[Cite as State v. Stanford, 2018-Ohio-3961.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio,                                  :

                 Plaintiff-Appellee,            :              No. 16AP-873
                                                           (C.P.C. No. 16CR-5230)
v.                                              :
                                                        (REGULAR CALENDAR)
Keith D. Stanford,                              :

                 Defendant-Appellant.           :




                                          D E C I S I O N

                                   Rendered on September 28, 2018


                 On brief: Ron O'Brien, Prosecuting Attorney, and Seth L.
                 Gilbert, for appellee. Argued: Seth L. Gilbert.

                 On brief: Timothy Young, Ohio Public Defender, Victoria
                 Bader, and Timothy B. Hackett, for appellant. Argued:
                 Victoria Bader.

                   APPEAL from the Franklin County Court of Common Pleas

BROWN, P.J.
        {¶ 1} Keith D. Stanford, defendant-appellant, appeals from an order of the
Franklin County Court of Common Pleas, in which the court found him guilty of robbery,
a violation of R.C. 2911.02 and a second-degree felony; aggravated robbery with
specification, a violation of R.C. 2911.01 and a first-degree felony; two counts of
aggravated robbery, violations of R.C. 2911.01 and first-degree felonies; and burglary, a
violation of R.C. 2911.12 and a second-degree felony.
        {¶ 2} The underlying details of the crimes appellant committed are not relevant to
the issues on appeal. On April 25, 2016, a complaint was filed against appellant in the
Franklin County Juvenile Court in case No. 16JU-5284, alleging appellant committed
No. 16AP-873                                                                                2

three counts of aggravated robbery, which would be violations of R.C. 2911.01(A) and
first-degree felonies if committed by an adult. Subsequently, the State of Ohio, plaintiff-
appellee, filed a motion to relinquish jurisdiction, seeking a mandatory bindover to the
common pleas court ("adult court") or, in the alternative, discretionary bindover to adult
court, and amended the complaint to add a three-year firearm specification to each count.
         {¶ 3} On May 16, 2016, a second complaint was filed in the Franklin County
Juvenile Court in case No. 16JU-6221, alleging appellant committed burglary, which
would be a violation of R.C. 2911.12(A)(2) and a second-degree felony if committed by an
adult. Subsequently, the state filed a motion to relinquish jurisdiction in that case, seeking
a discretionary bindover to adult court.
         {¶ 4} On May 26, 2016, a third complaint was filed in case No. 16JU-6730,
alleging appellant committed robbery, which would be a violation of R.C. 2911.02(A)(2)
and a second-degree felony if committed by an adult. Subsequently, the state filed a
motion to relinquish jurisdiction in that case, seeking a discretionary bindover to adult
court.
         {¶ 5} On August 29, 2016, the juvenile court held a probable cause hearing in all
three cases. Because the aggravated robbery charges in case No. 16JU-5284 included a
firearm specification, those charges were subject to mandatory transfer to the common
pleas court, while in the two remaining cases appellant was entitled to an amenability
determination. A lengthy discussion took place between counsel, appellant, and
appellant's parents regarding, among other issues, whether appellant should accept a plea
agreement. Ultimately, pursuant to the plea agreement, appellant stipulated to probable
cause in all three cases and that he was not amenable to rehabilitation in the juvenile
system in case Nos. 16JU-6221 and 16JU-6730. The agreement indicated appellant would
plead guilty to a variety of charges, the court would dismiss several juvenile court cases,
and there was a joint recommendation that the common pleas court impose a jail
sentence of ten years. On September 15, 2016, the trial court issued entries relinquishing
jurisdiction in all three cases, with a mandatory bindover in case No. 16JU-5284 and
discretionary bindovers in the other two cases.
         {¶ 6} On September 26, 2016, an indictment was filed in the common pleas court,
charging appellant with multiple offenses. Appellant pled guilty to three counts of
No. 16AP-873                                                                             3

aggravated robbery, one count of robbery, one burglary count, and one three-year firearm
specification. On November 22, 2016, the trial court found appellant guilty on these
counts, and sentenced appellant to a total of ten years incarceration, consistent with the
jointly recommended sentence. Appellant appeals the trial court's judgment asserting the
following four assignments of error:
             [I.] The Franklin County Juvenile Court erred when it
             transferred Keith Stanford's case to criminal court because it
             did so without obtaining a knowing, intelligent, and voluntary
             waiver of Keith's right to an amenability determination.

             [II.] The juvenile court abused its discretion when it failed to
             appoint a guardian ad litem for Keith Stanford, in violation of
             Juv.R. 4(B)(2) and R.C. 215[1].281(A)(2).

             [III.] The juvenile court erred when it transferred Keith
             Stanford's case to criminal court because the mandatory
             transfer provisions in R.C. 2152.10(A)(2)(b) and
             2152.12(A)(1)(b) violate a child's right to due process and
             equal protection as guaranteed by the Fourteenth
             Amendment to the U.S. Constitution and Article I, Sections 2
             and 16, Ohio Constitution.

             [IV.] Keith Stanford was denied the effective assistance of
             counsel, in violation of the Sixth and Fourteenth Amendments
             to the U.S. Constitution; and, Article I, Section 10, Ohio
             Constitution.

      {¶ 7} In his first assignment of error, appellant argues the juvenile court erred
when it transferred his case to adult criminal court because it did so without obtaining a
knowing, intelligent, and voluntary waiver of his right to an amenability determination.
As to discretionary transfers, the court in State v. Jones, 8th Dist. No. 99044, 2013-Ohio-
3725, ¶ 7, summarized R.C. 2152.12(B) as follows:
             Under R.C. 2152.12(B), after a complaint has been filed
             charging a child with offenses that would be a felony if
             committed by an adult, a juvenile court may transfer
             jurisdiction to the general division of the common pleas court
             if it finds that (1) the child was 14 years of age or older at the
             time of the act; (2) there is probable cause that the child
             committed the act; and (3) the child is not amenable to
             rehabilitation within the juvenile justice system and, to ensure
             the safety of the community, the child should be subject to
             adult sanctions.
No. 16AP-873                                                                               4


       {¶ 8} Juv.R. 30(C) provides:

              Discretionary transfer. In any proceeding in which transfer of
              a case for criminal prosecution is permitted, but not required,
              by statute, and in which probable cause is found at the
              preliminary hearing, the court shall continue the proceeding
              for full investigation. The investigation shall include a mental
              examination of the child by a public or private agency or by a
              person qualified to make the examination. When the
              investigation is completed, an amenability hearing shall be
              held to determine whether to transfer jurisdiction. The criteria
              for transfer shall be as provided by statute.

       {¶ 9} Here, appellant claims his waiver of his right to an amenability
determination was invalid because the juvenile court did not engage in a meaningful
colloquy to determine whether his waiver was knowing, intelligent, and voluntary
consistent with State v. D.W., 133 Ohio St.3d 434, 2012-Ohio-4544, which also involved
the waiver of an amenability hearing in the context of a discretionary transfer. In D.W.,
the Supreme Court of Ohio found:
              An amenability hearing under R.C. 2152.12(B)(3) may be
              waived provided (1) the juvenile, through counsel, expressly
              states on the record a waiver of the amenability hearing and
              (2) the juvenile court engages in a colloquy on the record with
              the juvenile to determine that the waiver was made
              knowingly, voluntarily, and intelligently.

Id. at syllabus. By requiring counsel to enter the request, there can be no question that the
child was represented and assisted by counsel. Id. at ¶ 36. The colloquy allows the juvenile
court to fulfill its parens patriae duty by ensuring that the juvenile fully understands and
intentionally and intelligently relinquishes the right to an amenability hearing, and it
allows the judge to engage in a meaningful dialogue with the juvenile to guarantee that the
juvenile's due process rights are protected. Id. at ¶ 37.
       {¶ 10} In D.W., the Supreme Court compared the waiver of an amenability hearing
to the waiver of counsel and determined that a juvenile court must exercise a similar
degree of caution before accepting a child's waiver of an amenability hearing. Id. at ¶ 32.
In doing so, the court quoted from its decision in In re C.S., 115 Ohio St.3d 267, 2007-
Ohio-4919:
No. 16AP-873                                                                            5

              An effective waiver of the right to counsel by a juvenile must
              be voluntary, knowing, and intelligent. * * * In a juvenile court
              proceeding in which the judge acts as parens patriae, the
              judge must scrupulously ensure that the juvenile fully
              understands, and intentionally and intelligently relinquishes,
              the right to counsel.

              In the discharge of that duty, the judge is to engage in a
              meaningful dialogue with the juvenile. Instead of relying
              solely on a prescribed formula or script for engaging a juvenile
              during the consideration of the waiver * * * the inquisitional
              approach is more consistent with the juvenile courts' goals,
              and is best suited to address the myriad factual scenarios that
              a juvenile judge may face in addressing the question of waiver.

D.W. at ¶ 29, quoting C.S. at ¶ 106-07. The court in D.W. noted the holding in C.S. was
incorporated into the new Juv.R. 3. Juv.R. 3(D) sets forth the requirements for a child's
waiver of counsel as follows:
              Any waiver of the right to counsel shall be made in open court,
              recorded, and in writing. In determining whether a child has
              knowingly, intelligently, and voluntarily waived the right to
              counsel, the court shall look to the totality of the
              circumstances including, but not limited to: the child's age;
              intelligence; education; background and experience generally
              and in the court system specifically; the child's emotional
              stability; and the complexity of the proceedings. The Court
              shall ensure that a child consults with a parent, custodian,
              guardian, or guardian ad litem, before any waiver of counsel.
              However, no parent, guardian, custodian, or other person may
              waive the child's right to counsel.

       {¶ 11} In the present case, appellant admits he expressed his intent to waive his
right to an amenability hearing on the record and through counsel. However, he claims
the juvenile court did not engage in a meaningful colloquy and failed to fully apprise him
of the nature of the hearing, the rights he had, and the consequences of waiving those
rights before accepting his stipulation. Appellant contends the court never explained what
amenability meant, the purpose of the hearing, or the rights he was giving up by waiving
his right to an amenability determination. He claims the court failed to inform him that
R.C. 2152.12(C) requires the court to order and review a social investigation and mental
examination prior to conducting an amenability hearing, and it failed to inform him that
No. 16AP-873                                                                              6

R.C. 2152.12(B) requires the court to consider 17 enumerated factors and any other
relevant factors for and against transfer.
       {¶ 12} Initially, we note appellant concedes he did not raise this issue in the court
below; thus, the plain error standard of review applies. The Supreme Court explained the
plain error analysis to be applied in juvenile delinquency proceedings in State v. Martin,
___ Ohio St.3d ___, 2018-Ohio-3226:
               "Plain errors or defects affecting substantial rights may be
               noticed although they were not brought to the attention of the
               court." Crim.R. 52(B). "By its very terms, [Crim.R. 52(B)]
               places three limitations on a reviewing court's decision to
               correct an error" that was not raised below. State v. Barnes,
               94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240 (2002).
               First, an error, "i.e., a deviation from a legal rule," must have
               occurred. Id., citing State v. Hill, 92 Ohio St.3d 191, 200,
               2001-Ohio-141, 749 N.E.2d 274 (2001), citing United States v.
               Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508
               (1993). Second, the error complained of must be plain—that
               is, it must be "an 'obvious' defect in the * * * proceedings." Id.,
               quoting State v. Sanders, 92 Ohio St.3d 245, 257, 2001-Ohio-
               189, 750 N.E.2d 90 (2001), citing State v. Keith, 79 Ohio St.3d
               514, 518, 1997-Ohio-367, 684 N.E.2d 47 (1997). "Third, the
               error must have affected 'substantial rights.' We have
               interpreted this * * * to mean that the trial court's error must
               have affected the outcome" of the proceedings. Id.; see also
               [State v. Morgan, 153 Ohio St.3d 196, 2017-Ohio-7565, ¶ 50-
               51.]

Id. at ¶ 28.

       {¶ 13} Here, the state presents two main counter arguments: (1) appellant did not
"waive" the amenability hearing but, instead, "stipulated" to amenability; thus, the court,
in fact, held an amenability hearing and there was no need to address appellant and
conduct a colloquy regarding his waiver of an amenability determination, and (2) even if a
colloquy were required, the colloquy here was sufficient under D.W.
       {¶ 14} For purposes of this appeal, we will assume arguendo that a colloquy, like
that discussed in D.W., was required and address appellant's contentions on that
argument. On this issue, the state counters the juvenile court engaged in a meaningful
dialogue with appellant. The state asserts the colloquy was extensive and appropriate
No. 16AP-873                                                                              7

considering appellant agreed to stipulations in order to facilitate a favorable plea
agreement in adult court.
       {¶ 15} We agree with the state. At the hearing, the court began by asking appellant
if he had any questions regarding what was happening that day, and appellant replied he
did not. The court then asked if he understood the ramifications of the probable cause
stipulation for the mandatory bindover case, and appellant said he did. The court
explained that, once boundover, the adult court could do whatever it wanted, although it
usually gave great deference to agreements reached in the juvenile court. At this juncture,
appellant's father asked to speak to the court. His father complained about the ways the
court had dealt with appellant in the past and the terms of the offered plea agreement.
The court indicated to appellant's father that the court's job at the hearing was to try to
figure out that appellant understood what was happening. The court then told the
parents, appellant, and his attorney to discuss the plea in a conference room. After coming
back from the meeting, the court asked appellant whether he intended to accept the plea
agreement and he said he did. He denied that anyone had forced or threatened him into
accepting the plea agreement. The court asked appellant if he understood that if he
accepted the plea he was not going to have the hearing, the state would not be forced to
establish probable cause, he would not be able to call witnesses, he would not be able to
cross-examine the state's witnesses, he was testifying against his own interest, and an
appeal was not likely, and appellant said he understood.
       {¶ 16} Specifically with regard to the discretionary bindover cases, the court stated
"I hate to beat the dead horse but you understand that the way this agreement has been
proposed that two of these would be dismissed, you'd be admitting that you're not capable
of rehabilitation in the juvenile system and you would be having all - - one, two, five of
these counts transferred to the adult court for trial." (Aug. 29, 2016 Tr. at 18.) Appellant
replied he understood. He also stated he understood that the joint recommendation for
the five counts would be ten years in adult prison. The court then asked if appellant had
any questions or did not understand any words used. Appellant replied that he had no
questions and understood the court's explanation.
       {¶ 17} After reviewing the dialogue between the trial court and appellant under the
plain error standard of review, and under the totality of the circumstances, we find the
No. 16AP-873                                                                              8

trial court's colloquy here was sufficient under D.W. The court, through its conversation
with appellant, sufficiently ensured appellant's waiver of the right to an amenability
hearing was made knowingly and intelligently and was a voluntary relinquishment of a
known right. The trial court's dialogue was meaningful, and the trial court utilized the
proper inquisitional approach. Initially, appellant was 16 years old and had prior
experience in the juvenile justice system. There was no indication during the hearing that
appellant had any intellectual or learning deficits that would have prevented his
understanding of the court's statements. Also, the trial court granted appellant time to
speak with his parents and attorney in a conference room about the situation and his
decisions during the hearing. In addition, the trial court explained to appellant that he
was admitting he was not capable of rehabilitation in the juvenile system and would be
having his charges transferred to adult court. Appellant stated he understood and he had
no questions. See State v. J.T.S., 10th Dist. No. 14AP-516, 2015-Ohio-1103, ¶ 31
(stipulation of probable cause was knowing, intelligent, and voluntary waiver of right to a
probable cause hearing when court personally addressed appellant and informed him that
by entering into a stipulation, the case would be transferred to adult court). Appellant's
counsel also assured the court that he had discussed the matter with appellant, and
appellant understood, stating "I'm confident that my client has gone -- we've gone around
and around with this. I'm confident that he understands what he's doing." (Aug. 29, 2016
Tr. at 13.) (stipulation of probable cause was knowing, intelligent, and voluntary waiver of
right to a probable cause hearing when appellant said he had an opportunity to discuss
the proceedings with counsel). Thus, the transcript contains a clear indication appellant
understood he had a right to an amenability hearing and he intended to waive that right.
In response to the trial court's questions, appellant also indicated he understood he would
not be able to present evidence or question the state's witnesses. We also note appellant
presents no authority for the proposition the trial court was required to define
"amenability" or discuss many of the other warnings appellant suggests. See also J.T.S. at
¶ 31. (juvenile court not required to provide the juvenile with a legal definition of
"probable cause" at bindover hearing). Appellant specifically indicated he had no
questions regarding the definition of any of the words the court used. Therefore, based on
the totality of the circumstances and pursuant to a plain error standard of review, the
No. 16AP-873                                                                                9

court's colloquy with appellant satisfied the requirement the court ensure that appellant's
waiver was knowing, intelligent, and voluntary. We overrule appellant's first assignment
of error.
        {¶ 18} Appellant argues in his second assignment of error the juvenile court
abused its discretion when it failed to appoint a guardian ad litem for him in violation of
Juv.R. 4(B)(2) and R.C. 2151.281(A)(2). Juv.R. 4(B)(2) provides:
               Guardian ad litem; when appointed. The court shall appoint a
               guardian ad litem to protect the interests of a child or
               incompetent adult in a juvenile court proceeding when:

               ***

               (2) The interests of the child and the interests of the parent
               may conflict.

        {¶ 19} R.C. 2151.281(A)(2) provides:

               The court shall appoint a guardian ad litem, subject to rules
               adopted by the supreme court, to protect the interest of a child
               in any proceeding concerning an alleged or adjudicated
               delinquent child or unruly child when either of the following
               applies:

               ***

               (2) The court finds that there is a conflict of interest between
               the child and the child's parent, guardian, or legal custodian.

        {¶ 20} Appellant failed to raise this issue in the court below, so he has waived all
but plain error. As explained above, for a court to find plain error in a juvenile
delinquency case, an appellant must establish (1) a deviation from a legal rule, (2) the
error was obvious, and (3) the error affected the outcome of the proceedings. Martin at
¶ 28.
        {¶ 21} Juv.R. 4(B) does not require an actual conflict of interest to trigger the need
for a guardian ad litem. State v. Simmonds, 10th Dist. No. 14AP-1065, 2015-Ohio-4460,
¶ 10, citing In re Sappington, 123 Ohio App.3d 448, 453 (2d Dist.1997). " '[T]he juvenile
court is in the best position to weigh the relevant facts in determining whether a potential
conflict of interest exists between the parent and [the] child.' " Id., quoting Sappington at
453-54.
No. 16AP-873                                                                             10

       {¶ 22} The presence of counsel is a factor to consider in appointing a guardian ad
litem. Id. at ¶ 11. " 'In evaluating the need for a guardian ad litem, courts have also
considered whether the minor was represented by counsel. * * * A juvenile court should
be more sensitive to potential conflicts of interest under Juv.R. 4(B)(2) when there is no
other person present to protect the rights and interests of the minor.' " Id., quoting
Sappington at 455. The danger of a conflict heightens when the parent has sought the aid
of the court against the child, such as when the parent files charges against the child,
because the interests of the parent may no longer be consistent with a role that properly
protects the child's rights. Sappington at 454. In that case, the parent may have an
interest, wholly apart from the child's best interest, in committing the child to another's
authority. Id. Similarly, the appointment of a guardian ad litem may be necessary when a
parent is the custodian of both the victim and the alleged juvenile perpetrator. In re T.B.,
5th Dist. No. 2015AP050022, 2016-Ohio-575, ¶ 44, citing In re Sargent, 5th Dist. No. 00
CA 91 (Aug. 31, 2001). A conflict may also be suggested when a parent argues against legal
representation for the child or actions that might increase the parent's financial
obligations. Sappington at 455. "A parent may clearly have her own agenda, or be
advocating her own best interest, which may or may not also be the child's." In re
Howard, 119 Ohio App.3d 201, 206 (1st Dist.1997). Still, even when it is a parent bringing
a charge against a child, there may be no conflict when the parent does not attempt to
persuade the court to act in any manner inconsistent with the child's interests, such as
urging a harsher punishment that might keep the child away from the parent.
Sappington at 454-55.
       {¶ 23} In the present case, during the hearing, while the trial court was asking
appellant if he understood the consequences of his stipulation and plea agreement,
appellant's father asked to speak. He told the trial court that when appellant was before
the juvenile court two years before, the father told the court appellant had problems that
needed addressed through counseling, but the court did nothing to address them, instead
sending him to a camp he deemed inadequate. He protested that the current plea
agreement, which was for ten years imprisonment at a correctional facility, would not
help him. When the trial court told him that appellant could take his chances with a trial,
appellant's father wondered if the judge had the power to prevent him from being
No. 16AP-873                                                                              11

boundover and send him somewhere besides adult prison. Appellant's mother also stated
that the parents did not agree with the ten-year sentence in the plea agreement. His father
believed appellant had been coerced to accept the agreement. The judge then allowed
appellant, his parents, and his attorney to meet in a conference room. When they
returned, appellant told the court he wanted to accept the plea agreement. Although
appellant's father interrupted the court and stated he believed appellant had been coerced
into accepting the agreement, when the judge admonished the father that it was
appellant's decision, the father said "[i]t was ours." (Aug. 29, 2016 Tr. at 16.)
       {¶ 24} After reviewing the relevant case law and the transcript of the hearing, we
find the trial court did not commit plain error when it did not appoint a guardian ad litem
for appellant. Although appellant's parents did not agree that ten years was a fair sentence
for the crimes he committed, and they expressed frustration with the court's perceived
rehabilitative failures in proceedings two years prior, the parents had no conflict of
"interest" with appellant. Appellant's parents desired the best outcome for appellant,
which, in this case was either not being boundover or receiving a less severe sentence in
the plea agreement. At no time did appellant's parents actually state they did not want
appellant to accept the ten-year plea agreement. Indeed, after meeting with appellant and
his counsel, the parents suggested to the court that the decision to accept the plea
agreement was "ours." Viewing the parents' sentiments as a whole, it is clear they were
motivated not by any personal agenda or gain but by their sincere desire to protect
appellant's interest and obtain the best possible outcome for him. In other words,
appellant's and his parents' interests were aligned. Again, the dissatisfaction for
appellant's parents was more with the judicial system generally, appellant's lack of
rehabilitation, and the length of the term for a 16 year old. For these reasons, we find the
present circumstances lacked the potential for a conflict of interest between appellant and
his parents necessary to require the court to appoint a guardian ad litem for appellant. For
these reasons, we overrule appellant's second assignment of error.
       {¶ 25} Appellant argues in his third assignment of error the juvenile court erred
when it transferred case No. 16JU-5284 to adult criminal court because the mandatory
transfer provisions in R.C. 2152.10(A)(2)(b) and 2152.12(A)(1)(b) violate a child's right to
due process and equal protection as guaranteed by the Fourteenth Amendment to the
No. 16AP-873                                                                              12

United States Constitution and Article I, Sections 2 and 16, Ohio Constitution. However,
in State v. Aalim, 150 Ohio St.3d 489, 2017-Ohio-2956, the Supreme Court held that "the
mandatory bindover of certain juvenile offenders under R.C. 2152.10(A)(2)(b) and
2152.12(A)(1)(b) complies with due process and equal protection as guaranteed by the
Ohio and United States Constitutions." Id. at ¶ 38. Therefore, based on Aalim, we overrule
appellant's third assignment of error.
       {¶ 26} Appellant argues in his fourth assignment of error he was denied the
effective assistance of counsel, in violation of the Sixth and Fourteenth Amendments to
the United States Constitution and Article I, Section 10, of the Ohio Constitution. In order
to prevail on a claim of ineffective assistance of counsel, a defendant must show trial
counsel's performance fell below an objective level of reasonable representation and that
the defendant suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668
(1984).
       {¶ 27} Here, appellant argues his trial counsel was ineffective for failing to raise a
number of objections before the juvenile court previously raised in assignments of error
one through three: the juvenile court's failure to engage in a meaningful dialogue with
appellant prior to accepting his amenability stipulation, the juvenile court's failure to
appoint a guardian ad litem, and the juvenile court's unconstitutional transfer of the case
to adult criminal court. However, the failure to object to error alone ordinarily is not
enough to sustain a claim of ineffective assistance of counsel. State v. Holloway, 38 Ohio
St.3d 239 (1988). Furthermore, we have already concluded the arguments posed by
appellant here lack merit and, as a result, an objection on those grounds would not likely
have been successful. Therefore, for these reasons, we find trial counsel was not
ineffective for failing to raise those objections, and we overrule appellant's fourth
assignment of error.
       {¶ 28} Accordingly, appellant's four assignments of error are overruled, and the
judgment of the Franklin County Court of Common Pleas is affirmed.
                                                                       Judgment affirmed.

                       DORRIAN and LUPER SCHUSTER, JJ., concur.

                               ____________________
