[Cite as State v. Steele, 138 Ohio St.3d 1, 2013-Ohio-2470.]




      THE STATE OF OHIO, APPELLANT AND CROSS-APPELLEE, v. STEELE,
                          APPELLEE AND CROSS-APPELLANT.
            [Cite as State v. Steele, 138 Ohio St.3d 1, 2013-Ohio-2470.]
Criminal law—Offenses—Intimidation—R.C. 2921.03—Abduction—R.C. 2905.02(A)(1)
        and (A)—Police officer not exempt from prosecution for offense of intimidation
        for abusing power to interrogate or for knowingly filing a materially false
        complaint to intimidate or influence witness—Jury instruction defining
        “privilege” in context of police officer’s privilege to arrest and detain is not
        plain error when instruction is identical to definition of “privilege” in R.C.
        2901.01(A)(12).
     (Nos. 2011-2075 and 2011-2178—Submitted March 12, 2013—Decided
                                       June 18, 2013.)
   APPEAL and CROSS-APPEAL from the Court of Appeals for Hamilton County,
                             No. C-100637, 2011-Ohio-5479.
                                 ____________________
        O’NEILL, J.
        {¶ 1} In this appeal and cross-appeal, we are presented with two issues.
First, we consider whether police officers are exempt from prosecution for the
offense of intimidation when accused of abusing their power to interrogate. We
hold that R.C. 2921.03 provides no such exemption. A police officer may be
convicted of intimidation when the state presents evidence that the police officer
knowingly filed a materially false complaint in order to influence or intimidate a
witness.
        {¶ 2} Second, we consider what instructions a trial court must provide to
a jury on the definition of the “privilege” exception to the offense of abduction
when the defendant is a police officer accused of abusing his privilege to arrest
and detain. We hold that when a trial court’s definition of “privilege” is identical
                               SUPREME COURT OF OHIO




to the definition provided in R.C. 2901.01(A)(12), such an instruction does not
constitute plain error.
                          Factual and Procedural Background
        {¶ 3} On May 26, 2009, police officer Julian Steele was indicted on ten
counts, including abduction, intimidation, extortion, rape, and sexual battery. The
charges stemmed from Steele’s investigation of a series of six robberies that
occurred in the same neighborhood in Cincinnati, Ohio. Shortly after one of the
robberies, a resident in the neighborhood saw a vehicle driving suspiciously. The
resident provided the vehicle’s license-plate number to police, who linked the
vehicle to A.M.
        {¶ 4} The state presented evidence at trial that once Steele became aware
that A.M. had children, he went to their school, arrested three children, and had
their lockers searched. One of those children was R.M. Steele took R.M. into
custody by handcuffing him and placing him in the caged back seat of a police
cruiser. Steele told the school employees not to tell A.M. that he had taken R.M.
into custody. Steele also told school employees the next day that he knew that
R.M. was innocent. Although R.M. did not fit the physical descriptions of the
robbers, Steele took R.M. to the police station and interrogated him extensively,
using threatening and coercive tactics, prior to any attempt to offer him his
constitutionally guaranteed Miranda warning. Specifically, after R.M. flatly and
strongly denied knowledge of or involvement in the robberies, Steele threatened
R.M. by telling him that his mother would be jailed and his siblings would be
taken away if R.M. did not confess to the robberies. R.M. succumbed to the
coercion and made a false confession. Steele then Mirandized R.M. and taped his
confession.
        {¶ 5} Using R.M.’s false statement, Steele was able to formally bring
charges against R.M. for the six robberies and had R.M. imprisoned in juvenile
detention.




                                          2
                               January Term, 2013




        {¶ 6} While R.M. was in detention, Steele repeatedly persuaded R.M.’s
mother, A.M., to meet with him under the guise of talking about R.M.’s case and
eventually convinced her to come to his apartment. Steele stated to A.M. that he
would be able to get R.M. out of detention, but that it would involve quite a
“process.” During one of A.M.’s visits to Steele’s apartment, Steele asked her to
engage in sexual activity with him. A.M. testified that she complied with Steele’s
requests because she believed that he had the power over R.M.’s release.
        {¶ 7} While R.M. was spending nine days in detention, Steele repeatedly
told the assistant prosecutor that he knew that R.M. had nothing to do with the
robberies, but that he had locked R.M. up in order to compel A.M. to cooperate
with the investigation. The prosecutor mistakenly assumed that R.M. had been
sent home on the day of his arrest. When, on the ninth day, she discovered that
R.M. was still in lock-up, she immediately had R.M. released and dismissed his
charges. The prosecutor’s office then had Steele questioned about his actions.
The state submitted a recording of the questioning, during which Steele admitted
that he had excluded R.M. as a suspect prior to locking him up. Steele admitted
that he thought R.M. had given a false confession. Steele admitted that he had
told A.M. that he did not think R.M. committed any of the robberies. Steele
stated that he does not make arrests solely based on witness identification, but
instead he utilizes the technique called “bullshitting,” which apparently refers to
arresting people on less than probable cause in the hope that something promising
will result.
        {¶ 8} Steele was charged with two counts of abduction, three counts of
extortion, two counts of rape, one count of sexual battery, and two counts of
intimidation, all with firearm specifications. A jury trial was held, and Steele did
not testify.
        {¶ 9} At the close of the evidence, the parties and the court discussed
alterations to the proposed jury instructions. The court provided the revised jury



                                         3
                             SUPREME COURT OF OHIO




instructions to the parties, and counsel for Steele stated that the instructions “look
fine, and they incorporate all of the changes that we discussed yesterday.”
Pursuant to the agreed-upon jury instructions, the trial court provided the jury
with definitions for “privilege,” “arrest,” “probable cause,” and “reasonable
grounds,” as they are used in R.C. 2905.02, 2901.01(A)(12), and 2935.03.
       {¶ 10} The trial court defined “privilege” as “an immunity, license, or
right conferred by law or bestowed by express or implied grant or arising out of
status, position, office, or relationship or growing out of necessity.” The trial
court stated that when an arrest is made without probable cause, it is an illegal
arrest. The trial court instructed that probable cause exists “when an officer has
knowledge of existing facts and circumstances which would warrant a prudent
police officer in believing that a crime was committed, and that the person to be
arrested has committed the crime.” The trial court then explained that a police
officer has the authority to arrest and detain a person if the police officer has
reasonable grounds to believe that the person is guilty of committing a crime.
Steele had no objections to the foregoing explanations.
       {¶ 11} The jury found Steele guilty of abduction of R.M. in violation of
R.C. 2905.02(A)(1) and (A)(2) and intimidation of R.M. in violation of R.C.
2921.03, each with an accompanying firearm specification. The jury acquitted
Steele on the remaining charges. He received a prison sentence of five years and
an additional five years of community control.
       {¶ 12} On appeal, the First District Court of Appeals rejected Steele’s
arguments that his intimidation conviction was not supported by sufficient
evidence and was against the manifest weight of the evidence and affirmed the
conviction. The appellate court reversed Steele’s abduction convictions, however,
holding that the trial court’s instructions to the jury on the offense of abduction
were fatally deficient. The appellate court held that the trial court should have
explained to the jury that a police officer loses the privilege to arrest and detain a




                                          4
                                January Term, 2013




citizen only if he does not have a good-faith belief that there is probable cause for
the arrest. “In essence,” the court held, “the jury was instructed that an officer
loses the privilege to arrest when the arrest is made without probable cause.” Id.
at ¶ 9. The appellate court concluded that because Steele’s conviction hinged on
whether Steele’s actions were in good faith, the deficiency in the instructions rose
to the level of plain error, requiring reversal despite Steele’s agreement to the
instruction.
       {¶ 13} The appellate court dismissed Steele’s sufficiency and manifest-
weight arguments regarding the abduction convictions as moot.           Finally, the
appellate court reversed all of the gun specifications, as no evidence had been
presented at trial that Steele had a firearm on or about his person when he
committed the offenses. The appellate court thus partially reversed and remanded
the case for a new trial on the charges of abduction.
       {¶ 14} Both the state and Steele sought this court’s discretionary review.
In case No. 2011-2075, we accepted the state’s appeal regarding the appellate
court’s reversal on the issue of jury instructions on the offense of abduction. 131
Ohio St.3d 1472, 2012-Ohio-896, 962 N.E.2d 803. In case No. 2011-2178, we
accepted Steele’s delayed appeal regarding his intimidation conviction. 132 Ohio
St.3d 1422, 2012-Ohio-2729, 969 N.E.2d 270. The two cases were consolidated,
and the state’s appeal was designated a cross-appeal. Id.
                                     Analysis
                        Intimidation and Police Officers
       {¶ 15} R.C. 2921.03(A) provides:


               No person, knowingly and by force, by unlawful threat of
       harm to any person or property, or by filing, recording, or
       otherwise using a materially false or fraudulent writing with
       malicious purpose, in bad faith, or in a wanton or reckless manner,



                                         5
                             SUPREME COURT OF OHIO




       shall attempt to influence, intimidate, or hinder a public servant,
       party official, or witness in the discharge of the person’s duty.


       {¶ 16} Steele proposes that a police officer cannot be prosecuted for the
offense of intimidation, in violation of R.C. 2921.03(A), based on actions taken
by the police officer while conducting an interrogation. We disagree.
       {¶ 17} In our examination of R.C. 2921.03, we begin by noting that our
“paramount concern is the legislative intent in enacting the statute.” State v. S.R.,
63 Ohio St.3d 590, 594, 589 N.E.2d 1319 (1992). We must give effect to the
plain meaning of the words used in a statute, and we must not modify an
unambiguous statute by adding or deleting words. Id. at 595.
       {¶ 18} R.C. Chapter 2921 criminalizes offenses committed against justice
and public administration. “Chapter 2921 deals with acts tending to subvert the
processes of democratic government, including bribery, perjury, and related
offenses, crimes which hamper law enforcement and the administration of justice,
and peculation, conflict of interests, dereliction of duty, and other offenses of
public officials.” Committee Comment to R.C. Chapter 2921, 1972 Am.Sub.H.B.
No. 511. Thus, R.C. Chapter 2921 was separately enacted within Ohio’s criminal
code to focus on the special societal ills created by improper interference in the
administration of justice or the discharge of a public duty.
       {¶ 19} R.C. 2921.03 makes it unlawful for a person to knowingly take
certain actions to influence, intimidate, or hinder a witness, a party official, or a
public servant in the discharge of a duty. R.C. 2921.03(A). The ways in which it
is illegal to exert such improper influence are by knowingly (1) using force, (2)
unlawfully threatening harm against any person or property, or (3) using a
materially false or fraudulent writing in any way with malice, bad faith,
wantonness, or recklessness.     Id.   Thus, there are specified actions that are
criminalized when committed against a specified set of people. However, there




                                          6
                               January Term, 2013




are no such limitations as to the identity or status of the person who might commit
the offense of intimidation.
       {¶ 20} By contrast, the General Assembly has enacted various criminal
statutes that provide exceptions for certain categories of people. For example,
statutes prohibiting the possession or distribution of controlled substances provide
a number of exceptions for certain authorized health professionals, police officers,
and other parties. See, e.g., R.C. 2925.02(B) (corrupting another with drugs);
2925.03(B) (trafficking offenses); 2925.11(B) (drug-possession offenses). The
offense of coercion provides certain exceptions for prosecutors acting in good
faith and in the interests of justice. R.C. 2905.12(B). Many weapons-possession
statutes explicitly exclude authorized law-enforcement officers who are acting
within the scope of their duties.     See, e.g., R.C. 2923.12(C)(1)(a) (carrying
concealed weapons); 2923.121(B)(1)(a) (possessing a firearm in liquor-permit
premises); 2923.122(D)(1)(a) (possessing a deadly weapon in a school safety
zone); 2923.17(C)(1) (possessing a dangerous ordnance).
       {¶ 21} We cannot add an exception to R.C. 2921.03 where there is none
present. And by reading R.C. 2921.03 in light of the statutes in the preceding
paragraph, we cannot presume that an exception to R.C. 2921.03 was intended
when other statutes explicitly specify when police officers are exempted from
certain offenses. See S.R., 63 Ohio St.3d at 595, 589 N.E.2d 1319; State v.
Cunningham, 113 Ohio St.3d 108, 2007-Ohio-1245, 863 N.E.2d 120, ¶ 20; State
v. Cook, 128 Ohio St.3d 120, 2010-Ohio-6305, 942 N.E.2d 357, ¶ 45. “It always
has been deemed necessary to enact laws to compel performance of duty and to
prevent corruption on the part of public officers. They are not attended by any
special presumption that general language in disciplinary measures does not
extend to them.” Donnelley v. United States, 276 U.S. 505, 516, 48 S.Ct. 400, 72
L.Ed. 676 (1928).




                                         7
                            SUPREME COURT OF OHIO




       {¶ 22} Further, it is true that police may draw from a wide variety of
interrogation tactics and may even use certain kinds of deception to elicit a
confession. See State v. Wiles, 59 Ohio St.3d 71, 81, 571 N.E.2d 97 (1991);
Oregon v. Elstad, 470 U.S. 298, 317, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985).
However, there is no authority for the contention that police officers may use
physical force, unlawful threats of harm, or a materially false or fraudulent
writing with malice, bad faith, wantonness, or recklessness as part of a legitimate
interrogation of a suspect. Accordingly, we hold that a police officer may be
prosecuted for the offense of intimidation when the police officer’s actions during
an interrogation satisfy the elements provided in R.C. 2921.03.
       {¶ 23} The evidence submitted at Steele’s trial indicated that despite
Steele’s repeatedly stated belief that R.M. was not involved in the robberies,
Steele coerced R.M. into giving a false confession. Despite knowing that the
confession was false, Steele filed a criminal complaint against R.M. using that
false writing in an attempt to force R.M.’s mother to admit what he believed she
knew about the robberies. Thus, Steele used a materially false writing in bad faith
to influence and intimidate a witness within the meaning of R.C. 2921.03(A).
We therefore affirm the First District’s conclusion that Steele’s intimidation
conviction was supported by sufficient evidence and was not against the manifest
weight of the evidence.
            Abduction, Privilege, Police Officers, and Plain Error
       {¶ 24} The state proposes that in the context of the offense of abduction,
when a trial court provides a jury instruction defining “privilege” exactly as it is
defined in R.C. 2901.01(A)(12), the trial court’s failure to sua sponte provide
additional, more specific instructions on “privilege” does not rise to the level of
plain error. We agree.
       {¶ 25} R.C. 2905.02 provides:




                                         8
                                  January Term, 2013




                 (A) No person, without privilege to do so, shall knowingly
          do any of the following:
                 (1) By force or threat, remove another from the place where
          the other person is found;
                 (2) By force or threat, restrain the liberty of another person
          under circumstances that create a risk of physical harm to the
          victim or place the other person in fear.


          {¶ 26} Thus, in order to convict a defendant for the offense of abduction,
the finder of fact must determine that the defendant removed and/or restrained the
victim by force or threat “without privilege to do so.”            R.C. 2905.02(A).
“Privilege” is defined as “an immunity, license, or right conferred by law,
bestowed by express or implied grant, arising out of status, position, office, or
relationship, or growing out of necessity.” R.C. 2901.01(A)(12). A police officer
has a right conferred by law to execute a warrantless arrest of any person who the
police officer has reasonable cause to believe is guilty of certain enumerated
offenses, including theft offenses and offenses of violence. R.C. 2935.03(B)(1).
A police officer has reasonable or probable cause to arrest when the events
leading up to the arrest, “viewed from the standpoint of an objectively reasonable
police officer, amount to” probable cause. Ornelas v. United States, 517 U.S.
690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). Probable cause exists when
there are facts and circumstances within the police officer’s knowledge that are
sufficient to warrant a reasonable belief that the suspect is committing or has
committed an offense. Beck v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 13 L.Ed.2d
142 (1964), citing Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69
L.Ed. 543 (1925). If an arrest is made without probable cause, the arrest is
constitutionally invalid. State v. Timson, 38 Ohio St.2d 122, 127, 311 N.E.2d 16
(1974).



                                            9
                             SUPREME COURT OF OHIO




       {¶ 27} It is undisputed that the trial court provided accurate instructions
on all of the above terms and that it followed the corresponding statutory
language virtually verbatim. The appellate court concluded that the trial court
erred by not providing additional instructions sua sponte. Specifically, the trial
court explained when probable cause exists and when it does not. It explained
that a privilege to arrest exists when there is probable cause, but it did not explain
that the privilege is not lost merely because probable cause was lacking. It is this
omission that the court of appeals found to be fatal.
       {¶ 28} Under normal circumstances, the consequence of an illegal arrest is
that evidence obtained therefrom is inadmissible at trial. State v. Henderson, 51
Ohio St.3d 54, 56, 554 N.E.2d 104 (1990), citing Wong Sun v. United States, 371
U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). However, a police officer is not
automatically stripped of statutory privilege and exposed to criminal liability if a
court finds in hindsight that the officer made an arrest on less than probable cause.
When looking at a police officer’s liability in the civil context, privilege is lost
when “a reasonable official would understand that what he is doing violates [a
clearly established] right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct.
3034, 97 L.Ed.2d 523 (1987). We find this principle to be applicable to the
context of a police officer’s authority to arrest, pursuant to R.C. 2935.03, and
correspondingly, the officer’s “privilege” as defined in R.C. 2901.01(A)(12).
Accordingly, a police officer does not lose the privilege to arrest merely because
probable cause is lacking. However, the police officer loses the privilege to arrest
when a reasonable police officer would understand that probable cause is lacking.
       {¶ 29} It would have been ideal for the trial court to provide additional
instructions regarding the loss of privilege in the specific context of a police
officer’s authority to arrest. However, it must be remembered that we are not
looking for the ideal in this case. We are merely looking for the absence of plain
error. There was no objection to the jury instruction in issue. “On appeal, a party




                                         10
                                January Term, 2013




may not assign as error the giving or the failure to give any instructions unless the
party objects before the jury retires to consider its verdict, stating specifically the
matter objected to and the grounds of the objection.” Crim.R. 30(A). It is
undisputed that Steele negotiated for and agreed to the revised jury instructions
provided by the trial court, that he lodged no objections to the instructions related
to the abduction charges, and that he has therefore forfeited all but plain error.
       {¶ 30} For a court to notice plain error, the error must be an obvious
defect in a trial’s proceedings, it must have affected substantial rights, and it must
have affected the outcome of the trial. State v. Eafford, 132 Ohio St.3d 159,
2012-Ohio-2224, 970 N.E.2d 891, ¶ 11, citing State v. Payne, 114 Ohio St.3d
502, 2007-Ohio-4642, 873 N.E.2d 306; State v. Lynn, 129 Ohio St.3d 146, 2011-
Ohio-2722, 950 N.E.2d 931, ¶ 13. See also Crim.R. 52(B). Because there was no
explicit case law or statutory guidance in Ohio on the standard of proving a police
officer’s loss of privilege to arrest, it would be difficult to conclude that the trial
court’s failure to invent such an instruction constitutes an obvious error.
Regardless, even when the minimum requirements have been met, a reviewing
court should still be conservative in its application of plain-error review, reserving
notice of plain error for situations involving more than merely theoretical
prejudice to substantial rights. See State v. Long, 53 Ohio St.2d 91, 94, 372
N.E.2d 804 (1978). “Notice of plain error under Crim.R. 52(B) is to be taken
with the utmost caution, under exceptional circumstances and only to prevent a
manifest miscarriage of justice.” Id. at paragraph three of the syllabus.
       {¶ 31} Here, the appellate court concluded that the lack of an instruction
on loss of privilege amounted to plain error because “[i]t relieved the state of its
burden to prove all elements of abduction beyond a reasonable doubt.” 2011-
Ohio-5479 at ¶ 21, citing State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845,
817 N.E.2d 29, ¶ 97. In Adams, we did note that relieving the state of its burden
of proving an element of the offense violates a defendant’s right to due process.



                                          11
                            SUPREME COURT OF OHIO




Id. However, we went on to hold in Adams that such an error in jury instructions
is waived when there was no objection and when the outcome of the trial was not
affected. Id. at ¶ 100 and 102. We have long held that improperly reducing the
state’s burden of proving an element of a crime is not plain error unless the
outcome of the trial clearly would have been otherwise. State v. Cooperrider, 4
Ohio St.3d 226, 227-228, 448 N.E.2d 452 (1983); State v. Underwood, 3 Ohio
St.3d 12, 14, 444 N.E.2d 1332 (1983); Long at paragraph two of the syllabus.
       {¶ 32} Due to the trial court’s failure to sua sponte provide additional
instructions on “privilege,” the appellate court determined that the jury was in
essence instructed that a police officer could be criminally liable any time an
arrest is made on less than probable cause. 2011-Ohio-5479 at ¶ 9. Certainly
such an instruction would be erroneous. But the trial court did not provide any
incorrect statements of the law in its instructions, and we cannot assume that the
jury in fact made this improper inference.
       {¶ 33} By concluding that an erroneous instruction, by itself, constituted
plain error, the appellate court did not complete its plain-error analysis. Instead,
“an appellate court must review the instructions as a whole and the entire record
to determine whether a manifest miscarriage of justice has occurred as a result of
the error in the instructions.” State v. Wamsley, 117 Ohio St.3d 388, 2008-Ohio-
1195, 884 N.E.2d 45, ¶ 17. The totality of the instructions and of the record in
this case does not support a finding of plain error, particularly when considering
Steele’s intimidation and abduction charges together.
       {¶ 34} The facts underlying Steele’s charge for abduction were
inextricably intertwined with those underlying the charges for intimidation. He
took R.M. out of school in handcuffs, placed him in an interrogation room, and
blatantly intimidated him with dire threats directed at his entire family, including
his school-aged siblings. Steele admitted to school employees, R.M.’s mother,
and the prosecutor that he knew that R.M. was not involved with the robberies.




                                        12
                                January Term, 2013




He coerced a confession from R.M., which he admittedly thought was false, and
filed a criminal complaint against R.M. using that false confession.
       {¶ 35} In order to be convicted of knowingly filing a false writing in
satisfaction of the elements of the offense of intimidation, Steele needed to
believe that R.M.’s confession was false, i.e., that R.M. had not committed the
crime. If Steele believed that R.M. had not committed a crime, then a reasonable
police officer in Steele’s position would have understood that probable cause was
clearly lacking.   Thus, because Steele’s accusation against R.M. had to be
knowingly false in order for the jury to find Steele guilty of intimidation, and
because the jury did find Steele guilty of intimidation, there is nothing to indicate
that the trial court’s failure to explain a higher standard of loss of privilege for
police officers affected Steele’s convictions for abduction.       Further, there is
nothing in the record to support the proposition that Steele had anything even
approaching probable cause to arrest when he took this youngster out of school in
handcuffs. At the very best, there was the suspicion that the child’s mother’s car
had been used in the crime.        No reasonable police officer could possibly
categorize that as reasonable suspicion sufficient to satisfy the United States
Constitution.
       {¶ 36} Although we hold today that the trial court did not commit plain
error in its failure to provide specific instructions for a police officer’s loss of
privilege, we must stress that we are in no way attempting to tie the hands of
police officers in their broad authority to arrest and detain suspects.       Police
officers must often act quickly and decisively, as a delay in response could have
dire consequences or even constitute dereliction of duty. See Davis v. Scherer,
468 U.S. 183, 196, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984). Police officers
performing their valuable and often dangerous duties cannot be made to fear
criminal charges any time an arrest or detention is made with what turns out to be
less than probable cause. Thus, our holding today would reach only the rare



                                         13
                              SUPREME COURT OF OHIO




circumstance of a police officer depriving a person of his or her liberty when a
reasonable police officer would know that there is no probable cause supporting
the detention, no matter how brief.
          {¶ 37} Because the trial court’s erroneous jury instruction did not rise to
the level of plain error, we reverse the First District’s decision to reverse and
remand Steele’s abduction convictions.
                                      Conclusion
          {¶ 38} We hold that the First District Court of Appeals correctly upheld
Steele’s intimidation conviction, but incorrectly held that the definition of
“privilege” provided by the Hamilton County Court of Common Pleas constituted
plain error. We therefore affirm in part and reverse in part the judgment of the
court of appeals and remand the cause to the First District Court of Appeals for
consideration of the additional assignments of error that were mooted by its
original holding.
                                                              Judgment accordingly.
          O’CONNOR, C.J., and PFEIFER, LANZINGER, KENNEDY, and FRENCH, JJ.,
concur.
          O’DONNELL, J., dissents and would affirm the judgment of the court of
appeals.
                               ____________________
          Daniel J. Breyer, Special Prosecuting Attorney, for appellant and cross-
appellee.
          Byron L. Potts & Co., L.P.A., and Gloria L. Smith, for appellee and cross-
appellant.
          Timothy Young, Ohio Public Defender, and Francisco E. Lüttecke,
Assistant Public Defender, in support of neither party on behalf of amicus curiae,
Ohio Public Defender.
                            ________________________




                                          14
