State v. Schwirzinski
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[Cite as State v. Schwirzinski, 2010-Ohio-5512.] IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY State of Ohio Appellee Court of Appeals No. WD-09-056 Trial Court No. 2008CR0322 v. Carl Schwirzinski Appellant DECISION AND JUDGMENT Decided: November 12, 2010 ***** Jeffrey M. Gamso and Jeffrey J. Helmick for appellant. Paul Dobson, Wood County Prosecuting Attorney, Heather M. Baker and Jacqueline M. Kirian, Assistant Prosecuting Attorneys, for appellee. ***** SINGER, J. {¶ 1} Appellant appeals his judgment of conviction for rape of a child under age ten and two counts of gross sexual imposition entered on a jury verdict in the Wood County Court of Common Pleas. For the reasons that follow, we reverse, in part, and affirm, in part. {¶ 2} Appellant is Carl Schwirzinski. On June 11, 2008, appellant picked up then seven-year-old C.R. from her mother's home for a planned two day play date with a child of a similar age who lived near appellant. Appellant, known to C.R. as "Grandpa Carl," had been a companion of C.R.'s grandmother for a number of years and had previously transported the girl to church and family outings. {¶ 3} When the child with whom C.R. was to have played went elsewhere with her mother, appellant took C.R. swimming and to a family gathering. C.R. spent the night at appellant's home and went swimming again the next day. That afternoon, appellant returned C.R. to her home. {¶ 4} According to C.R.'s mother, after appellant left, C.R. told her that Grandpa Carl had "touched her in a bad place." C.R.'s mother's fiancé was also present. {¶ 5} The fiancé would later testify that, on hearing this, C.R.'s mother became upset and left the house to try to call her mother. At that point, the fiancé testified, C.R. reported that, as soon as she left the house with appellant the day before, he began to touch her between the legs and had "peed" on her. {¶ 6} After consulting with a friend, C.R.'s mother and her fiancé decided to seek medical attention for the girl. The fiancé collected the clothing C.R. had brought back with her and the two took C.R. to a Toledo hospital. 2. {¶ 7} At the hospital, C.R. was examined by a physician and a Sexual Abuse Nurse Examiner ("SANE"). At trial, the SANE nurse testified that, at her initial medical interview, C.R. told her appellant put his leg over her and put his bad part on her bad part. C.R. also reported to the nurse that appellant directed her to bend over a bed while he began shaking, then "peed" on her back. {¶ 8} An external examination revealed redness in C.R.'s vaginal area, but the child was too agitated to obtain a full rape kit. By the time the examination was completed, a detective from the Perrysburg Township Police arrived. The officer reinterviewed C.R. and collected the biological evidence and C.R.'s clothing for analysis. {¶ 9} Appellant was arrested and, on June 19, 2008, named in a three count indictment charging him with rape, with a victim under age ten specification, and two counts of gross sexual imposition. Appellant pled not guilty and the matter proceeded to trial before a jury. {¶ 10} At trial, C.R. testified that appellant "peed on my back * * * and when I was sleeping he put his bad part in my butt." Asked to elaborate, the girl testified that she was on her knees with her head down with appellant standing behind her when he pulled up her shirt and was "shaking around" and "[t]here is stuff dripping down." C.R. described the stuff dripping as "hot" and "nasty." {¶ 11} Concerning the other incident, C.R. testified that she was in bed, on her side, "sleeping, but I wasn't really sleeping. I woke up," when appellant "put his bad part in my butt[.] * * * It hurt." 3. {¶ 12} C.R. also reported incidents "in the car [appellant] told me to open my leg [sic] and he touched my bad part" and on a couch "[w]hen I gave him a hug, he pushed me back and forth." C.R. demonstrated the same pelvic motion for the back and forth motion on the couch as when appellant "peed" on her. {¶ 13} The state also presented forensic analysis of a stain found on the back of one of C.R.'s shirts. An analyst testified that the substance was semen, but contained no identifiable sperm which would be needed to identify the DNA of its source. The DNA that was found in the stain was a mixture belonging to C.R., her mother's fiancé and appellant. By far the largest contributor, the analyst testified, was appellant. In the analyst's opinion, this meant that appellant was the likely source of the semen. At the conclusion of the state's case, the court denied appellant's Crim.R. 29 motion. {¶ 14} In his defense, appellant called a DNA expert who testified that it was not scientifically possible to determine the source of a mixed sample solely on the basis of the individual in the sample with the most pronounced signature. Appellant also called a psychologist who testified that the perceptions of small children were frequently erroneous. Several persons who saw C.R. during the time that she was with appellant testified she appeared to be happy and unaffected when observed. Prior to submission of the matter to the jury, the trial court again rejected appellant's motion for a judgment of acquittal. {¶ 15} At the conclusion of the trial, the matter was submitted to the jury which, following deliberation, found appellant guilty of all charges and specifications. The trial 4. court accepted the verdict and sentenced appellant to a mandatory sentence of life without parole for rape and consecutive five year terms of imprisonment for each count of gross sexual imposition. {¶ 16} From this judgment, appellant now brings this appeal, setting forth the following five assignments of error: {¶ 17} "First Assignment of Error {¶ 18} "The trial court committed error and Appellant was denied his constitutional rights to fair trial and due process when the court overruled Appellant's motions for judgments of acquittal. {¶ 19} "Second Assignment of Error {¶ 20} "Appellant's rights to fair trial and due process were violated when he was convicted on Counts 2 and 3 of the indictment despite the fact that there was insufficient evidence to support conviction on either of those counts and the convictions were against the manifest weight of the evidence. {¶ 21} "Third Assignment of Error {¶ 22} "Appellant was denied his constitutional rights to fair trial and due process when the jury was permitted to return patchwork and non-specific verdicts. {¶ 23} "Fourth Assignment of Error {¶ 24} "Numerous instances of inadmissible hearsay testimony in violation of the evidence rules and the Sixth and Fourteenth Amendments to the United States Constitution deprived Mr. Schwirzinski of a fair trial. 5. {¶ 25} "Fifth Assignment of Error {¶ 26} Appellant's constitutional right to effective assistance of trial counsel was violated by defense counsel's numerous failures to protect Appellant's rights, make timely objections and otherwise advocate on behalf of Appellant." I. Sufficiency and Weight {¶ 27} Appellant's first two assignments of error are related and will be discussed together. Appellant insists that the trial court erred in denying his motions for a judgment of acquittal presented at the close of the state's case in chief and at the end of the trial. Appellant insists that the state wholly failed to present any evidence in proof of the second count of the indictment as restricted by the bill of particulars and wholly failed to present evidence as to one element of the offense charged in the third count of the indictment. {¶ 28} Counts 2 and 3 of the indictment both charge gross sexual imposition. The indictment recites these offenses in identical statutory language. The state's response to appellant's request for a bill of particulars as to Count 2 states: {¶ 29} "On or about June 12, 2008, [appellant] did have sexual contact with [C.R.] while sitting on the couch in the living room. [Appellant] reached his hand under a pillow the victim [C.R.] had placed on her lap and under her bathing suit to rub [C.R.'s] vaginal area. [C.R. was] seven years of age at the time of the incident." 6. {¶ 30} With respect to the third count, the state responded: {¶ 31} "On or about June 12, 2008, [appellant] made [C.R.] get on her hands and knees on the bed. [Appellant] stood behind [C.R.] touching her buttocks with one hand, which [sic] touching his penis with his other hand. [Appellant] ejaculated on [C.R.'s] back. [C.R. was] seven years of age at the time." {¶ 32} Appellant argues that while the state presented evidence of arguably four separate incidents that might be offenses, it presented no evidence of any events on the living room couch. Moreover, appellant points out, an essential element of gross sexual imposition is "sexual contact" which is statutorily defined as, "* * * any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person." R.C. 2907.01(B). Appellant insists that there was no evidence introduced of any "touching" that occurred relative to the events charged in Count 3. In fact, when asked "D[id] he touch you anywhere?" C.R. responded, "No." {¶ 33} The state is entitled to state a count in the indictment in bare statutory language. Crim.R. 7(B). A defendant seeking to clarify the facts of the criminal allegations contained within the indictment may request a bill of particulars. Crim.R. 7(E). The purpose of the bill of particulars is to "* * * elucidate or particularize the conduct of the accused alleged to constitute the charged offense." State v. Sellards (1985), 17 Ohio St.3d 169, 171. The state, upon timely demand, must respond, "* * * setting out the ultimate facts upon which the state expects to rely in establishing its 7. case[.]" State v. Miller (1989), 63 Ohio App.3d 479, 485. "The prosecution may amend a bill of particulars at any time, as justice requires, but once the bill is issued, the state, '* * * should be restricted in its proof to the indictment and the particulars as set forth in the bill.'" State v. Nickel, 6th Dist No. OT-09-001, 2009-Ohio-5996, ¶ 34, quoting State v. Miller, supra. See, also, State v. Vitale (1994), 96 Ohio App.3d 695, 700. {¶ 34} The standard of review for a denial of a motion for acquittal, pursuant to Crim.R. 29, is the same as that for sufficiency of the evidence. State v. Nuhfer, 6th Dist. No. L-07-1125, 2009-Ohio-1474, ¶ 25. "[T]he court must determine whether the evidence submitted is legally sufficient to support all of the elements of the offense charged. Specifically, we must determine whether the state has presented evidence which, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The test is, viewing the evidence in a light most favorable to the prosecution, could any rational trier of fact have found the essential elements of the crime proven beyond a reasonable doubt." Id. (Citations omitted.) {¶ 35} With respect to Count 2, the only evidence that the state points to in proof was the testimony of C.R., who was asked to "t[ell] me about a time you were on a couch." C.R. responded that "When I gave [appellant] a hug, he pushed me back and forth." C.R. said the movement was the same as when he "peed" on her. {¶ 36} Given reasonable inferences from the other evidence presented, the act C.R. describes could be found to meet the statutory definition of gross sexual imposition. But it is not the act described under Count 2 of the bill of particulars. The only similarity 8. between the act described there and the act to which C.R. testified at trial was that both occurred on a couch. Since the state is restricted in its proofs to the indictment and the bill of particulars and the evidence presented falls outside the perimeters of those documents, we must conclude that there was insufficient evidence to support a conviction on Count 2. {¶ 37} Consequently, the trial court erred in denying appellant's Crim.R. 29 motions as to Count 2. Accordingly, appellant's first assignment of error is well-taken. {¶ 38} Concerning the third count of the indictment, appellant argues that the state failed to prove that he had touched C.R. when she was on her hands and knees on the bed. For that reason, appellant insists, there was insufficient evidence of an essential element of gross sexual imposition. Alternatively, appellant suggests, even were we to conclude that the element of touching could be inferred, the finding of guilt on this count is against the manifest weight of the evidence. {¶ 39} There are a number of pieces of evidence by which the jury could have reasonably inferred that appellant touched C.R. on the bed. If the jury concluded, as it might reasonably, that what C.R. described was appellant ejaculating on her, it could have found that the ejaculate was an extension of appellant and that it touched C.R. The jury may have concluded that the positioning of C.R. on the bed or lifting her shirt could not have been performed without touch. The jury is not required to believe all of the testimony presented, including C.R.'s denial of having been touched. State v. Antill 9. (1964), 176 Ohio St. 61, 67. In that respect there was evidence presented by which a reasonable trier of fact could have found that appellant touched C.R. {¶ 40} Appellant also maintains that the jury's verdict on this count was against the manifest weight of the evidence. When there is a question of whether a verdict is against the manifest weight of the evidence, the appeals court acts as a "thirteenth juror" to determine whether the trier of fact lost its way and created such a manifest miscarriage of justice that the conviction must be overturned and a new trial ordered. State v. Thompkins (1997), 78 Ohio St.3d 380, 387. We have carefully reviewed the entire transcript of the trial and the evidence presented and fail to find any suggestion that the jury lost its way or that a miscarriage of justice occurred. Accordingly, appellant's second assignment of error as to Count 3 is not well-taken II. Patchwork Verdict {¶ 41} A criminal defendant must be convicted by a unanimous verdict. Sixth Amendment to the Constitution of the United States; Crim.R. 31(A); State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, ¶ 35.1 Moreover, due process requires that the prosecution prove beyond a reasonable doubt every fact necessary to constitute the crime charged. Id. at ¶ 36, citing In re Winship (1970), 397 U.S. 358, 364. A "patchwork" verdict occurs when the jury unanimously agrees that a crime has been committed, but 1 Unanimity in a criminal verdict in state proceedings is not a guarantee of the federal constitution. State v. Gardner, 2008-Ohio-2787, ¶ 36; State v. Brime, 10th Dist No. 09AP-491, 2009-Ohio-6572, ¶ 25. In Ohio, the requirement for a unanimous verdict is by rule. Crim.R. 31(A). 10. individual jurors vary on the facts that constitute the crime. State v. Johnson (1989), 46 Ohio St.3d 96, 104-105, certiorari denied (1990), 494 U.S. 1039. {¶ 42} Appellant argues that, because the indictment and bill of particulars charged three offenses, the state presented evidence of four distinct incidents, and the court did not link any incident to any particular count, there is a probability that the jury delivered a patchwork verdict. Indeed, appellant points out, during deliberations the jury asked if a specific event was linked to a specific count. The court, with the approval of both counsel, declined to respond to the question, advising the jury to rely on the instructions already given. {¶ 43} While Crim.R. 31(A) requires that jurors unanimously agree on each element of a crime, they need not agree to a single way each element is satisfied. "[A] 'jury need not always decide unanimously which of several possible sets of underlying brute facts make up a particular element, say, which of several possible means the defendant used to commit an element of the crime.'" Gardner, 2008-Ohio-2787, ¶ 38, quoting Richardson v. United States (1999), 526 U.S. 813, 817. {¶ 44} "In determining whether the state has impermissibly interfered with a defendant's Crim.R. 31(A) right to juror unanimity and the due process right to require the state prove each element of the offense beyond a reasonable doubt, the critical inquiry is whether the case involves 'alternative means' or 'multiple acts.' {¶ 45} "'"In an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. 11. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means. In reviewing an alternative means case, the court must determine whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt. {¶ 46} "'"In multiple acts cases, on the other hand, several acts are alleged and any one of them could constitute the crime charged. In these cases, the jury must be unanimous as to which act or incident constitutes the crime. To ensure jury unanimity in multiple acts cases, we require that either the State elect the particular criminal act upon which it will rely for conviction, or that the trial court instruct the jury that all of them must agree that the same underlying criminal act has been proved beyond a reasonable doubt."'" (Footnote omitted.) State v. Jones (2001), 96 Hawaii 161, 170, 29 P.3d 351, quoting State v. Timley (1994), 255 Kan. 286, 289-290, 875 P.2d 242, quoting State v. Kitchen (1988), 110 Wash.2d 403, 410, 756 P.2d 105." Gardner, 2008-Ohio-2787, ¶ 4850. {¶ 47} The present matter falls within the ambit of a "multiple acts" case. This involves only the gross sexual imposition charges as there was only one rape charged and evidence presented of only one rape. There were, however, two counts of separate gross sexual impositions charged and evidence presented of three separate incidents that could have constituted gross sexual imposition. Even after reversing one of the gross sexual imposition offenses charged, there remains one count and two incidents. This is the circumstance that Gardner states requires either an election by the prosecution or an 12. instruction by the court. In this matter, the state made no overt election as to evidence and the court gave only a general instruction as to unanimity. {¶ 48} In these circumstances, had appellant requested a more specific jury charge or objected to the instructions as given, denial of this would have constituted reversible error. Appellant, however, did not object, nor did he propose other instructions. Crim.R. 30(A) provides, "* * * a party 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." Absent such objection, we must engage in a plain error analysis. {¶ 49} Crim.R. 52(B) provides that, "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." Notice of plain error is to be taken only in extraordinary circumstances and only to prevent a manifest miscarriage of justice. State v. Long (1978), 53 Ohio St.2d 91, paragraph three of the syllabus. "A jury instruction * * * does not constitute a plain error or defect under Crim.R. 52(B) unless, but for the error, the outcome of the trial clearly would have been otherwise." Id. at paragraph two of the syllabus; Gardner, supra, at ¶ 78. {¶ 50} C.R.'s testimony that appellant touched her while she was in the car was not an allegation included in the bill of particulars. Although the state did not expressly state an election not to depend on this evidence, neither did it mention this testimony in closing argument. The state's emphasis was on the incident wherein appellant was alleged to 13. have "peed" on C.R. As the verdicts suggest, the jury believed the testimony of C.R. In our view, it is highly likely that this belief in the child's testimony extended to this incident, described in the bill of particulars relating to Count 3. Given this, we cannot conclude that, absent the instruction error, the result of the trial with respect to the remaining gross sexual imposition count would have been different. Accordingly, appellant's third assignment of error is not well-taken. III. Hearsay {¶ 51} "'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Evid.R. 801(C). Hearsay is not admissible into evidence unless permitted by constitution, statute or rule. Evid.R. 802. Nevertheless, the rules of evidence provide numerous categories of testimony which are declared either as "not hearsay," Evid.R. 801(D), or are within exceptions to the hearsay rule. Evid.R. 803, 804. {¶ 52} The decision of whether to admit or exclude evidence, including hearsay evidence, rests within the sound discretion of the court and will not be grounds for reversal absent an abuse of that discretion. State v. Sage (1987), 31 Ohio St.3d 173, paragraph two of the syllabus; State v. Swann, 119 Ohio St.3d 552, 2008-Ohio-4837, ¶ 33. An abuse of discretion is more than a mistake of law or a lapse of judgment, the term connotes that the court's attitude is arbitrary, unreasonable or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. 14. {¶ 53} In some circumstances the Confrontation Clause may be implicated in the admission of hearsay testimony. However, "'when the declarant appears for crossexamination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. * * * The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.'" State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, ¶ 127, quoting Crawford v. Washington (2004), 541 U.S. 36, 59. {¶ 54} Appellant complains that the trial court erred in admitting numerous statements that C.R. made to her mother, her mother's fiancé, the investigating officer, the SANE nurse and the examining pediatrician on the day C.R. was brought home by appellant. Since C.R. testified at trial and was available for cross-examination, the Confrontation Clause is not implicated, even for testimony elicited after C.R. left the stand. Perez, supra, at ¶ 128. {¶ 55} With respect to the court's specific rulings, appellant directs our attention to only one instance wherein the court overruled a hearsay objection. When C.R.'s mother was on the stand, she testified that C.R. had called her: {¶ 56} "* * * she said 'I'm ready to come home.' I said, 'Okay, I thought you were going to stay two nights?' 'No, I'm ready to come home.'" {¶ 57} To this testimony, appellant's trial counsel interposed a hearsay objection. The state responded that the testimony was "[n]ot being offered for the matter asserted." The court replied, "She'll be testifying and you can cross." The court overruled the 15. objection. Appellant insists that the court's comment does not constitute a cognizable exception to the hearsay rule and is thus erroneous. {¶ 58} The trial court's comment was, at worst, superfluous. It is readily understandable that the challenged statement was offered not to prove that C.R. wanted to come home, but for the purpose of showing that C.R. made such a statement. In that respect, the testimony was offered to prove that the words were spoken, not for the truth of the matter asserted. Consequently, the statement was not hearsay, and the court's ruling was proper. {¶ 59} With respect to the remaining statements of which appellant complains, appellant concedes that "[d]efense counsel made no significant hearsay-related objections to any of this testimony." {¶ 60} Evid.R. 103(A) provides: {¶ 61} "Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and [i]n case the ruling is one admitting evidence, timely objection or motion to strike appears of record stating the specific ground of objection, if the specific ground was not apparent from the context * * *." If no objection appears of record, we must conduct a plain error analysis to determine where there was an error not brought to the attention of the court that affected a substantial right. Evid.R. 103(D). The improper admission hearsay evidence affects a substantial right only if it clearly appears of record that the trier of fact relied upon such evidence for conviction. State v. Sorrels (1991), 71 Ohio App.3d 162, 165. 16. {¶ 62} We have examined each of the statements to which appellant objects. Most fall under well-settled exceptions to the hearsay rule such as excited utterance, Evid.R. 803(2), statements for purposes of medical diagnosis or treatment, Evid.R. 803(4), and, with respect to a physician's testimony based on hospital records, the records of regularly conducted activity. Evid.R. 803(6). Moreover, there is nothing in the record to suggest that the jury relied significantly on anything other that C.R.'s testimony in arriving at its verdict. Accordingly, appellant's fourth assignment of error is not well-taken. IV. Ineffective Assistance of Counsel {¶ 63} In his final assignment of error, appellant asserts that he was denied effective assistance of counsel. {¶ 64} "A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction * * * has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. * * * Unless a defendant makes both showings, it cannot be said that the conviction * * * resulted from a breakdown in the adversary process that renders the result unreliable." Strickland v. Washington (1984), 466 U.S. 668, 687. Accord State v. Smith (1985), 17 Ohio St.3d 98, 100. {¶ 65} Scrutiny of counsel's performance must be deferential. Strickland v. Washington at 689. In Ohio, a properly licensed attorney is presumed competent and the 17. burden of proving ineffectiveness is the defendant's. State v. Smith, supra. Counsel's actions which "might be considered sound trial strategy," are presumed effective. Strickland v. Washington at 687. "Prejudice" exists only when the lawyer's performance renders the result of the trial unreliable or the proceeding unfair. Id. Appellant must show that there exists a reasonable probability that a different verdict would have been returned but for counsel's deficiencies. See id. at 694. See, also, State v. Lott (1990), 51 Ohio St.3d 160, for Ohio's adoption of the Strickland test. {¶ 66} Appellant suggests that his trial counsel was ineffective because he did not more vigorously challenge the opinion testimony of the state's DNA expert, failed to challenge a juror for cause during voir dire and exercise all of the available peremptory challenges, did not object to hearsay testimony, failed to timely raise a Crim.R. 16(B)(1)(g) request and only perfunctorily argued his Crim.R. 29 motions. With respect to the Crim.R. 29 motions, any deficiency in that matter has been remedied here. We have also noted above that more hearsay objections likely would have been futile. {¶ 67} The exercise of peremptory challenges or challenge for cause, most certainly was part of trial strategy and must be presumed effective. The same is true of trial counsel's challenge of the state's DNA witness. Counsel presented opposing expert testimony. It is not deficient performance that he did not also request a Daubert hearing or move to limit the state expert's testimony. {¶ 68} Concerning the untimely Crim.R. 16(B)(1)(g) motion for examination of the consistency of C.R.'s prior statements, even if this constituted a deficiency of trial 18. counsel, it cannot be said to have prompted a breakdown in the process that resulted in an unreliable result. Accordingly, appellant's fifth assignment of error is not well-taken. {¶ 69} On consideration whereof, the judgment of the Lucas County Court of Common Pleas is affirmed, in part, and reversed, in part. This matter is remanded to said court for further proceedings consistent with this decision. It is ordered that appellee pay the court costs of this appeal pursuant to App.R. 24. JUDGMENT AFFIRMED, IN PART, AND REVERSED, IN PART. A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4. Mark L. Pietrykowski, J. _______________________________ JUDGE Arlene Singer, J. Keila D. Cosme, J. CONCUR. _______________________________ JUDGE _______________________________ JUDGE This decision is subject to further editing by the Supreme Court of Ohio's Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court's web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6. 19.
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