State v. Baker

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[Cite as State v. Baker, 2018-Ohio-762.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY STATE OF OHIO, : Plaintiff-Appellee, : Case No. 16CA30 vs. : JAMAHL D. BAKER, : DECISION AND JUDGMENT ENTRY Defendant-Appellant. : _________________________________________________________________ APPEARANCES: Angela Miller, Jupiter, Florida, for appellant. Kevin Rings, Washington County Prosecuting Attorney, and Alison L. Cauthorn, Washington County Assistant Prosecuting Attorney, Marietta, Ohio, for appellee. CRIMINAL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED: 2-14-18 ABELE, J. {¶ 1} Jamahl Baker, defendant below and appellant herein, appeals his Washington County Common Pleas Court judgment of conviction and sentence for trafficking in drugs, a second-degree felony. Appellant assigns two errors for review: FIRST ASSIGNMENT OF ERROR: “THE TRIAL COURT ERRED IN DENYING BAKER’S MOTION TO SUPPRESS AS THE EVIDENCE SEIZED PURSUANT TO A WARRANT FOR THE RED ROOF INN, ROOM 212, MARIETTA, OHIO ON AUGUST 6, 2015, WAS IN VIOLATION OF BAKER’S CONSTITUTIONAL RIGHTS. U.S. CONST. AMENDS. IV, XIV; Ohio CONST. ART. I, SECTION 10.” WASHINGTON, 16CA30 2 SECOND ASSIGNMENT OF ERROR: “THE TRIAL COURT ERRED IN DENYING BAKER’S MOTION TO SUPPRESS HIS STATEMENT TO LAW ENFORCEMENT AS OFFICERS DID NOT PROVIDE BAKER WITH MIRANDA WARNINGS OR OBTAIN A WAIVER OF COUNSEL PRIOR TO INTERROGATING HIM. U.S. CONST. AMENDS. IV, V, VI, XIV; OHIO CONST. ART. I, SECTION 10.” {¶ 2} On August 5, 2015, a municipal court judge signed a search warrant requested by Marietta Police Department Detective R.E. Huffman to search the residence premises, including curtilage, of 702 Pike Street, Red Roof Inn, Room 212, Marietta, Ohio, along with Jamahl Baker’s personal effects and vehicles. On August 7, 2015, Lt. Joshua Staats filed a complaint in the Marietta Municipal Court. The complaint stated that on August 6, 2015, at 702 Pike Street, appellant did knowingly prepare for shipment, ship, transport, deliver, prepare for distribution or distribute heroin, a Schedule II controlled substance in an amount greater than, or equal to, 10 grams, but less than 50 grams, when appellant knew, or had reasonable cause to believe, that the controlled substance was intended for sale or resale in violation of R.C. 2925.03(A)(2), a second degree felony. In addition, Lt. Staats filed a complaint stating that on August 6, 2015, at the same location, appellant did knowingly obtain, possess, or use heroin, a schedule II controlled substance in an amount greater than, or equal to, 10 grams, but less than 50 grams, to wit: 14.55 grams of heroin, in violation of R.C. 2925.11(C)(6)(d), a second degree felony. On September 28, 2015, the Washington County Grand Jury returned an indictment that charged appellant with the same charges. Appellant pled not guilty to all charges. {¶ 3} Appellant later filed a motion to suppress evidence and argued that the search warrant's 3 WASHINGTON, 16CA30 supporting affidavit failed on its face to establish probable cause to justify the warrant's issuance. In particular, appellant argued that no evidence suggested that drug trafficking had taken place at the particular hotel room specified in the warrant. {¶ 4} Appellant's second motion to suppress argued that appellant's second statement, given at the Washington County Jail, should be suppressed because appellant had not been re-advised of his Miranda rights prior to giving that particular statement. Lt. Staats testified at the hearing that appellant made an initial statement on August 6, 2015, after being advised of his Miranda rights, then, on August 12, 2015, appellant requested to speak with officers. Lt. Staats visited the jail and the conversation lasted approximately one hour. Appellant first claimed that he was "set up," but later suggested multiple times that he would perhaps work with authorities as an informant. Appellant later argued that he did not ask to speak with the officers, but rather believed that his codefendant made that request. At the conclusion of the hearing, the trial court overruled both motions and set a trial date. {¶ 5} Appellant eventually entered a no contest plea and the trial court held a sentencing hearing. At the time of the commission of this offense, appellant was on postrelease control in Cuyahoga County, (Case No. CR-14-585619). The trial court sentenced appellant to (1) serve four years in prison for trafficking in drugs, (2) serve a definite one year sentence for the violation of postrelease control, to be served consecutively for a total sentence of five years, (3) receive credit for 400 days served, (4) pay court costs, (5) receive a suspended drivers’ license for six months, and (6) be placed on post release control for three years after his prison term. This appeal followed. I. {¶ 6} In his first assignment of error, appellant asserts that the trial court erred by denying WASHINGTON, 16CA30 4 his motion to suppress evidence. In particular, appellant argues that the evidence seized pursuant to the search warrant violated appellant’s constitutional rights. {¶ 7} In general, appellate review of a trial court’s decision regarding a motion to suppress evidence involves mixed questions of law and fact. State v. Carey, 4th Dist. Ross No. 11CA3286, 2013-Ohio-1855, ¶ 17. When ruling on a motion to suppress evidence, a trial court assumes the role of trier of fact and is in the best position to resolve questions of fact and to evaluate witness credibility. Id., citing State v. Dunlap, 73 Ohio St.3d 308, 314, 652 N.E.2d 988 (1995); State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). Thus, a reviewing court must defer to a trial court’s findings of fact if competent, credible evidence exists to support the trial court’s findings. State v. Long, 127 Ohio App.3d 328, 332, 713 N.E.2d 1 (4th Dist.1998); State v. Medcalf, 111 Ohio App.3d 142, 145, 675 N.E.2d 1268 (4th Dist.1996). The reviewing court must then independently determine, without deference to the trial court, whether the trial court properly applied the substantive law to the facts of the case. Carey at ¶18, citing State v. Venham, 96 Ohio App.3d 649, 653, 645 N.E.2d 831 (4th Dist.1994); State v. Williams, 86 Ohio App.3d 37, 41, 619 N.E.2d 1141 (4th Dist.1993). {¶ 8} The Fourth Amendment to the United States Constitution, and Article I, Section 14 of the Ohio Constitution, provide for “[t]he right of the people to be secure * * * against unreasonable searches and seizures * * *.” Both constitutional provisions provide that “no warrants shall issues, but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized.” Id. A neutral and detached magistrate may issue a search warrant only upon the finding of probable cause. United States v. Leon (1984), 468 U.S. 897, 914-915, 104 S.Ct. 3405, 82 L.Ed.2d 677; Crim.R. 41(C). 5 WASHINGTON, 16CA30 {¶ 9} In determining whether to issue a search warrant, an issuing magistrate must scrutinize the affidavit in support of the warrant and make a practical, common sense decision, in light of all the circumstances set forth in the affidavit, including the veracity and basis of knowledge of persons supplying information, whether “ ‘there is a fair probability that contraband or evidence of a crime will be found in a particular place.’” State v. Gilbert, 4th Dist. Scioto No. 06CA3055, 2007-Ohio-2717, ¶ 13, citing State v. George, 45 Ohio St.3d 325, 544 N.E.2d 640 (1989), paragraph one of the syllabus, quoting Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). {¶ 10} Probable cause requires the existence of circumstances that warrant suspicion. George at 329. The standard for probable cause requires a showing that a probability of criminal activity exists - not a prima facie showing of criminal activity. Id. When determining whether an affidavit in support of a search warrant sufficiently supports a finding of probable cause, a reviewing court must give great deference to the issuing magistrate’s decision. George at paragraph two of the syllabus; Gates at 237. Further, ‘[a]lthough in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded warrants.” United States v. Ventresca, 380 U.S. 102, 108, 109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Gates at 237, fn. 10; George at paragraph two of the syllabus. Thus, “a reviewing court simply decides whether the affiant presented enough facts to allow the issuing magistrate or judge to independently determine the existence of probable cause.” Gates, supra, at 239. {¶ 11} The United States Supreme Court has instructed judges who issue search warrants to consider the totality of the circumstances in determining whether probable cause exists to believe that WASHINGTON, 16CA30 6 evidence of a crime exists in a particular place. Gates at 238. “The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him * * * there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Id. The Supreme Court of Ohio adopted this holding. See George, supra, paragraph one of the syllabus. Therefore, both this court and the trial court must apply the same standard to review the municipal court judge’s determination of probable cause, i.e., whether the affidavit provided a substantial basis for the municipal court judge to conclude that a fair probability exists that evidence of a crime would be found in the place to be searched. Gates at 238; George at 325, 544 N.E.2d 640, see also, State v. Goddard, 4th Dist. Washington No. 97CA23, 1998 WL 716662 (Oct. 2, 1998). {¶ 12} In the case sub judice, Detective Huffman’s affidavit included information obtained from the confidential informant and law enforcement officers' independent surveillance of the hotel room. Detective Huffman noted: “On August 5, 2015, I was contacted by a confidential source, hereafter CS#1. CS#1 advised me that a black male and a white/Hispanic female were staying at the Red Roof Inn in Marietta, OH in Room 212 and they observed suspicious activity. CS#1 advised that the pair arrived with another black male on this date in the early morning hours. They advised that when they arrived and checked in another vehicle arrived as if they were meeting the trio that arrived first. CS#1 advised that it appeared that the second vehicle was getting something from the two black males that arrived first. The subjects all went into room 212 for a short period, then the second set of black males left. CS#1 advised that they spoke with the white/Hispanic female earlier in the day 7 WASHINGTON, 16CA30 and she advised she was staying in the room with 2 black males, one being her boyfriend, but didn’t know either one of their names. CS#1 was able to obtain the name of the person who paid for the hotel as Jamahl Baker (appellant).” Detective Huffman stated that he worked through OHLEG (Ohio Law identify appellant. Huffman also stated: “I personally viewed Baker in identified him through the OHLEG photo of him.” Huffman noted that Room 212, he observed the white/Hispanic female that the confidential along with another unknown black male. Huffman then stated: Enforcement Gateway) to and out of room 212 and during the surveillance of informant had mentioned, “Baker and the female left from the room at one point and traveled to a residence on Pike Street in Parkersburg, West Virginia. Agent Staats spoke with Agent Stalnaker from the Parkersburg Narcotics Task Force. Stalnaker advised Staats that Taylor Kirby had been staying at the residence and she was moving very large amounts of heroin. Stalnaker further advised Staats that they had information she was getting shipments of heroin in on tractor trailers. Agent Staats further advised that Stalnaker advised him that they had a purchase of heroin lined up later in the evening on Kirby. Staats also spoke with Agent Lindsey of the PNTF and he advised he did a controlled purchase of heroin from Kirby in June of this year. Stalker (sic. Stalnaker) provided a photo of Kirby to Staats and Staats showed it to me. I identified Kirby as the female I saw at room 212.” {¶ 13} Detective Huffman also stated that appellant was driving a rental car, which through past experience he had observed out-of-town narcotics dealers use rental cars to avoid detection and to blend into the hotel scene. Huffman also obtained appellant's computerized criminal history check and found that the CCH advised “Warning: Approach with caution.” Huffman recounted appellant’s 2008-2014 arrest history, including two robberies, aggravated robbery, seven arrests for trafficking in drugs, four arrests for felony possession, three arrests for felonious assault, weapons under disability, aggravated menacing, attempted murder, and murder. Finally, in seeking a no-knock request, Huffman stated that appellant was currently on parole and associated with a gang. Further, Huffman noted that Kirby's computerized criminal history check revealed a 2013 arrest for possession of drugs with intent to sale-delivery. WASHINGTON, 16CA30 8 {¶ 14} Appellant argues that the common and generally acceptable basis for a confidential informant’s information is the personal, first-hand observation of the events described to the affiant. See State v. Karr, 44 Ohio St.2d 163, 339 N.E.2d 641 (1975). Appellant contends that, in this case, the CI's information consisted of mere speculation. The state, however, counters that the affidavit does not solely rely on the CI, but rather is primarily based on the initial report from the CI, along with the affiant's observation of the hotel room, with his own surveillance, research and information gathered from other officers, and additional independently developed facts to demonstrate probable cause to believe that appellant intended to take Kirby from Red Roof Inn Room 212 to sell heroin to a Parkersburg operative. Therefore, it was probable that evidence of the possession and trafficking in drugs existed in Room 212, and could be found on or about the persons and personal effects of Kirby and appellant. The state further claims that, regardless of establishing the CI’s reliability, the affidavit showed that the affiant corroborated all of the details that the CI had provided. {¶ 15} Second, appellant argues that, despite law enforcement's extended surveillance of the hotel room, no evidence suggested that drug trafficking activity had actually occurred. Thus, appellant contends that no nexus had been demonstrated between the place to be searched and the items to be seized, such as specific facts to show that the evidence sought would be found at Room 212. Rather, appellant asserts that the affidavit relies too heavily on appellant’s criminal record, the fact that appellant is an out-of-town black male, and that he rented a car. {¶ 16} The state responds that probable cause may be based on inferences, and that the direct observation of an actual drug transaction is not required to establish probable cause. Appellee points out that: (1) appellant and Kirby had checked into Room 212, (2) appellant has a lengthy felony drug history, concentrated in recent years, (3) Kirby has been arrested for possession with intent to deliver WASHINGTON, 16CA30 9 and had, according to Agent Lindsey, sold heroin to Parkersburg officers less than two months earlier, and (4) Agent Stalnaker informed Lt. Staats that Parkersburg agents were scheduled that night to buy heroin from Kirby. The state contends that, based upon these facts, a reasonable law enforcement officer would conclude that appellant and Kirby were engaged in trafficking heroin. Thus, appellee reasons, ample evidence existed to conclude that Kirby and appellant would have drugs, cash, paraphernalia, and communications about drugs on their persons, and in their room, prior to, and after, the sale scheduled to be made in Parkersburg later that night. {¶ 17} After our review, we agree with the trial court's conclusion that a sufficient nexus existed between Room 212 and the alleged drug activity. “The nexus between the place to be searched and the items to be seized may be established by the nature of the item and the normal inferences of where one would likely keep such evidence.” United States v. Lalor, 996 F.2d 1578 (4th Cir.1993). Thus, courts routinely recognize that it is logical or a matter of common sense to infer that those engaged in drug crimes will maintain drugs and other evidence in their residences, even without specific evidence of the presence of drugs or drug evidence in the home. United States v. Grossman, 400 F.3d 212 (4th Cir.2005). Moreover, courts have held that search warrants are not invalid solely because the affidavit did not detail actual observation of illegal activity or contraband in the room to be searched. “To do so would be to elevate probable cause to the status of positive cause.” United States v. Laws, 808 F.2d 92, 106 (D.C.Cir.1986). {¶ 18} We believe that the timing of the application for the warrant, and the reliable information from Task Force Agent Stalnaker, also helped to establish probable cause to believe that evidence would be found in Room 212 with Kirby and appellant. Stalnaker informed the affiant that officers had arranged for a controlled purchase of heroin later that same night. Further, we observe 10 WASHINGTON, 16CA30 that this court has held that a rental car is “typically a modus operandi for transportation of drugs.” See State v. Carey, 4th Dist. Ross No. 11CA3286, 2013-Ohio-1855, ¶ 24. The Tenth Circuit has also recognized that an officer’s knowledge that drug couriers frequent use of rental cars contributes to reasonable suspicion. See United States v. Williams, 271 F.3d 1262, 1270-71 (10th Cir.2001). Thus, the totality of the evidence leads to the conclusion that a law enforcement officer could reasonably conclude that evidence of the possession or the sale of heroin would be found in Room 212. We further note that the characterization of the affidavit as relying heavily on appellant's race is unfounded. Our reading of the affidavit reveals the use of appellant’s race as a descriptor of the suspect, and nothing more. {¶ 19} Finally, as the state contends, even if this court determined that the warrant and supporting affidavit lacked probable cause, the results of the search should not be suppressed under the good faith doctrine. The U.S. Supreme Court and the Supreme Court of Ohio have both held that evidence will not be suppressed if the executing officers reasonably, and in good faith, relied upon a warrant that a judge has issued, but is later determined to lack probable cause. United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). See also State v. George, 45 Ohio St.3d at 330, 544 N.E.2d 640. The exclusionary rule does not bar the use of evidence gathered by officers acting in “objectively reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause.” George at 330. {¶ 20} Once again, after our review of the affidavit and after giving appropriate deference to the issuing judge's determination, we believe that a substantial basis exists for concluding that probable cause did indeed exist and that the trial court properly denied appellant's motion to suppress evidence. 11 WASHINGTON, 16CA30 {¶ 21} Accordingly, we overrule appellant's first assignment of error. II. {¶ 22} In his second assignment of error, appellant asserts that the trial court erred by denying his motion to suppress his statement to law enforcement officers. Appellant contends that officers interrogated him a second time without first advising him of his rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966), or without first obtaining a waiver of counsel. In particular, appellant argues that after his August 6, 2015 arrest he initially received Miranda warnings, but when officers interrogated him on August 12, 2015, they did not provide him a second set of Miranda warnings. {¶ 23} Our review of the evidence reveals that on August 6, 2015, Lt. Staats twice advised appellant of his Miranda warnings before his questioning at the jail. Appellant also signed a waiver at that time. Lt. Staats testified at the suppression hearing that he later received an email from jail personnel that indicated that appellant wished to speak with officers and on August 12, 2015, Lt. Staats visited the jail at appellant’s request. {¶ 24} Miranda compels the protection of a suspect faced with the coercion inherent in police interrogation against pressures that break down a suspect’s will to resist and threaten his Fifth Amendment privilege against self incrimination. State v. Bryson, 22 Ohio St.2d 224, 227, 259 N.E.2d 740 (1970), vacated in part on other grounds, Bryson v. Ohio, 408 U.S. 938, 92 S.Ct. 2867, 33 L.Ed.2d 757 (1972). Bryson involved a case similar to the case at bar in which the defendant called an officer to the jail and initiated a conversation, but later challenged those statements and claimed that he should have been readvised of his Miranda warnings. However, the Supreme Court of Ohio noted in Bryson that police pressures were absent. Nearly paralleling this case, the court WASHINGTON, 16CA30 12 noted “[t]he atmosphere surrounding [the officer] and the defendant was neither coercive nor intimidating. [The officer] did not force his will upon Bryson. He did not ask coercive questions calculated to compel Bryson to answer. At most, [the officer] merely sought clarification or explanation of the information willingly supplied by the defendant. In no sense can the conversation of [the officer] and Bryson be characterized as an ‘in custody interrogation.’” Bryson at 227. The court went on to quote the admonition in Miranda: “Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not bound by the Fifth Amendment and their admissibility is not affected by our holding today.” Miranda at 478. {¶ 25} While the Bryson admission involved officers who were “primarily listeners,” the Supreme Court concluded that the defendant had the “opportunity to reflect independently upon his situation.” Bryson at page 229. The court noted that nearly two months had elapsed between the defendant’s two statements, that counsel represented the defendant during that time, and that nothing in the record indicated that the defendant was subject to police pressure relating to the confession. “The clear inference that the October 28th admission was a product of the defendant’s intervening free will is not to be ignored. Volition is also a relevant factor in determining whether testimonial evidence is a ‘fruit’ of illegal police activity.” Id., citing United States v. Bayer, 331 U.S. 532, WASHINGTON, 16CA30 13 540-541, 67 S.Ct. 1394 (1947); Brown v. United States, 375 F.2d 310 (1966); Smith v. United States, 324 F.2d 879 (1963). {¶ 26} In the case at bar, the state argued that because appellant was advised of his rights on August 6, 2015, and remained in custody until August 12, 2015 when he initiated the conversation through a request that officers come to the jail to speak with him, officers were not required to again advise appellant, for a second time, of his Miranda rights. It appears that the taped conversation (1) does not indicate that appellant disagreed with the officer’s statement that he was told that appellant wanted to talk with him, (2) does not indicate that appellant wanted to stop talking with Lt. Staats, and (3) does not indicate that appellant wished to speak with his attorney before he continued the interview. In fact, the record reveals that at least twice Lt. Staats encouraged appellant to talk with his attorney and explained the legal process to him. As the trial court stated, it is clear from the recording that appellant called officers to the jail to attempt to negotiate an agreement. Thus, regardless of whether the warnings had arguably grown stale, the fact remains that appellant initiated this contact and appellant controlled the conversation at the jail. Lt. Staats testified that he told appellant that he had received an email stating that appellant wanted to talk to him and the August 12 recording reveals that appellant did not deny or question that statement. Rather, the conversation Lt. Staats described indicated that appellant wanted to speak with him to provide information, or to try to persuade Lt. Staats to let him work or cooperate to reduce his charges or to secure his release. {¶ 27} After the trial court heard the testimony and listened to State’s Exhibit B, a recording of both the August 6 and August 12 conversations between Lt. Staats and appellant, the court wrote: “Detective Staats did not initiate the contact as is clear from the tape. The conversation began with Detective Staat’s statement, ‘you want to talk to me?’ Defendant acknowledged that he did and in the 14 WASHINGTON, 16CA30 context of the rambling, sometimes incoherent conversation, over approximately an hour, it is clear that Defendant was trying to negotiate a deal to work for the task force to save himself. He repeatedly offered to assist the task force in apprehending the females he asserted got him into his current situation, but expressed no interest in cooperating against any sources in the Cleveland area. It was clear that he was aware he had an attorney and a preliminary hearing later that day, but he never asserted any interest in consulting the attorney. The Court finds that Defendant initiated the contact, was aware that he had an attorney, and that the statement August 12, 2015 was entirely voluntary.” [State v. Baker, 15 CR 229, Decision on Motion to Suppress, filed May 25, 2016] {¶ 28} After our review of the record, we agree with the trial court's determination and conclude that the record includes ample competent, credible evidence to support the trial court’s finding that appellant initiated contact with Lt. Staats and volunteered his statements. Thus, neither appellant’s Fifth nor Sixth Amendment rights were violated on August 12, 2015, and the trial court properly denied appellant’s motion to suppress his statements. {¶ 29} Accordingly, based upon the foregoing reasons, we overrule appellant’s second assignment of error and affirm the trial court’s judgment. JUDGMENT AFFIRMED. 15 WASHINGTON, 16CA30 JUDGMENT ENTRY It is ordered that the judgment be affirmed and that appellee recover of appellant the costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Washington County Common Pleas Court to carry this judgment into execution. If a stay of execution of sentence and release upon bail has been previously granted, it is continued for a period of sixty days upon the bail previously posted. The purpose of said stay is to allow appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of the proceedings in that court. The stay as herein continued will terminate at the expiration of the sixty-day period. The stay will also terminate if appellant fails to file a notice of appeal with the Supreme Court of Ohio in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to the expiration of said sixty days, the stay will terminate as of the date of such dismissal. A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Harsha, J. & McFarland, J.: Concur in Judgment & Opinion For the Court BY: Peter B. Abele, Judge 16 WASHINGTON, 16CA30 NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.

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