[Cite as State v. Smith, 2013-Ohio-2627.]


                      IN THE COURT OF APPEALS OF OHIO
                         FOURTH APPELLATE DISTRICT
                            WASHINGTON COUNTY

STATE OF OHIO,                 :
                               :
     Plaintiff-Appellee,       : Case No. 12CA9
                               :
     vs.                       :
                               : DECISION AND JUDGMENT
GERALD A. SMITH,               : ENTRY
                               :
    Defendant-Appellant.       : Released: 06/07/13
_____________________________________________________________
                         APPEARANCES:

George J. Cosenza, Parkersburg, West Virginia, for Appellant.

James E. Schneider, Washington County Prosecutor, and Kevin A. Rings,
Washington County Assistant Prosecuting Attorney, Marietta, Ohio, for
Appellee.
_____________________________________________________________

McFarland, P.J.

        {¶1} Gerald A. Smith appeals his conviction in the Washington

County Court of Common Pleas after a jury found him guilty of one count of

aggravated murder, two counts of aggravated burglary, two counts of

aggravated robbery, grand theft of a firearm, grand theft of a motor vehicle,

grand theft from an elderly person, and tampering with evidence. On appeal,

Smith contends that (1) he was denied effective assistance of counsel, and

(2) the trial court erred by denying his Rule 29 motion to dismiss the charge

of tampering with evidence. Upon review, we find Appellant was not
Washington App. No. 12CA9                                                      2


denied effective assistance of counsel. We further find the trial transcript

contains evidence from which any rational trier of fact could have found the

essential elements of tampering with evidence proven beyond a reasonable

doubt. As such the trial court did not err in failing to grant the Crim.R.29

motion to dismiss. Accordingly, we overrule both assignments of error and

affirm the judgment of the trial court.

                                    FACTS

      {¶2} Homer Rogers, age 66, was murdered in his home on Burnett

Road in Cutler, Ohio, apparently while he slept. On the morning of June 19,

2010, he was found on a living room couch, covered by a blanket, with a

knife wound to the right side of his neck. At the time of his death, Rogers’

daughter Cynthia Lynn Rogers (hereinafter “Lynn”) and her children also

resided in the home on Burnett Road. Lynn had been separated from her

husband, Gerald Smith, Appellant herein, for several weeks. Appellant was

living in the marital home on Kenny Road, approximately 2-3 miles from the

Rogers’ home. Appellant and his wife had been married approximately 20

years and had a violent history.

      {¶3} Soon after decedent’s body was discovered, Appellant became

the prime suspect in the murder investigation. That same day, decedent’s

red pickup truck was found in Athens County at the home of Allen Shane
Washington App. No. 12CA9                                                       3


Lucas, Appellant’s cousin and close friend. A knife with a reddish- brown

substance which appeared to be blood on the blade was found in the center

console of the red truck. Also on June 19th, Athens County 911 received a

phone call from Shane Lucas saying Appellant was with him at Strouds Run

State Park in Athens County, and Appellant had confessed to killing Homer

Rogers. Later, on June 19th, Appellant was tased and apprehended at

Stroud’s Run State Park.

      {¶4} Appellant was indicted in July 2010 for the aggravated murder

of Homer Rogers; two counts of aggravated burglary; two counts of

aggravated robbery; grand theft of a firearm; grand theft of a motor vehicle;

grand theft from an elderly person, and tampering with evidence. Appellant

entered pleas of not guilty by reason of insanity. In September 2010,

Appellant was found not competent to stand trial, not capable of

understanding the nature and severity of charges against him, and not

capable of assisting his attorney due to his severe mental illness. In March

2011, Appellant was found competent to stand trial. In a status report

regarding competency restoration pursuant to R.C. 2945.38(F), Dr. Dennish

M. Eshbaugh, PhD, noted hospital records revealed Appellant had been

considered to be malingering symptoms of mental illness and memory

deficits. Appellant proceeded to trial on November 28, 2011.
Washington App. No. 12CA9                                                       4


      {¶5} At trial, the State’s first witness was Lynn Rogers. She testified

on June 18, 2010, her son Cody Smith informed her Appellant was calling

her father’s house repeatedly. Cody said “Pap” [Homer Rogers] was getting

upset and was going to call the law and have Appellant arrested if the calls

didn’t stop. Ms. Rogers testified she then called Appellant, sometime

between 11:30 and 12:00 p.m., and told him to stop calling. During the

course of that conversation, Lynn said to Appellant: “I’m not coming home.

I’m done. I did it for 20 years. Our kids are grown and they can take care of

themselves.” Appellant then asked her where she was and who she was

with. Lynn testified she responded to the effect it was “none of his fucking

business where I was at and it wasn’t none of his business who I was with.”

She then hung up the phone. Lynn stayed with a friend, Wayne McClain,

that evening and did not return to her father’s house until 7:30 a.m. on June

19th. Her father’s red pickup truck was not there.

      {¶6} Lynn Rogers also testified when she returned home, she took a

shower and proceeded to prepare a Father’s Day dinner for her father. Her

father appeared to be asleep on the living room couch. Cody Smith was

sleeping on a loveseat in the same room. Jessica Trus, Lynn’s

granddaughter, was sleeping on the floor in front of the television. Lynn

also noticed her dog Bubba was in the house. She was surprised to see the
Washington App. No. 12CA9                                                       5


dog because she had not seen him since she left her husband in April. Lynn

and Jessica proceeded to take the dog back to Appellant’s trailer, but

dropped him off some distance from the trailer so Appellant would not see

her. When she passed the trailer, she noticed her father’s car trailer sitting in

the driveway.

      {¶7} Lynn and Jessica returned home. Lynn began working in the

kitchen when her daughter Tana Rogers told her to “go check on Pap.”

When Lynn spoke to him and touched his foot, her father did not move and

he was not breathing. Lynn testified she pulled his blanket down and blood

was everywhere. She called 911 around 9:30 a.m.

      {¶8} At trial, Lynn also described her “rocky” marriage to Appellant.

She testified she stayed with him for the sake of the children and “so he

wouldn’t kill my dad.” She testified he consumed alcohol heavily over the

years. Lynn further testified to damaging statements allegedly made by

Appellant. These statements describing threats and abuse were not

provided in discovery nor objected to at trial. Essentially, Rogers testified

during the course of their approximately 20 years of marriage, Appellant on

various occasions shot at her; kicked, punched, bit, and slapped her; knocked

her to the ground; and pulled her by her hair. She testified the abuse began

in 1989. She further testified she left Appellant approximately 15 times over
Washington App. No. 12CA9                                                         6


the years, but always returned because he threatened her or her family. She

testified he said “Somebody in your family’s going to fucking die.” During

her testimony, Lynn Rogers identified State’s Exhibit B, a single knife;

State’s Exhibit C, a 22 revolver her father kept on the living room wall; and

State’s Exhibit D, two additional knives. Lynn Rogers testified Appellant

and she bought the three knives in Athens County three months prior.

       {¶9} Kimberly Schaefer, Homer Rogers’ other daughter, also

testified at trial. Ms. Schaefer and her family lived next door to the decedent.

She testified at the time of his death, her father owned a red 2005 GMC

Sierra pickup truck. The truck was also equipped with a topper, brush

guard, and a trailer hitch. A car trailer was attached to the truck. Her father

had been at her house on the night of June 18, 2010, until approximately

11:30 p.m. When he left and walked home, his truck and trailer were in his

yard. When she awoke around 7:15 a.m. the next morning, she noticed her

father’s red pickup truck was gone. During her testimony, Ms. Schaefer

also identified her father’s 22 revolver.

      {¶10} The State also presented testimony from Robert Shott, a

forensic pathologist with the Montgomery County Coroner’s Office. Dr.

Shott performed the autopsy of Homer Roger’s body and determined that the

cause of death was a single sharp-force injury to the neck. He described a
Washington App. No. 12CA9                                                       7


stab wound on the right side of the decedent’s neck, approximately one-half

inch. He testified the wound severed the spinal cord at the C-1 and C2

levels, which in effect, lead to instant and complete paralysis of the body

below the neck. In Dr. Shott’s opinion, the stab wound was likely caused by

a single-edged knife, with only one sharpened side. Dr. Shott opined that

State’s Exhibit B, a box containing a single-edged knife, was consistent with

the type of weapon that could have caused the wound on Homer Rogers.

Dr. Shott also opined that for the injury to get through the decedent’s skin,

muscle, and bones, it would have taken a significant amount of force. Dr.

Shott testified that there was no evidence of injuries on the decedent’s hands

or forearms, or any defensive- type wounds which would indicate a struggle

or fight with another person.

      {¶11} The next State’s witness was Bryan White with the Ohio

Bureau of Criminal Investigation (BCI). He investigated decedent’s red

truck at the Sheriff’s Office. A wooden-handled knife with a five-inch blade

was found in the center console of the truck. It had a reddish- brown

substance that was later positively identified to be blood. The knife was

photographed, packaged, and submitted to BCI for further examination. Mr.

White identified the knife as State’s Exhibit B.
Washington App. No. 12CA9                                                         8


      {¶12} Tim Jenkins also testified on behalf of the State. Mr. Jenkins is

a distant relative of Appellant. He testified to seeing Appellant at a party in

Chesterhill, Ohio (Morgan County) around 12:30 or 1:00 a.m. on June 19th.

Mr. Jenkins saw Appellant drive up in a Ford diesel truck with a brush

guard. Mr. Jenkins testified Appellant appeared to have been drinking. He

was able to walk across a flat area 50-75 feet to get to Jenkins. He testified

Appellant did not appear so impaired that he could not drive.

      {¶13} Scott Parks, a detective with the Washington County Sheriff’s

Office also testified he was at the Rogers’ home to assist with the

investigation. He was assigned to stand by the crime scene and coordinate

with BCI agents. He arrived at approximately 11:25 a.m. Detective Parks

testified although there was a bit of blood spatter on the wall, there were no

signs of struggle in the house.

      {¶14} The State presented testimony from Emily Draper, a forensic

scientist with Ohio BCI. She performed DNA testing on samples obtained

from Gerald Smith and Homer Rogers. Ms. Draper testified she gave her

computer printout as to the DNA samples tested to Raymond Peoples,

another forensic scientist with Ohio BCI.

      {¶15} Raymond Peoples next testified when the evidence samples

first arrived at BCI, Peter Tassi, Jr., a forensic biologist, examined them and
Washington App. No. 12CA9                                                                             9


prepared a report. 1 Mr. Peoples obtained the Tassi report and the computer

printout from Ms. Draper for review. At that point, Mr. Peoples performed

DNA testing on two samples, one from the blade of the knife and one from

the handle of the knife. He testified the DNA profile from the blade of the

knife was a mixture. The major profile in the mixture was consistent with

Homer Rogers’ DNA; the minor profile was consistent with Gerald Smith’s

DNA. The DNA profile from the handle of the knife was consistent with

Gerald Smith’s DNA sample.

        {¶16} The jury also heard testimony from Allen “Shane” Lucas,

Appellant’s first cousin. Shane Lucas testified he was aware that Appellant

had marital problems. As a result, Appellant had stayed overnight at the

Lucas home in Athens County in the past.

        {¶17} Shane Lucas further testified on June 19, 2010, Appellant

showed up at the Lucas home around 4:30 -5:00 a.m. Appellant wanted to

get beer. He indicated a friend had dropped him off. Shane Lucas could see

Appellant had already been consuming and he described Appellant as

“pretty tanked.” Shane Lucas recalled Appellant had recently been in a

motorcycle accident and had injured his ribs and one leg. Appellant was

walking with a limp.

1
 Peter Tassi, Jr. was subpoenaed for trial. On the day he was to testify, he was excused because of
personal illness. Counsel stipulated to admission of his report.
Washington App. No. 12CA9                                                 10


      {¶18} Around 5:30 a.m., Shane Lucas and Appellant bought three 6-

packs of beer and drank it at the Lucas house. The Lucas family had planned

to go boating that day at Stroud’s Run State Park. When the Lucases left to

go boating before noon, Appellant went with them. While out on water,

Shane Lucas’s cousin, Bo Lucas of Chillicothe, called. Cheryl Lucas,

Shane’s wife, answered the phone. Bo Lucas informed her “Gerald killed

Homer.” Cheryl then handed Shane the phone and Bo Lucas gave him the

same information. Cheryl Lucas hung up the phone. During this time,

Appellant had been passed out on the front of the boat. Cheryl Lucas woke

up Appellant and asked him “Gerald, did you kill Homer?”

      {¶19} Then, according to Shane Lucas’s testimony, Appellant

confessed to stabbing Homer Rogers. Appellant told them that Lynn had

called Appellant and wanted him to come to her father’s house. He went to

the home, where Homer Rogers was waiting for him with a gun. Appellant

told the Lucases they fought over the gun. Appellant admitted either hitting

or stabbing Mr. Rogers with something. He then told the Lucases he

“picked him up, put him on the couch, and covered him up.” Shane Lucas

testified Appellant was crying when he confessed.

       {¶20} At this point, Shane Lucas took his boat to shore. Shane

Lucas and Appellant got off the boat. Shane Lucas took Appellant to the
Washington App. No. 12CA9                                                    11


Stroud’s Run campground. At this point he noticed Appellant had a

revolver. Mr. Lucas then called Athens 911 and advised the dispatcher that

Appellant killed Homer Rogers. Shane Lucas specifically told police

Appellant admitted stabbing or hitting Rogers in the neck.

      {¶21} Shane Lucas also testified he later learned Appellant had

driven decedent’s red pickup truck and parked it on his property. Appellant’s

driveway is 60 yards or longer, from Salem Road. His house is located at

the top of the driveway. Beyond the Lucas house is a field. Decedent’s

truck was parked over a trash pile, about 30 feet from the house. Shane

Lucas testified Appellant had driven the decedent’s truck before but would

park in the general area of the house, not up into the woods.

      {¶22} The next State’s witness was Detective Mark Johnson from the

Washington County Sheriff’s Office. Detective Johnson testified that when

he walked through the Rogers’ house, he saw no signs of struggle. There

were no signs of gunshot holes or a gun being fired. Detective Johnson

identified State’s Exhibit H-1, a photograph of the decedent’s 22 revolver

with six rounds. He testified this was the gun Appellant had in his

possession before he was taken into custody.

      {¶23} Detective Johnson further testified Chief Deputy Mark Warden

(hereinafter “Warden”) and he drove to the Lucas residence. The Lucas
Washington App. No. 12CA9                                                    12


residence is nearly 100 yards off Salem Road. When they arrived, they

found the decedent’s red truck driven up over a trash pile and down into a

brushy wooded area. Detective Johnson testified the truck was parked 30-40

yards from Shane Lucas’s residence and he did not think it could be seen

from Salem Road. Detective Johnson did not see the truck until it was

pointed out to him. Detective Johnson drove the truck off the trash pile and

down to a flat spot so a tow truck driver could transport it to the Washington

County Sheriff’s Office. He identified State’s Exhibits H-2 and H-3,

photographs of the truck and where it was found. These photographs

demonstrate the pickup truck was partially hidden from view.

      {¶24} While inside the truck, Detective Johnson saw the knife that

was found in the center console. Detective Johnson testified he later

obtained pictures of the knife from BCI. He showed the photographs to

Lynn Rogers. She identified the knife in the photographs as being the knife

Appellant and she had previously purchased. A week or so later, Lynn took

Detective Johnson to Appellant’s trailer and showed him the other two

knives.

      {¶25} The State’s final witness was Chief Deputy Mark Warden.

Warden testified when he responded to the Rogers’ residence, he took

control of the crime scene. He met with the first responding officer and
Washington App. No. 12CA9                                                   13


obtained the initial information. Warden called out other officers for

assistance and walked through the house. Warden also learned that Cody

Smith’s whereabouts were unaccounted for and the family present at the

scene suspected Appellant. Warden sent two deputies to Appellant’s

residence, looking for Cody. The deputies advised that decedent’s car trailer

was at Appellant’s residence. Those deputies were then advised to secure

Appellant’s residence as a crime scene. Eventually, Warden and Detective

Johnson proceeded to the Lucas residence. While en route, the two received

a phone call from Athens County 911 informing they had received a phone

call from Shane Lucas. Shane Lucas had advised 911 that Appellant was

with him at Stroud’s Run State Park, and Appellant had confessed to killing

Homer Rogers.

      {¶26} Warden testified when they arrived at Stroud’s Run, they were

informed Appellant had a handgun. They were further advised Appellant

had told Shane Lucas he was going to “go out by police,” i.e. “suicide by

cop.” The two first interviewed Shane Lucas. Mr. Lucas gave them

precise information, that Appellant had fought with Homer Rogers and

stabbed him.

      {¶27} At Strouds Run, Appellant was sleeping on a park bench. A 22

revolver with six live rounds was under his head. Before Warden and
Washington App. No. 12CA9                                                                               14


Detective Johnson could speak to him, Appellant was tased and taken into

custody by Athens law enforcement officials. The weapon was secured.

Detective Johnson Mirandized Appellant and started to interview him.

Shortly into the interview, Appellant indicated he wanted to talk to Mark

Warden. Warden walked over, asked him if he understood his Miranda

rights, and began questioning him. The entire interview with Detective

Johnson and Chief Deputy Warden was recorded. The interview is

rambling, but Appellant reiterated:

        1) he did not know where he was at, or where he had been the
        previous night;

        2) he did not know what they were talking about when they
        asked him about a gun;

        3) he did not remember being at [Rogers’] house;

        4) he did not know what happened at [Rogers’]house;

        5) he did not know what happened to [Rogers];

        6) he did not know how he got to Athens or Shane [Lucas’s]
        house;

        7) he “did not do it”;

        8) he loved his wife; and,

        9) he walked in on [Rogers] raping his wife [Cynthia Lynn
        Rogers].2

2
 On the tape, Appellant states than two years into their marriage, he walked inside his house to find Homer
Rogers raping his daughter Lynn. Appellant stated his wife was always “messed up” in the head and that’s
Washington App. No. 12CA9                                                                                15


         {¶28} Despite repeated inability to remember specific happenings,

when questioned about what took place inside the Rogers’ house on the

night of the murder, Appellant stated that “Homer tried to kill him,” and that

[Homer] and his wife called him and got him to come to the house. Later in

the interview, Appellant stated he was never there but hesitated, “I don’t

think so.” Appellant also testified “I didn’t go over there to do nothing.”

Appellant stated “I don’t think I killed him. I know I didn’t kill him.”

         {¶29} During the interview, Warden told Appellant that Shane Lucas

saw him drive up. Appellant’s response was: “Did he see me? The red

pickup truck might be there but I didn’t drive it.”

         {¶30} Also during the interview, Appellant stated also that his wife

stood to inherit a large amount of money if her father died. He stated that

over the years his wife had “begged” him to kill her father.

         {¶31} Warden testified when Appellant gave the statement, he did

appear to be “hung over” or had just awakened. On the recorded statement,

Appellant notices having urinated on himself at some point. Appellant told

Warden he had done cocaine the night before. Appellant’s counsel neither

filed a motion to suppress the statement nor objected to the playing of the

statement at trial.

why he stayed with her “all those years. “ Lynn Rogers denied this allegation in direct testimony and cross-
examination.
Washington App. No. 12CA9                                                                         16


        {¶32} The defense presented only one witness, Lorena Smith,

Appellant’s daughter.3 Ms. Smith testified she had an “o.k.” childhood, and

was “daddy’s girl.” She testified, over the years, Appellant would do drugs

at Thanksgiving and Christmas.

        {¶33} Ms. Smith testified Appellant was in a motorcycle crash on

May 30, 2010, and broke six ribs and his leg. While in the hospital,

Appellant was prescribed Percocet and Vicodin. He came to her house when

he was released. He did not walk very well. Appellant was bipolar and had

severe depression. Ms. Smith testified Appellant was drinking alcohol a lot

when he lived with her.

        {¶34} Ms. Smith further testified on June 18, 2010, Appellant was

“really drunk” and arguing with her. She told him to get out of her house,

and she would get him the next day when he was sober. She estimated he

drank 36 beers that day. When she dropped him off at his trailer at 7:30 or

8:00 p.m., she left him with 72 more beers. Ms. Smith testified there were no

vehicles at his trailer when she left him.

        {¶35} Ms. Smith also opined Appellant could not have walked 2-3

miles in the country, given the intoxicated condition he was in and his

physical injuries. She testified on cross-examination that if her father was at

3
  Lorena Smith is Jessika Trus’s mother. Her husband is Adam Trus. However, at trial, Ms. Smith
indicated she was separated from her husband.
Washington App. No. 12CA9                                                    17


the Rogers’ residence, she thought somebody helped him get there. She also

admitted that days before she dropped him off at his home, he was

threatening to kill Homer and Lynn. Ms. Smith testified the one thing

Appellant wanted more than anything, was “his wife back,” and Homer

Rogers was the “one obstacle.”

      {¶36} Ms. Smith further testified to an incident approximately one

year prior to Homer Rogers’ death. Lynn and Appellant were having dinner

at Ms. Smith’s house. Ms. Smith testified Lynn told her at that time, when

her father passed away, she would inherit $600,000.00.

      {¶37} In closing, the defense argued in Appellant’s intoxicated

condition and with his physical injuries, there was no way Appellant could

have walked from his trailer to the Rogers’ residence. Defense counsel also

argued Lynn had a new boyfriend and was “finished” with Appellant. She

saw an opportunity to get rid of him and also inherit $600,000.00. She

knew the kind of reaction she would trigger in Appellant when she called

him, refused to tell him who she was with, and hung up the phone having

said, “I’m through with you.” Counsel argued that no one investigated

Lynn or Wayne McClain, and Lynn steered the investigation to Appellant

the entire time.
Washington App. No. 12CA9                                                                               18


        {¶38} Appellant was found guilty of all nine counts contained in the

indictment. He was sentenced on January 27, 2012, to a total sentence of

life without the option of parole and sixty additional months. 4 This timely

appeal followed.

                                ASSIGNMENTS OF ERROR

        I. THE APPELLANT, GERALD A. SMITH, WAS DENIED
        EFFECTIVE ASSISTANCE OF COUNSEL.

        II. THE COMMON PLEAS COURT FAILED TO GRANT
        THE DEFENDANT’S RULE 29 MOTION TO DISMISS THE
        CHARGE OF TAMPERING WITH EVIDENCE.

                             ASSIGNMENT OF ERROR ONE

        {¶39} Appellant contends he was denied effective assistance of

counsel due to (1) counsel’s failure to file a pretrial motion to suppress

Appellant’s statement to Chief Deputy Mark Warden, (2) counsel’s failure to

object to the statement’s admission into evidence, and (3) counsel’s failure

to object to allegedly prejudicial statements attributed to defendant and

testified to by his ex-wife.

                               A. STANDARD OF REVIEW

        {¶40} Criminal defendants have a right to counsel, including a



4
  Appellant was not sentenced on counts two, three, four, and seven of the indictment as they were
considered to be allied offenses of similar import to count one, aggravated murder. As to count six, he was
sentenced to thirty months to be served consecutively. As to count eight, he was sentenced to thirty months
to be served consecutively. As to count nine, he was sentenced to thirty months to be served concurrently.
Washington App. No. 12CA9                                                      19


right to effective assistance of counsel. McMann v. Richardson, 397 U.S.

759, 790, 90 S. Ct. 1441; State v. Stout, 4th Dist. No. 07CA5, 2008-Ohio-

1366, 2008 WL 757521, ¶ 21. To establish constitutionally ineffective

assistance of counsel, a defendant must show (1) that his counsel’s

performance was deficient and (2) that the deficient performance deprived

him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052; State v. Issa, 93 Ohio St. 3d 49, 67, 752 N.E. 2d 904 (2001); State v.

Goff, 82 Ohio St. 3d 123, 139, 694 N.E. 2d 916 (1998). “In order to show

deficient performance, the defendant must prove that counsel’s performance

fell below an objective level of reasonable representation. To show

prejudice, the defendant must show a reasonable probability that, but for

counsel’s errors, the result of the proceeding would have been different.”

State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶

95 (citations omitted). “Failure to establish either element is fatal to the

claim.” State v. Jones, 4th Dist. No. 06CA3116, 2008-Ohio-968, 2008 WL

613116, ¶ 14. Therefore, if one element is dispositive, a court need not

analyze both. State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52

(2000) (stating that a defendant’s failure to satisfy one of the elements

“negates a court’s need to consider the other”).
Washington App. No. 12CA9                                                       20


      {¶41} When considering whether trial counsel’s representation

amounts to deficient performance, “a court must indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.” Strickland, 466 U.S. at 689. Thus, “the defendant

must overcome the presumption that, under the circumstances, the

challenged action might be considered sound trial strategy.” Id. at 689. “A

properly licensed attorney is presumed to execute his duties in an ethical and

competent manner.” State v. Taylor, 4th Dist. No. 07CA11, 2008-Ohio-482,

2008 WL 343328, ¶ 10, citing State v. Smith, 17 Ohio St.3d 98, 100 477

N.E.2d 1128 (1985). Therefore, a defendant bears the burden to show

ineffectiveness by demonstrating that counsel’s error were so serious that he

or she failed to function as the counsel guaranteed by the Sixth Amendment.

State v. Gondor, 112 Ohio St. 3d 377, 2006-Ohio-6679, 860 N.E. 2d 77, ¶

62; State v. Hamblin, 37 Ohio St.3d 153, 156, 524 N.E.2d 476 (1988).

      {¶42} To establish prejudice, a defendant must demonstrate that a

reasonable probability exists that but for counsel’s error, the result of the

trial would have been different. State v. White, 82 Ohio St.3d 16, 23, 693

N.E.2d 772 (1998); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373

(1989), at paragraph three of the syllabus. Furthermore, courts may not

simply assume the existence of prejudice, but must require that prejudice be
Washington App. No. 12CA9                                                     21


affirmatively demonstrated. See State v. Clark, 4th Dist. No. 02CA684,

2003-Ohio-1707, 2003 WL 1756101, ¶ 22; State v. Tucker, 4th Dist. No.

01CA2592, 2002 WL 507529 (Apr. 2, 2002); State v. Kuntz, 4th Dist. No.

1691, 1992 WL 42774 (Feb. 26, 1992).

      {¶43} A defendant must establish that counsel’s failure to file a

motion to suppress would have a reasonable probability of success and

caused him prejudice. Morrison, ¶10; State v. Robinson, 108 Ohio App.3d

428, 670 N.E.2d 1077 (3rd Dist.1996).

      {¶44} Additionally, in Madrigal, 87 Ohio St. 3d 378, 721 N.E.2d 52,

the Ohio Supreme Court discussed the issue of the requirement of actual

prejudice springing from the failure to file a motion to suppress evidence:

      {¶45} “Madrigal assumes that the inquiry for the court is whether the

motion to suppress would have been granted had it been filed, as if a

probable granting of the motion to suppress meets the prejudice prong.

However, assuming arguendo that counsel should have filed the motion,

Madrigal cannot meet the prejudice prong of Strickland, that is, there exists

“a reasonable probability that absent [Madrigal’s attorneys’] errors, the

factfinder would have had a reasonable doubt respecting guilty.” Strickland

at 695, 104 S. Ct. at 2068. Even assuming that Madrigal’s suppression
Washington App. No. 12CA9                                                     22


motion would have been granted, and the gun would have been excluded,

compelling evidence against him still existed.” Morrison, ¶ 10,11, and 12.

                       B. LEGAL ANALYSIS

(1) Counsel’s failure to file a motion to suppress the recorded
statement of Appellant to Chief Deputy Warden.

      {¶46} In this matter, Appellant’s counsel did not file a motion to

suppress Appellant’s statement to Chief Deputy Warden. On appeal,

counsel argues it is clear from the evidence that Appellant was significantly

impaired at the time he gave his statement. As such, it is argued Appellant

could not effect a knowing and voluntary waiver of his Miranda rights.

According to Lorena Smith, Appellant was still recovering from his injuries

in a motorcycle accident and unable to walk well. On the day before the

murder, Appellant had consumed 36 beers and had been acting unruly. She

insisted he leave her house and she drove him to his trailer, leaving him with

72 more beers to drink.

       {¶47} Timothy Jenkins, who saw Appellant between 12:30 and 1:00

a.m. on June 19t, also testified Appellant had been drinking.

       {¶48} Shane Lucas testified that Appellant showed up at his home

between 4:30 and 5:00 a.m. on June 19th, and together they bought and

drank 3 six-packs of Busch Light beer. When Appellant went boating with

the Lucas family, he passed out. Counsel also points out Appellant was tased
Washington App. No. 12CA9                                                     23


at the Stroud’s Run campground prior to giving his statement and was found

incompetent to stand trial approximately two months after these events.

      {¶49} “[I]t is well-settled that the taking of an involuntary confession

violates the Due Process Clause of the Fourteenth Amendment. See, e.g.,

Spano v. New York, 360 U.S. 315 * * *(1959). A coerced confession may

also be found to violate the Fifth Amendment privilege against self-

incrimination.” State v. Klapka, 2004-Ohio-2921, 2004 WL 1238411, ¶17,

citing State v. Comstock, 11th Dist. No. 96-A-0058, 1997 Ohio App. LEXIS

3670 (Apr. 15, 1997), at *7. “The question of voluntariness is a question of

law, and as such, an appellate court must independently review the facts to

arrive at its own conclusion as to whether a given confession was

voluntary.” Id. at *6-*7 (citations omitted). The state bears the burden of

establishing the voluntariness of a confession by a preponderance of the

evidence. Colorado v. Connelly, 479 U.S. 1577, 168-169, 107 S. Ct. 515

(1986).

      {¶30} “In deciding whether a defendant’s confession is involuntarily

induced, the court should consider the totality of the circumstances,

including the age, mentality, and prior criminal experience of the accused;

the length, intensity, and frequency of interrogation; the existence of

physical deprivation or mistreatment; and the existence of threat or
Washington App. No. 12CA9                                                     24


inducement.” State v. Edwards, 49 Ohio St. 2d 31, 358 N.E.2d 1051 (1976),

paragraph two of the syllabus. State v. Michael, 4th Dist. No. 09CA887,

2010-Ohio-5296, 2010 WL 4273225, ¶ 9. A statement is voluntary “absent

evidence that [the suspect’s] will was overborne and his capacity for self-

determination was critically impaired because of coercive police conduct.”

State v. Dailey, 53 Ohio St.3d 88, 559 N.E.2d 459 (1990), paragraph two of

the syllabus.

      {¶31} In the case at bar, we do not believe a motion to suppress

would have had a reasonable probability of success. In considering the

totality of the circumstances, the trial court would likely have found

Appellant’s statement to Chief Deputy Mark Warden to be knowing and

voluntary. It is also likely the trial court would have found no evidence that

Appellant’s will was overborn by coercive police conduct.

       {¶32} At the time Appellant gave his statement to Warden, he was

49 years old. The evidence does demonstrate Appellant was in handcuffs

and complained about the handcuffs and being tased. He had an adult

criminal history which included three convictions for domestic violence and

one conviction for aggravated menacing. There is no evidence in the record

or on the recorded statement that Appellant was threatened or made

promises in exchange for his statement. In fact, Appellant specifically
Washington App. No. 12CA9                                                   25


showed verbalized willingness to talk to Chief Deputy Mark Warden. We

disagree that Appellant’s being tased, his subsequent mental incompetency,

and his heavy use of intoxicants rendered his recorded statement

involuntarily given.

      {¶33} Although Appellant had been drinking heavily for at least 2

days and indicated he had consumed cocaine, some of the effects of these

intoxicants ostensibly may have worn off by the time his statement was

given. Appellant’s statement began at 4:15 p.m. and continued for

approximately 51 minutes. There is no evidence that he drank anything

after the beer he consumed with Shane Lucas around 5:30 a.m. that morning.

According to Shane Lucas’s testimony, Appellant passed out on his boat.

When he was apprehended at the campground, he was sleeping on a park

bench. At the time Appellant gave his statement, 4:15 p.m., Appellant may

have been “hung over” and just awakened, but he may not necessarily have

been under the full influence of the intoxicants. In addition, due to his

history of heavy alcohol and drug use over the years, especially at

Thanksgiving and Christmas, Appellant may have been able to tolerate large

amounts of intoxicants more functionally than the average person.

      {¶34} More importantly, Appellant’s statement to Mark Warden,

although rambling, was consistently self-serving and calculated.
Washington App. No. 12CA9                                                      26


Throughout the statement, Appellant repeatedly denied knowing where he

had been the previous night, knowing what he was being asked about,

knowing what happened at the Rogers’ home, and knowing what happened

to Homer Rogers. Appellant stated “I know I didn’t kill him.”

      {¶35} Although Appellant had been drinking heavily in the previous

days, he had the presence of mind to present alternative theories as to what

happened to Rogers. Appellant informed that Lynn and her father had been

calling him, taunting him, and threatening to kill him. Appellant informed

that Rogers had raped his daughter Lynn, in an effort to portray the decedent

as a bad man. Appellant informed that Lynn had “begged” him to kill her

father and informed that Lynn stood to inherit a lot of money upon her

father’s death, in an effort to cast suspicion upon Lynn. Appellant also

responded confidently that Shane Lucas “did not see him” drive the red

pickup truck onto the trash pile.

      {¶36} We also disagree with Appellant’s argument that his alleged

lack of competency influenced his giving the recorded statement to Chief

Deputy Warden. In September 2010, the court found Appellant incompetent

to stand trial and mentally ill. Appellant was admitted to Moritz Forensic

Center of Twin Valley Behavioral Healthcare on October 14, 2010, for a

course of treatment and competency restoration. In March, 2011, Dr.
Washington App. No. 12CA9                                                 27


Dennish Eshbaugh, PhD., prepared a status report regarding Appellant’s

competency restoration. This report casts doubt on Appellant’s previous

claim of incompetency due to mental illness. Dr. Eshbaugh’s report

observes:

             Over the course of admission the medical records report
      that he has not presented signs or symptoms of serious mental
      illness. His thinking has continued to be clear and he has not
      expressed delusional material…His psychiatrist has noted that
      the defendant tends to present a depressive demeanor in his
      presence, but when the defendant is socializing with other
      patients and the staff his affect becomes bright and
      robust….After reviewing the documentation of the defendant’s
      participation in treatment groups and competency restoration
      programming, there is evidence that the defendant has been
      malingering memory deficits. His performance in treatment
      groups has been noted as effective. He actively participates in
      groups that focus on topics such as depression, coping skills,
      substance abuse, etc., and in those groups he does not show any
      significant difficulty understanding and learning new material.
      … While his memory functions have been reported to be intact
      in most activities, in competency restoration programming his
      performance has been poor. He has reportedly acted as if he
      has difficulty understanding and learning the material
      presented. He has continued to report that he has no recall any
      events associated with the instant charges. Because of the
      inconsistency of memory between groups his psychiatrist has
      continued the diagnosis of malingering memory deficits.

      {¶37} Based on our review of the record, we do not believe a motion

to suppress would have been successful. As such, we cannot find Appellant

was prejudiced by counsel’s failure to file the motion.
Washington App. No. 12CA9                                                   28


      {¶38} Similar to the analysis in Madrigal, had a motion to suppress

been filed and granted, there was still overwhelming evidence of Appellant’s

guilt. Appellant had been making disturbing phone calls to the decedent’s

house on June 18th, so intimidating that the testimony was Homer Rogers

was considering calling law enforcement. Appellant’s daughter, Lorena

Smith, admitted Appellant had been making threats against Lynn and Homer

in the days just before the murder.

       {¶39} There was also testimony that Appellant was familiar with the

woods and area between his trailer and the Rogers’ home, and he was

familiar with the Rogers’ home. Although Lorena Smith testified she did

not think her father could have walked the 2-3 mile walk between the

homes, she admitted he was walking with a limp and had walked with her to

a store recently. Tim Jenkins testified he had seen Appellant at a party

during the early hours of June 19th, and although he had been drinking and

was limping, he was able to walk. Mr. Jenkins also considered Appellant

able to drive.

      {¶40} Kimberly Schaefer, Rogers’ daughter, testified her father’s

truck was in his yard when he left her home late on June 18th. The next

morning, the truck was gone. The decedent’s red pickup truck was

eventually discovered in a wooded area, partially obscured, at Shane Lucas’s
Washington App. No. 12CA9                                                     29


house in Athens County, where Appellant had gone on June 19th. The car

trailer attached to the truck was discovered at Appellant’s trailer on June

19th. When Appellant presented to Shane Lucas’s door at 4:30 or 5:00 a.m.

in the morning, wanting to go buy beer, he indicated he had been dropped

off by a friend. Shane Lucas was unaware the vehicle was parked on his

property until the investigation unfolded.

       {¶41} Moreover, when the red pickup truck was discovered, a knife

with the reddish-brown substance, later determined to be blood, was

discovered in the center console. Raymond Peoples testified that when he

analyzed the DNA samples taken from the knife, both Appellant’s and

decedent’s DNA profile mixtures were found on the blade of the knife.

Only Appellant’s DNA was found on the handle of the knife. Lynn Rogers

later testified that this knife was one of three Appellant and she bought a few

months before. The other two knives were located in a can in Appellant’s

trailer.

       {¶42} More damaging than Appellant’s recorded statement to Chief

Deputy Warden was his confession to Shane Lucas. Mr. Lucas testified

Appellant, while crying, admitted stabbing the decedent in the neck, laying

the decedent on the couch, and covering decedent’s body with a blanket.
Washington App. No. 12CA9                                                       30


      {¶43} Assuming a motion to suppress the recorded statement to Mark

Warden had been filed and granted, the transcript is replete with additional

compelling evidence, direct and circumstantial, of Appellant’s guilt. We do

not find Appellant was prejudiced by counsel’s failure to file a motion to

suppress.

      (2) Counsel’s failure to object to the playing of Appellant’s
statement to Chief Deputy Warden at trial.

      {¶44} At trial, Appellant’s counsel did not object to the introduction

of his recorded statement to Chief Deputy Warden. As such, this alleged

error is governed by the plain error standard. Under Crim.R.52(B), “[p]lain

errors or defects affecting substantial rights may be noticed although they

were not brought to the attention of the court.” State v. Haynes, 130 Ohio

App.3d 31, 719 N.E.2d 576, (4th Dist. 1998), Fn 3. The judgment of the

trial court will be reversed under the plain error rule only if (1) error has

occurred and, (2) but for that error, the result of the trial would clearly have

been otherwise. Id. at Fn 3. See State v. Underwood, 3 Ohio St.3d 12, 444

N.E.2d 1332. The rule should be applied with utmost caution and should be

invoked only to prevent a clear miscarriage of justice. Haynes, at Fn 3.

      {¶45} Furthermore, the decision not to object to the playing of

Appellant’s recorded statement to Chief Deputy Warden may have

amounted to a tactical decision. Generally, counsel’s strategic decisions and
Washington App. No. 12CA9                                                      31


trial tactics will not support a claim of ineffective assistance. State v.

Morrison, 4th Dist. No. 03CA13, 2004 Ohio -5724, 2004 WL 2421875, ¶ 8.

      {¶46} In this matter, the defense’s trial strategy, apparently, was to

attempt to create reasonable doubt as to Appellant’s guilt by casting

suspicion upon his estranged ex-wife, Lynn Rogers. The defense’s theory of

Appellant’s case was that Lynn Rogers hated her ex-husband, may have

hated her father, and/or desired to inherit $600,000.00. Trial counsel argued

in closing that Lynn Rogers or Wayne McClain were never investigated, and

from the beginning, and Lynn steered the investigation in the direction of her

husband. The defense needed to show why Lynn may have hated her father

enough to plan his death. Appellant’s allegation that the decedent raped

Lynn Rogers is contained in the recorded statement. The defense also

needed the jury to know Lynn had a financial incentive to do so. Appellant

also accomplishes this objective via the recorded statement.

      {¶47} Again, as previously discussed above, there was overwhelming

evidence of Appellant’s guilt. In our view, had the recorded statement to

Chief Deputy Warden been excluded, there was still compelling evidence to

find Appellant guilty beyond a reasonable doubt on each element of the

crimes charged. We find no error, let alone plain error, in this regard. We

further find no prejudice to the defendant by counsel’s decision not to object.
Washington App. No. 12CA9                                                     32


(3) Counsel’s failure to object to the statements of Cynthia Lynn
Rogers regarding alleged prior bad acts of Appellant.

      {¶48} We also believe that the decision not to object to the admission

of Lynn Roger’s statements clearly amounts to a tactical decision on trial

counsel’s part. To further advance the theory that Lynn Rogers orchestrated

or facilitated her father’s murder and “set up” Appellant, the jury needed to

believe Lynn Rogers despised Appellant. To do so, the jury needed to be

aware of Lynn’s history of physical abuse by Appellant. Again, no objection

was lodged as to Lynn Rogers’ testimony about Appellant’s years of

physically abusing her.

      {¶49} In our view, trial counsel was exercising professionally

reasonable trial strategy. There exists a “strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance.”

Robinson, at ¶ 2, citing Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.

Furthermore, “strategy and tactical decisions exercised by defense counsel

‘well within the range of professionally reasonable judgment’ need not be

analyzed by a reviewing court.” Robinson ¶2, citing State v. Walker, 90 Ohio

App.3d 352, 259, 629 N.E.2d 471, 475 (1993), quoting Strickland, 466 U.S.

at 699, 104 S. Ct. at 2070. In this matter, we are not convinced that

counsel’s failure to object to the statements of Lynn Rogers regarding
Washington App. No. 12CA9                                                       33


alleged physical abuse over the years prejudiced Appellant so as to deprive

him of a fair trial.

       {¶50} Based upon the foregoing, we cannot find Appellant was

prejudiced by his counsel’s (1) failure to file a motion to suppress the

recorded statement given to Chief Deputy Warden, (2) failure to object to

the playing of that statement at trial, or (3) failure to object to the admission

of Cynthia Lynn Rogers’ statements regarding alleged prior physical abuse

by Appellant. Therefore, we cannot find Appellant received constitutionally

ineffective assistance of counsel under the Strickland analysis. As such, we

overrule Appellant’s first assignment of error.

                       ASSIGNMENT OF ERROR TWO

       {¶51} Appellant also contends the trial court erred by failing to

grant Defendant-Appellant’s Rule 29 motion to dismiss the charge of

tampering with evidence. After presentation of the State’s case, defense

counsel moved to dismiss the tampering with evidence charge. The State

argued that Appellant took Homer Rogers’ truck, containing the murder

weapon to another county and drove it into a weeded area so as to hide it

from view. Appellant argued the truck was in plain view from the road

nearby. The trial court denied the Crim.R. 29 motion and let the charge go
Washington App. No. 12CA9                                                      34


to the jury. On appeal, Appellant argues there was no evidence to justify the

charge being given to the jury for consideration. We disagree.

                       A. STANDARD OF REVIEW

      {¶52} The standard of review for a Crim.R. 29(A) motion is

Generally the same as a challenge to the sufficiency of the evidence. State v.

Hollis, 4th Dist. No. 09CA9, 2010-Ohio-3945, 2010 WL 3294327, ¶19. See

State v. Hairston, 4th Dist. No. 06CA3081, 2007 Ohio-3880, 2007 WL

2181535, at ¶ 16; State v. Brooker, 170 Ohio App.3d 570, 2007-Ohio-588,

868 N.E.2d 683, at ¶8. Appellate courts must determine whether the

evidence adduced at trial, if believed, supports a finding of guilt beyond a

reasonable doubt. See State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-

Ohio-52, 678 N.E.2d 541; State v. Jenkins, 61 Ohio St.3d 259, 574 N.E.2d

492 (1991).

      {¶53} In other words, when reviewing a case to determine if the

record contains sufficient evidence to support a criminal conviction, we must

“examine the evidence admitted at trial to determine whether such evidence,

if believed, would convince the average mind of the defendant’s guilt

beyond a reasonable doubt. The relevant inquiry is whether, after viewing

the evidence in a light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime proven beyond a
Washington App. No. 12CA9                                                        35


reasonable doubt.” Hollis, ¶20, citing State v. Smith, 4th Dist. No. 06CA7,

2007-Ohio-502, 2007 WL 357274, at ¶ 33, quoting State v. Jenkins at

paragraph two of the syllabus. See, also, Jackson v. Virginia, 443 U.S. 307,

319, 99 S. Ct. 2781 (1979).

      {¶54} The sufficiency of the evidence test “raises a question of law

and does not allow us to weigh the evidence,” Hollis at ¶21; Smith at ¶34,

citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1983).

Instead, the sufficiency of the evidence test “‘gives full play to the

responsibility of the trier of fact [to fairly] resolve conflicts in the testimony,

to weigh the evidence, and to draw reasonable inferences from basic facts to

ultimate facts.’” Smith at ¶34, citing State v. Thomas, 70 Ohio St. 2d 79, 79-

80, 434 N.E.2d 1356 (1982); State v. DeHass, 10 Ohio St.2d 230, 227 N.E.

2d 212 (1967), paragraph one of the syllabus.

                            B. LEGAL ANALYSIS

      {¶55} Appellant was convicted of tampering with evidence, in

violation of R.C. 2921.12(A)(1), which reads:

       (A) No person, knowing that an official proceeding or
investigation is in progress, or is about to be or likely to be instituted,
shall do any of the following:

       (1) Alter, destroy, conceal, or remove any record, document, or
thing, with purpose to impair its value or availability as evidence in
such proceedings or investigation….
Washington App. No. 12CA9                                                      36


      At the end of the State’s case, the trial court had heard evidence that:

      1) Homer Roger’s death was caused by a knife wound;

      2) a knife with a reddish-brown substances was found inside Rogers’
      pickup truck that had been removed from his yard in Washington
      County and removed to a wooded area in Athens County;

      3) the knife was tested by specialists at Ohio BCI who determined that
      the DNA profile on the handle of the knife matched Gerald Smith’s
      profile, and the DNA profile on the blade of the knife was a mixture
      of Homer Rogers’ and Gerald Smith’s DNA profiles;
      4) Appellant had arrived at the Lucas residence in the early morning
      hours of June 19, 2010, on foot; and,

      5) the decedent’s pickup truck was discovered parked on the Lucas
      property later on June 19th.

       {¶56} We believe that the trial transcript contains evidence from

which any rational trier of fact could have found the essential elements of

the tampering with evidence charge proven beyond a reasonable doubt.

      {¶57} As to the element of “knowing that an official proceeding or

investigation is in progress, or is about to be or likely to be instituted,” the

trial court heard evidence that Appellant confessed to Shane Lucas of

shooting or stabbing the decedent, placing his body on the couch, and

covering it up. From this evidence, the logical inference is that Appellant

would be aware that because of the seriousness of his actions, an official

proceeding or investigation would be likely to be instituted.
Washington App. No. 12CA9                                                       37


      {¶58} As to the elements of “conceal or remove, any… thing…with

purpose to impair is…availability as evidence,” the trial court had the

testimony of the various State’s witnesses who demonstrated that the murder

weapon- the bloody knife with the DNA of both victim and suspect- was

found in the decedent’s red pickup truck. The decedent’s pickup truck had

been in his yard in Washington County, the night before, according to his

daughter. Various State’s witnesses testified the pickup truck was discovered

in a wooded area in Athens County, partially obscured by tall weeds and

woods. Mark Johnson testified the Lucas residence was nearly 100 yards

from Salem Road. The red pickup truck was found parked 30-40 yards

beyond the residence. Appellant had appeared at the Lucas residence in the

early morning hours of June 19th, on foot, claiming he had been dropped

off. Shane Lucas testified Appellant had driven the truck before but parked

it in the area of the house, not up into the woods. From these facts, it may be

inferred Appellant was attempting to conceal or remove the bloody knife in

the pickup truck in a desperate effort to thwart or stymie any investigation,

or to diminish the value of the knife and truck as evidence.

      {¶59} We find that there was sufficient evidence on each element of

the tampering charge to allow it to go to the jury. As such, we find the trial

court did not err by denying Appellant’s Crim.R. 29 motion to dismiss the
Washington App. No. 12CA9                                                  38


tampering charge. We affirm the judgment of the trial court and overrule

Appellant’s second assignment of error.

                                              JUDGMENT AFFIRMED.
Washington App. No. 12CA9                                                                   39


                                JUDGMENT ENTRY
       It is ordered that the JUDGMENT BE AFFIRMED and costs herein be taxed to
Appellant.

       The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the
Washington County Common Pleas Court to carry this judgment into execution.

         IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL
HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it
is temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of
the date of such dismissal.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Exceptions.

Harsha, J. & Abele, J.: Concur in Judgment and Opinion.


                                                       For the Court,

                                                       BY:     _______________________
                                                               Matthew W. McFarland
                                                               Presiding Judge




                                 NOTICE TO COUNSEL

        Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.
