[Cite as State v. Campbell, 2017-Ohio-5665.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               ALLEN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 1-16-56

        v.

JAYLEN L. CAMPBELL,                                       OPINION

        DEFENDANT-APPELLANT.




                           Appeal from Lima Municipal Court
                             Trial Court No. 16 CRB 03031

                       Judgment Reversed and Cause Remanded

                               Date of Decision: July 3, 2017




APPEARANCES:

        Michael J. Short for Appellant

        John R. Payne for Appellee
Case No. 1-16-56



ZIMMERMAN, J.,

         {¶1} Defendant-appellant, Jaylen Campbell (“Campbell”) appeals the

November 29, 2016 judgment of the Lima Municipal Court sentencing him to 180

days in jail, with 150 days suspended, and two years of probation after Campbell

was found guilty of Domestic Violence in violation of R.C. 2919.25(A), a

misdemeanor of the first degree.

                                  Facts and Procedural History

         {¶2} On October 7, 2016, Campbell was charged with Domestic Violence, a

misdemeanor of the first degree, in the Lima Municipal Court. The charge stems

from the allegation that Campbell assaulted Jovelie Nelson (“Nelson”), his

girlfriend and the mother of his children, on October 5, 2016. Campbell pled not

guilty to the charge.

         {¶3} On November 28, 2016 the case proceeded to a bench trial.1 At trial

the State called four (4) witnesses: Nelson; Laquitha Robinson (“Robinson”), the

911 caller of the incident; and two Lima Police officers, Patrolman Matt Boss

(“Boss”) and Patrolman Nathan Fried (“Fried”).

         {¶4} After the State rested its case in chief, Campbell requested the charge

be dismissed pursuant to Crim.R. 29, which the trial court denied. And, after being



1
 The record does not contain either a written waiver of Campbell’s right to a jury trial or an on-the-record
waiver by Campbell of such right.

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Case No. 1-16-56


admonished by the trial judge of the potential negative consequences of testifying,

Campbell did not testify and thereafter presented no defense.

       {¶5} Campbell was found guilty of Domestic Violence and sentenced to 180

days in jail, with 150 days suspended, and two years of probation. It is from this

conviction that Campbell appeals, presenting the following two assignments of error

for our review.

                             Assignment of Error No. I

       THE CONVICTIONS [SIC] ARE NOT SUPPORTED BY THE
       WEIGHT OF THE EVIDENCE.

                            Assignment of Error No. II

       THE TRIAL COURT DENIED THE DEFENDANT HIS
       CONSTITUTIONAL RIGHT TO TESTIFY IN [SIC] HIS OWN
       BEHALF, THUS DENYING HIM A FAIR TRIAL

       {¶6} For the reasons that follow, we reverse the judgment of the Lima

Municipal Court and remand this matter to the trial court for a new trial.

                              First Assignment of Error

       {¶7} In Campbell’s first assignment of error, he argues that the conviction of

Domestic Violence is not supported by the weight of the evidence. We disagree.

                                 Standard of Review

       {¶8} In order for us to reverse a judgment on the basis that a verdict is against

the weight of the evidence, we must disagree with the trial court’s findings of any

conflicting testimony. State v. Thompkins, 78 Ohio St.3d 380, 389. In reviewing

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whether the trial court’s judgment was against the weight of the evidence, the

appellate court sits as the “thirteenth juror” and examines the conflicting testimony.

Id. at 387. In taking on this role, this court, reviewing the entire record, weighs the

evidence and all reasonable inferences, considers the credibility of witnesses and

determines whether, in reviewing the evidence, the trial court clearly lost its way

and created such a manifest miscarriage of justice that the conviction must be

reversed. Id. In making this analysis, we must be mindful that determinations of

credibility and weight of the testimony remain within the jurisdiction of the trier of

fact. State v. DeHass, 10 Ohio St.2d 230, 227 (1967), paragraph one of the syllabus.

       {¶9} When applying the manifest-weight standard, “[o]nly in exceptional

cases, where the evidence ‘weighs heavily against the conviction’, should an

appellate court overturn the trial court’s judgment.” State v. Haller, 3d Dist. Allen

No. 1-11-34, 2012-Ohio-5233, ¶9, quoting State v. Hunter, 131 Ohio St.3d 67,

2011-Ohio-6524, ¶119.

       {¶10} “Weight of the evidence concerns ‘the inclination of the greater

amount of credible evidence, offered in a trial, to support one side of the issue rather

than the other. It indicates clearly to the jury that the party having the burden of

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

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

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


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on its effect in inducing belief.’ ” (Emphasis omitted.) Thompkins, quoting Black’s

Law Dictionary, at 1594 (6th Ed.1990).

                                    State’s Case

       {¶11} The order of the witnesses called by the State was Nelson first, then

Officer Boss, followed by Robinson and ending with Officer Fried. But in an effort

to put the evidence in a better chronology of the factual events of the case, we choose

to discuss the evidence starting with the testimony of Robinson, the 911 caller.

       {¶12} Robinson started her testimony by stating (that) she did not want to

testify and only appeared in court because she was subpoenaed. (Tr. 24). Therefore,

the State requested that Robinson be treated as a hostile witness, which the trial

court approved. (Tr. 24). Thereafter, Robinson testified as follows as to her 911

call on October 5th:

       Q.   Ms. Robinson you called the police on October 5th of 2016
            didn’t you?
       A.   Yes.
       Q.   Because your upstairs neighbors were fighting?
       A.   Because I heard screamin’ on the back… out on my back
            door.
       Q.   And when you called the police you told the police that you
            saw the defendant stomping on your female neighbor’s head
            didn’t you?
       A.   I did not see him. No.
       Q.   You never saw him?
       A.   No. I did not see his face. No. I told them that [sic] were
            people upstairs fighting… umm… someone was screaming
            … and she had stopped screamin’.
       Q.   You never told the police that you saw them downstairs?
       A.   No

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       Q.      You never told the police that you saw him drag her upstairs
               by her hair?
       A.      No. I never told them I saw them [sic] drag him upstairs. I
               told the police that when I came out my back door there was
               someone upstairs screamin’ there was two people upstairs
               fighting… he kicked her in the face and then dragged her
               into the apartment.
       Q.      You told the police that you did see him kick her in the face?
       A.      I told the police that they were up the stairs fighting and yes,
               she got kicked in the face.
       Q.      So you were able to see that?
       A.      Yes.

(Tr. 24-25).

       {¶13} On cross-examination, Robinson stated she was not able to see who

was fighting; and that she never saw a foot actually connecting to the victim’s face.

(Tr. 27-28). And as to identifying Campbell in open court as the perpetrator of the

assault, Robinson testified as follows:

       Q.      Ok. So… when you’re saying you saw people outside are we
               talkin’ about like on a landing of the steps … on the steps?
       A.      Yeah. Upstairs on the landing and I couldn’t see who it was
               it’s just the way the landing is upstairs is there’s… pieces
               of… plywood it’s just like… like little bitty slits.
       Q.      Ok. So it’s not like a clear unobstructed view but yo… [sic]
       A.      Yeah. No. I could only see through the slits…

       ***

       Q.      So you see through the slits you’re seeing som [sic] something
               going on?
       A.      Yes.
       Q.      Movement, something?
       A.      Yes.
       Q.      You couldn’t tell male female?
       A.      No.

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       ***

       Q.    You know the gentleman seated next to me at all?
       A.    No.
       Q.    Did you ever see him on the night of October 5th?
       A.    No.

(Tr. 26-27). Additionally, Robinson was not able to identify Nelson in open court

as the female victim she witnessed involved in the fight outside of her home. (Tr.

29). However, during her re-direct examination, Robinson’s testimony does reveal

that she saw a person drag another person by their hair into the upstairs apartment,

as opposed to “up the stairs” and into the apartment. (Tr. 28, 30).

       {¶14} Nelson, the person whom the State alleged to be the victim in this case,

testified that Campbell is her boyfriend and the father of her children but does not

reside with her. (Tr. 3). Nelson testified that on October 5, 2016 officers from the

Lima Police Department arrived at her residence, but that she did not call (them) for

assistance. (Id.) She testified that after the officers arrived at her home she would

not answer the door and called the Lima police department to inquire as to why the

police were at her home.       (Tr. 4). Nelson testified as follows in regards to her

interaction with the police:

       Q.    (Prosecuting attorney)       Do you remember on October 5,
             having the police called to your residence?
       A.    (Nelson)       The police was called, but I didn’t call them.
       Q.    I didn’t say you called them, but you remember them
             showing up at your residence?
       A.    Yeah.

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       Q.    And do you remember at that point and [sic] time not
             wanting to talk to law enforcement officers?
       A.    Yeah because I didn’t call them.
       Q.    And you remember them not having … you’re [sic] not
             letting them in to your apartment?
       A.    Yes, that’s when I called in the police station to ask why they
             were here.
       Q.    And was your boyfriend at your apartment at that time?
       A.    Yeah.
       Q.    The father of your children?
       A.    Yep.

       ***

       Q.    And you told the officers that there had not been any type of
             fight between the two of you?
       A.    Yep.
       Q.    No physical altercation?
       A.    No physical.
       Q.    But you wouldn’t let the officers check your body for injuries
             would you?
       A.    No.

       ***

       Q.    And is your testimony that absolutely no physical altercation
             took place that day?
       A.    Yes.

(Tr. 4-5).

       {¶15} Nelson’s entire testimony encompassed only five pages in the trial

transcript, and thus, we find that the majority of her testimony involved her denial

of being involved in a physical altercation with anyone and that she suffered no

injury. However, Nelson did admit to police that she and Campbell had an argument

and (that), at some point, she injured her knee. (Tr. 17).

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       {¶16} Lima Police Officer Boss testified that on October 5, 2016 he and other

police officers responded to a 911 call in reference to a fight, wherein a male subject

was assaulting a female. (Tr. 9). Boss stated that when he arrived at the residence

he first made contact with Robinson, the person reporting the assault. (Tr. 11). Boss

testified that Robinson advised officers (Boss and Fried) that she saw a female

laying on the ground and saw a male “stomp on her” several times before dragging

her up the stairs to an apartment. (Tr. 9). According to Boss, Robinson’s only

description of the participants in the fight were a “male and female” (Tr. 9). After

speaking with Robinson, Boss proceeded to the upstairs apartment, located on the

second floor of Robinson’s residence, to investigate further.

       {¶17} Boss testified that the occupant of the upstairs apartment, later

identified as Nelson, would not answer the door to speak with officers. State’s

Exhibit A, the bodycam audio recording of the incident admitted into evidence,

contains the following conversation between officers and Nelson at this time:

       Officer: Ma’am we have to go in there (her apartment) to check
                your welfare.
       Nelson: No you don’t. You come back with a warrant and you
                can come in.
       Officer: I have reason to believe that maybe your boyfriend has
                a gun to one of your kids’ heads. (Exhibit A, recording of
                car 18, at 8:02:42).

       {¶18} After hearing this, Nelson complied with officers and opened her door

and told officers “I’m good”. (Exhibit A, recording of car 18, at 8:02:42).


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       {¶19} When questioned further, Boss testified as follow about the incident:

       Q.    What did you learn upon speaking with the female?
       A.    Umm she denied the incident. Umm other officers…I
             learned from other officers that had spoken to the children
             that they stated.. [sic] I forget their exact words.. [sic] but
             mommy and daddy were fighting. Umm we took her out of
             handcuffs while speaking with her she stated that her knees
             were bleeding from the incident but refused to show us the
             injuries that she claimed to have sustained.
       Q.    So the victim admitted to you that she’d received injuries but
             would not allow you to examine her?
       A.    Correct.
       Q.    Did she continue to say that there was no altercation between
             herself and the defendant?
       A.    She appeared uh yes, she continued to deny it but her
             demeanor was that one [sic] of being scared and fearful that
             if she said something umm she would be retaliated against.

(Tr. 17).

       {¶20} Lima Police Officer Fried was the fourth and final witness to testify

for the State. He testified that on October 5, 2016 he responded to a 911 call that

“a lady outside an apartment was being assaulted by a male”. (Tr. 33).

       {¶21} Fried identified Exhibit A, the officers’ bodycam audio recording of

the incident, which was admitted into evidence. Exhibit A provides audio of Nelson

telling officers that “he already left” (Tr. 35), but fails to reveal who “he” is.

       {¶22} On cross-examination, Fried testified that Robinson did not identify

Nelson or Campbell as being “the people outside” involved in the fight. (Tr. 39).

Robinson was only able to identify the suspect and victim as a “black male and

black female”.     Robinson gave no other distinguishing features or clothing

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identification to the police to help identify the participants in the assault, only that

the people involved in the altercation were black. (Tr. 39).

       {¶23} At this point the State rested and the defense requested a dismissal of

the case under Crim.R. 29, which the trial court denied. Thereafter, the defendant

chose not to testify and presented no defense. In finding Campbell guilty, the trial

court made the following findings as to the evidence:

       Ok. Taking uh the evidence into consideration… I did believe uh
       based upon the evidence of the officers that they were on scene
       shortly after the phone call was made by the person downstairs.
       Umm… [sic] when they arrived… this is where it gets a little dicey
       did they talk to the victim… the witness first… did they go
       upstairs to talk to the the [sic] victim? Umm [sic] but in any event
       they did go and and [sic] try to make contact with the victim in
       this case and no one would answer the door. Umm [sic] you can
       hear that on the State’s Exhibit “A”. Continuous knocking…
       umm [sic] no one answered. Umm [sic] obviously the victim did
       not want the assistance of law enforcement. Umm [sic] what’s
       interesting is the victim herself kept saying he didn’t do anything,
       he didn’t do anything… so in referring to you. You didn’t do
       anything, you didn’t do anything. That points to you. She was
       trying to defend you because she didn’t want law enforcement
       involved.

       ***

       Sir. Stop. So… and there was no explanation… she didn’t say
       someone else was outside… there was no indication anyone was
       outside… umm [sic] and the [sic] interestingly enough… the third
       party witness who did not want to be here, and did not want to
       give details, and did everything in her power not to give details
       that would convict you sir… did say again and again about the
       physical altercation, the victim being on the ground, screaming
       and a loud argument… and… pulling her or dragging her back
       in the apartment and pulling her by the hair… all is the same

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      thing. That never changed. Because of that I find that the State
      proved their case beyond a reasonable doubt.

                                     Analysis

      {¶24} The elements of the charge of domestic violence under R.C.

2919.25(A) are as follows:

      No person
      Shall knowingly cause or attempt to cause
      Physical harm
      To a family or household member

Thus, in order for Campbell’s conviction to stand the State was required to present

evidence on each of the above elements.

      {¶25} In support of Campbell’s conviction for domestic violence, the State

presented the testimony of only four (4) witnesses, namely: 1) Robinson, the 911

caller; 2) Nelson, the “victim”; and 3) Boss and 4) Fried, the responding police

officers. From their testimonies it is evident that a black male and black female

were engaged in some sort of altercation outside of Robinson’s residence. Clearly,

even though she could not identify the individuals in the fight, Robinson was able

to direct police to the residence where the “male and female” entered after the

assault occurred, which was “up the stairs” from Robinson’s residence. Boss and

Fried were on the scene timely and commenced their investigation with direction

from Robinson to the upstairs apartment. Once there, the officers found Campbell




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and Nelson in the apartment, who matched the broad description relayed by

Robinson.

       {¶26} Boss and Fried did not see any sign of a physical injury to Nelson, but

did testify (that) Nelson admitted to having an argument with Campbell and to

having an injury to her knee.

       {¶27} In our review of the record we agree with the trial court that the police

officers were on the scene promptly after the 911 call and that an argument of some

degree took place between the individuals occupying the apartment up the stairs

from Robinson’s residence. Since both Nelson and Campbell were located in the

apartment and matched the general description that Robinson gave police, the trial

court could reasonably infer that Campbell and Nelson could have been involved in

some type of altercation that police needed to investigate. And, upon Nelson’s

admission to police that she and Campbell were arguing and (that) she injured her

knee, the trial court could reasonably infer that they were the individuals involved

in the fight witnessed by Robinson and, at the very least, Campbell had attempted

to cause physical harm to Nelson in such fight.

       {¶28} Lastly, it is without dispute that Campbell and Nelson are family

members based upon Nelson’s admission that Campbell is the father of her children.




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       {¶29} Thus, while the evidence may be somewhat dubious due to the lack of

noticeable injury to Nelson and the lack of a positive identification of Campbell, we

cannot say the evidence presented by the State “weighs heavily against conviction”.

       {¶30} Accordingly, appellant’s first assignment of error is overruled.

                             Second Assignment of Error

       {¶31} In his second assignment of error, Campbell asserts that he was denied

due process of law by virtue of the trial court’s advisement of the potential negative

consequences should he testify in his defense. In other words, Campbell argues the

trial court talked him out of testifying at trial.

       {¶32} We are cognizant that the Due Process Clause of the United States

Constitution entitles a criminal defendant to an impartial and disinterested tribunal.

Cleveland v. Shaffer, 112 Ohio App.3d 631 (1996), Marshall v. Jerrico, Inc., 446

U.S. 238, 100 S.Ct. 1610, 64 L.Ed.2d 182 (1980). The neutrality requirement helps

to guarantee that life, liberty, or property will not be taken on the basis of an

erroneous or distorted conception of the facts of law.” Id., at 242.

       {¶33} Further, “the defendant’s right to testify is regarded both as a

fundamental and a personal right that is waivable only by an accused.” State v. Bey,

85 Ohio St.3d 487, citing Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d

37, (1987); Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312, 77 L.Ed.2d

987, 993, (1983). “But in Ohio, courts of appeals have held that a trial judge is not


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required to conduct an inquiry with the defendant about the decision whether to

testify.” Bey, supra, citing State v. Oliver, 101 Ohio App.3d 587 (1995). “In fact,

most courts have ruled that neither the United State Constitution nor applicable rules

require the trial judge to ask the defendant about the decision not to testify.” Bey,

citing Brown v. Artuz, 124 F.3d 73, at 78; State v. Walen, 563 N.W.2d 742, (1997);

State v. Gulbrandson, 184 Ariz. 46, 64, 906 P.2d 579, 597, (1995); Phillips v. State,

105 Nev. 631, 632-633, 782 P.2d 381, 382, (1989); Aragon v. State, 114 Idaho 758,

762-763, 760 P.2d 1174, 1178-1179, (1988); Commonwealth v. Hennesey, 23

Mass.App.Ct. 384, 387-90, (1987). “We agree and hold that a trial court is not

required to conduct an inquiry with the defendant concerning the decision whether

to testify in his defense.” Bey, supra.

       {¶34} “Reasons vary for rejecting the requirement. Such an inquiry is

thought to be simply unnecessary. Alternatively, it may be thought harmful. As

Chief Justice Erickson of the Colorado Supreme Court noted, an inquiry ‘unduly

interfere[s] with the attorney-client relationship’ ”. Bey, citing People v. Curtis, 681

P.2d 504, 519 (1984). “An inquiry ‘places the judge between the lawyer and his

client and can produce confusion as well as delay’ ”. Bey, citing Underwood v.

Clark, 939 F.2d 473, 476 (1991). “For example, questioning can lead into the

judge’s evaluation of the wisdom of the defendant’s decision, the substance of the

testimony, or simply evoke a dramatic change in a previously carefully considered


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trial strategy.” Bey, citing United States v. Goodwin, 770 F.2d 631, 636 (4985).

“Whether the defendant is to testify is an important tactical decision as well as a

matter of constitutional right.” Bey, quoting Brooks v. Tennessee, 406 U.S. 605,

612, 92 S.Ct. 1891, 32 L.Ed.2d 358, 364, (1972).

       {¶35} With this being said, the trial court inquired of Campbell, after he was

called as a witness, as follows:

       DEFENSE ATTORNEY: Ok. Uh if I could have just one second
                         to talk to my client:

       TRIAL COURT:                  Mhmm.

       DEFENSE ATTORNEY: Ok your Honor uh at this time would
                         call the defendant Mr. Campbell.

       TRIAL COURT:                  Ok. Mr. Campbell before you get up
                                     there I’m gonna … I’m gonna
                                     admonish you … I know Mr.
                                     Chamberlain just did but I need to do
                                     that as well. You have the uh right to
                                     remain silent, you don’t have to
                                     testify … umm … in this matter at all.
                                     The burden’s [sic] on the state. Umm
                                     … if you do decide to testify as Mr.
                                     Chamberlain indicated you will be
                                     subject to cross examination, you will
                                     be placed under oath and you’re
                                     gonna have to answer the questions as
                                     asked. Even questions you may not
                                     wanna answer.

       DEFENDANT:                    Ok.

       TRIAL COURT:                  Even questions that might support a
                                     guilty finding … you would have to

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                                    answer. Ok? Umm … I’ve been
                                    doing this for quite a while and I can
                                    tell you … on a number of occasions,
                                    many occasions, a witness or a
                                    defendant will take the stand and
                                    actually provide information that is
                                    not favorable …

       DEFENDANT:                   I’m nervous now but …

       TRIAL COURT:                 I’m just, I’m just telling you that that
                                    [sic] many times they will provide
                                    information that’s not favorable, so
                                    you’ve gotta take this …

       DEFENDANT:                   (Interrupting) I didn’t do … I didn’t
                                    do anything.

       TRIAL COURT:                 Sir, I’m just telling you. That that’s
                                    what’s happened. I’m not saying
                                    you’re going to do that, but there is a
                                    possibility.

       DEFENSE ATTORNEY: Your Honor … On the court’s
                         admonishment he’s declining.

       TRIAL COURT:                 Ok.

       DEFENSE ATTORNEY: … to testify so the defense has no uh
                         witnesses to present and we would
                         rest I guess (unintelligible) re-
                         statement of Rule 29 motion at this
                         time.

(Tr. 40-41).

       {¶36} It is evident to us that the trial court’s admonishment of Campbell was

not necessary and resulted in Campbell changing his mind to testify. Albeit, the


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trial court may have provided Campbell insight as to why he shouldn’t testify, the

inquiry placed the trial court in conflict with Campbell and his lawyer’s initial

decision for Campbell to testify. Assuming arguendo that Campbell had chosen not

to testify and the trial court then inquired (of Campbell) to determine whether his

decision (not to testify) was properly thought through, our decision would be

different. However, such is not the case as Campbell changed his decision to testify

because of the trial court’s advisement. Thus, we find the trial court influenced

Campbell’s decision to waive his right to testify due to its advisement.

       {¶37} Accordingly, we reverse the conviction of the appellant and remand

this matter to the trial court for a new trial.

       {¶38} Having found no error prejudicial to Campbell in his first assignment

of error, but finding error in Campbell’s second assignment of error, the first

assignment of error is overruled and the second assignment of error is sustained.

The judgment of the Lima Municipal Court is therefore reversed and this matter is

remanded to the trial court for a new trial.

                                                           Judgment Reversed and
                                                                Cause Remanded

PRESTON, P.J. and SHAW, J., concur.

/jlr




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