[Cite as State v. Dickson, 2013-Ohio-3511.]


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

STATE OF OHIO/CITY OF AKRON                         C.A. No.       26609

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
GILBERT DICKSON                                     AKRON MUNICIPAL COURT
                                                    COUNTY OF SUMMIT, OHIO
        Appellant                                   CASE Nos. 12-CRB-2526
                                                               12-CRB-4525

                                 DECISION AND JOURNAL ENTRY

Dated: August 14, 2013



        WHITMORE, Judge.

        {¶1}     Defendant-Appellant, Gilbert Dickson, appeals from the judgment of the Akron

Municipal Court. This Court affirms.

                                                I

        {¶2}     In early March 2012, Donald and Shannon Alexander noticed their dog, Papa

Bear, was missing from their back yard. After several days of searching the neighborhood, they

decided to make up flyers in hopes of finding the family pet. The flyer offered a reward, but did

not specify how much. Shannon posted a flyer at a local convenient store on her way to work.

Shortly thereafter she received a call from Pierre Cabell. Shannon asked Cabell to call Donald

because she was on her way to work.

        {¶3}     Donald received a call from Cabell, and, according to Donald, offered him $100

for the return of Papa Bear. According to Cabell, Donald offered $500 for the dog. The two

agreed to meet at the corner of Archwood and Grant to make the exchange. However, Cabell did
                                                 2


not bring Papa Bear, and Donald did not have the money. Cabell showed Donald pictures of the

dog on his cell phone, and Donald identified him as Papa Bear. Donald testified that he told

Cabell that Shannon had the $100 reward and that he would get it to him as soon as she finished

work later that night. Cabell then told Donald he needed to call his uncle. Cabell called Gilbert

Dickson, known as Uncle Dave, and handed the phone to Donald. According to Donald,

Dickson demanded $500 for the return of the dog.          Donald hung up and returned home,

ultimately calling the police.

       {¶4}     Officers Michael Stanar and David Rouse responded to the Alexanders’ home to

take the report of a stolen dog. Donald relayed to the officers his conversations with Cabell and

Dickson and the attempted exchange. Officers Stanar and Rouse both called Cabell’s cell phone

in an attempt to negotiate the return of the Papa Bear.

       {¶5}     Sometime thereafter, Cabell called Shannon again and said he only wanted to deal

with her.     Shannon testified that Dickson demanded $500 or he would shoot Papa Bear.

Ultimately, another meet was setup and the police became involved again. The police, using an

unmarked minivan, had a female officer pose as Shannon. Additional officers hid in the back of

the minivan and waited for Cabell to arrive. Cabell arrived, but again did not have Papa Bear

with him. When Cabell approached the minivan and asked for the money, the officers arrested

him.

       {¶6}     Cabell told the officers that Papa Bear was at a house up the street and led the

officers to Dickson’s house. Officer Rouse arrived first, knocked on the back door, and asked

for “Uncle Dave.” Dickson came to the door and became very upset, demanding money for the

dog. Ultimately, the officers were unable to calm Dickson and arrested him.
                                                3


       {¶7}    Dickson was charged with (1) obstructing official business, in violation of Akron

City Code (“A.C.C.”) 136.11(A), a misdemeanor of the second degree; (2) disorderly conduct, in

violation of A.C.C. 132.01(A)/(E), a misdemeanor of the fourth degree; (3) coercion, in violation

of A.C.C. 135.08, a misdemeanor of the second degree; and (4) receiving stolen property, in

violation of A.C.C. 131.17, a misdemeanor of the first degree. A jury found Dickson not guilty

of receiving stolen property, but convicted him of the remaining charges. The court sentenced

Dickson to (1) ninety days incarceration for obstruction, suspended on the condition of

completing one year of probation, (2) thirty days incarceration for disorderly conduct, suspended

on the condition he obey all laws for one year, and (3) one year of probation for coercion.

       {¶8}    Dickson now appeals and raises three assignments of error for our review.

                                                II

                                Assignment of Error Number One

       MR. DICKSON WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE
       OF COUNSEL UNDER THE SIXTH AMENDMENT TO THE UNITED
       STATES CONSTITUTION AND ARTICLE 1, SECTIONS 10 AND 16 OF THE
       OHIO CONSTITUTION.

       {¶9}    In his first assignment of error, Dickson argues that his trial counsel was

ineffective for “fail[ing] to move to dismiss both the obstructing official business and disorderly

conduct charges.” We disagree.

       {¶10} To prevail on a claim of ineffective assistance of counsel, a defendant must show

(1) that counsel’s performance fell below an objective standard of reasonableness, and (2) that

but for counsel’s deficient performance the result of the trial would have been different.

Strickland v. Washington, 466 U.S. 668, 687 (1984). Accord State v. Bradley, 42 Ohio St.3d 136

(1989), paragraph three of the syllabus. This Court need not address both Strickland prongs if

the defendant has failed to prove either one. State v. Ray, 9th Dist. Summit No. 22459, 2005-
                                                 4


Ohio-4941, ¶ 10. In a direct appeal, we review a claim of ineffective assistance of counsel de

novo. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, ¶ 53

       {¶11} While Dickson has captioned his argument as a motion to dismiss, he does not

challenge the validity of the indictment. Instead, the substance of his argument is that the police

violated his constitutional right against an unreasonable search and seizure.             See U.S.

Constitution, Fourth and Fourteenth Amendments. Ohio Constitution, Article I, Section 14. The

proper motion would be a motion to suppress based on the constitutional violation.

       A “motion to suppress” is defined as a “[d]evice used to eliminate from the trial
       of a criminal case evidence which has been secured illegally, generally in
       violation of the Fourth Amendment (search and seizure), the Fifth Amendment
       (privilege against self-incrimination), or the Sixth Amendment (right to assistance
       of counsel, right of confrontation etc.), of [the] U.S. Constitution.”

State v. French, 72 Ohio St.3d 446, 449 (1995), quoting Black’s Law Dictionary 1014 (6th

Ed.1990). The exclusion of such evidence is “designed to deter police misconduct * * * .” U.S.

v. Leon, 468 U.S. 897, 916 (1984).

       {¶12} However, “[a]n accused ‘cannot invoke the [F]ourth [A]mendment to suppress

evidence of his own unlawful conduct which was in response to police actions in violation of the

amendment.’” State v. Johnson, 173 Ohio App.3d 669, 2007-Ohio-6146, ¶ 22 (9th Dist.) (Carr,

J., concurring), quoting Dayton v. Joy, 2d Dist. Montgomery Nos. CA11846 & CA11847, 1990

WL 98379, *2 (July 2, 1990). “In cases where the response has been a physical attack upon the

officer making the illegal arrest or search, courts have held that the evidence of this new crime is

admissible.” State v. Barnes, 2d Dist. Montgomery No. 16434, 1997 WL 752590, *3 (Dec. 5,

1997). To apply the exclusionary rule in those cases “would in effect give the victims of illegal

searches a license to assault and murder the officers involved – a result manifestly

unacceptable.” Barnes at *4, quoting LaFave, Search and Seizure, Section 11.4(j) (3d Ed.1996).
                                                    5


       {¶13} Assuming without deciding that the officers violated Dickson’s Fourth

Amendment rights by entering his home, this violation would not serve to exclude evidence of

his unlawful conduct against an officer. Officer Rouse testified that when he entered the home,

Dickson was “irate.” According to the testimony of Officers Rouse and Todd Stump, Dickson

continued to shout and cuss at them while they attempted to calm him down and to deescalate the

situation. Officer Rouse testified that Dickson then pushed him. It was at that point that Officer

Rouse “decided that [he was] not going to get pushed anymore, * * * [and] to arrest [Dickson]

for disorderly conduct * * *.”

       {¶14} A motion to suppress cannot be used to exclude a subsequent assault on an

officer, even if that officer has violated the defendant’s Fourth Amendment rights. Therefore,

Dickson could not have used a motion to suppress to exclude evidence of his conduct which

formed the basis of his disorderly conduct and resisting arrest convictions. Because a motion to

suppress would not have excluded testimony of his conduct, Dickson cannot show that he was

prejudiced by his trial counsel’s failure to file a motion to suppress. Without a showing of

prejudice, Dickson’s claim of ineffective assistance of counsel must fail.          Accordingly,

Dickson’s first assignment of error is overruled.

                                 Assignment of Error Number Two

       THE TRIAL COURT ERRED AS A MATTER OF LAW BECAUSE THE
       STATE FAILED TO ESTABLISH ON THE RECORED (sic) SUFFICIENT
       EVIDENCE TO SUPPORT THE CHARGES LEVIED AGAINST DICKSON IN
       VIOLATION OF THE DUE PROCESS CLAUSE OF THE 14TH
       AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE 1, SECTIONS
       1, 10 & 16 OF THE OHIO CONSTITUTION.

       {¶15} In his second assignment of error, Dickson argues that the State failed to produce

sufficient evidence to support his convictions.
                                                6


       {¶16} “‘[S]ufficiency’ is a term of art meaning that legal standard which is applied to

determine whether the case may go to the jury or whether the evidence is legally sufficient to

support the jury verdict as a matter of law.” State v. Thompkins, 78 Ohio St.3d 380, 386 (1997),

quoting Black’s Law Dictionary 1433 (6th Ed.1990). “In essence, sufficiency is a test of

adequacy.” Thompkins at 386. When reviewing a conviction for sufficiency, evidence must be

viewed in a light most favorable to the prosecution. State v. Jenks, 61 Ohio St.3d 259 (1991),

paragraph two of the syllabus. The pertinent question is whether “any rational trier of fact could

have found the essential elements of the crime proven beyond a reasonable doubt.” Id.

       {¶17} “Whether the evidence is legally sufficient to sustain a verdict is a question of

law.” Thompkins at 386. This Court, therefore, reviews questions of sufficiency de novo. State

v. Salupo, 177 Ohio App.3d 354, 2008-Ohio-3721, ¶ 4 (9th Dist.).

Coercion

       {¶18} A.C.C. 135.08(B)(1) provides that: “No person, with purpose to coerce another

into taking or refraining from action concerning which he has a legal freedom of choice, shall * *

* [t]hreaten to commit any offense.”

       {¶19} There is no dispute that several phone conversations were had between Dickson

and the Alexanders, and between Dickson and the police. All of these conversations took place

on Cabell’s cell phone. While the testimony does conflict as to what was said during those

conversations, we review the evidence in a light most favorable to the State when reviewing for

sufficiency of the evidence. Jenks, 61 Ohio St.3d at paragraph two of the syllabus.

       {¶20} Donald Alexander testified that he received a phone call from Cabell in response

to the lost dog poster that his wife, Shannon Alexander, had put up at a local convenient store.

Donald testified that Cabell asked him how much the reward was and he replied, “[a] hundred
                                                7


bucks.” The two then arranged to meet at the corner of Archwood and Grant Street to make the

exchange. Cabell arrived, without Papa Bear, and showed Donald photographs of the dog on his

phone. Donald identified the dog as his and explained that Shannon had the $100 reward and

that he would give it to him when she finished work later that evening. Cabell then said he had

to call his uncle. Cabell made a phone call and handed the phone to Donald. Donald explained

to the person on the phone, later identified as Dickson, that he would give him the $100 as soon

as his wife finished work, but was told: “[t]his is how this is going to work. You’re going to give

me $500 or you’re not going to see the dog.” Donald hung up, called Shannon, and later, called

the police.

       {¶21} Shannon Alexander testified that she received a call about her missing dog shortly

after posting the flyer offering a reward. She asked Cabell to contact her husband, Donald,

because she was on her way to work. She received another phone call from Cabell later that

evening “saying he didn’t want to speak to [Donald] any longer” and “[h]e didn’t want to talk to

any policemen.” Shannon testified that “Dickson actually spoke up and he said, ‘We want $500.

I spent more than a hundred dollars on this dog already. I’m not going to take a hundred dollars

from you or your husband. I want my $500 for the dog.” Shannon said she began crying and

tried to explain that she did not have $500. Dickson hung up on her. When she called back,

Shannon testified that Dickson said: “I want $500. I want it tonight. If not, he’s my dog. I will

do what I want with him. I will shoot him in his head if I want to. Matter of fact, I didn’t want

him to begin with.” Shannon told Dickson she would make some calls to see if she could come

up with the money. Meanwhile, Shannon said she was sent home from work because she was

“crying and * * * extremely upset.”
                                                 8


        {¶22} Officer Michael Stanar testified that he was dispatched to the Alexander residence

to take a report of a stolen dog. Officer Stanar spoke with Donald and learned of the attempted

exchange at Archwood and Grant Street and the demand for $500. Officer Stanar testified that

he called Cabell’s phone and attempted to negotiate the return of the dog. According to Officer

Stanar, he identified himself as an Akron Police Officer, but that the male voices on the other

end did not believe him. Ultimately, Officer Stanar was told that they wanted $500 for the dog,

and they hung up on him.

        {¶23} Officer David Rouse testified that he was working alongside Officer Stanar the

day the Alexanders reported the dog stolen. Officer Rouse was present when Officer Stanar

made the call to Cabell in an attempt to negotiate the return of the dog. Officer Rouse testified

that after Cabell and Dickson hung up on Officer Stanar, Officer Rouse called back. According

to Officer Rouse, Dickson was yelling and cussing at him. Dickson then said he did not care if

Officer Rouse was the police, and that “he was going to kill the dog.”

        {¶24} Viewing the evidence in a light most favorable to the State, a rational trier of fact

could have found that Dickson threatened harm to the dog in an attempt to get the Alexanders to

pay him $500. We conclude there is sufficient evidence to support Dickson’s conviction for

coercion.

Disorderly Conduct

        {¶25} A.C.C. 132.01(A), which is identical to R.C. 2917.11(A), provides, in relevant

part, that:

        No person shall recklessly cause inconvenience, annoyance, or alarm to another
        by doing any of the following:

        1. Engaging in fighting, in threatening harm to persons or property, or in violent
           or turbulent behavior;
                                                9


       2. Making unreasonable noise or offensively coarse utterance, gesture, or
          display, or communicating unwarranted and grossly abusive language to any
          person * * *.

       {¶26} Dickson argues that “no officer testified that they were alarmed or annoyed by

Dickson’s conduct” and that police officers cannot be inconvenienced while performing their

professional duties, citing State v. Miller, 67 Ohio App.2d 127 (3d Dist.1980).

       {¶27} In Akron v. Anderson, 9th Dist. Summit No. 15090, 1991 WL 207866 (Oct. 9,

1991), we noted that even the Third District distinguished Miller from cases where the disorderly

“conduct and language [is] directed toward the officer.” (Emphasis sic.) Anderson at *2, citing

State v. Freewalt, 3d Dist. Auglaize No. 2-87-11, 1988 WL 72400, *3 (June 30, 1988). “[W]e

expressly reject the notion advanced by the defendant that simply because a police officer must

routinely expect to encounter the language or conduct proscribed in R.C. 2917.11 in the course

of performing his job, such conduct or language is not actionable as to him under that statute.”

Anderson at *2.

       {¶28} Officer Rouse testified that, upon arriving at Dickson’s house, he approached the

sliding glass door in the back and asked for “Uncle Dave.” According to Officer Rouse, Dickson

stepped out of the house and tried to push him off of the porch while yelling “Nobody’s coming

into my house until I get my money.” Officer Rouse further testified that he attempted to talk to

Dickson to try to figure out what was going on, but that Dickson pushed him again and went

back inside the house. After Officer Rouse gained entry into the house, Dickson ran toward him

with the reward flyer, cussing and screaming that he just wanted his money. Officer Rouse

described Dickson as “irate” and said that he repeatedly attempted to calm him down. At this

time, Officer Rouse said, he was “still trying to figure out what’s going on, who he is, what his

involvement is, [and] where the dog is, which [ ] could [be] hear[d] upstairs barking.” Officer
                                               10


Rouse testified that he “must have said relax like ten times” to Dickson. Officer Rouse also

testified that he and Officer Stump were trying to get Dickson’s identification information, but

Dickson was being uncooperative and would not calm down. Dickson again pushed Officer

Rouse, and the officers arrested him.

       {¶29} Officer Stump testified that he had concerns about Dickson’s demeanor and

repeatedly told him to relax and calm down. Officer Stump testified that he explained to

Dickson that they “needed him to cooperate” and that Dickson then became “more aggressive

towards [the officers].” Officer Stump said that he explained to Dickson that he would be

arrested if he did not stop the “disorderly conduct.” However, Dickson “continued to not comply

with any of [the officers’] orders.”

       {¶30} Officer Stanar testified that when he entered the house Officers Rouse and Stump

were trying to calm Dickson down. Dickson “kept cussing various cuss words” and “kept saying

that he wanted his money.” Officer Stanar further testified that Officers Rouse and Stump were

trying to get Dickson’s information but he refused to cooperate.

       {¶31} Viewing the evidence in a light most favorable to the State, Dickson repeatedly

pushed Officer Rouse and used “grossly abusive language” towards the officers.                A.C.C.

132.01(A)(2). We conclude that the evidence is sufficient to support, beyond a reasonable doubt,

Dickson’s conviction for disorderly conduct.

Obstructing Official Business

       {¶32} A.C.C. 136.11(A), which is identical to R.C. 2921.31(A), provides that:

       No person, without privilege to do so and with purpose to prevent, obstruct, or
       delay the performance by a public official of any authorized act within his official
       capacity, shall do any act which hampers or impedes a public official in the
       performance of his lawful duties.
                                                 11


       {¶33} Dickson argues that his conviction is based on insufficient evidence because the

officers were not performing a lawful duty when they arrested him for obstruction. Specifically,

he argues that the police had violated his Fourth Amendment right against unreasonable search

and seizure when they entered his house without a warrant and with no exigent circumstances.

       {¶34} Assuming arguendo that the warrantless entrance into Dickson’s home was a

violation of his constitutional right against unreasonable search and seizure, such a violation did

not prevent the police from arresting Dickson because the police observed a fresh crime being

committed. Akron v. Holmes, 9th Dist. Summit No. 21590, 2004-Ohio-832, ¶ 13, quoting State

v. Ali, 154 Ohio App.3d 493, 2003-Ohio-5150, ¶ 13 (7th Dist.). “It is clear that further criminal

acts, such as obstructing official business and resisting arrest, are not legitimatized by Fourth

Amendment transgressions.” Holmes at ¶ 14.

       {¶35} Here, Officers Rouse, Stump, and Stanar struggled to arrest Dickson for

disorderly conduct. The officers had repeatedly tried to calm Dickson down to determine his

identity, his involvement with the missing dog, and whether the dog they could hear barking

upstairs was the dog reported to be stolen. The officers repeatedly instructed Dickson to put his

arms behind his back, but Dickson kept cussing at them. Officer Rouse had grabbed one of

Dickson’s arms, Officer Stump had grabbed the other, but Dickson kept pulling his arms away.

Ultimately, Officer Stanar testified that he pulled out his taser and “put it on his upper chest just

under his neck, * * * and [ ] said, ‘Put your hands behind your back. Stop resisting * * * or you

are going to get tased.’” Officer Stanar further testified that Dickson kept “egging [him] on,”

saying, “Come on tase me.”

       {¶36} After viewing the evidence in a light most favorable to the State, we conclude that

Dickson’s resistance is sufficient to support his conviction of obstructing official business.
                                                 12


       {¶37} Accordingly, Dickson’s second assignment of error is overruled.

                               Assignment of Error Number Three

       DICKSON’S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF
       THE EVIDENCE [ ] IN VIOLATION OF THE DUE PROCESS CLAUSE OF
       THE 14TH AMENDMENT OT THE U.S. CONSTITUTION AND ARTICLE 1,
       SECTIONS 1, 10 & 16 OF THE OHIO CONSTITUTION.

       {¶38} In his third assignment of error, Dickson argues that his convictions are against

the manifest weight of the evidence.

       {¶39} A conviction that is supported by sufficient evidence may still be found to be

against the manifest weight of the evidence. Thompkins, 78 Ohio St.3d at 387; Eastley v.

Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 12. “Weight of the evidence concerns ‘the

inclination of the greater amount of credible evidence, offered in a trial, to support one side of

the issue rather than the other.’” (Emphasis sic.) Thompkins at 387, quoting Black’s at 1594.

       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). “When a court of appeals reverses a

judgment of a trial court on the basis that the verdict is against the weight of the evidence, the

appellate court sits as a ‘thirteenth juror’ and disagrees with the fact[-]finder’s resolution of the

conflicting testimony.” Thompkins at 387. An appellate court should exercise the power to

reverse a judgment as against the manifest weight of the evidence only in exceptional cases.

Otten at 340.
                                               13


Coercion

        {¶40} A.C.C. 135.08(B)(1) provides that: “No person, with purpose to coerce another

into taking or refraining from action concerning which he has a legal freedom of choice, shall * *

* [t]hreaten to commit any offense.”

        {¶41} Dickson argues that his conviction is against the manifest weight of the evidence

because he never threatened to hurt the dog. Shaquille Amos, a friend of Dickson and Cabell,

testified that he was at Dickson’s house during the various phone conversations to negotiate the

return of the dog. Amos stated that he never heard Dickson threaten to kill Papa Bear. Jeremy

Gaddis, a life-long friend of Dickson, also testified that he was at Dickson’s house during some

of the phone conversations. According to Gaddis, Dickson never said he could have killed the

dog, but did say that he “could have beat it with a pole.” Cabell also testified that no threats

were made to harm the dog. Cabell stated that in response to a question about whether they were

going to kill Papa Bear, Dickson replied, “I could have beat the dog with sticks when it first got

here, but I didn’t do that, now did I?” Lastly, Dickson himself testified that he never threatened

to kill the dog.

        {¶42} Donald Alexander testified that Dickson demanded $500 “or you’re not going to

see the dog.” Shannon Alexander testified that Dickson demanded $500 or “he’s my dog. I will

do what I want with him. I will shoot him in his head if I want to.” Officer Stanar also testified

that Dickson demanded $500 for the return of the dog. Officer David Rouse testified that

Dickson said he wanted his money, did not care if Officer Rouse was the police, and that “he was

going to kill the dog.”

        {¶43} While the witnesses presented various versions of what exactly was said, the jury

was entitled to believe all, part, or none of the testimony of each witness. State v. Roper, 9th
                                                 14


Dist. Medina No. 12CA0001-M, 2012-Ohio-3526, ¶ 17. “[T]he weight to be given the evidence

and the credibility of the witnesses are primarily for the trier of the facts.” Id., quoting State v.

DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus.

       {¶44} After reviewing the record and giving the trier of fact its due deference as to the

issues of credibility, we cannot conclude that this is an extraordinary case where the jury clearly

lost its way. See Otten at 340.

Disorderly Conduct & Obstructing Official Business

       {¶45} Dickson does not set forth arguments about why his convictions for disorderly

conduct and obstructing official business are against the manifest weight of the evidence.

Instead, he limits his challenge to the sufficiency of the evidence of those convictions. This

Court has repeatedly held, “[i]f an argument exists that can support [an] assignment of error, it is

not this [C]ourt’s duty to root it out.” Cardone v. Cardone, 9th Dist. Summit No. 18349, 1998

WL 224934, *8 (May 6, 1998). See also App.R. 16(A)(7).

       {¶46} Dickson’s third assignment of error is overruled.

                                                 III

       {¶47} Dickson’s assignments of error are overruled.           The judgment of the Akron

Municipal Court is affirmed.

                                                                                Judgment affirmed.




       There were reasonable grounds for this appeal.

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

Court, 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.
                                                15


       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.

       Costs taxed to Appellant.




                                                     BETH WHITMORE
                                                     FOR THE COURT



MOORE, P. J.
CONCURS IN JUDGMENT ONLY.

BELFANCE, J.
CONCURS IN JUDGMENT ONLY.


APPEARANCES:

DAWN M. KING, Attorney at Law, for Appellant.

GERTRUDE WILMS, Chief Prosecuting Attorney, and THOMAS D. BOWN, Assistant
Prosecuting Attorney, for Appellee.
