[Cite as State v. Lomack, 2013-Ohio-5.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                      JUDGES:
STATE OF OHIO                                 :       Hon. Patricia A. Delaney, P.J.
                                              :       Hon. W. Scott Gwin, J.
                         Plaintiff-Appellee   :       Hon. William B. Hoffman, J.
                                              :
-vs-                                          :
                                              :       Case No. 2012-CA-32
SAMUEL LOMACK, JR.                            :
                                              :
                     Defendant-Appellant      :       OPINION




CHARACTER OF PROCEEDING:                          Criminal appeal from the Licking County
                                                  Court of Common Pleas, Case No.
                                                  2011CR203



JUDGMENT:                                         Affirmed

DATE OF JUDGMENT ENTRY:                           January 2, 2013

APPEARANCES:

For Plaintiff-Appellee                            For Defendant-Appellant

BRIAN WALTZ                                       ASHLEY RUTHERFORD
Assistant Prosecuting Attorney                    Willis & Willis L.P.A.
Licking County Prosecutor’s Office                4653 Trueman Blvd., Ste. 100
Newark, OH 43055                                  Hilliard, OH 43026
[Cite as State v. Lomack, 2013-Ohio-5.]


Gwin, J.,

        {¶1}     Defendant-appellant Samuel Lomack [“Lomack”] appeals his conviction in

the Licking County Court of Common Pleas for one count of trafficking in hydrocodone

in excess of the bulk amount and within the vicinity of a juvenile.

                                          Facts and Procedural History

        {¶2}     On April 21, 2011, Jeremy Fister contacted Lomack. Fister was a

confidential informant working under the direction of the Central Ohio Drug Enforcement

Task Force. During that conversation, Lomack offered to sell 100 Vicodin pills to Fister

for $400. The pair later arranged to meet at the Flying J gas station in Kirkersville,

Licking County, Ohio. Prior to the meeting, both Fister and his vehicle were searched.

Fister was then given buy money and wired with an audio recorder.

        {¶3}     Lomack arrived at the Flying J with his wife and children. Fister

approached Lomack's van on the driver's side. Upon approaching, Fister testified that

Lomack gave him 100 pills in exchange for $400.00. The undercover officers watching

this transaction were able to tell that something was going back and forth, but could not

specifically see the pills or the money.

        {¶4}     Shortly after the alleged transaction, Lomack exited his vehicle and

entered the gas station. Lieutenant Paul Cortright approached Lomack and asked him

to step outside where they could talk. Lieutenant Cortright testified that he advised

Lomack of his Miranda rights and Lomack waived those rights. During the ensuing

interview, Lomack admitted to selling the pills to Fister. Lomack later gave a written

statement admitting to trafficking in drugs. The pills were recovered and submitted for

testing, which indicated that they were the Schedule III version of Hydrocodone.
Licking County, Case No. 2012-CA-32                                                    3


      {¶5}   Lomack was indicted April 29, 2011 for Trafficking in Drugs (Hydrocodone)

in violation of R.C. 2925.03 (A)(1)(C)(2)(c). The indictment alleged that Lomack “did

knowingly sell, or offer to sell, Hydrocodone, a Schedule III Controlled Substance, in an

amount equal to or exceeding the bulk amount, but less than five times the bulk amount

of Hydrocodone, the said offense having occurred within the vicinity of a juvenile, in

violation of Section 2925.03(A)(1)(C)(2)(c) of the Ohio Revised Code, a felony of the

fourth degree."

      {¶6}   On June 6, 2011, the state filed a motion to amend the indictment to

reflect that the language and code section involved was for a felony of the third degree.

This motion alleged that the statement in the indictment that indicated that the charge

was “a felony of the fourth degree” was a typographical error. On June 7, 2011, the trial

court granted that motion and amended the indictment to reflect that the charge was a

felony of the third degree. On July 21, 2011, Lomack's original trial counsel filed a

"Motion to Vacate Previously Granted Motion to Amend Indictment" because he was not

given an opportunity to respond to the state’s motion to amend. The trial court denied

that motion on July 27, 2011.

      {¶7}   On February 15, 2012, Lomack filed a Motion to Suppress. The Court held

a suppression hearing that same day. During the hearing, Lieutenant Cortright admitted

that he did not have Lomack sign a written Miranda waiver, nor did he record his

conversation with Lomack.

      {¶8}   Lomack testified that he was not read his Miranda rights. Lomack further

testified that, upon approaching him, Lieutenant Cortright demanded to know where the

money was and reached into Lomack's pocket and pulled out a $20.00 bill. Lomack
Licking County, Case No. 2012-CA-32                                                     4


testified that Lieutenant Cortright told him to "step outside." Once outside, Lomack

testified that Lieutenant Cortright threatened Lomack and his children, telling Lomack

that if he did not sign a statement, Lieutenant Cortright would lock up Lomack's wife and

send the kids to Children's Services.

      {¶9}     At the conclusion of the hearing, the trial court overruled Lomack’s motion

to suppress.

      {¶10} Lomack was found guilty of Trafficking in Drugs after a jury trial. The jury

also returned two special findings. They found that the amount of the drugs involved

was equal to or in excess of the bulk amount but less than five times the bulk amount.

The jury also found that the offense was committed in the vicinity of a juvenile. Lomack

was sentenced immediately following the jury trial to a term of 30 months in prison.

                                  ASSIGNMENTS OF ERROR

      {¶11} Lomack raises four assignments of error,

      {¶12} “I. THE TRIAL COURT COMMITTED A REVERSIBLE ERROR WHEN

THE COURT GRANTED THE STATE OF OHIO'S JUNE 6, 2011 MOTION TO AMEND

THE INDICTMENT.

      {¶13} “II. THE COURT COMMITTED A REVERSIBLE ERROR BY NOT

PROVIDING MR. LOMACK AN OPPORTUNITY TO RESPOND TO THE STATE'S

MOTION TO AMEND THE INDICTMENT.

      {¶14} “III. THE TRIAL COURT COMMITTED A PREJUDICIAL ERROR IN

DENYING DEFENDANT-APPELLANT'S MOTION TO SUPPRESS REGARDING

DEFENDANT'S STATEMENTS MADE TO AUTHORITIES AT THE SCENE OF THE

INCIDENT.
Licking County, Case No. 2012-CA-32                                                         5


       {¶15} “IV. DEFENDANT-APPELLANT’S CONVICTION WAS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE.”

                                               I. & II.

       {¶16} Lomack’s first and second assignments of error raise common and

interrelated questions; therefore, we will address the arguments together.

       {¶17} Section 10, Article I of the Ohio Constitution states: “[N]o person shall be

held to answer for a capital, or otherwise infamous crime, unless on presentment or

indictment of a grand jury.” This constitutional provision “guarantees the accused that

the essential facts constituting the offense for which he is tried will be found in the

indictment of the grand jury. Where one of the vital elements identifying the crime is

omitted from the indictment, it is defective and cannot be cured by the court as such a

procedure would permit the court to convict the accused on a charge essentially

different from that found by the grand jury.” State v. Headley, 6 Ohio St.3d 475, 478-

479, 453 N.E.2d 716(1983).

       {¶18} Crim.R. 7(D) supplements this constitutional right by specifying when a

court may permit an amendment to an indictment: “The court may at any time before,

during, or after a trial amend the indictment, information, complaint, or bill of particulars,

in respect to any defect, imperfection, or omission in form or substance, or of any

variance with the evidence, provided no change is made in the name or identity of the

crime charged.”

       {¶19} A trial court's decision allowing an amendment that changes the name or

identity of the offense charged constitutes reversible error regardless of whether the

accused can demonstrate prejudice. State v. Honeycutt, 2nd Dist. No. 19004, 2002-
Licking County, Case No. 2012-CA-32                                                             6


Ohio-3490. When an amendment is allowed that does not change the name or identity

of the offense charged, the accused is entitled to a discharge of the jury or a

continuance, “unless it clearly appears from the whole of the proceedings that the

defendant has not been misled or prejudiced by the defect or variance in respect to

which the amendment is made.” Honeycutt, quoting, Crim.R. 7(D). A trial court's

decision to permit the amendment of an indictment is reviewed under an abuse of

discretion standard. State v. Beach, 148 Ohio App.3d 181, 2002-Ohio-2759, 772 N.E.2d

677, ¶23, appeal not allowed, 96 Ohio St.3d 1516, 2002-Ohio-4950. “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, 450 N.E.2d 1140(1983), quoting State v. Adams, 62 Ohio St.2d 151,

157, 404 N.E.2d 144(1980). To demonstrate error, defendant must show not only that

the trial court abused its discretion, but that the amendment prejudiced his defense.

Blakemore.

         {¶20} In the present matter, both the original and the amended indictments

properly informed Lomack that he was charged with selling or offering to sell

"Hydrocodone, a Schedule III Controlled Substance, in an amount equal to or exceeding

the bulk amount but less than five times the bulk amount of Hydrocodone, said offense

having     occurred   within   the   vicinity   of   a   juvenile,   in   violation   of   Section

2925.03(A)(1)(C)(2)(c)."

         {¶21} The function of an indictment is to give adequate notice to the defendant

of what he is being charged with and a fair chance to defend. State v. Sellards (1985),

17 Ohio St.3d 169, 170, 478 N.E.2d 781(1985). A criminal indictment serves two
Licking County, Case No. 2012-CA-32                                                       7


purposes. First, an indictment “compels the government to aver all material facts

constituting the essential elements of an offense,” providing the accused adequate

notice and the opportunity to defend the charges. State v. Childs, 88 Ohio St.3d 194,

198, 724 N.E.2d 781(2000). Second, the indictment, “by identifying and defining the

offense, * * * serves to protect the accused from future prosecutions for the same

offense.” Id. In this case, the indictment made Lomack aware that he was facing an

enhanced penalty for trafficking in excess of the bulk amount and in the presence of a

minor.

         {¶22} The misnumbering of the statute in an indictment does not invalidate the

indictment. State ex rel. Dix v. McAllister, 81 Ohio St.3d 107, 108, 1998-Ohio-646, citing

State v. Morales, 32 Ohio St.3d 252, 254, 513 N.E.2d 267(1987). Crim.R. 7(B) provides,

in part, “Error in the numerical designation or omission of the numerical designation

shall not be grounds for dismissal of the indictment or information, or for reversal of a

conviction, if the error or omission did not prejudicially mislead the defendant.”

         {¶23} In the case at bar, Lomack was not prejudiced in preparing his defense

because he was given adequate notice of what the state intended to prove at trial. State

v. Earle, 120 Ohio App.3d 457, 467, 698 N.E.2d 440(1997). Accordingly, the trial court

correctly concluded that Lomack would not be prejudiced from the amendment. From

consideration of the whole proceedings, this Court finds that no failure of justice resulted

from the amendment of the indictment in Lomack’s case.

         {¶24} Lomack has failed to demonstrate how the result would be different had

he been given the opportunity to respond prior to the trial court granting the state’s

motion to amend the indictment.
Licking County, Case No. 2012-CA-32                                                       8


       {¶25} Lomack’s first and second assignments of error are overruled in their

entirety.

                                                III.

       {¶26} Lomack contends that the trial court erred by denying his motion to

suppress incriminating statements made during custodial interrogation because he had

not knowingly, voluntarily, and intelligently waived his Miranda rights. Specifically,

Lomack claims that he was threatened and coerced into confessing. Lomack further

contends that this version of events is supported by credible evidence.

       {¶27} Appellate review of a motion to suppress presents a mixed question of law

and fact. State v. Burnside, 100 Ohio St.3d 152, 154-155, 2003-Ohio-5372, 797 N.E.2d

71, ¶8. When ruling on a motion to suppress, the trial court assumes the role of trier of

fact and is in the best position to resolve questions of fact and to evaluate witness

credibility. See State v. Dunlap, 73 Ohio St.3d 308, 314, 652 N.E.2d 988(1995); State v.

Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). Accordingly, a reviewing court

must defer to the trial court's factual findings if competent, credible evidence exists to

support those findings. See Burnside, supra; Dunlap, supra. However, once an

appellate court has accepted those facts as true, it must independently determine as a

matter of law whether the trial court met the applicable legal standard. See Burnside,

supra, citing State v. McNamara, 124 Ohio App.3d 706, 707 N.E.2d 539(4th Dist. 1997);

See, also, United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740(2002);

Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911(1996). That

is, the application of the law to the trial court's findings of fact is subject to a de novo

standard of review. Ornelas, supra. Moreover, due weight should be given “to
Licking County, Case No. 2012-CA-32                                                    9


inferences drawn from those facts by resident judges and local law enforcement

officers.” Ornelas, supra at 698, 116 S.Ct. at 1663.

      {¶28} In order for an accused's statement to be admissible at trial, police must

have given the accused a Miranda warning if there was a custodial interrogation.

Miranda v. Arizona, 384 U.S. 436, 471, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966). If that

condition is established, the court can proceed to consider whether there has been an

express or implied waiver of Miranda rights. Id., at 476, 384 U.S. 436, 86 S.Ct. 1602, 16

L.Ed.2d 694.

      {¶29} Whenever the state bears the burden of proof in a motion to suppress a

statement allegedly obtained in violation of the Miranda doctrine, the state need prove

waiver only by a preponderance of the evidence. Lego v. Twomey, 404 U.S. 477, 92

S.Ct. 619, 30 L.Ed.2d 618(1972); Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93

L.Ed.2d 473(1986). The question of voluntariness necessarily turns on the totality of

circumstances. Boulden v. Holman, 394 U.S. 478, 480, 89 S.Ct. 1138, 1139, 22 L.Ed.2d

433(1969).

      {¶30} A suspect's decision to waive his Fifth Amendment privilege is made

voluntarily absent evidence that his will was overborne and his capacity for self-

determination was critically impaired because of coercive police conduct. Colorado v.

Spring, 479 U.S. 564, 574, 107 S.Ct. 851, 93 L.Ed.2d 954. See, also, State v. Black, 48

Ohio St.2d 262, 358 N.E.2d 551(1976), paragraph four of the syllabus, vacated in part

438 U.S. 910, 98 S.Ct. 3134, 57 L.Ed.2d 1154(1978). Thus, coercive police activity is a

necessary predicate to finding that a confession is not voluntary within the Fifth

Amendment, on which Miranda was based. Colorado v. Connelly, 479 U.S. at 170, 107
Licking County, Case No. 2012-CA-32                                                           10


S.Ct. 515, 93 L.Ed.2d 473. Evidence of use by the interrogators of an inherently

coercive tactic (e.g., physical abuse, threats, deprivation of food, medical treatment, or

sleep) will trigger the totality of the circumstances analysis. State v. Clark, 38 Ohio St.3d

252, 261, 527 N.E.2d 844, 854(1988).

       {¶31} In State v. Brown, 100 Ohio St.3d 51, 2003-Ohio-5059, 796 N.E.2d 506,

the Ohio Supreme Court noted,

              [i]t is well established that at a suppression hearing, “the evaluation

       of evidence and the credibility of witnesses are issues for the trier of fact.”

       State v. Mills (1992), 62 Ohio St.3d 357, 366, 582 N.E.2d 972, citing State

       v. Fanning (1982), 1 Ohio St.3d 19, 20, 1 OBR 57, 437 N.E.2d 583. The

       trial court was free to find the officers' testimony more credible than

       appellant's. We therefore defer to the trial court's ruling regarding the

       weight and credibility of witnesses. State v. Moore (1998), 81 Ohio St.3d

       22, 31, 689 N.E.2d 1.

Brown, ¶15, 689 N.E.2d 1. The trier of fact "has the best opportunity to view the

demeanor, attitude, and credibility of each witness, something that does not translate

well on the written page." Davis v. Flickinger, 77 Ohio St.3d 415, 1997-Ohio-260, 674

N.E.2d 1159. Ultimately, “the reviewing court must determine whether the appellant or

the appellee provided the more believable evidence, but must not completely substitute

its judgment for that of the original trier of fact ‘unless it is patently apparent that the fact

finder lost its way.’” State v. Pallai, 7th Dist. No. 07 MA 198, 2008–Ohio–6635, ¶31,

quoting State v. Woullard, 158 Ohio App.3d 31, 2004–Ohio–3395, 813 N.E.2d 964(2nd

Dist.), ¶81. In other words, “[w]hen there exist two fairly reasonable views of the
Licking County, Case No. 2012-CA-32                                                     11


evidence or two conflicting versions of events, neither of which is unbelievable, it is not

our province to choose which one we believe.” State v. Dyke, 7th Dist. No. 99 CA 149,

2002–Ohio–1152, at ¶13, citing State v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d

125(7th Dist. 1999).

       {¶32} Our review of the entire record convinces us that the evidence was

substantial enough for the trier of fact to have reasonably concluded that the state had

proved that Lomack was advised of his Miranda rights and knowingly, intelligently and

voluntarily waived those rights prior to speaking with the police.

       {¶33} Lomack’s third assignment of error is overruled.

                                                IV.

       {¶34} In his fourth assignment of error, Lomack maintains that his conviction is

against the manifest weight of the evidence.

       {¶35} Our review of the constitutional sufficiency of evidence to support a

criminal conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979), which requires a court of appeals to determine whether

“after viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Id.; see also, McDaniel v. Brown, 558 U.S. 120, 130 S.Ct. 665, 673, 175 L.Ed.2d

582(2010) (reaffirming this standard); State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-

1017, 926 N.E.2d 1239,¶146; State v. Clay, 187 Ohio App.3d 633, 2010-Ohio-2720,

933 N.E.2d 296, ¶68.

       {¶36} Weight of the evidence addresses the evidence's effect of inducing belief.

State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541(1997), superseded by
Licking County, Case No. 2012-CA-32                                                        12

constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio St.3d

89,1997-Ohio-355, 684 N.E.2d 668. 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. It indicates clearly to the jury that the party having the

burden of proof will be entitled to their verdict, if, on weighing the evidence in their

minds, they shall find the greater amount of credible evidence sustains the issue which

is to be established before them. Weight is not a question of mathematics, but depends

on its effect in inducing belief.” (Emphasis sic.) Id. at 387, 678 N.E.2d 541, quoting

Black's Law Dictionary (6th Ed. 1990) at 1594.

       {¶37} 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, 78 Ohio St.3d at 387, 678 N.E.2d 541, quoting Tibbs v. Florida,

457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). However, an appellate court

may not merely substitute its view for that of the jury, but must find that “‘the jury 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. Thompkins, 78 Ohio St.3d at 387,

quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist.

1983). Accordingly, reversal on manifest weight grounds is reserved for “‘the

exceptional case in which the evidence weighs heavily against the conviction.’” Id.

              “[I]n determining whether the judgment below is manifestly against

       the weight of the evidence, every reasonable intendment and every
Licking County, Case No. 2012-CA-32                                                  13


       reasonable presumption must be made in favor of the judgment and the

       finding of facts. * * *

              “If the evidence is susceptible of more than one construction, the

       reviewing court is bound to give it that interpretation which is consistent

       with the verdict and judgment, most favorable to sustaining the verdict and

       judgment.”

Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.

3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).

       {¶38} Lomack was found guilty of knowingly selling or offering to sell,

Hydrocodone, a Schedule III Controlled Substance, in an amount equal to or exceeding

the bulk amount but less than five times the bulk amount of Hydrocodone, said offense

having occurred within the vicinity of a juvenile.

       {¶39} A person acts knowingly, regardless of his or her purpose, when that

person is aware that his or her conduct will probably cause a certain result or will

probably be of a certain nature. R.C. 2901.22(B). It is necessary to look at all the

attendant facts and circumstances in order to determine if a defendant knowingly

possessed a controlled substance. State v. Teamer, 82 Ohio St.3d 490, 492, 696

N.E.2d 1049(1998).

       {¶40} For purposes of R.C. Chapter 2925, a sale is defined as follows: "'Sale'

includes delivery, barter, exchange, transfer, or gift, or offer thereof, and each

transaction of those natures made by any person, whether as principal, proprietor,

agent, servant, or employee." R.C. 2925.01(A) (incorporating definition found in R.C.

3719.01(AA)).
Licking County, Case No. 2012-CA-32                                                           14


       {¶41} Lomack arrived at the Flying J in a van accompanied by his wife and

minor children. Fister testified that he approached Lomack while Lomack was still

seated inside the van. Fister testified that Lomack sold him the drugs. Lomack admitted

to the police orally and in writing, that he sold the drugs to Fister. Those drugs were

recovered and submitted for testing, which indicated that they were the Schedule III

version of Hydrocodone. Undercover officers watched the transaction. Officers

observed the children inside the van as the transaction was occurring.

       {¶42} We believe that the state presented sufficient evidence from which a jury

could conclude, beyond a reasonable doubt, that Lomack committed the offense of

selling, or offering to sell, Hydrocodone, a Schedule III Controlled Substance, in an

amount equal to or exceeding the bulk amount but less than five times the bulk amount

of Hydrocodone, said offense having occurred within the vicinity of a juvenile.

       {¶43} Ultimately, “the reviewing court must determine whether the appellant or

the appellee provided the more believable evidence, but must not completely substitute

its judgment for that of the original trier of fact ‘unless it is patently apparent that the fact

finder lost its way.’” State v. Pallai, 7th Dist. No. 07 MA 198, 2008-Ohio-6635, ¶31,

quoting State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964, ¶

81(2nd Dist.). In other words, “[w]hen there exist two fairly reasonable views of the

evidence or two conflicting versions of events, neither of which is unbelievable, it is not

our province to choose which one we believe.” State v. Dyke, 7th Dist. No. 99 CA 149,

2002-Ohio-1152, ¶ 13, citing State v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d

125(7th Dist. 1999).
Licking County, Case No. 2012-CA-32                                                    15


       {¶44} We find that this is not an “‘exceptional case in which the evidence weighs

heavily against the conviction.’” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541,

quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717(1st Dist. 1983). The

jury as the trier of fact was in the best position to evaluate this competent, credible

evidence, and we will not substitute our judgment for that of the trier of fact. The jury

neither lost its way nor created a miscarriage of justice in convicting Lomack of selling,

or offering to sell, Hydrocodone, a Schedule III Controlled Substance, in an amount

equal to or exceeding the bulk amount but less than five times the bulk amount of

Hydrocodone, said offense having occurred within the vicinity of a juvenile.

       {¶45}   Lomack’s fourth assignment of error is overruled.

       {¶46}   For the foregoing reasons, the judgment of the Court of Common Pleas,

of Licking County, Ohio, is affirmed.

By Gwin, J.,

Delaney, P.J., and

Hoffman, J., concur




                                             _________________________________
                                             HON. W. SCOTT GWIN


                                             _________________________________
                                             HON. PATRICIA A. DELANEY


                                             _________________________________
                                             HON. WILLIAM B. HOFFMAN

WSG:clw 1211
[Cite as State v. Lomack, 2013-Ohio-5.]


               IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                    :
                                                 :
                            Plaintiff-Appellee   :
                                                 :
                                                 :
-vs-                                             :       JUDGMENT ENTRY
                                                 :
SAMUEL LOMACK, JR.                               :
                                                 :
                                                 :
                        Defendant-Appellant      :       CASE NO. 2012-CA-32




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas, of Licking County, Ohio, is affirmed. Costs to

appellant.




                                                     _________________________________
                                                     HON. W. SCOTT GWIN


                                                     _________________________________
                                                     HON. PATRICIA A. DELANEY


                                                     _________________________________
                                                     HON. WILLIAM B. HOFFMAN
