         [Cite as State v. Durgan, 2018-Ohio-2310.]
                      IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                       HAMILTON COUNTY, OHIO




STATE OF OHIO,                                    :   APPEAL NO. C-170148
                                                      TRIAL NO. B-1602627
        Plaintiff-Appellee,                       :
                                                         O P I N I O N.
  vs.                                             :

DONALD DAWSON DURGAN,                             :

    Defendant-Appellant.                          :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: June 15, 2018




Philip R. Cummings, Assistant Hamilton County Prosecuting Attorney, for Plaintiff-
Appellee,

Timothy J. McKenna, for Defendant-Appellant.
                    OHIO FIRST DISTRICT COURT OF APPEALS




D ETERS , Judge.

       {¶1}    Following a jury trial, defendant-appellant Donald Dawson Durgan

was convicted of aggravated murder under R.C. 2903.01(B), aggravated robbery

under R.C. 2911.01(A)(1), both with accompanying firearm specifications, and having

weapons while under a disability under R.C. 2923.13(A)(2). He has filed a timely

appeal.   We find no merit in his five assignments of error, and we affirm his

convictions.


                                I.   Factual Background

       {¶2}    The record shows that on May 4, 2016, Anant Singh’s wife returned

home from working the night shift as a nurse to find her husband dead on the floor

of the garage. He had been shot in the torso. Immediately after she found him,

Durgan pulled into their driveway in a white pickup truck.

       {¶3}    Singh was a successful mechanical engineer. He and his daughter

also operated a business leasing rental property. Singh had hired Durgan to help

maintain and manage the properties.       Singh was a kind-hearted man.       Several

witnesses testified that Singh considered Durgan to be like a son to him, and Durgan

would often eat dinner at Singh’s residence with his family. As a result of this close

relationship, Durgan knew the daily schedules of both Singh and his wife. Singh

trusted Durgan and had lent him money in the past.

       {¶4}    When police arrived at the scene of the murder, Durgan appeared

eager to help. He told them that he had become concerned when Singh had not

appeared for a planned business meeting early that morning. He also told them that

Singh had been receiving threatening messages recently, and that they should check

Singh’s cell phone. Because Durgan’s truck was part of the crime scene, the police

took Durgan to the police station to be interviewed. He discussed various tenants he


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believed had reason to threaten Singh and allowed the police to download

information from his phone.

       {¶5}    Singh’s neighbors testified that the evening before the murder, they

had seen a lone African-American man that they did not know walking around the

neighborhood wearing a hooded sweatshirt.          One witness, who lived in the

apartment complex directly behind the Singhs’ street, got up to walk at 4:15 a.m. on

the morning of the murder. He heard what sounded like a gunshot, and, a few

minutes later, he saw an African-American man walking toward him with a

backpack. A few weeks later, the witness heard about Singh’s murder and saw a

photograph of Durgan. He called police and told him that he had seen that person

during his walk.

       {¶6}    Police investigated the threatening texts on Singh’s phone.     They

discovered that the texts came from a “burner phone” purchased by Briana

Hightower, an acquaintance of Durgan, at a Family Dollar Store. Surveillance video

showed Hightower purchasing the phone while Durgan’s white pickup truck was

parked outside the store.

       {¶7}    Hightower, a resident of Lexington, Kentucky, would come to

Cincinnati to gamble at Jack Casino, formerly known as Horseshoe Casino. She

would sometimes meet Durgan there. She told police that on May 2, 2016, two days

before the murder, she met Durgan at the casino. He asked her to buy a phone for

him for $20 at the Family Dollar Store. She went in and purchased it while he waited

outside the store. After she gave it to him, she saw him text someone.

       {¶8}    Durgan had lost substantial amounts of money gambling, and he also

owed large sums of money to drug dealers. Singh’s daughter, who ran the business

with Singh, discovered numerous financial irregularities involving Durgan.      She

testified that Durgan had been taking rent money from tenants, even though she had



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                      OHIO FIRST DISTRICT COURT OF APPEALS



told him not to do so, and had not been turning the money over to her or Singh. She

further stated that she knew Durgan as “Don Dawson,” that she had never heard the

name “Durgan,” and that the family was unaware of Durgan’s criminal record.

       {¶9}      Singh was supposed to leave town on the day of the murder. He had

planned to meet with Durgan at 6:00 a.m. that morning at a nearby day-care center.

But video surveillance cameras did not show Durgan at the day-care center until later

that morning, even though he claimed that he had become concerned because Singh

had not appeared as planned.

       {¶10}     On May 10, 2016, the police conducted a follow-up interview with

Durgan to obtain any additional information Durgan could give them. They mostly

asked Durgan about tenants who may have had a grudge against Singh.

Nevertheless, the police did have concerns about Durgan at that time. They had

obtained a search warrant to install a GPS device on his car. They installed the GPS

during the interview without Durgan’s knowledge.

       {¶11}     On May 13, 2016, the police again interviewed Durgan. By that time,

he was considered a suspect. He was read his rights, and the police conducted a

lengthy interrogation. During that interrogation, Durgan’s story changed a number

of times.     He eventually acknowledged that Singh had previously loaned him a

substantial amount of money, but that Singh had refused to give him any more. He

admitted to sending the threatening text messages to Singh, but he claimed that he

just wanted to get Singh out of town for Singh’s own protection. He also admitted to

setting up a robbery, but he claimed that an unknown drug dealer had arrived at the

scene and had killed Singh.




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                              II.   Statements to the Police

       {¶12}   In his first assignment of error, Durgan argues that the trial court

erred in overruling his motion to suppress his statements to the police. He argues

that the first two times he talked to the police, he was not informed of his rights in

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

He further argues that the third time he talked to police his statements were not

made voluntarily. This assignment of error is not well taken.


                             A. No Custodial Interrogation

       {¶13}   Police officers must advise a person of his or her Miranda rights

when that person is subject to custodial interrogation. State v. Tucker, 81 Ohio St.3d

431, 435-436, 692 N.E.2d 171 (1998); State v. Bell, 2015-Ohio-1711, 34 N.E.3d 405, ¶

31 (1st Dist.). Whether a suspect is in custody is an objective inquiry. J.D.B. v. North

Carolina, 564 U.S. 261, 270, 131 S.Ct. 2394, 180 L.Ed.2d 310 (2011); Bell at ¶ 31.

       {¶14}   This determination requires two “discrete inquiries”: (1) what were

the circumstances surrounding the interrogation, and (2) given those circumstances,

would a reasonable person have felt that he was at liberty to terminate the

interrogation and leave. J.D.B. at 270; Bell at ¶ 32. “Once the scene is set and the

players' lines and actions are reconstructed, the court must apply an objective test to

resolve the ultimate inquiry: was there a formal arrest or restraint on freedom of

movement of the degree associated with a formal arrest.” J.D.B. at 270, quoting

Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995).

       {¶15}   The first time police interviewed Durgan was on May 4, 2016, the day

of the murder.    Durgan was already at the scene when the police arrived.           He

appeared eager to help and volunteered that the victim had been receiving

threatening text messages. Durgan agreed to accompany police back to the police



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                    OHIO FIRST DISTRICT COURT OF APPEALS



station to be interviewed. Because his truck was part of the crime scene, he could not

drive it so police offered to drive him. He was considered a witness, and he was not

handcuffed. He points out that a neighbor drove the victim’s wife to the police

station and that she was not in a police cruiser. But no neighbor offered to drive

Durgan, so a police detective drove him. Though he was sitting in a marked cruiser

writing a witness statement when detectives first arrived, he was transported in an

unmarked car. The only restraint involved was a seat belt. Because Durgan was

hungry and diabetic, the detective took him to a restaurant drive-through.

       {¶16}   At police headquarters, Durgan voluntarily provided more details

about his attempts to meet with Singh that morning and his concern when Singh did

not appear as planned. Durgan gave police his phone number so police could check

his phone records. At the end of the interview, Durgan was allowed to leave and the

police gave him a ride back to the crime scene to get his truck. Thus, the record

shows that there was no restraint to the degree of a formal arrest, and a reasonable

person in Durgan’s position would have felt free to leave. Therefore, he was not in

custody, and no Miranda warnings were required.

       {¶17}   The police interviewed Durgan again on May 10, 2016.             After

reviewing Singh’s and Durgan’s phone records, the police decided that they needed

to conduct a follow-up interview with Durgan. They called him and asked him to

come to police headquarters, which he did voluntarily. He drove himself there, and

he was not handcuffed or searched. Police were seeking to obtain any additional

information that he may have left out or forgotten at the previous interview. The

interview was not lengthy, and afterward, Durgan was allowed to leave.

       {¶18}   Police did have some concerns about Durgan. They obtained a search

warrant to install a GPS device on his car so that they could locate him if needed.

One of the reasons for the follow-up interview was to accomplish that task.



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                    OHIO FIRST DISTRICT COURT OF APPEALS



Nevertheless, Durgan did not know about the GPS, so it could not have affected his

behavior.

       {¶19}   Once again, the record shows that there was no restraint to the degree

of a formal arrest, and a reasonable person in Durgan’s position would have felt free

to leave. Police need not give Miranda warnings to every person they question, even

if the police suspect that person of being involved in a crime. Oregon v. Mathiason,

429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977); State v. Lynch, 98 Ohio St.3d

514, 2003-Ohio-2284, 787 N.E.2d 1185, ¶ 47. Consequently, the police were not

required to advise Durgan of his Miranda rights at the May 10 interview.


                      B. Waiver of Miranda Rights/Voluntariness

       {¶20}   The situation had changed by May 13, 2016. Durgan was considered a

suspect and was under arrest when he arrived at police headquarters. The police

advised him of his Miranda rights and questioned him extensively. Durgan argues

that his statements to the police were involuntary and that his will was overborne.

       {¶21}   This argument involves two distinct issues: (1) whether Durgan

knowingly, intelligently and voluntarily waived his Miranda rights; and (2) whether

he made his statement to the police voluntarily under the Due Process Clause of the

United States Constitution.      We analyze both issues using a totality-of-the

circumstances test. State v. Eley, 77 Ohio St.3d 174, 178, 672 N.E.2d 640 (1996);

State v. Burton, 1st Dist. Hamilton No. C-080173, 2009-Ohio-871, ¶ 9.

       {¶22}   Under the Miranda analysis, the state bears the burden to prove by a

preponderance of the evidence that the accused made a knowing, voluntary, and

intelligent waiver of his Miranda rights.       Courts will not presume a waiver just

because the accused responded to the interrogation.        State v. Edwards, 49 Ohio

St.2d 31, 38, 358 N.E.2d 1051 (1976); Burton at ¶ 10.



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                      OHIO FIRST DISTRICT COURT OF APPEALS



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

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

determination was critically impaired because of coercive police misconduct. State

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

Burton at ¶ 11. “Once it is determined that a suspect's decision not to rely on his

rights was uncoerced, that he at all times knew he could stand mute and request a

lawyer, and that he was aware of the State's intention to use his statements to secure

a conviction, the analysis is complete and the waiver is valid as a matter of law.”

Dailey at 91, quoting Moran v. Burbine, 475 U.S. 412, 422-423, 106 S.Ct. 1135, 89

L.Ed.2d 410 (1986).

       {¶24}   Under the due-process analysis, the prosecution must prove by a

preponderance of the evidence that a confession was voluntary. Lego v. Twomey,

404 U.S. 477, 489, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972); Burton, 1st Dist. Hamilton

No. C-080713, 2009-Ohio-871, at ¶ 12.

       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 the interrogation; the existence of

       physical deprivation or mistreatment; and the existence of threat or

       inducement.

Edwards, 49 Ohio St.2d 31, 358 N.E.2d 1051, at paragraph two of the syllabus.

Coercive police activity is necessary to a finding that a confession was involuntary

within the meaning of the Due Process Clause. Colorado v. Connelly, 479 U.S. 157,

167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986); State v. Combs, 62 Ohio St.3d 278, 285,

581 N.E.2d 1071 (1991); Burton at ¶ 12.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶25}   Durgan contends that he initially denied any involvement in the

crime, but finally confessed after six hours of intensive interrogation. The record

does reflect that the interrogation was lengthy, but it also shows that he was fed twice

and given breaks to use the restroom. He was read his rights, and indicated that he

understood them. He never stated that he did not wish to talk to the police, that he

wanted to leave, or that he wanted to talk to a lawyer. He continued to talk about the

murder for quite some time.

       {¶26}   Durgan cites to testimony at the trial, claiming that his statements

were involuntary due to the police’s use of an allegedly coercive police technique

called the “Reid Method.” While there was testimony about that technique at trial,

the issue was not raised at the hearing on the motion to suppress. This court may

only consider evidence presented at the suppression hearing. State v. Tapke, 1st

Dist. Hamilton No. C-060494, 2007-Ohio-5124, ¶ 47.

       {¶27}   Durgan continued to deny having any knowledge about the murder,

although his story changed a number of times. He eventually stated that he owed

drug dealers a lot of money and had substantial gambling debts. He stated that he

had set up a robbery of the victim, and that an unnamed drug dealer had appeared

and shot the victim.     He never confessed to shooting the victim himself, thus

undercutting his claim that his will was overborne.

       {¶28}   In sum, the totality of the circumstances shows that Durgan’s

statements to the police were voluntary and that he voluntarily waived his Miranda

rights. Therefore, the trial court did not err in overruling his motion to suppress his

statements to the police, and we overrule Durgan’s first assignment of error.




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                    OHIO FIRST DISTRICT COURT OF APPEALS



                                III. Batson Challenges

       {¶29}   In his second assignment of error, Durgan contends that the trial

court erred by not finding purposeful discrimination by the state against African-

American jurors during voir dire. He argues that the state’s reasons for excusing two

African-American jurors were pretextual. This assignment of error is not well taken.

       {¶30}   In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69

(1986), the United States Supreme Court held that the Equal Protection Clause of the

United States Constitution precludes purposeful discrimination by the state in the

exercise of preemptory challenges so as to exclude members of minority groups from

petit juries. State v. O'Neal, 87 Ohio St.3d 402, 409, 721 N.E.2d 73 (2000); State v.

Wright, 2017-Ohio-1568, 90 N.E.3d 162, ¶ 19 (1st Dist.). Batson established a three-

step procedure for evaluating claims of racial discrimination in the use of

peremptory challenges. State v. White, 85 Ohio St.3d 433, 435, 709 N.E.2d 140

(1999); Wright at ¶ 19.

       {¶31}   First, the opponent of a peremptory strike must make a prima facie

showing of discrimination. Second, the proponent of the strike must give a race-

neutral explanation for the strike. State v. Herring, 94 Ohio St.3d 246, 255-256, 762

N.E.2d 940 (2002); Wright at ¶ 20. The state's reason is deemed to be race-neutral

unless discriminatory intent is inherent in the explanation. Wright at ¶ 20; State v.

Thomas, 1st Dist. Hamilton No. C-120561, 2013-Ohio-5386, ¶ 15. Third, the trial

court must determine whether, under all the circumstances, the opponent has

proven purposeful discrimination. Herring, 94 Ohio St.3d at 256, 762 N.E.2d 940;

Wright at ¶ 20.

       {¶32}   In step three, the trial court may not simply accept a proffered race-

neutral reason at face value. Instead, it must examine the context to ensure that the

reason is not merely pretextual. If the trial court determines that the proffered


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reason is merely pretextual and that a race motive is in fact behind the challenge, the

juror may not be excluded. State v. Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048,

873 N.E.2d 1263, ¶ 65.

       {¶33}      The burden of persuasion always stays with the opponent of the

strike. A reviewing court will defer to the trial court's finding that no discriminatory

intent existed since it turns largely on an evaluation of credibility. Herring at 256;

Wright, 2017-Ohio-1568, 90 N.E.3d 162, at ¶ 21. The reviewing court may only

reverse a trial court's finding if that finding is “clearly erroneous.” Hernandez v.

New York, 500 U.S. 352, 366, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991); Wright at ¶ 21.

       {¶34}      The prosecutor used peremptory challenges to excuse two African-

American jurors. First, he excused juror 10. He explained that juror 10 had a

pending theft charge in Hamilton County and did not believe that he was treated

fairly by the justice system. The prosecutor stated, “I don’t feel comfortable with him

deciding the case.”      The record supports the prosecutor’s explanation.          When

questioned by the prosecutor, the juror had clearly expressed dissatisfaction with the

justice system.

       {¶35}      The prosecutor next excused juror number 12. He stated that upon

initial questioning, the juror had stated that “he couldn’t sign a guilty verdict, that his

religion—that he was a follower of Jesus and his religion would not permit him to do

that.” The juror told the prosecutor that he could not judge a murder case, and that

when he learned it was a murder case, his “heart just dropped.” He further stated,

“To be honest, I really don’t want to be here.” Additionally, the prosecutor stated

that he also had concerns that juror 12 worked at the same company as defense

counsel’s wife “and basically is an underling to her.”

       {¶36}      Thus, the prosecutor provided race-neutral reasons for the use of the

peremptory challenges. Courts have upheld challenges for similar reasons. See State



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                    OHIO FIRST DISTRICT COURT OF APPEALS



v. Murphy, 91 Ohio St.3d 516, 528-529, 747 N.E.2d 765 (2001); State v. Hudson, 8th

Dist. Cuyahoga No. 96986, 2012-Ohio-1345, ¶ 12-13; State v. Jennings, 10th Dist.

Franklin Nos. 09AP-70 and 09AP-75, 2009-Ohio-6840, ¶ 25.                Further, the

explanation need not rise to the level of justifying the exercise of a challenge for

cause. Murphy at 529; Wright, 2017-Ohio-1568, 90 N.E.3d 162, at ¶ 23. It need not

even make sense as long as it does not deny equal protection. Purkett v. Elem, 514

U.S. 765, 769, 115 S.Ct. 1729, 131 L.Ed.2d 834 (1995); State v. Stephens, 126 Ohio

App.3d 540, 548, 710 N.E.2d 1160 (1st Dist.1998). The record shows that the trial

court’s acceptance of the prosecutor’s race-neutral reasons was not clearly erroneous.

       {¶37}   Durgan argues that the record is devoid of analysis by the trial court,

but the trial court need not make detailed factual findings to comply with Batson.

Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, at ¶ 98; Hudson at ¶

14. Consequently, we overrule Durgan’s second assignment of error.


                              IV. Weight and Sufficiency

       {¶38}   In his third assignment of error, Durgan contends that the evidence

was insufficient to support his convictions. Our review of the record shows that a

rational trier of fact, after viewing the evidence in a light most favorable to the

prosecution, could have found that the state proved beyond a reasonable doubt all of

the elements of aggravated murder, aggravated robbery, and having weapons while

under a disability, along with the accompanying firearm specifications. Therefore,

the evidence was sufficient to support the convictions. See State v. Jenks, 61 Ohio

St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus; State v. Hackney,

1st Dist. Hamilton No. C-150375, 2016-Ohio-4609, ¶ 29.

       {¶39}   Durgan argues that no physical evidence linked him to the offenses.

But no rule of law exists that a witness’s testimony must be corroborated by physical



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evidence. Thomas, 1st Dist. Hamilton No. C-120561, 2013-Ohio-5386, at ¶ 45. He

also argues that the state presented no evidence proving that he was the perpetrator.

We disagree. The state’s evidence was circumstantial, but circumstantial evidence

and direct evidence have the same probative value. Jenks at paragraph one of the

syllabus; State v. Williams, 1st Dist. Hamilton No. C-081148, 2010-Ohio-1879, ¶ 14.

Consequently, we overrule Durgan’s third assignment of error.

       {¶40}   In his fourth assignment of error, Durgan contends that his

convictions were against the manifest weight of the evidence. After reviewing the

record, we cannot say the trier of fact lost its way and created such a manifest

miscarriage of justice that we must reverse the convictions and order a new trial.

Therefore, the convictions are not against the manifest weight of the evidence. See

State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997); State v. Cedeno,

192 Ohio App.3d 738, 2011-Ohio-674, 950 N.E.2d 582, ¶ 25 (1st Dist.). We overrule

Durgan’s fourth assignment of error.


                         V. Ineffective Assistance of Counsel

       {¶41}   In his fifth assignment of error, Durgan contends that he was denied

the effective assistance of counsel. He argues that his counsel was ineffective for

failing to present expert testimony on police interrogation techniques and false

confessions. This assignment of error is not well taken.

       {¶42}   A court will presume that a properly licensed attorney is competent,

and the defendant bears the burden to show ineffective assistance of counsel. State

v. Hamblin, 37 Ohio St.3d 153, 155-156, 524 N.E.2d 476 (1988); Hackney, 1st Dist.

Hamilton No. C-150375, 2016-Ohio-4609, at ¶ 36. To sustain a claim for ineffective

assistance of counsel, the defendant must demonstrate that counsel’s performance

was deficient and that the deficient performance prejudiced the defense. Strickland



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v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hackney

at ¶ 36.

       {¶43}   Generally, the decision not to call an expert witness does not

constitute ineffective assistance of counsel because that decision is solely a matter of

trial strategy. State v. Coleman, 45 Ohio St.3d 298, 307-308, 544 N.E.2d 622

(1989); State v. Tobert, 1st Dist. Hamilton No. C-010700, 2003-Ohio-675, ¶ 19.

Further, Durgan’s counsel extensively and thoroughly cross-examined the lead

detective about the Reid Method and other interrogation techniques. The detective

acknowledged that the Reid Method can lead to false confessions.

       {¶44}   The record shows that Durgan’s counsel provided a diligent and

thorough defense. Durgan has not demonstrated that counsel’s representation fell

below an objective standard of reasonableness or that, but for counsel’s

unprofessional errors, the results of the procedure would have been otherwise.

Therefore, he has failed to meet his burden to show ineffective assistance of counsel.

See Strickland at 687-689; Hackney at ¶ 37-38.           We overrule Durgan’s fifth

assignment of error.


                                      VI. Summary

       {¶45}   In sum, we find no merit in Durgan’s five assignments of error. We,

therefore, affirm the judgment of the trial court.

                                                                   Judgment affirmed.


C UNNINGHAM , P.J., and Z AYAS , J., concur.


Please note:
       The court has recorded its own entry this date.




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