie's bedroom and locked the door. However, Morsie was able to unlock the door and he

again inserted the bottle into K.C.'s rectum and her vagina. When asked if she tried to stop

Morsie during this second attack, K.C. testified she pushed the bottle away but Morsie

removed her hand and held her down on the bed. After enduring this second attack, K.C.

testified she was able to get away from Morsie and contact her sister, who then contacted the

police. Police later recovered the bottle Morsie used to penetrate K.C.'s rectum and vagina

in a nearby garbage dumpster.

       {¶ 19} The state also called M.C., K.C.'s sister, Timothy Willis, M.T.'s friend and

neighbor, as well as Detective Holbrook and Angela Liggett, a Sexual Assault Nurse

Examiner at Bethesda North Hospital. Of significance, Detective Holbrook testified he met

with each of the alleged victims during his investigation. According to Detective Holbrook,
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there was never any indication any of the women knew each other prior to their encounters

with Morsie. Detective Holbrook also testified Morsie admitted to previously owning a "black

dildo" sex toy.

       {¶ 20} The state then rested and Morsie moved for dismissal of all charges against

him pursuant to Crim.R. 29. In ruling on the motion, the trial court dismissed the charge

alleging Morsie attempted to rape A.S., but overruled the motion as it relates to the remaining

charges against him. Morsie did not present any evidence in his defense, nor did he renew

his motion to sever.

       {¶ 21} After Morsie rested, the trial court took the matter under advisement, rendering

a verdict the following day. In reaching its verdict, the trial court found Morsie guilty of two of

three counts alleging sexual battery involving M.T., as well as both counts alleging sexual

battery involving K.C., and the single count of attempted rape involving D.B. The trial court

then sentenced Morsie to a total aggregate sentence of eight years in prison. Specifically,

the trial court sentenced Morsie to 24 months in prison on each of the two counts of sexual

battery involving M.T., to be served concurrently to one another; 36 months in prison on each

of the the two counts of sexual battery involving K.C., to be served concurrently to one

another and consecutive to the two counts of sexual battery involving M.T.; and three years

in prison for the attempted rape involving D.B., to be served concurrently to all other counts.

Morsie was also ordered to pay court costs.

       {¶ 22} On July 25, 2012, Morsie filed a timely notice of appeal and a request for

appointment of appellate counsel. Finding Morsie indigent, the trial court appointed appellate

counsel for Morsie on August 6, 2012. Morsie's original appellate counsel, however, did not

file a brief or act upon Morsie's behalf in any way. In fact, Morsie's original appellate counsel

did not even respond to this court's January 18, 2013 show cause order. As a result, on

February 14, 2013, this court dismissed Morsie's direct appeal, with prejudice. State v.
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Morsie, 12th Dist. Warren No. CA2012-07-064 (Feb. 14, 2013) (Judgment Entry of

Dismissal).

      {¶ 23} On March 25, 2013, Morsie filed a pro se application to reopen his appeal.

That same day, the Ohio Public Defender's Office filed a motion to reinstate Morsie's direct

appeal and to appoint it as Morsie's new appellate counsel. In an entry filed May 10, 2013,

this court granted Morsie's pro se application to reopen his appeal and appointed the Ohio

Public Defender's Officer to represent him on appeal. State v. Morsie, 12th Dist. Warren No.

CA2012-07-064 (May 10, 2013) (Entry Granting Application to Reopen Appeal). A notice of

appearance was subsequently filed, as well as an appellate brief on Morsie's behalf, raising

three assignments of error for review.

      {¶ 24} Assignment of Error No. 1:

      {¶ 25} THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT

OVERRULED MR. MORSIE'S MOTION TO SEVER CERTAIN COUNTS IN HIS

INDICTMENT, IN VIOLATION OF CRIM.R. 8 AND CRIM.R. 14, AND IN VIOLATION OF MR.

MORSIE'S RIGHTS UNDER THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO

THE UNITED STATES CONSTITUTION, AND ARTICLE I, SECTIONS 10 AND 16 OF THE

OHIO CONSTITUTION.

      {¶ 26} In his first assignment of error, Morsie argues the trial court erred by denying

his motion to sever the charges against him. We disagree.

      {¶ 27} The decision to grant or deny a motion to sever is a matter in the trial court's

discretion. State v. Matthews, 12th Dist. Butler No. CA2012-09-175, 2013-Ohio-3482, ¶ 35.

In turn, this court reviews the trial court's decision under an abuse of discretion standard.

State v. Rose, 12th Dist. Butler No. CA2011-11-214, 2012-Ohio-5607, ¶ 11. An abuse of

discretion connotes more than an error of law or judgment; it implies that the trial court's

attitude was arbitrary, unreasonable, or unconscionable. State v. Hancock, 108 Ohio St.3d
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57, 2006-Ohio-160, ¶ 130.

       {¶ 28} It is well-established that "[t]he law favors joining multiple offenses in a single

trial under Crim.R. 8(A) if the offenses charged 'are of the same or similar character.'" State

v. Lott, 51 Ohio St.3d 160, 164 (1990), quoting State v. Torres, 66 Ohio St.2d 340, 343

(1981). As a result, "[j]oinder is liberally permitted to conserve judicial resources, reduce the

chance of incongruous results in successive trials, and diminish inconvenience to the

witnesses." State v. Ashcraft, 12th Dist. Butler No. CA2008-12-305, 2009-Ohio-5281, ¶ 14,

quoting State v. Schaim, 65 Ohio St.3d 51, 58 (1992). Nonetheless, pursuant to Crim.R. 14,

if it appears that the defendant would be prejudiced by joinder of the charged offenses, the

trial court may grant a severance. State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, ¶ 95.

       {¶ 29} While the defendant bears the burden of proving prejudicial joinder, the state

may rebut a defendant's claim of prejudice by utilizing one of two methods. State v. Moshos,

12th Dist. Clinton No. CA2009-06-008, 2010-Ohio-735, ¶ 79. Initially, pursuant to the "other

acts test," the state may rebut the defendant's claim of prejudice by demonstrating it could

have introduced evidence of the joined offenses at separate trials pursuant to the "other acts"

provision found in Evid.R. 404(B). State v. Coley, 93 Ohio St.3d 253, 259 (2001); State v.

Brinkley, 105 Ohio St.3d 231, 2005-Ohio-1507, ¶ 30. On the other hand, the state may

separately negate a claim of prejudice by satisfying the less stringent "joinder test," which

requires the state to merely demonstrate "that evidence of each crime joined at trial is simple

and direct." Moshos at ¶ 79, quoting Coley at 260. Simply stated, "[t]he joinder test only

requires that the evidence of each joined offense is simple and distinct and ensures that a

jury would be capable of segregating the proof required for each offense." State v. Kaufman,

187 Ohio App.3d 50, 2010-Ohio-1536, ¶ 180 (7th Dist.).

       {¶ 30} "A showing by the state that the evidence relating to each crime is simple and

direct negates any claims of prejudice and renders joinder proper." State v. Bice, 12th Dist.
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Clermont No. CA2008-10-098, 2009-Ohio-4672, ¶ 53. In turn, "[i]f the state can meet the

joinder test, it need not meet the stricter 'other acts' test." Moshos at ¶ 79, quoting State v.

Johnson, 88 Ohio St.3d 95, 109 (2000). Thus, "an accused is not prejudiced by joinder when

simple and direct evidence exists, regardless of the admissibility of evidence of other crimes

under Evid.R. 404(B)." State v. Franklin, 62 Ohio St.3d 118, 122 (1991).

       {¶ 31} At the outset, we note that Morsie did not renew his motion to sever at the close

of the state's case or at the close of all evidence. As this court has stated previously, where

a defendant files a motion to sever, but ultimately fails to renew his motion at the close of

either the state's case or presentation of all evidence, such as the case here, the defendant

waives all but plain error on appeal. State v. Wright, 12th Dist. Warren No. CA2008-03-039,

2008-Ohio-6765, ¶ 11; State v. Washington, 1st Dist. Hamilton No. C-090561, 2010-Ohio-

3175, ¶ 38; see also State v. Sapp, 105 Ohio St.3d 104, 2004-Ohio-7008, ¶ 68. Pursuant to

Crim.R. 52(B), notice of plain error is to be taken with the utmost caution, under exceptional

circumstances, and only to prevent a manifest miscarriage of justice. State v. Freeze, 12th

Dist. Butler No. CA2011-11-209, 2012-Ohio-5840, ¶ 30.

       {¶ 32} After a thorough review of the record, we find no error in the trial court's

decision to deny Morsie's motion to sever. In this case, the state presented an organized,

chronological overview of the facts and charges alleged against Morsie by the four women.

Moreover, the witnesses were all "victim specific" in their testimony. This included extensive

testimony from each of the alleged victims detailing their own alleged unwanted sexual

encounters with Morsie, as well as testimony from Detective Holbrook regarding his

investigation into Morsie's conduct as it relates to each of the four alleged victims. The

evidence pertaining to each victim and each offense could easily be segregated. Therefore,

due to the separate and distinct nature of the evidence of each crime, we find Morsie was not

prejudiced by the joinder of the charged offenses.
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       {¶ 33} Our finding is further supported by the fact this matter was tried to the bench.

"If a jury is believed capable of segregating uncomplicated proof, a court would be

considered even more capable." In re Hollobaugh, 7th Dist. Mahoning No. 08 MA 22, 2009-

Ohio-797, ¶ 34. In turn, "[s]ince this was a bench trial, we may presume that the trial court

was not swayed by the number or nature of the charges, nor did it consider evidence that

was admissible in one count in determining another count where that evidence was

inadmissible." State v. Hensley, 2d Dist. Montgomery No. 11410, 1990 WL 31840, *9 (Mar.

19, 1990); see also State v. Layne, 12th Dist. Clermont No. CA2009-07-043, 2010-Ohio-

2308, ¶ 60 (holding that "in reviewing a bench trial, an appellate court presumes that a trial

court considered nothing but relevant and competent evidence in reaching its verdict"). This

is especially true here considering the trial court actually dismissed the charge alleging

Morsie attempted to rape A.S., as well as the trial court's finding Morsie not guilty as to one of

the three charges alleging he sexually battered M.T.

       {¶ 34} In addition, there is no indication in the record that Morsie would have defended

the charges differently had they been tried separately as opposed to jointly. See Rose,

2012-Ohio-5607 at ¶ 21; see also Franklin, 62 Ohio St.3d at 123. In fact, Morsie failed to

provide any evidence in his defense. Furthermore, based on the strength of the state's

evidence, we find it clear that the state did not merely "attempt to prove one case simply by

questionable evidence of other offenses." State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18,

¶ 170, quoting State v. Jamison, 49 Ohio St.3d 182, 187 (1990). Rather, the state provided a

detailed account of Morsie's conduct, thereby leading to his conviction. Therefore, because

we find no error, let alone plain error, in the trial court's decision denying Morsie's motion to

sever, Morsie's first assignment of error is overruled.

       {¶ 35} Assignment of Error No. 2:

       {¶ 36} THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT IMPOSED
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CONSECUTIVE PRISON SENTENCES AGAINST MR. MORSIE WITHOUT MAKING

STATUTORILY MANDATED FINDINGS IN SUPPORT OF CONSECUTIVE SENTENCES,

AND WHEN IT FAILED TO NOTIFY MR. MORSIE THAT HE COULD BE SUBJECTED TO

COMMUNITY SERVICE IF HE FAILED TO PAY COURT COSTS, IN VIOLATION OF MR.

MORSIE'S RIGHTS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES

CONSTITUTION, AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.

      {¶ 37} In his second assignment of error, Morsie argues the trial court improperly

imposed consecutive sentences when it failed to comply with the statutory requirements of

R.C. 2929.14(C)(4). Morsie also argues the trial court erred when it imposed court costs

without notifying him that he could be ordered to perform community service if he failed to

pay his court costs in conformance with the now former R.C. 2947.23(A)(1)(a). The state

concedes, and we agree, the trial court erred in both instances. See, e.g., State v. Warren,

12th Dist. Clermont No. CA2012-12-087, 2013-Ohio-3483, ¶ 16 (finding a consecutive

sentence is contrary to law where the trial court fails to make the consecutive sentencing

findings); State v. Accorinti, 12th Dist. Butler Nos. CA2012-10-205 and CA2012-11-221,

2013-Ohio-4429, ¶ 27 (stating the applicable community service notification is mandatory and

must be provided by the trial court at sentencing). Morsie's second assignment of error is

therefore well-taken and sustained.

      {¶ 38} Assignment of Error No. 3:

      {¶ 39} ORIGINAL APPELLATE COUNSEL PROVIDED MR. MORSIE WITH

INEFFECTIVE ASSISTANCE, IN VIOLATION OF MR. MORSIE'S RIGHT TO DUE

PROCESS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES

CONSTITUTION.

      {¶ 40} In his third assignment of error, Morsie argues his original appellate counsel

provided him with ineffective assistance of appellate counsel by failing to file an appellate
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brief and otherwise failing to act upon his behalf in any way. After reviewing the record, we

agree that Morsie's original appellate counsel was ineffective in his representation by failing

to file an appellate brief. However, although Morsie was originally provided with ineffective

assistance of appellate counsel, this court has since granted Morsie's application to reopen

his appeal and appointed him with new appellate counsel who timely filed an appellate brief

with this court. As a result, we find any prejudice resulting from Morsie's original appellate

counsel's failures has now been remedied, thereby rendering this assignment of error moot.

See, e.g., State v. Bort, 9th Dist. Lorain No. 96CA006597, 1998 WL 791809, *4 (Nov. 4,

1998) (overruling claim of ineffective assistance of original appellate counsel where court

granted application for delayed appeal and considered merits of the case). Therefore,

Morsie's third assignment of error is rendered moot and overruled.

       {¶ 41} Judgment affirmed in part, reversed in part and remanded for the limited

purpose of resentencing.


       HENDRICKSON, P.J., and RINGLAND, J., concur.




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