      [Cite as State v. Washington, 2014-Ohio-4178.]
                IN THE COURT OF APPEALS
            FIRST APPELLATE DISTRICT OF OHIO
                 HAMILTON COUNTY, OHIO



STATE OF OHIO                                     :    APPEAL NO. C-130213
                                                       TRIAL NO. B-1107595B
     Plaintiff-Appellee,                          :

      vs.                                         :         O P I N I O N.

BRENDAN WASHINGTON,                               :

     Defendant-Appellant.                         :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: September 24, 2014



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Rachel Lipman
Curran, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Michaela M. Stagnaro, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                       OHIO FIRST DISTRICT COURT OF APPEALS



C UNNINGHAM , Presiding Judge.

        {¶1}     Defendant-appellant        Brendan      Washington       appeals    from     the

judgment of the Hamilton County Common Pleas Court convicting him, after a no-

contest plea, of two aggravated murders and other related offenses. Washington and

three others killed Rudell Englemon and then killed Carrielle Conn, one of their

group, to ensure her silence. Washington was 15 years old when he committed these

offenses. Raising three assignments of error, Washington contends that the juvenile

court erred in transferring jurisdiction to the common pleas court, that statements

he made to police detectives should have been suppressed, and that his trial counsel

was ineffective. We disagree, and affirm the judgment below.

                                 The Englemon Killing
        {¶2}     On October 14, 2011, Washington and the 17-year-old Conn,

accompanied by minors Dequantez Nixson and Tyshawn Barker,1 went to a Cincinnati

apartment intending to shoot its occupant, Samuel Jeffries. Jeffries had sworn out a

complaint against Nixson’s mother, Lakeshia Prince, for felonious assault and

domestic violence.      At Nixson’s urging, the group planned to shoot Jeffries in

retaliation. Nixson and Barker waited in the hallway while Washington knocked on

the door to summon Jeffries. But instead of Jeffries, Englemon answered the door.

Conn shot Englemon. As the group fled, Nixson told them that they had shot the

wrong man. Englemon survived for one week.

                         A Second Killing to Silence Conn
        {¶3}     Nixson learned that Conn had told Jeffries of their involvement in

killing Englemon. Concerned that Conn would “snitch” to the police, on October 16,

2011, Nixson called Conn to lure her to a deserted train track near Victory Parkway in

Cincinnati. Nixson told police that Washington then shot Conn with his .22-caliber



1 We affirmed Barker’s convictions in State v. Barker, 1st Dist. Hamilton No. C-130214, 2014-Ohio-
3245.


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                      OHIO FIRST DISTRICT COURT OF APPEALS



revolver and passed the gun around to the group to fire additional shots into Conn’s body.

Washington claimed that Nixson had fired the first shot and that when the gun was passed

to him, Washington tried to shoot the fallen Conn but the revolver failed to fire. Nixson

was later found with Conn’s red and black cellular telephone in his possession.

       {¶4}     Nixson’s mother, who was at the apartment where Englemon was

shot, identified Conn as one of the individuals involved in the first shooting. Nixson

was brought in for questioning and admitted his involvement. He also confirmed

Barker’s and Washington’s participation in the shootings.

                  The Transfer and Trial Court Proceedings
       {¶5}     The surviving perpetrators were soon apprehended. Washington was

found in a derelict Avondale apartment building. During a two-hour interrogation

by Cincinnati police detectives Kurt Ballman and Terry McGuffey, Washington

admitted his role in the killings. His confession was recorded electronically and

preserved by a DVD recording. The police filed a delinquency complaint including

charges of murder against Washington in juvenile court on October 24, 2011.

       {¶6}     The juvenile court conducted a discretionary-transfer proceeding and

found that there was probable cause to believe Washington had committed the

charged crimes. An evaluation assessing Washington’s amenability to rehabilitation

in the juvenile system was prepared by clinical psychologist Dr. Kathleen Hart. The

court heard the arguments of counsel and reviewed the evaluation and the evidence

before it. On November 30, 2011, the juvenile court ordered that Washington be

transferred to the jurisdiction of the common pleas court.

       {¶7}     The grand jury returned a multiple-count indictment against

Washington, Barker, and Nixson. Washington moved to suppress his statements to

the police. Following the common pleas court’s denial of the motion, Washington

entered pleas of no contest to all the charges. The trial court accepted his pleas and

found him guilty of the aggravated murder and aggravated robbery of Englemon and



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Conn, the accompanying specifications, and multiple counts of tampering with

evidence. It imposed an aggregate sentence of 25 years’ to life imprisonment.

          The Juvenile Court Properly Transferred Jurisdiction
       {¶8}     In his first assignment of error, Washington argues that the juvenile court

erred in transferring jurisdiction over his case to the common pleas court. He challenges

both the juvenile court’s determination that probable cause existed to believe that

Washington had committed the charged acts, and its determination that Washington was

not amenable to care or rehabilitation within the juvenile system.

       {¶9}     Discretionary      Transfer.       Juvenile    courts   possess   “exclusive

jurisdiction” over delinquent children who commit acts that would constitute crimes if

committed by an adult. In re M.P., 124 Ohio St.3d 445, 2010-Ohio-599, 923 N.E.2d 584, ¶

11, citing R.C. 2151.23(A)(1). But more than 40 years ago, this court recognized that the

juvenile court system may not be able

         to protect the public in those cases where rehabilitation appears

         unlikely and circumstances indicate that if the charge is ultimately

         established society would be better served by the criminal process by

         reason of the greater security which may be achieved or the deterring

         effect which that process is thought to accomplish.

In re Mack, 22 Ohio App.2d 201, 203, 260 N.E.2d 619 (1st Dist.1970).

       {¶10}    R.C. 2151.12 permits juvenile courts to transfer certain juveniles to adult

court to face criminal sanctions. There are two types of transfers under Ohio’s juvenile

scheme: mandatory and discretionary. See State v. D.W., 133 Ohio St.3d 434, 2012-Ohio-

4544, 978 N.E.2d 894, ¶ 10. A juvenile court has discretion to transfer, or bind over, to an

adult court, juvenile offenders who have committed felony-level offenses, who are at least

14 years of age, who do not appear to be amenable to care or rehabilitation within the

juvenile system, and who appear to be a threat to public safety. See D.W. at ¶ 10; see also

R.C. 2152.10(B) and 2152.12(B); Juv.R. 30(C).


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       {¶11}    A juvenile court’s order granting transfer is not immediately appealable.

As here, any errors alleged in the transfer proceeding must be raised in an appeal from the

subsequent judgment of the adult court. See In re Becker, 39 Ohio St.2d 84, 314 N.E.2d

158 (1974); see also State v. Wilson, 73 Ohio St.3d 40, 44, 652 N.E.2d 196 (1995).

       {¶12}    The Probable-Cause Determination.                  A discretionary-transfer

proceeding has two components: a probable-cause determination and an amenability

determination. See In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, ¶

38; see also State v. Whitterson, 1st Dist. Hamilton No. C-110207, 2012-Ohio-2940, ¶ 19.

When, as here, the state has sought discretionary transfer, the juvenile court must first

determine if the juvenile offender is at least 14 years of age and whether probable cause

exists to believe that the juvenile committed the acts charged. See R.C. 2152.12(B)(1) and

(2).

       {¶13}    To establish probable cause, the state must provide credible evidence of

every element of the charged offense. The state must produce evidence that raises more

than a mere suspicion of guilt, but it need not provide evidence proving guilt beyond a

reasonable doubt. See A.J.S. at ¶ 42 and 46; see also In re Moore, 1st Dist. Hamilton Nos.

C-090576, C-090577 and C-090578, 2010-Ohio-3991, ¶ 22; In re D.S., 1st Dist. Hamilton

No. C-130094, 2013-Ohio-4565, ¶ 6.           Because a juvenile court’s probable-cause

determination involves questions of both fact and law, an appellate court defers to the

juvenile court’s determinations regarding witness credibility, but reviews de novo its legal

conclusion as to whether the state presented sufficient evidence to demonstrate probable

cause to believe that the juvenile committed the acts charged. See A.J.S. at ¶ 51.

       {¶14}    Here, to establish probable cause for the aggravated murders charged in

this case, the state had the burden to provide credible evidence that Washington had

purposely, and with prior calculation and design, engaged in conduct that caused the

deaths of Englemon and Conn. See R.C. 2903.01(A). Because the other charged offenses

were committed during the same course of conduct, the juvenile court had the authority to



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transfer the entire case pursuant to R.C. 2152.12(I) once it found sufficient probable cause

to warrant transfer of the aggravated-murder charges to the adult court, and found that

Washington was amenable to transfer.

         {¶15}   Washington challenges the juvenile court’s determination that the state

had demonstrated probable cause. He contends that there was no physical evidence, nor

were there independent witnesses, linking Washington to the crimes, and that the state

had relied too heavily upon the testimony of his codefendants.

         {¶16}   But the state adduced ample, credible evidence on each element of the

offenses, including Washington’s own statements to police detectives, demonstrating that

Washington, standing next to Conn, had knocked on the door to gain access to Jeffries’

apartment when Conn shot Englemon. He admitted that the group had planned to shoot

Jeffries as payback for signing a criminal complaint against Nixson’s mother. Washington

admitted that he was with Nixson and Barker when they lured Conn onto the train tracks.

He admitted that the group had used his .22-caliber revolver to shoot Conn. Finally, he

admitted that he had tried to shoot her. The state met its burden to establish probable

cause.

         {¶17}   The Amenability Determination.             If, as here, the juvenile court

determines that probable cause exists, it must continue the proceeding for an

investigation, including a mental examination of the juvenile offender.            See R.C.

2152.12(C); Juv.R. 30(C). The court must then hold a hearing to determine whether the

child is amenable to care or rehabilitation within the juvenile system and whether the

safety of the community may require that the child be subject to adult sanctions. See R.C.

2152.12(B)(3).

         {¶18}   In reaching its amenability determination, the juvenile court is required to

consider certain statutory factors and decide whether the factors in favor of transfer

outweigh the factors indicating that the case should remain in juvenile court. See R.C.

2152.12(B)(3). R.C. 2152.12(D) lists the factors in favor of transferring jurisdiction, while



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                      OHIO FIRST DISTRICT COURT OF APPEALS



R.C. 2152.12(E) lists the factors in favor of retaining jurisdiction. In addition to the

enumerated factors listed in those statutes, the juvenile court is instructed to consider “any

other relevant factors.” R.C. 2152.12(D) and (E). The juvenile court must ensure that the

record of its determination “indicate[s] the specific factors that were applicable and that

the court weighed.” R.C. 2152.12(B)(3).

       {¶19}    Unlike the probable-cause determination, “an amenability hearing is a

broad assessment of individual circumstances and is inherently individualized and fact-

based.” M.P., 124 Ohio St.3d 445, 2010-Ohio-599, 923 N.E.2d 584, at ¶ 14. Therefore, a

reviewing court will not reverse the juvenile court’s amenability determination unless the

court has abused its discretion. See id., citing A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307,

897 N.E.2d 629, at ¶ 39 and 40; see also Barker, 1st Dist. Hamilton No. C-130214, 2014-

Ohio-3245, at ¶ 7 and 8 (using the abuse-of-discretion standard of review where the

juvenile-appellant challenges only the court’s amenability determination).

       {¶20}    Here, Washington claims the amenability determination was flawed

because the juvenile court “only considered” four of the 19 statutory factors—each of the

four supporting transfer. He argues that the court failed to consider factors against

transfer. See, e.g., R.C. 2152.12(E)(3), (5), and (6). The juvenile justice system, he argues,

would provide “the last hope” for his rehabilitation, and the juvenile court’s focus on the

severity of the crimes skewed its weighing of the factors.

       {¶21}    Following the amenability hearing, the juvenile court determined that

Washington was not amenable to rehabilitation within the juvenile justice system and that

a transfer to the common pleas court was appropriate. The court stated that it had

reviewed the detailed, six-page evaluation of Washington prepared by Dr. Hart, and all

other evidence before it.

       {¶22}    The juvenile court found that the complaint alleged Washington had

committed acts that would be punishable as felonies if committed by an adult, and that

Washington was 15 years old at the time of the acts charged. See R.C. 2152.12(B)(1) and



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                       OHIO FIRST DISTRICT COURT OF APPEALS



(2).   It next considered the statutory factors in favor of and against transfer.            See

2152.12(B)(3). It found four factors in favor of transfer: that Washington had used a

firearm in both murders, that the second murder was carried out to silence “a witness to

the first homicide,” that Washington was emotionally, physically, and psychologically

mature enough for transfer, and that there was not sufficient time to rehabilitate him

within the juvenile system. See R.C. 2152.12(B)(3) and 2152.(D)(5), (8), and (9). The

court found no applicable factors against transfer and concluded that the applicable

factors in favor of transfer outweighed any factors against. Therefore, the court found that

there were reasonable grounds to believe that Washington was not amenable to care or

rehabilitation within the juvenile system and that the safety of the community required

adult sanctions. See R.C. 2152.12(B)(3).

        {¶23}    Contrary to Washington’s assertion, the juvenile court’s entry indicates

that it considered each of the statutory factors. In accordance with R.C. 2152.12(B)(3), the

court identified only “the specific factors that were applicable and that the court weighed,”

both in its entry and in its pronouncement at the amenability hearing. Where there is no

statutory requirement that the juvenile court separately identify factors that are not

applicable, it does not err if it fails to do so, as long as it has indicated, in the record, the

factors that it weighed in favor of or against transfer.

        {¶24}    At the time of the amenability hearing, Washington was 16 years old. Dr.

Hart found that he understood the nature and severity of his situation. She found him

alert, well oriented, rational and coherent. Her evaluation found no mental- or physical-

health issues that would preclude transfer to the adult system. The juvenile court doubted

whether Washington’s “relatively short time frame” remaining in the juvenile system was

sufficient for rehabilitation commensurate with his participation in a double homicide, the

second of which was done to prevent a witness from testifying against him.

        {¶25}    Washington had had numerous prior contacts with the juvenile justice

system. He had been adjudicated delinquent ten times in the previous two years for



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offenses including theft, receiving stolen property, and possession of a counterfeit

controlled substance.     He had refused to participate in the court’s most recent

rehabilitation programs. And he had been “on the run,” supporting himself and living a

transient life in the months previous to the murders.

       {¶26}    As required by R.C. 2152.12(B)(3), the record indicates “the specific

factors that were applicable and that the court weighed,” and the reasons for transfer. See

Juv.R. 30(G). Based on the record, the juvenile court properly complied with all the

requirements for discretionary transfer. The juvenile court’s amenability determinations

are amply supported by the record and evince a sound reasoning process. See State v.

Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 14, citing AAAA Ents.,

Inc. v. River Place Community Urban Redev. Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d

597 (1990). The court did not abuse its discretion. The first assignment of error is

overruled.

                   Washington’s Confession Was Voluntary
       {¶27}    In his second assignment of error, Washington contends that the trial

court erred in denying his motion to suppress his statements made to police detectives.

Washington argues that, despite signing a waiver-of-rights form, he did not voluntarily

and knowingly waive his right to remain silent under Miranda v. Arizona, 384 U.S. 436,

86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Washington now argues that his young age and

limited experience with the criminal justice system, his lack of sleep, the absence of family

members available to him during questioning, and police trickery prevented him from

knowingly waiving that right.

       {¶28}    We review a trial court’s ruling on a motion to suppress in a two-step

process. First, we must accept the trial court’s findings of historical fact if they are

supported by competent, credible evidence. See State v. Burnside, 100 Ohio St.3d 152,

2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. Then this court must make an independent




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determination, as a matter of law, without deference to the trial court’s legal conclusions,

whether those facts meet the applicable constitutional standards. See id.

       {¶29}    The state bears the burden of demonstrating by a preponderance of the

evidence that Washington’s waiver of rights and statement were voluntary. See State v.

Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 32; see also State v.

Cedeno, 192 Ohio App.3d 738, 2011-Ohio-674, 950 N.E.2d 582, ¶ 17 (1st Dist.). The state

sought to discharge that burden by relying on a recently enacted statute, R.C. 2933.81,

effective July 6, 2010. To encourage the police to record the custodial interrogation of

suspects accused of homicide or serious sex offenses, the General Assembly has provided

that when the police make “an audio and visual recording that is an authentic, accurate,

unaltered record” of the interrogation, the suspect’s statements made during the

interrogation are “presumed to be voluntary.” R.C. 2933.81(A)(3) and (B). Pursuant to

the statute, the suspect then has “the burden of proving that [his] statements * * * were

not voluntary.” R.C. 2933.81(B).

       {¶30}    Here, police detectives made a DVD recording of their custodial

interrogation of Washington, who was then a suspect in the investigation of two

aggravated murders. Detective Ballman testified at the motion-to-suppress hearing that

the DVD recording was a fair and accurate record of the interrogation. The DVD disc and

transcript were admitted into evidence. The state also offered Washington’s waiver-of-

rights form into evidence. Detective Ballman testified that after he had explained each of

his rights to him, Washington signed the waiver-of-rights form and agreed to answer

questions. We note that Washington first signed the waiver form as Jeremy Neely, a false

name that he had originally given to the detectives. He subsequently signed the form as

Brendan Washington. Detective Ballman then briefly testified that that he had no reason

to believe that Washington had not voluntarily waived his rights. The state rested.

       {¶31}    Washington’s trial counsel then extensively cross-examined Detective

Ballman, attempting to highlight factors indicating that Washington had not voluntarily



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                       OHIO FIRST DISTRICT COURT OF APPEALS



waived his rights. Whether a juvenile has voluntarily, knowingly, and intelligently waived

his Miranda rights and answered police questioning may be inferred from the totality of

the circumstances surrounding the waiver, including the age, mentality, and prior criminal

experience of the accused, the length, intensity, and frequency of interrogation, and the

existence of physical deprivation or inducement. See In re Watson, 47 Ohio St.3d 86, 548

N.E.2d 210 (1989), paragraph one of the syllabus; see also Leonard, 104 Ohio St.3d 54,

2004-Ohio-6235, 818 N.E.2d 229, at ¶ 32. We note that Washington did not challenge the

constitutionality of R.C. 2933.81 in the trial court, and he has not raised the issue here.

       {¶32}    On cross-examination, Detective Ballman testified that he and Detective

McGuffey had questioned Washington from 4:48 a.m. until just before 7:00 a.m. on

October 20, 2011. While Washington was sleeping on chairs in the interview room when

the detectives arrived, Washington remained fully awake during the ensuing questioning.

Washington acknowledged that he could read and write, and that he was not under the

influence of alcohol or drugs, before signing the waiver-of-rights form. He was given a

snack to eat and was offered drink and the opportunity to use a bathroom during the

questioning.

       {¶33}    There was ample competent, credible evidence adduced at the hearing to

support the trial court’s conclusion, announced orally on June 13, 2012, that Washington

had been properly advised of his rights prior to making his statements and that he had

knowingly waived those rights. A signed waiver form is “strong proof” of the validity of the

waiver. State v. Moore, 81 Ohio St.3d 22, 32, 689 N.E.2d 1 (1998). Washington never

asked to speak to an attorney or to family members before or during questioning. While

Washington was only 15 years old, his age, by itself, does not render his waiver

involuntary. See Watson, 47 Ohio St.3d at 89, 548 N.E.2d 210 (holding a 14-year-old

aggravated-murder suspect’s statements to be voluntary); see also State v. Tibbs, 1st Dist.

Hamilton No. C-100378, 2011-Ohio-6716 (holding a 15-year-old aggravated-murder




                                               11
                      OHIO FIRST DISTRICT COURT OF APPEALS



suspect’s statements to police to be voluntary). And Washington was not a neophyte in

dealings with law enforcement and the juvenile court.

        {¶34}   Finally, there is no evidence of police coercion or overreaching during the

interrogation. Washington did not appear to be cowed by the police questioning. He

engaged the detectives and responded to their questions in a logical manner.            The

detectives’ statements that if he did not tell the truth, they could not help him were more

akin to an admonition to tell the truth than a promise of possible benefits and were not

improper. See, e.g., State v. Dixon, 101 Ohio St.3d 328, 2004-Ohio-1585, 805 N.E.2d

1042.

        {¶35}   Under the totality of the circumstances surrounding the questioning, it is

clear that Washington did not rebut the presumption, established by the DVD recording,

that he had been properly advised of his Miranda rights and that he understood those

rights when he signed the waiver form and answered the detectives’ questions. Based

upon the evidence presented, we hold that the trial court was justified in denying

Washington’s motion. The second assignment of error is overruled.

                       Trial Counsel Was Not Ineffective
        {¶36}   Finally, Washington argues that he was denied the effective assistance of

counsel when his trial counsel failed to challenge Dr. Hart’s evaluation at the amenability

hearing, failed to obtain his own psychological expert, and failed to call family members or

friends to testify about Washington’s lack of maturity.

        {¶37}   To prevail on his claim of ineffective assistance of trial counsel,

Washington must first show that trial counsel’s performance was deficient, and second,

that the deficient performance was so prejudicial that he was denied a reliable and

fundamentally fair proceeding.     See Strickland v. Washington 466 U.S. 668, 687, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also Lockhart v. Fretwell, 506 U.S. 364, 369-370,

113 S.Ct. 838, 122 L.Ed.2d 180 (1993); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d

373 (1989), paragraph three of the syllabus.



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                       OHIO FIRST DISTRICT COURT OF APPEALS



       {¶38}     Here, Washington’s experienced trial counsel cogently argued to the

juvenile court that the mental-health evaluation supported a number of factors arguing

against transfer to the adult court, including that Washington had cooperated with the

police, that he had not been the principal actor in either murder, that he had been under

the sway and influence of Nixson, and that Washington’s prior delinquency adjudications

had been for relatively minor offenses and had not required rehabilitation at a residential

facility. He also argued that there was ample time to rehabilitate the then 16-year-old

Washington in the juvenile system, and that the Department of Youth Services could

provide reasonable assurances of public safety.

       {¶39}     The record is silent as to whether other evidence favorable to Washington

existed. Washington had been homeless for several months before the murders. He had

had a troubled relationship with his mother and had not seen his father in three years. A

trial counsel’s decision whether to call witnesses falls within the rubric of trial strategy and

will not be second-guessed by a reviewing court. See State v. Treesh, 90 Ohio St.3d 460,

490, 739 N.E.2d 749 (2001), citing State v. Williams, 74 Ohio App.3d 686, 695, 600

N.E.2d 298 (8th Dist.1991). Moreover, Washington’s family and emotional difficulties

were fully detailed in Dr. Hart’s evaluation. See State v. Whitterson, 1st Dist. Hamilton

No. C-110207, 2012-Ohio-2940, ¶ 27-28. Washington has thus failed to establish that

counsel’s performance was deficient or that any alleged deficiency deprived him of a fair

hearing. The third assignment of error is overruled.

       {¶40}     Therefore, the judgment of the trial court is affirmed.



                                                                           Judgment affirmed.

FISCHER and DEWINE, JJ., concur.

Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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