[Cite as State v. McClendon, 128 Ohio St.3d 354, 2011-Ohio-954.]




   THE STATE OF OHIO, APPELLEE AND CROSS-APPELLANT, v. MCCLENDON,
                         APPELLANT AND CROSS-APPELLEE.
       [Cite as State v. McClendon, 128 Ohio St.3d 354, 2011-Ohio-954.]
Discretionary appeal not accepted, cross-appeal accepted, judgment of the court
        of appeals vacated in part, and cause remanded to the court of appeals for
        application of State v. Johnson.
  (No. 2010-1950 — Submitted February 15, 2011 — Decided March 8, 2011.)
     APPEAL from the Court of Appeals for Montgomery County, No. 23558,
                                    2010-Ohio-4757.
                                 __________________
        {¶ 1} The discretionary appeal is not accepted.
        {¶ 2} The discretionary cross-appeal is accepted.
        {¶ 3} The portion of the judgment of the court of appeals addressing
appellant’s second assignment of error below is vacated on the authority of State
v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, and the cause
is remanded to the court of appeals for application of our decision in State v.
Johnson.
        O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL, and
CUPP, JJ., concur.
        LANZINGER and MCGEE BROWN, JJ., dissent and would not accept the
cross-appeal.
                                 __________________
        Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and
Carley J. Ingram, Assistant Prosecuting Attorney, for appellee and cross-
appellant.
        Kyle McClendon, pro se.
                              ______________________
